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Your Rights to Due Process and Equal Protection
21 Apr 2017

Your Rights to Due Process and Equal Protection

“Due process” and “equal protection of the law” are basic constitutional principles that affect every aspect of how the government interacts with citizens and non-citizens within the borders of the United States. These clauses have particular importance if you have been charged with a crime.

Due Process of Law

Under the Fifth Amendment

The due process clause was first included in the Constitution via the Fifth Amendment in the Bill of Rights and later the Fourteenth Amendment after the Civil War. The Fifth Amendment states, in part, that no person can “… be deprived of life, liberty, or property, without due process of law….”

Under the Fourteenth Amendment

The due process clause is also contained in the Fourteenth Amendment to the U.S. Constitution. The due process language used in the Fourteenth Amendment is similar as that used in the Fifth Amendment, stating in relevant part, “… [N]or shall any state deprive any person of life, liberty, or property, without due process of law….”

The Fourteenth Amendment acted on the states, whereas the Fifth Amendment acted to protect people from abuses of the federal government. The Fourteenth Amendment was adopted after the Civil War, with the purpose of curtailing the abuse of freed slaves in the South.

What Due Process Really Means

Due process means that the police, judges, district attorneys, and juries must follow the law in the criminal law process. Just as the law bans particular behaviors by private citizens, the law also describes the procedures that government must use in prosecuting people charged with a crime.  The basic components of procedural due process are:

  • Right to be given notice of what crimes are charged
  • Right to a hearing

For example, if a police officer is certain that a particular person violated the law, that person is still entitled to a trial. The police officer makes the arrest, informs the defendant of his right to remain silent and the right to an attorney. Due process requires, among other rights, that a person be notified of what crimes he is charged with violating and the right to be heard before a neutral judge or jury when charged with a crime. These are constitutionally protected rights.

Police Must Follow the Rules

Due process also means that the rights that are found in statutes instead of the Constitution cannot be arbitrarily withdrawn. For example, New Mexico Statute 31-1-5 requires that a defendant be given a reasonable opportunity to make three telephone calls within twenty minutes after arrival at a police station, sheriff’s office or other place of detention. Neither the United States Constitution nor the State of New Mexico’s Constitution provide the right to make three telephone calls. However, the right does exist in New Mexico’s statutes; therefore, the police must follow the proper procedure and allow the arrestee to make the three telephone calls.  Again, no Constitutional right exists to make three telephone calls, but the Constitution does guarantee “due process of law.”  Consequently, if the police arbitrarily deny a person the right to make the telephone calls, the denial would arguably be a violation of due process. Therefore, a violation of the due process clause of the United States Constitution may have occurred.

Equal Protection Clause

The Fourteenth Amendment also contains the “equal protection clause.”  The equal protection clause of the Fourteenth Amendment provides that no State shall, “… deny to any person within its jurisdiction the equal protection of the laws….” The intent of the equal protection clause is to promote equality before the law and prevent arbitrary distinctions.

Inclusion of Non-U.S. Citizens

Another key element of the protections provided in the Fifth and Fourteenth is the inclusions of non-citizens into the protection of criminal law procedure. The Fifth Amendment states that “no person” shall be held on an infamous crime without a presentment or indictment by a grand jury. The Fifth Amendment also guarantees that non-citizens are also entitled to due process of law.

Moreover, the Fourteenth Amendment also guarantees that non-citizens are entitled to law’s full and equal protection. The Authors of the Fourteenth Amendment were deliberate in the use of the word citizen and person. For example, the Fourteenth Amendment says that States cannot make any law “which shall abridge the privileges or immunities of citizens of the United States….”  Privileges and immunities include such items as the right to vote and other rights that are inherent in citizenship, and the guarantee of those rights is restricted to citizens. However, the term “people” was used in the Fourteenth Amendment when the intent was to protect those rights that one may lose in criminal prosecution. Instead of the word “citizen”, the Fourteenth Amendment says the states “shall not deprive any person” of “life, liberty or property” without due process of law.  The Fourteenth Amendment also uses the term “person” as opposed to “citizen” when it requires the states to extend equal protection of the law to all people within its jurisdiction.  The Fifth Amendment also uses the term “person” as opposed to “citizen” when guaranteeing the due process of law when life, liberty and property are in jeopardy.

All people in the borders of the United States and its Territories have a Constitutional right to due process and equal protection of the laws. That means, at the very least, everyone is entitled to notice of a hearing and a fair trial. It also means that whether your family came over on the Mayflower or you are an undocumented resident, you have certain rights when charged with a crime. We are a nation of laws and all people are equal before the law. Attorney Ray Twohig fights for the values established in the Constitution and the equality of all people before the law. He fights to defend his clients’ Constitutional rights to due process and equal protection of the law.

Contact an Experienced Criminal Defense Attorney Today

If you are facing criminal charges and have questions about due process and equal protection, contact attorney Ray Twohig today.


  • I have been in the legal field for almost 41 years. I work with lawyers as a consultant all over the US. Ray Twohig is the best of the best. He is very thoughtful, thorough, careful, and... Twohig Law Firm Twohig Law Firm

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