Procedural Due Process Civil

SECTION 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Annotations

Due process requires that the procedures by which laws are applied must be evenhanded, so that individuals are not subjected to the arbitrary exercise of government power.⁷³⁷ Exactly what procedures are needed to satisfy due process, however, will vary depending on the circumstances and subject matter involved.⁷³⁸ A basic threshold issue respecting whether due process is satisfied is whether the government conduct being examined is a part of a criminal or civil proceeding.⁷³⁹ The appropriate framework for assessing procedural rules in the field of criminal law is determining whether the procedure is offensive to the concept of fundamental fairness.⁷⁴⁰ In civil contexts, however, a balancing test is used that evaluates the government’s chosen procedure with respect to the private interest affected, the risk of erroneous deprivation of that interest under the chosen procedure, and the government interest at stake.⁷⁴¹

Relevance of Historical Use.—The requirements of due process are determined in part by an examination of the settled usages and modes of proceedings of the common and statutory law of England during pre-colonial times and in the early years of this country.⁷⁴² In other words, the antiquity of a legal procedure is a factor weighing in its favor. However, it does not follow that a procedure settled in English law and adopted in this country is, or remains, an essential element of due process of law. If that were so, the procedure of the first half of the seventeenth century would be “fastened upon American jurisprudence like a strait jacket, only to be unloosed by constitutional amendment.”⁷⁴³ Fortunately, the states are not tied down by any provision of the Constitution to the practice and procedure that existed at the common law, but may avail themselves of the wisdom gathered by the experience of the country to make changes deemed to be necessary.⁷⁴⁴

Non-Judicial Proceedings.—A court proceeding is not a requisite of due process.⁷⁴⁵ Administrative and executive proceedings are not judicial, yet they may satisfy the Due Process Clause.⁷⁴⁶ Moreover, the Due Process Clause does not require de novo judicial review of the factual conclusions of state regulatory agencies,⁷⁴⁷ and may not require judicial review at all.⁷⁴⁸ Nor does the Fourteenth Amendment prohibit a state from conferring judicial functions upon non-judicial bodies, or from delegating powers to a court that are legislative in nature.⁷⁴⁹ Further, it is up to a state to determine to what extent its legislative, executive, and judicial powers should be kept distinct and separate.⁷⁵⁰

The Requirements of Due Process.—Although due process tolerates variances in procedure “appropriate to the nature of the case,”⁷⁵¹ it is nonetheless possible to identify its core goals and requirements. First, “[p]rocedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.”⁷⁵² Thus, the required elements of due process are those that “minimize substantively unfair or mistaken deprivations” by enabling persons to contest the basis upon which a state proposes to deprive them of protected interests.⁷⁵³ The core of these requirements is notice and a hearing before an impartial tribunal. Due process may also require an opportunity for confrontation and cross-examination, and for discovery; that a decision be made based on the record, and that a party be allowed to be represented by counsel.

(1) Notice. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”⁷⁵⁴ This may include an obligation, upon learning that an attempt at notice has failed, to take “reasonable followup measures” that may be available.⁷⁵⁵ In addition, notice must be sufficient to enable the recipient to determine what is being proposed and what he must do to prevent the deprivation of his interest.⁷⁵⁶ Ordinarily, service of the notice must be reasonably structured to assure that the person to whom it is directed receives it.⁷⁵⁷ Such notice, however, need not describe the legal procedures necessary to protect one’s interest if such procedures are otherwise set out in published, generally available public sources.⁷⁵⁸

(2) Hearing. “[S]ome form of hearing is required before an individual is finally deprived of a property [or liberty] interest.”⁷⁵⁹ This right is a “basic aspect of the duty of government to follow a fair process of decision making when it acts to deprive a person of his possessions. The purpose of this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment . . . .”⁷⁶⁰ Thus, the notice of hearing and the opportunity to be heard “must be granted at a meaningful time and in a meaningful manner.”⁷⁶¹

(3) Impartial Tribunal. Just as in criminal and quasi-criminal cases,⁷⁶² an impartial decisionmaker is an essential right in civil proceedings as well.⁷⁶³ “The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. . . . At the same time, it preserves both the appearance and reality of fairness . . . by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him.”⁷⁶⁴ Thus, a showing of bias or of strong implications of bias was deemed made where a state optometry board, made up of only private practitioners, was proceeding against other licensed optometrists for unprofessional conduct because they were employed by corporations. Since success in the board’s effort would redound to the personal benefit of private practitioners, the Court thought the interest of the board members to be sufficient to disqualify them.⁷⁶⁵

There is, however, a “presumption of honesty and integrity in those serving as adjudicators,”⁷⁶⁶ so that the burden is on the objecting party to show a conflict of interest or some other specific reason for disqualification of a specific officer or for disapproval of the system. Thus, combining functions within an agency, such as by allowing members of a State Medical Examining Board to both investigate and adjudicate a physician’s suspension, may raise substantial concerns, but does not by itself establish a violation of due process.⁷⁶⁷ The Court has also held that the official or personal stake that school board members had in a decision to fire teachers who had engaged in a strike against the school system in violation of state law was not such so as to disqualify them.⁷⁶⁸ Sometimes, to ensure an impartial tribunal, the Due Process Clause requires a judge to recuse himself from a case. In Caperton v. A. T. Massey Coal Co. , Inc., the Court noted that “most matters relating to judicial disqualification [do] not rise to a constitutional level,” and that “matters of kinship, personal bias, state policy, [and] remoteness of interest, would seem generally to be matters merely of legislative discretion.”⁷⁶⁹ The Court added, however, that “[t]he early and leading case on the subject” had “concluded that the Due Process Clause incorporated the common-law rule that a judge must recuse himself when he has ‘a direct, personal, substantial, pecuniary interest’ in a case.”⁷⁷⁰ In addition, although “[p]ersonal bias or prejudice ‘alone would not be sufficient basis for imposing a constitutional requirement under the Due Process Clause,’” there “are circumstances ‘in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.’”⁷⁷¹ These circumstances include “where a judge had a financial interest in the outcome of a case” or “a conflict arising from his participation in an earlier proceeding.”⁷⁷² In such cases, “[t]he inquiry is an objective one. The Court asks not whether the judge is actually, subjectively biased, but whether the average judge in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’”⁷⁷³ In Caperton, a company appealed a jury verdict of $50 million, and its chairman spent $3 million to elect a justice to the Supreme Court of Appeals of West Virginia at a time when “[i]t was reasonably foreseeable . . . that the pending case would be before the newly elected justice.”⁷⁷⁴ This $3 million was more than the total amount spent by all other supporters of the justice and three times the amount spent by the justice’s own committee. The justice was elected, declined to recuse himself, and joined a 3-to-2 decision overturning the jury verdict. The Supreme Court, in a 5-to-4 opinion written by Justice Kennedy, “conclude[d] that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”⁷⁷⁵

Subsequently, in Williams v. Pennsylvania, the Court found that the right of due process was violated when a judge on the Pennsylvania Supreme Court—who participated in case denying post-conviction relief to a prisoner convicted of first-degree murder and sentenced to death—had, in his former role as a district attorney, given approval to seek the death penalty in the prisoner’s case.⁷⁷⁶ Relying on Caperton, which the Court viewed as having set forth an “objective standard” that requires recusal when the likelihood of bias on the part of the judge is “too high to be constitutionally tolerable,”⁷⁷⁷ the Williams Court specifically held that there is an impermissible risk of actual bias when a judge had previously had a “significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.”⁷⁷⁸ The Court based its holding, in part, on earlier cases which had found impermissible bias occurs when the same person serves as both “accuser” and “adjudicator” in a case, which the Court viewed as having happened in Williams.⁷⁷⁹ It also reasoned that authorizing another person to seek the death penalty represents “significant personal involvement” in a case,⁷⁸⁰ and took the view that the involvement of multiple actors in a case over many years “only heightens”—rather than mitigates—the “need for objective rules preventing the operation of bias that otherwise might be obscured.”⁷⁸¹ As a remedy, the case was remanded for reevaluation by the reconstituted Pennsylvania Supreme Court, notwithstanding the fact that the judge in question did not cast the deciding vote, as the Williams Court viewed the judge’s participation in the multi-member panel’s deliberations as sufficient to taint the public legitimacy of the underlying proceedings and constitute reversible error.⁷⁸²

(4) Confrontation and Cross-Examination. “In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.”⁷⁸³ Where the “evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealously,” the individual’s right to show that it is untrue depends on the rights of confrontation and cross-examination. “This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, . . . but also in all types of cases where administrative . . . actions were under scrutiny.”⁷⁸⁴

(5) Discovery. The Court has never directly confronted this issue, but in one case it did observe in dictum that “where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue.”⁷⁸⁵ Some federal agencies have adopted discovery rules modeled on the Federal Rules of Civil Procedure, and the Administrative Conference has recommended that all do so.⁷⁸⁶ There appear to be no cases, however, holding they must, and there is some authority that they cannot absent congressional authorization.⁷⁸⁷

(6) Decision on the Record. Although this issue arises principally in the administrative law area,⁷⁸⁸ it applies generally. “[T]he decisionmaker’s conclusion . . . must rest solely on the legal rules and evidence adduced at the hearing. To demonstrate compliance with this elementary requirement, the decisionmaker should state the reasons for his determination and indicate the evidence he relied on, though his statement need not amount to a full opinion or even formal findings of fact and conclusions of law.”⁷⁸⁹

(7) Counsel. In Goldberg v. Kelly, the Court held that a government agency must permit a welfare recipient who has been denied benefits to be represented by and assisted by counsel.⁷⁹⁰ In the years since, the Court has struggled with whether civil litigants in court and persons before agencies who could not afford retained counsel should have counsel appointed and paid for, and the matter seems far from settled. The Court has established a presumption that an indigent does not have the right to appointed counsel unless his “physical liberty” is threatened.⁷⁹¹ Moreover, that an indigent may have a right to appointed counsel in some civil proceedings where incarceration is threatened does not mean that counsel must be made available in all such cases. Rather, the Court focuses on the circumstances in individual cases, and may hold that provision of counsel is not required if the state provides appropriate alternative safeguards.⁷⁹²

Though the calculus may vary, cases not involving detention also are determined on a casebycase basis using a balancing standard.⁷⁹³

For instance, in a case involving a state proceeding to terminate the parental rights of an indigent without providing her counsel, the Court recognized the parent’s interest as “an extremely important one.” The Court, however, also noted the state’s strong interest in protecting the welfare of children. Thus, as the interest in correct fact-finding was strong on both sides, the proceeding was relatively simple, no features were present raising a risk of criminal liability, no expert witnesses were present, and no “specially troublesome” substantive or procedural issues had been raised, the litigant did not have a right to appointed counsel.⁷⁹⁴ In other due process cases involving parental rights, the Court has held that due process requires special state attention to parental rights.⁷⁹⁵ Thus, it would appear likely that in other parental right cases, a right to appointed counsel could be established.

The Interests Protected: “Life, Liberty and Property”.— The language of the Fourteenth Amendment requires the provision of due process when an interest in one’s “life, liberty or property” is threatened.⁷⁹⁶ Traditionally, the Court made this determination by reference to the common understanding of these terms, as embodied in the development of the common law.⁷⁹⁷ In the 1960s, however, the Court began a rapid expansion of the “liberty” and “property” aspects of the clause to include such non-traditional concepts as conditional property rights and statutory entitlements. Since then, the Court has followed an inconsistent path of expanding and contracting the breadth of these protected interests. The “life” interest, on the other hand, although often important in criminal cases, has found little application in the civil context.

The Property Interest.—The expansion of the concept of “property rights” beyond its common law roots reflected a recognition by the Court that certain interests that fall short of traditional property rights are nonetheless important parts of people’s economic well-being. For instance, where household goods were sold under an installment contract and title was retained by the seller, the possessory interest of the buyer was deemed sufficiently important to require procedural due process before repossession could occur.⁷⁹⁸ In addition, the loss of the use of garnished wages between the time of garnishment and final resolution of the underlying suit was deemed a sufficient property interest to require some form of determination that the garnisher was likely to prevail.⁷⁹⁹ Furthermore, the continued possession of a driver’s license, which may be essential to one’s livelihood, is protected; thus, a license should not be suspended after an accident for failure to post a security for the amount of damages claimed by an injured party without affording the driver an opportunity to raise the issue of liability.⁸⁰⁰

A more fundamental shift in the concept of property occurred with recognition of society’s growing economic reliance on government benefits, employment, and contracts,⁸⁰¹ and with the decline of the “right-privilege” principle. This principle, discussed previously in the First Amendment context,⁸⁰² was pithily summarized by Justice Holmes in dismissing a suit by a policeman protesting being fired from his job: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”⁸⁰³ Under this theory, a finding that a litigant had no “vested property interest” in government employment,⁸⁰⁴ or that some form of public assistance was “only” a privilege,⁸⁰⁵ meant that no procedural due process was required before depriving a person of that interest.⁸⁰⁶ The reasoning was that, if a government was under no obligation to provide something, it could choose to provide it subject to whatever conditions or procedures it found appropriate.

The conceptual underpinnings of this position, however, were always in conflict with a line of cases holding that the government could not require the diminution of constitutional rights as a condition for receiving benefits. This line of thought, referred to as the “unconstitutional conditions” doctrine, held that, “even though a person has no ‘right’ to a valuable government benefit and even though the government may deny him the benefit for any number of reasons, it may not do so on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech.”⁸⁰⁷ Nonetheless, the two doctrines coexisted in an unstable relationship until the 1960s, when the right-privilege distinction started to be largely disregarded.⁸⁰⁸

Concurrently with the virtual demise of the “right-privilege” distinction, there arose the “entitlement” doctrine, under which the Court erected a barrier of procedural—but not substantive—protections⁸⁰⁹ against erroneous governmental deprivation of something it had within its discretion bestowed. Previously, the Court had limited due process protections to constitutional rights, traditional rights, common law rights and “natural rights.” Now, under a new “positivist” approach, a protected property or liberty interest might be found based on any positive governmental statute or governmental practice that gave rise to a legitimate expectation. Indeed, for a time it appeared that this positivist conception of protected rights was going to displace the traditional sources.

As noted previously, the advent of this new doctrine can be seen in Goldberg v. Kelly,⁸¹⁰ in which the Court held that, because termination of welfare assistance may deprive an eligible recipient of the means of livelihood, the government must provide a pretermination evidentiary hearing at which an initial determination of the validity of the dispensing agency’s grounds for termination may be made. In order to reach this conclusion, the Court found that such benefits “are a matter of statutory entitlement for persons qualified to receive them.”⁸¹¹ Thus, where the loss or reduction of a benefit or privilege was conditioned upon specified grounds, it was found that the recipient had a property interest entitling him to proper procedure before termination or revocation.

At first, the Court’s emphasis on the importance of the statutory rights to the claimant led some lower courts to apply the Due Process Clause by assessing the weights of the interests involved and the harm done to one who lost what he was claiming. This approach, the Court held, was inappropriate. “[W]e must look not to the ‘weight’ but to the nature of the interest at stake. . . . We must look to see if the interest is within the Fourteenth Amendment’s protection of liberty and property.”⁸¹² To have a property interest in the constitutional sense, the Court held, it was not enough that one has an abstract need or desire for a benefit or a unilateral expectation. He must rather “have a legitimate claim of entitlement” to the benefit. “Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.”⁸¹³

Consequently, in Board of Regents v. Roth, the Court held that the refusal to renew a teacher’s contract upon expiration of his one-year term implicated no due process values because there was nothing in the public university’s contract, regulations, or policies that “created any legitimate claim” to reemployment.⁸¹⁴ By contrast, in Perry v. Sindermann,⁸¹⁵ a professor employed for several years at a public college was found to have a protected interest, even though his employment contract had no tenure provision and there was no statutory assurance of it.⁸¹⁶ The “existing rules or understandings” were deemed to have the characteristics of tenure, and thus provided a legitimate expectation independent of any contract provision.⁸¹⁷

The Court has also found “legitimate entitlements” in a variety of other situations besides employment. In Goss v. Lopez,⁸¹⁸ an Ohio statute provided for both free education to all residents between five and 21 years of age and compulsory school attendance; thus, the state was deemed to have obligated itself to accord students some due process hearing rights prior to suspending them, even for such a short period as ten days. “Having chosen to extend the right to an education to people of appellees’ class generally, Ohio may not withdraw that right on grounds of misconduct, absent fundamentally fair procedures to determine whether the misconduct has occurred.”⁸¹⁹ The Court is highly deferential, however, to school dismissal decisions based on academic grounds.⁸²⁰

The further one gets from traditional precepts of property, the more difficult it is to establish a due process claim based on entitlements. In Town of Castle Rock v. Gonzales,⁸²¹ the Court considered whether police officers violated a constitutionally protected property interest by failing to enforce a restraining order obtained by an estranged wife against her husband, despite having probable cause to believe the order had been violated. While noting statutory language that required that officers either use “every reasonable means to enforce [the] restraining order” or “seek a warrant for the arrest of the restrained person,” the Court resisted equating this language with the creation of an enforceable right, noting a longstanding tradition of police discretion coexisting with apparently mandatory arrest statutes.⁸²² Finally, the Court even questioned whether finding that the statute contained mandatory language would have created a property right, as the wife, with no criminal enforcement authority herself, was merely an indirect recipient of the benefits of the governmental enforcement scheme.⁸²³

In Arnett v. Kennedy,⁸²⁴ an incipient counter-revolution to the expansion of due process was rebuffed, at least with respect to entitlements. Three Justices sought to qualify the principle laid down in the entitlement cases and to restore in effect much of the right-privilege distinction, albeit in a new formulation. The case involved a federal law that provided that employees could not be discharged except for cause, and the Justices acknowledged that due process rights could be created through statutory grants of entitlements. The Justices, however, observed that the same law specifically withheld the procedural protections now being sought by the employees. Because “the property interest which appellee had in his employment was itself conditioned by the procedural limitations which had accompanied the grant of that interest,”⁸²⁵ the employee would have to “take the bitter with the sweet.”⁸²⁶ Thus, Congress (and by analogy state legislatures) could qualify the conferral of an interest by limiting the process that might otherwise be required.

But the other six Justices, although disagreeing among themselves in other respects, rejected this attempt to formulate the issue. “This view misconceives the origin of the right to procedural due process,” Justice Powell wrote. “That right is conferred not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest in federal employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.”⁸²⁷ Yet, in Bishop v. Wood,⁸²⁸ the Court accepted a district court’s finding that a policeman held his position “at will” despite language setting forth conditions for discharge. Although the majority opinion was couched in terms of statutory construction, the majority appeared to come close to adopting the three-Justice Arnett position, so much so that the dissenters accused the majority of having repudiated the majority position of the six Justices in Arnett. And, in Goss v. Lopez,⁸²⁹ Justice Powell, writing in dissent but using language quite similar to that of Justice Rehnquist in Arnett, seemed to indicate that the right to public education could be qualified by a statute authorizing a school principal to impose a ten-day suspension.⁸³⁰

Subsequently, however, the Court held squarely that, because “minimum [procedural] requirements [are] a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse action.” Indeed, any other conclusion would allow the state to destroy virtually any state-created property interest at will.⁸³¹ A striking application of this analysis is found in Logan v. Zimmerman Brush Co.,⁸³² in which a state anti-discrimination law required the enforcing agency to convene a fact-finding conference within 120 days of the filing of the complaint. Inadvertently, the Commission scheduled the hearing after the expiration of the 120 days and the state courts held the requirement to be jurisdictional, necessitating dismissal of the complaint. The Court noted that various older cases had clearly established that causes of action were property, and, in any event, Logan’s claim was an entitlement grounded in state law and thus could only be removed “for cause.” This property interest existed independently of the 120-day time period and could not simply be taken away by agency action or inaction.⁸³³

The Liberty Interest.—With respect to liberty interests, the Court has followed a similarly meandering path. Although the traditional concept of liberty was freedom from physical restraint, the Court has expanded the concept to include various other protected interests, some statutorily created and some not.⁸³⁴ Thus, in Ingraham v. Wright,⁸³⁵ the Court unanimously agreed that school children had a liberty interest in freedom from wrongfully or excessively administered corporal punishment, whether or not such interest was protected by statute. “The liberty preserved from deprivation without due process included the right ‘generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.’ . . . Among the historic liberties so protected was a right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security.”⁸³⁶

The Court also appeared to have expanded the notion of “liberty” to include the right to be free of official stigmatization, and found that such threatened stigmatization could in and of itself require due process.⁸³⁷ Thus, in Wisconsin v. Constantineau,⁸³⁸ the Court invalidated a statutory scheme in which persons could be labeled “excessive drinkers,” without any opportunity for a hearing and rebuttal, and could then be barred from places where alcohol was served. The Court, without discussing the source of the entitlement, noted that the governmental action impugned the individual’s reputation, honor, and integrity.⁸³⁹

But, in Paul v. Davis,⁸⁴⁰ the Court appeared to retreat from recognizing damage to reputation alone, holding instead that the liberty interest extended only to those situations where loss of one’s reputation also resulted in loss of a statutory entitlement. In Davis, the police had included plaintiff’s photograph and name on a list of “active shoplifters” circulated to merchants without an opportunity for notice or hearing. But the Court held that “Kentucky law does not extend to respondent any legal guarantee of present enjoyment of reputation which has been altered as a result of petitioners’ actions. Rather, his interest in reputation is simply one of a number which the State may protect against injury by virtue of its tort law, providing a forum for vindication of those interest by means of damage actions.”⁸⁴¹ Thus, unless the government’s official defamation has a specific negative effect on an entitlement, such as the denial to “excessive drinkers” of the right to obtain alcohol that occurred in Constantineau, there is no protected liberty interest that would require due process.

A number of liberty interest cases that involve statutorily created entitlements involve prisoner rights, and are dealt with more extensively in the section on criminal due process. However, they are worth noting here. In Meachum v. Fano,⁸⁴² the Court held that a state prisoner was not entitled to a fact-finding hearing when he was transferred to a different prison in which the conditions were substantially less favorable to him, because (1) the Due Process Clause liberty interest by itself was satisfied by the initial valid conviction, which had deprived him of liberty, and (2) no state law guaranteed him the right to remain in the prison to which he was initially assigned, subject to transfer for cause of some sort. As a prisoner could be transferred for any reason or for no reason under state law, the decision of prison officials was not dependent upon any state of facts, and no hearing was required.

In Vitek v. Jones,⁸⁴³ by contrast, a state statute permitted transfer of a prisoner to a state mental hospital for treatment, but the transfer could be effectuated only upon a finding, by a designated physician or psychologist, that the prisoner “suffers from a mental disease or defect” and “cannot be given treatment in that facility.” Because the transfer was conditioned upon a “cause,” the establishment of the facts necessary to show the cause had to be done through fair procedures. Interestingly, however, the Vitek Court also held that the prisoner had a “residuum of liberty” in being free from the different confinement and from the stigma of involuntary commitment for mental disease that the Due Process Clause protected. Thus, the Court has recognized, in this case and in the cases involving revocation of parole or probation,⁸⁴⁴ a liberty interest that is separate from a statutory entitlement and that can be taken away only through proper procedures.

But, with respect to the possibility of parole or commutation or otherwise more rapid release, no matter how much the expectancy matters to a prisoner, in the absence of some form of positive entitlement, the prisoner may be turned down without observance of procedures.⁸⁴⁵ Summarizing its prior holdings, the Court recently concluded that two requirements must be present before a liberty interest is created in the prison context: the statute or regulation must contain “substantive predicates” limiting the exercise of discretion, and there must be explicit “mandatory language” requiring a particular outcome if substantive predicates are found.⁸⁴⁶ In an even more recent case, the Court limited the application of this test to those circumstances where the restraint on freedom imposed by the state creates an “atypical and significant hardship.”⁸⁴⁷

Proceedings in Which Procedural Due Process Need Not Be Observed.—Although due notice and a reasonable opportunity to be heard are two fundamental protections found in almost all systems of law established by civilized countries,⁸⁴⁸ there are certain proceedings in which the enjoyment of these two conditions has not been deemed to be constitutionally necessary. For instance, persons adversely affected by a law cannot challenge its validity on the ground that the legislative body that enacted it gave no notice of proposed legislation, held no hearings at which the person could have presented his arguments, and gave no consideration to particular points of view. “Where a rule of conduct applies to more than a few people it is impracticable that everyone should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.”⁸⁴⁹

Similarly, when an administrative agency engages in a legislative function, as, for example, when it drafts regulations of general application affecting an unknown number of persons, it need not afford a hearing prior to promulgation.⁸⁵⁰ On the other hand, if a regulation, sometimes denominated an “order,” is of limited application, that is, it affects an identifiable class of persons, the question whether notice and hearing is required and, if so, whether it must precede such action, becomes a matter of greater urgency and must be determined by evaluating the various factors discussed below.⁸⁵¹

One such factor is whether agency action is subject to later judicial scrutiny.⁸⁵² In one of the initial decisions construing the Due Process Clause of the Fifth Amendment, the Court upheld the authority of the Secretary of the Treasury, acting pursuant to statute, to obtain money from a collector of customs alleged to be in arrears. The Treasury simply issued a distress warrant and seized the collector’s property, affording him no opportunity for a hearing, and requiring him to sue for recovery of his property. While acknowledging that history and settled practice required proceedings in which pleas, answers, and trials were requisite before property could be taken, the Court observed that the distress collection of debts due the crown had been the exception to the rule in England and was of long usage in the United States, and was thus sustainable.⁸⁵³

In more modern times, the Court upheld a procedure under which a state banking superintendent, after having taken over a closed bank and issuing notices to stockholders of their assessment, could issue execution for the amounts due, subject to the right of each stockholder to contest his liability for such an assessment by an affidavit of illegality. The fact that the execution was issued in the first instance by a governmental officer and not from a court, followed by personal notice and a right to take the case into court, was seen as unobjectionable.⁸⁵⁴

It is a violation of due process for a state to enforce a judgment against a party to a proceeding without having given him an opportunity to be heard sometime before final judgment is entered.⁸⁵⁵ With regard to the presentation of every available defense, however, the requirements of due process do not necessarily entail affording an opportunity to do so before entry of judgment. The person may be remitted to other actions initiated by him⁸⁵⁶ or an appeal may suffice. Accordingly, a surety company, objecting to the entry of a judgment against it on a supersedeas bond, without notice and an opportunity to be heard on the issue of liability, was not denied due process where the state practice provided the opportunity for such a hearing by an appeal from the judgment so entered. Nor could the company found its claim of denial of due process upon the fact that it lost this opportunity for a hearing by inadvertently pursuing the wrong procedure in the state courts.⁸⁵⁷ On the other hand, where a state appellate court reversed a trial court and entered a final judgment for the defendant, a plaintiff who had never had an opportunity to introduce evidence in rebuttal to certain testimony which the trial court deemed immaterial but which the appellate court considered material was held to have been deprived of his rights without due process of law.⁸⁵⁸

What Process Is Due.—The requirements of due process, as has been noted, depend upon the nature of the interest at stake, while the form of due process required is determined by the weight of that interest balanced against the opposing interests.⁸⁵⁹ The currently prevailing standard is that formulated in Mathews v. Eldridge,⁸⁶⁰ which concerned termination of Social Security benefits. “Identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.”

The termination of welfare benefits in Goldberg v. Kelly,⁸⁶¹ which could have resulted in a “devastating” loss of food and shelter, had required a predeprivation hearing. The termination of Social Security benefits at issue in Mathews would require less protection, however, because those benefits are not based on financial need and a terminated recipient would be able to apply for welfare if need be. Moreover, the determination of ineligibility for Social Security benefits more often turns upon routine and uncomplicated evaluations of data, reducing the likelihood of error, a likelihood found significant in Goldberg. Finally, the administrative burden and other societal costs involved in giving Social Security recipients a pretermination hearing would be high. Therefore, a post-termination hearing, with full retroactive restoration of benefits, if the claimant prevails, was found satisfactory.⁸⁶²

Application of the Mathews standard and other considerations brought some noteworthy changes to the process accorded debtors and installment buyers. Earlier cases, which had focused upon the interests of the holders of the property in not being unjustly deprived of the goods and funds in their possession, leaned toward requiring predeprivation hearings. Newer cases, however, look to the interests of creditors as well. “The reality is that both seller and buyer had current, real interests in the property, and the definition of property rights is a matter of state law. Resolution of the due process question must take account not only of the interests of the buyer of the property but those of the seller as well.”⁸⁶³

Thus, Sniadach v. Family Finance Corp.,⁸⁶⁴ which mandated predeprivation hearings before wages may be garnished, has apparently been limited to instances when wages, and perhaps certain other basic necessities, are in issue and the consequences of deprivation would be severe.⁸⁶⁵ Fuentes v. Shevin,⁸⁶⁶ which struck down a replevin statute that authorized the seizure of property (here household goods purchased on an installment contract) simply upon the filing of an ex parte application and the posting of bond, has been limited,⁸⁶⁷ so that an appropriately structured ex parte judicial determination before seizure is sufficient to satisfy due process.⁸⁶⁸ Thus, laws authorizing sequestration, garnishment, or other seizure of property of an alleged defaulting debtor need only require that (1) the creditor furnish adequate security to protect the debtor’s interest, (2) the creditor make a specific factual showing before a neutral officer or magistrate, not a clerk or other such functionary, of probable cause to believe that he is entitled to the relief requested, and (3) an opportunity be assured for an adversary hearing promptly after seizure to determine the merits of the controversy, with the burden of proof on the creditor.⁸⁶⁹

Similarly, applying the Mathews v. Eldridge standard in the context of government employment, the Court has held, albeit by a combination of divergent opinions, that the interest of the employee in retaining his job, the governmental interest in the expeditious removal of unsatisfactory employees, the avoidance of administrative burdens, and the risk of an erroneous termination combine to require the provision of some minimum pre-termination notice and opportunity to respond, followed by a full post-termination hearing, complete with all the procedures normally accorded and back pay if the employee is successful.⁸⁷⁰ Where the adverse action is less than termination of employment, the governmental interest is significant, and where reasonable grounds for such action have been established separately, then a prompt hearing held after the adverse action may be sufficient.⁸⁷¹ In other cases, hearings with even minimum procedures may be dispensed with when what is to be established is so pro forma or routine that the likelihood of error is very small.⁸⁷² In a case dealing with negligent state failure to observe a procedural deadline, the Court held that the claimant was entitled to a hearing with the agency to pass upon the merits of his claim prior to dismissal of his action.⁸⁷³

In Brock v. Roadway Express, Inc.,⁸⁷⁴ a Court plurality applied a similar analysis to governmental regulation of private employment, determining that an employer may be ordered by an agency to reinstate a “whistle-blower” employee without an opportunity for a full evidentiary hearing, but that the employer is entitled to be informed of the substance of the employee’s charges, and to have an opportunity for informal rebuttal. The principal difference with the Mathews v. Eldridge test was that here the Court acknowledged two conflicting private interests to weigh in the equation: that of the employer “in controlling the makeup of its workforce” and that of the employee in not being discharged for whistleblowing. Whether the case signals a shift away from evidentiary hearing requirements in the context of regulatory adjudication will depend on future developments.⁸⁷⁵

A delay in retrieving money paid to the government is unlikely to rise to the level of a violation of due process. In City of Los Angeles v. David,⁸⁷⁶ a citizen paid a $134. 50 impoundment fee to retrieve an automobile that had been towed by the city. When he subsequently sought to challenge the imposition of this impoundment fee, he was unable to obtain a hearing until 27 days after his car had been towed. The Court held that the delay was reasonable, as the private interest affected—the temporary loss of the use of the money—could be compensated by the addition of an interest payment to any refund of the fee. Further factors considered were that a 30-day delay was unlikely to create a risk of significant factual errors, and that shortening the delay significantly would be administratively burdensome for the city.

In another context, the Supreme Court applied the Mathews test to strike down a provision in Colorado’s Exoneration Act.⁸⁷⁷ That statute required individuals whose criminal convictions had been invalidated to prove their innocence by clear and convincing evidence in order to recoup any fines, penalties, court costs, or restitution paid to the state as a result of the conviction.⁸⁷⁸ The Court, noting that “[a]bsent conviction of crime, one is presumed innocent,”⁸⁷⁹ concluded that all three considerations under Mathews “weigh[ed] decisively against Colorado’s scheme.”⁸⁸⁰ Specifically, the Court reasoned that (1) those affected by the Colorado statute have an “obvious interest” in regaining their funds;⁸⁸¹ (2) the burden of proving one’s innocence by “clear and convincing” evidence unacceptably risked erroneous deprivation of those funds;⁸⁸² and (3) the state had “no countervailing interests” in withholding money to which it had “zero claim of right.”⁸⁸³ As a result, the Court held that the state could not impose “anything more than minimal procedures” for the return of funds that occurred as a result of a conviction that was subsequently invalidated.⁸⁸⁴

In another respect, the balancing standard of Mathews has resulted in states’ having wider flexibility in determining what process is required. For instance, in an alteration of previously existing law, no hearing is required if a state affords the claimant an adequate alternative remedy, such as a judicial action for damages or breach of contract.⁸⁸⁵ Thus, the Court, in passing on the infliction of corporal punishment in the public schools, held that the existence of common-law tort remedies for wrongful or excessive administration of punishment, plus the context in which the punishment was administered (i. e., the ability of the teacher to observe directly the infraction in question, the openness of the school environment, the visibility of the confrontation to other students and faculty, and the likelihood of parental reaction to unreasonableness in punishment), made reasonably assured the probability that a child would not be punished without cause or excessively.⁸⁸⁶ The Court did not, however, inquire about the availability of judicial remedies for such violations in the state in which the case arose.⁸⁸⁷

The Court has required greater protection from property deprivations resulting from operation of established state procedures than from those resulting from random and unauthorized acts of state employees,⁸⁸⁸ and presumably this distinction still holds. Thus, the Court has held that post-deprivation procedures would not satisfy due process if it is “the state system itself that destroys a complainant’s property interest.”⁸⁸⁹ Although the Court briefly entertained the theory that a negligent (i. e., non-willful) action by a state official was sufficient to invoke due process, and that a post-deprivation hearing regarding such loss was required,⁸⁹⁰ the Court subsequently overruled this holding, stating that “the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.”⁸⁹¹

In “rare and extraordinary situations,” where summary action is necessary to prevent imminent harm to the public, and the private interest infringed is reasonably deemed to be of less importance, government can take action with no notice and no opportunity to defend, subject to a later full hearing.⁸⁹² Examples are seizure of contaminated foods or drugs or other such commodities to protect the consumer,⁸⁹³ collection of governmental revenues,⁸⁹⁴ and the seizure of enemy property in wartime.⁸⁹⁵ Thus, citing national security interests, the Court upheld an order, issued without notice and an opportunity to be heard, excluding a short-order cook employed by a concessionaire from a Naval Gun Factory, but the basis of the fivetofour decision is unclear.⁸⁹⁶ On the one hand, the Court was ambivalent about a right-privilege distinction;⁸⁹⁷ on the other hand, it contrasted the limited interest of the cook—barred from the base, she was still free to work at a number of the concessionaire’s other premises—with the government’s interest in conducting a high-security program.⁸⁹⁸

Generally.—Jurisdiction may be defined as the power of a government to create legal interests, and the Court has long held that the Due Process Clause limits the abilities of states to exercise this power.⁸⁹⁹ In the famous case of Pennoyer v. Neff,⁹⁰⁰ the Court enunciated two principles of jurisdiction respecting the states in a federal system⁹⁰¹ : first, “every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory,” and second, “no State can exercise direct jurisdiction and authority over persons or property without its territory.”⁹⁰² Over a long period of time, however, the mobility of American society and the increasing complexity of commerce led to attenuation of the second principle of Pennoyer, and consequently the Court established the modern standard of obtaining jurisdiction based upon the nature and the quality of contacts that individuals and corporations have with a state.⁹⁰³ This “minimum contacts” test, consequently, permits state courts to obtain power over outofstate defendants.

In Personam Proceedings Against Individuals.—How jurisdiction is determined depends on the nature of the suit being brought. If a dispute is directed against a person, not property, the proceedings are considered in personam, and jurisdiction must be established over the defendant’s person in order to render an effective decree.⁹⁰⁴ Generally, presence within the state is sufficient to create personal jurisdiction over an individual, if process is served.⁹⁰⁵ In the case of a resident who is absent from the state, domicile alone is deemed to be sufficient to keep him within reach of the state courts for purposes of a personal judgment, and process can be obtained by means of appropriate, substituted service or by actual personal service on the resident outside the state.⁹⁰⁶ However, if the defendant, although technically domiciled there, has left the state with no intention to return, service by publication, as compared to a summons left at his last and usual place of abode where his family continued to reside, is inadequate, because it is not reasonably calculated to give actual notice of the proceedings and opportunity to be heard.⁹⁰⁷

With respect to a nonresident, it is clearly established that no person can be deprived of property rights by a decree in a case in which he neither appeared nor was served or effectively made a party.⁹⁰⁸ The early cases held that the process of a court of one state could not run into another and summon a resident of that state to respond to proceedings against him, when neither his person nor his property was within the jurisdiction of the court rendering the judgment.⁹⁰⁹ This rule, however, has been attenuated in a series of steps.

Consent has always been sufficient to create jurisdiction, even in the absence of any other connection between the litigation and the forum. For example, the appearance of the defendant for any purpose other than to challenge the jurisdiction of the court was deemed a voluntary submission to the court’s power,⁹¹⁰ and even a special appearance to deny jurisdiction might be treated as consensual submission to the court.⁹¹¹ The concept of “constructive consent” was then seized upon as a basis for obtaining jurisdiction. For instance, with the advent of the automobile, States were permitted to engage in the fiction that the use of their highways was conditioned upon the consent of drivers to be sued in state courts for accidents or other transactions arising out of such use. Thus, a state could designate a state official as a proper person to receive service of process in such litigation, and establishing jurisdiction required only that the official receiving notice communicate it to the person sued.⁹¹²

Although the Court approved of the legal fiction that such jurisdiction arose out of consent, the basis for jurisdiction was really the state’s power to regulate acts done in the state that were dangerous to life or property.⁹¹³ Because the state did not really have the ability to prevent nonresidents from doing business in their state,⁹¹⁴ this extension was necessary in order to permit states to assume jurisdiction over individuals “doing business” within the state. Thus, the Court soon recognized that “doing business” within a state was itself a sufficient basis for jurisdiction over a nonresident individual, at least where the business done was exceptional enough to create a strong state interest in regulation, and service could be effectuated within the state on an agent appointed to carry out the business.⁹¹⁵

The culmination of this trend, established in International Shoe Co. v. Washington,⁹¹⁶ was the requirement that there be “minimum contacts” with the state in question in order to establish jurisdiction. The outer limit of this test is illustrated by Kulko v. Superior Court,⁹¹⁷ in which the Court held that California could not obtain personal jurisdiction over a New York resident whose sole relevant contact with the state was to send his daughter to live with her mother in California.⁹¹⁸ The argument was made that the father had “caused an effect” in the state by availing himself of the benefits and protections of California’s laws and by deriving an economic benefit in the lessened expense of maintaining the daughter in New York. The Court explained that, “[l]ike any standard that requires a determination of ‘reasonableness,’ the ‘minimum contacts’ test . . . is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite ‘affiliating circumstances’ are present.”⁹¹⁹ Although the Court noted that the “effects” test had been accepted as a test of contacts when wrongful activity outside a state causes injury within the state or when commercial activity affects state residents, the Court found that these factors were not present in this case, and any economic benefit to Kulko was derived in New York and not in California.⁹²⁰ As with many such cases, the decision was narrowly limited to its facts and does little to clarify the standards applicable to state jurisdiction over nonresidents.

Walden v. Fiore further articulated what “minimum contacts” are necessary to create jurisdiction as a result of the relationship between the defendant, the forum, and the litigation.⁹²¹ In Walden, the plaintiffs, who were residents of Nevada, sued a law enforcement officer in federal court in Nevada as a result of an incident that occurred in an airport in Atlanta as the plaintiffs were attempting to board a connecting flight from Puerto Rico to Las Vegas. The Court held that the court in Nevada lacked jurisdiction because of insufficient contacts between the officer and the state relative to the alleged harm, as no part of the officer’s conduct occurred in Nevada. In so holding, the Court emphasized that the minimum contacts inquiry should not focus on the resulting injury to the plaintiffs; instead, the proper question is whether the defendant’s conduct connects him to the forum in a meaningful way.⁹²²

Suing Out-of-State (Foreign) Corporations.—A curious aspect of American law is that a corporation has no legal existence outside the boundaries of the state chartering it.⁹²³ Thus, the basis for state court jurisdiction over an outofstate (“foreign”) corporation has been even more uncertain than that with respect to individuals. Before International Shoe Co. v. Washington,⁹²⁴ it was asserted that, because a corporation could not carry on business in a state without the state’s permission, the state could condition its permission upon the corporation’s consent to submit to the jurisdiction of the state’s courts, either by appointment of someone to receive process or in the absence of such designation, by accepting service upon corporate agents authorized to operate within the state.⁹²⁵ Further, by doing business in a state, the corporation was deemed to be present there and thus subject to service of process and suit.⁹²⁶ This theoretical corporate presence conflicted with the idea of corporations having no existence outside their state of incorporation, but it was nonetheless accepted that a corporation “doing business” in a state to a sufficient degree was “present” for service of process upon its agents in the state who carried out that business.⁹²⁷

Presence alone, however, does not expose a corporation to all manner of suits through the exercise of general jurisdiction. Only corporations, whose “continuous and systematic” affiliations with a forum make them “essentially at home” there, are broadly amenable to suit.⁹²⁸ While the paradigmatic examples of where a corporate defendant is “at home” are the corporation’s place of incorporation and principal place of business,⁹²⁹ the Court has recognized that in “exceptional cases” general jurisdiction can be exercised by a court located where the corporate defendant’s operations are “so substantial” as to “render the corporation at home in that state.”⁹³⁰ Nonetheless, insubstantial instate business, in and of itself, does not suffice to permit an assertion of jurisdiction over claims that are unrelated to any activity occurring in a state.⁹³¹ Without the protection of such a rule, foreign corporations would be exposed to the manifest hardship and inconvenience of defending, in any state in which they happened to be carrying on business, suits for torts wherever committed and claims on contracts wherever made.⁹³² And if the corporation stopped doing business in the forum state before suit against it was commenced, it might well escape jurisdiction altogether.⁹³³ In early cases, the issue of the degree of activity and, in particular, the degree of solicitation that was necessary to constitute doing business by a foreign corporation, was much disputed and led to very particularistic holdings.⁹³⁴ In the absence of enough activity to constitute doing business, the mere presence of an agent, officer, or stockholder, who could be served, within a state’s territorial limits was not sufficient to enable the state to exercise jurisdiction over the foreign corporation.⁹³⁵

The touchstone in jurisdiction cases was recast by International Shoe Co. v. Washington and its “minimum contacts” analysis.⁹³⁶ International Shoe, an outofstate corporation, had not been issued a license to do business in the State of Washington, but it systematically and continuously employed a sales force of Washington residents to solicit therein and thus was held amenable to suit in Washington for unpaid unemployment compensation contributions for such salesmen. The Court deemed a notice of assessment served personally upon one of the local sales solicitors, and a copy of the assessment sent by registered mail to the corporation’s principal office in Missouri, sufficient to apprise the corporation of the proceeding.

To reach this conclusion, the Court not only overturned prior holdings that mere solicitation of business does not constitute a sufficient contact to subject a foreign corporation to a state’s jurisdiction,⁹³⁷ but also rejected the “presence” test as begging the question to be decided. “The terms ‘present’ or ‘presence,’” according to Chief Justice Stone, “are used merely to symbolize those activities of the corporation’s agent within the State which courts will deem to be sufficient to satisfy the demands of due process. . . . Those demands may be met by such contacts of the corporation with the State of the forum as make it reasonable, in the context of our federal system . . . , to require the corporation to defend the particular suit which is brought there; [and] . . . that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice’. . . . An ‘estimate of the inconveniences’ which would result to the corporation from a trial away from its ‘home’ or principal place of business is relevant in this connection.”⁹³⁸ As to the scope of application to be accorded this “fair play and substantial justice” doctrine, the Court concluded that “so far as . . . [corporate] obligations arise out of or are connected with activities within the State, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue.”⁹³⁹

Extending this logic, a majority of the Court ruled that an outofstate association selling mail order insurance had developed sufficient contacts and ties with Virginia residents so that the state could institute enforcement proceedings under its Blue Sky Law by forwarding notice to the company by registered mail, notwithstanding that the Association solicited business in Virginia solely through recommendations of existing members and was represented therein by no agents whatsoever.⁹⁴⁰ The Due Process Clause was declared not to “forbid a State to protect its citizens from such injustice” of having to file suits on their claims at a far distant home office of such company, especially in view of the fact that such suits could be more conveniently tried in Virginia where claims of loss could be investigated.⁹⁴¹

Likewise, the Court reviewed a California statute which subjected foreign mail order insurance companies engaged in contracts with California residents to suit in California courts, and which had authorized the petitioner to serve a Texas insurer by registered mail only.⁹⁴² The contract between the company and the insured specified that Austin, Texas, was the place of “making” and the place where liability should be deemed to arise. The company mailed premium notices to the insured in California, and he mailed his premium payments to the company in Texas. Acknowledging that the connection of the company with California was tenuous—it had no office or agents in the state and no evidence had been presented that it had solicited anyone other than the insured for business— the Court sustained jurisdiction on the basis that the suit was on a contract which had a substantial connection with California. “The contract was delivered in California, the premiums were mailed there and the insured was a resident of that State when he died. It cannot be denied that California has a manifest interest in providing effective means of redress for its residents when their insurers refuse to pay claims.”⁹⁴³

In making this decision, the Court noted that “[l]ooking back over the long history of litigation a trend is clearly discernible toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents.”⁹⁴⁴ However, in Hanson v. Denckla, decided during the same Term, the Court found in personam jurisdiction lacking for the first time since International Shoe Co. v. Washington, pronouncing firm due process limitations. In Hanson,⁹⁴⁵ the issue was whether a Florida court considering a contested will obtained jurisdiction over corporate trustees of disputed property through use of ordinary mail and publication. The will had been entered into and probated in Florida, the claimants were resident in Florida and had been personally served, but the trustees, who were indispensable parties, were resident in Delaware. Noting the trend in enlarging the ability of the states to obtain in personam jurisdiction over absent defendants, the Court denied the exercise of nationwide in personam jurisdiction by states, saying that “it would be a mistake to assume that th[e] trend [to expand the reach of state courts] heralds the eventual demise of all restrictions on the personal jurisdiction of state courts.”⁹⁴⁶

The Court recognized in Hanson that Florida law was the most appropriate law to be applied in determining the validity of the will and that the corporate defendants might be little inconvenienced by having to appear in Florida courts, but it denied that either circumstance satisfied the Due Process Clause. The Court noted that due process restrictions do more than guarantee immunity from inconvenient or distant litigation, in that “[these restrictions] are consequences of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has the ‘minimum contacts’ with that State that are a prerequisite to its exercise of power over him.” The only contacts the corporate defendants had in Florida consisted of a relationship with the individual defendants. “The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails himself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. . . . The settlor’s execution in Florida of her power of appointment cannot remedy the absence of such an act in this case.”⁹⁴⁷

The Court continued to apply International Shoe principles in diverse situations. Thus, circulation of a magazine in a state was an adequate basis for that state to exercise jurisdiction over an outofstate corporate magazine publisher in a libel action. The fact that the plaintiff did not have “minimum contacts” with the forum state was not dispositive since the relevant inquiry is the relations among the defendant, the forum, and the litigation.⁹⁴⁸ Or, damage done to the plaintiff’s reputation in his home state caused by circulation of a defamatory magazine article there may justify assertion of jurisdiction over the out-of-state authors of such article, despite the lack of minimum contact between the authors (as opposed to the publishers) and the state.⁹⁴⁹ Further, though there is no per se rule that a contract with an out-of-state party automatically establishes jurisdiction to enforce the contract in the other party’s forum, a franchisee who has entered into a franchise contract with an out-of-state corporation may be subject to suit in the corporation’s home state where the overall circumstances (contract terms themselves, course of dealings) demonstrate a deliberate reaching out to establish contacts with the franchisor in the franchisor’s home state.⁹⁵⁰

The Court has continued to wrestle over when a state may adjudicate a products liability claim for an injury occurring within it, at times finding the defendant’s contacts with the place of injury to be too attenuated to support its having to mount a defense there. In World-Wide Volkswagen Corp. v. Woodson,⁹⁵¹ the Court applied its “minimum contacts” test to preclude the assertion of jurisdiction over two foreign corporations that did no business in the forum state. Plaintiffs had sustained personal injuries in Oklahoma in an accident involving an alleged defect in their automobile. The car had been purchased the previous year in New York, the plaintiffs were New York residents at time of purchase, and the accident had occurred while they were driving through Oklahoma on their way to a new residence in Arizona. Defendants were the automobile retailer and its wholesaler, both New York corporations that did no business in Oklahoma. The Court found no circumstances justifying assertion by Oklahoma courts of jurisdiction over defendants. The Court found that the defendants (1) carried on no activity in Oklahoma, (2) closed no sales and performed no services there, (3) availed themselves of none of the benefits of the state’s laws, (4) solicited no business there either through salespersons or through advertising reasonably calculated to reach the state, and (5) sold no cars to Oklahoma residents or indirectly served or sought to serve the Oklahoma market. Although it might have been foreseeable that the automobile would travel to Oklahoma, foreseeability was held to be relevant only insofar as “the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.”⁹⁵² The Court in World-Wide Volkswagen Corp. contrasted the facts of the case with the instance of a corporation “deliver[ing] its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.”⁹⁵³

In Asahi Metal Industry Co. v. Superior Court,⁹⁵⁴ the Court addressed more closely how jurisdiction flows with products downstream. The Court identified two standards for limiting jurisdiction even as products proceed to foreseeable destinations. The more general standard harked back to the fair play and substantial justice doctrine of International Shoe and requires balancing the respective interests of the parties, the prospective forum state, and alternative fora. All the Justices agreed with the legitimacy of this test in assessing due process limits on jurisdiction.⁹⁵⁵ However, four Justices would also apply a more exacting test: A defendant who placed a product in the stream of commerce knowing that the product might eventually be sold in a state will be subject to jurisdiction there only if the defendant also had purposefully acted to avail itself of the state’s market. According to Justice O’Connor, who wrote the opinion espousing this test, a defendant subjected itself to jurisdiction by targeting or serving customers in a state through, for example, direct advertising, marketing through a local sales agent, or establishing channels for providing regular advice to local customers. Action, not expectation, is key.⁹⁵⁶ In Asahi, the state was found to lack jurisdiction under both tests cited.

Doctrinal differences on the due process touchstones in streamofcommerce cases became more critical to the outcome in J. McIntyre Machinery, Ltd. v. Nicastro.⁹⁵⁷ Justice Kennedy, writing for a four-Justice plurality, asserted that it is a defendant’s purposeful availment of the forum state that makes jurisdiction consistent with traditional notions of fair play and substantial justice. The question is not so much the fairness of a state reaching out to bring a foreign defendant before its courts as it is a matter of a foreign defendant having acted within a state so as to bring itself within the state’s limited authority. Thus, a British machinery manufacturer who targeted the U. S. market generally through engaging a nationwide distributor and attending trade shows, among other means, could not be sued in New Jersey for an industrial accident that occurred in the state. Even though at least one of its machines (and perhaps as many as four) were sold to New Jersey concerns, the defendant had not purposefully targeted the New Jersey market through, for example, establishing an office, advertising, or sending employees.⁹⁵⁸ Concurring with the plurality, Justice Breyer emphasized the outcome lay in stream-of-commerce precedents that held isolated or infrequent sales could not support jurisdiction. At the same time, Justice Breyer cautioned against adoption of the plurality’s strict active availment of the forum rule, especially because the Court had yet to consider due process requirements in the context of evolving business models, modern e-commerce in particular.⁹⁵⁹

Nonetheless, in order for a state court to exercise specific jurisdiction, the suit must arise out of or relate to the defendant’s contacts with the forum,⁹⁶⁰ and when there is “no such connection, specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the State.”⁹⁶¹ As a result, the Court, in Bristol-Myers Squibb Co. v. Superior Court, concluded that the California Supreme Court erred in employing a “relaxed” approach to personal jurisdiction by holding that a state court could exercise specific jurisdiction over a corporate defendant who was being sued by non-state residents for out-of-state activities solely because the defendant had “extensive forum contacts” unrelated to the claims in question.⁹⁶² Concluding that California’s approach was a “loose and spurious form of general jurisdiction,”⁹⁶³ the Court held that without a “connection between the forum and the specific claims at issue,” California courts lacked jurisdiction over the corporate defendant.⁹⁶⁴

Actions In Rem: Proceeding Against Property.—In an in rem action, which is an action brought directly against a property interest, a state can validly proceed to settle controversies with regard to rights or claims against tangible or intangible property within its borders, notwithstanding that jurisdiction over the defendant was never established.⁹⁶⁵ Unlike jurisdiction in personam, a judgment entered by a court with in rem jurisdiction does not bind the defendant personally but determines the title to or status of the only property in question.⁹⁶⁶ Proceedings brought to register title to land,⁹⁶⁷ to condemn⁹⁶⁸ or confiscate⁹⁶⁹ real or personal property, or to administer a decedent’s estate⁹⁷⁰ are typical in rem actions. Due process is satisfied by seizure of the property (the “res”) and notice to all who have or may have interests therein.⁹⁷¹ Under prior case law, a court could acquire in rem jurisdiction over nonresidents by mere constructive service of process,⁹⁷² under the theory that property was always in possession of its owners and that seizure would afford them notice, because they would keep themselves apprized of the state of their property. It was held, however, that this fiction did not satisfy the requirements of due process, and, whatever the nature of the proceeding, that notice must be given in a manner that actually notifies the person being sought or that has a reasonable certainty of resulting in such notice.⁹⁷³

Although the Court has now held “that all assertions of state-court jurisdiction must be evaluated according to the [‘minimum contacts’] standards set forth in International Shoe Co. v. Washington,”⁹⁷⁴ it does not appear that this will appreciably change the result for in rem jurisdiction over property. “[T]he presence of property in a State may bear on the existence of jurisdiction by providing contacts among the forum State, the defendant, and the litigation. For example, when claims to the property itself are the source of the underlying controversy between the plaintiff and the defendant, it would be unusual for the State where the property is located not to have jurisdiction. In such cases, the defendant’s claim to property located in the State would normally indicate that he expected to benefit from the State’s protection of his interest. The State’s strong interests in assuring the marketability of property within its borders and in providing a procedure for peaceful resolution of disputes about the possession of that property would also support jurisdiction, as would the likelihood that important records and witnesses will be found in the State.”⁹⁷⁵ Thus, for “true” in rem actions, the old results are likely to still prevail.

Quasi in Rem: Attachment Proceedings.—If a defendant is neither domiciled nor present in a state, he cannot be served personally, and any judgment in money obtained against him would be unenforceable. This does not, however, prevent attachment of a defendant’s property within the state. The practice of allowing a state to attach a non-resident’s real and personal property situated within its borders to satisfy a debt or other claim by one of its citizens goes back to colonial times. Attachment is considered a form of in rem proceeding sometimes called “quasi in rem,” and under Pennoyer v. Neff⁹⁷⁶ an attachment could be implemented by obtaining a writ against the local property of the defendant and giving notice by publication.⁹⁷⁷ The judgement was then satisfied from the property attached, and if the attached property was insufficient to satisfy the claim, the plaintiff could go no further.⁹⁷⁸

This form of proceeding raised many questions. Of course, there were always instances in which it was fair to subject a person to suit on his property located in the forum state, such as where the property was related to the matter sued over.⁹⁷⁹ In others, the question was more disputed, as in the famous New York Court of Appeals case of Seider v. Roth,⁹⁸⁰ in which the property subject to attachment was the contractual obligation of the defendant’s insurance company to defend and pay the judgment. But, in Harris v. Balk,⁹⁸¹ the facts of the case and the establishment of jurisdiction through quasi in rem proceedings raised the issue of fairness and territoriality. The claimant was a Maryland resident who was owed a debt by Balk, a North Carolina resident. The Marylander ascertained, apparently adventitiously, that Harris, a North Carolina resident who owed Balk an amount of money, was passing through Maryland, and the Marylander attached this debt. Balk had no notice of the action and a default judgment was entered, after which Harris paid over the judgment to the Marylander. When Balk later sued Harris in North Carolina to recover on his debt, Harris argued that he had been relieved of any further obligation by satisfying the judgment in Maryland, and the Supreme Court sustained his defense, ruling that jurisdiction had been properly obtained and the Maryland judgment was thus valid.⁹⁸²

subject⁹⁸³ in which the Court rejected the Delaware state court’s jurisdiction, holding that the “minimum contacts” test of International Shoe applied to all in rem and quasi in rem actions. The case involved a Delaware sequestration statute under which plaintiffs were authorized to bring actions against nonresident defendants by attaching their “property” within Delaware, the property here consisting of shares of corporate stock and options to stock in the defendant corporation. The stock was considered to be in Delaware because that was the state of incorporation, but none of the certificates representing the seized stocks were physically present in Delaware. The reason for applying the same test as is applied in in personam cases, the Court said, “is simple and straightforward. It is premised on recognition that ‘[t]he phrase ‘judicial jurisdiction’ over a thing,’ is a customary elliptical way of referring to jurisdiction over the interests of persons in a thing.”⁹⁸⁴ Thus, “[t]he recognition leads to the conclusion that in order to justify an exercise of jurisdiction in rem, the basis for jurisdiction must be sufficient to justify exercising ‘jurisdiction over the interests of persons in a thing.’”⁹⁸⁵

A further tightening of jurisdictional standards occurred in Rush v. Savchuk.⁹⁸⁶ The plaintiff was injured in a one-car accident in Indiana while a passenger in a car driven by defendant. Plaintiff later moved to Minnesota and sued defendant, still resident in Indiana, in state court in Minnesota. There were no contacts between the defendant and Minnesota, but defendant’s insurance company did business there and plaintiff garnished the insurance contract, signed in Indiana, under which the company was obligated to defend defendant in litigation and indemnify him to the extent of the policy limits. The Court refused to permit jurisdiction to be grounded on the contract; the contacts justifying jurisdiction must be those of the defendant engaging in purposeful activity related to the forum.⁹⁸⁷ Rush thus resulted in the demise of the controversial Seider v. Roth doctrine, which lower courts had struggled to save after Shaffer v. Heitner.⁹⁸⁸

Actions in Rem: Estates, Trusts, Corporations.—Generally, probate will occur where the decedent was domiciled, and, as a probate judgment is considered in rem, a determination as to assets in that state will be determinative as to all interested persons.⁹⁸⁹ Insofar as the probate affects real or personal property beyond the state’s boundaries, however, the judgment is in personam and can bind only parties thereto or their privies.⁹⁹⁰ Thus, the Full Faith and Credit Clause would not prevent an out-of-state court in the state where the property is located from reconsidering the first court’s finding of domicile, which could affect the ultimate disposition of the property.⁹⁹¹

The difficulty of characterizing the existence of the res in a particular jurisdiction is illustrated by the in rem aspects of Hanson v. Denckla.⁹⁹² As discussed earlier,⁹⁹³ the decedent created a trust with a Delaware corporation as trustee,⁹⁹⁴ and the Florida courts had attempted to assert both in personam and in rem jurisdiction over the Delaware corporation. Asserting the old theory that a court’s in rem jurisdiction “is limited by the extent of its power and by the coordinate authority of sister States,”⁹⁹⁵ i. e. , whether the court has jurisdiction over the thing, the Court thought it clear that the trust assets that were the subject of the suit were located in Delaware and thus the Florida courts had no in rem jurisdiction. The Court did not expressly consider whether the International Shoe test should apply to such in rem jurisdiction, as it has now held it generally must, but it did briefly consider whether Florida’s interests arising from its authority to probate and construe the domiciliary’s will, under which the foreign assets might pass, were a sufficient basis of in rem jurisdiction and decided they were not.⁹⁹⁶ The effect of International Shoe in this area is still to be discerned.

The reasoning of the Pennoyer⁹⁹⁷ rule, that seizure of property and publication was sufficient to give notice to nonresidents or absent defendants, has also been applied in proceedings for the forfeiture of abandoned property. If all known claimants were personally served and all claimants who were unknown or nonresident were given constructive notice by publication, judgments in these proceedings were held binding on all.⁹⁹⁸ But, in Mullane v. Central Hanover Bank & Trust Co.,⁹⁹⁹ the Court, while declining to characterize the proceeding as in rem or in personam, held that a bank managing a common trust fund in favor of nonresident as well as resident beneficiaries could not obtain a judicial settlement of accounts if the only notice was publication in a local paper. Although such notice by publication was sufficient as to beneficiaries whose interests or addresses were unknown to the bank, the Court held that it was feasible to make serious efforts to notify residents and nonresidents whose whereabouts were known, such as by mailing notice to the addresses on record with the bank.¹⁰⁰⁰

Notice: Service of Process.—Before a state may legitimately exercise control over persons and property, the state’s jurisdiction must be perfected by an appropriate service of process that is effective to notify all parties of proceedings that may affect their rights.¹⁰⁰¹ Personal service guarantees actual notice of the pendency of a legal action, and has traditionally been deemed necessary in actions styled in personam.¹⁰⁰² But “certain less rigorous notice procedures have enjoyed substantial acceptance throughout our legal history; in light of this history and the practical obstacles to providing personal service in every instance,” the Court in some situations has allowed the use of procedures that “do not carry with them the same certainty of actual notice that inheres in personal service.”¹⁰⁰³ But, whether the action be in rem or in personam, there is a constitutional minimum; due process requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”¹⁰⁰⁴

The use of mail to convey notice, for instance, has become quite established,¹⁰⁰⁵ especially for assertion of in personam jurisdiction extraterritorially upon individuals and corporations having “minimum contacts” with a forum state, where various “long-arm” statutes authorize notice by mail.¹⁰⁰⁶ Or, in a class action, due process is satisfied by mail notification of out-of-state class members, giving such members the opportunity to “opt out” but with no requirement that inclusion in the class be contingent upon affirmative response.¹⁰⁰⁷ Other service devices and substitutions have been pursued and show some promise of further loosening of the concept of territoriality even while complying with minimum due process standards of notice.¹⁰⁰⁸

Generally.—As long as a party has been given sufficient notice and an opportunity to defend his interest, the Due Process Clause of the Fourteenth Amendment does not generally mandate the particular forms of procedure to be used in state courts.¹⁰⁰⁹ The states may regulate the manner in which rights may be enforced and wrongs remedied,¹⁰¹⁰ and may create courts and endow them with such jurisdiction as, in the judgment of their legislatures, seems appropriate.¹⁰¹¹ Whether legislative action in such matters is deemed to be wise or proves efficient, whether it works a particular hardship on a particular litigant, or perpetuates or supplants ancient forms of procedure, are issues that ordinarily do not implicate the Fourteenth Amendment. The function of the Fourteenth Amendment is negative rather than affirmative¹⁰¹² and in no way obligates the states to adopt specific measures of reform.¹⁰¹³

Commencement of Actions.—A state may impose certain conditions on the right to institute litigation. Access to the courts has been denied to persons instituting stockholders’ derivative actions unless reasonable security for the costs and fees incurred by the corporation is first tendered.¹⁰¹⁴ But, foreclosure of all access to the courts, through financial barriers and perhaps through other means as well, is subject to federal constitutional scrutiny and must be justified by reference to a state interest of suitable importance. Thus, where a state has monopolized the avenues of settlement of disputes between persons by prescribing judicial resolution, and where the dispute involves a fundamental interest, such as marriage and its dissolution, the state may not deny access to those persons unable to pay its fees.¹⁰¹⁵

Older cases, which have not been questioned by more recent ones, held that a state, as the price of opening its tribunals to a nonresident plaintiff, may exact the condition that the nonresident stand ready to answer all cross actions filed and accept any in personam judgments obtained by a resident defendant through service of process or appropriate pleading upon the plaintiff’s attorney of record.¹⁰¹⁶ For similar reasons, a requirement of the performance of a chemical analysis as a condition precedent to a suit to recover for damages resulting to crops from allegedly deficient fertilizers, while allowing other evidence, was not deemed arbitrary or unreasonable.¹⁰¹⁷

Amendment of pleadings is largely within the discretion of the trial court, and unless a gross abuse of discretion is shown, there is no ground for reversal. Accordingly, where the defense sought to be interposed is without merit, a claim that due process would be denied by rendition of a foreclosure decree without leave to file a supplementary answer is utterly without foundation.¹⁰¹⁸

Defenses.—Just as a state may condition the right to institute litigation, so may it establish terms for the interposition of certain defenses. It may validly provide that one sued in a possessory action cannot bring an action to try title until after judgment is rendered and after he has paid that judgment.¹⁰¹⁹ A state may limit the defense in an action to evict tenants for nonpayment of rent to the issue of payment and leave the tenants to other remedial actions at law on a claim that the landlord had failed to maintain the premises.¹⁰²⁰ A state may also provide that the doctrines of contributory negligence, assumption of risk, and fellow servant do not bar recovery in certain employment-related accidents. No person has a vested right in such defenses.¹⁰²¹ Similarly, a nonresident defendant in a suit begun by foreign attachment, even though he has no resources or credit other than the property attached, cannot challenge the validity of a statute which requires him to give bail or security for the discharge of the seized property before permitting him an opportunity to appear and defend.¹⁰²²

Costs, Damages, and Penalties.—What costs are allowed by law is for the court to determine; an erroneous judgment of what the law allows does not deprive a party of his property without due process of law.¹⁰²³ Nor does a statute providing for the recovery of reasonable attorney’s fees in actions on small claims subject unsuccessful defendants to any unconstitutional deprivation.¹⁰²⁴ Congress may, however, severely restrict attorney’s fees in an effort to keep an administrative claims proceeding informal.¹⁰²⁵

Equally consistent with the requirements of due process is a statutory procedure whereby a prosecutor of a case is adjudged liable for costs, and committed to jail in default of payment thereof, whenever the court or jury, after according him an opportunity to present evidence of good faith, finds that he instituted the prosecution without probable cause and from malicious motives.¹⁰²⁶ Also, as a reasonable incentive for prompt settlement without suit of just demands of a class receiving special legislative treatment, such as common carriers and insurance companies together with their patrons, a state may permit harassed litigants to recover penalties in the form of attorney’s fees or damages.¹⁰²⁷

By virtue of its plenary power to prescribe the character of the sentence which shall be awarded against those found guilty of crime, a state may provide that a public officer embezzling public money shall, notwithstanding that he has made restitution, suffer not only imprisonment but also pay a fine equal to double the amount embezzled, which shall operate as a judgment for the use of persons whose money was embezzled. Whatever this fine is called, whether a penalty, or punishment, or civil judgment, it comes to the convict as the result of his crime.¹⁰²⁸ On the other hand, when appellant, by its refusal to surrender certain assets, was adjudged in contempt for frustrating enforcement of a judgment obtained against it, dismissal of its appeal from the first judgment was not a penalty imposed for the contempt, but merely a reasonable method for sustaining the effectiveness of the state’s judicial process.¹⁰²⁹

To deter careless destruction of human life, a state may allow punitive damages to be assessed in actions against employers for deaths caused by the negligence of their employees,¹⁰³⁰ and may also allow punitive damages for fraud perpetrated by employees.¹⁰³¹ Also constitutional is the traditional common law approach for measuring punitive damages, granting the jury wide but not unlimited discretion to consider the gravity of the offense and the need to deter similar offenses.¹⁰³² The Court has indicated, however, that, although the Excessive Fines Clause of the Eighth Amendment “does not apply to awards of punitive damages in cases between private parties,”¹⁰³³ a “grossly excessive” award of punitive damages violates substantive due process, as the Due Process Clause limits the amount of punitive damages to what is “reasonably necessary to vindicate the State’s legitimate interests in punishment and deterrence.”¹⁰³⁴ These limits may be discerned by a court by examining the degree of reprehensibility of the act, the ratio between the punitive award and plaintiff’s actual or potential harm, and the legislative sanctions provided for comparable misconduct.¹⁰³⁵ In addition, the “Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties . . . .”¹⁰³⁶

Statutes of Limitation.—A statute of limitations does not deprive one of property without due process of law, unless, in its application to an existing right of action, it unreasonably limits the opportunity to enforce the right by suit. By the same token, a state may shorten an existing period of limitation, provided a reasonable time is allowed for bringing an action after the passage of the statute and before the bar takes effect. What is a reasonable period, however, is dependent on the nature of the right and particular circumstances.¹⁰³⁷

Thus, where a receiver for property is appointed 13 years after the disappearance of the owner and notice is made by publication, it is not a violation of due process to bar actions relative to that property after an interval of only one year after such appointment.¹⁰³⁸ When a state, by law, suddenly prohibits all actions to contest tax deeds which have been of record for two years unless they are brought within six months after its passage, no unconstitutional deprivation is effected.¹⁰³⁹ No less valid is a statute which provides that when a person has been in possession of wild lands under a recorded deed continuously for 20 years and had paid taxes thereon during the same, and the former owner in that interval pays nothing, no action to recover such land shall be entertained unless commenced within 20 years, or before the expiration of five years following enactment of said provision.¹⁰⁴⁰ Similarly, an amendment to a workmen’s compensation act, limiting to three years the time within which a case may be reopened for readjustment of compensation on account of aggravation of a disability, does not deny due process to one who sustained his injury at a time when the statute contained no limitation. A limitation is deemed to affect the remedy only, and the period of its operation in this instance was viewed as neither arbitrary nor oppressive.¹⁰⁴¹

Moreover, a state may extend as well as shorten the time in which suits may be brought in its courts and may even entirely remove a statutory bar to the commencement of litigation. Thus, a repeal or extension of a statute of limitations affects no unconstitutional deprivation of property of a debtor-defendant in whose favor such statute had already become a defense. “A right to defeat a just debt by the statute of limitation . . . [is not] a vested right,” such as is protected by the Constitution. Accordingly no offense against the Fourteenth Amendment is committed by revival, through an extension or repeal, of an action on an implied obligation to pay a child for the use of her property,¹⁰⁴² or a suit to recover the purchase price of securities sold in violation of a Blue Sky Law,¹⁰⁴³ or a right of an employee to seek, on account of the aggravation of a former injury, an additional award out of a state-administered fund.¹⁰⁴⁴

However, for suits to recover real and personal property, when the right of action has been barred by a statute of limitations and title as well as real ownership have become vested in the defendant, any later act removing or repealing the bar would be void as attempting an arbitrary transfer of title.¹⁰⁴⁵ Also unconstitutional is the application of a statute of limitation to extend a period that parties to a contract have agreed should limit their right to remedies under the contract. “When the parties to a contract have expressly agreed upon a time limit on their obligation, a statute which invalidates . . . [said] agreement and directs enforcement of the contract after . . . [the agreed] time has expired” unconstitutionally imposes a burden in excess of that contracted.¹⁰⁴⁶

Burden of Proof and Presumptions.—It is clearly within the domain of the legislative branch of government to establish presumptions and rules respecting burden of proof in litigation.¹⁰⁴⁷ Nonetheless, the Due Process Clause does prevent the deprivation of liberty or property upon application of a standard of proof too lax to make reasonable assurance of accurate factfinding. Thus, “[t]he function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’”¹⁰⁴⁸

Applying the formula it has worked out for determining what process is due in a particular situation,¹⁰⁴⁹ the Court has held that a standard at least as stringent as clear and convincing evidence is required in a civil proceeding to commit an individual involuntarily to a state mental hospital for an indefinite period.¹⁰⁵⁰ Similarly, because the interest of parents in retaining custody of their children is fundamental, the state may not terminate parental rights through reliance on a standard of preponderance of the evidence—the proof necessary to award money damages in an ordinary civil action— but must prove that the parents are unfit by clear and convincing evidence.¹⁰⁵¹ Further, unfitness of a parent may not simply be presumed because of some purported assumption about general characteristics, but must be established.¹⁰⁵²

As long as a presumption is not unreasonable and is not conclusive, it does not violate the Due Process Clause. Legislative fiat may not take the place of fact in the determination of issues involving life, liberty, or property, however, and a statute creating a presumption which is entirely arbitrary and which operates to deny a fair opportunity to repel it or to present facts pertinent to one’s defense is void.¹⁰⁵³ On the other hand, if there is a rational connection between what is proved and what is inferred, legislation declaring that the proof of one fact or group of facts shall constitute prima facie evidence of a main or ultimate fact will be sustained.¹⁰⁵⁴

For a brief period, the Court used what it called the “irrebuttable presumption doctrine” to curb the legislative tendency to confer a benefit or to impose a detriment based on presumed characteristics based on the existence of another characteristic.¹⁰⁵⁵ Thus, in Stanley v. Illinois,¹⁰⁵⁶ the Court found invalid a construction of the state statute that presumed illegitimate fathers to be unfit parents and that prevented them from objecting to state wardship. Mandatory maternity leave rules requiring pregnant teachers to take unpaid maternity leave at a set time prior to the date of the expected births of their babies were voided as creating a conclusive presumption that every pregnant teacher who reaches a particular point of pregnancy becomes physically incapable of teaching.¹⁰⁵⁷

Major controversy developed over the application of “irrebuttable presumption doctrine” in benefits cases. Thus, although a state may require that nonresidents must pay higher tuition charges at state colleges than residents, and while the Court assumed that a durational residency requirement would be permissible as a prerequisite to qualify for the lower tuition, it was held impermissible for the state to presume conclusively that because the legal address of a student was outside the state at the time of application or at some point during the preceding year he was a nonresident as long as he remained a student. The Due Process Clause required that the student be afforded the opportunity to show that he is or has become a bona fide resident entitled to the lower tuition.¹⁰⁵⁸

Moreover, a food stamp program provision making ineligible any household that contained a member age 18 or over who was claimed as a dependent for federal income tax purposes the prior tax year by a person not himself eligible for stamps was voided on the ground that it created a conclusive presumption that fairly often could be shown to be false if evidence could be presented.¹⁰⁵⁹ The rule which emerged for subjecting persons to detriment or qualifying them for benefits was that the legislature may not presume the existence of the decisive characteristic upon a given set of facts, unless it can be shown that the defined characteristics do in fact encompass all persons and only those persons that it was the purpose of the legislature to reach. The doctrine in effect afforded the Court the opportunity to choose between resort to the Equal Protection Clause or to the Due Process Clause in judging the validity of certain classifications,¹⁰⁶⁰ and it precluded Congress and legislatures from making general classifications that avoided the administrative costs of individualization in many areas.

Use of the doctrine was curbed if not halted, however, in Weinberger v. Salfi,¹⁰⁶¹ in which the Court upheld the validity of a Social Security provision requiring that the spouse of a covered wage earner must have been married to the wage earner for at least nine months prior to his death in order to receive benefits as a spouse. Purporting to approve but to distinguish the prior cases in the line,¹⁰⁶² the Court imported traditional equal protection analysis into considerations of due process challenges to statutory classifications.¹⁰⁶³ Extensions of the prior cases to government entitlement classifications, such as the Social Security Act qualification standard before it, would, said the Court, “turn the doctrine of those cases into a virtual engine of destruction for countless legislative judgments which have heretofore been thought wholly consistent with the Fifth and Fourteenth Amendments to the Constitution.”¹⁰⁶⁴ Whether the Court will now limit the doctrine to the detriment area only, exclusive of benefit programs, whether it will limit it to those areas which involve fundamental rights or suspect classifications (in the equal protection sense of those expressions)¹⁰⁶⁵ or whether it will simply permit the doctrine to pass from the scene remains unsettled, but it is noteworthy that it now rarely appears on the Court’s docket.¹⁰⁶⁶

Trials and Appeals.—Trial by jury in civil trials, unlike the case in criminal trials, has not been deemed essential to due process, and the Fourteenth Amendment has not been held to restrain the states in retaining or abolishing civil juries.¹⁰⁶⁷ Thus, abolition of juries in proceedings to enforce liens,¹⁰⁶⁸ mandamus¹⁰⁶⁹ and quo warranto¹⁰⁷⁰ actions, and in eminent domain¹⁰⁷¹ and equity¹⁰⁷² proceedings has been approved. states are also free to adopt innovations respecting selection and number of jurors. Verdicts rendered by ten out of twelve jurors may be substituted for the requirement of unanimity,¹⁰⁷³ and petit juries containing eight rather than the conventional number of twelve members may be established.¹⁰⁷⁴

If a full and fair trial on the merits is provided, due process does not require a state to provide appellate review.¹⁰⁷⁵ But if an appeal is afforded, the state must not so structure it as to arbitrarily deny to some persons the right or privilege available to others.¹⁰⁷⁶

The Court has held that practically all the criminal procedural guarantees of the Bill of Rights—the Fourth, Fifth, Sixth, and Eighth Amendments—are fundamental to state criminal justice systems and that the absence of one or the other particular guarantees denies a suspect or a defendant due process of law under the Fourteenth Amendment.¹⁰⁷⁷ In addition, the Court has held that the Due Process Clause protects against practices and policies that violate precepts of fundamental fairness,¹⁰⁷⁸ even if they do not violate specific guarantees of the Bill of Rights.¹⁰⁷⁹ The standard query in such cases is whether the challenged practice or policy violates “a fundamental principle of liberty and justice which inheres in the very idea of a free government and is the inalienable right of a citizen of such government.”¹⁰⁸⁰

This inquiry contains a historical component, as “recent cases . . . have proceeded upon the valid assumption that state criminal processes are not imaginary and theoretical schemes but actual systems bearing virtually every characteristic of the common-law system that has been developing contemporaneously in England and in this country. The question thus is whether given this kind of system a particular procedure is fundamental—whether, that is, a procedure is necessary to an Anglo-American regime of ordered liberty. . . . [Therefore, the limitations imposed by the Court on the states are] not necessarily fundamental to fairness in every criminal system that might be imagined but [are] fundamental in the context of the criminal processes maintained by the American States.”¹⁰⁸¹

Initiation of the Prosecution.—Indictment by a grand jury is not a requirement of due process; a state may proceed instead by information.¹⁰⁸² Due process does require that, whatever the procedure, a defendant must be given adequate notice of the offense charged against him and for which he is to be tried,¹⁰⁸³ even aside from the notice requirements of the Sixth Amendment.¹⁰⁸⁴ Where, of course, a grand jury is used, it must be fairly constituted and free from prejudicial influences.¹⁰⁸⁵

Clarity in Criminal Statutes: The Void-for-Vagueness Doctrine.—Criminal statutes that lack sufficient definiteness or specificity are commonly held “void for vagueness.”¹⁰⁸⁶ Such legislation “may run afoul of the Due Process Clause because it fails to give adequate guidance to those who would be law-abiding, to advise defendants of the nature of the offense with which they are charged, or to guide courts in trying those who are accused.”¹⁰⁸⁷ “Men of common intelligence cannot be required to guess at the meaning of [an] enactment.”¹⁰⁸⁸ In other situations, a statute may be unconstitutionally vague because the statute is worded in a standardless way that invites arbitrary enforcement. In this vein, the Court has invalidated two kinds of laws as “void for vagueness”: (1) laws that define criminal offenses; and (2) laws that fix the permissible sentences for criminal offenses.¹⁰⁸⁹ With respect to laws that define criminal offenses, the Court has required that a penal statute provide the definition of the offense with “sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.”¹⁰⁹⁰

For instance, the Court voided for vagueness a criminal statute providing that a person was a “gangster” and subject to fine or imprisonment if he was without lawful employment, had been either convicted at least three times for disorderly conduct or had been convicted of any other crime, and was “known to be a member of a gang of two or more persons.” The Court observed that neither common law nor the statute gave the words “gang” or “gangster” definite meaning, that the enforcing agencies and courts were free to construe the terms broadly or narrowly, and that the phrase “known to be a member” was ambiguous. The statute was held void, and the Court refused to allow specification of details in the particular indictment to save it because it was the statute, not the indictment, that prescribed the rules to govern conduct.¹⁰⁹¹

A statute may be so vague or so threatening to constitutionally protected activity that it can be pronounced wholly unconstitutional; in other words, “unconstitutional on its face.”¹⁰⁹² Thus, for instance, a unanimous Court in Papachristou v. City of Jacksonville¹⁰⁹³ struck down as invalid on its face a vagrancy ordinance that punished “dissolute persons who go about begging, . . . common night walkers, . . . common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, . . . persons neglecting all lawful business and habitually spending their time by frequenting house of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children . . . .”¹⁰⁹⁴ The ordinance was found to be facially invalid, according to Justice Douglas for the Court, because it did not give fair notice, it did not require specific intent to commit an unlawful act, it permitted and encouraged arbitrary and erratic arrests and convictions, it committed too much discretion to policemen, and it criminalized activities that by modern standards are normally innocent.¹⁰⁹⁵

In FCC v. Fox, 567 U. S. ___, No. 10–1293, slip op. (2012) the Court held that the Federal Communiations Commission (FCC) had violated the Fifth Amendment due process rights of Fox Television and ABC, Inc. , because the FCC had not given fair notice that broadcasting isolated instances of expletives or brief nudity could lead to punishment. 18 U. S. C. § 1464 bans the broadcast of “any obscene, indecent, or profane language”, but the FCC had a long-standing policy that it would not consider “fleeting” instances of indecency to be actionable, and had confirmed such a policy by issuance of an industry guidance. The policy was not announced until after the instances at issues in this case (two concerned isolated utterances of expletives during two live broadcasts aired by Fox Television, and a brief exposure of the nude buttocks of an adult female character by ABC). The Commission policy in place at the time of the broadcasts, therefore, gave the broadcasters no notice that a fleeting instance of indecency could be actionable as indecent.

On the other hand, some less vague statutes may be held unconstitutional only in application to the defendant before the Court.¹⁰⁹⁶ For instance, where the terms of a statute could be applied both to innocent or protected conduct (such as free speech) and unprotected conduct, but the valuable effects of the law outweigh its potential general harm, such a statute will be held unconstitutional only as applied.¹⁰⁹⁷ Thus, in Palmer v. City of Euclid,¹⁰⁹⁸ an ordinance punishing “suspicious persons” defined as “[a]ny person who wanders about the streets or other public ways or who is found abroad at late or unusual hours in the night without any visible or lawful business and who does not give satisfactory account of himself” was found void only as applied to a particular defendant. In Palmer, the Court found that the defendant, having dropped off a passenger and begun talking into a two-way radio, was engaging in conduct which could not reasonably be anticipated as fitting within the “without any visible or lawful business” portion of the ordinance’s definition.

Loitering statutes that are triggered by failure to obey a police dispersal order are suspect, and may be struck down if they leave a police officer absolute discretion to give such orders.¹⁰⁹⁹ Thus, a Chicago ordinance that required police to disperse all persons in the company of “criminal street gang members” while in a public place with “no apparent purpose,” failed to meet the “requirement that a legislature establish minimal guidelines to govern law enforcement.”¹¹⁰⁰ The Court noted that “no apparent purpose” is inherently subjective because its application depends on whether some purpose is “apparent” to the officer, who would presumably have the discretion to ignore such apparent purposes as engaging in idle conversation or enjoying the evening air.¹¹⁰¹ On the other hand, where such a statute additionally required a finding that the defendant was intent on causing inconvenience, annoyance, or alarm, it was upheld against facial challenge, at least as applied to a defendant who was interfering with the ticketing of a car by the police.¹¹⁰²

Statutes with vague standards may nonetheless be upheld if the text of statute is interpreted by a court with sufficient clarity.¹¹⁰³ Thus, the civil commitment of persons of “such conditions of emotional instability . . . as to render such person irresponsible for his conduct with respect to sexual matters and thereby dangerous to other persons” was upheld by the Court, based on a state court’s construction of the statute as only applying to persons who, by habitual course of misconduct in sexual matters, have evidenced utter lack of power to control their sexual impulses and are likely to inflict injury. The underlying conditions—habitual course of misconduct in sexual matters and lack of power to control impulses and likelihood of attack on others—were viewed as calling for evidence of past conduct pointing to probable consequences and as being as susceptible of proof as many of the criteria constantly applied in criminal proceedings.¹¹⁰⁴

Conceptually related to the problem of definiteness in criminal statutes is the problem of notice. Ordinarily, it can be said that ignorance of the law affords no excuse, or, in other instances, that the nature of the subject matter or conduct may be sufficient to alert one that there are laws which must be observed.¹¹⁰⁵ On occasion the Court has even approved otherwise vague statutes because the statute forbade only “willful” violations, which the Court construed as requiring knowledge of the illegal nature of the proscribed conduct.¹¹⁰⁶ Where conduct is not in and of itself blameworthy, however, a criminal statute may not impose a legal duty without notice.¹¹⁰⁷

The question of notice has also arisen in the context of “judge-made” law. Although the Ex Post Facto Clause forbids retroactive application of state and federal criminal laws, no such explicit restriction applies to the courts. Thus, when a state court abrogated the common law rule that a victim must die within a “year and a day” in order for homicide charges to be brought in Rogers v. Tennessee,¹¹⁰⁸ the question arose whether such rule could be applied to acts occurring before the court’s decision. The dissent argued vigorously that unlike the traditional common law practice of adapting legal principles to fit new fact situations, the court’s decision was an outright reversal of existing law. Under this reasoning, the new “law” could not be applied retrospectively. The majority held, however, that only those holdings which were “unexpected and indefensible by reference to the law which had been express prior to the conduct in issue”¹¹⁰⁹ could not be applied retroactively. The relatively archaic nature of “year and a day rule”, its abandonment by most jurisdictions, and its inapplicability to modern times were all cited as reasons that the defendant had fair warning of the possible abrogation of the common law rule.

With regard to statutes that fix criminal sentences,¹¹¹⁰ the Court has explained that the law must specify the range of available sentences with “sufficient clarity.”¹¹¹¹ For example, in Johnson v. United States, after years of litigation on the meaning and scope of the “residual clause” of the Armed Career Criminal Act of 1984 (ACCA),¹¹¹² the Court concluded that the clause in question was void for vagueness.¹¹¹³ In relevant part, the ACCA imposes an increased prison term upon a felon who is in possession of a firearm, if that felon has previously been convicted for a “violent felony,” a term defined by the statute to include “burglary, arson, or extortion, [a crime that] involves use of explosives, or” crimes that fall within the residual clause—that is, crimes that “otherwise involve[] conduct that presents a serious potential risk of physical injury to another.”¹¹¹⁴ In Johnson, prosecutors sought an enhanced sentence for a felon found in possession of a firearm, arguing that one of the defendant’s previous crimes—unlawful possession of a short-barreled shotgun— qualified as a violent felony because the crime amounted to one that “involve[d] conduct that presents a serious potential risk of physical injury to another.”¹¹¹⁵ To determine whether a crime falls within the residual clause, the Court had previously endorsed a “categorical approach”—that is, instead of looking to whether the facts of a specific offense presented a serious risk of physical injury to another, the Supreme Court had interpreted the ACCA to require courts to look to whether the underlying crime falls within a category such that the “ordinary case” of the crime would present a serious risk of physical injury.¹¹¹⁶ The Court in Johnson concluded that the residual clause was unconstitutionally vague because the clause’s requirement that courts determine what an “ordinary case” of a crime entails led to “grave uncertainty” about (1) how to estimate the risk posed by the crime and (2) how much risk was sufficient to qualify as a violent felony.¹¹¹⁷ For example, in determining whether attempted burglary ordinarily posed serious risks of physical injury, the Court suggested that reasonable minds could differ as to whether an attempted burglary would typically end in a violent encounter, resulting in the conclusion that the residual clause provided “no reliable way” to determine what crimes fell within its scope.¹¹¹⁸ In so holding, the Court relied heavily on the difficulties that federal courts (including the Supreme Court) have had in establishing consistent standards to adjudge the scope of the residual clause, noting that the failure of “persistent efforts” to establish a standard can provide evidence of vagueness.¹¹¹⁹

Entrapment.—Certain criminal offenses, because they are consensual actions taken between and among willing parties, present police with difficult investigative problems.¹¹²⁰ Thus, in order to deter such criminal behavior, police agents may “encourage” persons to engage in criminal behavior, such as selling narcotics or contraband,¹¹²¹ or they may may seek to test the integrity of public employees, officers or public officials by offering them bribes.¹¹²² In such cases, an “entrapment” defense is often made, though it is unclear whether the basis for the defense is the Due Process Clause, the supervisory authority of the federal courts to deter wrongful police conduct, or merely statutory construction (interpreting criminal laws to find that the legislature would not have intended to punish conduct induced by police agents).¹¹²³

The Court has employed the so-called “subjective approach” in evaluating the defense of entrapment.¹¹²⁴ This subjective approach follows a two-pronged analysis. First, the question is asked whether the offense was induced by a government agent. Second, if the government has induced the defendant to break the law, “the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.”¹¹²⁵ If the defendant can be shown to have been ready and willing to commit the crime whenever the opportunity presented itself, the defense of entrapment is unavailing, no matter the degree of inducement.¹¹²⁶ On the other hand, “[w]hen the Government’s quest for conviction leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would never run afoul of the law, the courts should intervene.”¹¹²⁷

Criminal Identification Process.—In criminal trials, the reliability and weight to be accorded an eyewitness identification ordinarily are for the jury to decide, guided by instructions by the trial judge and subject to judicial prerogatives under the rules of evidence to exclude otherwise relevant evidence whose probative value is substantially outweighed by its prejudicial impact or potential to mislead. At times, however, a defendant alleges an out-of-court identification in the presence of police is so flawed that it is inadmissible as a matter of fundamental justice under due process.¹¹²⁸ These cases most commonly challenge such police-arranged procedures as lineups, showups, photographic displays, and the like.¹¹²⁹ But not all cases have alleged careful police orchestration.¹¹³⁰

The Court generally disfavors judicial suppression of eyewitness identifications on due process grounds in lieu of having identification testimony tested in the normal course of the adversarial process.¹¹³¹ Two elements are required for due process suppression. First, law enforcement officers must have participated in an identification process that was both suggestive and unnecessary.¹¹³² Second, the identification procedures must have created a substantial prospect for misidentification. Determination of these elements is made by examining the “totality of the circumstances” of a case.¹¹³³ The Court has not recognized any per se rule for excluding an eyewitness identification on due process grounds.¹¹³⁴ Defendants have had difficulty meeting the Court’s standards: Only one challenge has been successful.¹¹³⁵

Fair Trial.—As noted, the provisions of the Bill of Rights now applicable to the states contain basic guarantees of a fair trial— right to counsel, right to speedy and public trial, right to be free from use of unlawfully seized evidence and unlawfully obtained confessions, and the like. But this does not exhaust the requirements of fairness. “Due process of law requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. . . . What is fair in one set of circumstances may be an act of tyranny in others.”¹¹³⁶ Conversely, “as applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it . . . [the Court] must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.”¹¹³⁷

For instance, bias or prejudice either inherent in the structure of the trial system or as imposed by external events will deny one’s right to a fair trial. Thus, in Tumey v. Ohio¹¹³⁸ it was held to violate due process for a judge to receive compensation out of the fines imposed on convicted defendants, and no compensation beyond his salary) “if he does not convict those who are brought before him.” Or, in other cases, the Court has found that contemptuous behavior in court may affect the impartiality of the presiding judge, so as to disqualify such judge from citing and sentencing the contemnors.¹¹³⁹ Due process is also violated by the participation of a biased or otherwise partial juror, although there is no presumption that all jurors with a potential bias are in fact prejudiced.¹¹⁴⁰

Public hostility toward a defendant that intimidates a jury is, or course, a classic due process violation.¹¹⁴¹ More recently, concern with the impact of prejudicial publicity upon jurors and potential jurors has caused the Court to instruct trial courts that they should be vigilant to guard against such prejudice and to curb both the publicity and the jury’s exposure to it.¹¹⁴² For instance, the impact of televising trials on a jury has been a source of some concern.¹¹⁴³

The fairness of a particular rule of procedure may also be the basis for due process claims, but such decisions must be based on the totality of the circumstances surrounding such procedures.¹¹⁴⁴ For instance, a court may not restrict the basic due process right to testify in one’s own defense by automatically excluding all hypnotically refreshed testimony.¹¹⁴⁵ Or, though a state may require a defendant to give pretrial notice of an intention to rely on an alibi defense and to furnish the names of supporting witnesses, due process requires reciprocal discovery in such circumstances, necessitating that the state give the defendant pretrial notice of its rebuttal evidence on the alibi issue.¹¹⁴⁶ Due process is also violated when the accused is compelled to stand trial before a jury while dressed in identifiable prison clothes, because it may impair the presumption of innocence in the minds of the jurors.¹¹⁴⁷

The use of visible physical restraints, such as shackles, leg irons, or belly chains, in front of a jury, has been held to raise due process concerns. In Deck v. Missouri,¹¹⁴⁸ the Court noted a rule dating back to English common law against bringing a defendant to trial in irons, and a modern day recognition that such measures should be used “only in the presence of a special need.”¹¹⁴⁹ The Court found that the use of visible restraints during the guilt phase of a trial undermines the presumption of innocence, limits the ability of a defendant to consult with counsel, and “affronts the dignity and decorum of judicial proceedings.”¹¹⁵⁰ Even where guilt has already been adjudicated, and a jury is considering the application of the death penalty, the latter two considerations would preclude the routine use of visible restraints. Only in special circumstances, such as where a judge has made particularized findings that security or flight risk requires it, can such restraints be used.

The combination of otherwise acceptable rules of criminal trials may in some instances deny a defendant due process. Thus, based on the particular circumstance of a case, two rules that (1) denied a defendant the right to cross-examine his own witness in order to elicit evidence exculpatory to the defendant¹¹⁵¹ and (2) denied a defendant the right to introduce the testimony of witnesses about matters told them out of court on the ground the testimony would be hearsay, denied the defendant his constitutional right to present his own defense in a meaningful way.¹¹⁵² Similarly, a questionable procedure may be saved by its combination with another. Thus, it does not deny a defendant due process to subject him initially to trial before a non-lawyer police court judge when there is a later trial de novo available under the state’s court system.¹¹⁵³

Prosecutorial Misconduct.—When a conviction is obtained by the presentation of testimony known to the prosecuting authorities to have been perjured, due process is violated. The clause “cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance . . . is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation.”¹¹⁵⁴

The above-quoted language was dictum,¹¹⁵⁵ but the principle it enunciated has required state officials to controvert allegations that knowingly false testimony had been used to convict¹¹⁵⁶ and has upset convictions found to have been so procured.¹¹⁵⁷ Extending the principle, the Court in Miller v. Pate¹¹⁵⁸ overturned a conviction obtained after the prosecution had represented to the jury that a pair of men’s shorts found near the scene of a sex attack belonged to the defendant and that they were stained with blood; the defendant showed in a habeas corpus proceeding that no evidence connected him with the shorts and furthermore that the shorts were not in fact bloodstained, and that the prosecution had known these facts.

This line of reasoning has even resulted in the disclosure to the defense of information not relied upon by the prosecution during trial.¹¹⁵⁹ In Brady v. Maryland,¹¹⁶⁰ the Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” In that case, the prosecution had suppressed an extrajudicial confession of defendant’s accomplice that he had actually committed the murder.¹¹⁶¹ “The heart of the holding in Brady is the prosecution’s suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the evidence.”¹¹⁶²

In United States v. Agurs,¹¹⁶³ the Court summarized and somewhat expanded the prosecutor’s obligation to disclose to the defense exculpatory evidence in his possession, even in the absence of a request, or upon a general request, by defendant. First, as noted, if the prosecutor knew or should have known that testimony given to the trial was perjured, the conviction must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.¹¹⁶⁴ Second, as established in Brady, if the defense specifically requested certain evidence and the prosecutor withheld it,¹¹⁶⁵ the conviction must be set aside if the suppressed evidence might have affected the outcome of the trial.¹¹⁶⁶ Third (the new law created in Agurs), if the defense did not make a request at all, or simply asked for “all Brady material” or for “anything exculpatory,” a duty resides in the prosecution to reveal to the defense obviously exculpatory evidence. Under this third prong, if the prosecutor did not reveal the relevant information, reversal of a conviction may be required, but only if the undisclosed evidence creates a reasonable doubt as to the defendant’s guilt.¹¹⁶⁷

This tripartite formulation, however, suffered from two apparent defects. First, it added a new level of complexity to a Brady inquiry by requiring a reviewing court to establish the appropriate level of materiality by classifying the situation under which the exculpating information was withheld. Second, it was not clear, if the fairness of the trial was at issue, why the circumstances of the failure to disclose should affect the evaluation of the impact that such information would have had on the trial. Ultimately, the Court addressed these issues in United States v. Bagley¹¹⁶⁸ .

In Bagley, the Court established a uniform test for materiality, choosing the most stringent requirement that evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different.¹¹⁶⁹ This materiality standard, found in contexts outside of Brady inquiries,¹¹⁷⁰ is applied not only to exculpatory material, but also to material that would be relevant to the impeachment of witnesses.¹¹⁷¹ Thus, where inconsistent earlier statements by a witness to an abduction were not disclosed, the Court weighed the specific effect that impeachment of the witness would have had on establishing the required elements of the crime and of the punishment, finally concluding that there was no reasonable probability that the jury would have reached a different result.¹¹⁷²

The Supreme Court has also held that “Brady suppression occurs when the government fails to turn over even evidence that is ‘known only to police investigators and not to the prosecutor.’ . . . ‘[T]he individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government’s behalf in the case, including the police.’”¹¹⁷³

Proof, Burden of Proof, and Presumptions.—It had long been presumed that “reasonable doubt” was the proper standard for criminal cases,¹¹⁷⁴ but, because the standard was so widely accepted, it was only relatively recently that the Court had the opportunity to pronounce it guaranteed by due process. In 1970, the Court held in In re Winship that the Due Process Clauses of the Fifth and Fourteenth Amendments “[protect] the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”¹¹⁷⁵

The standard is closely related to the presumption of innocence, which helps to ensure a defendant a fair trial,¹¹⁷⁶ and requires that a jury consider a case solely on the evidence.¹¹⁷⁷ “The reasonable doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence—that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law.’”¹¹⁷⁸

The Court had long held that, under the Due Process Clause, it would set aside convictions that are supported by no evidence at all.¹¹⁷⁹ The holding of the Winship case, however, left open the question as to whether appellate courts should weigh the sufficiency of trial evidence. Thus, in Jackson v. Virginia,¹¹⁸⁰ the Court held that federal courts, on direct appeal of federal convictions or collateral review of state convictions, must satisfy themselves that the evidence on the record could reasonably support a finding of guilt beyond a reasonable doubt. The question the reviewing court is to ask itself is not whether it believes the evidence at the trial established guilt beyond a reasonable doubt, but whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.¹¹⁸¹

Because due process requires the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime charged,¹¹⁸² the Court held in Mullaney v. Wilbur¹¹⁸³ that it was unconstitutional to require a defendant charged with murder to prove that he acted “in the heat of passion on sudden provocation” in order to reduce the homicide to manslaughter. The Court indicated that a balancing-of-interests test should be used to determine when the Due Process Clause required the prosecution to carry the burden of proof and when some part of the burden might be shifted to the defendant. The decision, however, called into question the practice in many states under which some burdens of persuasion¹¹⁸⁴ were borne by the defense, and raised the prospect that the prosecution must bear all burdens of persuasion—a significant and weighty task given the large numbers of affirmative defenses.

The Court, however, summarily rejected the argument that Mullaney means that the prosecution must negate an insanity defense,¹¹⁸⁵ and, later, in Patterson v. New York,¹¹⁸⁶ upheld a state statute that required a defendant asserting “extreme emotional disturbance” as an affirmative defense to murder¹¹⁸⁷ to prove such by a preponderance of the evidence. According to the Court, the constitutional deficiency in Mullaney was that the statute made malice an element of the offense, permitted malice to be presumed upon proof of the other elements, and then required the defendant to prove the absence of malice. In Patterson, by contrast, the statute obligated the state to prove each element of the offense (the death, the intent to kill, and the causation) beyond a reasonable doubt, while allowing the defendant to prove an affirmative defense by preponderance of the evidence that would reduce the degree of the offense.¹¹⁸⁸ This distinction has been criticized as formalistic, as the legislature can shift burdens of persuasion between prosecution and defense easily through the statutory definitions of the offenses.¹¹⁸⁹

Despite the requirement that states prove each element of a criminal offense, criminal trials generally proceed with a presumption that the defendant is sane, and a defendant may be limited in the evidence that he may present to challenge this presumption. In Clark v. Arizona,¹¹⁹⁰ the Court considered a rule adopted by the Supreme Court of Arizona that prohibited the use of expert testimony regarding mental disease or mental capacity to show lack of mens rea, ruling that the use of such evidence could be limited to an insanity defense. In Clark, the Court weighed competing interests to hold that such evidence could be “channeled” to the issue of insanity due to the controversial character of some categories of mental disease, the potential of mental-disease evidence to mislead, and the danger of according greater certainty to such evidence than experts claim for it.¹¹⁹¹

Another important distinction that can substantially affect a prosecutor’s burden is whether a fact to be established is an element of a crime or instead is a sentencing factor. Although a criminal conviction is generally established by a jury using the “beyond a reasonable doubt” standard, sentencing factors are generally evaluated by a judge using few evidentiary rules and under the more lenient “preponderance of the evidence” standard. The Court has taken a formalistic approach to this issue, allowing states to designate essentially which facts fall under which of these two categories. For instance, the Court has held that whether a defendant “visibly possessed a gun” during a crime may be designated by a state as a sentencing factor, and determined by a judge based on the preponderance of evidence.¹¹⁹²

Although the Court has generally deferred to the legislature’s characterizations in this area, it limited this principle in Apprendi v. New Jersey. In Apprendi the Court held that a sentencing factor cannot be used to increase the maximum penalty imposed for the underlying crime.¹¹⁹³ This led, in turn, to the Court’s overruling conflicting prior case law that had held constitutional the use of aggravating sentencing factors by judges when imposing capital punishment.¹¹⁹⁴ These holdings are subject to at least one exception, however,¹¹⁹⁵ and the decisions might be evaded by legislatures revising criminal provisions to increase maximum penalties, and then providing for mitigating factors within the newly established sentencing range.

Another closely related issue is statutory presumptions, where proof of a “presumed fact” that is a required element of a crime, is established by another fact, the “basic fact.”¹¹⁹⁶ In Tot v. United States,¹¹⁹⁷ the Court held that a statutory presumption was valid under the Due Process Clause only if it met a “rational connection” test. In that case, the Court struck down a presumption that a person possessing an illegal firearm had shipped, transported, or received such in interstate commerce. “Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from the proof of the other is arbitrary because of lack of connection between the two in common experience.”

In Leary v. United States,¹¹⁹⁸ this due process test was stiffened to require that, for such a “rational connection” to exist, it must “at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.” Thus, the Court voided a provision that permitted a jury to infer from a defendant’s possession of marijuana his knowledge of its illegal importation. A lengthy canvass of factual materials established to the Court’s satisfaction that, although the greater part of marijuana consumed in the United States is of foreign origin, there was still a good amount produced domestically and there was no way to assure that the majority of those possessing marijuana have any reason to know whether their marijuana is imported.¹¹⁹⁹ The Court left open the question whether a presumption that survived the “rational connection” test “must also satisfy the criminal ‘reasonable doubt’ standard if proof of the crime charged or an essential element thereof depends upon its use.”¹²⁰⁰

In a later case, a closely divided Court drew a distinction between mandatory presumptions, which a jury must accept, and permissive presumptions, which may be presented to the jury as part of all the evidence to be considered. With respect to mandatory presumptions, “since the prosecution bears the burden of establishing guilt, it may not rest its case entirely on a presumption, unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt.”¹²⁰¹ But, with respect to permissive presumptions, “the prosecution may rely on all of the evidence in the record to meet the reasonable doubt standard. There is no more reason to require a permissive statutory presumption to meet a reasonable-doubt standard before it may be permitted to play any part in a trial than there is to require that degree of probative force for other relevant evidence before it may be admitted. As long as it is clear that the presumption is not the sole and sufficient basis for a finding of guilt, it need only satisfy the test described in Leary.”¹²⁰² Thus, due process was not violated by the application of the statute that provides that “the presence of a firearm in an automobile is presumptive evidence of its illegal possession by all persons then occupying the vehicle.”¹²⁰³ The division of the Court in these cases and in the Mullaney v. Wilbur line of cases clearly shows the unsettled nature of the issues they concern.

The Problem of the Incompetent or Insane Defendant.—It is a denial of due process to try or sentence a defendant who is insane or incompetent to stand trial.¹²⁰⁴ When it becomes evident during the trial that a defendant is or has become insane or incompetent to stand trial, the court on its own initiative must conduct a hearing on the issue.¹²⁰⁵ Although there is no constitutional requirement that the state assume the burden of proving a defendant competent, the state must provide the defendant with a chance to prove that he is incompetent to stand trial. Thus, a statutory presumption that a criminal defendant is competent to stand trial or a requirement that the defendant bear the burden of proving incompetence by a preponderance of the evidence does not violate due process.¹²⁰⁶

When a state determines that a person charged with a criminal offense is incompetent to stand trial, he cannot be committed indefinitely for that reason. The court’s power is to commit him to a period no longer than is necessary to determine whether there is a substantial probability that he will attain his capacity in the foreseeable future. If it is determined that he will not, then the state must either release the defendant or institute the customary civil commitment proceeding that would be required to commit any other citizen.¹²⁰⁷

Where a defendant is found competent to stand trial, a state appears to have significant discretion in how it takes account of mental illness or defect at the time of the offense in determining criminal responsibility.¹²⁰⁸ The Court has identified several tests that are used by states in varying combinations to address the issue: the M’Naghten test (cognitive incapacity or moral incapacity),¹²⁰⁹ volitional incapacity,¹²¹⁰ and the irresistible-impulse test.¹²¹¹ “[I]t is clear that no particular formulation has evolved into a baseline for due process, and that the insanity rule, like the conceptualization of criminal offenses, is substantially open to state choice.”¹²¹²

Commitment to a mental hospital of a criminal defendant acquitted by reason of insanity does not offend due process, and the period of confinement may extend beyond the period for which the person could have been sentenced if convicted.¹²¹³ The purpose of the confinement is not punishment, but treatment, and the Court explained that the length of a possible criminal sentence “therefore is irrelevant to the purposes of . . . commitment.”¹²¹⁴ Thus, the insanity-defense acquittee may be confined for treatment “until such time as he has regained his sanity or is no longer a danger to himself or society.”¹²¹⁵ It follows, however, that a state may not indefinitely confine an insanity-defense acquittee who is no longer mentally ill but who has an untreatable personality disorder that may lead to criminal conduct.¹²¹⁶

The Court held in Ford v. Wainwright that the Eighth Amendment prohibits the state from executing a person who is insane, and that properly raised issues of pre-execution sanity must be determined in a proceeding that satisfies the requirements of due process.¹²¹⁷ Due process is not met when the decision on sanity is left to the unfettered discretion of the governor; rather, due process requires the opportunity to be heard before an impartial officer or board.¹²¹⁸ The Court, however, left “to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.”¹²¹⁹

In Atkins v. Virginia, the Court held that the Eighth Amendment also prohibits the state from executing a person who is mentally retarded, and added, “As was our approach in Ford v. Wainwright with regard to insanity, ‘we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.’”¹²²⁰

Issues of substantive due process may arise if the government seeks to compel the medication of a person found to be incompetent to stand trial. In Washington v. Harper,¹²²¹ the Court had found that an individual has a significant “liberty interest” in avoiding the unwanted administration of antipsychotic drugs. In Sell v. United States,¹²²² the Court found that this liberty interest could in “rare” instances be outweighed by the government’s interest in bringing an incompetent individual to trial. First, however, the government must engage in a fact-specific inquiry as to whether this interest is important in a particular case.¹²²³ Second, the court must find that the treatment is likely to render the defendant competent to stand trial without resulting in side effects that will interfere with the defendant’s ability to assist counsel. Third, the court must find that less intrusive treatments are unlikely to achieve substantially the same results. Finally, the court must conclude that administration of the drugs is in the patient’s best medical interests.

Guilty Pleas.—A defendant may plead guilty instead of insisting that the prosecution prove him guilty. Often the defendant does so as part of a “plea bargain” with the prosecution, where the defendant is guaranteed a light sentence or is allowed to plead to a lesser offense.¹²²⁴ Although the government may not structure its system so as to coerce a guilty plea,¹²²⁵ a guilty plea that is entered voluntarily, knowingly, and understandingly, even to obtain an advantage, is sufficient to overcome constitutional objections.¹²²⁶ The guilty plea and the often concomitant plea bargain are important and necessary components of the criminal justice system,¹²²⁷ and it is permissible for a prosecutor during such plea bargains to require a defendant to forgo his right to a trial in return for escaping additional charges that are likely upon conviction to result in a more severe penalty.¹²²⁸ But the prosecutor does deny due process if he penalizes the assertion of a right or privilege by the defendant by charging more severely or recommending a longer sentence.¹²²⁹

In accepting a guilty plea, the court must inquire whether the defendant is pleading voluntarily, knowingly, and understandingly,¹²³⁰ and “the adjudicative element inherent in accepting a plea of guilty must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that, when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”¹²³¹

Sentencing.—In the absence of errors by the sentencing judge,¹²³² or of sentencing jurors considering invalid factors,¹²³³ the significance of procedural due process at sentencing is limited.¹²³⁴ In Williams v. New York,¹²³⁵ the Court upheld the imposition of the death penalty, despite a jury’s recommendation of mercy, where the judge acted based on information in a presentence report not shown to the defendant or his counsel. The Court viewed as highly undesirable the restriction of judicial discretion in sentencing by requiring adherence to rules of evidence which would exclude highly relevant and informative material. Further, disclosure of such information to the defense could well dry up sources who feared retribution or embarrassment. Thus, hearsay and rumors can be considered in sentencing. In Gardner v. Florida,¹²³⁶ however, the Court limited the application of Williams to capital cases.¹²³⁷

In United States v. Grayson,¹²³⁸ a noncapital case, the Court relied heavily on Williams in holding that a sentencing judge may properly consider his belief that the defendant was untruthful in his trial testimony in deciding to impose a more severe sentence than he would otherwise have imposed. the Court declared that, under the current scheme of individualized indeterminate sentencing, the judge must be free to consider the broadest range of information in assessing the defendant’s prospects for rehabilitation; defendant’s truthfulness, as assessed by the trial judge from his own observations, is relevant information.¹²³⁹

There are various sentencing proceedings, however, that so implicate substantial rights that additional procedural protections are required.¹²⁴⁰ Thus, in Specht v. Patterson,¹²⁴¹ the Court considered a defendant who had been convicted of taking indecent liberties, which carried a maximum sentence of ten years, but was sentenced under a sex offenders statute to an indefinite term of one day to life. The sex offenders law, the Court observed, did not make the commission of the particular offense the basis for sentencing. Instead, by triggering a new hearing to determine whether the convicted person was a public threat, a habitual offender, or mentally ill, the law in effect constituted a new charge that must be accompanied by procedural safeguards. And in Mempa v. Rhay,¹²⁴² the Court held that, when sentencing is deferred subject to probation and the terms of probation are allegedly violated so that the convicted defendant is returned for sentencing, he must then be represented by counsel, inasmuch as it is a point in the process where substantial rights of the defendant may be affected.

Due process considerations can also come into play in sentencing if the state attempts to withhold relevant information from the jury. For instance, in Simmons v. South Carolina, the Court held that due process requires that if prosecutor makes an argument for the death penalty based on the future dangerousness of the defendant to society, the jury must then be informed if the only alternative to a death sentence is a life sentence without possibility of parole.¹²⁴³ But, in Ramdass v. Angelone,¹²⁴⁴ the Court refused to apply the reasoning of Simmons because the defendant was not technically parole ineligible at time of sentencing.

A defendant should not be penalized for exercising a right to appeal. Thus, it is a denial of due process for a judge to sentence a convicted defendant on retrial to a longer sentence than he received after the first trial if the object of the sentence is to punish the defendant for having successfully appealed his first conviction or to discourage similar appeals by others.¹²⁴⁵ If the judge does impose a longer sentence the second time, he must justify it on the record by showing, for example, the existence of new information meriting a longer sentence.¹²⁴⁶

Because the possibility of vindictiveness in resentencing is de minimis when it is the jury that sentences, however, the requirement of justifying a more severe sentence upon resentencing is inapplicable to jury sentencing, at least in the absence of a showing that the jury knew of the prior vacated sentence.¹²⁴⁷ The presumption of vindictiveness is also inapplicable if the first sentence was imposed following a guilty plea. Here the Court reasoned that a trial may well afford the court insights into the nature of the crime and the character of the defendant that were not available following the initial guilty plea.¹²⁴⁸

Corrective Process: Appeals and Other Remedies.—“An appeal from a judgment of conviction is not a matter of absolute right, independently of constitutional or statutory provisions allowing such appeal. A review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law and is not now a necessary element of due process of law. It is wholly within the discretion of the State to allow or not to allow such a review.”¹²⁴⁹ This holding has been reaffirmed,¹²⁵⁰ although the Court has also held that, when a state does provide appellate review, it may not so condition the privilege as to deny it irrationally to some persons, such as indigents.¹²⁵¹

A state is not free, however, to have no corrective process in which defendants may pursue remedies for federal constitutional violations. In Frank v. Mangum,¹²⁵² the Court asserted that a conviction obtained in a mob-dominated trial was contrary to due process: “if the State, supplying no corrective process, carries into execution a judgment of death or imprisonment based upon a verdict thus produced by mob domination, the State deprives the accused of his life or liberty without due process of law.” Consequently, the Court has stated numerous times that the absence of some form of corrective process when the convicted defendant alleges a federal constitutional violation contravenes the Fourteenth Amendment,¹²⁵³ and the Court has held that to burden this process, such as by limiting the right to petition for habeas corpus, is to deny the convicted defendant his constitutional rights.¹²⁵⁴

The mode by which federal constitutional rights are to be vindicated after conviction is for the government concerned to determine. “Wide discretion must be left to the States for the manner of adjudicating a claim that a conviction is unconstitutional. States are free to devise their own systems of review in criminal cases. A State may decide whether to have direct appeals in such cases, and if so under what circumstances. . . . In respecting the duty laid upon them . . . States have a wide choice of remedies. A State may provide that the protection of rights granted by the Federal Constitution be sought through the writ of habeas corpus or coram nobis. It may use each of these ancient writs in its common law scope, or it may put them to new uses; or it may afford remedy by a simple motion brought either in the court of original conviction or at the place of detention. . . . So long as the rights under the United States Constitution may be pursued, it is for a State and not for this Court to define the mode by which they may be vindicated.”¹²⁵⁵ If a state provides a mode of redress, then a defendant must first exhaust that mode. If he is unsuccessful, or if a state does not provide an adequate mode of redress, then the defendant may petition a federal court for relief through a writ of habeas corpus.¹²⁵⁶

When appellate or other corrective process is made available, because it is no less a part of the process of law under which a defendant is held in custody, it becomes subject to scrutiny for any alleged unconstitutional deprivation of life or liberty. At first, the Court seemed content to assume that, when a state appellate process formally appeared to be sufficient to correct constitutional errors committed by the trial court, the conclusion by the appellate court that the trial court’s sentence of execution should be affirmed was ample assurance that life would not be forfeited without due process of law.¹²⁵⁷ But, in Moore v. Dempsey,¹²⁵⁸ while insisting that it was not departing from precedent, the Court directed a federal district court in which petitioners had sought a writ of habeas corpus to make an independent investigation of the facts alleged by the petitioners—mob domination of their trial—notwithstanding that the state appellate court had ruled against the legal sufficiency of these same allegations. Indubitably, Moore marked the abandonment of the Supreme Court’s deference, founded upon considerations of comity, to decisions of state appellate tribunals on issues of constitutionality, and the proclamation of its intention no longer to treat as virtually conclusive pronouncements by the latter that proceedings in a trial court were fair, an abandonment soon made even clearer in Brown v. Mississippi¹²⁵⁹ and now taken for granted.

The Court has held, however, that the Due Process Clause does not provide convicted persons a right to postconviction access to the state’s evidence for DNA testing.¹²⁶⁰ Chief Justice Roberts, in a fivetofour decision, noted that 46 states had enacted statutes dealing specifically with access to DNA evidence, and that the Federal Government had enacted a statute that allows federal prisoners to move for court-ordered DNA testing under specified conditions. Even the states that had not enacted statutes dealing specifically with access to DNA evidence must, under the Due Process Clause, provide adequate postconviction relief procedures. The Court, therefore, saw “no reason to constitutionalize the issue.”¹²⁶¹ It also expressed concern that “[e]stablishing a freestanding right to access DNA evidence for testing would force us to act as policymakers . . . . We would soon have to decide if there is a constitutional obligation to preserve forensic evidence that might later be tested. If so, for how long? Would it be different for different types of evidence? Would the State also have some obligation to gather such evidence in the first place? How much, and when?”¹²⁶²

Rights of Prisoners.—Until relatively recently the view prevailed that a prisoner “has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being the slave of the state.”¹²⁶³ This view is not now the law, and may never have been wholly correct.¹²⁶⁴ In 1948 the Court declared that “[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights”;¹²⁶⁵ “many,” indicated less than “all,” and it was clear that the Due Process and Equal Protection Clauses to some extent do apply to prisoners.¹²⁶⁶ More direct acknowledgment of constitutional protection came in 1972: “[f]ederal courts sit not to supervise prisons but to enforce the constitutional rights of all ‘persons,’ which include prisoners. We are not unmindful that prison officials must be accorded latitude in the administration of prison affairs, and that prisoners necessarily are subject to appropriate rules and regulations. But persons in prison, like other individuals, have the right to petition the government for redress of grievances . . . .”¹²⁶⁷ However, while the Court affirmed that federal courts have the responsibility to scrutinize prison practices alleged to violate the Constitution, at the same time concerns of federalism and of judicial restraint caused the Court to emphasize the necessity of deference to the judgments of prison officials and others with responsibility for administering such systems.¹²⁶⁸

Save for challenges to conditions of confinement of pretrial detainees,¹²⁶⁹ the Court has generally treated challenges to prison conditions as a whole under the Cruel and Unusual Punishments Clause of the Eighth Amendment,¹²⁷⁰ while challenges to particular incidents and practices are pursued under the Due Process Clause¹²⁷¹ or more specific provisions, such as the First Amendment’s speech and religion clauses.¹²⁷² Prior to formulating its current approach, the Court recognized several rights of prisoners. Prisoners have the right to petition for redress of grievances, which includes access to the courts for purposes of presenting their complaints,¹²⁷³ and to bring actions in federal courts to recover for damages wrongfully done them by prison administrators.¹²⁷⁴ And they have a right, circumscribed by legitimate prison administration considerations, to fair and regular treatment during their incarceration. Prisoners have a right to be free of racial segregation in prisons, except for the necessities of prison security and discipline.¹²⁷⁵

In Turner v. Safley,¹²⁷⁶ the Court announced a general standard for measuring prisoners’ claims of deprivation of constitutional rights: “[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”¹²⁷⁷ Several considerations, the Court indicated, are appropriate in determining reasonableness of a prison regulation. First, there must be a rational relation to a legitimate, content-neutral objective, such as prison security, broadly defined. Availability of other avenues for exercise of the inmate right suggests reasonableness.¹²⁷⁸ A further indicium of reasonableness is present if accommodation would have a negative effect on the liberty or safety of guards, other inmates,¹²⁷⁹ or visitors.¹²⁸⁰ On the other hand, “if an inmate claimant can point to an alternative that fully accommodated the prisoner’s rights at de minimis cost to valid penological interests,” it would suggest unreasonableness.¹²⁸¹

Fourth Amendment protection is incompatible with “the concept of incarceration and the needs and objectives of penal institutions”; hence, a prisoner has no reasonable expectation of privacy in his prison cell protecting him from “shakedown” searches designed to root out weapons, drugs, and other contraband.¹²⁸² Avenues of redress “for calculated harassment unrelated to prison needs” are not totally blocked, the Court indicated; inmates may still seek protection in the Eighth Amendment or in state tort law.¹²⁸³ Existence of “a meaningful postdeprivation remedy” for unauthorized, intentional deprivation of an inmate’s property by prison personnel protects the inmate’s due process rights.¹²⁸⁴ Due process is not implicated at all by negligent deprivation of life, liberty, or property by prison officials.¹²⁸⁵

A change of the conditions under which a prisoner is housed, including one imposed as a matter of discipline, may implicate a protected liberty interest if such a change imposes an “atypical and significant hardship” on the inmate.¹²⁸⁶ In Wolff v. McDonnell,¹²⁸⁷ the Court promulgated due process standards to govern the imposition of discipline upon prisoners. Due process applies, but, because prison disciplinary proceedings are not part of a criminal prosecution, the full panoply of a defendant’s rights is not available. Rather, the analysis must proceed by identifying the interest in “liberty” that the clause protects. Thus, where the state provides for good-time credit or other privileges and further provides for forfeiture of these privileges only for serious misconduct, the interest of the prisoner in this degree of “liberty” entitles him to the minimum procedures appropriate under the circumstances.¹²⁸⁸ What the minimum procedures consist of is to be determined by balancing the prisoner’s interest against the valid interest of the prison in maintaining security and order in the institution, in protecting guards and prisoners against retaliation by other prisoners, and in reducing prison tensions.

The Court in Wolff held that the prison must afford the subject of a disciplinary proceeding “advance written notice of the claimed violation and a written statement of the factfindings as to the evidence relied upon and the reasons for the action taken.”¹²⁸⁹ In addition, an “inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.”¹²⁹⁰ Confrontation and cross-examination of adverse witnesses is not required inasmuch as these would no doubt threaten valid institutional interests. Ordinarily, an inmate has no right to representation by retained or appointed counsel. Finally, only a partial right to an impartial tribunal was recognized, the Court ruling that limitations imposed on the discretion of a committee of prison officials sufficed for this purpose.¹²⁹¹ Revocation of good time credits, the Court later ruled, must be supported by “some evidence in the record,” but an amount that “might be characterized as meager” is constitutionally sufficient.¹²⁹²

Determination whether due process requires a hearing before a prisoner is transferred from one institution to another requires a close analysis of the applicable statutes and regulations as well as a consideration of the particular harm suffered by the transferee. On the one hand, the Court found that no hearing need be held prior to the transfer from one prison to another prison in which the conditions were substantially less favorable. Because the state had not conferred any right to remain in the facility to which the prisoner was first assigned, defeasible upon the commission of acts for which transfer is a punishment, prison officials had unfettered discretion to transfer any prisoner for any reason or for no reason at all; consequently, there was nothing to hold a hearing about.¹²⁹³ The same principles govern interstate prison transfers.¹²⁹⁴

Transfer of a prisoner to a high security facility, with an attendant loss of the right to parole, gave rise to a liberty interest, although the due process requirements to protect this interest are limited.¹²⁹⁵ On the other hand, transfer of a prisoner to a mental hospital pursuant to a statute authorizing transfer if the inmate suffers from a “mental disease or defect” must, for two reasons, be preceded by a hearing. First, the statute gave the inmate a liberty interest, because it presumed that he would not be moved absent a finding that he was suffering from a mental disease or defect. Second, unlike transfers from one prison to another, transfer to a mental institution was not within the range of confinement covered by the prisoner’s sentence, and, moreover, imposed a stigma constituting a deprivation of a liberty interest.¹²⁹⁶

The kind of hearing that is required before a state may force a mentally ill prisoner to take antipsychotic drugs against his will was at issue in Washington v. Harper.¹²⁹⁷ There the Court held that a judicial hearing was not required. Instead, the inmate’s substantive liberty interest (derived from the Due Process Clause as well as from state law) was adequately protected by an administrative hearing before independent medical professionals, at which hearing the inmate has the right to a lay advisor but not an attorney.

Probation and Parole.—Sometimes convicted defendants are not sentenced to jail, but instead are placed on probation subject to incarceration upon violation of the conditions that are imposed; others who are jailed may subsequently qualify for release on parole before completing their sentence, and are subject to reincarceration upon violation of imposed conditions. Because both of these dispositions are statutory privileges granted by the governmental authority,¹²⁹⁸ it was long assumed that the administrators of the systems did not have to accord procedural due process either in the granting stage or in the revocation stage. Now, both granting and revocation are subject to due process analysis, although the results tend to be disparate. Thus, in Mempa v. Rhay,¹²⁹⁹ the trial judge had deferred sentencing and placed the convicted defendant on probation; when facts subsequently developed that indicated a violation of the conditions of probation, he was summoned and summarily sentenced to prison. The Court held that he was entitled to counsel at the deferred sentencing hearing.

In Morrissey v. Brewer¹³⁰⁰ a unanimous Court held that parole revocations must be accompanied by the usual due process hearing and notice requirements. “[T]he revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocation . . . [But] the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a ‘grievous loss’ on the parolee and often on others. It is hardly useful any longer to try to deal with this problem in terms of whether the parolee’s liberty is a ‘right’ or a ‘privilege.’ By whatever name, the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal.”¹³⁰¹ What process is due, then, turned upon the state’s interests. Its principal interest was that, having once convicted a defendant, imprisoned him, and, at some risk, released him for rehabilitation purposes, it should be “able to return the individual to imprisonment without the burden of a new adversary criminal trial if in fact he has failed to abide by the conditions of his parole. Yet, the state has no interest in revoking parole without some informal procedural guarantees,” inasmuch as such guarantees will not interfere with its reasonable interests.¹³⁰²

Minimal due process, the Court held, requires that at both stages of the revocation process—the arrest of the parolee and the formal revocation—the parolee is entitled to certain rights. Promptly following arrest of the parolee, there should be an informal hearing to determine whether reasonable grounds exist for revocation of parole; this preliminary hearing should be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available, and should be conducted by someone not directly involved in the case, though he need not be a judicial officer. The parolee should be given adequate notice that the hearing will take place and what violations are alleged, he should be able to appear and speak in his own behalf and produce other evidence, and he should be allowed to examine those who have given adverse evidence against him unless it is determined that the identity of such informant should not be revealed. Also, the hearing officer should prepare a digest of the hearing and base his decision upon the evidence adduced at the hearing.¹³⁰³

Prior to the final decision on revocation, there should be a more formal revocation hearing at which there would be a final evaluation of any contested relevant facts and consideration whether the facts as determined warrant revocation. The hearing must take place within a reasonable time after the parolee is taken into custody and he must be enabled to controvert the allegations or offer evidence in mitigation. The procedural details of such hearings are for the states to develop, but the Court specified minimum requirements of due process. “They include (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and the reasons for revoking parole.”¹³⁰⁴ Ordinarily, the written statement need not indicate that the sentencing court or review board considered alternatives to incarceration,¹³⁰⁵ but a sentencing court must consider such alternatives if the probation violation consists of the failure of an indigent probationer, through no fault of his own, to pay a fine or restitution.¹³⁰⁶

The Court has applied a flexible due process standard to the provision of counsel. Counsel is not invariably required in parole or probation revocation proceedings. The state should, however, provide the assistance of counsel where an indigent person may have difficulty in presenting his version of disputed facts without cross-examination of witnesses or presentation of complicated documentary evidence. Presumptively, counsel should be provided where the person requests counsel, based on a timely and colorable claim that he has not committed the alleged violation, or if that issue be uncontested, there are reasons in justification or mitigation that might make revocation inappropriate.¹³⁰⁷

With respect to the granting of parole, the Court’s analysis of the Due Process Clause’s meaning in Greenholtz v. Nebraska Penal Inmates¹³⁰⁸ is much more problematical. The theory was rejected that the mere establishment of the possibility of parole was sufficient to create a liberty interest entitling any prisoner meeting the general standards of eligibility to a due process protected expectation of being dealt with in any particular way. On the other hand, the Court did recognize that a parole statute could create an expectancy of release entitled to some measure of constitutional protection, although a determination would need to be made on a casebycase basis,¹³⁰⁹ and the full panoply of due process guarantees is not required.¹³¹⁰ Where, however, government by its statutes and regulations creates no obligation of the pardoning authority and thus creates no legitimate expectancy of release, the prisoner may not by showing the favorable exercise of the authority in the great number of cases demonstrate such a legitimate expectancy. The power of the executive to pardon, or grant clemency, being a matter of grace, is rarely subject to judicial review.¹³¹¹

The Problem of the Juvenile Offender.—All fifty states and the District of Columbia provide for dealing with juvenile offenders outside the criminal system for adult offenders.¹³¹² Their juvenile justice systems apply both to offenses that would be criminal if committed by an adult and to delinquent behavior not recognizable under laws dealing with adults, such as habitual truancy, deportment endangering the morals or health of the juvenile or others, or disobedience making the juvenile uncontrollable by his parents. The reforms of the early part of the 20th century provided not only for segregating juveniles from adult offenders in the adjudication, detention, and correctional facilities, but they also dispensed with the substantive and procedural rules surrounding criminal trials which were mandated by due process. Justification for this abandonment of constitutional guarantees was offered by describing juvenile courts as civil not criminal and as not dispensing criminal punishment, and offering the theory that the state was acting as parens patriae for the juvenile offender and was in no sense his adversary.¹³¹³

Disillusionment with the results of juvenile reforms coupled with judicial emphasis on constitutional protection of the accused led in the 1960s to a substantial restriction of these elements of juvenile jurisprudence. After tracing in much detail this history of juvenile courts, the Court held in In re Gault¹³¹⁴ that the application of due process to juvenile proceedings would not endanger the good intentions vested in the system nor diminish the features of the system which were deemed desirable—emphasis upon rehabilitation rather than punishment, a measure of informality, avoidance of the stigma of criminal conviction, the low visibility of the process—but that the consequences of the absence of due process standards made their application necessary.¹³¹⁵

Thus, the Court in Gault required that notice of charges be given in time for the juvenile to prepare a defense, required a hearing in which the juvenile could be represented by retained or appointed counsel, required observance of the rights of confrontation and cross-examination, and required that the juvenile be protected against self-incrimination.¹³¹⁶ It did not pass upon the right of appeal or the failure to make transcripts of hearings. Earlier, the Court had held that before a juvenile could be “waived” to an adult court for trial, there had to be a hearing and findings of reasons, a result based on statutory interpretation but apparently constitutionalized in Gault.¹³¹⁷ Subsequently, the Court held that the “essentials of due process and fair treatment” required that a juvenile could be adjudged delinquent only on evidence beyond a reasonable doubt when the offense charged would be a crime if committed by an adult,¹³¹⁸ but still later the Court held that jury trials were not constitutionally required in juvenile trials.¹³¹⁹

On a few occasions the Court has considered whether rights accorded to adults during investigation of crime are to be accorded juveniles. In one such case the Court ruled that a juvenile undergoing custodial interrogation by police had not invoked a Miranda right to remain silent by requesting permission to consult with his probation officer, since a probation officer could not be equated with an attorney, but indicated as well that a juvenile’s waiver of Miranda rights was to be evaluated under the same totality-of-the-circumstances approach applicable to adults. That approach “permits— indeed it mandates—inquiry into all the circumstances surrounding the interrogation . . . includ[ing] evaluation of the juvenile’s age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him . . . .”¹³²⁰ In another case the Court ruled that, although the Fourth Amendment applies to searches of students by public school authorities, neither the warrant requirement nor the probable cause standard is appropriate.¹³²¹ Instead, a simple reasonableness standard governs all searches of students’ persons and effects by school authorities.¹³²²

The Court ruled in Schall v. Martin¹³²³ that preventive detention of juveniles does not offend due process when it serves the legitimate state purpose of protecting society and the juvenile from potential consequences of pretrial crime, when the terms of confinement serve those legitimate purposes and are nonpunitive, and when procedures provide sufficient protection against erroneous and unnecessary detentions. A statute authorizing pretrial detention of accused juvenile delinquents on a finding of “serious risk” that the juvenile would commit crimes prior to trial, providing for expedited hearings (the maximum possible detention was 17 days), and guaranteeing a formal, adversarial probable cause hearing within that period, was found to satisfy these requirements.

Each state has a procedure by which juveniles may be tried as adults.¹³²⁴ With the Court having clarified the constitutional requirements for imposition of capital punishment, it was only a matter of time before the Court would have to determine whether states may subject juveniles to capital punishment. In Stanford v. Kentucky,¹³²⁵ the Court held that the Eighth Amendment does not categorically prohibit imposition of the death penalty for individuals who commit crimes at age 16 or 17; earlier the Court had invalidated a statutory scheme permitting capital punishment for crimes committed before age 16.¹³²⁶ In weighing validity under the Eighth Amendment, the Court has looked to state practice to determine whether a consensus against execution exists.¹³²⁷ Still to be considered by the Court are such questions as the substantive and procedural guarantees to be applied in proceedings when the matter at issue is non-criminal delinquent behavior.

The Problem of Civil Commitment.—As with juvenile offenders, several other classes of persons are subject to confinement by court processes deemed civil rather than criminal. Within this category of “protective commitment” are involuntary commitments for treatment of insanity and other degrees of mental disability, alcoholism, narcotics addiction, sexual psychopathy, and the like. In O’Connor v. Donaldson,¹³²⁸ the Court held that “a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.”¹³²⁹ The jury had found that Donaldson was not dangerous to himself or to others, and the Court ruled that he had been unconstitutionally confined.¹³³⁰ Left to another day were such questions as “when, or by what procedures, a mentally ill person may be confined by the State on any of the grounds which, under contemporary statutes, are generally advanced to justify involuntary confinement of such a person—to prevent injury to the public, to ensure his own survival or safety, or to alleviate or cure his illness”¹³³¹ and the right, if any, to receive treatment for the confined person’s illness. To conform to due process requirements, procedures for voluntary admission should recognize the possibility that persons in need of treatment may not be competent to give informed consent; this is not a situation where availability of a meaningful post-deprivation remedy can cure the due process violation.¹³³²

Procedurally, it is clear that an individual’s liberty interest in being free from unjustifiable confinement and from the adverse social consequences of being labeled mentally ill requires the government to assume a greater share of the risk of error in proving the existence of such illness as a precondition to confinement. Thus, the evidentiary standard of a preponderance, normally used in litigation between private parties, is constitutionally inadequate in commitment proceedings. On the other hand, the criminal standard of beyond a reasonable doubt is not necessary because the state’s aim is not punitive and because some or even much of the consequence of an erroneous decision not to commit may fall upon the individual. Moreover, the criminal standard addresses an essentially factual question, whereas interpretative and predictive determinations must also be made in reaching a conclusion on commitment. The Court therefore imposed a standard of “clear and convincing” evidence.¹³³³

In Parham v. J. R., the Court confronted difficult questions as to what due process requires in the context of commitment of allegedly mentally ill and mentally retarded children by their parents or by the state, when such children are wards of the state.¹³³⁴ Under the challenged laws there were no formal preadmission hearings, but psychiatric and social workers did interview parents and children and reached some form of independent determination that commitment was called for. The Court acknowledged the potential for abuse but balanced this against such factors as the responsibility of parents for the care and nurture of their children and the legal presumption that parents usually act in behalf of their children’s welfare, the independent role of medical professionals in deciding to accept the children for admission, and the real possibility that the institution of an adversary proceeding would both deter parents from acting in good faith to institutionalize children needing such care and interfere with the ability of parents to assist with the care of institutionalized children.¹³³⁵ Similarly, the same concerns, reflected in the statutory obligation of the state to care for children in its custody, caused the Court to apply the same standards to involuntary commitment by the government.¹³³⁶ Left to future resolution was the question of the due process requirements for postadmission review of the necessity for continued confinement.¹³³⁷