Wealth-based discrimination: there ought to be a law

I was part of the Housing Group at the Rochester Anti-Poverty Initiative’s planning session last year. We recommended support for a law protecting residents in the City of Rochester against unfairness in housing based on “source of income.” (So, advertisements that say, “No Section 8 NEED apply” would be prohibited. I was very glad to see Adam McFadden, a councilman, take up that cause. My recommendation on the Anti-Poverty Housing Team went even further.

I thought that people should be protected against ALL income-based discrimination.

Three examples:

EXAMPLE 1. When someone gets a traffic ticket in the City of Rochester, they go to the city traffic bureau, which has no district attorney assigned to it, and no plea bargain process… in the suburbs, if you get a traffic ticket you can negotiate with the Assistant District Attorney assigned to that court, or get a lawyer who does the same, and the points and fine are decreased. This disproportionately and negatively effects poor people who are more likely to reside and drive in the city where they live. It is income-based discrimination. Mayor Lovely Warren has pointed out the discrepancy and tried to change it (although I’m not sure why she didn’t just order a District Attorney assigned to the current court): http://www.democratandchronicle.com/…/mayor-lovel…/85250224/

EXAMPLE 2. When bail is required for people who are not a flight risk, more poor people stay in jail after arraignment than their wealthier counterparts, and lack of money for bail, and being in jail, makes it harder for them to build a case with their assigned counsel. It is income-based discrimination.


A judge in Houston struck down a bail system because it was “wealth based discrimination.” The opinion is apparently over 100 pages. That link is a summary, but I hope the Memo and Order are published soon and explain the crux of why something no one legally considers a protected class (lack of income) is unconstitutional and might be worthy of protective status after all: I think possibly it is because of outcomes of wealth based discrimination.

In outcomes, wealth-based discrimination is the dressed up exterior of structural racism.

I am defining structural racism as all those systems in place that disproportionately effect African Americans for whom future dreams (such as home ownership, quality education for their children, low victimization and avoidance of the criminal justice system) are hampered by systems and structures that have nothing to do with personal responsibility, and everything to do with those unequal systems in place. The structurally racist bail system puts poor people behind bars faster and more often than their wealthier counterparts–and poor people are also disproportionately African American.

EXAMPLE 3. State education funding formulas in New York State give too much money to rich districts and not enough money to poor ones. That’s true because property taxes pay for education, and so the rich can help themselves first and most of all. It’s also true because state funding that makes up the difference is doled out unfairly. Politicized, per pupil funding doesn’t work. When the City school needs a new boiler so the kids have heat and the Fairport school needs nothing after the property taxes come in, but they both get funded by the State, that is income-based discrimination. Both property tax funding and unfair state funding formulas account for an income-based discrimination that looks precisely like segregation in Monroe County schools, which is undeniable.

See http://www.democratandchronicle.com/…/new-york-st…/89306728/

“Wealth-based” or “lack of income-based” discrimination goes much, much further than current discussions of “source of income” local legislation advocated by Adam McFadden and others. Instead of saying to landlords, “you can’t write No Section 8 in your advertisements for housing” legislation in the city AND the County forbidding “Lack of income” discrimination could give all of us the framework required to, frankly, deplete ALL the current mechanisms by which structural racism (in housing, criminal justice, education) currently hides and thrives.

Free speech and democracy


 This is a Brief of Whitney v. California, a 1925 case about the Free Speech of a Communist, Charlotte Whitney.  In later cases before the Supreme Court, the right of free speech would be strengthened more than the “imminent lawless action” test used on Charlotte Whitney Here, the mere idea that Charlotte Whitney’s speech advocated a clear and present danger, and that under the state Syndicates law by which she was convicted, her speech had a bad tendency to create an imminent lawless action, was found to be quite enough to uphold her conviction.  Free speech was valuable but Syndicacy was upheld, even though it outlawed mere advocacy of violence.  Nothing clear or present was required of the danger complained of in the law.

The Court would later require intent, imminence, and the likelihood the speech presented a clear and present danger, to overcome a guarantee of free speech. That, in fact, is the test we use today to determine if the speech ought to be protected.  

Justice Hugo Black would explain that stronger test in the Brandenburg v. Ohio case 395 U.S. 444 (1969).  The Whitney case of the 1920s, whose “bad tendency to create an imminent lawless action” free speech test was shored up in the 1960s, is interesting for three reasons, even though it hs been overruled  since 1969:

  1. The high-minded idealism described by Brandeis explains how free speech supports democracy
  2. The story of a Communist Labor Party leader who went to prison for politics in America is tragic and should not be forgotten
  3. The seeds of judicial activism evident here..it is an example of high minded ideals outlined that aren’t actually in the “black letters on parchment” and therefore Constitutionalists hate to see the Court use those ideals).

The issue was whether the communist, Charlotte Whitney, could be vindicated under the 14th Amendment substantive due process right of free speech, or was she criminally liable under the California Syndicalism statute?

The rule: the Fourteenth Amendment allowed the federal government to protect free speech unless the speech showed a “bad tendency to create an imminent lawless action.”

The explanation for the rule

The Court relied on what our forefathers intentions were in drafting the Constitution coupled with the values (the Founders held) themselves.  These noble ideals gave the Court their authority to uphold the value of free speech in a federal court.

Brandeis, in a concurring opinion of the Court, explained  those noble terms…..that is, why free speech was valuable to democracy:
“Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government. [n2] They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.” Justice Brandeis concurring opinion in Whitney v. California, 274 U.S. 357, available at https://www.law.cornell.edu/supremecourt/text/274/357


Applying the rule:

The Court explained, that in the case of the Fourteenth Amendment exception (the clear and present danger test),

“Whenever the fundamental rights of free speech and assembly are alleged to have been invaded, it must remain open to a defendant to present the issue whether there actually did exist at the time a clear danger; whether the danger, if any, was imminent, and whether the evil apprehended was one so substantial as to justify the stringent restriction interposed by the legislature.”


But, the Supreme Court distinguished between the law and the application of the law.  They found a way to be distressed about the liberty interest– the guarantee of free speech– without actually freeing the Communist in the case.



Charlotte Whitney was later pardoned because of Brandeis’s concurring opinion (so don’t call it dicta!). The law against Syndicalism was not struck down.  Democracy continued to slump along.  The right to free speech is the thing that got stronger than Charlotte Whitney saw the blessing in….:  for, now, to foreclose an Americans right to free speech, that speech most be proven to be intended to present a clear and present danger that is imminent and likely to occur.


Post script

The devil’s in the details…

Whitney’s communism was maybe why it took the Court so long to get serious about the test they used to judge when to set down the First Amendment right, and when to keep it as a free pass.  The Brandenberg Test that overruled Whitney v California in the 1960s, (which finally required intent, imminence, and likelihood to present a clear and present danger) offered so much more protection to people who want to speak their mind and their political speech is perhaps frightening and distasteful for most.

Brandenberg v. Ohio was written in the context of a member of the KKK, Clarence Brandenberg, who had been convicted for Syndicalism, the same crime Charlotte Whitney went to prison for. Brandenburg v. Ohio 395 U.S. 444 (1969), but this time, in the context of speech opposing Blacks and Jews.

Interestingly, and maybe it is just the kind of sin that the world gives a man a chance to atone for later, Justice Black, the civil libertarian and absolutist First Amendment Justice who wrote the Brandenberg opinion that gave such broad new protection to First Amendment speech, had briefly been a member of the KKK. (see http://www.pulitzer.org/prize-winners-by-year/1938 for a list of Pulitzer Prize winners, one of whom was Ray Spriegle for his series about Hugo Black in the Ku Klux Klan. Maybe Justice Black was sympathetic and free speech was along for the ride…or maybe he saw his chance for redemption.


Trump and the Death of Democracy

I have focused on the sexism, racism, homophobia, and xenophobia that is deeply and expressly embedded in Trump’s rhetoric, and the bias he tuned into, in many supporters, to become elected. This morning I have read the wise words of Michael Lerner, a rabbi, who I’ll paraphrase this way: The Trump supporters really are disgusted, fed up, angry. . . they keyed into THAT part of Trump’s message, rather than where he pointed the finger. They are fueled by the pain of believing we live in a meritocracy. (see <a href="http://“>THIS ARTICLE in the NY Times)

Trump supporters who belive in meritocracy mythology believe if one works hard and is smart, one is rewarded accordingly, if only the government would stop getting in the way of that ideal. So, they play by the (extensive) rules– they always did–and they have seen, in response, their income is less, their debt is high, and politicians have sold them out. They are losing bigly in this country. Trump may be sexist, racist, homophobic, and xenophobic, but at least he seemed to understand WHY that message of hate was halfway palatable to some of them. What fueled the howling anger at the liberal elitist DC politics as usual was not hatred of the Other. It was a dream of a fair shot denied, and if the “Other” (the vulnerable and weak) were taking the brunt of the blame, that was unfair. But at least someone was pissed alongside them.

My solidarity with my shaken friends prompts my own fury in the days after the election. But I understand already that my tormented rage does not do me, personally, any favors. I have alienated my friends, family, and co-workers. I am risking my reputation for respectful debate. Yet I am being as moral as I can.

To that end, and by means I can live with, today I begin a journey of understanding democracy better.

The rhetoric Trump used that runs counter to democratic values.

On the First Amendment right to free press: Twitter statement to The Wall Street Journal: ‘They better be careful or I will unleash big time on them’

On the First Amendment right to freedom of religion:
Trump told Fox News that the U.S. government should close mosques where “some bad things are happening.” He said, “Nobody wants to say this and nobody wants to shut down religious institutions or anything, but you know, you understand it. A lot of people understand it. We’re going to have no choice. Some really bad things are happening.”

On the Fourth Amendment right to freedom from unreasonable search and seizure and the Fourteenth Amendment due process guarantee (against, for example, racial profiling by police)
“Our local police — they know who a lot of these people are. They are afraid to do anything about it because they don’t want to be accused of profiling,” Trump said on Fox News on Monday. Trump pointed to how Israel used profiling and “done an unbelievable job.”

On the Free Exercise and Establishment Clauses of the First Amendment, and the Fourteenth Amendment’s Equal Protection Clause, which forbids states from treating individuals differently based on unalterable characteristics, such as race, nationality, and gender. The Supreme Court has imposed the same obligation on the federal government through the Fifth Amendment:
Trump promises ‘A total and complete shutdown of Muslims entering the United States’ .

On the Eighth Amendment prohibition against cruel and unusual punishment and The Geneva Convention global illegality of torture:
“We’re fighting a very politically correct war,” he said “and the other thing is with the terrorists: You have to take out their families.”).

‘I’d bring back a hell of a lot worse than waterboarding’

On free elections (accepting election result) “I would like to promise and pledge to all of my voters and supporters and to all of the people of the United States that I will totally accept the results of this great and historic presidential election,” Trump said, adding, “If I win.”

Trump’s rhetoric runs counter to democracy because it showcases a total disregard for the Constitution…not merely those parts of it rendered possible through a “living document” judicial activism ideology, but even those parts of the Bill of Rights that Originalists also claim as literal to the document. The democratic ideals enshrined there are at stake in the next four years. Trump’s ascendancy was like finding out your country has a terrible illness. It is a time to learn, to study the underpinnings of democracy, and to use everything learned in the fight against the death of democracy.

1. FN1

2. FN2

4. FN4


6. FN6
7. FN7

8. FN8

Judges in Monroe County, New York (7th Judicial District)


If you click on the picture, you should be able to enlarge it and scroll through the data collected.

The table shows when judges in the 7th judicial department are up for re-election (Monroe County and surrounding area, Rochester NY proper included). I made a note of relevant information about each. At the top of the table, you can see the three people running this year; the Republican candidate has a website, but the other two (Democrat and Working Party), well; crickets.

Every candidate in red is Republican.

People who are not chosen by their Party, cannot get on the ticket for election. Some people find that unfair. But the Supreme Court unanimously held in 2008 in Board of Elections v Lopez Torres that people running do not have the right to a “fair shot” at doing so.

See https://www.law.cornell.edu/supct/html/06-766.ZS.html at (c)

So, while this table showcases that when a party supports a candidate, they then have a chance to win the election; it more clearly showcases that in Monroe County, running as anything other than Republican is a waste of time.

Still, I persist in pretending that there exists here a democracy nurtured by an informed public in the political process. The media has decided to focus on a freak show contest between grotesque choices; one clearly worse than the other, but both terrible. In the meantime, I present to you your local judicial information.

This is a starting point; you are likely young and better at the internet than me. Get to it.

Know Your Rights 101

Terry stops

Terry v. Ohio 392 US 1 (1968)

Police can briefly detain if reasonable suspicion that suspect is involved in criminal activity

Pat downs

A limited search of outer garments (pat down) is permissible if police have a reasonable and articulable suspicion that suspect is armed and dangerous.

Standard of proof: totality of the circumstances

Suspect information requests

Under Terry and also under Hibel v Sixth Judicial Dist. of Nevada 544 US 174 (2004), requiring a suspect’s name, address, explanation of conduct is allowable,  if the officer has a reasonable suspicion that the suspect has committed or is about to commit a felony or misdemeanor.

If the suspect is then released, with no charges filed, any info collected cannot be electronically databased.

Invoking the right to silence

You still have the right to remain silent, but now, you must SAY you are invoking your right to silence. In 2013, in “Salina vs Texas” the Court held that: “Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question.” In other words, you must now specifically invoke your 5th amendment right to “remain silent” or your silence can and will be used against you in court.

Photos and video

Taking photos and video in public spaces is allowable, if you are lawfully present.  You have the right to photograph anything in plain view.

If you are on private property, you must obey the property owner’s wishes (castle doctrine) about photography, or be subject to trespass.

Police may not confiscate video or photos unless they can show exigent circumstances (possible destruction of criminal evidence while they try and obtain a warrant: for example, such as taking a cellphone so video can’t be deleted).

Destruction of video or photos is never allowable and may constitute evidence tampering and interfering with a police investigation.

If while taking photos and/or video, you interfere w/police operations, police may lawfully ask you to cease activities.

The right to contest an unlawful search, commonly called “standing”

If you are in a vehicle or in a home of someone else, and a weapon or drugs are recovered, all persons there may be arrested for the illegal evidence.  If you believe the search was improper (no probable cause and no exception) you must have “standing” to complain about the search and invoke “fruit of the poisonous tree” to get the evidence declared inadmissible.  Some attorneys will say only the owner of the car/house has such standing.  Your attorney may be able to get you standing based on an improper “seizure” rather than an improper search.  If you are handcuffed or are under the impression you may not leave and you are being detained, then you may have standing based on the illegal seizure.

What Exactly is Due Process?

Palko v Connecticut and Adamson v California set out some of the first contours of the apparently simple phrase “Due Process.”[1]  This essay will explain each case.  It will then summarize many of the Constitutional rights the Fourteenth Amendment’s “Due Process” clause encompasses today.

Palko v Connecticut[2]


Palko was indicted for murder and a jury found him guilty.  He was sentenced to prison for life.  Then, the State of Connecticut appealed based on an 1886 Connecticut statute which permitted appeals by the state based upon questions of law arising in the trial of criminal cases, in the same manner as if made by the accused.[3]  The Connecticut court appealed to found that there had been errors of law (excluding a confession, excluding cross-examination evidence for impeachment purposes, and improperly charging the jury on the difference between first and second-degree murder).[4]  The defendant was brought to trial again, which he objected to, citing the due process clause of the Fourteenth Amendment, essentially because the effect of the new trial was double jeopardy for the same offense. His objection was overruled and the jury this time returned a verdict of murder in the first degree.  The court sentenced him to death.  The Connecticut high court affirmed the verdict, and Palko appealed to the Supreme Court.  There, he lost as well.


The issue before the Supreme Court was whether the due process clause of the Fourteenth Amendment should be taken as embodying the prohibitions of the Fifth Amendment.  The Fifth Amendment applies to the federal government, while the Fourteenth Amendment extends protections to all State courts as well.[5]

The court asked, Does [exposing the defendant to this type of hardship] violate those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions?



Rule and Holding

The Court answered “No,” explaining that the state “asks no more than this, that the case against him shall go on until there shall be a trial free from the corrosion of substantial legal error.”

On the one hand, the Court gave some examples of what would lie at the heart of the concept of ordered liberty, including freedom of speech, freedom of the press, free exercise of religion, and the right to counsel.


On the other hand, the Court explained that it would be “narrow or provincial” to expect that the right to a trial by jury and the right to an indictment before prosecution of a defendant could begin, were “of the very essence of a scheme of ordered liberty” or “that to maintain that a fair and enlightened system of justice would be impossible without them.”  The Court found that immunity from compulsory self-incrimination was similarly non-fundamental to the concept of due process. The explanation the Court gave as to what was part of due process in the case law and what was not, was simply, “It has been dictated by a study and appreciation of the meaning, the essential implications, of liberty itself.”  The test of whether something in the Bill of Rights was absorbed into the Fourteenth Amendment’s Due Process clause was simple: if neither liberty nor justice would exist if they were sacrificed, then the concept must be part of due process.


Palko v Connecticut was overruled in 1969 in the case Benton v Maryland, and double jeopardy was henceforth applied to the States through the Fourteenth Amendment.  Still, Palko remains at the gate of a discussion of due process, and some of the reasoning is applied even today.

Post script:  Palko opened my eyes to the idea that weak cases can contain some real strengths.  Don’t like the central holding? Maybe it will get overruled later (this one was).  In the meantime, mine the lesser holdings and the dicta for the way the Court thinks, the foundations of its reasoning, and the assumptions that will help a client now.  This was a 1937 case which explained confidently many necessary elements of Due Process.  Defendants since then have been able to rely on this badly held case, that they have a right, for instance, to counsel. 


The other case that helps define due process is Adamson v California.[6]


Adamson was convicted of murder in the first degree and sentenced to death.  He argued on appeal to the highest court in California, and then, when that court affirmed the conviction, to the Supreme Court,  that the law in California violated the Fourteenth Amendment’s due process clause. Adamson argued that because California law allowed the court and counsel to comment upon the failure of the defendant to testify in his own defense, it was unconstitutional.  The California law stated that when a defendant affirmed that he had previous convictions, no allusion to those convictions could be made by the prosecutor.  Yet, if the defendant took the stand later to deny or explain away any other evidence that had been introduced, the commission of the previous crimes could be revealed to the jury on cross-examination to impeach his testimony.  This, the Supreme Court commented, “forces an accused who is a repeat offender to choose between the risk of having his prior offenses disclosed to a jury or of having it draw harmful inferences from uncontradicted evidence that can only be denied or explained by the defendant.”  Adamson had two arguments:

1)      The Fifth Amendment states that no person shall be compelled in any criminal case to be a witness against himself and this right is so fundamental as to extend it to the Fourteenth Amendment, making it applicable in State courts too.

2)      The Due Process clause of the Fourteenth Amendment invalidates the California law because comment on failure to testify is permitted, and he was forced to forego testifying because of the danger of disclosure of his past convictions on cross-examination, and the presumption of his innocence was infringed by shifting the burden of proof to Adamson in permitting comment on his failure to testify.


The Supreme Court wrote in dicta that if in federal court, such a law would assumedly infringe on the defendant’s Fifth Amendment right against self-incrimination.  However, the Court did not hold that such a right proceeded to State courts via the Fourteenth Amendment’s Due Process clause. 


The Court explained that the Bill of Rights when adopted, were for the protection of the individual against the federal government.  When the Fourteenth Amendment was adopted, that changed, but not all at once, and not entirely including everything in the Bill of Rights.  In Twinings v New Jersey, the Court reasoned, the right against self-incrimination was determined to be beyond the scope of the Fourteenth Amendment’s privileges and immunities clause, since Palko and Twinings together stood for the proposition that protection against self-incrimination is not a privilege or immunity of national citizenship. The Court wrote that the Fourteenth Amendment did not extend the right against self-incrimination as part of defendant’s right to a fair trial, which was a part of due process.  The rationale of the Court was that “the due process clause does not protect, by virtue of its mere existence, the accused’s freedom from giving testimony by compulsion in state trials. . .” citing Twinings v New Jersey once more, and citing Palko v Connecticut.[7]  The Court commented that silence could properly infer guilt, because the prosecutor’s evidence may be of such factual matters “such as are necessarily in the knowledge of the accused.  In that case a failure to explain would point to an inability to explain.”  (Emphasis added).  This wobbly inference—and it is wobbly, for there are many reasons why a defendant may choose to remain silent; this case illustrates only one—allowed the Court to continue “a state may control such a situation in accordance with its own ideas of the most efficient administration of criminal justice. . .”  Then, did California law “control such a situation” in a Constitutional manner?

The Court held:

1)      Due Process or other grounds did not invalidate a State statute that authorized comment on the failure to explain or deny adverse testimony, and this did not amount to shifting the burden of proof from the prosecutor to the defendant to go forward with the evidence.

2)      Failure of the accused to testify is not an admission of the truth of the adverse evidence.

3)      Instructions told the jury that the burden of proof remains solely upon the state and the presumption with the accused.

4)      Comment on failure to deny proven facts does not supply any element of truth of guilt, but directs attention to the strength of the prosecutor’s case or the weakness of the evidence for the defense.


Thus, the Court agreed with the highest court in California that the Fourteenth Amendment’s Due Process clause was not implicated by Adamson’s catch-22 (to explain himself, and be found to lack credibility for failure to ‘own’ past misdeeds properly, or to be silent and subject himself to the inference that his case is weak).

Post script: How does the Court so easily say in one paragraph that “failure to explain would point to an inability to explain” and then hold that California law is proper because “failure of the accused to testify is not an admission of the truth of the adverse evidence”?  How can the Court be apparently aware of its own prejudice (silence is probative evidence in their minds) yet by the end of the Opinion, be blinded by the fact that juries, nudged in the very same direction by prosecutors, will be prejudiced in the same way?  What’s the point of a law if no one is paying attention to it?

A Summary of Due Process concepts today

These are some of the questions that the Court has used to define the contours of the due process clause of the Fourteenth Amendment.

  • Is the right among those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions?” (Duncan citing Powell v. Alabama)[8]
  • Is it basic in our system of jurisprudence?” (Duncan)[9]
  • “Did the Framers of the Fourteenth Amendment intend its due process clause to draw within its scope the earlier amendments to the Constitution?” (Rochin)[10]
  • “Is it fundamental to an ordered concept of liberty?” (Palko)[11]
  • “Does the conduct shock the conscience?” (Rochin)[12]
  • “Is the conduct so brutal and so offensive to human dignity that it offends the community’s sense of fair play and decency?” (Rochin)[13]
  • Is it a fundamental right, essential to a fair trial?” (Duncan, citing Gideon v. Wainwright)[14]
  • Has the government purpose to control or prevent activities constitutionally subject to state regulation been achieved by means which sweep unnecessarily broadly and thereby invade the areas of protected freedoms? (Griswold)[15]
  • Is it a fundamental right, essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants? (Duncan)[16]


1)      No coerced confessions (Rochin)[17]

2)      Right to counsel (Palko)[18]

3)      Freedom of speech (Palko)[19]

4)      Freedom of press (Palko)[20]

5)      Freedom of religion (Palko)[21]

6)      Right to Privacy (Griswold)[22]

7)      Right to compensation for property taken by the State (Duncan)[23]

8)      The Fourth Amendment right to be free from any unreasonable search or seizure (Duncan)[24]

9)      The right to have any evidence excluded from trial which was illegally seized (Duncan)[25]

10)  The right to be free from compelled self-incrimination (Duncan)[26]

11)  The right to a speedy and public trial (Duncan)[27]

12)  The right to confrontation of opposing witnesses (Duncan)[28]

13)  The right to compulsory process for obtaining witnesses (Duncan)[29]

14)  Right to a jury in all those cases where a jury is required in federal court (Duncan)[30]


 I wrote this because I loved Due Process before I ever knew what it meant.  I had a Criminal Justice professor say to my class, “I think people who want to be defense attorneys are very, very interested in Due Process.” I knew it had to do with the Constitution, and with fairness.  Hopefully, this essay has made a highly theoretical (and incredibly discrete topic, on a case-by-case basis) one that my reader understands a little better, as I do, after writing it.





[1] Weinreb, Lloyd. Leading Constitutional Cases on Criminal Justice, Chapter headings for “Due Process” begins with these cases.

[2] Palko v. Connecticut, 302 U.S. 319, 58 S. Ct 149 (1937)

[3] See FN 1 Palko v Connecticut, 302 U.S. 319, 58 S. Ct 149 (1937) citing Sec. 6494 Appeals by the state in criminal cases.

[4] Palko v Connecticut, 302 U.S. 319, 58 S. Ct 149 (1937)

[5] The Fourteenth Amendment reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of 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 any person within its jurisdiction the equal protection of the laws.”

[6] Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672 (1947)

[7] Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672 (1947) citing Twinings v. New Jersey, 211 U.S. 78, 99-114; and citing Palko v. Connecticut, 302 U.S. 319, 323 (1937).

[8] Duncan v. Louisiana, 391 U.S. 145 (1968) citing Powell v. Alabama, 297 U.S. 45, 67 (1932).

[9] Duncan v. Louisiana, 391 U.S. 145 (1968)

[10] Rochin v. California, 342 U.S. 165 (1952)

[11] Palko v. Connecticut, 302 U.S. 319, 323 (1937)

[12] Rochin v. California, 342 U.S. 165 (1952)

[13] Id.

[14] Duncan v. Louisiana, 391 U.S. 145 (1968) citing Gideon v. Wainwright, 372 U.S. 335 (1963)

[15] Griswold v. Connecticut, 381 U.S. 479 (1965)

[16] Duncan v. Louisiana, 391 U.S. 145 (1968)

[17] Rochin v. California, 342 U.S. 165 (1952)

[18] Palko v. Connecticut, 302 U.S. 319, 323 (1937)

[19] Id.

[20] Id.

[21] Id.

[22] Griswold v. Connecticut, 381 U.S. 479 (1965)

[23] Duncan v. Louisiana, 391 U.S. 145 (1968)

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.