Due Process and the 14th Amendment

Due Process and the 14th Amendment

Which of the protections available to criminal offenders through the Bill of Rights do not currently apply to the states?

"Like the rest of the Bill of Rights, the Fourth Amendment originally only applied in federal court. However, in Wolf v. Colorado, 338 U.S. 25 (1949), the U.S. Supreme Court ruled that the rights guaranteed by the text of the Fourth Amendment…apply equally in state courts via the Fourteenth Amendment, which guarantees to the citizen of every state the right to due process and equal protection of the laws" (When the Fourth Amendment applies, 2013, Find Law). Although originally the Bill of Rights only governed actions of the federal government, through the incorporation clause the Bill of Rights has now been held to apply to all forms of government, not just at the federal level.

The exclusionary rule is the one exception to this general principle, given that the "Fourth Amendment only protects against searches and seizures conducted by the government or pursuant to governmental direction" (When the Fourth Amendment applies, 2013, Find Law). In other words, investigations by private individuals -- both investigators and laypersons -- are not restricted by the Fourth Amendment and these persons are not prohibited from conducting searches and seizures without probable cause (When the Fourth Amendment applies, 2013, Find Law). Also, the person must have a reasonable expectation of privacy to be protected by the Fourth Amendment -- in other words, items that are lying in plain view, or emails sent on a work computer are not protected under either state or federal guidelines (When the Fourth Amendment applies, 2013, Find Law).

What is the difference between procedural and substantive protections for criminal offenders in the Bill of Rights?

"Substantive rights are those general rights that reserve to the individual the power to possess or to do certain things, despite the government's desire to the contrary. These are rights like freedom of speech and religion. Procedural rights are special rights that, instead, dictate how the government can lawfully go about taking away a person's freedom or property or life, when the law otherwise gives them the power to do so" (Substantive due process, 2013, Stanford University Law School). The Fourteenth Amendment prohibits persons from being deprived of life, liberty, or property without due process (i.e. without a proper trial). However, the Supreme Court's interpretation of the clause has been broadened to protect substantive rights, given that the idea that due process must "be used whenever the government is punishing a person or otherwise taking away a person's life, freedom or property…also guarantee(s) that a person's life, freedom and property cannot be taken without appropriate governmental justification, regardless of the procedures used to do the taking" "( Substantive due process, 2013, Stanford University Law School). In other words, even if a trial is fair and all of the rights of the accused are observed, if the law is unjust under which the person's life, freedom, and property is extracted, then this is still unconstitutional.

Which of the protections available to criminal offenders in the Bill of Rights are procedural and which are substantive?