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From the passage of the Constitution to the Civil War, criminal justice was considered
a local affair. The Bill of Rights extended protection against only the federal, not state,
government. The Fourteenth Amendment's due process clause changed that.
Courts, however, defined due process differently. Some decisions emphasized
procedural due process, contending that due process guarantees fair procedures for
deciding cases. The question then became which fair procedures are guaranteed. The
Bill of Rights lists several. Were they due process guarantees?
Experts differed. Some claimed the Bill of Rights codified a specific list of procedures
to protect people against governmental excesses and the Fourteenth Amendment
requires all these procedures apply to the states.
Others claimed that if due process was shorthand for the Bill of Rights, the
Fourteenth Amendment due process clause is wasted language, because the Fifth
Amendment already includes a due process clause. They the meaning of due process
should evolve to meet the needs of an ever-changing society.
Until the 1930s, the Supreme Court refused to apply the Fourteenth Amendment due
process clause to state criminal proceedings. After World War I came the rise of
totalitarian governments in the late 1920s and 1930s which gave rise to American
suspicions of arbitrary government. In 1932, the U. S. Supreme Court ruled in
Powell v. Alabama that the state of Alabama had denied the defendant's due
process during their trial. In Brown v. Mississippi (1936), the Court ruled the
defendants were denied due process when confessions obtained by brutality and
1 5 P a g e C o g n e r o b y P o w e r e d
Chapter 02: CRIMINAL PROCEDURE AND THE CONSTITUTION
CRIMINAL PROCEDURE AND THE CONSTITUTION
torture were used against them.
These two cases established the fundamental fairness doctrine. According to this
doctrine, due process commands states to provide the basics of a fair trial. These
include (1) giving defendants notice of the charges against them and (2) assuring a full
hearing before conviction. However, even after these two cases, the Supreme Court
refused to hold that the Bill of Rights now automatically applies to state criminal
justice.
During the 1940s and 1950s, all the Justices agreed the Bill of Rights imposes limits on
state criminal procedures, but they disagreed about what those limits are. This view
was opposed by Justices who believed in the total incorporation doctrine. They believed
that all the provisions of the Bill of Rights should be incorporated through the due
process clause of the Fourteenth Amendment and applied to state criminal justice
proceedings. A third approach, selective incorporation, took a middle ground. Under
this doctrine, some rights in the Bill of Rights should be incorporated through the
Fourteenth Amendment and others should not. This doctrine was adopted by the Court
in the 1960s. Gradually, on a case-by-case basis, most of the protections of the Bill of
Rights were selectively incorporated and applied to the states.
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