The Fifth and Fourteenth Amendments to the U.S. Constitution state that the government may not “deprive any person of life, liberty, or property, without due process of law.” Federal law enforcement officials are bound by the Fifth Amendment’s Due Process Clause, while the Fourteenth Amendment extends it to state and local officials. The provision regarding “deprivation of liberty” protects the rights of individuals arrested and taken into custody, generally giving them the right to see a judge, request bail, and make other challenges to their detention. The Fifth Circuit Court of Appeals, whose jurisdiction includes Texas federal crimes, ruled last year that a county sheriff violated a woman’s Fourteenth Amendment due process rights by holding her for 96 days—more than three months—before allowing her to go before a judge. Jauch v. Choctaw Cty., et al., No. 16-60690, slip op. (5th Cir., Oct. 24, 2017). The case involved a civil lawsuit for deprivation of civil rights under 42 U.S.C. § 1983, but the holding affects future arrests in Texas and other Fifth Circuit states.
The courts have identified two main forms of due process. Procedural due process requires the government to notify a person of the charges against them, and to give them the opportunity to respond. Substantive due process is far more abstract and controversial. It protects various individual rights, including the rights identified in the First through Tenth and Fourteenth Amendments to the Constitution, the right to participate in “political processes,” and the rights of “discrete and insular minorities.” United States v. Carolene Products Co., 304 U.S. 144, 152 note 4 (1938). The U.S. Supreme Court has cited substantive due process in decisions finding that the government may not infringe upon certain rights not expressly identified in the Constitution, such as the right to privacy. See, e.g. Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973); Lawrence v. Texas, 539 U.S. 558 (2003).
According to the Fifth Circuit’s opinion in Jauch, a grand jury indicted the plaintiff for the sale of a Schedule IV controlled substance in January 2012. The indictment was based on “the word of a confidential informant.” Jauch, slip op. at 1. A capias warrant was issued on the same day in Choctaw County, Mississippi. The plaintiff was pulled over for a traffic infraction that April, and she was taken into custody because of the capias. She reportedly cleared the traffic offenses within days, but she was told by the sheriff that she could not see a judge “until August when the next term of the Circuit Court commenced.” Id. at 2. She remained in custody for 96 days. Several months later, the prosecutor moved to dismiss all of the charges, and no one has since disputed “that [the plaintiff] was innocent all along.” Id.