Much Ado About Due Process

Yep. That’s my mug shot.

I don’t enjoy talking about it but I will today because: 1. it is one of the best, most badass photos I’ve ever had taken of me 2. the current battles over Constitutional law may not seem to impact you but they do.

The photo was taken when I was, let’s just say, a bit younger and I was being booked in NYC’s infamous “Tombs.” I had been arrested for marijuana possession and resisting arrest. If you know me at all, you just guffawed at those charges and you should. I had not been carrying/doing any drugs (cuz “Catholic Guilt and Just Say No”) and I had not resisted an officer of the law (cuz “130 pounds soaking wet and brother of an FBI agent”). I spent the next year of my life clearing my name in court and running up an enormous legal bill that I knew I could never pay. But, I was guaranteed the opportunity to respond to the charges, face my accusers, and make my case. What the police officers involved said was not taken as gospel; they had to prove their case and back up their lies…I mean, their version of the story. I was found “not guilty” in a trial and was able to sue the city for false arrest and get my legal bills paid. The reason I do not have a record today and my life was not irreparably damaged is because of the Due Process clause.

Hold your hats, kiddos, time for some Schoolhouse Rock action! As guaranteed by our Constitution under the Fifth Amendment, no one can be deprived of life, liberty, or property without fair legal procedures. Citizens, green card holders, even undocumented immigrants are entitled to some forum to respond to accusations and evidence. The bar is much higher for citizens but one of the bedrock beliefs of the United States…heck, one of the primary reasons for our Revolution against the British…is the primacy of due process. The founding fathers felt very strongly about it; go read the Federalist Papers Nos. 10, 81-83. I’ll wait. Due Process is as core to the idea of the United States as baseball and apple pie and conspiracy theories.

When our government has turned its back on these values, has suspended due process, we have ended up with horrors like the internment of Japanese-Americans in prison camps during WW 2. And now, the current administration is doing it again.

You’ve heard the stories. Venezuelan gang members deported to a foreign prison, Visa holders scooped up at airports and interrogated, etc. And you think, well good. I don’t want dangerous criminals on the street. I don’t want terrorist sympathizers to have green cards. Stop wasting time in courts and send them away. But in many of these cases, there has been no legal process, no evidence provided, no hearing scheduled, no charges filed. The word of the police and the government is taken at face value and left unquestioned.

The crazy thing is, in particular, the due process part of our immigration law is a very low bar to meet. To my understanding (and as always correct me if I’m wrong, my lawyer friends) it does not require a trial. The government just has to show an immigration judge evidence and the judge can sign off. But recently, no legal process was followed. The government did not show or prove anything in an official procedure; they just collected people and sent them out of the country, simply SAYING that these people were gang members or pro-terrorist or some other reason.

Which circles us back to my story. I was picked up by the police and falsely accused. They made up a resisting arrest charge to cover up their rough treatment of me. I was one of 150 men in the “Tombs” that night and I was innocent. It is not a stretch to imagine that another of those 150 men was innocent, as well. We can charitably say that police might just make mistakes.

Or imagine if perhaps a police officer thought I just “looked wrong,” say they looked at me and thought I was gay and arrested me for no other reason than that bias. Without due process, I’d have no chance to ask for help and clear my name. Or imagine if I perhaps had spoken out against the President, written Facebook posts disagreeing with his policies (I know, it's a stretch), even if I said things you may disagree with and find horrible, if I had been picked up by the FBI for simply being on a list of dissenters but had committed no crime, I would have no way to seek justice. And my life would be forever ruined.

So, among 240 or more men on flights to El Salvador, if even ONE man among those collected and deported and placed into a horrific mass prison was not a violent criminal or gang member—which seems likely, just look at the headlines in the last few days as relatives search for their loved ones—he would have had no chance to say so.  And without the guarantee of due process, we would never know. Without due process, his life, my life, YOUR life, would be ruined. Without due process, we are not America.