In some instances, the government may have deprived a person of life, liberty, or property without following any form of procedure. Other instances, where a governmental unit has followed some sort of a procedure, present more difficult questions for courts, which must consider whether the procedures were adequate for the protection of the rights involved. In this context, due process is concerned only that the governmental actor followed a fair decision-making process and not that the government reached a fair result.
Due process basically requires that a person who is deprived of a recognized right must be given some sort of notice and an opportunity for a hearing on the government’s action. Where individual rights are affected by legislation, the publication of a statute is sufficient to provide notice to all individuals. On the other hand, an action by an agency or a court requires notice that will ensure that interested parties will, in fact, become aware of a proposed action.
At a minimum, a person who will be deprived of a right is entitled to a fair decision-making process by an impartial decision-maker. However, rather than establish a single rule that all governmental bodies must follow in terms of the specific procedures that are employed during a hearing, courts instead balance various interests when determining what procedures that a governmental entity must use. The Supreme Court in Mathews v. Eldridge (1976) explained these factors as follows: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probative value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”
The Supreme Court has continued to adhere to the balancing test announced in Mathews, although this test does not require the government to provide a formal adversarial proceeding when it deprives a person of a right. In Wilkinson v. Austin (2005), the U.S. Supreme Court reviewed a case where prisoners were transferred from a state penitentiary to a socalled “supermax” facility, which was reserved for the most dangerous criminals. The state adopted an informal, nonadversarial procedure for determining which inmates would be transferred. Inmates received notice of their transfer as well as the factual basis for their transfer. Moreover, inmates had an opportunity to rebut accusations, and multiple levels of review were available for an appeal. After stating that the Mathews test still constituted good law, the Court determined that these procedures were adequate to provide due process.