March 3, 2025--Due Process Institute submitted comment on the Commission’s January 2025 proposed amendments relating to Supervised Release and Drug Offenses. In the comment, we expressed unequivocally support for the recent proposals directing courts to base supervised release decisions on individualized assessments and removing recommended minimum terms of supervised release. Originally designed to be limited in use and only when necessary to preserve public safety, supervised release is unfortunately imposed in almost every single federal case. This has led to a bloated and burdened system, putting strain on actors in the criminal legal system as well as on citizens returning to their communities after completing their terms of sentence. The overuse of long periods of supervised release has created a number of undesirable consequences—probation officers are too overwhelmed to effectively supervise high-risk cases, low-risk defendants are unnecessarily recidivating under unnecessarily onerous burdens, and this broken system is costing American taxpayers $500 million annually.

In response to the Commission’s request for fine attunement of its proposals, Due Process

Institute suggested the Commission consider strengthening its guidance towards courts by

characterizing the early termination of supervised release as a rebuttable presumption, rather

than merely a modification that “may” occur. This revision would ensure a much-needed course

correction for our overburdened system, would more directly provide incentives for people

reentering society on supervised release, and would free up resources for probation officers so

that they could better focus on cases with serious public safety implications.

Due Process Institute also commended the Commission for seeking public comment on whether the Commission should reconsider the disparity between cocaine (“powder cocaine”) and cocaine base (“crack cocaine”) in the Drug Quantity Table at §2D1.1(c). Currently, the Drug Quantity Table reflects an 18-to-1 ratio between crack cocaine and powder cocaine. Due Process Institute strongly encouraged the Commission to reconsider this disparity in a future amendment cycle.

The current disparity exists because of a well-intentioned but un-scientific overreaction to crack cocaine abuse in the 1980s. This initially led to crack cocaine being arbitrarily treated 100 times worse than powder cocaine in our federal sentencing laws, despite the fact that crack cocaine and powdered cocaine are pharmacologically the same. The primary differences between the drugs are that crack cocaine is cheaper and easier to access, particularly in poor communities that are already marginalized, and in the way the substances are typically ingested. The manner in which crack cocaine is ingested is, as the Commission has noted, “not a reliable basis for establishing longer penalties.” 

However, the 18-to-1 ratio currently reflected in the Drug Quantity Table still does not reflect sound policy. There is no scientific basis for treating crack cocaine offenses more harshly than powder cocaine offenses. And there is no cultural or social impetus for the overly harsh treatment. In fact, the number of defendants whose primary drug type is crack cocaine has steadily declined from 6,168 in FY 2008 to only 855 in FY 2023. And crack cocaine defendants as a percentage of all drug trafficking defendants have declined from 26.8 percent in FY 1996 to 4.6 percent in FY 2023. The time has come for the Commission to correct the existing unnecessary and unfair disparity between cocaine offenses in the Drug Quantity Table. 

February 19, 2025--Due Process Institute and 97 organizations wrote to Congress in strong support of  efforts to recognize Fred Korematsu’s legacy as a civil rights hero. Accordingly, we offer our endorsement and support for the reintroduction of the following legislation in the 119th Congress: (1) Fred Korematsu Congressional Gold Medal Act; (2) Recognizing the importance of establishing a national "Fred Korematsu Day of Civil Liberties and the Constitution"; (3) Korematsu-Takai Civil Liberties Protection Act.

Korematsu stood against unfounded and racist actions. At the time, our institutions — our democracy — failed him. In 1944, the Supreme Court upheld the constitutionality of excluding Japanese Americans from the West Coast in a 6-3 majority in Korematsu v. United States. The dissent by Justice Frank Murphy decried the majority opinion and declared that the order to detain Japanese Americans was the “legalization of racism” and that “[r]acial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life.”

We urge Congress to elevate this history for all Americans to learn from it and recognize the importance of this civil rights hero who took a stand on behalf of all of us, and urge the enactment of the following legislation:

Korematsu-Takai Civil Liberties Protection Act, which would prohibit detention or imprisonment based solely on an actual or perceived protected characteristic of an individual.

Recognizing the importance of establishing a national "Fred Korematsu Day of Civil Liberties and the Constitution," which will help to ensure that Fred Korematsu's legacy is remembered and honored, and that the lessons of the incarceration are not forgotten.

Fred Korematsu Congressional Gold Medal Act, which will honor Fred Korematsu for his decades-long fight for justice, and will serve as a powerful reminder of the importance of protecting civil liberties for all Americans.

February 3, 2025--Due Process Institute and 190 national, state, and local public health, criminal justice, and civil rights organizations joined in a letter to House and Senate leadership urging them to reject and vote NO on the Halt All Lethal Trafficking of Fentanyl (HALT) Act (H.R. 27 / S. 331). This bill permanently schedules fentanyl-related substances (FRS) on schedule I of the Controlled Substances Act (CSA) based on a flawed class definition, imposes mandatory minimums, and fails to provide an offramp for removing inert or harmless substances from the drug schedule.  

The classwide scheduling approach endorsed in the HALT Fentanyl Act classifies all FRS as schedule I drugs, reserved for substances with no currently accepted medical use and a high potential for abuse. This class definition, however, is a radical departure from drug scheduling practices as it relies exclusively on chemical structure without accounting for pharmacological effect based on the unproven hypothesis of chemical structure-function relationships. Contrary to this hypothesis, structurally related substances can often have complementary therapeutic values. In fact, the National Institute on Drug Abuse (NIDA) has already acknowledged that some FRS are inert and that at least one may be an opioid antagonist that behaves like naloxone, which is itself an opium derivative that counteracts the effects of opioid drugs. Classifying all FRS in schedule I places undue restrictions on research for therapeutic potential of FRS. This means that researchers and scientists are not able to study these substances at a time when the U.S. is experiencing unprecedented overdose deaths.

The HALT Fentanyl Act also enshrines mandatory minimums for distribution of FRS under the Controlled Substances Act, an inappropriate mandate that criminalizes possibly inert or harmless substances. While some proponents of the HALT Fentanyl Act claim that the bill is not intended to interact with the criminal justice system and that mandatory minimums are primarily a deterrent against foreign import of FRS, this is simply inaccurate. The HALT Fentanyl Act expands mandatory minimums for both foreign importation crimes and domestic drug distribution offenses, including nonviolent drug distribution involving small quantities of drugs. What’s more, by automatically scheduling a huge swathe of substances in one fell swoop, the HALT Fentanyl Act would lead to very real criminal justice consequences, posing an unacceptable risk of unnecessary incarceration for substances that carry no potential for abuse. Such miscarriages of justice have already occurred. For instance, Todd Coleman was sentenced to a mandatory minimum of 10 years for sale of cocaine that a crime laboratory said was laced with three fentanyl analogues, only to discover, years later, that the detected adulterants were not illegal fentanyl analogues and most were not even controlled substances.3 Our country is repeating past missteps when it comes to policy responses to fentanyl and its analogues. In the 1980s, policymakers enacted severe mandatory minimums for small amounts of crack cocaine in response to media headlines and law enforcement warnings that perpetuated mythology and fear. 

February 3, 2025--Due Process Institute and a host of civil liberties organizations joined to strongly condemn the White House firing of three Privacy and Civil Liberties Oversight Board (PCLOB) members, which shattered the independence that is key to the Board’s effectiveness. We urge Congress to act expeditiously to restore that independence.

PCLOB was originally proposed by the 9-11 Commission and has existed for nearly two decades as a critical oversight entity for protecting rights and combatting surveillance abuse. Its investigations and reports have debunked false claims by the intelligence community about mass surveillance programs, prompted declassification and disclosure of key facts about surveillance that had needlessly been kept secret, and spurred important legislative reforms.

Firing PCLOB members will significantly undermine the Board’s independence, and could make it impossible for it to conduct this type of effective oversight in the future. If at-will termination becomes acceptable, a President of either party will be able to block investigation of controversial or improper surveillance activities by removing any PCLOB member who begins to scrutinize conduct that the executive wants to keep hidden. The White House could kill any reports or findings from PCLOB it does not want issued, firing Board members to halt the release of information the White House wants covered up. Even the mere threat of firings would chill PCLOB from properly performing its duties, with members seeking to stay in the good graces of the White House rather than acting as a vigilant watchdog. It is for precisely this reason that Congress in 2007 removed a provision of PCLOB’s statutory charter indicating that its members “serve at the pleasure of the President.”

The effort to destroy PCLOB’s independence, and thereby significantly undermine its basic effectiveness as an oversight entity, raises significant concerns over how the executive’s surveillance powers could be misused by this or future administrations.

January 17, 2025--Due Process Institute and a host of criminal legal reform organizations wrote to Madam Chair Larson and members of the Senate Judiciary Committee to express strong opposition to SB 2128. This legislation introduces punitive sentencing policies that are not only counterproductive but also impose significant budgetary, economic, and societal costs. SB 2128 undermines rehabilitation and weakens the potential of the economic workforce. The imposition of a so-called “truth in sentencing” (TIS) requirement for all sentences eliminates critical opportunities for rehabilitation and reintegration. By excluding halfway houses and transitional facilities from the definition of “corrections facilities,” this provision ensures prolonged incarceration without addressing underlying causes of criminal behavior. The opportunity of employment in transitional facilities is directly related to an individual’s risk of recidivism. Extensive research demonstrates that longer sentences do not deter crime but, by decreasing incentives for rehabilitation, instead increase recidivism rates and make prisons less safe.

Instead of enacting SB 2128, Due Process Institute urges the legislature to preserve powerful incentives for rehabilitation while incarcerated and retain judicial discretion to ensure sentences reflect the unique circumstances of each case. SB 2128 represents a regressive step in criminal justice policy that prioritizes punishment over rehabilitation at a steep cost to taxpayers and North Dakota’s overburdened prisons. Due Process Institute, FAMM, Justice Action Network, and R Street urge members of the committee to reject this bill and instead support initiatives that promote fairness, rehabilitation, and public safety.

January 16, 2025--On the evening on January 15, Punchbowl News reported that House Speaker Mike Johnson has decided to remove Rep. Mike Turner as chair of the House Intelligence committee because of his handling of last year’s FISA reauthorization, which will imminently return to Congress’s docket. A left-right coalition consisting of Demand Progress, Due Process Institute, FreedomWorks and Restore the Fourth called for Turner to resign as chair nearly a year ago. The following is a statement from Demand Progress Policy Director Sean Vitka and Due Process Institute Vice President Jason Pye: 

“As we said 11 months ago, Mike Turner abused his chairmanship of the House Intelligence Committee to mislead his colleagues, stop commonsense privacy protections, sneak through massive expansions of warrantless surveillance and even compromise classified information. His removal couldn’t come soon enough, and it should serve as a warning to whomever his replacement is ahead of the imminent debate over FISA. We will fight just as hard against any other leader of this committee who mistakes its responsibility to conduct oversight of intelligence agencies as an excuse to push out propaganda and enable surveillance of people in the United States.”

December 16, 2024--Due Process Institute, Brennan Center for Justice, and a host of civil liberties organizations submitted comments in response to the Office of Management and Budget (OMB)’s request for information on executive branch agency handling of Commercially Available Information (CAI) containing personally identifiable information. The comment highlighted one dangerous aspect of agency handling of CAI that demands OMB’s attention: law enforcement and intelligence agencies’ access to and use of CAI in ways that evade legal requirements set forth in the Fourth Amendment and various privacy laws enacted by Congress. Furthermore, the comments discuss the Fourth Amendment doctrines and statutes that restrict the government surveillance at issue here, how the government is using CAI to circumvent those rules, the harms of this circumvention, and recommendations that OMB should implement to regulate these practices.

December 9, 2024--Due Process Institute, Right on Crime, and undersigned state and national conservative organizations urged President Biden to use executive clemency power to allow

people who have already served years—sometimes decades—in federal prison and who would receive significantly shorter prison terms if they were sentenced today an opportunity to come home.

There are many thousands of people in our federal prisons serving disproportionately long

sentences for offenses that would result in much shorter prison terms if they were sentenced

today under current law and practice. An example of this situation can be found in the First Step

Act, a major piece of legislation we all supported that was enacted by your predecessor. The First Step Act reined in the use of sentence stacking under 18 USC sec. 942(c) such that a sentencing enhancement could not be applied unless charges for the prior offense had become final. In short, prosecutors can no longer charge multiple counts of violating 924(c) in the same indictment to obtain 55-year sentences like in the infamous case of Weldon Angelos. According to the United States Sentencing Commission, the exact same behavior that would have required a 55-year mandatory minimum sentence prior to enactment of the First Step Act now merits a 15-year sentence. There is no deterrence value in preserving such sentences.

This is a critical opportunity to grant clemency for people who did not benefit from changes made by the First Step Act, people who were subject to the crack-powder cocaine sentencing disparity, and people who have spent decades in prison but cannot apply for compassionate release simply because they were sentenced under the “old law” before the adoption of the Federal Sentencing Guidelines.

Update #1: On December 12, President Biden granted clemency for nearly 1,500 justice impacted individuals. You can read the statement here.

Update #2: On January 17, 2025, President Biden commuted the sentences of nearly 2,500 people who had received disproportionally long sentences for nonviolent drug offenses, many of which were based on discredited distinctions between crack and powder cocaine. You can read the statement here.

November 18, 2024--Due Process Institute and 66 undersigned organizations urged members of Congress to pass the Reentry Act (H.R.2400 / S.1165) and Due Process Continuity of Care Act (H.R.3074 / S.971) by the end of the session. This legislation will help integrate substance use treatment into carceral settings, reduce recidivism, and prevent needless overdose deaths. The Reentry Act would allow Medicaid coverage to start 30 days before release and the Due Process Continuity of Care Act would allow Medicaid coverage while an individual is awaiting trial. Both bills have bipartisan support in the current Congress, with each bill garnering nearly 100 co-sponsors. During a deadly overdose crisis, these bills are commonsense solutions to increase the availability of substance use disorder treatment for incarcerated individuals, decrease overdose deaths, and better protect public health and safety.

Fatal drug overdoses are the fastest growing cause of death amongst incarcerated individuals. Additionally, inmates re-entering society are the most vulnerable population to experience a fatal overdose – individuals reentering society post incarceration are 129 times likelier to die of a drug overdose than the general population during the two weeks following their release. Finally, increasing access to medications for opioid use disorder (MOUD) saves lives and has been associated with an 80% reduction in overdose mortality risk for the first month post-release.

By allowing Medicaid coverage during the critical windows when an individual is returning to the community from incarceration and the period while they are awaiting trial, the Reentry Act and Due Process Continuity of Care Act represent two of the strongest opportunities for the 118th Congress to increase public safety and improve public health outcomes nationwide. Due Process Institute urges Congress to pass these pieces of legislation by the end of the session to save lives and to extend the hope of healing to communities across the country. With more than 100,000 overdose deaths occurring each year, the time to expand access to safe and effective treatment is now.

October 15, 2024--Due Process Institute and other civil liberties organizations wrote to Director Haines and General Haugh to demand that the NSA supplies a public estimate of the number of U. S. persons’ communications that are “incidentally” collected as part of NSA’s surveillance under Section 702 of the FISA Amendments Act. This information has been requested repeatedly by legislators since at least 2011, and by civil society organizations since at least 2015. 

An estimate of the number of U.S. persons’ communications obtained under Section 702 is vital to correct such misinformation, and to convey to Congress and to people across America the truth of the matter—namely, that there is substantial warrantless “incidental” collection of U.S. person communications under this authority. This estimate must be provided before the congressional debate over the next reauthorization of Section 702. The authority is scheduled to expire in April 2026, and the debate will likely begin well in advance of that date—perhaps as early as next spring.

ODNI and NSA cannot expect that public trust to be unconditional. If ODNI and NSA continue to renege on pledges to members of Congress, and to withhold information that lawmakers, civil society, academia and the press have persistently sought over the course of thirteen years, that public trust will be fatally undermined. It is time to follow through, and to convey a public commitment by a date certain in early 2025 to provide to the public and to Congress the estimate in question.

October 11, 2024--Due Process Institute and a group of cross-ideological organizations urged members of Congress to enact the National Emergencies Act (NEA) reform legislation that recently passed out of committee in both the House and Senate with overwhelming bipartisan support. This reform legislation should be enacted in this Congress, either as a stand-alone or as part of broader legislation, such as the National Defense Authorization Act (NDAA) or a government funding bill. Such reform is critical to preventing future abuses of emergency authorities and could be the most substantial rebalancing of power between the executive branch and Congress since the 1970s.

The ARTICLE ONE Act (H.R. 3988) and the REPUBLIC Act (S. 4373) would enact the following reforms: (1) every presidentially declared national emergency will automatically expire after 30 days unless Congress affirmatively votes to extend it, using expedited procedures that will ensure timely action and prevent obstructionism, (2) a national emergency declared by the president and approved by Congress must be redeclared and reapproved by Congress one year after the original declaration, (3) each proclamation by the president declaring or renewing a national emergency must provide a report to Congress that includes a description of the circumstances necessitating the declaration, estimated duration of the emergency, and a summary of actions the president intends to take, (4) the president also must provide a report every six months on the status of the emergency and actions the president has taken to address it, and (5) existing national emergencies will be subject to the same renewal requirements outlined above. 

September 10, 2024--Due Process Institute, the Federal Public and Community Defenders, and a coalition of civil rights organizations urged members of the U.S. Senate to quickly confirm commissioners to the U.S. Sentencing Commission. Time is of the essence because, absent action by the Senate, the terms of two voting members expire on October 31, 2024.

The Commission plays a critical role in the federal criminal legal system. It promulgates the advisory U.S. Sentencing Guidelines, which are the starting point and anchor for every criminal sentence handed down by a federal district judge and which exert enormous influence on the amount of time the approximately 60,000-to-70,000 people convicted of federal crimes each year must spend behind bars. It promulgates policy statements, which, among other things, are critical to ensuring full and appropriate implementation of the First Step Act. And it sets the agenda for research into the pattern and practice of federal sentencing, providing real-time data to Congress about necessary guidelines reforms and the impact of federal sentencing on rehabilitation, recidivism, and public safety. The Commission’s work is particularly critical to the fair and equitable administration of the federal criminal legal system in light of the high rate of cases resolved by plea in the federal system.

The Commission’s ability to do its job will be severely compromised if it loses two voting members in October. The sheer volume of work confronting the Commission right now means that it needs all-hands-on-deck to fulfill its responsibilities to the judiciary, to Congress, and to the people—overwhelmingly people of color—who face loss of liberty in federal courts each year.