November 13, 2023--Due Process Institute and other organizations submitted comments regarding the Small Business Administration’s (SBA) proposed rule, Criminal Justice Reviews for the SBA Business Loan Programs and Surety Bond Guaranty Program. The proposed rule eliminates existing criminal background requirements for SBA-backed loan and surety programs for small business owners. The only prohibition for access to SBA-backed loan and surety programs would be the incarceration status of the applicant, which would be subject to verification. An applicant who is incarcerated would not be eligible. Applicants would be reviewed for any connection to fraud related to pandemic programs or other federal programs. It does not prevent lenders of SBA-backed loans from conducting their own criminal history background checks of an applicant to determine the risk as long as lenders’ procedures comply with existing law.

The Criminal Justice Reviews for the SBA Business Loan Programs and Surety Bond Guaranty Program Rule proposed by SBA is long overdue and will provide much-needed capital to small business owners who have been impacted by the criminal justice system. Research published by the RAND Corporation found that roughly 4 percent of small business owners have a criminal record and 1.5 percent have a felony record. The initial restrictions published by SBA in April 2020 prohibited more than 140,000 small business owners with a criminal record from participating in the Paycheck Protection Program, impacting more than 212,000 businesses and more than 343,000 employees. Roughly 30 percent of affected small businesses were owned by a person of color. Revisions to the restrictions reduced the number of ineligible business owners with a criminal record to fewer than 18,000.

Due Process Institute applauds the SBA for proposing this rule to provide access to these loan and surety programs to small business owners who have a criminal record. Individuals who have completed the terms of their sentence and paid their debt to society should have the same access to federal programs like those provided by SBA that any other small business owner could receive. That is basic fairness that is missing in our country’s approach to criminal justice. We strongly support the proposed rule and look forward to future efforts from SBA that provide support for small business owners who have been impacted by the criminal justice system. 

November 13, 2023--Due Process Institute and the undersigned organization wrote to Senator Chuck Schumer (D-NY) to express strong opposition to even a short-term reauthorization of Section 702 and urged to keep any such provision out of the continuing resolution and any other must-pass legislation.
 

Section 702 has been routinely abused in ways that violate Americans’ fundamental civil liberties and civil rights. FBI agents have used this surveillance authority, which is supposed to be limited to non-U.S. citizens located outside the United States, to gain warrantless access to the communications of tens of thousands of protesters, racial justice activists, 19,000 donors to a congressional campaign, journalists, and members of the U.S. Congress. Even after the FBI’s recent changes to its internal procedures, the abuses have continued, with agents conducting warrantless searches for the communications of a U.S. senator, a state senator, and a state court judge who contacted the FBI to report civil rights violations by a local police chief. NSA agents, for their part, have abused the authority to search for the communications of online dating prospects and potential tenants.
 

In its current form, this authority is dangerous to our liberties and our democracy, and it should not be renewed for any length of time without robust debate, an opportunity for amendment, and — ultimately — far-reaching reforms. Allowing a short-term reauthorization of Section 702 to be slipped into a must-pass bill would demonstrate a blatant disregard for the civil liberties and civil rights of the American people.

November 7, 2023--Due Process Institute supported today's introduction of  the sweeping, bipartisan Government Surveillance Reform Act (GSRA), which renews Section 702 of FISA for four years and reforms the law to better protect national security and Americans’ Constitutional rights. Notably, it reforms 702 to protect Americans from warrantless backdoor searches, ensures that foreigners aren’t targeted as a pretext for spying on the Americans with whom they are communicating, and prohibits the collection of domestic communications.

While section 702 features a sunset, it is not the only FISA authority in need of reforms. The Act ends warrantless collection of business records, ensures that the government provides accurate

information to the Foreign Intelligence Surveillance Court, and requires meaningful accountability for violations of the law. Americans’ privacy is also threatened by unchecked surveillance conducted by intelligence agencies outside of FISA. This surveillance, undertaken pursuant to Executive Order 12333, presents many of the same problems as FISA surveillance only without statutory checks and balances or court oversight. The Act extends many of the same reforms needed for 702 to 12333 activities, including by limiting warrantless searches of Americans’ communications and prohibiting the targeting of foreigners as a pretext for surveilling Americans. It also limits the acquisition of Americans’ information as part of large datasets.
 

Federal law governing law enforcement surveillance has not kept pace with developments in technology, in large part because Congress hasn’t meaningfully updated relevant law in decades. The Act restores Constitutional protections that have been undermined by modern collection methods, by requiring warrants for surveillance of Americans’ location data, web browsing and search records, and by prohibiting the government from purchasing Americans’ data from data brokers.
 

The Government Surveillance Reform Act represents the most balanced, comprehensive surveillance reform bill in 45 years. This bill will strengthen the legal foundations of a vital national security authority by ensuring U.S. government surveillance of Americans takes place under a consistent, Congressionally-enacted legal framework, supervised by independent judges.

November 3, 2023--Due Process Institute and Justice Action Network urged senators to oppose S.J.Res. 47, which would nullify a specific provision of the CARES Act and return nearly 3,400 nonviolent individuals who have a minimal or low risk of recidivism and who have started the process of rebuilding their lives back to prison.

In March 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act.1 Sec. 12003 of the CARES Act provided the Bureau of Prisons with authority “to place” individuals into home confinement for the length of the “covered emergency period.” The authority to place individuals into home confinement ended 30 days after the termination of the national emergency related to COVID-19.
 

The specific provision of the CARES Act, 12003(b)(2), states, "During the covered emergency period, if the Attorney General finds that emergency conditions will materially affect the functioning of the Bureau, the Director of the Bureau may lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement under the first sentence of section 3624(c)(2) of title 18, United States Code, as the Director determines appropriate."
 

In December 2021, the Office of Legal Counsel (OLC) issued an opinion stating that “[n]othing in the CARES Act or any other statute convinces us that the expiration of the power to lengthen home confinement placements necessarily operates to shorten home confinement placements that were already lawfully lengthened.” In April 2023, the Department of Justice (DOJ) published the final rule relating to home confinement under the CARES Act. DOJ received only one comment against the proposed rule and 66 comments in support.

Furthermore, nullifying home confinement opportunities provided by the CARES Act is bad policy. The cost of incarcerating an individual is $120.59 per day while home confinement costs only $55.26 per day. Annualized, the total cost of incarceration for all of these individuals is $148,507,791 per year compared to $68,053,243 for home confinement. These individuals have also taken significant rehabilitative steps in home confinement, including securing employment, becoming members of church and faith groups, enrolling in college, volunteering in their communities, caring for elderly parents and children, and mending relationships with families. Finally, as of September 1, only 27 people out of 13,000 placed into home confinement have committed new crimes, a new crime rate of 0.19 percent. 

September 29, 2023--Due Process Institute and other civil liberties organizations urged members of Congress to oppose the Stopping Harmful Image Exploitation and Limiting Distribution (SHIELD) Act of 2023 (S. 412), which would create a new federal crime carrying a one-to-five-year prison sentence for sharing intimate photos of a person without that person’s consent. This bill is well intentioned, but it will sweep in and criminalize innocent conduct and worsen the trial penalty that many criminal defendants—including many people who are actually innocent—face in our justice system.

For example, if a person receives, unsolicited, an intimate image from an acquaintance and in turn forwards the image to a friend or family member—not for the purpose of “seeking support or help”—but instead to express surprise or displeasure, then that person will have committed a crime under the current version of the SHIELD Act. And that should not be. The communication in this example is plainly innocent conduct. Equally plainly, it is protected speech. Yet, under the SHIELD Act, the victim of an unsolicited sexual communication could easily find themselves prosecuted. 

This version of the SHIELD Act still places too much discretion in the hands of law enforcement and prosecutors for fair application, and potentially criminalizes innocent conduct. The bill’s goals of protecting privacy could be better advanced by a more narrowly tailored proposal that does not unnecessarily sweep up protected speech on both public and private matters. 

September 28, 2023--Due Process Institute and civil liberties groups advocates issued the following statement responding to the Privacy and Civil Liberties Oversight Board (PCLOB) long-awaited report on Section 702 of the Foreign Intelligence Surveillance Act, which outlined abuses over the past few years, revealing that, “[i]n the reporting period covering November 2020 to December 2021, non-compliant queries related to civil unrest numbered in the tens of thousands”:

“The message of the Board’s report is clear: individualized judicial review of U.S. person queries is critical to protect Americans’ rights and prevent further abuses. The report flatly rejects the government’s self-serving claim that individualized judicial review is unworkable. It also rejects the baseless notion that broad categories of these searches, such as searches for foreign intelligence or so-called ‘defensive’ searches for potential victims’ information, should be exempted from this requirement. And it rejects the fallacy that the FBI’s tweaks to its internal procedures are sufficient to address the acute risks posed by backdoor searches.

Three members of the Board stated that they would support a probable cause standard for U.S. person queries in any criminal investigation, including those related to foreign intelligence. In her statement, the Chair of the Board compellingly explained why the full ‘probable cause’ standard is required by the Fourth Amendment and necessary to safeguard Americans’ privacy. We believe the same logic supports a requirement for a probable cause order for any U.S. person query. 

We note that the Board limited its inquiry and its recommendations to Section 702. It did not address many of the other issues that are very much part of the current debate, including the government’s use of data brokers to circumvent legal protections for Americans’ privacy and the use of overseas surveillance to collect Americans’ information without statutory authority or judicial oversight. Congress, however, must address these issues. If it limits itself to reforms of Section 702, the government will simply continue its warrantless surveillance of Americans using these other methods.” 

September 26, 2023--Due Process Institute and numerous health policy, drug policy, criminal justice reform, civil rights, and advocacy organizations urge members of Congress to cosponsor and support swift passage of the Temporary Emergency Scheduling and Testing of Fentanyl Analogues Act of 2023 (TEST Act). This bill would allow the Drug Enforcement Administration (DEA) to place new fentanyl-related substances (FRS) in Schedule I for up to four years, during which time the Department of Justice (DOJ) and Health and Human Services (HHS) would have to conduct a scientific and medical evaluation of each substance and publicly report the findings. 

Congress has preemptively placed all FRS on Schedule I of the Controlled Substances Act (CSA) as a class – even those that do not exist. Congress has considered circumventing the scientific research requirements under current law by passing bills such as the HALT Fentanyl Act (H.R. 467), which would automatically designate any FRS as dangerous without studying a substance at all. Temporary scheduling authority is intended to allow the DOJ the time to conduct the scientific and medical evaluations it is required to by law. By allowing DOJ to designate the entire class of FRS as Schedule I without conducting scientific and medical research, Congress may inadvertently leave undiscovered therapeutic medications similar to naloxone and other life-saving medications at a time when the U.S. is facing record numbers of overdose deaths. 

Approximately 285 people die of a preventable overdose each day in the United States. Rather than restricting research, the federal government must support the study and development of new tools and the provision of health services to save lives. This includes studying FRS for potential treatment options and ensuring people can receive the best treatments imaginable. Ensuring that federal agencies and the research community can study emerging substances for potential therapeutic value, including FRS, is a critically important component of these efforts. It can also help ensure that people are not unjustly incarcerated for crimes that were never committed. 

September 14, 2023--Due Process Institute supported today's reintroduction of bipartisan and bicameral Prohibiting Punishment of Acquitted Conduct Act of 2023 in the Senate (S. 2788) and House (H.R. 5430) that would end the federal practice of sentencing on the basis of conduct for which a jury has acquitted. We applaud Rep. Steve Cohen (D-TN-9), Rep. Kelly Armstrong (R-ND-At-Large), Sen. Dick Durbin (D-IL), and Sen. Chuck Grassley (R-IA)  for their leadership on this important issue and we thank our many coalition partners for their support of this critical effort.

In short, this bipartisan bill would end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury. The Fifth and Sixth Amendment guarantee due process and the right to trial by jury but current federal law allows judges to override a jury’s not guilty verdict by sentencing a defendant for the very conduct a jury acquitted them of. Judges are allowed to impose these sentence enhancements because it only requires the preponderance of evidence, a less demanding standard than a jury’s standard to convict only beyond a reasonable doubt.

This practice has been roundly criticized by practitioners, judges, and scholars. Furthermore, allowing acquitted conduct to be considered in sentencing exacerbates the trial penalty, described as the significant difference in sentencing when a defendant accepts a plea bargain opposed to if they are convicted at trial. The trial penalty also contributes to coercive plea bargaining and the frequency of innocent people pleading guilty. Passing this legislation would help alleviate these problems, eliminate unjust practices, and strengthen the protections provided by the Constitution.  

September 12, 2023--Due Process Institute endorses the Driving for Opportunity Act of 2023, as

and recognize the urgency of addressing debt-based driver’s license suspension. Suspensions and restrictions of driver’s licenses for unpaid court fines and fees fail to improve public safety and restrict economic opportunity for millions of Americans. The Driving for Opportunity Act of 2023, a bipartisan bill sponsored by U.S. Senators Chris Coons and Roger Wicker, recognizes the

unintended harms of this counterproductive practice and supports communities transitioning away from this strategy.

One in three American families are impacted by fines and fees that are imposed as a result

of a criminal or traffic offense. Unpaid fines and fees can lead to a driver’s license

suspension or other restrictions on driving. Driving a vehicle is essential for finding and

keeping a good job, pursuing education, accessing child care, and obtaining other

foundations for a stable and productive life. As Americans struggle to make ends meet,

debt-based license suspensions are making it significantly more difficult for families to

achieve critical financial stability.

Millions of Americans have a suspended or revoked driver’s license solely because of

unpaid court debt rather than unsafe driving. Such “debt-based suspension” is a means

through which governments try to compel payment. This system is inherently faulty:

someone who cannot drive will likely have a difficult time securing access to work,

especially in rural and low-income communities where public transportation is limited,

making debt repayment even more difficult or impossible.

Suspensions and revocations of driver’s licenses for non-driving related conduct may

harm public safety. Law enforcement officers, prosecutors, and judges lose countless

hours enforcing these laws at the expense of responding to more pressing issues in their

communities on and off the road. In addition, having a suspended license exposes drivers

to additional fines, arrest, incarceration, or other entanglements with the criminal legal system. Half the states, ranging from Texas to New York, have amended their own policies to eliminate or restrict driver’s license suspensions for unpaid court debt.

The Driving for Opportunity Act of 2023 authorizes federal funding to support states that

are choosing to end debt-based driver’s license suspensions. Under this legislation,

state governments would receive limited federal assistance to manage some of the costs

associated with eliminating debt-based suspensions and reinstating licenses. Passage of

the Driving for Opportunity Act presents an opportunity for Congress to lift up a

data-backed, widely supported policy reform and provide modest support for state

governments that are embracing this common sense measure.

September 8, 2023--Due Process Institute and over a dozen privacy, civil rights, and civil liberties groups from across the political spectrum met yesterday with Director of National Intelligence (DNI) Avril Haines and other high ranking intelligence community officials to discuss Section 702 of the Foreign Intelligence Surveillance Act (FISA 702), and connected surveillance issues such as data purchases and surveillance pursuant to Executive Order 12333. Following the meeting, the undersigned attendees issued the following statement:

“We appreciate DNI Haines taking time to hear our serious concerns with warrantless FISA 702 surveillance, but remain deeply distressed that the intelligence community will not commit to any of the meaningful reforms that are critical to protect Americans’ privacy.

“After years of misuse such as deliberately seeking out private messages of activists on the left and right, a batch of 19,000 campaign donors, and lawmakers, it’s clear that FISA 702 and related surveillance powers need serious change. The administration and intelligence community must be willing to come to the table and accept significant new privacy protections that advocates, Congress, and the American people are calling for. There simply isn’t a path to reauthorization built on half-measures, window dressing, and codification of internal procedures that have repeatedly failed to protect Americans’ civil rights and civil liberties.”

As detailed in a letter provided to DNI Haines in advance of the meeting, participants view reauthorization of FISA 702 as dependent on a range of meaningful reforms, including:

• Requiring the government to obtain a warrant before searching the content of Americans’ communications collected under intelligence authorities;
• Establishing legislative safeguards for surveillance affecting Americans that is conducted under Executive Order 12333;
• Closing the data broker loophole, through which intelligence and law enforcement agencies purchase Americans’ sensitive location, internet, and other data without any legal process;
• Bolstering judicial review in FISA-related proceedings, including by shoring up the government’s obligation to give notice when information derived from FISA is used against a person accused of a crime; and
• Codifying reasonable limits on the scope of intelligence surveillance.

September 6, 2023--Due Process Institute and an ideologically diverse group of public policy organizations commend the bipartisan efforts in Congress to elevate the importance of tobacco harm reduction through the formation of the Congressional Tobacco Harm Reduction Caucus. It is an essential approach to addressing disease and death brought by smoking combustible cigarettes.

Despite significant declines, combustible cigarette smoking is still the leading cause of preventable death in the United States. More than 30 million Americans smoke combustible cigarettes and more than 16 million are living with disease caused by smoking. Smoking contributes to 1 in 5 deaths in America: 480,000 premature deaths every year, including more than 41,000 from secondhand smoke. In addition to the loss of life, smoking costs our economy more than $600 billion per year. Every year, more than half of adults who smoke try to quit, but fewer than 8 percent actually do so. And just as the harms of combustible cigarette smoking disproportionately fall on people of color, veterans and service members, LGBTQ people, and poor, rural and disabled Americans, quitting is especially difficult in these populations. These individuals and their families are worth the exploration of every tool that could reduce the harms of tobacco.

Public health, compassion, personal autonomy and pragmatism demand the continuation of investment in prevention and cessation, and get serious about exploring harm reduction. This calls for a paradigm shift from well-intentioned but harmful prohibitionist policies that could increase negative interactions with police, especially in communities of color. The adoption of harm reduction practices can increase quit rates and decrease health risks for many adults who are unable or unwilling to quit using available cessation products and strategies.

July 26, 2023--Due Process Institute and the undersigned criminal justice organizations wrote to Congress to express deep concern about the devastating impact of proposed cuts to the federal indigent defense system. The House and Senate Appropriations Committees have approved funding that is $122 million and $150.4 million, respectively, less than requested. Unless corrected, these cuts could cause the loss of 9-12% of current federal defender staff—even after defenders cut critical programming such as training and IT improvements. Such layoffs would almost certainly decimate the federal defender system, degrade the overall quality of federal indigent defense, and undermine the administration of justice for countless federal defendants. To avert the crisis, Congress should ensure that the Defenders Services account is fully funded at the requested amount. Our federal criminal justice system cannot be sustained unless all components – prosecution, judiciary, and defense – receive adequate and stable funding. Federal defender offices were already operating quite leanly, as evidenced by a recent work measurement study that indicates the need for an additional 256 employees. Instead, the House and Senate bills would potentially result in the loss of 368-493 employees. 

Federal indigent defense was already under-resourced as compared to the Department of Justice, and the cuts proposed by the House and Senate would push the system over the brink. Cuts to federal defense will have a ripple effect across the federal criminal legal system. It is estimated that 90 percent of people charged with federal crimes are too poor to hire an attorney and, thus, have a constitutional right to a federal defender or court-appointed counsel. Given that every federal defendant without resources to hire an attorney is entitled to government-paid counsel, no savings could even conceivably be achieved by slashing the federal defender budget. Instead, these proposed budget cuts will simply create chaos. Federal defender offices will be forced to turn down cases that they would ordinarily accept, forcing panel attorneys—most of whom maintain busy practices alongside their CJA work—to make up the difference. 

As this year marks the 60th anniversary of Gideon v. Wainwright, the federal indigent defense system must be protected from these devastating cuts. Testifying in support of the Criminal Justice Act in 1963, Attorney General Robert Kennedy extolled the planned system as “the most comprehensive, yet flexible solution ever devised to meet the representation problem in the federal system.” Sixty years later, the future of that system rests in the hands of this Congress and urge for the full funding for the federal indigent defense system and ensure that, in federal court, the scales of justice “measure truth, not legal fees.”

July 18, 2023--Due Process Institute and a coalition of public health, drug policy, criminal justice, and civil and human rights organizations urged members of Congress to oppose the Combating Illicit Xylazine Act (H.R. 1839 / S. 993). This legislation criminalizes human use and distribution of xylazine by imposing Schedule III criminal penalties on an unscheduled substance, thus circumventing the necessary scientific and medical evaluations inherent in the drug scheduling process, and undermining the established decision-making process for scheduling drugs and applying criminal penalties. Moreover, this legislation will result in the disproportionate prosecution and sentencing of people with substance use disorder, including people who may not know xylazine is in their drug supply. Rather than punitive responses to drug use, our government should invest in harm reduction services and evidence-based public health interventions for people who use drugs, particularly given the dangerous state of the illicit drug supply.

Because xylazine is a commonly-used veterinary anesthetic, the Combating Illicit Xylazine Act

does not advocate for scheduling xylazine under the Controlled Substances Act (CSA). Rather,

it applies Schedule III criminal penalties without labeling xylazine as a controlled substance.

This approach is concerning as it criminalizes xylazine without subjecting it to the standard 8-

factor scientific and medical evaluation required by the Secretary of Health and Human Services (HHS) for CSA placement. By circumventing the comprehensive HHS analysis necessary for drug scheduling, this legislation obstructs the development of evidence-based regulations. It establishes a troubling precedent by disregarding expert analysis on abuse potential and medical use in favor of reactionary politics. Consequently, the anti-science nature of the Combating Illicit Xylazine Act undermines the credibility of U.S. drug policy and paves the

way for future bills to do the same.

To prevent overdoses and mitigate the harms of the illicit drug supply, Congress must

prioritize science-based decision-making and harm reduction strategies, as well as comprehensive public health approaches to the overdose epidemic. Given these objections, we strongly urge Congress to oppose the Combating Illicit Xylazine Act as this legislation is a reactionary extension of the War on Drugs, and will only exacerbate the harms of the illicit drug supply.

July 17, 2023--Due Process Institute and 30 cross-ideological organizations urged House Committee members and Senate Committee members to advance the bipartisan and bicameral ARTICLE ONE Act (H.R. 3988 / S. 1912), which would reform the National Emergencies Act of 1976 (NEA). 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 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.

This is a simple, commonsense reform that will shore up Congress’s role as a check against presidential overreach while retaining the president’s flexibility in the immediate aftermath of an emergency. This broadly supported measure is critical to the health of democracy, and urge Congress to hold a markup and advance the bill as soon as possible.

June 12, 2023--Due Process Institute and a coalition of civil rights organizations urged Congress to not reauthorize Section 702 without critical reforms ahead of the Senate Judiciary hearing on June 13. Section 702 reform is urgent as it has become a rich source of warrantless government access to Americans’ phone calls, texts, and emails. Since Section 702 was last reauthorized, a series of disclosures has revealed the extent of this problem. In 2022 alone, the FBI conducted over 200,000 warrantless searches of Section 702 communications to find Americans’ information. Congress can address the use of Section 702 to spy on Americans, the barriers to judicial review, the vast government collection personal communication data with no statutory limits, and the economic and privacy impact of overbroad surveillance through these reforms and solutions:

First, lawmakers must put a stop to the government using Section 702 as an end-run around Americans’ constitutional rights. Congress should require agencies to obtain a warrant (in criminal investigations) or a FISA Title I order (in foreign intelligence investigations) before searching Section 702-acquired information for Americans’ communications.

Second, Congress should strengthen FISA’s amici provisions by giving amici better access to relevant information and by encouraging appointment of amici in cases involving sensitive targets such as religious or political organizations, candidates for public office, and the media. An amendment that would have implemented these measures, offered by Senators Leahy and Lee, passed the Senate by a vote of 77-19 in 2020.9 Congress also should prohibit the government’s use of “parallel construction” to avoid notice obligations. And it should correct the Supreme Court’s misreading of FISA by clarifying that federal courts may review surveillance materials in civil cases.

Third, any surveillance that results in the collection of Americans’ communications and other sensitive data should take place pursuant to statute and with oversight by Congress and the courts. Accordingly, Congress should legislate basic protections for any EO 12333 surveillance that impacts Americans. These protections should include limits on bulk collection, which poses unique threats to Americans’ privacy; a warrant requirement for backdoor searches of EO 12333 data; and oversight by Congress and the FISA Court.

Finally, Congress should enact limits that will prevent the targeting of ordinary private citizens who are unlikely to be communicating information about foreign threats. Congress also should remove barriers to judicial review and establish limits on bulk collection, as described above. These measures would both protect Americans’ privacy and address the threat that Section 702 surveillance poses to U.S. businesses. It’s high time for Congress to step in and enact these reforms that will safeguard Americans’ rights and business interests.

June 8. 2023--Due Process Institute and  a diverse group of stakeholders endorsed the Due Process Continuity of Care Act (H.R. 3074, S.971).  This critical legislation would allow pre-trial incarcerated individuals to receive medical services supported by Medicaid. Currently, the “Medicaid inmate exclusion policy” (MIEP) prohibits the use of federal funds and services for medical care for “inmates of a public institution.” This policy prevents Medicaid-eligible incarcerated individuals, regardless of whether they have been convicted, from receiving services funded by Medicaid. This means that incarcerated individuals awaiting trial in a jail cannot receive most Medicaid services. The policy also prevents incarcerated veterans from receiving hospital and outpatient care in local jails from the Department of Veterans Affairs. 

The MIEP was established in Sec. 1905(a)(A) of the Social Security Act, decades before the current overdose crisis began. Almost sixty years later, the MIEP has become a significant barrier to accessing substance use disorder treatment in correctional facilities. Despite nearly 60% of incarcerated individuals having a substance use disorder, most go untreated. In 2021, just 12% of jails and prisons offered medications for opioid use disorder (MOUD). A recent Bureau of Justice Statistics report on local jails indicated that fatal drug overdoses are the fastest growing cause of death amongst incarcerated individuals, and the median time served before a drug or alcohol intoxication death was just one day. According to the New England Journal of Medicine, individuals reentering society from incarcerations are 129 times likelier to die of a drug overdose during the two weeks following their release than the general population. FDA approved MOUD, such as buprenorphine and methadone, have been associated with an 80% reduction in overdose mortality risk for the first month post-release. Despite this, most jails and prisons do not provide methadone or buprenorphine for opioid use disorders. 

The MIEP can also be linked to our nation’s high recidivism rates. Not treating substance use disorder in a correctional setting can contribute to increased chances of returning to illicit drug use upon release, which leads to a greater likelihood of reoffending. If an individual initiates MOUD treatment while in a correctional setting they have a greater chance of continuing care upon reentry, which contributes to a 32% reduction in recidivism rates. Not only will initiating and maintaining care in correctional settings save lives, but it will also have a positive impact on public safety and reducing the cycle of recidivism. 

This act is crucial in ensuring an individual’s constitutionally protected rights. The MIEP violates the right that an individual is presumed innocent until proven guilty by including pre-trial incarcerated individuals in the definition of “inmate”, thus causing them from to lose their Medicaid benefits before having a chance to defend their innocence. The Due Process Continuity of Care Act will ensure that access to treatment is maintained while an individual awaits trial. 

June 5, 2023--Due Process Institute joined criminal justice and civil rights advocacy groups to urge members of the Senate Judiciary Committee to oppose S. 1080, the Cooper Davis Act. The bill purports to address the sale of methamphetamine, fentanyl, and “counterfeit substances” by coopting online services to report the alleged or suspected creation, manufacture, or distribution of these substances — or possession with intent to create, manufacture, or distribute them. Rather than meaningfully addressing the public health crisis caused by such substances, this bill would instead incentivize online services to search through user content and effectively deputize them as agents of the Drug Enforcement Agency (DEA), undermining the Fourth Amendment and the Stored Communications Act, likely with disproportionate effects on people of color, LGBTQ+ people, and other marginalized communities.

This bill circumvents constitutional and statutory privacy protections and falls short of its

intended purpose. The bill requires online services — including social media, email, and

internet service providers — to identify “facts or circumstances” indicating an “apparent

violation involving” “the creation, manufacturing, distributing, dispensing, or possession with

intent to manufacture, distribute, or dispense” fentanyl, methamphetamine, or a counterfeit

substance and report them to the DEA. Not only does the bill require reporting for “actual

knowledge” of those “facts and circumstances,” but it permits reporting on a mere “reasonable

belief” that an “apparent” violation has occurred. Failure to perform the required reporting can

result in criminal and civil fines amounting to hundreds of thousands of dollars. The bill goes further in encouraging companies to turn over identifying information including screen names,

photos, IP addresses, geolocation information, and even the content of communications to the

DEA and potentially other law enforcement agencies.

The bill also requires that the provider retain the information for later access by law enforcement and prohibits notice to the user. Rather than addressing a pressing health crisis, this bill does an end run around the Fourth Amendment by requesting user information from online services in the form of reporting and voluntary disclosures. This puts online services in the position to decide what appears to be a sale of or intent to sell illicit substances and then decide how much to report to the DEA. The bill’s “reasonable belief” standard is not clearly defined and falls far short of the probable cause standard demanded by the Fourth Amendment that law enforcement generally has to meet before obtaining a warrant and engaging in a search. The bill also expressly undermines the already limited warrant or subpoena and notice requirements of the Stored Communications Act. 

May 23, 2023--Due Process Institute led a letter with Drug Policy Alliance, FAMM, Law Enforcement Action Partnership, The Leadership Conference on Civil and Human Rights, The Sentencing Project, and Vera Institute of Justice, to express disappointment at the White House’s May 22, 2023 Statement of Administration Policy (“SAP”) on H.R. 467, the Halt All Lethal Trafficking of (HALT) Fentanyl Act. Perhaps inadvertently, the Administration’s statement failed to condemn the HALT Fentanyl Act’s expansion of mandatory minimums and encouraged Congress to throw its support behind legislation that will only exacerbate the harms of illicit drug activity and will do nothing to further the public health solutions urgently needed. We urge the Biden administration to issue a clear statement against the HALT Fentanyl Act and we ask Congress to vote no on this legislation.

The HALT Fentanyl Act fails to implement critical aspects of the Biden administration’s 2021 permanent fentanyl-related substances (FRS) scheduling proposal: 1) HALT fails to provide for “a streamlined process for the Department of Health and Human Services to identify and remove or reschedule any individual FRS” that does not pose a “high potential for abuse;” and 2) it contains no provision for studying the impact of permanent FRS scheduling on “research, civil rights, and the illicit manufacturing and trafficking of FRS.” These fatal flaws in the HALT Fentanyl Act --- the absence of what the SAP calls “critical components” of any permanent FRS scheduling initiative --- make it absolutely imperative that Congress votes no on the bill. A vote for the HALT Fentanyl Act is a vote against not just smart public health and public safety, but against your Administration’s stated position on permanent scheduling as well. 

Disappointingly, the SAP does not mention yet another unacceptable aspect of the HALT Fentanyl Act: its entrenchment and expansion of mandatory minimums. As drafted, the HALT Fentanyl Act expressly entrenches quantity-based mandatory minimums for trafficking FRS. Under the HALT Fentanyl Act, a person who distributes just 10 grams of an FRS will be subject to a 5-year mandatory minimum prison term, which increases to a 10-year mandatory minimum prison term for trafficking 100 grams of FRS. What’s more, the HALT Fentanyl Act also expands mandatory minimums to non-FRS fentanyl-analogue trafficking. Section 6 of the HALT Fentanyl Act, as amended, would express Congress’s view that non-FRS analogues of fentanyl should be subject to the same harsh quantity-based mandatory minimums that the HALT Fentanyl Act applies to FRS trafficking under the classwide scheduling approach.

May 22, 2023--Due Process Institute and 157 undersigned national, state, and local public health, criminal justice reform, and civil rights organizations wrote to urge Congress to reject and vote NO on the Halt All Lethal Trafficking of Fentanyl (HALT) Act. This bill, H.R. 467, 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.1 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.

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.

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. These laws imposed harsher penalties for crack—a substance associated with Black people—than for cocaine—a substance associated with white people—even though the two substances are chemically similar. In the ensuing decades, people of color have been disproportionately incarcerated and sentenced to mandatory minimum sentences for small amounts of crack. The emergence of fentanyl-related substances in recent years has fueled similar waves of alarmist media and law enforcement headlines that are informed by mythology rather than science. Any further extension of the classwide scheduling policy threatens to repeat past missteps with crack cocaine that policymakers are still working to rectify.

The HALT Fentanyl Act and other bills proposing the permanent classwide scheduling of FRS are

yet another iteration of the drug war’s ineffective and punitive strategies. To prevent overdose,

Congress must invest in a public health solutions to mitigate the harms of illicit fentanyl. We urge Congress to support bills like the Support, Treatment, and Overdose Prevention of Fentanyl (STOP Fentanyl) Act of 2021 (H.R. 2366) introduced by Rep. Ann Kuster (D-NH) and Rep. Lisa Blunt Rochester (D-DE), which proposes increased access to harm reduction services and

substance use disorder treatment, improved data collection, and other evidence-based methods to reduce overdose, and the TEST Act, which provides funding for FRS research and offers alternative strategies to simultaneously address the opioid epidemic while preventing backsliding on criminal justice reform.

May 4, 2023--Due Process Institute joined a coalition of organizations from across the ideological spectrum to urge Congress to pass H.R. 1525, the Fifth Amendment Integrity Restoration Act (FAIR Act), a bill that will reform our federal civil asset forfeiture system.

The FAIR Act is necessary because the current law of civil asset forfeiture allows the federal government to seize—and keep—cash, cars, homes and other property that law enforcement merely suspects is related to criminal activity. The government need not ever charge the property owner with a crime, much less secure a conviction, for it to seek forfeiture, and the procedural deck is stacked against private citizens who challenge the government. This

system is unjust on its face, has a disproportionate impact on poor and otherwise disadvantaged communities, and undermines public respect for law enforcement.

The FAIR Act attacks this improper financial incentive in two important ways. First, it directs all federal forfeiture proceeds to the General Fund of the U.S. Treasury so that Congress can appropriate those monies as it sees fit. Second, the bill ends the “equitable sharing” program that enables state and local law enforcement to evade their state legislatures’ limits on state-level forfeiture—limits that may include, for example, higher burdens of proof, more equitable procedural rules, or a requirement that proceeds go only to the general treasury—by “partnering” with federal law enforcement in exchange for a “cut” of forfeiture proceeds. The FAIR Act will close this loophole that undermines hard-won state legislative reforms.

May 1, 2023--Due Process Institute joined the Washington Lawyers’ Committee for Civil Rights and Urban Affairs and a coalition of civil rights organizations to urge the DC Department of Corrections and the DC Council to ensure that all DC residents can be full participants in our democracy by establishing a  procedure that will allow incarcerated District residents to be notified of, watch, and testify virtually at DC Council hearings. 

In 2020 the District of Columbia took the critical step of expanding the vote to incarcerated District residents through the “Restore the Vote Amendment Act of 2020.” This law expands the

right to vote in local and federal elections to District residents regardless of incarceration status ending a racialized practice of denying the vote to incarcerated individuals that had its origins in

Jim Crow laws. Since its enactment advocates, the DC Board of Elections, and the DC Department of Corrections (“DOC”) have collaborated to ensure that DC residents in DOC

custody have not only the right to vote, but the ability to do so. 

Since the start of the pandemic the DOC has utilized tablets and other technology to allow those held within its walls access to outside providers and educators. We hope this technology can be further expanded to allow incarcerated District residents direct access to and participation in their government. Consistent with local and federal law, we expect the process to be available and accessible to people with disabilities.

April 19, 2023--Due Process Institute led a coalition of civil liberties organizations to urge the Senate Committee on Commerce, Science, and Transportation to oppose S. 686, the “Restricting the Emergence of Security Threats that Risk Information and Communications Technology Act,” or the “RESTRICT Act.” The RESTRICT Act aims at information and communications (ICTs) technologies like TikTok that are considered a threat to the United States.

The criminal provisions in the RESTRICT Act are extremely troubling and dangerous for a number of reasons. First, nearly all of them, even those ironically called “specific unlawful acts,” are extraordinarily vague. They would punish the violation, attempted violation, or conspiracy to violate a regulation or order that has yet to be conceived or drafted and does not even currently exist. The Constitution requires notice in criminal statutes so that the public will know what conduct may render them liable. The Supreme Court has held that a statute criminalizing “loitering” provided notice that was constitutionally insufficient because it did not specify what conduct constituted “loitering.” In this bill, the criminal provisions are even less clear. The regulations that this bill makes it a crime to violate do not even exist yet and so no conduct is specified at all. This is unfair to the public who must have notice of what a crime is and is constitutionally questionable at best.

Second, it constitutes a massive delegation of criminal lawmaking authority to the administrative state. There has been renewed skepticism of the administrative state and abuses of power over the past several years. There have been several legislative efforts to reassert congressional power on a variety of issues, ranging from war powers to emergency powers to trade. Even later this year, Congress is expected to consider major reforms to how agencies interact with technology companies through various surveillance authorities.

Third, even the “specific unlawful acts” that are, in fact, specified are extraordinarily harsh or entirely unnecessary. One is a 20-year term in federal prison for noncompliance with a “reporting or recordkeeping” requirement. Twenty years in prison for a paperwork violation is extremely severe and would only exacerbate our nation’s mass incarceration. Additionally, making a false statement to the Government is criminalized, but this exact act is already criminalized in numerous other places in federal law. This new criminalization will only worsen the trial penalty, incentivize prosecutors to pile on charges, and coerce people, including innocent people, into guilty pleas.

Finally, the RESTRICT Act also includes an alarming expansion of federal civil asset forfeiture. Federal civil asset forfeiture laws flip the presumption of innocence on its head by requiring the person from whom property is seized to prove that it was unconnected to criminal activity. Given this incredibly unfair standard and the fact that law enforcement can keep a huge percentage of the proceeds of forfeited items, it is unsurprising that it has been well documented that civil asset forfeiture is ripe for abuse.

This legislation is far more expansive and encompassing than its supporters admit and echo the words of the House Financial Services Committee, which recently noted, “The RESTRICT Act is using TikTok as a smokescreen for the largest expansion of executive power since [the International Emergency Economic Powers Act.” The Senate Committee on Commerce, Science, and Transportation must consider these overcriminalization concerns as it approaches any action on the RESTRICT Act.

March 15, 2023--Due Process Institute, Americans for Prosperity, Restore the Fourth, Demand Progress Action, Project for Privacy and Surveillance Accountability, FreedomWorks, Electronic Privacy Information Center, and Free Press Action wrote to urge congressional leaders to hold hearings on the government’s surveillance of Americans given the latest revelations of unconstitutional surveillance by the intelligence community made at last week’s hearings held by the Senate Select Committee on Intelligence and House Permanent Select Committee on Intelligence. These revelations included the warrantless searches of Section 702 data based on local political party affiliation and racial profiling, over 200,000 searches of Americans’ communications in 2022 by the FBI, and the circumvention of court order requirements by federal agencies when obtaining mobile phone geolocation data.

Congress must approach its review of the 702 program and related intelligence operations with the same purpose as the original Foreign Intelligence Surveillance Act of 1978: to rein in rogue intelligence agencies and ensure proper Congressional oversight. This year’s Section 702 reauthorization debate presents a unique opportunity for Congress to work together to accomplish much needed reforms. Meaningful proposals have long been pursued by members across the political spectrum who have rightly expressed concern with warrantless surveillance of people in the United States. To inform the debate, it is necessary for the committees of jurisdiction to begin holding hearings with a focus on protecting the civil liberties of all Americans.

March 7, 2023--Due Process Institute supported the recent re-introduction of bipartisan bills in both the House and Senate that would finally end the sentencing disparity between crack and powdered cocaine, one of the most unjust aspects of federal sentencing law. Re-introduced by Sens. Cory Booker (D-NJ), Dick Durbin (D-IL), Lindsey Graham (R-SC), Thomas Tillis (R-NC), Christopher Coons (D-DE), Cynthia Lummis (R-WY), Sheldon Whitehouse (D-RI), and Rand Paul (R-KY) and Reps. Hakeem Jeffries (D-NY), Kelly Armstrong (R-ND), Bobby Scott (D-VA), and Don Bacon (R-NE), the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act, S. 524 and H.R. 1062, would equalize the treatment in sentencing between crack cocaine and powdered cocaine, reducing the ratio from 18:1 to 1:1—finally, equal treatment under the law. Importantly, the EQUAL Act would make these changes retroactive upon a motion from the defendant, the Bureau of Prisons, or a prosecutor so that justice may be served to all who are still impacted. 

There is overwhelming evidence that the disproportionately higher penalties for crack cocaine have had a racially disparate outcome. According to the U.S. Sentencing Commission, 77.6 percent of individuals sentenced for crack cocaine offenses in FY 2021 were Black while another 15.2 percent were Hispanic and 87.5 percent of the people in federal prison for drug trafficking offenses involving crack cocaine were Black. To further highlight the law’s racially disparate outcomes, 91.4 percent of those who received sentencing reductions as a result of the First Step Act’s retroactivity provision were Black. Despite these disproportionate outcomes in incarceration, a 2006 study published by the American Civil Liberties Union showed that Whites are actually more likely to use crack cocaine. As the Center for Behavioral Health Statistics and Quality reported in the National Survey on Drug Use and Health, nearly 80 percent of respondents who reported usage of crack cocaine in their lifetime were White. 

The EQUAL Act received significant bipartisan support last Congress. The House version of the bill passed by a vote of 361-66 in September 2021. The Senate version had over 35 cosponsors, including 23 Democrats and 11 Republicans, but did not receive a committee or floor vote. The EQUAL Act has been widely endorsed by local and national law enforcement groups as well as civil and human rights organizations across the political spectrum. Congress must address indisputable racial disparities in federal sentencing. It is vital that Republicans and Democrats work together to remedy this longstanding injustice and send the EQUAL Act to President Biden’s desk this year.