Learn how you can help ensure that the principle of due process endures this crisis
Learn how you can help ensure that the principle of due process endures this crisis
Due Process Institute is a bipartisan nonprofit that works to honor, preserve, and restore principles of fairness in the criminal legal system.
Importantly, procedural due process concerns transcend liberal/conservative labels and therefore we focus on achievable results based on core principles and values that are shared by all Americans.
Guided by a bipartisan Board of Directors, and supported by bipartisan staff, we create and support achievable solutions for challenging criminal legal policy concerns through advocacy, litigation, and education.
We are lawyers and lobbyists for the Constitution, working with an incredibly diverse coalition of lawmakers, public policy organizations, defenders, business leaders, the formerly incarcerated and their families, and the public to help bring more fairness to the criminal legal system.
Res, non verba. Deeds, not words.
It's time for action.
--Follow us on social media and amplify our messages to help educate others about the important policy issues you care about
--Join our ACTION CAMPAIGNS. Let your voice be heard by your lawmakers!
--Volunteer as an attorney for our amicus work
--Volunteer to write for our blog
--Join our staff or board
--Support our 501(c)(3) sister organization at Clause 40 Foundation
Due Process Institute hosted its annual lunch event with leading Supreme Court scholars and litigators Jeffrey L. Fisher (Co-Director, Supreme Court Litigation Clinic at Stanford Law School) and Erin E. Murphy (Partner, Clement & Murphy) .
Watch their discussion on the criminal law docket of the upcoming 2024-25 SCOTUS term and be on the lookout for registration information for next year's event!
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.
July 15, 2024--Due Process Institute and Right on Crime submitted recommendations to the U.S. Sentencing Commission for the 2025 amendment cycle. We applaud the Commission for the transparent and communicative process which is essential for good governance and trust. The letter to the U.S. Sentencing Commission included the following recommendations:
The recommendations also encouraged the Commission to remove language on “intended loss,” clarify the meaning of “sophisticated means” and “position of trust,” and consider punishment of criminal defendants who testify by barring prosecutors from tacking on an obstruction of justice enhancement.
“This amendments process encourages a comprehensive dialogue on meaningful and data-driven improvements to the criminal justice system,” said Brett Tolman, Right On Crime Executive Director and former U.S. Attorney. “Right On Crime commends the Commission for its continued efforts to remove ambiguities, consolidate redundant laws, and help prevent prosecutorial abuse.”
“The recommendations we are putting forth aim to address multiple longstanding inconsistencies with drug penalties, the unconstitutional practice of acquitted and relevant conduct sentencing, and the overly broad application of numerous sentencing enhancements,” said Shana-Tara O’Toole, Due Process Institute Founder and President. “We look forward to continuing our work with the Commission to address these vital issues.”
July 10, 2024-- Statement by Shana-Tara O’Toole, Founder and President of the Due Process Institute, on President Biden signing the Federal Prison Oversight Act into law:
“We are delighted that President Biden has signed the Federal Prison Oversight Act into law. Passed with overwhelming bipartisan support in the House and passed by unanimous consent in the Senate, this landmark legislation will improve safety for incarcerated people and prison staff by requiring inspections of all Bureau of Prison (BOP) facilities and reporting the findings to Congress. These reforms ensure proper oversight of the BOP and create accountability, transparency, and safety within our federal prison system.
The passage of the Federal Prison Oversight Act is a culmination of tireless work from a wide array of reform organizations, including Due Process Institute. This is yet another reminder that commonsense criminal legal reform has support from both sides of the aisle.
Finally, we would like to thank President Biden, Rep. Kelly Armstrong (R-ND-At Large), Rep. Lucy McBath (D-GA-7), Sen. Jon Ossoff (D-GA), and Sen. Mike Braun (R-IN) for their leadership in supporting this bill.”
May 21, 2024--Statement by Shana-Tara O’Toole, Founder and President of the Due Process Institute, on the House of Representatives passing the Federal Prison Oversight Act:
“We applaud the House of Representatives for passing the Federal Prison Oversight Act (H.R. 3019) by a 392-2 vote. Given the history of inhumane prison conditions inside the Bureau of Prisons (BOP) and the recent Inspector General report on deaths in custody, this legislation was desperately needed and long overdue. The bill will improve safety for incarcerated people and prison staff by requiring inspections of all BOP facilities and reporting the findings to Congress. It will also establish an independent Department of Justice ombudsman to receive complaints from incarcerated persons on health and safety issues.
We thank Rep. Kelly Armstrong (R-ND-At Large) and Lucy McBath (D-GA-7), along with a long list of bipartisan cosponsors, for their leadership in supporting this bill. The 196 Republican and 196 Democrat members of Congress who voted for this bill demonstrate commonsense criminal legal reform still has wide bipartisan support. We now urge the Senate to take up and pass this bill with desperately needed oversight of the Bureau of Prisons. It is time for accountability, transparency, and safety in our federal prison system.”
May 7, 2024--Due Process Institute and 130 other organizations sent a letter to the United States Senate Committee on Finance urging members to refrain from advancing consideration of H.R. 6408, and its companion bill S. 4136, introduced by Senators John Cornyn and Angus King. This proposed legislation would unconstitutionally harm all Americans' free speech and due process rights by creating new executive authorities that could be abused by any presidential administration seeking to terminate the tax-exempt status of nonprofit organizations arbitrarily.
If enacted, this act would grant the Secretary of the Treasury broad discretionary powers to terminate the tax-exempt status of nonprofit organizations based solely on a subjective declaration that they are "terrorist supporting organizations." This proposal lacks sufficient accountability measures and opens the door to potential abuse, especially given the current climate of increased politicization and polarization within the U.S. government.
May 2, 2024--Statement by Shana-Tara O’Toole, Founder and President of the Due Process Institute, on the Drug Enforcement Administration’s recommendation to reclassify marijuana as a Schedule 3 drug:
“Yesterday, the Drug Enforcement Administration recommended a reclassification of marijuana from a Schedule 1 to a Schedule 3 drug. Effectively, this would recognize marijuana as a far less dangerous substance and no longer categorize it alongside drugs like heroin. We acknowledge and celebrate the significance of this recommendation as part of the de-escalation of the ‘war on drugs.’ However, this reform still falls short in addressing some of the most harmful consequences of the United States’ misguided drug policy, has limited impact on federal marijuana arrests, and does not provide relief for people currently serving unnecessarily long sentences for marijuana possession.
We recommend the Biden administration continue this momentum for drug reform by supporting legislation that improves second chance opportunities for people with nonviolent marijuana offenses like the Clean Slate Act, pushing for the full descheduling of marijuana and its removal from the Controlled Substances Act, and continuing the use of the President’s pardon power to rectify unjust marijuana sentences.”
April 22, 2024--Statement by Shana-Tara O’Toole, Founder and President of the Due Process Institute, on the United States Senate’s passage of Reforming Intelligence and Securing America Act without amendment:
“We are dismayed by the Senate’s passage, without amendment, of the Reforming Intelligence and Securing America Act (RISAA) over the weekend. This legislation not only reauthorizes FISA Section 702 and enables intelligence agencies to continue mass warrantless surveillance, it expands the power of the surveillance state by giving the government authority to compel assistance from the vast majority of US businesses for domestic spying. This bill’s passage was, in large part, made possible by fear tactics and outright falsities about the April 19 deadline. The biggest losers of this vote are unfortunately the American people who will continue to be subjected to warrantless searches of their personal communications.
While we cannot hide our disappointment over the passage of RISAA and the ramifications for privacy are severe, we want to thank those Senators who championed the Constitution and the Fourth Amendment, including: Chairman Durbin and Senators Lee, Paul, and Wyden. Furthermore, the momentum built by our coalition of civil liberties organizations cannot be ignored as illustrated by this week’s passage of the Fourth Amendment Is Not For Sale Act in the House. The next FISA reauthorization is two years away, during which we will continue to fight for your privacy rights.”
April 17, 2024--Statement by Shana-Tara O’Toole, Founder and President of the Due Process Institute, on the United States Sentencing Commission promulgating an amendment to prohibit acquitted conduct sentencing:
“We commend the United States Sentencing Commission (USSC) for unanimously promulgating an amendment today that prohibits the use of acquitted conduct when applying the Federal Sentencing Guidelines. This is undoubtedly a step in the right direction as acquitted conduct sentencing is a fundamentally unfair and unconstitutional practice that punishes defendants with lengthier sentences based on crimes they were never convicted of. We now hope Congress will adopt the amendment. If Congress chooses not to act, we look forward to the amendment’s effective date in November 2024.
However, the USSC’s amendment still does not prevent the courts from increasing sentences based on acquitted conduct under 18 USC § 3661. We urge Congress to pass the Prohibiting Punishment of Acquitted Conduct Act in order to rectify the dissonance between the USSC’s amendment and the broad federal statute that still allows for acquitted conduct sentencing.”
April 9, 2024--Due Process Institute and a bipartisan coalition of criminal justice reform organizations urged House Oversight Committee Chair James Comer to support and advance the Federal Prison Oversight Act (H.R. 3019). We strongly support this effort to improve the Bureau of Prisons (BOP) because it is aligned with core values of ensuring government accountability and improving public safety. This common sense legislation accomplishes these goals by increasing accountability in our prison system, preventing harm to both those living and working in these facilities, and providing transparency for those individuals serving to keep prisons safe as well as the public at large.
America’s prison system is in crisis. Support of independent prison oversight stems from irrefutable evidence of failure that puts corrections officers and those they oversee at risk of serious injury, exemplified by facilities that are overcrowded, understaffed, underfunded, unsafe, and in a state of dangerous disrepair. The absence of oversight has given rise to a prison system that is rampant with abuse, neglect, and mismanagement, making rehabilitation difficult and endangering everyone who lives and works in a federal prison. The Federal Bureau of Prisons (BOP) employs over 34,000 people and is responsible for the care of over 150,000 people with a budget north of $8 billion. Still, the BOP has historically operated with little transparency and accountability. The BOP should be safer and more productive for the people who reside and work in their facilities, and more accountable and transparent to taxpayers. It is known that when correctional officers are given the proper resources and prisoners are provide to pathways to rehabilitation there is a direct increase in public safety through reduced recidivism rates.
In a national poll, 82% of Americans said they believe there should be a system of independent oversight of our federal prisons. Support for H.R.3019 benefits not only individuals who are incarcerated, correctional staff, and communities, but also members of Congress. Equipped with the insights of an oversight body that conducts routine inspections, investigates systemic issues, collects and analyzes data, and reports its findings, members of Congress can make more informed policy and appropriations decisions. These decisions can save lives and ensure
correctional staff can focus on fostering a safe environment behind bars which leads to success when incarcerated individuals return to society.
April 1, 2024--Due Process Institute and a coalition of civil liberties organizations urged Speaker Johnson and Leader Jeffries to oppose the Reforming Intelligence and Securing America Act (RISAA), H.R.7320, and to block its consideration on the House Floor unless members have the opportunity to vote on amendments that were critical components of this legislation’s negotiated introduction. House Members across the political spectrum are eager to vote for legislation that reforms Section 702 of the Foreign Intelligence Surveillance Act (FISA), and moving forward with only a vote on RISAA would deprive them of that opportunity. Blocking off votes on critical issues that have been central to the past year’s debate over FISA would harm Americans’ privacy, as well as needlessly threaten Section 702’s future viability.
By hewing closely to HPSCI’s legislation, RISAA is carefully crafted to preserve the status quo, not to enact the serious privacy protections for which most Americans and members of Congress are calling. We therefore urge you to oppose Floor consideration of any legislation, including RISAA, that would reauthorize Section 702 without providing votes on key amendments, including those to close the backdoor search and data broker loopholes.
March 29, 2024--Due Process Institute and Justice Action Network submitted comments on a proposed Bureau of Prisons (BOP) rule that would prohibit incarcerated persons from "accessing, using, or maintaining social media, or directing others to establish or
maintain social media accounts on [their] behalf."
The proposed language would unjustly punish people incarcerated at Bureau of Prisons (BOP)
facilities using the harshest possible means for communication on social media, without regard to whether the communication has a legitimate legal or personal purpose. We believe that a full and total ban would be excessive in its own right, but a ban with significant sanctions for violations is an extreme policy. This rule is especially concerning when proposed amid increasing documented instances of abuse, including rape and unconstitutionally inhumane conditions such as substandard medical care and more at BOP facilities. Further, victims of this abuse have faced retaliation or cover-ups by prison personnel or other incarcerated people, and can thus feel a chilling effect when reporting issues through the normal channels.
Many individuals who are incarcerated have family and friends who are concerned about their
well-being while in prison. Not only do we know that maintaining these contacts is vital for
incarcerated peoples’ mental health, considering the likelihood of abuse and poor conditions,
these concerns are justifiable. Social media provides a way for incarcerated individuals, families,
and friends to raise awareness of violence, sexual abuse, unsafe and unsanitary conditions, and
more inside the walls of federal prison facilities. Social media also provides a means to advocate
for an incarcerated individual beyond the conditions inside of prisons, which may include
ongoing court proceedings, appeals, and clemency or pardon petitions.
BOP Director Colette Peters has long stated that she believes in increasing transparency at the BOP, and has said she wants to humanize and normalize life in prison. Including this language in the proposed rule runs contrary to these views. We oppose the inclusion of this language on social media use and urge the BOP to remove it from the proposed rule.
February 28, 2024--Due Process Institute and a coalition of civil liberties and privacy organizations joined to urge congressional leaders to oppose the inclusion of Section 702 reauthorization in a must-pass funding bill and to categorically reject any such approach. 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.
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. Bypassing this process by slipping an extension of the law into a must-pass funding bill would demonstrate a blatant disregard for the civil liberties and civil rights of the American people.
It is clear that the only reason for including Section 702 in the continuing resolution would be to deny members a vote on critically-needed reforms. We urge you not to betray the trust of the American people by following such a course of action.
February 14, 2024--Due Process Institute and a broad bipartisan coalition of privacy, civil rights, civil liberties, and government transparency organizations joined in a statement on the House's plan to move at least part of the public debate over mass and often secret surveillance behind closed doors in a secret session:
"It is appalling that the U.S. House of Representatives has not learned the lessons of the last secret session on warrantless surveillance in 2008, which perpetuated a mass violation of constitutional rights. This week, the House is poised to repeat those mistakes by going into another extraordinarily rare and wholly unnecessary secret session to shut out the public and potentially move toward another expansion of warrantless surveillance powers.
The reason why there is bipartisan support among civil society and members of Congress for warrantless surveillance reform is the well-documented abuses of FISA authorities by the federal government for well over a decade. These powers have been used to conduct tens of thousands of inappropriate searches, some related to the exercise of constitutionally protected activities. Members of Congress have been surveilled, average Americans have been surveilled, and unless there is reform now, the abuses will continue.
According to a recent poll, 78% of Americans think Congress should “strengthen privacy protections for people in the U.S. against warrantless government surveillance.” Congress has a duty to continue public debate and not circumvent the American people. To conduct proceedings in secret on a set of authorities that directly impact Americans is antithetical to a free society."
Leading criminal legal reform policy analysts discussed chapters from the new book "Excessive Punishment: How the Justice System Creates Mass Incarceration" and how Congress can improve outcomes and increase public safety through bipartisan policy solutions.
Watch the panel moderated by Shana O'Toole, President + Founder, with Jason Pye (Vice President of Due Process Institute), David Singleton (Associate Professor at UDC Law), and Ed Chung (Vice President of Initiatives at Vera Institute):
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:
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.”
Jason Pye (Director, Rule of Law Initiatives) spoke on the "Sentencing Alternatives" panel with Laura Coates (CNN Anchor), Satana Deberry (Durham DA) , Karen Friedman (Director, Criminal Justice Innovation, Development, and Engagement at DOJ), and Xavier McElrath-Bey (Executive Director, Campaign for the Fair Sentencing of Youth).
Watch their discussion on how we can improve the criminal legal system:
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.
March 6, 2023--Due Process Institute, national, state, and local public health and other criminal justice reform organizations urged Congress to reject and vote NO on the Halt All Lethal Trafficking of Fentanyl (HALT) Act (H.R. 467). 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. Furthermore, 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. 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.
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.
February 28, 2023--Due Process Institute joined a diverse coalition of civil rights organizations urging members of Congress to repeal the lifetime ban on individuals with a past felony drug conviction from receiving Supplemental Nutrition Assistance Program (SNAP) or Temporary Assistance for Needy Families (TANF) as part of the next Farm Bill.
SNAP and TANF provide minimal, supplemental support during times of financial hardship and food insecurity. Individuals and families who qualify for SNAP and TANF generally live below 200% of the federal poverty line. The lifetime drug felony bans on SNAP and TANF imposed by Congress undermine efforts by individuals to transition successfully from the criminal legal system into their communities and to provide for their families. Formerly incarcerated people struggle with unemployment and other barriers to reentry. Food insecurity is also pervasive among people transitioning from the criminal legal system.
The lifetime felony drug bans hurt not only individuals with convictions, but also their children. Families receive a much lower overall benefit when a parent is ineligible for SNAP/TANF as a result of a drug felony conviction. This means that families with an adult who is banned from benefits have access to less food and support, causing those family members to experience food insecurity and increased stress that can lead to preventable health problems for both adults and children. Ultimately, the lifetime drug felony bans on SNAP and TANF can increase the risk of recidivism. One study by an economist at the University of Maryland estimated that individuals still subjected to the drug felony ban in Florida are about nine percentage points more likely to return to prison after release than individuals with prior drug convictions who have access to SNAP under Florida’s partial opt-out of the federal ban. Similarly, a 2017 study by a researcher at the Harvard University School of Law found that eligibility for SNAP and TANF significantly reduces recidivism.
After twenty-five years, it is time for Congress to end these punitive bans.
February 6, 2023--Due Process Institute and a diverse coalition of criminal justice organizations urged members of the House of Representatives to oppose any obstruction of the District of Columbia's Revised Criminal Code of 2022 (RCCA), including any resolution of disapproval or budget rider. The RCAA is the product of 16 years of research, an expert commission, 51 public meetings, extensive public feedback, and robust negotiation. As such, the D.C. Council voted unanimously to pass the RCCA and the RCCA is supported by 83% of District voters. Opponents of the RCCA, however, are spreading misinformation about the RCCA’s impact in a blatant attempt to erode home rule and trample on the rights of District residents.
First, Washingtonians know best how to address criminal justice policies in their community and
deserve the right to determine their own laws. Local leaders are better positioned and retain
more expertise to address safety and justice issues in the District than Congress. Second, the RCCA is a long-overdue modernization of the D.C. Criminal Code. Since the 1960s, dozens of states have embarked on criminal code reforms, removing obsolete provisions, ensuring sentences are proportionate and equitable, and simplifying overlapping charges. The RCCA follows that trend – the District last comprehensively revised the criminal code in 1901. A revision to reflect best practices in sentencing and criminological evidence is necessary. Third, to arrive at this revision, the District engaged in a thorough, transparent, and evidence-based process. Finally, the RCCA is a balanced bill – bringing the District in line with national sentencing norms by lengthening some sentences, reducing some maximums, and other reforms. The RCCA includes many modernizations, such as aligning D.C. with the majority of the country by creating the right to a jury trial for misdemeanors.
The people and leaders of the District support the RCCA. The RCCA is also backed by an
abundance of research, data, and stakeholder feedback. Attempts by Congress to intervene are
rooted in efforts to end home rule and falsehoods. We urge you to respect the will of
Washingtonians and oppose all efforts, whether a resolution of disapproval or budget rider, to
obstruct the RCCA.
January 30, 2023--Due Process Institute and 85 civil liberties organizations wrote to strongly support legislation that recognizes Fred Korematsu’s legacy as a civil rights hero. Accordingly, we endorse the following legislation: (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.
On February 19, 1942, President Franklin D. Roosevelt signed Executive Order 9066, which
authorized the forced relocation and incarceration of Japanese Americans. In all, more than
120,000 Japanese Americans were detained and forcefully removed from their homes without
charges or due process for years. The lawsuit brought by Fred Korematsu, an American citizen of Japanese descent, fought the implementation of that order, challenging the mass violation of civil liberties on the basis of race. Korematsu stood against these unfounded and racist actions. At the time, our institutions — our democracy — failed him. The Supreme Court, intended as a bulwark against Executive power run amok, upheld Korematsu’s detention in Korematsu v. United States in 1944, with a 6-3 majority. However, the dissent by Justice Frank Murphy spoke the truth that the United States, grudgingly and slowly, would come to recognize through executive, judicial, and legislative action. Justice Murphy declared the order to detain Japanese Americans the “legalization of racism.” The imprisonment of Americans of Japanese ancestry, and its legal sanction, is now recognized as a grave injustice and a violation of civil liberties.
Congress should 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 we endorse and urge the enactment of the following legislation: (1) Korematsu-Takai Civil Liberties Protection Act, which would prohibit detention or imprisonment based solely on an actual or perceived protected characteristic of an individual. (2) 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. (3) 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.
January 26, 2023--Due Process Institute and other criminal justice reform organizations urged Senate Judiciary Chair Dick Durbin and Ranking Member Lindsey Graham to schedule a mark-up for the EQUAL Act as soon as it is reintroduced. Moving the bill early this year will help prevent the same disappointing fate the bill suffered last Congress.
The arguments for passing the EQUAL Act remain clear. There is no scientific justification for the sentencing disparity between crack and powder cocaine-related offenses. Crack and powder are simply two forms of the same drug. Punishing crack offenses more harshly does nothing to enhance public safety. It does, however, contribute greatly to racial disparities in the federal prison population. Approximately 90 percent of people incarcerated for crack offenses are Black. In Fiscal Year 2020, nearly 77 percent of people sentenced for crack cocaine offenses were Black. The EQUAL Act would bring the federal justice system more in line with the vast majority of states that do not punish crack and powder cocaine differently.
Last Congress, the EQUAL Act was one of only a few pieces of legislation to enjoy clear bipartisan support. The House of Representatives passed the bill in September 2021 with an overwhelmingly bipartisan vote of 361-66. The Senate version of the bill enjoyed the support of more than 60 senators, but never received a vote in committee or on the floor. To ensure this strong bipartisan bill reaches President Biden’s desk, it is vital to begin work on this urgent piece of legislation immediately.
January 10, 2023–Due Process Institute joined the Justice Roundtable and a bipartisan coalition of organizations to express opposition to H.R. 27, the Prosecutors Need to Prosecute Act. The goal of this legislation is clear: to pressure prosecutors to prosecute more cases more harshly despite bipartisan concerns that the United States already incarcerates far too many people for far too long.
H.R. 27 mandates that prosecutor’s offices in jurisdictions with populations over 380,000 disclose, for enumerated offenses, information related to the number of cases referred by the police, declinations, bail requests, plea bargains, an individual’s criminal history, and convictions. It also makes this reporting a requirement for funding under the Edward Byrne Memorial Justice Assistance Grant Program (“Byrne”) and is based on a false premise that filing more criminal charges, detaining more people pre-trial, and making fewer plea offers will make our communities safer. Finally, this bill fails to require the collection of data that would provide a robust picture of prosecutorial practices and avenues for reform.
Meanwhile, this bill does not address violent crime. It rests on the assumption that more pretrial incarceration and more prosecutions seeking harsher sentences will increase public safety. Yet there is no evidence to support this. Research by the NAACP Legal Defense and Education Fund's Thurgood Marshall Institute found that non-reform prosecutors, the absence of bail reform, and increased police budgets did not prevent cities from experiencing a homicide spike in 2020. A better approach to public safety would be to invest in evidence-based approaches, such as non-carceral crisis response, violence intervention, substance abuse treatment, lifting barriers to reentry for formerly-incarcerated people, and investments in education, housing, and job training.
Furthermore, transparency in criminal legal system data is critical and there should be bipartisan efforts to improve data collection around arrests, prosecutions, and convictions; however, the Prosecutors Need to Prosecute Act is the wrong approach to achieve these goals. All communities should be able to hold their prosecutors accountable for their policies and actions. Prosecutors should disclose a wide array of data, including the demographics of those they prosecute. Experts have offered valuable models for how prosecutors can collect, monitor, and share data with their communities to improve safety, fairness, and equity. Yet this bill fails to require reporting of critical data needed to provide a full and accurate picture of prosecutorial practices.
As a result, the bill would not only not result in real accountability, but compliance would also come at the expense of reforms that are more likely to contribute to public safety. For all these listed reasons, we urge Representatives to oppose H.R. 27, the Prosecutors Need to Prosecute Act.
Sign up to hear from us directly about key reform efforts + special events. (Trust us, we won't flood your in-box!)
202-558-6680
700 Pennsylvania Avenue SE #560
Washington, DC 20003
dueprocessinstitute@gmail.com
Copyright © 2024 Due Process Institute - All Rights Reserved.
Please note: contributions to Due Process Institute, a 501(c)(4), are not deductible for federal tax purposes.
This website uses cookies. By continuing to use this site, you accept our use of cookies.