In our opinion, the existing statutory framework of Section 314 and its implementing regulations already give significant cause for concern and fail to adequately protect Americans’ Fourth Amendment and privacy rights. Previous attempts to expand this program through statutory or regulatory means are even more concerning. It is our hope that FinCEN will reevaluate the necessity and efficacy of the Section 314 program and ultimately abandon the practice of warrantless bulk searches and seizures of financial records, or at the very least, adopt clear legal standards and procedural measures consistent with our foundational Constitutional rights. It is also our hope that FinCEN will discontinue its attempts to expand this program by lobbying Congress to amend the authorizing statute or via pursuing additional rulemaking.

DPI President Shana O'Toole was quoted in Law360 regarding the recently decided criminal law Supreme Court case Haymond v. United States:

     "Shana-Tara O'Toole, founder and president of the nonprofit Due Process   

     Institute, which filed a brief supporting Haymond, said the ruling protected the 

     rights of criminal defendants and may point the way to more robust 

     jurisprudence on the limits of sentencing.

     One example O'Toole raised is the 'long-standing question' of whether judges 

     may factor in conduct that has led to an acquittal in sentencing defendants for 

     a charge where they have been convicted.

     'We are pleased to see Justice Gorsuch and the majority of the court recognize 

     the importance of the right to jury trial in our constitutional system and hope 

     that it is a signal of where a majority of the court might be on similar 

     questions,' O'Toole said."

"Both liberals and conservatives harbored concerns about the First Step Act’s impact on non-citizens, but from different perspectives, said Joseph Luppino-Esposito, director of the Rule of Law Initiatives for the bipartisan Due Process Institute, who had lobbied Republicans in support of the act. Liberals were worried the law would be too harsh, while conservatives worried non-citizens with drug convictions would be set free. But changing policies toward non-citizens proved too loaded an issue to tackle in this bill, he said. “'These people did go through the (criminal justice) process, and this is sort of the accepted process,' he said. 'Whether or not you agree with the status quo is another issue.'"

Yesterday, the House of Representatives voted to pass an important measure, introduced by Rep. Tim Walberg, that would curb the use of "federal adoption" of state and local law enforcement seizures of money and property except in limited circumstances. This measure is one important step in limiting the abuse of civil asset forfeiture, a practice that allows law enforcement to seize money and property from individuals under a mere suspicion of unproven unlawful activity. Neither criminal charges nor an arrest is required for law enforcement to execute this type of seizure. The owners of the property have no right to counsel to challenge the seizure, making it difficult to recover property that law enforcement have wrongly seized, and the legal procedures that govern civil asset forfeiture are inadequate to protect innocent property owners.

The House voted to limit the specific unfair practice of "federal adoption," which is a procedure used by state and local law enforcement agencies to evade any existing state or local legal restrictions on civil asset forfeiture by allowing the federal government to "adopt" the property, but then return much of the financial proceeds from the seizure back to the state or local law enforcement agency anyway; this allows law enforcement to profit from a seizure even in cases where their own laws would have prevented such a direct seizure. The Due Process Institute lauds this important vote in favor of increasing basic fairness in civil asset forfeiture procedures--an area rife with well-documented abuse. 

The Due Process Institute is urging Representatives to support the Amash-Lofgren amendment (Division C, amendment #24) to H.R. 2740, the Labor, Health and Human Services, Education, Defense, State, Foreign Operations, and Energy and Water Development Appropriations Act of 2020. Why?  

The Amash-Lofgren amendment seeks to thoughtfully limit the warrantless surveillance of Americans conducted pursuant to Section 702 of the Foreign Intelligence Surveillance Act. Specifically, the Amash-Lofgren amendment prohibits: 

1. The intentional targeting of people outside the United States when a significant purpose of that targeting is to acquire communications of a particular person in the United States (often referred to as “reverse targeting”); 

2. The acquisition of communications to which no participant is a target (often referred to as “about collection”). The government halted this collection in 2017, but importantly asserts it has the authority to restart this collection; and 

3. The acquisition of communications known to be entirely domestic. The government unlawfully collects tens of thousands of wholly domestic communications under Section 702.

The Due Process Institute sent a letter to Sens. Mike Crapo (R-ID) and Sherrod Brown, (D-OH), the Chairman and Ranking Member, respectively, of the Committee on Banking, Housing, and Urban Affairs, sharing concerns regarding proposed new criminal laws and unintended consequences of proposed beneficial ownership reporting requirements. 

"Joe Luppino-Esposito, Director of Rule of Law Initiatives at the Due Process Institute, said the size of the wave is important to keep in context. 'There are 3,000 to 4,000 inmates released every month as their sentences end,' he said.

"Still, Luppino-Esposito said that 'it will be important for advocates around the country to step up and help these people return to society and lead productive, crime-free lives.'  "Matthew Charles, a guest of Trump’s at the State of the Union, had trouble finding housing after his release under the First Step Act, Luppino-Esposito noted."

The Due Process Institute, along with the American Civil Liberties Union and FreedomWorks, has issued a Hill Alert opposing H.R. 2513,  Corporate Transparency Act of 2019 , because of serious concerns regarding privacy and the use of criminal penalties. Five new federal crimes would be created for first-time paperwork violations, using vague terms and complicated reporting regimes that are likely to trap many small business owners.    

The Due Process Institute is endorsing the Restoring Education And Learning (REAL) Act [S. 1074; H.R. 2168] that has been proposed in both the Senate and the House. The original cosponsors are Sens. Brian Schatz (D-HI), Mike Lee (R-UT), and Dick Durbin (D-IL) and Reps. Danny Davis (D-IL), Jim Bank (R-IN), Barbara Lee (D-CA), and French Hill (R-AR). 

“Our justice system fails us if the people returning back into our communities after incarceration do not succeed and the REAL Act takes an important step towards addressing an existing failure,” said Shana O’Toole, President of the Due Process Institute. “Education is a critical piece of preparing incarcerated individuals for reentry. After our work on the First Step Act, we know how important Pell eligibility is for establishing much-needed educational programs and learning behind the wall.

“Incarcerated individuals deserve a meaningful opportunity to educate themselves in order to prepare to rejoin us as productive members of society—and we are grateful to see that providing this kind of support is a bipartisan cause.”

The Due Process Institute is endorsing the FAIR Act, H.R. 1895, co-sponsored by Republican Reps. Tim Walberg, Tom McClintock, and Thomas Massie, and Democrat Reps. Jamie Raskin, Tony Cardenas, and Bobby Rush. The FAIR Act protects Americans against civil asset forfeiture practices that deprive citizens of their property without proper legal processes.

“The FAIR Act restores basic due process rights that have been undermined for decades because of abusive civil asset forfeiture practices. These meaningful reforms have been supported by policymakers and advocates on both sides of the aisle, and we are proud to count ourselves in that group,” said Shana O’Toole, President of the Due Process Institute.

“These are sensible, impactful reforms, and we look forward to advancing the FAIR Act to the President’s desk.”

The Due Process Institute joined several civil liberties and tech organizations in asking Congress to refrain from funding certain invasive surveillance technology as a security measure to protect the nation's border. These proposals have included biometrics, mass surveillance, license plate readers, and DNA data, among others.