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 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 2023-24 SCOTUS term and be on the lookout for registration information for next year's event!
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.
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.”
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.
December 2, 2022--Due Process Institute and diverse group of organizations urged Congress to safeguard and strengthen our democratic institutions by enacting National Emergencies Act (NEA) reform during this Congress, either as a stand-alone or as part of broader legislation. Absent reform, presidential abuse of the NEA is a matter of “when” rather than “if.” The law gives the president nearly unfettered discretion to declare a national emergency. That declaration unlocks more than 120 statutory authorities, including emergency powers that a president could rely on to shut down communications facilities, seize private property, and control domestic transportation.
The NEA reform provisions shared by PODA and the HSGAC-passed version of the ARTICLE ONE Act would establish a necessary, meaningful check on the president’s use of emergency powers, while maintaining flexibility for the president when needed most — in the immediate aftermath of a crisis. Under these provisions, presidential emergency declarations would expire after approximately one month (20 legislative days under PODA and 30 calendar days under the ARTICLE ONE Act) unless approved by Congress, using expedited procedures that would ensure timely action. If approved, emergency declarations could last up to a year, with subsequent year-long renewals by the president also requiring expedited congressional approval. Existing reporting requirements would be significantly enhanced in order to keep Congress better informed about how the president uses emergency powers. There is extraordinarily broad bipartisan support for this set of reforms.
Congress has the opportunity to advance the most significant recalibration of the balance of power between the president and Congress in four decades, and to do so in a bipartisan manner.
November 3, 2022--Due Process Institute and a coalition of organizations with diverse political perspectives urged Senators to support three provisions in the House-passed version of the National Defense Authorization Act for Fiscal Year 2023 (H.R. 7900). Together, these provisions would address dangerous gaps in the laws that govern domestic deployment of the military. They would (1) reform the outdated command structure of the District of Columbia National Guard; (2) ensure that interstate deployments of the National Guard under Title 32 of the United States Code are carried out in accordance with the Constitution; and (3) codify an exclusionary rule that would establish a practical mechanism for enforcing the Posse Comitatus Act. In addition, we encourage the Senate to pass an amendment to Section 329 of Title 32 that would prohibit privately funded deployments of the National Guard.
Furthermore, none of the above reforms would prevent presidents from lawfully exercising the powers Congress has granted them to deploy the military to provide disaster relief, suppress insurrections, or enforce civil rights laws. All that these provisions would do is strengthen the Posse Comitatus Act and prevent the National Guard from being abused, misused, or dragged into partisan politics.
September 28, 2022--Due Process Institute joined a coalition from across the political spectrum to urge House Members to preserve in the National Defense Authorization Act for Fiscal Year 2023 (NDAA) an amendment offered by Representatives Jacobs and Davidson, which the House of Representatives adopted en bloc without opposition, and which Senators Wyden and Daines have offered in the Senate. This amendment brings critical transparency to a vital public debate.
This amendment would provide Congress and the public with only the information necessary to assess the profound privacy consequences of the Department of Defense buying its way around the Fourth Amendment. Specifically, it requires the Department of Defense to disclose which components are purchasing smartphone location and internet activity records about people in the United States without court orders. Government agencies have yet to be transparent about their purchase of Americans’ sensitive information without court orders — and yet this policy debate is already long overdue.
The purchase of information that would otherwise require a court order to obtain has critical implications for Americans’ constitutional rights. Quite simply, despite having no Congressional or judicial authorization, the executive branch has taken the position that if it buys data, Americans have no privacy rights at all. Transparency is crucial to ensuring the exploitation of this loophole does not further outpace Congressional, judicial, and public oversight.
September 20, 2022--Due Process Institute strongly encouraged Members of the House Committee on the Judiciary to support the Clean Slate Act, H.R. 2864, and the Fresh Start Act, H.R. 5651, which are supported by bipartisan groups of House members across the ideological spectrum.
Even the most minor of offenses—including those that don’t result in prison time—can impact an individual for many years. A criminal record can significantly hinder job, education, and housing opportunities, which not only continues the punishment for the individual long after his or her sentence, but also likely has an adverse impact on public safety because it increases the likelihood of that person’s recidivism.
The Clean Slate Act would provide for the automatic sealing of records for simple possession of a controlled substance under 21 U.S.C. § 844 or records for any federal nonviolent marijuana offense—one year after someone has completed any potential prison sentence. The Clean Slate Act also provides a petition process for the sealing of records for certain nonviolent offenses. Specifically, a person who has been convicted of two or fewer nonviolent offenses can petition a court to seal the record after completing the terms of any sentence. Furthermore, the Fresh Start Act would authorize $50 million annually in state grants for each of the next five fiscal years to help improve existing automatic record-sealing and expungement laws.
The best way to reduce recidivism is to provide a path forward for individuals with a criminal record who seek to improve their lives through education, employment, and housing opportunities.
September 20, 2022--Due Process Institute urges the House Judiciary Committee to support the Terry Technical Correction Act (H.R. 5455), a bill with broad bipartisan support and introduced by Reps. Sheila Jackson Lee (D-TX), Jerrold Nadler (D-NY), David Cicilline (D-RI), Burgess Owens (R-UT), and Thomas Massie (R-KY).
Both the Fair Sentencing Act and the First Step Act were incredibly important pieces of bipartisan sentencing reform legislation that made important changes to reduce a glaring inequity in federal drug sentencing. In light of the Supreme Court’s holding in Terry v. United States (2021). However, Congress must act to ensure that justice is being equally
and consistently applied as it intended through these legislative enactments.
After Congress enacted the First Step Act, Tarahrick Terry sought resentencing, but the federal courts hearing his case determined that only those convicted of the more serious crack cocaine offenses that triggered mandatory minimum prison sentences under § 841(b)(1)(A) or § 841(b)(1)(B) were eligible for a sentence reduction, not people like Terry who were convicted of a crack cocaine offense under subparagraph (C). In June 2021, the U.S. Supreme Court agreed with those courts based on a technical drafting issue, despite the fact that the bipartisan sponsors of the First Step Act urged them in an amicus brief to hold that the Act made retroactive relief broadly available to all individuals sentenced for crack cocaine offenses before the Fair Sentencing Act.
The Terry Technical Correction Act would simply clarify that the First Step Act sentencing reforms were meant to apply to individuals convicted under 21 U.S.C. § 841(b)(1)(C), as well as other low-level offenses.
July 21, 2022--Due Process Institute was joined in comment by American Civil Liberties Union, Color Of Change, Democracy Forward Foundation, Due Process Institute, Federal Public & Community Defenders, Justice Action Network, The Leadership Conference on Civil and Human Rights, the National Association of Criminal Defense Lawyers, and Tzedek Association to commend DOJ for its ongoing use of its CARES Act authority to permit individuals placed on home confinement during the COVID-19 emergency to remain on home confinement. In addition to the continuation of the Department of Justice's CARES Act authority, we recommend any potential return to a correctional facility must be consistent with clearly established criteria and procedures that further the purpose of home confinement and comport with due process and for the Bureau of Prisons (BOP) to establish clear criteria and procedures—through notice-and-comment rulemaking—for how it will assess individuals subject to potential return to a federal facility.
April 28, 2022--Due Process Institute joined a coalition of leading law enforcement, faith-based, civil rights, conservative & progressive organizations to urge the Senate to bring the EQUAL Act to a floor vote. This legislation would finally and fully eliminate the sentencing disparity between crack cocaine and powder cocaine offenses at the federal level and would allow courts to consider applications for resentencing of past cases.
The current 18-to-1 disparity is not grounded in science; crack and powder cocaine are two forms of the same drug, and one is no more harmful than the other. Roughly 90 percent of individuals incarcerated for crack offenses at the federal level are Black evidencing one of the worst racial injustices in federal law. The impact of this disparity is pervasive and offers no benefit to public safety. For these reasons, the EQUAL Act enjoys broad bipartisan support in both the House and Senate, as well as unprecedented endorsements from national and local law enforcement, conservative groups, faith leaders, and civil rights organizations.
The EQUAL Act corrects misguided policy from 35 years ago and would continue the important bipartisan progress Congress has made to create a fairer and more effective federal justice system. We urge the advancement of the EQUAL Act to the Senate floor as soon as possible, as the Senate considers bipartisan criminal justice reforms.
April 19, 2022--Due Process Institute and a diverse group of organizations working to safeguard and strengthen our democratic urged Senators to support including National Emergencies Act (NEA) reform, specifically the inclusion of the ARTICLE ONE Act (S. 764), in this year’s National Defense Authorization Act (NDAA).
The ARTICLE ONE Act would establish a necessary, meaningful check on the president’s use of emergency powers, while maintaining flexibility for the president when needed most – in the immediate aftermath of a crisis. The bill would create a 30-day window for Congressional approval of any declared national emergency and significantly enhance reporting requirements in order to keep Congress better informed about how the president uses emergency powers.
These reforms are critical to preventing abuses of emergency powers that could be disastrous for our democracy, irrespective of who occupies the White House. In addition to being harmful to our constitutional order, such abuses of emergency power can undermine basic liberties, particularly those of minorities and other vulnerable communities. With the ARTICLE ONE Act, the Senate has the opportunity to advance the most significant recalibration of the balance of power between the president and Congress in four decades, and to do so in a bipartisan manner.
April 4, 2022--Due Process Institute wrote to House Judiciary Committee members to vote in favor of the Kenneth P. Thompson Begin Again Act (H.R. 1924), a bill designed to improve expungement opportunities and second chances. Currently, there is only one very limited expungement statute—18 U.S.C. § 3607(c)—which potentially allows a person to expunge a first-time charge of simple possession of a controlled substance under 21 U.S.C. § 844. Under this law, a first-time offender can seek prejudgment probation for up to a year and, if they comply with all probation conditions during that time, they may seek dismissal of the federal possession charge and therefore avoid conviction. Then, those under the age of 21 can seek expungement of records associated with the offense after successful completion of probation. Obviously, this age limitation in current federal law prevents many others who are facing first-time simple possession charges from expunging their records. The Begin Again Act (H.R. 1924 and S. 2502) would amend current law to remove the age cap and thus expand the availability of record expungement to any person charged with their first offense of simple possession who has successfully completed prejudgment probation regardless of their age.
You can read more on this issue in our recent blog post.
March 28, 2022--Due Process Institute led a bipartisan coalition calling on members of the House of Representatives to vote for the Prohibiting Punishment of Acquitted Conduct Act (H.R. 1621) and end the unjust practice of judges increasing sentences based on conduct for which a person has been acquitted (or found “not guilty”) by a jury.
The Fifth and Sixth Amendment guarantees of due process and the right to trial by jury are fundamental to our criminal justice system. These guarantees require the government to prove a person’s guilt to a jury beyond a reasonable doubt unless a person voluntarily pleads guilty. Despite this, current federal law allows judges to override a jury’s “not guilty” verdict by sentencing someone for the very conduct he or she was acquitted of by the jury. Permitting this kind of “acquitted conduct sentencing” is unjust, undermines due process, and subverts the critical function of jury trials in our legal system. It also contributes significantly to the phenomenon of people pleading guilty to crimes they did not commit—something that everyone wishes to prevent in our system.
Not surprisingly, the practice of acquitted conduct sentencing has been roundly criticized by judges and scholars from all backgrounds and political beliefs for many decades. In his dissent from the denial of certiorari in Jones v. United States (2014), Justice Antonin Scalia wrote, “This has gone on long enough.” Scalia was joined in his dissent by Justice Ruth Bader Ginsburg.
You can also read more on our #JuriesDecide campaign to end acquitted conduct sentencing here.
March 18, 2022--Due Process Institute and civil liberties organizations from across the political spectrum expressed urgent concerns regarding recently declassified documents that confirm the Central Intelligence Agency (CIA) currently operates at least two bulk collection programs, both with significant impacts on the privacy of U.S. persons and other people in the United States.
On February 10, the CIA released documents pertaining to two reports authored by the Privacy and Civil Liberties Oversight Board (PCLOB), titled “Deep Dive I” and “Deep Dive II.” Both reports reveal CIA activities that involve bulk collection, result in the acquisition of U.S. person information, and have been operational for years. According to the CIA, the programs are directed at the activities of foreign governments and foreign nationals, but PCLOB’s reporting and recommendations show that they significantly affect Americans. The surveillance described in Deep Dive I includes the bulk acquisition of financial transactions involving Americans and others. For Deep Dive II, however, the CIA has disclosed neither what type of information it is collecting in bulk nor for what purpose.
These bulk spying programs carried out by the CIA show that current law does not adequately protect Americans from bulk surveillance. Given the breadth of this type of surveillance and its roots in an unaccountable claim of inherent presidential power, Congress must act now or risk diminishing its own power to conduct intelligence oversight and to establish the rules governing intelligence surveillance of Americans.
Congress must also enact legislation to ensure that any surveillance resulting in the collection of Americans’ personal data is subject to statutory limits and judicial review. The only way to accomplish this is to set forth specific rules that are the “exclusive means” by which the government may acquire the information of U.S. persons. The Fourth Amendment Is Not For Sale Act (S.1265/H.R.2738), currently the only pending legislation that includes “exclusive means” language, would bar federal agencies from purchasing, without a warrant, sensitive data that if acquired directly would require the government to first obtain a court order.
March 4, 2022--Due Process Institute and 35 other organizations joined to urge the Committee on House Administration to address a gap in public access to public records held by the Office of the Clerk. The Clerk manages the Legislative Resource Center (LRC), which makes available lobbying disclosure filings, other public disclosure forms from all House Officers, Members, and staff, and other records. While some of those records are available online, others are not, including Legal Expense Fund Disclosures. The House of Representatives has been closed to the public for nearly two years, impeding public access to these records and undermining the purpose of public disclosure.
Many documents maintained by the Clerk within the LRC are in digital form but are not available online. Instead, requesters must use a terminal located in the LRC and print out the records — it is not currently possible to make an electronic copy. While this practice may have been reasonable when it was instituted, its consequences are two fold. First, most members of the public and press must go to the office to access these documents, which in normal circumstances limits access to those in Washington, D.C. and in COVID times restricts access further. Second, paid services such as printing, scanning, and digitizing the documents create unequal access for those who can afford the costs. We urge the Clerk to avoid these perverse results by examining how to make these public documents available online in a user-friendly format and providing a plan of action for review and implementation.
February 17, 2022--Due Process Institute joined nine other leading prison reform, civil rights, and law enforcement organizations to applaud the formation of the bipartisan Senate Prison Policy Working Group. Led by Senators Jon Ossoff (D-GA) and Mike Braun (R-IN), the group will work to develop bipartisan policies and proposals to strengthen oversight of the Federal prison system and improve communication between the Federal Bureau of Prisons (BOP), Congress, and other stakeholders.
“We are excited to see the formation of a bipartisan Prison Policy Working Group and strongly urge Republicans and Democrats to join this important group of members who are working to improve the Bureau of Prisons. Nearly three years after the passage of the First Step Act, it’s clear there is still much work to be done to increase transparency, efficiency, and fairness and the COVID-19 pandemic magnified the long-existing underutilization of compassionate release,” said Jason Pye, Director of Rule of Law Initiatives.
“Due Process Institute looks forward to working with the members of the Prison Policy Working Group to improve the way our federal corrections system operates.”
February 14, 2022--Due Process Institute applauds the IRS and Treasury for the decision to end the use of ID.me in response to concerns raised by privacy experts, lawmakers, and the public. Along with numerous privacy and civil liberties organizations, we now call on other federal and state government agencies using or considering use of ID.me to follow suit and cancel the use of ID.me and other facial verification tools. Facial recognition technology has been found to be biased, have a disproportionate impact on people of color and other marginalized communities, and the use of the technology has serious implications for privacy and civil liberties. This third-party technology should not be forced upon individuals by government agencies.
The issues described above are all exacerbated by one simple fact: There is no comprehensive law regulating the collection, use, disclosure, and retention of biometric data. This alone should have stopped any government agency in its track when it considered the use of facial verification. Facial recognition is a powerful technology that has serious potential for bias as well as significant implications for our privacy and civil liberties. As a result, the safest and best “option” is for federal and state government agencies to end their use of this perilous technology on the public – through ID.me or any other vendor.
February 9, 2022--Due Process Institute and a bipartisan coalition expressed strong opposition to the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2022 (EARN IT, S. 3538). While we support curbing the scourge of child exploitation online, EARN IT will actually make it harder for law enforcement to protect children, will result in online censorship that disproportionately impacts marginalized communities, and will jeopardize access to encrypted services.
Section 230 of the Communications Act of 1934 (as amended, 47 U.S.C. § 230) generally shields online intermediaries from liability for the content users convey on their platforms. This helps to promote free expression online, which is further supported by the use of strong end-to-end encryption. But EARN IT would vastly expand the liability risk of hosting or facilitating user-generated content by permitting states to impose criminal liability when providers are “reckless” or “negligent” in keeping CSAM off their platforms; EARN IT also exposes them to civil liability under state laws with similar mens rea requirements but subject to much lower standards of proof.
The EARN IT Act would have devastating consequences for everyone’s ability to share and access information online, and to do so in a secure manner. We urge Congress to oppose this bill and instead consider more tailored approaches to deal with the real harms of child sexual abuse material online.
January 26, 2022--Due Process Institute and 50 civil liberties and privacy groups urged Senate and House leaders to hold committee hearings on the Fourth Amendment Is Not For Sale Act (S.1265/H.R. 2738). Currently, this legislation enjoys bipartisan support in both chambers due to the disturbing practices of government agencies, ranging from the Internal Revenue Service to the Drug Enforcement Administration, the Federal Bureau of Investigation, and Customs and Border Protection. These entities allege they can lawfully avoid the constitutional requirement for probable cause warrants by simply buying our personal information from commercial data brokers. The Fourth Amendment Is Not For Sale Act would close the statutory loopholes that allow the government to bypass the constitutional protections of the First and Fourth Amendment.
Furthermore, most Americans are still unaware of this commonplace practice by intelligence and law enforcement agencies. Holding committee hearings on this legislation would help underscore this disturbing fact, inform the American public about the desperate need for privacy protections, and build momentum for this legislation.
December 21, 2021--Due Process Institute joined seven other civil liberties organizations calling on Rep. Jerry Nadler, Chair of the House Judiciary Committee, to hold hearings for the bipartisan Fourth Amendment Is Not For Sale Act (H.R. 2738) in this coming session.
Currently, intelligence and law enforcement agencies, from the Internal Revenue Service to the Drug Enforcement Administration, the Federal Bureau of Investigation, and Customs and Border Protection, allege they can lawfully avoid the constitutional requirement for probable cause warrants by simply buying our personal information from commercial data brokers because the relevant federal statutes do not specifically prohibit such actions.
As a result, data from apps most Americans routinely use are open to warrantless examination by the government and are unaware that the government can obtain personal information by simply opening the federal wallet. These practices are clearly offensive to the spirit of the Constitution and threaten First and Fourth Amendment rights of every American.
But without a hearing to drive the news, most Americans will never know how seriously their privacy has been compromised. Hearings held in the House Judiciary Committee would underscore these disturbing facts, inform the American public, and create the momentum needed to turn The Fourth Amendment Is Not For Sale Act into law.
December 9, 2021--Due Process Institute and a wide array of organizations joined together to demand greater transparency in the legislative process by improving public access to bills and amendments considered on the Senate floor. Currently, the Congressional Record is only published each day after the conclusion of legislative proceedings and thereby provides a retrospective look at what happened. In circumstances where bills or amendments were offered on the same day they were considered, there is no systematic concurrent public availability of the text with the deliberations.
Congressional offices, the public, and the press need greater assistance with tracking and accessing bills and amendments set for debate on the Senate floor. In the modern era, this suggests contemporaneous online availability of the text of legislation and amendments and improved archival access. The Senate should consider a multi-pronged approach to addressing these issues by reviewing the current mechanism used to publish this information internally, the fitnesses and adaptability of technologies used in the House, and an exploration of technologies and tools currently employed inside the Legislative branch (such as Congress.gov) as well as those in other legislatures. Furthermore, Congress should examine the extent to which the text of legislation and amendments printed in the Congressional Record also are contemporaneously published on Congress.gov and an exploration of the various points in the legislative process where bill text and amendments exist in final form.
Our sister organization Clause 40 Foundation hosted an 8-part series exploring how to transform ourcriminal system from the inside out: The prosecutorial function and culture. Police misconduct and brutality. Incarceration. Racial Justice. Survivors of Crime. Smarter Sentencing. Safe Communities. Supported Communities.
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Pictured right: former DPI policy director Joe Luppino-Esposito and Congressman Bobby Scott (VA) on January 11, 2020 at a bipartisan community event co-hosted by Due Process Institute entitled Pretrial Justice: Examining the Need for Pretrial & Criminal Discovery Reform in Virginia (also sponsored by NACDL, VACDL, Americans for Prosperity, and Legal Aid Justice Center).
Pictured left: Director of Operations + Events Tamara Kalacevic at DPI's annual Two Views: An Exploration of SCOTUS's Criminal Law Docket event. Each year--in celebration of Constitution Day--Due Process Institute provides free CLE (and a celebratory lunch) to the nation's criminal defense lawyers in honor of their work as constitutional warriors.
Due Process Institute has also provided free training to hundreds of in-house counsel at events across the nation on a variety of criminal law topics as part of its In-House Counsel Enforcement Forums.
DPI played a key role in the bipartisan coalition of organizations working together to pass sentencing and prison reforms. Pictured right: DPI President Shana O'Toole and Policy Director Jason Pye (formerly of Freedomworks) celebrate passage of the most significant criminal reform legislation in almost a decade at the White House in December 2018. #BipartisanWorks
Pictured left: former DPI policy director Joe Luppino-Esposito and former counsel Jeremiah Mosteller as they strategized on how to pass legislation restoring federal grant eligibility for incarcerated individuals so they can receive post-secondary education in prison. In 1994, Congress passed a bill that banned people in prison from having access to Pell Grants. In December of 2020, after 26 years, that ban was finally lifted.
In 40 states, as well as under federal law, a jury can find you not guilty of a criminal charge but a judge can still sentence you to jail for many years based on the facts underlying the acquitted charge. This is known as acquitted conduct sentencing, and Due Process Institute is leading the movement to end the practice.
Pictured right: As part of the effort, DPI's former policy director Joe Luppino-Esposito delivered a presentation on the constitutional flaws with acquitted conduct sentencing to the Criminal Justice Task Force at the American Legislative Exchange Council States and Nation Policy Summit.