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
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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 2022-23 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.
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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The National Law Journal named Due Process Institute's Founder + President Shana O'Toole a Trailblazer in Criminal Law for her vigorous advocacy to protect the Constitution and advance bipartisan criminal justice reform.
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.
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