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.