Learn how you can help ensure that the principle of due process endures this crisis
Due Process Institute is a bipartisan nonprofit that works to honor, preserve, and restore principles of fairness in the criminal legal system.
Importantly, procedural due process concerns transcend liberal/conservative labels and therefore we focus on achievable results based on core principles and values that are shared by all Americans.
Guided by a bipartisan Board of Directors, and supported by bipartisan staff, we create and support achievable solutions for challenging criminal legal policy concerns through advocacy, litigation, and education.
We are lawyers and lobbyists for the Constitution, working with an incredibly diverse coalition of lawmakers, public policy organizations, defenders, business leaders, the formerly incarcerated and their families, and the public to help bring more fairness to the criminal legal system.
Res, non verba. Deeds, not words.
It's time for action.
Regrettably, our Supreme Court criminal law event scheduled for Constitution Day (Sept 17) has been cancelled.
Regrettably, our Supreme Court criminal law event scheduled for Constitution Day (Sept 17) at the Willard Hotel in Washington, D.C. has been cancelled.
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.
December 1, 2021--Due Process Institute and a bipartisan coalition of civil liberties organizations urged Senate leaders to support Sen. Patrick Leahy and Sen. Mike Lee’s amendment, #4705, to the National Defense Authorization Act of 2022. This amendment would require the declassification of significant decisions, orders and opinions issued by the Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Court of Review (FISCR) before the passage of the USA Freedom Act of 2015.
Given their lack of transparency and oversight, these two courts are at best outliers in our constitutional system. These declassification requirements--which the executive branch declined to apply and now compels Congress to act--would help create transparency around their secret legal conclusions that impact million of Americans' civil liberties. It would also produce a better understanding by the American public of the reasoning of the two FISA courts and the programs they oversee. Furthermore, this amendment would help restore the principle of transparency in government operations without sacrificing national security as these pre-2015 opinions are less likely to contain currently sensitive information.
November 30, 2021--Due Process Institute joined over 240 organizations to urge Congress to swiftly enact legislation to address the historic and ongoing drug overdose epidemic by supporting urgently needed public health services, including increased access to harm reduction services and treatment. This year the U.S. reached the grim marker of over 100,000 overdose deaths; this represents the highest number of overdose deaths ever on record.
For the past 50 years, the U.S. has carried out an enforcement-first, criminalization approach to drug policy. Criminalization has not reduced the illicit drug supply nor has it saved lives, as evidenced by the increasing number of overdose deaths. Instead, criminalization has perpetuated stigma against people who use drugs, creating an environment where individuals have a more difficult time accessing the health services and support they need. These approaches have also fueled overdose numbers by pushing people into risky situations, making the drug supply unregulated and unsafe, and wasting resources on punishment instead of harm reduction and other health services proven to save lives.
We urge Congress to enact the following legislation: $69.5 million in FY22 funding to increase access to overdose prevention and harm reduction, the Mainstreaming Addiction Treatment (MAT) Act (H.R. 1384 / S. 445), and the Support, Treatment, and Overdose Prevention (STOP) of Fentanyl Act (H.R. 2366 / S.1457).
The nation cannot wait another year to address the skyrocketing increase in overdose deaths. The time to implement evidence-based policies grounded in compassion is now.
November 16, 2021--Due Process Institute and NACDL led a diverse coalition of organizations from across the political spectrum urging Chairman Jerry Nadler, Ranking Member Jim Jordan, and the House Judiciary Committee to pass the Prohibiting Punishment of Acquitted Conduct Act of 2021. 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.
October 28, 2021--Due Process Institute and R Street Institute urge congressional leaders to include the repeal of the denial of the American Opportunity Tax Credit for a felony drug conviction, recommended by the House Ways and Means Committee, in the final budget reconciliation legislation. Under current law, the American Opportunity Tax Credit (AOTC) provides eligible students with a tax credit of up to $2,500 but is not available to students who have been convicted of a state or federal felony drug offense.
Educational opportunities are key to reducing recidivism; research illustrates that individuals who have access to educational programs are less likely to commit repeat offenses. Furthermore, a criminal conviction is already a barrier for those who are seeking a better life, but the arbitrary denial of incentives like the American Opportunity Tax Credit because of a felony drug conviction only makes those barriers more difficult to get through.
Even though Due Process Institute and the R Street Institute do not offer a unified position on the pending budget reconciliation legislation, we strongly support the repeal of the denial of the American Opportunity Tax Credit for students with felony drug convictions who are seeking to improve their opportunities and enhance their lives and communities.
October 4, 2021--Due Process Institute and nine of the nation’s other leading prison reform advocacy groups endorsed the Congressional Bureau of Prisons (BOP) Reform Caucus, a bipartisan group of 25 lawmakers formed by Congressman Fred Keller last year in an effort to increase accountability and transparency within the federal Bureau of Prisons.
“We are excited to see the formation of a bipartisan BOP Reform Caucus 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 BOP Caucus to improve the way our federal corrections system operates."
September 24, 2021--Due Process Institute urged Majority Leader Schumer and Minority Leader McConnell to schedule the consideration of three bipartisan bills, which have passed out of committee, that will improve the fairness and efficiency of federal sentencing and detention policies: the First Step Implementation Act of 2021 (S. 1014), the COVID–19 Safer Detention Act of 2021 (S. 312), and the Prohibiting Punishment of Acquitted Conduct Act of 2021 (S. 601).
The First Step Implementation Act builds on the success of the First Step Act by making modest changes to federal sentencing laws, such as broadening judicial discretion to potentially sentence people below otherwise applicable mandatory minimums; retroactively applying certain sentencing reforms in the First Step Act to people who were sentenced before it was passed; and allowing judges to possibly reduce sentences for some people convicted of crimes they committed as minors.
The COVID–19 Safer Detention Act makes improvements to the compassionate release and home confinement release programs, including providing judicial review of the Bureau of Prisons’ determinations of eligibility for release on elderly home confinement; giving people “good time” credit towards their eligibility for the Elderly Home Detention Pilot Program (as was intended in the First Step Act); and clarifying eligibility for relief under certain other First Step Act reforms to compassionate release and elderly home confinement.
The Prohibiting Punishment of Acquitted Conduct Act makes federal sentencing fairer and vindicates the right to a jury trial by limiting the use of acquitted conduct (charges for which a defendant was found “not guilty” by a jury) to increase a defendant’s sentence on a separate unrelated offense.
For people awaiting sentencing now, delaying passage of the First Step Implementation Act or the Prohibiting Punishment of Acquitted Conduct Act could lead to their being sentenced under current law thereby unnecessarily receiving a much longer term of imprisonment as a result. Americans are being left to languish in federal prison long past the point of any arguable penological benefit, and they cannot be helped by outside actors; only the federal government can release them. The sooner Congress passes these bills, the sooner the other branches can begin to execute these reforms.
September 23, 2021--Due Process Institute joined a coalition of varied perspectives on a range of issues to urge the Senate Judiciary Committee to pass and support the bipartisan Kenneth P. Thompson Begin Again Act. This legislation would remove the age requirement for those seeking an expungement order for first-time federal drug possession offenses.
This legislation is a smart, carefully crafted means to alleviate the collateral consequences associated with a criminal record and that it will help individuals get back to work and make communities safer. Far too often, punishment does not end once a sentence is completed, but rather has a lasting impact for subsequent years and in many cases a lifetime. A criminal record results in thousands of collateral consequences affecting individuals’ and families’ everyday lives that are often overlooked by the public and the judiciary. Even misdemeanor offenses can have serious implications on an individual’s ability to find steady employment, obtain housing, and access public assistance.
Congress now has the opportunity to join this growing movement with the introduction of this meaningful legislation. It offers a tailored approach to lowering recidivism rates, increasing public safety, and providing second chances so people can contribute to society at their greatest potential. The Senate Judiciary Committee continued bipartisan leadership on criminal justice reform issues is encouraging and we strongly support another step in this direction by the swift passage of the Kenneth P. Thompson Begin Again Act.
September 16, 2021--Due Process Institute led a coalition of organizations from across the political spectrum urging House Leaders Hoyer and McCarthy to support the EQUAL Act. This legislation would end the federal prison sentence disparity between crack cocaine and powdered cocaine offenses—that is not grounded in evidence and contributes to overincarceration, particularly within communities of color. The EQUAL Act was already passed by the House Judiciary Committee in a strong, bipartisan vote of 36-5, with Chairman Jerrold Nadler (D-NY) and Ranking Member Jim Jordan (R-OH) voting in support of the legislation. Now is the time for Congress to end the unwarranted disparity between crack and powder cocaine by passing the legislation on the House floor.
In 1986, Congress created a 100-to-1 sentencing disparity between the treatment of crack cocaine offenses and powdered cocaine offenses—despite the fact that these substances are two forms of the same drug, and one is no more harmful than the other. As a result of that law, five grams of crack cocaine carried the same mandatory minimum prison sentence as 500 grams of powdered cocaine. This unjust disparity, which has failed to keep communities safe, has, in turn, created obvious and harmful racial disparities. According to United States Sentencing Commission data, 83.0 percent of those who were sentenced for federal crack cocaine offenses were Black in FY2010. Four years after enactment of the disparity, the average federal drug sentence for Black defendants was 49 percent higher than the average for White defendants.
By passing the EQUAL Act and reducing overincarceration in federal prisons, Congress would also free up resources better directed to violence reduction strategies, support for crime survivors, and other proven public safety interventions for underserved communities. Importantly, the bill also makes this relief potentially retroactive following individualized case review by federal courts in order to ensure the law has the ameliorative effect Congress intends. This critical bicameral bill corrects misguided policymaking from 35 years ago and would continue the important bipartisan progress Congress is making on creating more effective, more efficient, and more fair federal sentencing laws. We urge Members to support the EQUAL Act and #EndTheDisparity when it comes to the House floor for consideration.
September 15, 2021--Due Process Institute signed a letter with a coalition of organizations calling on President Joe Biden to grant clemency to all individuals on CARES Act home confinement and not exclude a subset of people based on an arbitrary criteria.
All of these people – regardless of the type of offense they committed or the number of years remaining on their sentence – have demonstrated that they should not be in prison. There is no public safety benefit to reincarcerating any of them, and yet the costs of separating them from their families, communities, and jobs would be enormous. We urge you to reject applying arbitrary criteria unmoored to public safety needs that will produce massive injustices.
Furthermore, many on CARES Act home confinement have forged deep and important connections with their children after years of separation. Many are working hard at jobs they aspired to for years. These are diligent workers who don’t take their employment for granted. They are saving money, buying cars, taking out mortgages, planning weddings. They are living full and productive lives. All of them deserve a chance to move on with their lives.
September 8, 2021--Due Process Institute joined a letter with organizations from across the political spectrum to urge the Biden administration to fill the vacancies on the Privacy and Civil Liberties Oversight Board (PCLOB) as expeditiously as possible and with nominees that will vigorously protect privacy and civil liberties while upholding government transparency.
The PCLOB currently has three vacant seats and no Chairperson, significantly limiting the work the Board can accomplish because the Board cannot operate without a quorum. A functioning PCLOB is necessary to continue to hold the government accountable for safeguarding our privacy and civil liberties in surveillance programs that are often shrouded in secrecy.
It is critical that the PCLOB operate with a full bipartisan slate of qualified individuals with expertise in protecting privacy and civil liberties and experience in the field. When Board members fail to vigorously pursue the Board’s oversight mission, years of work can be reduced to reports that provide little if any useful information or, worse, remain hidden from public view. The PCLOB has played a significant role in informing the public debates over the past several years regarding the operation of U.S. surveillance programs. It must be restored to its full operating capacity through the appointment of Board members dedicated to vigorous pursuit of its mission.
August 31, 2021--Due Process Institute joined a letter with organizations from across the political spectrum to urge support for the amendment offered by Rep. Veronica Escobar (TX-16) and Rep. Ro Khanna (CA-17) to the Fiscal Year 2022 National Defense Authorization Act (NDAA) to rein in the Pentagon’s military surplus equipment transfer program, known as the 1033 Program. This amendment would end the indiscriminate transfers of military-grade weapons from the Pentagon to federal, state, and local Law Enforcement Agencies (LEAs)
The 1033 Program has resulted in the transfer of more than $7.4 billion in equipment to more than 8,000 federal, state, local, and tribal law enforcement agencies across the country. However, research studies have indicated that not only is the 1033 Program ineffective, as it fails to reduce crime or improve police safety, but it is also unsafe, and associated with more civilian deaths while this military equipment is disproportionately deployed in communities of color.
This commonsense amendment has bipartisan support in Congress and would make communities safer by getting weapons of war and military equipment off of the streets and out of communities.
August 24, 2021--Due Process Institute signed a letter with 142 organizations calling for the Biden administration and the Department of Justice to let the temporary “classwide” emergency scheduling of fentanyl-related substances expire on October 22, 2021. Under the classwide control, any offense involving a “fentanyl-related substance” is subject to federal criminal prosecution, even if the substance in question is helpful or has no potential for abuse. The continuation of this policy would further exacerbate pretrial detention, mass incarceration, and racial disparities in the prison system, doubling down on a fear-based, enforcement-first response to a public health challenge. Classwide control could also lead to over-criminalization and prosecutorial misconduct. The federal government must not repeat the decades-old mistakes it made around crack-powder sentencing disparities, but rather it should follow the science and a public health strategy to address the overdose crisis and drug abuse.
July 26, 2021--Due Process Institute joined a letter to urge all members of the House of Representatives to support the Lofgren-Massie amendment offered to H.R. 4505, the Commerce, Justice, Science, and Related Agencies Appropriations Act for FY 2022. This amendment would prohibit the use of funds for the warrantless search of United States persons’ communications acquired under Section 702 of the Foreign Intelligence Surveillance Act of 1978 (FISA), the controversial foreign intelligence authority that acquires an untold number of Americans’ Fourth Amendment protected information.
According to one opinion, the FBI, over the course of one year, conducted three million queries of a single database containing Section 702 communications, most of which presumably were U.S. person queries in light of the FBI’s primarily domestic mission. Although Congress has required the FBI to obtain a FISC order for a small subset of these queries, the FISC found that the FBI has literally never complied with this statutory requirement and has violated it on at least dozens of occasions. Ending this unconstitutional practice is imperative to ensure that foreign intelligence surveillance does not swallow Americans’ privacy rights.
July 21, 2021--Due Process Institute led a bipartisan coalition urging the House Judiciary Committee to support the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act. The EQUAL Act (H.R. 1693) would finally and fully eliminate the sentencing disparity between crack and powder cocaine mandatory minimum sentences at the federal level. Furthermore, the change would be made retroactive to allow those currently serving excessive sentences to petition a court for resentencing. This legislation offers a commonsense solution to a problem derived from a decades-long policy unsubstantiated by science.
As the 50th anniversary of the declaration on the War on Drugs has come and past, we must re-commit ourselves to achieving a smarter, fairer criminal justice system. National law enforcement organizations, high-ranking policing executives, and prominent conservative groups support the EQUAL Act because this type of drug abuse is a public health problem and not solely a law enforcement matter.
Finally, we are pleased to see the Committee consider this critical bill to make our federal sentencing laws more just. We hope that Chairman Nadler, Ranking Member Jordan, and all Members of Congress will reach across the aisle to support this legislation that will change lives.
July 20, 2021--Due Process Institute joined a diverse group of organizations spanning the political spectrum to urge the House and Senate Committees on the Judiciary to consider and support The Fourth Amendment Is Not For Sale Act (S.1265 / H.R.2738). Current law allows federal agencies to buy Americans’ digital data and metadata in bulk from internet marketing firms rather than obtaining court orders based on individualized probable cause.
This bipartisan legislation, recently introduced by privacy champions in both
chambers, would greatly strengthen federal protections against this type of backdoor government snooping. Law enforcement and intelligence agencies would be prohibited from purchasing communications content, geolocation information, and other highly sensitive data. The bill also would limit the government’s ability to concoct new and constitutionally unsound workarounds in the future by establishing that the mechanisms provided in statute are the exclusive means by which the government may acquire such information about people in the United States.
July 19, 2021--Due Process Institute joined a coalition representing a broad spectrum of American life to urge President Biden to commute the sentences of people currently living in home confinement through the CARES Act but are under threat of being sent back to federal prison.
Last year, Congress passed the CARES Act which expanded the federal government’s ability to move people from federal prison to serve their sentences at home. These individuals had to meet numerous stringent requirements set by the administration to be allowed to enter home confinement, including that they will not be a risk to public safety. According to publicly available data, less than one percent have violated the terms of their release once transferred to home confinement.
Despite the successes of this program, thousands of people are now in danger of being sent back to federal prison. This is because on January 15, 2021, just five days before President Trump left office, the Justice Department’s Office of Legal Counsel issued a memo declaring that people transferred to home confinement under the CARES Act would be sent back to prison once the national COVID emergency ended.
We urge President Biden to grant clemency now to people under CARES Act home confinement and provide second chances to thousands of people who are already safely out of prison, reintegrating back into society, reconnecting with their loved ones, getting jobs and going back to school.
June 18, 2021--Due Process Institute joined organizations from across the political spectrum to condemn the Department of Justice’s surveillance of Members of Congress, their staff, and their families, and urge Congress to investigate this matter as well as enact substantive reforms to prevent such abuse in the future.
On June 10, the New York Times reported that in 2017 and 2018 the Justice Department seized communications records of Representatives Adam Schiff and Eric Swalwell, congressional staff, and family members—including a child—as part of leak investigations. This broad and intrusive surveillance to collect private information easily leads to abuse and undermines the separation of powers.
We hope the Justice Department will show a genuine commitment to preventing future misconduct by working with Congress, as well as civil rights and civil liberties advocates, in support of new statutory reforms to surveillance and gag orders.
June 17, 2021--Due Process Institute endorses the Emergency GRACE Act of 2021 to make compassionate release more accessible for federal prisoners. The provisions of this legislation will ensure everyone incarcerated in a federal prison can apply directly to a judge for compassionate release, create a presumption of a sentence reduction, and provide $50 million for state prison systems to implement compassionate release systems. Furthermore, it will expand compassionate release opportunities for those sentenced prior to November 1987 and provide deserving candidates a chance for release.
June 16, 2021--Due Process Institute joined a letter with bipartisan and national organizations calling for the passage of Senate Bill 817 to abolish juvenile court fees in Oregon. These fees and fines – costs and monetary sanctions imposed on youth and families for the youth’s involvement in the juvenile delinquency system – operate in part as a regressive tax but generate little to no net revenue, collecting them at low rates with high costs.
Studies consistently show that juvenile fees and fines create barriers for youth and families, trapping them in cycles of debt and court involvement. Further, fees and fines are linked to higher recidivism rates and lower positive social spending, undermining community safety and rehabilitation.
May 19, 2021--Due Process Institute joined a bipartisan coalition urging the Colorado State Assembly to pass House Bill 1315 to end the assessment and collection of juvenile fees and costs. These fees include charges for public defender applications, genetic testing, restorative justice programs, miscellaneous court costs, late payment fees, and come with harsh penalties and other negative consequences for nonpayment.
These are a regressive tax on vulnerable Coloradans, create additional barriers for youth and families, and trap them in cycles of debt and court involvement. Furthermore, juvenile fees are linked to higher recidivism rates and undermine community safety and youth rehabilitation. By ending juvenile fees that only push youth deeper into the criminal legal system, Colorado would achieve common-sense justice reform while also benefiting from long-term fiscal savings.
May 3, 2021-- Due Process Institute urges Congress to pass the bipartisan Clean Slate Act (S. 1380 + H.R. 2864), introduced by Sens. Bob Casey (D-PA) and Joni Ernst (R-IA) and Reps. Lisa Blunt Rochester (D-DE) and Guy Reschenthaler (R-PA), and give individuals with certain federal criminal records an opportunity for a second chance.
An estimated 70 million Americans have a criminal record and this means as many as one in three people face obstacles to secure housing and/or employment. This legislation 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 his or her sentence.
The Clean Slate Act also provides a petition process for the sealing of records for certain nonviolent offenses. 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. Individuals who have been convicted for treason, terrorism, access and transmission of sensitive information, national security-related offenses, and sex offenses would not be eligible for record sealing.
Some states—including Pennsylvania and Utah—have already passed “Clean Slate” legislation to automatically seal records while most other states have some form of record sealing or expungement laws. Federal law is extraordinarily lacking in this area. April is “Second Chance Month” and Congress should take this opportunity to explore ways to provide second chance opportunities to the millions of people who need a “clean slate” to move forward with their lives.
April 29, 2021--Due Process Institute and organizations from across the political spectrum wrote to urge Congress to pass the District of Columbia National Guard Home Rule Act (S. 30 + H.R. 657), sponsored by Sen. Chris Van Hollen (D-MD) and Rep. Eleanor Holmes Norton (D-DC). Currently, a loophole in federal law allows for large-scale federalization of the National Guard to perform a domestic policing function without invoking the Insurrection Act or any other form of congressional authorization. The proposed S. 30 and H.R. 657 bills would close this loophole by reforming the command structure of the D.C. National Guard (DCNG) and transfer control over the DCNG from the president to the Mayor of Washington, D.C.
This new framework would allow the DCNG to principally operate under local control, just like every other National Guard organization in the country. Furthermore, the reforms would prevent future abuses of the president’s authority to deploy the military domestically, improve the Guard’s responsiveness to emergencies like the January 6 riot, and still preserve the president’s flexibility in a crisis.
April 26, 2021--Due Process Institute joined a diverse and bipartisan coalition of over two dozen groups to express deep concern over reports that the U.S. Food and Drug Administration (FDA) may be contemplating regulations to prohibit menthol cigarettes. While the regulations are well-intentioned, policies that amount to prohibition for adults will have serious racial justice implications. Such a ban will trigger criminal penalties, which will disproportionately impact people of color, as well as prioritize criminalization over public health and harm reduction. A ban will also lead to unconstitutional policing and other negative interactions with local law enforcement.
There is a better approach that avoids this overcriminalization. We strongly support the FDA and other policymakers continuing with harm reduction policies emphasizing education for adults and minors, cessation, well-funded health care for communities of color, and other measures that push tobacco use down without putting criminal justice reform at risk.
April 22, 2021--Due Process Institute urges Congress to pass the bipartisan Fourth Amendment Is Not For Sale Act (S. 1265) which, among other things, would greatly strengthen federal privacy protections against backdoor government snooping. Current law allows federal agencies to buy Americans’ digital data and metadata in bulk from internet marketing firms rather than obtaining court orders based on individualized probable cause.
“The speed of technological innovation far outpaces the laws and rules that protect Americans from unwarranted government intrusion,” said Due Process Institute Founder and President, Shana-Tara O’Toole, “For that reason, Congress must close the current loopholes that allow law enforcement and intelligence agencies to bypass the constitutional protections against unreasonable government searches and surveillance. The Fourth Amendment Is Not For Sale Act is an essential piece of legislation that exemplifies the Congressional diligence needed to bring our modern laws into line with our long-standing constitutional values.”
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.
April 12, 2021--Due Process Institute led a diverse, bipartisan coalition calling for Congress to pass the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act. The Equal Act (S. 79, H.R. 1693) would end the federal prison sentence disparity between crack cocaine and powdered cocaine offenses, equalizing the treatment between the two in sentencing and reducing the ratio from 18:1 to 1:1. The bill would also importantly make this relief retroactive following individualized case review by federal courts in order to ensure the law has the intended restorative effects.
Furthermore, the EQUAL Act partially addresses the unjust punishments of the past and frees up resources for Congress to direct at violence reduction strategies, support for crime survivors, and other proven public safety interventions for underserved communities. We urge Chairman Durbin, Ranking Member Grassley, Chairman Nadler, Ranking Member Jordan, and the members of the respective committees to take swift action in supporting and passing this legislation.
April 1, 2021--Due Process Institute joined a bipartisan coalition calling for the Department of Justice (DOJ) to rescind a legal memo forcing the return of people serving their sentences on home confinement to federal prison. During the COVID-19 pandemic, Congress enacted the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) which allowed elderly, medically vulnerable, and low public safety risk individuals to be transferred to home confinement. However, the DOJ’s recent legal memo states the Bureau of Prisons (BOP) must re-incarcerate everyone on CARES Act home confinement at the end of the covered emergency period if they do not otherwise qualify for it.
Adhering to this memo would be devastating for thousands of individuals who have re-established themselves in their communities, have a negative effect on public safety, and exact an enormous human cost. It would also be unsupported by law as the CARES Act neither requires nor permits the BOP to return individuals transferred to home confinement to prison absent a violation of their conditions. Allowing those on home confinement to remain on home confinement is an important step to address the toll of over-incarceration and the need to reduce the size of the federal prison population.
March 26, 2021--Due Process Institute supported today's introduction of bipartisan legislation that would modernize federal drug sentencing policies by lowering certain mandatory drug sentences. Sen. Dick Durbin (D-IL) and Sen. Mike Lee (R-UT) introduced The Smarter Sentencing Act, which gives federal judges the authority to conduct individualized reviews to determine the appropriate sentences for certain nonviolent drug offenses.
March 26, 2021--Due Process Institute supported today's introduction of an important bipartisan bill to reform sentencing laws and provide other much needed reforms to our criminal legal system. Sponsored by Sen. Dick Durbin (D-IL) and Sen. Chuck Grassley (R-IA), the First Step Implementation Act aims to further implement the First Step Act and advance its goals. The law will allow courts to apply all of the First Step Act sentencing reform provisions to reduce sentences imposed prior to the enactment of the First Step Act, including the provisions modifying the definitions of predicate prior offenses and eliminating 924c stacking. It also expands the safety valve to apply if criminal history exclusions cause over-representation of prior convictions, allow for sentence reductions for juvenile offenders who have served 20 years, provide for sealing and expungement of juvenile records, and require the Attorney General to establish procedures to ensure accurate criminal records.
March 26, 2021--Many states suspend an individual's driving license solely because they cannot afford to pay a debt they owe their state or local court system. These policies make it more difficult for individuals to pay off that underlying debt and prevents them from maintaining stable employment. In the midst of COVID-19, these concerns are even more pressing.
Due Process Institute has joined a coalition of 20 groups working with Congressional leaders to end these problematic driver’s license policies by supporting today's reintroduction of the Driving for Opportunity Act. This bill would help states end a counterproductive practice—suspending driver’s licenses simply because people cannot satisfy a financial obligation—and to enact smart, data-driven policy on fines, fees, and driving license privileges.
March 26, 2021--Due Process Institute joined a diverse bipartisan coalition urging the Oregon State Senate to pass Senate Bill 835 and implement vital reforms to medical release laws. Currently, Oregon's medical release system is plagued by obstacles including strict eligibility requirements, categorical exclusions, and time-consuming review processes. These existing barriers have been brought into even sharper focus due to the COVID-19 pandemic. However, the proposed reforms would introduce a common-sense and data-driven approach to ensure medical release is available to all adults in custody whose condition necessitates a safe and humane release from incarceration.
March 26, 2021--Due Process Institute and a bipartisan coalition issued a letter to Attorney General Merrick Garland calling for reform of the federal clemency system. The existing review system is in crisis with over 15,000 petitions pending that cannot be resolved because of an overly bureaucratic process involving the Deputy Attorney General and the White House Counsel. However, the crisis can be addressed if needless bureaucracy is eliminated and the Pardon Attorney is appointed as chief of staff to an advisory board of qualified individuals charged with evaluating cases and making recommendations directly to the President. Furthermore, removing prosecutors as the principal evaluators of clemency petitions provides fresh eyes free of institutional conflict.
Clemency petitions can play a key role in addressing long-standing racial equity concerns in the federal criminal legal system. In addition, we urge that several other categories of clemency petitions should be prioritized for review, including the elderly and chronically ill, those in prison for marijuana offenses, those currently on home confinement, women over-sentenced as "accessories" to crimes, those who have received harsh trial penalties, and those sentenced under mandatory minimum sentences.
March 26, 2021--Due Process Institute and a group of organizations that span the ideological spectrum joined in a letter urging Chairman Durbin and Ranking Member Grassley to support and pass the Inspector General Access Act (S. 426). The bill is commonsense legislation that would make a simple yet vital revision to the Inspector General Act of 1978 and enhance the accountability of the Department of Justice (DOJ) by allowing the DOJ inspector general to investigate allegations of misconduct by federal attorneys. Under current policy and practice, alleged professional wrongdoing or misconduct by DOJ attorneys are handled by an internal and non-independent entity, the Office of Professional Responsibility.
As DOJ attorneys are among the most powerful federal employees with the ability to make life-and-death decisions, it is critical for an independent watchdog, such as an inspector general, to have the statutory authority to investigate any allegations that may call into question their actions and conduct. Passing this legislation would be an important step toward alleviating public concern around these issues and improving accountability.
March 16, 2021--Due Process Institute supported today's introduction of a bipartisan bill to expand the federal expungement law. Introduced by Rep. Hakeem Jeffries (D-NY) and Rep. Van Taylor, and joined by House Judiciary Committee Chairman Jerry Nadler (D-NY) and Rep. Dan Crenshaw (R-TX), the Begin Again Act (H.R. 1924) would amend 18 U.S. Code § 3607 to make anyone, regardless of his or her age, eligible for expungement of a simple drug possession charge under 21 U.S.C. § 844. A criminal record, particularly a conviction, is a significant barrier to employment, housing, and education opportunities. Avenues to pursue record-sealing or expungement for certain offenses offer avenues of opportunity to those with a criminal record and prevent a mistake from impeding them for the rest of their lives. The bipartisan Kenneth P. Thompson Begin Again Act provides a way for all individuals, regardless of their age, to not be defined by this one conviction.
March 15, 2021--Due Process Institute joined a bipartisan coalition calling for Congress to curb law enforcement’s power to use and abuse the practice of civil forfeiture by enacting strong reforms. With civil forfeiture, law enforcement can seize property from innocent property owners, and those innocent owners can permanently lose it to the government, without the government ever charging, much less convicting, them of a crime. It also utilizes improper financial incentives while also possessing serious procedural deficiencies that undermine the due process rights of property owners. The use of civil forfeiture is opposed by the majority of Americans, promotes negative interactions between police and communities, and does not help law enforcement in their mission.
March 12, 2021--Due Process Institute and a bipartisan coalition joined to urge Attorney General Merrick Garland and the Department of Justice to release federal inmates at greater risk of COVID-19 and health complications. Under relevant provisions of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), the Bureau of Prisons (BOP) can and should provide greater protection for older incarcerated individuals, expand home confinement and compassionate release to people with more time left on their sentences, and stop using infractions as an immediate disqualifier from release. Implementing these changes would allow for more at-risk individuals to qualify for release and would save countless lives during the COVID-19 pandemic.
March 11, 2021--Due Process Institute supported today's introduction of bipartisan bills in both the House and Senate that would finally end the sentencing disparity between crack and powder cocaine. Introduced by Senators Cory Booker (D-NJ) and Dick Durbin (D-IL) and Reps. Hakeem Jeffries (D-NY), Bobby Scott (D-VA), Kelly Armstrong (R-ND), and Don Bacon (R-NE), the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act, S. 79 and H.R. 1693, would equalize the treatment in sentencing between crack cocaine and powdered cocaine, reducing the ratio from 18:1 to 1:1. Importantly, the bipartisan EQUAL Act would make these changes retroactive upon a motion from the defendant, the Bureau of Prisons, or a federal prosecutor.
The disparity in sentencing between crack cocaine and powdered cocaine is currently one of the most unjust aspects of federal sentencing laws. Congress passed the Anti-Drug Abuse Act of 1986 to escalate the war on drugs by creating mandatory minimum sentences for drug offenses, including substantially harsher penalties for crack cocaine. The evidence that harsher penalties for crack cocaine have had a racially disparate outcome is overwhelming. According to the U.S. Sentencing Commission, 81.1 percent of individuals sentenced for crack cocaine in FY 2019 were Black while another 12.6 percent were Hispanic. Highlighting the racially disparate outcome again, 91.4 percent of individuals who received sentencing reductions as a result of the First Step Act’s retroactivity provision were Black. Although the data show a disproportionate incarceration outcome, a 2006 study published by the American Civil Liberties Union showed that Whites are actually more likely to use crack cocaine. Also, 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 devastating racial disparities in federal sentencing can no longer be ignored by Congress. It is important that Republicans and Democrats work together to correct them in the name of justice.
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March 4, 2021--Due Process Institute supported today's reintroduction of bipartisan legislation in the Senate (S. 601) that would end the federal practice of sentencing on the basis of conduct for which a jury has acquitted. We applaud Senators Durbin, Grassley, Leahy, Lee, Booker, and Tillis for their leadership on this important issue and we thank our many coalition partners for their support of this critical effort.
March 4, 2021--Due Process Institute joins FAMM and other national criminal justice organizations urging Gov. Phil Murphy to sign a bill that would eliminate certain of the state's existing mandatory minimum sentences that has already been passed by the New Jersey legislature.
February 24, 2021--We are thrilled that the Effective Assistance of Counsel in the Digital Age Act (H.R. 546) passed the House with an overwhelming 414-11 vote! Thank you to everyone who helped make this bipartisan effort a success. Now on to the Senate to complete our efforts to protect the right of the incarcerated to have their e-mail communications with their lawyers protected by the attorney-client privilege (just like everyone else's is)!
February 24, 2021--We supported today's reintroduction of bipartisan legislation (S. 426) to expand the jurisdiction of the Department of Justice’s (DOJ) Office of the Inspector General to include alleged DOJ attorney misconduct. Currently, the DOJ Inspector General has no authority to investigate professional misconduct of DOJ lawyers. (Instead, allegations are handled internally by DOJ.) DOJ is the only agency whose IG has such a jurisdictional carve-out. Due Process Institute supports the bipartisan effort, led by Senators Dick Durbin (D-IL) and Mike Lee (R-UT), to end this odd loophole and increase the accountability of DOJ attorneys, including federal prosecutors.
February 15, 2021--Blockading and militarizing our nation's Capitol isn't necessary nor is it democratic. The People should have access to their center of government. We join bipartisan opposition to a proposal to hinder public access to the Capitol Building.
February 12, 2021--Amid the COVID-19 public health pandemic, we endorse today's introduction of bipartisan legislation to reform the Elderly Home Detention Pilot Program and compassionate release program for federal prisons. Hundreds of federal prisoners with pre-existing medical conditions that made them more vulnerable to COVID-19 have already died as a result of the virus, more than half of whom were over 60 years old. Since the beginning of the pandemic (as well as since the passage of the First Step Act's compassionate release reforms), the Federal Bureau of Prisons has opposed nearly all compassionate release requests. The COVID-19 Safer Detention Act (S. 312) would make several critical changes to the law that are necessary to save vulnerable lives. Due Process Institute urges its immediate passage of this important effort led by Senators Dick Durbin (D-IL) and Chuck Grassley (R-IA).
February 12, 2021--We supported today's reintroduction of the bipartisan Smarter Pretrial Detention for Drug Charges Act (S. 309), which would eliminate the unfair blanket presumption of pretrial detention for most federal drug charges. Pretrial detention rates--meaning people kept in prison before they are proven guilty or plead guilty--are at record high levels. By removing this legal presumption, this bipartisan legislation would instead permit federal courts to make individualized determinations regarding whether pretrial detention is in fact appropriate for each person accused of a nonviolent federal drug offense. We endorse this legislation and will work tirelessly with Senators Dick Durbin (D-IL), Mike Lee (R-UT), and Chris Coons (D-DE) to see it passed.
February 3, 2021--Due Process Institute joined a bipartisan coalition urging Members of Kentucky's House Judiciary Committee to support a bill that would increase the felony theft threshold to $1,000, better aligning it with neighboring states and accounting for inflation. Studies have shown that increased theft thresholds do not have a corresponding impact on larceny crime in states, and some states that have increased their felony theft thresholds have also seen reductions in property crimes. Low felony theft thresholds, like Kentucky’s, do not deter property crime—instead, the outdated theft threshold contributes to overcrowding in correctional facilities and burdens Kentuckians with the consequence of a felony record for decades. UPDATE: This bill passed the House.
January 29, 2021--Due Process Institute and a bipartisan coalition joined to support the Effective Assistance of Counsel in the Digital Era Act (H.R. 546) after its reintroduction in the House of Representatives. This bill will guarantee that email communications between an individual in a federal prison and their attorney will receive the full protections of attorney-client privilege. We urge members of the 117th Congress to cosponsor and support this important effort to ensure access to counsel throughout the federal prison system.
Due Process Institute also thanks our allies at Right on Crime, Americans for Prosperity, Faith and Freedom Coalition, Prison Fellowship, and Freedom Works for joining us in this letter.
January 21, 2021--Due Process Institute joined a bipartisan coalition of over 20 national and local groups calling on Congressional lawmakers to not create a new crime of "domestic terrorism" and to not give additional power to surveillance agencies in response to the assault on the Capitol on January 6th, 2021.
A new domestic terrorism law would allow for harmful future investigations based on political affiliation, mainly targeting marginalized communities, while law enforcement already has sufficient legal authority to charge these incidents. Furthermore, expanding surveillance was not necessary to prevent the events at the Capitol as information regarding the attack was available in the public domain and publicly on social media. Greater surveillance powers would only lead to more invasive, unreliable, and unconstitutional methods of collecting data.
In this letter, we urge the members of the House and Senate Judiciary Committees to not allow the security failures that permitted the attack to be the basis for expanded police surveillance authority or for expansion of prosecutorial authority.
January 20, 2021--This is the first change in Administration since Due Process Institute was founded and it serves as an important inflection point for our young organization.
Despite a tumultuous environment, we are proud of our work with the outgoing Administration and a divided Congress to pass the most impactful criminal justice reform in more than a decade as well as numerous other policy achievements that protected due process and increased justice.
We are equally proud to say that we stand ready to work with the incoming Administration and new Congress to pursue further achievements given how much there is still to be done. In fact, we have already worked as part of The Justice Roundtable—a collective of over 100 organizations working to advance justice and end systematic racism in our legal system—to draft a list of executive and legislative branch proposals for the president-elect and the incoming 117th Congress. You may access the Transformative Justice Transition Report below.
Bipartisan work is not easy or comfortable even under the best of circumstances. But we continue to believe that our organization’s commitment to bringing Americans together to work toward the common good is more important than ever. As we find ourselves just weeks past a violent disruption of our democracy at work, we reinforce our bipartisan focus on restoring due process rights, which serve as an integral and enduring part of our republic. We thank our Board Members, who come from a wide variety of political viewpoints, for standing with us and supporting this collective mission, and we ask that the public joins us in seeing today as a new beginning to pursue and protect the ideals that we all share.
January 6, 2021--The work of Due Process Institute focuses on restoring the protections of our unalienable rights as Americans against an overzealous government and its agents. Those due process protections are an integral part of the larger constitutional structure that give shape to our beloved republic.
Today, Congress was slated to confirm the democratic process that ensures peaceful and orderly transition of power, one of the most transformational achievements of our nation’s founding. Unfortunately, that process was violently and inexcusably disrupted by individuals who claimed they were acting on behalf of our country, but their actions discarded its most treasured values and besmirched its institutions.
Our country deserves better than what we saw on Capitol Hill earlier today. Our hearts and thanks go out to the legislators, staff, and press who are continuing to honor democracy with their service.
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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.