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.
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Join our sister organization Clause 40 Foundation for an 8-part series exploring transforming our criminal legal system from the inside out. The prosecutorial function and culture. Police misconduct and brutality. Race. Juvenile Justice. Survivors of Crime. Smarter Sentencing. Safe Communities. Supported Communities.
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.”
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 polices 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.
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.