Learn how you can help ensure that the principle of due process endures this crisis
Ensuring Procedural Due Process Rights
The People cannot be deprived of life, liberty, or property without due process of law.
This important protection covers a number of important procedural rules in criminal cases, including the right to prompt hearings after seizure of property through civil forfeiture.
We fight to support your right to fair procedures and believe that civil asset forfeiture should be abolished or severely limited in use.
In addition to the issues listed above, the 5th Amendment also guards against the perils of double jeopardy and self-incrimination--rights we support.
REVIVING GRAND JURY PROTECTIONS
The People have a right to a fair and impartial grand jury.
To meet Constitutional muster, the function of the grand jury must return to its original purpose: as a meaningful check on governmental power. Instead, in most places it has become a tool to enhance prosecutorial power.
Certain commonsense reforms could restore the grand jury function to something closer to what our Founding generation intended, including: making transcripts of grand jury proceedings public after indictment and requiring prosecutors to reveal known exculpatory evidence to grand jurors.
Ending "Overcriminalization"
The People must have notice of the laws before they can be criminally charged or punished.
Our criminal laws must avoid overly broad or vague terms that can be interpreted in inconsistent or unfair ways against someone who could be accused of violating those laws and it also means our criminal laws should require a meaningful level of "criminal intent" so that they are only applying to people who are purposefully violating those laws. It is also important that we don't have so many criminal laws that is is essentially impossible to know what is lawful and what is not. Because our Founding Generation believed that it was important our Constitution grant protection against wrongful or unfair criminal prosecutions, our criminal legal code must reflect these values.
To ensure that we all have constitutionally adequate notice of criminal laws before anyone's life or liberty is substantially limited for violating such laws, Due Process Institute's work is guided by the following principles:
- All newly-proposed criminal laws must properly consider if a criminal penalty is even an appropriate and necessary sanction since the government has relied upon its power to criminalize far too often and has ignored other common sense approaches. The federal government has also too often ignored the role states play in addressing criminal law concerns.
- Most first-time "paperwork violations" ought not to lead to a jail sentence and neither should offenses that actually end up criminalizing poverty, addiction, or mental illness. We need to end our dependence on criminal law being the first or only solution to our country's challenges.
- Criminal laws should not contain vague or overly broad terms that lead to confusion about what laws mean or that allow unfair enforcement of the laws.
- Judicially created doctrines such as Pinkerton criminal conspiracy liability and the “willful blindness” theory of criminal culpability should be rationally and fairly limited or abolished altogether.
- In existing criminal cases, we support the judicial doctrine of the "rule of lenity," which is rooted in constitutional principles. The rule applies in situations where the court recognizes the existence of more than one interpretation of a criminal law. It requires the court to select the interpretation least harmful to the accused in such cases.
Learn How We Turn Our Principles into Action:
Legislative Advocacy
Legislative Advocacy
Legislative Advocacy
Due Process Institute works on the federal and state levels to support meaningful 5th Amendment protections.
Amicus Briefs
Legislative Advocacy
Legislative Advocacy
Due Process Institute supports your 5th Amendment rights in America's courts.
Research
Legislative Advocacy
Research
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Research
Due Process Institute Authors Featured in Publication
Several members of the board of the Due Process Institute, as well as Shana-Tara O'Toole and Joe Luppino-Esposito, authored contributions to the symposium report published by the National Association of Criminal Defense Lawyers and The US Chamber of Commerce Institute for Legal Reform. You can read those articles below.
NACDL's Common Sense Grand Jury Reform Proposals (Plus Two)
Reforming the Federal Criminal Code Will Restore Fairness to the American Criminal Justice System
Confronting the "See What Sticks and Who Flips" Perils Of Federal Conspiracy Law
Criminal Justice Reform Through a Focus on Federalism
Joe Luppino-Esposito