Learn how you can help ensure that the principle of due process endures this crisis
Menu
Close
Donec sed odio dui. Etiam porta sem malesuada magna mollis euismod. Maecenas faucibus mollis interdum. Integer posuere erat a ante venenatis dapibus posuere velit aliquet.
Fusce dapibus, tellus ac cursus commodo, tortor mauris condimentum nibh, ut fermentum massa justo sit amet risus. Praesent commodo cursus magna, vel scelerisque nisl consectetur et. Cum sociis natoque penatibus et magnis dis parturient montes, nascetur ridiculus mus. Curabitur blandit tempus porttitor. Nulla vitae elit libero, a pharetra augue.
We Support the Count the Crimes to Cut Act
May 17, 2025–The federal criminal system has grown so much that no one currently understands its full scope. To illustrate the breadth of the problem, the House Judiciary Committee’s Over-Criminalization Task Force asked the Congressional Research Service (CRS) in 2013 to update its count of federal criminal offenses—but according to the chairman of the task force, “CRS’ initial response to our request was that they lack the manpower and resources to accomplish this task.”
The best current estimates indicate that there are more than 5,000 federal criminal statutes and at least 300,000 federal regulations that carry criminal penalties. It erodes due process protections to have so many criminal laws in effect that it is essentially impossible for the average person to know what is lawful and what is not. The U.S. Constitution grants protection against wrongful or unfair criminal prosecutions and our federal criminal law must reflect those values.
This problem has been caused by the proclivity of both parties in Congress to react to every social concern or policy challenge by passing new criminal laws without giving sufficient thought to whether putting people in prison—particularly at the federal level—is an appropriate or effective response to the issue at hand. In the rush to do something, there is often little consideration of the impact of the creation of new crimes on the individuals directly affected by them, or on the erosion of states’ authority to regulate criminal conduct in their jurisdictions.
To ensure that we all have constitutionally adequate notice of our criminal laws before our government infringes on liberty, Congress must finally figure out how many federal crimes are on the books, what they actually criminalize, whether they are clearly written, and how often they are used as a basis for prosecution.
Introduced by Reps. Chip Roy (R-TX), Lucy McBath (D-GA), Andy Biggs (R-AZ), and Steve Cohen (D-TN), the Count the Crimes to Cut Act, H.R. 2159, would require the Department of Justice to produce a report identifying all federal crimes, including clarifying each law’s legal elements and penalties, as well as the number of prosecutions in the past 15 years. This will provide Congress and the public with a better understanding of the breadth and use of federal criminal laws and will hopefully chart a path forward to reducing over-criminalization and over-federalization. Therefore, Due Process Institute urges members to cosponsor the Count the Crimes to Cut Act.
We Urge Congress to Reject the HALT Fentanyl Act
February 3, 2025–Due Process Institute and 190 national, state, and local public health, criminal justice, and civil rights organizations joined in a letter to House and Senate leadership urging them to reject and vote NO on the Halt All Lethal Trafficking of Fentanyl (HALT) Act (H.R. 27 / S. 331). This bill permanently schedules fentanyl-related substances (FRS) on schedule I of the Controlled Substances Act (CSA) based on a flawed class definition, imposes mandatory minimums, and fails to provide an offramp for removing inert or harmless substances from the drug schedule.
The classwide scheduling approach endorsed in the HALT Fentanyl Act classifies all FRS as schedule I drugs, reserved for substances with no currently accepted medical use and a high potential for abuse. This class definition, however, is a radical departure from drug scheduling practices as it relies exclusively on chemical structure without accounting for pharmacological effect based on the unproven hypothesis of chemical structure-function relationships. Contrary to this hypothesis, structurally related substances can often have complementary therapeutic values. In fact, the National Institute on Drug Abuse (NIDA) has already acknowledged that some FRS are inert and that at least one may be an opioid antagonist that behaves like naloxone, which is itself an opium derivative that counteracts the effects of opioid drugs. Classifying all FRS in schedule I places undue restrictions on research for therapeutic potential of FRS. This means that researchers and scientists are not able to study these substances at a time when the U.S. is experiencing unprecedented overdose deaths.
The HALT Fentanyl Act also enshrines mandatory minimums for distribution of FRS under the Controlled Substances Act, an inappropriate mandate that criminalizes possibly inert or harmless substances. While some proponents of the HALT Fentanyl Act claim that the bill is not intended to interact with the criminal justice system and that mandatory minimums are primarily a deterrent against foreign import of FRS, this is simply inaccurate. The HALT Fentanyl Act expands mandatory minimums for both foreign importation crimes and domestic drug distribution offenses, including nonviolent drug distribution involving small quantities of drugs. What’s more, by automatically scheduling a huge swathe of substances in one fell swoop, the HALT Fentanyl Act would lead to very real criminal justice consequences, posing an unacceptable risk of unnecessary incarceration for substances that carry no potential for abuse. Such miscarriages of justice have already occurred. For instance, Todd Coleman was sentenced to a mandatory minimum of 10 years for sale of cocaine that a crime laboratory said was laced with three fentanyl analogues, only to discover, years later, that the detected adulterants were not illegal fentanyl analogues and most were not even controlled substances.3 Our country is repeating past missteps when it comes to policy responses to fentanyl and its analogues. In the 1980s, policymakers enacted severe mandatory minimums for small amounts of crack cocaine in response to media headlines and law enforcement warnings that perpetuated mythology and fear.
We Urge Congress To Protect Nonprofits
May 7, 2024–Due Process Institute and 130 other organizations sent a letter to the United States Senate Committee on Finance urging members to refrain from advancing consideration of H.R. 6408, and its companion bill S. 4136, introduced by Senators John Cornyn and Angus King. This proposed legislation would unconstitutionally harm all Americans’ free speech and due process rights by creating new executive authorities that could be abused by any presidential administration seeking to terminate the tax-exempt status of nonprofit organizations arbitrarily.
If enacted, this act would grant the Secretary of the Treasury broad discretionary powers to terminate the tax-exempt status of nonprofit organizations based solely on a subjective declaration that they are “terrorist supporting organizations.” This proposal lacks sufficient accountability measures and opens the door to potential abuse, especially given the current climate of increased politicization and polarization within the U.S. government.
DPI Celebrates Recommendation for New Marijuana Scheduling, Calls for Additional Reforms
May 2, 2024–Statement by Shana-Tara O’Toole, Founder and President of Due Process Institute, on the Drug Enforcement Administration’s recommendation to reclassify marijuana as a Schedule 3 drug:
“Yesterday, the Drug Enforcement Administration recommended a reclassification of marijuana from a Schedule 1 to a Schedule 3 drug. Effectively, this would recognize marijuana as a far less dangerous substance and no longer categorize it alongside drugs like heroin. We acknowledge and celebrate the significance of this recommendation as part of the de-escalation of the ‘war on drugs.’ However, this reform still falls short in addressing some of the most harmful consequences of the United States’ misguided drug policy, has limited impact on federal marijuana arrests, and does not provide relief for people currently serving unnecessarily long sentences for marijuana possession.
We recommend the Biden administration continue this momentum for drug reform by supporting legislation that improves second chance opportunities for people with nonviolent marijuana offenses like the Clean Slate Act, pushing for the full descheduling of marijuana and its removal from the Controlled Substances Act, and continuing the use of the President’s pardon power to rectify unjust marijuana sentences.”
We Oppose The SHIELD Act
September 29, 2023–Due Process Institute and other civil liberties organizations urged members of Congress to oppose the Stopping Harmful Image Exploitation and Limiting Distribution (SHIELD) Act of 2023 (S. 412), which would create a new federal crime carrying a one-to-five-year prison sentence for sharing intimate photos of a person without that person’s consent. This bill is well intentioned, but it will sweep in and criminalize innocent conduct and worsen the trial penalty that many criminal defendants—including many people who are actually innocent—face in our justice system.
For example, if a person receives, unsolicited, an intimate image from an acquaintance and in turn forwards the image to a friend or family member—not for the purpose of “seeking support or help”—but instead to express surprise or displeasure, then that person will have committed a crime under the current version of the SHIELD Act. And that should not be. The communication in this example is plainly innocent conduct. Equally plainly, it is protected speech. Yet, under the SHIELD Act, the victim of an unsolicited sexual communication could easily find themselves prosecuted.
This version of the SHIELD Act still places too much discretion in the hands of law enforcement and prosecutors for fair application, and potentially criminalizes innocent conduct. The bill’s goals of protecting privacy could be better advanced by a more narrowly tailored proposal that does not unnecessarily sweep up protected speech on both public and private matters.
We Call On Congress To Support The TEST Act
September 26, 2023–Due Process Institute and numerous health policy, drug policy, criminal justice reform, civil rights, and advocacy organizations urge members of Congress to cosponsor and support swift passage of the Temporary Emergency Scheduling and Testing of Fentanyl Analogues Act of 2023 (TEST Act). This bill would allow the Drug Enforcement Administration (DEA) to place new fentanyl-related substances (FRS) in Schedule I for up to four years, during which time the Department of Justice (DOJ) and Health and Human Services (HHS) would have to conduct a scientific and medical evaluation of each substance and publicly report the findings.
Congress has preemptively placed all FRS on Schedule I of the Controlled Substances Act (CSA) as a class – even those that do not exist. Congress has considered circumventing the scientific research requirements under current law by passing bills such as the HALT Fentanyl Act (H.R. 467), which would automatically designate any FRS as dangerous without studying a substance at all. Temporary scheduling authority is intended to allow the DOJ the time to conduct the scientific and medical evaluations it is required to by law. By allowing DOJ to designate the entire class of FRS as Schedule I without conducting scientific and medical research, Congress may inadvertently leave undiscovered therapeutic medications similar to naloxone and other life-saving medications at a time when the U.S. is facing record numbers of overdose deaths.
Approximately 285 people die of a preventable overdose each day in the United States. Rather than restricting research, the federal government must support the study and development of new tools and the provision of health services to save lives. This includes studying FRS for potential treatment options and ensuring people can receive the best treatments imaginable. Ensuring that federal agencies and the research community can study emerging substances for potential therapeutic value, including FRS, is a critically important component of these efforts. It can also help ensure that people are not unjustly incarcerated for crimes that were never committed.
We Commend Formation of the Congressional Tobacco Harm Reduction Caucus
September 6, 2023–Due Process Institute and an ideologically diverse group of public policy organizations commend the bipartisan efforts in Congress to elevate the importance of tobacco harm reduction through the formation of the Congressional Tobacco Harm Reduction Caucus. It is an essential approach to addressing disease and death brought by smoking combustible cigarettes.
Despite significant declines, combustible cigarette smoking is still the leading cause of preventable death in the United States. More than 30 million Americans smoke combustible cigarettes and more than 16 million are living with disease caused by smoking. Smoking contributes to 1 in 5 deaths in America: 480,000 premature deaths every year, including more than 41,000 from secondhand smoke. In addition to the loss of life, smoking costs our economy more than $600 billion per year. Every year, more than half of adults who smoke try to quit, but fewer than 8 percent actually do so. And just as the harms of combustible cigarette smoking disproportionately fall on people of color, veterans and service members, LGBTQ people, and poor, rural and disabled Americans, quitting is especially difficult in these populations. These individuals and their families are worth the exploration of every tool that could reduce the harms of tobacco.
Public health, compassion, personal autonomy and pragmatism demand the continuation of investment in prevention and cessation, and get serious about exploring harm reduction. This calls for a paradigm shift from well-intentioned but harmful prohibitionist policies that could increase negative interactions with police, especially in communities of color. The adoption of harm reduction practices can increase quit rates and decrease health risks for many adults who are unable or unwilling to quit using available cessation products and strategies.
We Urge Members Of Congress To Oppose The Combating Xylazine Act
July 18, 2023–Due Process Institute and a coalition of public health, drug policy, criminal justice, and civil and human rights organizations urged members of Congress to oppose the Combating Illicit Xylazine Act (H.R. 1839 / S. 993). This legislation criminalizes human use and distribution of xylazine by imposing Schedule III criminal penalties on an unscheduled substance, thus circumventing the necessary scientific and medical evaluations inherent in the drug scheduling process, and undermining the established decision-making process for scheduling drugs and applying criminal penalties. Moreover, this legislation will result in the disproportionate prosecution and sentencing of people with substance use disorder, including people who may not know xylazine is in their drug supply. Rather than punitive responses to drug use, our government should invest in harm reduction services and evidence-based public health interventions for people who use drugs, particularly given the dangerous state of the illicit drug supply.
Because xylazine is a commonly-used veterinary anesthetic, the Combating Illicit Xylazine Act does not advocate for scheduling xylazine under the Controlled Substances Act (CSA). Rather, it applies Schedule III criminal penalties without labeling xylazine as a controlled substance. This approach is concerning as it criminalizes xylazine without subjecting it to the standard 8-factor scientific and medical evaluation required by the Secretary of Health and Human Services (HHS) for CSA placement. By circumventing the comprehensive HHS analysis necessary for drug scheduling, this legislation obstructs the development of evidence-based regulations. It establishes a troubling precedent by disregarding expert analysis on abuse potential and medical use in favor of reactionary politics. Consequently, the anti-science nature of the Combating Illicit Xylazine Act undermines the credibility of U.S. drug policy and paves the way for future bills to do the same.
To prevent overdoses and mitigate the harms of the illicit drug supply, Congress must prioritize science-based decision-making and harm reduction strategies, as well as comprehensive public health approaches to the overdose epidemic. Given these objections, we strongly urge Congress to oppose the Combating Illicit Xylazine Act as this legislation is a reactionary extension of the War on Drugs, and will only exacerbate the harms of the illicit drug supply.
We Demand National Emergencies Reform
July 17, 2023–Due Process Institute and 30 cross-ideological organizations urged House Committee members and Senate Committee members to advance the bipartisan and bicameral ARTICLE ONE Act (H.R. 3988 / S. 1912), which would reform the National Emergencies Act of 1976 (NEA). Such reform is critical to preventing future abuses of emergency authorities and could be the most substantial rebalancing of power between the executive branch and Congress since the 1970s.
The ARTICLE ONE Act would enact the following reforms: (1) every presidentially declared national emergency will automatically expire after 30 days unless Congress affirmatively votes to extend it, using expedited procedures that will ensure timely action and prevent obstructionism, (2) a national emergency declared by the president and approved by Congress must be redeclared and reapproved by Congress one year after the original declaration, (3) each proclamation by the president declaring or renewing a national emergency must provide a report to Congress that includes a description of the circumstances necessitating the declaration, estimated duration of the emergency, and a summary of actions the president intends to take, (4) the president also must provide a report every six months on the status of the emergency and actions the president has taken to address it, and (5) existing national emergencies will be subject to the same renewal requirements outlined above.
This is a simple, commonsense reform that will shore up Congress’s role as a check against presidential overreach while retaining the president’s flexibility in the immediate aftermath of an emergency. This broadly supported measure is critical to the health of democracy, and urge Congress to hold a markup and advance the bill as soon as possible.
We Urge The Biden Administration to Issue Clear Statement Against the HALT Fentanyl Act
May 23, 2023–Due Process Institute led a letter with Drug Policy Alliance, FAMM, Law Enforcement Action Partnership, The Leadership Conference on Civil and Human Rights, The Sentencing Project, and Vera Institute of Justice, to express disappointment at the White House’s May 22, 2023 Statement of Administration Policy (“SAP”) on H.R. 467, the Halt All Lethal Trafficking of (HALT) Fentanyl Act. Perhaps inadvertently, the Administration’s statement failed to condemn the HALT Fentanyl Act’s expansion of mandatory minimums and encouraged Congress to throw its support behind legislation that will only exacerbate the harms of illicit drug activity and will do nothing to further the public health solutions urgently needed. We urge the Biden administration to issue a clear statement against the HALT Fentanyl Act and we ask Congress to vote no on this legislation.
The HALT Fentanyl Act fails to implement critical aspects of the Biden administration’s 2021 permanent fentanyl-related substances (FRS) scheduling proposal: 1) HALT fails to provide for “a streamlined process for the Department of Health and Human Services to identify and remove or reschedule any individual FRS” that does not pose a “high potential for abuse;” and 2) it contains no provision for studying the impact of permanent FRS scheduling on “research, civil rights, and the illicit manufacturing and trafficking of FRS.” These fatal flaws in the HALT Fentanyl Act — the absence of what the SAP calls “critical components” of any permanent FRS scheduling initiative — make it absolutely imperative that Congress votes no on the bill. A vote for the HALT Fentanyl Act is a vote against not just smart public health and public safety, but against your Administration’s stated position on permanent scheduling as well.
Disappointingly, the SAP does not mention yet another unacceptable aspect of the HALT Fentanyl Act: its entrenchment and expansion of mandatory minimums. As drafted, the HALT Fentanyl Act expressly entrenches quantity-based mandatory minimums for trafficking FRS. Under the HALT Fentanyl Act, a person who distributes just 10 grams of an FRS will be subject to a 5-year mandatory minimum prison term, which increases to a 10-year mandatory minimum prison term for trafficking 100 grams of FRS. What’s more, the HALT Fentanyl Act also expands mandatory minimums to non-FRS fentanyl-analogue trafficking. Section 6 of the HALT Fentanyl Act, as amended, would express Congress’s view that non-FRS analogues of fentanyl should be subject to the same harsh quantity-based mandatory minimums that the HALT Fentanyl Act applies to FRS trafficking under the classwide scheduling approach.
We Urge Congress To Not Pass The HALT Fentanyl Act
May 22, 2023–Due Process Institute and 157 undersigned national, state, and local public health, criminal justice reform, and civil rights organizations wrote to urge Congress to reject and vote NO on the Halt All Lethal Trafficking of Fentanyl (HALT) Act. This bill, H.R. 467, permanently schedules fentanyl related substances (FRS) on schedule I of the Controlled Substances Act (CSA) based on a flawed class definition, imposes mandatory minimums, and fails to provide an offramp for removing inert or harmless substances from the drug schedule.
The classwide scheduling approach endorsed in the HALT Fentanyl Act classifies all FRS as schedule I drugs, reserved for substances with no currently accepted medical use and a high potential for abuse.1 This class definition, however, is a radical departure from drug scheduling practices as it relies exclusively on chemical structure without accounting for pharmacological effect based on the unproven hypothesis of chemical structure-function relationships.
The HALT Fentanyl Act also enshrines mandatory minimums for distribution of FRS under the Controlled Substances Act, an inappropriate mandate that criminalizes possibly inert or harmless substances. While some proponents of the HALT Fentanyl Act claim that the bill is not intended to interact with the criminal justice system and that mandatory minimums are primarily a deterrent against foreign import of FRS, this is simply inaccurate. The HALT Fentanyl Act expands mandatory minimums for both foreign importation crimes and domestic drug distribution offenses, including nonviolent drug distribution involving small quantities of drugs.
Our country is repeating past missteps when it comes to policy responses to fentanyl and its analogues. In the 1980s, policymakers enacted severe mandatory minimums for small amounts of crack cocaine in response to media headlines and law enforcement warnings that perpetuated mythology and fear. These laws imposed harsher penalties for crack—a substance associated with Black people—than for cocaine—a substance associated with white people—even though the two substances are chemically similar. In the ensuing decades, people of color have been disproportionately incarcerated and sentenced to mandatory minimum sentences for small amounts of crack. The emergence of fentanyl-related substances in recent years has fueled similar waves of alarmist media and law enforcement headlines that are informed by mythology rather than science. Any further extension of the classwide scheduling policy threatens to repeat past missteps with crack cocaine that policymakers are still working to rectify.
The HALT Fentanyl Act and other bills proposing the permanent classwide scheduling of FRS are yet another iteration of the drug war’s ineffective and punitive strategies. To prevent overdose, Congress must invest in a public health solutions to mitigate the harms of illicit fentanyl. We urge Congress to support bills like the Support, Treatment, and Overdose Prevention of Fentanyl (STOP Fentanyl) Act of 2021 (H.R. 2366) introduced by Rep. Ann Kuster (D-NH) and Rep. Lisa Blunt Rochester (D-DE), which proposes increased access to harm reduction services and substance use disorder treatment, improved data collection, and other evidence-based methods to reduce overdose, and the TEST Act, which provides funding for FRS research and offers alternative strategies to simultaneously address the opioid epidemic while preventing backsliding on criminal justice reform.
We Oppose the RESTRICT Act
April 19, 2023–Due Process Institute led a coalition of civil liberties organizations to urge the Senate Committee on Commerce, Science, and Transportation to oppose S. 686, the “Restricting the Emergence of Security Threats that Risk Information and Communications Technology Act,” or the “RESTRICT Act.” The RESTRICT Act aims at information and communications (ICTs) technologies like TikTok that are considered a threat to the United States.
The criminal provisions in the RESTRICT Act are extremely troubling and dangerous for a number of reasons. First, nearly all of them, even those ironically called “specific unlawful acts,” are extraordinarily vague. They would punish the violation, attempted violation, or conspiracy to violate a regulation or order that has yet to be conceived or drafted and does not even currently exist. The Constitution requires notice in criminal statutes so that the public will know what conduct may render them liable. The Supreme Court has held that a statute criminalizing “loitering” provided notice that was constitutionally insufficient because it did not specify what conduct constituted “loitering.” In this bill, the criminal provisions are even less clear. The regulations that this bill makes it a crime to violate do not even exist yet and so no conduct is specified at all. This is unfair to the public who must have notice of what a crime is and is constitutionally questionable at best.
Second, it constitutes a massive delegation of criminal lawmaking authority to the administrative state. There has been renewed skepticism of the administrative state and abuses of power over the past several years. There have been several legislative efforts to reassert congressional power on a variety of issues, ranging from war powers to emergency powers to trade. Even later this year, Congress is expected to consider major reforms to how agencies interact with technology companies through various surveillance authorities.
Third, even the “specific unlawful acts” that are, in fact, specified are extraordinarily harsh or entirely unnecessary. One is a 20-year term in federal prison for noncompliance with a “reporting or recordkeeping” requirement. Twenty years in prison for a paperwork violation is extremely severe and would only exacerbate our nation’s mass incarceration. Additionally, making a false statement to the Government is criminalized, but this exact act is already criminalized in numerous other places in federal law. This new criminalization will only worsen the trial penalty, incentivize prosecutors to pile on charges, and coerce people, including innocent people, into guilty pleas.
Finally, the RESTRICT Act also includes an alarming expansion of federal civil asset forfeiture. Federal civil asset forfeiture laws flip the presumption of innocence on its head by requiring the person from whom property is seized to prove that it was unconnected to criminal activity. Given this incredibly unfair standard and the fact that law enforcement can keep a huge percentage of the proceeds of forfeited items, it is unsurprising that it has been well documented that civil asset forfeiture is ripe for abuse.
This legislation is far more expansive and encompassing than its supporters admit and echo the words of the House Financial Services Committee, which recently noted, “The RESTRICT Act is using TikTok as a smokescreen for the largest expansion of executive power since [the International Emergency Economic Powers Act.” The Senate Committee on Commerce, Science, and Transportation must consider these overcriminalization concerns as it approaches any action on the RESTRICT Act.
We Oppose the Halt All Lethal Trafficking of Fentanyl Act
March 6, 2023–Due Process Institute, national, state, and local public health and other criminal justice reform organizations urged Congress to reject and vote NO on the Halt All Lethal Trafficking of Fentanyl (HALT) Act (H.R. 467). This bill permanently schedules fentanyl related substances (FRS) on schedule I of the Controlled Substances Act (CSA) based on a flawed class definition, imposes mandatory minimums, and fails to provide an offramp for removing inert or harmless substances from the drug schedule.
The classwide scheduling approach endorsed in the HALT Fentanyl Act classifies all FRS as schedule I drugs, reserved for substances with no currently accepted medical use and a high potential for abuse. This class definition, however, is a radical departure from drug scheduling practices as it relies exclusively on chemical structure without accounting for pharmacological effect based on the unproven hypothesis of chemical structure-function relationships. Furthermore, The HALT Fentanyl Act also enshrines mandatory minimums for distribution of FRS under the Controlled Substances Act, an inappropriate mandate that criminalizes possibly inert or harmless substances. Our country is repeating past missteps when it comes to policy responses to fentanyl and its analogues. In the 1980s, policymakers enacted severe mandatory minimums for small amounts of crack cocaine in response to media headlines and law enforcement warnings that perpetuated mythology and fear.
We urge Congress to support bills like the Support, Treatment, and Overdose Prevention of Fentanyl (STOP Fentanyl) Act of 2021 (H.R. 2366) introduced by Rep. Ann Kuster (D-NH) and Rep. Lisa Blunt Rochester (D-DE), which proposes increased access to harm reduction services and substance use disorder treatment, improved data collection, and other evidence-based methods to reduce overdose, and the TEST Act, which provides funding for FRS research and offers alternative strategies to simultaneously address the opioid epidemic while preventing backsliding on criminal justice reform.
We Urge Enactment of National Emergencies Act Reform
December 2, 2022–Due Process Institute and diverse group of organizations urged Congress to safeguard and strengthen our democratic institutions by enacting National Emergencies Act (NEA) reform during this Congress, either as a stand-alone or as part of broader legislation. Absent reform, presidential abuse of the NEA is a matter of “when” rather than “if.” The law gives the president nearly unfettered discretion to declare a national emergency. That declaration unlocks more than 120 statutory authorities, including emergency powers that a president could rely on to shut down communications facilities, seize private property, and control domestic transportation.
The NEA reform provisions shared by PODA and the HSGAC-passed version of the ARTICLE ONE Act would establish a necessary, meaningful check on the president’s use of emergency powers, while maintaining flexibility for the president when needed most — in the immediate aftermath of a crisis. Under these provisions, presidential emergency declarations would expire after approximately one month (20 legislative days under PODA and 30 calendar days under the ARTICLE ONE Act) unless approved by Congress, using expedited procedures that would ensure timely action. If approved, emergency declarations could last up to a year, with subsequent year-long renewals by the president also requiring expedited congressional approval. Existing reporting requirements would be significantly enhanced in order to keep Congress better informed about how the president uses emergency powers. There is extraordinarily broad bipartisan support for this set of reforms.
Congress has the opportunity to advance the most significant recalibration of the balance of power between the president and Congress in four decades, and to do so in a bipartisan manner.
We Support NDAA Amendments to Reform National Guard Authorities
November 3, 2022–Due Process Institute and a coalition of organizations with diverse political perspectives urged Senators to support three provisions in the House-passed version of the National Defense Authorization Act for Fiscal Year 2023 (H.R. 7900). Together, these provisions would address dangerous gaps in the laws that govern domestic deployment of the military. They would (1) reform the outdated command structure of the District of Columbia National Guard; (2) ensure that interstate deployments of the National Guard under Title 32 of the United States Code are carried out in accordance with the Constitution; and (3) codify an exclusionary rule that would establish a practical mechanism for enforcing the Posse Comitatus Act. In addition, we encourage the Senate to pass an amendment to Section 329 of Title 32 that would prohibit privately funded deployments of the National Guard.
Furthermore, none of the above reforms would prevent presidents from lawfully exercising the powers Congress has granted them to deploy the military to provide disaster relief, suppress insurrections, or enforce civil rights laws. All that these provisions would do is strengthen the Posse Comitatus Act and prevent the National Guard from being abused, misused, or dragged into partisan politics.
We Call for National Emergencies Reform
April 19, 2022–Due Process Institute and a diverse group of organizations working to safeguard and strengthen our democratic urged Senators to support including National Emergencies Act (NEA) reform, specifically the inclusion of the ARTICLE ONE Act (S. 764), in this year’s National Defense Authorization Act (NDAA).
The ARTICLE ONE Act would establish a necessary, meaningful check on the president’s use of emergency powers, while maintaining flexibility for the president when needed most – in the immediate aftermath of a crisis. The bill would create a 30-day window for Congressional approval of any declared national emergency and significantly enhance reporting requirements in order to keep Congress better informed about how the president uses emergency powers.
These reforms are critical to preventing abuses of emergency powers that could be disastrous for our democracy, irrespective of who occupies the White House. In addition to being harmful to our constitutional order, such abuses of emergency power can undermine basic liberties, particularly those of minorities and other vulnerable communities. With the ARTICLE ONE Act, the Senate has the opportunity to advance the most significant recalibration of the balance of power between the president and Congress in four decades, and to do so in a bipartisan manner.
We Urge Congress to Protect Access to Information and Secure Online Communication
February 9, 2022–Due Process Institute and a bipartisan coalition expressed strong opposition to the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2022 (EARN IT, S. 3538). While we support curbing the scourge of child exploitation online, EARN IT will actually make it harder for law enforcement to protect children, will result in online censorship that disproportionately impacts marginalized communities, and will jeopardize access to encrypted services.
Section 230 of the Communications Act of 1934 (as amended, 47 U.S.C. § 230) generally shields online intermediaries from liability for the content users convey on their platforms. This helps to promote free expression online, which is further supported by the use of strong end-to-end encryption. But EARN IT would vastly expand the liability risk of hosting or facilitating user-generated content by permitting states to impose criminal liability when providers are “reckless” or “negligent” in keeping CSAM off their platforms; EARN IT also exposes them to civil liability under state laws with similar mens rea requirements but subject to much lower standards of proof.
The EARN IT Act would have devastating consequences for everyone’s ability to share and access information online, and to do so in a secure manner. We urge Congress to oppose this bill and instead consider more tailored approaches to deal with the real harms of child sexual abuse material online.
We Call for Immediate Legislation to Reduce Record Number of Overdose Deaths
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.
We Support Ending Transfers of Military-Grade Weapons and Equipment to Law Enforcement Agencies
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.
We Urge President Biden and the DOJ to End Classwide Scheduling of Fentanyl-Related Substances
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.
We Urge Against FDA Regulations That Will Lead to Overcriminalization
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.
DPI Joins More than 100 Other Orgs to Support MORE Act
August 1, 2019–Due Process Institute supports the Marijuana Opportunity Reinvestment and Expungement (MORE) Act (H.R. 3884) because it would deschedule marijuana, removing it from the Controlled Substances Act, and would provide a process for courts to expunge marijuana convictions and re-sentence people with marijuana convictions.
Due Process Institute Expresses Concerns with the “ILLICIT CASH” Act
July 19, 2019–Due Process Institute supports reasonable and necessary measures to combat money laundering and terrorist financing, but oppose those efforts that undermine due process rights, privacy protections, the attorney-client privilege, and other sound public policies. We hope lawmakers share our concerns and work to make meaningful improvements to the draft legislation before it is introduced.
DPI Shares its Concerns on Beneficial Ownership Reporting with Senate Banking Committee
May 20, 2019–Due Process Institute continues to share its bipartisan concerns regarding proposed new criminal laws and unintended consequences of proposed beneficial ownership reporting requirements.
DPI, ACLU, and FreedomWorks Oppose Beneficial Ownership Bill
May 7, 2019–Due Process Institute, the American Civil Liberties Union, and FreedomWorks oppose certain provisions of H.R. 2513, the Corporate Transparency Act of 2019 , because of serious concerns regarding privacy and the use of criminal penalties. Five new federal crimes would be created for first-time paperwork violations, using vague terms and complicated reporting regimes that are likely to trap many small business owners.
Due Process Institute Joins Bipartisan Opposition to SITSA
September 20, 2018–Both the House and Senate are considering the inclusion of “Stop the Importation and Trafficking of Scheduled Analogues” (SITSA) (H.R. 2851/S. 1327) as part of their bill packages to take action relating to the nation’s opioid epidemic. Due Process Institute joined bipartisan opposition to this legislation because the bill will broadly expand penalties for drug offenses, concentrate power within the Department of Justice (DOJ), punish people who lack criminal intent, and overcriminalize certain behavior.
UPDATE: Thanks in part to our advocacy, the House’s final opioid bill package did not include SITSA.
Due Process Institute Raises Concerns with H.R. 6729
September 25, 2018–Due Process Institute has concerns about H.R. 6729 “Empowering Financial Institutions to Fight Human Trafficking Act of 2018” and opposes its placement on the suspension calendar. Joined by FreedomWorks, NACDL, and Defending Rights and Dissent, we oppose this fast-track measure for a bill that will negatively affect privacy rights of individuals and increase surveillance based on mere suspicions of wrongdoing.
DPI President Speaks at ABA International Law Conference
April 10, 2019–Due Process Institute President and Founder Shana-Tara O’Toole was one of the featured speakers at the ABA’s Section of International Law 2019 Annual Conference held in Washington DC. O’Toole spoke on the panel titled, “Corporate Requirement or Getting Thrown Under the Bus? The Prosecution of Individuals in the Anti-Corruption Boom.” Her comments specifically addressed the existence of compliance defenses used in certain OECD countries and how that may have an effect on the prosecution of individuals.
Due Process Institute Co-Sponsors Abacus Screening
May 31, 2018–Due Process Institute, in conjunction with NACDL, hosted a screening of Abacus: Small Enough to Jail at the E Street Cinema in Washington DC. Afterwards, President + Founder Shana O’Toole moderated a Q&A Session with members of the Sung Family and one of the documentary’s producers, Mark Mitten. Nominated for Best Documentary Feature at this year’s Academy Awards, the film centers on a small family-owned bank in New York City’s Chinatown that was the only financial institution to face criminal charges following the subprime mortgage crisis. The documentary serves as an engrossing legal thriller, as well as a compelling portrait of the Chinese-American community in New York City as it intersects with a deeply flawed criminal legal system.