Learn how you can help ensure that the principle of due process endures this crisis
Learn how you can help ensure that the principle of due process endures this crisis
Brief in Support of Appellant
5th Circuit Court of Appeals
What happens when the government uses its enforcement powers to threaten companies and individuals with potentially massive liability and then the courts refuse to hear cases unless the litigants are willing to incur the penalty as the price for bringing the challenge? The result is challenges are never brought and the litigants acquiesce to the government’s view of law. In this amicus brief, we examine the implication this has on the separation of powers, the judiciary’s own ability to decide what the law is, and prosecutorial overreach.
Filed with Cato Institute.
Brief in Support of Respondent
Florida Supreme Court
In this amicus brief, we argue that compelling an individual to disclose the passcode to their cellphone, for the express purpose of obtaining incriminating evidence, violates the Fifth Amendment and Florida’s Constitution. By its very nature, passcodes intend to keep matters private and their link to testimonial evidence means individuals should be constitutionally protected from compulsory disclosure and self-incrimination. This brief also addresses the due process and privacy implications of password disclosure in a wide range of contexts within an everexpanding technological world.
Filed with Independence Institute.
We thank Harvey Sepler of Alvarez, Gonzalez & Menezes for his pro bono work on this issue.
Brief in Support of Plaintiffs
Louisiana Supreme Court
This amicus brief, joined by an impressive array of ideologically diverse co-amici, argues that the 6th Amendment prohibits states from systemically under-funding public defender offices and explains how the Framers intended the Constitution to establish a vibrant adversarial criminal legal system, not a “sacrifice of unarmed prisoners to gladiators.”
We thank the American Conservative Union Foundation Nolan Center for Justice, Cato Institute, Freedomworks Foundation, the James Madison Institute, R Street Institute, Innocence Project New Orleans, The Innocence Project, National Legal Aid & Defender Association, Public Defender Services for the District of Columbia, and Promise of Justice Initiative for joining our brief in support of the right to counsel.
Due Process Institute also thanks Chloé Chetta of Barrasso Usdin Kupperman Freeman and Timothy O'Toole of Miller & Chevalier for their pro bono work on this matter.
Brief in Support of Certiorari
U.S. Supreme Court
Similar to our amicus filing in Miller v. United States, we highlight the searches of emails without a warrant by law enforcement. These types of digital media searches using the private-search doctrine violate the Fourth Amendment as individuals do not give the government an implied license to search their emails. The Fourth Amendment protects individuals and their vast amounts of personal information from warrantless searches justified solely on a third-party service provider’s assumption that an email may contain evidence of a crime.
Filed with DKT Liberty Project and Reason Foundation.
Due Process Institute thanks Jessica Ring Amunson and Caroline Cease for their pro bono support in this matter.
Brief in Support of Certiorari
U.S. Supreme Court
In this amicus brief, we argue the searches of emails collected and sent by a third-party service to law enforcement constituted a trespass. The private-search doctrine used to justify these searches does not appropriately safeguard Fourth Amendment interests when digital mediums are involved. The government cannot maintain an individual, by using an email account, grants them implied license to rifle through their emails.
Filed with DKT Liberty Project and Reason Foundation.
We thank Jessica Ring Amunson and Caroline Cease for their pro bono work on this case.
Brief in Support of Plaintiffs
5th Circuit Court of Appeals
In this amicus brief, we argue predetermined, scheduled bail schemes infringe on the due process rights of pretrial detainees. These schemes do not account for the government’s interests in pretrial detention or an individual’s ability to pay, in violation of the Fifth, Eighth, and Fourteenth Amendment. Judges are also unable to take a defendant’s individual circumstances into account when setting bail if it is predetermined or scheduled. Furthermore, longstanding jurisprudence underscores the general right to pretrial liberty and is incompatible with the bail practices currently in use by Dallas County.
Filed with Americans For Prosperity Foundation, Cato Institute, Clause 40 Foundation, and Professor Shon Hopwood.
Brief in Support of Defendant
Supreme Court of South Dakota
In this amicus brief, we argue that challenges by state officials against the legalization of adult use marijuana in South Dakota should be rejected. Although federal law prohibits marijuana consumption, South Dakota’s drug law reforms are supported by long-standing precedent. Thirteen other states have legalized adult use of cannabis through ballot initiatives and federal officials have consistently practiced non-intervention in regard to these reforms.
Filed with Cato Institute, DKT Liberty Project, and Reason Foundation.
Brief in Support of Appellant
5th Circuit Court of Appeals
The question in this case is when Chevron deference and the rule of lenity conflict in the interpretation of an ambiguous statute with both criminal and civil applications, which should prevail? Our amicus brief argues the court should interpret the statute narrowly, in accordance with the rule of lenity, and not give Chevron deference to a federal agency's broader interpretation. Applying the rule of lenity preserves the separation of powers and ensures fair warning to criminal defendants.
We thank John Cline for his pro bono work on this case.
Brief in Support of Certiorari
U.S. Supreme Court
In this amicus brief, we argue courts should not provide deference to the US Sentencing Commission unless the three requirements set by Kisor v. Wilkie are met. Deference is only owed if the agency’s regulation is genuinely ambiguous, the reading of the regulation is reasonable, and the interpretation entitles the agency to a controlling weight. If this entire criteria is not fulfilled, criminal defendants are entitled to lenity and courts must not reflexively accept implausible readings of the US Sentencing Guidelines.
Due Process Institute thanks Theodore Howard, Boyd Garriott, and Lukman Azeez of Wiley Rein for their pro bono work on this case.
Brief in Support of Certiorari
U.S. Supreme Court
This amicus brief tackles the tension arising from two principles: Stinson deference to an agency’s interpretation of its rules and the rule of lenity. Because the rule of lenity requires courts to interpret ambiguities in criminal statutes in favor of criminal defendants, courts must not “reflexively” accept the U.S. Sentencing Commission’s commentary on ambiguous Sentencing Guidelines. The proper application of the principles of lenity advances due process, the separation of powers, and other fundamental constitutional protections.
Filed with The New Civil Liberties Alliance.
Brief in Support of Certiorari
U.S. Supreme Court
This brief argues the courts do not owe deference to agency commentary that creates harsher sentences. By applying Stinson deference, courts increase the Sentencing Guidelines range approved by Congress and deny the core constitutional principles of lenity and due process. We urge the court to reconsider its outdated position and protect the rights of defendants.
Filed with The New Civil Liberties Alliance.
Brief in Support of Certiorari
U.S. Supreme Court
In our brief, we highlight warrantless home entries committed in the pursuit of alleged misdemeanor crimes. So-called “hot pursuit” searches are a categorical exemption to our constitutional right to be free from unreasonable search and seizure under the 4th Amendment. Not only do these warrantless invasions infringe on these rights, they enable racialized policing and erode public trust in law enforcement.
Filed with the DKT Liberty Project, Law Enforcement Action Partnership, and Reason Foundation.
Due Process Institute also thanks Jessica Amunson, Caroline Cease, and Philip Sailer of Jenner & Block for their amicus support on this case.
Brief in Support of Appellant
2nd Circuit Court of Appeals
This brief highlights the criminal justice system's lack of commitment to guarantee an individual’s right to a speedy trial. In a relatively simple criminal case, it took three years for the accused to reach trial. Speedy trials are fundamental to ensure norms in our justice system and prevent unfair pressures on those accused; it is past time for courts to enforce this right.
We thank the Cato Institute for joining us in this brief.
Due Process Institute also thanks Timothy O’Toole of Miller & Chevalier for his pro bono work on this case.
Brief in Support of Appellant
3rd Circuit Court of Appeals
In this brief, we argue that the government's attempt to prosecute breaches of state contractual provisions under federal criminal property fraud statutes violates fundamental principles regarding notice and federalism.
Filed Nov. 9, 2020 with Americans for Prosperity Foundation, Cato Institute, and NACDL.
Due Process Institute thanks Lawrence Lustberg and Thomas Valen of Gibbons P.C. for their amicus support on this issue.
Brief in Support of Cross-Appellee
6th Circuit Court of Appeals
This brief explores whether reforms to mandatory minimum sentences adopted by Congress in the First Step Act apply to defendants whose pre-Act sentences were vacated on appeal after the Act's adoption and whether such individuals should receive the benefit of reforms Congress passed.
Brief in Support of Appellees
5th Circuit Court of Appeals
This amicus brief tackles the issue of disenfranchisement of individuals who have been convicted for certain crimes in Mississippi. DPI and amici argue that the broad nature of the state's disenfranchisement practices are a violation of the Fourteenth Amendment.
Update: The parties were scheduled to complete oral arguments in June 2020 but this was postponed with the date still to be determined by the court
Brief in Support of Plaintiff
11th Circuit Court of Appeals
This amicus brief tackles the practical impacts of state policies that suspend an individual's driver's license solely on account of court debt. This practice has been found to be counterproductive for public safety, government revenue collection, and local economic growth. This brief summarizes the body of recent research and calls for the end of this practice in the state of Alabama.
Brief in Support of Rehearing
10th Circuit Court of Appeals
This amicus brief tackles the intersection of the rule of lenity and Chevron deference. The brief concludes that the rule of lenity should prevail when such a conflict occurs in order to preserve proper separation of powers in our federal government and fulfill the constitutional requirement of fair notice.
Due Process Institute thanks John Cline for his amicus support on this matter.
Due Process Institute filed another brief in this case during 2019 and the court has granted the Petition for Rehearing En Banc.
Brief in Support of Rehearing
6th Circuit Court of Appeals
This amicus brief tackles the important issue of how due process applies when a municipalities seizes property through civil asset forfeiture and does not grant the owner a prompt, post-seizure hearing.
We thank the Institute for Justice, Mackinac Center for Public Policy, and DKT Liberty Project for joining this brief.
Due Process Institute also thanks Wesley Hottot, Marie Miller, and Keith Neely for their leadership in drafting this amicus brief.
Woodard v. United States
Brief in Support of Certiorari
U.S. Supreme Court
In this brief, we argue that SCOTUS should strike down requirements in the 10th Circuit and other appellate courts that place undue burdens on defendants to demonstrate that their due process rights have been violated by prosecutorial pre-indictment delay. Due process requires the court to focus on prejudice to the defendant rather than the subjective intent of the prosecution.
Petition for certiorari denied May 17, 2021.
We thank Michael Dreeben, Kendall Turner, and their team at O'Melveny & Myers for their pro bono work on this case.
Allen, et. al. v. Edwards
Brief in Support of Plaintiffs
Louisiana First Circuit Court of Appeal
This amicus brief, joined by an impressive array of ideologically diverse co-amici, argues that
the 6th Amendment prohibits states from systemically under-funding public defender offices and explains how the Framers intended the Constitution to establish a vibrant adversarial criminal legal system, not a “sacrifice of unarmed prisoners to gladiators.” You can read Louisiana First Circuit Court of Appeal’s decision here.
We thank the American Conservative Union Foundation Nolan Center for Justice, Cato Institute, Freedomworks Foundation, the James Madison Institute, R Street Institute, Innocence Project New Orleans, The Innocence Project, National Legal Aid & Defender Association and Public Defender Services for the District of Columbia for joining our brief in support of the right to counsel.
Due Process Institute also thanks Chloé Chetta of Barrasso Usdin Kupperman Freeman for her amicus support on this matter.
Tribue v. United States
Brief in Support of Certiorari
U.S. Supreme Court
When a defendant on collateral review successfully challenges one or more of their Armed Career Criminal Act predicate convictions, can the Government resurrect an ACCA-enhanced sentence by substituting new predicate convictions without prior notice? We ask the Court to establish clarity and consistency on a sentencing question that impacts thousands of people.
Petition for certiorari denied April 19, 2021.
We thank the National Association of Criminal Defense Lawyers for joining us in this brief.
Due Process Institute also thanks Thomas Burns for his pro bono work on this issue.
Brief in Support of Certiorari
U.S. Supreme Court
In this amicus brief, we argue the application of Miller should extend to young adults who have passed the age of 18. Under Miller v. Alabama, a person under the age of 18 is not eligible for a sentence of mandatory life without parole. However, current science and the principle that “youth matters” suggest 18, 19, and 20 year olds lack fully matured decision-making and often have mitigating circumstances. Sentencing young adults to life without parole violates the Eighth Amendment’s prohibition on cruel and unusual punishments.
Petition for certiorari denied April 19, 2021.
We thank Catherine S. Simonsen and Gordon-Alexander Wille of White & Case for their pro bono work on this case.
Torres v. Madrid, et. al.
Brief in Support of Certiorari
U.S. Supreme Court
The question in this case is if a "seizure" has occurred, in violation of the Fourth Amendment, when police attempt to stop a suspect by force but do not immediately succeed in doing so. The amicus brief argues that there are good public policy reasons for determining that such action is a "seizure" including accountability for police and improving public trust in law enforcement and their actions.
The United States Supreme Court ruled 5-3 that the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued. You can read the opinion here.
Brief in Support of Certiorari
U.S. Supreme Court
When a juror denies having “unknown” (implied) bias during a material question on voir dire, should a new trial be granted? We ask the Court to consider the plain text reading of McDonough and find that implied bias, like “known” bias, is unmistakably within its reach; a juror’s denial should not defeat a clear showing of bias. Protecting the right to impartial jury trials is fundamental to maintaining due process.
Petition for certiorari denied February, 22 2021.
We thank the Cato Institute and National Association for Public Defense for joining us in this brief.
Due Process Institute also thanks L. Barrett Boss, Kara L. Kapp, Catherine C. Yun, Samuel M. Deau, and Cozen O’Connor for their pro bono work on this issue.
Taylor v. Riojas
Brief in Support of Certiorari
U.S. Supreme Court
This amicus brief adds to the significant number of petitions in recent years asking the Supreme Court to consider the issue of qualified immunity and clarify application of the "clearly established law" test. This case presents the story of Trent Taylor who was incarcerated in a cell with inhumane conditions and supervised by correctional officers who refused his use of a bathroom and medical treatment after complaining of chest and bladder pain.
The United States Supreme Court ruled 7-1 in favor of the petitioner. You can read the opinion here.
Stein v. United States
Brief in Support of Certiorari
U.S. Supreme Court
This amicus brief explores the question of whether prosecutors can knowingly use false testimony at trial to secure a conviction if they disclose enough other information to the defense counsel to uncover the false nature of the testimony.
Petition for certiorari denied December 15, 2020.
We thank the National Association of Public Defense, Cato Institute, Innocence Project, and Americans for Prosperity Foundation for joining this brief.
Due Process Institute also thanks Timothy O'Toole and Katherine Pappas for their amicus support on this matter.
Serrano v. U.S. Customs and Border
Brief in Support of Plaintiff
5th Circuit Court of Appeals
This case considers whether there is a due process right to a prompt post-seizure hearing when one's property is seized by the government. Unfortunately, The United States Court of Appeals for the Fifth Circuit found that it is not constitutionally required for a property owner whose property is seized through civil asset forfeiture to receive a prompt, post-seizure hearing while awaiting a formal forfeiture hearing. You can read the court's full opinion here.
Due Process Institute thanks Cynthia Orr for her amicus support on this matter.
Brief in Support of Appellant
5th Circuit Court of Appeals
This case--perhaps the first of its kind but not the last--asks the court to consider if the government has pursued a "trial penalty" (adding charges and recommending a higher sentence) against a defendant who exercised her right to trial. The United State Court of Appeals for the Fifth Circuit agreed with Due Process Institute that federal Circuit courts have a duty to determine whether a district court sentenced an individual more harshly because they went to trial instead of pleading guilty. The Court failed to find that this occurred in this case. You can read the court's full opinion here.
Due Process Institute thanks Jonathan Marcus and Michael McIntosh of DC's Skadden office for their amicus support on this matter.
Community Success Initiative v. Moore
Brief in Support of Plaintiffs
Superior Court of Wake County
This amicus brief analyzes the intersection of the significant increase in the number of acts considered a felony and a practice in North Carolina that bars individuals with any felony record from voting. This brief argues that overcriminalization and the growth of "user-funded" justice in America make disenfranchisement look very different from its original intent. The Superior Court of Wake County agreed with Due Process Institute and found that North Carolina's statute barring individuals from voting simply because of a failure to pay fines and fees violated the state's Constitution. You can read the court's full order here.
Due Process Institute thanks Cheyenne N Chambers of Tin, Fulton, Walker & Owen and Tyce R. Walters of Latham & Watkins for their amicus support on this matter.
Brief in Support of Defendant
Florida Court of Appeals
DPI explains how the use of the police's covert video surveillance took advantage of the lack of privacy safeguards in the law and failed to utilize adequate minimization techniques to pass Constitutional muster-- therefore the evidence obtained from that surveillance must be excluded. The Florida Court of Appeals agreed with the Due Process Institute and found that police had violated the Fourth Amendment. You can read the full opinion here.
Due Process Institute thanks Donnie Murrell for his amicus support on this matter.
Brief in Support of Certiorari
U.S. Supreme Court
The Supreme Court has previously ruled that any facts which increase the range of possible punishments for a defendant’s criminal conviction must be found by a jury beyond a reasonable doubt. This brief tackles whether the Constitution also requires that state statutes that increase the minimum time a defendant must serve in prison before being released on parole be invalidated under the Sixth and Fourteenth Amendments.
Petition for certiorari denied June 22, 2020.
Due Process Institute thanks Kendall Turner for her amicus support on this matter as well as National Association for Public Defense for joining our brief.
Brief in Support of Certiorari
U.S. Supreme Court
This amicus addresses the issue of qualified immunity for a particularly egregious case, in which police had consent--and a key--to enter a home but instead shot tear gas into the home for hours. The brief was critical of the qualified immunity doctrine because of its unreasonably difficult hurdles to get justice for those who are wronged by law enforcement. Further, the brief argued that the doctrine erodes trust in law enforcement because of this lack of accountability.
Petition for certiorari denied June 15, 2020.
Brief in Support of Certiorari
U.S. Supreme Court
This cross-ideological brief addresses the doctrine of qualified immunity and specifically attacked the "clearly established law" test that undergirds most instances whereby law enforcement personnel are not held responsible for wrongful conduct. The brief also discussed the importance of public trust in the institution of law enforcement and how qualified immunity undermines that trust.
Petition for certiorari denied June 15, 2020.
Brief in Support of Certiorari
U.S. Supreme Court
This cross-ideological brief addresses the doctrine of qualified immunity and specifically attacked the "clearly established law" test that undergirds most instances whereby law enforcement personnel are not held responsible for wrongful conduct. The brief also discussed the importance of public trust in the institution of law enforcement and how qualified immunity undermines that trust.
Petition for certiorari denied June 15, 2020.
Brief in Support of Certiorari
U.S. Supreme Court
This brief explores the problems with the doctrine of qualified immunity for law enforcement officials because it excuses unconstitutional conduct, imposes a heavy burden on civil rights litigants, and erodes public trust.
Petition for certiorari denied June 15, 2020.
Brief in Support of Appellant
10th Circuit Court of Appeals
In this brief, we argue that the rule of lenity should take precedence over conflicting canons of construction (e.g. the doctrine of Chevron deference) for statutes with criminal application given the risk to life and liberty. The 10th Circuit unfortunately ruled against Aposhian in an opinion you can read here.
Due Process Institute thanks John Cline for his amicus support on this matter.
Brief in Support of Certiorari
U.S. Supreme Court
At issue is the private search doctrine in regards to digital devices. DPI argues on behalf of petitioner that greater protection should be given to devices such as cell phones and laptops because the volume and type of material available on those devices is at least, if not more, private than what can be found in one's home.
Petition for certiorari denied May 4, 2020.
Guedes v. Bureau of Alcohol, Tobacco, Firearms, and Explosives
Brief in Support of Certiorari
U.S. Supreme Court
At issue in this case is the precedence of the "rule of lenity" doctrine versus Chevron deference in the interpretation of language that defines a crime.
Due Process Institute thanks John Cline for his amicus support on this matter as well as The Buckeye Institute for joining our brief.
Petition for certiorari denied March 2, 2020.
Brief in Support of Certiorari
U.S. Supreme Court
In this brief we argue that the Sixth Amendment right to a jury trial prohibits judges from basing sentences on charges for which juries have acquitted criminal defendants.
Petition for certiorari denied February 24, 2020.
Brief in Support of Certiorari
U.S. Supreme Court
At issue is the per se rule in antitrust law and its implications for the Fifth and Sixth Amendment rights to the finding by a jury that a defendant is guilty beyond a reasonable doubt.
Due Process Institute thanks Erin E. Murphy (Kirkland & Ellis, DC) and Alyssa Kalisky (Kirkland & Ellis, Chicago) for their amicus support on this matter.
Petition for certiorari denied January 13, 2020.
Brief in Support of Certiorari
U.S. Supreme Court
The question presented will resolve a circuit split on the appropriate standard of review for sentencing enhancements based on the unsworn out-of-court statements of cooperating witnesses.
Due Process Institute thanks John Cline for his amicus support on this matter as well as the law professors and following organizations for joining our brief: Cato Institute, NACDL, Rutherford Institute, District of Columbia Association of Criminal Defense Lawyers, Pennsylvania Association of Criminal Defense Lawyers, and Texas Association of Criminal Defense Lawyers.
Petition for certiorari denied on October 15, 2019.
Brief in Support of Respondent
U.S. Supreme Court
Are the portions of 18 U.S.C. § 3583(k) that required the district court to revoke supervised release and to impose re-imprisonment based on a finding by a preponderance of the evidence that respondent violated the conditions of his release an “unconstitutional and unenforceable” law?
Due Process Institute wishes to thank David T. Goldberg for his amicus support on this matter.
In a 5-4 decision, the Supreme Court agreed with the Due Process Institute's opinion and ruled in favor of Haymond. Read the opinion by Justice Gorsuch here.
Brief in Support of Petitioner
U.S. Supreme Court
Is there a Fourth Amendment warrant requirement exception for a statute stating that an individual implicitly consents to a blood draw?
The Court unfortunately ruled against Mitchell in an opinion you can read here.
Brief in Support of Certiorari
U.S. Supreme Court
The question presented is whether the Sixth Amendment right to counsel attaches before an indictment in a situation where a prosecutor threatens to indict a defendant unless the defendant accepts a plea offer.
Due Process Institute wishes to thank Cozen O’Connor for their amicus support in this matter, particularly Stephen A. Miller, Barry Boss, and Kara L. Kapp. We also thank Cato Institute for joining our brief.
Petition for certiorari denied on June 24, 2019.
Brief in Support of Certiorari
U.S. Supreme Court
This case involved a warrantless strip search of a minor child on suspicions that the child has suffered from abuse. The question considered in this amicus brief was on the application of qualified immunity.
Petition for certiorari denied on May 20, 2019.
Hillman v. Nueces County, Texas and Nueces County District Attorney's Office
Brief in Support of Petitioner
Supreme Court of Texas
A former district attorney filed suit against Nueces County for wrongful termination after he was fired for disclosing information to the defense, as he believed it was his legal and ethical duty to do so.
The Texas Supreme Court ruled against Hillman on the grounds that government immunity barred the lawsuit. Read the opinion here.
Brief in Support of Petitioner
U.S. Supreme Court
The case centered around the civil forfeiture of the plaintiff's $42,000 vehicle for a crime that had a maximum $10,000 criminal fine.
The Supreme Court agreed with Due Process Institute and ruled 9-0 in favor of plaintiff Timbs. The Court specifically held that the Excessive Fines Clause of the Eighth Amendment is incorporated to the states through the Fourteenth Amendment's Due Process Clause. Read the opinion here.
Cabrera-Rangel v. United States
Brief in Support of Certiorari
U.S. Supreme Court
The question presented was whether the Sixth Amendment right to a jury trial prohibits judges from basing sentences on charges for which juries have acquitted criminal defendants.
Due Process Institutes wishes to thank Timothy O'Toole and Sarah A. Dowd of Miller & Chevalier for their amicus support on this case.
Petition for certiorari denied on January 14, 2019.
Brief in Support of Certiorari
U.S. Supreme Court
Due Process Institute's Shana O'Toole authored this brief regarding the waiver of appellate review of what appears to be highly suspect restitution and forfeiture awards.
Petition for certiorari denied on January 7, 2019.
Almighty Supreme Born Allah, Petitioner v. Lynn Milling, et al.
Brief in Support of Certiorari
Second Circuit Court of Appeals
Due Process Institute joined a large array of cross-ideological organizations as co-signers for this amicus brief on qualified immunity.
The petitioner voluntarily dismissed his petition for certiorari following a settlement with the government.
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