Our Principles

The mission of the Due Process Institute is to honor, preserve, and restore those Constitutional rights intended to protect individuals and organizations against the arbitrary exercise of government power. This mission of procedural fairness is a vital one given the erosion of these rights in recent decades. Importantly, 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. 

 A few of the key principles that guide our work include:

  • The People must have notice of the laws before they can be criminally charged or punished for violating them. Current criminal laws must reflect the importance of clearly defined and meaningful criminal intent terms, granting protection against wrongful or unfair prosecutions. Our laws must also provide adequate notice by avoiding overly broad or vague terms that can be interpreted in inconsistent or unfair ways. It is also because the universe of federal criminal laws is so massive (and has been literally uncountable for years) that these structural elements of our criminal laws are important. The Due Process Institute believes that all newly-proposed bills must properly consider if a criminal penalty is an appropriate and necessary sanction as the federal government has relied upon its power to criminalize far too often and has ignored other common sense approaches to encourage compliance with laws and regulations. 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.

  • The People must be given the right to present evidence, call witnesses, and cross-examine opposing witnesses, and to know the opposing evidence.  These rights encompass a wide variety to much-needed reforms including returning to a prosecutorial climate in which ethics, fairness, and restraint are valued in the pursuit of their duties in order to prevent misconduct; exploring how to identify and effectively address instances of prosecutorial misconduct once they’ve occurred; and seeking ways to improve the fairness and efficacy of criminal discovery practice. The Due Process Institute supports the abolition of, or commonsense limitations to, the qualified immunity doctrine. We also support the recording of all custodial interrogations and the use of valid forensic science in the courtroom. Important, the Due Process Institute believes that fundamental reforms to the criminal discovery rules need to be made in order to ensure that an accused person has timely access to all information in their case.

  • The People must be free from unreasonable searches. As technology advances, so does the potential for government abuse of warrantless searches. More protection is needed for digital records, bank records, and other data to ensure that the Constitution’s warrant requirements are met. Overly broad surveillance by the Government invokes privacy as well as Constitutional concerns.

  • The People must be free from unreasonable seizures. Civil asset forfeiture should be abolished or severely limited in use and other common sense reforms in criminal and civil asset forfeiture programs should be pursued. Similarly, federal structuring laws should be confined to use only when it is used to further an illegal act.

  • The People have a right to a fair and impartial grand jury. The grand jury must return to its original purpose: as a meaningful check on governmental power. Instead, it has become a tool to enhance prosecutorial power. Certain commonsense reforms could help the grand jury function as it intended, including: making the transcript of grand jury proceedings public after indictment; requiring prosecutors to reveal known exculpatory evidence to grand jurors; allowing targets and subjects of a grand jury investigation to testify; and providing the right for any witness or the accused to be accompanied by defense counsel in a grand jury proceeding.

  • The People must be given a meaningful opportunity to be heard by an unbiased tribunal in a timely manner. The right to a jury trial must not only be protected, but encouraged. Plea bargaining is likely necessary for the efficiency of our judicial system, but the current extraordinary plea rate (97%) suggests that the federal system has stacked the deck against defendants to an extreme degree. When trials are effectively eliminated, defendants are deprived of their rights and the system itself is deprived of the right to test the fairness of its laws. The Due Process Institute recognizes that accused persons will not have a meaningful “right to trial” while certain procedural impediments exist that unfairly balance the scales in the favor of the government, including: the phenomenon of overcriminalization; duplicative criminal laws; the ability of prosecutors to “stack” charges; irrational sentencing laws; and inadequate access to, and funding for, defense counsel. The Due Process Institute encourages a vibrant right to confront witnesses and supports the limitations on judges from enhancing criminal sentences based on facts other than those decided by a jury beyond a reasonable doubt. The Due Process Institute also supports the abolition of the practice of imprisoning a person based on conduct that a jury has actually found them not guilty of committing (so-called “acquitted conduct sentencing”).

  • The People have the right to be represented by counsel. Defense counsel is absolutely necessary for our criminal justice system to function properly. We support efforts to ensure that all accused persons, including the indigent, have an independent and effective voice in their corner.

  • While the overwhelming majority of our work finds its mooring in enumerated procedural due process guarantees, we also partner with allies across the political spectrum to support the general principle of fairness in the criminal legal system, such as working to ensure that millions of Americans with a criminal record receive a “second chance” and have access to healthcare, education, housing, and employment and supporting the passage of meaningful prison and re-entry reforms.