Learn how you can help ensure that the principle of due process endures this crisis
December 27, 2020--Due Process Institute has long advocated to restore Pell Grant eligibility for incarcerated individuals. By removing the ban on Pell Grants, this law will provide more opportunities for education in prison and assist in the pursuit of higher education. Providing access to education is proven to reduce recidivism and helps to prepare incarcerated people for reentry into society.
This reform was achieved with a bipartisan coalition and we are proud to have been a part of this successful effort.
December 8, 2020--Due Process Institute joins a wide variety of organizations in a letter to Google urging more transparency regarding the use of so-called “geofence warrants,” which compel disclosure of all devices within a particular area, and so-called “keyword warrants,” which identify every Google user who searched for a specific word, phrase, or address. Law enforcement uses these warrants to collect swathes of digital location data as well as vast amounts of personal information about our private associations and activities. These broad and sweeping tactics allow law enforcement to circumvent Constitutional limits on surveillance.
As a leading recipient of geofence and keyword warrants, Google is uniquely situated to provide public oversight of these abusive practices. Google received a 75-fold increase in geofence warrant requests from 2017 to 2019. In this letter, we ask Google to further their commitment to privacy by publicly reporting these warrant requests more frequently and with more detail in order to assist privacy advocates in tracking the growth of these law enforcement requests. Identifying and measuring the extent to which law enforcement is relying on these abusive tactics is a crucial step in our fight to ensure privacy and protect constitutional rights.
November 24, 2020--Due Process Institute and our allies joined a letter to highlight the deeply problematic nature of the Intelligence Authorization Act in its current form. Sections of this bill establish social media and online threat surveillance but provide no clear definitions to shield us from the ensuing and sweeping data collection. These stipulations also offer no safeguards for the victims of baseless suspicion and will further stigmatize vulnerable communities. The insufficient regulations in the Intelligence Authorization Act ultimately open the door to future First and Fourth Amendment violations. We call for these sections to be removed, protections to be strengthened, and to expand independent amici in Foreign Intelligence Surveillance Court.
October 27, 2020--Due Process Institute joined a letter to Representative Anna Eshoo who has recently pushed for clarity around how federal agencies are using surveillance programs to collect information on countless Americans. She has specifically requested the Acting Inspector General of the Intelligence Community to investigate how federal agencies are using their surveillance powers to target Americans based on their race, ethnicity, and religion.
October 16, 2020--Due Process Institute partnered with the Innocence Project and Prof. Brandon Garrett of Duke Law School's Wilson Center for Science and Justice to urge the Committee responsible for drafting the Federal Rules of Evidence to turn their attention to the critical issue of ensuring scientific integrity in court proceedings.
In a letter supported by a diverse array of academic institutions, legal advocates, and policy organizations, we urged the Committee to consider amending Rule 702 because courts frequently fail to exclude unreliable or insufficiently tested forensic techniques or to rein in exaggerated and misleading claims to experts. These failures are particularly consequential in court proceedings in which life and liberty are at stake.
We thank our many allies for the support, advocacy, and expertise they provided in this effort: Academy for Justice at the Arizona State University Sandra Day O’Connor College of Law; American Civil Liberties Union; Black Public Defender Association; The Bronx Defenders; Center for Justice Research at Texas Southern University; Center for Integrity in Forensic Sciences; Computational Justice Lab at Claremont Graduate University; Fair and Just Prosecution; Federal Public and Community Defenders; Forensic Justice Project; Innocence Project; The Legal Aid Society; NAACP Legal Defense and Educational Fund, Inc.; Public Defender Service for the District of Columbia; Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Carey Law School; Reason Foundation; Southern Center for Human Rights; and Wilson Center for Science and Justice at Duke University School of Law.
October 9, 2020--The bipartisan Kenneth P. Thompson Begin Again Act was introduced in the House with the support of a diversion coalition supporting the bill. The Begin Again Act expands the current federal expungement process to include any individual convicted of a first-time, simple possession charge. This bill is a commonsense reform that will ensure these individuals can acquire a true second chance and aligns with a growing body of research showing that expungement has positive benefits for our economy and public safety.
October 5, 2020--Due Process Institute joined Institute for Justice, Mackinac Center for Public Policy, and DKT Liberty Project to file a brief with the Sixth Circuit urging it to reconsider a case considering how due process applies when a municipality seizes property through civil forfeiture. The defendants in this case, Wayne County and the City of Lincoln Park, have a proven history of seizing vehicles from thousands of people and retaining them for six month or longer without initiating civil forfeiture proceedings. We believe due process requires a hearing in cases of long-term vehicle seizures where prosecutors do not promptly apply for forfeiture of the property with local courts.
September 23, 2020--The United States House of Representatives passed the Effective Assistance of Counsel in the Digital Era Act earlier this week. The bill has now been sent to the Senate. Due Process Institute has led a coalition effort to urge leaders in the Senate to allow prompt consideration of this important bill.
We would like to thank Americans for Prosperity, #cut50, Fair and Just Prosecution, Faith & Freedom Coalition, FAMM, Federal Public and Community Defenders, FreedomWorks, Law Enforcement Action Partnership, and the National Association of Criminal Defense Lawyers for joining us in this effort.
September 21, 2020--The United States House of Representatives passed the Effective Assistance of Counsel in the Digital Era Act, a bill that the Due Process Institute has been working to advance from the beginning. The bill will ensure that email communications between an individual in a federal prison and their attorney will receive the full protections of attorney-client privilege alongside all other forms of communication. It will now be sent to the Senate where we urge that chamber's leadership to promptly allow its consideration on the Senate floor.
We would like to thank Representatives Hakeem Jeffries and Doug Collins for their leadership on this issue and our many bipartisan coalitions partners in this effort.
"On behalf of everyone at Due Process Institute and Clause 40 Foundation, I want to express our profound sadness at the passing of Justice Ruth Bader Ginsburg.
Before she ascended to the High Court, she was a trailblazing civil rights lawyer and appellate court judge. After her elevation to the Supremes, Justice Ginsburg became the leading light of the liberal wing of the Court and an icon to generations of progressive lawyers and activists.
The coming days and weeks before the presidential election will undoubtedly fuel partisan rancor to extreme levels as the nomination fight looms. But right now, in this moment, members of both parties should join the American people in mourning the loss of such a remarkable woman and jurist.
Requiescat in pace, Justice Ginsburg.”
September 14, 2020--Due Process Institute and a bipartisan group of leaders in Congress have been fighting for months to secure reforms to the Foreign Intelligence Surveillance Act that establish reasonable safeguards without hindering our national security. Key provisions of FISA have now lacked Congressional authorization for six months and major concerns have been raised about the widespread misuse of these authorities. Together with allies from across the political spectrum, we sent a letter to House leadership urging them to not utilize an unconventional legislative vehicle for the extension of these authorities that would bar adequate consideration of these controversial and important issues.
September 9, 2020--Today Senators Lee (R-UT), Durbin (D-IL), and Coons (D-DE) introduced The Smarter Pretrial Detention for Drug Charges Act. We are proud to have served as a significant partner in that effort.
If passed, the bill will help fix a serious, structural problem in our federal criminal justice system. Current law presumes that all federal drug offenders should be held in jail while awaiting trial—that is, before they are convicted of anything. Today’s bill eliminates this presumption for federal nonviolent drug offenders—the second largest group of people in the federal system—restoring the presumption of innocence and abolishing this unfair and un-American presumption of incarceration.
If passed, the bill will help to eliminate a leading cause of America’s overincarceration, since the current presumption of detention compels most people facing drug charges to sit in jail as they await their trial, forcing them to consider pleading guilty in order to try to obtain a speedier release. Its burdens fall disproportionately on people of color. Research also now shows that this law does little to protect public safety; all it does is impose a great cost on taxpayers to incarcerate people who should be free while awaiting the resolution of their case. And it is especially harmful during a pandemic, when COVID-19 is ravaging our jails and prisons, exposing detainees, prison staff, and their families to a potentially deadly disease before their guilt or innocence has even been determined.
Like the other bipartisan reform bills we have spearheaded, The Smarter Pretrial Detention for Drug Charges Act presents a simple, effective solution to important failures in our system. We worked hard to make this a reality and to ensure bipartisan support by Congressional leaders and an incredibly diverse array of endorsing organizations. Thanks to our many allies who continuously help prove that #BipartisanWorks: #cut50, a program of Dream Corps, American Civil Liberties Union, American Conservative Union, Americans for Prosperity, Americans for Tax Reform, Black Public Defender Association, Drug Policy Alliance, Fair Trials, FAMM, Federal Public and Community Defenders, FreedomWorks, Innocence Project, Justice Action Network, Justice Roundtable, Leadership Conference, National Association of Criminal Defense Lawyers, National Legal Aid and Defender Association, Prison Fellowship, R Street Institute, Right on Crime, The Sentencing Project, and Tzedek Association.
August 26, 2020--Due Process Institute joined a coalition of legislative leaders, policy organizations, and legal professionals in calling upon the Pennsylvania Board of Pardons to release more individuals from state prison who are serving unjust sentences, have substantiated claims that were wrongly convicted, and are deserving of grace given their ability to achieve restoration in prison. We urge the Board to utilize its clemency power to its full extent during this time of uncertainty in ways that will not harm public safety.
August 19, 2020--During 2019, Due Process Institute filed a brief in the Fourth District Court of Appeal in Florida supporting the Appellee in his arguments that law enforcement's use of video surveillance violated the Fourth Amendment. In this case police failed to utilize adequate minimization techniques that prevent any warrant from becoming authorization to surveil anyone at any time. Judge Ciklin agreed with Due Process Institute that law enforcement violated the Fourth Amendment and could not use the video surveillance during the Appellee's trial.
August 5, 2020--Due Process Institute and a bipartisan coalition of 10 groups called on Congressional leadership to utilize oversight of federal agencies to ensure they are not conducting illegal surveillance of people in the United States through questionable legal authorities. Several provisions of the Foreign Intelligence Surveillance Act have been expired since March but some Executive and Congressional leaders have alleged that authorization of these provisions is not required for federal agencies to conduct mass surveillance of American citizens.
July 31, 2020--Due Process Institute's Policy Counsel submitted written testimony to Virginia's Senate Judiciary and Social Services Committees urging the state to adopt reforms that "improve fairness and the effective administration of justice" during the Commonwealth's upcoming special legislative session.
He urged the members of the Virginia General Assembly to adopt the following reforms:
1. An end to the state's statutory presumptions of pretrial detention for certain crimes that disrespect our principle that every individual is innocent until proven guilty.
2. Requiring a formal hearing before pretrial incarceration for all individuals arrested or charged with a crime.
3. Removing one of the largest barriers to police accountability—qualified immunity.
July 24, 2020--Due Process Institute joined a bipartisan coalition of national and local groups calling on the U.S. Senate to allow consideration of the bipartisan COVID-19 Safe Detention Act sponsored by Senators Durbin, Grassley, and Cramer as part of the next COVID-19 response package. This legislation will reduce overcrowding in federal prisons by streamlining the individualized determination of compassionate release and home detention motions for those who are extremely vulnerable to COVID-19 given their age or medical condition.
July 23, 2020--Virginia will be hosting a special session in August 2020 where legislative leaders will consider a variety of criminal justice reform proposals. Due Process Institute joined a bipartisan coalition of nine groups calling for the adoption of significant policing and criminal justice reforms such as ending mandatory minimums, expanding expungement, and improving police accountability.
“The COVID-19 crisis and recent calls for criminal justice reform create an inflection point for Virginia to lead the rest of the country by ensuring an effective justice system characterized by restoration and equality for all,” said Jeremiah Mosteller, Policy Counsel at Due Process Institute. “As a Virginian, I have been encouraged by the steps our General Assembly has already taken in recent sessions to improve our justice system and urge our elected leaders to utilize this unique opportunity to fix the remaining problems. These solutions should seek to reduce overcriminalization, improve accountability in policing, and ensure everyone’s constitutional rights are protected in the Commonwealth’s justice system.”
July 21, 2020--Senators Patrick Leahy and Mike Lee sent a letter to the Attorney General and the Director of National Intelligence requesting that they confirm the termination of certain federal surveillance programs that Congress has failed to reauthorize and provide detailed explanations for the continuation of similar activities under other questionable legal authorities.
These requests mirror those included in a letter Due Process Institute, Defending Rights & Dissent, Demand Progress, and FreedomWorks urging that Congress receive similar information before reauthorizing key provisions of the Foreign Intelligence Surveillance Act.
July 21,2020--Due Process Institute Policy Counsel Jeremiah Mosteller was interviewed on the Swamp to the States podcast hosted by Americans for Tax Reform. He discussed the recent momentum to achieve policing reform in Congress and how the issues of overcriminalization and the growth of fines and fees in our justice system have fueled the current concerns about policing in America.
July 20, 2020--Due Process Institute, the American Civil Liberties Union, and FreedomWorks sent a letter to members of the House of Representatives opposing a proposed amendment to the William M. Thornberry National Defense Authorization Act (H.R. 6395). This amendment seeks to add the unrelated Corporate Transparency Act of 2019 to this appropriations package for the Department of Defense. The provisions of this amendment raise serious concerns regarding privacy and the unreasonable 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 and nonprofit groups attempting to faithfully comply with complex laws.
July 20,2020--Due Process Institute joined a diverse coalition of more than 20 groups submitting an amicus brief to the United States Court Of Appeals for the Eleventh Circuit to support a ruling that would end suspension of driver's licenses in Alabama solely for an individual's failure to pay court debt. This brief substantively focused on the impact of such policies and highlights how they are counterproductive for achieving increased public safety.
July 17, 2020--Due Process Institute has been working for years to advance reforms of civil asset forfeiture at the federal level. We are encouraged that leaders in the United States Senate are reiterating the need for important reforms by reintroducing the Fifth Amendment Integrity Restoration (FAIR) Act. This legislation complements these other efforts by adding key provisions that will end administrative forfeiture, which allows federal agencies to take property from innocent property owners without the due process protections available in our federal court system.
July 6, 2020--Many states suspend an individual's driver's license solely because they cannot afford to pay a debt they owe their state or local court system. This makes it more difficult for these individuals to pay the underlying debt and prevents them from being able to maintain stable employment. These concerns are even more pressing given COVID-19.
Due Process Institute has joined a bipartisan coalition of 15 groups working with Congressional leaders to end these counterproductive policies by passing the Driving for Opportunity Act. This bill will help states who want to enact smart, data-driven policies related to the use of fines and fees in our justice system.
June 25, 2020--On the eve of the committee vote for the Inspector General Access Act, it was discovered that an amendment was proposed that would weaken this legislation's pursuit of accountability at a time when our nation needs it most. Due Process Institute partnered with FreedomWorks and other groups to urge Senate Judiciary Committee members to oppose the amendment and support the underlying legislation. During the bill's markup, this amendment was overwhelmingly defeated and the Act as been advanced to the Senate floor. Now we need a vote! #Accountability
June 23, 2020--In a time of national crisis, Due Process Institute is grateful for the work of Senators Durbin and Grassley for introducing the COVID-19 Safer Detention Act, which will address some of the many issues facing older and sick populations in prison during this deadly virus.
The bill does a number of important things: it expands the eligibility for the existing home detention program to include nonviolent offenders who have served half their sentence as well as older nonviolent people incarcerated in federal prisons for offenses committed in Washington, D.C. The bill ensures that federal “old law prisoners” (those sentenced before 11/1/87 when federal parole still existed) are eligible to benefit from compassionate release reforms passed in the First Step Act. It includes a “fix” to the issue of how to calculate “good time credit” in order to qualify for relief passed under the First Step Act. It also ensures judicial review for home detention eligibility decisions. The bill would explicitly establish that COVID-19 vulnerability during a pandemic serves as a basis for compassionate release and it lessens the waiting period for such release decisions from 30 to 10 days.
Our bipartisan team has been working hard on securing these reforms—some since passage of the First Step Act and others since the pandemic hit our shores. Does it address every over-incarceration issue? No. Does it help everyone who needs help? No. But we endorse this legislation and express gratitude to these Senators for working together to try to ease some of the suffering that is occurring behind the walls.
Since the onset of the deadly virus in March of this year, only 500 federal inmates have been granted compassionate release from incarceration based on their age or health vulnerability to Covid-19. The vast majority of those were released by courts who did so over the objections of DOJ and BOP. The reforms in this bill, if passed, will ensure that many more people suffering will have a chance to be released. #BipartisanWorks
June 4, 2020--As tens of thousands of people take to the streets to demand justice and police accountability after the police killings of George Floyd in Minneapolis and Breonna Taylor in Louisville, we are reminded once again of the repeated failures of our criminal legal system to protect its own people—particularly black Americans. The people are demanding justice from their government. Congress can answer by increasing police accountability through the bipartisan Ending Qualified Immunity Act introduced yesterday.
Qualified immunity has seriously weakened a civil rights protection that was specifically enacted to protect black Americans from governmental abuses of power. Of course, regardless of the history behind its enactment, that law protects us all, and the doctrine of qualified immunity takes away that right from victims irrespective of our race. But the reality is that because our police focus so much of their most aggressive tactics and policies in black neighborhoods, and that black people are more likely to come into police-initiated contact than others, qualified immunity serves as one of many systemic injustices that currently disproportionately burden black Americans. Our Founder and President Shana O'Toole has written a blog explaining further why Due Process Institute supported the introduction of the bill and the reason why this civil rights protection needs to be immediately restored.
With the understanding that this is only one of many needed structural changes necessary, we strongly endorse this Act to restore remedies under federal civil rights law to victims who have suffered constitutional violations by law enforcement and other government agents.
We commend Representatives Justin Amash and Ayanna Pressley for looking past their many differences to lead this important bipartisan bill forward in an effort to undo the court-created injustice of qualified immunity.
June 3, 2020--During this time of national crisis, Due Process Institute is working hard to pass laws that would increase accountability of the people in our criminal legal system who wield so much power. As part of that effort, we urge the Senate to pass the bipartisan-supported Inspector General Access Act of 2019 (S. 685), which has already passed the House of Representatives.
Unlike most other federal agencies with inspectors general (IG), the Department of Justice's IG does not have the authority to investigate matters of alleged professional misconduct by its own attorneys--including prosecutors. Instead, investigations into a federal prosecutor's misconduct are handled by an internal process with no real independence from the attorneys it is investigating. While there are many well-documented instances of clear and egregious prosecutorial misconduct, these instances have been paired with relatively little accountability.
Without meaningful independent oversight, there is little public accountability for Justice Department prosecutors who engage in reckless or willful misconduct--including the violation of Constitutional rights. We urge the Senate to act quickly to pass this bill as a step toward restoring the public's faith in the rule of law.
May 27, 2020--Due Process Institute supports the USA FREEDOM Reauthorization Act (H.R. 6172). We urge a YES vote in support of long overdue reform of FISA surveillance, regardless of whether additional reform amendments are successful.
Two weeks ago, the Senate successfully passed the USA FREEDOM Reauthorization Act (previously passed by the House) with the addition of one important bipartisan amendment improving third-party oversight and input into the Foreign Intelligence Surveillance Court process. The legislation the Senate passed—which does not include every reform that is necessary to address all of our concerns with FISA surveillance in the United States—still represents a major improvement over current law.
USA FREEDOM Reauthorization Act Highlights
The House has an opportunity to further protect our Fourth Amendment rights by adopting additional reform amendments before passing the underlying legislation. These amendments would ensure the reasonable Constitutional safeguard of a warrant is met before the government can search through our personal information—an extraordinary power that our Founding Generation understood could be abused. But regardless of the success of such amendments, we urge a YES vote on the meaningful improvements contained in H.R. 6172.
Please watch our explainer video for more on the importance of reforming FISA.
May 18, 2020--Due Process Institute joined a bipartisan coalition in urging Congressional leadership in the House to adopt an amendment that failed by one vote in the Senate to reform the Foreign Intelligence Surveillance Act. This amendment would ensure that federal agencies secure a warrant to obtain internet search and browsing history, thus honoring the Constitutional guarantee of the Fourth Amendment.
May 14, 2020--Due Process Institute releases statement praising the Senate for passing reforms to the Foreign Intelligence Surveillance Act that will protect due process rights.
“The USA FREEDOM Reauthorization Act could have been significantly improved by the inclusion of a bipartisan amendment from Senators Wyden and Daines that would have protected Americans’ private internet histories from warrantless government surveillance, but the version that the Senate has passed is still a significant improvement over the current laws that undermine due process rights,” said Shana-Tara O’Toole, Founder and President of Due Process Institute. “We are encouraged that Senate leaders crossed their respective political aisles to work together on important reforms that begin to better protect constitutional rights and still allow our government to do the important work of maintaining national security. We urge the House to promptly pass this legislation to ensure that America’s surveillance laws are brought more in line with vital protections guaranteed in our Constitution.”
May 13, 2020--The Due Process Institute endorses the Emergency GRACE Act, one provision of which will ensure everyone incarcerated in a federal prison can apply directly to a judge for compassionate release and loosens some requirements of doing so amid the COVID-19 pandemic.
“Compassionate release is an important mechanism for reducing our prison populations during the COVID-19 crisis,” said Shana O’Toole, President and Founder of the Due Process Institute. “By passing the Emergency GRACE Act, Congress can ensure a court will promptly hear that motions for compassionate release from the most vulnerable individuals held in our federal prisons.”
The legislation would also extend the reforms included in the First Step Act (that we worked to pass) to federal prisoners who have been serving sentences rendered before November of 1987.
“The First Step Act focused on improving the compassionate release process, and the ability for an individual or his representative to file directly to a court is particularly important in a time like this, when the Bureau of Prisons is bogged down in requests,” said Joe Luppino-Esposito, Director of Rule of Law Initiatives at the Due Process Institute. “Being able to apply the same standards to all BOP prisoners, regardless of their sentencing date, is a full expression of the intent in the First Step Act.”
May 11, 2020--Due Process Institute joined a coalition of more than 35 organizations calling for the U.S. Senate to protect their constituents' freedoms by adopting three vital amendments to the USA FREEDOM Reauthorization Act. These amendments will help end the warrantless surveillance of the American people currently empowered by questionable interpretations of the Foreign Intelligence Surveillance Act by federal agencies.
May 6, 2020--Due Process Institute joined Defending Rights & Dissent, Demand Progress, and FreedomWorks to request that the Department of Justice and Office of the Director of National Intelligence confirm all relevant federal agencies have ended their surveillance activities under expired provisions of the Foreign Intelligence Surveillance Act. We also request that relevant agencies confirm they are not improperly using the remaining limited exceptions to continue activities that infringe upon the constitutional rights of all Americans.
On May 7th, 2020, this same coalition formally requested assistance with this request from leadership in the House and Senate Judiciary Committees.
April 22, 2020--Due Process Institute is part of a bipartisan coalition urging Congressional leaders in the respective Judiciary Committees to open up the compassionate release provisions in the First Step Act to a larger group of people. Due to a technicality, anyone currently incarcerated who was sentenced before parole was eliminated in 1987 can only ask for relief from the Parole Commission--they cannot seek compassionate release from the Bureau of Prisons or from a court. This issue is particularly important today as many of these people are especially vulnerable to COVID-19. They are an aging population and have all served at least 30 years of their sentences already. A simple amendment to the First Step Act would allow them to apply for compassionate release to the BOP or a court--at least a fighting chance.
April 22, 2020--Due Process Institute joined a coalition of organizations calling on Texas Governor Greg Abbott to rescind his recent executive order to restrict release of incarcerated persons and strip crucial speedy trial protections for those in custody. We believe this order undermines the constitutional rights of Texans and erodes the ability for local law enforcement officials and judges to utilize their expertise about what is most needed in their local communities during this difficult time.
April 15, 2020--Virginia Governor Ralph Northam signed several bills into law that were priority items for Due Process Institute in this year’s General Assembly session.
First, HB 873 was the result of years of hard work for reformers focused on pretrial rights and criminal discovery. This bill guarantees that by July 1 of this year, Virginia defendants will have significantly more discovery rights, whether by this law or by the implementation of the discovery rules originally approved by the state Supreme Court that have been delayed. If those rules do not go into effect, the reforms contained in HB 873 will become law. Second, HB 1522 guarantees that, with rare exceptions, one’s assets cannot be forfeited without a criminal conviction. Finally, SB 1 ends the practice of driver’s license suspension for the nonpayment of fines or fees and orders the state to reinstate the licenses for those who had a suspension for that reason. The reinstatement will require no fees on the part of the individual.
These criminal justice reform legislative victories could not have been achieved without a strong bipartisan coalition of reformers in Richmond and throughout the commonwealth. We are proud to have been a part of these successful efforts.
April 6, 2020--Due Process Institute advocated alongside a coalition of 50 bipartisan organizations for the American Association of Motor Vehicle Administrators to work with their member state agencies to end driver's licenses suspensions solely for court debt during the COVID-19 crisis.
April 1, 2020--In honor of Second Chance Month, Due Process Institute announces its endorsement of the following pieces of bipartisan federal legislation: Prison to Proprietorship for Formerly Incarcerated Act (H.R. 5065), Trafficking Survivors Relief Act of 2020 (S. 3240 / H.R. 3627), Shift Back to Society Act of 2019 (H.R. 4253), and Fair Hiring in Banking Act (S. 3441).
“April 2020 has been widely recognized as Second Chance Month. It provides us all with an opportunity to consider how we can help justice-involved community members acquire a true second chance to achieve their full potential in life,” said Shana-Tara O’Toole, President of Due Process Institute. “Congress has an opportunity this April to adopt several meaningful reforms that will have a positive impact in the lives of millions of Americans with a criminal record. Now, more than ever, we urge Congress to pass these four bipartisan supported reforms quickly to help those in need move on from the shadow of their past."
To learn more about these bills, see our recent blog post.
March 27, 2020--Due Process Institute Policy Counsel Jeremiah Mosteller was quoted in Law360 regarding the $2.2 trillion coronavirus relief package passed by the U.S. Senate: "The bill itself states that defendants' rights under the Sixth Amendment will not be diminished. Jeremiah Mosteller, policy counsel at the Due Process Institute, said that piece was important amid reports that the Justice Department had sought a suspension of some rights during the crisis. 'It's great to see that Congress is reaffirming that our constitutional rights still stand,' he said."
Also contained in this package is a provision that would grant the Bureau of Prisons the power to immediately increase the use of an existing program that releases incarcerated individuals to home confinement under emergency conditions, but unfortunately it does not require an increased use. Another provision would require all federal prisons to provide free video visitation and phone calls under emergency conditions to try to provide incarcerated persons with access to their families at a time when personal visitation is prohibited. Other provisions authorize federal district courts to use video and phone conferences for almost any court function other than a trial even though many courts have already been doing so in recent weeks.
Follow us on Twitter @idueprocess for the latest updates on this legislation and more news relating to how this crisis is impacting those in the criminal legal system.
March 24, 2020--In the face of the COVID-19 crisis and the unique public health risk presented in our nation's jails and prisons, Due Process Institute joined a bipartisan group calling on President Trump to utilize his clemency powers to commute the sentences of populations who are exceptionally vulnerable in this pandemic.
March 19, 2020--Due Process Institute has joined a bipartisan coalition of criminal justice reform organizations in supporting the REFORM Alliance's S.A.F.E.R. Plan--a set of recommendations for governments to follow in addressing the unique dangers the pandemic presents to those incarcerated:
March 16, 2020--“By allowing the significant federal surveillance programs authorized by Section 215 to expire in an effort to hastily advance the USA FREEDOM Reauthorization Act without appropriate consideration, Senate leadership shows that it is willing to gamble with both our national security and constitutional rights to appease federal agencies," said Shana-Tara O'Toole, President of Due Process Institute. "Congress has had months to craft vital bipartisan reforms that would ensure these programs continue with important safeguards. We ask Senators to oppose cloture and support the 45-day extension so Congress can intentionally and thoughtfully craft positive reforms that will protect the constitutional rights of all Americans and ensure that our surveillance community does not utilize our constitutional protections as a justification to violate our privacy rights.”
To learn more about these reforms, see our recent blog post.
March 10, 2020--Due Process Institute has long been concerned about the factors that discourage the rights of every American to be tried by a jury of their peers when accused of a crime. Chief among those is a system that pushes for guilty pleas because prosecutors can hold the threat of enforcing oppressive sentencing regimes if a defendant wants to exercise the right to a jury trial. This is known as the "trial penalty." DPI joined dozens of other advocates to call for a policy solution to this problem.
February 20, 2020--Due Process Institute's new Policy Counsel, Jeremiah Mosteller, joined a panel at the 15th Annual H.F. Guggenheim Symposium on Crime in America at the John Jay College of Criminal Justice. Panelists discussed innovative ideas to improve our prison system and ensure respect for human dignity.
February 10, 2020--Today, we are thrilled to announce the official launch of Clause 40 Foundation, which takes its name from these words that introduced the concept of due process into the Anglo-American legal tradition: "To no one will we sell, to no one deny or delay, right or justice." The Foundation’s aim is to honor, preserve, and promote the due process rights guaranteed in the U.S. Constitution by supporting public education, events, and research.
We are also pleased to announce that Jonathan Blanks will serve as Contributing Editor for Clause 40 Foundation.
January 7, 2020--“Attorney-client privilege is essential to an effective representation of criminal defendants,” said Shana-Tara O’Toole, President of Due Process Institute. “The Effective Assistance of Counsel in the Digital Era Act establishes the necessary constitutional protections to electronic messages between incarcerated clients and their attorneys. This bipartisan, commonsense reform brings Bureau of Prisons policy into the 21st century and applies the norm of confidentiality to one of the most prevalent forms of communication today.”
December 20, 2019--“Due Process Institute views the Fair Chance Act as a law that will hopefully continue the momentum of providing meaningful second chances to those who need them,” said Shana-Tara O’Toole, President of Due Process Institute. “And we continue to encourage Congress to consider additional much-needed important next steps—supported by Members on both sides of the aisle—to improve the criminal legal system.”
December 7, 2019--After passing the House with a unanimous voice vote, H.R. 4018, which fixes an oversight in an Elderly Home Detention Pilot Program, is now moving in the U.S. Senate. Due Process Institute continues its support for this reform, which will help to fully implement one of the many goals of the First Step Act.
November 27, 2019--The leading Florida newspaper the Sun Sentinel quotes the amicus brief of Due Process Institute to highlight the importance of the 4th Amendment.
October 26, 2019--Director of Rule of Law Initiatives Joe Luppino-Esposito was quoted in the Danville Register & Bee discussing the push towards discovery reform in Virginia and around the country.
“A lot of prosecutors aren’t going to know what’s material to a defendant’s case because they don’t know what a defendant’s case is going to be,” he said.
October 18, 2019--Along with 30+ other organizations, Due Process Institute urges Congress to correct a drafting error that would improperly limit the eligibility of federal inmates for the Elderly Home Detention Pilot Program.
October 17, 2019--Due Process Institute is part of a bipartisan advocacy effort to convince Congress to curtail FISA Section 702 abuse by the FBI and others.
October 16, 2019--Due Process Institute joins a bipartisan coalition of advocates who support the Inspector General Access Act (S. 685). This bill would shift investigations of professional responsibility to the Department of Justice's Inspector General, rather than the current DOJ apparatus that exists today, which is internal to the department. This independent oversight would be more effective in ensuring that the attorneys representing the federal government are held to high standards for professional conduct. The House companion bill has already passed in that chamber.
October 1, 2019--The Hill published an opinion article by Due Process Institute President Shana O'Toole encouraging both chambers of Congress and both parties to turn their focus to abolishing acquitted conduct sentencing.
"Justice is not a partisan issue and every American wants a fair and effective criminal justice system. That requires respect for due process, restoring the primacy of the citizen jury, and adhering to the core principles of our Constitution. We applaud [Senators] Grassley and Durbin for leading the effort to reach across the aisle in a difficult political environment to affirm that Americans should not serve prison time for crimes they did not commit."
September 27, 2019--"The DOJ is comprised of the people that put these people behind bars in the first place," said Joe Luppino-Esposito, the director of Rule of Law initiatives at Due Process Institute. "It's a little odd the clemency process happens within the same department."
Due Process Institute has supported many individuals in their petitions for clemency.
September 26, 2019--Statement of Due Process Institute President + Founder Shana-Tara O'Toole:
“Due Process Institute is proud to endorse the bipartisan Prohibiting Punishment of Acquitted Conduct Act of 2019 (S. 2566). The Act will abolish acquitted conduct sentencing in federal criminal cases and thus restore to the people, sitting together as a jury, the exclusive power to decide guilt or innocence.
In conjunction with the bill’s introduction, Due Process Institute has initiated a #JuriesDecide education, advocacy, and litigation campaign.
Everyone learns in grade school that juries decide who is guilty of crimes and who is not. In recent decades, misguided tough-on-crime policies have eroded this fundamental American principle of justice, resulting in vastly longer prison sentences that are based on accusations that juries in fact rejected. We are thrilled that Congress is taking a significant step today to begin to fix our failing criminal justice system.
It is important that we recognize the fundamental principle that juries decide guilt or innocence. Along with the First Step Act, which Due Process Institute also worked to pass, this bill takes another step toward ending our incarceration epidemic. This is why a large and diverse group of people and organizations from across the ideological spectrum has joined the Due Process Institute’s campaign to abolish acquitted conduct sentencing.
We applaud Senators Durbin and Grassley for once again serving as lead sponsors of a landmark bipartisan criminal justice reform bill, as well as co-sponsors Senators Leahy, Lee, Booker, and Tillis, for putting their political differences aside and working together for the good of the country.”
September 17, 2019--Due Process Institute President Shana O'Toole has prepared a Brief Guide to the recently decided and upcoming US Supreme Court criminal law cases who find this sort of stuff to be fun, informative, or compelling (like us!).
September 10, 2019--"Research indicates that approximately 97% of people incarcerated within the BOP will one day return home to the community. It is important that time spent while incarcerated is rehabilitative and prepares people for successful reentry. Congress made a firm commitment to criminal justice reform when it passed the First Step Act — it is time for Congress to reaffirm this commitment by fulling funding its implementation."
August 14, 2019--Due Process Institute has joined with dozens of other civil liberties organizations to urge the House Judiciary Committee to adopt important reforms to the re-authorization of Section 215. Chief among those reforms is the elimination of the Call Detail Records program. This program, run by the National Security Agency, was found to have illegally collected data on millions of Americans over a three year period.
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.
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.
July 8, 2019--In our opinion, the existing statutory framework of Section 314 and its implementing regulations already give significant cause for concern and fail to adequately protect Americans’ Fourth Amendment and privacy rights. Previous attempts to expand this program through statutory or regulatory means are even more concerning. It is our hope that FinCEN will reevaluate the necessity and efficacy of the Section 314 program and ultimately abandon the practice of warrantless bulk searches and seizures of financial records, or at the very least, adopt clear legal standards and procedural measures consistent with our foundational Constitutional rights. It is also our hope that FinCEN will discontinue its attempts to expand this program by lobbying Congress to amend the authorizing statute or via pursuing additional rule-making.
June 26, 2019--Due Process Institute President Shana O'Toole was quoted in Law360 regarding the recently decided criminal law Supreme Court case Haymond v. United States:
"Shana-Tara O'Toole, founder and president of the nonprofit Due Process Institute, which filed a brief supporting Haymond, said the ruling protected the rights of criminal defendants and may point the way to more robust jurisprudence on the limits of sentencing.
One example O'Toole raised is the 'long-standing question' of whether judges may factor in conduct that has led to an acquittal in sentencing defendants for a charge where they have been convicted. 'We are pleased to see Justice Gorsuch and the majority of the court recognize the importance of the right to jury trial in our constitutional system and hope that it is a signal of where a majority of the court might be on similar questions,' O'Toole said."
June 18, 2019--"Both liberals and conservatives harbored concerns about the First Step Act’s impact on non-citizens, but from different perspectives, said Joseph Luppino-Esposito, director of the Rule of Law Initiatives for the bipartisan Due Process Institute, who had lobbied Republicans in support of the act. Liberals were worried the law would be too harsh, while conservatives worried non-citizens with drug convictions would be set free. But changing policies toward non-citizens proved too loaded an issue to tackle in this bill, he said. “'These people did go through the (criminal justice) process, and this is sort of the accepted process,' he said. 'Whether or not you agree with the status quo is another issue.'"
June 13, 2019--Due Process Institute is urging Representatives to support the Amash-Lofgren amendment (Division C, amendment #24) to H.R. 2740, the Labor, Health and Human Services, Education, Defense, State, Foreign Operations, and Energy and Water Development Appropriations Act of 2020. Why?
The Amash-Lofgren amendment seeks to thoughtfully limit the warrantless surveillance of Americans conducted pursuant to Section 702 of the Foreign Intelligence Surveillance Act. Specifically, the Amash-Lofgren amendment prohibits:
1. The intentional targeting of people outside the United States when a significant purpose of that targeting is to acquire communications of a particular person in the United States (often referred to as “reverse targeting”);
2. The acquisition of communications to which no participant is a target (often referred to as “about collection”). The government halted this collection in 2017, but importantly asserts it has the authority to restart this collection; and
3. The acquisition of communications known to be entirely domestic. The government unlawfully collects tens of thousands of wholly domestic communications under Section 702.
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.
May 17, 2019--"Joe Luppino-Esposito, Director of Rule of Law Initiatives at Due Process Institute, said the size of the wave is important to keep in context. 'There are 3,000 to 4,000 inmates released every month as their sentences end,' he said.
"Still, Luppino-Esposito said that 'it will be important for advocates around the country to step up and help these people return to society and lead productive, crime-free lives.' "Matthew Charles, a guest of Trump’s at the State of the Union, had trouble finding housing after his release under the First Step Act, Luppino-Esposito noted."
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.
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.
April 9, 2019--Due Process Institute is endorsing the Restoring Education And Learning (REAL) Act [S. 1074; H.R. 2168] that has been proposed in both the Senate and the House. The original cosponsors are Sens. Brian Schatz (D-HI), Mike Lee (R-UT), and Dick Durbin (D-IL) and Reps. Danny Davis (D-IL), Jim Bank (R-IN), Barbara Lee (D-CA), and French Hill (R-AR).
“Our justice system fails us if the people returning back into our communities after incarceration do not succeed and the REAL Act takes an important step towards addressing an existing failure,” said Shana O’Toole, President of Due Process Institute. “Education is a critical piece of preparing incarcerated individuals for reentry. After our work on the First Step Act, we know how important Pell eligibility is for establishing much-needed educational programs and learning behind the wall.
“Incarcerated individuals deserve a meaningful opportunity to educate themselves in order to prepare to rejoin us as productive members of society—and we are grateful to see that providing this kind of support is a bipartisan cause.”
March 27, 2019--Due Process Institute is endorsing the FAIR Act, H.R. 1895, co-sponsored by Republican Reps. Tim Walberg, Tom McClintock, and Thomas Massie, and Democrat Reps. Jamie Raskin, Tony Cardenas, and Bobby Rush. The FAIR Act protects Americans against civil asset forfeiture practices that deprive citizens of their property without proper legal processes.
“The FAIR Act restores basic due process rights that have been undermined for decades because of abusive civil asset forfeiture practices. These meaningful reforms have been supported by policymakers and advocates on both sides of the aisle, and we are proud to count ourselves in that group,” said Shana O’Toole, President of Due Process Institute.
“These are sensible, impactful reforms, and we look forward to advancing the FAIR Act to the President’s desk.”
February 5, 2019--Due Process Institute joined several civil liberties and tech organizations in asking Congress to refrain from funding certain invasive surveillance technology as a security measure to protect the nation's border. These proposals have included biometrics, mass surveillance, license plate readers, and DNA data, among others.
January 22, 2019--Indiana legislators are now considering changes to the state's public defense system in order to address serious shortcomings in the right to counsel as guaranteed in the Sixth Amendment. This has been especially true in misdemeanor cases. Due Process Institute urges Indiana legislators to take up this important issue.
December 21, 2018--Following overwhelming votes of support in the Senate (87-12) and the House (358-36), President Trump signed The First Step Act into law on December 21, 2018. Due Process Institute has been a leader in the lobbying and education regarding this historic piece of criminal justice reform legislation. "This is a remarkable culmination of years of effort by reformers to get Congress to recognize the need for change," said Director of Rule of Law Initiatives Joe Luppino-Esposito. "The First Step Act will go a long way towards improving public safety and making the federal prison system a place for actual 'corrections', rehabilitation, and redemption. This is the type of reform that stresses justice and effectiveness above all else. I look forward to seeing more bipartisan support for reform in the near future as we think about what our next steps ought to be."
December 18, 2018--Former Chairman of the Senate Judiciary Committee Chuck Grassley addressed the Senate in December to recognize the imminent passage of the First Step Act, the most significant criminal justice reform legislation passed in a decade. Due Process Institute was among the core organizations responsible for the bill's ultimate success. Senator Grassley explained:
"A diverse group and a broad coalition of other groups, from the ACLU to the American Conservative Union, supported this bill. I can't list all the groups that offered their key support, but they include FreedomWorks, Justice Action Network, Americans for Tax Reform, Heritage Action, the Due Process Institute, Faith & Freedom Coalition, R Street, Right on Crime, Texas Public Policy Foundation, Prison Fellowship, and members of the Interfaith Criminal Justice Coalition."
Due Process Institute is proud to be recognized for our efforts, and prouder still that we were part of such an impactful, bipartisan piece of legislation.
December 11, 2018--Due Process Institute is heartened by the news that the US Senate will take up the First Step Act and consider it on the floor as early as this week. The First Step Act is supported by Due Process Institute and dozens of organizations from both sides of aisle because it recalibrates the federal criminal justice system to focus on rehabilitation and redemption, rather than punishment for its own sake. The bill would also change some particularly long sentences.
November 21, 2018--Due Process Institute has helped Senate leaders of both parties understand why they should reject the opposition of the National Association of United States Attorneys to the First Step Act.
November 14, 2018--Director of Rule of Law Initiatives Joe Luppino-Esposito was quoted by multiple reporters on the continued movement of the First Step Act, as the new version of the bill was introduced in the US Senate. "The genius of this bill is that it re-focuses on the primary purpose of prison: rehabilitating and correcting criminal behavior," said Luppino-Esposito.
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.
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.
September 18, 2018--At the summer meeting of the American Legislative Exchange Council, Due Process Institute sponsored a resolution encouraging states to establish efficient and fair criminal law discovery practices. The resolution passed and was recently approved by ALEC's board, making it official model policy.
July 16, 2018--Thanks in part to our efforts, the House of Representatives including the E-mail Privacy Act when it passed the 2019 National Defense Authorization Act. This is an important step towards updating our laws to reflect certain technological advances with respect to the Fourth Amendment.
June 19, 2018--Commenting on banks sharing customer information, Due Process Institute President Shana O'Toole explained: “My concern with this program is what customer information is being shared... Efficiency is great, but constitutional protections are mandated.”
June 1, 2018--Due Process Institute urges the Office of the Director of National Intelligence to report important data regarding the government's collection of details of phone calls, as required under the USA FREEDOM Act. Obtaining this data is particularly important given that the number of call detail records collected under surged to over 540 million in 2017--more than triple what was reported for 2016.
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.
May 24, 2018--The U.S. Senate considered taking up amendments to current law regarding the quantity of drugs required to trigger mandatory minimum sentences and also considered increasing the length of those sentences. Due Process Institute joined an effort that successfully convinced the Senate to refrain from pursuing this unhelpful legislation.
May 22, 2018--Our organization's top priority H.R. 5682, the FIRST STEP Act, passed the House 360-59--a resounding vote for reform. The bill now heads to the Senate for consideration.
April 17, 2018--Due Process Institute joined several other groups, notably the National Association of Criminal Defense Lawyers, to advocate for changes to Virginia's discovery rules, which will lead to a more just legal system.
April 6, 2018--Due Process Institute's President Shana O'Toole was featured with co-author Jason Pye of FreedomWorks in the Morning Consult for their piece, "Second Chance Month Brings Opportunity for Prison Reform."
April 1, 2018--Due Process Institute has joined Prison Fellowship as a partner celebrating Second Chance Month, raising awareness for the millions of Americans with a criminal record who deserve a second chance.