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
July 15, 2024--Due Process Institute and Right on Crime submitted recommendations to the U.S. Sentencing Commission for the 2025 amendment cycle. We applaud the Commission for the transparent and communicative process which is essential for good governance and trust. The letter to the U.S. Sentencing Commission included the following recommendations:
The recommendations also encouraged the Commission to remove language on “intended loss,” clarify the meaning of “sophisticated means” and “position of trust,” and consider punishment of criminal defendants who testify by barring prosecutors from tacking on an obstruction of justice enhancement.
“This amendments process encourages a comprehensive dialogue on meaningful and data-driven improvements to the criminal justice system,” said Brett Tolman, Right On Crime Executive Director and former U.S. Attorney. “Right On Crime commends the Commission for its continued efforts to remove ambiguities, consolidate redundant laws, and help prevent prosecutorial abuse.”
“The recommendations we are putting forth aim to address multiple longstanding inconsistencies with drug penalties, the unconstitutional practice of acquitted and relevant conduct sentencing, and the overly broad application of numerous sentencing enhancements,” said Shana-Tara O’Toole, Due Process Institute Founder and President. “We look forward to continuing our work with the Commission to address these vital issues.”
July 10, 2024-- Statement by Shana-Tara O’Toole, Founder and President of Due Process Institute, on President Biden signing the Federal Prison Oversight Act into law:
“We are delighted that President Biden has signed the Federal Prison Oversight Act into law. Passed with overwhelming bipartisan support in the House and passed by unanimous consent in the Senate, this landmark legislation will improve safety for incarcerated people and prison staff by requiring inspections of all Bureau of Prison (BOP) facilities and reporting the findings to Congress. These reforms ensure proper oversight of the BOP and create accountability, transparency, and safety within our federal prison system.
The passage of the Federal Prison Oversight Act is a culmination of tireless work from a wide array of reform organizations, including Due Process Institute. This is yet another reminder that commonsense criminal legal reform has support from both sides of the aisle.
Finally, we would like to thank President Biden, Rep. Kelly Armstrong (R-ND-At Large), Rep. Lucy McBath (D-GA-7), Sen. Jon Ossoff (D-GA), and Sen. Mike Braun (R-IN) for their leadership in supporting this bill.”
May 21, 2024--Statement by Shana-Tara O’Toole, Founder and President of Due Process Institute, on the House of Representatives passing the Federal Prison Oversight Act:
“We applaud the House of Representatives for passing the Federal Prison Oversight Act (H.R. 3019) by a 392-2 vote. Given the history of inhumane prison conditions inside the Bureau of Prisons (BOP) and the recent Inspector General report on deaths in custody, this legislation was desperately needed and long overdue. The bill will improve safety for incarcerated people and prison staff by requiring inspections of all BOP facilities and reporting the findings to Congress. It will also establish an independent Department of Justice ombudsman to receive complaints from incarcerated persons on health and safety issues.
We thank Rep. Kelly Armstrong (R-ND-At Large) and Lucy McBath (D-GA-7), along with a long list of bipartisan cosponsors, for their leadership in supporting this bill. The 196 Republican and 196 Democrat members of Congress who voted for this bill demonstrate commonsense criminal legal reform still has wide bipartisan support. We now urge the Senate to take up and pass this bill with desperately needed oversight of the Bureau of Prisons. It is time for accountability, transparency, and safety in our federal prison system.”
May 7, 2024--Due Process Institute and 130 other organizations sent a letter to the United States Senate Committee on Finance urging members to refrain from advancing consideration of H.R. 6408, and its companion bill S. 4136, introduced by Senators John Cornyn and Angus King. This proposed legislation would unconstitutionally harm all Americans' free speech and due process rights by creating new executive authorities that could be abused by any presidential administration seeking to terminate the tax-exempt status of nonprofit organizations arbitrarily.
If enacted, this act would grant the Secretary of the Treasury broad discretionary powers to terminate the tax-exempt status of nonprofit organizations based solely on a subjective declaration that they are "terrorist supporting organizations." This proposal lacks sufficient accountability measures and opens the door to potential abuse, especially given the current climate of increased politicization and polarization within the U.S. government.
May 2, 2024--Statement by Shana-Tara O’Toole, Founder and President of Due Process Institute, on the Drug Enforcement Administration’s recommendation to reclassify marijuana as a Schedule 3 drug:
“Yesterday, the Drug Enforcement Administration recommended a reclassification of marijuana from a Schedule 1 to a Schedule 3 drug. Effectively, this would recognize marijuana as a far less dangerous substance and no longer categorize it alongside drugs like heroin. We acknowledge and celebrate the significance of this recommendation as part of the de-escalation of the ‘war on drugs.’ However, this reform still falls short in addressing some of the most harmful consequences of the United States’ misguided drug policy, has limited impact on federal marijuana arrests, and does not provide relief for people currently serving unnecessarily long sentences for marijuana possession.
We recommend the Biden administration continue this momentum for drug reform by supporting legislation that improves second chance opportunities for people with nonviolent marijuana offenses like the Clean Slate Act, pushing for the full descheduling of marijuana and its removal from the Controlled Substances Act, and continuing the use of the President’s pardon power to rectify unjust marijuana sentences.”
April 22, 2024--Statement by Shana-Tara O’Toole, Founder and President of Due Process Institute, on the United States Senate’s passage of Reforming Intelligence and Securing America Act without amendment:
“We are dismayed by the Senate’s passage, without amendment, of the Reforming Intelligence and Securing America Act (RISAA) over the weekend. This legislation not only reauthorizes FISA Section 702 and enables intelligence agencies to continue mass warrantless surveillance, it expands the power of the surveillance state by giving the government authority to compel assistance from the vast majority of US businesses for domestic spying. This bill’s passage was, in large part, made possible by fear tactics and outright falsities about the April 19 deadline. The biggest losers of this vote are unfortunately the American people who will continue to be subjected to warrantless searches of their personal communications.
While we cannot hide our disappointment over the passage of RISAA and the ramifications for privacy are severe, we want to thank those Senators who championed the Constitution and the Fourth Amendment, including: Chairman Durbin and Senators Lee, Paul, and Wyden. Furthermore, the momentum built by our coalition of civil liberties organizations cannot be ignored as illustrated by this week’s passage of the Fourth Amendment Is Not For Sale Act in the House. The next FISA reauthorization is two years away, during which we will continue to fight for your privacy rights.”
April 17, 2024--Statement by Shana-Tara O’Toole, Founder and President of Due Process Institute, on the United States Sentencing Commission promulgating an amendment to prohibit acquitted conduct sentencing:
“We commend the United States Sentencing Commission (USSC) for unanimously promulgating an amendment today that prohibits the use of acquitted conduct when applying the Federal Sentencing Guidelines. This is undoubtedly a step in the right direction as acquitted conduct sentencing is a fundamentally unfair and unconstitutional practice that punishes defendants with lengthier sentences based on crimes they were never convicted of. We now hope Congress will adopt the amendment. If Congress chooses not to act, we look forward to the amendment’s effective date in November 2024.
However, the USSC’s amendment still does not prevent the courts from increasing sentences based on acquitted conduct under 18 USC § 3661. We urge Congress to pass the Prohibiting Punishment of Acquitted Conduct Act in order to rectify the dissonance between the USSC’s amendment and the broad federal statute that still allows for acquitted conduct sentencing.”
April 9, 2024--Due Process Institute and a bipartisan coalition of criminal justice reform organizations urged House Oversight Committee Chair James Comer to support and advance the Federal Prison Oversight Act (H.R. 3019). We strongly support this effort to improve the Bureau of Prisons (BOP) because it is aligned with core values of ensuring government accountability and improving public safety. This common sense legislation accomplishes these goals by increasing accountability in our prison system, preventing harm to both those living and working in these facilities, and providing transparency for those individuals serving to keep prisons safe as well as the public at large.
America’s prison system is in crisis. Support of independent prison oversight stems from irrefutable evidence of failure that puts corrections officers and those they oversee at risk of serious injury, exemplified by facilities that are overcrowded, understaffed, underfunded, unsafe, and in a state of dangerous disrepair. The absence of oversight has given rise to a prison system that is rampant with abuse, neglect, and mismanagement, making rehabilitation difficult and endangering everyone who lives and works in a federal prison. The Federal Bureau of Prisons (BOP) employs over 34,000 people and is responsible for the care of over 150,000 people with a budget north of $8 billion. Still, the BOP has historically operated with little transparency and accountability. The BOP should be safer and more productive for the people who reside and work in their facilities, and more accountable and transparent to taxpayers. It is known that when correctional officers are given the proper resources and prisoners are provide to pathways to rehabilitation there is a direct increase in public safety through reduced recidivism rates.
In a national poll, 82% of Americans said they believe there should be a system of independent oversight of our federal prisons. Support for H.R.3019 benefits not only individuals who are incarcerated, correctional staff, and communities, but also members of Congress. Equipped with the insights of an oversight body that conducts routine inspections, investigates systemic issues, collects and analyzes data, and reports its findings, members of Congress can make more informed policy and appropriations decisions. These decisions can save lives and ensure
correctional staff can focus on fostering a safe environment behind bars which leads to success when incarcerated individuals return to society.
April 1, 2024--Due Process Institute and a coalition of civil liberties organizations urged Speaker Johnson and Leader Jeffries to oppose the Reforming Intelligence and Securing America Act (RISAA), H.R.7320, and to block its consideration on the House Floor unless members have the opportunity to vote on amendments that were critical components of this legislation’s negotiated introduction. House Members across the political spectrum are eager to vote for legislation that reforms Section 702 of the Foreign Intelligence Surveillance Act (FISA), and moving forward with only a vote on RISAA would deprive them of that opportunity. Blocking off votes on critical issues that have been central to the past year’s debate over FISA would harm Americans’ privacy, as well as needlessly threaten Section 702’s future viability.
By hewing closely to HPSCI’s legislation, RISAA is carefully crafted to preserve the status quo, not to enact the serious privacy protections for which most Americans and members of Congress are calling. We therefore urge you to oppose Floor consideration of any legislation, including RISAA, that would reauthorize Section 702 without providing votes on key amendments, including those to close the backdoor search and data broker loopholes.
March 29, 2024--Due Process Institute and Justice Action Network submitted comments on a proposed Bureau of Prisons (BOP) rule that would prohibit incarcerated persons from "accessing, using, or maintaining social media, or directing others to establish or maintain social media accounts on [their] behalf."
The proposed language would unjustly punish people incarcerated at Bureau of Prisons (BOP)
facilities using the harshest possible means for communication on social media, without regard to whether the communication has a legitimate legal or personal purpose. We believe that a full and total ban would be excessive in its own right, but a ban with significant sanctions for violations is an extreme policy. This rule is especially concerning when proposed amid increasing documented instances of abuse, including rape and unconstitutionally inhumane conditions such as substandard medical care and more at BOP facilities. Further, victims of this abuse have faced retaliation or cover-ups by prison personnel or other incarcerated people, and can thus feel a chilling effect when reporting issues through the normal channels.
Many individuals who are incarcerated have family and friends who are concerned about their
well-being while in prison. Not only do we know that maintaining these contacts is vital for
incarcerated peoples’ mental health, considering the likelihood of abuse and poor conditions,
these concerns are justifiable. Social media provides a way for incarcerated individuals, families,
and friends to raise awareness of violence, sexual abuse, unsafe and unsanitary conditions, and
more inside the walls of federal prison facilities. Social media also provides a means to advocate
for an incarcerated individual beyond the conditions inside of prisons, which may include
ongoing court proceedings, appeals, and clemency or pardon petitions.
BOP Director Colette Peters has long stated that she believes in increasing transparency at the BOP, and has said she wants to humanize and normalize life in prison. Including this language in the proposed rule runs contrary to these views. We oppose the inclusion of this language on social media use and urge the BOP to remove it from the proposed rule.
February 28, 2024--Due Process Institute and a coalition of civil liberties and privacy organizations joined to urge congressional leaders to oppose the inclusion of Section 702 reauthorization in a must-pass funding bill and to categorically reject any such approach. Section 702 has been routinely abused in ways that violate Americans’ fundamental civil liberties and civil rights. FBI agents have used this surveillance authority, which is supposed to be limited to non-U.S. citizens located outside the United States, to gain warrantless access to the communications of tens of thousands of protesters, racial justice activists, 19,000 donors to a congressional campaign, journalists, and members of the U.S. Congress.
In its current form, this authority is dangerous to our liberties and our democracy, and it should not be renewed for any length of time without robust debate, an opportunity for amendment, and — ultimately — far-reaching reforms. Bypassing this process by slipping an extension of the law into a must-pass funding bill would demonstrate a blatant disregard for the civil liberties and civil rights of the American people.
It is clear that the only reason for including Section 702 in the continuing resolution would be to deny members a vote on critically-needed reforms. We urge you not to betray the trust of the American people by following such a course of action.
February 14, 2024--Due Process Institute and a broad bipartisan coalition of privacy, civil rights, civil liberties, and government transparency organizations joined in a statement on the House's plan to move at least part of the public debate over mass and often secret surveillance behind closed doors in a secret session:
"It is appalling that the U.S. House of Representatives has not learned the lessons of the last secret session on warrantless surveillance in 2008, which perpetuated a mass violation of constitutional rights. This week, the House is poised to repeat those mistakes by going into another extraordinarily rare and wholly unnecessary secret session to shut out the public and potentially move toward another expansion of warrantless surveillance powers.
The reason why there is bipartisan support among civil society and members of Congress for warrantless surveillance reform is the well-documented abuses of FISA authorities by the federal government for well over a decade. These powers have been used to conduct tens of thousands of inappropriate searches, some related to the exercise of constitutionally protected activities. Members of Congress have been surveilled, average Americans have been surveilled, and unless there is reform now, the abuses will continue.
According to a recent poll, 78% of Americans think Congress should “strengthen privacy protections for people in the U.S. against warrantless government surveillance.” Congress has a duty to continue public debate and not circumvent the American people. To conduct proceedings in secret on a set of authorities that directly impact Americans is antithetical to a free society."
November 13, 2023--Due Process Institute and other organizations submitted comments regarding the Small Business Administration’s (SBA) proposed rule, Criminal Justice Reviews for the SBA Business Loan Programs and Surety Bond Guaranty Program. The proposed rule eliminates existing criminal background requirements for SBA-backed loan and surety programs for small business owners. The only prohibition for access to SBA-backed loan and surety programs would be the incarceration status of the applicant, which would be subject to verification. An applicant who is incarcerated would not be eligible. Applicants would be reviewed for any connection to fraud related to pandemic programs or other federal programs. It does not prevent lenders of SBA-backed loans from conducting their own criminal history background checks of an applicant to determine the risk as long as lenders’ procedures comply with existing law.
The Criminal Justice Reviews for the SBA Business Loan Programs and Surety Bond Guaranty Program Rule proposed by SBA is long overdue and will provide much-needed capital to small business owners who have been impacted by the criminal justice system. Research published by the RAND Corporation found that roughly 4 percent of small business owners have a criminal record and 1.5 percent have a felony record. The initial restrictions published by SBA in April 2020 prohibited more than 140,000 small business owners with a criminal record from participating in the Paycheck Protection Program, impacting more than 212,000 businesses and more than 343,000 employees. Roughly 30 percent of affected small businesses were owned by a person of color. Revisions to the restrictions reduced the number of ineligible business owners with a criminal record to fewer than 18,000.
Due Process Institute applauds the SBA for proposing this rule to provide access to these loan and surety programs to small business owners who have a criminal record. Individuals who have completed the terms of their sentence and paid their debt to society should have the same access to federal programs like those provided by SBA that any other small business owner could receive. That is basic fairness that is missing in our country’s approach to criminal justice. We strongly support the proposed rule and look forward to future efforts from SBA that provide support for small business owners who have been impacted by the criminal justice system.
November 13, 2023--Due Process Institute and the undersigned organization wrote to Senator Chuck Schumer (D-NY) to express strong opposition to even a short-term reauthorization of Section 702 and urged to keep any such provision out of the continuing resolution and any other must-pass legislation.
Section 702 has been routinely abused in ways that violate Americans’ fundamental civil liberties and civil rights. FBI agents have used this surveillance authority, which is supposed to be limited to non-U.S. citizens located outside the United States, to gain warrantless access to the communications of tens of thousands of protesters, racial justice activists, 19,000 donors to a congressional campaign, journalists, and members of the U.S. Congress. Even after the FBI’s recent changes to its internal procedures, the abuses have continued, with agents conducting warrantless searches for the communications of a U.S. senator, a state senator, and a state court judge who contacted the FBI to report civil rights violations by a local police chief. NSA agents, for their part, have abused the authority to search for the communications of online dating prospects and potential tenants.
In its current form, this authority is dangerous to our liberties and our democracy, and it should not be renewed for any length of time without robust debate, an opportunity for amendment, and — ultimately — far-reaching reforms. Allowing a short-term reauthorization of Section 702 to be slipped into a must-pass bill would demonstrate a blatant disregard for the civil liberties and civil rights of the American people.
November 7, 2023--Due Process Institute supported today's introduction of the sweeping, bipartisan Government Surveillance Reform Act (GSRA), which renews Section 702 of FISA for four years and reforms the law to better protect national security and Americans’ Constitutional rights. Notably, it reforms 702 to protect Americans from warrantless backdoor searches, ensures that foreigners aren’t targeted as a pretext for spying on the Americans with whom they are communicating, and prohibits the collection of domestic communications.
While section 702 features a sunset, it is not the only FISA authority in need of reforms. The Act ends warrantless collection of business records, ensures that the government provides accurate
information to the Foreign Intelligence Surveillance Court, and requires meaningful accountability for violations of the law. Americans’ privacy is also threatened by unchecked surveillance conducted by intelligence agencies outside of FISA. This surveillance, undertaken pursuant to Executive Order 12333, presents many of the same problems as FISA surveillance only without statutory checks and balances or court oversight. The Act extends many of the same reforms needed for 702 to 12333 activities, including by limiting warrantless searches of Americans’ communications and prohibiting the targeting of foreigners as a pretext for surveilling Americans. It also limits the acquisition of Americans’ information as part of large datasets.
Federal law governing law enforcement surveillance has not kept pace with developments in technology, in large part because Congress hasn’t meaningfully updated relevant law in decades. The Act restores Constitutional protections that have been undermined by modern collection methods, by requiring warrants for surveillance of Americans’ location data, web browsing and search records, and by prohibiting the government from purchasing Americans’ data from data brokers.
The Government Surveillance Reform Act represents the most balanced, comprehensive surveillance reform bill in 45 years. This bill will strengthen the legal foundations of a vital national security authority by ensuring U.S. government surveillance of Americans takes place under a consistent, Congressionally-enacted legal framework, supervised by independent judges.
November 3, 2023--Due Process Institute and Justice Action Network urged senators to oppose S.J.Res. 47, which would nullify a specific provision of the CARES Act and return nearly 3,400 nonviolent individuals who have a minimal or low risk of recidivism and who have started the process of rebuilding their lives back to prison.
In March 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act.1 Sec. 12003 of the CARES Act provided the Bureau of Prisons with authority “to place” individuals into home confinement for the length of the “covered emergency period.” The authority to place individuals into home confinement ended 30 days after the termination of the national emergency related to COVID-19.
The specific provision of the CARES Act, 12003(b)(2), states, "During the covered emergency period, if the Attorney General finds that emergency conditions will materially affect the functioning of the Bureau, the Director of the Bureau may lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement under the first sentence of section 3624(c)(2) of title 18, United States Code, as the Director determines appropriate."
In December 2021, the Office of Legal Counsel (OLC) issued an opinion stating that “[n]othing in the CARES Act or any other statute convinces us that the expiration of the power to lengthen home confinement placements necessarily operates to shorten home confinement placements that were already lawfully lengthened.” In April 2023, the Department of Justice (DOJ) published the final rule relating to home confinement under the CARES Act. DOJ received only one comment against the proposed rule and 66 comments in support.
Furthermore, nullifying home confinement opportunities provided by the CARES Act is bad policy. The cost of incarcerating an individual is $120.59 per day while home confinement costs only $55.26 per day. Annualized, the total cost of incarceration for all of these individuals is $148,507,791 per year compared to $68,053,243 for home confinement. These individuals have also taken significant rehabilitative steps in home confinement, including securing employment, becoming members of church and faith groups, enrolling in college, volunteering in their communities, caring for elderly parents and children, and mending relationships with families. Finally, as of September 1, only 27 people out of 13,000 placed into home confinement have committed new crimes, a new crime rate of 0.19 percent.
September 29, 2023--Due Process Institute and other civil liberties organizations urged members of Congress to oppose the Stopping Harmful Image Exploitation and Limiting Distribution (SHIELD) Act of 2023 (S. 412), which would create a new federal crime carrying a one-to-five-year prison sentence for sharing intimate photos of a person without that person’s consent. This bill is well intentioned, but it will sweep in and criminalize innocent conduct and worsen the trial penalty that many criminal defendants—including many people who are actually innocent—face in our justice system.
For example, if a person receives, unsolicited, an intimate image from an acquaintance and in turn forwards the image to a friend or family member—not for the purpose of “seeking support or help”—but instead to express surprise or displeasure, then that person will have committed a crime under the current version of the SHIELD Act. And that should not be. The communication in this example is plainly innocent conduct. Equally plainly, it is protected speech. Yet, under the SHIELD Act, the victim of an unsolicited sexual communication could easily find themselves prosecuted.
This version of the SHIELD Act still places too much discretion in the hands of law enforcement and prosecutors for fair application, and potentially criminalizes innocent conduct. The bill’s goals of protecting privacy could be better advanced by a more narrowly tailored proposal that does not unnecessarily sweep up protected speech on both public and private matters.
September 28, 2023--Due Process Institute and civil liberties groups advocates issued the following statement responding to the Privacy and Civil Liberties Oversight Board (PCLOB) long-awaited report on Section 702 of the Foreign Intelligence Surveillance Act, which outlined abuses over the past few years, revealing that, “[i]n the reporting period covering November 2020 to December 2021, non-compliant queries related to civil unrest numbered in the tens of thousands”:
“The message of the Board’s report is clear: individualized judicial review of U.S. person queries is critical to protect Americans’ rights and prevent further abuses. The report flatly rejects the government’s self-serving claim that individualized judicial review is unworkable. It also rejects the baseless notion that broad categories of these searches, such as searches for foreign intelligence or so-called ‘defensive’ searches for potential victims’ information, should be exempted from this requirement. And it rejects the fallacy that the FBI’s tweaks to its internal procedures are sufficient to address the acute risks posed by backdoor searches.
Three members of the Board stated that they would support a probable cause standard for U.S. person queries in any criminal investigation, including those related to foreign intelligence. In her statement, the Chair of the Board compellingly explained why the full ‘probable cause’ standard is required by the Fourth Amendment and necessary to safeguard Americans’ privacy. We believe the same logic supports a requirement for a probable cause order for any U.S. person query.
We note that the Board limited its inquiry and its recommendations to Section 702. It did not address many of the other issues that are very much part of the current debate, including the government’s use of data brokers to circumvent legal protections for Americans’ privacy and the use of overseas surveillance to collect Americans’ information without statutory authority or judicial oversight. Congress, however, must address these issues. If it limits itself to reforms of Section 702, the government will simply continue its warrantless surveillance of Americans using these other methods.”
September 26, 2023--Due Process Institute and numerous health policy, drug policy, criminal justice reform, civil rights, and advocacy organizations urge members of Congress to cosponsor and support swift passage of the Temporary Emergency Scheduling and Testing of Fentanyl Analogues Act of 2023 (TEST Act). This bill would allow the Drug Enforcement Administration (DEA) to place new fentanyl-related substances (FRS) in Schedule I for up to four years, during which time the Department of Justice (DOJ) and Health and Human Services (HHS) would have to conduct a scientific and medical evaluation of each substance and publicly report the findings.
Congress has preemptively placed all FRS on Schedule I of the Controlled Substances Act (CSA) as a class – even those that do not exist. Congress has considered circumventing the scientific research requirements under current law by passing bills such as the HALT Fentanyl Act (H.R. 467), which would automatically designate any FRS as dangerous without studying a substance at all. Temporary scheduling authority is intended to allow the DOJ the time to conduct the scientific and medical evaluations it is required to by law. By allowing DOJ to designate the entire class of FRS as Schedule I without conducting scientific and medical research, Congress may inadvertently leave undiscovered therapeutic medications similar to naloxone and other life-saving medications at a time when the U.S. is facing record numbers of overdose deaths.
Approximately 285 people die of a preventable overdose each day in the United States. Rather than restricting research, the federal government must support the study and development of new tools and the provision of health services to save lives. This includes studying FRS for potential treatment options and ensuring people can receive the best treatments imaginable. Ensuring that federal agencies and the research community can study emerging substances for potential therapeutic value, including FRS, is a critically important component of these efforts. It can also help ensure that people are not unjustly incarcerated for crimes that were never committed.
September 14, 2023--Due Process Institute supported today's reintroduction of bipartisan and bicameral Prohibiting Punishment of Acquitted Conduct Act of 2023 in the Senate (S. 2788) and House (H.R. 5430) that would end the federal practice of sentencing on the basis of conduct for which a jury has acquitted. We applaud Rep. Steve Cohen (D-TN-9), Rep. Kelly Armstrong (R-ND-At-Large), Sen. Dick Durbin (D-IL), and Sen. Chuck Grassley (R-IA) for their leadership on this important issue and we thank our many coalition partners for their support of this critical effort.
In short, this bipartisan bill would end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury. The Fifth and Sixth Amendment guarantee due process and the right to trial by jury but current federal law allows judges to override a jury’s not guilty verdict by sentencing a defendant for the very conduct a jury acquitted them of. Judges are allowed to impose these sentence enhancements because it only requires the preponderance of evidence, a less demanding standard than a jury’s standard to convict only beyond a reasonable doubt.
This practice has been roundly criticized by practitioners, judges, and scholars. Furthermore, allowing acquitted conduct to be considered in sentencing exacerbates the trial penalty, described as the significant difference in sentencing when a defendant accepts a plea bargain opposed to if they are convicted at trial. The trial penalty also contributes to coercive plea bargaining and the frequency of innocent people pleading guilty. Passing this legislation would help alleviate these problems, eliminate unjust practices, and strengthen the protections provided by the Constitution.
September 12, 2023--Due Process Institute endorses the Driving for Opportunity Act of 2023, as and recognize the urgency of addressing debt-based driver’s license suspension. Suspensions and restrictions of driver’s licenses for unpaid court fines and fees fail to improve public safety and restrict economic opportunity for millions of Americans. The Driving for Opportunity Act of 2023, a bipartisan bill sponsored by U.S. Senators Chris Coons and Roger Wicker, recognizes the unintended harms of this counterproductive practice and supports communities transitioning away from this strategy.
One in three American families are impacted by fines and fees that are imposed as a result of a criminal or traffic offense. Unpaid fines and fees can lead to a driver’s license suspension or other restrictions on driving. Driving a vehicle is essential for finding and keeping a good job, pursuing education, accessing child care, and obtaining other foundations for a stable and productive life. As Americans struggle to make ends meet, debt-based license suspensions are making it significantly more difficult for families to achieve critical financial stability.
Millions of Americans have a suspended or revoked driver’s license solely because of unpaid court debt rather than unsafe driving. Such “debt-based suspension” is a means through which governments try to compel payment. This system is inherently faulty: someone who cannot drive will likely have a difficult time securing access to work, especially in rural and low-income communities where public transportation is limited, making debt repayment even more difficult or impossible.
Suspensions and revocations of driver’s licenses for non-driving related conduct may harm public safety. Law enforcement officers, prosecutors, and judges lose countless hours enforcing these laws at the expense of responding to more pressing issues in their communities on and off the road. In addition, having a suspended license exposes drivers to additional fines, arrest, incarceration, or other entanglements with the criminal legal system. Half the states, ranging from Texas to New York, have amended their own policies to eliminate or restrict driver’s license suspensions for unpaid court debt.
The Driving for Opportunity Act of 2023 authorizes federal funding to support states that are choosing to end debt-based driver’s license suspensions. Under this legislation, state governments would receive limited federal assistance to manage some of the costs associated with eliminating debt-based suspensions and reinstating licenses. Passage of the Driving for Opportunity Act presents an opportunity for Congress to lift up a data-backed, widely supported policy reform and provide modest support for state governments that are embracing this common sense measure.
September 8, 2023--Due Process Institute and over a dozen privacy, civil rights, and civil liberties groups from across the political spectrum met yesterday with Director of National Intelligence (DNI) Avril Haines and other high ranking intelligence community officials to discuss Section 702 of the Foreign Intelligence Surveillance Act (FISA 702), and connected surveillance issues such as data purchases and surveillance pursuant to Executive Order 12333. Following the meeting, the undersigned attendees issued the following statement:
“We appreciate DNI Haines taking time to hear our serious concerns with warrantless FISA 702 surveillance, but remain deeply distressed that the intelligence community will not commit to any of the meaningful reforms that are critical to protect Americans’ privacy.
After years of misuse such as deliberately seeking out private messages of activists on the left and right, a batch of 19,000 campaign donors, and lawmakers, it’s clear that FISA 702 and related surveillance powers need serious change. The administration and intelligence community must be willing to come to the table and accept significant new privacy protections that advocates, Congress, and the American people are calling for. There simply isn’t a path to reauthorization built on half-measures, window dressing, and codification of internal procedures that have repeatedly failed to protect Americans’ civil rights and civil liberties.”
As detailed in a letter provided to DNI Haines in advance of the meeting, participants view reauthorization of FISA 702 as dependent on a range of meaningful reforms, including:
September 6, 2023--Due Process Institute and an ideologically diverse group of public policy organizations commend the bipartisan efforts in Congress to elevate the importance of tobacco harm reduction through the formation of the Congressional Tobacco Harm Reduction Caucus. It is an essential approach to addressing disease and death brought by smoking combustible cigarettes.
Despite significant declines, combustible cigarette smoking is still the leading cause of preventable death in the United States. More than 30 million Americans smoke combustible cigarettes and more than 16 million are living with disease caused by smoking. Smoking contributes to 1 in 5 deaths in America: 480,000 premature deaths every year, including more than 41,000 from secondhand smoke. In addition to the loss of life, smoking costs our economy more than $600 billion per year. Every year, more than half of adults who smoke try to quit, but fewer than 8 percent actually do so. And just as the harms of combustible cigarette smoking disproportionately fall on people of color, veterans and service members, LGBTQ people, and poor, rural and disabled Americans, quitting is especially difficult in these populations. These individuals and their families are worth the exploration of every tool that could reduce the harms of tobacco.
Public health, compassion, personal autonomy and pragmatism demand the continuation of investment in prevention and cessation, and get serious about exploring harm reduction. This calls for a paradigm shift from well-intentioned but harmful prohibitionist policies that could increase negative interactions with police, especially in communities of color. The adoption of harm reduction practices can increase quit rates and decrease health risks for many adults who are unable or unwilling to quit using available cessation products and strategies.
July 26, 2023--Due Process Institute and the undersigned criminal justice organizations wrote to Congress to express deep concern about the devastating impact of proposed cuts to the federal indigent defense system. The House and Senate Appropriations Committees have approved funding that is $122 million and $150.4 million, respectively, less than requested. Unless corrected, these cuts could cause the loss of 9-12% of current federal defender staff—even after defenders cut critical programming such as training and IT improvements. Such layoffs would almost certainly decimate the federal defender system, degrade the overall quality of federal indigent defense, and undermine the administration of justice for countless federal defendants. To avert the crisis, Congress should ensure that the Defenders Services account is fully funded at the requested amount. Our federal criminal justice system cannot be sustained unless all components – prosecution, judiciary, and defense – receive adequate and stable funding. Federal defender offices were already operating quite leanly, as evidenced by a recent work measurement study that indicates the need for an additional 256 employees. Instead, the House and Senate bills would potentially result in the loss of 368-493 employees.
Federal indigent defense was already under-resourced as compared to the Department of Justice, and the cuts proposed by the House and Senate would push the system over the brink. Cuts to federal defense will have a ripple effect across the federal criminal legal system. It is estimated that 90 percent of people charged with federal crimes are too poor to hire an attorney and, thus, have a constitutional right to a federal defender or court-appointed counsel. Given that every federal defendant without resources to hire an attorney is entitled to government-paid counsel, no savings could even conceivably be achieved by slashing the federal defender budget. Instead, these proposed budget cuts will simply create chaos. Federal defender offices will be forced to turn down cases that they would ordinarily accept, forcing panel attorneys—most of whom maintain busy practices alongside their CJA work—to make up the difference.
As this year marks the 60th anniversary of Gideon v. Wainwright, the federal indigent defense system must be protected from these devastating cuts. Testifying in support of the Criminal Justice Act in 1963, Attorney General Robert Kennedy extolled the planned system as “the most comprehensive, yet flexible solution ever devised to meet the representation problem in the federal system.” Sixty years later, the future of that system rests in the hands of this Congress and urge for the full funding for the federal indigent defense system and ensure that, in federal court, the scales of justice “measure truth, not legal fees.”
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