Category: Caselaw

Update on federal firearms restoration program

Last spring, the Department of Justice (DOJ) announced its intention to revive a long-dormant program to remove federal restrictions on firearm possession, including for those with a criminal record.  In July, DOJ published for comment a proposed rule that would, when finalized, accomplish this for people who are determined to pose no public safety risk. See 18 U.S.C. § 925(c). See Trump’s Justice Department aims to restore gun rights for nonviolent offenders.

The comment period closed on October 20, and it is therefore possible that a final rule will be published at any time to launch the revived program. This will open the door, for the first time in more than 30 years, to many individuals who have been unable to regain their firearm rights because of their criminal record. It is anticipated that thousands of people will want to apply for this relief, which will be administered by the Justice Department’s Office of the Pardon Attorney.

We have some concerns about whether the demanding § 925(c) application process described in the proposed rule will deliver on its promise. For example, the document production requirements may be challenging for many people, especially those with dated minor convictions. See proposed 28 CFR § 107.1(d).  Hopefully, the final rule will facilitate application rather than discourage it for those unable to hire counsel. At a minimum, the revived § 925(c) process will provide an alternative to presidential pardon for people dispossessed because of a federal conviction.

But relief under § 925(c) affects only restrictions on firearm possession arising under federal law, and will not affect analogous restrictions in the laws of most states. As a result, individuals who benefit from the federal restoration program will need to determine what their rights are under state law.  In all likelihood, states will also want to determine whether restrictions in their own laws should conform to or outlive federal ones.

While the new federal restoration program may be good news for people who can successfully navigate it, the not-so-good news is that many of these same people (including those with federal convictions) will remain frustrated by restrictive state laws that permanently prohibit their possession of any firearm without regard to public safety risk.

In June of 2025, CCRC published a report on state law firearm restrictions that will inform these determinations. CCRC’s report, Restoration of Firearm Rights After Conviction: A National Survey and Suggestions for Reform, offers a comprehensive picture of the differing ways states restrict and restore the right to possess a firearm for those dispossessed because of a criminal record, including relevant sections of statutory text to facilitate analysis and comparison. CCRC’s report concluded that most states restrict firearm rights too broadly and make restoration difficult, in potential violation of the Second Amendment.

Our report found that only 13 states limit dispossession to violent crimes, and 34 states offer no route to firearm relief to residents convicted in another state or in federal court. Sixteen (16) states make pardon the exclusive way to regain state firearm rights, and not all of those states offer pardon as a reliable remedy. Even in those states where pardoning is frequent and regular, those with out of state or federal convictions may be out of luck (unless the state gives effect to pardons issued by other jurisdictions).

Our research revealed that only 16 states provide a way to regain lost rights that is easily accessible to all state residents wherever they were convicted, usually from an administrative agency or a court in the county of their residence. That is the kind of relief system we recommend. 

We are in the process of updating our report on state firearms dispossession laws to reflect new enactments in a dozen states since June, and we expect to republish it before Thanksgiving. 

NOTE: One interesting additional development since June is that the Supreme Court has agreed to hear a case that could add to our understanding of how the Second Amendment applies to federal firearm restrictions. The case, United States v. Hemani, involves the federal prosecution of a Texas man for violating the prohibition on gun possession by anyone who is “an unlawful user of” any controlled substance. 18 U.S.C. § 922(g)(3). The district court found § 922(g)(3) unconstitutional as applied to Mr. Hemani, and the court of appeals agreed.

The Justice Department has urged the Supreme Court to find § 922(g)(3) constitutional as analogous to Founding Era gun laws applicable to “habitual drunkards,” despite the absence of any record facts to support such a finding in Mr. Hemani’s case.  It has also argued that the impending revival of the § 925(c) relief program obviates any constitutional problem with this provision, which the proposed regulation explains applies only to those currently using drugs in violation of the law.  The Court’s willingness to hear the case suggests an openness to curbing aggressive federal firearm prosecution policies in cases implicating the Second Amendment.  

 

North Carolina court restores the vote to 56,000

Update: This decision was stayed by the North Carolina Court of Appeals on September 3, 2021. As a result, the decision will not go into effect either until the appeal is resolved or further order of the court.

A three-judge state court in North Carolina has ruled that state’s felony disenfranchisement law unconstitutional as applied to individuals under supervision in the community, immediately restoring the vote to some 56,000 individuals. The decision means that in 24 states and the District of Columbia individuals convicted of felonies and serving a sentence in the community may vote.  North Carolina is the first southern state to restore the vote to convicted individuals upon release from prison.

As the New York Times noted in describing the court’s action, the ruling was “not entirely unexpected,” since “the same court had temporarily blocked enforcement of part of the law before the November general election, stating that most people who had completed their prison sentences could not be barred from voting if [the] only reason for their continued supervision was that they owed fines or court fees.”  See Community Success Initiative v. Moore, No. 19-cv-15941 (N.C. Super. Ct. Sept. 4, 2020).

While last year’s preliminary decision rested on the ground that requiring payment of court debt represented an poll tax, the challenge to North Carolina’s reenfranchisement scheme relied more broadly on its origins in intentional post-Civil War discrimination against Black people.  As the Times article noted, the decision “followed a trial that bared the history of the state’s disenfranchisement of Black people in sometimes shocking detail.”

The law struck down on Monday, which was enacted in 1877, extended disenfranchisement to people convicted of felonies in response to the 15th Amendment, which enshrined Black voting rights in the Constitution. But in the decade before that, local judges had reacted to the Civil War’s freeing of Black people by convicting them en masse and delivering public whippings, bringing them under a law denying the vote to anyone convicted of a crime for which whipping was a penalty.

A handful of Black legislators in the General Assembly tried to rescind the 1877 law in the early 1970s, but secured only procedural changes, such as a limit on the discretion of judges to prolong probation or court supervision.

The court has not yet released its opinion, and state officials may decide to appeal.

Updated: “Who Must Pay to Regain the Vote? A 50-State Survey”

We are pleased to publish an update of our 50-state report on how unpaid court debt blocks restoration of voting rights lost as a result of a felony conviction:

Who Must Pay to Regain the Vote? A 50-State Survey

This report examines the extent to which state reenfranchisement laws consider payment of legal financial obligations (LFOs), including fines, fees, and restitution, in determining whether and when to restore voting rights to people disenfranchised due to a felony conviction. (Our national survey discusses and ranks each state’s general approach to loss and restoration of voting rights based on conviction.)

We first published this research in July 2020 during litigation over Florida’s 2018 voting rights ballot initiative, which many expected would restore voting rights to more than a million people disenfranchised because of a felony conviction. However, the initiative was interpreted by Florida’s legislature and supreme court to condition reenfranchisement on payment of all outstanding fines, fees, costs, and restitution, which drastically limited its anticipated reach. A federal district court found this system unconstitutional, but the U.S. Court of Appeals for the Eleventh Circuit reversed that conclusion in a 6-4 decision.

During the appeal, an amicus brief by the State of Texas, joined by seven other states, asserted that “States across the country have similar rules [to Florida] for felon voting” and that the district court’s holding “called into question the widespread practice” of permanently disenfranchising people who are not able to “pay their debts to society.”  As we demonstrated in our original report and amicus brief, the assertions in the Texas brief were not well-founded: few states have laws like Florida’s that indefinitely deny reenfranchisement based on any unpaid debt related to a disqualifying conviction.

This updated report documents whether and to what extent unpaid LFOs restrict voting rights in each state, and reflects developments in California, where voters early this month passed a constitutional amendment to restore voting rights to those on parole; and in Iowa, where the governor in August issued an executive order to restore voting rights after completion of incarceration and supervision, regardless of payment of LFOs.

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“The Many Roads to Reintegration”: A 50-state report on laws restoring rights and opportunities

We are pleased to release a new report describing the present landscape of laws in the United States aimed at restoring rights and opportunities after an arrest or conviction. This report, titled The Many Roads to Reintegration, is an update and refresh of our previous national survey, last revised in 2018.

The report covers voting and firearms rights, an array of record relief remedies such as expungement and pardon, and consideration of criminal record in employment and occupational licensing.

In each section of the report we assign a grade to each state for each type of relief. We collate these grades to produce an overall ranking on the nine categories that we graded. That ranking is reproduced below.

We are encouraged by the amazing progress that has been made in the past few years toward neutralizing the effect of a criminal record since the present reform era got underway less than a decade ago. The last two years in particular have produced a bumper crop of new laws in almost every U.S. jurisdiction.

Some of our top performers have been long-time leaders in promoting reintegration, including Illinois, Utah, and Minnesota. But some of the most progressive lawmaking has come from states newer to the field, like Nevada, Colorado, and North Dakota. These and the other states in our Top Ten set an example that we hope will inspire other jurisdictions in the months and years to come.

The executive summary of the report is reprinted below. The full report is available in PDF and HTML formats.

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CCRC research featured in Florida felony voting case briefs

Last week, we published our amicus brief in an appeal about the constitutionality of Florida’s system for restoring the vote to people with felony convictions.  We urged the Eleventh Circuit to affirm a district court decision that Florida’s “pay-to-vote” system is unconstitutional, relying on our research report showing that few states have as restrictive a scheme as Florida’s.  Other groups also weighed in, including 19 states and D.C. and several organizations that draw on CCRC’s research to argue in favor of the decision below.  CCRC board members Jack Chin and Nora Demleitner joined a group of 93 law professors who also argued in favor of the district court’s determination that Florida’s scheme is unconstitutional.

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CCRC urges 11th Circuit to uphold Florida felony voting decision

Yesterday, we filed an amicus brief in the U.S. Court of Appeals for the Eleventh Circuit in a case about the constitutionality of Florida’s system for restoring the vote to people with felony convictions.  We urge the court to affirm the lower court decision’s that declared Florida’s “pay-to-vote” system unconstitutional.  The brief draws on our new 50-state research report to show that Florida’s approach to this issue is an outlier among the states.

We were ably represented by Andrew L. Frey, Scott A. Chesin, and Luc W. M. Mitchell of Mayer Brown and very much appreciate their work.

Our brief is a contribution to high-stakes federal litigation in Florida over that state’s 2018 ballot initiative, Amendment 4, which many expected would restore voting rights to more than a million people disenfranchised because of their criminal record, in some cases for crimes that occurred decades ago.  However, the initiative has been interpreted by Florida’s legislature and supreme court to condition reenfranchisement on payment of all outstanding fines, fees, costs, and restitution, which threatens to drastically limit its anticipated reach.

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Who Must Pay to Regain the Vote? A 50-State Survey

We are pleased to publish a new 50-state report on how unpaid court debt blocks restoration of voting rights lost as a result of conviction:

Who Must Pay to Regain the Vote? A 50-State Survey

This report examines the extent to which state reenfranchisement laws consider payment of legal financial obligations (LFOs), including fines, fees, and restitution, in determining whether and when to restore voting rights to people disenfranchised due to a felony conviction.

This issue has come to the fore as a result of the high-stakes federal litigation in Florida over that state’s 2018 ballot initiative, which many expected would restore voting rights to more than a million people disenfranchised because of their criminal record, in some cases for crimes that occurred decades ago. However, the initiative has been interpreted by Florida’s legislature and supreme court to condition reenfranchisement on payment of all outstanding fines, fees, costs, and restitution, which threatens to drastically limit its anticipated reach.

After a group of voters and organizations sued, a federal judge found this “pay-to-vote” system unconstitutional. The case is currently on appeal in the U.S. Court of Appeals for the Eleventh Circuit. CCRC expects to file an amicus brief next week that will include an abbreviated version of this report. Our brief will address the claim that many states have reenfranchisement schemes like Florida’s, and that the trial court’s decision would therefore cast doubt on a widespread national practice. But our research finds that very few states have laws like Florida’s that indefinitely deny reenfranchisement based on any unpaid debt related to a disqualifying conviction. In fact, only two other states, Alabama and Arkansas, share the specifics of Florida’s approach.

The issues in the Florida case and the findings of our report are detailed below.

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SBA throws in the towel and Congress extends the PPP deadline

After Congress authorized hundreds of billions of dollars for small business relief during COVID-19, the Small Business Administration (SBA) by rule and by policy imposed restrictions on applicants with an arrest or conviction history.  As we have documented, these SBA barriers, neither required nor contemplated by Congress, unlawfully impeded access to the Paycheck Protection Program (PPP) and the Economic Injury Disaster Loan (EIDL) program.  Over many weeks, the Administration stubbornly defended those barriers.  Finally, facing a bipartisan chorus of criticism including from members of Congress, and lawsuits in federal court, the Administration threw in the towel.

On June 12, shortly after the SBA eased some of the PPP restrictions, lawsuits were filed in federal court by several Maryland business owners challenging those restrictions.  On June 24, SBA further relaxed its PPP barriers, this time in a far more significant fashion, notably making the business owners who had sued the SBA eligible.  But the latest policy change came with less a week before the June 30 application deadline.

Then, just one day before the deadline, a federal judge ruled that the SBA’s criminal history restrictions on PPP, except for the June 24 policy change, were likely unlawful.  The court extended the deadline to apply, but only for the small business owners who had sued.

In a dramatic finale, Congress extended the PPP application deadline to August 8 for everyone.  This extension, signed into law on July 4, gives business owners made eligible under the June 24 policy a meaningful opportunity to learn about their eligibility and complete the application process.  A good outcome all around, thanks to the many people who refused to take no for an answer!

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New efforts to channel federal relief to small business owners with a record

*UPDATE (7/7/20):  “SBA throws in the towel and Congress extends the PPP deadline”

After Congress authorized hundreds of billions of dollars in funds for small business relief during COVID-19, the Small Business Administration (SBA) imposed restrictions on applicants with an arrest or conviction history.  These barriers, neither required nor contemplated by Congress, impede access to the two major relief programs for small businesses, nonprofits, and independent contractors during the COVID-19 crisis.  The two programs are the newly created Paycheck Protection Program (PPP) and the ramped-up Economic Injury Disaster Loan (EIDL) program.

Three developments within the past week signal major pushback against or the possible reversal of at least some of these burdensome restrictions, which unfairly deny relief to worthy applicants.

First, at least 65 organizations submitted five public comments in opposition to the SBA’s criminal history restrictions for PPP relief.  Our organization joined 25 other groups in submitting a comment asking the SBA to rescind or modify the regulation on legal and policy grounds, citing recent court decisions that suggest the SBA may lack authority to impose record-based disqualifications at all.

These comments are the most recent expression of what has become a wave of bipartisan opposition to the SBA’s exclusionary policies, and growing coverage of the issues in the press.  We have been collecting relevant documents on our small business relief resource page.

Second, Treasury Secretary Steven Mnuchin signaled in a recent conversation with key Senators that he may be open to easing restrictions on PPP applicants with felony records from the last five years.

Third, the HEROES Act, passed by the House on Friday, includes provisions that would significantly constrain the SBA’s authority to deny applicants based on a record of arrest or conviction in both the PPP and EIDL programs.  If enacted into law, these provisions would mark a turning point in how federal law deals with discrimination based on criminal record.

We discuss these developments in detail after the jump.  Read more

11th Circuit declines to rehear decision upholding felony voting rights

Yesterday, the full U.S. Court of Appeals for the Eleventh Circuit denied Florida’s petition to rehear en banc a decision from a three-judge panel, which held on Feb. 19 that Florida may not deny the vote to people with felony convictions who have otherwise served their sentences, but may have outstanding court debt that they are unable to pay.

The panel decision concerns Florida’s 2018 ballot initiative Amendment 4, which restored the vote to state residents with felony convictions who have completed the terms of their sentence (murder and sex offense convictions are excluded).  The Florida Supreme Court held earlier this year that this required payment of fines, fees, and restitution.  The Eleventh Circuit panel, affirming a district court preliminary injunction, not only held that Florida may not deny the vote to those who can demonstrate that they are genuinely unable to pay outstanding court debt, but it also called into question the very requirement that legal financial obligations must be satisfied in order to regain the vote.  Our full discussion of that decision is included below.

Absent intervention by the Supreme Court, Florida will be now be required to 1) implement the lower court’s preliminary injunction (which affected only the 17 plaintiffs named in the lawsuit); and 2) return to the district court for further litigation to address the rights of all other similarly situated Floridians, in accordance with the seeming broader directive of the appeals court.

Yesterday’s decision sends a strong signal to the states that currently impose similar financial barriers to restoring the franchise to those who have otherwise served their sentences.  But it also suggests that states should reconsider the many other troublesome barriers that governments impose on people who have otherwise served their sentences and are looking to fully participate in society, but still carry outstanding court debt.  In this vein, we have recently written about the denial of small business loans and ineligibility for expungement of non-conviction records because of outstanding fines and fees.

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