The monumental felony voting rights case in Florida moves another step forward, expanding in scope. On Tuesday, the federal trial judge overseeing the case certified a class of all persons who have served sentences for felony convictions, who would be eligible to vote in Florida but for unpaid court debt. With the trial scheduled to begin via remote communication on April 27, the decision enables the court to issue a ruling on the merits in time for the November election that would apply to the entire class of several hundred thousand (or more) potential Florida voters.
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.
Editors’ note: CCRC recently released its report on 2019 criminal record reforms, which recognized New Jersey as the “Reintegration Champion” of 2019, for having the most consequential legislative record of any state in the past year. The following comment describes New Jersey’s laws enacted in 2019. New Jersey’s various restoration of rights laws are further described in the state’s profile in the CCRC Restoration of Rights Project.
In December 2019, Governor Phil Murphy signed into law S4154, now L.2019, c.269, as part of his Second Chance Agenda. The law is a strong step towards criminal justice reform, and places New Jersey on the map as a leader in expungement policy. Along with easing access to the existing expungement process, it creates a new “clean slate” system that provides for expungement of all but the most serious violent offenses after ten years. It additionally sets in motion a process aiming to automate all clean slate expungements. The substantive provisions of the law are set to go into effect on June 15, 2020, and we anticipate a large increase in expungements following its implementation.
The following is an excerpt from our recent annual report on legislative reforms, Pathways to Reintegration: Criminal Record Reforms in 2019.
For the first time this year we have prepared a “Report Card” on how state legislatures performed in 2019 in advancing the goals of reintegration. We have not covered all states, only those we thought most and least productive. We hope this new feature of our annual reports will provide an incentive to legislatures across the nation, and a tool for legislative advocates.
|New Jersey gets the top mark as Reintegration Champion of 2019 for the most consequential legislative record of any state last year.|
In this inaugural year, New Jersey gets the top mark as Reintegration Champion of 2019 for the most consequential legislative record of any state last year. New Jersey’s “Clean Slate” law authorized an automated record-clearing process for many thousands of misdemeanor and felony convictions going back decades, and extended eligibility and improved procedures for petition-based discretionary expungement relief. New Jersey enacted two other important laws promoting reintegration. One limited felony disenfranchisement to people in prison, immediately restoring the vote to about 80,000 people still completing their sentences in the community. Unlike the executive orders that have this effect in New York and Kentucky, New Jersey’s law will not be easily retracted when the statehouse changes hands. Another new law repealed provisions mandating suspension of driver’s licenses for conviction of drug and other non-driving crimes, for failure to pay court debt, and for failure to pay child support.
In commending New Jersey’s legislative accomplishments, we would be remiss not to recognize the key role played by Governor Phil Murphy in making criminal record reform the cornerstone of his legislative agenda, and by key legislative leaders, who together persuaded the legislature to enact in a single year a bolder set of reintegration laws than any other in the country to the present time.[i]
|As runner-up, Colorado enacted 10 laws on criminal records, voting rights, ban-the-box, and immigration.|
Colorado is runner up for our new Reintegration Champion award, based on a prolific legislative record that is a close second to New Jersey’s. In 2019 Colorado enacted ten record reform laws, among them an ambitious rewriting of its code chapter on criminal records, a law restoring voting rights to parolees and one extending ban-the-box to private employers, and two new measures to avoid deportation as a consequence of conviction. Colorado’s productive 2019 followed an almost equally productive 2018, when its legislature regulated occupational licensing agencies and gave its courts authority to remove mandatory collateral penalties.
|Honorable mention goes to 6 states (IL, MS, NV, NM, ND, WV) for productive legislative seasons, while 5 other states (AR, DE, CA, NY, UT) were recognized for a specific notable new law.|
Honorable mention for a productive legislative season goes to six states: Illinois and Nevada (with nine and eight laws, respectively, some significant); New Mexico and North Dakota (for their comprehensive first-ever record-sealing schemes, and ban-the-box bills); Mississippi (for its extensive regulation of occupational licensing, management of diversion courts, and repeal of mandatory driver’s license penalties for drug and other non-driving crimes); and West Virginia (for two significant laws, on record relief and occupational licensing, as well as a diversion bill). Five additional states deserve recognition for notable enactments: Arkansas for a major revision of its occupational licensing law; California and Utah for their automated record relief laws (though Utah’s scheme is not as far-reaching as New Jersey’s, and California’s is prospective only); New York for two measures to limit access to undisposed (pending) cases; and Delaware for its first comprehensive expungement scheme.
Low marks go to three of the seven states that enacted no record reform laws at all in 2019: the legislatures of Alaska, Georgia, and Michigan have been the least productive in the land in recent years where restoration of rights and status is concerned. Kansas, Massachusetts, Wisconsin, and Pennsylvania also produced no new laws in 2019, but all four states enacted major record reforms in 2018 so we give them a pass.
We conclude by noting that many of the states not mentioned in this inaugural Report Card made progress last year in limiting access to and use of criminal records, and we were hard-pressed not to single a few more of them out for credit. It is clear to us that almost every state sees criminal record reform as an important and challenging legislative agenda. We anticipate that in 2020 states that have been comparatively cautious in their recent law-making will be inspired to take larger steps as they see what more ambitious jurisdictions have already been able to accomplish.
Note: In response to this report, New Jersey Governor Phil Murphy tweeted:
From reforming our expungement system to restoring voting rights, we’re leading the nation in criminal justice reform. Proud to see New Jersey given a #1 ranking by @CCRC_Official for the bold steps we took last year.https://t.co/sI594h0Tzv
— Governor Phil Murphy (@GovMurphy) February 21, 2020
Read the full report here.
[i] See, e.g., Governor Murphy’s statement accompanying his “conditional veto” in August 2019 of an early version of the bill that would become the Clean Slate law that he signed on December 19, 2019. In that statement, after applauding the legislature’s extension of eligibility for petition-based expungement, he noted the example set by Pennsylvania’s own Clean Slate law the year before:
“Only those individuals who actually apply for an expungement, meaning those who are aware of this potential remedy and have the wherewithal to navigate the legal process or afford an attorney to assist them, would be able to seek the relief afforded by the expungement process. This method is not the most efficient means for clean slate expungement, nor will it deliver relief to all eligible individuals who need it. To avoid this shortcoming, we should follow the lead of Pennsylvania and undertake the necessary steps to establish an automated, computerized expungement system that would allow people with multiple convictions for less serious, non-violent crimes who maintain a clean record for ten years to clear their criminal histories without having to hire a lawyer or wade through a paperwork-intensive process. Our system is not set up to do this now, and undertaking this task will require buy-in and commitment from all three branches of government. On behalf of the executive branch, that is a commitment I am more than willing to make.”
See https://www.state.nj.us/governor/news/news/562019/docs/S3205CV.pdf. Senator Sandra Cunningham, Senate President Sweeney and Speaker Coughlin were particularly effective partners in the negotiations that resulted in the bill that was approved by the legislature in December.
*Update (3/31/20): the Eleventh Circuit has denied Florida’s petition for rehearing en banc.
A decision yesterday from the U.S. Court of Appeals for the Eleventh Circuit is a major victory for voting rights and criminal justice reform advocates. It has the potential to dramatically expand access to the ballot for people with felony convictions in Florida. The decision concerns Florida’s 2018 ballot initiative Amendment 4, which restored the vote to state residents who have completed the terms of their sentence, which includes fines, fees, and restitution imposed by the court. The appeals court’s decision held that Florida may not deny the vote to individuals who can demonstrate that they are genuinely unable to pay outstanding court debt. The decision also called into question the very requirement that financial penalties must be satisfied in order to regain the vote under Amendment 4, and potentially similar requirements in several other states.
We are pleased to publish our annual report on criminal record reforms enacted during the past calendar year. This is the fourth in a series of reports since 2016 on new laws aimed at avoiding or mitigating the collateral consequences of arrest and conviction. This year we have included for the first time a Report Card grading the progress of the most (and least) productive state legislatures in 2019. The press release accompanying the report is reprinted below:
Report finds record-breaking number of criminal record reforms enacted in 2019
Washington, D.C. — The Collateral Consequences Resource Center (CCRC) has released a new report documenting the astonishing number of laws passed in 2019 aimed at promoting reintegration for individuals with a criminal record. Last year, 43 states, the District of Columbia, and the federal government enacted an extraordinary 153 laws to provide criminal record relief or to alleviate the collateral consequences of arrest and conviction, consequences that may otherwise last a lifetime and frequently have little or no public safety rationale.
The year 2019 was the most productive legislative year since a wave of “fair chance” reforms began in 2013, a period CCRC has documented in a series of legislative reports (2013-2016, 2017, and 2018).
CCRC’s 2019 report, titled “Pathways to Reintegration: Criminal Record Reforms in 2019,” is available here.
“This report is our first to include a Report Card on how state legislatures performed during the year in advancing the goals of reintegration,” said CCRC Executive Director Margaret Love. “We wanted to recognize New Jersey as Reintegration Champion for having the most consequential legislative record in 2019, including three important new laws authorizing ‘clean slate’ record relief, restoring voting rights, and curbing driver’s license suspensions.”
This is the first in a series of comments describing some of the 153 laws passed in 2019 restoring rights or delivering record relief in various ways. The full report on 2019 laws is available here.
Restoration of Civil Rights
In 2019, eleven states took steps to restore the right to vote and to expand awareness of voting eligibility. Our experience is that many people convicted of a felony believe they are disqualified from voting when they are not: almost every state restores voting rights automatically to most convicted individuals at some point, if they are even disenfranchised to begin with.
The most significant new re-enfranchisement laws were enacted in Colorado, Nevada and New Jersey, where convicted individuals are now eligible to vote except when actually incarcerated. Colorado restored the vote to persons on parole supervision, while Nevada revised its complex system for restoring civil rights so that all people with felony convictions may now vote except while in prison. In one of the final legislative acts of 2019, New Jersey’s governor signed a law limiting disenfranchisement to a period of actual incarceration, even in cases where a court has ordered loss of the vote for election law violations, immediately restoring the vote to 80,000 people. These three states joined the two states (New York and Louisiana) that in 2018 took steps to limit disenfranchisement to a period of incarceration: New York’s governor issued the first of a series of executive orders under his pardon power restoring the vote to individuals on parole, and Louisiana passed a law allowing people to register if they have been out of prison for at least five years.
Now, only three of the 19 states that disenfranchise only those sentenced to prison still extend ineligibility through completion of parole: California, Connecticut, and Idaho. Bills under consideration in 2019 in both California and Connecticut would allow people to vote once they leave prison, though in California this will require a constitutional amendment.
Kentucky saw perhaps the most dramatic extension of the franchise in 2019, when its incoming governor Andy Beshear issued an executive order restoring the vote and eligibility for office to an estimated 140,000 individuals convicted of non-violent felonies who had completed their sentences. Before the order, individuals were required to petition the governor individually to obtain restoration of their voting rights. (Governor Beshear’s father had issued a similar order in 2015 at the end of his own term as governor, but it was revoked by his successor.) Iowa is now the only state that does not restore the vote automatically to most convicted individuals at some point.
In July we reported on the extraordinary number of new laws enacted in the first half of 2019 aimed at restoring rights and status after arrest and conviction. A total of 97 separate pieces of legislation, some covering multiple topics, were enacted by 38 states and many broke new ground in their jurisdictions. Moreover, clear trends begun in 2018 accelerated in the first half of 2019, as state lawmakers continued to focus most of their attention on facilitating access to record-clearing. In addition, a significant number of new laws limited the authority of occupational licensing boards to disqualify a person based on criminal record. Another area of progress was restoring voting rights.
Those trends continued over the summer, with 17 new laws, including significant laws enacted to regulate occupational licensing and expand record relief, including but not limited to marijuana convictions. Several states showed a keen interest in exploring the possibility of automating record relief, although only one state actually enacted an automatic relief system by the end of the quarter (New York, for marijuana convictions). (California enacted a “clean slate” law shortly after the beginning of the fourth quarter.) At the end of the third quarter, Arkansas, Colorado and Florida were studying the feasibility of automating relief, North Carolina was considering automatic expunction of non-conviction records, and the Governor of New Jersey was attempting to persuade his legislature to adopt an automated system for convictions as well as non-convictions.)
By the end of the third quarter of 2019, 42 states had enacted an unprecedented total of 114 laws restoring rights and status, and more new laws on the horizon.
All of the laws described briefly below are more fully analyzed in the context of the state’s overall restoration scheme, in the detailed profiles of the Restoration of Rights Project.
Florida Governor Ron DeSantis has opened up a new front in the legal battle in Florida over voting rights for people with felony convictions. DeSantis is asking the state supreme court for an opinion on whether Amendment 4, passed by Florida voters in 2018, restores the vote for people with outstanding court-ordered fines and fees. DeSantis signed a law passed by the legislature saying no, but that law is being challenged in federal court.
Amendment 4 automatically restored the right to vote for people convicted of felonies, other than murder or sexual offenses, upon “completion of all terms of sentence including parole or probation.” On June 28, 2019, DeSantis signed legislation (SB7066) that defines “completion of all terms of sentence” to include legal financial obligations (LFOs), including if a court has converted the LFOs to a civil lien. Supporters of SB7066 point to a previous hearing before the Florida Supreme Court—regarding whether Amendment 4 should be on the 2018 ballot—where the Amendment’s sponsors told the Justices that completion of sentence includes court-ordered fines and costs.
In federal court, individuals and supporters of Amendment 4 have brought several challenges to SB7066 as violating the U.S. constitution on a variety of grounds. One complaint argues that by disqualifying persons with outstanding LFOs, even if a person has no ability to pay and even if the court has converted an LFO to a civil lien, the law violates the Equal Protection and Due Process guarantees of the Fourteenth Amendment. It also argues that the law burdens the fundamental right to vote, is an unconstitutional poll tax, infringes on free speech and association, and was enacted with a racially discriminatory purpose.
UCLA law professor Beth Colgan recently published a survey of wealth-based penal disenfranchisement in the U.S. She argues that while this widespread practice has been upheld in the lower courts under rational basis review, properly considered as a form of punishment it violates the Equal Protection Clause of the Fourteenth Amendment.
Request for Opinion
On August 8, DeSantis filed a four-page letter asking the Florida Supreme Court to weigh in on the meaning of the amendment. “I will not infringe on the proper restoration of an individual’s right to vote under the Florida Constitution,” DeSantis states, asking the justices for “your interpretation of whether ‘completion of all terms of sentence’ encompasses financial obligations, such as fines, fees and restitution (‘legal financial obligations’ or ‘LFOs’) imposed by the court in the sentencing order.”
This is the title of a study by UCLA law professor Beth Colgan, published in the Vanderbilt Law Review, in which she documents how every state that disenfranchises people based upon criminal conviction also conditions restoration of the vote for at least some people upon their ability to pay. In some states this is because the law requires people to pay fines, fees, restitution and other court costs before they can vote. Even in the states that restore the vote immediately upon release from prison, “wealth-based penal disenfranchisement” may occur through policies applied by parole and probation authorities. Colgan proposes that such laws and policies can be challenged on Equal Protection grounds, arguing that felony disenfranchisement should be considered not as a civil rights deprivation but as punishment. She argues that the test developed by the Supreme Court in cases involving disparate treatment between rich and poor in criminal justice practices, should operate as a flat prohibition against “the use of the government’s prosecutorial power in ways that effectively punish one’s financial circumstances unless no other alternative response could satisfy the government’s interest in punishing the disenfranchising offense.”
Colgan’s article is particularly relevant in light of Florida’s recent enactment of a law that seems to frustrate the will of the 64% of Florida voters who acted last fall by ballot initiative to provide relief from one of the country’s strictest disenfranchisement provisions. On Friday, shortly after the Governor signed into law a bill conditioning restoration of the vote on payment of all court-imposed debt, a group of civil rights organizations filed suit in federal court, claiming that the new law violates the Constitution in several ways, most premised on the notion that disenfranchisement constitutes punishment. Among other things, the suit argues that “the Fourteenth Amendment’s doctrine of fundamental fairness prevents states from punishing individuals if they fail to do the impossible—satisfy legal financial obligations when they do not have the means to do so,” and that the new law violates Equal Protection in discriminating between those who are able to pay and those who are not. We intend to follow this litigation all the way to the Supreme Court, if necessary.
Here is the Colgan article’s abstract: Read more