President Biden orders DOJ to facilitate voting for people in federal custody or under supervision

On election day in 2016, Crystal Mason, a Texas mother of three, cast a provisional ballot. She was unaware that Texas considered her ineligible to vote because she was on federal supervised release at the time. Six months later she was arrested. A year and a half later, she was convicted of voter fraud and sentenced to five years in prison. Mason, who is Black, believes that her prosecution was “politically and racially charged.” An appeals court upheld the conviction, ruling that whether Mason knew she was ineligible to vote was irrelevant to the case against her. She is pursuing further appeals.

At trial, one of Mason’s supervision officers, Ken Mays, testified that he had not informed her that she could not vote in Texas while on federal supervised release because it was not part of standard procedure: “That’s just not something we do.”

Now, a few years later, a new executive order issued by President Joe Biden will change standard procedure to require the notice Ms. Mason never received. The order also directs the Justice Department to facilitate voting for people in federal custody or on supervision who are eligible to vote in their state of residence.

In recent years, there has been growing attention to the racist origins of felony disenfranchisement, to its racially disparate effect, and to how restoration of voting rights strengthens our democracy. This past Sunday, March 7, 2021, was the 56th anniversary of “Bloody Sunday,” an infamous day when Alabama troopers violently beat civil rights marchers—including the late John Lewis, civil rights leader and longtime member of Congress—on the Edmund Pettus Bridge in Selma. While delivering an address to mark the occasion, President Biden announced that he had issued an Executive Order directing every federal agency to promote access to voting.

The Order includes an ambitious directive to the Attorney General to provide voter education materials to hundreds of thousands of individuals in federal custody, under federal supervision, or formerly incarcerated, and to facilitate voting for those who are eligible under state law. See Sec. 9 (“Ensuring Access to Voter Registration for Eligible Individuals in Federal Custody”). This represents “the first time the federal government has ever taken action to ensure justice-involved voters can participate equally in our democracy.”

As Crystal Mason’s case demonstrates, many people with a record lack clear information about their eligibility to vote, due to misinformation and the complexity of state laws and policies governing voting rights for people with a record. (CCRC documents and explains these laws and policies in our 50-state resources.) Further, eligible voters in jail and prison face practical challenges that often make registration and voting difficult or impossible.

Newly-confirmed Attorney General Merrick Garland will surely direct sufficient resources and expertise to implementing this directive. The result could be a radical expansion of voting education and access for millions of individuals with federal criminal records, with ripple effects benefiting tens of millions with state criminal records. Moreover, given the widespread racial disparities in the criminal justice system, this effort could significantly improve access to voting for Black communities and other communities of color, issues that Garland prioritized at his Senate confirmation hearing.

This article briefly outlines the state of the law governing loss and restoration of voting rights due to conviction. It then reviews the specifics of Biden’s directive, discussing its potential impact on four groups: (1) individuals in the custody of the Federal Bureau of Prisons; (2) individuals detained in jails under contracts with U.S. Marshal Service; (3) individuals under the supervision of the Office of Probation and Pretrial Services in the Administrative Office of U.S. Courts; and (4) formerly incarcerated individuals.

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CCRC proposes a reintegration agenda for the 117th Congress

The new Congress has an opportunity to make significant bipartisan progress on criminal justice reform, including reducing barriers to successful reintegration for people with a criminal record.1 This agenda recommends specific measures by which Congress can accomplish this.

During the wave of criminal record reform that began around 2013, every state legislature has taken some steps to chip away at the negative effects of a record, thereby supporting opportunities to earn a living, access public benefits, education, and housing, regain voting rights, and otherwise reintegrate into society.2 Many states have entirely remade their record relief systems—authorizing or expanding expungement, sealing, set-aside, certificates of relief, and/or deferred adjudication—and limited the consideration of arrest and conviction records in employment and licensing.3

Congress has belatedly become interested in the reintegration agenda, limiting background checks in federal employment and contracting in 2019, and removing some barriers to public benefits in 2020. However, many federal barriers remain, and individuals with federal records have no access to the kind of relief mechanisms now available in most states. Recent controversies over presidential pardoning offer an incentive to wean the federal justice system from its dependence upon presidential action for the sort of routine relief these mechanisms promise.

During the pandemic, the need to access opportunities and resources is perhaps unprecedented. We therefore urge Congress and the Biden Administration to take an ambitious and bipartisan approach to criminal record reforms in the four areas described below:

  • Record relief: authorize federal courts to expunge certain records, grant certificates of relief, and increase use of deferred adjudication; give effect to state relief in federal law; prohibit dissemination of certain records by background screeners and the FBI; provide relief from firearms dispossession.
  • Federal public benefits: end record-related restrictions in small business relief, SNAP and TANF benefits, and student financial aid.
  • Employment & licensing: establish enforceable standards for consideration of criminal record in federal employment and contracting, and limit record-based restrictions in federally-regulated occupations.
  • Voting rights: allow voting in federal elections unless a person is serving a felony sentence in a correctional institution.

CCRC’s full federal agenda can be accessed here, and is reprinted below.

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Momentum grows to restore voting rights to people with a felony

Our new report on 2020 legislative reforms shows continued progress in state efforts to expand voting rights for people with a felony conviction. Despite a courtroom setback at the Eleventh Circuit, where a federal appeals court ruled that Florida’s landmark 2018 felony re-enfranchisement initiative does not restore the vote to people who owe court debt, two additional states and D.C. took major actions to restore voting rights to people convicted of a felony. Already in 2021, an impressive 19 states are considering bills to ease or eliminate prohibitions on voting based on a past conviction.

In 2020, California restored the vote to people on parole, via a ballot initiative amending the state constitution. Iowa‘s governor issued an executive order restoring voting rights to people convicted of most felonies after completion of incarceration and supervision. And the District of Columbia repealed felony disenfranchisement altogether so that even people in prison may vote. Since 2016, 19 states have taken steps to restore the right to vote for people with a felony and expand awareness about eligibility. 

In 2021, at least 19 state legislatures are considering bills that would expand the franchise to those with a conviction:

  • 5 states are considering measures to amend their constitutions or statutes to eliminate felony disenfranchisement entirely (Nebraska, Georgia, Massachusetts, Oregon, and Virginia). They would join Maine, Vermont, and D.C., as jurisdictions that have fully abandoned felony disenfranchisement. Connecticut also has a proposed bill that to eliminate disenfranchisement for certain felony offenses and restore the vote after incarceration for the others.
  • 10 states are considering bills to re-enfranchise individuals not presently incarcerated for a felony conviction: Alabama, MinnesotaMissouri, New Mexico, New York, Oklahoma, Washington, Texas, and Virginia (Alabama’s bill would do so 5 years after release). The Washington measure is sponsored by newly elected Rep. Tarra Simmons, believed to be the first Washington state lawmaker formerly convicted of felony.
  • The only 4 states remaining without a statutory mechanism for re-enfranchisement (Kentucky, Iowa, Mississippi, Virginia) are considering measures to restore the vote upon completion of incarceration and supervision, or earlier, for a disqualifying offense (in the case of Mississippi, after incarceration and parole only; in the case of Iowa, 5 years after completion of incarceration and supervision; Virginia has proposals to eliminate disenfranchisement completely or restore the vote upon release). These four states currently make re-enfranchisement wholly dependent upon discretionary gubernatorial action (or in Mississippi, discretionary legislative action).
  • In addition, Tennessee has a pending bill that would remove requirements that a person has paid all restitution and court costs, and be current on child support, before voting rights may be restored. Maryland and Missouri are considering bills to facilitate voting in jails for eligible individuals, and Maryland has another bill to require individuals released from correctional facilities and/or on community supervision to be informed that they are eligible to vote. Nebraska also has a pending bill to remove the two-year waiting period after completion of a felony sentence for voting rights restoration.

Our full report on 2020 criminal record reforms is available here. For an overview of loss and restoration of voting rights, see our Sept. 2020 national survey and our 50-state comparison chart. In addition, our Nov. 2020 report documents which states treat unpaid court debt as a barrier to regaining the vote.

Legislative Report Card: “The Reintegration Agenda During Pandemic”

CCRC’s new report documents legislative efforts in 2020 to reduce the barriers faced by people with a criminal record in the workplace, at the ballot box, and in many other areas of daily life. In total, 32 states, D.C., and the federal government enacted 106 bills, approved 5 ballot initiatives, and issued 4 executive orders to restore rights and opportunities to people with a record.

Our Legislative Report Card recognizes the most (and least) productive state legislatures last year. Hands down, Michigan was the Reintegration Champion of 2020 with 26 new record reform laws, while Utah was runner-up, and seven other states were commended for their work.

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“The Reintegration Agenda During Pandemic: Criminal Record Reforms in 2020”

In each of the past five years, CCRC has issued an end-of-year report on legislative efforts to reduce the barriers faced by people with a criminal record in the workplace, at the ballot box, and in many other areas of daily life.[i] These reports document the progress of what has become a full-fledged law reform movement to restore individuals’ rights and status following their navigation of the criminal law system.

Our 2020 report, linked here, shows a continuation of this legislative trend. While fewer states enacted fewer laws in 2020 than in the preceding two years, evidently because of the disruptions caused by the pandemic, the fact that there was still considerable progress is testament to a genuine and enduring public commitment to a reintegration agenda.

In 2020, 32 states, the District of Columbia, and the federal government enacted 106 legislative bills, approved 5 ballot initiatives, and issued 4 executive orders to restore rights and opportunities to people with a criminal record.

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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 Reintegration Report Card

We are pleased to publish “The Reintegration Report Card,” a new resource that ranks and grades all 50 states on how their laws address voting rights, record relief (including expungement and pardon), fair employment, and occupational licensing for people with a criminal record.

This Report Card supplements our recent 50-state report, “The Many Roads to Reintegration.” That report surveys U.S. laws aimed at restoring rights and opportunities after arrest or conviction. It grades the states on nine different types of restoration laws, including voting rights, six different record relief remedies, and laws regulating consideration of criminal record in employment and occupational licensing. Based on these grades, the report includes an overall ranking of the states and D.C.

This Report Card provides the grades and rankings in a more easily accessible form. It also includes a brief narrative summary of how each state’s law stacks up in the different graded categories. Our hope is that these summaries will suggest ways in which a state might improve its laws and hence its overall ranking. An appendix collects all the grades and rankings (the rankings are also at the end of this post).

We emphasize once again that our grades are based solely on the text of each state’s law, leaving more nuanced judgments about their actual operation to practitioners, researchers, and the law’s intended beneficiaries. We expect to look more closely at the operation of some of the record relief laws in the near future, and welcome comments and suggestions from those who have experience with them. In the meantime, we hope our grades will challenge, encourage, and inspire additional reforms in the months and years ahead.

The Reintegration Report Card is available at this link. For more details and legal citations for each state, see the Restoration of Rights Project. For essays surveying each topic, consult “The Many Roads to Reintegration.”

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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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NC court rules vote may not be denied based on court debt

On September 4, a North Carolina state court issued a major decision on restoration of voting rights.  In North Carolina, voting rights lost upon a felony conviction are automatically restored upon “unconditional discharge” of sentence or unconditional pardon.  A three-judge panel, observing that “unconditional discharge” can be delayed for up to eight years because of unpaid restitution and other financial obligations, ruled that conditioning the vote on payment of money violates the state constitution’s guarantee of equal protection and ban on property qualifications in voting.  The court held, in a 2-1 ruling, that the state may not withhold the vote from people whose only remaining aspect of their sentence–other than regular conditions of probation–is payment of a financial obligation. The dissenting judge opined that people convicted of felonies have no “fundamental interest” in voting.

The court issued a summary judgment order and preliminary injunction requiring the state to allow individuals to register to vote immediately if: (1) their “only remaining barrier to obtaining a ‘unconditional discharge’ other than regular conditions of probation…is the payment of a monetary amount”; or (2) they have been discharged from probation and owed a monetary amount upon termination of probation, including if the amount was reduced to a civil lien.

Forward Justice, Protect Democracy, and Arnold & Porter represent the plaintiffs in the case: Community Success Initiative, the North Carolina State Conference of the NAACP, Justice Served NC, Inc, and Wash Away Unemployment. Forward Justice’s press release is here.

Meanwhile, the questions raised by Florida’s “pay-to-vote” system remain under consideration by the federal court of appeals for the 11th Circuit.  CCRC filed an amicus brief in that case describing how court debt affects restoration of voting rights in all 50 states. The full court heard argument in the case Jones v. DeSantis on August 18, but it is not clear whether there will be a decision before the October 5 deadline to register to vote in that state.

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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