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.
In true Minority Report fashion, state actors are increasingly relying on algorithms to assess the risk a person will commit a future crime. Unlike Minority Report, these algorithms simply estimate the likelihood of rearrests; they do not offer the absolute answer to future criminal behavior that condemned the defendant, Tom Cruise, in the 2002 action film. Still, criminal justice actors are using many types of algorithmic risk assessments to inform their decisions in pre-trial investigations, bail recommendations and decisions, and post-trial sentencing and parole proceedings. Sandra G. Mayson’s article, Bias In, Bias Out, published this year in the Yale Law Journal, explains how these algorithms could reflect and project past and present racial bias in the criminal justice system and elsewhere.
At its core, an algorithm specifies individual traits that are correlated with crime commission. If the data show that people of color are arrested more frequently, then the algorithm will predict more arrests for people of color. In this sense, an accurate algorithm “holds a mirror to the past” by “distilling patterns in past data and projecting them into the future.” Mayson provides an in-depth, yet easy-to-follow explanation of why race neutrality is unattainable when the base rates of arrest differ across racial groups. These mirror-like algorithms give us the opportunity to clearly view the racial disparity in arrests and convictions. Is there something wrong with this image, and what should we do now that we’ve seen it?
*Update 2: On November 25, 2019, the Supreme Court denied the petition.
On September 9, we filed an amicus brief at the U.S. Supreme Court urging the justices to review and reverse a decision out of Iowa that upholds wealth-based barriers to expungement. We were joined by the Institute for Justice, a libertarian public interest law firm. At issue in the case is an Iowa law that bars a person from obtaining expungement of a dismissed or acquitted case if they owe any court fees in the case. We point out the inequity of denying access to expungement based on socio-economic status: “The irony of Iowa’s expungement law could not be clearer: a law that removes a hurdle to employment and economic security cannot be invoked by indigent individuals until outstanding costs and fees are paid to the state, effectively defeating the very purpose of providing expungement relief in the first place.”
This case arises from Jone Doe’s request in 2018 to expunge her dismissed criminal case from 2009. But she still owes $550.38 for her court-appointed attorney, which she cannot afford to pay. Doe argued the requirement to pay outstanding fees before obtaining expungement violates her equal protection rights under the constitution. She pointed out that had she been able to hire a private attorney, she would be eligible for expungement, whether or not she owed attorney fees. The lower court denied the request, finding that Doe “was made aware of reimbursing attorney fees and that expungement could not occur until all fees and assessed costs were paid.” The Iowa Supreme Court, by a 4-3 vote, upheld the requirement, finding the state has a legitimate purpose “to encourage payment of court debt.” On petition to the Supreme Court, we urge the Court to “grant certiorari and hold that one’s inability to pay court fees may not restrict access to statutorily-created expungement rights.”
We were represented by Ethan P. Fallon and Thomas M. Bondy of Orrick, Herrington, & Sutcliffe LLP, and appreciate their work on this case. The full amicus brief is available here.
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
On May 10, the Iowa Supreme Court rejected an equal protection challenge to a requirement in Iowa law that applicants for expungement (sealing) of non-conviction records must first repay what they owe in court-appointed counsel fees. This surprising decision strikes us as unfair on several levels, and out of step with what most other states provide where limiting public access to non-conviction records is concerned. Rob Poggenklass of Iowa Legal Aid, which brought the case, describes the decision below.
Update: A petition for certiorari is expected to be filed in the U.S. Supreme Court later this summer. CCRC has agreed to file an amicus brief, which we expect will be joined by other organizations on “both sides of the aisle.”
Iowa Supreme Court finds collection of court-appointed attorney fees a rational precondition for expungement
By Rob Poggenklass
In State v. Doe, the state’s highest court held in a 4–3 decision that the legislature could condition eligibility for expungement on payment of fees owed to court-appointed counsel, just as it requires payment of other court debt. In 2015, the General Assembly enacted chapter 901C, which entitles people to expungement of criminal cases that were dismissed or in which the person was acquitted at trial, assuming a few criteria are met. One significant requirement for expungement is the repayment of all court debt associated with the case. This includes fees charged to the court by the counsel it appoints for indigent defendants, which in Iowa are often assessed even in acquittals and dismissed cases. See Iowa Code section 815.9(6).
In a strongly-worded opinion, a federal judge has ruled that Florida’s method of restoring voting rights to individuals convicted of felonies violates the First and Fourteenth Amendments. In Hand v. Scott, a suit brought by seven individuals either denied restoration of rights by the State Clemency Board or ineligible to apply, U.S. District Judge Mark E. Walker held that Florida’s “arbitrary” and “crushingly restrictive” restoration scheme, in which “elected, partisan officials have extraordinary authority to grant or withhold the right to vote from hundreds of thousands of people without any constraints, guidelines, or standards,” violates rights of free speech and association, and risks viewpoint and other discrimination.
As reported in this local press article, Governor Scott’s office issued a statement late Thursday, hinting at an appeal. Scott was the principal architect of the current system that requires all applicants for clemency to wait at least five years after they complete their sentences, serve probation and pay all restitution, before they may be considered for restoration of the vote and other civil rights. Throughout his 43-page ruling, Judge Walker cited the arbitrariness of Florida’s system, noting that people have been denied their voting rights because they received speeding tickets or failed to pay child support.
Scott and the Cabinet, meeting as a clemency board, consider cases four times a year, and usually fewer than 100 cases each time. It can take a decade or longer for a case to be heard, and at present the state has a backlog of more than 10,000 cases. Scott imposed the restrictions in 2011, soon after he was elected, with the support of three fellow Republicans who serve on the Cabinet, including Agriculture Commissioner Adam Putnam, now a leading candidate for governor. Scott’s actions in 2011 reversed a policy under which many felons, not including murderers and sex offenders, had their rights restored without application process and hearings. That streamlined process was instituted in 2007 by former Gov. Charlie Crist, then a Republican and now a Democratic member of Congress.
The context in which the case was decided is described in this NPR article. Last month, Florida elections officials approved a November ballot measure that would automatically restore voting rights to people convicted of felonies who have completed their sentences, with exceptions for murder and serious sex offenses.
A new California regulation took effect last week that puts employers on notice that adverse action based on criminal history may violate state law prohibitions on racial discrimination. The regulation closely tracks a 2012 guidance issued by the U.S. Equal Employment Opportunity Commission, which asserts that consideration of criminal history by employers violates Title VII of the federal Civil Rights Act when it adversely impacts racial minorities and is not job-related or consistent with business necessity.
The California regulation adopts, in broad terms, the same position and standards put forth in the EEOC guidance, but applies them to the state’s Fair Employment and Housing Act (FEHA), which prohibits employment discrimination on grounds that are substantially similar to those enumerated in Title VII. Like the EEOC guidance, the new FEHA regulation sets forth a number of factors used to determine whether a particular practice is job-related and consistent with business necessity, including whether it takes into account “the nature and gravity of the offense,” “the time that has passed since the offense,” and “the nature of the job held or sought.”
The fact that the regulation was promulgated by the state’s Department of Fair Housing and Employment, which may sue to enforce the FEHA, may give California employers that have not already conformed their practices to the EEOC guidance an incentive to do so. Moreover, the new regulation ought to make it easier for individuals to challenge criminal history screening practices by giving them a clear basis for action under California law.
A federal judge in San Francisco has dismissed a constitutional challenge to the recently enacted International Megan’s Law, which requires specially-marked passports for registered sex offenders whose offenses involved child victims, and authorizes notification to foreign governments when they travel. The so-called “Scarlet Letter” law is specifically aimed at stopping child sex trafficking and sex tourism, and this purpose was evidently enough to justify it even though it has a far broader effect.
Last week a federal judge heard the first arguments in a lawsuit challenging certain provisions of the recently-enacted International Megan’s Law (IML),* including one mandating that the passport of any American required to register for a sex offense involving a minor be marked in “a conspicuous location” with a “unique identifier” of their sex offender status. Other challenged provisions of the law authorize the Departments of Homeland Security and Justice to notify destination nations of forthcoming visits from those individuals. On Wednesday the court heard a motion for a preliminary injunction that would block enforcement of the challenged provisions of the law pending the suit’s final outcome. See Doe v. Kerry, Case 3:16-cv-00654 (N.D. Ca.).