Amicus briefs and other case materials

Federal

  • Benedict v. McMahan, E.D.P.A. (Effect of expungement order in civil proceeding)
  • United States v. Nesbeth, E.D.N.Y. (Collateral consequences and sentencing)
  • Guerrero v. California Dept. of Corrections & Rehabilitation, 9th Cir. (Judicial deference to EEOC guidance on Title VII and employment background checks)
    • Amicus brief of NAACP Legal Defense & Educational Fund, et al. (April 27, 2016)
  • Doe v. Kerry, N.D. Cal. (International Meghan’s Law; Passport identifier)
  • Gillette v. Uber, N.D. Cal. (Criminal background checks/FCRA)

Georgia

Illinois

New York

  • Boone v. NYC Dept. of Education, N.Y. Sup. Ct., NY County (Criminal record-based employment discrimination)

 Pennsylvania 

  • Peake v. Pennsylvania, Pa. Commw. Ct. (Healthcare employment bars)

Related blog posts:

  • Update on federal firearms restoration program (11/4/2025) - 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 (8/24/2021) - 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” (11/23/2020) - 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. As of this writing, in nearly half the states (21 states), LFOs have no bearing on reenfranchisement.  In a number of others (15 states), regaining the vote is tied to completion of supervision, which may give courts and supervision officials some discretion to delay reenfranchisement if LFOs have not been paid, but not to deny it permanently. Moreover, officials in many of these “delay” states must consider ability to pay in determining whether to extend supervision, and officials may consider ability to pay in others. In total, 10 states deny the vote to at least some people who have otherwise completed all aspects of their sentence, but still owe LFOs. Of these 10, only 3 states including Florida have laws mandating indefinite denial of the vote to any person with any unpaid LFOs from a disqualifying conviction, even if the person has completed all non-financial requirements of the sentence, and regardless of ability to pay.  The other 7 states indefinitely deny reenfranchisement because of unpaid LFOs, but only in certain cases.  An impressive new report prepared for the Sentencing Project estimates that 5.2 million Americans remain disenfranchised due to a felony conviction, including an estimated 900,000 Floridians who have otherwise completed their felony sentences, but still owe LFOs; the authors of that report have not been able to provide firm estimates on the number of people adversely affected by the LFO policies in the 9 other states, but note that they "serve as an additional driver of disenfranchisement."[1] Four states handle reenfranchisement exclusively through a discretionary exercise of constitutional clemency.  The governors of 3 of these states currently exercise their clemency power on a broad basis to reenfranchise most individuals who have completed incarceration and supervision time, without regard to payment of LFOs. Our report, which includes legal citations, is available at this link. [1] Chris Uggen, Ryan Larson, Sarah Shannon, and Arleth Pulido-Nava, Locked Out 2020: Estimates of People Denied Voting Rights Due to a Felony Conviction, Sentencing Project (Oct. 30, 2020), https://www.sentencingproject.org/publications/locked-out-2020-estimates-of-people-denied-voting-rights-due-to-a-felony-conviction/.
  • “The Many Roads to Reintegration”: A 50-state report on laws restoring rights and opportunities (9/8/2020) - 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. Voting, Record Relief, Employment & Licensing The report considers remedies for three of the four main types of collateral consequences: loss of civil rights, dissemination of damaging record information, and loss of opportunities and benefits, notably in the workplace.[1] Its first chapter finds that the trend toward restoring the vote to those living in the community—a long-time goal of national reform organizations and advocates—has accelerated in recent years. Further reforms may be inspired by the high-profile litigation over Florida’s “pay-to-vote” system, which shines a national spotlight on financial barriers to the franchise. This chapter also finds that systems for restoring firearms rights are considerably more varied, with many states providing relief through the courts but others requiring a full pardon. The second chapter deals with laws intended to revise or supplement criminal records, an issue that has attracted the most attention in legislatures but that has benefited the least from national guidance. It is divided into several parts, based on the type of record affected (conviction or non-conviction) and the type of relief offered (e.g. pardon, expungement, set-aside, certificates, diversion, etc.). The wide variety in eligibility, process, and effect of these record relief laws speaks volumes about how far the Nation is from common ground. The third chapter concerns the area in which perhaps the most dramatic progress has been made just since 2018: the regulation of how criminal record is considered by public employers and occupational licensing agencies. Legislatures have been guided and encouraged by helpful model laws and policies proposed by two national organizations with differing regulatory philosophies: The Institute for Justice, a libertarian public interest law firm, and the National Employment Law Project, a workers’ rights research and advocacy group. Regulation of private employment has also been influenced by national models, although to a lesser extent and more needs to be done in this area. This report makes clear that substantial progress has been made in the past several years toward devising and implementing an effective and functional system for restoring rights and status after arrest or conviction. The greatest headway has been made in restoring rights of citizenship and broadening workplace opportunities controlled by the state. The area where there is least consensus, and that remains most challenging to reformers, is managing dissemination of damaging criminal record information. Time will tell how the goal of a workable and effective relief system is achieved in our laboratories of democracy. Grading and Ranking the States After our discussion of each type of relief, we assign a grade to each state, D.C., and federal law. In an appendix, we collate these grades to produce a ranking of states and D.C. on the nine categories that we graded.[2] That ranking is below. Our grading judgments deserve a comment. Gabriel Chin’s introduction to the report describes the operational features of a desirable relief system: accessible, effective, coordinated, fair, and administrable. Because we have not studied the actual operation of the relief systems in the report, we cannot say for certain whether or to what extent any of them deliver on these five features. Our grades are based solely on the text of each state’s law, leaving more nuanced judgments to practitioners, researchers, and the law’s intended beneficiaries. Hopefully, these grades will challenge, encourage, and inspire additional reforms in the months and years ahead. National Ranking of Restoration Laws 1 2 3 4 5 5 7 8 8 10 10 12 12 12 15 15 17 18 18 18 18 18 23 23 23 26 27 27 27 30 30 32 33 34 35 36 36 36 39 40 41 42 42 44 44 46 46 48 49 50 51 Illinois California Utah Minnesota Connecticut Nevada Colorado Delaware New York North Dakota Pennsylvania New Hampshire New Jersey Oklahoma Massachusetts New Mexico Indiana Louisiana Nebraska Rhode Island Vermont Washington Arkansas Kentucky Ohio North Carolina Idaho Michigan Tennessee Missouri Wisconsin Georgia Mississippi Hawaii Maryland Arizona Oregon South Carolina Maine District of Columbia Kansas Montana West Virginia South Dakota Virginia Iowa Wyoming Texas Alabama Alaska Florida *On October 5, 2020, some grades and rankings were revised, based on further review for our new resource: “The Reintegration Report Card.” NOTES [1] This report does not cover the fourth main type of consequence: limits on personal freedom—including sex offender registration, civil commitment, and immigration consequences. Relief mechanisms for these are quite complex and built into the law of each issue. We offer a 50-state comparison chart for relief from sex offender registration, https://ccresourcecenter.org/state-restoration-profiles/50-state-comparison-relief-from-sex-offender-registration-obligations/. For resources on immigration consequences, see https://www.ilrc.org/crimes. With respect to the third type of consequence: loss of opportunities and benefits, this report covers laws providing relief for employment and occupational licensing (the two areas most subject to relief under state law), but does not cover housing, government benefits, or other opportunities. [2] The nine categories graded are: loss and restoration of the vote, pardon, conviction relief (felony and misdemeanor graded separately), judicial certificates, deferred adjudication, non-conviction records, employment, and occupational licensing. In determining these rankings, each of the nine categories was assigned equal weight, except that deferred adjudication and certificates of relief were each assigned 50% weight. We did not grade restoration of firearms rights because the laws were too varied to helpfully compare.
  • CCRC research featured in Florida felony voting case briefs (8/11/2020) - 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. These amicus briefs are part of high-stakes federal litigation over Florida'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 state constitutional amendment 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, the federal district court held that Florida’s scheme is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment as applied to all those who are unable to pay legal financial obligations (“LFOs”), a large percentage of the disenfranchised population.  (A preliminary ruling to this effect, which applied only to 17 individual plaintiffs, was upheld by a panel of the Eleventh Circuit at an earlier stage of the case).  The district court also held that conditioning voting rights on payment of fees and costs is unconstitutional under the Twenty-Fourth Amendment’s prohibition on “any poll tax or other tax.” The district court ordered a process to allow people to register and vote unless the state can show precisely what each person owes and make a credible assertion that they have the ability to pay the amount.  However, the Eleventh Circuit stayed the order pending appeal and the Supreme Court declined to lift the stay, with three justices dissenting in a written opinion. The case is currently on appeal in the Eleventh Circuit, where the full court has agreed to hear the case en banc.  An amicus brief filed by Texas, joined by seven other states, asserts that “States across the country have similar rules [to Florida] for felon voting” and that the district court’s holding “called into question” what Texas deems “th[e] widespread practice” of “permitting re-enfranchisement [only] for felons who have paid their debts to society.” To rebut this argument, an amicus brief from a coalition of 20 U.S. jurisdictions, led by the District of Columbia and Illinois, draws upon CCRC's 50-state survey of financial barriers to voting.  The brief makes clear that: "only two States in addition to Florida indefinitely deny the right to vote to any returning citizen who has not fully paid his or her LFOs. The vast majority of States have not imposed such a severe burden, and many in recent years have taken additional measures to expand the franchise and facilitate restoration."  The brief contends, therefore, that the district court's decision "does not forebode a reversal of the clear trend among the States toward re-enfranchisement of former felons or endanger the many kinds of state systems that promote restoration of the right to vote."  (Our brief raises similar arguments.)  The states' brief also argues that restoring the vote promotes reintegration and public safety, whereas restrictive laws like Florida's disproportionately harm low-income individuals and  minority communities, without any evidence that they actually promote payment of debt.  Such harm is especially acute in Florida, which has not established a workable system for determining what, if anything, individuals owe. Another brief for four organizations (the Fines and Fees Justice Center, Cato Institute, R Street Institute and Florida Association of Criminal Defense Lawyers) argues that "Florida knows most of the plaintiffs will never be able to afford to pay these LFOs, and in many instances the state is unable even to calculate the amount owed, but conditions the fundamental right to vote on their payment."  The brief asserts that Florida's LFO requirement is "an extreme measure by a state aggressive in imposing LFOs on criminal defendants.  The state's proliferation of LFOs has kept a substantial number of Floridians in poverty, and the collateral consequences of their felony convictions exacerbate their continued inability to pay their LFOs."  Documenting how Floridians with felonies struggle to find and maintain employment, or earn enough income to pay off court debts, the brief cites among other things our research that Florida does not restrict private employers from inquiring about criminal history on job applications. Two members of CCRC’s board—Professors Jack Chin and Nora Demleitner, of the U.C. Davis and Washington & Lee law faculties, respectively—joined 91 other law professors on an amicus brief.  They argue that Florida's demonstrated failure to implement Amendment 4 in a constitutionally-permissible fashion necessitated the district court's "fair, necessary, and workable" remedy.  They also argue that even if the appeals court were to find that the district court exceeded its authority in crafting a remedy, Amendment 4 as a whole must be upheld, and unconstitutional aspects related to court debt should be severed. Additional briefs, including from election administrators and former federal civil rights officials, are available at the Brennan Center's case page. The case is scheduled for oral argument in the court of appeals on August 18, ironically the day of Florida’s primary.
  • CCRC urges 11th Circuit to uphold Florida felony voting decision (8/4/2020) - 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. After a group of voters and organizations sued, the federal district court held that Florida’s scheme is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment as applied to all those who are unable to pay legal financial obligations ("LFOs"), a large percentage of the disenfranchised population.  (A preliminary ruling to this effect, which applied only to 17 individual plaintiffs, was upheld by a panel of the Eleventh Circuit at an earlier stage of the case).  The district court also held that conditioning voting rights on payment of fees and costs is unconstitutional under the Twenty-Fourth Amendment’s prohibition on “any poll tax or other tax.” The district court ordered a process to allow people to register and vote unless the state can show precisely what each person owes and make a credible assertion that they have the ability to pay the amount.  However, the Eleventh Circuit stayed the order pending appeal and the Supreme Court declined to lift the stay, with three justices dissenting in a written opinion. The case is currently on appeal in the Eleventh Circuit, where the full court has agreed to hear the case en banc.  An amicus brief filed by Texas, joined by seven other states, asserts that “States across the country have similar rules [to Florida] for felon voting” and that the district court’s holding “called into question” what Texas deems “th[e] widespread practice” of “permitting re-enfranchisement [only] for felons who have paid their debts to society.” Among the states whose rules Texas considers “similar” to Florida’s are states it claims “might” condition re-enfranchisement on payment of LFOs.  We argue that Texas' claims are "a dramatic and misleading exaggeration." In short: to the extent this Court is interested in learning what effect its ruling would have on the laws of other states if it were to be applied nationally, it is important that the facts be correct. And as we demonstrate in detail below, Texas gets the facts wrong. This Court should not hesitate to affirm the district court’s conclusion that Florida’s system is both unusual and unconstitutional. Our brief draws on our 50-state research to argue that only two other states, Alabama and Arkansas, share the specifics of Florida’s approach, and that a decision invalidating Florida’s regime would not, even if applied nationally, directly impact more than a handful of states’ reenfranchisement laws. Our brief also highlights the consistent and accelerating national legislative trend toward expanding the franchise for people with felony convictions.  This trend, we argue, is consistent with the district court’s conclusion that had Florida voters known that the financial payment requirement would be narrowed under the federal constitution, they likely “would have adhered to the more generous spirit that led to the passage of the amendment,” and passed Amendment 4 nevertheless. The appeal is scheduled for oral argument on August 18, ironically the day of Florida's primary. Our amicus brief is available here.  It includes as an appendix an abbreviated version of our research report.
  • Who Must Pay to Regain the Vote? A 50-State Survey (7/29/2020) - 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. The federal judge in the Florida litigation held that Florida's scheme is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment as applied to people who are unable to pay, a large percentage of the disenfranchised population. The judge also held that conditioning voting rights on payment of fees and costs is unconstitutional under the Twenty-Fourth Amendment's prohibition on “any poll tax or other tax.” The court found a further Catch-22 that makes Florida's system particularly hard to justify: the State has been unable to identify, for persons otherwise qualified for reenfranchisement, the precise amount of their LFO obligation, making it literally impossible for them to satisfy the law’s requirement even if they are financially able to. The State’s witness at trial testified that after months officials had been unable to determine this information even for the 17 named plaintiffs in the lawsuit, and estimated that it would not be able to provide this information about 85,000 pending registrations until 2026 at the earliest. The court ordered a process to allow people to register and vote unless the state can show precisely what each person owes and make a credible assertion that they have the ability to pay the amount. However, the Eleventh Circuit stayed this order pending appeal and the Supreme Court declined to lift the stay, with three justices dissenting in a written opinion. The case is scheduled for argument before the full en banc Eleventh Circuit on August 18, ironically the day of the Florida primary. An amicus brief filed by the State of Texas, joined by seven other states, asserts 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 will argue in our brief and show in the appended report, that is a considerable exaggeration and it should not influence the Court’s decision. A decision invalidating Florida’s unusual regime would not, even if applied nationally, directly impact more than a handful of states’ reenfranchisement laws. Our brief also highlights the consistent and accelerating national legislative trend toward expanding the franchise for people with felony convictions (a topic we reviewed at length in a recent post). The research in our report shows that in nearly half the states (20 states), LFOs have no bearing at all on reenfranchisement.  In most of the others (16 states), regaining the vote is tied to completion of supervision, which may give courts and supervision officials some discretion to delay reenfranchisement temporarily if LFOs have not been paid, but not to deny it permanently. Moreover, officials in many of these "delay" states already must consider ability to pay in determining whether to extend supervision, and officials may consider it in others. In other words, these 16 states generally have a safety valve that allows people who are unable to pay to obtain relief. Only 3 states including Florida have laws mandating indefinite denial of the vote to any person with any unpaid LFOs from a disqualifying conviction, even if the person has completed all non-financial requirements of the sentence, and regardless of ability to pay. An additional 7 states also indefinitely deny reenfranchisement because of LFOs, but only in certain cases. Four states handle reenfranchisement exclusively through a discretionary exercise of constitutional clemency, which presents different issues than systematic reenfranchisement schemes. Our report, which includes legal citations, is available at this link.
  • SBA throws in the towel and Congress extends the PPP deadline (7/7/2020) - 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! Specifically, the federal court held that the SBA's criminal history exclusions issued in April 15 and June 12 regulations were likely arbitrary and capricious because they "contain no explanation for the criminal history exclusion."  In contrast, the court found that the June 24 regulation "provides a reasoned explanation for a more limited criminal history exclusion."  The more limited exclusion excludes applicants who answer yes to either of the following questions, per the current application form: 5. Is the Applicant (if an individual) or any individual owning 20% or more of the equity of the Applicant presently incarcerated or, for any felony, presently subject to an indictment, criminal information, arraignment, or other means by which formal criminal charges are brought in any jurisdiction? 6.  Within the last 5 years, for any felony involving fraud, bribery, embezzlement, or a false statement in a loan application or an application for federal financial assistance, or within the last year, for any other felony, has the Applicant (if an individual) or any owner of the Applicant 1) been convicted; 2) pleaded guilty; 3) pleaded nolo contendere; or 4) commenced any form of parole or probation (including probation before judgment)? "I am grateful for a legal outcome that gives me a chance to apply for this loan instead of excluding me unfairly because of my former incarceration," said Sekwan Merritt, one of the plaintiffs, owner of Lightning Electric.  "It is critical for business owners like myself to have the same opportunity to get this crucial funding." "The SBA must not repeat this injustice in any future aid programs, and we hope that the clear message sent by today’s ruling will insure that they won’t," said Claudia De Palma, staff attorney at the Public Interest Law Center.  "The ruling rightly calls the SBA's previously broad exclusions of business owners with criminal records unlawful," said ReNika Moore of the ACLU.  "The SBA must do away with policies that exclude Black and Brown entrepreneurs." Experience in the past three months has shown how counterproductive such policies can be.  People turn their lives around and start small businesses, only to be shut out of emergency assistance programs with little or no explanation. These restrictions also result in disparate racial impacts, given longstanding institutional racism in the criminal justice system.  A study conducted by three economists and published by University of Michigan Institute for Social Research, looked at data from seven states and found that the SBA's original PPP criminal history exclusions had a disparate impact, with Black and Hispanic men, and Black women, experiencing higher than average exclusion from PPP eligibility. Looking ahead to what small business owners with records may expect from the SBA in the future, we will work to ensure that SBA does not forget the lessons learned during the past three months.  At a minimum, the SBA should accord the same treatment to applications from people with criminal records under future stimulus programs, as well as the regular 7(a) and 7(b) small business loan programs, as it is now willing to accord them in the final stage of PPP applications.  We will continue to work for the elimination of all categorical bars based on criminal record for small business funding, occupational licenses, and other government benefits.  But for this stage, it was a good outcome all around thanks to the many people who would not take no for an answer!
  • New efforts to channel federal relief to small business owners with a record (5/20/2020) - *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.  Public Comments Urge SBA To Rescind its Restrictions The SBA’s Interim Final Rule for the Paycheck Protection Program has come under scrutiny during the public comment period, which concluded on Friday.  Collectively, more than 65 organization wrote five comments in opposition to the criminal history exclusions. The Interim Final Rule makes ineligible for PPP relief any individual who owns 20% or more of the equity of a business and is presently incarcerated, on probation, on parole, or subject to charges.  Additionally, the regulation as supplemented by the PPP application form makes ineligible any owner of a business if they have in the last 5 years, for a felony: 1) been convicted; 2) pleaded guilty; 3) pleaded nolo contendere; 4) been placed on pretrial diversion; or 5) been placed on parole or probation. The first public comment, filed on behalf of a diverse bipartisan group of organizations, including our own, calls on SBA to rescind or modify its “needlessly restrictive and unfairly discriminatory” rules. The comment highlights that many people with a record, facing challenges in securing employment, have established their own small businesses and hired many employees with a record.  “Driving them out of business will result in a severe impact on employment of a population that is already disadvantaged in the workplace.”  The comment also points out the particularly adverse impact on business owners and employees of color, “arrested and convicted at disproportionately high rates due to institutional racism, ensuring that business owners of color will be disproportionately excluded from critical economic assistance.” Finally, the comment articulates how the SBA’s exclusions are contrary to the intent of Congress in enacting the CARES Act, which calls for relief on an emergency basis and includes a specific provision that “any business concern … shall be eligible” for relief if it has the requisite number of employees.  The comment argues that the SBA’s rules are not only at odds with the CARES ACT, but also “inexplicably depart from prior [SBA regulations] and are unsupported by any explanation.” The comment cites three recent federal court decisions to suggest that the SBA may lack statutory authority to impose the exclusions at issue: A federal court in Michigan found unlawful a different SBA rule that made certain categories of businesses ineligible for PPP—including banks, lobbying firms, certain private clubs, and sexually oriented businesses providing “prurient” products. See DV Diamond Club of Flint, LLC, et al. v. United States Small Business Administration, et al., No. 20-CV-10899, 2020 WL 2315880, at *1 (E.D. Mich. May 11, 2020).  The court held that because Congress made PPP funds available to “all” small business that satisfy the eligibility requirements in the CARES Act with respect to number of employees, the SBA’s more restrictive eligibility rules (drawn from exclusions in preexisting SBA policies) unlawfully exceed the statute.  This reasoning would seem to apply equally to the SBA’s criminal history exclusions. Two federal bankruptcy courts, one in New Mexico and one in Texas, held that the SBA’s decision to exclude bankrupt debtors, an exclusion not in the CARES Act, was arbitrary and capricious, and in excess of statutory authority. See In re: Roman Catholic Church of the Archdiocese of Santa Fe, No. 18-13027 T11, 2020 WL 2096113 (Bankr. D.N.M. May 1, 2020); In re Hidalgo County Emergency Service Foundation, Case no. 19-20497; Adv. pro. No. 20-2006, 2020 WL 2029252 (Bankr. S.D. Tex., Apr. 25, 2020). The comment urges the SBA to immediately remove the ineligibility for persons charged with a crime: “Punishing individuals who have not been convicted of wrongdoing in a court of law is fundamentally unfair and jeopardizes the economic well-being of thousands of employers and employees.”  The group urges the SBA to rescind the 5-year ineligibility period for individuals convicted of a felony, placed on pretrial diversion/probation/parole for a felony, or currently on probation or parole.  To the extent the SBA has authority to restrict eligibility for PPP beyond the criteria in the CARES Act itself, they should be limited to felony convictions for financial fraud from the past 3 years, subject to an individualized assessment and waiver. A second comment by the Institute for Justice Clinic on Entrepreneurship illustrates the real world impacts of the SBA’s rules and policies, which may “arbitrarily wipe out” all that entrepreneurs with criminal histories have built: businesses that employ workers, create wealth, and provide goods and services to their communities.  The comment articulates the importance of entrepreneurship for those with criminal histories and describes the stories of individuals who started small businesses. A third comment by Citizens for Juvenile Justice and 37 other organizations emphasizes language in the CARES Act that directs the SBA to prioritize relief for “socially and economically disadvantaged individuals,” which the comment argues includes persons with criminal records.  Excluding a class of persons simply based on involvement in the criminal justice system, or unadjudicated allegations, “is not only contrary to law, it is wrong,” and “perpetuate[s] long-standing forms of racial and ethnic discrimination.” A fourth comment by Americans for Prosperity (filed under a related regulation) argues that the SBA’s criminal history exclusion is “contrary to the text, structure, and purpose of the CARES Act,” raises due process concerns as applied to those only charged with crimes, and “is poor public policy with an overbroad sweep that harms otherwise deserving small businesses and their employees.” Finally, the National Center for Transgender Equality filed a comment asserting that the SBA’s rules are not based in the statute and should be revised to reflect only statutory eligibility requirements. Possible Administrative Change In April, Treasury Secretary Steven Mnuchin defended the SBA restrictions, stating that the Administration would not voluntarily change them.  But on May 13, the New York Times reported that Senator Cory Booker had raised with Mnuchin the issue of regulations barring some people with records from getting PPP loans.  According to a Senate aide, Mnuchin was “receptive to easing the restrictions” on applicants with felony records from the last five years. The HEROES Act Would Constrain the SBA Even if the SBA does not amend its policies, Congress may force its hand. In April, 16 members of Congress issued letters criticizing the SBA’s criminal history exclusions, including a bipartisan letter by Senators Rob Portman and Ben Cardin, a joint letter by Reps. Joyce Beatty and Joe Kennedy III, a letter by Senator Jeffrey Merkley, and a letter by Rep. Cedric Richmond and 10 other members. This past Friday, the House enacted the HEROES Act, which includes language drawing on Reps. Joyce Beatty and Joe Kennedy III’s Fair Chance for Small Business Relief Act, which would explicitly curtail the SBA’s authority to deny PPP and EIDL relief based on criminal history. As to PPP relief, the bill would allow the SBA to deny a loan if an owner of 20 percent or more equity was convicted of felony financial fraud or deception in the previous 5 years.  However, other criminal history would not disqualify an applicant unless such an owner is currently incarcerated.  See H.R 6800, Sec. 90001(j).  This provision would significantly roll back the PPP exclusions discussed above, and analyzed in greater detail in previous postings collected on our small business relief resource page. As to EIDL relief, the HEROES Act would require that the SBA's application forms include a statement making clear that an applicant for these disaster advances and loans is not ineligible “solely because of the applicant’s involvement in the criminal justice system.”  See H.R 6800, Sec. 90009.  Currently, it appears that the SBA is denying COVID-19-related EIDL relief to applicants who have ever been arrested for a felony or who have been arrested for a misdemeanor in the last 10 years.  We read the HEROES Act provision to prohibit the SBA from denying disaster relief to any otherwise eligible person based upon their criminal record, an even broader restriction than would apply to the PPP program. While the HEROES Act in its entirety is unlikely to become law in its current form, if these two provisions make it through the next round of negotiations in the Senate, they would dramatically expand access to critical relief for many small business owners, nonprofits, and independent contractors that the SBA has unfairly been excluding in the past.  They would mark a breakthrough in the federal government's approach to securing fair treatment for people with a record.  While last year's Fair Chance Act was an important step in opening doors to federal agency and contractor employment by limiting background inquiries in the early stages of hiring, this would be the first time in decades that Congress has directly prohibited record-based discrimination in a major government benefit program.  We will have more to say on that subject if and when the law is enacted with these provisions in it.
  • 11th Circuit declines to rehear decision upholding felony voting rights (4/1/2020) - 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. 11th Circuit upholds voting rights for Floridians unable to pay fines and fees February 20, 2020 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. Amendment 4 restored the right to vote in Florida to people convicted of felonies, other than murder or sexual offenses, upon “completion of all terms of sentence including parole or probation.”  A major question emerged soon after its passage as to whether people who had completed their time in custody and supervision, but who still owed court-imposed financial obligations, would be eligible to vote.  In 2019, the Florida legislature passed a law interpreting “completion of sentence” to include payment of fines, fees, and restitution (SB 7066).  See Fla. Stat. § 98.0751.  The Florida Supreme Court recently agreed in an advisory opinion sought by the governor that the ballot initiative’s reference to “completion of all terms of sentence” includes all “legal financial obligations” (“LFOs”) imposed in conjunction with a sentence. Also in 2019, a number of individuals and organizations brought lawsuits in federal court seeking to strike down these financial barriers and/or to provide relief for those unable to identify or satisfy court debt.  In October, the federal district judge overseeing the lawsuits issued an preliminary injunction, holding that Florida cannot deny the 17 named plaintiffs their right to vote “so long as the state’s only reason for denying the vote is failure to pay an amount the plaintiff is genuinely unable to pay.”  The court placed the burden of proof on each of the plaintiffs to demonstrate their inability to pay their LFOs, even while it recognized that this might prove difficult given the disorganized state of many criminal records.  In this regard, it noted that “Florida’s records of the financial obligations are decentralized, often accessible only with great difficulty, sometimes inconsistent, and sometimes missing altogether.”  The district court deferred addressing this and other process issues until after trial, giving the legislature an opportunity to address the process for determining inability to pay on its own.  The state appealed. A three-judge panel of the Eleventh Circuit issued a unanimous 78-page decision affirming the lower court decision.  The panel agreed with the district judge that—as applied to 17 plaintiffs who cannot afford to pay their court debts—withholding the vote until all legal financial obligations are paid is unconstitutional discrimination on the basis of wealth.  Whereas individuals who can afford to pay their court debts are automatically restored the vote, indigent individuals are denied this right.  In reaching this conclusion, the appeals court applied a heightened form of constitutional scrutiny, along the lines recommended by UCLA professor Beth Colgan.  That decision is a major victory for the plaintiffs, but the appeals court did not stop there. The appeals court also provided a roadmap for the district court to strike down the obligation to pay LFOs in its entirety, directing further fact-finding on the issue of its validity.  The court opined that if most people with felony convictions owe court debt that they are unable to pay, it may be unconstitutional to require anyone to satisfy court debt as a condition of regaining the vote: “[I]f the [legal financial obligation requirement] is irrational as applied to those felons genuinely unable to pay, and those felons are in fact the mine-run of felons affected by this legislation, then the requirement may be irrational as applied to the class as a whole.” While the court could not definitively reach that conclusion as to the Florida law at this pretrial stage of the proceedings, it observed that certain evidence already in the record “casts a shadow on the State’s theory that the impecunious plaintiffs are the exception rather than the rule.”  That evidence includes: (1) expert testimony that 80.5% of more than 500,000 people with felony convictions (a large sample from 58 of the 67 Florida counties) had outstanding court debt; (2) a state report finding that Florida criminal court debt is collected at a rate of 20.55%; and (3) statements by the legislature that most criminal defendants are indigent.  Based on the evidence, the court deemed it plausible that after further fact-finding it may be appropriate to strike the entire LFO obligation requirement from Amendment 4.  Such a move would immediately restore the vote to hundreds of thousands of Floridians who have completed their custody and supervision time, but still may owe court debt.  It could also have major ramifications in states that impose similar financial barriers to the ballot box (described in footnote 5 of the appeal’s court’s decision).