Restoration of Rights Project – Florida Profile
Guide to restoration of rights, pardon, sealing & expungement following a Florida criminal conviction
Florida Juvenile Collateral Consequences Checklist
2013 guide by the Juvenile Justice Center
Related blog posts:
- Loss and restoration of voting and firearms rights after conviction: A national survey (7/24/2020) - *Update (9/8/20): the full national report, "The Many Roads to Reintegration," is now available. Earlier today we announced the forthcoming publication of a national report on mechanisms for restoring rights and opportunities following arrest or conviction, titled "The Many Roads to Reintegration." As promised, here is the first chapter of that report on loss and restoration of voting and firearms rights, a subject that needs little or no introduction. The research, drawn from the Restoration of Rights Project, reveals a trend since 2015 toward expanding opportunities to regain the vote that has accelerated just in the past two years. This trend seems particularly timely in light of the pending constitutional challenge to Florida's restoration system, which raises the question whether the state may constitutionally require people to pay outstanding legal financial obligations (LFOs) before being allowed to vote, even if they cannot afford to do so. There are now only two states in addition to Florida in which the vote is permanently lost for those unable to pay all LFOs associated with a disqualifying conviction. An additional seven states permanently deny the vote for those unable to pay certain types of LFOs. (Early next week, we will publish a report surveying state laws and practices on this issue, which will be included in abbreviated form in an amicus brief we plan to file in the court of appeals in support of the Florida plaintiffs.) In contrast to voting rights law, there has been almost no change in the past half dozen years in how state and federal law treats firearms restoration after conviction. In most states, firearms dispossession remains indefinite for anyone convicted of a felony, and restoration depends upon petitioning a court for discretionary relief or asking for a pardon. In 11 of the 26 states in which all firearms rights are permanently lost upon conviction of any felony, and for those with a federal conviction, a pardon is the exclusive restoration mechanism. A PDF of this chapter is available here. Coming next week, the report's chapter on "Employment and Occupational Licensing." I. Loss and Restoration of Voting and Firearms Rights[1] A. Voting rights The loss and restoration of the right to vote after a conviction depends upon state law, including for people with federal convictions.[2] The Supreme Court has ruled that the Fourteenth Amendment to the Constitution permits states to permanently deny the vote based on a felony conviction.[3] That said, most states do not go so far. In two states (Vermont and Maine) conviction never results in loss of the right to vote. In 22 states and the District of Columbia the vote is lost only if a conviction (usually a felony) results in incarceration.[4] In all but five of those 22 states, the period of disenfranchisement coincides with the period of actual incarceration.[5] In the one of the five (Louisiana), reenfranchisement is delayed for a period after release.[6] In the remaining four states (California, Connecticut, Idaho, and New York) disenfranchisement continues through parole—except that parolees in New York have since 2018 been allowed to vote while by virtue of executive pardon.[7] Another 22 states provide for loss of vote for a range of felony and certain misdemeanor convictions and restore the vote automatically either when a person completes the sentence or is discharged from supervision.[8] Nine of these 22 states require a person to pay some or all conviction-related “legal financial obligations” (LFOs) (fines, fees, and restitution) before regaining the franchise.[9] In 12 of the remaining 13 states in this group, discharge from supervision restores the vote, and LFOs may result in a scenario of delayed restoration of rights, depending on a person’s ability to pay.[10] The wealth-based discrimination inherent in conditioning voting on payment of LFOs has been challenged on constitutional grounds in several states, notably including Florida.[11] Since Florida amended its constitution in 2018 to restore the vote automatically upon completion of sentence,[12] only four states (Iowa, Kentucky, Mississippi, and Virginia) now rely exclusively on the discretionary exercise of a constitutional power to restore the vote. These states have pursued differing restoration policies in recent years, with two (Virginia and Kentucky) restoring rights on an automatic or quasi-automatic basis, one (Iowa) restoring on a case-by-case basis through a petition-based system, and the fourth (Mississippi) showing no interest in restoration of the vote.[13] All four of these “discretionary” states make provision for restoring the vote to people with federal or out-of-state convictions.[14] This national landscape reflects a growing consensus in the states that restoration of the vote is an important aspect of criminal justice reform.[15] Since 2015, there has been a national trend toward expanding the franchise through changes in law and policy. During this five-year period, 17 states and the District of Columbia have enacted a total of 26 laws either limiting disenfranchisement or encouraging the newly enfranchised to vote. Of the 17, eight states revised their restoration laws to remove barriers related to supervision: Colorado, Maryland, Nevada and New Jersey limited disenfranchisement to a period of actual incarceration,[16] Louisiana restored the franchise to anyone who has not been incarcerated in the last five years pursuant to an “order of imprisonment” for a felony,[17] and three additional states (Delaware, Washington, and Arizona) removed an explicit financial payment condition from their restoration laws.[18] Two more states (California and Oklahoma) and the District of Columbia removed barriers to voting related to incarceration or waiting periods,[19] and three additional states (Arkansas, Florida, and Wyoming) ended indefinite disenfranchisement for at least some individuals.[20] Finally, two states passed laws initiating the process of constitutional amendment to enact (Iowa) or expand (California) automatic re-enfranchisement.[21] In addition to measures expanding voter eligibility, five states passed laws requiring corrections officials to educate and inform people in prison or on supervision about their voting rights.[22] More than half of the these new laws were enacted after January 1, 2019, so the trend toward making more convicted individuals eligible to vote appears to be accelerating. This trend toward restricting penal disenfranchisement is also evident in clemency policy. Since 2015, four governors have used their pardon power systematically to restore the vote and remove financial or supervision requirements.[23] During this same five-year period only one state acted to extend penal disenfranchisement. Florida’s June 2019 passage of SB7066, conditioning voting rights on full payment of LFOs, even if they have been converted to a civil lien, severely curtailed the ballot initiative by which 65% of state voters had approved automatic re-enfranchisement of most Floridians with a felony record just six months earlier.[24] SB7066 has been challenged on federal constitutional grounds, along with the ballot initiative, which was later interpreted by the Florida Supreme Court to itself require payment of LFOs.[25] Challenges have also been brought against laws mandating payment of LFOs as a condition of regaining the vote in Alabama and North Carolina.[26] The Collateral Consequences Resource Center plans to file a friend of the court brief in the Florida litigation documenting the nationwide frequency with which unpaid LFOs may delay restoration of the vote or deny it indefinitely.[27] This brief will document that in twenty states and the District of Columbia, LFOs have no bearing on eligibility to vote, and in 16 states LFOs potentially affect only the timing of re-enfranchisement.[28] In some of these 16 states courts are required to consider ability to pay in setting and enforcing terms of supervision, and in others they have discretion to do so. Of the four states that handle restoration of rights exclusively through the discretionary exercise of constitutional clemency, three currently have governors who evidently do not regard unpaid LFOs as disqualifying.[29] Accordingly, there are at present only ten states whose laws mandate permanent disenfranchisement based on some or all outstanding court debt, regardless of ability to pay. And only three of these states including Florida require payment of all LFOs associated with a disqualifying conviction; the remaining seven states require payment of certain financial obligations.[30] In summary, at mid-2020 the trend in state legislatures to expand opportunities for reenfranchisement rivals the trend toward expanding opportunities for people with a criminal record in the workplace. Excluding Florida’s SB 7066, it has been almost a decade since any state passed a law narrowing access to the ballot box based on conviction.[31] The law in almost half the states now reflects an appreciation of the social and economic value of allowing all those who are living in the community to participate in its governance. Restoring the vote “may facilitate reintegration efforts and perhaps even improve public safety,” providing benefits both to individuals with a record and more broadly to their communities.[32] A system linking penal disenfranchisement to actual incarceration is both easier to justify and easier to administer than a system that links the vote to other aspects of the sentence, much less one that makes voting depend upon a person’s ability to pay. Recognition of the real and symbolic importance of making voting rights part of a reintegration agenda is nothing new. Forty years ago, national law reform organizations like the Uniform Law Commission and the American Bar Association advocated for limiting and even abolishing felony disenfranchisement.[33] Perhaps the country is slowly coming to that view. We agree with those who see no legal rationale or social justification for felony disenfranchisement, and few if any practical obstacles to allowing even prisoners to vote.[34] This remnant of ancient civil death and Jim Crow should have no place in the modern American polity. B. Firearms Rights In every state except Vermont, the right to possess at least some firearms is lost after conviction of at least some felonies. Even in Vermont, a court may prohibit firearm possession as a condition of granting probation. The 50-state chart from the Restoration of Rights Project[35] attempts to chart a way through legal terrain that is even more complex and potentially treacherous than the one that governs penal disenfranchisement. It is more complex because federal law superimposes another layer of regulation on firearms possession after conviction, and because the right to possess firearms has a degree of constitutional protection even for people who are dispossessed by virtue of a conviction. It is more treacherous because the risk of criminal prosecution by one or both sovereigns is very real, while prosecutions for mistaken voting are considerably rarer (though even these have increased in recent years). Furthermore, while each state is entitled to enforce its own law on firearms dispossession within its borders, it is uncertain what effect relief granted in one jurisdiction will be given in another.[36] Just to sketch the general state law picture, in 28 states a person convicted of any felony loses the right to possess any firearm. A few of these 28 states extend dispossession to violent misdemeanors or domestic violence convictions. In 12 other states and the District of Columbia, only people convicted of specific crimes (usually violent, drug or sex crimes) lose any firearms rights. In six states (Alabama, Alaska, Connecticut, Indiana, Oklahoma, and South Carolina) only handgun rights are ever lost. In three states (Louisiana, New Jersey, and Tennessee) there are different rules for dispossession of long guns and handguns. In Vermont conviction does not affect the right to possess a firearm, but a court may prohibit a person from having a firearm as a condition of granting probation.[37] Provisions for regaining lost rights vary widely. In a minority of states dispossession is time-limited and restoration is automatic for at least some types of convictions. In 11 states, including Kansas, Michigan, Minnesota and Rhode Island, restoration is automatic for many convicted of nonviolent crimes as early as completion of sentence, or after a brief waiting period. In Montana, the only people not allowed to have firearms when they complete their sentences are those who used a dangerous weapon in their crime. In North Dakota, even people whose offense involved “violence or intimidation” automatically regain their firearms rights 10 years after completion of sentence. But in most states, firearms dispossession is indefinite, and everyone who lost rights must petition a court for discretionary relief or ask for a pardon. Some states mix and match the two approaches depending either upon the type of conviction or upon the type of firearm. In 11 of the 26 states in which all firearms rights are permanently lost upon conviction of any felony, a pardon is the exclusive restoration mechanism. In the other 15 states judicial relief is also authorized for at least some types of convictions, though expungement has a role in only a few (Arkansas, Missouri, Oregon, and Utah). Arizona reorganized its restoration scheme in 2019 so that courts may now grant relief for most felonies subject to differing waiting periods, but only the governor may restore rights to those convicted of “dangerous felonies.” In Tennessee, a pardon may restore rights to those who lost only handgun rights, but expungement is the only remedy available to those convicted of a violent or drug crime who lost all firearms rights. A few states (California, New York, Oklahoma) make no provision at all for restoring firearms rights to those convicted of violent crimes or offenses involving a dangerous weapon. According to a 2011 study by the New York Times of firearms restoration mechanisms across the country, courts in many jurisdictions restored rights with little consideration of an individual’s circumstances, while pardon boards and governors were more cautious. [38] Even so, the Georgia Board of Pardons and Parole grants between 200 and 300 pardons every year specifically restoring gun rights, and the Nebraska pardon board has reported dozens of firearms pardons granted each year.[39] Separate and apart from state dispossession laws, federal criminal law also restricts firearm rights and privileges based on conviction in any U.S. jurisdiction. Under federal law, no one may possess any firearm (other than an antique) after conviction of a felony punishable by more than one year’s imprisonment, a misdemeanor punishable by more than two years’ imprisonment, or a domestic violence misdemeanor.[40] For people with state-court convictions, the federal prohibition may be lifted by various state law relief mechanisms, including pardon, expungement, and general civil rights restoration (as long as the person is not barred from possessing firearms under state law), but the effect of specific state relief mechanisms on federal firearms rights is varied and complex.[41] In contrast, after a conviction in federal court, the federal ban can only be lifted by a presidential pardon.[42] The Supreme Court’s landmark 2008 decision in District of Columbia v. Heller, which recognized a federal constitutional right to possess a firearm “in defense of home and hearth,”[43] opened a new avenue of challenge to the application of dispossession statutes. Heller itself anticipated and sought to deflect such challenges by declaring them to be “longstanding” and “presumptively lawful,”[44] but some lower courts have characterized this statement as dictum, and scholars have questioned its historical accuracy.[45] One federal court of appeals has upheld an “as applied” challenge to the categorical firearm ban by two individuals with dated state misdemeanors, but another federal appeals court reached the opposite conclusion in the case of a man convicted of felony credit card fraud.[46] At least one state court has relied upon a “right to bear arms” provision of its state constitution in refusing to apply a newly enacted categorical dispossession statute to an individual whose conviction was decades old, when his firearm rights had been restored under an earlier law, and he had long since demonstrated rehabilitation.[47] In summary, in all but the six states that limit dispossession to handguns, conviction of some or all felonies results in loss of all firearms rights for varying periods of time, but usually indefinitely. At the same time, relief appears to be available in most states from the courts. However, in a substantial minority of states, and for all those convicted in federal court, the only way to regain firearms rights is through a pardon. To the extent dispossession is permanent or relief hard to obtain though this political channel, this collateral consequence looks more like punishment than regulation, and should be subject to constitutional challenges on this ground, particularly in light of recent Second Amendment jurisprudence. That courts are reluctant to go there is understandable, however, so it will be up to legislatures to devise acceptable and less complex forms of relief. *** [1] This report does not include a discussion of other civil rights lost because of conviction, notably the right to hold public office and the right to serve on a jury. In some states all three rights travel together, and in others they are handled differently. Interested readers are referred to the 50-state comparison chart from the Restoration of Rights Project, “Voting, Jury Service, Public Office & State Law on Firearms,” https://ccresourcecenter.org/state-restoration-profiles/chart-1-loss-and-restoration-of-civil-rights-and-firearms-privileges/. [2] In states where the right to vote is lost and regained by operation of law, federal and out-of-state convictions are generally subject to the same rules as in-state convictions. Connecticut is a notable exception. See Conn. Gen. Stat. Ann. § 9-46a(a) (federal and out-of-state convictions), § 9-46a(b) (Connecticut state convictions). The handful of states that still provide for discretionary re-enfranchisement typically allow those with federal convictions to regain the vote on the same terms as those with in-state convictions, though they may also give individuals the option of restoration in the jurisdiction of conviction. See, e.g., Iowa governor’s website on clemency, Frequently Asked Questions, https://governor.iowa.gov/sites/default/files/documents/FAQ%20-%20Voting.pdf (“If your voting rights were restored in the State where you lost your rights because of a felony conviction, your voting rights are restored.”). Arizona is unusual in denying access to discretionary judicial restoration to those with out-of-state convictions, though it allows those with federal convictions to apply to the courts where they reside. Cf. State v. Prince, 226 Ariz. 516, 530, 250 P.3d 1145, 1159 (2011) (“a juror convicted of an out-of-state felony whose civil rights have not been restored is disqualified from jury service by § 21-201(3)”). The specific provisions of state laws restoring the franchise are detailed in each state’s profile from the Restoration of Rights Project. [3] See Richardson v. Ramirez, 418 U.S. 24, 54 (1974); see also Harvey v. Brewer, 605 F.3d 1067, 1079 (9th Cir. 2010) (O’Connor, J.) (provisions restoring voting rights lost due to conviction are subject to constitutional challenges). For a summary of the legal and policy issues raised by laws disenfranchising people with felony convictions, see Nick Harpster and Michael S. Vaughn, Felon Disenfranchisement Laws: A Review of Current Policies, Challenges of Disenfranchisement Laws, and Recent Trends in Legislative and Legal Change, 52 Crim. L. Bull. No. 5 (2016). [4] In a few of these jurisdictions, people incarcerated for a misdemeanor or election-related misdemeanor may not vote. See, e.g., DC. Code § 1-1001.02(7); Mich. Comp. Laws § 168.758b; Utah Code Ann. § 20A-2-101(2)(b); see also S.C. Code Ann. § 7-5-120(B); Ky. Const. § 145(2). People in jail or prison who have not been convicted are never disenfranchised, although this may not be clear to corrections officials overwise responsible for facilitating the exercise of this civic duty. On July 23, 2020, as part of a bill to reform policing and the administration of justice, the District of Columbia amended D.C. Code §§ 1-1001.02, .05 and .07 to restore the vote to all residents of the District in the custody of the D.C. Department of Corrections and the Federal Bureau of Prisons. See DC Council Bill 23-0826 (July 7, 2020). The bill is subject to 30-day review by Congress. [5] See CCRC’s forthcoming report, “Who Must Pay to Regain the Vote? A 50-State Survey” and forthcoming brief as amicus curiae in Jones v. DeSantis (11th Cir.) (citations will be updated when available). [6] Louisiana restores the franchise automatically for a person who has not been incarcerated in the last five years pursuant to any “order of imprisonment,” for a felony, or upon earlier completion of such an order. La. Const. art. I, § 10; La. Stat. Ann. §§ 18:102(A)(1), 18:2(8). [7] See Executive Order 181 (A. Cuomo), April 18, 2018 (making all those released on parole automatically eligible for pardon to restore the vote), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_181.pdf. In June 2020, the California legislature approved a constitutional amendment restoring the vote to parolees for consideration by California voters in November 2020. See 2019 Cal. A.C.A. No. 6, chaptered June 25, 2020. [8] Most of these 22 states explicitly provide for the situation of people with federal and out-of-state convictions. Some states except from automatic re-enfranchisement specific crimes involving serious violence or sexual offenses, others excepted public corruption or election law crimes, and still others except both. See, e.g., Article V § 2 of the Delaware constitution, excepting from automatic restoration those convicted of murder, bribery or similar public corruption, or a sexual offense. See 50-state comparison chart cited in note 1, supra [9] In addition, Connecticut requires payment of LFOs for out-of-state and federal convictions (but only discharge from prison and parole for in-state convictions). See supra note 5. [10] These 12 states do not allow nonpayment of LFOs to indefinitely deny reenfranchisement, but they do allow LFOs to delay it in certain circumstances, via early discharge for payment, delayed discharge for nonpayment, or both. Added to this group of 12 “delay” states are four others that disenfranchise only upon a sentence of imprisonment, because of the potential for early discharge from parole upon payment of LFOs (Idaho, California, New York, and Louisiana). Oklahoma is the one state in this group of 13 that reenfranchises after a fixed sentence period, regardless of payment of LFOs. See supra note 5. [11] See notes 25 and 26, infra. [12] This provision excludes murder and sex offenses. See Fla. Const. art. VI, § 4; Brennan Center for Justice, Voting Rights Restoration Efforts in Florida, May 31, 2019, https://www.brennancenter.org/our-work/research-reports/voting-rights-restoration-efforts-florida. [13] Recent governors of Virginia and Kentucky have issued executive orders making restoration routine for most people in those states who have been discharged from supervision. See note 23, infra. Iowa’s recent governors have used a petition-based system, but in May 2020, with gubernatorial encouragement, its legislation initiated the process of amending its constitution to make restoration automatic upon completion of sentence. See Iowa Code §§ 48A.6, 48A.6(A). Mississippi’s governors and legislatures, both of which have authority under the state constitution to restore civil rights, have evidenced no interest in restoration of voting rights in recent years. Miss. Const. art. 5, § 124 (executive’s power to pardon limited in cases of treason and impeachment); art. 12, § 253 (restoration of civil rights by vote of 2/3 of the legislature). [14] Iowa, Kentucky, and Virginia give people with federal and out-of-state convictions access to their restoration process, or recognize restoration in the jurisdiction of conviction, while Mississippi allows those with federal and out-of-state convictions to vote without condition. See Middleton v. Evers, 515 So.2d 940, 944 (Miss. 1987) (disqualification not applicable if person was convicted in another state); Op. Miss. Atty. Gen. No. 2005-0193 (Wiggins, April 26, 2005). A few states rely on discretionary restoration in cases excluded from automatic restoration. See, e.g., Ariz. Rev. Stat. §13-908 (discretionary judicial restoration for people with more than one felony conviction and first offenders who have not paid restitution); Wyo. Stat. Ann. §§ 7-13-105(a) (people who are ineligible for automatic restoration must seek restoration from the governor); and the states that except from automatic restoration mentioned in note 7, supra. [15] For a general overview of reenfranchisement trends prior to 2015, see Morgan McLeod, Expanding the Vote: Two Decades of Felony Disenfranchisement Reform, The Sentencing Project (2018); Harpster & Vaughn, supra note 3. [16] Colo. Rev. Stat. § 1-2-103, amended by 2019 Colo. Legis. Serv. Ch. 283 (H.B. 19-1266); Md. Code Ann., Elec. Law § 3‑102, amended by 2016 Md. Laws Ch. 6 (H.B. 980 (2015)); N.J. Stat. Ann. §19:4-1, amended by 2019 NJ Sess. Law Serv. Ch. 270 (A. 5823). Nevada legislated twice during this period, replacing a complex re-enfranchisement system that required people with non-violent first offenses to pay restitution to regain their rights, and all others to seek restoration through discretionary action of a court or pardon board, with the end result that disenfranchisement is now limited to the period of actual incarceration. Nev. Rev. Stat. § 213.157, amended by 2017 Nev. Laws Ch. 362 (A.B. 181) (eliminating restitution requirement), 2019 Nev. Laws Ch. 255 (A.B. 431) (limiting disenfranchisement to imprisonment). [17] La. Stat. Ann. § 18:102, amended by 2018 La. Sess. Law Serv. Act 636 (H.B. 265). [18] Delaware eliminated its requirement to pay LFOs to regain the vote. Del. Code Ann. tit. 15, § 6102, amended by 2016 Del. Laws Ch. 311 (S.B. 242).Washington eliminated its requirement that LFOs be paid in order be fully restored to the franchise, if five years have elapsed following completion of all non-financial requirements of the sentence. Wash. Rev. Code § 29A.08.520; id. § 9.94A.637, amended by 2019 Wash. Legis. Serv. Ch. 331 (S.H.B. 1041). Arizona eliminated its requirement to pay LFOs (other than restitution) to obtain automatic restoration of the vote following discharge for a first felony offense, leaving unpaid restitution a potential source of wealth discrimination. Ariz. Rev. Stat. Ann. § 13-907, amended by 2019 Ariz. Legis. Serv. Ch. 149 (H.B. 2080). [19] California allowed those serving felony sentences in county jail to vote. Cal. Elec. Code § 2101, amended by 2016 Cal. Legis. Serv. Ch. 757 (A.B. 2466). Oklahoma clarified that those convicted of a felony may register to vote when they have “fully served their sentence of court-mandated calendar days” with no further waiting period. 26 Okla. Stat. Ann. § 4-101, amended by 2019 Okla. Sess. Law Serv. Ch. 112 (H.B. 2253). For D.C.’s recent enactment, see note 4. [20] Arkansas closed a loophole that had prevented juveniles charged as adults from regaining the vote; Florida amended its constitution to restore the vote to all who have completed their sentences (excluding those with murder and sex offenses); and, Wyoming restored the vote automatically to those convicted of a single nonviolent felony upon “discharge” of sentence, broadening this relief on three different occasions between 2015 and 2018. See Ark. Code Ann. § 16-93-622 (2019); Fla. Const. art. VI, §4(a) (2018); Wyo. Stat. Ann. § 7-13-105 (amended in 2015, 2017, and 2018). [21] See Iowa Code §§ 48A.6, 48A.6(A); 2019 Cal. ACA-6, chaptered June 25, 2020, supra note 6. [22] See, e.g., Cal. Elec. Code § 2105.5; Colo. Rev. Stat. § 17-2-102; 730 Ill. Comp. Stat. Ann. 5/3-14-1(a-3); Ill. Pub. Act 101-0441; N.H. Rev. Stat. Ann. § 504-A:12-a; Wash. Rev. Code § 72.09.275. [23] Since 2016, Virginia’s governor has regularly restored the vote upon completion of a term of supervision and currently does not require payment of LFOs. See Restoration of Rights, Secretary of the Commonwealth of Virginia (last accessed June 23, 2020 at 7:28pm), https://www.restore.virginia.gov/. Kentucky’s governor issued an Executive Order automatically restoring the vote to all those with Kentucky convictions, excluding specified violent offenses, if they have completed probation and parole (“final discharge”), regardless of payment of restitution, fines, or other monetary conditions; those with pending felony charges or arrests are excluded. Ky. Exec. Order No. 2019-003 (Dec. 12, 2019). Iowa’s current governor restores votes on a regular basis upon completion of sentence, including to those who owe LFOs who are current on a payment plan. See Voting Rights Restoration, Office of the Governor of Iowa, Kim Reynolds, https://governor.iowa.gov/services/voting-rights-restoration. New York’s governor issued an Executive Order directing that individuals being released onto parole, or currently on parole “will be given consideration for a conditional pardon that will restore voting rights without undue delay.” N.Y. Exec. Order No. 181 (2018). [24] SB7066, signed into law by Governor DeSantis in June 2019 and codified at Fla. Stat. § 98.0751(2)(a)(5), defined “completion of sentence to mean “full payment of fines or fees ordered by the court as part of the sentence or that are ordered by the court as a condition of any form of supervision . . . .” The law explicitly requires that the payment requirement “is not deemed completed upon conversion to a civil lien.” Id. [25] The governor’s signature on SB7066 triggered a legal challenge in federal district court based upon several constitutional theories, including that the new law, as well as the ballot initiative, violate Equal Protection to the extent that they discriminate between those who are able to pay and those who are not. The United States Court of Appeals for the Eleventh Circuit ruled, in affirming the district court’s preliminary injunction, that Florida cannot condition voting on payment of an amount a person is genuinely unable to pay. See Jones v. Governor of Fla., 950 F.3d 795 (11th Cir. 2020). While the appeal of the preliminary injunction was pending, the Florida Supreme Court issued an advisory opinion that the ballot initiative requires payment of legal financial obligations to regain the vote. See Advisory Op. to the Governor Re: Implementation of Amendment 4, the Voting Restoration Amendment, 288 So. 3d 1070 (Fla. 2020). After a full trial on the merits, the federal district court held that the State may condition voting on payment of fines and restitution imposed by the court at sentencing that a person is able to pay, but may not, consistent with the Equal Protection Clause, condition voting on payment of amounts a person is unable to pay. Further, the court held that at least some of the financial obligations are taxes that cannot block access to voting consistent with the Twenty-fourth Amendment, whether a person is able to pay or not. See Jones v. DeSantis, 2020 WL 2618062 (N.D. Fla., May 24, 2020). On July 2, 2020, the 11th Circuit granted Florida’s request for en banc review of the district court’s decision and stayed its order; on July 16, the Supreme Court declined to lift the stay. Argument in the court of appeals is scheduled for August 18, 2020. [26] See Community Success Initiative v. Moore, No. 19-CVS-15941 (N.C. Gen. Ct. Just. filed Nov. 20, 2019); Thompson v. Merrill, No. 2:16-cv-783 (N.D. Ala. filed May 27, 2020). [27] See note 5, supra. [28] In these 16 states the vote is tied to completion of supervision, which may result in a temporary delay in reenfranchisement if a court or supervisory official determines that supervision should be extended to give a defendant some additional incentive to pay, e.g. to make a victim whole. Officials in some of these states must consider a person’s ability to pay in connection with fulfilling conditions of supervision, and officials may consider it in others. [29] See note 23, supra. [30] See CCRC’s forthcoming report, “Who Must Pay to Regain the Vote? A 50-State Survey” and forthcoming brief as amicus curiae in Jones v. DeSantis (11th Cir.) (citations will be updated when available). [31] See 2012 South Dakota Laws Ch. 82 (HB 1247), amending S.D. Codified Laws § 12-4-18 to disenfranchise individuals convicted after June 30, 2012, and sentenced to probation. Individuals convicted prior to July 1, 2012, remain disenfranchised only if sentenced to a term of imprisonment. In February 2020, the South Dakota legislature voted against limiting disenfranchisement to the term of supervision. See HB1247, https://legiscan.com/SD/bill/HB1245/2020. [32] Christina Beeler, Article, Felony Disenfranchisement Laws: Paying and Re-Paying a Debt to Society, 21 U. Pa. J. Const. L. 1071, 1088 (2019) (internal quotation marks omitted). [33] See American Bar Association, Standards on the Legal Status of Prisoners, Standard 23-8.4 (1983) (hereinafter ABA Standards); National Conference of Commissioners of Uniform State Laws, Model Sentencing and Corrections Act, §§ 4-112, 4-1003 (1979). The commentary to the ABA Standards noted that “little is gained by society” in disenfranchising prisoners while “much is accomplished by retaining and strengthening the ties of offenders with the free community.” [34] See, e.g., The American Law Institute, Model Penal Code: Sentencing § 7.03. See also id. At comment b (“Although disenfranchisement has been justified as a fitting punishment for transgressing the rules of civil society, the legal justification for collateral consequences is that they serve regulatory functions, not punitive ones.”) [35] Restoration of Rights Project, “50-State Comparison: Loss & Restoration of Civil/Firearms Rights,” https://ccresourcecenter.org/state-restoration-profiles/chart-1-loss-and-restoration-of-civil-rights-and-firearms-privileges/. [36] See, e.g., Schoenherr v. Department of State, Div. of Licensing, 743 So. 2d 536, 537 (Fla. 2d DCA 1998)(deferring to Connecticut’s restoration of right to possess firearm); Blackwell v. Haslam, 2013 WL 3379364 (Tenn. Ct. App. 2013) (remanding for consideration whether giving effect in Tennessee to a Georgia pardon restoring firearms rights to a drug offender violates Tennessee’s public policy against restoring firearms rights to violent drug offenders). See generally Wayne A. Logan, “When Mercy Seasons Justice”: Interstate Recognition of Ex-Offender Rights, 49 U. C. Davis L. Rev. 1 (2015) (surveying caselaw regarding interstate recognition); Love, Roberts & Logan, Collateral Consequences of Criminal Conviction: Law, Policy and Practice §§ 2:35, 3:22 and 7:24 (WEST/NACDL, 3d ed., 2018-2019). [37] See State v. Kasper, 566 A.2d 982, 984 (Vt. 1989); see also Jay Buckeye, Note, Firearms for Felons? A Proposal to Prohibit Felons from Possessing Firearms in Vermont, 35 Vt. L. Rev. 957 (2011). Persons convicted of a felony under Vermont law who have not been pardoned, or whose convictions have not been sealed or expunged, remain subject to federal firearms restrictions by virtue of the state’s failure to restore all three civil rights. [38] Michael Luo, Felons Finding It Easy to Regain Gun Rights, N.Y. Times, Nov. 13, 2011, https://www.nytimes.com/2011/11/14/us/felons-finding-it-easy-to-regain-gun-rights.html. [39] See Georgia and Nebraska profiles, Restoration of Rights Project, https://restoration.ccresourcecenter.org/. [40] See 18 U.S.C. § 922(g). [41] See 18 U.S.C. § 921(a)(20); see also Caron v. United States, 524 U.S. 308 (1998); Love et al., supra note 36, § 2:35 (“Restoration of firearms privileges; relationship between state and federal dispossession laws”). See Restoration of Rights Project, 50-state comparison chart, supra note 35, Chart #2 (“Firearms Rights Under Federal Law”). There has been some disagreement in the federal courts about whether state restoration instruments must address firearms rights to remove the federal firearms bar, a subject that is too complex for treatment in this report. [42] See Beecham v. United States, 511 U.S. 368 (1994), discussed in Love et al., supra note 36, § 2:35. [43] District of Columbia v. Heller, 554 U.S. 570, 637 (2008). [44] 554 U.S. at 626-27. [45] See Love et al., supra note 36, § 2:36 (“Second Amendment challenges to felony dispossession laws”), notes 4 through 6. [46] Compare Binderup v. Attorney General, 836 F.3d 336, 353, 357 (3d Cir. 2016), cert. denied, 137 S. Ct. 2323 (2017) (government could not justify applying the bar to persons who had “distinguish[ed their] circumstances from those of persons in the historically barred class,” and that the petitioners’ crimes were “not serious enough to strip them of their Second Amendment rights”) with Hamilton v. Pallozzi, 848 F.3d 614, 626 (4th Cir. 2017), cert. denied, 138 S. Ct. 500 (2017) (holding that a Maryland resident convicted of a felony in Virginia, whose firearms rights had been restored in Virginia and under federal law, remained subject to Maryland’s dispossession statute without a Virginia pardon). [47] See Britt v. State, 681 S.E.2d 320 (N.C. 2009). Following the Britt decision, North Carolina amended its firearms law to permit individuals who have lived in North Carolina for at least one year, who have a single non-violent felony conviction and no violent misdemeanors, to petition the court in their county of residence twenty years after their civil rights were restored for restoration of firearms rights. N.C. Gen Stat. § 14-415.4.
- CCRC statement on recent events (6/2/2020) - CCRC stands with those opposing police violence against black people and other forms of racism throughout society. Black lives matter. Our organization promotes public discussion of how criminal records are used to hold people back in civil society. Discrimination based on a record hits the black community harder than any other, thanks to the long history of officials using the criminal law as a weapon to keep black people marginalized and subjugated. Most recently, we have documented the Small Business Administration’s decisions to exclude many people from COVID-19 relief due to arrest or conviction, which disproportionately harms minority business owners during an already precarious moment. We have also covered felony disenfranchisement litigation in Florida, where a federal judge held unconstitutional the denial of voting rights to people who have served their time but still owe restitution and fines they cannot afford to pay. In this time of national turmoil, many protesters have been and will continued to be arrested. Most will be released without charges, some will be charged, and some will be convicted. But every single one of them will end up with a criminal record. Very few states make it easy to avoid the stigma that even a bare arrest record produces, even when it is not accompanied or followed by any charges. Our flagship resource, the Restoration of Rights Project, documents that even those protesters who are released without charges will need to petition a court or agency to seal or expunge the record of their arrest in order to avoid a lifelong record that can create barriers in housing, employment, and education. In some states, courts or agencies have discretion to deny relief even where the government found no basis to prosecute. Our Model Law on Non-Conviction Records (2019) recommends that states automatically expunge arrest records that do not result in charges or conviction, as well as charges that do not result in conviction, and that they do it promptly. While 15 states do provide for automatic or expedited relief following a non-conviction disposition in court, 35 do not. And, only a handful of states automatically expunge arrests where no charges are filed. The filing of expungement petitions, costly and cumbersome in normal times, will be especially difficult due to limited access to courts during COVID-19. It is especially wrong to saddle people who have never even been charged with a lifelong record. This should be one of the first changes in the criminal law to work for in coming months, and it should be an easy one to accomplish. For people who are convicted, 38 states have laws that allow at least some misdemeanors to be expunged or sealed; 31 of these states also make certain felonies eligible. Waiting periods, filing fees, and other requirements apply. In recent years, 7 states have enacted automatic relief for certain misdemeanors, dispensing with the petition requirement for those who qualify. But there is no authority to expunge or seal federal records, including records of uncharged arrests; and, the laws on record sealing in the District of Columbia are some of the most restrictive in the country. In two forthcoming posts, we will survey the laws pertaining to non-conviction and conviction record relief across the country. At least with respect to non-conviction records, a menu of recommended reforms is already readily available in our Model Law.
- Federal judge certifies class for landmark Florida felony voting trial (4/9/2020) - 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. The case arises from 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 Amendment 4 required a person to pay fines, fees, and restitution before their right to vote may be restored. In 2019, a number of individuals and organizations brought lawsuits in federal court seeking to strike down these financial barriers to regaining the vote and/or to provide relief for those unable to identify or pay court debt. Federal court issues preliminary junction In October, the federal judge overseeing the lawsuits in the U.S. District Court for the North District of Florida issued an preliminary injunction, holding that Florida cannot deny the 17 individual 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 legal financial obligations, even while it recognized that this might prove difficult given the disorganized state of many criminal records: “Florida’s records of the financial obligations are decentralized, often accessible only with great difficulty, sometimes inconsistent, and sometimes missing altogether.” Nonetheless, the district court deferred addressing several 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. Appeals court affirms preliminary injunction In February, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit issued a unanimous decision affirming the preliminary injunction. The panel agreed that—as applied to the 17 plaintiffs who cannot afford to pay—withholding the vote until all legal financial obligations are paid is unconstitutional discrimination on the basis of wealth. That decision was a major victory for the 17 plaintiffs, but the appeals court did not stop there: it also provided a road map for the district court to strike down the financial-obligations requirement in its entirety, directing further fact-finding on the issue of its validity, stating: “[I]f the [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 appeals court could not definitively reach that conclusion at this pretrial stage, 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.” The State of Florida petitioned the full U.S. Court of Appeals for the Eleventh Circuit to rehear the panel decision through an en banc proceeding. On March 31, the Eleventh Circuit denied Florida's petition. Florida can still petition the Supreme Court for review. District court certifies a class and sub-class before trial Meanwhile, proceedings have continued in the district court. The judge recently scheduled the trial for April 27 and denied the defendants' motion for summary judgement. The parties and the court are currently working out procedures for a remote trial to be conducted by video conference or telephone. On Tuesday, with the trial approaching, the judge issued an order certifying a class and sub-class in the case. The April 7 order, almost certainly influenced by the appeals court decision, certifies a class of all persons who would be eligible to vote in Florida but for unpaid financial obligations, for a claim that the financial-obligation requirement imposes an unconstitutional poll tax or other tax under the 24th Amendment. The court also certified a sub-class of all persons within the class who assert they are genuinely unable to pay their financial obligations, for a claim under the 14th Amendment. Though some media outlets reported this order as an expansion of the preliminary injunction to cover the entire class, that does not appear to be the case. Nonetheless, the move dramatically expands the scope of the trial and the implications of any ruling that emerges. In explaining the necessity of certification, the judge pointed out that after the entry of a preliminary injunction in favor of 17 individuals, Florida's Secretary of State advised Supervisors of Elections that the ruling applied only to the 17, and therefore, the "March 2020 elections went forward on that basis—without any statewide effort to conform to the United States Constitution as interpreted by both this court and the Eleventh Circuit." As a result, "[c]lass members can hardly be faulted for asserting that, if the ruling on the merits ultimately is that they have a constitutional right to vote, the right should be recognized in an enforceable decision." Also notable: in rejecting Florida's argument that Plaintiffs had not met the requirement that a class must be ascertainable, the court wrote: "here the proposed class and subclass, at least as defined in this order, are sufficiently ascertainable to meet any such requirement. The state’s records of financial obligations are a mess—that is one of the plaintiffs’ other complaints—but the Secretary should hardly be heard to complain that it is impossible to figure out who has an unpaid financial obligation." With the trial set for to begin in late April, an enforceable decision could come down in time for November's election. Such a decision would not only re-enfranchise at least several hundred thousand, if not more than a million, Florida voters. It would send a strong signal to the states that currently impose similar financial barriers to restoring the vote to those who have otherwise served their sentences. It would also signal that government officials should reconsider the many other troublesome barriers that they impose on people who have otherwise served their sentences and are looking to fully participate in society, but still carry outstanding court debt (i.e. denial of federally-backed small business loans and ineligibility for expungement of non-conviction records).
- 11th Circuit upholds voting rights for Floridians unable to pay fines and fees (2/20/2020) - *Update (3/31/20): the Eleventh Circuit has denied Florida's petition for rehearing en banc. A decision yesterday from the U.S. Court of Appeals for the Eleventh Circuit is a major victory for voting rights and criminal justice reform advocates. It has the potential to dramatically expand access to the ballot for people with felony convictions in Florida. The decision concerns Florida's 2018 ballot initiative Amendment 4, which restored the vote to state residents who have completed the terms of their sentence, which includes fines, fees, and restitution imposed by the court. The appeals court's decision held that Florida may not deny the vote to individuals who can demonstrate that they are genuinely unable to pay outstanding court debt. The decision also called into question the very requirement that financial penalties must be satisfied in order to regain the vote under Amendment 4, and potentially similar requirements in several other states. 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). The state of Florida petitioned the Eleventh Circuit for rehearing en banc, and the court denied the petition. Florida can still seek review in the Supreme Court.
- New 2019 laws restore voting rights in 11 states (1/22/2020) - This is the first in a series of comments describing some of the 153 laws passed in 2019 restoring rights or delivering record relief in various ways. The full report on 2019 laws is available here. Restoration of Civil Rights Voting In 2019, eleven states took steps to restore the right to vote and to expand awareness of voting eligibility. Our experience is that many people convicted of a felony believe they are disqualified from voting when they are not: almost every state restores voting rights automatically to most convicted individuals at some point, if they are even disenfranchised to begin with. The most significant new re-enfranchisement laws were enacted in Colorado, Nevada and New Jersey, where convicted individuals are now eligible to vote except when actually incarcerated. Colorado restored the vote to persons on parole supervision, while Nevada revised its complex system for restoring civil rights so that all people with felony convictions may now vote except while in prison. In one of the final legislative acts of 2019, New Jersey’s governor signed a law limiting disenfranchisement to a period of actual incarceration, even in cases where a court has ordered loss of the vote for election law violations, immediately restoring the vote to 80,000 people. These three states joined the two states (New York and Louisiana) that in 2018 took steps to limit disenfranchisement to a period of incarceration: New York’s governor issued the first of a series of executive orders under his pardon power restoring the vote to individuals on parole, and Louisiana passed a law allowing people to register if they have been out of prison for at least five years. Now, only three of the 19 states that disenfranchise only those sentenced to prison still extend ineligibility through completion of parole: California, Connecticut, and Idaho. Bills under consideration in 2019 in both California and Connecticut would allow people to vote once they leave prison, though in California this will require a constitutional amendment. Kentucky saw perhaps the most dramatic extension of the franchise in 2019, when its incoming governor Andy Beshear issued an executive order restoring the vote and eligibility for office to an estimated 140,000 individuals convicted of non-violent felonies who had completed their sentences. Before the order, individuals were required to petition the governor individually to obtain restoration of their voting rights. (Governor Beshear’s father had issued a similar order in 2015 at the end of his own term as governor, but it was revoked by his successor.) Iowa is now the only state that does not restore the vote automatically to most convicted individuals at some point. Other states took less dramatic but nonetheless significant steps in 2019 to expand the franchise. Arizona repealed its law making automatic restoration of the vote to those with no more than one felony conviction depend on payment of fines and fees (those who owe restitution must still apply to the court, like recidivists, to regain their voting rights). (See below for Arizona's revision of its firearms restoration laws.) Arkansas corrected an unintended gap in its election law that made it hard for juveniles prosecuted as adults to regain the right to vote. Oklahoma revised its laws to clarify that voting rights are lost upon conviction of a felony and are restored upon completion of sentence. Four states (Colorado, Illinois, New Hampshire, and Washington) enacted laws directing corrections officials to inform people leaving custody of their eligibility to register, addressing the pervasive public misunderstanding that the right to vote is permanently lost by conviction. Illinois' two new laws on this subject also facilitate voting by mail for eligible persons detained in county jails, and provide for peer-led programs to teach civics to prisoners who are soon to be released. Florida is the only state that took steps during the year to restrict rather than enlarge the franchise, in the wake of that state’s restoration of the franchise in 2018, by ballot initiative, to more than a million state residents who had completed their court-imposed sentences. That ballot initiative automatically restored the right to vote for people convicted of felonies, other than murder or sexual offenses, upon “completion of all terms of sentence including parole or probation.” In 2019, the Florida legislature passed a law interpreting “completion of sentence” to include payment of fines, fees, and court costs. The 2019 legislation defines “completion of all terms of sentence” to include all legal financial obligations (LFOs). The Florida Supreme Court recently agreed in an advisory opinion that Amendment 4's reference to “completion of all terms of sentence” does include all legal financial obligation imposed in conjunction with a sentence. Nonetheless, individuals and supporters of Amendment 4 have brought several federal court challenges to the legislation as violating the U.S. constitution, arguing that by disqualifying persons with outstanding LFOs, even if a person has no ability to pay and even if the court has converted an LFO to a civil lien, the law violates the Equal Protection and Due Process guarantees of the Fourteenth Amendment. They also argue that the law burdens the fundamental right to vote, is an unconstitutional poll tax, infringes on free speech and association, and was enacted with a racially discriminatory purpose. In October, a federal judge issued a preliminary injunction, holding that Florida cannot deny the 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." However, that ruling only applies to 17 plaintiffs in the case, and the judge deferred addressing a number of other issues until after trial later this year, giving the legislature an opportunity to address inability to pay. The coalition behind Amendment 4 is also raising money to help people pay off their debts. One of the knotty problems associated with efforts to re-enfranchise Florida residents is the uneven state of court records in the state, such that inconsistent and missing records can make it difficult for individuals to show that they have in fact fully satisfied financial penalties associated with criminal cases. In the broader national picture, at the conclusion of 2019 almost half the states allow people with a felony conviction to vote if they are living in the free community. A total of 18 states and the District of Columbia now allow people to vote unless in prison, Louisiana allows voting five years after release, and Maine and Vermont do not disenfranchise anyone based on conviction. Of the remaining states, a majority restore the vote automatically upon completion of sentence, which may or may not also require payment of court debt. However, a significant minority of states require at least some individuals (recidivists, persons convicted of specific offenses, or those who owe court debt) to file individual petitions with the governor or a court to regain the right to vote. The coming year should see additional developments in Florida regarding restoration for those with unpaid fines, fees, or restitution. This is turn could have ramifications for the half dozen additional states that impose similar financial barriers to the franchise. 2. Jury eligibility and public office Three other measures to restore civil rights for jury service and public office are worth mentioning. California passed a statute restoring eligibility for trial jury service upon completion of sentence (previously a pardon was necessary). Maryland also lowered its conviction-related bar to jury eligibility. Previously, people were ineligible to serve on a jury if they had received a sentence of more than six months of imprisonment, and were not pardoned, or had a pending charge for an offense punishable by more than six months imprisonment; under the new law, these six-month periods are extended to one year. Finally, New Hampshire revised its law disqualifying people with a conviction from holding public office, making the restriction applicable only during actual incarceration, so that it is now coincident with the period of felony disenfranchisement (this limit on disenfranchisement to only during actual incarceration has been in place in the Granite State since 1965). 3. Firearms restoration Arizona revised its law on firearms restoration to authorize the sentencing court to restore rights to most people with felony offenses two years after completion of sentence. (Note that the automatic restoration of civil rights for offenses does not include restoration of firearms rights.) People convicted of “serious” offenses must wait 10 years, and those convicted of “dangerous” offenses are ineligible for restoration. SB 2080.
- Legislative update: third quarter 2019 sees more new licensing and expungement laws (10/11/2019) - In July we reported on the extraordinary number of new laws enacted in the first half of 2019 aimed at restoring rights and status after arrest and conviction. A total of 97 separate pieces of legislation, some covering multiple topics, were enacted by 38 states and many broke new ground in their jurisdictions. Moreover, clear trends begun in 2018 accelerated in the first half of 2019, as state lawmakers continued to focus most of their attention on facilitating access to record-clearing. In addition, a significant number of new laws limited the authority of occupational licensing boards to disqualify a person based on criminal record. Another area of progress was restoring voting rights. Those trends continued over the summer, with 17 new laws, including significant laws enacted to regulate occupational licensing and expand record relief, including but not limited to marijuana convictions. Several states showed a keen interest in exploring the possibility of automating record relief, although only one state actually enacted an automatic relief system by the end of the quarter (New York, for marijuana convictions). (California enacted a "clean slate" law shortly after the beginning of the fourth quarter.) At the end of the third quarter, Arkansas, Colorado and Florida were studying the feasibility of automating relief, North Carolina was considering automatic expunction of non-conviction records, and the Governor of New Jersey was attempting to persuade his legislature to adopt an automated system for convictions as well as non-convictions.) By the end of the third quarter of 2019, 42 states had enacted an unprecedented total of 114 laws restoring rights and status, and more new laws on the horizon. All of the laws described briefly below are more fully analyzed in the context of the state's overall restoration scheme, in the detailed profiles of the Restoration of Rights Project. Occupational licensing Florida and North Carolina enacted impressive occupational licensing schemes. Florida's new licensing provisions added by H7125 appear targeted to trades learned in the state prison system, and also provide that: “A conviction, or any other adjudication, for a crime more than 5 years before the date the application is received by the applicable board may not be grounds for denial of a [specified] license.” Boards are permitted to consider violent and sexual offenses but only if they “relate to the practice of the profession.” Starting on October 1, 2019, and updated quarterly thereafter, the boards must compile a list identifying each crime used as a basis for a license denial. North Carolina’s new law prohibits disqualification from licensure unless a crime is “directly related” to the license involved, requires written reasons in the event of denial, and provides for a preliminary determination as to whether an individual will be favorably considered that is binding on the board when the applicant later applies. The new law also requires licensing boards to report annually to the legislature on their consideration of applications from people with a criminal record. In New Hampshire, HB 637 created two categories of criminal history information to be maintained by the state police records repository, one “confidential” and the other “public.” “Confidential criminal history information” (defined to include non-conviction records and records of convictions that have been annulled) will no longer be disseminated for employment and licensing purposes. Sealing and expungement Florida substantially reorganized its laws relating to sealing and expungement of non-conviction records in H7125, and the Department of Law Enforcement was directed to create an automatic process for sealing eligible non-conviction records. See Fla. Stat. § 943.0595. Four states (DE, HI, NH and NY) passed laws authorizing expungement or sealing of marijuana possession convictions. Of these new laws, New York's law setting up an automated relief system is by far the most significant, because it seals the record without requiring eligible individuals to apply to the court for relief. Individuals whose records are sealed may, further, apply later to have the record destroyed. As an important recent study by JJ Prescott and Sonja Starr established, where laws make relief depend upon a burdensome petition process, few eligible individuals will take advantage of them. (As the third quarter ended, a far broader "clean slate" bill was poised for enactment in California, and was signed on October 7.) Relatedly, in August, New Jersey's governor Phil Murphy refused to sign a bill substantially expanding expungement in that state, which included but was not limited to marijuana convictions, on grounds that its cumbersome petition process did not go far enough in addressing the problem of dated convictions. The governor cited with approval the "clean slate" law enacted by New Jersey's neighboring state Pennsylvania, and proposed a series of measures aimed at developing a similar automated system in his state. As of this writing, the governor has been unable to persuade the legislature to adopt it, but we may expect to see another pass at the problem before year's end. Two more states (HI and NC) expanded their provisions offering record relief to victims of human trafficking convicted of any non-violent offense linked to their victim status. Civil rights Finally, New Hampshire revised its law disqualifying people with a conviction from holding public office, making the restriction applicable only during actual incarceration, so that it is now coincident with the period of felony disenfranchisement (this limit on disenfranchisement to only during actual incarceration has been in place in the Granite State since 1965). Perhaps more significant, HB 486 requires the commissioner of the department of corrections to ensure that probation/parole officers receive instruction on the current state of the law regarding the civil rights of individuals convicted of a felony, and to direct that individuals serving a suspended sentence or on parole receive "written notice that he or she may vote during the period of the suspension or parole." Similar provisions were enacted earlier in the year in Colorado and Washington. In our experience, many people who have been convicted of a felony believe that they cannot vote long after their rights have been restored - and some (like those in New Hampshire not sentenced to prison) never lost the right to vote in the first place.
- Florida gov asks state court to resolve felony voting dispute (8/15/2019) - Florida Governor Ron DeSantis has opened up a new front in the legal battle in Florida over voting rights for people with felony convictions. DeSantis is asking the state supreme court for an opinion on whether Amendment 4, passed by Florida voters in 2018, restores the vote for people with outstanding court-ordered fines and fees. DeSantis signed a law passed by the legislature saying no, but that law is being challenged in federal court. Amendment 4 Amendment 4 automatically restored the right to vote for people convicted of felonies, other than murder or sexual offenses, upon "completion of all terms of sentence including parole or probation." On June 28, 2019, DeSantis signed legislation (SB7066) that defines "completion of all terms of sentence" to include legal financial obligations (LFOs), including if a court has converted the LFOs to a civil lien. Supporters of SB7066 point to a previous hearing before the Florida Supreme Court—regarding whether Amendment 4 should be on the 2018 ballot—where the Amendment's sponsors told the Justices that completion of sentence includes court-ordered fines and costs. In federal court, individuals and supporters of Amendment 4 have brought several challenges to SB7066 as violating the U.S. constitution on a variety of grounds. One complaint argues that by disqualifying persons with outstanding LFOs, even if a person has no ability to pay and even if the court has converted an LFO to a civil lien, the law violates the Equal Protection and Due Process guarantees of the Fourteenth Amendment. It also argues that the law burdens the fundamental right to vote, is an unconstitutional poll tax, infringes on free speech and association, and was enacted with a racially discriminatory purpose. UCLA law professor Beth Colgan recently published a survey of wealth-based penal disenfranchisement in the U.S. She argues that while this widespread practice has been upheld in the lower courts under rational basis review, properly considered as a form of punishment it violates the Equal Protection Clause of the Fourteenth Amendment. Request for Opinion On August 8, DeSantis filed a four-page letter asking the Florida Supreme Court to weigh in on the meaning of the amendment. "I will not infringe on the proper restoration of an individual's right to vote under the Florida Constitution," DeSantis states, asking the justices for "your interpretation of whether 'completion of all terms of sentence' encompasses financial obligations, such as fines, fees and restitution ('legal financial obligations' or 'LFOs') imposed by the court in the sentencing order."
- “Wealth-based penal disenfranchisement” (7/1/2019) - 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: This Article offers the first comprehensive examination of the way in which the inability to pay economic sanctions—fines, fees, surcharges, and restitution—may prevent people of limited means from voting. The Supreme Court has upheld the constitutionality of penal disenfranchisement upon conviction, and all but two states revoke the right to vote for at least some offenses. The remaining jurisdictions allow for re-enfranchisement for most or all offenses under certain conditions. One often overlooked condition is payment of economic sanctions regardless of whether the would-be voter has the ability to pay before an election registration deadline. The scope of wealth-based penal disenfranchisement is grossly underestimated, with commentators typically stating that nine states sanction such practices. Through an in-depth examination of a tangle of statutes, administrative rules, and policies related to elections, clemency, parole, and probation, as well as responses from public disclosure requests and discussions with elections and corrections officials and other relevant actors, this Article reveals that wealth-based penal disenfranchisement is authorized in forty-eight states and the District of Columbia. After describing the mechanisms for wealth-based penal disenfranchisement, this Article offers a doctrinal intervention for dismantling them. There has been limited, and to date unsuccessful, litigation challenging these practices as violative of the Fourteenth Amendment’s equal protection and due process clauses. Because voting eligibility is stripped of its fundamental nature for those convicted of a crime, wealth-based penal disenfranchisement has been subject to the lowest level of scrutiny, rational basis review, leading lower courts to uphold the practice. This Article posits that these courts have approached the validity of wealth-based penal disenfranchisement through the wrong frame—the right to vote—when the proper frame is through the lens of punishment. This Article examines a line of cases in which the Court restricted governmental action that would result in disparate treatment between rich and poor in criminal justice practices, juxtaposing the cases against the Court’s treatment of wealth-based discrimination in the Fourteenth Amendment doctrine and the constitutional relevance of indigency in the criminal justice system broadly. Doing so supports the conclusion that the Court has departed from the traditional tiers of scrutiny. The resulting test operates 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. Because such alternatives are available, wealth-based penal disenfranchisement would violate the Fourteenth Amendment under this approach.
- Marijuana decriminalization drives expungement reform (10/29/2018) - The national trend toward expanding opportunities for restoration of rights after conviction has continued to accelerate throughout 2018. By our count, so far this year alone 31 states have broadened existing second chance laws or enacted entirely new ones, enhancing the prospects for successful reentry and reintegration for many thousands of Americans. On November 6, Florida could take the most politically momentous step of the year if its voters approve a ballot initiative amending the state constitution to re-enfranchise more than a million and a half individuals who are now permanently barred from voting because of a past felony conviction. We expect to publish a full report on these 2018 reforms, similar to the report we published last winter on 2017 laws, by the end of the year. Expect it to feature the broad occupational licensing reforms enacted in more than a dozen states since last spring. Another important series of second chance reforms this year has accompanied marijuana decriminalization. These reforms are documented and analyzed by Professor Douglas Berman in an important new paper titled "Leveraging Marijuana Reform to Enhance Expungement Practices." Published in a symposium issue of the Federal Sentencing Reporter devoted to various aspects of collateral consequences and criminal records management, Professor Berman's paper showcases issues that will becomes increasingly important as the War on Drugs winds down. Professor Berman is the executive director of Ohio State University's Drug Enforcement and Policy Center, whose official launch is November 2. We expect that the Center under his management will give restoration of rights an important place on its policy agenda. The abstract of Professor Berman's article follows: Leveraging Marijuana Reform to Enhance Expungement Practices States reforming marijuana laws should be particularly concerned with remedying the past inequities and burdens of mass criminalization. State marijuana reforms should not only offer robust retroactive ameliorative relief opportunities for prior marijuana offenses, but also dedicate resources generated by marijuana reform to create and fund new institutions to assess and serve the needs of a broad array of offenders looking to remedy the collateral consequences of prior involvement in the criminal justice system. So far, California stands out among reform states for coupling repeal of marijuana prohibition with robust efforts to enable and ensure the erasure of past marijuana convictions. In addition to encouraging marijuana reform states to follow California’s lead in enacting broad ameliorative legislation, this essay urges policy makers and reform advocates to see the value of linking and leveraging the commitments and spirit of modern marijuana reform and expungement movements. Part II begins with a brief review of the history of marijuana prohibition giving particular attention to social and racial dynamics integral to prohibition, its enforcement and now its reform. Part III turns to recent reform activities focused on mitigating the punitive collateral consequences of a criminal conviction with a focus on the (mostly limited) efforts of marijuana reform states to foster the erasure of marijuana convictions. Part IV sketches a novel proposal for connecting modern marijuana reform and expungement movements. This part suggest a new criminal justice institution, a Commission on Justice Restoration, to be funded by the taxes, fees and other revenues generated by marijuana reforms and to be tasked with proactively working on policies and practices designed to minimize and ameliorate undue collateral consequences for people with criminal convictions.
- First crop of restoration laws enacted in 2018 (3/30/2018) - In 2017, state legislatures produced a bumper crop of laws restoring rights and opportunities, with 24 separate states enacting new legal mechanisms to facilitate reentry and reintegration. Based on pending bills and laws already enacted this year, 2018 promises to be similarly productive. In March, the governors of Florida, Utah and Washington all signed into law new measures expanding their existing restoration schemes. Washington enacted a ban-the-box law applicable to both public and private employment, and both Florida and Utah expanded their laws authorizing expungement of non-conviction records. These new authorities are described in the post that follows, and can be seen in the context of related laws in the state profiles in the Restoration of Rights Project. While none of these first enactments of 2018 is particularly remarkable standing alone, they deserve mention as harbingers of things to come. More than thirty additional states have restoration bills pending, and half a dozen of these are well along in the enactment process. We will be tracking restoration bills through the year, and will report periodically in this space - particularly when a significant new law is enacted. We also hope to produce in 2018 another annual report on Second Chance Laws enacted during the year, as resources permit. Washington - Ban-the-box applicable to public and private employment In March 13, 2018, Governor Inslee signed into law HR 1298, prohibiting public and private employers from inquiring about criminal record until after a determination that the person is otherwise qualified for the position. The new section of Title 49 (Labor Code) will not apply to employers required or permitted by law to conduct background checks, including financial institutions, to employers of vulnerable populations, or to non-employee volunteers. The new ban-the-box provision supplements existing provisions of Washington law that permit employers and licensing agencies to consider a conviction record only if within the last 10 years and then only the crime “directly relates” to the employment or license sought. In addition, court-issued Certificates of Restoration of Opportunity (CROP) prohibit employers and licensing agencies from disqualifying individuals based on criminal conviction, and protect against negligent hiring liability. Washington's laws regulating consideration of conviction in employment and licensing are set forth in the profile from the Restoration of Rights Project. Florida – Acquittals now eligible for immediate expungement HB 1065, signed into law 3/27/18, expands eligibility for immediate court-ordered "expunction" (destruction) to cases where a person has been acquitted by a judge, or has had a verdict of not guilty rendered by a judge or jury, by-passing the requirement under existing law that such a record must first be sealed for 10 years. Under existing law, immediate expunction is available only if all charges are dismissed before trial. Other existing eligibility requirements remain in place: only those who have had no prior convictions or expungements are eligible, and those charged with violent or sex offenses are ineligible. These changes are effective October 1, 2018. Florida's scheme for sealing and expungement is set forth in the RRP profile. Utah - Expansion of authority to expunge non-conviction records. Under Utah law in effect prior to March 19, 2018, a person was able to apply for expungement of arrest or other non-conviction records only if no charges were filed or charges were dismissed with prejudice. SB 62 as enacted now authorizes courts to expunge records where the entire case is dismissed without prejudice or without condition as long as (1) the prosecutor consents in writing to the issuance of a certificate of eligibility OR (2) at least 180 days have passed since the date of dismissal. Under the new authority, a court is required to issue an order of expungement if the court finds by clear and convincing evidence that the prosecutor provided written consent and has not filed and does not intend to refile related charges. A person seeking expungement may reapply for a certificate of eligibility if the court denies the original petition based on the prosecutor’s intent to refile charges and charges are not refiled within 180 days of the date the court denies the original petition. Requires the prosecutor opposing expungement of a case dismissed without prejudice or without condition to have a good faith basis for the intention to refile the case. Clarifies that the Department of Public Safety is prohibited from counting pending or previous infractions, traffic offenses, or minor regulatory offenses when determining whether to grant a certificate of eligibility for expungement; that only fines and interest ordered by the court related to the conviction for which expungement is sought must be paid in full before expungement may be ordered; and, that fines or fees arising from pending or previous infractions, traffic offenses, or minor regulatory offenses are not counted when determining expungement eligibility. Utah's scheme for sealing and expungement is set forth in the RRP profile.