Tag: Florida

Loss and restoration of voting and firearms rights after conviction: A national survey

*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.”

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CCRC statement on recent events

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

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.

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11th Circuit upholds voting rights for Floridians unable to pay fines and fees

*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.

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New 2019 laws restore voting rights in 11 states

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

  1. 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.

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Legislative update: third quarter 2019 sees more new licensing and expungement laws

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.

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Florida gov asks state court to resolve felony voting dispute

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”

This is the title of a study by UCLA law professor Beth Colgan, published in the Vanderbilt Law Review, in which she documents how every state that disenfranchises people based upon criminal conviction also conditions restoration of the vote for at least some people upon their ability to pay.  In some states this is because the law requires people to pay fines, fees, restitution and other court costs before they can vote.  Even in the states that restore the vote immediately upon release from prison, “wealth-based penal disenfranchisement” may occur through policies applied by parole and probation authorities. Colgan proposes that such laws and policies can be challenged on Equal Protection grounds, arguing that felony disenfranchisement should be considered not as a civil rights deprivation but as punishment.  She argues that the test developed by the Supreme Court in cases involving disparate treatment between rich and poor in criminal justice practices, should operate as a flat prohibition against “the use of the government’s prosecutorial power in ways that effectively punish one’s financial circumstances unless no other alternative response could satisfy the government’s interest in punishing the disenfranchising offense.”

Colgan’s article is particularly relevant in light of Florida’s recent enactment of a law that seems to frustrate the will of the 64% of Florida voters who acted last fall by ballot initiative to provide relief from one of the country’s strictest disenfranchisement provisions.  On Friday, shortly after the Governor signed into law a bill conditioning restoration of the vote on payment of all court-imposed debt, a group of civil rights organizations filed suit in federal court, claiming that the new law violates the Constitution in several ways, most premised on the notion that disenfranchisement constitutes punishment.  Among other things, the suit argues that “the Fourteenth Amendment’s doctrine of fundamental fairness prevents states from punishing individuals if they fail to do the impossible—satisfy legal financial obligations when they do not have the means to do so,” and that the new law violates Equal Protection in discriminating between those who are able to pay and those who are not.  We intend to follow this litigation all the way to the Supreme Court, if necessary.

Here is the Colgan article’s abstract: Read more

Marijuana decriminalization drives expungement reform

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:  Read more

First crop of restoration laws enacted in 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.

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