Category: Civil practice

Florida felony disenfranchisement law held unconstitutional

This evening the district court issued its opinion in Jones v. DeSantis finding, as expected, that Florida’s system for restoring voting rights to those convicted of a felony is unconstitutional. The opinion is at this link, and its summary by the court is below. Additional details of the decision and the court’s order are reported in this article from the New York Times, and we will report further on the case, including next steps, in a few days.

The State of Florida has adopted a system under which nearly a million otherwise-eligible citizens will be allowed to vote only if they pay an amount of money. Most of the citizens lack the financial resources to make the required payment. Many do not know, and some will not be able to find out, how much they must pay. For most, the required payment will consist only of charges the State imposed to fund government operations—taxes in substance though not in name.

The State is on pace to complete its initial screening of the citizens by 2026, or perhaps later, and only then will have an initial opinion about which citizens must pay, and how much they must pay, to be allowed to vote. In the meantime, year after year, federal and state elections will pass. The uncertainty will cause some citizens who are eligible to vote, even on the State’s own view of the law, not to vote, lest they risk criminal prosecution.

This pay-to-vote system would be universally decried as unconstitutional but for one thing: each citizen at issue was convicted, at some point in the past, of a felony offense. A state may disenfranchise felons and impose conditions on their reenfranchisement. But the conditions must pass constitutional scrutiny. Whatever might be said of a rationally constructed system, this one falls short in substantial respects.

The United States Court of Appeals for the Eleventh Circuit has already ruled, in affirming a preliminary injunction in this very case, that the State 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). Now, after a full trial on the merits, the plaintiffs’ evidence has grown stronger. This order holds that the State can condition voting on payment of fines and restitution that a person is able to pay but cannot condition voting on payment of amounts a person is unable to pay or on payment of taxes, even those labeled fees or costs. This order puts in place administrative procedures that comport with the Constitution and are less burdensome, on both the State and the citizens, than those the State is currently using to administer the unconstitutional pay-to-vote system.

 

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.

Read more

Broken records: criminal history errors cost jobs and housing

Ariel Nelson of the National Consumer Law Center has authored an important new report, Broken Records Redux, which describes how errors by criminal background check companies harm consumers seeking jobs and housing.  In particular, the report shows how background screeners continue to include sealed and expunged records in criminal background check reports, omit disposition information, misclassify offenses, mismatch the subjects of records, and include other misleading information.  The report also examines problems arising from the use of automated processes to evaluate prospective employees and tenants.

This report, a sequel to a 2012 NCLC report on criminal background errors, observes that since 2012 advocates and federal agencies have litigated many actions for violations of the Fair Credit Reporting Act (FCRA), leading to settlements and judgments requiring background screeners to reform their processes and pay millions in penalties and relief to consumers.  Despite these lawsuits, “companies continue to generate inaccurate reports that have grave consequences for consumers seeking jobs and housing.”  Based on these issues, the report recommends a broad array of legislative and regulatory changes at the federal and state level.  Accompanying the report is an article: Fertile Ground for FCRA Claims, which describes FCRA violations that can result from “inaccurate, incomplete, or outdated” background checks.

This new report also provides support for policy recommendations in our recently released Model Law on Non-Conviction Records, including restrictions on the dissemination of expunged records and records indicating no disposition by commercial providers of criminal records.

“For expungement and clean slate laws to succeed in removing barriers to employment and housing, they must take into account issues like background check reporting, data aggregation, and the use of stale data,” says Nelson, the author of the NCLC report. “I’m happy to see that CCRC’s Model Law on Non-Conviction Records provides guidance for addressing those issues.”

Model law proposes automatic expungement of non-conviction records

An advisory group drawn from across the criminal justice system has completed work on a model law that recommends automatic expungement of most arrests and charges that do not result in conviction.  Margaret Love and David Schlussel of the Collateral Consequences Resource Center served as reporters for the model law.  It is available in PDF and HTML formats.

“Many people may not realize how even cases that terminate in a person’s favor lead to lost opportunities and discrimination,” says Sharon Dietrich, Litigation Director of Community Legal Services of Philadelphia, and one of the advisors of the model law project.  “Over the years, my legal aid program has seen thousands of cases where non-convictions cost people jobs.”

In proposing broad restrictions on access to and use of non-conviction records, the project aims to contribute to conversations underway in legislatures across the country about how to improve opportunities for people with a criminal record.  Already in 2019, states have enacted more than 130 new laws addressing the collateral consequences of arrest and conviction.  The group regards its model as the first step in a broader law reform initiative that will address conviction records as well.

Law enforcement officials make over 10 million arrests each year, a substantial percentage of which do not lead to charges or conviction.  Records of these arrests have become widely available as a result of digitized records systems and a new commerce in background screening and data aggregation.  These checks often turn up an “open” arrest or charges without any final disposition, which may seem to an employer or landlord more ominous than a closed case.

Very few states have taken steps to deal with the high percentage of records in repositories and court systems with no final disposition indicated.  Paul McDonnell, Deputy Counsel for New York’s Office of Court Administration and a project advisor, noted: “Criminal records that include no final disposition make it appear to the untrained eye that an individual has an open, pending case, which can have serious results for that person. New York has recently made legislative progress in addressing this problem, though more can be done.”

Current state and federal laws restricting access to and use of non-conviction records have limited application and are hard to enforce.  Eligibility criteria tend to be either unclear or restrictive, and petition-based procedures tend to be burdensome, expensive, and intimidating.  In recent years, lawmakers and reform advocates have expressed a growing interest in curbing the widespread dissemination and use of non-convictions, leading some states to simplify and broaden eligibility for relief, reduce procedural and financial barriers to access, and in a handful of states to make relief automatic.

Rep. Mike Weissman, a Colorado State Representative and model law project advisor, noted that Colorado has recently overhauled its laws on criminal records with broad bipartisan support.  “It is heartening to see similar reforms underway in other states, both red and blue, as well.  I commend the practitioners and researchers who helped formulate the model law for illustrating avenues for further progress in reducing collateral consequences.”

The model law would take this wave of criminal record reforms to a new level.  It recommends that expungement be immediate and automatic where all charges are terminated in favor of an accused.  Uncharged arrests should also be automatically expunged after a brief waiting period, as should dismissed or acquitted charges in cases where other charges result in conviction.  Cases that indicate no final disposition should also be expunged, unless there is indication that they are in fact pending.

The model law also recommends that expunged non-conviction records should not be used against a person in a range of criminal justice decisions, including by law enforcement agencies.  It would prohibit commercial providers of criminal background checks from disseminating expunged and dated non-conviction records, and civil decision-makers from considering them.

David LaBahn, President of the national Association of Prosecuting Attorneys, indicated that organization’s support for the model law, stating that the collateral consequences of non-convictions “do not serve to make the community safer,” and that “the current structures in place to expunge a non-conviction record can be confusing and difficult for the layperson to navigate alone.”

This model law sets the stage for jurisdictions to address record relief for convictions more generally, and its structure and principles can be brought to bear on that important work.

The Collateral Consequences Resource Center organized this model law project.  An early draft of the model law was discussed at an August 2019 Roundtable conference at the University of Michigan that was supported by the Charles Koch Foundation.  The model law report was supported by Arnold Ventures.

Read the model law in PDF or HTML.

Justice Gorsuch on collateral consequences and due process

In Sessions v. Dimaya, 138 S. Ct. 1204 (2018), Justice Gorsuch provided the essential fifth vote to affirm a finding that the “residual clause” of the Armed Career Criminal Act was too vague to be applied in a deportation case. The residual clause defined a “crime of violence” as including “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” A crime constituting a crime of violence was deemed an “aggravated felony” requiring deportation and rendering a non-citizen ineligible for almost all forms of relief.

Justice Gorsuch’s concurring opinion contains at least two points important for the law of collateral consequences.  First, he is much more concerned with the seriousness of the deprivation rather than its categorization as civil or criminal when evaluating how much process is required under the Constitution.  Unimpressed with the line of cases that treated deportation as quasi-criminal, he notes:

grave as that penalty may be, I cannot see why we would single it out for special treatment when (again) so many civil laws today impose so many similarly severe sanctions. Why, for example, would due process require Congress to speak more clearly when it seeks to deport a lawfully resident alien than when it wishes to subject a citizen to indefinite civil commitment, strip him of a business license essential to his family’s living, or confiscate his home? I can think of no good answer.

Id. at 1231 (Gorsuch J., concurring).1

His solution is to level up the process due (in this case, the necessary degree of specificity required of statutory provisions) in civil cases, rather than level down criminal protections: “any suggestion that criminal cases warrant a heightened standard of review does more to persuade me that the criminal standard should be set above our precedent’s current threshold than to suggest the civil standard should be buried below it.” Id. at 1229.

A second interesting point is his guidance for legislatures about how penalty clauses like the one at issue could be drafted.  He notes that “the statute here fails to specify which crimes qualify for [the label of crime of violence],” id. at 1231, and that “Congress remains free at any time to add more crimes to its list.” Id. at 1233.  Many collateral consequence provisions, among other statutes, have the character of the provision voided here: they disqualify based on a quite general description of the crimes that give rise to the consequence (e.g., crimes involving dishonesty), and ask courts or agencies to evaluate specific offenses one at a time to determine whether they fit the categorical criteria.  Only after that process of evaluation do we know whether the consequence applies.

Instead of courts or agencies guessing what legislatures had in mind, it would be perfectly practical instead for Congress and state legislatures, when drafting the law in the first instance, to go item by item through the criminal codes, actually determine whether specific provisions should result in disqualification, and provide a list of those triggering crimes in the statute creating the consequence.  This is the approach of a recent Kansas statute.  If Justice Gorsuch is right that the Constitution is structured to “ensure fair notice before any deprivation of life, liberty, or property could take place,” id. at 1228, this cataloging effort does not seem like too much to ask.