Yesterday, we filed an amicus brief in the U.S. Court of Appeals for the Eleventh Circuit in a case about the constitutionality of Florida’s system for restoring the vote to people with felony convictions. We urge the court to affirm the lower court decision’s that declared Florida’s “pay-to-vote” system unconstitutional. The brief draws on our new 50-state research report to show that Florida’s approach to this issue is an outlier among the states.
We were ably represented by Andrew L. Frey, Scott A. Chesin, and Luc W. M. Mitchell of Mayer Brown and very much appreciate their work.
Our brief is a contribution to high-stakes federal litigation in Florida over that state’s 2018 ballot initiative, Amendment 4, which many expected would restore voting rights to more than a million people disenfranchised because of their criminal record, in some cases for crimes that occurred decades ago. However, the initiative has been interpreted by Florida’s legislature and supreme court to condition reenfranchisement on payment of all outstanding fines, fees, costs, and restitution, which threatens to drastically limit its anticipated reach.
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.
At this time of pandemic, we have been following the discussions of how jail, prison, and immigration detention conditions are highly concerning, including the very useful collection of links provided by Professor Doug Berman, the demands published by advocacy organizations, and the collection of policy responses by the Prison Policy Initiative. We agree that every available legal mechanism must be enlisted to secure the release of prisoners and detainees who pose little or no threat to public safety, and whose health and safety are themselves severely threatened by their enforced captivity. This includes the great constitutional powers given to governors and pardon boards. We therefore commend our newly revised pardon resources to advocates and policy makers to support their advocacy and action.
While our pardon-related research focuses primarily on how the power is used to restore rights and status to those who are no longer in prison, much of our information about how the pardon process is structured and operates is relevant to how the power might be used (or is already being used) to commute prison sentences during the pandemic. Our revised pardon resources are part of a major revision of the CCRC Restoration of Rights Project, not only to make sure its information is current in light of the many recent changes in the law, but also reorganizing and revising its resources for clarity and easier access. In the process, we have updated and revamped our state-by-state material on how the pardon process operates in each jurisdiction, noting that the process has become more regular and productive in a few states in the past several years.
Our 50-state pardon comparison is organized into four sections:
- Section 1 provides a chart comparing pardon policy and practice across jurisdictions.
- Section 2 lists jurisdictions by frequency and regularity of their pardon grants.
- Section 3 sorts jurisdictions by how the administration of the power is structured.
- Section 4 provides state-by-state summaries of pardon policy and practice, with links to more detailed analysis and legal citations.
We hope this information will be helpful to advocates across the country as we work to keep all people safe and healthy, including those in our prisons and jails.
In true Minority Report fashion, state actors are increasingly relying on algorithms to assess the risk a person will commit a future crime. Unlike Minority Report, these algorithms simply estimate the likelihood of rearrests; they do not offer the absolute answer to future criminal behavior that condemned the defendant, Tom Cruise, in the 2002 action film. Still, criminal justice actors are using many types of algorithmic risk assessments to inform their decisions in pre-trial investigations, bail recommendations and decisions, and post-trial sentencing and parole proceedings. Sandra G. Mayson’s article, Bias In, Bias Out, published this year in the Yale Law Journal, explains how these algorithms could reflect and project past and present racial bias in the criminal justice system and elsewhere.
At its core, an algorithm specifies individual traits that are correlated with crime commission. If the data show that people of color are arrested more frequently, then the algorithm will predict more arrests for people of color. In this sense, an accurate algorithm “holds a mirror to the past” by “distilling patterns in past data and projecting them into the future.” Mayson provides an in-depth, yet easy-to-follow explanation of why race neutrality is unattainable when the base rates of arrest differ across racial groups. These mirror-like algorithms give us the opportunity to clearly view the racial disparity in arrests and convictions. Is there something wrong with this image, and what should we do now that we’ve seen it?
On October 8, Governor Newsom signed into law AB 1076, the so-called “Clean Slate Act,” authorizing automatic record relief in the form of set-aside or sealing for individuals with certain convictions and arrests under California law. The new law supplements but does not supplant the existing system of petition-based relief, and applies to convictions and arrests occurring after the bill’s effective date of January 1, 2021. Eligibility for automatic relief under the new law is similar to but not precisely coincident with eligibility under existing law. The new law also for the first time prohibits courts and the state repository from disclosing information about conviction records that have been granted relief, except where specifically authorized, whether under the new automatic process or the older petition-based system.
California is now the third state to adopt general “clean slate” record relief, after Pennsylvania (2018) and Utah (2019). While the automatic feature of the new law has prospective effect only, its limits on disclosure will, when effective, apply to all conviction records that have at any time been dismissed or set aside, whether automatically or by petition, as well as to all arrests and other non-conviction records that have been sealed. The specific features of AB 1076 are described in detail in the following comment posted on October 3.
Governor Newsom also on October 8 signed two other bills that affect collateral consequences: SB 310 amends Section 203 of California’s Code of Civil Procedure to make people convicted of a felony eligible to serve of a trial jury unless incarcerated or under supervision, or required to register as a sex offender based upon a felony conviction; and AB 1394 repeals a law requiring that juveniles pay a fee to have their records sealed.
*Update 2: On November 25, 2019, the Supreme Court denied the petition.
*Update (11/1/2019): On September 23, 2019, the Supreme Court asked Iowa to respond to the cert petition. Iowa’s response is here. The petitioner’s reply is here.
On September 9, we filed an amicus brief at the U.S. Supreme Court urging the justices to review and reverse a decision out of Iowa that upholds wealth-based barriers to expungement. We were joined by the Institute for Justice, a libertarian public interest law firm. At issue in the case is an Iowa law that bars a person from obtaining expungement of a dismissed or acquitted case if they owe any court fees in the case. We point out the inequity of denying access to expungement based on socio-economic status: “The irony of Iowa’s expungement law could not be clearer: a law that removes a hurdle to employment and economic security cannot be invoked by indigent individuals until outstanding costs and fees are paid to the state, effectively defeating the very purpose of providing expungement relief in the first place.”
This case arises from Jone Doe’s request in 2018 to expunge her dismissed criminal case from 2009. But she still owes $550.38 for her court-appointed attorney, which she cannot afford to pay. Doe argued the requirement to pay outstanding fees before obtaining expungement violates her equal protection rights under the constitution. She pointed out that had she been able to hire a private attorney, she would be eligible for expungement, whether or not she owed attorney fees. The lower court denied the request, finding that Doe “was made aware of reimbursing attorney fees and that expungement could not occur until all fees and assessed costs were paid.” The Iowa Supreme Court, by a 4-3 vote, upheld the requirement, finding the state has a legitimate purpose “to encourage payment of court debt.” On petition to the Supreme Court, we urge the Court to “grant certiorari and hold that one’s inability to pay court fees may not restrict access to statutorily-created expungement rights.”
We were represented by Ethan P. Fallon and Thomas M. Bondy of Orrick, Herrington, & Sutcliffe LLP, and appreciate their work on this case. The full amicus brief is available here.
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 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.”
Colorado joins other states this session that passed legislation to avoid federal immigration consequences of state criminal matters. The new Colorado laws—SB 30 and HB 1148—work at different stages of criminal proceedings to protect people from possible deportation: SB 30 remedies past wrongs by vacating unconstitutional guilty pleas, and SB 1148 will prevent future deportations resulting from potential one-year sentences.
On May 28, Colorado enacted SB 30, which went into effect immediately and helps ensure that when a person is offered a non-conviction diversion, it is not treated as a conviction for immigration purposes. In many states, people facing criminal charges are offered the chance to avoid a conviction by agreeing to a type of diversion called deferred adjudication. They plead guilty and complete a period of probation, after which the plea is withdrawn and charges are dismissed. Sounds good right? Not for a non-citizen. In that case, federal law treats this arrangement as a conviction—sufficient to initiate deportation proceedings. See 8 U.S.C. § 1101(a)(48)(A); § 1227(a)(2). However, such a plea may be unconstitutional if a person was not properly advised of these immigration consequences. See Padilla v. Kentucky, 559 U.S. 356 (2010).
The new Colorado law provides procedures for courts to vacate an unconstitutional guilty plea where it has already been withdrawn and the charges dismissed. See Colo. Rev. Stat. § 18-1-410.5. Read more
This is the title of a study by UCLA law professor Beth Colgan, published in the Vanderbilt Law Review, in which she documents how every state that disenfranchises people based upon criminal conviction also conditions restoration of the vote for at least some people upon their ability to pay. In some states this is because the law requires people to pay fines, fees, restitution and other court costs before they can vote. Even in the states that restore the vote immediately upon release from prison, “wealth-based penal disenfranchisement” may occur through policies applied by parole and probation authorities. Colgan proposes that such laws and policies can be challenged on Equal Protection grounds, arguing that felony disenfranchisement should be considered not as a civil rights deprivation but as punishment. She argues that the test developed by the Supreme Court in cases involving disparate treatment between rich and poor in criminal justice practices, should operate as a flat prohibition against “the use of the government’s prosecutorial power in ways that effectively punish one’s financial circumstances unless no other alternative response could satisfy the government’s interest in punishing the disenfranchising offense.”
Colgan’s article is particularly relevant in light of Florida’s recent enactment of a law that seems to frustrate the will of the 64% of Florida voters who acted last fall by ballot initiative to provide relief from one of the country’s strictest disenfranchisement provisions. On Friday, shortly after the Governor signed into law a bill conditioning restoration of the vote on payment of all court-imposed debt, a group of civil rights organizations filed suit in federal court, claiming that the new law violates the Constitution in several ways, most premised on the notion that disenfranchisement constitutes punishment. Among other things, the suit argues that “the Fourteenth Amendment’s doctrine of fundamental fairness prevents states from punishing individuals if they fail to do the impossible—satisfy legal financial obligations when they do not have the means to do so,” and that the new law violates Equal Protection in discriminating between those who are able to pay and those who are not. We intend to follow this litigation all the way to the Supreme Court, if necessary.
Here is the Colgan article’s abstract: Read more
On May 10, the Iowa Supreme Court rejected an equal protection challenge to a requirement in Iowa law that applicants for expungement (sealing) of non-conviction records must first repay what they owe in court-appointed counsel fees. This surprising decision strikes us as unfair on several levels, and out of step with what most other states provide where limiting public access to non-conviction records is concerned. Rob Poggenklass of Iowa Legal Aid, which brought the case, describes the decision below.
Update: A petition for certiorari is expected to be filed in the U.S. Supreme Court later this summer. CCRC has agreed to file an amicus brief, which we expect will be joined by other organizations on “both sides of the aisle.”
Iowa Supreme Court finds collection of court-appointed attorney fees a rational precondition for expungement
By Rob Poggenklass
In State v. Doe, the state’s highest court held in a 4–3 decision that the legislature could condition eligibility for expungement on payment of fees owed to court-appointed counsel, just as it requires payment of other court debt. In 2015, the General Assembly enacted chapter 901C, which entitles people to expungement of criminal cases that were dismissed or in which the person was acquitted at trial, assuming a few criteria are met. One significant requirement for expungement is the repayment of all court debt associated with the case. This includes fees charged to the court by the counsel it appoints for indigent defendants, which in Iowa are often assessed even in acquittals and dismissed cases. See Iowa Code section 815.9(6).