After U.S. District Judge Mark Walker ruled Florida's process for restoring felons' civil rights was unconstitutional in early February, he allowed me to file a friend of the court brief to assist the court as it considered possible solutions. The brief provides background and context about aspects of the state's largely confidential process that might not have been apparent. I'd like to share some of that perspective.
• Florida accounts for about a quarter of all Americans convicted of felony offenses who completed their sentences but are still barred from voting, according to research highlighted by the Sentencing Project in Washington, D.C. That's about 1.5 million people in the Sunshine State. In contrast, some states allow inmates to vote from prison.
• It's been widely reported that 155,000 people regained their civil rights to vote, serve on a jury and hold public office (firearm authority is handled separately) in Florida during the four years Charlie Crist was governor. Crist and the Cabinet essentially changed the rules to facilitate more expansive restoration for largely nonviolent ex-offenders.
• Only 2,807 people regained their civil rights from January 2011, when Gov. Rick Scott and the Cabinet were sworn in, through Oct. 5, 2017, under the far more restrictive and cumbersome rules they implemented during their first meeting as Florida's Clemency Board in March 2011 — that's only 1.8 percent of the 155,000 under Crist despite nearly twice the time.
• What's not widely reported is that substantially more than 155,000 people complete felony sentences in Florida during any given four-year period, so even at the elevated rate under Crist there was a rapidly expanding population of citizens in Florida with no voice in their governance.
• The reported current backlog of 10,000 doesn't tell the whole story. Why? Because Scott and the Cabinet confronted a 100,000 backlog from Crist, which they "eliminated" by applying their new rules retroactively.
• Scott and the Cabinet assert that victims are their priority, and that people should demonstrate they're on the right path before regaining civil rights. But whatever their intent, here's the effect: Florida's highly restrictive civil rights restoration process disproportionately impacts minorities, particularly those whom Florida Department of Corrections statistics identify as black.
• Some assert restoration of civil rights upon completion of sentence would favor the Democratic Party. But statistics don't unequivocally support this popular narrative. FDC's annual report for 2016-17 documents more inmates in custody identified as black than white. But of those released, more identified as white. And of those subject to community supervision like probation, substantially more identified as white than black.
• In my brief, I clarified the relationship between civil rights restoration and felon eligibility to apply for various state occupational licenses, and the nexus to public safety. Simply put, there isn't one. For historical perspective, Gov. Reubin Askew supported civil rights restoration upon completion of sentence without regard to the nature of the offense. And research by the Florida Commission on Offender Review (the investigative arm of Florida's Clemency Board) indicates a positive correlation between civil rights restoration and reducing recidivism.
• Another section of the brief compares three decidedly different proposals considered by the Florida Constitution Revision Commission, one essentially a placeholder for the citizens' initiative. All were withdrawn surrounding its certification for the November 2018 ballot.
• Yet another section addresses civil rights obligations and felony disenfranchisement under the International Covenant on Civil and Political Rights, a treaty ratified by the U.S. Senate during President George H.W. Bush's administration based on the Universal Declaration of Human Rights.
The U.S. Court of Appeals for the 11th Circuit, which upheld Florida's process in Johnson vs. Bush in 2005, could conceivably affirm Walker's rulings and decide the rule changes Attorney General Pam Bondi proposed in 2011 that Scott and the Cabinet approved went too far.
If the citizens' initiative — Amendment 4 —- garners 60 percent in November, voting eligibility would be routinely restored upon completion of felony sentences except murder and sex offenses. And the case before Walker on appeal would be largely moot. The Brennan Center for Justice at New York University helped shape the amendment's language. These exceptions were based on polling.
The objective was to be inclusive as mainstream sensibilities might reasonably allow, recognizing there was no public safety imperative to treat violent and nonviolent case histories differently upon completion of sentence for voting. Accordingly, the citizens' initiative is arguably under-inclusive — a fact for those predisposed to vote no in November to consider. Whatever the outcome, a new governor and Cabinet will be sworn in several weeks afterward.
Mark Schlakman is senior program director for Florida State University's Center for the Advancement of Human Rights. He was an assistant general counsel and clemency aide to Gov. Lawton Chiles, and later served as principal investigator of a project funded in part by Administration of Justice grants from the Florida Bar Foundation, entitled Rethinking Civil Rights Restoration in Florida.