Steve Phalen is thirty-six years old, but because of an arson conviction in 2005, he hasn’t voted since he was in college. Phalen lives in Florida – a place where, until recently, felony convictions permanently disenfranchised citizens unless their rights were restored through executive clemency. Then, in 2018, things changed. Voters in Florida overwhelmingly approved a constitutional amendment to curtail the practice of permanent disenfranchisement. Amendment 4 automatically restores voting rights to people who have completed all terms of their sentence, including parole or probation, except for those convicted of sexual offenses or murder. Now Phalen, along with more than a million other Floridians who had completed their criminal sentences, were forecasted to be re-enfranchised. When Amendment 4 passed, Phalen sent a text message to his friend: “I’ve got one of those full, involuntary smiles and a feeling of agency I haven’t felt in nearly 13 years.”

Once Amendment 4 went into effect in January 2019, Florida saw a surge in voter registration –  but it didn’t last. In May, the Florida legislature passed Senate Bill 7066. The bill, designed to “implement” the Amendment, redefined “terms of sentence” to include all fines, fees, and restitution ordered at sentencing or as a condition of supervision. A majority of people with felony convictions in Florida, including Phalen, have some unpaid fines or fees after completing the remainder of their sentences. Phalen still owes more than one hundred thousand dollars in civil liens. On October 19, a federal judge issued a preliminary injunction against Senate Bill 7066; but the fight continues. For Phalen and hundreds of thousands of others, financial burdens could render the right to vote beyond reach.

The origins of wealth-based penal disenfranchisement

Felony disenfranchisement has racist roots. Governments, especially in the South, enacted laws disenfranchising those convicted of certain crimes in a clear, targeted attempt to prevent black citizens from exercising political power. But in the first half of the 20th century, its effects were eclipsed by the slew of other devices used to disenfranchise.[1] Then two things changed.

First, acceptable methods of disenfranchisement narrowed. Until the 1960s, states had several avenues available to them to suppress black and low-income voters: substantial poll taxes, literacy tests, and residence requirements.[2] Then the Supreme Court deemed the right to vote fundamental and began assessing electoral measures with increased scrutiny when they involved protected classes. Under this new scheme, the Court in Harper v. Virginia Bd. of Elections invalidated the poll tax.

But formerly incarcerated people are not considered a protected class. Nor, as the court found a decade later in Ramirez c. Richardson, do they have a fundamental right to vote. For those who see the right to vote as a privilege to be earned and, more maliciously, for those who seek to suppress the minority vote, felony disenfranchisement became the best tool available by the late 20th century.

Second, there was a massive increase in incarceration. Since 1970, the incarcerated population has increased by 700 percent. The criminal system today touches more people than ever before, disenfranchising 6.1 million Americans. And it’s also costly. That’s where the expansion of Legal Financial Obligations (LFOs) comes in. LFOs, which include court-ordered restitution, fines, and fees, allow courts to shift the cost of mass incarceration onto convicted people. While restitution goes to victims, fines and fees raise revenue for administering the criminal system and even for unrelated municipal services. Most states require fees for post-incarceration supervision, making expiration of parole or probation – which often is required for restoration of voting rights – contingent on paying these fees. Today 10 million people owe the courts more than $50 billion in fines and fees. Since 1996, Florida has “added more than 20 new categories of financial obligations for criminal defendants and, at the same time, eliminated most exemptions for those who cannot pay.” Florida’s courts rely almost entirely on fees for funding, producing the term “cash register justice.”

In recent years, states have been replacing permanent disenfranchisement statutes with limited re-enfranchisement statutes conditioned on payment of LFOs.[3] Courts, in turn, have affirmed the constitutionality of these statutes, which, under Ramirez, require only a rational basis.[4]

The magnitude of the problem

Seven states besides Florida have enacted statutes explicitly requiring payment of LFOs before restoring voting rights. Twenty additional states condition voting rights restoration on completion of parole or probation, which itself requires payment of LFOs. Two states permanently disenfranchise those with felony convictions but require payment of court debt for clemency eligibility.

For many, conditioning the right to vote on payment of LFOs functions in practice as permanent disenfranchisement. One study found that a returning citizen’s family owes, on average, $13,600 in fines and fees alone. Paying off LFOs might require additional payments to debt collection firms – firms in Florida, for example, can charge up to a 40 percent surcharge. Those who cannot pay might watch their debt increase as interest accrues. Savings research tells us that 60 percent of Americans believe they could not amass $500 in an emergency if they had to. And on top of that, the unemployment rate for formerly incarcerated people is five times higher than the overall unemployment rate.

State and county governments couldn’t possibly expect the disproportionately poor population that ends up in the criminal system to pay off these crushing debts. And it seems they don’t. From 2014 to 2018, the state Clerk of Courts in Florida labeled an average of 83 percent of the money owed as having “minimal collections expectations,” meaning the courts know the convicted person is too poor to pay the debt. The debt to the courts merely functions as a barrier to the vote – a modern poll tax – excluding a defined group of people from civic participation.

What is a sentence, and who decides?  

In Florida, the legislature managed to undercut Amendment 4 by offering an expansive interpretation of the phrase “all terms of their sentence” – one that included payment of LFOs. Republican lawmakers claim that this new statute was a necessary clarification of a vague law. Florida is not the only state facing a vagueness problem. Georgia, Kansas, Nebraska, and West Virginia all preclude voting restoration until the completion of a criminal sentence.[5] But election officials in Georgia and Kansas interpret “sentence” as inclusive of financial sanctions, while election officials in Nebraska and West Virginia do not. In New York, the Governor has taken executive action to re-enfranchise citizens despite court fines and fees; however, a future governor could easily reverse course. The ability of executive officials to act unilaterally on this issue makes enfranchisement unreliable and insecure for anyone with court debt.

Additionally, formerly incarcerated people and government bureaucrats misunderstand the law due to the complex and variable nature of LFOs. First, LFOs differ state to state. Florida, specifically, is known for a “labyrinth” of fines and fees that is often confusing even for the Clerk of Courts. Second, the unique combination of civil and criminal traits that LFOs have make them function as “invisible punishments.”[6] On the civil side, they often operate outside of criminal sentencing. They are sometimes not codified, and criminal defense attorneys usually do not have a working knowledge of them. Yet, LFOs can also function as punishments and carry along with them the deprivation of rights.

Studies show that the confusing nature of these laws keeps eligible voters away from the polls. Minorities are especially affected. Eligible and registered black voters are 12 percent less likely to vote if they live in states with permanent disenfranchisement statutes, compared to just one percent of white voters.

Moving Forward

The best way to end a wealth-based system of disenfranchisement is to eliminate felony disenfranchisement. Courts could also eliminate LFOs in felony cases, where collection rates are extremely low anyway. Short of those measures, there are ways to address the problem. States should exempt indigent defendants from LFOs. Because supervision fees during probation and parole extend disenfranchisement, states should restore voting rights automatically upon release from incarceration. At the least, states should permit those who cannot afford to pay supervision fees to waive them.

Doctrinally, Ramirez sets up a difficult road for a constitutional challenge. However, there are possibilities. Because of the link between race and wealth in this country, one argument is that these statutes disproportionately affect black people, a protected class.[7] Another option is to attack the constitutionality of disenfranchisement for unpaid court fees alone, apart from other LFOs. Fees resemble taxes because they do not relate to the crime, unlike fines, and they can be used for any government service, unlike restitution.[8] Their similarities to poll taxes makes fees particularly suited for a Twenty-Fourth Amendment challenge.

Premising voting rights on the ability to pay is counter to the idea espoused in Harper that the right to vote is fundamental. It also has heavy racial and class implications. And, given its racist routes, felony disenfranchisement targets minorities; in the U.S., one in five black people have had their right to vote revoked compared to one in 56 non-black people. Electoral exclusion has practical effects on policy – disenfranchised communities lose political power through vote dilution, which eventually diverts resources out of their neighborhoods.[9] Denying the vote is an instrument of social exclusion, a way to reinforce the “perpetual marginality”[10] of people who are convicted of crimes and cannot afford the crushing fees levied upon them.

It makes you feel, according to Steve Phalen, “like you’re never going to fully be a part of this country anymore.”

 

[1] Marc Meredith & Michael Morse, Discretionary Disenfranchisement: The Case of Legal Financial Obligations, 46 J. Legal Stud. 309, 314-15 (2017).

[2] Id. at 315.

[3] Ann Cammett, Shadow Citizens: Felony Disenfranchisement and the Criminalization of Debt, 117 Penn St. L. Rev. 349, 387 (2012).

[4] Cammett, supra note 3.

[5] Beth A. Colgan, Wealth-Based Penal Disenfranchisement, 72 Vand. L. Rev. 55, 66 (2019).

[6] Cammett, supra note 3, at 371.

[7] Meredith & Morse, supra note 1, at 317.

[8] Meredith & Morse, supra note 1, at 311.

[9] Cammett, supra note 3, at 366.

[10] Cammett, supra note 3, at 374.