DeSantis and Cabinet revise clemency rule

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Change deals with state’s restitution requirement for felons

clemency rule CARLINE JEAN /SUN SENTINEL/TNS
Voters overwhelmingly approved Amendment 4 in 2018, which restored voting rights to ex-felons. But the Florida Legislature
added stipulations that have thrown the process into legal limbo.                                   CARLINE JEAN /SUN SENTINEL/TNS

BY DARA KAM NEWS SERVICE OF FLORIDA

TALLAHASSEE – Amid a federal-court challenge to a state law requiring felons to pay “legal financial obligations” to be eligible to vote, Gov. Ron DeSantis and the Florida Cabinet unanimously signed off on a proposal Tuesday that would make it easier for felons who owe restitution to get their rights restored.

The revised rule, approved by DeSantis and the Cabinet acting as the Board of Executive Clemency, is the latest move in a drawn-out legal and political battle over the restoration of rights in Florida, with critics accusing the state of refusing to let go of a process designed to keep black people from voting.

The revamped clemency rule will allow felons who have waited at least seven years after they have completed their time behind bars and have fulfilled other requirements but owe restitution to victims to request a hearing from the clemency board. Under the current rules, restitution must be paid in full before felons can apply to have their rights restored.

Follows court opinion

The current process will remain the same for felons who are eligible for clemency without a hearing.

Felons who have not been convicted of murder, sex offenses or other violent crimes – such as those resulting in death – and who have completed their sentences, paid restitution and have not committed any crimes for five years may apply to have their rights restored without a hearing.

The change, proposed by DeSantis and unanimously approved by Attorney General Ashley Moody, Agriculture Commissioner Nikki Fried and Chief Financial Officer Jimmy Patronis, followed a recent Florida Supreme Court opinion that found the state law properly carried out a 2018 constitutional amendment aimed at restoring the rights of felons who have completed terms of their sentences.

‘Great first step’

Perhaps more important, the revised clemency rule could satisfy a federal judge’s ruling that the state must have a way for felons who cannot afford to pay “legal financial obligations” to register to vote.

Moody called the new process “a great first step,” saying that a series of recent court rulings “will give us the opportunity to more comprehensively look at the rules and determine how we can best tackle the backlog of cases.”

Moody said she looks forward to “a more comprehensive revision” of the clemency rules.

Fried cites backlog

But Fried, the lone Democrat on the Cabinet, said the revamped rule, while a good “first step,” doesn’t go far enough.

“This only actually applies to citizens that require a board hearing by rule.  This will have no effect on the current backlog of over 10,000 pending RCR (restoration of civil rights) applications,” Fried, who has pushed the clemency board to revise its rules to make it easier for felons to have their rights restored, said during Tuesday morning’s telephone meeting.

Fried said the board should remove the restitution requirement for felons who don’t need a hearing.

“Failing to also remove this restitution requirement for those applicants is counterintuitive. As of January 1, there are 620 of those applicants eligible for RCRs without a hearing,” she said.

Meade responds

Backers of 2018 constitutional amendment, known as Amendment 4, called the revised rule “a small step in the right direction.”

“Lost in the political chatter are the lives of real people, public safety, and Florida taxpayers,” Desmond Meade, executive director of the Florida Rights Restoration Coalition, said in a prepared statement.

“Restoring civil rights “drastically reduced recidivism rates,” “saves hundreds of millions of Florida taxpayers dollars annually,” and allows people “from all walks of life to stimulate our economy and democracy,” he added.

Pending applications

The clemency board met by telephone Tuesday morning to consider the rule revision, which was not posted online and was not available to the public until after the unanimous vote.

It’s unclear whether the change to the rules will intensify a backlog of clemency applications. As of Jan. 1, there were 23,798 pending applications for restoration of rights, according to the Commission on Offender Review.

“Legal financial obligations” – fees and fines imposed by the court, as well as restitution – were a flashpoint last year as state legislators crafted a law aimed at implementing Amendment 4.

Voting-rights groups and civil-rights advocates quickly challenged the law in federal court, arguing in part that linking finances and voting rights amounts to an unconstitutional “poll tax.”

Hinkle’s ruling

Siding with plaintiffs in October, U.S. District Judge Robert Hinkle ruled that the state cannot deny the right to vote to felons who are “genuinely unable to pay” the legal financial obligations. The 11th U.S. Court of Appeals in Atlanta is scheduled to hear arguments in the state’s appeal of Hinkle’s decision on Jan. 28.

In a Dec. 20 ruling, Hinkle refused to block part of his decision that allows county elections supervisors to continue registering felons who assert they are unable to pay outstanding fees and fines.

The federal judge, however, blocked the ability of felons who are unable to pay legal financial obligations to vote, at least for now.

Noting the “unusual circumstances of this case,” Hinkle wrote that blocking the first part of his preliminary injunction – which allowed registration of felons to vote – “would interfere with the ability of plaintiffs to exercise their constitutional rights.”

Separate challenge

If the appeals court upholds his injunction, the plaintiffs will “be in a position to vote on a showing of genuine inability to pay,” Hinkle wrote. If the appeals court strikes down the injunction, the plaintiff won’t be allowed to vote and will be removed from the voting rolls.

Meanwhile, the federal appellate court recently dismissed a separate, bitterly fought challenge to Florida’s clemency process.

A three-judge panel of the 11th U.S. Circuit Court of Appeals this month decided that the passage of Amendment 4 rendered moot the lawsuit, filed in 2017 on behalf of James Hand and eight other convicted felons.

The Jan. 10 order followed a series of rulings in early 2018 by U.S. District Judge Mark Walker that the state’s vote-restoration process violated First Amendment rights and Fourteenth Amendment equal-protection rights of felons. At one point, Walker ordered then-Gov. Rick Scott and the clemency board to revamp what the judge called a “fatally flawed” process.

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