Punishment Only for the Poor: the Unconstitutionality of Pay-to-vote Disenfranchisement Laws

• Publication year: 2021

Punishment Only for the Poor: The Unconstitutionality of Pay-to-Vote Disenfranchisement Laws

Caitlin Croley

PUNISHMENT ONLY FOR THE POOR: THE UNCONSTITUTIONALITY OF PAY-TO-VOTE DISENFRANCHISEMENT LAWS

Abstract

Felony disenfranchisement has remained a longstanding practice in the United States, utilized by nearly every state in the Union to punish those convicted of a felony with a bar from the franchise. However, when individuals attempt to re-obtain their voting rights, individual state restoration systems vary immensely, with some providing automatic restoration following incarceration and others requiring payment of legal financial obligations, such as fines or restitution. In the wake of a constitutional amendment to provide automatic restoration, the Florida legislature proposed a new system in SB 7066, aimed at curbing the effects of the amendment. Now signed into law, this new scheme disallows restoration until the individual has fully paid all fines, fees, and restitution associated with their sentence. It has since been challenged and was upheld by the Eleventh Circuit in Jones v. Governor of Florida.

This Comment explores the Eleventh Circuit decision in Jones, positing that the majority came to an erroneous conclusion by both employing the wrong classification and wrongfully applying its precedent. Accordingly, noticing the disastrous effects of these deficiencies in Jones, this Comment argues for a new path forward in judicial review of payment-based restoration laws, uniting the Supreme Court's jurisprudence on wealth discrimination both within the criminal justice system and within access to the franchise. Such a union should require heightened scrutiny for all laws seeking to provide criminal punishments based on one's inability to pay due to the law's intent to criminalize poverty, especially when such punishments deprive an individual of a right as fundamental as the one to vote.

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Introduction.............................................................................................373

I. The Criminalization of Poverty.................................................376
II. FELONY DISENFRANCHISEMENT AND RIGHTS RESTORATION THROUGHOUT THE COUNTRY............................................................380
III. Florida's Rights Restoration Framework: Past and Present............................................................................................383

A. The History of Florida's Restoration Scheme .......................... 383
B. The Enactment of Amendment Four ......................................... 385
C. Senate Bill 7066 and the Institution of a Pay-to-Vote System .. 386
D. Jones v. Governor of Florida and Its Appellate History........... 389

IV. The Eleventh Circuit Got It Wrong in Jones...........................391

A. The Eleventh Circuit Employed the Wrong Classifications Invoked by SB 7066 ................................................................. 392
B. The Eleventh Circuit Erroneously Applied Precedent.............. 394
C. Current Precedent Is Not Enough ............................................ 396

V. A New Approach to Reviewing Pay-to-Vote Restoration Laws.................................................................................................398

A. Wealth Discrimination in the Criminal Justice System ............ 399
B. Wealth Discrimination in Access to the Franchise ................... 402
C. Uniting for a New Standard of Review..................................... 404
D. Applying This New Standard to Florida ................................... 406

VI. Heightened Scrutiny Would Have Implications for both Individuals and American Democracy.....................................408

A. Eliminating Barriers to the Franchise Would Be Transformative for the Individual ............................................. 409
B. Eliminating Barriers to the Franchise Would Be Transformative for the American Democracy .......................... 412

Conclusion.................................................................................................414

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Introduction

Bonnie Raysor owes $4,260 in outstanding fees and costs related to a felony conviction and two prior misdemeanor convictions.¹ These fees were "levied . . . in the form of a civil lien."² The total is comprised of "court costs, [the] cost of prosecution, [the] crime stoppers fund, [the] cost of investigation, [the] drug trust fund, [a] public defender application fee, and [a] public defender fee."³ Raysor pays $30 per month towards her balance.⁴ She has lived in Florida since she was seventeen and currently lives in Boynton Beach, Florida.⁵ She holds a bachelor's degree in finance and accounting.⁶ She homeschooled her three children and now enjoys taking care of her grandchildren, teaching Sunday school, and working as an office manager.⁷ Ms. Raysor's prior convictions stem from her battle with opioids—a battle that began to cope with her father's illness.⁸ She will be disenfranchised until this amount is paid off in full by 2031, when she will be seventy years old.⁹

Steven Phalen "owes approximately $110,000 in restitution, court costs, and fees" from a felony conviction in Wisconsin state court.¹⁰ After losing his father at five years old, Mr. Phalen used alcohol as a coping mechanism.¹¹ His arson conviction arose from a split-second decision that he made at twenty-three-years-old while under the influence of alcohol.¹² He "cannot afford to pay back

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his [costs] in full" and cannot seek a community service modification to reduce his financial obligations due to his out-of-state conviction.¹³ Mr. Phalen has a Ph.D. in organizational and relational communications and currently works in HVAC logistics.¹⁴ He is passionate about social rights and social justice and seeks to promote compassion throughout his life.¹⁵ With such high amounts due and no alternatives available, Mr. Phalen will be disenfranchised indefinitely.

Racquel Wright owes over $72,000 in court fees and a mandatory fine arising "from a single non-violent drug conviction . . . [over] eight years ago."¹⁶ Her initial fee was $50,000, but it has since grown due to interest accrual.¹⁷ She has been turned down for jobs at 7-11, McDonalds, and Walmart because her fifteen years as an educator has made her "overqualified."¹⁸ She has a fourteen-year-old daughter who she says taught her everything she knows.¹⁹ She "works part-time as a legal assistant to the Special Counsel to the Florida State Conference of the NAACP" and volunteers as the Assistant Secretary of her local branch of the NAACP.²⁰ Although Ms. Wright has attempted to maintain an active role politically organizing in her own community, she cannot take her own activism to the ballot box as her criminal debt increases despite her struggles to satisfy it.²¹

The three individuals described above are not alone. As of 2016, there are an estimated 1.5 million Floridians who have been disenfranchised as a result of a felony conviction.²² Florida's disenfranchisement accounts for twenty-seven percent of America's disenfranchised population.²³ Of these 1.5 million Floridians, at least 750,000 have outstanding financial obligations from prior convictions.²⁴ Roughly seventy to eighty percent "are indigent and unable to

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pay" these amounts.²⁵ The average income of an individual reentering society after a term of imprisonment is $1,559 per month.²⁶ An internal analysis done by the Florida Department of Corrections on "22,012 individuals on probation, parole, or community supervision found that they owed an average of $8,195 in restitution alone," not including fines and fees.²⁷ This discrepancy makes satisfying full amounts nearly impossible. Further, as described more fully below, even those that may have the resources to pay are unable to fully satisfy their debts as Florida has not maintained a central database to track these obligations.²⁸ As a result, many are unaware and unable to determine how much money they truly owe.²⁹

Senate Bill 7066, passed into law by the Florida legislature, requires full payment of all legal financial obligations (LFOs) for restoration and is the main provider of this widespread disenfranchisement.³⁰ Each time an election comes around, many Floridians, such as Ms. Raysor, are barred from casting a ballot despite having served their respective sentences and beginning the difficult process of reintegration. Based on her current trajectory, Ms. Raysor will not be able to register for another twelve years and will not cast another ballot until she is seventy years old.³¹ Despite contributions to their communities, these individuals remain disenfranchised indefinitely due to the state's attempt to provide a lifelong punishment for prior criminal offenses.³² The state burdens these individuals with a harm for which they can never truly recover as elections pass them by.³³

This Comment aims to address this harm, asking why we permit a justice system that criminalizes those in poverty to strip away fundamental rights

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indefinitely, using Florida's latest iteration of felony disenfranchisement and its subsequent challenge in Jones v. Governor of Florida³⁴ as an example.³⁵ Simply put, the court in Jones got it wrong; therefore, restrictions on access to the franchise should not turn on wealth-based distinctions; accordingly, such restrictions demand heightened scrutiny.

Part I of this Comment provides the theoretical lens through which the argument must be viewed, discussing the criminalization of poverty and how pay-to-vote felony restoration is the most recent attempt at engraining this theory within our justice system. Part II begins to contextualize the issue, reviewing the various types of felony disenfranchisement laws employed across the nation. Part III will focus on the example of Florida, providing an overview of its disenfranchisement scheme from inception up to present day and presenting the...