By Eric Allen Kauk*
This November Florida will vote on Amendment 4, a measure that would automatically restore the right to vote to 1,487,847 convicted felons who have successfully served their entire sentence and paid their debt to society.
Florida lags far behind the rest of the country when it comes to restoring individuals’ civil rights. In 2016, more Floridians had lost their civil rights due to prior convictions than citizens in any other state. Florida disenfranchises more people than Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Tennessee combined. A full 10.43 percent of the total population of the State of Florida is disenfranchised.
Reconstruction era legislative history suggests that these restrictions on voting rights were one way the governing class intended to silence the voice of recently-freed slaves. Today, many question the racial, socio-economic and political undercurrents that keep these draconian shackles tightly locked in place in 2018. Consider that Florida is home to 418,224 voting-age African Americans who have completely served their sentences but whose right to vote has not been restored. This is 21.35 percent of all African Americans in the state: a total that accounts for more votes than the margin of victory in Florida for any Presidential election since 1988. If re-engaged, these voters could change national election outcomes. Perhaps this is one reason they have not been re-engaged.
Convicted felons face limitations on the types of employment they can pursue. While the right to vote is fundamental to our identity as a free, democratic nation, the right to seek employment of our own choosing is also at the core of our individual liberty. Each employment choice that is eliminated blocks a person’s freedom. To be banned from one profession forces a person into another, and forced labor is abhorrent. The “American dream” is the promise that you can overcome your past through hard work, education and persistence to achieve your own goals, regardless of your background, race or heritage. But this American dream is a nightmare for a convicted felon in Florida.
In Florida, executive clemency (which restores the civil rights of the individual to pre-conviction status) is incredibly hard to get and it doesn’t solve the problem. Just to be eligible to apply for any form of executive clemency in Florida, a person must have completed all sentences, paid all fines, costs, and victim restitution, plus all conditions of supervision (parole, probation, etc.) must be completed for a period of at least 7 years prior to the application. Once the application is submitted, the Parole Commission completes an extensive investigation of the applicant’s life, then gives a non-binding recommendation to the Clemency Board. The Clemency Board, comprised of the Governor and two of his chosen cabinet members, then decides to grant or deny clemency. Under Governor Rick Scott, that choice has overwhelmingly been to deny applications.
Despite Florida having the nation’s largest unrestored population, Governor Scott has restored exceptionally few individual’s civil rights. In 2011, under Governor Scott, just 52 applicants were granted clemency. In 2012-2015 only 342, 569, 562 and 427 individuals were granted clemency in respective years. In a state where almost 1.5 million individuals have wholly-served their sentence and await restoration of their basic civil rights, it is a travesty of justice that the Governor has restored the rights of less than 3,000 individuals total since he took office.
Under Scott, the process is also incredibly slow. As of June 30, 2017, the number of clemency applications that sat waiting for review was 22,126. Considering that the Clemency Board hears an average of 52 cases per quarter, it would take the Clemency Board more than 50 years just to hear the applications that have already been filed.
This long and arduous clemency process in Florida triggered a class-action lawsuit seeking to automatically restore former felons’ voting rights. James Michael Hand, et al. v. Rick Scott contends that the clemency process in Florida lacks rules, which makes the system and applicants prone to arbitrary treatment by the Executive, violating the 1st and 14th Amendments to the U.S. Constitution. Voting rights advocates say that the system lacks rules, or guidelines and leads to similarly-situated individuals being treated differently.
The Executive does not dispute the charge that they hold all the cards. Governor Rick Scott spoke at a December 2016 Cabinet meeting, claiming “Clemency is . . . is — there’s no standard. We can do whatever we want.” The Executive is not even required to explain a decision to deny clemency when an applicant may be eligible. A denied applicant is informed of the denial, but is never told the reason for the denial, and that reason is not recorded.
Governor Scott’s completely free reign over clemency proceedings seemed to irritate U.S. District Judge Mark Walker, who declared the system “fatally flawed” and unconstitutionally arbitrary in a strongly-worded March 27th District Court opinion. He ordered the Executive to put a new system in place by April 26, 2018. Walker ordered Scott to implement “specific standards and neutral criteria” to the clemency process. While it may seem reasonable to ask the Clemency Board to outline neutral standards by which they will grant or deny clemency, the issue is far from settled. On April 25th, 2018, a three-judge panel of the U.S. Circuit Court of Appeals in Atlanta issued a stay of Judge Walker’s March 27 order. The issue seems destined for further appeal, and many believe the case will rise to the Supreme Court of the United States.
Even if an individual somehow weathers this controversial process, and is granted executive clemency, he still has an uphill battle if he wishes to practice in a profession that requires licensure by a Florida state agency. State agencies can wrongly apply professional licensure restrictions to create difficult hurdles for restored individuals.
A review of the Florida Administrative Code shows more than 70 different professions, from which felons are barred. Even citizens who have had their rights restored by the Governor himself, must battle state agencies if they wish to pursue life, liberty and happiness in a profession like mortgage counselor, criminal justice training instructor, lobbyist, blood alcohol analyst, community association manager, physician assistant, preneed funeral sales agent, bail bond agent, insurance agent, and even firefighter.
My personal experience has provided me with an intimate understanding of the specific challenges that restored individuals face. In Kauk v. Department of Financial Services, the Department denied me, a restored felon, a license to sell life and health insurance. I first pursued the administrative appeal process. The Department’s own administrative hearing officer recommended approval of my license application, and supported his recommendation with the following findings of fact:
“The undisputed competent evidence, including the circumstances surrounding the Petitioner’s prior conviction and the undisputed evidence of his full and complete rehabilitation, show that the Petitioner currently conforms his behavior to societal norms, possesses good moral character, and is otherwise morally fit to serve as a residential life with variable annuity and health insurance agent in the State of Florida.”
In its final order, the Department accepted the hearing officer’s findings, in full, while rejecting his conclusions of law, and subsequently denied the license. I was devastated. Only with the strong support and encouragement of my good friend Dean Burri, Esq. did I appeal. Thankfully, I did, because the Florida First District Court of Appeals reversed the application denial and remanded the issue back to the Department of Financial Services. But, the Department wasn’t ready to give up. The Department appealed to the Supreme Court of Florida. The week I settled with the Department, the Supreme Court of Florida determined that it should decline to accept jurisdiction, ordered the petition for review denied, stated that no motion for rehearing would be entertained. While my application was finally approved, the fight was damaging.
When the Department of Financial Services interpreted and applied to my application a statute that the legislature intended for convicted and unrestored felons, the Department caused significant collateral damage. The delay in time between application and ultimate resolution of the issue was costly in the form of lost income. The cost of litigation was exorbitant, and the notoriety of the case caused great public awareness of the underlying criminal conviction. Something that was publicly embarrassing. These are substantial deterrents to an applicant who simply wants to pursue a career.
The deterrent effect that a state agency creates with its interpretation and application of these statutes to a restored individual counteracts justice. When the state creates obstacles like this it deters the restored individual from standing up for their fully-restored rights. As a society we have worked to eliminate obstacles that deter an individual from accessing their constitutional rights. In my own rehabilitation journey, I was directly helped by literally hundreds of people along the way. State agencies should not be allowed to restrict and deter access to justice, nor should they effectuate the denial of civil rights. When they do they send a clear message that criminal rehabilitation is a false narrative. And they disregard all the efforts of all the people who have worked for years to support and encourage that felon’s rehabilitation process.
If civil rights are meaningful, and if full rehabilitation is something society wants felons to be committed to, then we must honor the civil rights of a rehabilitated individual to vote and to pursue licensed professions, with as few restrictions as possible.
*Eric Allen Kauk is the Plaintiff in Kauk v. Dep’t of Fin. Servs., 131 So.3d 805, 808 (Fla. 1st DCA 2014); cert. denied., a fully restored individual, and is in his second-year at Stetson University College of Law. He can be reached at firstname.lastname@example.org
The featured image for this post is from Democracy Chronicles.