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More to do on offenders' rights

By MARK SCHLAKMAN Special to the Times
Published April 14, 2007

By changing clemency rules, Gov. Charlie Crist and the Florida Cabinet took a significant step toward enabling more ex-offenders who have completed their sentences to regain their civil rights. The challenge now is to resist the temptation to declare "mission accomplished," because the task is not complete.

The governor's office advised that 80 percent of the criminal case files surveyed involved nonviolent offenses and would be eligible for virtually automatic rights restoration under the new rules once ex-offenders complete their sentences, including payment of any court-ordered restitution, and it is verified that there are no outstanding detainers or subsequent arrests of record.

The remainder of the case files involved varying degrees of violent offenses, 15 percent of which would be subject to mid-level scrutiny and 5 percent involving murder and sex offenses that would be subject to a full background investigation and scheduled for a hearing before the Clemency Board.

The new rules apply to all cases, including an estimated backlog of more than 30,000 pending review and an estimated 950,000 ex-offenders who previously completed their sentences and reside in Florida without their civil rights.

The extent to which these projections will apply to the overall population of disenfranchised ex-offenders believed to be residing in Florida is unclear. It is also unclear whether the Department of Corrections has the capacity to identify and locate almost 1-million ex-offenders short of launching a costly public outreach campaign, and it is an open question whether the Parole Commission, which serves as the investigative arm of the Clemency Board, has the capacity to administer the additional caseload.

The way ahead ...

The governor and Cabinet should repeal the clemency rule that makes payment of restitution a condition for rights restoration.

Since rights restoration is a prerequisite for almost 100 state occupational licenses and various employment opportunities requiring state certification, ex-offenders are often unable to secure jobs that pay a living wage. If they are unable to earn a living wage, it is improbable that they can make restitution payments. Everybody loses, including the crime victims.

Historically, crime victims have collected little court-ordered restitution. Apart from clemency, the Legislature should take action to enhance applicable enforcement mechanisms to facilitate restitution payments along the lines of legislation that was enacted years ago to address delinquent child care payments.

The Legislature should also pass a bill to implement the governor's Ex-Offender Task Force recommendations to decouple employment and licensing from rights restoration, and prohibit state agencies and boards from reverting back to that requirement.

Such standards are arbitrary and at cross-purposes with official state policy "to encourage and contribute to the rehabilitation of felons and to assist them in the assumption of the responsibilities of citizenship."

Former Gov. Jeb Bush, who opposed automatic rights restoration, acknowledged that "gainful employment after release from prison is one of the critical elements necessary to achieve successful re-entry after prison" and that "employment has been shown to reduce recidivism and, thus, make our communities safer."

Employment eligibility issues and related public safety concerns have been foisted upon the clemency process over time by rogue state boards and ill-considered legislation. The clemency process was never intended to serve this larger purpose. Florida's appellate courts have been critical of the misplaced reliance upon restoration of civil rights as a threshold test for eligibility.

Eligibility for employment and state occupational licenses has been mischaracterized as if it were a right within the bundle of the otherwise inalienable rights to vote, to serve on a jury and to hold elective office. This common mischaracterization complicates efforts to achieve comprehensive rights restoration reform. Similarly, misperceptions about public safety implications relating to eligibility have been a distraction and a source of continuing controversy.

The Legislature should direct state agencies and boards to implement more meaningful criteria for eligibility, taking into account public safety concerns that may be unique to any given job. They should consider the relationship of the crime to the occupation, the severity of the offense and the potential for public harm. They should also consider the length of time since the conviction and any evidence of rehabilitation. They should not, however, be authorized to deny employment or licensure based solely upon a prior felony conviction or the applicant's failure to provide proof of restoration of civil rights.

If the law allows ex-offenders to live in society, it follows that they should be entrusted with their vote and encouraged to assume the responsibilities of citizenship, which is precisely the kind of fundamental fairness that Gov. Crist has been talking about lately. State officials should take bold rather than incremental steps toward these ends.

Mark Schlakman is a lawyer and serves as program director for the Rethinking Restoration of Civil Rights in Florida project at FSU's Center for the Advancement of Human Rights. He previously served as special counsel for Gov. Lawton Chiles.

[Last modified April 14, 2007, 01:17:18]