Testimony on Senate Bill 125 by Daniel Diorio, Senior Policy Specialist, Elections and Redistricting Program National Conference of State Legislatures March 7, 2016 Good afternoon Mister Chairman and members of the Committee, I appreciate the opportunity to testify at this hearing. My name is Daniel Diorio and I am a senior policy specialist in elections and redistricting at the National Conference of State Legislatures (NCSL). NCSL is the nation s bipartisan organization that supports the work of both legislators and legislative staff. We are headquartered in Denver, Colorado. NCSL s elections and redistricting program provides assistance on matters related to election administration, which includes restoration of voting rights for felons, campaign finance, initiative and referendum and redistricting. As with all our work, we do not make recommendations on policy concerning restoration of civil rights, nor do we advocate for a certain position; instead we provide 50-state research and analysis. My testimony this afternoon will primarily focus on restoration of voting rights. I will begin with an overview of current state policies for felon disenfranchisement. In other words, when is the right to vote restored to those convicted of a felony. Next, I will discuss recent state actions and legislative trends in this area. Lastly, I will conclude my remarks by discussing restoration of other civil rights, including
the right to serve on a jury and I will introduce my colleague Alison Lawrence to other collateral consequences. Forty-eight states and the District of Columbia take away the right to vote for those convicted of a felony. NCSL has organized state policies concerning the restoration of voting rights of persons convicted of a felony into four categories: States where felons never lose the right to vote; States where felons lose the right to vote during the time of incarceration with automatic restoration after release; States where felons lose the right to vote until the completion of their full sentence, including parole and/or probation with automatic restoration after completion; and States where felons lose the right to vote unless restored by action of the governor or the courts. It should be noted that every state has many nuances regarding this issue some states may crossover between categories depending on the type or severity of the crime. NCSL has tried to generalize each state s policies so that it may be better understood at the 50,000-foot level view. Beginning with the first category: Maine and Vermont are the only two states in the country where convicted felons never lose the right to vote. This means that felons can vote even while incarcerated. They have been the only two states since 2000 when by then Massachusetts and Utah had toughened their laws regarding felon disenfranchisement. D2
Thirteen states Hawaii, Illinois, Indiana, Maryland, Massachusetts, Michigan, Montana, New Hampshire, North Dakota, Ohio, Oregon, Pennsylvania and Rhode Island as well as the District of Columbia fall into the second category. These states restrict a felon s right to vote only during the term of incarceration with automatic restoration after release from prison. The third category is by far the largest and it would be safe to say the most common way states restrict and restore voting rights to felons 29 states restrict felon voting rights until the completion of sentence including parole and/or probation. They are Arizona, Alaska, Arkansas, California, Colorado, Connecticut, Delaware, Georgia, Idaho, Kansas, Louisiana, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Washington, West Virginia, Wisconsin and Wyoming. Completion of the sentence may include the payment of fines and restitution and in some cases, a waiting period. If Senate Bill 125 were to become law as currently written, it is my understanding that Nevada would be among the few, if not the only, state in this category to restore voting rights to felons one year into their parole or probation period, rather than after the full completion of the sentence. Lastly, ten states restrict voting rights for felons unless restored by the action of the governor, including through a board of pardon and parole, or a court. This category can be broken down in two ways: six states Alabama, Florida, Iowa, Kentucky, Mississippi and Virginia take away the right of all felons to vote until or unless an action is taken by the governor or a court to restore voting rights. In D3
four states Arizona, Nevada, Tennessee and Wyoming it depends on the type of crime, and first time offenders typically have an easier process. You ll notice because of this we have listed those four states in both of the latter two categories. Now I ll move on to recent legislation. I do want to note that while legislative enactments have been limited, the state legislative trend is certainly in the direction of opening up and easing the administrative process for restoring voting rights to felons. However, 2016 did see some notable bills passed by state legislatures and notable state action on this issue. In Alabama, one of the stricter states in the country, the legislature eased the process by which an ex-felon could obtain a certificate of eligibility to vote (after completion of sentence), by shortening the time frame to 30 days, rather than 45 days, and by making that eligibility a statement, rather than a determination made by the Board of Pardons and Parole. The California legislature differentiated between felons in state and federal prisons and those in county jails by restoring the right to vote for felons currently serving time in county jails. This is because the state shifted many correction program responsibilities from the state to local government, which caused the transfer of many low-level felony offenders to county-run jails and programs in an effort to reduce overcrowded state and federal prisons. Also in 2016, Delaware removed the requirement that felons pay all fines, fees and restitution before voting rights could be restored. Lastly in 2016, the Maryland legislature overrode a gubernatorial veto to restore voting rights to felons when they are released from incarceration. Previously, D4
Maryland required felons to complete their full sentence, including parole, probation and restitution, before voting rights were restored. Prior to 2016, legislative action on this issue was limited. For instance, in 2015 Wyoming authorized automatic rights restoration for persons convicted of firsttime, nonviolent felonies and eased the process for receiving a certificate of voting rights restoration. In 2013, Delaware eliminated its five-year waiting requirement before voting rights are restored and in 2009, Washington automatically restored the right to vote to felons who completed their sentences, while requiring them to re-register to vote. Since 2009, only two states have further restricted voting rights to ex-felons. In 2012, South Dakota mandated that felons on probation would not have voting rights restored. Previously, voting rights could be restored after completion of incarceration and parole; now it is at the completion of probation as well. In 2011, Tennessee added crimes that are eligible for permanent disenfranchisement. I would like to touch briefly on executive action on felon voting rights. In several of the more stringent states, legislation has been limited, but changes from the governor or other part of the government have been significant. In 2011, the Florida Board of Executive Clemency reversed a 2007 policy change that automatically restored voting rights to non-violent offenders upon the completion of their sentence. The new policy requires that all ex-felons wait between five and seven years before applying to regain voting rights. Thus, there was no change in the law, but there has been a change in policy and procedure. In Iowa, the governor in 2011 reversed an executive order issued in 2005 under the previous governor. The 2005 order automatically restored the voting rights of D5
all ex-felons, but under the 2011 order they will now have to apply to regain rights. In 2015, outgoing Kentucky Governor Steve Beshear signed an executive order to automatically restore the right to vote (and to hold public office) to certain offenders. The order excluded those who were convicted of violent crimes, sex crimes, bribery, or treason. However, the order was reversed by incoming Governor Matt Bevin as one of his first acts in office. In 2016, Virginia Governor Terry McAuliffe announced an executive order automatically restoring voting rights to convicted felons who have completed their prison sentence and their term of supervised release (parole or probation). This decision was a source of contention with the legislature. In July 2016, the Virginia Supreme Court overturned the order but Gov. McAuliffe continued restoring voting rights on an individual basis. So far in the 2017 legislative session, 49 bills in 18 states have been introduced addressing various aspects of this issue. In 2016, 71 bills in 26 states were introduced by the end of the year and in 2015, 57 bills in 20 states were introduced. Only a few bills are enacted on this topic each year and since 2011 this number has not reached above single digits. I will now discuss the restoration of the right to serve on a jury. I have organized states into six categories. The first category is states where the right to serve on a jury can only be restored through governor action or court action. There are 21 states that fall into this category Alabama, Arkansas, Delaware, Kentucky, Maryland, Michigan, Missouri, New Hampshire, New Jersey, New York, Oklahoma, D6
Pennsylvania, South Carolina, Texas, Tennessee, Utah, Vermont, Virginia, Washington, West Virginia and Wyoming. The second is states who restore jury service after completion of sentence which is 15 states Alaska, Arizona, California, Hawaii, Idaho, Kansas, Minnesota, Montana, Nebraska, New Mexico, North Carolina, Ohio, Rhode Island, South Dakota and Wisconsin. Third is states who have a waiting period. Seven states and the District of Columbia have a waiting period which can be from the time of conviction, after a pardon or after discharge Connecticut (seven years), District of Columbia (1 year), Florida (5 years), Georgia (10 years), Massachusetts (7 years), Mississippi (5 years) and Nevada (6 years). Fourth is states who restore the right after the completion of a prison term. This category is three states Indiana, North Dakota and Oregon. Four states never take away the right to serve on a jury Colorado, Illinois, Iowa and Maine. Lastly, only one state permanently revokes the right to serve on a jury Louisiana. With that, I will conclude my remarks. I want to thank you again, Mister Chairman. If I can, I will answer any questions the Committee may have. I will now turn it over to my colleague in NCSL s Criminal Justice Program, Alison Lawrence, who will address additional types of collateral consequences. D7
Good afternoon Chairman Segerblom and members of the committee. Restoring the right to vote is part of a larger set of policies known as collateral consequences of a criminal conviction. This term refers to the loss or disqualification upon conviction of civil rights, public benefits, government licenses and other statutory entitlements. Absent a law stating otherwise, the legal disqualifications remain in place after the court-ordered sentence is complete. The civil loss of rights is distinguished from, and in addition to, the direct criminal consequence of committing a crime. There are more than 45-thousand collateral consequences in state and federal law. The most common rights that are taken away include voting, sitting on a jury, serving in public office and carrying, possessing or using a firearm. State and federal loss of benefits include public welfare, food stamps, housing assistance and student loans and scholarships. Convictions also can disqualify individuals from employment in certain professions or from regaining certain parental rights. Collateral consequence laws can apply broadly to all felonies or misdemeanors. Voting is an example of a right that is most often removed regardless of the type of crime. Specific offenses can trigger other losses. This is common in employment-based restrictions. People with crimes against children cannot work at day cares or schools. Fraud and embezzlement convictions render a person ineligible for managing stock portfolios. There has been a recent trend in state law to distinguish between restrictions that are directly related to the crime and those that create a barrier for people to successfully re-enter the community and become a productive member of society. D8
1) Most notably has been the expansion of expungement and sealing laws. In most cases, an expunged record automatically restores the lost rights and benefits. In 2016 alone, at least 8 states substantially expanded the pool of exoffenders who are eligible to have their convictions sealed or expunged. a. Maryland and South Dakota both now allow for expungement of some misdemeanors. While Kentucky and Missouri expanded their expungement laws to include low-level felonies. 2) The second trend has been creation of certificates of restoration, rehabilitation or employability. They serve as documentation that an individual has successfully completed their sentence; notate which rights or benefits are being restored; and sometimes include a list of rehabilitative accomplishments the individual has made. Courts, parole boards or corrections departments have discretion to grant certificates. Since 2009, 14 states and the District of Columbia have created new certificates or expanded application of existing ones. 3) Lastly, waiting periods are common place for restoration policies. It is seen as a time for the ex-offender to prove they are law-abiding and rehabilitated. Waiting periods generally range from 1 to 5 years but it s not uncommon to see 10 or more years. At least 12 states and the District of Columbia have shortened the amount of time a person must wait before applying for restoration. At the same time, many of the certificate and expungement laws I just mentioned include waiting times prior to application. Addressing collateral consequences is part of a larger second-chance or fairchance trend we are seeing in states. Since 2010, nearly every single state has adopted policies to break down the barriers offenders face when leaving prison or D9
to increase access to reentry services. These policies seek to help ex-offenders become productive members of their community and break the cycle of recidivism. Thank you! D10