Amendment 4 Undermines Felons’ Voting Rights In Florida: Did You Read Probation Statutes?

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Ignorance kills: The truth about Amendment 4 to the Florida Constitution

Amendment 4 Undermines Felons’ Voting Rights in Florida

Let’s call a spade a spade: Amendment 4 to the Florida Constitution undermines felons’ voting rights. I say this as a former probation officer and legislative analyst in Florida.  Let me explain….

What is Amendment 4?

During the November 2018-midterm elections, Floridian’s voted to automatically restore voting rights to the states’ (approximately) 1.5 million felons. This is the popular narrative any way. For example, the exact language of the Amendment 4 ballot summary reads:

“This amendment restores the voting rights of Floridians with felony convictions after they complete all terms of their sentence including parole or probation. The amendment would not apply to those convicted of murder or sexual offenses, who would continue to be permanently barred from voting unless the Governor and Cabinet vote to restore their voting rights on a case by case basis.”

Amendment 4: The Controversy

Shortly after Floridian’s voted to restore felons’ voting rights, lawmakers passed legislation, which requires felons to pay outstanding fines, fees and court costs before voting rights are restored.  Needless to say, this move by Florida lawmakers is causing outrage among Amendment 4 supporters. Their problem, so the story goes, is that requiring former felons to pay outstanding costs prior to restoring voting rights undermines the will of the people (because the people passed Amendment 4). But, this begs the question:

Did Amendment 4 supporters bother to read Florida’s probation statutes and the Amendment 4 ballot language summary prior to voting?

Did You Read Florida’s Probation Statutes?

If you belong to an advocacy organization or if you are a person that supports Amendment 4 and opposes legislation that requires former felons to complete all terms of probation prior to being able to vote, I have one question:

Did you bother to educate yourself prior to voting? I assume the answer is no. Why?

The 2018 Florida Statues and the Amendment 4 ballot summary are very clear. That is, felons that are sentenced to probation (in most cases), must pay fines, fees and court costs to successfully terminate probation. So, if you voted yes to Amendment 4, you voted to restore felons’ voting rights AFTER probation fees and costs are paid.

Probation in Florida

To be clear, fines; court costs, restitution and fees, etc., are conditions (TERMS) of probation. Therefore, I’m perplexed by the pearl clutching and outrage expressed by Amendment 4 supporters and advocacy groups such as the American Civil Liberties Union (ACLU). Particularly since the recently passed legislation requiring felons to “complete all terms of their sentence including parole or probation” prior to voting directly aligns with the language used in the ballot summary (and the Florida Statutes).  This is public information.

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ACLU Statement on Florida Legislation and Amendment 4

The following is a quote from Micah Kubic, the ACLU of Florida’s executive director, quoted at length due to the insight it provides.

“The Florida Legislature is thwarting the will of the people and restricting the eligibility to vote for thousands of Floridians who have earned their second chance. Both SB 7066/HB 7089 are overly broad and extend far beyond the plain language of Amendment 4 or what any reasonable person would conclude the voters intended when they passed Amendment 4. These bills are a blatant legislative overreach and an example of state legislators substituting their views for the those of the people of Florida. Floridians believe in second chances and the restorative justice granted by Amendment 4, which is why 5.1 million votes were cast in its favor.

“For decades, state lawmakers had the chance to be on the right side of history and restore the right to vote but failed to do so.  Today, instead of following the will of the people, they have chosen to thwart access to the ballot box and a historic citizens’ initiative that re-enfranchised 1.4 million people. Floridians will not forget–nor will we.”

The Problems

First, Amendment 4 undermines itself (that is if we are going with the ‘felons should be able to vote after they’ve served their time narrative’). To be sure, when it comes to writing law and policy, language matters.

Second, Amendment 4 advocates that oppose the aforementioned legislation should have known the language “after they complete all terms of their sentence including parole or probation” is a precursor to insidious assaults on voting rights.

Third, that advocacy organizations didn’t bother to research relevant statutes or consult key stakeholders to make sure the ballot language is conducive to thwarting voter suppression is ridiculous. People violate probation all the time for failure to pay.

Fourth, ignorance is a choice but comes at a price. Again, the Amendment 4 ballot summary reads:

“This amendment restores the voting rights of Floridians with felony convictions after they complete all terms of their sentence including parole or probation. The amendment would not apply to those convicted of murder or sexual offenses, who would continue to be permanently barred from voting unless the Governor and Cabinet vote to restore their voting rights on a case by case basis.”

Finally, I have much more to say on this topic but let’s start here. Below I provide text taken directly from the 2018 Florida Probation Statutes. Some lines are omitted; use this link to view the entire chapter on probation and community control. 

The 2018 Florida Statutes


Title XLVII
Criminal Procedure and Corrections|

Chapter 948 
Probation and Community Control

948.03 Terms and conditions of probation.

(1) The court shall determine the terms and conditions of probation. Conditions specified in this section do not require oral pronouncement at the time of sentencing and may be considered standard conditions of probation. These conditions may include among them the following, that the probationer or offender in community control shall:

(a) Report to the probation officer as directed.

(b) Permit the probation officer to visit him or her at his or her home or elsewhere.

(c) Work faithfully at suitable employment insofar as may be possible.

(d) Remain within a specified place.

(e) Live without violating any law. A conviction in a court of law is not necessary for such a violation of law to constitute a violation of probation, community control, or any other form of court-ordered supervision.

(f) Make reparation or restitution to the aggrieved party for the damage or loss caused by his or her offense in an amount to be determined by the court. The court shall make such reparation or restitution a condition of probation, unless it determines that clear and compelling reasons exist to the contrary. If the court does not order restitution, or orders restitution of only a portion of the damages, as provided in s. 775.089, it shall state on the record in detail the reasons therefor.

 (g) Effective July 1, 1994, and applicable for offenses committed on or after that date, make payment of the debt due and owing to a county or municipal detention facility under s. 951.032 for medical care, treatment, hospitalization, or transportation received by the felony probationer while in that detention facility. The court, in determining whether to order such repayment and the amount of the repayment, shall consider the amount of the debt, whether there was any fault of the institution for the medical expenses incurred, the financial resources of the felony probationer, the present and potential future financial needs and earning ability of the probationer, and dependents, and other appropriate factors.

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Continued

 (i) Make payment of the debt due and owing to the state under s. 960.17, subject to modification based on change of circumstances.

(j) Pay any application fee assessed under s. 27.52(1)(b) and attorney’s fees and costs assessed under s. 938.29, subject to modification based on change of circumstances.

 (o) Submit to the drawing of blood or other biological specimens as prescribed in ss. 943.325 and 948.014, and reimburse the appropriate agency for the costs of drawing and transmitting the blood or other biological specimens to the Department of Law Enforcement.

(p) Submit to the taking of a digitized photograph by the department as a part of the offender’s records. This photograph may be displayed on the department’s public website while the offender is under court-ordered supervision. However, the department may not display the photograph on the website if the offender is only on pretrial intervention supervision or if the offender’s identity is exempt from disclosure due to an exemption from the requirements of s. 119.07.

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(2) The enumeration of specific kinds of terms and conditions does not prevent the court from adding thereto such other or others as it considers proper. However, the sentencing court may only impose a condition of supervision allowing an offender convicted of s. 794.011, s. 800.04, s. 827.071, s. 847.0135(5), or s. 847.0145 to reside in another state if the order stipulates that it is contingent upon the approval of the receiving state interstate compact authority. The court may rescind or modify at any time the terms and conditions theretofore imposed by it upon the probationer. However, if the court withholds adjudication of guilt or imposes a period of incarceration as a condition of probation, the period may not exceed 364 days, and incarceration shall be restricted to either a county facility, or a probation and restitution center under the jurisdiction of the Department of Corrections.

948.031 Condition of probation or community control; community service.

(1) Any person who is convicted of a felony or misdemeanor and who is placed on probation or into community control may be required as a condition of supervision to perform some type of community service for a tax-supported or tax-exempt entity, with the consent of such entity. Such community service shall be performed at a time other than during such person’s regular hours of employment.

(2) Upon the request of the chief judge of the circuit, the Department of Corrections shall establish a community service program for a county, which program may include, but is not limited to, any of the following types of community service:

(a) Maintenance work on any property or building owned or leased by any state, county, or municipality or any nonprofit organization or agency.

(b) Maintenance work on any state-owned, county-owned, or municipally owned road or highway.

(c) Landscaping or maintenance work in any state, county, or municipal park or recreation area.

(d) Work in any state, county, or municipal hospital or any developmental services institution or other nonprofit organization or agency.

948.032 Condition of probation; restitution.—If a defendant is placed on probation, any restitution ordered under s. 775.089 shall be a condition of the probation. The court may revoke probation if the defendant fails to comply with the order. In determining whether to revoke probation, the court shall consider the defendant’s employment status, earning ability, and financial resources; the willfulness of the defendant’s failure to pay; and any other special circumstances that may have a bearing on the defendant’s ability to pay.

948.039 Special terms and conditions of probation or community control imposed by court order.—The court may determine any special terms and conditions of probation or community control. The terms and conditions should be reasonably related to the circumstances of the offense committed and appropriate for the offender. The court shall impose the special terms and conditions by oral pronouncement at sentencing and include the terms and conditions in the written sentencing order. Special

(2) Pay not more than $1 per month during the term of probation or community control to a nonprofit organization established for the sole purpose of supplementing the rehabilitative efforts of the Department of Corrections.

948.04 Period of probation; duty of probationer; early termination.

(3) If the probationer has performed satisfactorily, has not been found in violation of any terms or conditions of supervision, and has met all financial sanctions imposed by the court, including, but not limited to, fines, court costs, and restitution, the Department of Corrections may recommend early termination of probation to the court at any time before the scheduled termination date.

(5) In any hearing in which the failure of a probationer or offender in community control to pay restitution or the cost of supervision as provided in s. 948.09, as directed, is established by the state, if the probationer or offender asserts his or her inability to pay restitution or the cost of supervision, it is incumbent upon the probationer or offender to prove by clear and convincing evidence that he or she does not have the present resources available to pay restitution or the cost of supervision despite sufficient bona fide efforts legally to acquire the resources to do so. If the probationer or offender cannot pay restitution or the cost of supervision despite sufficient bona fide efforts, the court shall consider alternate measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the state’s interests in punishment and deterrence may the court imprison a probationer or offender in community control who has demonstrated sufficient bona fide efforts to pay restitution or the cost of supervision.

948.09 Payment for cost of supervision and other monetary obligations.

(1)(a)1. Any person ordered by the court, the Department of Corrections, or the Florida Commission on Offender Review to be placed under supervision under this chapter, chapter 944, chapter 945, chapter 947, or chapter 958, or in a pretrial intervention program, must, as a condition of any placement, pay the department a total sum of money equal to the total month or portion of a month of supervision times the court-ordered amount, but not to exceed the actual per diem cost of the supervision. The department shall adopt rules by which an offender who pays in full and in advance of regular termination of supervision may receive a reduction in the amount due. The rules shall incorporate provisions by which the offender’s ability to pay is linked to an established written payment plan. Funds collected from felony offenders may be used to offset costs of the Department of Corrections associated with community supervision programs, subject to appropriation by the Legislature.

2. In addition to any other contribution or surcharge imposed by this section, each felony offender assessed under this paragraph shall pay a $2-per-month surcharge to the department. The surcharge shall be deemed to be paid only after the full amount of any monthly payment required by the established written payment plan has been collected by the department. These funds shall be used by the department to pay for correctional probation officers’ training and equipment, including radios, and firearms training, firearms, and attendant equipment necessary to train and equip officers who choose to carry a concealed firearm while on duty. This subparagraph does not limit the department’s authority to determine who shall be authorized to carry a concealed firearm while on duty, or limit the right of a correctional probation officer to carry a personal firearm approved by the 

(6)The department shall establish a payment plan for all costs ordered by the courts for collection by the department and a priority order for payments, except that victim restitution payments authorized under s. 948.03(1)(f) take precedence over all other court-ordered payments. The department is not required to disburse cumulative amounts of less than $10 to individual payees established on this payment plan.

Resources

About the Author

Olivia P. Walker is a public affairs strategist and writer. Prior to these roles, Olivia consulted for the International Society of Pharmaceutical Engineering and served as government affairs and public policy analyst at WellCare Health Plans. Olivia is a member of the American Society for Public Affairs and Administration’s Section on Public Law and Administration. She graduated at the top of her graduate school class at the University of South Florida School of Public Affairs. Finally, Olivia started her career working as a probation officer for the Salvation Army Corrections Department. For many years, the Salvation Army had a contract with Hillsborough County, Florida to administer misdemeanor probation.

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