Download SB 125 Written Testimony Daniel Diorio and Alison Lawrence

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.
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
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,
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
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,
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.
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.
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
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!