Post on 24-Jul-2020
No. 18-11388 G
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH
CIRCUIT
JAMES MICHAEL HAND, et al.,
Plaintiffs-Appellees,
v.
RICK SCOTT, in his official capacity as Governor of Florida and member of the State of Florida’s Executive Clemency Board, et al.,
Defendants-Appellants.
On Appeal from the United States District Court for the Northern District of Florida, No. 4:17-cv-00128-MW-CAS, Judge Mark E. Walker
BRIEF FOR AMICUS CURIAE DEMOS IN SUPPORT OF APPELLEES AND AFFIRMANCE
June 28, 2018
CHIRAAG BAINS* DEMOS 740 6th Street, NW. Second Floor Washington, DC 2001 (202) 864-2746 *Admitted to practice law in Massachusetts; not admitted in the District of Columbia. Practice limited pursuant to DC. App. R. 49(c)(3).
i
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1 and Eleventh Circuit
Rule 26.1, Amicus Curiae Dēmos submits the following certificate of interested
persons:
1. Agarwal, Amit, Attorney for Defendants-Appellants
2. Atkins, Virginia Kay, Plaintiff-Appellee
3. Atwater, Jeff, Defendant
4. Baker, Brittnie R., Attorney for Plaintiffs-Appellees
5. Bass, William, Plaintiff-Appellee
6. Blake, Julie Marie, Attorney for Amicus Curiae
7. Bondi, Pam, Defendant-Appellant
8. Center for Equal Opportunity, Amicus Curiae
9. Cohen Milstein Sellers & Toll, Attorney for Plaintiffs-Appellees
10. Cohen, Michelle Kanter, Attorney for Plaintiffs-Appellees
11. Coonrod, Melinda N., Defendant
12. Davidson, Richard D., Defendant-Appellant
13. Davis, Ashley E., Attorney for Defendants-Appellants
14. Detzner, Ken, Defendant
15. Dunbar, Kelly P., Attorney for Amicus Curiae
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16. Executive Clemency Board of the State of Florida
17. Exline, James Larry, Plaintiff-Appellee
18. Fair Elections Legal Network, Attorneys for Plaintiffs-Appellees
19. Florida Commission on Offender Review
20. Florida Department of Corrections
21. Florida Department of State
22. Fugett, David Andrews, Attorney for Defendant-Appellant Ken
Detzner
23. Galasso, Joseph James, Plaintiff-Appellee
24. Gircsis, Harold W., Jr., Plaintiff-Appellee
25. Glogau, Jonathan Alan, Attorney for Defendants-Appellants
26. Gringer, David, Attorney for Amicus Curiae
27. Guanipa, Yraida Leonides, Plaintiff-Appellee
28. Hand, James Michael, Plaintiff-Appellee
29. Harle, Denise, Attorney for Defendants-Appellants
30. Hawley, Joshua D., Attorney for Amicus Curiae
31. Johnekins, Jermaine, Plaintiff-Appellee
32. Jones, Julie L., Defendant-Appellant
33. Jones, William Jordan, Attorney for Defendant-Appellant Ken
Detzner
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34. Landry, Jeff, Attorney for Amicus Curiae
35. Leopold, Theodore Jon, Attorney for Plaintiffs-Appellees
36. Martin, Diana L., Attorney for Plaintiffs-Appellees
37. Marshall, Steve, Attorney for Amicus Curiae
38. McCall, Julia, Defendant-Appellant
39. Neff, Lance, Attorney for Defendants-Appellants
40. Park, Jr., John J., Attorney for Amicus Curiae
41. Patronis, Jimmy, Defendant-Appellant
42. Paxton, Ken, Attorney for Amicus Curiae
43. Pratt, Jordan E., Attorney for Defendants-Appellants
44. Putnam, Adam H., Defendant-Appellant
45. Razavi, Poorad, Attorney for Plaintiffs-Appellees
46. Reyes, Sean D., Attorney for Amicus Curiae
47. Sauer, D. John, Attorney for Amicus Curiae
48. Scott, Rick, Defendant-Appellant
49. Schuette, Bill, Attorney for Amicus Curiae
50. The Sentencing Project, Amicus Curiae
51. Sherman, Jonathan Lee, Attorney for Plaintiffs-Appellees
52. Schlackman, Mark R., Amicus Curiae
53. Schmidt, Derek, Attorney for Amicus Curiae
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54. Smith, Christopher Michael, Plaintiff-Appellee
55. State of Alabama, Amicus Curiae
56. State of Kansas, Amicus Curiae
57. State of Louisiana, Amicus Curiae
58. State of Michigan, Amicus Curiae
59. State of Missouri, Amicus Curiae
60. State of South Carolina, Amicus Curiae
61. State of Texas, Amicus Curiae
62. State of Utah, Amicus Curiae
63. Strickland Brockington Lewis, LLP, Attorney for Amicus Curiae
64. Walker, Hon. Mark E., U.S. District Judge
65. Wenger, Edward M., Attorney for Defendants-Appellants
66. Wilmer Cutler Pickering Hale and Dorr LLP, Attorney for Amicus
Curiae
67. Wilson, Alan, Attorney for Amicus Curiae.
68. Wyant, David A., Defendant-Appellant
No publicly traded company or corporation has an interest in the outcome of
the case or appeal.
s/ Chiraag Bains Chiraag Bains
v
TABLE OF CONTENTS
No. 18-11388-G ......................................................................................................... 1 BRIEF FOR AMICUS CURIAE DEMOS IN SUPPORT OF APPELLEES AND AFFIRMANCE ............................................................................................... 1 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT .................................................................................. i TABLE OF CONTENTS ........................................................................................... v TABLE OF AUTHORITIES ................................................................................... vi STATEMENT OF THE ISSUES............................................................................... 1 IDENTITY AND INTEREST OF AMICUS CURIAE .............................................. 2 SUMMARY OF THE ARGUMENT ........................................................................ 4 ARGUMENT ............................................................................................................. 5
I. Felony Disenfranchisement Has Been Justified as a Means of Social Judgment over Serious Crimes ............................................................................... 5 II. Florida Classifies as Felonies a Wide Range of Non-Violent, Low-Level Offenses .................................................................................................................. 8 III. The Expansion of Felonies to Encompass Conduct Not Viewed As Morally Repugnant Highlights the Need for a Meaningful and Non-Arbitrary Process to Restore Voting Rights. ..........................................................................................13
CONCLUSION ........................................................................................................14
vi
TABLE OF AUTHORITIES
Cases
A.M. v. State, 147 So. 3d 98 (Fla. Dist. Ct. App. 2014) ..........................................11 Burke v. State, 475 So. 2d 252 (Fla. Dist. Ct. App. 1985) ......................................... 9 Green v. Bd. of Elecs. of N.Y.C., 380 F.2d 445, (2d Cir. 1967) ................................. 7 K.S. v. State, 186 So. 3d 41 (Fla. Dist. Ct. App. 2016) ............................................11 McConnell v. State, 298 So. 2d 550 (Fla. Dist. Ct. App. 1974) ..............................10 Shepherd v. Trevino, 575 F.2d 1110 (5th Cir. 1978) ...........................................8, 13
Statutes
Ala. Code § 28-3A-25 ..............................................................................................12 Fla. Const. art. VI, § 4 ................................................................................................ 4 Fla. Laws Act of May 30, 1997 ...............................................................................12 Fla. R. Exec. Clemency 4 ........................................................................................... 4 Fla. Stat. § 322.212 ..................................................................................................12 Fla. Stat. § 379.365 ..................................................................................................13 Fla. Stat. § 379.366 ..................................................................................................13 Fla. Stat. § 561.5101 ................................................................................................13 Fla. Stat. § 806.13. ...................................................................................................11 Fla. Stat. § 810.09 ....................................................................................................12 Fla. Stat. § 812.014 ..............................................................................................9, 11 Fla. Stat. § 812.015 .................................................................................................... 9 Fla. Stat. § 812.131 ..................................................................................................10 Fla. Stat. § 831.01 ....................................................................................................10 Fla. Stat. § 97.041 ...................................................................................................... 4 Ga. Code Ann. § 16-9-4 ...........................................................................................12
Other Authorities
Adrienne Cutway, Teenage 'Virus' Vandal Arrested in Clermont, Police Say, ClickOrlando.com (June 14, 2018) .......................................................................11
Alec C. Ewald, “Civil Death”: The Ideological Paradox of Criminal Disenfranchisement Law in the United States, 2002 Wis. L. Rev. 1045 (2002) .... 7
Alec Ewald, Punishing at the Polls: The Case Against Disenfranchising Citizens with Felony Convictions, Dēmos (2003) ............................................................2, 6
Archon Fung et al., Working Together to Strengthen Our Nation’s Democracy: Ten Recommendations, Dēmos (2009) .......................................................................... 3
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Brentin Mock, The Confusion Around Restoring Voting Rights, Dēmos PolicyShop (Mar. 13, 2014) ....................................................................................................... 3
Dēmos Briefing Paper Series, The Case Against Felony Disenfranchisement, Dēmos (2006).......................................................................................................... 3
J. Mijin Cha & Liz Kennedy, “Millions to the Polls: The Right to Vote for Formerly Incarcerated Persons” Dēmos (2014) ..................................................... 3
Jake Horowitz & Monica Fuhrmann, States Can Safely Raise Their Felony Theft Thresholds, Research Shows, Pew Charitable Trusts (May 22, 2018) ................... 9
Joseph Hines, The Underreported Story of Ex-Felon Disenfranchisement, Dēmos PolicyShop (Aug. 17, 2012) ................................................................................... 3
Lauren Latterell Powell, Concealed Motives: Rethinking Fourteenth Amendment and Voting Rights Challenges to Felon Disenfranchisement, 22 Mich. J. Race & L. 383 (2017) .......................................................................................................... 7
Pew Charitable Trusts, The Effects of Changing Felony Theft Thresholds (2017) ... 9 Pippa Holloway, “A Chicken-Stealer Shall Lose His Vote”: Disfranchisement for
Larceny in the South, 1874-1890, 75 J.S. Hist. 931 (2009) ................................... 7 The Collateral Consequences of a Criminal Conviction, 23 Vand. L. Rev. 929
(1970) ...................................................................................................................... 6 The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and ‘The Purity of
the Ballot Box,’ 102 Harv. L. Rev. 1300 (1989) .................................................... 6 Three Charged for Stealing, Playing with Fire Extinguishers, WTXL (Apr. 10,
2018) .....................................................................................................................12
Constitutional Provisions
U.S. Const., art. III, § 3, cl. 2 ..................................................................................... 6
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STATEMENT OF THE ISSUES
I. Whether Florida’s arbitrary voting rights restoration scheme for
disenfranchised felons, because it is devoid of any rules, standards, or
criteria for restoration application dispositions, violates the First
Amendment.
II. Whether the lack of reasonable and definite time limits for granting or
denying applications for voting rights restoration in Florida violates the
First Amendment.
III. Whether Florida’s voting rights restoration scheme for disenfranchised
felons, which is devoid of any rules, standards, or criteria for restoration
application dispositions, violates the Equal Protection Clause of the
Fourteenth Amendment.
2
IDENTITY AND INTEREST OF AMICUS CURIAE1
Demos is a national, nonpartisan public policy organization working for an
America where all have an equal say in our democracy and an equal chance in our
economy. Founded in 2000, Demos works to remove barriers to political
participation and ensure full representation for all Americans. Demos deploys
original research, advocacy, litigation, and strategic communications to protect
voting rights and ensure that all voices can be heard. In particular, Demos
advocates to expand access to voting for eligible citizens.
Demos has produced research and analysis on felony disenfranchisement
laws since its founding in 2000. In 2003, Demos published Punishing at the Polls,
a report about the history, underlying rationale, and impact of state
disenfranchisement statutes and rights restoration procedures.2 In 2006, Demos
issued a briefing paper on disenfranchisement practices across the country and the
1 All parties have consented to the filing of this brief. Pursuant to Federal Rule of Appellate Procedure 29, amicus states that no party or party’s counsel authored this brief in whole or in part, and that no party, party’s counsel, or person other than counsel for amicus contributed money that was intended to fund the preparation or submission of this brief. 2 Alec Ewald, Punishing at the Polls: The Case Against Disenfranchising Citizens with Felony Convictions, Dēmos (2003), available at http://www.Dēmos.org/sites/default/files/publications/FD_-_Punishing_at_the_Polls.pdf.
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need for reform.3 In 2009, the organization released Working Together to
Strengthen Our Nation’s Democracy: Ten Recommendations, which discussed the
importance of restoring voting rights to people with felony convictions.4 In 2014,
Demos published Millions to the Polls, a report that included a chapter that
advocated for the reenfranchisement of formerly incarcerated persons.5 Voting
rights experts at Demos study and routinely write about the impact of felony
disenfranchisement in elections.6 Demos handles a docket of voting rights
litigation and has filed amicus briefs in this and other federal courts of appeals.
Given its mission, Demos has a strong interest in the Court’s adjudication of
the constitutional challenge to Florida’s system of restoring voting rights to
persons who have been convicted of felonies and have completed their sentences.
3 Dēmos Briefing Paper Series, The Case Against Felony Disenfranchisement, Dēmos (2006), available at http://www.Dēmos.org/sites/default/files/publications/CFE_felonydis_102406.pdf. 4 Archon Fung et al., Working Together to Strengthen Our Nation’s Democracy: Ten Recommendations, Dēmos (2009), available at http://www.Dēmos.org/sites/default/files/publications/stronger_democracy_10_5.pdf. 5 J. Mijin Cha & Liz Kennedy, “Millions to the Polls: The Right to Vote for Formerly Incarcerated Persons” Dēmos (2014), available at http://www.demos.org/publication/millions-polls-right-vote-formerly-incarcerated-persons. 6 See, e.g., Joseph Hines, The Underreported Story of Ex-Felon Disenfranchisement, Dēmos PolicyShop (Aug. 17, 2012), http://www.Dēmos.org/blog/underreported-story-ex-felon-disenfranchisement; Brentin Mock, The Confusion Around Restoring Voting Rights, Dēmos PolicyShop (Mar. 13, 2014), http://www.Dēmos.org/blog/3/13/14/confusion-around-restoring-voting-rights.
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SUMMARY OF THE ARGUMENT
Florida automatically strips persons convicted of any felony of the right to
vote. Fla. Const. art. VI, § 4(a); Fla. Stat. § 97.041(2)(b) (2018). This case is about
whether the state’s process for restoring voting rights—one in which the Governor
has “unfettered discretion to deny clemency at any time, for any reason,” Fla. R.
Exec. Clemency 4—offends the First and Fourteenth Amendments. The district
court held that it does, and that ruling should be affirmed.
In conducting its analysis, this Court should consider the historical basis and
underlying rationale for felony disenfranchisement and should carefully consider
whether those align with the way in which Florida’s restoration process currently
operates. The central justification for disenfranchisement is that people who have
committed felonies—serious crimes—must be morally censured, and that the
repugnance of their criminal acts renders them unfit to participate in the political
community.
Under Florida’s criminal code, however, an extraordinarily broad swath of
low-level unlawful conduct—conduct that one would assume to be at most a
misdemeanor—is classified as a felony. Non-violent economic crimes like low-
level shoplifting and pickpocketing, crimes of youth like creating graffiti and
possessing a fake ID, and enigmatic regulatory offenses governing alcohol
distribution and crab catching are all felonies. Conviction on any of these charges
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renders a citizen indefinitely unable to vote, unless and until they can successfully
navigate the state’s current arbitrary restoration process.
Where state law exposes people of such low moral blameworthiness to
permanent disenfranchisement, a careful examination of the state’s process for
restoring voting rights is all the more vital. The exposure that Floridians have to
loss of their voting rights for minor conduct heightens the need for this Court to
scrutinize the state’s restoration process and insist that it be guided by meaningful
standards. At a minimum, individuals should not be required to go through an
arbitrary and indefinitely long process that may or may not lead to restoration. To
protect the constitutional rights at stake in this case, this Court should affirm the
district court’s judgment and permit the adoption of new rules for voting rights
restoration to take its course.
ARGUMENT
I. Felony Disenfranchisement Has Been Justified as a Means of Social
Judgment over Serious Crimes.
Although the state’s disenfranchisement of individuals is not challenged in
this case, any discussion of the restoration process should begin there. As
explained below, Florida’s legal regime is not compatible with historical
justifications for disenfranchisement. This makes it all the more important that the
state’s restoration of rights process be meaningful and free from arbitrariness.
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Felony disenfranchisement has its roots in the social and political shunning
that took place in early European history of people who had committed serious
moral transgressions. Individuals deemed “infamous” in ancient Greece or
condemned with “infamia” in Roman society were barred from voting and other
political acts.7 In medieval Europe, the concept of “outlawry” was applied to those
who had committed certain crimes, leaving them outside of the law’s protection
and even permitting them to be killed.8 England later developed the concepts of
“attainder” and “civil death,” in which people were stripped of their civil rights,
including voting,9 “based on the fiction that the criminal’s act was evidence that he
and his entire family were corrupt.”10
American colonists imported the moral ostracism of people for criminality.11
Ultimately, our Constitution rejected bills of attainder and “Corruption of Blood,”
U.S. Const., art. III, § 3, cl. 2, but many states eventually passed laws
7 Ewald, supra note 2, at 17. 8 Id. 9 Pippa Holloway, “A Chicken-Stealer Shall Lose His Vote”: Disfranchisement for Larceny in the South, 1874-1890, 75 J.S. Hist. 931, 933 (2009). 10 Note, The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and ‘The Purity of the Ballot Box,’ 102 Harv. L. Rev. 1300, 1301–02 (1989) (quoting Special Project, The Collateral Consequences of a Criminal Conviction, 23 Vand. L. Rev. 929, 941 (1970)) (internal quotation marks omitted); see also Ewald, supra note 2, at 17. 11 Holloway, supra note 9, at 933.
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disenfranchising people for criminal convictions.12 The theory underlying this
justification for disenfranchisement was typically that those who broke the law had
violated the social contract and were no longer entitled to full participation in the
political community. Judge Henry J. Friendly articulated this logic in an opinion
rejecting a challenge to a New York disenfranchisement statute: “A man who
breaks the laws he has authorized his agent to make for his own governance could
fairly have been thought to have abandoned the right to participate in further
administering the compact.” Green v. Bd. of Elecs. of N.Y.C., 380 F.2d 445, 451
(2d Cir. 1967).
Critically, however, this philosophical underpinning for disenfranchisement
depends on the criminal acts involving serious moral transgressions. Other than
with respect to crimes involving the voting process, early American
disenfranchisement statutes usually applied to “egregious violations of the moral
code;”13 they “were typically reserved for the most violent criminals.”14
12 Id. (“By the start of the Civil War the majority of U.S. states permanently disfranchised individuals convicted of serious offenses.”). 13 Alec C. Ewald, “Civil Death”: The Ideological Paradox of Criminal Disenfranchisement Law in the United States, 2002 Wis. L. Rev. 1045, 1062 (2002). 14 Lauren Latterell Powell, Concealed Motives: Rethinking Fourteenth Amendment and Voting Rights Challenges to Felon Disenfranchisement, 22 Mich. J. Race & L. 383, 387 (2017).
8
Indeed, this Court has emphasized the serious nature of crimes warranting
disenfranchisement. In Shepherd v. Trevino, 575 F.2d 1110 (5th Cir. 1978), this
Court explained that “A state properly has an interest in excluding from the
franchise persons who have manifested a fundamental antipathy to the criminal
laws of the state or of the nation by violating those laws sufficiently important to be
classed as felonies.” Id. at 1115 (emphases added). Shepherd quite reasonably took
for granted that conduct causing relatively little harm—that is, conduct that does
not signal a “fundamental antipathy to the criminal laws of the state” and that
therefore should be classified as a misdemeanor or lower—would not expose a
citizen to disenfranchisement.
II. Florida Classifies as Felonies a Wide Range of Non-Violent, Low-Level Offenses.
In Florida, however, felonies are not limited to the most serious offenses. To
the contrary, they cover a wide swath of offenses that should be treated at most as
misdemeanors. Nonviolent offenses, low-level thefts often borne of poverty,
pranks committed by juveniles that cause no lasting damage, and regulatory
offenses more appropriate for the civil code are classified as felonies in the state.
Relatively minor economic offenses, many of which are crimes of poverty,
are made third-degree felonies throughout the criminal code. For example, it is a
felony to utter or pass in payment any “false, altered, forged, or counterfeit” note,
bill, or check. Fla. Stat. § 831.09 (2018). In one case, a tenant was convicted for
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amateurishly altering the corners of three one-dollar bills to make them look like
twenty-dollar bills and giving them to his landlord for rent. Burke v. State, 475 So.
2d 252 (Fla. Dist. Ct. App. 1985).
Stealing $300 is grand theft of the third degree, a felony. § 812.014(2)(c)(1).
Shoplifting an aggregate of $300 from two stores in a 48-hour period is also a
felony. § 812.015(8)(b). Since 2000, 39 states have raised the felony threshold
amount for theft—including Mississippi ($1,000), Georgia ($1,500), South
Carolina ($2,000), and Texas ($2,500).15 Florida’s $300 threshold remains
unchanged since 1986, even though adjusted for inflation per the Consumer Price
Index that amount would be $684 in today’s currency.16 This means that an
15 See Jake Horowitz & Monica Fuhrmann, States Can Safely Raise Their Felony Theft Thresholds, Research Shows, Pew Charitable Trusts (May 22, 2018), http://www.pewtrusts.org/en/research-and-analysis/articles/2018/05/22/states-can-safely-raise-their-felony-theft-thresholds-research-shows. A study by the Pew Charitable Trusts indicates that raising the felony theft threshold does not increase crime. Pew Charitable Trusts, The Effects of Changing Felony Theft Thresholds, at 1 (2017), available at http://www.pewtrusts.org/-/media/assets/2017/04/pspp_the_effects_of_changing_felony_theft_thresholds.pdf (finding that the 30 states that raised their threshold between 2000 and 2012 experienced approximately the same average crime decreases as the 20 states that did not, and finding that “a state’s felony threshold—whether it is $500, $1,000, or $2,000, or more—is not correlated with its property crime and larceny rates”). 16 This figure can be obtained using the U.S. Bureau of Labor Statistics Consumer Price Index inflation calculator, available at https://data.bls.gov/cgi-bin/cpicalc.pl, by comparing $300 in October 1986 (the month that threshold went into effect) to May 2018 (the latest month that the calculator allows to be entered).
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individual who today steals less than half of the amount specified when the state
legislature last acted may be convicted of a felony and disenfranchised.
Florida’s general forgery statutes also make felonies of relatively low-level
economic crimes. See § 831.01 (“Whoever falsely makes, alters, forges or
counterfeits a public record, or a certificate . . . or an order, acquittance, or
discharge for money or other property . . . with intent to injure or defraud any
person, shall be guilty of a felony of the third degree.”). This statute has been used
to convict a defendant for forging a signature on a credit card sales receipt for
$62.80 at a gas station. McConnell v. State, 298 So. 2d 550 (Fla. Dist. Ct. App.
1974). It also makes felons of people who sign another person’s name to a traffic
ticket after being stopped and cited by the police, no matter how minor the
underlying traffic violation. See Washington v. State, 685 So. 2d 996 (Fla. Dist. Ct.
App. 1997); Rushing v. State, 684 So. 2d 856 (Fla. Dist. Ct. App. 1996).
Florida law even makes felons out of pickpockets—at least those caught in
the act. The criminal code defines robbery by sudden snatching to mean “the
taking of money or other property from the victim’s person . . . when, in the course
of the taking, the victim was or became aware of the taking.” § 812.131(1). The
statute states explicitly that “it is not necessary to show that: (a) The offender used
any amount of force beyond that effort necessary to obtain possession of the
money or other property; or (b) There was any resistance offered by the victim to
11
the offender or that there was injury to the victim's person.” Id. Reported cases
include the prosecution of a child for stealing a cell phone from his friend’s lap,
K.S. v. State, 186 So. 3d 41 (Fla. Dist. Ct. App. 2016), and a juvenile who grabbed
a phone from a man’s hand in the park, A.M. v. State, 147 So. 3d 98 (Fla. Dist. Ct.
App. 2014).
The Florida criminal code also treats as felonies offenses more likely to be
committed by youth, even those that bear little relationship to whether these
individuals will go on to be productive and upstanding members of society. The
criminal mischief statute classifies graffiti causing damage over $1,000—and any
repeated graffiti offenses, however small the damage and even if the first offense is
a misdemeanor—as a felony. § 806.13. In a recent case, a 19-year-old who spray-
painted on buildings, vehicles, and signs was charged with five counts of felony
criminal mischief.17
Theft of a fire extinguisher is also a felony. § 812.014(2)(c)(8). In a scenario
perhaps far from the expectation of lawmakers who applied a charge classification
that carried disenfranchisement as a consequence—three 19-year-olds faced felony
charges earlier this year after becoming intoxicated and spraying fire extinguishers
17 Adrienne Cutway, Teenage ‘Virus’ Vandal Arrested in Clermont, Police Say, ClickOrlando.com (June 14, 2018), https://www.clickorlando.com/news/teenage-virus-vandal-arrested-in-clermont-police-say.
12
on cars in an apartment complex garage.18 Neither of Florida’s neighbors, Alabama
and Georgia, specifically criminalize theft of a fire extinguisher, let alone treat it as
a felony.
Even possessing a fake ID is a felony in Florida. § 322.212. Due to a law
enacted in 1997, see Act of May 30, 1997, ch. 97-206, 1997 Fla. Laws 1, this act
could leave a young person with a serious criminal record, expose her to heavy
penalties, and leave her devoid of their voting rights. By comparison, neighboring
Alabama and Georgia both treat the use of fake IDs by people under 21 as a
misdemeanors. Ala. Code § 28-3A-25(a)(21); Ga. Code Ann. § 16-9-4(c)(5)
(West). In Florida, a young person in this situation is forced into the arbitrary,
indefinite restoration process if she wants even a hope of voting during her adult
life.
Finally, state law is replete with specialized regulatory offenses that are
treated as not only criminal in nature, but felonious. State trespass law makes it a
felony to enter unauthorized on a designated construction site larger than one acre,
§ 810.09(2)(d)(1), or commercial horticultural property, § 810.09(2)(e). It is a
felony to “willful[ly] molest[] any stone crab trap, line, or buoy that is the property
of any licenseholder, without the permission of that licenseholder.” §
18 Three Charged for Stealing, Playing with Fire Extinguishers, WTXL (Apr. 10, 2018), http://www.wtxl.com/news/three-charged-for-stealing-playing-with-fire-extinguishers/article_f17a3f38-3cc8-11e8-98fd-c3eec3d793f1.html.
13
379.365(2)(c)(1)(a). Florida has an identical felony provision pertaining to blue
crabs. § 379.366(4)(c)(1)(a).19 It is also a felony for a wholesaler to import and
“knowingly and intentionally sell[] malt beverages” to a retail vendor if the alcohol
does not “come to rest at the licensed premises of an alcoholic beverage
wholesaler” in Florida. § 561.5101.
III. The Expansion of Felonies to Encompass Conduct Not Viewed As Morally Repugnant Highlights the Need for a Meaningful and Non-Arbitrary Process to Restore Voting Rights.
The above-discussed offenses are not without any harm. But they do not
involve the type of serious harm that supports the rationale for felony
disenfranchisement that this Court has described. See Shepherd, 575 F.2d at 1115.
In fact, the unlawful conduct contemplated by these statutes is significantly less
harmful than offenses the state itself describes as “relatively non-serious.”
Appellants’ Br. at 44 (using these words to characterize Steven Warner’s
convictions for possession of marijuana, assault, and illegal voting).
19 Neighboring states treat similar offenses as misdemeanors. Both Alabama and Georgia treat criminal trespass as a misdemeanor, with no specialized exceptions for construction sites or greenhouses. Ala. Code § 13A-7-3; Ga. Code Ann. § 16-7-21(d) (West). In fact, Alabama carves out an exception for trespass of critical infrastructure buildings like power plants and water treatment facilities—but even that offense is classed as a misdemeanor. Ala. Code § 13A-7-4.3. In Alabama, stealing crabs from another’s trap is a misdemeanor. Ala. Code § 9-12-124. Molesting crab traps was originally a misdemeanor in Florida as well, but the state upgraded the offense to a felony in 1980. Act of July 2, 1980, ch. 80-299, 1980 Fla. Laws 1314.
14
To be sure, the Florida Constitution’s disenfranchisement provision applies
by its terms to all felonies. But where a criminal code is so expansive that it
classifies as felonies conduct of minor moral blameworthiness, it is critical that the
state’s process for restoring voting rights be meaningful and non-arbitrary. In short,
the extent to which Florida subjects people to disenfranchisement for minor
misconduct heightens the need for this Court to scrutinize the state’s restoration
process and insist that it be guided by meaningful standards.
CONCLUSION
For the reasons provided above, amicus curiae requests that the Court affirm
the judgment below.
Respectfully submitted,
s/ Chiraag Bains Chiraag Bains* Demos Attorney for Amicus Curiae
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CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 29(a)(4)(G) and Fed. R. App. 32(g)(1), the
undersigned hereby certifies that this brief complies with the type-volume
limitation of Fed. R. App. P. 32(a)(7)(B)(i) and Fed. R. App. P. 29(a)(5).
1. Exclusive of the exempted portions of the brief, as provided in Fed. R. App.
P. 32(f), the brief contains 3,047 words.
2. The brief has been prepared in proportionally spaced typeface using
Microsoft Word 2010 in 14 point Times New Roman font. As permitted by
Fed. R. App. P. 32(g), the undersigned has relied upon the word count
feature of this word processing system in preparing this certificate.
s/ Chiraag Bains Chiraag Bains* Dēmos Attorney for Amicus Curiae
* Admitted to practice law in Massachusetts; not admitted in the District of Columbia. Practice limited pursuant to DC. App. R. 49(c)(3).
June 28, 2018
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CERTIFICATE OF SERVICE
I certify that, on June 28, 2018, I electronically filed the foregoing with the
Clerk of the United States Court of Appeals for the Eleventh Circuit using the
appellate CM/ECF system. Counsel for all parties to the case are registered
CM/ECF users and will be served by the appellate CM/ECF system.
s/ Chiraag Bains Chiraag Bains* Dēmos Attorney for Amicus Curiae
* Admitted to practice law in Massachusetts; not admitted in the District of Columbia. Practice limited pursuant to DC. App. R. 49(c)(3).
June 28, 2018