A Total Deprivation of Liberty
by Beth Colgan
October 28, 2020
This interview with Beth Colgan, professor at the UCLA School of Law, was conducted and condensed by franknews.
Beth | My teaching and research focuses on criminal legal systems, and in particular on the intersection of poverty and those systems.
frank | How does the inability to pay fees and fines impact people's ability to vote?
Poverty can affect the eligibility to vote in a variety of different ways — the manner of which depends on both the criminal rules and election rules in a state. For example, in Maine and Vermont, there is no eligibility requirement for voting that ties to a criminal conviction, but in other states, there are rules that disenfranchise people convicted of certain offenses.
In most jurisdictions, there is a process that will restore your right to vote. These processes have different contingencies that you have to meet, and in some cases, the right to vote can only be restored explicitly upon payment of economic sanctions.
In Alabama, for example, their statute says that you can't be restored to vote until you pay all fines, court costs, fees, and victim restitution. In other states, the relevant language is a bit less clear. It might say that you must “complete all terms of your sentence.” In fact, Amendment 4 in the Florida Constitution required the “completion of all terms of your sentence.” Recent disputes have been over what “completion” meant. Does completion just refer to a period of incarceration, probation and parole, or does it also require payment of all economic sanctions?
Has that language been clarified in Florida?
Yes. After Amendment 4 was passed, Florida's legislature passed additional legislation designed to clarify that requirement, and it explicitly required the payment of all economic sanctions in order to be able to vote again.
There are other jurisdictions where the rules are even more complicated and ambiguous than Florida. There are jurisdictions where you are allowed to vote again, but you have an ongoing payment requirement.
For example, in Washington state, they have a provisional voter restoration process that allows a person who still has to pay economic sanctions, the ability to provisionally register to vote and vote as long as they're making a good faith effort to pay off their debts. The question becomes what is a good faith effort? That is a fairly recent change in the law to allow provisional restoration, so there's not a lot of information about how that's playing out on the ground.
There are also jurisdictions that say nothing about paying off fines and fees explicitly but require you to complete probation and parole. And a common term of probation and parole is that you must pay off economic sanctions. That is another way in which economic sanctions can become an eligibility requirement.
Mike Bloomberg is paying off carceral related fines in Florida — and I know other groups in other states are attempting something similar. Legally — is this appropriate? Is this a skirt around this specific issue of economic disenfranchisement?
There has been some pushback from some officials in Florida who have suggested that it might be inappropriate. My understanding is that there is no issue in the way that Mike Bloomberg and other groups designed the process. If they had designed the system to say, “we'll pay off your economic sanctions if you registered to vote, and you vote for this particular candidate,” then they could get into some trouble. However, all they are doing is allowing people convicted of felonies to become eligible to register to vote by paying off fines and fees. They are not requiring them to register.
How do you propose challenging the penal disenfranchisement system? You write about a few different lenses through which you can challenge these kinds of laws. Can you lay out the approaches?
There has been very little litigation on this issue because it's so hidden.
One of the approaches to this is through the lens of voting rights. In a case called Richardson v. Ramirez, the Supreme Court interpreted Section II of the 14th amendment — which says that states cannot deny the vote through the US House of Representatives, except for those who have participated in rebellion or other crimes — to give the states the authority to disenfranchise people who have been convicted of felony offenses.
That has been understood to mean that if you are stripped of your right to vote due to a conviction, your right to vote is no longer fundamental.
And because of that, if you challenge these laws through the lens of voting rights, you only get the benefit of something called rational basis review. As a very quick and dirty tutorial — there are tiers of scrutiny that are used when you're challenging something under the 14th Amendment’s due process and equal protection clauses. The highest form of scrutiny, the most protective, is strict scrutiny.
Strict scrutiny is used in cases where there's a question of discrimination based on race, and in cases that involve fundamental rights.
Intermediate scrutiny is the next step down. That usually applies in cases involved in gender discrimination.
Rational basis review is the catch-all for everything else. It means that if there's any rational justification for the government's behavior, the law will stand.
In a case called Jones v. DeSantis in Florida, we can see how using the voting rights lens offers the least amount of protection to those challenging the law.
Basically, the 11th Circuit said that Richard vs. Ramirez says there is no fundamental right to vote once you've been stripped of your right to vote through a conviction, and strict scrutiny does not apply.
That means rational basis review applies. And according to that court, there is a rational explanation for the state to require full payment of economic sanctions — the state has an interest in people who've been convicted of crimes, fulfilling their punishment, and in being rehabilitated through the completion of that process.
What is the other lens?
I have posited that there is another approach, a different lens.
The lens that I propose isn't about the individual right to vote, but rather about the state's authority to punish.
That puts you in a very different position in terms of the tests that apply.
Are there cases where this approach is used?
There are two areas of the law important to the contextualization of this approach.
The first demonstrates that the Court has treated cases that deal with criminal legal systems differently than other types of discrimination.
The first case that this is seen in is Griffin v. Illinois, a case decided in 1956. Illinois had a system where people could appeal their criminal convictions, but they had to provide a transcript of the lower court hearing at the trial. Those transcripts weren't free. Those who couldn't pay for transcripts were effectively barred from being able to appeal their conviction. The Court held that was unconstitutional.
The opinion of that decision actually discusses the idea that wealth-based discrimination might create the same kinds of problems as race-based discrimination.
If that were the case, that would mean that wealth would fall into the strict scrutiny category — wealth would be a suspect class.
There were a number of cases that followed Griffin that are key. In the early 1970s, Williams v. Illinois and Tate v. Short, the court held it was unconstitutional to automatically convert a person's fines into jail time if they couldn't pay.
However, as this line of cases moved along, several members of the court started to get nervous about the idea of wealth being treated as a suspect class because they worried that that might lead to a constitutional requirement that the government affirmatively engage in practices that ensured wealth equality in the United States. In fact, in one of Justice Powell’s notes in his old files, which I've looked through, he called the idea of wealth being a suspect class, "communist doctrine, not even accepted, except in a limited sense in socialist countries."
So, in 1973, the Court took up a case called San Antonio Independent School District v. Rodriguez, which involved a challenge to public school financing based on local tax assessments. Essentially the way that the financing scheme worked is that poor neighborhoods with lower taxes would have less funding for their school districts. The Court upheld that tax scheme as constitutional in an opinion, authored by Justice Powell. In that opinion, the Court said, wealth is not a suspect class, meaning it's subject only to rational basis review.
This opinion carves out criminal cases like Griffin and Williams and Tate as distinct from other wealth-based claims. Criminal cases are different because they involve a total deprivation of access to appellate processes or total deprivation of liberty, and because of the unique threat that's inherent in the government's use of its prosecutorial power.
It is in that line of cases we see the Court separating out the criminal cases from the traditional tiers of scrutiny approach.
That is seen in Gideon v. Wainwright and the Sixth Amendment right to counsel for indigent defendants.
So in Jones v. DeSantis, where, again, the court decided that Richard vs. Ramirez says that there is no fundamental right to vote after you have been convicted, the 11th Circuit’s opinion said that the line of Griffin cases differ because they involve deprivations of liberty. They argued that a liberty interest is much stronger than a voting interest because the right to vote is, of course, no longer fundamental after Richardson v. Ramirez.
What they miss, however, is that the Supreme Court never limited the Griffin line of cases to the deprivation of liberty.
When you compare the Griffin line of cases to the Gideon, Sixth Amendment, right to counsel line of cases, it becomes obvious. The million-dollar question in Gideon was whether the right to counsel should be limited to deprivations of liberty. Ultimately, the Court decided that it should be. There is no Sixth Amendment right to counsel unless a person is imprisoned or subject to a suspended sentence that could result in imprisonment, like probation. The cases were decided contemporaneously, so we know that the Court was thinking about these sorts of limitations, but they are nowhere in the rules that emerge from the Griffin lines of cases.
What emerges from those cases is a flat prohibition on pricing people out of fair treatment and criminal justice systems.
That flat prohibition doesn't fall within the traditional tiers of scrutiny approach, and it potentially gives much more robust protection than the rational basis approach to those challenging wealth-based penal disenfranchisement. That is basically the difference between the two different lenses — does this fall under the tiers of scrutiny or are criminal cases fundamentally different in a way that implicates the type of analysis a court should undertake?
Sort of an aside, but is that still how the financing of public schools is structured in a state like California?
I should say that I am in no way, an expert on public school financing, but I do know that it's very different from jurisdiction to jurisdiction. There are ways that fines and fees can play into education funding. There are a couple of jurisdictions, for example, North Carolina and New Mexico, where revenue from various types of economic sanctions like forfeitures, and in some cases, fines and fees, go into the general education fund, and then those monies are distributed for public education. It creates an interesting type of inequality in that most of the fines and fees and forfeitures are coming out of heavily policed communities, but being distributed based on other criteria like student population size.
It's a sort of hidden tax mechanism to fund public education. You end up with a group of people who are heavily policed that are more heavily financing public schools, including districts that are not their own.
What is happening with this sort of litigation? Has your research pushed people into approaching these cases through a different lens?
If we look beyond litigation, there have been policy changes among states. In 2019 and 2020, Colorado, Nevada, and New Jersey all changed their laws to allow automatic restoration upon release from prison. People on probation and parole are now eligible to vote. California has a ballot proposition, Proposition 17, that would do the same thing and would restore the vote to about 55,000 Californians.
In Iowa, Governor Kim Reynolds signed an executive order that restores the right to vote for people who've completed any term of probation, parole, or other types of supervised release. Of course, as we talked about earlier, payment of economic sanctions can be a condition of probation, so Iowa is not completely out of the woods, but it does show that there is progress being made.
In other words, it is important to keep in mind that this is not just a constitutional question. Disenfranchisement can also be addressed through policy advocacy.
The constitution is a floor and not a ceiling. It just sets the grounds as to what the government cannot do, but lawmakers could just eliminate penal disenfranchisement entirely.
It is also important to remember that on the litigation side, the federal constitution is not the only constitution in play. There may be more protections under state constitutions. Litigators should be looking to their own state constitutions to determine whether there is a stronger claim to be made there.
Do you find that there's a typical motivation in keeping rights away from people who have been incarcerated or who are struggling to pay fines post-incarceration? Does motivation matter?
I think motivation does matter, but it is hard to pin down motivation because a state is not a monolith. You could have a legislative body the members of which all come to the same conclusion about what the law should say, but for very different reasons.
There is, of course, historical evidence that penal disenfranchisement laws were tied to efforts to ensure that African Americans were not allowed to vote after emancipation.
For some lawmakers that may continue to be the goal, but, when I was engaged in the process of looking at each state's laws, I found that outside of the states who make it explicit, it is tremendously complicated to figure out how paying economic sanctions plays into penal disenfranchisement. I'm not entirely certain lawmakers even know how their own law operates. These laws stack on top of one another in a way that makes it difficult to take a step back and see the system for what it is.
We have always used fines to pay for court systems. We've always used fines to pay for prosecution and law enforcement. That goes back to the colonial era. However, there has been this massive uptick in the use of fees and surcharges to pay public services like we talked about earlier — education, public parks, fire departments, you name it. And again, it's not entirely clear to me that lawmakers are cognizant of how bad this has become. How these laws play into tax systems, into voting, and into education is incredibly complicated. That is why it's important that we have people in positions of authority who are interested in those issues.