By Michael E. Miller
By Allie Conti
By David Villano
By Jose D. Duran
By Michael E. Miller
By Allie Conti
By Kyle Swenson
By Luther Campbell
No one state agency is solely responsible for helping felons with restoring their rights. The Department of Corrections (DOC), the Florida Parole Commission, and the Office of Executive Clemency all have a role.
According to Jimmie Henry, chairman of the Florida Parole Commission, the DOC forwards electronically a list of names of inmates released from prison or supervision to the parole commission. Parole examiners then do background checks and contact courts to make sure all sentencing requirements have been fulfilled. A list of felons deemed eligible for rights restoration is sent to the Executive Clemency Board, which is given twenty days to object to any name on the list. If three or more members object to a name on the list, the case is sent back to the parole commission, which then assigns it to a field office, where a full-fledged investigation commences. A final report is sent to the Executive Clemency Board, which then decides during a hearing whether to grant civil rights.
It has been less than a seamless operation. In March 2001 the Florida Conference of Black State Legislators and several other civic organizations filed suit in Leon County on behalf of four felons against Michael Moore, secretary of the DOC. The suit claimed that the DOC was not abiding by a state statute requiring it to assist offenders in completing "the necessary application and other forms required for the restoration of civil rights."
Randall Berg, a Miami attorney who represents the plaintiffs, had first scrutinized rights restoration in the 1980s when an appeals court decision, later overturned, held that those without restored civil rights could not sue in Florida. He learned at that time that restoration was virtually automatic.
U.S. Sen. Bob Graham, who was governor from 1979 to 1987, recalls that streamlined process: "The restoration of rights, for which we followed the practice that I think had been followed by several governors prior to us, was that if a person served their time and any post-incarceration parole and they lived an upstanding life, they were granted their rights without a formal hearing, unless there was some unusual circumstance."
How unusual? "Quite unusual," Graham answers. "I'm sitting here trying to think. There's not a case which comes to mind. There might have been one, but I can't think of one that was not handled in essentially a paper-review process."
Graham says his understanding of the current system is "that there is a presumption against restoration, whereas the presumption had been that there would be a restoration after the individual had paid his debt to society."
Berg delved into the subject once again before the November 2000 election. "I had a number of clients telling me that they were having difficulty in getting their civil rights restored," he says, "so I started looking into it."
As part of the suit against the DOC, in June 2001 Berg deposed Janet Keels, who has worked for the Office of Executive Clemency since 1977 and as coordinator since 1988. Keels testified that restoration had been automatic back in 1977 but that it became "not quite automatic somewhere in the late Eighties, when the process for allowing the [clemency] board members to object was entered into the rules."
But the critical red tape was affixed in December 1991, when specific disqualifying criteria were adopted as Rule 9a, according to Keels's testimony. Felons would be ineligible for restoration without a hearing if they had ever before received restoration or been convicted of more than two felonies. A hearing before the governor and cabinet was also required for the following crimes: drug trafficking; committing a "dangerous crime"; sexual battery; aggravated assault or battery of a law enforcement officer, firefighter, emergency medical care provider, or public transit agent; DUI manslaughter or other DUI felonies; homicide; public corruption; and violation of election laws.
With Rule 9a in place, few felons qualified for automatic reinstatement of civil rights, and the path to a hearing was tortuous. The number of restorations plummeted to an all-time low of 900 in 1998. More than 23,000 felons were released from prison that year.
Indeed at the beginning of the June 2002 clemency board meeting, Tom Gallagher, the state treasurer, prodded fellow members to consider the consequences of knee-jerk denials. "Twenty-eight of the sixty cases on today's agenda are from objections to the automatic restoration process," he noted. "I'm not saying don't object if you really believe you should object, but just to take the list and object to everyone that's on the list, I think it's something we need to rethink. We're never going to get through this backlog. And that's very unfair to people."
Attorney General Bob Butterworth's response reveals the bureaucratic machine underpinning the hearing process: "I think most of us here are fairly busy, and we leave a lot of this to our staff," he says. "I would say very few of us, if any, actually look through these cases personally and pretty much leave it to staff."
Berg says he thinks the whole clunky process kicked off in the mid-1980s when a vengeful attitude toward criminals gripped the public, which elected officials then played to. "An attitude that, despite the fact these people had served their sentence, we don't think they're worthy of having their civil rights restored," Berg says. "The thing the public and the politicians don't focus on is that the restoration of civil rights is part of the restorative process for getting someone re-established in the community. There are a number of occupations that require licenses and are contingent upon one having his civil rights restored -- not just lawyers' and doctors' licenses but for blue-collar jobs. If they can't obtain these licenses and better-paying jobs than just straight labor, they're not going to be able to earn a living and pay taxes and support their families. I think it's a self-fulfilling prophecy that they're going to go back to a life of crime."