Ruling on clemency may cause Florida constitution panel to weigh in

  • Lloyd Dunkelberger
  • News Service of Florida
8:00 a.m. Saturday, Feb. 3, 2018 Politics
Mario Tama/Getty Images

The Florida Constitution Revision Commission may wade into the state’s process for restoring voting rights of ex-felons, after a federal judge ruled the current clemency process is unconstitutional.

Members of the commission’s Ethics and Elections Committee unanimously agreed Friday to explore ways to consider the issue, either through additional committee meetings or by amending a proposal when the full commission meets in March.

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On Thursday, U.S. District Judge Mark Walker found the current process — in which felons who have fulfilled their sentences must wait years to have their clemency cases considered and only a small number are successful in getting rights restored — to be arbitrary and unconstitutional. He also asked the state and lawyers who challenged the system to file plans to resolve the problem by Feb. 12.

“I don’t know if there is anything we can do, should do, where we would go from here, et cetera,” said Commissioner Hank Coxe, a Jacksonville lawyer who heads the commission’s Ethics and Elections Committee. “But we’re here, it just happened and so we have it.”

Commissioner Sherry Plymale of Palm City said she and other members of the committee have an understanding of the problems in the current system, after they participated in an in-depth review of the clemency process.

“We were unhappy particularly with the number of people that are in the queue, which was thousands,” Plymale said. “I felt all along that we needed to find an opportunity to work on this.”

As of Oct. 1, the state had a backlog of 10,377 cases in which ex-felons are seeking to have civil rights restored, including the right to vote, according to commission analysts.

In Walker’s order, the federal judge noted that 154,000 Floridians had their rights restored under former Gov. Charlie Crist, who set up a process in which cases could be reviewed by the state parole commission.

But Gov. Rick Scott changed that policy after he took office in 2011, leaving the rights-restoration decisions up to him and the three members of the state Cabinet, although the governor has sole power to reject any application.

Since that time, only 3,000 applications have been granted, with Walker noting the process has resulted in nearly 1.7 million Floridians being denied the right to vote, including more than one out of every five voting-age African-American residents.

“I do think we owe it to an awful lot of people in Florida to have this process work a lot better than it does,” Plymale said. “Even if they don’t want to restore rights, OK. But they’re not even getting a hearing, which is really not fair.”

Former Senate President Don Gaetz, a Niceville Republican who is a member of the ethics and election panel, expressed regret that lawmakers did not address the issue during his 10 years in the Legislature.

“We didn’t do what perhaps we could or should have done if we had known then what we know now,” Gaetz said. “It’s obvious that the clemency process in our state is not only broken but it’s scandalously broken.”

The commission considered several proposals aimed at automatically restoring voting rights for ex-felons. But those proposals were withdrawn when the political committee Floridians for a Fair Democracy obtained enough petition signatures to place an initiative, known as Amendment 4, on the fall ballot. That amendment would automatically restore voting rights to felons who have served their sentences, excluding those convicted for murder or sexual offenses.

As commissioners debated the ex-felon proposals, several members raised the possibility of “ballot confusion” if the commission placed a measure on the 2018 general election ballot in addition to Amendment 4.

Coxe, the chairman of the ethics and elections panel, said if the commission now takes up a proposal, he expects it to be focused on the clemency process rather than on the automatic restoration of voting rights.

“I’m not concerned about ballot confusion if one deals with clemency and it clearly does,” Coxe said.

Gaetz said he expects Amendment 4 to fail to gain the required 60 percent support from voters because it is “too broad.” While it excludes murderers and sex offenders, it would automatically restore rights to other felons who have committed serious crimes, such as kidnapping or carjacking.

He said he would not like to see competing proposals on the ballot, “but I think that we should not just give up on the opportunity to fix the clemency process even if we can’t fix the broader issue because of the way it is drawn so expansively.”

The commission, which meets every 20 years, has the unique ability to place constitutional amendments on the 2018 ballot. Ballot measures must be supported by at least 60 percent of voters to be enacted.