Before the Florida Senate Committee for Criminal Justice began a discussion about how to implement Florida’s Amendment 4 this week, committee chairman Sen. Keith Perry showed fellow senators a video.
In the video, which was taken in May 2017, the prominent attorney and former Democratic Speaker of the Florida House Jon Mills is having a back and forth with Florida Supreme Court Justices about what it means for someone to have to “complete all terms of their sentence."
The discussion took place at a hearing during which advocates sought to get language for Amendment 4 approved so it could get onto the 2018 ballot for Floridians to decide whether most people with felony convictions could regain the right to vote. Mills was representing the citizen ballot initiative sponsor, Floridians for a Fair Democracy. Mills was also a co-author of Amendment 4 itself.
Justice Ricky Polston asked Mills if former felons would have to complete their probation? Yes, he said. Parole? Yes. Polston then asked a question that's now at the heart of a debate about the future of Amendment 4.
“So it would also include the full payment of any fines?” Polston asked.
“Yes, sir,” responded Mills. “All terms means all terms.”
That concept is now being slammed by the state Democratic Party and also in editorial pages of the nation’s biggest newspapers as a “poll tax” that has been created by Republicans out of thin air in trying to implement Amendment 4.
But Mills’ complications go beyond that.
After reviewing historical records, WLRN learned that Mills was also a core architect of a 1998 amendment to the state constitution that activists say is largely to blame for Florida’s system that charges high fines and fees for criminal cases in the first place.
A 1998 ballot amendment that came out of the Florida Constitutional Review Commission mandated that county and circuit courts be entirely funded by fines and fees collected by the court system. Mills was a co-sponsor of that amendment in the Commission, and he also chaired a special committee dedicated to coming up with a new funding structure for the state court system.
“His connection with this process of fines and fees really does put what he said before the Supreme Court in a new light,” said Ashley Thomas, the Florida director of the Fines and Fees Justice Center, when told of Mills’ connection to fines and fees.
DECADES-OLD DECISIONS HAVE NEW IMPLICATIONS
Beginning in 1997, the Florida Constitutional Review Commission held listening sessions across the state. In county after county, local politicians complained of the cost of funding the state court system, transcripts from the sessions show. A Hillsborough County Commissioner complained that many counties spent “close to 70% of their budgets” on funding the state court system. A Palm Beach Commissioner complained that the county spent $43 million funding the state court system, and she asked the state to provide full funding. A Democratic State Representative suggested counties should be able to collect the fines and fees that were imposed by local courts to help pay for the system. It was this last idea that stuck.
Records show the committee headed by Mills wrestled with the idea of how to fund the state court system for months, until Mills had the chance to unveil the committee's proposal.
“The bottom line is there are only about three areas to draw [revenue] from: that is, the state taxpayer, the local property taxpayer and the user. That is, the persons who use the court system either through paying their filing fees or through collection of other fines, etcetera,” Mills told members of the Commission.
“We suggest you construct a system whereby clerks would be funded by fees. This entails raising fees,” Mills said.
Mills did not respond to requests for comment on his involvement with the 1998 constitutional amendment.
Since the passage of that amendment, the Florida legislature has created “more than 20 new categories of financial obligations for criminal defendants,” according to an analysis by the Brennan Center for Justice. These fines are financial penalties for crimes, which stand apart from court costs and restitution, or compensation to a victim of a crime. At the same time, Florida lawmakers have eliminated almost all exemptions for defendants who can’t pay those fines.
Likewise, counties can assess “user fees” for the court system that are used to generate revenue. And the legislature has followed suit by tacking on financial penalties for misdemeanors and felonies. That money keeps the court system afloat, rather than general tax revenue.
Activists say the scenario has created a perverse reality where local governments are incentivized to charge more and more money for committing crimes and infractions.
“It’s no wonder that the term ‘cash register justice’ was first coined here in Florida,” said Thomas.
These financial penalties were never meant to be tied to the right to vote, but now that owed money could be the only thing standing between someone and their ability to cast a ballot.
LOTS OF MONEY OWED, LITTLE EXPECTED TO BE PAID
Specifically as it relates to felony convictions, the state is well aware it will likely never get the majority of money imposed by criminal statutes.
Between 2014 and 2018, an average 83 percent of the money levied per year by the circuit courts for felony convictions is labeled as having “minimal collections expectations” by the Florida Clerks and Comptrollers, the statewide association. That means the courts know they are likely to never receive payment on the debt because the defendant is too poor to pay.
As WLRN has reported, over $1 billion in felony fines were issued between 2013 and 2018, according to annual reports from the Florida Clerks and Comptrollers, the statewide association. Over that five year period, an average of only 19 percent of that money was paid back per year.
Despite this, bills have passed through Republican-controlled committees in both the House and Senate that stipulate “financial obligations” must be paid before someone can regain the right to vote.
Republican Rep. James Grant said in an interview that the House Criminal Justice Subcommittee, of which he is a chairman, only followed the language in the amendment itself, as well as what Mills told the Florida Supreme Court when it passed a vote on a bill along party lines. He pointed out that now-retired Justice Barbara Pariente, long known as one of the most liberal justices on the bench, explicitly connected the need to pay fines to the right to vote in the 2018 hearing. “This would actually help the state because if fines, costs and restitution are a requirement, for those that want to vote, there’s a big motivation to pay unpaid costs, fines and restitution,” said Pariente, according to court transcripts.
“This kind of political faux outrage that wants to call me or my colleagues a racist said nothing about the fact that a Florida Supreme Court Justice openly admitted an incentive to vote would be a good deal to the state,” said Rep. Grant, speaking of critics suggesting he created a poll tax. “Perhaps they should redirect where their focus and where their attention is.”
Asked if existing statutes that tack fines and fees onto criminal charges might have to be revisited because they might prevent someone from voting if his legislation becomes law, Grant acknowledged there could be issues.
“Those are all very good and meritorious questions that I plan on working on in policy as we move forward in the judiciary [committee]. But they’re quite frankly not relevant to the package that was bundled up and sent to us,” said Rep. Grant. “They may have ramifications, they may have implications. But it can’t change the fact that the voters were offered a deal, and the terms of that deal said: no murder, no felony sex offense, and automatic restoration if the person has completed all terms of their sentence.”
Mark Schlakman, a Tallahassee-based attorney and professor of law at Florida State University, said the legislature is making a conscious decision to exclude more people from regaining their voting rights than it has to.
"The colloquy between the lawyer and the Supreme Court Justices is not binding,” said Mark Schlakman, a Tallahassee-based attorney and professor of law at Florida State University. “This isn’t even opinion: the legislature is not bound by that.”
'EVERYTHING IS GOING TO BE ON THE TABLE'
A unanimous Supreme Court case from last month shed light on the constitutionality of government schemes to raise revenue in ways other than taxes. The case centered on forfeiture of private property that was meant to be sold for revenue. In her opinion, Justice Ruth Bader Ginsburg likened the forfeitures to fines, and said excessive fines have undermined liberties in American history. “Fines are a source of revenue,” she wrote, “while other forms of punishment cost a state money.”
Ginsburg explicitly cited Black Codes that were put in place in the South after the Civil War that were designed to prevent the black population from voting and having access to other rights by imposing “exorbitant tolls” for things like vagrancy “and other dubious offenses.” Justice Clarence Thomas, perhaps the most conservative member of the court, also cited the Black Codes in his concurring opinion.
“I think the language in that case certainly is the Supreme Court of the United States nodding towards the issue that those situations where fines and fees are revenue sources for government sort of deserve a higher level of scrutiny,” said Thomas of the Fines and Fees Justice Center.
“I think everything is going to be on the table to review if there’s a constitutional challenge to Amendment 4. It’s unfortunate this is what it takes to really look closely at fines and fees and how Florida funds its court system,” said Thomas. “But it also brings an important conversation to light, [and] that is the impact that these costs have on real people, real individuals.”