Florida’s ‘cash register justice’ leaves many felons still ineligible to vote despite passage of Amendment 4

By Claire Goforth

JACKSONVILLE, Fla. — Ten years ago, Rosemary McCoy never would have imagined that today she’d be in a Jacksonville library, tears streaming down her face, as she tells a stranger how it feels to be disenfranchised.

Then she was a real estate professional with two decades’ experience, a wife, mother of two, an average, everyday citizen living a good life.

Today she scrapes by on meager wages earned collecting petition signatures. Thanks to felony convictions in 2015 on charges associated with renting homes without authorization, the 61-year-old’s former life is long gone. So are her voting rights.

Adding to her sense of injustice, McCoy was among those who gathered signatures to get Florida’s Amendment 4 on the ballot in 2018, which automatically restored voting rights to people with felony convictions (except murder and sex offenses) who have completed their sentences. When it passed, she was among the 1.4 million Floridians who believed they’d be able to vote.

Initially this was true. In April, she registered to vote. McCoy cast a ballot in Jacksonville’s municipal elections the following month.

Interpreting Amendment 4

Then the legislature enacted a law it claimed was necessary to interpret Amendment 4. That law, Senate Bill 7066, which passed strictly on party lines with Republicans for it and Democrats against, interprets “completion of sentence” to include payment of court fees, fines and restitution, or legal financial obligations (LFOs).

McCoy owes a little more than $7,000 in restitution. With an income of barely minimum wage, she may as well owe 10 times that amount.

Because of that debt, when Republican Gov. Ron DeSantis signed SB 7066 on the Friday before Independence Day, he took back her right to vote.

Rosemary McCoy is not alone. In fact, of the 1.4 million Floridians estimated to have been re-enfranchised when Amendment 4 passed overwhelmingly last November, as many as 80% were disenfranchised by that stroke of the governor’s pen.

McCoy’s debt is associated with restitution. Most would likely believe that restitution is straightforward, but tracking it is far more complicated than one might expect. As the Miami Herald reported, restitution differs by jurisdiction and even by judge. Sometimes court clerks collect; sometimes victims do. During imprisonment or probation, the Department of Corrections collects restitution. After probation, it’s often converted to a civil lien; then payments go to the clerk, the victim or a debt collector.

The state has no idea how much restitution is owed cumulatively, by whom and to whom. There is no state agency tasked with tracking the data. Many defendants themselves don’t know how much they owe.

Florida’s often exorbitant fines

Florida is among the states that charges often exorbitant fines to people convicted of crimes and civil infractions. Several estimates have found that roughly a million Floridians with felony convictions have court debt. Some owe hundreds of thousands of dollars.

They can appeal to convert it to community service hours, but McCoy points out that this typically requires hiring a lawyer with money that they just don’t have.

And now that debt also prohibits them from voting.

Tampa native Aranda Lister, 38, was convicted of trafficking and conspiracy to traffic amphetamine in 2004. While her co-defendant husband went to prison; she was sentenced to supervised drug probation. The court also ordered her to pay $57,000 in fines and fees.

For years, Lister ran herself ragged trying to support their three small children and pay her court debt, at times working multiple jobs earning menial wages typical at places that hire people with records. And her debt kept growing due to probation, drug screening and other charges.

“By the time it was over with, I racked up $10,000 [in additional fees] on a 48-month sentence,” she said. “… and I was behind, of course I was behind, I’ve got three kids.”

Back to crime

Eventually, Lister returned to crime. “I resorted to going back to selling drugs. It’s quicker money. It helps me to sit back for a minute and take a breath.”

She got busted in 2017 for constructive possession (legal ownership) of less than .2 grams of amphetamine. This time, she went to prison for a little more than a year. That charge netted her another $1,800 in fines and fees. “I went and paid my debt to society for 13.8 months and I still have to pay to go to prison,” she said.

Lister was released on July 17. Now she’s a client of Operation New Hope in Jacksonville, a nonprofit that provides job and skills training and other services to people with criminal records.

She still owes more than $53,000 for the 2004 charge, a sum she is not likely to be able to pay off at her part-time job with an event staffing agency.

Fine amounts range widely and without much apparent rhyme or reason. A misdemeanor conviction for failing to carry a concealed weapons permit will net a $25 fine; a misdemeanor littering fine may be as high as $500, according to the Florida Court Clerks & Comptrollers’ 2018 distribution schedule.

Trafficking marijuana nets a $200,000 fine; trafficking cocaine $100,000. Trafficking amphetamine, which Lister was convicted of, now carries a $250,000 fine.

A first-degree felony for raping a minor, meanwhile, will net a maximum $10,000 fine.

‘Inappropriate’ fees

“We also have fees and fines that are completely inappropriate, especially in the context of Amendment 4,” Republican state Sen. Jeff Brandes said. For example, getting convicted of stealing a single fish from an aquaculture facility, a misdemeanor, has a mandatory $10,000 fine, which a person who steals one fish is probably unable to pay, he said.

“What’s the purpose of this fine?” he said.

Jeremy Wright, 31, has been in and out of the system for years, most recently for grand theft auto that he pled down to misdemeanor trespassing. He thinks fees and fines give people little choice but to reoffend. “It feels like entrapment. ’Cause how else are we going to get the money, especially the type of money they’re asking for, without going out and breaking the law?” he said.

For many years, few appreciated the significance of the fees and fines collected by the court system, or of their impact on those caught up in it.

Amendment 4 brought the issue into sharp focus, said Ashley Thomas, Florida state director of the Fines and Fees Justice Center. SB 7066 not only shone a spotlight on what is known — the exorbitance and inconsistency of fees and fines — but what is not known.

Billions owed

At a recent press briefing, ACLU regional organizer Sam Coodley said that half a billion dollars of LFOs is owed in Palm Beach County alone, which means that Floridians probably owe many billions of dollars cumulatively. But no one is sure how many owe, and how much, not even the state.

“The fact that no one knows, no one knows how much is owed, is a pretty damning indictment of the legislature,” said ACLU of Florida Executive Director Micah Kubic at the briefing.

Even individuals may not know how much they owe. Coodley pointed to the case of Clifford Tyson, a plaintiff in ACLU’s suit challenging SB 7066. Three different agencies in Hillsborough County have records of Tyson’s court debt; each gives a different amount owed.

University of Florida political science professor Daniel Smith prepared a report analyzing the effect of SB 7066 on behalf of the ACLU. Based on court clerks’ data from 48 counties, he found that 82.4% of 375,256 people with felony records owe LFOs, rendering them ineligible to vote. If this ratio bears out across all 1.4 million Floridians with felony convictions who couldn’t vote before Amendment 4, then 1.15 million were disenfranchised by SB 7066.

“The public was unaware that this was happening to us. The public honestly thought that once you completed your sentence, it was over,” McCoy said. “They believed that all your rights would be restored.”

The ACLU is finding “enormous racial disparities” among those who still owe LFOs, Coodley said. “In some counties white people were twice as likely to have paid their fees,” he said. This means that black people are more likely to be disenfranchised due to LFOs.

There may also be debt on the books that’s decades old, following around people who have no idea that it’s owed. No one is sure.

Big money

What is clear is that fees and fines are big money. Last fiscal year, the court system collected $864 million, Florida Courts and Comptrollers reports. The Fines and Fees Justice Center reports that more than a billion dollars — $688 million in fines and $474 million in fees — was ordered. Of this, $298 million was unpaid.

So what happens to the unpaid LFOs? After 90 days, it can begin accruing interest in the form of a statutorily authorized surcharge of up to 40%. Some call this a “poverty penalty.” Clerks can collect or they can send the debt to private collections agencies. Advocates note that these agencies spend thousands in campaign donations and to lobby lawmakers.

The collection rate for all court debt (including that previously owed) was 74.25% last year, according to the Fines and Fees Justice Center. For civil traffic cases ($388 million in 2018), the collection rate was 91.93%. For other categories of offenses, the rate was much lower. Felonies’ collection rate was 20.55%; juvenile offenses 26.6%. Some classes of felonies, such as drug trafficking, have such a low collection rate that the debt is largely seen as uncollectible, Thomas said, which for some calls into question the fine’s purpose.

Fees are more consistent, but still burdensome and complicated.

The fee schedule reads like a manual in nickel and diming. A first-degree misdemeanor traffic charge, which carries a fine of up to $1,000 regardless of whether the defendant has been found guilty, could also include: a 5% surcharge on the fine, $17 for the crime stoppers trust fund, $3 for the crime stoppers fee, $50 in additional court costs, $10 for the clerk of court trust fund, $1 crimes compensation fee, $49 for the crimes compensation trust fund, $3 additional court cost clearing, $2 for local law enforcement education (mandatory with ordinance), $20 crimes prevention fund, $3 state radio system surcharge, $30 for the court facilities fund (mandatory with ordinance) and $65 in additional costs (mandatory with ordinance); for a grand total of up to $1,303, more than 30% higher than the fine itself.

McCoy’s conviction included $616 in case fees, plus $50 for the application for public defender. Among many complaints about Florida’s fees is that it does not waive public defender application fees for indigents.

More fees

Then there are the fees that come with probation and other terms of release.

In 1999, Roderick Pough, 57, was sentenced to 24 years for selling and possessing cocaine under Florida’s habitual offender law. He was released on July 18 of this year. After 20 years in prison, he still hesitates to make eye contact; his demeanor is subdued and thoughtful. On Aug. 6, his probation officer handed him a $2,335 bill. Monthly payments of $64.48 come due in September. He was stunned.

“I’m already hit with bills that I can’t afford. How can I afford it? I don’t have

[a]

job. They don’t care. It’s got to be done. You’re basically telling me you’re going to send me back to prison,” Pough, an Operation New Hope client, said.

He was particularly disappointed in DeSantis, whom he encouraged people to vote for.

“He said he was going to do something about prison reform. So why do I got all these fines? I thought I did 20 years in prison. Why I gotta come out and pay all this money?”

‘Cash register justice’

The debate surrounding SB 7066 inspired Sen. Brandes to seek, and ultimately get, funding to study fees and fines. The goal is to not only quantify but also understand why the state began requiring the fees and fines in the first place. Why, for instance, do some of the fines from a boating under the influence conviction go to the brain and spinal cord injury rehabilitation trust fund? Why are life and other felonies’ fines discretionary, but DUI fines mandatory?

“The goal really is to understand the rationale … to try to understand the overall vision and try to understand the correlation between, what is the purpose of this penalty,” he said.

The study is also intended to help the legislature improve consistency in future years, Brandes said.

“[We’re] trying to find a cohesive process by which we establish these fines and we try to hold them up to some common light to say this makes sense,” he said.

Every year, Florida courts collect hundreds of millions of dollars, in what’s called “cash register justice.” But it wasn’t always this way. In the past there were court costs, and, in some cases, fines associated with civil and criminal violations. The 1980s drug war caused governments to feel the budgetary pinch of the rapidly burgeoning criminal justice system, said Thomas of the Fines and Fees Justice Center. Concurrently, the nation became ever more tax-averse.

In 1998 Florida landed on a solution: People who use the court system should pay to operate it. That year, the state passed a constitutional amendment mandating that fines and fees from civil and criminal defendants fund the court system. It went into effect in 2004.

Exponential growth

Since then, fees and fines have grown exponentially. In addition to adding scores of fees like the 15-cent charge in juvenile cases, the legislature has vastly expanded the categories of offenses that include fines. Today, more than 100 carry a fine. A few are discretionary; most are mandatory. Drug charges carry some of the highest fines, which arguably makes some sense in light of the drug war’s role in increasing courts’ costs. However, given new understanding of addiction, many wonder if it still makes sense to even incarcerate drug users. Three of the four former inmates interviewed for this article have had drug charges.

Today the fees and fines fund not just the court system, but a whole lot more.

Last fiscal year, when the court system collected $864 million, the statewide judicial branch budget was $539 million. The remaining $325 million gets divided among numerous entities.

“They also fund EMS, law libraries, or various trust funds. They’re a way to fund a lot of different beneficial government programs but they don’t necessarily have anything to do with criminal justice,” Thomas said.

Some of the money also goes to the state. “They use fines and fees to plug budget holes,” Brandes said. There’s not much resistance in the legislature to upping a fine or fee, he said. “It’s the shortest punt.”

Both Lister and Wright agree with requiring restitution, but to them incarceration is punishment enough. They were appalled to learn that Florida essentially taxes defendants, largely because it provides so little to help former defendants become productive again. Both wondered if the state is going to fine them, why doesn’t it use that money to help them? Instead, last year, Florida cut $28 million from prison mental health, substance abuse and reentry programs. Lister said she had a Narcotics Anonymous meeting once in nearly 14 months in prison.

$50 and a bus ticket

Upon release, unless they find a program like Operation New Hope, former inmates have little chance of breaking the cycle. Florida gives newly released prisoners $50 and a bus ticket and sends them on their way.

“What are you gonna do?” Lister asked. “You gonna eat and have somewhere to sleep? Are you going to sleep outside? Or are you going to pay fines? It keeps us down.”

Pough said, “I’m a four-time loser. But that don’t mean I can’t get my life right. That don’t mean I can’t change. I can change. I want to change. I’m ready to change.”

As fines have risen, the number of cases filed and cleared in Florida courts has drastically decreased in the last decade. From 2008 to 2017, county court filings decreased 23% (dispositions 27%); circuit court filings 36% (dispositions 25%).

“In keeping with national trends, Florida’s county courts experienced pronounced declines in misdemeanor filings from 2007 to 2015; the declines are largely due to fewer arrests and increased diversionary methods,” the Florida State Court Annual Report for the fiscal year 2017-18 states.

Racial disparity

Poor people and minorities are more likely to be charged and convicted of crime. Black people comprise 17% of Florida’s population and nearly half of its prison population.

Court debt takes on new significance in light of the approximately 3 million Floridians living in poverty, according to U.S. Census Bureau and Welfare Info data. Adding further depth to the issue is the fact that there are significantly higher poverty rates among minorities. With a statewide poverty rate of 15.1%; nearly 25% of black people and 20% of Hispanics live in poverty, Welfare Info reports.

McCoy wept as she talked about losing her voting rights. She is among those who see racism in SB 7066. To her, it harks back to the Jim Crow era, calling to mind her mother, who died last year at 103.

“It just took me back to the struggle that she went through. Here it is 2019 and I’m going through the same thing that she went through,” she said.

The SB 7066 debate centers primarily on the definition of “sentence.” Some view it as completing incarceration, probation and parole; others as doing that plus paying fees, fines, restitution, etc.

The Southern Poverty Law Center is in the former camp. The civil rights organization has filed one of several suits challenging SB 7066 as unnecessary and beyond the scope of the amendment. McCoy is one of the plaintiffs. The SPLC and others have likened it to a poll tax. Poll taxes, voting fees used in the Jim Crow era to disenfranchise African Americans, do bear some similarity to Florida’s current system.

The big discrepancy

Promotion for the amendment frequently cited 1.4 million people getting their voting rights restored; SB 7066 reduced that figure to potentially fewer than 300,000.

“The discrepancy of the numbers in and of themselves suggests that the legislature knew that the bill was counter to what voters were supporting,” said Nancy Abudu, deputy legal director for voting rights with SPLC.

On Aug. 9, DeSantis requested an advisory opinion from the Florida Supreme Court about “whether ‘completion of all terms of sentence’ encompasses financial obligations, such as fines, fees and restitution.” In the letter, the governor referenced Amendment 4 co-author Jon Mills, who also served as advocates’ counsel, testifying before the Florida Supreme Court during a hearing concerning putting on the ballot the sentence that included LFOs.

Desmond Meade, executive director of Florida Rights Restoration Coalition (FRRC), one of the amendment’s standard-bearers, said that Amendment 4 is functioning as intended, even taking SB 7066 into consideration.

“Amendment 4’s primary purpose was not to attack fees and fines,” he said, later adding. “What Amendment 4 did is give people another way to get to vote.”

Meade said he understands why some people view it as a poll tax and admitted to being among those caught unaware by the scope of the issue, but said, “That’s an entirely different argument that needs to be answered elsewhere.”

Raising funds

FRRC is raising funds to help people pay LFOs excluding restitution. Details are still being hammered out, but Meade said they expect to require applicants to have already paid restitution, demonstrate financial need and that they’re serious about making a positive change. The program could make an enormous impact for people impacted by LFOs.

“I wish somebody would take these fines and give me some help paying,” Pough said. “… I don’t want to go back to prison. I’m not trying to go back to prison. I ain’t going in no drug holes. I done changed my friends. Just give me a chance to live. That’s all I ask.”

Elsewhere, Florida prosecutors are taking matters into their hands to circumvent the legislature. Chief prosecutors in Palm Beach, Miami-Dade and Hillsborough counties have announced programs to enable people affected by the payment requirement to restore their voting rights in the short term.

Florida state Rep. Al Jacquet, a Democrat, has proposed legislation that would overturn SB 7066. It has little chance of passing the Republican-dominated legislature. Even if it did, DeSantis could easily veto it.

Rosemary McCoy isn’t giving up.

“This is a democracy and we will always fight for it. We’ve been fighting for it, and until this world give up the ghost, we’re going to continue to fight for it. I just want the public to know, don’t give up,” she said.

This project was collaboratively produced with Jaxlookout and underwritten in part by The Vital Projects Fund.