I. INTRODUCTION
Florida Statute § 790.23 prohibits the issuance of a concealed weapons license, as well as the purchase and possession of a gun by a person who has been convicted of a felony punishable by imprisonment for a term exceeding one year.[1] The statute makes no mention or distinction as to those who have been convicted of a violent felony from those who have been convicted of a non-violent felony.[2] Further, the statute is silent as to the types of felonies the statute is meant to apply to while prohibiting the possession of guns by those convicted of any type of felony.[3]
Montana Const., art. II § 28, takes a restorative approach to convicted felons and civil liberties, allowing the individual to have their civil rights automatically restored at the end of their prison term or probationary period.[4] In contrast, Florida does not take a restorative approach; all civil rights are lost upon conviction of any felony, and the restoration of those rights is only granted upon application and approval for clemency after an eight-year period.[5]
This Comment will examine the current Florida legislation that prohibits a non-violent convicted felon from purchasing and possessing a firearm, and the lack of clear distinguishing factors between a violent convicted felon and a non-violent convicted felon.[6] Part II of this Comment analyzes the constitutional right to bear arms under the Second Amendment, the legislative intent behind Florida Statute § 790.23, how Montana Constitution Art II § 28 contrasts the Florida statute, and the difference between a violent felony and a non-violent felony.[7] Part III discusses how the courts have distinguished between a violent felon and a non-violent felon when determining who is eligible for automatic restoration of rights.[8]
Additionally, this Comment will analyze the legislative support the restoration of non-violent felon civil rights has received in Florida in the past, how the restoration of a non-violent felon’s constitutional right to bear arms plays into current gun violence concerns, and societal impacts on non-violent convicted felons in the United States.[9] Part IV of this Comment will focus on the proposed solutions to the issue of disenfranchisement of non-violent convicted felons in Florida with respect to their Second Amendment right to bear arms.[10] Part V of this Comment concludes by discussing how Florida Statute § 790.23 could and should reflect a more restorative approach as that of Montana Constitution Art II § 28.[11]
II. BACKGROUND
The Second Amendment of the United States Constitution states, “[a] well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”[12] The operative clause of the Second Amendment emphasizes the individual’s protection in the ownership, possession, and transportation of firearms.[13]
Florida Statute § 790.23 was created with the “inten[t] to protect the public by preventing the possession of firearms by persons who, because of their past conduct, have demonstrated their unfitness to be entrusted with such dangerous instrumentalities.”[14] Montana Constitution Art. II § 28, in contrast, was created with the rights of the convicted in mind, where their “[f]ull rights are restored by termination of state supervision for any offense against the state.”[15] A convicted felon is “someone who has been convicted of a felony” and is precisely the type of person the Florida statute is meant to prohibit from possessing a firearm.[16]
A violent convicted felon is one who has been charged with a crime classified as malum in se—an act that violates the “moral, public, or natural principles of society.”[17] A violent felony is one that involves the use of threat or force against another which can result in death or serious bodily injury, and it is a definition that has continuously developed over the years.[18] These crimes include, inter alia, murder, rape, robbery, and burglary.[19]
In contrast, a nonviolent felony is a “victimless crime”: a crime that does not involve direct physical injury or death to another person.[20] These non-violent felonies often consist of white-collar crimes, bribery, embezzlement, larceny, theft, or drug related crimes.[21] Non-violent crimes, although also punishable by more than a year of imprisonment, are often prosecuted less harshly than violent crimes, often resulting in fines, probation, or a shorter jail sentence.[22]
III. DISCUSSION
A. Distinguishing Between a Violent and Non-Violent Felon
On July 16, 2014, in the case of Van der hule v. Holder, the United States Court of Appeals for the Ninth Circuit issued an opinion that addressed whether 18 U.S.C. § 922(g) prohibits a convicted felon from “possess[ing] in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce” on a federal level, if Montana law restores the felons’ right to possess a firearm but refuses to issue a concealed weapons license based on the nature of the prior convictions.[23] The Court held Van der hule “[was] barred by federal law from possessing a firearm and that such ban [did] not violate his Second Amendment rights.”[24]
In their consideration of this issue, the Court recognized that pursuant to 18 U.S.C. § 921(a)(20), the unless clause, “[a]ny conviction which…a person has been pardoned or has had civil rights restored shall not be considered a conviction…unless such pardon…or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.”[25] A three-step procedure was followed in this case to determine whether a state conviction was invalidated for purposes of the federal felon-in-possession statute.[26] The court used state law to determine if the defendant had a conviction or not; whether the conviction was expunged, pardoned, set-aside, or rights restored; and whether that pardon, expungement, or restoration of civil rights prohibited the defendant from shipping, transporting, possessing or receiving firearms and, if so, the conviction would stand.[27]
Although the Montana Constitution restores a convicted felon’s civil rights upon their completed prison term or probationary period, Montana Code Annotated § 45-8-321 provides the privilege may be denied if the individual has been convicted of a crime that includes an element of violence.[28] In this case, although Van der hule’s rights had been restored per the Montana Constitution, he was ineligible to obtain a firearm or concealed weapons license due to the nature of his convictions.[29] This section of the Montana Code Annotated highlights a clear distinction between violent convicted felons, like Van der hule—who was convicted of multiple counts of sexual assault—and a non-violent felon who may have their rights automatically restored per the Montana Constitution.[30]
The distinction delineated in the Montana Code Annotated § 45-8-321 is overlooked in Florida Statute § 790.23, and, as a result, a non-violent convicted felon’s civil rights are affected.[31] Jorge Respeto, a United States citizen and Florida resident, voiced his frustration with the vague law, stating that “there should be a difference between a person who commits a crime with a mindset to cause harm, and someone who gets caught breaking the law but has no intent to harm; one should not equate with the other.”[32] Those convicted of a non-violent felony who want to exercise their Second Amendment right to bear arms for protection purposes are denied that right despite that they did not serve any prison time, were given a fine, or were simply placed on probation.[33]
The United States Court of Appeals for the Seventh Circuit in Hatfield v. Barr, stated there was no way to know if a non-violent offender will be a “law abiding, responsible citizen,” but also recognized that, statistically, non-violent offenders are less likely to commit crimes in the future than violent offenders.[34]
B. Legislative Support
The Court referenced 18 U.S.C. § 925(c), stating Congress has withheld funds to implement this statute; however, the creation of the statute stated otherwise:
A person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Attorney General for relief…and the Attorney General may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety.
This is an indication of Congress’ legislative intent to provide such persons with an opportunity to have their rights restored through a good faith showing of a lack of wrongdoing.[35]
Although the Court in Hatfield disagrees as to Congress’ ability to distinguish between which convicted felons are likely to be repeat offenders and which are not, this is the very purpose behind the implementation of 18 U.S.C. § 925(c), as the legislature’s intent is made clear in the language of the statute.[36] The statute outlines the requirement to be eligible for relief: a showing that the applicant’s reputation and record reflect an unlikelihood that they would act in a manner dangerous to the public.[37] This requirement is illustrative of Congress’ ability to distinguish between those convicted felons who would pose a threat to the public, and those convicted felons who would not, as it would be on a case by case basis.[38]
Despite this distinction, the Court in Hatfield reversed the lower district court’s ruling that the government had failed to establish the Second Amendment categorically did not protect non-violent felons, that there was a strong public-interest for banning non-violent felons who received no prison time from owning a gun, and a showing of a nexus between Congress’ purpose in keeping guns away from those labeled as irresponsible and dangerous, and 18 U.S.C. § 922(g)(1) which bans non-violent felons from owning guns.[39] This opinion was issued June 2019, and it reflected the country’s general attitude toward non-violent felons and firearms.[40]
Florida representatives, however, have displayed an interest in this approach in the past. Former Florida Representative Cord Byrd introduced House Bill 903 on December 6, 2017, which proposed a similar course of action as outlined in 18 U.S.C § 925(c).[41] This bill would have allowed a person convicted of a felony to petition the circuit court, in the county in which they reside, for relief to have their civil rights reinstated.[42] The bill described similar requirements as those listed in 18 U.S.C. § 925(c) and Mont. Const., art. II § 28, such as the demonstration of facts presented on behalf of the petitioner that supported their fitness for relief, completion of court imposed sanctions, a law-abiding life since the completion of the court imposed sanction, the basis for their conviction, and that granting the petitioner relief would not be contrary to public safety.[43]
Further, a similar bill was filed by Florida Senator Tom Lee on January 5, 2018, which would have authorized persons convicted of felonies to petition a court for relief.[44] Although the bill required a seven year waiting period, it specified that the option to petition a court for restoration of civil rights would not apply to a habitually-offending felon, a person convicted of a violent felony, or a person convicted of a sexual crime.[45] Although the Florida House of Representatives Criminal Justice Subcommittee did not accept either bill, the bills’ proposal serves as an indication that the restoration of rights for non-violent felons is a matter of public interest in Florida.[46] The fact that Senate Bill 1654 clearly distinguished between a non-violent felon and a violent felon lends support to the conclusion that it is possible for Florida Statute § 790.23 to be amended to reflect this distinction, separating one class of persons from the other through their criminal history, crime’s severity, crime’s type, and time served.[47]
Despite Florida legislators arguing non-violent felons should have their civil rights reinstated, including the right to own and possess a firearm, Florida itself continues to be a step behind the majority of the nation.[48] As many as thirty-five states, including Montana, offer some form of automatic restoration of civil rights and recognize “no public purpose is served by denying fundamental rights to people who have served their time.”[49] In contrast to the rest of the nation, Florida disenfranchises felons for life, and, as recently as 2018, has “continue[d] to [completely] disenfranchise more than 1.5 million residents . . . making it tougher for them to be productive citizens” in society, and denying a felon their “right to vote . . . the right to serve on a jury of their peers, run for office, own a firearm, or obtain a professional license — unless they receive clemency from the governor.”[50]
In February 2018, U.S. District Court Judge for the Northern District of Florida, Mark Walker ruled that Florida, “strips the right to vote from every man and woman who commits a felony,” and routinely violated the constitutional rights of its people with the system it has in place for clemency.[51] Although the case before Judge Walker pertained to voter rights, an application for clemency to reinstate any civil right can take nearly a decade to go through, as Florida has a backlog of several thousand cases.[52] This backlog is largely caused by the Governor and his Cabinet meeting as a clemency board as little as four times a year and hearing fewer than one hundred cases each time.[53]
C. Gun Violence and Societal Concerns
The Trump administration has voiced objections to non-violent felons’ possession of firearms. The Trump administration has previously appealed a decision by the United States Court of Appeals for the Third Circuit that would allow two Philadelphia men, who were convicted of a non-violent crime over twenty years ago, to challenge the ban on their Second Amendment right to bear arms.[54] The Trump administration asked the United States Supreme Court to reject the Second Amendment claim, “calling it a threat to public safety.”[55] The Trump Administration’s reaction has been noted as being contrary to President Trump’s campaign promises as he vowed to protect the Second Amendment right to bear arms.[56] This did not seemingly include non-violent felons. Since his election to office, President Trump has changed his stance on an individual’s constitutional right to own a firearm, particularly if the individual has been convicted of a crime.[57]
In 2012, the Middle District of Florida ranked among the top five districts where the most people were convicted as felons in possession of a firearm under 18 U.S.C. § 922(g).[58] Although the majority of persons convicted as felons in possession of a firearm were classified between Category III-VI in conviction severity, a total of twenty-one percent of those convicted fell within Category I and II, with criminal history points falling between zero and three, an indication of lower level, misdemeanor, or non-violent offenses.[59] Further, possession and use of a firearm during the commission of a crime is predominantly an issue when it comes to violent offenders in comparison to those who commit non-violent felonies.[60]
A survey taken in 2016 by the U.S. Department of Justice Bureau of Justice Statistics using data collected through the Survey of Prison Inmates, indicated that the percentage of felons who were in possession of or used a firearm during the commission of the offense for which they were serving time were consistently at a higher rate for those who committed a violent offense than those who did not.[61] The results of this survey indicated that “[a]mong prisoners who possessed a firearm during a violent offense, a large majority of both state (81%) and federal (73%) prisoners used the firearm during the offense, far more than the percentages for non-violent offenders (25% state, 13% federal).”[62] Given the growing concern among American citizens regarding gun violence and its predominance in our country, this data is a representation of how it is possible to distinguish between those who are likely to be a “threat to public safety” and those who will not be.[63]
Further, research supports the contention that convicted felons who have their civil rights automatically restored upon completion of their sentence or probationary period are less likely to commit an offense in the future.[64] The rationale is that those who have had their rights restored are more likely to become trusting of the government and the criminal justice system.[65] This is because an individual who is disenfranchised is directly excluded from the democratic process, which in turn creates “a psychological stigma and a rational belief that the system is non-inclusive”; this stigma rings true for roughly 3.1 million people around the country.[66] Both convicted felons and society benefit from an individuals’ ease of reintegration into society after release from incarceration, as this is a factor in decreasing the likelihood of recidivism.[67] Recidivism is a fundamental concept in criminal justice, which is measured by a person’s criminal acts, and their relapse into criminal behavior through “rearrest, conviction or [their] return to prison without a new sentence during a three-year period” following their release from prison.[68]
The concept of the automatic restoration of rights is not foreign to Florida; former Governor Charlie Christ advocated for the full restoration of ex-felon rights after the completion of their sentencing and probationary periods, with the exception of violent offenders and sexual offenders, which ultimately “resulted in over 154,000 ex-felons regaining their rights.”[69] This approach also mirrored Montana’s current restorative approach in their Constitution regarding the rights of the convicted, which focuses on criminal laws being based on public safety, restitution for victims, prevention, and reformation, as opposed to only prevention and reformation.[70]
On April 5, 2007, Governor Crist and his Cabinet made significant changes to the Rules of Executive Clemency and expanded the percentage of convicted felons eligible to have their rights restored.[71] Although Charlie Christ is not the first to advocate this position, as former Florida Governor Askew took a similar approach, he has made it clear that non-violent convicted felons who have completed their sentences have paid their societal debt and should have their rights restored.[72]
Under the old Rules of Executive Clemency, only 26% of convicted felons were eligible to have their rights restored, depending on their criminal history, without the need for a formal hearing.[73] In contrast, the rules implemented in 2007 provided for roughly 80% of those convicted felons who are eligible to have their rights automatically restored if they were considered “Level 1.”[74] Per the Florida Advisory Committee, a Level 1 offender is an individual considered to be a non-violent convicted felon who has completed all terms of their sentence, made any required payment of restitution to victims, and are free of pending charges.[75] Those who were eligible as Level 1 offenders by the Parole Commission would have “an executive order automatically […] issued that grants a restoration of civil rights,” which consists of the Florida Parole Commission approving the individual and sending the approval information to the Executive Clemency Board for the Governor and his Cabinet to provide an “automatic” approval signature.[76]
Governor Crist implemented this process for automatic restoration of convicted felons’ rights because he believed that, having paid their debt, a convicted felons’ return to society should be one of dignity, honor, and success, and the restoration of their civil rights was where their second chance began.[77] Although the process for the restoration of firearm rights for convicted felons was handled separately from the automatic restoration of felon rights to vote, hold office, and obtain certain licenses, through Governor Crist’s efforts, Florida was beginning to head in the right direction in its stance on non-violent convicted felons civil rights.[78]
In 2011, however, Governor Rick Scott ended the automatic restoration of civil rights for convicted felons who qualified and replaced it with a five-year minimum waiting period.[79] Arguably, this waiting period has served its purpose under Governor Scott as only 2,488 applications for restoration were granted during his time in office, as opposed to Governor Crist who, apart from instituting automatic restoration, restored roughly 155,315 felons’ rights between 2007 and 2011.[80] Apart from Governor Scott’s clemency practices being scrutinized by a federal court, they have also caused extensive financial repercussions.[81]
As a result of Governor Scott’s decision to end the automatic restoration of felon’s rights, Florida experienced roughly $365 million worth of economic damage stemming from court and prison costs, an increase in the recidivism rate, and the lost opportunity to create around 3,800 new jobs.[82] When non-violent convicted felons are deprived of their civil rights, recidivism rates go up because it makes finding a job more difficult, and that, in turn, leads the individual into a vicious circle of a life of crime.[83] In contrast, after the implementation of Governor Crist’s restoration policy, Florida saw the average two-year recidivism rate for those who had their rights restored lower to 12.4%.[84] This paled in comparison to the rate of 33% that was reported before Governor Crist’s restoration policy was implemented.[85]
Since then, Florida, the state with the “highest rate of felon disenfranchisement[,] overturned the longstanding practice” and on November of 2018, obtained a majority vote to enact Amendment 4 to the Florida Constitution, reinstating 1.5 million non-violent felons’ right to vote.[86] Amendment 4, like the Montana Constitution Art II § 28, “allows people with felony convictions who have served out the full terms of their prison sentence, probation, and parole, to exercise their right to vote.”[87] This is a shining example of the progress Florida has made throughout the years and can continue to make with respect to non-violent felon civil rights, as well as an indicator that the State is ready to recognize the bifurcation of the word “felon,” rather than categorizing non-violent convicted felons and violent convicted felons together.[88]
IV. SOLUTION
Florida’s disenfranchisement of convicted felons has economic repercussions both on the State level and on an individual level.[89] Amending Florida Statute § 790.23 or the Florida Constitution to reflect a more restorative approach as delineated in the Montana Constitution, art. II § 28 would not only follow in the footsteps of action already taken by Florida in the past and presently through Amendment 4 to the Florida Constitution but would ensure that convicted felons are reintegrated into society with a guarantee of the restoration of their basic constitutional rights.[90]
Florida Statute § 790.23 currently groups non-violent and violent felons into one category without considering the differences between one type of felon and the other, including the nature of the crime committed and the difference in punishments received.[91] The new statute should specifically state that an individual charged with a felony that includes an element of violence is exempt from possessing a firearm or being issued a concealed weapons license, as the Court noted was appropriate in Van der hule but provide for the restoration of non-violent convicted felons rights upon completion of their sentence or probationary period and restitution paid to the State.[92]
The amendment of the statute should adopt the language found in Florida Constitution Art. VI § 4 wherein it states that “any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation,” with the exception of “person[s] convicted of murder or felony sexual offense[s],” with respect to a non-violent convicted felons right to possess a firearm.[93] Florida has already recognized that non-violent convicted felons should be restored of their civil rights with respect to voting, and this restoration should extend to also provide for the automatic restoration of non-violent convicted felons rights to possess a firearm under the same rationale being that ex-felons should not be considered “second class citizens” in society.[94]
V. CONCLUSION
Florida Statute § 790.23 lacks distinction between a non-violent convicted felon and a violent convicted felon.[95] The Statute should be amended to represent a more current America and the trend towards recognizing non-violent convicted felons as part of society.[96] A way to do this is to adopt a more restorative approach like Montana Constitution Art. II § 28.[97] The ability for a non-violent convicted felon to have their rights automatically restored has significant benefits including a lowered recidivism rate and a more productive economy.[98] It would also make the reintegration of non-violent convicted felons into society easier by making all their civil rights available to them, making it less likely they commit crimes in the future.[99] The State of Florida has exhibited its ability to make a change towards a less disenfranchised society by adding Amendment 4 to the Florida Constitution which allowed non-violent convicted felons to vote, and it should extend the same respect to the Second Amendment right to bear arms.[100] In sum, non-violent convicted felons should be afforded the same constitutional protections as everyone else in society by the State of Florida, and this includes the right to keep and bear arms.[101]
FOOTNOTES
* Melissa Respeto, Juris Doctor Candidate, May 2021, St. Thomas University School of Law, St. Thomas Law Review, Senior Articles Editor; B.A. Psychology, Florida International University, 2017. [1] See Fla. Stat. § 790.23 (last visited Nov. 27, 2019) (“It is unlawful for any person to own or to have in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device, if that person has been convicted of a felony in the courts of this state.”); see also The Florida Senate (2019), https://m.flsenate.gov/Statutes/790.23. [2] See Fla. Stat. § 790.23, supra note 1 (observing that the statute is overinclusive as to the words “convicted” and “felon.”); see also State v. Snyder, 673 So. 2d 9, 10 (Fla. 1996) (holding that an individual is considered convicted for purposes of Fla. Stat. § 790.23 at the point that they are found guilty of a felony.). [3] See Fla. Stat. § 790.23, supra note 1 (demonstrating the statute is silent to the specific felony convictions it is meant to apply to.); see also The Florida Senate, supra note 1. [4] See Mont. Const. art. II, § 28 (“Full rights are restored by termination of state supervision for any offense against the state.”); see also Mont. Code. Ann. § 45-18-801(2); Montana Restoration of Rights, Pardon, Expungement & Sealing, Restoration of Rts. Project (June 30, 2019),https://ccresourcecenter.org/state-restoration-profiles/montana-restoration-of-rights-pardon-expungement-sealing/ (explaining that a felony offender’s full rights are automatically restored upon termination of state supervision for any offense against the state.). [5] See Keith Evans, Florida Gun Laws for Felons, Legal Beagle (Dec. 19, 2018), https://legalbeagle.com/6461767-florida-gun-laws-felons.html (explaining a convicted felon has an opportunity to have their rights reinstated through an application process for clemency); see also Florida Restoration of Rights, Pardon, Expungement & Sealing, Restoration of Rts. Project (Aug. 30, 2019), http://ccresourcecenter.org/state-restoration-profiles/florida-restoration-of-rights-pardon-expungement-sealing/ (“Any felony conviction punishable by a term exceeding one year results in a state bar against owning or possessing a firearm.”). [6] See infra Part II–III. [7] See infra Part II. [8] See infra Part III. [9] See infra Part III. [10] See infra Part IV. [11] See infra Part V. [12] See U.S. Const. amend. II.; see also Bearing Arms Second Amendment, Cornell L. Sch. Legal Info. Inst. (last visited Nov. 27, 2019), https://www.law.cornell.edu/constitution-conan/amendment-2 (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”). [13] See U.S. Const. amend. II.; see also Bearing Arms Second Amendment, supra note 12 (explaining the distinction between the prefatory clause and the operative clause of the second amendment); see also D.C. v. Heller, 554 U.S. 570, (2008). [14] See Snyder, 673 So. 2d at 10 (explaining that the purpose of Fla. Stat. § 790.23 is to protect society by preventing persons who have been convicted of felonies from possessing firearms.); see also Nelson v. State, 195 So. 2d 853, 855 (Fla. 1967) (“the purpose of the act being to protect the public by preventing the possession of firearms by persons convicted of certain crimes or who are fugitives from justice.”). [15] Mont. Const. art. II, § 28(2). [16] See Meaghan Ringwelski, What is the Definition of a Convicted Felon?, Legal Beagle, https://legalbeagle.com/5067779-definition-convicted-felon.html (“A convicted felon is, by definition, someone who has been convicted of a felony.”); see also Felon, Black’s Law Dictionary (5th ed. 2016) (“someone who has been convicted of a felony.”). [17] See 16 Fla. Jur. 2d Criminal Law—Substantive Principles/Offenses § 4 (last visited Nov. 27, 2019) (“Acts which are mala in se are those which are inherently wrong, such as murder, rape, arson, burglary, larceny, and breaches of the peace.”); see also Tawlonnda Sewell, Mala In Se Crimes, Legal Match (Apr. 30, 2018, 8:20 PM), https://www.legalmatch.com/law-library/article/mala-in-se-crimes.html (listing those crimes that fall within the definition of malum in se crimes.). [18] See Ken LaMance, What is a Violent Felony?, Legal Match (May 11, 2018, 12:16 PM), https://www.legalmatch.com/law-library/article/what-is-a-violent-felony.html (defining a violent felony as one that involves the use of threat or force against the person of another that may result in injury or death.); see also Robert Barnes, Supreme Court Continues to Define What Constitutes a “Violent Felony,” Washington Post (June 9, 2011), https://www.washingtonpost.com/politics/supreme-court-continues-to-define-what-constitutes-a-violent-felony/2011/06/09/AG9O3oNH_story.html (“Under the ACCA, when punishable by prison terms of more than one year, burglary, arson, extortion and crimes that involve the use of explosives are considered violent felonies. But under the act’s ‘residual’ provision, so is unspecified conduct that ‘presents a serious potential risk of physical injury to another.’”). [19] See LaMance, supra note 18 (listing examples of violent felonies.); see also Jeffrey Meldon, Classification of Crimes in Florida, Meldon Law (last visited Nov. 27, 2019), https://www.meldonlaw.com/library/classification-of-crimes-in-florida/ (stating “violent felony crimes are murder, rape, manslaughter, sexual assault, armed robbery, and other acts which inflict bodily injury.”). [20] See LaMance, supra note 18 (describing a non-violent felony as one in which there is no victim to the crime and no physical harm to the person of another.); see also Felony, Legal Dictionary (Dec. 17, 2014), https://legaldictionary.net/felony/#ftoc-heading-5 (explaining that a non-violent felony is one that has nothing to do with violence but the harm is felt usually in a financial aspect.). [21] See Meldon, supra note 19 (“Felony crimes which are usually non-violent in nature are white collar crimes, such as tax evasion, embezzlement, identity theft and bribery, drug offenses, such as drug possession or conspiracy to distribute drugs, and other offenses, such as fraud, forgery, burglary or larceny.”); see also Travis Peeler, What are Non-Violent Felonies?, Legal Match (May 11, 2018, 12:16 PM), https://www.legalmatch.com/law-library/article/what-are-non-violent-felonies.html (listing the common types of non-violent felonies). [22] See Peeler, supra note 21 (discussing the difference in prosecution between violent crimes and non-violent crimes.); see also Jose Rivera, Non-Violent v. Violent Crimes, Legal Match (Aug. 19, 2019, 8: 24 PM), https://www.legalmatch.com/law-library/article/non-violent-vs-violent-crimes.html (explaining that non-violent crimes are usually punishable by a fine or short jail sentence but that violent crimes usually carry a heavier sentence.). [23] See Van Der Hule v. Holder, 759 F.3d 1043, 1044–45 (9th Cir. 2014); see also 18 U.S.C. § 922(g) (last visited Nov. 27, 2019); Kathryn Haake,Ruling: Montana Felons Can't Own Firearms After Serving Time, Probation, Billings Gazette (Aug. 1, 2014), https://billingsgazette.com/news/state-and-regional/montana/ruling-montana-felons-can-t-own-firearms-after-serving-time/article_be0cbcb5-5a33-51d7-8c53-096a223a111d.html (explaining that Montana’s restriction prohibiting a convicted felon from possessing a concealed weapons permit was enough to restrict Van der hule from purchasing a weapon on a State and Federal level.). [24] See Van Der Hule, 759 F.3d at 1045 (“We hold that Van der hule is barred by federal law from possessing a firearm and that such ban does not violate his Second Amendment rights.”); see also Haake, supra note 23 (stating that the decision of the US Court of Appeals for the Ninth Circuit was that Van der hule was forbidden to receive or possess a firearm under federal law and that this ban did not violate his Second Amendment rights.). [25] See Van Der Hule, 759 F.3d at 1046; see also 18 U.S.C. § 921(a)(20) (emphasis added). [26] See Van Der Hule, 759 F.3d at 1046 (“We follow a three-step procedure for determining whether a state conviction is invalidated for purposes of the federal felon-in-possession statute.”); see also United States v. Valerio, 441 F.3d 837, 840 (9th Cir. 2006) (explaining that the court follows a particular set of steps to determine whether a state conviction has been invalidated for purposes of the felon in possession statute). [27] See Van Der Hule, 759 F.3d at 1046 (listing the steps used by the court that were required to make a determination on whether or not the state conviction was invalidated); see also Valerio, 441 F.3d at 840 (demonstrating the path the court took in this case to make a determination on the defendant’s conviction for purposes of the felon in possession statute). [28] See Mont. Code Ann. § 45-8-321(1)(c)(ii) (explaining that an applicant may be denied a permit to carry a concealed weapon if the crime includes an element of violence); see also Montana Code Annotated, Montana Legislative Services (last visited Nov. 27, 2019), https://leg.mt.gov/bills/mca/45/8/45-8-321.htm (“this privilege may not be denied an applicant unless the applicant . . . subject to the provisions of subsection (6), has been convicted in any state or federal court of . . . a crime that includes as an element of the crime an act, attempted act, or threat of intentional homicide, serious bodily harm, unlawful restraint, sexual abuse, or sexual intercourse or contact without consent.”). [29] See Van Der Hule, 759 F.3d at 1045 (“In July 2003, Van der hule attempted to purchase a firearm from a firearms dealer, who held a federal firearms license, in Montana. The dealer began the National Instant Criminal Background Check System (“NICS”) process, and the NICS examiner who processed the background check concluded Van der hule's prior convictions precluded him from receiving a Montana concealed weapons permit, and therefore he was also prohibited under federal law from possessing or receiving any firearm.”); Haake, supra note 23 (explaining that Van der hule who was convicted of four counts of rape and one count of sexual assault was ineligible to own a gun in Montana despite having his rights restored.). [30] See Van Der Hule, 759 F.3d at 1045 (“In December 1983, Frank Van der hule pled guilty to sexual assault and four counts of sexual intercourse without consent in Montana. He was sentenced to 25 years' imprisonment and completed his sentence in 1996.”); see also Mont. Code Ann. § 45-8-321(1)(c)(ii); Montana Code Annotated, Montana Legis. Serv. (last visited Nov. 27, 2019), https://leg.mt.gov/bills/mca/45/8/45-8-321.htm (explaining that the privilege of obtaining a permit to carry a concealed weapon may not be denied to the applicant unless the crime committed by them includes an element of threat of intentional homicide, serious bodily harm, unlawful restraint, sexual abuse, or sexual intercourse without consent.). [31] Fla. Stat. § 790.23, supra note 1 (highlighting that, unlike the Montana Code Annotated § 45-8-321, Florida Statute § 790.23 does not make any mention of a distinction between violent felons and non-violent felons.). [32] Telephone Interview with Jorge Respeto, Non-Violent Convicted Felon (Oct. 9, 2019); see Miami-Dade County Criminal Justice Online System, Miami-Dade Clerk of Cts. (last visited Nov. 27, 2019), https://www2.miami-dadeclerk.com/cjis/CaseSearch.aspx. (Mr. Respeto is the author’s father and an inspiration for this piece). [33] See Ilya Shapiro & Matthew Larosiere, Nonviolent Felons Shouldn’t Lose Their Second Amendment Rights, Cato Inst., https://www.cato.org/blog/nonviolent-felons-shouldnt-lose-their-second-amendment-rights (stating that stripping Hatfield of his second amendment right is excessive as he did not serve any days in prison time and has not run into trouble with the law since 1989 when he tampered with his employment records to obtain federal benefits.); see also Hatfield v. Barr, 925 F.3d 950, 951 (7th Cir. 2019) (holding that 18 U.S.C § 922(g)(1) can be applied to a felon convicted of fraud such as Hatfield, despite the actual punishment was less than a year.). [34] Hatfield, 925 F.3d at 952 (“A study recently released by the Sentencing Commission found that 64% of felons who committed violent crimes are arrested for renewed criminality following release, while only 40% of those convicted of nonviolent offenses are caught committing crimes in the future.”). [35] See Hatfield, 925 F.3d at 952 (“it is not possible to declare that any particular felon could be entrusted with firearms. This may be why Congress withdrew funding from the § 925(c) program.”); see also 18 U.S.C. § 925(c) (“A person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Attorney General for relief from the disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer, shipment, transportation, or possession of firearms, and the Attorney General may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.”). [36] See Hatfield, 925 F.3d at 952 (“If we could know reliably who will be ‘law-abiding, responsible citizens’ despite felony convictions, the Supreme Court might include them among those protected by the Second Amendment.”); see also 18 U.S.C. § 925(c) (demonstrating that the Attorney General has discretion to grant relief to those felons whose record and reputation show they are unlikely to pose a threat to society.). [37] 18 U.S.C. § 925(c) (outlining the requirement necessary to qualify for relief and reinstatement of civil rights by the Attorney General.). [38] See id. (pointing out a clear way to determine what felons are a threat and which are not a threat to the public). [39] See Hatfield, 925 F.3d at 953 (reversing the district court’s ruling in Hatfield v. Sessions.); see also Hatfield v. Sessions, 322 F. Supp. 3d 885 (S.D. Ill. 2018) (holding that 18 U.S.C. § 922(g)(1) is an unconstitutional violation of Hatfield’s Second Amendment right as a non-violent felon who received no prison time.). [40] See David G. Savage, Trump Administration Asks Supreme Court to Reject 2nd Amendment Claim by Men Who Lost Gun Rights Over Nonviolent Crimes, L.A. Times (May 25, 2017, 3:00 AM), https://www.latimes.com/politics/la-na-pol-court-guns-trump-20170525-story.html (reporting on the Trump administrations urgency for the Supreme Court to reject a Second Amendment claim to restore two nonviolent felons rights to bear arms.); see also Andrew Chung, U.S. Top Court Deals Setback to Gun Control Advocates on Felon Ban, Reuters (June 26, 2017, 9:53 AM), https://www.reuters.com/article/us-usa-court-guns-felons/u-s-top-court-deals-setback-to-gun-control-advocates-on-felon-ban-idUSKBN19H1KZ(indicating that the Trump administration has appealed a ruling by the U.S. Circuit Court of Appeals for the Third Circuit regarding a nonviolent felons restoration of their right to bear arms). [41] See Andrew Pantazi, New Florida Bill Could Help Those With Convictions Restore Voting and Gun Rights, Fla Times-Union (Dec. 1, 2017, 1:02 PM), https://www.jacksonville.com/news/metro/2017-12-01/new-florida-bill-could-help-those-convictions-restore-voting-and-gun-rights (discussing a Florida bill filed by Rep. Cord Byrd that would allow those felons who completed their prison and probation sentences to petition a judge to have their civil rights restored.); see also NBC 6, New Bill Would Allow Florida Felons to Own Guns, NBC Miami (Dec. 12, 2017, 5:31 PM),https://www.nbcmiami.com/news/local/New-Bill-Would-Allow-Florida-Felons-to-Own-Guns-463741893.html (reporting on House Bill 903, filed December 2017, that would make it possible for convicted felon to have their voting and gun rights reinstated). [42] See An Act Relating to Restoration of Rights, H.B. 903, 2018 Sess. (Fla. 2018) ; see also Garrett Pelican, Bill Would Give Florida Felons Second Chance at Owning Guns, Wink News (Dec. 12, 2017, 8:14 PM), https://www.winknews.com/2017/12/12/bill-give-florida-felons-second-chance-owning-guns/ (explaining that under proposed House Bill 903 felons would be able to petition the circuit court once a year and give judges a say as to whether or not to reinstate the felon’s rights). [43] See 18 U.S.C. § 925(c) (requiring convicted felons apply to the Attorney General and demonstrate that their record and reputation is one that relief is warranted and would not be contrary to public safety); see also H.B. 903, supra note 42 §§ 3(2)(b), 3(4) (outlining the specific requirements that would be necessary for a felon to demonstrate in order to petition to have their rights reinstated); Mont. Const., art. II § 28 (allowing convicted felon to have their rights restored upon completion of their prison sentence or probationary period imposed by the State.). [44] Florida Senate: SB 1654 (2018), https://www.flsenate.gov/Session/Bill/2018/1654/BillText/Filed/HTML. [45] See An Act Relating to Restoration of Rights, S.B 1654, 2018 Sess. (Fla. 2018) (proposing a bill that would authorize a person convicted of a felony to petition a certain court for relief, excluding those who are convicted of a violent felony, habitual offenders, or those convicted of a sex crime); see also Editorial: Florida’s Chance to Make it Easier to Restore Civil Rights, Tampa Bay Times (Jan. 11, 2018), https://www.tampabay.com/opinion/editorials/Editorial-Florida-s-chance-to-make-it-easier-to-restore-civil-rights_164344010/ [hereinafter Florida’s Chance to Make It Easier to Restore Civil Rights] (clarifying that the bill would allow felons who have completed their sentence to petition a judge seven years after the completion of that sentence). [46] See H.B. 903, supra note 42 (listing the history of the bill which indicates that on March 10, 2018 the bill was indefinitely postponed and withdrawn from consideration, dying in Criminal Justice Subcommittee.); see also S.B. 1654, supra note 44 (listing the history of the bill which indicates that on March 10, 2018 the bill was indefinitely postponed and withdrawn from consideration, dying in Criminal Justice.). [47] S.B. 1654, supra note 44. [48] See Editorial: Florida’s Chance to Make it Easier to Restore Civil Rights, supra note 44 (comparing Florida’s approach to the automatic restoration of felon civil rights with that of other states); see also Number of People by State Who Cannot Vote Due to a Felony Conviction, ProCon(last updated on Oct. 4, 2017, 10:57 AM), https://felonvoting.procon.org/view.resource.php?resourceID=000287 [hereinafter Number of People by State Who Cannot Vote] (noting that Florida has the highest rate of disenfranchisement in the United States). [49] See Florida’s Chance to Make it Easier to Restore Civil Rights, supra note 44; see also Shayanne Gal & Grace Panetta, Floridians with Felony Convictions Are Now Beginning to Register to Vote After the State Restored Voting Rights to 1.5 Million Felons, Bus. Insider (Jan. 8, 2019, 12:04 PM), https://www.businessinsider.com/felony-disenfranchisement-states-florida-amendment-4-voting-rights-2018-11 (indicating that unlike most other states, Florida denies felons several of their civil rights upon their conviction of a felony regardless of the nature of the crime). [50] See Florida’s Chance to Make it Easier to Restore Civil Rights, supra note 44; see also Gal & Panetta, supra note 48 (“Florida, which disenfranchised felons for life, a staggering 1.5 million voting-age residents . . . could not vote due to a previous felony conviction.”); Number of People by State Who Cannot Vote, supra note 47 (recognizing that Florida had the highest rate of felony disenfranchisement in 2016). [51] See Mark Schlakman, Column: Some Facts and Figures You Might Not Know About Civil Rights Restoration in Florida, Tampa Bay Times (Apr. 19, 2018), https://www.tampabay.com/opinion/columns/Column-Some-facts-and-figures-you-might-not-know-about-civil-rights-restoration-in-Florida_167477194/ (discussing a US District Court Judge’s ruling on Florida’s clemency process and its unconstitutionality); see also Steve Bousquet & David Smiley, Judge Strikes Down Florida’s System for Restoring Felons’ Voting Rights, Tampa Bay Times (Feb. 3, 2018), https://www.tampabay.com/florida-politics/buzz/2018/02/01/federal-judge-strikes-down-floridas-system-for-restoring-felon-voting-rights/. [52] See Bousquet & Smiley, supra note 50 (discussing the lengthy clemency process in the state of Florida); see also Clemency, Fla. Rts Restoration Coal. (last visited Nov. 27, 2019), https://floridarrc.com/clemency/ (“The entire process is complicated and takes years. Even then, since the decision rests in the sole discretion of . . . politicians [and] there is no guarantee that an individual’s rights will be restored.”) [53] See Clemency, supra note 51 (“Only the Governor and his cabinet, sitting as the Board of Executive Clemency, have the power to restore civil rights”); see also Bousquet & Smiley, supra note 50 (“[Governor] Scott and the Cabinet, meeting as a clemency board, consider cases four times a year, and usually fewer than 100 cases each time. It can take a decade or longer for a case to be heard, and at present the state has a backlog of more than 10,000 cases”); Kira Lerner, This Florida Woman Had to Travel 10 Hours by Bus to Have her Voting Rights Restored, ThinkProgress (Sept. 11, 2018, 1:06 PM), thinkprogress.org/florida-clemency-board-voting-692f993dc8c5 (explaining that under Governor Scott the clemency panel convened only four times a year for hearings to consider whether an individual should be granted a pardon, to have their firearm rights restored, and to restore basic civil rights for ex-felons who waited at least seven years after the completion of their sentencing). [54] See Savage, supra note 40 (reporting that the Trump administration has pushed to prevent the Supreme Court from entertaining a Second Amendment claim to restore gun rights for nonviolent felons); see also Chung, supra note 40 (explaining that the Trump administration has opposed the Second Amendment challenge to restore non-violent felon rights, contrary to his repeated campaign assurances that he would protect the right for the people to own guns under the Second Amendment.). [55] See Chung, supra note 40 (“The Trump administration had appealed last year’s ruling by the Philadelphia-based 3rd [Circuit Court of Appeals], calling it a threat to public safety”); see also Andrew Chung, Supreme Court Rejects Trump Administration’s Appeal of Felon Gun Ownership Ruling, HuffPost (June 26, 2017, 9:55 AM), (reporting that the lower court’s ruling allowed individuals to challenge the ban on their gun rights and the Trump administration sees this as a threat to public safety). [56] See Savage, supra note 40 (highlighting the contradictory nature of the Trump administration’s appeal with respect to promises made during President Trump’s campaign where he vowed to protect gun-ownership rights); see also President Trump and Gun Rights Restoration¸ Wipe Rec.(Feb. 22, 2019), https://wiperecord.com/president-trump-and-gun-rights-restoration/#gref (noting that the President Trump has exhibited shifting views with respect to the Second Amendment and gun-ownership rights). [57] See President Trump and Gun Rights Restoration¸ supra note 55;see also Chung, supra note 54 (reporting that the Supreme Court rejected an appeal from the Trump administration, which clearly exhibited their stance on a lower court’s ruling that would loosen the prohibition on felon gun possession). [58] Quick Facts on Felons in Possession of a Firearm, U.S. Sent’g Comm’n (2008-2012), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-facts/Quick_Facts_Felon_in_Possession_of_a_Firearm.pdf (providing statistics for the top five districts in the United States with the highest number of convicted felons in possession of a firearm in 2012, with the Middle District of Florida coming in third). [59] See 2018 Guidelines Manual, U.S. Sent’g Comm’n (last updated 2018), https://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2018/CHAPTER_4.pdf; see also 2016 U.S. Sentencing Guidelines Manual, U.S. Sent’g Comm’n (last updated 2016),https://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2016/Sentencing_Table.pdf. [60] Mariel Alpher, Ph.D. & Lauren Glaze, Source and Use of Firearms Involved in Crimes: Survey of Prison Inmates, 2016, U.S. Dept. of Just. Bureau of Just. Stat. 4 (Jan. 2019), https://www.bjs.gov/content/pub/pdf/suficspi16.pdf (“State and federal prisoners serving time for a violent offense were much more likely to have possessed a firearm during the offense (29% state, 36% federal) than prisoners serving time for a property (5% state, 3% federal) or drug (8% state, 12% federal) offense.”) [61] See id. at 5 (concluding that violent felons are more likely to possess and use a firearm in the commission of a crime than non-violent felons). [62] Id. at 5. (drawing a clear distinction, statistically, of the likelihood of violent offenders using a firearm to commit an offense as opposed to a non-violent felon.). [63] See Alper & Glaze, supra note 59, at 5 (depicting a difference between violent offender behavior and non-violent offender behavior.); see also Chung, supra note 40 (emphasizing that the Trump administration considered the restoration of non-violent convicted felons gun rights a “threat to public safety.”). [64] See James Call, Study Shows Ex-Cons Benefit from Rights Restoration, WFSU Pub. Media (last visited on Nov. 27, 2019), https://news.wfsu.org/post/study-shows-ex-cons-benefit-rights-restoration (reporting that a study conducted by the Florida Parole Commission showed that ex-felons who had their rights automatically restored were less likely to commit new crimes.); see also David M. Reutter, Florida Reports Indicate Restoration of Civil Rights Reduces Recidivism, Prison Legal News (Aug. 15, 2012), https://www.prisonlegalnews.org/news/2012/aug/15/florida-reports-indicate-restoration-of-civil-rights-reduces-recidivism/ (discussing two reports by the Florida Parole Commission that supported the contention that ex-felons recidivism rate is lowered when their rights are restored.); Reggie Garcia, Amendment 4 Will Save Taxpayer Money and Give Felons a Second Chance, Tallahassee Democrat (Sept. 18, 2018), https://www.tallahassee.com/story/opinion/2018/09/18/florida-amendment-4-save-money-give-felons-chance-opinion/1343670002/ (pointing out that data from the Florida Commission on Offender Review indicates that felons who regain their civil rights are less likely to commit crimes in the future.). [65] See Victoria Shineman, Florida Restores Voting Rights to 1.5 Million Citizens, Which Might Also Decrease Crime, TCPalm (Nov. 8, 2018), https://www.tcpalm.com/story/opinion/contributors/2018/11/08/restoring-felons-voting-rights-might-also-decrease-crime/1925398002/ (discussing results from a Virginia study on ex-offenders who have had their rights restored and how they become more trusting of the government and the criminal justice system after their civil rights restoration.); see also Victoria Shineman, Restoring Rights, Restoring Trust: Evidence That Reversing Felony Disenfranchisement Penalties Increases Both Trust and Cooperation with Government, SSRN, 8, (last modified Feb. 27, 2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3272694 (explaining that the distrust in the government by felons stems from the disenfranchisement of the individual through their disconnection from the democratic when denied civil rights.). [66] See Shineman, Florida Restores Voting Rights to 1.5 Million Citizens, Which Might Also Decrease Crime, supra note 64, at 8 (“A disenfranchised citizen is deliberately disconnected from the democratic process, creating both a psychological stigma and a rational belief that the system is non-inclusive and non-responsive.”); see also Jean Chung, Felony Disenfranchisement: A Primer, The Sent’g Project, 2 (Updated December 2019), https://www.sentencingproject.org/publications/felony-disenfranchisement-a-primer/ (highlighting that roughly 3.1 million people are disenfranchised even after the completion of their sentence because of their state’s laws.). [67] See Carl Amritt, Voting Rights Restoration Fact Sheet, Roosevelt Inst. (2016), https://rooseveltinstitute.org/voting-rights-restoration-fact-sheet/ (reporting that felons who are given an opportunity to reintegrate themselves into society through the restoration of their civil rights are less likely to commit crimes in the future.); see also Shineman, Florida Restors Voting Rights to 1.5 Million Citizens, Which Might Also Decrease Crime, supra note 64 (supporting the contention that the ease of felon reintegration into society through the restoration of their rights can decrease their tendency to commit additional crimes.). [68] See Recidivism, Nat’l Inst. of Just. (last visited on Nov. 27, 2019), https://nij.ojp.gov/topics/corrections/recidivism (defining recidivism); see also Recidivism Law and Legal Definition, U.S. Legal (last visited on Nov. 27, 2019), https://definitions.uslegal.com/r/recidivism/ (“Recidivism is a tendency to lapse into a previous pattern of behavior, especially a pattern of criminal habits.”). [69] See Reutter, supra note 63 (discussing former Governor Charlie Crist’s approach to ex-felons and his belief that it is their right to have their civil rights restored upon completion of their sentence or probationary period.); see also Charlie Crist, Charlie Crist: Restore Rights to Florida Felons; They’ve Paid Debt to Society, Orlando Sentinel (June 13, 2017), https://www.orlandosentinel.com/opinion/os-ed-charlie-crist-restore-felon-rights-in-florida-front-burner-20170613-story.html (“In 2007, following in the footsteps of Governor Reubin Askew's attempts to fully implement automatic restoration of non-violent civil rights, I attempted to end the shameful practice of delaying or outright ignoring requests for restoration of civil rights.”); Amy Sherman, Dan Gelber Says Charlie Crist Got Automatic Restoration of Felon Rights for 1st Time in Florida History, PolitiFact (Dec. 12, 2013), https://www.politifact.com/florida/statements/2013/dec/12/dan-gelber/dan-gelber-says-charlie-crist-got-approved-automat/ (pointing out that under Governor Crist, there were more than 150,000 restoration of non-violent convicted felons rights.). [70] See Mont. Const. art II § 28 (focusing on the rights of the convicted and a reformative approach); see also Montana Criminal Law Basis, C-33 (1998), Ballotpedia (last updated on Nov. 3, 1998), https://ballotpedia.org/Montana_Criminal_Law_Basis,_C-33_(1998) (amending the Montana Constitution to provide that criminal laws should be based on principles of public safety, restitution for victims, prevention, and reformation, rather than only prevention and reformation.). [71] See Chairman David, Chairman’s Message, Fla. Parole Comm’n, 5 (Dec. 31, 2007), https://www.fcor.state.fl.us/docs/reports/FCORannualreport200607.pdf (“On April 5, 2007, Governor Crist and the Cabinet, acting as the Board of Executive Clemency, made significant changes to the Rules of Executive Clemency. These changes greatly expanded the number of ex-felons eligible to have their civil rights restored (RCR).”); see also Elena M. Flom, Ex-Felon Voting Rights in Florida: Revised Rules of Executive Clemency That Automatically Restore Civil Rights to Level-1 Offenders is the Right Policy, Fla. Advisory Comm. of the U.S. Comm’n on C.R., 20 (Aug. 2008), https://www.usccr.gov/pubs/docs/EX-FelonVRFL.pdf (acknowledging the revision of the Rules of Executive Clemency by the Clemency Board that allowed for automatic restoration of civil rights and voting rights to most felons.). [72] See Crist, supra note 68 (urging that the right thing to do is restore the civil rights of ex-felons who have paid their debt to society and not pile on additional debts.); see also Sherman, supra note 68 (“[A]s Governor[,] he convinced the Cabinet to approve the automatic restoration of felon rights for nonviolent offenders for the first time since Gov. Reubin Askew implemented a similar reform in 1975 (since reversed by Governor Scott).”). [73] David, supra note 70 at 23 (recognizing that prior to Governor Crist’s changes to the Rules of Executive Clemency, approximately 26% of ex-felons were eligible to have their rights restored based on the crime committed.). [74] See David, supra note 70 at 23 (contrasting the rate of eligibility for felon right restoration under the old rules of executive clemency to the new rules in which there was an expansion in the rate of up to 80%.); see also Flom, supra note 70 at 21 (pointing out that only about 6,500 people out of 200,000 who lost their right to vote between 1995-2005 due to their convicted felon status were able to have their rights restored by the Clemency Board under the old rules.). [75] See FIEC Voting Restoration Amendment 14-01, Off. of Econ. & Demographic Res. (last visited Nov. 27, 2019), http://edr.state.fl.us/Content/constitutional-amendments/2018Ballot/VRANotebook1_10-5-16.pdf (describing a Level 1 offender as an individual who has no violent offenses and procedurally can have their rights restored without a hearing.); see also David, supra note 70 at 45 (explaining that Level 1 offenders who have completed their sentences and paid their debt to society would be eligible for automatic approval if they were convicted of less serious offenses.); see also Bryan Miller & Joseph Spillane, Governing the Restoration of Civil Rights for Ex-Felons: An Evaluation of the Executive Clemency Board in Florida," Contemp. Just. Rev. Aug. 8, 2012, 1, 3, available at http://www.researchgate.net/publication/263729991 (describing a Level 1 offender as an individual who has no violent offenses and procedurally can have their rights restored without a hearing.); see also David, supra note 70 at 45 (explaining that Level 1 offenders who have completed their sentences and paid their debt to society would be eligible for automatic approval if they were convicted of less serious offenses). [76] See David, supra note 70 at 32 (clarifying that convicted felons who qualify as Level 1 offenders would be eligible for automatic restoration of rights without a hearing under Governor Crist’s new Rules of Executive Clemency.); see also Flom, supra note 70 at 21 (“For those individuals granted Level-1 status by the Parole Commission […], an executive order is automatically issued that grants a restoration of civil rights signed by the Clemency Board without the need for a hearing.”). [77] See Crist, supra note 68 (expressing that an ex-felon who has paid their debt to society should have an equal opportunity to return to society in a dignified, honorable, and successful manner.); see also Sherman, supra note 68 (noting that Governor Crist believed that a non-violent felon should be given a meaningful way to re-enter society.); Governor Charlie Crist’s Clemency Board Notes on the Restoration of Felon Civil Rights, 2007, Fla. Memory St. Libr. & Archives of Fla, https://www.floridamemory.com/exhibits/floridahighlights/crist/ (“Dignity, justice, honor; at what point does the punished have the right to a simple chance to come back to society.”). [78] See Schlakman, supra note 50 (highlighting that 155,000 people regained their rights during the four years Governor Crist was in office but that the right to own and carry a firearm was reviewed separately.); see also Flom, supra note 70 at 21 (supporting ex-felon voting rights in Florida as the right policy and unanimously supporting the revised Rules of Executive Clemency.). [79] See Perry E. Thurston, Jr., In Appealing Civil Rights for Ex-Felons, Scott is Determined to Suppress the Vote, Miami Herald (Apr. 11, 2018), https://www.miamiherald.com/opinion/op-ed/article208637899.html (“In 2011, [Governor] Scott [. . .] changed the procedures by eliminating the automatic restoration of voting rights and replaced it with a minimum five-year waiting period before individuals could start the application process.”); see also Sascha Cordner, Why Securing Both Gov., Attorney General Wins Could be Big for Florida Democrats, WFSU Pub. Media (Sept. 5, 2014), https://news.wfsu.org/post/why-securing-both-gov-attorney-general-wins-could-be-big-florida-democrats (stating that in 2011 Governor Scott and his Cabinet reversed a decision made during Governor Crist’s time in office to automatically restore convicted felons rights.); Lerner, supra note 52 (recognizing that upon taking office in 2011, Governor Scott made it significantly harder for Florida’s convicted felons to have their rights restored by initiating long waiting periods.). [80] See Thurston, Jr., supra note 78 (acknowledging the difference in the number of right restorations that were granted between 2007 and 2011 when Governor Crist was in office (155,315) to the low number of applications (2,488) that were granted under Governor Scott’s time in office.); see also Mary Ellen Klas, Price Tag for Restricting Felons’ Rights After Prison Put at More Than $365 Million a Year, Miami Herald (May 21, 2018), https://www.miamiherald.com/news/politics-government/election/article211408754.html (emphasizing that the rate of rights restoration under Governor Scott was low throughout his time in office.). [81] See Mark Lane, Lane: Court Blasts State’s Arbitrary Clemency System, The Daytona Beach News-J. (Feb. 3, 2018), https://www.news-journalonline.com/news/20180203/lane-court-blasts-states-arbitrary-clemency-system (reporting that a U.S. District judge issued a strongly worded ruling describing Florida’s clemency practices as unconstitutional and “crushingly restrictive.”); see also Schlakman, supra note 50 (discussing a U.S. District Court judge’s ruling on the constitutionality of Florida’s clemency proceedings.); Klas, supra note 79 (highlighting that after seven years of restricting felon right restoration, Florida is experiencing an economic impact.). [82] See Klas, supra note 79 (explaining that Florida lost roughly $365 million dollars a year in economic impact since Governor Scott voted out the automatic restoration of convicted felon rights.); see also Garcia, supra note 63 (emphasizing that by restoring felon civil rights, the reduction in recidivism will generate a positive economic impact of $365 million.). [83] See Mansfield Frazier, A Solution to Recidivism: Let Ex-Offenders Vote, The Crime Rep. (Aug. 9, 2011), https://thecrimereport.org/2011/08/09/2011-08-a-solution-to-recidivism-let-ex-offenders-vote/ (noting that allowing ex-felons to fully participate in society will reduce the recidivism rates and allow them to participate in society.)’ see also Klas, supra note 79 (focusing on when offenders are unable to get their rights restored, it affects their ability to find a job which in turn leads them into a vicious circle of a life of crime.). [84] See Klas, supra note 79 (describing the difference between recidivism rates of those who do not have their rights reinstated to those that did after Governor Crist’s policy implementation.); see also Chung, supra note 65 (“In one study, among individuals who had been arrested previously, 27 percent of non-voters were rearrested, compared with 12 percent of voters.”). [85] See Klas, supra note 79 (contrasting the 33% rate of recidivism prior to the implementation of Governor Crist’s restoration policy.); see also Call, supra note 63 (finding that during the period from 2007 to 2011 where Governor Crist’s policy was in place the recidivism rate for felons who had their rights restored dropped by two thirds.). [86] See Gal & Panetta, supra note 45 (“on Election Day, the state with the highest rate of felon disenfranchisement overturned the longstanding practice, and Florida residents with felony convictions are now beginning to register to vote.”); see also German Lopez, Florida Votes to Restore Ex-Felon Voting Rights with Amendment 4, Vox (Nov. 7, 2018 1:15 PM), https://www.vox.com/policy-and-politics/2018/11/6/18052374/florida-amendment-4-felon-voting-rights-results (“Florida voters during Tuesday’s midterm elections approved Amendment 4, automatically restoring voting rights in the state for people previously convicted of felonies. Florida’s Amendment 4 restores voting rights for people in the state convicted of felonies as long as they have completed their sentences, although anyone convicted of murder or felony sex offenses would be excluded.”). [87] See The Florida Constitution, Article VI Suffrage and Elections, Online Sunshine (last visited Nov. 27, 2019), http://www.leg.state.fl.us/Statutes/index.cfm?Mode=Constitution&Submenu=3&Tab=statutes&CFID=60551033&CFTOKEN=ac6c32bf0b105799-3FB17405-A0C4-A0EA-8ED6C9821BA84BB4#A6S04 (“any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.”); see also Nadege Green, Here’s How Amendment 4 Would Impact Floridians With Felony Convictions, WLRN (Nov. 1, 2018), https://www.wlrn.org/post/heres-how-amendment-4-would-impact-floridians-felony-convictions (explaining that Amendment 4 automatically restores the right of a non-violent felon to vote.). [88] See Mont. Const. art. II, § 28 (“Full rights are restored by termination of state supervision for any offense against the state.”); see also Gal & Panetta, supra note 45. [89] See Klas, supra note 79 (exhibiting the high costs on the Florida economy produced by the vote to remove automatic restoration of right for convicted felons); see also Garcia, supra note 63 (analyzing the effect felon disenfranchisement has on the economy.). [90] See Gal & Panetta, supra note 45 (“on Election Day, the state with the highest rate of felon disenfranchisement overturned the longstanding practice, and Florida residents with felony convictions are now beginning to register to vote.”); see also Lopez, supra note 85 (“Florida voters during Tuesday’s midterm elections approved Amendment 4, automatically restoring voting rights in the state for people previously convicted of felonies. Florida’s Amendment 4 restores voting rights for people in the state convicted of felonies as long as they have completed their sentences, although anyone convicted of murder or felony sex offenses would be excluded.”). [91] See Fla. Stat. § 790.23, supra note 1 (observing that the statute is overinclusive as to the words “convicted” and “felon.”); see also Snyder, 673 So. 2d at 10 (holding that an individual is considered convicted for purposes of Fla. Stat. § 790.23 at the point that they are found guilty of a felony.). [92] See Van Der Hule, 759 F.3d at 1045 (“In December 1983, Frank Van der hule pled guilty to sexual assault and four counts of sexual intercourse without consent in Montana. He was sentenced to 25 years' imprisonment and completed his sentence in 1996.”); see also Mont. Code Ann. § 45-8-321(1)(c)(ii); Montana Code Annotated, supra note 4 (explaining that the privilege of obtaining a permit to carry a concealed weapon may not be denied to the applicant unless the crime committed by them includes an element of threat of intentional homicide, serious bodily harm, unlawful restraint, sexual abuse, or sexual intercourse without consent.) [93] See The Florida Constitution, supra note 86 (“any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.”); see also Green, supra note 86 (explaining that Amendment 4 automatically restores the right of a non-violent felon to vote.). [94] See Lopez, supra note 85 (“Florida voters during Tuesday’s midterm elections approved Amendment 4, automatically restoring voting rights in the state for people previously convicted of felonies. Florida’s Amendment 4 restores voting rights for people in the state convicted of felonies as long as they have completed their sentences, although anyone convicted of murder or felony sex offenses would be excluded.”); see also Alejandro De La Garza, 'Our Voice Will Count.' Former Felon Praises Florida Passing Amendment 4, Which Will Restore Voting Rights to 1.4 Million People, Time(Nov. 7, 2018), https://time.com/5447051/florida-amendment-4-felon-voting/ (“We will no longer have second class citizens.”). [95] See Fla. Stat. § 790.23, supra note 1 (observing that the statute is overinclusive as to the words “convicted” and “felon.”); see also Snyder, 673 So. 2d at 10 (holding that an individual is considered convicted for purposes of Fla. Stat. § 790.23 at the point that they are found guilty of a felony.). [96] See Crist, supra note 68 (expressing that an ex-felon who has paid their debt to society should have an equal opportunity to return to society in a dignified, honorable, and successful manner.); see also Sherman, supra note 68 (noting that Governor Crist believed that a non-violent felon should be given a meaningful way to re-enter society.); [97] See Mont. Const. art. II, § 28 (“Full rights are restored by termination of state supervision for any offense against the state.”); see also Mont. Code. Ann. § 45-18-801(2); Montana Restoration of Rights, supra note 4 (explaining that a felony offenders full rights are automatically restored upon termination of state supervision for any offense against the state.). [98] See Klas, supra note 79 (explaining that Florida lost roughly $365 million dollars a year in economic impact since Governor Scott voted out the automatic restoration of convicted felon rights.); see also Garcia, supra note 63 (emphasizing that by restoring felon civil rights, the reduction in recidivism will generate a positive economic impact of $365 million.). [99] See Amritt, supra note 66 (reporting that convicted felons who are given an opportunity to reintegrate themselves into society through the restoration of their civil rights are less likely to commit crimes in the future.); see also Shineman, supra note 64 (supporting the contention that the ease of convicted felon reintegration into society through the restoration of their rights can decrease their tendency to commit additional crimes.). [100] Lopez, supra note 85 (“Florida voters during Tuesday’s midterm elections approved Amendment 4, automatically restoring voting rights in the state for people previously convicted of felonies. Florida’s Amendment 4 restores voting rights for people in the state convicted of felonies as long as they have completed their sentences, although anyone convicted of murder or felony sex offenses would be excluded.”). [101] See Editorial: Florida’s Chance to Make it Easier to Restore Civil Rights, supra note 44 (comparing the state of Florida with the rest of the country with regards to the automatic restoration of felon civil rights.); see also Number of People by State Who Cannot Vote Due to a Felony Conviction, PROCON (last updated on Oct. 4, 2017, 10:57 AM), https://felonvoting.procon.org/view.resource.php?resourceID=000287 (comparing Florida’s disenfranchisement rate to that of other states in 2016.).