On April 27, the American Civil Liberties Union (ACLU), ACLU of Florida, and our litigation partners will go to trial in U.S. District Court against the state of Florida to win the ability to vote for hundreds of thousands of eligible state voters now being denied that basic right.
In November 2018, more than 64 percent of Florida voters approved Amendment 4, returning the right to vote to Floridians convicted of felonies who completed their sentence and supervision. The only persons excluded are those convicted of homicide or sexual crimes.
Immediately, the Florida Legislature set out to undermine voters’ decision to re-enfranchise their fellow Floridians. They passed Senate Bill 7066, which mandates that returning citizens — who have completed any prison term, probation, or parole — must also pay all restitution, fines, court fees, and costs before they can cast a ballot. Costs alone can be hundreds or thousands of dollars for every person convicted. In other words, they must pay for the right to vote, a blatant violation of the 24th Amendment to the U.S. Constitution, which outlaws poll taxes, as well as the 14th Amendment, which prohibits wealth discrimination in voting.
Along the way, SB 7066 also imposes a system that is impossible for returning citizens to navigate and violates the 14th Amendment right to due process and equal protection. Florida has no centralized database that states how much a person owes in fines and court fees. Records kept by counties and files kept by the state often vary widely on the amounts of legal financial obligations — and even whether money is owed. In fact, even within a county office, those records are sometimes at odds. That makes it nearly impossible for some individuals to determine what they owe, if anything, and whether they are eligible to vote under the new law. U.S. District Court Judge Robert Hinkle, who issued a preliminary injunction blocking SB 7066 in October, called the state’s record keeping “an administrative nightmare.”
The constitutional violations created by SB 7066 don’t stop there. The 14th and 15th Amendments to the U.S. Constitution prohibit voting practices enacted with a racially discriminatory purpose, and SB 7066 is just that: a glaring act of racial discrimination.
Historically, Black Floridians have been disproportionately targeted by the criminal justice system and, through that system, deprived of their right to vote. Also, due to a high incidence of poverty, Black individuals are less able to pay the often-large amounts in fines and fees demanded of them in order to vote.
The members of the Florida Legislature who voted for SB 7066 knew that Black Floridians would be disproportionately affected. In fact, disenfranchising minority voters was the main intent of SB 7066.
SB 7066 also:
Violates the Eighth Amendment, which prohibits excessive fines.
Violates the First Amendment rights of organizations, like the Florida League of Women Voters, that engage in voter registration activity, because it makes unclear who is qualified to vote and who is not.
Violates the 19th Amendment, which specifically protects women from any election law that denies or diminishes their right or ability to vote. Women, Black women in particular, who are returning citizens are particularly burdened by SB 7066 due to their low average incomes compared to men, making them less able to pay fines and court fees.
Violates the National Voter Registration Act of 1993, which governs voter registration forms, voter registration, and voter list maintenance.
This list of constitutional violations aimed at keeping Black Floridians from the ballot box was not at all what Floridians voted for in November 2018. Nonetheless, in June 2019, the bill was signed into law by Gov. Ron DeSantis.
Since then, the ACLU and our partners have been tirelessly fighting for voting rights and against SB 7066 in the courts — and we are winning.
In October, Judge Hinkle granted a preliminary injunction against the law. The state then attempted to stay the decision, which would have blocked our 17 named clients from registering to vote in time for the March 17 primaries. In December, Judge Hinkle denied that effort too, and some folks voted for the first time in their lives. Following an opinion from the 11th Circuit affirming Judge Hinkle’s preliminary ruling, the wind is in our sails for trial.
On April 27, we are going to court to put an end to SB 7066 for good.
In this case, Jones v. DeSantis, our litigation partners are the ACLU, ACLU of Florida, the NAACP Legal Defense and Educational Fund, the Brennan Center for Justice at NYU School of Law, the Southern Poverty Law Center, the Campaign Legal Fund of Washington, D.C., the firm of Brazil and Dunn of Miami, and attorney Michael Steinberg.
Our fight is for fundamental fairness and a basic right guaranteed by the U.S. Constitution.
The Trump administration optimistically projects that “substantially under”100,000 people will die from COVID-19 in the United States. Horrific as that statistic is, a new model suggests it could be a huge underestimate. The government models fail to consider the impact of the virus on the incarcerated population, who will be infected and die at higher rates. And any prison or jail outbreak is bound to spill over into the broader community — causing more people to die in the general public, too.
The ACLU partnered with epidemiologists, mathematicians and statisticians to create a first-of-its-kind epidemiological model that shows that as many as 200,000 people could die from COVID-19 — double the government estimate — if we continue to ignore incarcerated people in our public health response. But we have the power to change this grim outcome. We can save as many as 23,000 people in jail and 76,000 in the broader community if we stop arrests for all but the most serious offenses and double the rate of release for those already detained.
The risk that COVID-19 poses to incarceration facilities is well-documented. Overcrowding, lack of access to hygiene, and substandard health care make jails and prisons potential time bombs for any outbreak, let alone the deadly coronavirus. But what often gets lost in the discourse is the connection between incarceration facilities and the broader community. Correctional staff come to work every day and then return home. People are frequently brought in on arrest and released if they can pay bail, or held for short stays. Any of these individuals can easily and unknowingly bring the virus into a jail, where infections can spread rapidly. And because of this constant flux of people, more sick people in jail will result in more sick people in the general public.
While all of us will be impacted by inaction, communities of color will feel it most. Black and Brown people are overrepresented in jails and prisons due to long-entrenched racial bias in the criminal legal system, as well as low-income communities. Most correctional staff are also people of color, who will return to families and communities of color while potentially carrying the virus. There is already ample evidence that Black people are dying at much higher rates in major cities across the country. We can expect even more racial disparities in COVID-19 deaths if we allow the virus to spread freely throughout jails.
But these statistics don’t have to be death sentences. We can flatten the infection curve and decrease infection rates for all of us by reducing the number of people we incarcerate. It’s easier than it may seem. Hundreds of thousands of people are sitting in jail simply because of technical violations, their inability to pay fines and fees, or because they can’t post bail. There is no reason these people should be locked up even under normal circumstances. During the pandemic, the need for reform is more urgent than ever.
Governors, judges, sheriffs, and chiefs of police can reduce jail populations without changing the law. They should use the powers of their office to stop arresting and incarcerating people for low-level offenses and release those who are vulnerable to COVID-19 due to age or health conditions. Taking these measures would significantly reduce the spread of COVID-19 in jails and thus reduce the death toll for all of us.
If we stop arresting people for minor offenses (cutting arrests by half), we can save up to 12,000lives in jails and 47,000lives in surrounding communities.
If we stop arrests for anything but the five percent of crimes defined as most serious by the FBI — including murder, rape, and assault — and are able to double the rate of release for those already detained, we can save 23,000 lives in jails, and 76,000 lives in communities.
These critical reforms are more urgent than ever, but they were needed long before the pandemic. The U.S. incarcerates more people than any other country on earth, with four percent of the world’s total population and 21 percent of the world’s incarcerated population. Further, reforming our incarceration and policing system would go a long way toward reducing inequalities and systemic harm faced by communities of color, who were already over-policed and overrepresented in jails and prisons to begin with.
The ACLU has responded by creating a model executive order and pressuring governors to adopt it, as well as pushing prosecutors and sheriffs to use the power of their offices to reduce jail and prison populations. As a result of these efforts, 16,000 people have either been released or not incarcerated in the first place, and governors have made 15 executive actions. And according to an ACLU poll, there is strong bipartisan support for releasing people from prisons and jails, with 63 percent of respondents supporting the action.
Taking critical steps toward reform will save lives. Colorado, for example, has reduced its jail population by 31 percent and as a result, will save 1,100 lives and could cut the state’s death toll by a quarter.
What the numbers don’t show, however, are the individuals who have already faced the impact of our inaction. The ACLU has partnered with the UCLA Prison Law and Policy Program to create a directory of all the people who have died to COVID-19 while incarcerated. Every day that passes without initiating these vital incarceration reforms means that more people will die, and this list will grow. These are more than numbers.
COVID-19 has already changed the way we live and function as a society in ways that would have been unimaginable just a month ago. There is no reason to exclude prisons and jails from these radical changes — especially in a country that incarcerates more of its people than any other country on earth. It’s time for the government to act in the name of public health. Failing to protect incarcerated people will hurt all of us.
ACLU analysis was led by Aaron Horowitz, chief data scientist, and Brooke Madubuonwu, director of legal analytics and quantitative research.
Udi Ofer, Director, Justice Division, ACLU National Political and Advocacy Department Lucia Tian, Chief Analytics Officer, ACLU
For decades, marijuana laws have been used to criminalize Black and Brown people, waste taxpayer money, and fuel the mass incarceration crisis. However, states across the country are taking strides toward reforming these outdated and harmful policies. Eleven states and the District of Columbia have legalized marijuana, and 18 states have decriminalized, which means they’ve removed some of the criminal penalties for possession of small amounts. These reforms are driven in large part by the will of the people. Two out of three Americans — more than ever before — now support marijuana legalization.
While overall marijuana arrests have decreased at the national level since 2010, the rate of decline has stagnated and, in recent years, has even reversed upwards despite popular reform movements. Marijuana arrests are still widespread nationwide, making up 43 percent of all drug arrests — more than any other drug. The vast majority of these arrests — nine out of 10 — are for possession.
These are more than just numbers. The personal impact of marijuana arrests can be devastating. In many states, a marijuana arrest can carry life-altering collateral consequences: parents may lose their children in court proceedings; disabled and low-income recipients of public benefits may lose health care; immigrants can face deportation; families can be evicted from public housing; and finding a job can be difficult and outright impossible in some cases. Because of racism in our criminal justice system, Black and Brown communities disproportionately face these harmful repercussions.
There are fewer arrests in states that legalized or decriminalized marijuana
Overall, the relaxing of marijuana laws, whether by legalization or decriminalization, coincides with lower average arrest rates for both sales and possession. States that legalized or decriminalized marijuana saw fewer marijuana arrests from 2010 to 2018 (in legalized states, you can still be arrested for possessing over a certain amount of marijuana, selling marijuana, using marijuana in prohibited places, or possessing while underage). Meanwhile,states in which marijuana remains fully illegal have higher arrest rates.
Legalized states had the lowest arrest rates of all, but the impact varies depending on the jurisdiction. In some states, such as Maine, arrests clearly decreased after legalization. In others, like California, arrests did not change or simply followed a downward trend that began before legalization.
Decriminalized states also saw a decrease in marijuana arrests, though arrests rates were about eight times higher than in legalized states. The data for decriminalized states also varies significantly across the country. In Missouri, for example, arrests actually increased after legalization. The impact of decriminalization on arrest rates remains uncertain.
It’s also unclear whether marijuana legalization or decriminalization directly impact arrest rates for other drugs — in some states, other drug arrests decreased at a similar rate, while in other states, arrests for other drugs spiked after marijuana legalization.
Extreme racial disparities in marijuana arrests persist, even in legalized or decriminalized states
War on Drugs policies disproportionately target people of color and particularly Black people, and marijuana laws are a prime example. The proof is in the data: Nationwide, Black people are 3.6 times more likely than white people to be arrested for marijuana, despite similar usage rates. That’s roughly the same rate of disparity that existed seven years ago, when we released the first iteration of this report, The War on Marijuana in Black and White. In fact, since 2010 racial disparities actually worsened in 31 states.
Racial disparities vary in severity across states. Colorado has the lowest disparity, at 1.5, while in Montana, Kentucky, Illinois, West Virginia, and Iowa, Black people were more than seven times more likely to be arrested for marijuana than white people. However, one commonality among all states— legalized, decriminalized, illegal — is that Black people are still significantly more likely to be arrested for marijuana than white people. And at the county level, there are places where Black people are more than 20, 30, 40, or even 50 times more likely to be arrested than white people.
On average, states that have legalized or decriminalized marijuana tend to have lower racial disparities than states in which marijuana remains fully illegal. However the relationship between legalization or decriminalization and racial disparities tends to be mixed. In some legalized states, such as Maine and Vermont, racial disparities in marijuana possession arrests increased between 2010 and 2018, while in other legalized states, such as California and Nevada, the disparities decreased. Many of these states also had racial disparities lower than the national average before they reformed their laws.
Even though legalized and decriminalized states saw a decrease in arrests overall, this does not seem to affect racial disparities, which remain. Black people are still more likely to be arrested for possession than white people in states that have legalized or decriminalized marijuana. Clearly, legalization and decriminalization alone are not enough to reverse the disproportionate harm the War on Drugs has caused to Black people and other people of color.
Racial profiling among law enforcement is directly to blame for these disparities. Police often target people (for stop and frisk, search, and arrest) based on their actual or perceived race rather than reasonable suspicion of criminal activity. Minor offenses — including marijuana possession — are aggressively enforced in communities of color while these same offenses are rarely enforced in more affluent, predominantly white communities. The result is the disproportionate arrest and incarceration of people of color, and particularly young people of color, who can wind up entangled in the criminal legal system with lifelong implications because of a minor offense.
Legalization is not enough
The war on people who use marijuana is still wreaking havoc in much of the U.S., particularly against people of color. States that legalized or decriminalized marijuana have seen fewer arrests and lower racial disparities on average, even though trends in the data vary widely.
States must legalize marijuana, and do so as a matter of racial justice. This means not only legalizing marijuana with the specific goal of undoing some of the harms of decades of racist criminal legal policies, but pursuing broader reforms in the criminal legal system to ensure that the harms of the war on marijuana do not simply re-materialize in other ways after legalization.
We must take on the war on marijuana as a whole. When states legalize, they must center legalization in racial justice by seeking to repair past harms wrought on communities of color by marijuana prohibition and ensure that people of color have opportunity and access to the burgeoning marijuana marketplace. Upon legalization, states should offer expungement and re-sentencing for past convictions, so that hundreds of thousands of people — disproportionately Black and Brown — do not remain marginalized for prior offenses. It’s also important that states not continue to use marijuana laws to over-police youth and instead decriminalize or de-penalize youth marijuana offenses to prevent funneling more young people into the criminal justice system. States also must not replace marijuana prohibition with a system of civil fines and fees.
We must include police reforms in legalization efforts. Law enforcement must take crucial steps toward ending racial profiling and harassment of Black communities, which has been a staple of the broken criminal legal system. That means ending “consent” searches that disproportionately target people of color. Police — and the federal government, which gives grants to state and local police — must also stop using raw numbers of stops, citations, summons, and arrests (including of marijuana) as a metric to measure productivity. States must divest from law enforcement as a way to solve problems and instead invest in non-punitive job, treatment, and public health programs and community-based services.
Prosecutors must also play a role in ending racially-biased marijuana enforcement. Just as police must end selective enforcement of criminal laws against Black and Brown people, prosecutors should refuse to move forward with marijuana arrests generally, and with any arrests that are targeted disproportionately at communities of color.
Finally, we need better data. In order to enact meaningful reform and conduct proper oversight, states need to develop systems for the routine collection of accurate data on policing. Unfortunately, the existing gaps in data do not paint a full picture of what’s going on.
There’s also significant variation in the quality of reporting across years, agencies, and places, which leaves gaps in the data that make it difficult to quantify racial disparities at the local level. Further, limitations in FBI data make it difficult to examine these disparities, particularly in regards to Latinx and multiracial people. The FBI does not count Latinx as a racial category and instead puts Latinx individuals in other racial categories — for example, Black or white. Data on white arrests thus might include many Latinx individuals, which would inflate the white arrest rate and mean that the actual racial disparities between arrests of white people and people of color is even higher.
While some states have made significant progress on marijuana reform, and the data shows that arrests are much lower in states that have legalized marijuana, marijuana prohibition is still the norm, resulting in almost 700,00 marijuana arrests in 2018 alone. Further, racial disparities in marijuana possession arrests persist everywhere, and legalization by itself is not enough to end such disparate treatment of people of color. Only by centering racial justice in marijuana legalization, enacting more comprehensive reforms, and getting better data, can we not only get an accurate picture of the state of marijuana enforcement, but forge a more effective path forward.
* The report excludes Florida and Washington, D.C. because state and district officials do not submit comprehensive data to the UCR and either refused to provide the ACLU with data or did not respond to our FOIA requests in a timely manner.
