Editor's note: This is the second in a two-part series. The first report was about removal of voting rights for felons, and this one is about how that right can be restored.
GLASGOW – Despite efforts by some state lawmakers and a past governor to make it easier for specific categories of felons to regain their right to vote, as it sits now, it cannot happen automatically in Kentucky as it can in most other states.
Nonetheless, a process does exist and is utilized.
Laws of the land
Section 145 of the Kentucky Constitution specifies that the following categories of people “shall not have the right to vote: 1. Persons convicted in any court of competent jurisdiction of treason, or felony, or bribery in an election, or of such high misdemeanor as the General Assembly may declare shall operate as an exclusion from the right of suffrage, but persons hereby excluded may be restored to their civil rights by executive pardon. 2. Persons who, at the time of the election, are in confinement under the judgment of a court for some penal offense. 3. Idiots and insane persons.”
This section of the constitution has not been revised since 1955, and that was the first time since 1891.
An individual who loses the right to vote because of being a convicted felon has two routes through which they may be able to regain the option to do what many think of as both a duty and a privilege, depending on what the felony was.
When a person has completed all the conditions of his or her sentence, including any probation or parole time, payment of restitution, etc., and meets other stipulations, he or she may apply for what is essentially a “partial pardon,” and that ultimately has to be approved by the governor, as noted above, as would a full executive pardon for the crime(s).
The other option is get the record of the crime expunged, which is essentially like getting the charge dismissed, but some crimes are not eligible to be expunged, some have more felony charges than are allowed to have expunged, and there is a five-year waiting period before a person can seek expungement.
The process for rights restoration
The Kentucky Department of Corrections Division of Probation & Parole website contains some information regarding the restoration of civil rights, noting, “All persons who have been convicted of a felony in any court in this or any other state loses the right to vote and hold public office.”
It says the Kentucky constitution outlines the governor’s authority to restore those rights to former offenders.
“In conjunction with the efforts of the governor to restore civil rights to those who qualify, all Division of Probation and Parole employees will assist any former offender in the completion of their civil rights restoration application,” the site says. “To be eligible for restoration of civil rights, applicants must have received a Final Discharge from parole or their sentence must have expired, whichever is applicable. Applicants must not be under felony indictment, must not have pending charges or owe any outstanding fines or restitution.”
The website provides a link to the one-page application form, with a half-page attached with additional information/instructions, that can be downloaded from there. “Please allow up to 12 weeks to process your application,” it says near the top, above where the fill-in-the-blank questions begin. Farther down the page is a box that states, “Restoration of Civil Rights DOES NOT give a convicted felon the right to purchase, own or have in possession a firearm or other weapon.
Those convicted in a federal or out-of-state court must provide additional documentation specified in the instruction sheet.
Matt Aaron, a regional program administrator with the Kentucky Department of Corrections Division of Reentry Services, also pointed out that when individuals actually go to the Probation & Parole Office rather than just downloading the form and completing it on his or her own, not only can they get help filling out the form, one of the officers there can sign off on it rather than the applicant’s having to find a notary.
Aaron said that at the end of a convict’s supervision, “we like for the officer to meet with them to give them an application at that time and they can fill it out together. That way it’s taken care of and submitted.
In prisons, prerelease classes take place, and that option is supposed to be discussed as part of that in case the inmate will not have P&P supervision after the incarceration time is served.
“We’re trying out best to make sure that we make contact with everybody,” Aaron said.
He also brings the application forms with him to expungement workshops.
Once a person is removed from the voter rolls, said Lillie Ruschell, a spokesperson for the Kentucky State Board of Elections, they are not automatically added back once the right is restored. Once those individuals’ status changes and they are once again eligible to vote, they must complete a new registration, she said.
Eligible individuals generally may register online, at their respective county clerk’s office or while getting a new or renewed driver’s license at the circuit court clerk’s office, but a copy of the document showing the right has been restored will have to be shown, so the county clerk’s office is likely best equipped for registrations in this circumstance.
With expungements, an application has to be filed to start process. With that, a $40 charge is required to get a necessary background check done, and then a $50 filing fee per expungement request, e.g. if a person has multiple misdemeanors or a misdemeanor and felony, is required. Once the expungement order is issued, the applicant is charge an expungement fee of $250.
When the application is completed, notice is served to the county or commonwealth’s attorney’s office that prosecuted the case, and it has 60 days to file a response, or longer for good cause, but a hearing on the application must take place no more than 120 days after the application was filed. It is up to that office to notify the victim(s) of the crime, if one or more were specifically identified.
After the hearing, the court determines whether the expungement is appropriate and, if it is, issues an order for it.
Efforts to help
For the past two Aprils, expungement workshops have taken place in Glasgow to help those convicted of crimes better understand whether their records are eligible for expungement and, if they are, to help them kickstart the process of getting that done.
Attorneys from Kentucky Legal Aid and the Department for Public Advocacy have been on hand, along with individuals from other state agencies and community organizations, such as Goodwill Industries, in each case to assist people with that process, and education and job placement representatives have been available as well to provide information and resources for options to move forward with postconviction life.
The Kentucky General Assembly this year made some changes to the state law that enable more crimes eligible for expungement and helps make it easier, e.g. paying the $250 fee in installments over 18 months, to get it done, and that information provided as part of the workshop.
It was at the expungement workshop this year that the Glasgow Daily Times spoke with Aaron, as well as some people with convictions who were there to get more information about getting them expunged.
DPA attorney Tyler Scott said that although his office does help with expungement workshops, as he did this year, his office typically refers people to legal aid for help with expungements or “partial pardon” rights restorations.
Bowling Green-based KLA attorney Ashley Lee said she knows of only a few calls her office has received from people looking to get rights restored, and a couple of those were regarding the ability to purchase firearms and a couple about voting rights. More often, she said, they are seeking expungement because they want the conviction off their records so they can have better success with getting employment, housing, etc.
Lee said it’s her understanding that once the record is expunged with all the involved agencies, which takes about 60 days after the expungement order is entered, the person is no longer a felon, because the expungement vacates the the judgment, making it as if the charge never happened, and could register or re-register to vote. That is, she said, provided the person does not have other felonies that were not eligible for expungement.
Legal aid can work with clients to get fees waived, said Kristy Vick-Stratton, another of its attorneys at the workshop, but the $40 to get the background check always has to be paid.
Sean Anderson of Glasgow was among those with felony convictions who attended that workshop, but, after meeting with Scott, found that he could not get his multiple felonies expunged, but he appreciated the opportunity to find that out without having to pay a private attorney for time spent to learn that.
It had been 16 years since his last crime, he said, and he changed his life after that and it’s been better ever since.
“There are certain rights that I’d like to have back that I can’t, but that’s my fault.”
When asked whether he was aware of the option to get back the right to vote through the other process, he said he was, and that would be the next course he would pursue.
“Especially nowadays, that one vote really makes a difference,” Anderson said. “That was one of the rights I’d like to have gotten back [through expungement].”
Monica Morgan of Cave City said she would be able to get the majority of her record expunged, but she may still have some felony convictions on her record. Because of that, she will not be able to get a job with the state using her social work degree, but she felt she’d be able to find another way to put it to use.
Morgan said she’s felt she mostly had to keep her opinions to herself because she hadn’t been able to vote.
She also was aware of the process for getting her voting rights back and intended to follow up on that in the coming weeks. She’d been procrastinating a little, she said, because she wasn’t looking forward to going back to the Probation & Parole office. When advised she could get the application form online, she said, “Awesome!”
“Gov. Bevin has restored the right to vote to more than a thousand felons since taking office,” said Elizabeth Kuhn, communications director for the governor’s office.
She declined to provide further requested information about how many have requested a full pardon or what became known as a “partial pardon,” through which the right to vote is restored; actual numbers of those receiving either such pardon, for comparison; or typical reasons why a person might be denied a “partial pardon.”
Aside from asking about the administrative regulations the Department of Corrections uses in the rights restoration process, the Daily Times requested, via email as directed and using the form directed, the following from the Department of Corrections on April 25:
• Lists of individuals who had requested restorations of rights for 2017, 2018 and 2019 to the closest date possible for Barren County cases AND either a separate list or a designation within the first lists requested of which of those individuals have been granted restorations through partial or full pardons. Accompanying data such as the type of pardon and case number was requested as well for these lists.
The Daily Times requested to be advised if the department does not get notifications of those for whom the restorations are granted, and the newspaper also said in its request that IF the lists of names were “not permissible due to law/policy restricting the release of those names, then please provide the numbers of persons requesting and, if you are notified of such, those receiving restorations.”
• The numbers of persons requesting restorations in 2017, 2018 and 2019 to the closest date possible for cases in the commonwealth as a whole.
On April 29, the request was acknowledged via email by Cyndi Heddleston, with the DOC Office of Research and Legislative Services with the answer to the regulations question in the form of two links – one to Corrections Policy and Procedure and one to the related Kentucky Administrative Regulation. The newspaper was advised the request was under review and that data requests are subject to the approval of the DOC commissioner. On June 12, the Daily Times asked for a status update on the request and got a response the following day from that person saying she was checking on it.
On Monday, (June 17), Heddleston wrote back, “I apologize for the length of time it has taken to get a response for you. Your request for data has been denied. According to Department of Corrections policy, a data request can be denied at the discretion of the Commissioner. Thank you.”
The Daily Times is in the process of trying to obtain further explanation of why the request was denied. The Kentucky Open Records Act states, “Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.”
The request was worded more so as a request for information rather than actual records, though.
Specific lists of the nature requested from the Department of Corrections were also sought, simultaneously, through the governor’s office, with the numbers requested as a backup, and the request there was referred to the Cabinet for Justice and Public Safety, which includes the DOC.
Efforts to change
Gov. Steve Beshear had issued a Nov. 24, 2015, executive order making the restoration of the rights to vote and to hold public office essentially automatic for those who had completed all the requirements of their sentences as long as they were not otherwise barred, i.e. if the conviction was for treason, bribery in an election, a violent offense defined in KRS 439.3401, any offense under KRS 507 or 507A, or anny assault as defined in KRS 508.020 or KRS 508.040.
The order states that, according to the Brennan Center for Justice, it was estimated that 180,000 Kentuckians who had completed their sentences remained disenfranchised and stating that research indicates that ex-offenders who vote are less likely to reoffend and return to prison.
The order, No. 2015-871, called the current means by which offenders ask to have their rights restored is “unnecessarily time consuming.”
Gov. Matt Bevin reversed that, though, less than a month later, after he took office. His executive order states, “I have long been on record supporting the automatic restoration of civil rights to those non-violent felony offenders who have completed the terms of their incarceration, parole and probation and paid all required court costs, fines and restitution, but believe that such restoration must come through an amendment to the Kentucky Constitution and not by executive action.”
It also states legislation was pending at the time seeking to amend Section 145 of the Constitution to permit automatic restoration of rights to certain convicted felons under certain conditions, without the need of action by the governor.
“Gov. Bevin has been active in the call for criminal justice reform at both the state and federal level,” Kuhn wrote to the Daily Times. “In December, he was invited by President Trump to attend the signing of the First Step Act at the White House.”
Most recently, a blll proposed by Louisville Democratic Sen. Morgan McGarvey that could have resulted in an amendment to constitution went to the State and Local Government Committee during the 2019 legislative session, but that’s as far as it got.
Changes to the commonwealth’s constitution are possible via legislation advanced through either chamber of the Kentucky General Assembly; a bill would have to garner approval from three-fifths of the members of each the House of Representatives and the Senate.
“Then such proposed amendment or amendments shall be submitted to the voters of the State for their ratification or rejection at the next general election for members of the House of Representatives,” the Constitution of Kentucky states regarding amendments to it. Those elections take place every two years, with the next falling in 2020, but such elections may not be less than 90 days from final passage of the proposed amendment.
The Brennan Center for Justice, noted in Beshear’s order, is a nonprofit organization at the New York University School of Law, describes itself as “a nonpartisan law and policy institute that works to reform, revitalize – and when necessary, defend – our country’s systems of democracy and justice.”
Voting rights is one of its focuses, and it is among the agencies advocating to make the restoration of voting rights automatic for those eligible.