In Florida, the Gutting of a Landmark Law Leaves Few Felons Likely to Vote

State officials don’t know how many felons are registered or eligible to vote. So we did our own analysis and found only a very small percentage of them will be able to cast ballots this election. Some could face prosecution if they do.

by PROPUBLICA.ORG
Lawrence Mower and Langston Taylor, Miami Herald and Tampa Bay Times

This article is part of Electionland, ProPublica’s collaborative reporting project covering problems that prevent eligible voters from casting their ballots during the 2020 elections. Sign up to receive our biggest stories as soon as they’re published.

This article is co-published with the Tampa Bay Times and the Miami Herald, which share a state capital bureau in Tallahassee.
It is reprinted here by permission of Propublica.

Nearly two years after Florida voters approved a landmark constitutional amendment allowing felons to vote, state officials don’t know how many have registered. They also don’t know how many felons on the voter rolls owe court fees, fines or restitution that would disqualify them from voting under a subsequent state law that limited the amendment’s scope.

Florida officials have not removed any felons from the rolls for owing fines or fees, and they’re unlikely to do so before Election Day, Secretary of State Laurel Lee said in an interview Monday. It’s unclear whether those whom the state fails to prune are entitled to vote after all — or may face prosecution if they do.

With so much in flux, the winner in Florida of the closely watched presidential vote could be decided by the courts for the second time in two decades.

Amid the confusion, the one certainty is that Florida’s Republican governor and Legislature have tamped down the felon vote, according to an analysis of state records by the Tampa Bay Times, Miami Herald and ProPublica. In a presidential election marred by voter suppression tactics, such as misinformation about vote-by-mail fraud, the weakening of Florida’s ballot measure, known as Amendment 4, may constitute the biggest single instance of voter disenfranchisement. Like the poll taxes of the Jim Crow era, the restrictions have especially hit Black Floridians, who make up a disproportionate share of felons and register overwhelmingly as Democrats.

By comparing the Florida Department of Corrections database of roughly 418,000 inmates released since 1997 with the state’s August list of nearly 15 million registered voters, the analysis found that about 31,400 Floridians with felony convictions have registered to vote since Amendment 4 took effect in January 2019. More than twice as many have registered as Democrats than Republicans, and the amendment has had the greatest impact in counties with higher numbers of Black residents. In Gadsden County, the only one in the state where more than half of the residents are Black, felons made up at least 1 in 5 new voters. In seven other counties with sizable Black populations, felons make up at least 1 in every 15 new voters.

Because it excludes felons who didn’t serve time in a Florida prison or were released before 1997, the 31,400 figure is likely an undercount. But it’s not far below a more comprehensive tally by Georgetown University Law professor Neel Sukhatme. Using data he collected on 850,000 felons in Florida, he found that just 45,300 have registered over the same period, he said.

Overall, both the Times/Herald/ProPublica and Georgetown analyses found that fewer than 8% of Florida’s felons have registered to vote since Amendment 4 passed. That’s a much lower rate, though over a shorter time frame, than in other states that have restored their voting rights. When Amendment 4 was adopted with widespread bipartisan support in 2018, some advocates predicted it would restore voting rights to as many as 1.4 million Floridians. They expected that between 10% and 20% of felons, or between 140,000 and 280,000, would register to vote in the 2020 election.

“Clearly it’s not one fell swoop that many Amendment 4 backers hoped for,” University of Florida political science professor Dan Smith said. “But it’s a movement in the right direction, and it has taken every effort, in spite of Republican leadership in Tallahassee, to get every one of those eligible citizens in Florida registered to vote.” https://datawrapper.dwcdn.net/jM2M3/1/Langston Taylor/Tampa Bay Times

Even fewer are likely to cast ballots in November, however.

Of the 45,300 felons Sukhatme identified on the voter rolls, 78% might owe fees, fines or restitution, he said. Because of the 2019 law requiring felons to pay off those debts before voting, they are legally on the rolls but may be ineligible to vote. “It’s a shame that despite what the people of Florida clearly voted for in the ballot initiative that this high percentage of folks are being prevented from exercising their constitutional rights,” said Sukhatme, who established a free website, FreeOurVote.com, allowing felons to see if they are free of fines and fees.

Florida Gov. Ron DeSantis, a staunch ally of President Donald Trump, pushed state lawmakers last year to impose the fees and fines restriction, which disqualified nearly 800,000 felons from voting. DeSantis declined to comment through a spokesman.

Some Republicans have said that a lower turnout would improve Trump’s chances of reelection. In March, Trump criticized proposals for more funding of voting by mail, saying that they would produce “levels of voting that, if you ever agreed to it, you’d never have a Republican elected in this country again.”

State Sen. Jeff Brandes, a St. Petersburg Republican who helped write the law restricting Amendment 4’s impact, said he had hoped that more people would register.

“I think engaged citizens are good for the republic,” he said.

But he defended the law, saying legislators were simply following the language of Amendment 4, which required felons to complete “all terms” of their sentences before voting.

“‘All terms’ includes all terms,” he said.

Changing Numbers

The battle over Amendment 4 has led celebrities and deep-pocketed Democrats, including former New York City Mayor Mike Bloomberg, to donate tens of millions of dollars toward paying off fines and fees to make felons eligible to vote. Bloomberg and his team claim they have identified 32,000 Black and Hispanic voters who are on the rolls but are ineligible to vote because they owe court fees or fines, according to The Washington Post.

Bloomberg’s team has raised $16 million to cover debts for felons who owe less than $1,500. It believes that if the 32,000 felons could vote, they could swing the election, even in a state with nearly 15 million registered voters. So far, however, groups’ efforts to pay fees and fines have not dramatically increased the rolls. Out of 325 people in Hillsborough County who have had their fines and fees paid off by the Florida Rights Restoration Coalition, and whose records were made available, only 56 registered to vote, the Times/Herald/ProPublica analysis shows.

The addition of even a few thousand voters could tip the upcoming contest or plunge the state’s results into chaos and the courts.

“If there is a wide swath of felons on the rolls who are ineligible to vote,” Brandes said, “that is likely to be something that is challenged.”

In a swing state that could determine the next president, the uncertainty over felon voting is inexcusable, experts said.

“It’s a tremendous failure,” said Marc Meredith, a political science professor at the University of Pennsylvania who has studied voting trends among felons. “This shouldn’t happen.”

Questions Unanswered

Next month’s election will be a critical test for Amendment 4.

Its passage marked the culmination of an 18-year effort by voting rights groups to eliminate a relic of systemic racism dating back to post-Civil War Florida. But months after voters approved the amendment, the Republican-led Legislature blunted its impact. The law, said Rosemary McCoy, is doing exactly what it was designed to do: prevent people like her from voting.

McCoy, 63, of Jacksonville, was released from prison in 2016 after serving seven months on theft and racketeering convictions. She helped gather enough signatures for Amendment 4 to appear on the ballot. After it passed, she used it to register to vote. But she won’t be casting a ballot Nov. 3 because she owes more than $7,800 in restitution. She is one of 17 felons who sued the state and the governor last year over the restriction.

In May, U.S. District Judge Robert Hinkle ruled that the new law created an illegal “pay-to-vote” system. He concluded that most felons who owed court costs should be allowed to vote, opening the door for hundreds of thousands to register. About four months later, the U.S. Court of Appeals for the 11th Circuit, led by five Trump-appointed judges, overturned Hinkle’s decision. Their ruling is likely to stand through the Nov. 3 election.

State election officials decided to wait for the litigation to play out before pruning any felons who owe money from the voter rolls, said Lee, a former judge who was appointed secretary of state by DeSantis last year, and who oversees the state Division of Elections. Because the 11th Circuit’s decision came so late, she doesn’t expect to remove any felons before the election, she said.

“The interpretation of what Amendment 4 meant for Florida voters has been altered several times throughout the course of the litigation,” Lee said, “and we did not want to initiate removal proceedings for any voter who could later be determined to be eligible.”

State officials have offered some guidance to county election supervisors and posted guidelines on its website for voting under Amendment 4. But they have done little outreach to the thousands of felons who are on the rolls but ineligible to vote. Lee said she granted the interview Monday, her first in-depth interview on Amendment 4 since the June 2019 lawsuit, to get the word out to felons.

“If a voter knows that they have not completed the terms of their sentence, they absolutely should not vote,” she said.

The situation doesn’t just jeopardize the state’s election results. Felons who owe court fees, fines or restitution run the risk of committing a felony if they cast ballots next month. State law prohibits anyone from voting if they “know” they’re ineligible.

That includes people like Steven Deane of New Port Richey, who registered to vote in June, after the federal judge overturned the Legislature’s law.

Deane, 33, who had been convicted on theft and fraud charges stemming from substance abuse, said regaining his right to vote was a pivotal moment in his life. After receiving his voter registration card in the mail this year, the first thing he did was show it to his mother.

In September, he got his driver’s license back after paying about $3,000 in court fees.

But Deane still owes more than $10,000.

No state or local official notified him that he was ineligible to vote in the November election. He didn’t learn that he couldn’t cast a ballot until last month — when he was contacted by a reporter for this story.

“I should have known better,” Deane said. “This is Florida.”

History of Suppression

Until last year, the only way for felons to regain their right to vote in Florida was to go to Tallahassee and beg for mercy.

Felons had been ineligible to vote since 1868, when lawmakers wrote the rule into the state Constitution. It was part of a slate of actions designed to remove Black voters from the rolls, including literacy tests, poll taxes and a requirement that voters prove their date of birth, an obstacle for freed slaves who usually didn’t have birth certificates.

By 1880, Florida had gone from having a majority of Black voters to almost none at all, said Darryl Paulson, a former University of South Florida professor who has written extensively about the state’s felon voting ban.

“It was like a catch-all net,” Paulson said. “If one of these barriers doesn’t get you, the next will.”

Most of the other barriers were lifted during the civil rights movement of the 1960s. But Florida’s lifetime ban on felon voting persisted, even as other states struck theirs down.

Until Amendment 4, Florida was one of four states — along with Virginia, Iowa and Kentucky — that required all felons to petition the governor to have their rights restored. Those wanting to vote again could make their case to the governor and the elected members of the Florida Cabinet, a sometimes-humiliating process in which felons could be asked intimate and arbitrary questions, such as how many children they had by how many mothers.

This article is part of Electionland, ProPublica’s collaborative reporting project covering problems that prevent eligible voters from casting their ballots during the 2020 elections. Learn more

In 2007, then-Gov. Charlie Crist — a Republican at the time — changed the clemency rules to restore voting rights to more than 150,000 people. But the state’s constitutional ban on felon voting remained, and in 2011, then-Gov. Rick Scott immediately reverted to the pre-Crist rules. Only about 3,000 people had their rights restored by Scott during his eight years in office.

By 2016, the estimated 1.4 million felons in Florida made up nearly a quarter of all disenfranchised felons in America, according to a report by The Sentencing Project, a nonprofit that advocates for criminal justice reform.

More than 1 in 5 were Black, well above their 17% share of the state’s population.

The following year, a group known as the Florida Rights Restoration Coalition gathered enough signatures to put Amendment 4 on the 2018 ballot. It restored the right to vote to nearly all felons “after they complete all terms of their sentence including parole or probation.”

The amendment, crafted after years of polling, did not restore rights to anyone convicted of murder or sex offenses, and it said nothing about fines or fees. The omission was deliberate, according to Howard Simon, the former executive director of the American Civil Liberties Union of Florida, who helped write the amendment. Simon said its authors believed that such a provision might be unconstitutional, and they also didn’t want to set a precedent by linking voting rights to financial status.

“If we had included it, it would have taken us another 150 years to get that pay-to-vote system out of the Florida Constitution,” he said.

However, during a hearing before the Florida Supreme Court, more than 18 months before Floridians voted on Amendment 4, an attorney for organizers told justices that “all terms” did include all court fees, fines and restitution. Then, after the ballot measure passed, the ACLU repeated the same point in letters to state officials.

Seizing on those statements, Republican lawmakers proposed legislation interpreting “all terms” to include all financial obligations. When backers of Amendment 4 argued that it doesn’t mention fines and fees, and that the Legislature did not need to act, the House sponsor of the bill, then-Rep. Jamie Grant, R-Tampa, accused them of hypocrisy and misleading voters.

When lawmakers warned that the bill would exclude the vast majority of felons, Grant said he didn’t care; he was interpreting Amendment 4 as its creators intended.

“I don’t want to know the impact of this,” Grant told lawmakers, “because it’s irrelevant.” This year, DeSantis appointed Grant to be the state’s chief information officer.

Republicans in the Florida Senate, led by Brandes, pushed for a version of the law that would have permitted felons to vote once a judge converted the debts to civil liens — a common practice once a felon is no longer imprisoned or on probation. That provision would be “fairer to felons,” Brandes said at the time. But Grant and his House counterparts won out, and Senate Republicans, including Brandes, approved the stricter version of the law.

How Many Are Registered? No One Knows

Florida’s Division of Elections, which is responsible for removing ineligible voters from the rolls, can’t say definitively how many registered voters are convicted felons.

Division Director Maria Matthews told a federal judge this year that her office had flagged the names of 85,000 registered voters whose names and birthdates matched those of felons, a figure cited repeatedly by federal judges during the litigation. Overruling Matthews, state officials now say they do not consider that number accurate because it includes too many false matches.

Until her office reviews an individual’s case, Lee said, she can’t say for sure whether that person is a felon. She declined to give a current number of people flagged as felons. She noted that her office has removed 6,000 felons from the rolls who were ineligible to vote because they were convicted of murder or felony sex offenses. About 260 registered sex offenders and 1,200 felons on probation are still on the rolls, even though both groups are prohibited from voting, the Times/Herald/ProPublica analysis shows.

The Florida Rights Restoration Coalition estimates at least 50,000 felons have registered since January 2019, a slightly higher count than Sukhatme’s, but the group has not said how it reached that figure.

Smith, the University of Florida political science professor, has assembled the most comprehensive known database on Florida felons. But his data is owned by the ACLU of Florida, which did not permit him to release it. Smith told the Times/Herald/ProPublica that he did not consider the data completely accurate.

“Anyone who thinks they have a definitive number, including the state of Florida, are probably fooling themselves,” Smith said.

All of the estimates, however, are well below what was anticipated when Amendment 4 passed, experts said.

Meredith, the University of Pennsylvania professor, said the figures seemed “quite low” relative to what he would expect “had the policy been running smoothly.”

“My expectation would be that you would be seeing more than 50,000 or 60,000 voting, much less registering,” he said.

Meredith has looked into similar situations in other states. He found that in Iowa, about 29% of felons registered to vote. The proportions were even higher in Maine and Rhode Island, where 38% and 43% of convicted felons registered to vote, respectively. None of the three states required felons to pay all financial obligations before voting, and they attained these levels of felon participation over longer time periods than the less than two years since Amendment 4 took effect.

A separate study by Harvard University doctoral candidate Michael Morse found that 20% of the roughly 150,000 felons who had their rights restored by Crist from 2007 to 2011 were registered to vote in 2012.

Experts agreed that the law requiring payment before voting — and the confusion surrounding it — are a deterrent to felons who want to vote.

“It’s not astonishing to me that we would see low rates of registration,” said Ariel White, a political science professor at the Massachusetts Institute of Technology who has studied voting patterns among felons. “This has been an extremely confusing situation for, it seems, everybody involved.”

Follow the Money

By adopting the strictest interpretation of Amendment 4, lawmakers created an “administrative nightmare,” Hinkle, the federal judge, said during a hearing last year. That’s because Florida has no central database of court fees or fines. Data on felony convictions is scattered across the state’s 67 county clerk’s offices, and much of that information is incomplete or outdated. Nobody tracks restitution paid to victims.

Lee said her office has to request information on felons’ fines and fees from clerks of court, who often have trouble coming up with the correct numbers. During the litigation, an official in the Hillsborough County clerk’s office testified that he and four co-workers spent 12 to 15 hours figuring out how much one felon owed.

“This process is far more complex than our prior process, when we were reviewing simply to see if someone might have a prior felony,” Lee said.

Nearly 80% of Florida’s felons are estimated to owe money to the courts. Some owe criminal fines, which can range from $5,000 for a felony DUI to $500,000 for drug trafficking. The vast majority, however, owe “user fees.” In Florida, there’s a $100 fee for using a public defender, a $50 fee for applying to use a public defender — even a $100 fee to cover the cost of prosecution — all tacked on at the end of the sentence.

“You’re paying the state to prosecute you,” said Lisa Foster, a former judge who is co-director of the Fines and Fees Justice Center, which advocates for the elimination of court fees.

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While criminal fines have been around for centuries, user fees are a modern innovation, triggered by the war on drugs of the 1980s and 1990s, in addition to a bipartisan wave of anti-tax sentiment.

With more arrests came a need for more courthouses, judges, prosecutors and public defenders. Instead of raising taxes to fund this expansion of the criminal justice system, however, Florida, like other states, targeted “users” of the system — the people swept up in the nation’s anti-crime wave.

In 1998, Florida voters passed a constitutional amendment allowing courts to charge defendants user fees. Today, those fees add hundreds of dollars to each felony conviction. Some of the fees don’t go to the criminal justice system but are routed into the Legislature’s general revenue fund that pays for services such as parks, roads and schools.

In Florida, about 3 out of every 4 people who face felony charges are too poor to afford their own lawyer. Nearly the same share of felons in Florida owe court fees or fines, according to Smith’s analysis. About 90% of the dollars aren’t expected to be paid, county clerk data shows.

Failing to pay fees brings consequences aside from voting. Nearly 2 million Floridians have their driver’s licenses suspended for failing to pay court fees or fines, according to the Fines and Fees Justice Center, locking them out from the estimated 30% of jobs that require driving. The amounts often go to debt collectors, meaning they could show up on background checks and credit reports, and they can prevent people from receiving occupational licenses.

Marq Mitchell, 30, of Oakland Park in Broward County, lost his right to vote before he turned 18, after he was convicted as an adult of escaping from a juvenile detention facility. When he sought certification as a recovery peer specialist, to help people recover from substance abuse and mental health disorders, he found he couldn’t be certified or pass a company’s background check because of the more than $4,000 in decade-old court fees he couldn’t afford to pay off.

Because he couldn’t be certified, his nonprofit, Chainless Change, can’t qualify for state or local contracts, he said.

“It’s a debtor’s prison,” he said. “If you’re too poor, then you’ll never be able to access a better quality of life.”

Desmond Meade, who leads the Florida Rights Restoration Coalition, said he believed a combination of uncertainty and apathy among Florida officials was also responsible for driving down the number of people with felony convictions registering to vote. Meade said the state, for example, did not publicize its process for allowing felons to request advisory opinions about how much they owe in court-ordered costs.

“You would expect the state to do things to encourage civic participation,” Meade said. “The state is just doing the bare minimum.”

Before the Legislature imposed the fees and fines requirement, Meade said, he had anticipated that 250,000 felons would register to vote. Greg James, a Tallahassee pastor who helped push Amendment 4 over the finish line in 2018, said he and other organizers were hoping 140,000 people with felony convictions would register.

“Fear has set into a lot of minds of men and women who were thinking about registering,” James said, noting that some people don’t know if they owe money and worry that casting a ballot could result in new felony charges.

What It Means for the November Election

The addition of even a small number of voters to the rolls could alter the course of the November election in Florida.

Any edge would most likely favor Democrats.

About half of the 31,400 convicted felons on the voting rolls identified by the Times/Herald/ProPublica analysis are Black, and 52% overall registered as Democrats. Another 25% registered with no party affiliation. It’s unclear how many of them have outstanding fines and fees.

Only 22% are registered Republicans, though 52% of white felons registered as Republicans, a greater rate than white Floridians overall (47%).

“These people are registering the way that Black and white registrants register in Florida, except that white individuals with felony convictions are even more likely to register with the Republican Party,” Smith noted.

In raw numbers, about 16,200 of the 31,400 registered felons are Democrats, compared with 6,800 Republicans, a nearly 9,400-vote difference.

The latest polls between Trump and former Vice President Joe Biden show that the race is neck-and-neck. Florida has a history of tight elections. The 2018 race for governor between DeSantis and Democrat Andrew Gillum was decided by about 33,000 votes. Scott defeated Democrat Bill Nelson for U.S. Senate that year by just over 10,000 votes. Most notoriously, Florida’s 2000 presidential election was decided by just 537 votes — and by a 5-4 decision in the U.S. Supreme Court.

Headed for Court?

This time around, the state’s failure to pare ineligible felons from the rolls could similarly throw the presidential race into the courts.

Lee’s office is capable of processing only 57 voter registrations per day, meaning it would take until 2026 to screen the tens of thousands of people flagged as potential felons and remove those who owe fines and fees. Her office still needs funding for more workers to pore through the backlog, she said. She requested more than $1 million from the Legislature this year to hire more people to screen Amendment 4-related voters but did not receive it, her spokesman said.

Six political observers, advocates, lawmakers and lawyers told the Times/Herald/ProPublica either party might exploit voting by ineligible felons to challenge the state’s election results.

“I think people will use everything to cast doubt,” said Tallahassee lawyer Barry Richard, who represented George W. Bush in the contentious 2000 Florida election recount. “We’re going to have lots of lawsuits.”

Lawyers would need to prove there were enough ineligible felons who cast votes to swing the election, Richard said.

Also unclear is how much personal risk felons who owe fines and fees face if they vote.

State law makes it a third-degree felony, with a sentence of up to five years in prison, for anyone to vote “knowing he or she is not a qualified elector.”

How the law would be enforced could depend on who is in charge in each county. Hillsborough County State Attorney Andrew Warren said the standard for proof is high — the equivalent of someone “twirling their mustache and hatching a plan to pull a fast one on the State of Florida.”

Brevard County and Seminole County State Attorney Phil Archer, the president of the Florida Prosecuting Attorneys Association, said through a spokesman that so far he’s received no guidance on the subject from the state’s Division of Election or state Attorney General Ashley Moody.

Even the U.S. Court of Appeals for the 11th Circuit was split on whether ineligible felons on the rolls can vote. In their September ruling, the six Republican-appointed judges wrote that the 85,000 people flagged as potential felons are “entitled” to vote because the state has yet to screen them.

The four Democratic-appointed judges in the minority noted that registered felons could be prosecuted for voting, and that even eligible felons on the rolls may choose not to vote to avoid being charged with a crime.

“Florida ignores this reality, and the majority is blind to it,” they wrote.

Rejoining Society at the Polls

For Ryan Aderholtz of Tampa, being convicted of a felony brought many unexpected hardships.

“You can’t get hired anywhere. You can’t get an apartment,” said Aderholtz, 36, who was released from prison in 2009 after serving nine months for driving with a suspended license and fleeing a police officer. “It affects your credit, buying houses, everything.”

Aderholtz ultimately started his own business repairing screens on covered porches and verandas. While he considers himself successful, he said it wasn’t until he regained his right to vote that he felt fully reintegrated into society.

“I felt like part of America again,” Aderholtz said.

For countless other felons across Florida, that feeling has remained elusive.

Nancy Abudu, deputy legal director for voting rights at the Southern Poverty Law Center in Montgomery, Alabama, said she is advising anyone who is uncertain about whether they owe money to avoid voting next month. She said different prosecutors could handle the state’s ineligible voting law differently, noting that Georgia’s secretary of state vowed to investigate about 1,000 people who allegedly voted twice in elections this year.

“It’s just a very sad state of affairs, one that could have been totally avoided,” she said. “Florida again, in a historic election, will be on the news for probably a total administrative meltdown.”

Sheila Singleton, 58, of Jacksonville, voted in May last year, nine years after a felony conviction sent her to jail for six months. She was unaware that she owed anything on the case until a week after she cast her ballot, when the Duval County clerk notified her she owed nearly $15,000 in restitution and nearly $1,000 in court-ordered fees and fines — amounts she says she has no chance of paying back.

She makes $15 an hour registering and educating voters for New Florida Majority, which works to increase turnout among Floridians of color. Her job is set to end after the election.

“Nobody told me that when I pleaded guilty I wouldn’t be able to vote, I wouldn’t be able to get a job,” she said.

Singleton is disgusted that Republican lawmakers stripped away her ability to vote. Instead of risking prosecution for voting, all she can do now is encourage everyone else to vote, she said.

“It was not fair to us,” she said. “They have to cheat to win.”

About the Data: The Tampa Bay Times/Miami Herald and ProPublica compared a Florida Department of Corrections database published Oct. 1, 2020, of about 418,000 inmates released since 1997 with the state’s list of nearly 15 million active and inactive registered voters as of Aug. 31. The first names, last names and dates of birth from both databases were matched to identify more than 31,400 people incarcerated for felonies who have registered to vote since Jan. 8, 2019. About 50 records were not included because they matched multiple registered voters. Many of the estimated 1.4 million people with felony convictions in Florida did not serve time in Florida prisons, however. The state’s 67 clerks of court are often the only source of data on their crimes.

Sophie Chou contributed reporting.