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Hidden Sentences

As it turned out, most of the 1.4 million never got a chance to vote because of an appellate court decision in September that upheld the state’s assertion that people with felony convictions must pay all their court fines and fees before being allowed to cast a ballot. (See November 2020 PLN, p. 40). Donations from the Florida Rights Restoration Coalition, Michael Bloomberg, LeBron James, and others went to help former prisoners who had debt of less than $1,500. (See October 2020 PLN, p. 56).

The loss of the franchise as a result of a felony conviction is what is known as a “collateral consequence.” These consequences are described as “hidden sentences” by sociologist and legal scholar Joshua Kaiser at the University of Massachusetts-Amherst. Although they are not part of the formal sentence for a crime, collateral consequences are attached to a conviction in a variety of ways that exclude people from employment, housing, and a host of civil liberties that are integral to the American social landscaped. Many of these restrictions are active only during probation or parole, but there is a long list of legal restrictions that are permanent, effectively making any conviction a life sentence.

Collateral consequences fall into three broad categories. The first, and most familiar, of these is direct statutory mandates and prohibitions. These are state and federal laws that either mandate a particular behavior, such as sex offenders having to register, or prohibit particular acts, such as possession of a firearm. Many of these provisions carry criminal penalties, but some, like the statutes in many states that disenfranchise those with felony convictions, simply bar people from some aspect of civic life.

A second class of consequence can best be termed as regulatory. The most pervasive type of this consequence involves locking people out of labor markets that are regulated or licensed by state or local governments. Some states prevent anyone with a felony record from obtaining a barber’s license; other jurisdictions prohibit licensing as a stockbroker or masseuse. Across the country, thousands of occupations are forbidden to people with a felony record, and while some of these regulations are statutory, most are put in place by bureaucratic fiat and are unappealable.

The last type of consequence is essentially a civil disability in that people with a felony record lose the civil protections that other citizens enjoy. An employer, for example, may not discriminate based on race, gender, religion, and a host of other protected categories, but that same employer has complete freedom to discriminate on the basis of a felony conviction, even if that conviction has nothing to do with the job. And there is no civil recourse. The same civil disability applies to people trying to rent an apartment. Where the average citizen could take legal action, the person with a felony record has no options.

The American Bar Association Criminal Justice Section compiled a list of over 45,000 collateral consequences across jurisdictions nationwide. These consequences affect the roughly 19.6 million Americans with a felony record, and while the severity of restrictions varies tremendously in different jurisdictions, some form of consequence is present in every state and locality.

Reuben Jonathan Miller is an associate professor at the University of Chicago and the author of the book Halfway Home: Race Punishment, and the Afterlife of Mass Incarceration. In a recent article published by Politico, he called the cumulative effect of collateral consequences “carceral citizenship.” It is a second-class citizenship for people with criminal records, marked by the reality that carceral citizens “are made to do things other people cannot be made to do, like attend meetings for drug treatment, whether they have a drug problem or not. And they can be arrested if they behave in ways that are perfectly legal for everyone else, like crossing state lines while on probation.”

Over the last 15 years, Miller has interviewed hundreds of men and women released from prisons and jails, and he profiled several of these interviews for Politico.

Jhody Polk grew up in Gainesville, Florida. She was going to college and working for a bail bondsman when her boyfriend was arrested for drug possession. She followed him when he went on the run and ended up with an eight-year sentence for arson and burglary. She found herself in prison and became active in helping other prisoners work on their cases.

Upon release, Polk was handed a set of conditions that required her to find employment, a place to live, report to a parole officer, and submit to weekly drug tests. She told Miller at Politico that she struggled to find a job that could mesh with her parole conditions, and even after she landed a good job, it has been impossible to rent a decent apartment because of her record.

Joshua Hoe had a good job as a debate team director at the University of Michigan when he sent “inappropriate” pictures to an undercover cop posing as a minor on a chat room. After four years in prison, he discovered the 659 collateral consequences that make life extraordinarily hard for someone with a felony record in Michigan. The only place that would rent to him was a boarding house, but his parole officer made him move because another convicted sex offender lived there. Finding a job was just as hard, and Hoe turned to freelance writing to cover his bills until he finished parole.

Miller’s work raises serious questions about efforts at criminal justice reform that ignore the systemic obstacles intentionally placed in front of people released from prisons and jails. Movements to secure the release of people caught up on America’s massive carceral state must not overlook the myriad of restrictions that could send those people right back to prison. 


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