In the run-up to the election in November, there was a pervasive belief that the fate of the nation could hinge on Florida because of its 2018 passage of Amendment 4, which reversed a permanent voting ban for 1.4 million Floridians with felony records. Then, in September, an appellate court ruled that people with felony convictions must pay all their court fines and fees before they are permitted to exercise the franchise.
Activists called the decision an affront to American democracy; the vote, they argued, is the most visible expression of citizenship. Without question, restoring the franchise could change the political landscape, but equating the right to vote with full citizenship hides a much deeper truth. Thousands of laws and regulations make it almost impossible to reintegrate fully into civilian life, trapping formerly incarcerated people in a state of quasi-citizenship that makes it more likely they will be sent back to prison. As a result, even after they have served their sentences, and long after they finish probation or parole, people with felony records are effectively imprisoned, but in their home communities.
Jhody Polk, an activist from Gainesville, Florida, who worked to help pass Amendment 4 knows this all too well.
Polk, 36, spent seven years in prison after being convicted of home invasion and grand theft auto in 2007. Since coming home, she has worked to support incarcerated and formerly incarcerated people. Her aim is to reduce the nation’s reliance on mass incarceration and ultimately to make prisons unnecessary. She has been celebrated for her legal empowerment work and for the years she’s done on conflict resolution with disadvantaged youth in the wider Gainesville area. Polk has been featured in documentaries and won prestigious awards, but she is often treated as though the crime she committed is the only relevant fact in her life. Even though she has been able to vote since 2018, she has struggled to rent a safe and affordable apartment.
“I used to be proud of myself for learning how to navigate housing. Especially with my charges,” Polk explained, “I literally had to create a social bio and advocate for myself to convince [landlords] to rent to me.” That “social bio” even included a letter of reference from a Florida state representative.
Polk’s situation is not unique.
Nationwide, 45,000 “collateral consequences” regulate the lives of people with criminal records, dictating where they may work, with whom they may live and how they may spend their time, according to a database of laws, policies and administrative sanctions compiled by the American Bar Association’s Criminal Justice Section. Some of these laws are well-known and hotly debated, such as requirements that people convicted of sex offenses live beyond a certain distance from schools and playgrounds. But other rules seem arbitrary. For example, in most states, people with felony records can’t serve on a jury, raising questions about what it means to be tried by a jury of one’s peers. In Illinois, people with felony records couldn’t work as barbers until 2016, when the Legislature amended the Barber, Cosmetology, Esthetics, Hair Braiding, and Nail Technology Act of 1985.
These entries, according to the sociologist and legal scholar Joshua Kaiser of the University of Massachusetts Amherst, are best described as “hidden sentences,” because they are not a part of a formal sentence for a crime, making them easy to overlook. These laws and policies quietly lock people out of the labor and housing markets. And while many legal restrictions are most pronounced during probation or parole, most are permanent, ensuring that each felony conviction is effectively a life sentence.
In policy conversations, people often talk about what leaders aren’t doing to promote better reentry outcomes. But federal, state and local governments are in fact enacting laws that actively make former prisoners’ lives harder. Any discussion of reform should start here.
In Florida, where voting rights were so hotly contested, there are over 1,000 collateral consequences. Formerly incarcerated Floridians can have their housing applications denied without the landlord fearing a discrimination complaint. They may not hold most public offices. There are 361 specific entries restricting access to whole classes of employment, ranging from working as a stockbroker to obtaining a license to work as a masseuse.
People with criminal records live in an alternate legal reality, under a different set of restrictions and responsibilities, and they are not provided the same protections as everyone else, despite being U.S. citizens. I’ve written about this as “carceral citizenship”—an alternate form of citizenship for people with criminal records. Following hundreds of men and women released from American jails and prisons over the past 15 years, I find that people with criminal records 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, or “associating” with people who are known to have committed a crime, even if those people are lovers, parents or close siblings, and even if they live in the same home. Failure to comply with anyone of these rules can mean a trip back to prison.
The challenges of reentry will become even more urgent as politicians on both sides of the aisle come around to reducing the prison population through sentencing reform and parole reform. This means that state and local governments have to get better at reintegrating people after prison—if not for the benefits to the individuals themselves, then to prevent the high recidivism rates that could simply fill prisons back up again.
Some states, such as Michigan, are doing some work to reduce the burden on formerly incarcerated people by allowing them to erase their criminal records after a period of time. But these efforts are not going far enough, because like so many other reforms they are focused solely on nonviolent offenders rather than all formerly incarcerated people, including those who may have committed serious crimes. As such, they leave out of the conversation nearly half of the 19.6 million Americans alive today estimated to have a felony.
In Florida, for instance, the passage of Amendment 4 excluded people convicted of sex offenses from ever having the right to vote. Even in the best of circumstances, Michigan’s Clean Slate reforms require people to live crime-free in their community for a decade before their record can be expunged. This means at least a decade of precarious employment prospects and unstable living conditions. There are no bills under consideration in Florida that would remove barriers such as this, and while a series of bills passed in Illinois expand the kinds of crimes that can be expunged, they exclude people who were convicted of a violent crime. Any serious reform effort will take collateral consequences in mind and seek to address the needs of people convicted of violent crimes.
In my research on the problem of “carceral citizenship,” I have interviewed many people who have struggled to navigate life after prison. The stories of three of these people—Jhody Polk, Joshua Ho and Kilroy Watkins—show the obstacles that society deliberately places in the paths of people who are trying to reintegrate successfully. All three of them have the right to vote, but what does it mean to have the franchise and not be able to rent an apartment? How might the vote matter if you can’t support yourself or feed your family? When is a debt to society paid? If we were serious about restoring citizenship rights or even public safety, we might ask what it means to live under conditions like these.
Jhody Polk grew up in Gainesville, a university town in north central Florida. Her parents divorced when she was young, leaving her to raise her two younger brothers. She finished high school and started college, studying to become a dental assistant, but got a good job as a bail bondsman in an effort to connect with her sibling, Dianca. “I’d never seen him interested in anything other than making money,” Polk said, but Dianca took interest in HBO’s “Family Bonds.” So Polk researched the process, raised the money she needed from neighbors and took every local bail bondsman to lunch. “It amazed me how much of an organizer I was back then,” she said. The owner of a bail bonds shop agreed to take her under his wing. By then she had picked up habits.
Polk smoked marijuana and began taking ecstasy. She was 21 when she met a handsome man who looked like a well-known rapper. “[There]’s no way in hell this guy [is] going to be interested in me, [but] he came full force,” she said. Things were “fun while it lasted.”
Polk and her boyfriend were pulled over, twice, each time with drugs in the car. Her boyfriend decided he was not going back to court. “Now I had to make a decision,” Polk said. “As his bail bondsman, I would either turn him in or [we were] going to finally be Bonnie and Clyde. Of course, I chose the latter.”
She tried to steal her aunt’s car, but she couldn’t figure out how to hot-wire it. She eventually broke into the office of her mentor, but there was no money in the safe and she was caught on camera. Frustrated, all she could think to do was what she remembered from movies: burn the place down. After a night on the run and on the local news, her grandmother persuaded her to turn herself in. She was sentenced to eight years in prison, of which she served seven.
It was in prison that Polk found a new life. She got a job in the law library and became a law clerk. Her work in legal empowerment began with incarcerated women, helping them work on their cases.
When Polk walked out prison in 2014, she received a set of instructions—the conditions of release handed to everyone who walks out of a prison gate. She must find employment and a place to live, a difficult task given her felony record. She must check in with a parole officer. She must submit weekly urine tests. She had a 7 p.m. curfew.
Polk was fortunate to find a job. During her final months in prison, she had worked at a hotel while on work release and the managers liked her. They offered her a full-time job, but she had to decline. Her parole required her to live in Gainesville and the job was in another county. Missing an appointment with her parole officer or breaking her 7 p.m. curfew, even for work, would have been a violation of parole, which could mean a trip back to prison. A quarter of all U.S. prison admissions each year are for parole violations.
Even with solid references from the owners of the hotel, months passed without any callbacks from her applications. She leaned on family and friends. After months of rejection, she learned that a local motel owner was willing to overlook her record. She took a job as a housekeeper, worked her way up to staff manager, and began recruiting other formerly incarcerated women. Eventually, she did the work of a general manager, though she never made more than $11 an hour.
In February 2017, Polk was invited by Desmond Meade to attend a meeting of the Florida Rights Restoration Coalition, the organization that led the charge to pass Amendment 4. She volunteered on her off days for the greater part of a year. She was hired as a part-time organizer in the final months of the campaign and was brought on full time at the River Phoenix Center for Peace Building in Gainesville. She was awarded a SOROS fellowship, which helped her organize a national network of jail house lawyers. She used the platform to launch participatory defense hubs, a model of community organizing that connects people facing charges with students, public defenders and community organizers to help them navigate the court process and mount a robust legal defense.
Despite her successes, Polk has struggled to find a place to live. Her applications for apartments are routinely denied, despite her ability to pay and strong letters of reference, one of which was from a state representative. The places that would rent to her, she says, are barely habitable. She lived in a trailer for four months but had to move—it was overrun by wolf spiders. Another apartment had fleas. When she complained, Polk’s landlord told her she was lucky to have a place at all. Then he told other landlords in the area that Polk was a “difficult tenant.” Polk finished parole two years ago, but she still can’t rent a safe and affordable apartment in her hometown. There’s a criminal background check and landlords have the right to deny the applications of people with felony records.
Joshua Ho had a good career. He excelled in college, winning national debate competitions. His first job as a college graduate was as the assistant director of a university debate team. Twenty years later, he was the debate team director at the University of Michigan. But in 2010, at 43 years old, Joshua was arrested for sending what he called inappropriate pictures to an undercover officer posing as a minor in a chat room. He pleaded guilty to one count of “accosting a child for an immoral purpose” and one count of “possessing or promoting child sexually abusive activity” and given a one- to seven-year prison sentence.
When he was released in 2014, Ho discovered that Michigan’s 659 collateral consequences make life difficult for formerly incarcerated people, no matter what their background. He was sent to the only halfway house in the county with an open bed for people with a sex offense. He had conditions of release like everyone else who leaves prison. He could not cross state lines. He had to get a job. He had to attend drug treatment, despite not having an addiction, and he had to meet with his parole officer each week to submit a urine test. His offense dictated additional conditions, too. He must sign up for the sex offense registry, for life. Most people on the registry cannot live within 1,000 feet of a school. Ho’s parole officer knew he liked to read, so he permitted him to visit a local bookstore, but he wasn’t allowed to spend time on the second floor where people congregated at a bar.
Ho attended therapy, trying to take accountability for his crimes. His therapist connected him with a man who had just gotten out of prison for a similar charge. He helped Ho find a boarding house. This was the only place in the county at the time that would consider accepting someone convicted of a sex offense. The man was like a mentor to Ho, but his parole officer told him he had to end their acquaintance. This was a condition of release: “You may not associate with known offenders.”
Sustainable employment was as hard to find as housing. So few places would hire people on the sex offender registry. Ho decided to strike out on his own. He began working as a freelance writer, producing content for websites. This paid enough to cover his bills while he finished his parole in 2017.
Having spent time in prison and seeing what he described as “the terrible things that happened to so many people in so many ways,” Ho jumped at the chance to get involved in political advocacy. In 2017, he was invited to a meeting with the Michigan Collaborative to End Mass Incarceration. Eventually, he attended a “Clean Slate” conference in Washington, D.C., where he got involved in advocacy on a national level. By then, he was off parole, so he no longer had domestic travel restrictions.
In 2018, Hoe worked on the passage of the Second Chance Act, an array of reforms aimed at federal prisoners who make up 18 percent of the nation’s total incarcerated population. The act’s provisions included a moratorium on the practice of shackling incarcerated women to gurneys as they gave birth, increasing the amount of time off for good behavior people in federal prisons might earn, reforming the federal compassionate release program and a reduction of federal mandatory minimums for drug convictions.
Ho most recently worked on the passage of Clean Slate Michigan, a multibill legislative initiative that automatically expunges the records of people convicted of two or fewer “non-assaultive felonies” provided they remain crime-free for 10 years, or four or fewer misdemeanor convictions for people who live crime-free for seven or more years. Expungement, in the legal sense, means to destroy or seal a state or federal record, keeping it out of the public domain. People who have had their records expunged may apply for jobs or housing, or access government benefits, like federal grants and loans for school without the fear of being rejected because of their criminal record.
Ho hosts a well-regarded podcast where some of the biggest names in criminal justice reform join him for conversations on law and policy. Despite his rising stature in the reform community, he still has what he calls “uncomfortable moments.”
“A lot of legislators have a hard time getting used to working with someone like me,” he said. He spent years in therapy, working to take responsibility for the harm he’s caused while working through the sexual trauma he experienced as a child. “This isn’t an excuse for my behavior,” he says, reminding me of the importance of accountability, but a great deal of his work involves helping policymakers get past the “victim-offender binary,” meaning the inability to acknowledge that people who perpetrate crimes are often victims of violent crime themselves.
This empathy gap on the part of lawmakers means that reforms in Michigan and other states, while helpful for hundreds of thousands of people convicted of nonviolent crimes, will ultimately not benefit people like Ho or Jhody Polk, who were convicted of violent offenses and are trying to contribute to society.
Despite his success in the free world, Ho is still left with a nagging reality. He is paying off $20,000 in court fines and fees, including a $6,000 fee for wearing an ankle monitor while he was on supervision. He expects it will take him years to clear his legal debts.
Kilroy Watkins’ contact with the police began early. He was 15 the first time Chicago police drove him from his home on the city’s South Side and dropped him off in Bridgeport, a Chicago neighborhood that was notorious as the place where three young white men nearly beat a 13-year-old Black boy to death in 1997.
Watkins was 21 when he was picked out of a police lineup and charged with two armed robberies and the murder of a rival gang member. Police said Watkins ordered his beating and when the rival tried to escape, one of Watkins’ fellow gang members shot him. But at the pretrial hearing in 1992, Watkins claimed he was the victim of police torture, and that he didn’t commit the crime.
He said homicide detectives kept him awake in the interrogation room for 36 hours, coercing his confession. But even though a teenage witness for the state recanted her testimony in court, the judge sided with prosecutors and denied Watkins’ motion to suppress his statement. He was convicted of first-degree murder and sentenced to 30 years in prison.
Watkins became a law clerk. He fought his own case from prison, filing motions to “discover” new evidence like FOIA requests regarding detectives’ misconduct. And he worked with other incarcerated people who claimed detectives tortured them, too. Ultimately, evidence linked the detectives in Watkins’ case to the infamous “Midnight Crew,” a notorious group of officers who would be implicated in the torture and forced confessions of more than 200 Black men. The city of Chicago paid out million-dollar settlements to police torture victims. In light of this evidence, Watkin’s case was referred to the Illinois Torture Inquiry and Relief Commission (TIRC). By the time he was approved for parole he had been in prison for 25 years.
On January 25, 2019, Watkins walked out of the Laurence Correctional Institution an almost free man. He was given a train ticket, $10 and a referral to St. Leonard’s ministries, a residential prisoner reentry program on the west side of Chicago. Watkins will remain under state supervision until 2022, checking in with his parole officers, abiding by a curfew, peeing in a cup and staying away from “known offenders.”
Watkins excelled at St. Leonard’s and was eventually referred to a sister organization St. Andrews Court, a housing program that would use a grant from the Illinois Department of Corrections to cover his rent for up to one year. He found a job as a manual laborer at a chocolate factory. One of his co-workers died from Covid-19. Because he is 60 with preexisting medical conditions, Covid-19 could be a death sentence for him, so he had to leave his job.
St. Andrews’ one-year deadline approached. Even though the TIRC was reviewing his case, Watkins’ murder conviction continued to haunt him as he looked—in the middle of a pandemic—for a new place to live. There were so few places to turn. In the best of times, there aren’t enough housing organizations to meet the needs of the 17,000 people who return from prison to Chicago each year, and most organizations that do help typically do not provide services for people convicted of “serious crimes,” like murder. Despite these struggles, Watkins continued to work on reform campaigns and marched during this summer’s protests against police violence.
Over the years, the overwhelming majority of the people I’ve followed who just got out of an American jail or prison would say to me that they felt compelled to “give back” to their community. I wondered why so many formerly incarcerated people worked so hard to change the criminal justice system, and especially why survivors of police torture, like Watkins, advocated for change that would benefit others while their own lives and livelihoods were at risk. I asked Alice Kim, a longtime activist in Chicago and the Director of Human Rights Practice Lab at the Pozen Family Center for Human Rights at the University of Chicago. She said, “Many people who are coming out want to have a way of being connected [and] to impact younger generations. They see themselves in the young people.” But, just as important, this kind of activism offers a sense of community, or in her words a “political home.” These are people that we’ve closed doors on, people, we’ve “failed to believe.” These are the same people working actively to bring about their vision of positive social change.
Watkins now continues his work on the case to clear his name and on the long campaign to end police torture, but he does this work from the spare bedroom of his ex-girlfriend’s house—the only place he could find to live in the city he calls home.
Ten months after Watkins’ parole, the TIRC issued its findings. While they noted “great reservations” about the credibility of Watkins’ testimony, they wrote that there was “sufficient credible evidence” that Watkins’ confession was procured through torture. They found the “numerous complaints” against the detectives “persuasive,” just like Watkins said, especially the complaints about confessions they procured from people that were “provably false,” like one man who was in jail at the time of the alleged crime for which he confessed. The “preponderance of the evidence,” the commission concluded, merited a referral for judicial review.
In the meantime, Watkins still has a felony record. He still can’t find a job, and he still can’t rent an apartment. He still can’t cross state lines or associate with “known offenders,” and he must still pee in a cup each week for a probation officer or risk reincarceration.
What is happening to Jhody Polk, Joshua Ho and Kilroy Watkins, and tens of thousands of people like them, is the misunderstood legacy of the 13th and 14th Amendments, which abolished slavery and are commonly heralded for bestowing full constitutional rights on all U.S. citizens. But the due process clause in each amendment effectively does the opposite, suspending the rights of citizenship for people found guilty of a crime and, in some cases, for those who are simply accused.
Whether for narcotics, sex, or murder charges, formerly incarcerated people are locked out of political and economic life. No matter how long ago the offense occurred, the lengths they’ve gone to repay harms they may have caused, or if questions persist about their guilt. Put differently, people with felony records never fully regain their citizenship. This is not an accident, but the direct result of policies we’ve enacted that allow us to treat formerly incarcerated people as if they aren’t citizens at all.
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