The Real Cost of Prisons Weblog

Ask The Expert

Jeff Rakover interviews Maurice Emsellem, the National Employment Law Project's Policy Director. Emsellem discusses the challenges that individuals with criminal or arrest records face in gaining employment and argues that these challenges actually jeopardize public safety by contributing to recidivism. He also details advocacy organizations' efforts to make state and local laws more fair and the resources available to leaders who wish to address this problem.
Best Practices

Across the country, fair-minded state and local leaders are passing legislation to make hiring practices more equitable. The city of Boston, New York State, and California offer examples of rules and laws that other states could follow.

Issue Briefing
Americans with criminal and arrest records continue to be punished long after serving their time. The Center for American Progress's recently released report, "From Poverty to Prosperity: A National Strategy to Cut Poverty in Half," shows that recently released prisoners often face employment and housing barriers and are cut off from crucial government benefits.

These barriers in turn lead to poverty or continued poverty not only for prisoners, but for their families as well. Each year 600,000 mostly poor prisoners with severely limited options return to communities, and it is not surprising that two-thirds will be re-arrested within three years and about half will return to prison.

The barriers that former prisoners and people with records face are detrimental both in principle and in practice. An increasingly punitive, rather than rehabilitative, focus in our nation's criminal justice system has done little to reduce crime, and incarceration rates are at a historic high. We spend 60 billion dollars a year on corrections, while doing little to halt the high recidivism rates. Meanwhile, making a single mistake can result in a lifetime of consequences that hinder even the most determined attempts at self-betterment.

People who have been incarcerated and others with criminal and arrest records often lack access to one of the prerequisites for successful reentry into their communities--employment options. Employment opportunities increase the likelihood that former prisoners and people with records will be able to contribute to the wellbeing of their family members and reduce the possibility of poverty for their children. And research clearly shows that former prisoners who are employed are less likely to end up back in jail. Employment also, then, benefits public safety.

The Re-Entry Policy Council cites data from the U.S. Probation and Pretrial Service Systems indicating that people convicted of federal offenses are more likely to complete community supervision without violations if they are employed. The data also shows that conditional release under community supervision was seven times more likely to be revoked if the individual was unemployed throughout the term of supervision.

Yet the federal government, states, and localities simply do not do enough to improve the life chances of former prisoners. More than half of states actually facilitate discrimination against former prisoners by allowing both government and private employers to consider arrest and convictions records as reasons to deny employment without any consideration of the nature of the underlying crime.

According to the National H.I.R.E (Helping Individuals with Criminal Records Reenter Through Employment) Network, thirty-seven states even permit all employers and occupational licensing agencies to ask about and consider arrests that never led to conviction in making employment decisions, even though this contradicts the idea that people are presumed innocent until proven guilty. The same report from the H.I.R.E Network shows that thirty-six states have no standards governing the relevance of criminal convictions in public employers' hiring practices, and 45 states have no standards for private employers.

Employers' ability to discriminate against those with criminal records affects the economic opportunities of one in five adults in the U.S. One survey found that 40 percent of employers reject a job application that indicates a criminal or arrest record outright without having specifics on the type of the offense and when it occurred.

Fortunately, the efforts of organizations such as the National Employment Law Project, the Sentencing Network, the National H.I.R.E Network, and the Re-Entry Policy Council, together with the choices of fair-minded state and local leaders, are resulting in improvement for the life prospects of individuals with arrest and criminal records who are committed to being productive, law-abiding members of their communities.

The National H.I.R.E Network reports that 10 states now prohibit all employers and occupational licensing agencies from considering arrests if they did not lead to conviction, 14 states have regulations governing public employers' consideration of criminal records, and five states have standards governing private employers' hiring practices. Gov. Ruth Minner of Delaware signed legislation in 2004 that passed unanimously in the State House and lifted a ban on occupational licensing for individuals with felony conviction for over 35 professions. And last year, former Governor Jeb Bush issued an Executive Order in Florida mandating a comprehensive review of ex-offender restrictions for jobs in all state agencies. He gave his staff 60 days to comply. Now, Florida Department Corrections Secretary Jim McDonough is shifting the system's emphasis toward rehabilitation with a new focus on drug treatment and job training. He has set the goal of reducing the state's recidivism rate to one in 12 by 2012, down from one in three today.

Some cities are enacting even stronger employment reforms. A Boston City Council Ordinance that took effect in July 2006 mandates that the city and its vendors can not conduct criminal background checks as part of their hiring processes until job applicants are found to be "otherwise qualified" for the position. The campaign to pass the ordinance was spearheaded by a community coalition called the Massachusetts Alliance to Reform CORI (Criminal Offender Record Information). Massachusetts' criminal record system includes charges that never led to conviction and is notorious for being difficult to follow and including inaccuracies.

A campaign to "ban the box" in San Francisco resulted in the removal of a requirement that criminal history information be provided in initial job applications for public employment. Criminal histories are considered, but only after an applicant is considered a serious candidate and the employer can weigh his or her qualifications fairly. Both Boston and San Francisco have exceptions for certain professions.

Efforts to reform laws and regulations that create unfair barriers to employment are still in the early stages--if they exist at all. As legislation germinates, it is important for legislators and advocacy groups to look at employment access in context with job preparation programs that help with employment searches and skills.

Reentry challenges don't end with employment. Prisoners and former prisoners face challenges that range from the denial of voting rights, food stamps, and TANF benefits to difficulty accessing high-quality treatment for drug addictions. The Center for American Progress' Task Force on Poverty outlines many of the problems that make successful reentry more difficult, and also offers policy recommendations, including:

1. States should develop comprehensive reentry services. State efforts should be guided by state-level Offices of Reentry Policy and state reentry commissions. Commissions should be charged with developing policies and programming across agencies aimed at reintegrating former prisoners into their communities with full-time, consistent employment, and developing a continuum of services and supports from prison to community.
2. Mayors and county executives should review their jurisdiction's reentry services and policies, and communities with a significant reentering population should establish local reentry councils. Local reentry councils can complement the work of state commissions with an emphasis on local service delivery. Councils should bring together community and neighborhood groups, as well as local police, to create individualized plans for each returning prisoner to minimize recidivism risks and bolster community security.
3. The federal government should expand its reentry efforts, with an emphasis on research, technical assistance, and interagency coordination. A helpful first step would be passing the Second Chance Act, which would provide demonstration and mentoring grants to states and nonprofits, create a National Offender Reentry Resource Center, establish a federal interagency reentry Task Force, and enhance many current reentry programs.

The National H.I.R.E Network, the Re-entry Policy Council, and other organizations have compiled more specific sets of recommendations. The Urban Institute offers extensive resources related to prisoner reentry, and the National Employment Law Project's Second Chance Labor Project includes up-to-date commentary on recent policy developments in employment practices.

Best Practices
Across the country, fair-minded stateand local leaders are passing legislation to make hiring practices more equitable. The city of Boston, New York State, and California offer examples of rules and laws that other states could follow. Boston's ordinance differs from that of other cities in that it applies not only to city employees, but also to city vendors. New York State's laws bar public employers, private employers, and occupational licensing agencies from denying licenses or jobs to people with criminal records unless the conviction is directly relevant to the job. And California's consumer protection law limits the ability of background check screening firms to report information to employers that would unfairly endanger employment prospects for people with records.

Boston City Council Ordinance

A Boston City Council Ordinance passed last year mandates that the City and its vendors can not conduct criminal background checks as part of their hiring processes until the job applicant was found to be "otherwise qualified" for the position. The protection helps to ensure that employment decisions are based on the skills and talents of candidates rather than criminal convictions that do not directly relate to job responsibilities, with the exception of certain classes of workers like law enforcement personnel.

The ordinance also requires that employers consider the age and seriousness of the crime when making final employment decisions and grants an appeal right for those denied employment because of criminal records. The City has also revised its job application process by taking the question about criminal convictions off the initial application form.

New York State

According to information compiled by the Sentencing Project, New York State Human Rights Law bars employers and occupational licensing agencies from asking about or using arrests that never led to conviction in hiring decisions. Public employers, private employers with more than 10 employees, and occupational licensing agencies also cannot refuse to hire a person with a conviction unless the conviction is job-related or presents a safety risk.

When considering individuals with criminal convictions, employers are to consider: the applicant's ability to perform his responsibilities, public safety, the time of the offense, the age of the person when the offense was committed, the seriousness of the offense, and information regarding the individual's rehabilitation or good conduct. These protections exclude law enforcement personnel and certain other classes of employees.

California

California's Investigative Consumer Reporting Agencies Act, like the federal Fair Credit Reporting Act, applies to the private screening firms that conduct criminal background checks for employers. California goes further than the federal law by preventing arrest information from being reported to an employer unless the case was verified in the last 30 days and also precluding convictions that date back more than seven years from being reported.

California's law also requires the worker to receive a copy of the criminal background check along with the employer and includes critical procedures to challenge the accuracy of the report.

If you would like more information on how your state can implement policies that create greater employment opportunities for people with criminal records or arrest records, please contact us at stateprogress@americanprogress.org.

Ask the Expert
Jeff Rakover interviews Maurice Emsellem, the National Employment Law Project's Policy Director. Emsellem discusses the challenges that individuals with criminal or arrest records face in gaining employment and argues that these challenges actually jeopardize public safety by contributing to recidivism. He also details advocacy organizations' efforts to make state and local laws more fair and the resources available to leaders who wish to address this problem.

Highlights:

"When you talk to city officials, human resources folks...for them, it's really a win-win situation because they're all about identifying the most qualified candidates for the job, and [they] don't want to artificially eliminate folks from consideration especially in big cities where there are large populations of people with a criminal record."

"[The] mentality dates back to a criminal justice model of screening folks. So you get the rap sheet and you want to know everything about the person. But really this is not a criminal justice background check, this is a background check for employment screening purposes. [There] needs to be more of a relationship, more of a connection, between the kind of information you're asking about the person's record and that particular job."

"[If] you're interested in the employment side of things...start by trying to get a handle on the way that the policies are set up either at the city level or the state level, even the federal level, to deny people with records jobs, just to have a basic understanding of how broadly the laws now deny folks with records employment. And from there, it's not a lot to find different handles to get at that issue...[Really, this work is just] about creating a more fair process to get at the more extreme barriers to employment."

http://www.americanprogress.org/projects/stateprogress/news/060407/index.htm
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