Mass Incarceration vs. Correction: Talking Tough vs. Actually Being Tough on Crime This Election Year

GavelIt is an election year. That’s a beautiful thing. Or is it?

Election years give you and me–the people–an opportunity to assess the record of elected officials and voice our pleasure or displeasure via our vote.

Election years also come saturated with spin, devastating, partially true direct-mail campaigns, and the over-simplification of America’s most complex issues.

Given that reality, elected officials tend to talk tough on crime instead of actually being tough on crime.

Talking tough involves some combination of (1) highlighting an incident where an egregious crime took place; (2) demonizing the offender or group of possible offenders; and (3) broadly imposing harsher sentences or more prison time for all individuals who commit a similar offense.

For example, there are scores of heartbreaking stories of homicides in Chicago. The offenders may not be known, but they might all be broadly labelled as felons or gang-bangers. The tough talk would then be, “we have to make sure that criminals and gang-bangers serve more hard prison time if they are caught with a gun.”

This tough talk makes voters think a candidate will make their communities safe--and who doesn’t want to vote for someone who will make their community safer? As a result, elected officials are rewarded for “talking tough” at the polls, and more and more criminal justice policies are enacted that make it easier to lock more people up and lock them up for longer.

Conversely, candidates or elected officials who try to unpack our complex criminal justice system and present common-sense solutions that might actually reduce crime are branded as “soft on crime.”

The problem with this is that talking tough on crime doesn’t actually make our communities safer. In fact, despite the declining crime rate across the nation, decades of evidence clearly indicates that these talking-tough on crime policies have led to:

  1. The mass incarceration of millions of men and women.
  2. An unacceptable increase in crime in our communities.
  3. And billions more in wasteful spending.

This is what ‘talking tough’ on crime boils down to when you remove the spin and oversimplification. Can you imagine voting for a candidate who stands for any of the above?

Well, we have. We all have, and doing so has made us less safe, torn apart millions of families, and crippled our state and federal budgets, respectively.

Here are the facts. In the last few decades:

No matter what your political affiliation, we can all agree that these outcomes are unacceptable.

That’s why this year, and every other election year, instead of supporting candidates who simply “talk tough” on crime, let’s support candidates who are courageous enough to unpack our complex criminal justice system and actually be tough on crime.

The only way to be tough on crime is to enact policies that actually reduce crime and make our communities safer in both the short and the long term. Doing so prevents the unnecessary crippling of communities, keeps families together, improves our global competitiveness, and saves states millions.

Now doesn’t sound like a better electoral platform?

The good news is this we don’t have to wait to make this a reality. All lawmakers need do is invest the money already dedicated to failed policies in evidence-based policies that actually reduce crime instead.

In fact, according to the Urban Institute, in the last 10 years, 17 states pivoted from just talking tough on crime to actually being tough on crime by taking bipartisan, data-driven steps to do just that.

Below are the several ways in which states are actually being tough on crime:

  1. Increasing access to problem-solving courts (e.g. courts for offenders with drug abuse problems or mental illness).
  2. Making decisions based on risk assessment tools to assess who can finish their sentence on correctional supervision.
  3. Reducing sentence lengths for nonviolent crimes, changing mandatory minimum laws, and reclassifying offenses.
  4. Streamlining and expanded parole eligibility to shorten stays, increase access to needed treatment programs, and address delays in parole processing.
  5. Expanding “Good Time” incentives for prisoners who successfully complete anti-recidivism programs.
  6. Investing in residential substance abuse treatment programs.
  7. And measuring the progress of reforms over time to ensure accountability.  

These justice reinvestments can save states $4.7 billion over 10 years and make communities across the nation substantially safer by reducing recidivism.

Although it is tempting, and maybe even electorally beneficial, to talk tough on crime, we can’t afford any more talk. Let’s support candidates and elected officials who are courageous enough to actually fix problems in our criminal justice system so we can actually make our communities safer and save taxpayers millions this year.

 

Mandatory Minimums: Too Costly and Too Ineffective

Nothing is more precious than freedom. Nothing.

So when we, as a society, enact legislation to address societal problems that would deprive certain individuals of their freedom, we must first be certain that (1) it is necessary, (2) it does not have crippling unintended consequences, and (3) it properly takes into account the communities’ desires and the historical context in which the proposed solution operates.

SB 1342—a bill awaiting a vote by the Illinois General Assembly–satisfies none of these preconditions.

By all accounts, SB 1342 is a well-intentioned bill that proponents hope will address the problem of gun violence. The bill would strip judges of their discretion in sentencing persons convicted of gun possession. Regardless of the criminal intent of the defendant or circumstances surrounding the case, judges would be required to impose “mandatory minimum sentences” on such defendants.

And, SB 1342 does not simply increase mandatory minimum sentences for gun possession; the bill would actually create a new mandatory minimum one-year prison sentence for people without any prior convictions whose only mistake is having an unloaded gun with ammunition nearby and no Illinois gun card.

Empirical data unequivocally show that mandatory minimum sentences for gun possession do not work. A meta-analysis of 29 separate studies of mandatory minimums by Northwestern Law’s Bluhm Legal Clinic conclusively found that “there is no credible evidence that mandatory sentences lead to crime reduction.”

Moreover, there are a myriad of alternative, proven ways to address gun violence that do not require imprisoning everyone who is “caught” having a gun on their person. For example, although youth are responsible for a significant percentage of gun crimes, that can change. Study after study plainly show that giving young people a reason to hope, meaningful access to jobs, and providing them with mentorship opportunities leads to a dramatic reduction in gun violence.

Research also conclusively shows that increasing the number of police on the streets in high-crime neighborhoods during periods when shootings happen most yields a significant decrease in gun violence.

SB 1342 also has several absolutely devastating and unintended—albeit foreseeable—consequences for the State of Illinois and the innocent victims of violence it is supposed to protect. First, the bill could actually make violence in our communities worse. SB 1342 would take away the community-based punishment sentencing option that judges now have and require them to give everyone prison time. This massive uptick in incarceration would likely make communities even less safe. Studies show that individuals who are incarcerated are more likely to commit another crime (recidivate) than individuals who serve community-based sentences; incarceration often imposes a lifetime sentence of unemployment, lack of housing, and “crime schooling” on the individual.

Second, implementation of SB 1342 will cost Illinois taxpayers over half a billion dollars over ten years. Even if Illinois wasn’t in the midst of a fiscal crisis, half a billion dollars is an exorbitant amount of money to spend on implementing a law we already know won’t work and will unnecessarily take people’s freedom away.

Third, by stripping judges of their discretion, SB 1342 would force judges to blindly and unforgivably deprive innocent victims of violence of their freedom. An elderly woman living in fear and carrying a loaded gun to protect herself would have to receive a minimum one-year prison sentence simply because she was licensed in Indiana (rather than in Illinois).

Fourth, SB 1342 would destroy even more families of color. Studies consistently show that people of color are more likely to be arrested and convicted than their white counterparts, despite substantially similar levels of engagement in criminal activity. If this bill were to pass, even more people of color would be sent to prison, uprooted from their families, and trapped in the vicious cycle of underemployment and poverty.

Finally, and significantly, the innocent victims of violence that this bill hopes to serve have spoken clearly: they do not want this bill. Hundreds of individuals, community organizations and religious institutions have formally documented their opposition to this bill and all its amendments.

This fierce opposition may be in part because Illinois already has multiple mandatory minimum laws relating to gun possession in place. Moreover, despite being place for years, these mandatory minimum laws have not worked. In fact, since the most recent of these laws was enacted on January 1, 2011, gun violence has significantly increased.

Strangely, as Illinois hopes to diminish gun violence, state legislators have repealed laws requiring gun registration. This despite the fact that gun registration laws are largely seen as an effective way to address one of the roots of gun violence: the proliferation of illegally purchased firearms (gun trafficking).

SB 1342 is unnecessary, ineffective, and has significant unintended consequences. Moreover, it ignores the outcry of community members and the track record of similar laws. It is clear that Illinois and its communities cannot afford or justify the deprivation of freedom required by SB 1342. 

 

Reframing Justice: Hiring the Best Candidate for the Job

Historically, when men and women with criminal records applied for jobs with the State of Illinois, they were asked on the initial employment application form if they had ever been convicted of a crime. If they answered “yes” or checked the “yes” box on the form, they were usually prescreened out of the general applicant pool and never truly considered for the position sought. No matter how educated, how qualified, or how much of an asset these individuals would be to our state, they were not considered, simply because they checked “yes” in response to a question regarding their conviction history. And even if the applicant survived that prescreening, qualified men and women seeking employment were still often rejected without consideration of factors like how long ago the case occurred, how serious the offense was, the circumstances surrounding the offense, and the relatedness of that offense to the job sought by the applicant. As a result, thousands of hardworking and law-abiding men and women in communities across the state were denied positions each day despite being qualified, arguably the best fit for the job, and presenting substantially no more of a risk to public safety than the general population who have not been convicted of mistakes made in their past.

Thankfully, as of October 3, 2013, that will no longer be the case. 

Governor Patrick Quinn issued an administrative order that requires agencies under his jurisdiction to assess state job applicants’ credentials before inquiring into their criminal records (a process often called “Banning the Box”), and then, if the applicant does have a criminal record, to consider common-sense things like the amount of time that has elapsed since the offense, the gravity of the offense, and the relationship of that offense to the job sought when determining the individual’s fitness for a particular position. In doing so, Governor Quinn dramatically changed the state’s hiring process to ensure that men and women with criminal records are not automatically—and unwisely—denied access to employment.  

The practice of Banning the Box has been thoroughly vetted by states and employers. Nationwide, Banning the Box has been implemented in more than 40 jurisdictions and nearly a dozen states. One such jurisdiction is the City of Chicago, which banned the box from its employment applications several years ago. Moreover, this practice was recommended by the Illinois Poverty Commission, the recently promulgated guidance from the Equal Employment Opportunity Commission, and, most recently, by the Illinois Employment Restrictions Task Force, which was charged with assessing the employment barriers that confront those who have made past mistakes to determine if there are less restrictive alternatives to these policies and statutes that would not unduly harm Illinoisans. 

Ban the Box policies are frequently misunderstood by the public, perhaps because the media does not present the whole picture. These policies do not give people with criminal records a total pass. Right now, qualified men and women with past mistakes are never given a shot to be hired; ban the box simply gives these men and women the chance to take care of themselves and their families that they have earned and deserve. Their criminal histories are weighed at the point in the hiring process where they have been found to be qualified for and a strong candidate for the job. Then employers weigh whether their criminal history makes them unsuitable because of the substantial risk they may pose to the public or their employees.  

Delaying employment-related criminal record inquiries gives job applicants the personal contact with an employer needed for them to mitigate or erase the negative stereotypes that an employer may hold regarding those with criminal records. In fact, employers who have this personal contact with applicants are shown to be more than four times more likely to call back applicants with criminal records.

Without question, this order will remove unnecessary barriers to employment for the nearly four million men and women in our state with criminal records. Doing so yields tangible benefits for not only the man or woman who made a mistake in their past; it benefits their children, their family, their community, improves public safety, and saves our state money. Nearly fifty percent of the men and women in our communities with criminal records will re-offend (called “recidivism”) within three years unless they are able to acquire stable employment. If they are fortunate enough to acquire employment, the recidivism rate falls to only 8%. Accordingly, the benefits of sound policy that allows men and women in our communities more opportunities to be self-sufficient and take care of their children and saves our state millions in criminal justice costs associated with recidivism are clear. Just as important, waiting to inquire into a man or woman’s criminal record helps applicants avoid the indignity of being rejected from a job after job without ever getting a shot because of the stigma associated with those who made past mistakes. It also rewards those who work hard to overcome that stigma and rejection by pursuing further education, having no further contact with law enforcement, and being exemplary parents and community members.

Any policy that does any of those things needs to be congratulated. This policy does all of them. And for that, we commend the State of Illinois for its leadership in ensuring that the state has a just hiring policy that opens doors that are too often slammed shut on the faces of hardworking and law abiding men and women who have earned a fair shot. 

Ending Lifetime Consequences and Restoring Hope for People with Convictions

MailboxArticle after article, and report after report after report, prove beyond a reasonable doubt that our nation’s criminal system (justice intentionally omitted) fails many. It destroys budgets, communities, and lives while doing nothing to make us safer. Moreover, there is no shortage of ideas that would bring justice back to the criminal system. The issue is one of political will.

No elected official wants to be accused of being “soft on crime.” Unfortunately, the frightening result of that phenomenon is that, no matter how many communities, budgets and lives are destroyed by our failure to fix the system, there is never any true reform.

But, I’m not going to point fingers at elected officials, belabor the merits of a recent report, or relay my shock with a recent statistic. Instead, I will talk about what life is like for the men and women who are forced to endure poverty, hardship, and discrimination every day because of our inaction. Today, I will talk about one thing: hope. 

What Hopelessness Looks Like

I serve individuals with criminal records. Among other things, I go to various community sites throughout the state and teach the men and women in attendance how to pursue various legal remedies that might help them overcome some of the lifetime barriers that prevent them and their children from having even the bare necessities in life.

Illinois has laws and policies currently on the books that, for some men and women with criminal records, impose lifetime bans to jobs, occupational licenses, or housing. These barriers clearly affect the ability of an individual with a conviction to obtain jobs and a stable income.

To be clear, the attendees understand that the only reason I am there is to assist them in overcoming these barriers. Yet, too often, before I can even discuss these remedies, men and women of all ages get up and walk out. This isn’t after they hear all the remedies available and determine their records render them ineligible, this is before I even get started. To me, there is no greater evidence of hopelessness than that.

When people leave, I stop the workshop and rush out to catch the person leaving. Invariably, when I ask people why they’re leaving, they say that they don’t think I can help them. When I insist that I can then I am often forced to answer questions like “do you know what it feels like to be rejected by employer after employer” or “landlord after landlord” because of a mistake made over a decade ago? Attendees ask me if I know what it is like to have to tell their sons and daughters that they “can’t go to a good school” like their friends, have any new clothes for the upcoming school year, or participate in a class trip because their parent's past mistake is keeping them from getting a decent job. After decades of rejection, indignity, and frustration, even strong, hard-working, and dedicated people begin to lose hope. The sort of hopelessness and detachment that results from these lifetime consequences increases the likelihood of criminal behavior (or reengaging in criminal behavior -called recidivism) and the traps generations in poverty.

Certificates Bring Hope

Thankfully, after admitting that I do not know what it is like to be rejected by every employer and landlord outright because of past mistakes, I can offer a flicker of hope in the form of remedies called “Certificates of Good Conduct” and “Certificates of Relief from Disability.” These certificates, which are available in some form in states like New York and are currently being introduced in D.C., allow men and women with convictions an opportunity to prove that they deserve to overcome some of these lifetime barriers to occupational and educational opportunities, while providing them with a tool to demonstrate their character to skeptical landlords. Certificates also provide employers who hire certificate holders with immunity from negligent hiring liability.

Now, thanks to the leadership of Rep. Esther Golar and Sen. Mattie Hunter, the support of  Sen. Tom Johnson, and input from Rep. Dennis Reboletti, House Bill 5771 (H.B. 5771), which awaits the governor’s signature, would allow for even more men and women in Illinois to have that flicker of hope. Specifically, H.B. 5771 will eliminate the ban on petitioners with two convictions or more from applying for a Certificate of Good Conduct or Certificate of Relief from Disability, and lower the number of years a person must wait after they serve their time and pay their debt to society before they can try to get a Certificate of Good Conduct from three years to two years.

Although H.B. 5771 makes certificates available to more men and women with convictions, it does not make them available to everyone with a conviction. Certificates are not available to those who have committed class X felonies, any crimes requiring registration (e.g. sex crimes), or crimes where the victim suffered serious bodily injury. Moreover, certificates are not given away frivolously. An individual seeking a certificate must clearly and convincingly prove to a presiding criminal court judge that they deserve them during a hearing. Yes, all that makes certificates hard to get.

However, certificates also do something else—they give men and women with convictions a chance to be acknowledged for their hard work and rehabilitation. They give dedicated mothers a chance to tell their stories and be heard. They give fathers who have done the right thing a chance to be recognized for all the hard work they’ve put into keeping their lives on the right track and being exemplary parents. Finally, and most importantly, certificates give deserving men and women in our community a chance to hope again. And to the men and women whom I have to convince to stick around during my workshops, there is nothing more precious than that.


This blog post was coauthored by Justin Jacobs.

Criminal Records Should Not Bar People from Subsidized Housing

Open doorFor over a year, three minor criminal offenses have kept Ms. K – a single working woman with mental health disabilities – out of housing that would otherwise bring her closer to both her daughter and free transportation to work.  Considering that her most recent offense – theft of a library book – took place over four years ago, it is no wonder that Ms. K’s employer entrusts her to handle confidential financial documents. And yet, her criminal record remains a relentless obstacle to federally subsidized housing.  

To help people like Ms. K, the U.S. Department of Housing and Urban Development (HUD) has taken the first steps toward what advocates hope will be a long-term plan to increase housing access for people with criminal records.  In two letters issued over the past year (one last June and the other last month), HUD Secretary Shaun Donovan reminded public housing authorities and project owners of the discretion they have to admit people with criminal records in the federally subsidized housing programs.  Contrary to popular belief, a person is not barred from these programs simply because of a past criminal record.  Rather, as Secretary Donovan recognized, “people who have paid their debt to society deserve the opportunity to become productive citizens and caring parents, to set the past aside and embrace the future.”   

These reminders are sorely needed, as the Shriver Center’s “When Discretion Means Denial” report has shown. For example, more than half of the written admissions policies in Illinois gloss over the fact that applicants could—and in some cases, have the right to—present mitigating circumstances after being denied based on criminal history. Additionally, PHAs and project owners do not consistently follow HUD regulations requiring them to consider the time and nature of a public housing applicant’s conduct.  

Noting that upwards of seven and half a million people leave prisons or jails in the United States each year, Secretary Donovan acknowledged that many intend to return to their families, some of whom reside in federally subsidized housing.  Policies that ban people with criminal records from these housing programs not only prevent family reunification, but they also put people at greater risk of recidivating, thus straining the community.

To prevent these results, Secretary Donovan urged PHAs and project owners to engage in thoughtful consideration of various factors. In particular, he noted, these housing providers should “seek a balance between allowing ex-offenders to reunite with families that live in HUD subsidized housing, and ensuring the safety of all residents.”  

To make this type of balancing a reality, however, HUD needs more than a strongly worded letter. HUD should take active steps to ensure that discretion does not become synonymous with denial.  For instance, PHAs and project owners need specific guidance on the limited value of relying on arrest records or unreasonably long look-back periods. This is especially important considering the significant risk that use of these screening devices violates the Fair Housing Act because of their disparate impact on minority applicants.  Without additional affirmative steps, hard-working people like Ms. K will not be able to access the housing they need to pull themselves away from their past and out of poverty.

This post was coauthored by Shannon Flaherty.

 

When Discretion Means Denial for People with Criminal Records in Federally Subsidized Housing

When the Secretary of U.S. Housing and Urban Development (HUD) recently urged public housing authorities (PHAs) to use their discretion to admit applicants with past arrest and conviction records rather than simply exclude them from subsidized housing, we wondered: what happens when discretion means denial?

In a report entitled “When Discretion Means Denial: The Use of Criminal Records to Deny Low-Income People Access to Federally-Subsidized Housing in Illinois,” the Shriver Center reviewed the criminal records policies of nearly all the public housing and Housing Choice Voucher programs in the state as well as over 100 properties participating in the project-based Section 8 program. Concentrating on areas where HUD give PHAs discretion to admit applicants with criminal records, the report identifies four areas where PHAs and project owners are most likely to abuse their discretion. The report also urges HUD to align its programs with its “belie[f] in the importance of second chances” by taking affirmative steps toward ending each of these abusive practices.

Many PHAs and project owners fail to set reasonable limits on how far back to look when considering an applicant’s criminal history.  Even though federal law requires PHAs and project owners to narrow their inquiries to criminal activity that occurred during a “reasonable time” before screening takes place, many admissions policies often give them license to look back as far as they want.  These policies often:

  • Have no time limits and simply deny admission to applicants who have certain types of criminal history in their backgrounds.  Without a specific look-back period as a guide, many applicants with criminal records do not bother applying.
  • Impose permanent bans on people who have been convicted of certain criminal activity. Given that the federal government has chosen to impose permanent bans in only two narrowly tailored instances, however, permanent bans in federally assisted housing should be sparsely used in only the most compelling circumstances.
  • Use excessively long look-back periods, which essentially function as permanent bans. In two particularly egregious cases, the written admissions policies actually allow owners look back 99 years and 200 years, sending a strong message to people with criminal records—and their families—that they are not welcome in federally subsidized housing.
  • Rely on minimum look-back periods rather than engage in the usual practice of setting maximum look-back periods. As a result, applicants are deprived of any notice of how long their criminal records will prevent them from accessing federally-assisted housing.

PHAs often rely on arrests as sufficient proof of criminal activity, even where the charges were ultimately dismissed and the arrests never led to convictions. Federal law allows PHAs to deny admission to applicants who have engaged in “criminal activity.” But instead of determining whether criminal activity actually occurred, many PHAs substitute a criminal arrest for criminal activity. This administrative shortcut often deprives people of housing when no wrongdoing may have ever taken place.  Moreover, its effect on reducing crime is questionable. What is certain, however, is that arrest record screening impedes the fair housing choice of racial minorities disproportionately represented in the criminal justice system and therefore highly suspect under the federal Fair Housing Act.

What do these policies look like? About one out of every ten public housing programs in Illinois define “criminal activity” simply by the number of arrests on a person’s criminal record, even if no conviction resulted. The Housing Authority of Edgar County and Massac County Housing Authority, for example, go so far as to deny public housing applicants for a single arrest within the past decade.

More common are PHAs that consider arrests as evidence of criminal activity. Although about half of these admissions policies add that “a conviction for drug-related or violent criminal activity will be given more weight than an arrest for such activity,” the authority to deny admission on the basis of mere arrests remains. As a result, these PHAs are susceptible to violating their duty not to discrimination and their duty to affirmatively further fair housing under the Fair Housing Act. 

Some PHAs and project owners use categories of criminal activity so vague that neither applicants nor administrators fully understand how to apply these standards. Admissions policies usually refer to the three types of criminal activity listed in HUD regulations: drug-related criminal activity, violent criminal activity, and other criminal activity that threatens the health, safety, and right to peaceful enjoyment of other residents. Sometimes, PHAs and project owners supplement this list with vague categories of criminal activity that provide little notice to applicants of the housing provider’s actual standard, such as crimes of “moral turpitude,” an imprecise term that is not defined in the Illinois Criminal Code. 

Other amorphous categories include criminal activity “that indicates that the applicant may be a threat and/or negative influence on other residents” and “criminal activity that will adversely affect the reputation of the Development.” Neither standard reflects any language found in federal statutes or regulations, making them vulnerable to abusive application. Furthermore, a standard based on a building’s reputation strays from a property owner’s legitimate interest in resident safety, further increasing the potential for abuse.

A number of housing providers underuse mitigating circumstances, thus depriving applicants of the opportunity to overcome their past arrest and conviction records. Although HUD regulations require PHAs to consider the time, nature, and extent of a public housing applicant’s conduct, including the seriousness of the offense, more than half of the written admissions policies in Illinois gloss over the fact that applicants could—and in some cases, have the right to—present mitigating circumstances upon being denied for criminal history. Without notice of how to challenge a denial based on a criminal record, many applicants are likely to select themselves out of the admissions process.

In the project-based Section 8 program, consideration of mitigating circumstances is encouraged but not required. One out of four tenant selection plans reviewed explicitly stated that the project owner would not consider an applicant’s mitigating circumstances, thus stacking the odds of admissions against anyone with a criminal record.

Together, HUD, PHAs, and project owners need to ensure that criminal records screening respects the applicant’s right to be free from unwarranted discrimination. More than simply pulling a person’s criminal history, proper screening requires thoughtful consideration and proper balancing of various factors, such as the nature and severity of the offense, the time elapsed since the commission of the offense, and its relationship to a person’s tenancy. In the quest for bright-line rules, however, policies in Illinois today instead allow PHAs and project owners to abuse the discretion given to them by HUD. 

For proper screening to happen, HUD must make clear that housing providers need to look beyond the criminal history or face potential consequences. To help ensure that people with criminal records are not unnecessarily barred from federally subsidized housing, we recommend that HUD, PHAs, and project owners:

  1. reign in unreasonable look-back periods;
  2. end the use of arrests as conclusive proof of criminal activity;
  3. enact clear standards for reviewing criminal history that have a basis in federal law; and
  4. ensure that applicants can overcome criminal records barriers by presenting evidence of mitigating circumstances.

Only when HUD, PHAs, and project owners take these affirmative steps can discretion lead to admission, not just denial.

Is Punishing Hardworking Inmates Really What the Legislature Intended?

Barbed WireIn a case currently before the Illinois Supreme Court, the Illinois Department of Corrections (IDOC) is suing one of its own inmates to recoup the costs of his incarceration. Although the inmate has only $11,000 to his name, IDOC’s bill comes out to nearly half a million dollars. Despite having already garnished 3% of his $2-a-day wage for the past three decades, IDOC now wants to go after the savings he accumulated during his time in prison and had hoped to pass on to his daughter.

Capturing the unfairness of the IDOC’s actions, one of the justices put it best when he asked incredulously, “Is this court honestly to believe that punishing more diligent, hardworking and responsible inmates is what the legislature intended?”

There are several reasons why going after people in the criminal justice system for money makes bad policy. First, suing for the costs of incarceration discourages inmates from participating in prison employment programs, in direct opposition to rehabilitation efforts. These programs provide inmates with something constructive to do with their time, valuable job training, and technical skills. There is also an economic incentive for participation in the form of wages, however modest they may be. If inmates feel the wages they earn while working in prison will be taken to pay for their incarceration, this important incentive disappears. IDOC sues only if they believe the prisoner has assets to seize, so prisoners may feel it is in their best interest to not generate any income at all.

Second, even if an inmate decides to participate in prison employment, IDOC’s policy discourages them from saving, one of the most basic components of financial empowerment. Studies have shown that incarceration reduces an individual’s post-prison earnings by about forty percent annually. In addition to reduced wages, serving time greatly reduces a person’s ability to move up the economic ladder; only two percent of formerly incarcerated individuals are able to advance from the bottom fifth of earnings to the top fifth, as compared to fifteen percent for the general public. Faced with such harsh economic prospects after release, prisoners in employment programs should be encouraged to save so they can begin practicing the positive financial habits necessary for future economic stability. IDOC’s policy sends the wrong message to inmates and ignores how financial literacy can be an essential part of successful rehabilitation.

Finally, the money that IDOC collects from inmates is a drop in the massive bucket that is Illinois’ correctional budget. It costs a little over a billion dollars each year to keep people in prison in Illinois, almost all of which will never be reimbursed. Out of a prison population of over 45,000, only about twenty cases a year are filed to seek reimbursement from defendants whose assets exceed the $10,000 limit. In 2010 IDOC received $9,876 in court-ordered reimbursement payments. Seizing prisoners’ savings will do little to cover incarceration costs and will only further disenfranchise people who have left prison.

Illinois’ criminal justice system seeks not only the costs of incarceration, but also fines, fees, and other financial obligations. These obligations range from $5 to $200, some of which have nothing to do with the costs of the person’s involvement with the criminal justice system. For example, a person convicted of the lowest level drug offense must automatically pay $100 to fund hospital trauma centers and $50 to a performance-enhancing drug testing fund. Limited consideration is given to the inmate’s ability to pay these fines, creating increased economic hardship and debt. Such debt follows prisoners after they have been released, affecting their income, credit score, and ultimately their ability to reintegrate.  

In the case of IDOC’s lawsuit, the inmate’s frugality caused a $455,000 judgment to be entered against him, suggesting that IDOC should reconsider its incentives. Good criminal justice policy should incentivize long-term planning and rehabilitation, and incarcerated individuals should be encouraged to—not punished forsaving and being financially responsible.

This blog post was coauthored by Kelly Ward.

 

Judges Without Gavels: The Life Sentence of Economic Hardship Imposed on Individuals Who Have Been Incarcerated

GavelEvery day, someone’s child, best friend, neighbor, beloved relative, or sole caretaker is being sentenced to a prison term to hold them accountable for breaking the law. Upon release from prison, they are expected to contribute to society and resume providing the necessary emotional and financial support for their children, family, loved ones, and friends.

This outcome, however, assumes that people who complete their given sentence have paid their debt to society and will no longer be punished for their mistake. Several studies have proven that assumption wrong.

The fact is that, even after an individual has paid their debt to society, society, without the authority granted by a gavel, functionally imposes a life sentence of economic hardship on those who have been incarcerated.

This phenomenon is statistically borne out by a report recently released by Pew Charitable Trusts. The report shows that individuals who have been incarcerated are significantly more likely to be unemployed, underemployed, and underpaid than they were prior to their incarceration (termed ”collateral costs”).

If society is responsible for imposing the life sentence of economic hardship, then employers are the ones who dutifully ensure that individuals who have been incarcerated serve out their sentence. Studies conclusively show that individuals with criminal records are far more likely to be subject to systemic employment discrimination. A study performed by the National Institute of Justice (NIJ) found that 65% of employers surveyed refuse to hire individuals with criminal records--regardless of the offense on the individual’s record. That percentage is extraordinarily significant given that a survey conducted by the Society for Human Resource Management  found that only 7% of employers do not conduct criminal background checks for any of their applicants. These practices have a direct impact on the likelihood that an individual who has been incarcerated will be able to get any job at all. In fact, another NIJ study  found that, as many as 60% of individuals who were incarcerated are not able to find any job, at any point, a full year after their release.

Even when persons who have been incarcerated are able to find jobs, they are significantly more likely to be underemployed and underpaid than they were before their incarceration. As a result, people who have been incarcerated earn 40% less per year than they would have earned prior to their incarceration, according to the Pew Report.

The Pew Report also revealed that people who have been incarcerated are permitted to work an average of 9 fewer weeks (more than two months fewer) than people who have not been incarcerated.   Even though they are employed, they are less likely to have the stability, respect of their loved ones and peers, and peace of mind that comes with continuous employment. They are also less likely to be in a position to move up the ladder at a given job and earn more money to improve their situation.

Moreover, even when people who have been incarcerated are working, they get paid less for the same jobs than they would have received prior to their conviction. The Pew Report found that they earn 11% less per hour.

Given these statistics, it is clear that individuals who have been incarcerated are systematically forced to endure economic hardship. The Pew Report precisely quantifies the extent of that economic hardship by considering how the collateral costs (systematically being underpaid, unemployed and underemployed) impaired the economic mobility of an individual who had been incarcerated in 1986 versus the affect the collateral costs had on that same group 2006.

In 1986, a person in the bottom fifth of the income distribution was making less than $7,800 per year. The vast majority of the formerly incarcerated men making less than $7,800 in 1986 were still in the bottom fifth of the income distribution 20 years later (67%). The study determined that people who had been incarcerated and were in the bottom fifth of the income distribution in 1986 only had a 2% chance of moving into the top fifth of income distribution 20 years later. Therefore, it is clearly more difficult for people who have been incarcerated to “pull themselves up by their bootstraps” than it is for individuals who have not been incarcerated.

Significantly, the Report also finds that these collateral costs adversely affect not only the financial and social prospects of the individuals who were incarcerated, but they also profoundly impact the likelihood that the individual will pay any restitution owed victims and the financial and social prospects of the individual with the criminal record’s children and family. Numerous studies show that children whose parents either are or were incarcerated are more likely to suffer from physical or verbal abuse, get suspended or expelled from school, drop out of school, or become pregnant as a minor. With few educational and financial prospects, these children are more likely to become incarcerated themselves--thereby perpetuating the cycle. Consequently, these collateral costs cripple not only the individual with the criminal record, they too often end up crippling entire families for generations.

These collateral costs, perpetuated by societal stigma which is often manifested in systematic employment discrimination, unnecessarily put our friends, children, families, relatives and neighbors at risk of being victimized, resorting to criminal activity, or being mired in the lowest economic wrung for generations. Given that unacceptable risk, more must be done to address this issue.

How Arrest Record Screening Fails to Fight Crime and Impedes Fair Housing

HandcuffsLandlords and local housing authorities should stop using arrest records to screen tenants. Bans on tenants with past arrests simply do more harm than good. They give people a false sense of security against crime, and they deprive disproportionately more racial minorities of needed rental housing for nothing more than an unproven accusation. An end to this practice will require the help of the U.S. Department of Housing and Urban Development (HUD) and the Civil Rights Division of the U.S. Department of Justice (DOJ).

Housing does not become safer just because people with arrest records are banned. Reducing crime requires something that predicts future criminal activity. But arrest records do not work because, as courts have long recognized, they can’t even indicate past criminal activity reliably. 

According to the U.S. Supreme Court, “[t]he mere fact that a man has been arrested has very little, if any, probative value in showing that he engaged in any misconduct,” even outside the context of a criminal trial. Another federal court has referred to arrest records simply as “gutter rumors when measured against any standards of constitutional fairness to an individual.”

The Illinois Appellate Court recently took a similar position against the use of arrest records, this time in the housing context. Landers v. Chicago Housing Authority involved Keith Landers, an African-American man who was placed on the waiting list for public housing in 1995. In the 13 years it took for Mr. Landers to reach the top of the waiting list, he went through long periods of homelessness and found himself arrested several times, though he was never convicted. Despite the instability that often comes with homelessness, Mr. Landers managed to jump through all the administrative hoops necessary to stay on the waiting list until his name finally came up at the end of 2008.

Because of his prior arrests, however, the Chicago Housing Authority denied Mr. Landers’ application. It was unwilling to consider the fact that none of the arrests led to a conviction or that he denied committing the underlying offenses, most of which were minor and stemmed from having to live out in the open. After reviewing these factors, the Illinois Appellate Court could find “no evidence whatsoever that [Mr. Landers] engaged in criminal activity where the outcome of his arrests was the consistent dismissal of the charges.” The court, therefore, refused to equate his past arrests with proof that Mr. Landers was a threat to the health, safety, and welfare of the public housing community.

The problem with these policies is not just they do not fight crime very well; it’s that they also disparately impact racial minorities in the name of fighting crime. Arrested at disproportionately higher rates, racial minorities are more likely to be denied housing if arrest records are used as tenant screening criteria. African-Americans, for example, accounted for nearly 27% of the arrestees nationwide in 2004, but only about 12% of the population. This unjustified racial disparity has led the Equal Employment Opportunity Commission (EEOC) to declare the use of arrest records in employment decisions as suspect under Title VII, the federal civil rights law that prohibits employment discrimination. It is time for HUD to make a similar declaration under the Fair Housing Act and to work with DOJ to ensure that this practice ends. 

Currently, HUD offers no guidance on the use of arrest records for private landlords. Similar guidance is lacking for local public housing authorities, even though these recipients of federal funding are obligated not only to refrain from discriminating, but also to affirmatively promote the right of fair housing. Without direction from HUD or DOJ, arrest records will continue to be a significant barrier for many of the people who need rental and public housing the most, putting many, like Mr. Landers, at risk of homelessness.

To prevent this outcome, HUD should bar housing authorities and private owners participating in HUD programs from using arrests to screen applicants. In addition, DOJ and HUD should work together to use the Fair Housing Act to challenge housing policies that ban people with arrest records. For examples of what happens when these bans are lifted, they can look to the housing authorities of New York City, Baltimore, and Los Angeles--all of whom have stopped screening applicants for arrests as a matter of policy. This refusal to consider arrests has not compromised the safety of their public housing communities either. Indeed, they report “combat[ting] crime just as effectively with their policies as PHAs with far harsher ones,” thus confirming the need for an end to the ineffective, racially disparate use of arrest records as a screening device.

Marie Claire Tran-Leung is a staff attorney and Soros Justice Fellow. Her project focuses on using the Fair Housing Act to reduce housing barriers for people with criminal records. The Legal Assistance Foundation of Metropolitan Chicago represented Mr. Landers, and an amicus brief in support of Mr. Landers was filed by the Shriver Center, the Mandel Legal Aid Clinic, Uptown People’s Law Center, Chicago Area Fair Housing Alliance, Chicago Coalition for the Homeless, Legal Action Center, and National Center on Homelessness and Poverty.

 

When an Employer and a Federal Prosecutor Praise Giving a Second Chance

WorkerAmong numerous stories I’ve come across about people with criminal records turning their lives around, a recent story from the Quad-City Business Journal caught my attention. The story involves a trio who served time in federal prison for trafficking meth, the employer who hired them, and the federal prosecutor who described their employment relationship as “just terrific.”

Sally Hillman, Frannie Spickers, and Brian Nimrick were all convicted of trafficking methamphetamine. Upon completing their prison sentences, they searched for employment. Usually, a job search for people with past convictions can yield very few results, especially in the current job market. Even when employers are willing to take a chance on someone with a criminal record, those employers often do not expose themselves publicly out of fear of becoming stigmatized.

In this story, though, not only did Hillman, Spickers, and Nimrick find work with Greystone Logistics, but this Bettendorf, Iowa-based manufacturing company openly acknowledged its policy of giving second chances to people with criminal backgrounds. A plant manager explains:

It really comes from the heart. Sure we get great workers with good attendance and good attitudes. But when you hear their success stories — such as getting to see family they had not seen in years — and they are genuinely grateful to have a job and a place to plant their feet to start again, to get that second chance, you know you are doing the right thing.

It makes you want to go the extra mile when you are made aware of the discrimination they have to endure to get a job, to rent an apartment, etc. We truly do want to give these great people a re-chance to adapt and to become a productive member of society. Without employment it cannot be done. When you have that "Grampa" who gets to see his  9-year-old grandchild for the first time, and he is doing everything right so he can see his grandkids, how can you not do this for them?

This chance for Hillman, Spickers, and Nimrick was a chance not only to work, but also to succeed. The story notes, for instance, that Spickers has been working to move up the company ladder since joining Greystone Logistics as a janitor nearly two years ago.

Another other notable person pleased with the trio’s success is Jeffrey Lang, the federal prosecutor in the meth trafficking case that originally landed them behind bars. Now the acting United States Attorney of the Central District of Illinois, Lang praised their story as an example of how the criminal justice system is supposed to work:

The system protected the public back then. They are rehabilitated and now they are productive members of society.

Lang’s words echo a speech by Mr. Lang’s counterpart in the Northern District of Illinois, Patrick Fitzgerald, who reminded us that like law enforcement, businesses have an important role in ushering people from prison and jail back into society. Greystone Logistics has stepped up to that challenge quite well.

 

The U.S. Census, Arrest Records, and Employment Discrimination

The U.S. Census rejected 69-year-old Evelyn Hauser from a job because of her past arrest, even though she was never formally convicted and even though she hasn’t had any interactions with the criminal justice system in the nearly three decades since. The federal government didn’t have a problem with her criminal record when it hired her for the 1990 Census, so a class action lawsuit is asking: “What’s the problem now?”

Ms. Hauser is one of the named plaintiffs in Johnson v. Locke, a federal class action lawsuit challenging the Census’ screening practices for applicants with arrest records. The purpose of this lawsuit is to effect “simple changes to the Census’ hiring process that not only reduce its discriminatory effects, but will promote the public interest by expanding [its] hiring base in historically under-counted communities, thereby helping to achieve [the federal government’s] mandated goal of counting all who live in the United States.”  

The screening process goes like this: for every person who applies for one of these over one million temporary but well-paying positions, the Census runs an FBI criminal background check. If an arrest turns up, the applicant is ineligible for employment unless she can, within thirty days, produce a court document describing the disposition, i.e., outcome of the case.   

There are several problems with this screening system. First, the FBI database is notoriously incomplete. Half of all arrest records in the database are missing dispositions, which means that a significant number of applicants with arrests will have to track down these court documents. The 30-day requirement is especially burdensome for Ms. Hauser and other people whose cases predate the computerization of court files. 

Second, without having a complete picture of an applicant’s criminal history, the Census risks basing its hiring decisions on arrests and thus violating Title VII of the Civil Rights Act of 1964. Title VII prohibits employment policies that unjustifiably and disparately impact racial minorities. Indeed, the Equal Employment Opportunity Commission – the federal agency charged with enforcing Title VII – advises employers that bans on people with arrest records discriminate against racial minorities. Not only do racial minorities experience higher arrest rates, but arrests also have limited value in screening applicants since they are not reliable indicators of criminal activity.

As a result of this screening process, the complaint notes, “All applicants, whether or not they will work with the public, who have an arrest record at any point in their lives – no matter how trivial or disconnected from the requirements of the job – face an arbitrary barrier to employment.”  All Ms. Hauser wants, though, is to “continue contributing to her community.”

For more information on this case, visit the Census Worker Class Action Website.

Debt Arising from Illinois' Criminal Justice System: Making Sense of the Ad Hoc Accumulation of Financial Obligations

A person who has done time in prison or jail often finds that he still owes a debt to society. Well known are the collateral consequences that abound in areas such as employment, housing, and voting rights. Debts for people with criminal records, however, are not only figurative. Literal debts can also come from the numerous financial obligations imposed within the criminal justice system and scattered through state statutes. These financial obligations can be difficult to identify, and yet, when a person exits the criminal justice system, they can often converge to create a significant barrier to successful reentry.

With generous support from the Public Welfare Foundation, the Shriver Center has begun to explore ways to reduce this type of debt and its negative impact on people who leave – and intend to stay out – of the criminal justice system. Last month, the Shriver Center released a report entitled “Debt Arising from Illinois’ Criminal Justice System: Making Sense of the Ad Hoc Accumulation of Financial Obligations.” The report is part one of a two-year study of how this system works as well as how it compares to systems in other states. The report focuses on identifying the different types of financial obligations that exist within the criminal justice system, any mechanisms that might relieve low-income defendants from debt that they cannot pay, and the devices that government agencies use to collect overdue debt in Illinois.

The numbers can be striking. For example, if a person is convicted for class four felony drug possession for the first time in Cook County, Illinois, he will incur a minimum of $1445 in financial obligations. Because this figure includes only financial obligations whose amounts are fixed by statute, it does not reflect those whose amounts are variable, such as the mandatory fine equal to the street value of the controlled substance or the additional $14 imposed for every $40 already assessed in fines. Nor does the $1445 figure include correctional fees, such as monthly probation fees and fees assessed by jails and prisons.

Compare the amount that a class four felony drug possession conviction triggers to the frequency with which it occurs in the Illinois criminal justice system. It may be the lowest level drug offense in Illinois, but class four felony drug possession also accounts for the highest percentage of the Illinois Department of Corrections’ incoming population. In 2004, for example, more people were sent to Illinois prison for possession of controlled substance than for any other single criminal offense. A high dollar amount assessed against a large number of people with convictions, however, does not necessarily mean increased revenue for the state, especially given that many of the people within the criminal justice system are poor.

The report also found that the numbers are not only high, but in some cases, they are also rapidly growing. Take the fees that people convicted of a criminal offense in Cook County must pay to the clerk of the circuit court. Today, a felony defendant owes over four times as much in these fees as he would have owed in 2004. Where he would have paid $35 in 2004, the amount due today would be $165. This growth is the result of a trend of imposing more fees on people with convictions. Out of the nine fees that Cook County imposes, four were created between 2005 and 2008, while a fifth was expanded to cover all criminal convictions, thus essentially acting as a new fee. During that same time period, the sixth and seventh fee tripled, while the eighth fee increased by 66 percent. Only the ninth fee remain constant. These increases, though, are not limited to Cook County. Rather, they reflect a trend in the state as a whole because Cook County cannot increase these fees without authority from the Illinois General Assembly to do so. Each of these increases, therefore, reflect a decision by the General Assembly to impose more fees on people in the criminal justice system.  Given that the trigger for these fees is a conviction for any offense, it is time for both legislative bodies to consider the cumulative impact of these fee increases.

To learn more about these and other findings from the Shriver Center regarding debt arising from the Illinois criminal justice system, see its report here.

 

U.S. Attorney Asks Businesses to Hire Ex-Offenders to Increase Public Safety

Recently, business leaders were warned that Chicago could not simply incarcerate its way out of its current violence epidemic. That warning came from an unlikely source – United States Attorney Patrick Fitzgerald. 

Better known for putting felons behind bars than putting them into jobs, the prominent federal prosecutor emphasized that law enforcement is only part of the solution of the crime problem, not the entire solution. Indeed, he said that businesses must do their part to usher people with criminal records back to being productive members of society. If they did, police and prosecutors would be better able to focus their resources and efforts on the worst of the worst, and not on the people struggling to better their lives.

For law enforcement officials like Mr. Fitzgerald to do their jobs better, therefore, businesses must seriously reconsider their policies against hiring people with criminal records.

The current state of the economy might cause employers to balk at these suggestions, Mr. Fitzgerald acknowledged, but that reaction only ignores the bigger picture. The business community has an opportunity to help prevent crime and violence by giving people who want to work a chance to do so. We as a community are negligent, he explained, if we don’t give them that chance. 

Mr. Fitzgerald’s words should be taken not only as an appeal to business leaders, but also a reminder to advocates to engage businesses in practical discussions on reentry. The reasons for this absence vary. Sometimes, businesses don’t understand the long-terms effects of their decisions not to hire based on a criminal records. Other times, employers are already hiring, but they fear negative reactions from their consumers and their competitors. Hopefully, Mr. Fitzgerald will inspire other law enforcement officials to see the connections between their work and reentry as well as convince businesses to re-assess their role in promoting public safety.

*To view Mr. Fitzgerald’s speech that prompted this blog post please click here.