The Shriver Brief : Poverty Law Commentary & Insights : Sargent Shriver National Center on Poverty Law : Affordable Housing, Healthcare Reform

In 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 for—saving and being financially responsible.

This blog post was coauthored by Kelly Ward.

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Every 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.

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Landlords 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.

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Among 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.

 

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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.

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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.

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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.

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