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

Article 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.

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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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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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