Tuesday, June 15, 2021

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II. Employment Consequences Of Conviction

      Something as simple as checking a box indicating a conviction bars a person from employment, housing, educational assistance, and government benefits. The employment consequences of conviction take the form of automatic or discretionary disqualifications in the public and private sectors.

      The theoretical underpinnings of these penalties are considered as preventing crime and providing a denunciatory purpose and retributive function. These abstract justifications do less to serve the stated objectives and more to provide a strong argument for the designation of collateral consequences as part of the sentencing court's punishment for the original offense. Moreover, this “web” of obstacles significantly contributes to the current recidivism rate. The ex-offender faces a double penalty: she pays her debt through incarceration and further pays through loss of life opportunity. This opportunity cost is socioeconomic, political, and seemingly never ending.

      Employment is fundamental to the American identity. It is a prerequisite to membership in American society and is essential to the survival of the American family. An individual who fails to join the labor market is socioeconomically disadvantaged, stigmatized, and socially marred. Any serious departure from current “mass incarceration policies will ultimately depend on the expansion of employment opportunities for low-skilled [new releasees], and a reinvigoration of the moral status of these men in the political debate.”

      In some cases, employment and occupational licensing restrictions are necessary to protect the public. In the context of employment, the most obvious example is the sex-offender pedophile prohibited from driving an elementary school bus. In such a case, an employment restriction is necessary to prevent contact between the offender and children. More importantly there is a reasonable relationship between the underlying criminal conduct, pedophilia, and the occupational duties, including daily interaction with young children. In such a case, an employment prohibition makes sense. However, most offenders are not pedophile sex offenders and in most cases collateral consequences do less to protect the public and more to interject a sense of frustration and hopelessness in the ex-offender, particularly in instances where there is either no nexus or a minimal connection between the disqualifying conviction and the desired employment.

      Lack of employment is a primary factor in criminal recidivism and the most severe post-conviction penalty. “Many ex-offenders released from prison face this obstacle head-on and are repeatedly rejected, denied, and virtually excluded from the qualified applicant pool based solely on their previous conviction.” Numerous studies have reported a positive correlation between employment and recidivism. These are discussed in more detail in the subsequent subsection.

      In general, new releasees face high levels of unemployment as well as below-average wages. On average, “incarceration reduced subsequent wages by 11%, cut annual employment by nine weeks and reduced yearly earnings by 40%.” When years of work experience are statistically controlled, the results change very little. The implication is that the economic consequences result from conviction and incarceration rather than “work experience lost while imprisoned.” With this, the first order of business is to explore proactive measures connecting releasees with employment.

      This section of the Article seeks to explore the various facets of employment consequences of conviction. It begins by surveying a number of empirical studies that demonstrate a link between employment and a decline in criminal recidivism. Section B examines statutory disqualifications triggered by a felony conviction while section C looks at employers' unwillingness to hire individuals with a felony conviction. Section D discusses the racial implications of disqualifying employment policies. Finally, this part of the Article looks to current government responses to the employment consequences of conviction.

A. Employment and Recidivism

      Numerous recidivism studies have been conducted in recent years. For example, the Bureau of Justice Statistics report of 2002 and the 2011 Pew Center study provided scholars, advocates, and policymakers with valuable insight into the cross-national rate of recidivism. However, these studies primarily focused on reporting convictions, types of re-arrest and reconviction, as well as how previous sentences served as predictors for future criminal behavior. These factors fail to account for how outside socioeconomic factors such as employment, education, and civic participation influence the rate of recidivism.

      In contrast, the last formal study conducted by the Bureau of Prisons, known as the Harer Study, published in 1994, did. According to the Harer Study, post-release employment is a determinative factor in the successful reintegration of ex-offenders. The majority of incarcerating and recidivating crimes consist of drug trafficking, theft, and larceny, which suggests that many offenses are committed with an economic objective. In the Harer Study, ex-offenders, who arranged for post-release employment, had a recidivism rate of 27.6% compared to 53.9% of those without employment. Therefore, post-release employment appears to cut the recidivism rate by close to half.

      Sociologist Christopher Uggen's recent study supports the Harer Study findings. Using older data from the National Supported Work Demonstration Project, Uggen analyzed the work effect on the rate of recidivism. He reported a 24% reduction in recidivism for participants in the work program aged twenty-six and older. This is quite significant as it suggests that employment is an important turning point in the “life course” of offenders over twenty-six years old.

      Other studies, reports, and programs demonstrate similar findings. One study, conducted by Stephen Tripodi at Florida State University reported that recidivists who found work when released from prison decreased their chances of recidivism by 68.5%. Recidivists with employment averaged 31.4 months before re-incarceration while recidivists who failed to obtain employment averaged 17.3 months before re-incarceration. The Newark Prisoner Reentry Initiative, a federal Department of Labor funded program aimed at securing employment and vocational training for releasees, boasts a less than 10% reduction in participants' rate of recidivism after one year.

      Also significant is the Harer Study's finding that those offenders released to a halfway house prior to being released to the community were more successful than those directly released. This is because halfway houses increase the likelihood of obtaining post-release employment. Of the 614 people in the sample who went to halfway houses, 68.1% obtained employment compared to 22% of those released directly into the community. There is, therefore, strong evidence that employment is critical to the success of a new releasee. Education and family support are also key factors in a smooth transition from prison to the community.

B. Statutory Disqualifications

      Once out of prison, ex-offenders have fewer employment opportunities and experience a decreased lifetime earning potential. The “wage penalty” of imprisonment is estimated somewhere between 10% and 20%. This is attributed not only to the lack of skills and work experience that characterize the typical ex-offender, but also the stigmatization and statutory employment restrictions facing ex-offenders.

      As evidence of its commitment to the War on Drugs and the “tough on crime” stance of the 1980s, the federal government and several states implemented a number of occupational restrictions affecting ex-offenders. These restrictions have assumed the form of blanket prohibitions based on an individual's status as a convicted felon. For example, the state code in Ohio includes 404 statutory collateral consequences. Of these 404 sanctions, 291 of them are employment related. Many other states have similar sanctions embedded in their state codes. A recent study conducted by the American Bar Association's (ABA's) Criminal Justice Section catalogued over 38,000 statutes nationwide imposing collateral consequences on individuals. Of this number, 65% were employment consequences.

      Licensing restrictions result in the loss of new employment and act as a bar on reemployment in the occupation the offender was employed in prior to conviction. Federal law provides for the suspension and revocation of numerous licenses including commercial motor vehicle operator licenses, pilots' licenses (called airmen certificates), hazardous materials equipment licenses (from local trash collectors to interstate trucking companies carrying nuclear waste), broadcasting licenses, and port workers' transportation worker identification credential. This list is by no means exhaustive. States restrict occupational licenses as well by denying or revoking certain types of licenses based strictly on a felony criminal conviction. For example, North Carolina and New Hampshire deny, suspend, or revoke barber licenses based on felony convictions while Wisconsin denies security guard licensing.

      Other federal and state license restrictions are put forth as necessary “to foster high professional standards,” while limitations on employment opportunities are said to guarantee that those hired have “good moral character.” Suspensions and revocations placed on the licenses of commodity dealers, customs brokers, and SEC registrants (brokers and dealers) are examples where “good moral character” comes into play. All of the above statutes and regulations require criminal background checks and make a conviction a basis for denial. Surprisingly, an ex-offender has a better chance of becoming an attorney than a security guard in Wisconsin or barber in North Carolina. Only five states prohibit felons from practicing law, while felons are barred from over 800 occupations nationwide. Collectively, statutory restrictions contribute to an ex-offender unemployment rate of at least 60% one year after release.

C. Unwillingness to Hire

      One of the most common problems associated with access-to-work issues is the unwillingness of employers to hire an individual with a criminal record. A number of empirical studies conducted over the past fifteen years demonstrate that approximately 60% of employers “probably or definitely would not” even consider hiring an individual with a criminal history. Employers are more reluctant to hire ex-offenders than any other commonly stigmatized groups including the disabled, welfare recipients, or applicants with gaps in employment history. The underlying concerns of this marginalization from the applicant pool include fears of physical safety, theft, and the desire to avoid interaction with probation officers. One study published in 2009 uncovered that the majority of employers are more concerned about behavioral problems than negligent hiring liability. Tax incentives and federal bonding--government provided incentives for the hiring of ex-offenders--are seriously underutilized reintegrative tools.

D. Racial Implications

      Princeton Professor and sociologist Devah Pager conducted a study in Milwaukee, Wisconsin demonstrating how a criminal conviction works against black men more harshly than their white counterparts. Pager's study clearly shows that criminal convictions have a devastating effect on the employment prospects of young black males with criminal convictions in America.

      The study was an employment audit conducted with four male testers: two blacks and two whites. The testers were paired by race; the two black testers formed one team and the two white testers formed the second team. Within each team, one auditor was randomly assigned a “criminal record” for the first week; the pair rotated the ex-offender role for each successive week of employment searches, such that each tester served in the criminal record condition for an equal number of cases. “[T]he criminal record consisted of a felony drug conviction (possession with intent to distribute cocaine) and eighteen months of served prison time.” The testers applied for real job openings in entry-level positions to see whether employers responded differently to applications on the basis of selected characteristics. The results of the study demonstrated that a criminal record reduced the likelihood of a callback by 50%. The callback rate was 34% for whites with no criminal record, 17% for whites with a criminal record, 14% for blacks without a criminal record, and 5% for blacks with a criminal record.

E. Government Responses

      This “employment penalty” has developed into a major socioeconomic problem for entire communities. The Equal Employment Opportunity Commission (EEOC) is adamant about requiring a connection between the disqualifying conviction and the employment duties, thus ensuring fairness and preventing discrimination. Only a handful of states, however, currently require any type of relationship test for the nature of the underlying conviction and occupational duties. One of the problems of challenging employment and occupational disqualification is that ex-offenders as a political block lack the political capital and cohesiveness necessary to facilitate interest by state and federal legislators. Moreover, there is a notion of extreme political risk associated with the advancement of interests of felons and convicts. It is considered a “soft on crime” approach, particularly if the basis for reform is fairness as opposed to taxpayer savings and reduced government expenditures.

      Social organizations and advocacy groups across the country have been working with municipal and state legislatures to “Ban the Box” on employment applications for work in public-sector positions. “Ban the Box” is an initiative that encourages employers to abandon the criminal-conviction question on employment applications. An employer should ask a prospective employee the question only after choosing her for a second interview. Major cities, such as Boston and Chicago, have enacted rules requiring city employers to review an applicant's qualifications prior to conducting a background check. Entire states, such as Illinois and Kansas, are following suit with similar legislation.

      Mayors across the country have begun to invest in reentry initiatives that aim to put ex-offenders back to work. In New York, Mayor Bloomberg has led the reentry effort by forming private sector intermediaries to place probationers in jobs that pay a living wage. Chicago engages in something similar except there job placement is open to all ex-offenders. Corey Booker, Mayor of Newark, has instituted an aggressive work-first program funded by the Department of Labor and blessed with broad bipartisan support. Additionally, Booker persuaded 300 lawyers to donate their services to ex-offenders facing legal obstacles to employment, offered tax breaks to companies that hire ex-offenders, and has decided to sell city land at a discount price to developers willing to hire ex-offenders on their construction sites. Entire states have also joined the reintegrative employment efforts. In 2003, Michigan launched the Michigan Prisoner Reentry Initiative (MPRI) and expanded it statewide in 2008. Prior to parole or release, offenders are transferred to a reentry facility where a transition plan is created and implemented ensuring employment opportunity and housing placement upon release.

      A number of states have expungement or sealing mechanisms, judicial petitions for expungement, deferred prosecution arrangements, and alternative sanctions for law breakers. These procedures allow a criminal defendant to deny a conviction in the case of expungement and sealing or avoid a conviction altogether in the instance of a deferred prosecution. A few states offer “certificates of rehabilitation” that may restore some or all of the legal rights lost upon conviction. Also, a few states permit the presumption of rehabilitation after the passage of time.

      Not all states are developing employment strategies for their ex-offending population, and even the states that are still have state codes replete with employment restrictions and automatic occupational licensing disqualifications based solely on conviction. Any legislative conversation must begin with repealing or modifying such statutes to facilitate successful reentry. If legislatures fail to take the initiative, then courts must step in to signal the need for serious constitutional review of such laws.

      Employment and occupational opportunities for ex-offenders are important not only for the individual but also for the health of our nation both socially and economically. Out-of-work ex-offenders do not make for a safer community. Instead, the unemployment rate of felons contributes to high criminal recidivism and increased corrections expenditures, paid for with taxpayer dollars.

      Occupational licenses provide a means through which ex-offenders may avoid employer biases and earn a legitimate income. While some occupational licenses may be necessary to genuinely protect the public (as with the pedophile bus driver example), many times such restrictions have no real rational relationship either to public safety or the underlying occupational duties.

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