By Timothy Ademan, Law Student at George Mason University
First place winner of the first annual law student writing competition.
In the United States, the odds that a released inmate will not return to jail on a new charge or violation are stacked against the inmate. In a 2014 report, the U.S. Department of Justice released a report that stated that 36.8% of released prisoners will return to prison within six months, or in other words, recidivate.1 DOJ’s test population had been arrested within five years of their subsequent release. Thus, many inmates’ initial crimes that led to their incarceration may have been of less severity or of a non-violent nature to begin with as the sentence was equal to or less than five years. To substantiate this quantitative evidence, Federal Bureau of Prisons data shows that 46.3% of their inmates are incarcerated on drug-related charges.2
Incarceration costs society dearly. In 2012, New York City paid $167,731 per year, per inmate.3 While this number is nearly three times the national average, it illustrates the financial burden of relying on a system with high recidivism rates. If the cost, as grossly high as it is now, only creates a 63% chance of keeping a recently released inmate from recidivating within six months, then the process of reintegrating recently released inmates back into society must be evaluated.
When inmates are released, they are handed the possessions that they were booked with and then shown to the exit. From there, inmates must begin the arduous process of reconnecting with family members and friends while attempting to acquire gainful employment. However, criminal record background checks may readily stop an employer from hiring. Without a job, the newly released inmate is more prone to pressures that may lead to recidivism. For instance, without an income, the inmate may be unable to afford everyday necessities such as a toothbrush, socks, or shampoo, not to mention food. Yet, as important as employment is, in a 2008 study, the Justice Policy Center released data suggesting that 71% of released inmates felt that their criminal record had affected finding employment.4 The study continued by stating that “the more wages earned two months after release, the lower a [recently released inmate’s] likelihood of reincarceration.”5 This study and its results are not an anomaly. The Manhattan Institute and America Works released a report stating that not only does employment reduce recidivism, but that the sooner one is employed, the less likely one will recidivate.6
Criminal record expungement can circumvent these problems by allowing a recently released inmate to more easily integrate back into society by finding employment, and thus, become a contributing member to society. However, the process of expungement is time consuming and costly.
For instance, in Virginia, an individual with a criminal record must first determine if he or she is eligible to file for a request to expunge records. The individual must also determine what records are eligible for expungement. Next, a petition must be filed with the court in the city where the case was originally handled. Copies of the petition must be made for the prosecutor and police. The individual must then proceed to the police station and acquire fingerprints. While this occurs, the prosecutor may object to the petition. If no objection is filed, then the court must determine if a “manifest injustice” exists in withholding the individual’s expungement request.7 The court’s decision determines whether or not the individual may have his or her record expunged, and subsequently, whether most doors to employment will be opened.
While a court’s decision to expunge records would certainly aid in lowering recidivism rates by allowing a released inmate to more easily find gainful employment, there is a more efficient alternative. The “Ban the Box Campaign” seeks to keep employers from using prior convictions with which to discriminate with during the application process.8 Recently, President Obama put his support behind the campaign’s idea when he signed a memorandum specifically asking federal employers to review applications holistically and abstain from turning down an otherwise qualified applicant due to prior convictions.9 In support of this memorandum, he noted that “[p]romoting the rehabilitation and reintegration of individuals who have paid their debt to society makes communities safer by reducing recidivism and victimization; assists those who return from prison . . . to become productive citizens; and save taxpayer dollars . . . “10
The concept of not explicitly asking an applicant about prior convictions or not asking immediately during the application process is quickly gaining traction. In regard to the latter, asking later in the application process would allow an applicant to emphasize his or her positive attributes and experiences in an effort to overshadow a criminal record without immediately being preempted. The National Employment Law Project notes nine states that have removed the prior conviction question from private employers’ applications.11 Illinois is one such state that prohibits employers from asking about prior convictions. The “Job Opportunities for Qualified Applicants Act,” effective January 1, 2015, allows applicants, with some exceptions, to apply to positions in both the public and private sectors without fear of being rejected for prior convictions.12 The strength of the act is predicated on its ability to prohibit employers from “request[ing] information about or mak[ing] adverse employment decisions based on arrest records or convictions that have been impounded, sealed, or expunged.”13
Once such laws are passed, prohibiting employers from asking potential employees about prior records is highly efficient. The process, or lack thereof, required by the recently released inmate allows for an expedited return to society through the doors of employment. Expungement is more time-consuming and, while beneficial, leaves a lengthy duration between release and a court’s decision on whether or not to grant the expungement. For instance, in Maryland, the process of expunging records is expected to take three months.14 The time immediately after incarceration is a critical period when determining whether or not a newly released inmate will recidivate. Thus, it is imperative that he or she find gainful employment immediately. Expungement is helpful in this process but by no means the best or quickest route available.
When contrasting expungement with “banning the box,” there are two factors that should be considered. Recently, startling statistics have appeared that suggest over 60% of “prison inmates are functionally illiterate.”15 Begin to Read notes that “[o]ver 70% of inmates in America’s prisons cannot read above a fourth grade level.”16 With this in mind, expungement places the action on the recently released individual to navigate the court system in order to expunge his or her record. The process is not another consequence of a crime for the individual has already served time. Instead, it is an impediment to reintegrating back into society. The individual must not only navigate the court system but must do so while contemporaneously applying for jobs, many of which he or she will be stymied from pursuing due to the yet-to-be-expunged criminal record and all while having great difficulty in reading and following complicated instructions. Inversely, prohibiting employers from asking applicants about their criminal records is a simple task. It requires little transactional costs to omit a line on a job application.
Secondly, expungement is a means that is already in place. Yet, recidivism continues at its current rate. Awareness of expungement is often spear-headed by various non-profit organizations providing pro bono opportunities for their members. However, this often requires individuals seeking expungement to prepare their records, finger prints, or a myriad of other documents before utilizing free or reduced-cost legal services at special one-time events.
At a policy-level, there must be two-fold consideration by employers and lawmakers. Firstly, while the existence of a criminal record, particularly one with non-violent felonies, should not be legally allowed to determine whether a job offer is given, the type of crime and severity may certainly be considered prior to hiring. Secondly, the position applied for can dictate specific parameters under which a released individual would be ineligible to receive. For instance, society would not want recently-released individuals to work with children or at banks handling cash. However, the pervasive stigmatization that already exists should not be furthered. Certain positions may readily not be available but careful consideration as to the attendant duties and responsibilities should instead be analyzed to determine the appropriateness of the hire in relation to the crime.
Under President Obama’s leadership, the White House has created the Fair Chance Pledge as a means for private companies to take the initiative in hiring otherwise well-qualified individuals who have criminal records.17 The pledge states:
"We applaud the growing number of public and private sector organizations nationwide who are taking action to ensure that all Americans have the opportunity to succeed, including individuals who have had contact with the criminal justice system. When almost 70 million Americans – nearly one in three adults – have a criminal record, it is important to remove unnecessary barriers that may prevent these individuals from gaining access to employment, training, education and other basic tools required for success in life. We are committed to providing individuals with criminal records, including formerly incarcerated individuals, a fair chance to participate in the American economy."18
Providing opportunities for recently-released individuals to compete for gainful employment requires a reduction in barriers on employers’ side. While criminal records expungement certainly provides, at least theoretical, a means of accomplishing this task, recidivism is more efficiently decreased when criminal records are not used in filtering out applicants.
1 Matthew R. Durose, Alexia D. Cooper, and Howard N. Snyder, Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, April, 2014, available at http://www.bjs.gov/content/pub/pdf/rprts05p0510.pdf.
2Author unknown, Offenses, bop.gov, May 28, 2016, available at, https://www.bop.gov/about/statistics/statistics_inmate_offenses.jsp.
3 Marc Santora, City’s Annual Cost Per Inmate is $168,000, Study Finds, The New York Times, August 23, 2013, available at http://www.nytimes.com/2013/08/24/nyregion/citys-annual-cost-per-inmate-is-nearly-168000-study- says.html?_r=0.
4 Christy Visher, Sara Debus, Jennifer Yahner, Employment after Prison: A Longitudinal Study of Releasees in Three States, Urban Institute: Justice Policy Center, October 2008, available at http://www.urban.org/sites/default/files/alfresco/publication-pdfs/411778-Employment-after-Prison-A-Longitudinal- Study-of-Releasees-in-Three-States.PDF.
5 Id. at 8.
6 Peter Cove and Lee Bowes, Immediate Access to Employment Reduces Recidivism, Real Clear Politics, June 11, 2015, available at http://www.realclearpolitics.com/articles/2015/06/11/immediate_access_to_employment_reduces_recidivism_12693 9.html.
7Author unknown, Virginia Expungement and Record Sealing, Lawyers.com, date unknown, available at http://research.lawyers.com/virginia/virginia-expungement-and-record-sealing.html.
8 Author unknown, About: The Ban the Box Campaign, Ban the Box Campaign, date unknown, available at http://bantheboxcampaign.org/?p=20#.V3P3W-YrKRs.
9 https://www.whitehouse.gov/the-press-office/2016/04/29/presidential-memorandum-promoting-rehabilitation-and- reintegration.
10 Office of the Press Secretary, Presidential Memorandum – Promoting Rehabilitation and Reintegration of Formerly Incarcerated Individuals, The White House, April 29, 2016, available at https://www.whitehouse.gov/the- press-office/2016/04/29/presidential-memorandum-promoting-rehabilitation-and-reintegration.
11 Michelle Natividad Rodriguez and Beth Avery, Ban the Box: U.S. Cities, Counties, and States Adopt Fair Hiring Policies, National Employment Law Project, June 1, 2016, available at http://www.nelp.org/publication/ban-the- box-fair-chance-hiring-state-and-local-guide/.
12 http://www.jacksonlewis.com/resources-publication/illinois-passes-ban-box-legislation-limiting-employers- criminal-background-checks-applicants
13 Kathryn Montgomery Moran, Paul Patten, Susan M. Corcoran, and Richard I. Greenberg, Illinois Passes Ban-the- Box Legislation Limiting Employers’ Criminal Background Checks on Applicants, Jackson Lewis, July 22, 2014, available at http://www.jacksonlewis.com/resources-publication/illinois-passes-ban-box-legislation-limiting- employers-criminal-background-checks-applicants.
14 Updated by dlawadmin, Expungement and Changing Your Criminal Record, The People’s Law Library of Maryland, June 20, 2016, available at http://www.peoples-law.org/expungement-and-changing-your-criminal- record. 15 Author unknown, Literacy Statistics, Begin to Read, date unknown, available at http://www.begintoread.com/research/literacystatistics.html.
17 Author unknown, Take the Fair Chance Pledge, The White House, date unknown, available at https://www.whitehouse.gov/issues/criminal-justice/business-pledge.