Never Convicted, but Held Back by a Criminal Record

Tyrae T. and N.R. needed what any thirtysomething American without regular income needs: a well-paying job.  They were both ready and eager for work, yet both were turned down for numerous entry-level positions they were qualified for.  The reason?  Criminal records.  Tyrae and N.R. have never been convicted of any crimes, but they face a problem that afflicts millions of low-income Americans: arrests without conviction that are improperly used as grounds to deny employment.

Job applicants with criminal records, especially men of color, face a high hurdle to employment.  Studies have shown that black men without criminal records get callbacks for job interviews at rates below those of white men with criminal records; and for a black man with a record, the callback rate is almost negligible.

Arrests that never led to conviction shouldn’t affect employment—innocent until proven guilty is a fundamental principle of American justice, after all.  Because there is a presumption that arrests without convictions don’t hinder employment opportunities, this issue has received far less media and political attention than the employment obstacles created by past convictions.  But the fact is that when it comes to getting jobs, a mere arrest can be just as bad as a conviction for millions of people like Tyrae and N.R.

When it comes to getting jobs, a mere arrest can be just as bad as a conviction.

Many companies conduct pre-employment background checks using FBI rap sheets, which are notoriously hard to read: employers often can’t discern whether the charges resulted in conviction, were withdrawn, or dismissed.

State-level databases can be equally confusing.  In Pennsylvania, if an item turns up when an employer runs a background check through the state police, the system immediately responds with a generic code, indicating that details will follow within four weeks.  If someone only has arrests on his record, the report eventually comes up clean, but many employers won’t wait that long for the clarification—they simply move on to the next job applicant.

Other employers use unofficial court records, often available online for free.  In Tyrae’s case, two arrests—one seven years ago, the other fifteen—were visible to employers with just a few mouse clicks, and the mere existence of the arrest reports cost him multiple job opportunities.  As for N.R., the companies interested in hiring her didn’t give any weight to her recent bachelor’s degree—once they learned she was arrested on a misdemeanor four years ago, they stopped calling back.

Courts will sometimes order the expungement of arrests from criminal records, but even that doesn’t always solve the problem.  Private consumer reporting agencies—which sell background reports to employers—often maintain databases that include outdated court records; so arrests which were expunged are sometimes still reported to employers.

The Equal Employment Opportunity Commission notes that excluding applicants based on arrests-only has a disparate impact on black and Hispanic workers, and thus constitutes employment discrimination.  Therefore, under federal law, “an arrest record standing alone may not be used to deny an employment opportunity.”  In Pennsylvania, state law also says that employers may only consider convictions if they are relevant to an applicant’s suitability for a given job.  However, as Tyrae, N.R., and thousands of other people have discovered, these laws are widely and routinely violated.

The good news is that advocates can employ a number of strategies to lessen the burden of arrest records.  In many states, legal services attorneys can petition the courts to expunge or seal arrests.  In Philadelphia, Community Legal Services (CLS) did just that for N.R. and Tyrae, so their records are now completely clear.  When black and Hispanic workers are rejected as job candidates due to arrests, advocates can help them file discrimination charges with the EEOC or state and local fair employment practices agencies.  People denied jobs due to arrests may also be eligible to collect back pay, and offending companies can be forced to change their policies.  Finally, when consumer reporting agencies tell employers of arrest records that the courts had ordered expunged, workers who are denied jobs can sue the reporting agency, and also demand a correction of the background report.  CLS has successfully brought cases for our clients in all of these areas.

States should now adopt fair chance hiring laws that include reforms like “Ban the Box”—which precludes employers from inquiring about criminal records on job applications—and implement other important protections such as not considering non-conviction arrest records.

But perhaps the single most effective legislative change would be to expand opportunities for the expungement and the sealing of records.  Advocates can push their states for automatic expungement whenever possible—such as when charges are dropped after an arrested individual completes a pre-trial diversion program—and for a clear legal right to petition for expungement of all other non-conviction data.

A clean slate is the best pathway to employment and equal opportunity.



Golden Rules: How California is Leading the Way Toward Ending Mass Incarceration

On issues of crime and punishment, California voters are demanding a rewrite.

After a four-decade incarceration binge, the state is taking steps to reduce prison populations, which have come at ruinous costs for state coffers and for the disproportionately black and Latino individuals and families who are affected.

The latest step came last month, as California voters approved a ballot measure to reclassify a number of low level offenses from felonies to misdemeanors.  Under Prop 47, offenses such as shoplifting, writing hot checks, and drug possession would be punished less harshly.  This would potentially allow 10,000 individuals currently imprisoned to petition to have their sentences reduced and to return to their families sooner.

In recent years, California has served as an intriguing case study for reducing prison populations without harming public safety.  After the state was ordered by the U.S. Supreme Court in 2011 to address its prison overcrowding crisis, lawmakers responded with a policy of “realignment,” which shifted supervision of non-violent offenders and parole violators to local communities.  In 2012, California voters approved a ballot proposal to ensure that the state’s notorious Three Strikes Law would not send people to prison for life for non-serious offenses.

The effect of these and other changes has been dramatic.  Between 2006 and 2012, California’s prison population decreased by nearly a quarter and while doing so, its drop in violent crime exceeded the national average.  These developments, along with similar developments in New York and New Jersey, show increased support among both policymakers and the public for a public safety strategy that is less reliant on incarceration.

But the largely untold story of criminal justice reform in California is what could happen with the savings.

Under Prop 47—of the hundreds of millions of dollars of projected state prison savings each year—a significant portion will be allocated to preventing crime from happening in the first place.  This will include investments in mental health and substance abuse treatment, programs to reduce school truancy and prevent dropouts, and support for victim services.

The question we should be asking is whether incarceration is the most effective way to ensure safe and healthy communities.

Research—as well as common sense—suggest that such interventions can be more effective in reducing crime than incarceration.  But that is not the way our nation has been operating.

Like other states, California has for decades used the criminal justice system to respond to social problems.  Following the failure of other institutions to provide opportunity and education—and yes, to deal with behavioral problems—police, prosecutors, and prisons have taken on roles that used to be left to schools, parents, social workers, and others in local communities.

This is particularly true with the war on drugs, which is a primary driver of mass incarceration and racial disparities.  Today, about 75 percent of incarcerated individuals have a history of substance abuse.  One of every six has a history of mental illness.  Many were abused.   About two-thirds of individuals imprisoned on a drug charge are black or Latino, even though people of all races use and sell drugs at roughly the same rates.

Though we have initiatives aimed at early childhood education, therapeutic interventions for at-risk youth, and treatment for substance abuse and mental illness, they are painfully underfunded compared to the scope of the problem.  Instead of investing in such interventions, we have turned to the criminal justice system, which is an extremely expensive way to address these problems.  Few would dispute that incarceration is sometimes necessary, but the question we should be asking is whether incarceration is the most effective way to ensure safe and healthy communities.

In a definitive report earlier this year, the National Research Council concluded that the rise of mass imprisonment in the United States has “transformed not only the criminal justice system, but also U.S. race relations and the institutional landscape of urban poverty.”

To truly address America’s mass incarceration epidemic, we will need to divert people to substance abuse and mental health treatments rather than sending them to prisons and jails.  We’ll need to remove barriers that keep people with criminal records from starting a new life.  And above all, we’ll need to shift resources away from prisons and invest them in communities.

Prop 47 is only a start, but it may mark a new day for criminal justice reform.


First Person

Ronald’s Story: ‘People Need Second Chances’

I was arrested in 2004.  I was on the streets with my brother. He was selling drugs, and when the cops came up I said, “Here comes 5-0.” So, they charged me with drugs and possession. And that year I also tried to steal an expensive pocketbook at Neiman Marcus.

Two misdemeanors.  I did no jail time, and my probation was terminated early.  I’ve had no incidents at all since then.

A lot of people think of me simply as an ex-offender, but I refuse to let that define me. Ronald Lewis is a father, a son, a friend, and a very ambitious person who is righting my wrongs. It’s been so long since I made those mistakes and second chances are very important—for me and millions of other Americans.

I have a building engineer license, and I am presently in school so I can start my own company and give second chances by teaching the trade that I went to school for.  It was hard for me to get work even after I trained for my trade.  So many doors have been shut in my face I know what wood tastes like.

The first time was gut-wrenching. I worked at a job for maybe a month, then they called me to the office—Human Resources. And they said, “You are no longer able to work here because of your criminal background.” I told them I was the same person they fell in love with at the interview—until that paperwork from the background check came back. Once the paperwork came back, it was like—“Security get this guy out of the building fast.”

People really do want second chances, but they come home with no hope.

It’s so embarrassing. It’s hard. You finally start to see you’re turning the corner and you’re getting a sense of purpose. Your life is starting to mount and your family is going to be proud of you. But then you have to tell them, “I failed again,” or you just feel like a failure.  It was the worst feeling of my life. The worst.

Since then, there have been numerous times when the background check stopped me from getting a job.  The employer says, “You’ll be great. Your skill level is exactly what we are looking for.” But then there’s that question. It’s like the elephant in the room—I hate that question: “Do you have anything on your background?” And when you tell them, they’re gone.

So we need to shed light on this now—the way things are—and the fact that people need second chances. A lot of people that I run across in school now—there are a lot of people who are ex-offenders in my class.  So on the first day, everybody walked around with a bravado—nobody is talking to anybody else. It’s almost like the jail house mentality. So, the second day of class I stood up and said, “Listen, jail is not going to define us.   Obviously you want a second chance or you wouldn’t have come to school.”

At first they thought I don’t get it.  Because I don’t walk around like jail is a badge of honor. It’s shameful. My mother was shamed, my family name was shamed.  But then when I talk to the other students, we sit down and we have a conversation, and I let them know some of the things that I’ve been through—then they are like, “Okay, I understand. He made it; I can make it.”

My class now has the highest average in school—a 90 average.  And I think my leadership and being able to relate to some of the other students has played a role in that.  And it starts with knowing that people really do want second chances, but they come home with no hope. There’s no hope. So then you resort to what you resort to in order to feed your family. You understand? It’s bad. My community is sad.  And it’s all about hope.

You want to know Ronald Lewis?  Don’t focus on some piece of paper that says I made mistakes ten years ago. Look at all of the positive things I’m putting right in front of you right now.



How Juvenile Records Prevent Youth from Escaping Poverty

J.B. came to Community Legal Services of Philadelphia (CLS) at age 21, after he had been working as a cashier at a convenience store for five months making minimum wage. He had performed so well as a cashier that he was being considered for a promotion to store manager, which came with a significant raise. His employer ran a criminal background check on him and discovered that J.B. had been adjudicated delinquent—which is a finding of guilt in juvenile court—when he was 16 years old. Despite his excellent job performance and documentation from his former probation officer that he was fully rehabilitated, J.B. was not only denied the promotion, but also lost his cashier job. He has struggled to find steady work ever since, and has been rejected by several more employers due to his juvenile record.

Unfortunately, stories like J.B.’s are all too common in Pennsylvania and across the nation. As a new report and web tool released by the Juvenile Law Center in partnership with CLS reveals, the vast majority of states do not thoroughly protect juvenile records from public view. Furthermore, expungement or sealing of juvenile records does not happen automatically when young people leave the jurisdiction of the juvenile court or reach a certain age. Youth are often not advised of their right to petition for expungement, and many states limit the types of offenses that are eligible. The result is that hundreds of thousands of young people are burdened by juvenile records, unable to move forward with their adult lives and escape poverty.

Even within the legal advocacy community, many people are surprised to learn that juvenile records are so widely available. There is good reason for their surprise – allowing the public to access juvenile record information runs completely counter to the very purpose of the juvenile justice system.

The system was created in order to provide treatment and rehabilitation to young people. Experts ranging from neuroscientists to Supreme Court justices have acknowledged that youth are less able than adults to understand the consequences of their actions, make sound decisions, and resist the pull of peer pressure. But because their brains are still developing, they are also particularly capable of significant transformation. So it makes good sense—both for youth and society as a whole—to maintain a separate system for rehabilitating youth and then to support them as they transition to adulthood.

Allowing the public to access juvenile record information runs completely counter to the very purpose of the juvenile justice system.

Yet despite the original purpose of the juvenile justice system, during the “tough on crime” era many states rolled back the rehabilitative aspects of their systems in favor of a more punitive approach. As a result, confidentiality protections for juvenile records were weakened, and there is now a tendency to view juvenile adjudications as equivalent to adult criminal convictions. This era also ushered in a period of criminalizing youth for many behaviors that in the past would have been handled in school or at home. For example, one CLS client was issued several criminal citations for disorderly conduct because she had gotten into verbal arguments in the school hallway with a male student who was harassing her. This over-criminalization has disproportionately impacted low-income youth, youth of color, youth with disabilities, and LGBT youth, making it even more difficult for these already vulnerable and underserved young people to connect with meaningful economic opportunities.

The time is ripe for change. Cities and states around the country are struggling to address a youth unemployment crisis—the youth unemployment rate is as much as four times the unemployment rate for adults. As policymakers seek to connect low-income youth with the education, job training, and employment opportunities they need in order to be successful in today’s economy, it is also time for states to revisit their juvenile records laws.

In particular, states should ensure that juvenile records are rarely, if ever, accessible to the public; that youth are given information about their rights and how to get their records expunged; and that records are either automatically or easily expunged when youth leave the supervision of the juvenile court.  These three reforms would ensure that youth who have been rehabilitated are able to move forward with their lives.

There are countless young people like J.B. around the country who have the potential to move out of poverty and want desperately to work.  We as a society just need to let them.




Mass Incarceration and the Health of Our Communities

Earlier this year, Jerome Murdough—a homeless veteran charged with trespassing—died after being left unchecked for hours in a sweltering cell in New York City’s Rikers Island Jail mental observation unit.  His death showed us what can occur when medical, social service, and criminal justice systems fail to meet the needs of vulnerable individuals. Stories like Murdoch’s, or those of other inmates with mental illnesses who are featured in the New York Times series “Locked In”—cast in high relief the challenges we face when reconciling punishment and the treatment of those who are incarcerated, especially people with mental illness.

This is not an issue unique to New York City. Across the country, people with mental health needs are too often warehoused in overcrowded, chaotic, and violent correctional facilities rather than treated in the community.

The Affordable Care Act (ACA), however, presents a tremendous opportunity to address this national crisis and ensure that patients like Murdough don’t end up on Rikers Island. The ACA provides one of the largest expansions of mental health coverage in U.S. history—extending it to 27 million people who previously lacked health insurance—and a wider range of benefits to 62 million U.S. citizens overall. Millions of uninsured, undertreated, and destitute people cycling through correctional systems will be covered for the first time.

This expansion of treatment opportunities, coupled with bipartisan agreement that we need a comprehensive overhaul of the criminal justice system, presents a rare opportunity for reform that we can and must seize.

The criminal justice system has expanded to such a degree that mass incarceration is now one of the major public health concerns facing poor communities, according to a new report from the Vera Institute of Justice. Since the 1970s, state prison populations in the U.S. have grown by 700 percent. Yet the nation’s overuse of incarceration succumbed to the law of diminishing returns long ago—creating more harm than good—with widening disparities in health as one of the results.

The concentration of incarceration and the omnipresence of the criminal justice system in the lives of residents in poor communities of color are well documented.  Now research is starting to reveal the extent to which mass incarceration impacts community health. For example, decades of disparate exposure to incarceration among communities of color has fractured families and exacerbated socioeconomic inequities in ways that have contributed to wider gaps in infant mortality rates between black and white Americans.

Investments are needed in order to stop relying on jails and courts as default healthcare providers.

The criminalization of addiction and mental illness is a core driver of overall health disparities in the criminal justice system. The War on Drugs in essence delegated to criminal justice agencies what should be the responsibility of our community health system. As a result, people coping with serious clinical conditions are gravely overrepresented in correctional facilities. Yet the traditional punitive tactics that corrections departments too frequently turn to—such as solitary confinement—tend to promote the very behavioral problems that lead to incarceration.

There are signs that the social and political climate is changing. U.S. Senators Rand Paul (R-KY) and Cory Booker (D-NJ) have reached across the aisle to work on federal legislation that aims to remove the stigma and legal barriers that prevent millions of Americans with a drug conviction from securing employment and public benefits. Additionally, state officials are pursing legislative and programmatic solutions to trim their prison populations: A recent Vera study found that more than 29 states have amended, scaled down, or repealed laws that mandated lengthy prison sentences for drug and other crimes.

But undoing mass incarceration’s public health crisis will require more than changing sentencing laws and providing people with health insurance. We also need state and local investments to establish a robust network of community health centers and a culturally competent workforce in neighborhoods where mass incarceration is most entrenched.  These investments are needed in order to stop relying on jails and courts as default healthcare providers.

This strategy is being pursued in New York City, where Mayor Bill DeBlasio announced a sweeping plan to prevent people with mental health needs from ending up at Rikers Island when they encounter law enforcement. The plan includes the opening of a Public Health Diversion Center, under the auspices of the New York City Department of Health and Mental Hygiene. It would redirect people to community-based services—in lieu of arrest and prosecution—in communities where health disparities and incarceration are most prevalent. The diversion center would include a 24-hour drop-off location where people accused of low-level crimes could receive health services, withdrawal treatment, case management, overnight shelter, and food.

Finally, we need our political leaders to repeal unjustly harsh policies that deprive individuals who have served their time—and their families—of a fair chance at finding secure housing, entering the labor market, and rising out of poverty.

Momentum is building in the right direction. Ending mass incarceration and restoring the health of our communities is a mission that we all must get behind.