How Criminalizing Unemployment Creates Bad Jobs

The criminalization of poverty has become a sadly familiar topic. Largely overlooked, however, has been the related criminalization of unemployment.

In the past, unemployment was criminalized under the rubric of vagrancy prosecutions and related forms of racially-targeted labor control. Today, such practices have returned in new forms. In several contexts people face jail time if they do not work to the government’s satisfaction. How this happens is explored in “Get To Work or Go To Jail,” a report I recently coauthored with colleagues at the UCLA Labor Center and A New Way of Life Reentry Project. In many ways, these work requirements parallel the more familiar ones in public benefits programs, where people risk losing income support if they do not work enough.

The most straightforward examples come from probation, parole, and other forms of criminal justice supervision that operate outside the confines of prison. As Yale Law School professor Fiona Doherty has been documenting, work requirements are a pervasive feature of these systems. Failure to work can violate the terms of supervision—and create a path back to jail. On any given day, some 9,000 Americans are behind bars for violating probation or parole requirements to have a job.

As with work (or work search) requirements in aid programs such as Unemployment Insurance, the Supplemental Nutrition Assistance Program (SNAP, formerly Food Stamps), and Temporary Assistance for Needy Families (TANF), an essential question is always whether lack of work is voluntary or involuntary. In practice, this is a question of labor standards: Which jobs should someone be allowed to reject? Those that pay below the prevailing wage? Have erratic schedules incompatible with childcare? Subject workers to retaliation for organizing?

The function of enforceable work requirements is to get people to take jobs they otherwise wouldn’t, and to set up a system of surveillance to ensure that they do. And this is exactly what happens. For example, a recent study of Texas’s much-touted Noncustodial Parent Choices program found that work requirements enforced by the threat of jail caused employment to increase but wages to decrease. A study of Wisconsin welfare reform found similar downward pressure on earnings.

An even stronger analogy to work requirements in aid programs comes from court-ordered debts, such as child support obligations and criminal justice fines and fees. At the center of the modern debtors’ prison conversation, these debts are deeply linked to labor. The connection arises from the same simple question at the heart of income support programs: Why don’t you have more money? For means-tested benefits, lacking income is why the government gives you money as assistance. For court-ordered debt, lacking income is why you don’t have to give money to the government: the Constitution forbids imprisoning those who simply are unable to pay their debts.  But in both contexts, the suspicion arises that lack of income is “voluntary” if additional earnings could be generated by working more. Notably, that suspicion is thoroughly shaped by racial stereotyping.

African-American fathers are ten times more likely than other fathers to be jailed for child support.

Take child support enforcement, for example. State agencies’ collection efforts begin by scrutinizing non-custodial parents’ inability to pay and end by scrutinizing their inability to work.  Most states construe child support obligations as a duty to earn enough to pay.  As a result, a penniless parent can end up behind bars if, as the Supreme Court of California explained, that parent “fails or refuses to seek and accept available employment for which the parent is suited by virtue of education, experience, and physical ability.”  The courts consistently have upheld incarceration for nonwork in the child support context, despite the striking similarities to Jim Crow-era debt peonage practices that the Supreme Court long ago struck down as unconstitutional involuntary servitude. These similarities include shocking disparities of race and class, with African-American fathers ten times more likely than other fathers to be jailed for child support.

Detecting voluntary unemployment is notoriously difficult. The more you distrust those who say they cannot find jobs, the more tempting it is to surveil them. That is one legacy of persistent racial stereotypes concerning labor discipline. This sort of surveillance is a crucial function of employment programs, even when they are bundled with services, which often have dubious value. When participation in employment programs is mandatory, they generally are designed to push people to accept jobs they can already find, or to blame them for not finding any—not to improve their employment prospects in a meaningful way. That framework is explicit in the Obama Administration’s recently proposed child-support regulations, which promote “rapid labor force attachment” and reject “services to promote access to better jobs and careers.” While better than simply locking up noncustodial parents who can’t afford to pay, this “work first” model returns us to the questions of labor standards and diminished bargaining power.

When no jobs are available, the next step is to create a degraded tier of second-class work. Unpaid “workfare” or “work experience” programs have served that function in the years since 1990s welfare reform. Today, we see something similar happening with criminal justice debt. Mandatory “community service” may seem enlightened compared to throwing unemployed people in jail. Similarly, “offering” workfare is arguably better than simply terminating benefits for lack of work, as occurs under SNAP’s harsh “able-bodied adults without dependents” work rules that can cut off assistance even when no work is available.

Thus, a widely touted progressive reform when it comes to court-ordered debts is to offer unpaid community service as an alternative to debtors’ prison. This policy already is in place in Los Angeles, where every year an estimated 100,000 people are ordered to work for free or go to jail. By labeling it “community service,” the authorities attempt to shield this unpaid work from labor and employment protections such as the minimum wage and workers’ compensation for job-related injury. A federal judge upheld a similar policy in a recent New York case.

As with workfare, these forced labor programs are triply unfair. First, they extract valuable work from citizens while stripping them of fair treatment and respect. Second, they perpetuate an unjust definition of voluntary unemployment. The proper test for willingness to work is willingness to work at a minimally decent job, not willingness to work for free without labor protections. Third, by creating a class of unprotected, coerced labor, they undermine the labor market for everyone. Employers have every incentive to substitute this new labor force for ordinary employees, or to extract concessions from workers by threatening to replace them.  New York City did both under Mayor Rudy Giuliani, who cut unionized public sector jobs while turning to a massive workfare program to maintain services.

Welfare reform taught antipoverty advocates to take low-wage work and unemployment seriously. Today, we must take that line of thinking one step further to include racialized mass incarceration, not just as a barrier to good jobs but as an enforcer of bad ones.



The Many Injustices of the Money Bail System

After reading about the recent death of 26-year-old Jeffrey Pendleton—who was being held in a New Hampshire jail simply because he couldn’t afford to pay $100 in bail—my reaction was anger.  Why was Mr. Pendleton held in jail in the first place?  He had not been convicted of a crime, nor did he appear to pose a flight risk or danger to the public. He was locked up simply because he was poor. And he died in a jail cell.

Tragically, stories like his are far too common in America, and they are the reason I have introduced the No Money Bail Act of 2016 to reform our system of pretrial detention.

Last July, Sandra Bland was pulled over for failing to signal while driving in Texas. She was put in jail and bail was set at $5,000, an amount she could not afford to pay. Three days later she was found hanged in her cell.  And Qiana Williams, who shared her story at the White House last December and on Capitol Hill this past February, spent weeks in a St. Louis jail because she couldn’t afford to pay court and traffic fees.

Across the country, it comes down to this: People of means are able to pay their way out of jail, while the poor remain behind bars awaiting their day in court.

Even for those who can muster the funds, the money bail system is unfair.

Justice in America should not be bought and paid for.

In San Francisco, 29-year-old Crystal Patterson, who gets by on a $12.50-an-hour job, paid a bail bondsman $1,500 plus interest to post her $150,000 bail so she could return home to care for her grandmother.  She also signed an agreement to pay back the $15,000 bond posted by the bail bondsman. Afterwards, the District Attorney dropped the charges, but, though the bail bondsman would have been returned the $150,000 bail, Patterson is unlikely to ever see the money she paid to the bail bond company.

At any given moment, more than 450,000 Americans are locked up without ever having been convicted of a crime.  In my home state of California, more than two-thirds of those in jail haven’t been convicted, a total of more than 42,000 people.

Moreover, even a few days in jail can be devastating for families—especially those that are already fighting to make ends meet.  Perversely, money bail gives inmates a strong incentive to plead guilty, even when innocent, because they cannot afford bail and need to get back to their families, jobs, or education. Being locked up can also increase an individual’s risk of suicide and depression.

Finally, unnecessary pretrial detention of low-risk defendants is expensive. State and local governments in the U.S. spend an estimated $14 billion annually to incarcerate people who haven’t been convicted of a crime. In contrast, pretrial systems based on risk, rather than wealth, cost on average $7 per day.

For these reasons, most nations consider money bail an obstruction of justice. In fact, the only other country that maintains a large commercial bail bond industry is the Philippines. In the case of our disgraceful bail system, American exceptionalism is decidedly not a good thing.

Any serious effort at criminal justice reform must address our feudal-like bail system, which amounts to modern-day debtors’ prisons.  The “No Money Bail Act of 2016,” which I introduced earlier this year, would eliminate the payment of money as a condition of pretrial release at the federal level, and also would give states three years to switch to alternative systems or else forfeit law enforcement grants.

Justice in America should not be bought and paid for.  For the sake of Jeffrey Pendleton, Sandra Bland, Qiana Williams, and the countless other Americans who have suffered at the hands of our unjust money bail system, it is long past time that the United States join the rest of the civilized world when it comes to pretrial incarceration.



How Expanding Legal Aid Services Supports Reentry and Protects Civil Rights

After nearly 30 years as an employment lawyer, I still remember the first time I spoke with a client who had been turned down for a job because of his criminal record. It was the late 1980s. I remember thinking that I didn’t know the first thing about how to help him. And I remember wondering how many other people might be facing barriers to employment because of criminal records.

Nearly three decades later, we now know that 1 in 3 Americans have some type of criminal record, which translates into nearly three million residents in Pennsylvania, where I practice. And it is well documented that having even a minor record—such as a misdemeanor, or even an arrest that never led to conviction—can serve as an intractable barrier to employment.

Meanwhile, the number of people with criminal records seeking help from the legal aid program where I work, Community Legal Services of Philadelphia (CLS), has grown exponentially.  Today roughly 1,000 people with criminal records request CLS representation every year, comprising roughly two-thirds of our employment caseload.

As the White House commemorates National Reentry Week, civil legal services must be front and center as a vital tool to help people with criminal records get a fair shot at employment.

Helping people earn a clean slate

Record-clearing is at the heart of what CLS does to help people with criminal records, as it is the single most helpful tool to address the barriers associated with having a record. In addition to helping hundreds of clients get their records expunged each year, we conduct expungement clinics in the community to reach people who don’t—or can’t—make it into our offices. And one of my colleagues created “expungement generator” software that assembles expungement petitions from case information available online, allowing us to help many more individuals at once than if we had to enter the information one-by-one.

But no amount of clinics or special software could make it possible for us to help all the Philadelphians held back by criminal records, and we are forced to turn away far more people than we have the capacity to help. Some 82,000 petitions for expungement were filed in Pennsylvania last year alone.  But that is the tip of the iceberg—so many more people qualify for, and need, expungements.

That’s why CLS is working with the Center for American Progress and the transpartisan U.S. Justice Action Network to pass first-in-the-nation legislation that would enable Pennsylvanians to earn a clean slate once they have remained crime-free for a set period of time. The Clean Slate Act, which was introduced by bipartisan legislators in the Pennsylvania legislature earlier this month, has the potential to transform record-clearing for untold numbers of Pennsylvanians who have no access to the legal process.

Protection from employment discrimination

While a clean slate is the surest pathway for people with criminal records to move on with their lives, protections against employment discrimination are critical for those who cannot clear their records. Although people with criminal records are not a protected class, employment discrimination on the basis of a criminal record has for years been held a violation of Title VII of the Civil Rights Act of 1964. That’s because communities of color are disproportionately impacted by the criminal justice system. The Equal Employment Opportunity Commission (EEOC) plays an important role in enforcing Title VII. But without lawyers to file complaints on behalf of people whose rights have been violated, Title VII protections are theoretical at best. Thus, filing race discrimination claims with the EEOC and challenging employers who have turned down our clients for jobs due to criminal records is another key part of CLS’ work.

We’ve also seen—and worked to rectify—gaps in existing laws and policies around hiring discrimination. After many years of advocacy by CLS and others, the EEOC issued a new criminal records policy four years ago, making clear that blanket policies excluding people with records are illegal. It also set forth criteria—such as the nature and length of time since the offense—that must be considered by employers. Similarly, at the local level, working with a broad coalition of partners, CLS helped develop and pass the “fair chance hiring” law enacted in Philadelphia last year.

Another employment barrier that many of our clients face stems from overly broad laws prohibiting employers from hiring people with criminal records. For example, in 1997, Pennsylvania enacted a law prohibiting long-term health care facilities from employing people convicted of crimes as minor as library book theft at any point in their lifetimes, no matter how clearly they had been rehabilitated. CLS filed suit challenging these restrictions, and in December of last year, the law was struck down for violating Pennsylvania’s state constitution.

Improving accuracy in background checks

Another major problem people with criminal records face is erroneous background checks—particularly when they are prepared by commercial screeners, a cottage industry that’s grown dramatically over the last 20 years. Common errors include reporting expunged cases or providing the wrong grade of an offense (such as stating that a misdemeanor was a felony). Sometimes screeners even report cases that didn’t involve the person who is being screened.

In addition to helping our clients correct faulty reports, CLS frequently brings class action lawsuits under the Fair Credit Reporting Act, seeking to fix systemic problems and require companies to ensure accuracy in their background checks.

Over the years, my CLS colleagues and I have developed a practice that helps at least some people who have paid their dues move on and make their way out of poverty. This work has been enormously gratifying. I have never seen clients more overjoyed—or relieved—than when they finally get an expungement, or when the job they’ve desperately needed comes through.

The community of legal aid and public interest lawyers doing this type of work around the country has grown tremendously over the nearly 30 years since I met my first client who’d been turned away from a job because of his record. Civil legal services organizations like mine have come to play a central role in making successful reentry possible for countless people with criminal records seeking to move on with their lives. As we commemorate National Reentry Week, expanding the capacity of civil legal services to help the millions of Americans struggling to enter or reenter the workforce will be key to addressing what I believe is the civil rights issue of our generation.



From the Criminal Justice System to the Department of Justice

For the first time in its history, the Department of Justice (DOJ) has designated this week National Reentry Week, observed this year between April 24th and 30th. As part of this designation, Attorney General Loretta Lynch asked United States attorneys, wardens at the Bureau of Prisons, and members of the Federal Interagency Reentry Council (Reentry Council) to organize reentry-related events across the country. The response has been tremendous with over 200 events planned by our federal partners, ranging from job fairs for the formerly incarcerated to events at federal prisons for children of incarcerated parents. As the inaugural Second Chance Fellow in DOJ’s Bureau of Justice Assistance, I have the opportunity of using this week to reflect on my own reentry experience.

Sixteen years ago, I left prison like many of the 600,000 people released from federal and state institutions each year: full of excitement and trepidation. On the day of my release, my mother and step-father rented a vehicle, a Lincoln town car, to pick me up. At the time, I did not give much thought to the gesture because I was solely concerned with leaving that place as quickly as possible. A few years later, I asked my step-father why they went through the trouble of renting a luxury vehicle, something more suited for a trip to the senior prom, to pick me up from a maximum security prison. His response was that they wanted to make some sort of grand gesture to truly welcome me home.

Over the years, they continued to offer support in both tangible and intangible ways, including providing food, clothing and shelter; helping to fund my college education; and never solely defining me by my past mistakes. Their collective efforts illustrate what I think of as a “Second Chance culture”—a deep, sustained investment in my future success, more profound than any single reentry program or policy. Now, I am hardly suggesting that federal and state governments rent luxury vehicles for the 10 to 12 million people released from prisons and jails each year. But I am encouraging the government and the private sector to adopt policies and practices that embrace a Second Chance culture—one that envisions a prolonged commitment to the successful reintegration of people impacted by incarceration.

The Obama Administration and DOJ—through the Office of Justice Programs (OJP) and the Reentry Council—have taken great strides toward creating a Second Chance culture. Since the passage of the Second Chance Act in 2007, OJP has made over 700 grants, totaling over 400 million dollars, to local reentry programs. These community-based programs meet many of the basic life needs of people with criminal records by providing housing assistance, job training, and substance abuse treatment.

President Obama directed the Office of Personnel Management to “ban the box” for federal employment, which delays questions about criminal history until later in the employment process so applicants with criminal records have a fair chance at competing for jobs.

And members of the Reentry Council from more than 20 federal agencies have adopted policies that remove barriers and create opportunities for successful reintegration. For example, the Department of Housing and Urban Development issued policy guidance to housing providers on how to evaluate people with criminal records when they seek to rent or buy houses or apartments. Moreover, the Department of Education started a pilot program to give currently incarcerated people access to post-secondary education.

No person is defined by their contact with the criminal justice system—and everyone deserves a second chance.

Importantly, Assistant Attorney General Karol Mason, who oversees OJP, is issuing policy guidance to 15 offices within OJP encouraging them, when appropriate, to avoid using terms like “ex-offender” and “ex-felon,” in an effort to diminish the stigmatization of people who have been justice-involved. And most notably for me personally, DOJ created the Second Chance Fellow position, specifically for a formerly incarcerated criminal justice expert, to help advise the Bureau of Justice Assistance (BJA), the Reentry Council, and the entire Department on effective reentry policy and practice.  These combined efforts are the foundation of a Second Chance culture at the federal level because they signal a long-term, sustained commitment to improving the lives of millions of people with criminal records.

During my fellowship, I will contribute to the Department’s burgeoning Second Chance culture by advising the Second Chance portfolio of BJA, consulting with the Reentry Council on effective reentry policies, and serving as a conduit to the broader justice-involved population to ensure that DOJ is hearing from all stakeholders. The latter charge—garnering the perspectives of formerly incarcerated people to inform effective reentry policy—is critically important, as well as essentially uncharted territory for DOJ and most criminal justice agencies. I will compile the perspectives of formerly incarcerated people through a series of qualitative interviews with highly successful formerly incarcerated leaders. The goal will be to learn what about reentry works from people who have actually done it and are now making tremendous contributions to their communities.

Another benefit of the interviews is that they will be digitally recorded and compiled into an online story bank accessible the public. The purpose of the story bank is to challenge the pervasive negative stereotypes of people with criminal records, with the aim of humanizing the justice-involved population and thereby creating more public momentum for the adoption of effective reentry policy.

If America does not embrace a Second Chance culture, we miss the opportunity to reduce victimization, save precious public safety resources, and, most importantly, capitalize on the potential of people who have paid their debt to society and now want to contribute to their communities. Missed opportunities risk negatively impacting the economic vitality of the country as we undergo important demographic shifts. Over the next few decades, the Baby Boomer generation will age out of the workforce, while the majority of our nation’s population will become people of color. If African-Americans and Latinos, who comprise roughly 60 percent of the prison population, are denied the ability to get a job or an education to build their human capital, then there will be fewer qualified people to replace a dwindling workforce. A less qualified workforce means lower economic activity and production, which hurts the entire country.

National Reentry Week is an opportunity to acknowledge that no person is defined by their contact with the criminal justice system—and everyone deserves a second chance. Let us also use this week as a chance to embrace a larger cultural shift wherein we seek to invest in the long-term success of those who have been involved in the criminal justice system. The very health of our country depends on it.

The views expressed are the author’s and do not necessarily represent the views of the U.S. Department of Justice.


First Person

What I Told the Attorney General and the HUD Secretary About My Criminal Record

After four decades of mass incarceration and over-criminalization in the United States, as many as 1 in 3 Americans now have some type of criminal record, and nearly half of U.S. children now have a parent with a record.

Today, as part of the Department of Justice’s inaugural National Reentry Week, Attorney General Loretta E. Lynch and Department of Housing and Urban Development Secretary Julián Castro visited Philadelphia to hear how brushes with the criminal justice system have stood in the way of employment, housing, and more—and how people have persevered.

Here are three stories told to Attorney General Lynch and Secretary Castro—they are representative of the experiences of millions of Americans held back by a criminal record.

Ronald Lewis: “So many doors have been closed in my face I know what wood tastes like.”

More than 10 years ago, when I was 25, I was convicted of two misdemeanors.  In one case, I was on the street with my brother when he was selling drugs, and I warned him that the police were coming. In the other, I tried to steal a pocketbook at Neiman Marcus.  I did my probation for these cases, and have been a law-abiding citizen ever since.

I am a father, a husband, a son, a friend, and ambitious to get ahead in life. I got a building engineering license in hopes of getting a good job. I am starting my own company so that I can give other people second chances working for me. I give freely of my time to be a role model to kids in my community and to younger men who are tempted by the streets. But to so many people, I am an “ex-offender,” and nothing more.

I’ll never forget the first time I was turned down for a job because of my record. I had been on the job for about a month when my background check came back. I was called into Human Resources and told they had to fire me because of my record. Security was called to immediately remove me from the building. It was the worst feeling of my life. It was humiliating to tell my family, who had been so proud of me, that I had failed again.

That was the first of many times that I was turned away from jobs I was qualified for because of my minor record. More times than I can count, companies have told me, “You’ll be great. Your skills are exactly what we are looking for.” But then that question about my background comes up.  So many doors have been closed in my face, I know what wood tastes like.  And because of my record, I can’t even take my kids on school field trips.  Do you know how devastating that is?

I do not and will not give up. My family is depending on me. My children are depending on me. I hope that one day, my record can be cleared, reflecting who I am now. That is why I am speaking out to support the Clean Slate Act, a bill in the Pennsylvania legislature that would automatically seal non-violent misdemeanor convictions after someone has remained crime-free for 10 years, as I have. This law would make a world of difference for people like me—and for our families and kids.

Helen Stokes: “I was denied from senior housing because of my arrest record”

I was 56 the first time I was ever arrested, in 2008. My husband, whom I later divorced, attacked me. When I called the police, he claimed that I had assaulted him. Can you imagine? Then two years later, after I took his ATM card for our joint account so that he wouldn’t spend our money on drugs, I was arrested for theft. Both times, the charges were dropped. I have never been convicted of a crime in my whole life.

After that, even though I had not been convicted, I got turned down for jobs because of my arrest record. Eventually, in 2014, I went to Community Legal Services for help. My lawyer got my cases expunged, and I thought that was the last I would hear of them.

I can’t even take my kids on school field trips. Do you know how devastating that is?

But about six months later, when I was trying to move into subsidized housing for seniors, I was denied admission because of the record that I wasn’t supposed to have anymore. I couldn’t believe it. I called the lawyer who had gotten my cases expunged, and she called the property managers and provided my expungement orders, but they still wouldn’t let me in. I had tears in my eyes when I got the rejection letter. Even after I told RealPage, the company that had done the background check, about my expungements and filed a dispute, they again reported my expunged cases to another senior housing facility, which also rejected me.

By this point, I was panicked. My house was being foreclosed on since I could no longer afford the mortgage payments after my divorce. I was worried that I would end up on the street or that I could no longer live on my own.

Eventually, a social worker at Community Legal Services helped me find a senior apartment, where I will soon be moving. It is a huge relief. But I don’t understand why senior housing would hold cases like this against me to begin with, given that I wasn’t even convicted.

Community Legal Services has since filed a class action lawsuit against RealPage for illegally reporting expunged cases like mine. I am proud to be the main plaintiff in that case, because I think justice must be done for other people like me. Background check companies like RealPage must learn that they cannot report expunged cases. But housing facilities should also give people like me a fair chance instead of turning people away just because of an arrest record.

Tyrone Peake: “Employers weren’t allowed to hire me because of my 30-year-old record”

When I was 18 years old, I was arrested with a friend for trying to steal a car. We had our girlfriends in town for the weekend. When one of the girls’ mothers insisted that she come home, we tried to steal a car to take her back. Mind you, I couldn’t even drive—and we weren’t even able to get the car started. But we had broken open the ignition, and I ended up being convicted of attempted car theft. I did three years of probation, and I never got in trouble again.

I am now 53 years old. I raised three daughters who are now all grown up. All my life, I’ve had a passion to help people, so I decided to pursue an associate’s degree so I could do health care work, graduating from Community College of Philadelphia in 2014. I never dreamed that a mistake I made when I was 18 years old would follow me for the rest of my life. But until recently, my decades-old record kept me from getting a full-time job in the field I’d gone to school to work in.

After I got my degree, I learned that Pennsylvania had a law that prohibited me from working in long-term care jobs because of my record. Even though more than 30 years had passed without me getting into trouble again, employers that wanted to hire me were not allowed to because of the law.  I eventually got a part-time job working as a recovery specialist, but the law prevented me from doing other jobs with the organization no matter how qualified I was—and no matter how much time had passed since my conviction.

Last year, Community Legal Services and pro bono lawyers challenged the law on behalf of me and other Pennsylvanians who had unfairly been stopped from working in jobs that we should be able to have. In December, Pennsylvania’s appellate court agreed with us and struck down the law.

The problems that I had because of my record caused me to doubt myself—and my future—for a long time. But I have a lot of joy knowing that this unfair law has been changed, there is a lot of hope and opportunity for me and others who come behind me and are trying to get ahead.

Editor’s Note: All three of these individuals were represented by lawyers in Community Legal Services’ Employment Unit. They gave permission for CLS and to share their stories to help shine a light on the lifelong barriers associated with having even a minor record.

To commemorate National Reentry Week, will feature posts throughout the week by leaders on reentry—all exploring the barriers to opportunity facing people with criminal records, and why addressing these barriers is a critical part of criminal justice reform.