DC and States With “Ban the Box” Laws Ban People With Criminal Records From Work

March 10, 2016

We’re familiar by now with ways employers screen out job applicants with criminal records. Seven states and the District of Columbia have adopted “ban the box” laws to give these applicants a fair shot at gainful, legal work.

Turns out that all these states and the District have other laws or regulations that deny them any shot at jobs in various occupations where they could get paid a good bit — or become their own employer in these fields. Does the right hand know what the left hand is doing?

A new report on “employment bans” from the Alliance for a Just Society suggests probably not. The bans here are laws that deny occupational licenses to people who’ve been convicted of certain crimes — or in some cases, any crimes at all.

One can see, I think, reasons for certain bans. A prudent concern for public safety could justify denying licenses as armed guards to people convicted of irrational crimes of violence when they first return to the community.

Someone with multiple convictions of drug dealing on a major scale perhaps shouldn’t get a license as a pharmacist right away. Denying a license to operate or work in a daycare center to someone convicted of child sexual abuse would surely seem reasonable.

But we see that the District reportedly has 72 crime-related restrictions on employment, including 35 applicable to occupational licenses or certifications and others (the number isn’t clear) that restrict business licenses. Illinois, which also has a “ban the box” law, has more than twice as many of the former.

The report, eye-opening as it is, lacks details one might wish for. Happily, the American Bar Association has an online database that specifies “collateral consequences” for licenses, by occupation and jurisdiction.

Some of the District’s one might understand, e.g., a ban on employment as a security officer after conviction of a weapons offense. Others you have to read to believe.

For example, the District denies licenses to buy and/or sell “junk/secondhand personal property” to people convicted of any felony. Any felony or misdemeanor renders someone ineligible for a real estate license or a license to act as an agent for athletes.

Most of the licensing barriers people with criminal records may face aren’t so clear because the ABA (rightly) classifies them as “discretionary.” This is true not only for the District, but for states, my random check indicates.

The District generally invests wide discretion in boards specific to particular occupations or categories thereof. They’re supposed to deny licenses to applicants with criminal records only when the offense “bear[s] directly on the fitness of the person to be licensed.”

Well, what does that mean? Whatever folks on the board decide apparently. But they’ve no such discretion when it comes to ten occupations the law exempts, leaving these to the Mayor’s discretion through the rulemaking process.

A strange collection here. Barbers and cosmetologists, for whom apparently rules were issued barring only those found guilty of “moral turpitude” — as if having knowingly filed a false tax return has anything to do with whether one can skillfully and safely cut hair (or fingernails).

Others in the exempt category include funeral directors, commercial bicycle operators and people who specialize in several types of building systems installation and repairs. What, one wonders, led policymakers to subject these occupations to different standards?

The more important question, of course, is why people who’ve paid their debt to society should suffer “collateral consequences” when they seek licenses to work in occupations they’re demonstrably qualified for, except when their records raise well-founded concerns about harms to others.

I’ve focused here on the District, but returning citizens face barriers to work that engages –and rewards — their specialized skills and/or knowledge everywhere, beyond the prejudices of individual employers. This is also true for some people who had no jail or prison term to return from.

The White House has raised concerns about these barriers, noting that as many as one in three Americans has a criminal record. Like half the states, the District has no standards specifying the relevance a conviction must have to a particular license, it says.

It cites other concerns as well, e.g., fees and the costs of tuition to meet the education or training requirements. These presumably close doors to many returning citizens, as well as other low-income people. And the need for these isn’t always obvious, as a selective account compiled for the District by the Institute for Justice shows.

Occupational licensing has burgeoned. Roughly five times as many workers were covered by state licensing laws in 2008 as in the early 1950s. Nearly two-thirds of the growth since the mid-60s reflects licensing in new occupations — and in new sectors, e.g., sales, construction.

All states and the District must soon submit comprehensive workforce development plans to receive funds authorized by the Workforce Innovation and Opportunity Act — the new version of the Workforce Investment Act.

The plans must include success measures, with results reported separately for groups with especially high barriers to employment, including ex-offenders.

And they’re to include provisions for career pathways, i.e., individualized sequences of work experience, education and/or training and other services that will qualify them for increasingly advanced positions in high-demand fields.

Looks like a goodly number of those pathways for ex-offenders could lead to “do not enter” signs states and the District have posted. They’d be well-advised to reassess them if they want fewer re-offenders.


Homeless Couple on the Lam to Keep Child Out of Foster Care

August 6, 2015

Sometimes foster care is the only way to keep children safe. All we know, however — and we can know a lot — tells us it should be a last resort.

Yet a mother — let’s call her Carey — had to flee her home state to avoid losing her two-year-old to the child protective services agency, though her child suffered neither abuse nor neglect, she told me. And I’ve every reason to believe her.

Her story is in some ways not unique, but in other ways it is — as, of course, is everybody’s story. I’m going to try to tease out what’s not unique from the fabric of particulars she shared.

Carey, her toddler and her fiance — let’s call him Mike — never had a home of their own. They’d been living with her mother, but had to leave because she was moving to a place where she couldn’t house them. This is a fine — and hardly unique — instance of how unstable doubled-up situations usually are.

Carey and Mike decided to live in a tent at a campground because that was so much cheaper than staying in a motel. They thought they could save enough to cover the upfront costs of renting. And perhaps they could have, since he was working.

The campground had running water, bathrooms with showers and electricity (for an extra fee). The family had enough food, thanks to a combination of food stamps and Mike’s wages. Carey was around to care for her child 24/7.

Well, someone reported them to CPS, which sent out a caseworker, as it should have. The caseworker told the couple they’d have to move to housing within two weeks. The agency — or some other source — would pay the security deposit and first month’s rent.

The couple couldn’t find an affordable place within such a tight deadline. So they decided that Carey and the child would move in with Mike’s dad, while Mike stayed at the campground. This, they thought, would placate the caseworker while giving them more time to find an apartment. It didn’t. The caseworker insisted they all had to stay together and move to housing PDQ.

Another avenue opened up long about this time. Carey had applied for a federal Housing Choice voucher and learned she’d been approved.

A new deadline then — 60 days to sign a lease. But the couple couldn’t find a landlord who’d rent to them. The problem, Carey says, is that Mike has a criminal record — not for a recent offense, however, nor one that would clearly flag him as likely to harm other tenants or property.

But private landlords can generally screen out applicants with criminal records so long as they don’t target those protected by civil rights laws. Such data as we have indicate that many do.

Carey asked for an extension of the lease-up deadline. The housing authority’s protocol apparently included this option. But CPS wouldn’t let the couple continue the search while still caring for the child.

So to keep her, the family left the state for a place far away, where they could stay with Carey’s sister. “I was pushed out of my hometown,” Carey says. And the family’s situation is more precarious now.

Mark’s out of a job — and without a car because the one he had broke down en route. He’s got a work history, of course, but also a criminal record. And we know that’s a common screen-out factor.

Meanwhile, the caseworker was bound and determined to find the family. S/he issued threats through relatives — an Amber alert, an arrest warrant.

Carey feels unjustly hounded. “We are a good family in a bad situation,” she says. “My daughter is my life.” She’d be “traumatized to be taken from her mom and dad.” Children often are, the research tells us.

I couldn’t get the CPS side of the story, of course, but what Carey says seems credible. Surely CPS would have taken custody of the child forthwith if there were even inklings of imminent harm.

I’d like to think this story is a one-of-a-kind thing. Some singularly single-minded caseworker more intent on getting his/her way than on the child’s welfare.

Perhaps, though the risk of losing a child to foster care because of inadequate housing isn’t. So I think it’s worth asking what should have happened. We can look at this from two angles — finding housing and family protection.

From the first, someone — perhaps at the housing authority or the agency that administers homeless services — could have helped the couple find a low-cost apartment a landlord would rent to them. This might include actually talking with landlords or engaging faith-based organizations and other nonprofits to do that.

As part of its push to rapidly re-house more homeless families, the D.C. government has hired “navigators” to, among other things, negotiate with landlords so they’ll rent to those with poor credit and rental histories. Seem to me that criminal histories could be subject to negotiations of this sort too.

On a broader and more affirmative front, the local or state government could have prohibited landlords from discriminating on the basis of criminal records unless they could justify exclusions in particular cases.

Eighteen states, the District of Columbia and many more local governments have already taken this approach to give people with criminal records a fairer chance of employment. So far as I can tell, only one city has done the same for housing.

If any such help or legal protection were available to Carey and Mike, they obviously didn’t know it. Which brings me to the other angle. The couple should have had a lawyer — or a supervised budding lawyer.

They would, of course, have needed free services like those provided by legal aid societies, other nonprofits, law school clinics and attorneys in private practice who volunteer through a pro bono program.

Carey believes that she and Mike could have found a landlord to rent to them if they’d just been given more time. Knowing a fair number of lawyers, I’m quite confident that one could, at the very least, have gotten the caseworker to back off — or the agency to pull him/her off.

Expert legal help might also have made the housing search less challenging because Mike could perhaps have gotten his criminal record expunged, i.e., sealed from disclosure to landlords, as well as others.

So the story Carey told me could have ended very differently. One can only hope that the sequel better rewards the love, determination and resourcefulness that led to her and Mike’s exile.



Criminal Records a Major Piece of the Poverty Puzzle

December 15, 2014

“One Strike and You’re Out,” the Center for American Progress entitles its new report on the barriers people face when they’ve got criminal records. An astounding number of people do — far more than our decades-old enthusiasm for incarcerating people would lead us to expect.

Our anti-poverty agenda “risks missing a major piece of the puzzle” if it doesn’t deal with the barriers, the CAP report says.

They’re a reason many people are homeless — and state and local governments so strapped for funds to house them. They’re even, in some places, a reason poor families go hungry. And they help account for the racial inequality that’s once again in the news.

Other bad things too, e.g., untreated mental health and substance abuse problems, a dent in our country’s economic productivity. More than I can possibly deal with in a post. So a partial overview of the problem. A followup perhaps on CAP’s “road map” to address it.

Vast Number of Criminal Records

At the end of 2012, states, the District of Columbia and the U.S. territories collectively had criminal record files on nearly 100.6 million people. Some files may reflect arrests and/or convictions in more than one jurisdiction, however.

An analysis by the National Employment Law Project estimated a rounded-up 65 million unduplicated files on adults in 2008-9. Still a very large number — close to one in three Americans then. And we’ve no reason to believe the percent is lower now.

Much has been made of our extraordinarily large prisoner population — by far and away the largest reported for any country in the world. But many who’ve got criminal records were never behind bars. Some were arrested, but not convicted. Some not even tried.

Others were convicted of petty, nonviolent offenses, including things like disorderly conduct, drunkenness and harmless behaviors cities have prohibited to harass homeless people out of sight — or out of their turf altogether.

Not an Equal Opportunity Problem

A book published several years ago argued, as its title indicates, that mass incarceration, i.e., the unprecedented rate at which we imprison people, has become “the new Jim Crow” — a supposedly color-blind replacement for overt racial segregation.

We’ve got federal laws prohibiting race discrimination in employment, housing, education, other federally-funded programs and (putatively) voting. But it’s perfectly legal to discriminate against felons, except in some limited cases carved out by recent state and local laws.

And felons are disproportionately blacks and Hispanics, the former even more than the latter. A recent Sentencing Project fact sheet tells us that black men are six times more likely to be incarcerated than white men and Hispanic men 2.5 times as likely.

One in three black men is likely to be imprisoned as some point, as compared to one in seventeen white men. Though black women are less likely to go to prison, the disparity between them and white women is even greater.

What this means, of course, is that far higher percents of blacks and Hispanics will suffer the lifelong penalties of having a criminal record.

Rampant Use of Background Checks

At least 95% of people sent to state prison will be released. But that doesn’t mean their punishment will end. Their criminal records will significantly limit their opportunities for (legal) work. This is surely a major reason that more than 40% of people released from state prisons are back behind bars within three years.

People with criminal records may also have a hard time renting an apartment, even if they can afford it. They may, in some cases, have no chance at all of living in public housing, even with a family member who’s never had a run-in with the law.

The limited, but expandable public housing ban dates back to 1988. The private-sector barriers may be at least as old. But they weren’t nearly as high and wide as they are now.

In a way, the culprit here is the internet. Like much of our lives, past and present, criminal records are easy to find online. Entrepreneurial types have seized on the opportunity to provide “instant” background checks.

About 86% of employers recently surveyed ran (or commissioned) background checks on applicants for at least some jobs. For 76%, discovery of a nonviolent felony would be a “very influential factor” in the decision not to hire.

More surprising, at least to me, is the fact that roughly two-thirds of colleges surveyed in 2009 collected criminal history information from all applicants. And 55% said they considered it in deciding whom to admit.

We’ve no comparable figures for landlords. We do, however, have a survey finding that “only” 51% of landlords who managed their own buildings conducted criminal background checks. We’re left to infer that the percent is far higher — and told that neighbors are far safer — when buildings are professionally managed.

Tattered Safety Net

Criminal records are a direct cause, as well as a consequence of poverty, the CAP report says. In fact, one study concluded that the poverty rate would have fallen by more than 20% between 1980 and 2004 if we hadn’t engaged in mass incarceration.

The people whom criminal records trap in poverty may also fall through deliberately created holes in our safety net. As I’ve already mentioned, they may be barred from public housing — and for sure will be if they’d been convicted of manufacturing methamphetamines, no matter how long ago.

They may also be banned, for life, from receiving SNAP (food stamp) benefits and/or Temporary Assistance for Needy Families if they were convicted of any drug-related felony. Eight states have chosen to preserve the absolute bans on both, though federal law allows them to opt out.

Most other states have merely modified the bans, e.g., by exempting people convicted only of drug possession or those who’ve managed to get a slot in a substance abuse treatment program.

Only 14 states have decided that one strike should never mean you’re out of SNAP and TANF. Food on the table, some cash for the dreadfully poor, job training and affordable child care all surely help people who’ve returned to the community stay there successfully.

And they mean that the ill-advised “get tough on crime” policies won’t cause more collateral damage to children than they already do.