The future sustainability and vibrancy of the U.S. economy is contingent on full workforce participation. This begins with cultivating the gifts and talents of each individual. It is further manifested through the unveiling of the limitless potential of innovation. The culmination of these elements is the very essence of the “American Dream”—the power to work, build, and create a brighter future. Unfortunately, the realization of this dream has become unobtainable for many who have a criminal record. It can serve as a relentless and persistent impediment to employability, which negatively impacts an individual’s ability to contribute to the future of economic development. A criminal record can restrict one’s access to employment, higher education, and even professional licensure. An estimated 70 million Americans, one in three adults, have a criminal record that poses an active barrier to economic and social mobility. Acclaimed attorney and author Michelle Alexander describes this experience as entering a parallel universe, “one that promises a form of punishment that is often more difficult to bear than prison time: a lifetime of shame, contempt, scorn, and exclusion” (The New Jim Crow: Mass Incarceration in the Age of Colorblindness, New Press, 2010). This parallel universe creates a tangled web of incarceration with far too many entry points into the criminal justice system and far fewer exit points.
Incarceration Capital of the World
The United States has been described as the incarceration capital of the world. With only about 5 percent of the world’s population, the U.S. incarcerates more than 20 percent of the world’s prison population. There are nearly 2.3 million people incarcerated in the United States. In addition, race matters; there are more African American males now under the custody of our penal system than were enslaved during the 1800s. Furthermore, recent trends show a sharp increase in the number of women incarcerated. Between 1980 and 2017, the number of incarcerated women increased by more than 750 percent, rising from a total of 26,378 in 1980 to 225,060 in 2017. Moreover, incarceration directly impacts family dynamics when more than 2 million children have an incarcerated parent. The culmination of this data illustrates the societal impact of incarceration on those who have contact with the criminal justice system, their families, their community, and society at large.
Incarceration also has a long-term economic impact. It is a burden on the national budget when imprisonment costs on the average of $31,000 per offender; in some states it can cost more than $60,000. In many instances, this allocation exceeds the average cost of higher education, vocational training, and job development programming when the average tuition at a public institution is $9,716. A report from 2010 indicated that incarceration costs the United States $75 billion annually. The consequences of unemployment for those with a criminal record have a far-reaching effect on the national economy. At the national level, economists estimate that the gross domestic product (GDP) is reduced between $78 billion and $87 billion as a result of excluding formerly incarcerated job seekers from the workforce. These resources could also be re-allocated to support other national budget priorities such as health care and education. In addition, when 95 percent of those individuals who have experienced imprisonment return home, there is an imminent need for reentry support (i.e., education, skills development).
The impact of incarceration is exacerbated by collateral consequences. Collateral consequences can be defined as hidden sanctions that emerge automatically at the onset of a criminal conviction. They are referred to as “hidden” because they are not formally quantifiable in a sentence or imposed penalty. According to the National Institute of Justice:
Unlike the direct consequences of conviction, such as imprisonment and fines, the indirect—or collateral—consequences of convictions rarely play a prominent role in sentencing or plea negotiations and are often not discussed with the accused. These sanctions and disqualifications are automatically triggered by a conviction but are not part of the punishment set out by sentencing or a plea deal.
The most commonly known collateral consequences are restrictions on voting and firearm ownership. Collateral consequences may also impact immigration status. Thus, attorneys must inform clients during certain criminal proceedings about the ramifications. Based on the Supreme Court ruling in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), in criminal defense cases, lawyers “must advise their noncitizen clients considering a guilty plea that they are likely to be deported as a result” (Gabriel J. Chin and Margaret Love, “Status as Punishment: Padilla v. Kentucky,” Criminal Justice, Fall 2010 (25:3), at 21–62).
Despite the lack of awareness of collateral consequences for the general public and attorneys alike, the ramifications of collateral consequences are broad and expansive. These consequences can:
- lead to difficulty in gaining employment;
- restrict access to professional licenses;
- limit financial aid opportunities; and
- restrict access to public benefits
The National Institute of Justice’s National Inventory of Collateral Consequences of Conviction serves as a key learning tool for gaining a deeper understanding about collateral consequences and their lingering impact. It is a national database with more than 44,000 collateral consequences identified and analyzed.
Hiring and Employment
Becoming gainfully employed is one of the key exit points out of the criminal justice system. Studies demonstrate that employment can reduce recidivism and promote community building. Employment creates an opportunity for individuals to have a second chance at life by providing for themselves and their families. This, in turn, impacts upward mobility, wealth building, and overall quality of life. Joblessness has been identified as the single most important predictor of recidivism. Recidivism evaluates the rate at which an individual returns to the criminal justice system after being released from prison. An unemployed offender is more than twice as likely to reoffend than those who are employed.
The potential for a brighter future for those who have been incarcerated is often overlooked. People are stigmatized by their past. A felony conviction then becomes a looming, permanent “Scarlet Letter” that reads “F” for felon. However, this analysis overlooks the transformative power of a second chance. Father Gregory Boyle, Jesuit priest and founder of Homeboy Industries, a comprehensive reintegration social enterprise, characterizes the power of employment best when he stated: “Nothing stops a bullet like a job” (interview with Nico Pitney, “Nothing Stops a Bullet Like a Job,” Huffington Post, September 24, 2015,). His words serve as a reminder that job opportunities can disrupt the cycle of incarceration and promote safe communities.
According to How Hiring Formerly Incarcerated Job Seekers Benefits Your Company, a 2017 report by the American Civil Liberties Union, “nearly 75 percent of formerly incarcerated individuals are still unemployed a year after release”. Managers and human resources (HR) personnel recognized that workers with a criminal record bring value and skills to the workplace. According to Workers with Criminal Records, a nationwide study by the Society for Human Resource Management, “more than 80 percent of managers and 67 percent of HR professionals surveyed felt that workers with criminal records bring the same amount (or more) value to the organization as workers without records. And a majority of workers in all roles said they are willing to work with employees who have criminal records”.
Guidance for Employers
Despite the best of intentions and recognition of the magnitude of the challenges associated with incarceration in the United States, some employers still use blank exclusion practices that bar hiring a person with a criminal record. Others are simply bound by their biases and stereotypes associated with incarceration and being labeled an offender. Grassroots advocacy has led to the adoption of “Ban the Box” initiatives (removing from job applications the questions associated with having a criminal record) and support of reintegration programs. However, a widespread challenge exists when more than 640,000 community members are released from prison each year and nearly 75 percent of formerly incarcerated individuals do not have a job a year after release.
The Equal Employment Opportunity Commission (EEOC) offers guidance for employers for creating fair, reasonable, and just hiring practices. The EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 serves as an invaluable tool for employers. According to “Hiring Felons: 6 Rules Employers Need to Know” (HR Insights Blog, July 10, 2013), this EEOC Enforcement Guidance “suggests that excluding job applicants who have criminal records may constitute employment discrimination under Title VII of the Civil Rights Act.”
The EEOC guidelines are summarized by “Hiring Felons: 6 Rules Employers Need to Know” as follows:
- Employers should not ask about convictions on job applications. Inquiries should be limited to convictions for which exclusion would be job-related for the position.
- Employers should avoid policies that automatically exclude people from employment based on only certain criteria (such as criminal status)—particularly “blanket exclusion” policies.
- Employers should avoid hiring practices that result in adverse impact for a protected group (such as on race, national origin, etc.). Employers should regularly investigate whether their background screening practices are resulting in adverse impact for a protected group.
- Employers should be cautious about excluding employees from the hiring process based on their criminal record, especially if the criminal offense is unrelated to the job.
- Employers should consider other factors relative to the conviction, including the facts or circumstances of the offense/conduct, the number of offenses the individual has been convicted of, the age of the convictions, the length and consistency of employment history before and after the offense, rehabilitation efforts, and references.
- Employees should give all applicants a chance to explain their criminal records.
Again, according to “Hiring Felons: 6 Rules Employers Need to Know,” the scope of potential exclusions can be broad:
Too often, employers exclude candidates who have any sort of criminal record, which can include misdemeanors, arrests that did not result in a conviction, and convictions for crimes not relevant to the job. Additionally, employers should be aware that when using criminal records to exclude applicants, they may be inadvertently adversely impacting race. Refusal to hire convicts disproportionally impacts African American men.
Creating equal access to employment will require intentional action and coordinated efforts. One such action is the enactment of the First Step Act, signed into law December 2018. This bipartisan effort has drawn national attention to the need for widescale criminal justice reform. The Act reduces prison sentences for nonviolent offenders and combats recidivism. It retroactively applies the Fair Sentencing Act of 2010, which reduces the disparity in sentencing for crack cocaine versus powder cocaine. Nearly 3,000 federal prisoners can seek relief as a result of this new law. The First Step Act will help create a pathway for future opportunities related to obtaining employment, fostering community-building, and promoting reentry upon release from prison.
Several employers have taken a proactive approach by working in partnership to advance an initiative led by the Society for Human Resource Management (SHRM). Employers such as IBM and Walmart have pledged to support hiring individuals with a previous criminal history. Johnny C. Taylor Jr., chief executive officer of SHRM, has issued a clarion call to HR professionals. He challenged them to leverage their influence and model the way on the path of inclusive hiring: “I encourage HR professionals to lead conversations about inclusive hiring at their organizations so other executives can make informed, sensible and beneficial hiring decisions” (Lisa Nagele-Piazza, “3 Ways HR Can Help Close the Skills Gap,” SHRM website, June 23, 2019). Through these conversations and strategic action, second chances will be obtainable for individuals with a criminal background. Prospective applicants will be able to compete in the hiring process based on merit, including an evaluation of qualifications, education, training, and preparation for the job. Further, myths and stereotypes about having a criminal record will be dispelled, therefore creating new inroads to employment.
With an eye to the future, lawyers, policymakers, employers, and community members can create a more just and inclusive society together. This will require education, awareness, policy changes, inclusive hiring, and a commitment to second chances.