Gayil Nalls, Ph.D.

Gayil Nalls Ph.D.


Susan Silver: Job Justice

12 million Americans are ex-offenders of working age and can't get a job.

Posted Jun 28, 2016

This past May, I co-curated a panel discussion called While You Were Texting. It was concerned with deserving topics that often do not get enough of our attention. One exceptional presentation dealt with the problem of how to help individuals who have served jail time successfully re-enter society in a productive and meaningful manner by joining the workforce.

Susan Silver, an Appellate Public Defender attorney with the New Jersey Office of the Public Defender, spoke about her clients, who have all been convicted of a crime. All are ex-offenders who have paid their dues, but need help to secure employment. Silver says, “We live in a mass incarceration society with 2.2 million people in custody. That's one out of every 100 Americans. Almost all of them are eventually released. Close to 2,000 people every day leave jail and prison. This is over 725,000 people each year. They are a diverse group of people but they share one thing in common: each and every one of them needs a job. Their successful re-entry is a matter of both our compassion, as well as our self-interest.”

Data from the Bureau of Justice Statistics estimate that the United States has between 12 and 14 million ex-offenders of working age. Jail time dramatically lowers the chances that these individuals, ninety percent of whom are men, can find work. Susan Silver’s years of experience has resulted in an outline of twelve recommendations to reform the criminal justice system’s release and integration process. In her words, they are as follows:

Susan Silver, May 1 (Labor Day), 2016, New York City

So what works? I have 12 recommendations to really increase opportunities for hiring ex-offenders.

First, this might sound dramatic, but we should eliminate the criminal record entirely after a certain period of time. Research shows that after seven years of being conviction-free, someone with a criminal record has no greater likelihood to re-offend, than someone with no criminal record. So what I'm proposing is that we shut off access to public databases that show criminal convictions, when someone has been conviction-free for seven years after they get out of prison.

Second, we should enact “ban the box” laws that prevent employers from asking about an applicant's criminal record until later in the process. Typically, it's after an interview or after a conditional job offer is made. “Ban the box” laws give ex-offenders a chance to explain themselves, and to really make their case and show that they're worthy before they're just simply ruled out of question. Fifteen states have “ban the box” laws. New York is not one of them. In fact, just as recently as this past month, there has been research that shows that “ban the box” laws increase employment, particularly in the high crime neighborhoods. In Minneapolis, the “ban the box” policy led to hiring nearly 60 percent of applicants, for whom the background check would have raised potential concern.

Third, we should give economic incentives, such as tax credits, to hire ex-offenders. We do have a federal Work Opportunity Tax Credit that does provide limited tax breaks. We should expand this to include state laws as well.

Fourth, we should reduce an employer's exposure to negligent hiring liability. For example, in Kentucky, an employer cannot be assessed punitive damages for an employee's act, unless the employer authorized the conduct or should have anticipated the conduct.

Fifth, we should tweak laws that prohibit ex-offenders from getting licenses or employment. Most states bar ex-offenders from certain occupations like law, education, real estate, nursing, medicine. Six states, including New Jersey, permanently bar ex-offenders from public employment. A carefully drafted bar makes sense, but we need to ensure that these laws are not overly broad, because we don't want to be disqualifying competent people just because 40 years ago they had a minor indiscretion that's unrelated to the job they're now seeking.

Sixth, we should provide education, job opportunities, job training opportunities, and work support, to make ex-offenders more marketable. Research shows that these sorts of resources help ex-offenders secure jobs and break the cycle of crime. We need to combine job search and placement support with services that address an ex-offender’s barriers to employment, such as low skills and substance abuse. One program, called “The Prison Entrepreneurship Program,” that's in Texas helps inmates build business skills while they're in prison, and then meets them at the prison gate when they're released to connect these individuals with jobs, as well as health care and housing. And in this particular program, 93 percent of the participants remained arrest-free for three years after their release from prison.

Seventh, we should help ex-offenders get identification documents that they'll need to apply for a job. Just this last week, U.S. Attorney General Loretta Lynch urged states to allow inmates to trade their prison ID for state-issued ID (which they need to seek employment). In Texas of all places, they have a mobile unit that issues identification cards to people leaving prison, which they need to get a job.

Eighth, we should amend anti-discrimination laws to protect ex-offenders from unfair discrimination. Wisconsin has a broad law that prohibits employment discrimination based on a person's arrest or conviction record. New York's law is much more narrow. They enacted a law here in 2010 that prevents an employer from denying a job based on a person's record, unless there's a direct relationship between the past offense and the specific license or job, or unless it's deemed necessary to prevent unreasonable risk to safety or property. The American Law Institute is proposing an update to the model penal code that would turn collateral consequences of conviction into discretionary sanctions, require that the sanctions expire at the end of the sentence, and create a certificate of good conduct available to an inmate five years after release from prison. And this kind of an update could actually have a broad impact, because many states model their sentencing laws on the model penal code.

Ninth, we should amend federal statutes like Title 7 to include ex-offenders as a protected class under federal law. In 2012, the Equal Employment Opportunity Commission issued guidelines that advised employers that they may be violating civil rights laws if they consider criminal records when it's not related to the job at issue. The EEOC guidelines could be further strengthened to limit an employer’s use of criminal records to only recent offenses of a serious nature.

Tenth, defense attorneys should be required to explain to their clients the collateral consequences that stem from a guilty plea. This is now feasible because the American Bar Association recently cataloged all the collateral consequences in an online database called “The National Inventory of Collateral Consequences of Conviction.” In North Carolina, the state passed a law that requires that the state notify defendants of collateral consequences, and also allows for people and those defendants to mitigate those consequences in certain circumstances.

Eleventh, we should require prisons and jails to develop discharge plans when people are leaving the jail or the prison to help connect those individuals with appropriate community resources to find jobs, housing, substance abuse, treatment, and mental health care. This would help people like my client who really didn't know where to turn for help.

Finally, we should create prisoner re-entry courts to reduce the chance that released individuals return to prison. Right now, a very large percentage of the people who have minor technical violations of their probation and parole are returned to a long prison sentence. And re-entry courts connect a defendant with community resources and treatment so they can remain in the community, rather than return to prison. Prisoner re-entry courts provide a carrot in the form of incentives to meet re-entry milestones, and a stick in the form of sanctions when a person violates the terms of participation. When a person enters a re-entry court, he is released from prison with a personalized action plan that he must follow. He periodically then goes before the judge to explain his progress on that personalized action plan, and he receives graduated sanctions or rewards depending on how well he does. The federal government enacted its first prisoner re-entry law in 2007 called “The Second Chance Act,” which granted $250 million to state and local governments to pursue research-backed prisoner re-entry programs and explore what works. One of the programs that works under that funding is in Brooklyn. The Red Hook Community Justice Center offers a GED program, a housing resource center, job training, substance abuse treatment, and other services. And in the first few years of that program's existence, low-level crime in the Red Hook neighborhood dropped by 60 percent. So it's really a hugely successful program that gets at the root causes of many of the problems. We need more programs like that.

Justice Anthony Kennedy recognized that our society really focuses on, in his words, “perhaps an obsessive focus on the process for determining guilt and innocence.” He said, “Our resources are misspent, our punishments too severe, and our sentences too long.” And of course, none of the criminal justice and law enforcement resources go to helping a person reintegrate back into society.

So the 12 recommendations that I outlined will create meaningful job opportunities for ex-offenders, and will enhance our community safety in a humane and cost-effective manner, and they are undeniably the right steps to take.

© 2016 Gayil Nalls, All rights reserved.

Gayil Nalls, Ph.D., is published online and in print, most recently with her essay "TOXIC: Coming to Our Senses" in Paradise Paradoxe (Zurich, Edition Patrick Frey, 2016).

Follow her @olfacticinkblot and @themassinglab