- The Washington Times - Sunday, May 22, 2016

The Obama administration has gone into overdrive in the last two months, pushing administrative policy changes to make it easier for ex-convicts to rejoin society, but at the same time sparking concern that reforms will increase crime and jeopardize safety.

The federal efforts have been spurred on in part by bipartisan criminal justice reforms enacted at the state level and changing public opinion that has warmed to second chances, experts say.

Reforms have included recommendations to make it easier for ex-offenders to obtain state ID cards, removing questions about criminal history from federal job applications and suggestions to do the same for college applications, and warning landlords that rejecting renters based on their criminal history may violate federal law.

The federal focus primarily has been on making it easier for inmates to readjust to life outside of prison — with the concern being that ex-convicts are more likely to commit crimes if they can’t get jobs or secure housing.

“Employment is key to lowering recidivism, and all of these things are going to help ease barriers to employment,” said Inimai M. Chettiar, director of the Brennan Center for Justice.

According to the U.S. Sentencing Commission, nearly half of 25,000 inmates released from federal prisons in 2005 were rearrested for a new crime or violation of parole within eight years, and one-quarter were reincarcerated during that time.


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Opponents to reform measures, including an overhaul of mandatory minimum sentencing laws that is currently being considered by Congress, worry that by opening the door to ex-offenders, lawmakers will open a floodgate to crime.

A federal effort

One of the Obama administration’s initiatives that already has gained widespread traction among the states is the so-called “ban the box” law, which prevents an employer from inquiring about a job applicant’s criminal history until after a conditional offer of employment is made. Twenty-three states have adopted policies that apply to government jobs, with eight states also extending the provisions to private employers, according to the National Employment Law Project.

Last month, during the Justice Department’s first-ever National Reentry Week, the federal Office of Personnel Management issued a proposed rule to adopt a ban-the-box policy for most federal positions.

“This change prevents candidates from being eliminated before they have a chance to demonstrate their qualifications,” OPM Director Beth Cobert said in her announcement.

Earlier this month, the U.S. Department of Education joined the movement, encouraging colleges to reconsider how they ask applicants about their criminal histories and suggesting that questions about prior convictions or arrests may not be necessary or could be delayed in the application process.

Advocates say efforts to ban the box can help decrease recidivism, because ex-offenders are able to make it further along in interviews before having to disclose their criminal history, making job success likelier. Others say it keeps ex-offenders engaged in the job search, preventing them from becoming discouraged that they will not be considered due to their criminal history and declining to complete job applications.

While some private companies have opted to adopt ban-the-box policies on their own, some small businesses have voiced opposition to across-the-board initiatives citing concern over the resources that owners will expend to comply with such laws and the new legal liabilities they may face as a result.

“Ban the box laws make it harder for employers to talk about a criminal record at a time that is convenient for them,” wrote Juanita Duggan, president and chief executive of the National Federation of Independent Business in an April op-ed in The New York Times. “This means that an owner may spend hours, days or even weeks going through the hiring process only to find a worker is unqualified at the last minute. For a small business, lost time is lost income.”

Businesses may be at risk from lawsuits from unsuccessful applicants or from authorities who may deem owners out of compliance with some of the complicated regulations, said Sen. Tom Cotton, who has raised concern over the potential damage of criminal justice reform efforts in Congress.

“The policy changes we need cannot start at the point where an offender applies for a job,” the Arkansas Republican said this month in a speech on criminal justice reform. “By that time, it’s usually too late.”

Rather, Mr. Cotton argued that ex-offenders would be better served by more educational and vocational training classes.

“No doubt ex-cons face longer odds in the job market, odds that are understandably frustrating to them. But is it any less frustrating to make it to the end of a hiring process only to lose out?” he said.

Marc A. Levin, policy director for the Texas-based conservative justice reform group Right on Crime, agrees that there are still questions about whether ban-the-box laws are effective at helping ex-offenders obtain jobs if they must still disclose criminal history at some point.

A better solution, he argued, would be for the government to offer ex-offenders more options to expunge their records of certain offenses or combat discrimination that prevents some with criminal histories from being hired by reaching out to educate private businesses.

At least two studies touted by supporters of ban-the-box initiatives have shown some success in both reducing recidivism and encouraging employers to hire ex-offenders.

Hawaii, in 1998, banned public and private employers from asking about applicants’ criminal convictions until after a conditional job offer is made; recidivism for felony crimes dropped by 11 percent the year after the law was passed, according to a study published in 2014 in the American Journal of Criminal Justice.

Meanwhile, the Southern Coalition for Social Justice found that after Durham, North Carolina, adopted ban-the-box policies in 2011 for government positions, the percentage of the city’s new hires who had criminal records increased from 2 percent of new hires in 2011 to 15 percent in 2014.

Some of the administration’s policy changes appear to be less evidence-based.

The Justice Department’s Office of Justice Programs this month announced it would no longer use the terms “felon” and “convict” to refer to persons convicted of crimes, opting instead for less “disparaging labels.”

Assistant Attorney General Karol Mason said her division plans to substitute terminology such as “person who committed a crime” and “individual who was incarcerated” in speeches and other communications as part of an effort to remove barriers that officials say hinder progress of those who reenter society after completing their prison sentences.

The move outraged some conservative lawmakers, including Rep. Diane Black, Tennessee Republican, who called it “reckless and wrong,” and questioned why the DOJ would worry more about the hurt feelings of criminals than crime victims.

Others say it is likely to have little real impact on reducing recidivism.

“It’s cosmetic and it’s a bit of window dressing,” said Holly Harris, executive director of U.S. Justice Action Network, a bipartisan group promoting criminal justice reform. “But that said, I think there also is a stigma attached to incarceration, and whatever we can do to remove that stigma is helpful.”

State reforms

For those who have worked at the state level on criminal justice reform, the administration’s recent actions are a long time coming — even if they aren’t as comprehensive as what has been enacted by state legislatures.

“On the reentry policies, I feel like really the federal side has lagged behind,” Ms. Harris said. “[The states] have taught us that these reforms work. They are very successful in saving money, but they are also lowering crime rates and recidivism rates.”

Texas is routinely singled out as a leading reformer in overhauling the justice system.

In 2007 state lawmakers were confronted with a difficult decision: Texas was spending nearly $3 billion on prisons and parole operations, and was projected to need an extra 17,000 prison beds and an additional $2 billion to sustain the system through 2012.

Instead of spending more than $500 million to construct the new prison facilities, a broad swath of Republicans and Democrats opted to spend half that to fund treatment programs, drug courts and halfway houses — allowing the state to send defendants to alternative treatment programs rather than jail.

While the initiative saved money, researchers at the Urban Policy Research & Analysis at the University of Texas at Austin called into question the degree of its success.

“Cost savings is a compelling component of prison reform, but fiscal austerity reform designs fail to address the underlying drivers of mass incarceration such as harsh sentencing, racialized law enforcement, and lack of opportunities and services in low-income communities of color,” researchers Caitlin Dunklee and Rebecca Larsen wrote last year.

Texas’ prison population remained steady in the immediate years after reforms were passed, but dropped to a low of 166,043 inmates in 2014, according to the Bureau of Justice Statistics. The rate of state prison inmates who are rearrested within three years has also shown promising signs, decreasing from 27.2 percent of those released in 2005 to 22.6 percent in 2009.

Mr. Levin of Right on Crime points out that support for criminal justice reform has remained strong, the state legislature passing the so-called “second chance” law last year that allows individuals to obtain a court order that shields a first-time, nonviolent misdemeanor from the public.

Other states have continued to enact policies that push the needle on reform efforts.

Maryland Gov. Larry Hogan last week signed into law a reform bill passed by the Democrat-led General Assembly that reduces incarceration by ending mandatory minimum sentences for nonviolent drug offenders and revoking caps on the time a parole violator can be sent back to jail for an initial offense.

Late last month, Virginia Gov. Terry McAuliffe, a Democrat, used his executive authority to circumvent the Republican-run legislature and automatically restore voting rights to more than 200,000 convicted felons who previously had been banned from voting for life.

Critics have dismissed the move as a transparent effort to bolster the ranks of Democratic voters because the population in question is disproportionately black. However, Mr. McAuliffe’s predecessor, Republican Gov. Bob McDonnell, is also credited with restoring voting rights to tens of thousands of Virginians.

Other conservatives have been critical of the automatic restoration, though not the restoration of voting rights in general.

“I personally believe most felons should ultimately be eligible for restoration of their voting rights, but a much better approach is to provide felons with a road map of rehabilitation,” Mr. Cotton said. “An offender who automatically obtains the franchise will have little reason to buy back into the social contract and no motivation to relearn the responsibilities of citizenship.”

‘The budget crunch’

Part of what has enabled criminal justice efforts to catch fire in the states has been the reframing of reforms as an economic issue, said Ms. Chettiar of the Brennan Center.

“The connection between criminal justice reform and the economy has been something that has been unexplored publicly for a long time,” she said, adding that the new spin strengthened bipartisan support for efforts by enabling Republicans to embrace policies while still staying true to conservative values. “I feel like it’s finally ringing true to people that this is an economic issue.”

A 2012 study by the Vera Institute of Justice surveyed 40 states about prison expenditures and found the cost to taxpayers was $39 billion in fiscal 2010. The average cost per year to house an inmate was $31,286. But as other organizations point out, governments weren’t just out the money they spent on prison systems, there’s also a tax loss when ex-offenders are released from prison and can’t find work due to their criminal records.

Lawmakers began to pay closer attention to the costs of incarceration as a result of the Great Recession, said Ms. Harris of the U.S. Justice Action Network.

“The budget crunch that we see at both the state and the federal level is a real driver here,” she said.

It also didn’t hurt that violent crime was beginning to decrease in communities across the U.S., so lawmakers weren’t under the same pressure they had been to support tough-on-crime policies, said Christy Visher, professor of sociology and criminal justice at the University of Delaware.

Recent polls have shown a high level of support for criminal justice reforms currently being debated in Congress, including reduction of mandatory minimum sentences for nonviolent drug offenders.

A U.S. Justice Action Network poll from February found the strong majority of voters in six key swing states believes too many nonviolent criminals are housed in federal prisons, too much money is spent on federal incarceration and that the federal government should reduce barriers that make it difficult for ex-offenders to find jobs after their release.

A February poll from Pew Charitable Trusts also found that 77 percent of people support “giving judges the flexibility to determine sentences based on the acts of each case,” with 76 percent of Democrats and 60 percent of Republicans preferring judicial discretion over mandatory minimums.

But those who support such measures appear to have forgotten how the broken-windows policing techniques and three-strikes laws in the 1980s and 1990s helped produce the current low-crime status quo, Mr. Cotton said.

“These policies helped to take back our streets,” he said. “Too many people, it would seem, have forgotten these hard-learned lessons.”

With an estimated one in three Americans arrested once by the age of 23, and 2.2 million currently incarcerated, experts say a broader swath of the public may be interested in reforms based on their own interactions with the justice system.

“The Obama administration didn’t make criminal justice reform a priority for the first four to six years,” Mr. Levin said. “I think there has been a revolution in terms of public opinion that has made it easier for them to help on this.”

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