America's criminal justice disgrace: How Apple's ban of former felons reveals the long road to real reform

Barring ex-felons from employment affronts their civil rights, the Sentencing Project's Nicole Porter tells Salon

Published April 15, 2015 12:00PM (EDT)

  (<a href='url to photographer'>sakhorn</a> via <a href=''>Shutterstock</a>)
(sakhorn via Shutterstock)

Apple likes to present itself as on the cutting edge of not only business and technology but culture, too. Which is one of the reasons why there was more shock and outrage than usual when people found out that one of the rules the company had made for construction workers building their new corporate campus was ineligibility for anyone who'd been convicted of a felony within the previous seven years. With criminal justice reform becoming an increasingly large focus of American politics — especially among the progressive, cosmopolitan and young people who are seen as the archetypal Apple users — the rule felt not only unnecessarily cruel, but also retrograde.

Soon after the restriction went public and inspired a predictably outraged response, Apple backed off and changed its policy. But while that story concluded with a relatively happy ending, the truth is that rules barring people convicted of felonies like the one Apple rescinded are all too common, and may represent one of the biggest impediments that formerly incarcerated people confront as they try to build themselves a new life. If American society is going to seriously tackle the problem of mass incarceration and the pattern of exclusion and dislocation it can create, laws and norms that allow the semi-permanent ostracizing of this population will have to change.

Recently, Salon spoke over the phone with Nicole Porter, the director of advocacy for the Sentencing Project, about Apple's now-reversed policy and others like it. Our conversation can be found below, and has been edited for clarity and length.

When you see stories like the recent one involving Apple and construction workers — stories about people who've been convicted being barred from employment or other services — what does it bring to mind most immediately? 

My sense is that things are complicated in terms of the causes that lead to policies and practices from employers and other officials trying to limit or control access to certain efforts, in this case employment. Specifically with regards to employment, there are too many people competing for jobs and there aren't enough jobs available to the large number of people seeking employment. My sense that the underlying problems driving that over time is that people posting job openings and managing the number of applicants are trying to limit the applicants they receive. One way to do that, given the stigma associated with prior convictions, is to have automatic bans or exclusions for people with prior felony convictions. That's one problem driving this issue.

In addition to that, there's obviously the problem of mass incarceration — not just people who are incarcerated but the large number of people who have been subjected to criminal justice enforcement and who have obtained criminal records. Given the change in criminalization policies over the last 30 to 40 years, criminal records can marginalize and isolate people from job opportunities and other areas of civic life automatically, without any regards to the individual's circumstances that may have brought them into contact with the criminal justice system to begin with. Because of these automatic bans in employment and in other areas of civic life — housing bans in the private and public markets, public benefit bans federally and in states — the large number of people brought under criminal justice supervision can be automatically excluded without any individualized conversation.

Is there a way of knowing how common these sorts of up-front denials are?

I think, anecdotally, there are many reports of people being excluded automatically from employment opportunities and there has been a lot of activism trying to address that as a social policy problem over the years. I don't know that I can tell you how widespread it is, but I know that in response to the problem there has been an animation of activism and quite a bit of a grass-roots conversation about employment opportunities for people with prior felony convictions and the fact that many individuals with prior criminal justice contact are automatically excluded from employment options. The widely-known activism is under the campaign Ban the Box, which has been initiated in several states and a number of states have adopted policies eliminating questions of prior criminal justice involvement on state employment applications.

I think that recognizing that people are more than the worst thing they ever did and that employment is a way to prevent people from returning to criminal offending and recognizing that people can move on from their prior criminal history, that sort of fits into an overall American cultural perspective that people should pull themselves up by their bootstraps and be self-reliant and, at the very least, have employment so that they can support themselves and their families. It's a reform effort that appeals across ideological lines, so many of the campaigns are supported by progressives and people with prior felony convictions who approach it from a civil rights perspective, but then you also have conservatives who are supportive of these policies because they fit into an idea about self-reliance and self-supporting.

In regards to employment, while we don't know exactly how widespread the bans are, clearly there is significant anecdotal evidence to suggest that people self-select out of seeking employment in the public and also in the private employment sphere because of applications that ask for prior criminal history. It's not even if you've been convicted or incarcerated; sometimes applications include questions about arrest for any prior contact, so activism has worked to address that in particular and there has been some success.

Do we know for sure that people who can't get a foothold in the labor market fall back into the criminal justice system? It makes intuitive sense; but do we know for sure?

The best study to know the number of people impacted comes out of the University of Minnesota by a professor named Christopher Uggen, and his number is that there are 19 million people living in this country with a prior conviction. That includes people who are incarcerated but also people living in the community either under supervision or who have completed their sentence. You also have a number put out by the National Employment Law Project who estimate the number of people with a criminal record, which is obviously larger than the number of people with an actual conviction. They estimate that there are 65 million people in the country living with a criminal record and that those people experience marginalization when they seek employment.

Now, there have been studies to show that recidivism is higher for people without employment and other social supports after they have spent time in prison. The best studies that are out there on this are from the Urban Institute, which ... found that recidivism rates were lower for people who had employment who had housing, and who were able to maintain familial ties post-incarceration. If folks reentering the community have employment and housing and all the things a person needs in order to be functional and to support themselves, they're less likely to return to prison, and that research certainly drives policy and frames approaches for advocates and practitioners to think about the social supports needed to provide guidance in terms of how funding should be prioritized to reduce returns to prison.

Why should we see this as a civil rights issue rather than a labor or employment issue?

I think that for people who experience the marginalization and the stigmatization of having a prior record, they express that their civil rights have been violated and compromised. In addition to employment, there are other civil sanctions.

That part of the conversation fits into the overall narrative around criminal justice policy and the enforcement of policy in certain neighborhoods over others and how criminal justice enforcement, particularly under the War on Drugs and other policies that exacerbate racial disparity, sort of align, if not intersect, with historical conversations around civil rights and structural issues that contribute to racial inequality for certain communities — particularly the African American and Latino communities. There are severe racial disparities in the criminal justice system and those disparities bear out throughout the system from arrest to sentencing to post-incarceration experiences, particularly with regard to collateral consequences, in employment and in other areas too.

Is this a problem that'll be solved more through policy changes? Or will a change in the culture be the more important change? 

I think it's both/and, not either/or. It's recognizing that there are deep structural issues that we need to address and then trying to identify incremental changes that can move the conversation forward and help change people's lives in the meantime. I think what gets lost in policy conversations, particularly when you're addressing social issues like deep inequality and mass incarceration, is that behind each statistic is a person. Sure, the culture needs to change, but laws need to change too.

I think that's one of the guiding principles for the Ban the Box legislation that's been successful in some states and helped to animate grassroots conversations in others. Removing the box from applications creates a conversation with officials and also business employers about the best way to address hiring practices given the large number of people living in the country criminal records and prior felony convictions. It also, hopefully, leads people to initiate and organize grassroots campaigns to address the underlying structural problems that lead employers to want to limit the number of applicants they get in the first place.

To deal with that, there are conversations that need to happen not just with people working on this issue but also social scientists, labor organizers, people in the business community, to address the scale of unemployment in this country.

We talk a lot more about criminal justice reform than we used to. But sometimes we forget that a change in the conversation is just the first step. Do you feel the shift in how much the chattering class talks about criminal justice reform has impacted conditions on the ground? Or not yet?

I think it's complicated. Obviously, the chattering class and the media can help contribute to a narrative that filters up to lawmakers and people who have a role in making policy and changing policy, and that can help contribute to a space for reform around mass incarceration and around the consequences of mass incarceration. And yet, what we are reminded of everyday because of the research we do and the numbers we look at is that the United States still has the highest rate of incarceration in the world.

Our culture of incarceration is significantly different than it is in other Western societies, and so the fact that even post-sentence people with prior convictions are marginalized from employment opportunities is significant and reinforces the idea that underlying structural issues that need to be addressed. It's great that the chattering class is talking about mass incarceration more, and we're cautiously optimistic that that will contribute to shifting dynamics that will allow lawmakers to feel comfortable in changing policy and understanding the harm done by the laws and practices that have contributed to mass incarceration over the last 30 to 40 years.

I also think it continues to challenge all of us; there's a lot more work to do and we need to continue to push to change the culture and the consciousness around what is appropriate in terms of public safety in this country.

By Elias Isquith

Elias Isquith is a former Salon staff writer.

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