“A life sentence to poverty”: How our laws deny ex-offenders a true second chance

“Government-sanctioned” laws keep the formerly incarcerated on the margins, CAP’s Rebecca Vallas tells Salon

Published November 9, 2015 7:47PM (EST)

  (<a href='url to photographer'>sakhorn</a> via <a href='http://www.shutterstock.com/'>Shutterstock</a>)
(sakhorn via Shutterstock)

President Barack Obama has always supported criminal justice reform, broadly speaking. Recently, though, the president has moved criminal justice reform issues to the front-and-center of his public agenda. This summer, for example, he became the first sitting president to visit a federal prison. Soon after, he held a (remarkably worthwhile) discussion on reform at the White House, too.

These were important victories for those who support reform. But they were also primarily symbolic. Last week, however, Obama went one step further and announced a handful of new executive actions intended to put some policy meat on those symbolic bones. And while the devil is always in the details, multiple reform groups endorsed the president’s directives, all of which are intended to make it easier for the formerly incarcerated to truly start their lives again.

Recently, Salon spoke over the phone with Rebecca Vallas , the director of policy for the Center for American Progress’ Poverty to Prosperity Program. We discussed the president’s recent actions, his executive orders, and the next step for the criminal justice reform movement. Our conversation is below and has been edited for clarity and length.

What was your initial, gut reaction to President Obama’s announcement last week?

It’s been wonderful to see the bipartisan momentum continue to grow for criminal justice reform, and see policymakers of all political stripes calling for sentencing reform, for prison reform, and so on.

But, most notably, what was fantastic to hear from the president was the focus on policies to give people a second chance. We can’t leave out the reentry piece of the puzzle; if we do, we’re basically guaranteeing that whatever gains we see from reducing mass incarceration will be short-lived, because a huge share of the people that we released from correctional facilities are just going to end up right back behind bars.

So, it is really important to see the president emphasizing the importance to support reentry, and also of removing obstacles to reentry, when we can.

Tell me if I’m wrong, but it seems to me that there’s been a marked shift within pro-reform circles toward more discussion of reentry and reinvestment. Is that true?

I think we’re seeing growing awareness that we need to focus on it.

Between 70 million and 100 million Americans — that’s as many as one-in-three of us — have some type of criminal record. That’s the legacy of our nation’s failed experiment with mass incarceration. There is also a growing awareness that having even a minor criminal record can present obstacles to employment, to housing, education, family reunification — I could go on.

And the lifelong consequences of having a criminal record really stand in stark contrast to the research we have on redemption, which finds that once an individual with a prior non-violent conviction has stayed crime-free for just three to four years, that person’s risk of recidivism is no different from the risk of arrest for the general population. So, we end up with the situation where having a criminal record is basically a life sentence to poverty — and it’s really out of sync with the reality of the risk that these people, whom we’re sentencing to poverty for life, actually pose.

Let’s talk about the president’s announcement. On the policy side, the part that got the most attention was Obama’s directive to the Office of Personnel Management (OPM) to, according to some observers, “ban the box.” What doest that mean?

When we talk about ban the box policies — which are now in effect in 19 states and some 100 municipalities, possibly more — it doesn’t mean not considering a criminal record in the hiring process. What it means is delaying the point in the process where that criminal record is considered. The idea is to give job seekers with records a chance to actually be considered and demonstrate their qualifications, rather than having their resume automatically fall into the trash; which is what happens with many people with records.

We know that 9 in 10 employers today conduct criminal background checks on their applicants; so criminal records can really be an intractable barrier to employment for tens of millions of Americans. (And this is even the case with just an arrest that never led to a conviction.) People tend to be familiar with the costs of mass incarceration. But the barriers associated with bearing a criminal record — most notably regarding employment — come at a really significant cost to the economy as well. In terms of lost GDP, the cost of employment losses amongst people with criminal records is a whopping $65 billion per year.

So by calling on OPM to issue ban the box rules, the president has taken a very important first step. But we need to watch to see if there will be proof in the pudding.

What do you mean?

What I mean by that is, where in the hiring process is the record considered? That matters a great deal. Is it just [removing it from] the job application? Or, better, is it pushing it [back] until what is called the “conditional offer stage,” when the employer has already decided that they want to hire a job applicant? The rule that the president has called on OPM to issue is unclear. It’s something that will be developed in the rule-making process. So that is something that must be watched, because it will make a big difference.

Are there any other to-be-decided details that supporters of the general policy should keep an eye on?

The rule will only apply to federal agencies — not to federal contractors. In his speech, the president called on Congress to pass bipartisan legislation [to that effect], which is being championed by Senator Cory Booker and Senator Ron Johnson. That legislation would delay consideration of a criminal record until the conditional offer stage, and it would also extend to federal contractors. So the bipartisan legislation is the next needed step after the president’s action.

Just to be clear, then: “Ban the box” does not always mean getting rid of the question entirely? I saw some people saying that because the president’s directive doesn’t completely remove the question from the hiring process, it wasn’t really banning the box.

“Ban the box” is the main phrase people use to describe these kinds of policies; but it can be a little bit misleading, because it isn’t completely eliminating consideration of the record. I like to call it “fair chance hiring.” It’s about giving job seekers with records a chance to demonstrate their qualifications before the record is actually considered. That is what the president called on OPM to do.

Obama also called for public housing authorities to change the way they dealt with the formerly incarcerated. What problem is he trying to solve on that front?

People get, on a common sense level, that safe and stable housing is foundational to economic security. But it also has powerful anti-recidivism effects for people with criminal histories.

Unfortunately, many people who are released from incarceration have no idea where they are going to go to live. (About one-third, expect to go to homeless shelters once they are released.) We have policies in place that basically shut every door in people’s faces as they seek to find safe and stable housing; public housing authorities have broad discretion to deny housing — or even evict whole families — just because there is this “one-strike-and-you’re-out” policy that public housing authorities have interpreted in a very broad way.

How is the administration trying to redress this?

The guidance that the Department of Housing and Urban Development released last week, under the president’s direction, makes clear to housing authorities that they are not required to use a “one-strike” policy; that they are not required to exclude everybody with a criminal record from public housing; that they are not required to evict families and households because one member has a criminal record.

Most importantly, the guidance lays out factors that public housing authorities should consider.

Such as?
Basic, common sense factors: Whether the offense is relevant to the safety of other residents, the time since the conviction; and whether, since then, the person has rehabilitated.

The guidance also makes clear that arrests that didn’t lead to convictions cannot be grounds for denial of housing or for evictions. This is a huge deal, because a really big part of the trend [of criminal justice policy] in the past several decades has not just been mass incarceration; it has also been hyper-criminalization. We’ve seen the over-policing of communities of color leave millions of Americans with arrest records even though they were never convicted.

It sounds like the general, unifying theme of these reforms is that people cannot successfully reintegrate into society unless they have a foundation — and that a foundation requires not just family or friends but a steady income and a place to rest your head, too.

That’s exactly right. Making sure that that foundation is there by removing government-sanctioned obstacles is something that the president has made a commitment to, and something that state and local policy makers across the country are trying to do. And It has to be part of the puzzle as we seek to have a conversation about how best to reduce mass incarceration.

By Elias Isquith

Elias Isquith is a former Salon staff writer.

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