Meeting of July 26, 2011 – EEOC to Examine Arrest and Conviction Records as a Hiring Barrier
Good morning. I would like to thank Equal Employment Opportunity Commission (EEOC) Chair Jacqueline Berrien and each of the Commissioners for convening this important meeting. My name is Amy Solomon and I am a Senior Advisor to the Assistant Attorney General in the Office of Justice Programs at the Department of Justice (DOJ). I have been working on prisoner reentry and a broad range of public safety initiatives for the last 20 years – from government, research, and service provider settings. In my current role, I co-chair the federal interagency Reentry Council staff working group and represent DOJ in other interagency urban policy initiatives. I am pleased to have this opportunity to speak to the Commission regarding the employment challenges faced by people with criminal records.
We know from research that stable employment is one of the best predictors of successful reentry and desistence from crime.1 However, for the millions of people with criminal records, getting a job can be a major challenge. Criminal background checks on those entering the job market are now common practice,2 and according to a study by Harry Holzer and colleagues, the majority of employers indicate that they would “probably” or “definitely” not be willing to hire an applicant with a criminal record.3 In fact, a recent report by the National Employment Law Project (NELP) found frequent use of blanket “no-hire” policies among major corporations, as evidenced by their online job ads posted on Craigslist.4
This major barrier to employment touches a broad swath of the US population. According to the DOJ’s Bureau of Justice Statistics (BJS), over 92 million individuals have a criminal history on file in state criminal history repositories.5 This figure is for yearend 2008 and may include individuals with records in more than one state. That said, with about 14 million new arrests recorded annually,6 it is clear that a significant share of the nation’s adult population – estimated at about one in three or four adults – has a criminal record on file.7
Many arrests are for relatively minor crimes, as described below. And what is often forgotten is that many people who have been arrested – and therefore technically have a criminal record that shows up on a background check -- have never been convicted of a crime. This is true not only for those charged with minor crimes, but also for individuals arrested for serious offenses. A snapshot of felony filings in the 75 largest counties, for example, shows that one-third of felony arrests never lead to conviction.8
Importantly for this discussion, the impact of having a criminal record has been shown to be exacerbated for African-Americans, who may already experience racial discrimination in the labor market and who are more likely than whites to possess a criminal record. Two prominent studies by Devah Pager involved employment audit studies in Milwaukee and New York City. Both studies, funded by the Department of Justice’s National Institute of Justice (NIJ), found that a criminal record reduces the likelihood of a job callback or offer by about 50 percent. This criminal record “penalty” was substantially greater for African Americans than it was for white applicants. The more recent study included Latinos in the test pool and showed they too suffer similar “penalties” in the employment market.9
At the same time, criminal background checks can serve an important purpose. They give employers a tool – albeit an imperfect one – for helping assess risk to their employees, customers, assets, and reputations when making hiring decisions. In fact, some of the same research cited above also indicates the use of criminal history records and the practice of performing background checks can, in some cases, reduce racial discrimination in hiring. The Holzer study in particular suggests that employers who perform background checks may end up hiring more black workers (especially black men) than those who do not perform them. This is because some employers may assume young black men have a criminal record, and a background check may actually dispel that assumption and increase their chances of being hired.
To complicate matters further, criminal records are often incomplete and inaccurate. A previous Department of Justice report states that “no single source exists that provides complete and up-to-date information about a person’s criminal history.”10 Even the best maintained records systems are incomplete, often lacking final disposition information in a large share of the records.11 If criminal records were a perfect reflection of a person’s criminal history, the need for this discussion would be less critical.
It is against this backdrop that I offer my remarks. At the request of the Commission, my statement focuses on:
1) the characteristics of the criminal justice population, in terms of demographics and the types of crimes for which individuals are arrested;
2) the substantial challenges and barriers faced by these individuals; and
3) the national focus on prisoner reentry – specifically, the federal interagency Reentry Council, chaired by the Attorney General, which is working to reduce barriers to successful reintegration.
Snapshot of Arrestees and the Criminal Justice Population
As noted above, some 92 million people have a criminal record on file and are therefore affected by criminal background checks when they apply for a job. 12 Criminal records vary from one-time arrests, where charges are dropped altogether, to lengthy, serious, and violent criminal histories.
It is important to recognize that the majority of arrests are for relatively minor, nonviolent offenses. Among the nearly 14 million arrests recorded in 2009, only 4 percent were considered very serious violent crimes (which include murder, rape, robbery, and aggravated assault).13 Another 10 percent of all arrests were for simple assault, which do not involve a weapon or aggravated injury but do often include arrests for domestic violence and intimate partner violence. The remainder of arrests in 2009 was for:
While certainly many of these “other” offenses are for behaviors which harm the community, they don’t constitute the most serious violent offenses of murder, rape, robbery, and aggravated assault.
In terms of the demographics of the arrestee population, nearly 75 percent of the arrestees are male; 25 percent are female. The following two tables provide a snapshot of the 2009 arrestee population, by race and age group. Most notably, African Americans account for less than 13 percent of the U.S. population,14 but 28 percent of all arrests. As discussed further below, they are even more highly represented in the incarcerated population, comprising almost 40 percent of those behind bars.15
Arrests by Age, 2009
|Age range||Under 18||18-24||25-39||40-49||50-64||65 and over|
Source: FBI Uniform Crime Reports, 2009
Arrests by Race, 2009
|Race||White||Black||American Indian or Alaskan Native||Asian or Pacific Islander|
Source: FBI Uniform Crime Reports, 2009
To be sure, many arrests do not result in convictions, yet the number of people who are incarcerated for criminal offenses is substantial. Each year there are almost 13 million (12.9) people admitted to local jails16 and more than 700,000 (729,295) are admitted to state and federal prisons.17 Incarceration rates in the United States are higher than any other country in the world. The United States has less than five percent of the world's population but almost a quarter of the world's prisoners.18 Over the last 30 years, the incarcerated population has more than quadrupled.19Today, more than 2.3 million men and women are held in prisons and jails.20
Adult Prison and Jail Populations, 1980-2009
Source: Bureau of Justice Statistics Correctional Surveys
In 2008, the Pew Center on the States brought heightened public attention to our nation’s incarceration rate when it reported that “one in 100” U.S. adults was behind bars on any given day.21 But one in 100 – a figure which, taken alone, puts us on notice – is an average. We know this rate doesn’t hold evenly across all populations. One in 54 men is incarcerated compared to one in 265 women. Looking just at men, we see that one in 106 white men is behind bars, compared to one in 36 Hispanic men and one in 15 African American men. When we consider young black men (ages 20-34), the ratio lowers further to one in nine. And young black male dropouts have higher odds of being in jail than being employed.22 As these numbers make clear, incarceration is heavily concentrated among men, particularly young men of color.
There’s an intergenerational component at work also. Forty-six percent of jail inmates have a family member who was incarcerated.23 And on any given day, one in 28 children has a parent behind bars. Again, communities of color are most acutely affected; one in nine African American children has an incarcerated parent.24 One recent study estimates that 25 percent of African Americans born after 1990 will witness their father being sent to prison by their 14th birthday.25
Incarceration is also a geographically concentrated phenomenon. A large number of prisoners come from – and return to – a relatively small number of already disadvantaged neighborhoods.26 In many neighborhoods around the country, incarceration is no longer an unusual occurrence but a commonplace experience, especially for young men of color.
Challenges for the Criminal Justice Population
Individuals who come in contact with the criminal justice system face significant challenges beyond their interaction with the system. The corrections population in particular consists largely of men who have for many years exhibited a consistent pattern of criminal involvement, lack of attachments to mainstream institutions of social integration, and a multiplicity of interconnected problems. A snapshot of jail inmates indicates:
This population faces multiple and overlapping problems, and the need for treatment, training, and assistance is acute.32 It is critical that individuals entering prisons and jails be screened to determine their criminogenic risks and needs, and that appropriate evidence-based interventions are applied during incarceration and after release to the community.33
In addition, an extra set of barriers – which we refer to as “collateral consequences” – is imposed on individuals as a direct result of their criminal histories. NIJ is funding a national study, conducted by the American Bar Association’s Criminal Justice Section (ABA), on the collateral consequences of criminal convictions. To date, the ABA has catalogued over 38,000 statutes that impose collateral consequences on people convicted of crimes, creating barriers to housing, benefits, and voting.34 It is my understanding that over half of these statutes operate as a denial of employment opportunities.
While some of these consequences serve important public safety purposes, others may be antiquated and create unnecessary barriers to legitimate work opportunities. A commonly cited example is that in some states, formerly incarcerated people who were trained as barbers cannot hold those jobs after release because of state laws that prohibit felons from practicing the trade, presumably because their access to sharp objects make them a threat to the public.35 I believe Professor Stephen Saltzburg from the ABA will be speaking to the Commission also, and will address these issues in more detail.
I do want to share that U.S. Attorney General Eric Holder recently wrote to every state Attorney General, with a copy to every Governor, asking them to assess their state’s collateral consequences and determine if any should be eliminated “so that people who have paid their debt to society are able to live and work productively.”36 The Attorney General’s letter also said the federal government will assess the federal collateral consequences – and we are just beginning that work.
NIJ’s “Redemption” Study
I think it’s fair to say that most employers don’t set out to punish people for life but rather act out of self-interest, as we all do: employers don’t want to hire individuals who might commit future crimes. They are understandably reticent to risk their employees’ and customers’ safety, and their bottom lines. The assumption, of course, is that a record of prior arrest signals higher odds that the individual will commit more crimes in the future. A key question is: if a person who’s been arrested stays arrest-free for some period of time, do the odds of further criminal activity go down? A recent study by NIJ sheds light on just this issue.
The NIJ “Redemption” study, as it’s referred to, was conducted by Professors Alfred Blumstein and Kiminori Nakamura. They were looking for a way to empirically determine when it is no longer necessary for an employer to be concerned about a criminal offense in a prospective employee’s past.37 The researchers examined the criminal records of everyone who was arrested for the first time in 1980 in the state of New York. Then they tracked those criminal records forward to find who was arrested again, who wasn't, and how long people “stayed clean.” In general, once an individual had stayed clean for a few years, his chances of being arrested for a new crime just about disappeared. This point is what the researchers refer to as the “point of redemption" – when a prior arrest no longer distinguishes the risk of future criminal arrests for that person compared to a similar person in the general population.
For individuals who commit their first crime at a very young age or who are first arrested for a more serious crime, it takes longer – about eight years -- to reach the point of redemption; but for other arrestees who are older when first arrested or who commit less serious crimes, redemption can come in as little as three or four years. After staying clean for this period of time, these individuals were no more likely than anyone else to have another arrest in the future. In order to test the general applicability of their results, Professors Blumstein and Nakamura have conducted additional research in two other states and with two other sampling years. Their results are consistent, especially so after the first five years after initial arrest.38 I believe this research has important and practical implications for the topic we are discussing today.39
A Focus on Reentry
I will end with the issue of prisoner reentry – and the national attention that has been given to it recently. The challenges of reentry are daunting, but the response being mounted to meet those challenges is quite promising.
First, the facts. As noted earlier, more than 2.3 million people are incarcerated in federal and state prisons and local jails at any given time. The reality is that most -- more than 95 percent -- will be released back to their home communities.40 When reentry fails, the costs—both societal and economic—are high. Statistics indicate that more than two-thirds of state prisoners are rearrested within three years of their release and half are reincarcerated.41 High rates of recidivism mean more crime, more victims, and more pressure on an already overburdened criminal justice system.
The costs of imprisonment also wreak havoc on state and municipal budgets. In the past 20 years state spending on corrections has grown at a faster rate than nearly any other state budget item. The United States now spends more than $68 billion on federal, state, and local corrections.42
Because reentry intersects with issues such as health and housing, education and employment, family, faith, and community well being, many federal agencies are focusing on the reentry population with initiatives that aim to improve outcomes in each of these areas. Congress has supported reentry efforts as well. The Second Chance Act was passed by Congress with strong bi-partisan support and then signed into law by President Bush in 2008. Earlier this month Senators Patrick Leahy (D-VT) and Rob Portman (R-OH) introduced S. 1231, the Second Chance Reauthorization Act of 2011. Reentry efforts also have strong bi-partisan support in state houses, city halls, and community forums around the country.
In January 2011, the Attorney General convened a Cabinet-level federal interagency Reentry Council, representing a significant executive branch commitment to coordinating reentry efforts and developing effective reentry policies. The first meeting included seven Cabinet officials and other key Administration leaders. EEOC Chair Berrien has been an active and influential member of the Reentry Council, and EEOC’s role is vitally important to the efforts underway.
At its first meeting, the Council adopted a mission statement to (1) make communities safer by reducing recidivism and victimization, (2) assist those who return from prison and jail in becoming productive citizens, and (3) save taxpayer dollars by lowering the direct and collateral costs of incarceration. The Council meets again in September. In the meantime, they have empowered staff – now representing 18 federal departments and agencies – to work towards a number of goals organized around three broad areas:
The Reentry Council has made tremendous progress in these last six months. To share just a couple of examples:
Leveraging existing resources for reentry. The Council has identified and mapped – for public use – federal reentry resources going to states and localities. The DOJ-funded National Reentry Resource Center (NRRC) developed an interactive map that describes the major federal reentry initiatives and identifies active reentry grants in each state and by each federal agency. We are also coordinating reentry research efforts and addressing juvenile reentry issues, which carry distinct opportunities and challenges.
Removing federal barriers to reentry. Most pertinent to this Commission, we have a very active working group focusing on barriers to employment. The group is comprised of staff from the Departments of Labor and Justice, the Office of Personnel Management, EEOC, the Federal Trade Commission, and other agencies. They are taking a hard look at this issue, considering the federal tools we have to work with, and are developing recommendations for the Reentry Council’s consideration. EEOC has been a key partner and has an opportunity to influence the field in a major way. Another working group is focusing on access to benefits such as Temporary Assistance for Needy Families (TANF), food assistance, Social Security, veterans’ benefits, and others that can help stabilize this population after release.
Using the bully pulpit to dispel myths and clarify federal policies. We have developed public education materials, a website, and a set of “Reentry MythBusters” to clarify federal policy on a number of issues. Among the MythBusters are five which focus on employment issues, including an EEOC-authored MythBuster providing guidance to employers who want to better understand the appropriate use of a criminal record in making hiring decisions.43 And just last month, the Department of Labor’s Secretary Solis hosted a roundtable on workforce development and employment strategies for people with criminal records. Secretary Solis, Attorney General Holder, and EEOC Chair Berrien spoke at the event, along with a panel of employers, service providers, academics, policy advocates and formerly incarcerated individuals.
For many people who are not involved in the criminal justice field, issues dealing with ‘offenders’ may seem a remote topic. But the sobering reality is that the issues we are talking about today do not affect a fringe population, but are a mainstream concern. We are not talking about “us” and “them,” but rather about our brothers, our fathers, our sons, our neighbors, and our friends. In some poor and minority communities, arrest and incarceration is a commonplace occurrence and a fact of daily life.
Getting a job is arguably the most important step towards successful reentry for people who have broken the law and paid their debt to society. Yet many people are barred from job opportunities and thus denied a chance to put their best foot forward.
This discussion is not about giving preference to this population when it comes to jobs. The goal is simply to give these individuals an opportunity to apply and be considered for jobs for which they are qualified and for which their criminal record is not relevant or occurred long in the past. If we want people with past criminal involvement to be able to support themselves, support their families, pay their taxes, and contribute to their communities and the economy, they need to be able to compete for legitimate work opportunities.
I applaud the EEOC for holding this hearing and am happy to answer any questions you may have.
1 Christy A. Visher, Laura Winterfield, and Mark B. Coggeshall, "Ex-Offender Employment Programs and Recidivism: A Meta-analysis." Journal of Experimental Criminology 1.3 (2005): 295-316. See also John H. Laub, and Robert J. Sampson, Understanding Desistance from Crime, 28 CRIME & JUST. 1, 17-24 (2001).
2 According to the NELP report, a 2010 survey by the Society for Human Resources Management found that 92 percent of employers conduct criminal background checks. Michelle N. Rodriguez and Maurice Emsellem, 65 Million "Need Not Apply": The Case for Reforming Criminal Background Checks for Employment (New York: National Employment Law Project, March 2011). http://www.nelp.org/page/-/65_Million_Need_Not_Apply.pdf?nocdn=1
3 Harry J. Holzer, Steven Raphael, & Michael A. Stoll, "Perceived Criminality, Criminal Background Checks, and the Racial Hiring Practices of Employers," The Journal of Law and Economics 49.2 (2006): 451, 453-4.
5 Dennis DeBacco & Owen Greenspan, Survey of State Criminal History Information Systems, 2008. Bureau of Justice Statistics (Washington, D.C.: U.S. Department of Justice, Bureau of Justice Statistics 2009). https://www.ncjrs.gov/pdffiles1/bjs/grants/228661.pdf
7 According to the Census, there were 230,117,876 million adults in 2008. U.S. Census Bureau, Population Estimates Program, DP-1: General Demographics Characteristics, 2008 Population Estimates. A previous DOJ report stated that 30 percent of the Nation’s adult population has a criminal record on file with the states. See The Attorney General's Report on Criminal History Background Checks (Washington, D.C.: U.S. Department of Justice, Office of the Attorney General. June 2006). A recent report by NELP estimated that more than one in four adults had a criminal on file (65 Million "Need Not Apply": The Case for Reforming Criminal Background Checks for Employment).
8 Thomas H. Cohen, Ph.D. & Tracey Kyckelhahn, Felony Defendants in Large Urban Counties, 2006 (Washington, D.C.: U.S. Dept. of Justice, Bureau of Justice Statistics, 2010). http://bjs.ojp.usdoj.gov/content/pub/pdf/fdluc06.pdf.
9 Devah Pager, "The Mark of a Criminal Record," American Journal of Sociology 108.5 (2003): 957-60. http://www.princeton.edu/~pager/pager_ajs.pdf; Devah Pager, Bruce Western, & Bart Bonikowski, “Discrimination in a Low Wage Labor Market: A Field Experiment,” American Sociological Review 74 (October, 2009): 777-779. http://www.princeton.edu/~pager/ASR_pager_etal09.pdf
11 Also note that even after a criminal record has been expunged, the record can still appear in private data base searches. See Report of the National Task Force on the Commercial Sale of Criminal Justice Record Information, 2005 (Washington, D.C.: U.S. Dept. of Justice, Bureau of Justice Statistics, 2005). www.search.org/files/pdf/RNTFCSCJRI.pdf.
12 Again, this figure is for yearend 2008 and may include individuals with records in more than one state. Dennis DeBacco & Owen Greenspan, Survey of State Criminal History Information Systems, 2008 (Washington, D.C.: U.S. Department of Justice, Bureau of Justice Statistics 2009).
13 According to the FBI’s Uniform Crime Reporting Program (UCR), law enforcement made 13,687,241 arrests in 2009, not including traffic violations. Crime in the United States, 2009., (Washington, D.C.: U. S. Department of Justice, Federal Bureau of Investigation, 2010). http://www.fbi.gov/ucr/09cius.htm.
15 William J. Sabol, Ph.D, Todd D. Minton, & Paige M. Harrison, Prison and Jail Inmates at Midyear 2006 (Washington, D.C.: U.S. Dept. of Justice, Bureau of Justice Statistics, 2011). http://bjs.ojp.usdoj.gov/content/pub/pdf/pjim06.pdf
16 Note the majority of jail inmates – 61% in 2010 – were unconvicted and being held pending arraignment, awaiting trial or conviction. Todd D. Minton, Jail Inmates at Midyear, 2010 (Washington, D.C.: U.S. Dept. of Justice, Bureau of Justice Statistics, 2011). http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=2375 .
17 William J. Sabol, Ph.D & Heather C. West, Ph.D., Prisoners in 2009 (Washington, D.C.: U.S. Dept. of Justice, Bureau of Justice Statistics, 2011). http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=2375 .
22 In fact, more young African American men without high school diplomas/GED are incarcerated (37%) than employed (26%). The Pew Charitable Trusts, Collateral Costs: Incarceration’s Effect on Economic Mobility (Washington, DC: The Pew Charitable Trusts, 2010).
26 Christy A. Visher, Jennifer Yahner, and Nancy LaVigne, “Life after Prison: Tracking the Experiences of Male Prisoners Returning to Chicago, Cleveland, and Houston” (Washington, DC: Urban Institute, 2010); Eric Cadora, “Criminal Justice and Health and Human Services: An Exploration of Overlapping Needs, Resources, and Interests in Brooklyn Neighborhoods,” (Washington, D.C.: Urban Institute, 2002).
27 Jennifer Karberg and Doris James, “Substance Dependence, Abuse, and Treatment of Jail Inmates, 2002,” Special Report NCJ 209588 (Washington, DC: U.S. Department of Justice, Bureau of Justice Statistics, 2005). http://www.ojp.usdoj.gov/bjs/abstract/sdatji02.htm.
32 Reentry in Brief: A Product of the Federal Interagency Reentry Council. Federal Interagency Reentry Council, May 2011, available at http://www.nationalreentryresourcecenter.org/documents/0000/1059/Reentry_Brief.pdf.
33 For a more thorough discussion of the challenges facing the incarcerated population and reentry models to address these challenges, see, A. Solomon, J.W. Osborne, S.F. LoBuglio, et al, Life After Lockup: Improving Reentry From Jail to the Community (Washington, D.C.: Urban Institute, 2008) available at http://www.urban.org/UploadedPDF/411660_life_after_lockup.pdf.
39 Additionally, some would argue that hiring people closer to the time period of their arrest, sentencing, or release from prison is a reasonable investment because they may be under probation or parole supervision and participating in other structured programs. In these situations, individuals are often being drug tested and closely monitored. Some agencies also provide referrals for social services and resources for concrete supports, such as transportation, child care, clothing, and food, so that problems in these areas do not interfere with the individual’s ability to continue working. Further, employers express a greater willingness to hire former prisoners when there is a third party intermediary agency, such as those described above, to provide ongoing support and supervision. See Solomon, A., Johnson, K., Travis, J., and E. McBride. (2004). From Prison to Work: The Employment Dimensions of Prisoner Reentry. Washington, DC: The Urban Institute; Welfare to Work Partnership. 2000. “Member Survey: Taking the Next Step.” Washington, DC: The Welfare to Work Partnership; and “Ex-Cons Make Great Employees” at http://www.hawaiibusiness.com/Hawaii-Business/July-2011/Ex-Cons-Make-Great-Employees/.
41 A.J. Beck, The Importance of Successful Reentry to Jail Population Growth, presented at the Urban Institute's Jail Reentry Roundtable, June 27, 2006 urban.org/projects/reentry-roundtable/upload/beck.PPT