The following article can be attributed to Kevin McCray and is republished with consent.
For those of us working on the front lines of the criminal justice system, it’s encouraging to hear that the Governor’s newly appointed Justice Reform Steering Committee is once again giving the Justice Reinvestment Initiative the attention it deserves. The initial implementation group, convened in 2012 to develop policies aimed at curbing an estimated $259 million in additional spending needed to fund the Department of Corrections over the coming years, dissolved in a blur of resignations, finger pointing, and accusations hurled at the Governor’s Office which left much of the law undeveloped and unfunded. Although it’s a positive step that the Governor is recommitted to adopting a progressive attitude toward becoming “smart on crime”, years of legislative shortsightedness leaves us little choice beyond decriminalizing certain behaviors or doubling the budget and building more prisons.
More than a decade of “tough on crime” legislation has seen our prison population rise faster than the growth of our general population. While other states were developing progressive policies aimed at reducing crime and recidivism, Oklahoma’s corrections budget was increasing by 30 percent. Currently, the Department of Corrections is at 119% capacity to the tune of $19,000 a year per inmate, and dangerously understaffed. Given the State’s current budget woes, it’s unlikely the Steering Committee and the Legislature can be creative enough to find the revenue necessary to implement the policies needed for the Initiative to fulfill its purpose. However, it remains vitally important for the fiscal health of our State that policies be adopted to give the Initiative substance despite being problematic to fund.
A centerpiece of the Initiative is to reduce the rate of recidivism, or the number of people who return to prison either for reoffending or not complying with the terms and conditions of their release. On any given day, the state’s courthouses spend an inordinate amount of time and money dealing with defendants struggling to cope while on probation. The list of conditions a criminal defendant must comply with or end up back in jail can be overwhelming particularly for someone with addiction issues, undeveloped skills, and limited transportation and employment opportunities. For the Initiative to achieve reductions in recidivism, policies must be developed to address these issues. In addition to providing enhanced substance abuse treatment and services, a major focus of the Steering Committee must be advancing policies that provide job placement opportunities to those routinely excluded because of a criminal record and the use of criminal history screening on job applications.
The U.S. Equal Employment Opportunity Commission, referencing a 2010 study by the Society of Human Resource Management, reported that 92% of employers subjected all or some of their job applicants to criminal background checks. Under the Oklahoma Open Records Act, employers may request criminal records, including arrests, for prospective job applicants regardless of the nature of the job. Although the breadth of the information requested by employers varies, there are no restrictions in Oklahoma on the extent to which an employer can delve into the criminal history of a prospective job applicant. Let’s consider this in light of certain facts.
According to the Governor’s 2015 State of the State Address, 1 in 11 Oklahomans have done some time in prison (approximately 380,000 Oklahomans). Nationally, we have a working age population that includes up to 14 million people with felony records, or about 1 in every 15 between the ages of 18 and 64. If you include misdemeanors and arrests, that percentage rises to about 1 in 5. As the number of people being released from U.S. prisons increases every year, the use of criminal history screening by employers is having a negative impact on our economy and the ability of many to reintegrate into the community. Criminal history questions on job applications not only result in excluding someone otherwise qualified from much needed employment, but also discourage someone from filling out an application to begin with. As a consequence, criminal history screening becomes a significant roadblock to reducing recidivism.
Several states that saw reductions in recidivism rates developed strategies within reform initiatives to get people recently released from prison into jobs and working. Kansas instituted policies to connect released individuals to housing and workforce development services. Michigan created a program that not only provided community based housing for parolees, but also subsidized employers who hired them. Absent the investment needed to implement these types of policies however, the Committee must be creative in identifying solutions. One approach, known as a “ban the box” or “fair chance” policy, is a program that removes the stigma of a criminal record from the application process and increases the pool of qualified applicants.
Combined, nearly 100 cities, counties, and states have adopted policies requiring employers to consider the applicant’s qualifications prior to conducting any criminal background check. Some jurisdictions extend this requirement to private contractors doing business with a city. San Francisco expanded its “fair chance” policy to apply not only to city jobs, but also to private employers, vendors and most housing providers. Boston went so far as to list “ex offender status” as a classification protected under the civil rights laws of the city. The EEOC is of the view that an employer’s neutral policy or practice of using criminal history background checks to screen job applicants can disproportionately affect (i.e., have a disparate impact on) groups protected under Title VII of the 1964 Civil Right Act, and communities such as Boston and San Francisco have taken progressive steps to eliminate such discrimination.
Because the arrest and incarceration rates for Hispanic and African American men are two to three times higher than the general population, an employer’s use of an individual’s criminal history in employment decisions may violate Title VII prohibitions against employment discrimination. The EEOC recommends employers eliminate policies that exclude people from employment based on any criminal record. In addition, employer’s should narrowly tailor written policies and procedures that limit criminal history inquiries to records for which the exclusion would be job related for the position in question, and consistent with a business necessity. Most “fair chance” policies are adapted from the EEOC guidelines established to help protect employers against discrimination claims.
Beyond protecting employers, adopting “fair chance” policies will reduce recidivism, increase public safety, and bolster the economy. According to the National Employment Law Project, employment has been shown to be the single most important factor in reducing recidivism. Two years after release from prison, nearly twice as many employed people with criminal records had avoided contact with the law compared to their unemployed counterparts. People formerly incarcerated with one year of employment had a 16% recidivism rate over a three year period as compared to 52% for all those released from the Department of Corrections. Providing employment opportunities to those with criminal records also increases public safety. For instance, a1% drop in the unemployment rate reduces burglary 2%, larceny 1.5%, and auto theft 1%. Finally, adopting a “fair chance” policy is good for the economy. The Economy League of Greater Philadelphia found that putting 100 formerly incarcerated people back to work would increase their lifetime earnings by $55 million, raise their income tax contributions by $1.9 million, and boost sales tax revenues by $770,000.
“Fair chance” policies protect employers from discrimination claims, reduce recidivism, increase public safety, are good for the economy, and don’t cost a dime. Although having a job is not a guarantee that someone released on parole or probation will not reoffend, unemployment predictably provides opportunity and motive to reengage in criminal activity. Access to employment opportunities is critical for those recently released from prison to make the choices necessary to stay out of the criminal justice system. A steady job not only helps to change ones environment and provide financial support, but also instills a sense of self- worth, dignity, and hope for the future. Providing a large segment of the working age population with criminal records the opportunity to compete for jobs based on their qualifications would kick start justice reform in this State. Let’s join the hundreds of other municipalities, counties, and states that have benefited from similar initiatives. Giving someone a fair chance to work is an Oklahoma value on which we can all agree.
Kevin McCray is an attorney working in Oklahoma City, and President of the Oklahoma Democratic Party Veterans Committee.