Last week, a federal judge in Brooklyn issued a ruling that sent a small shockwave through the criminal-justice world. Rather than sentencing a woman who had been convicted of smuggling more than a pound of cocaine into the United States to a few years in prison, Judge Frederic Block opted for extraordinary leniency and gave her probation. Block’s rationale was simple enough: The “collateral consequences” of being a convicted felon are punishment enough.
Quoting experts on American incarceration, Block laid out how having a conviction (or even a minor brush with the law) on one’s record often makes it difficult to secure housing, public assistance, and a good education. “Remarkably, there are nationwide nearly 50,000 federal and state statutes and regulations that impose penalties, disabilities, or disadvantages on convicted felons,” he wrote in the 42-page opinion.
A conviction makes it hard to get a job: The Justice Department estimates that 60 to 75 percent of former inmates fail to find work within the first year of being released. And yet employment is associated with much lower rates of recidivism. “Statewide rates of recidivism range from about 31 to 70 percent, while the rates for those placed in jobs shortly after their release ranged from 3.3 to eight percent,” a study by the conservative Manhattan Institute found last year.
“The last thing I was thinking about was ever being involved in crime again,” says Ronald Day, who, after several years in prison, now serves as the associate vice president at the David Rothenberg Center for Public Policy. When Day got out of prison, he had a GED and some college education, and when he applied for jobs, he had to tick a box indicating that he was a felon. “I recall going on one job interview and having the hiring manager ask me how I obtained a particular set of experiences and I told her that it was while I was incarcerated,” he says. “Immediately, I could tell that the interview shifted, that she was totally not interested in me because I acquired the skills that I talk about while I was incarcerated.”
There are 70 million Americans with criminal records—roughly the same number as bachelor’s degrees—and various parts of the government have proposed ways to make them more likely to be employed. In 2012, the Equal Employment Opportunity Commission made a point of reaffirming its ruling that it is illegal to disqualify an applicant if the crime for which he or she was convicted is not related to the potential job. And last month, President Obama signed a memorandum that would “ban the box” following a now-ongoing comments period. This would mean federal jobs wouldn’t include a checkbox that convicted felons are required to tick. Instead, a majority of agencies would not be allowed to ask about an applicant’s criminal history until later in the interview process.
“I think I would have had a far better chance of securing that job if I was not required to discuss my criminal conviction with the hiring manager,” says Day. A number of state and local governments have passed laws banning the box in recent years, in order to discourage public and private employers from preemptively winnowing out applicants with criminal histories.
While some criminal-justice reformers have applauded these measures, many argue they don’t go far enough. “Ban the Box can get you in the door and get you to the interview, but people may still do criminal-record checks after the interview and decline to hire the individual,” said Christy Visher, a professor of sociology and criminal justice at the University of Delaware.
This is exactly what happened to Neil Cardoso, who applied for a job as a chauffeur shortly after a conviction and a brief incarceration in New York City for a white-collar financial crime. Cardoso was offered a position only to have it rescinded after a criminal background check was done. “They wanted me, they loved me, the people who did the hiring wanted me to start right away,” he says. “And then the HR department did the background check, that was the last part of the hiring process.” The company saw his conviction, and declined to hire him. Cardoso takes umbrage at the fact that the job had nothing to do with the offense for which he was convicted. “I had no fiduciary responsibilities as a chauffeur, I would just be driving people around.”
Of course, the prejudgments or outright discriminations by potential employers are only a small component of the challenges facing the formerly incarcerated. “I don’t know how they do it,” Cardoso says. “Some of these kids that come out, they were juvenile delinquents, they got a long rap sheet, they got no work experience … It’s the time spent—you’ve got gaps in your resumé.” He notes that there are a long list of things standing between felons and jobs: illiteracy, a lack of family support, the appeal of public assistance over the more menial, low-wage jobs offered by work-release programs.
Visher agrees. “Everyone who comes out of prison says, ‘I need a job, I need a job, I need a job,’” she explains. “But if they haven’t been properly assessed for these other problems— education, mental health, drug abuse, and even physical health [such as] diabetes, chronic heart problems—they don’t do well in the job market, not surprisingly.”