[Dwayne Betts]
You can't live in DC and not be impressed, on some level, by Councilman Marion Barry's political staying power. And if you asked about the source of that power, you would probably get ten different answers from ten different people. Earlier today I got a glimpse of how Barry maintains his relevancy. Barry is introducing a bill to have the Human Rights Act of 1977 amended to afford protection to ex-offenders. Let me say that again slower - Barry is introducing a bill to amend the Human Rights Act of 1977 so that it affords protection to ex-offenders.
If passed, the amended bill will in part read:
It is the intent of the Council of the District of Columbia, in enacting this chapter, to secure an end in the
District of Columbia to discrimination for any reason other than that of individual merit, including, but not
limited to, discrimination by reason of race, color, religion, national origin, sex, age, marital status, personal
appearance, sexual orientation, gender identity or expression familial status, family responsibilities,
matriculation, political affiliation, genetic information, disability, source of income, arrest record, or conviction record and, status as a victim of an intrafamily offense, and place of residence or business.
Barry's full bill is here: http://www.dccouncil.us/images/00001/20090210104039.pdf
Politically, this is a good move for Barry. It makes it look like he's ahead of the curve, but really he just hears a train that's already coming. Providing protection for ex-offenders guarantees nothing anyway. The important work of the legislation, if it passes, will be to create an atmosphere where someone who has been to prison can walk into a room without feeling the need to confess to his crimes again and again.
A few months ago I spoke at an ABA conference about this issue, and next month I'll be on a ABA panel moderated by Charles Ogletree about the long lasting ramifications of a felony conviction. The first time I spoke before the ABA's council it was specifically to try to get them to take a stance against the practice of law schools and universities to ask about felony convictions. These schools often ask about arrests and juvenile adjudications. Ultimately, there was a reluctance to take a stance at that time - there were issues with how to protect public safety, etc. But what I realized was that most people think that if it comes down to someone with a felony not getting into school - despite not being a threat and being a good student - if that's the price to pay for people to feel comfortable, than that's just the price.
The amending bill still maintains that employers have the right to deny employment because of a felony conviction if there is a "rational relationship" between the arrest or conviction record and the job. This makes absolute sense. The thing is that if employers and universities have to think about the existence of a rational relationship, they will be less inclined to discriminate just on the basis of a checked box.
Barry's bill is important because it is the kind of stance that ex-offenders cannot make on their own. Right now, any university or employer can deny you a job or deny you admittance to a school without a hearing, without a valid reason. They can deny you and pretend that it's based on something other than your felony - or they can say it's because of your felony. Of all the collateral consequences that come with a prison sentence this shutting off of opportunity is the most dangerous. At the end of the day, I feel like, no matter his reasons, Barry's proposed amendment is an acknowledgement that society works better when all the members who can contribute are given the opportunity.
The Beautiful Struggle: A Father, Two Sons, and an Unlikely Road to Manhood 
I'm all for encouraging employers to do better, and I agree completely with what you're trying to get the ABA to do, but I read this and it seems like such an extraordinarily bad idea that I just don't know where to start. It's one thing to get people to think more about how much a criminal record should affect their hiring practices, it's quite another thing for the government to require that a criminal record have no effect at all.
I'm really trying to imagine being dragged into court for a judge and jury to second-guess whether I gave too much weight somebody's criminal record during hiring. The other things on that list (race, gender, sexual orientation, etc.) are things that should never be considered at all. I'm sorry, I just don't see a criminal record as being in that same category.
By the way, does anyone know what "matriculation" means in connection with this law? I associate the word with a high school or college degree, but it can't possibly be that, could it?
I think matriculation in this instance would refer to organizations of which the applicant was a member. Although that's a guess.
BTW, I understand there's exceptions built into the law. But the starting point is still saying that one's criminal record should have no effect, with certain exceptions, similarly to how it's saying that one's disability should have no effect but with certain exceptions.
And I just don't see the two things as very similar.
I generally agree, by the way, that this sounds like a well-meaning but generally bad idea. I personally have difficulty understanding what it means to have a “rational relationship” between the arrest and the job. I am hard-pressed to come up with a crime for which an employer couldn’t reasonably connect to their business.
Really? What about actors, models, and prostitutes?
While I understand the stance that says it's a bad idea - I believe that opinion begins the discrimination. Employers can choose not to hire people for valid reasons, this bill will prevent them from saying I won't hire you to work at McDonald's because you had burglary charge seven years ago.
And BreakerBaker's point is right - employers can always find a rational relationship, but the bill would hopefully prevent them from just dismissing people. And it would allow them to hire people they want to hire, but fear hiring because of how other people will view it. But this may be most important for colleges, who deny people just because of convictions. Although, I must commend the University of Maryland which gave me a full tuition scholarship and didn't let my felonies dissuade them from having a good student.
I get what you're saying, but a burglary charge seven years ago seems like a perfectly valid reason not to hire someone to me.
I think this is the perfect time to chime into this discussion which I feel strongly and passionately about being that I have seven felony convictions and one of them is burglary. The first thing we have to acknowledge is that there are several levels of a felony within a felony. Now I have all of these felonies based on one charge. I actually didn’t break into anybody’s house or business, but I was in possession of stolen property (which I am fully guilty), and yet I was given the option to either take a plea bargain or risk doing 30 years in jail. I chose the plea bargain. I said that to say an employer will never know all of this when you check the felony box on the application. At times I find it hard to explain in the given amount of space to explain yourself.
This society we live in trips me out sometimes. Based on Christian morals of forgiveness, we are slow to forgive when it comes capitalist based decisions and perceived moral character from those who have stolen so much and inflicted so much pain and cultural trauma. When I was released from prison I went to school and got a Bachelors degree, then a master’s degree, and ultimately a PhD. So now I am Dr. Horton, and I know some people will never be able to get past the felony to understand how one can turn their life around in a matter of years. The prosecutor told me I would never amount to anything, now I may be teaching his kid on a college campus. What I am saying is where is the moral compass to want to help people? It seems to have no place among the hypocritical.
It is not as easy as ABC…123, or any other commodified slogan that creates such hard immovable stances. Everybody talks about compassion or wanting to do the right thing, but no one ever steps up to the plate to do the right thing. We live in the comfort of our own illusions of how this society should function. The one thing I have learned in this society is that the only difference between me and the people that don’t have felonies is that I got caught, so I must and have paid the price. And I continue to pay the price. Whenever I go into a new situation those felonies will always be there, no matter how many books I have published, how many lectures I have given, how many kids I have helped along the way—none of that matters to the liberal or right winged do-gooder who must protect the very institution that consistently discriminate and creates social and racial pockets for empirical discourse that allows the dominant narrative of our society to continue behind the mask of forgiveness.
"no matter how many books I have published, how many lectures I have given, how many kids I have helped along the way—none of that matters to the liberal or right winged do-gooder who must protect the very institution that consistently discriminate"
I get that feeling and I'm sure it's very real, but I just have to say that at least in certain academic disciplines my inclination and I would hope that of any hiring committee with their head screwed on (I didn't go to college and am allergic to academia so I'm talking a bit out of my ass here) would hire you precisely based on your "extra-curricular experience" over someone else, "equally qualified, blah, blah", who didn't have your real-life experience. Certainly in stuff like sociology - assuming they're not just turning out market research types these days - I'd be far more swayed by your resume - the impressive nature of the personal journey of getting the education aside - than some guy who'd "read all about it." It seems like your story should fit into the alleged desire for "diverse faculty" etc. etc. (ethnicity aside) that at least a lot of the elite institutions hail as part of their enlightened value system. Or maybe it's all bullshit...
The one thing I have learned in this society is that the only difference between me and the people that don’t have felonies is that I got caught, so I must and have paid the price.
This is exactly the sort of attitude that makes people not care one whit for your problems. It is not the case the everyone is a criminal and you just have bad luck. Many people are NOT criminals, they never commit felonies. This statement reads like a lie that you tell yourself to avoid taking responsibility. Based on the rest of your post you clearly do mostly take responsibility for your actions, so stop acting like a victim. People who do things and are then punished for doing them are not victims.
My view is that it is perfectly just to hold felonies against people. Don't like it, don't commit felonies. However, while I am perfectly comfortable with what you would call draconian practices in this regard, it clearly is not the best policy for reducing recitivism. But not taking it into account at all would simply prevent employeers from being able to properly account for risk. Therefore, as a policy concern, we need to find a middle ground. And so you should argue it from a policy perspective because while I hate the idea of such a policy I can see the need for it. But if you try to convince me that you are unfairly burdened on moral/fairness grounds you are not going to move people like me one inch. In fact, as you can see by the fact that I felt the need to write this post, I find at least some of your arguement actively offensive.
Yeah, the problem is that the language is asking the employer to be reasonable, and not with regard to whether it can be assumed that the applicant poses a danger to your business, but whether the applicant’s past crimes can be reasonably connected to the job. If an employer can reasonably connect the crime to the job, they can still reject them on that basis. So how does this law change anything, really?
I think that most people would agree that your example of a McDonald’s franchise owner denying employment to an applicant based on a theft that occurred seven years ago is an instance in which the business owner would be acting unreasonably even though a fairly clear connection can be made between the crime and the job. I think it’s fair to say that it would be a less unreasonable action were the crime to have occurred more recently (let’s say, seven weeks ago). Of course, this makes an argument in favor of statutes of limitations on the application (i.e. have you been convicted of a felony in the last x years?), which I sort of assume is the wording of most of these applications, though I could easily be wrong.
In the end, I sort of get the sense that this is a bad idea only insofar as, while it’s symbolic and largely meaningless, it will also result in a bunch of frivolous lawsuits that will always favor the business owner. Best case scenario, were it to pass, it would lead to employers to maybe read applications they might have previously discarded out of hand. Obviously, that would be positive.
It’s a marvel to me how incomprehensible my writing can be if I don’t do a quick proofread. That first paragraph is terrible. What I meant to say was that the problem was with where in the hiring process the employer is being asked to use reason. As I said, just about any crime can reasonably be connected to just about any job, in the case of burglary this would be particularly true of jobs that involve an employer intrusting an employee to be in control of or in close proximity to some manner of company assets. What we should be asking employers to do is to employ their reason in a manner that accepts the potential for rehabilitation.
Meh, you've got nothing on me.
To the topic, I think one of the problems is that asks business to basically assume the risks. It seems to me that that's something government may want to do, via tax-breaks and incentives. I am deeply sympathetic to the problems of ex-offenders and the job market. But businesses aren't charities--they exist to maximize profits.
It doesn't sound like entitlement to me. Remember, the person already has to qualify for whatever job. They have to meet all other standards, and they have to reach the standard of not posing a risk. Where is the entitlement? The question is: Is it discrimination to refuse to hire someone solely because they have a felony, in a situation where the crime has no reasonable relationship to the job. Example: You were arrested for burglary at 21 - you did two years, went to college, got a degree. Now you're 30. You want to work at Duron - they see you had a felony and refuse to hire you. You've been a model member of your community, go to church on Sundays. You've had other jobs. Graduated with a 3.5. What is your risk?
In a real world context, in a professional job that pays well - employers already assess every applicant based on the risks they pose, and especially if they are a felon. In the school system employers already do this. UMD did it with me as did every job I've ever gotten. My reading of the statue is that it would begin to require this of places that don't have real educational or security requirements for their jobs.
TNC,
I think you’re mainly right on. My feeling is that it’s something the government has no business requiring of businesses. I think the author of the law (whether it’s Barry or somebody else) generally understand that this kind of requirement is legally untenable, which is why, I think, they wrote in a fairly broadly worded exemption that essentially frees an employer from any real liability resulting from not hiring somebody based on a criminal record (although the exemption would not prevent people from bringing expensive lawsuits they’d have next to zero hope of winning).
Yeah "require" is too much. Selectively incentivize is more what I am thinking. We do this all the time.
"It seems to me that that's something government may want to do, via tax-breaks and incentives. "
The truth is that the only way past this larger problem that ex-offenders - and we - have is for there to be aggressive re-entry programs right out of the gate. I'm actually for ex-offenders to be given preferential hiring, under a bunch of incentives to employers and a well-supervised job-training program in conjunction with their parole. Otherwise, frankly I don't want dude back on my block trying to figure out how to get over and feeling hopeless. The beautiful old Fox Theater in Oakland - after decades of being an empty eyesore - was finally restored by contractors who used a bunch of ex-offenders, some of them just out of San Quentin, as an integral part of their crews. The results are spectacular and helping to revive the entire uptown area - which is taking off commercially despite the economy. Whether it's inscribed in law or not, future employers are more likely to hire someone who at least has TWO records - a recent employment record and references along with the jacket so tracking guys straight from prison to real jobs should almost be mandatory. I know this is pie in the sky, the money, blah blah - but the prison system is part of what's killing us in California at the level of the state budget and, like a rational health care system, in the long run it's a much cheaper proposal.
I am also concerned about the lack of opportunity that faces convicted felons and the long-term effects of that reality on society. But is government really going to start telling businesses that they can't discriminate against people with, say, armed robbery convictions? The bill mentions that discrimination on the basis of "individual merit" is OK. Isn't a criminal record a good indication of an individual's merit?
The real reason Barry's idea won't fly, though, is because many felonies are political landmines. What if Georgetown denied admission to a graduate student with a rape conviction, and that person sued? Can you imagine the uproar among female students and staff, not to mention all the women's groups? They'd scream about preferential treatment for dangerous criminals, about government forcing the school to accept a menace to the safety of the women on campus. What politician--besides Barry--is going to stand against that kind of heat? Or, how about someone with a DUI conviction (a felony in most jurisdictions)? Many businesses won't even look at a person's application if it has a DUI on it. If that person sues because she was denied a job over her DUI, you can count on MADD and other groups raising holy hell.
A rape conviction is a reasonable reason not to admit someone to a school - maybe. Again, there are people right now - myself included, who have robbery convictions and have jobs. The point of the legislation is to nudge employers into the direction of not making the kind of blanket dismissals that it seems like BreakerBaker and just about every person responding is suggesting are valid.
How can we say we're concerned with the lack of opportunity and do nothing about rectifying the situation? Especially when, even from reading these comments, it's clear that everyone understands employers and institutions reject people just on the basis of the checked box. I had a situation where I was basically guaranteed a job and had it pulled back - not because they didn't know from the beginning, but because they became nervous about my felony - not about me, but about how they would look hiring a felon. That's tragic. Unless we're arguing that once you commit a crime you should just call it in, that you should no longer expect to be treated on the basis of the change in your life that you can prove. I had a carjacking charge twelve years ago - so what does that disqualify me for? I was sixteen when it happened. Is that a legitimate reason not to let me into Georgetown?
But you're right. Politicians won't stand behind it. Ex-offenders aren't really citizens in the truest sense. They are our scarlet lettered. They can get blasted with all kinds of unfounded concerns because of that. I think the legislation is meant, not to be a public safety hazard, but to acknowledge that at some point your debt to society is paid. There are time provisions in the policy and also the broadest interpretation of "rational relationship." Those provisions alone would prevent the Georgetown rape situation from happening. But the truth is that if you were accepted into Georgetown, it's more than likely that you would have so much going for you that you would have proven you aren't a threat to the women and men on the campus. There has to be a point where a convicted felon can enter society based on who he "is" and can be "shown" to be and not who he "was."
A quick point: sexual offenses are specifically excluded in the bill, although I haven't read it enough in depth to know if that applies everywhere. The bill makes an effort to avoid some of the more obvious political/publicity downsides, excluding things like law enforcement jobs, jobs overseeing children or the elderly, sexual offenses, etc.
Good point. That clears up the rape issue. There also are a number of employers or agencies that include schools whose inclusion of felony convictions in the evaluation wouldn't be discriminatory. The bill is really tame when you consider how easy it would be for an employer to tell someone - I'm not hiring you because you have a felony. And I think that's better than employers just not calling you back.
"The point of the legislation is to nudge employers into the direction of not making the kind of blanket dismissals that it seems like BreakerBaker and just about every person responding is suggesting are valid."
I don’t know that I want to be painted as an advocate for blanket dismissals of resumes based solely on past indiscretions. Obviously it’s true that every ex-offender deserves an opportunity to rejoin society in a way that allows them to assimilate and move on. A huge part of this is getting gainful employment and, should they choose, an education which will bring them greater opportunity. The question is, in what way should it be the legal obligation of business owners and school admissions offices to ignore the criminal record of its applicants. This bit of legislation says that it is their obligation except in cases where a reasonable connection can be made between the crime and the position. My feeling is that this is a pretty low bar to clear from the perspective of the employer.
And by low bar, I mean that an employer who was predisposed to do so, would have very little trouble coming up with a rational connection between almost any felony and their business.
Is there some kind of time frame in the bill? As an employer, I would think there was a big difference between someone who was convicted of a felony but had been out in society after prison for 12 years, or 7 years, as some of the examples given above. But, someone who just got out of prison in the last couple of years, I would have a harder time trusting that they had truly given up a life of crime, and, depending on how much time they served, that they were ready to function professionally outside the prison environment, no matter how sincere they were to try.
Personally, I wish we had a lot more reentry programs for people coming out of jail and prison that would give them some transition time, which then might serve to demonstrate to potential employers current skills and potential. I worked at a company that had a program like that and it seemed to be successful in alot of cases.
If it's framed as an entitlement, it'll never fly. You'll see civil discourse about it here in this forum, but it would be enormously unpopular in the mass of the US. It's a political wedge too, so there's no candidate with a sense of self-preservation on the national stage that could ever support. "Candidate X wants to put FELONS in your SCHOOLS." [cue scary sound effect].
A more American way of approaching might be assigning some sort of 'credit rating' for ex-felon job applicants, with tax credits for the business, and the opportunity for the ex-felon to 'earn' a quantified trust. It would mean a shit job for the first few years, probably, but that's kinda inevitable. At a certain level of credit, one could then claim equity and entitlement for better jobs.
I know that some may respond 'already paid their debt to society'. I can't help the fact that 'rehabilitation center' is a euphemism. If we actually intend to 'rehabilitate' it's gonna have to account for the society we want the ex-felons to re-inhabit.
"The question is: Is it discrimination to refuse to hire someone solely because they have a felony, in a situation where the crime has no reasonable relationship to the job."
Here's the problem: I think any felony conviction within the past, say, 10 years or so has, by definition, a reasonable relationship to any possible job. That doesn't mean I think no employer should hire a recent felon, but I do think it's always reasonable for an employer to consider the felony as relevant. I think it's quite telling that your first example of an obviously unrelated conviction (burglary 7 years' previously) was immediately countered by somebody who thought it was pretty relevant. People disagree about this stuff widely, and that's OK.
You know, in general I agree almost entirely with the things you say about child crime and certification. And I'm very sympathetic to better ways of integrating ex-felons into society. But on the flipside, if someone's committing violent felonies in his mid-twenties (and home burglary straddles the line of violent IMO), that says something very deep about his character, how he matured, and his empathy and regard for others. And an awful lot of time has to pass before I think it's at all reasonable to tell an employer to entirely ignore that stuff.
Would I like to see employers drop the automatic blanket exclusion of felons? Sure, and so would everyone else here it seems. But this law is a really bad way to achieve that.
It would be nice if the "felony" label were reserved for serious crimes. Many people believe that a felony is a serious crime but the reality is that many crimes that most people would consider relatively minor are actualy felonies. If crimes were categorized better, it would make this issue a little easier to deal with.
The same is true for the term "sex offender." The term includes such a huge range of offenses that knowing that someone is a "sex offender" tells you nothing about what kind of a threat they may or may not be.
You know, the more I think about this, the more I think it's another cheap liberal sop where some legislators nod their head in the direction of good intentions but back it up with exactly nothing. And they put the real potential problems and controversies off on someone else, who can weasel out anyway. The path away from the real-life problem requires resources, smart government, cooperation with employers, etc. etc. It's called an effective, mandatory ex-offender re-entry program. It would do fifty times or a hundred times the good that adding language to some human rights resolution would...
Yeah, I should have read the bill more closely before commenting--sexually-based offenses seem to be excluded, so the Georgetown example is probably out, but then I read more and found this:
"(3) The arrest record, or conviction was for the crime of murder, arson, robbery, assault with a deadly weapon and a sex offense and the duties and responsibilities of the employee bears a rational relationship to the arrest record, or conviction record;"
The key word in that paragraph is "and". The way I read that is that the employer can turn down the applicant on the grounds of his / her felony arrest / conviction ONLY if the arrest / conviction has some type of 'rational relationship' to the job, even in the case of murder, arson, robbery, assault with a deadly weapon, and, I guess, a sex offense. Maybe I'm not getting it, but under the bill it's not really clear when an employer can or cannot take felony arrests and convictions into account. What kind of 'rational relationship' is there when it comes to murder? Let's get rrrreeadyyyy to lllllllitigaaate!
We have a huge problem re-incorporating felons into society. But TNC's point is a good one--we can't solve it by forcing the private sector to take all the risk.
I often wonder whether this is the perception that's really driving the difference on a lot of these issues. I mean, I'm perfectly willing to admit that things like drug laws are insane (and if somebody wanted to purge all drug felony records, they'd get my vote), and I realize also that's there's a certain amount of people that were railroaded or had a one time wrong-place-wrong-time experience (and obviously race and class plays into that).
But my perception is that the mass majority of felons out there, especially when we're talking burglary, robbery, rape, assault, etc., are people who have committed crimes that the overwhelming majority of people simply have not committed. Frankly, I've never carjacked anyone, nor have I ever knowingly received stolen goods of any consequence, and my general perception is that this is true of most people I know.
Now, maybe my perception is completely wrong. I really don't know for sure. But a number of comments makes me wonder how much our reactions to criminal justice issues are due to the differences in perception as to how common these types of things really are.
I don't think the responses have anything to do with the perception of how common these things are, as much as how long someone should be punished for them. True, you may have never carjacked someone, robbed someone or stolen anything - but the fact that someone else has made that mistake doesnt on the surface make you better prepared to be a doctor's administrative assistant. More importantly, the person with the felony, having served their time, should at least know they have a fair chance at a job they are qualified for, provided it's clear that they pose no threat. People don't get those chances. What I see from the comments is that mostly people feel it's okay to not hire someone solely because a past offense.
The bill isn't asking the private sector to take the risk. The bill is asking the private sector to used risked based assessment instead of not looking at people based on their records. Most people who have problems wouldn't qualify for jobs. It's that simple. The ones that do have the qualifications, and can reasonably be assumed to not pose a risk should be given a shot.
I think what you're seeing in comments is that there's a very wide range of beliefs regarding what weight an employer should give person's criminal record. While everyone can see extremes on both sides (say, a 60-year-old with a possession conviction at 18 applying at McDonalds vs. a 27-year-old with a recent string of armed assault convictions applying at a womens health center), there's very little agreement about where to draw the line. I think most of us want employers to consider this stuff on an individual basis, which is something the law is really, really bad at.
The essential problem with the proposed law is that everything else on the list, race, religion, origin, etc., are things we want employers to consider less than they currently do while a criminal record is something we're trying to get employers to consider more than they currently do, to look beyond just the automatic checkbox refusal and deal with the actual relevance of the offence. You're putting these things together under the law hoping to achieve completely opposite effects, and you're doing so under the guise of suggesting the law is unenforceable and thus acceptable. I'd suggest its unenforceability is an argument against its passage, not in favor.
It's understandable that private sector employers would hesitate to hire ex-offenders.
But do we really expect that ex-offenders can function without a job?
Last-resort employment of (most) ex-offenders is one of the tasks that only the public sector can be be relied upon to perform.
It's reasonable to require ongoing supervision, and to mandate certain types of work – dirty, dangerous, remote – but pay them a living wage.
Consider these facts:
According to figures gathered and analyzed by the Pew Public Safety Performance Project, more than one in every 100 adults is now confined in an American jail or prison;
Between 1987 and 2007, the national prison population has
nearly tripled;
The United States leads the world in incarceration;
Total state spending on corrections in 2008 topped
$49 billion!
Some states are spending more money on prisons than on higher education even building more prisons than schools;
Instead of spending this enormous amount of money on prisons, the U.S. could redirect these resources to other priorities such as health care coverage for all Americans or a tuition support for higher education for students.
Given these facts, policymakers should consider every option to improve the chances that someone with a felony conviction will not end up behind bars again and increase their chances for obtaining employment so that they can be productive & contributing members of society.
Employers already receive numerous tax breaks and incentives and aren't often contributing what they can or should to make our community a place where everyone can participate. Employers should not be allowed to discriminate against individuals who have felony convictions.
DC Councilman Barry should be commended for introducing this legislation. It will garner substantial support in the District and be a model for the nation.