A Bill to Give Former Inmates a Second Chance

COMMENTARY Crime and Justice

A Bill to Give Former Inmates a Second Chance

Aug 27, 2019 8 min read

Commentary By

John Malcolm @malcolm_john

Vice President, Institute for Constitutional Government

Brett L. Tolman

Founder of The Tolman Group, former U.S. attorney for the District of Utah

If people are pushed into the corner and denied opportunities for gainful employment for too long, they will have little choice but to recidivate. sakhorn38/Getty Images

Key Takeaways

A major focus of the First Step Act is driving down the recidivism rate.

Gainful employment is a key factor for reducing recidivism.

People cannot be permanently marginalized and made to feel like second-class citizens.

Congress is currently considering the Fair Chance Act of 2019, a bill designed to increase the odds that formerly-incarcerated individuals can get jobs upon their release and prove to the world that they’ve turned a new leaf and are prepared to be law-abiding, productive citizens.  

Although hardly a panacea, the bill has a lot of merit and is worthy of serious consideration by Congress.

Last December, President Donald Trump signed into law the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, better known by its acronym, the First Step Act.  

A major focus of the First Step Act is driving down the recidivism rate. The law aims to do that by offering incentives to eligible inmates in federal prisons—excluding many violent felons and sex offenders—to participate in evidence-based programs tailored to address the particular risks they pose and to meet their own particular needs.  

The hope and expectation is that by addressing the underlying issue that may have contributed to the inmate’s criminal behavior—be it a mental health issue, a substance abuse problem, anger management, a lack of education or job skills, or any other issue—that individual will be more likely to become a law-abiding citizen upon his release and will not return to a life of crime.

Helping Former Inmates Back Into Society

While an important part of criminal justice reform, the First Step Act is just that—a first step. 

It is important to remember that the act applies only to federal inmates, and only to a subset of those. The vast majority of incarcerated individuals, however, are convicted of state crimes, not federal crimes.  

Nonetheless, such measures are extremely important because, as things stand, recidivism rates are staggeringly high. In 2016, the U.S. Sentencing Commission estimated that 49.3% of federal offenders who were released in 2005 were re-arrested within eight years. 

In addition, a Bureau of Justice Statistics study of 30 states found that among offenders who were released from state custody in 2005, 76.6% were re-arrested within five years.   

It is, of course, incredibly important to provide people with the skills they need to become productive workers and to stay on the straight and narrow upon release from prison. But it may all be for naught if no employer will give those formerly-incarcerated individuals a job.  

Gainful employment is a key factor for reducing recidivism, as numerous studies have shown. 

That’s what led the president to launch his Second Chance Hiring initiative back in June. The president noted that “[t]oo often, former inmates are not considered for jobs even if they’re qualified, rehabilitated, and ready to work.” 

He went on to announce the administration was “taking crucial steps to encourage business to expand second chance hiring practices.” In similar fashion, it is this very issue that the Fair Chance Act seeks to address.

Just how bad is the problem? Extremely bad. 

In 2014, the FBI estimated that 77.7 million individuals—nearly one-third of the people living in this country—had a criminal record, with 10,000 to 12,000 names being added each day, according to the Wall Street Journal. 

Even this startling statistic might understate the extent of the problem. A 2012 study by the Bureau of Justice Statistics of state criminal records determined that over 100 million people living in the United States and its protectorates have a criminal record.  

Moreover, the unemployment rate for those with a criminal record is particularly high. In 2008 (the last year for which such data is available), the unemployment rate for formerly incarcerated individuals was 27.3%—over five times the unemployment rate for the general population.

No doubt, others with arrest records or who were convicted of crimes but never incarcerated struggle to find jobs, too. A 2009 study by Princeton and Harvard researchers indicated that those who check the box on a job application indicating they have a criminal record are 50% less likely to receive a callback than those who do not check the box.

That’s where the Fair Chance Act comes in. With certain exceptions, the bill would require the federal government and federal contractors to “ban the box” as part of their hiring practices.

This would prevent a prospective employer from conducting a criminal background check or otherwise inquiring about an applicant’s criminal record until such time as a conditional job offer is extended. Once an offer is made, the employer can then conduct the criminal background check as needed.

Notably, the bill would not apply to federal agencies or federal contractors that fill designated law enforcement or national security positions; positions in which the job-holder would have access to classified information; certain other positions as identified pursuant to regulation by specified government officials, including the director of the Office of Personnel Management and the secretary of defense; and when another law requires the hiring agency to consider someone’s criminal history prior to extending a conditional offer.  

Violations would be subject to an escalating series of penalties, ranging from a written warning to suspension of the employee for a limited period of time to civil penalties. 

Significantly—and laudably—in contrast to “ban the box” laws that have been imposed by some jurisdictions, there are no criminal penalties attached to violations of the act—only civil penalties.

What ‘Ban the Box’ Means

The purpose of “ban the box” policies is not to prevent an employer from making the ultimate decision about whether to hire somebody with a criminal record. 

The point of such policies is to give someone with a criminal record the opportunity to get a foot in the door and impress a would-be employer with his or her job-related skills during the interview process.  

Presumably, if the employer is impressed enough to extend a conditional job offer, the employer will be more likely to engage in a productive conversation with the applicant and ultimately hire him upon learning that he has a criminal history.  

Too often, the applications of those who check the criminal record box are immediately discarded, despite the fact that many such applicants may genuinely be contrite about what they have done and be prepared to work exceptionally hard to prove to their employers and to the rest of the world that they deserve another chance.

Many states and localities have already adopted “ban the box” hiring procedures, as have some of the nation’s largest employers, such as Home Depot, Walmart, Starbucks, Target, and Koch Industries.

Potential Pitfalls

There are some potential concerns with the bill, however. While banning the box may be a good idea from a moral perspective and even a business strategy, we generally disfavor imposing new requirements on private employers. 

Admittedly, the bill would apply only to employers who seek to become government contractors. And again, there’s nothing in the bill that would prevent would-be employers, including those seeking to become government contractors, from ultimately obtaining the criminal history of applicants and deciding whether to go forward and hire an individual with a criminal record.  

There are also several studies (see herehere, and here) suggesting that “ban the box” policies may end up doing more harm than good. 

For instance, if employers are unable to inquire into an applicant’s criminal background, they may resort to unfounded assumptions and stereotypes about the applicant based on observable characteristics, such as race.  

These studies are limited in nature, and we would be remiss to allow the potential bad acts or impulses of some employers to serve as an impediment to otherwise positive policy change. 

Moreover, other studies suggest that “ban the box” policies have had a clearly positive impact on the likelihood that applicants with a criminal record will become employed, especially in the public sector (see here and here).  

This is, however, an area that warrants further study. After all, it would make no sense to implement a policy, however well-intentioned, that proved counterproductive and unintentionally harmed minority applicants who do not have a criminal record.

More to Be Done

The Fair Chance Act is by no means a cure-all. 

For instance, out of the nearly 45,000 collateral consequences identified by the Council of State Governments that are frequently imposed on individuals who have been convicted of a crime, a substantial majority of them are employment related.  

These collateral consequences can pose a significant impediment to formerly incarcerated individuals—as if they didn’t have enough impediments already—when it comes to obtaining gainful employment. 

Moreover, a multitude of other occupational licensing laws explicitly or implicitly exclude formerly incarcerated individuals from obtaining licenses to enter certain professions because they are deemed to lack “good moral character.”  

The Fair Chance Act would do nothing to ameliorate this problem.

Moreover, there will always be employers who will refuse to hire applicants with a criminal record because they think it may harm their reputation or lead to liability for negligent hiring if that employee harms a customer or member of the public while on duty. And the bill does not address the fact that some insurers deny coverage to companies that hire individuals with a criminal record.  

Nobody said this would be easy. Nonetheless, there are many positives to consider in the Fair Chance Act, and it is good to see Congress looking for ways to address this serious problem. 

The bottom line is that people cannot be permanently marginalized and made to feel like second-class citizens. Released offenders have a difficult enough time as it is. 

If people are pushed into the corner and denied opportunities for gainful employment for too long, they will have little choice but to recidivate, which means wasted lives, ruined families, and more crime.  

That is not in anybody’s best interests.

This piece originally appeared in The Daily Signal