African American Male Unemployment & the Role of Criminal Background Checks. Center for American Progress June 19, 2009 February 11, 2008 Maurice Emsellem Oakland, California (510) 663-5700 emsellem@nelp.org
Some Hard Facts About the Criminal Justice System More than 700,000 people are released from U.S. prisons every year (four times more than 25 years ago). Nearly two-thirds released from prison served time for non-violent offenses, including drug offenses (37%) and property offenses (25%). 2 out of 3 non-violent offenders released from prison each year are people of color (48% African-American, 25% Latino). 2
About One In Four in Adults in the U.S. Possess a Criminal Record on File with the States (Bureau of Justice Statistics 2006, Table 2) 250,000,000 209,000,000 200,000,000 150,000,000 100,000,000 50,000,000 71,000,000 49,700,000 0 Over Age 18 Total Individuals with Criminal Record National Estimate of People with Criminal Record (70% of Total) 3
Disproportionate Impact of Arrests on African Americans in Alameda County (Adult and Juvenile Arrests Reported, 2006) 40% 35% 30% 31.1% 37.2% 35.1% Alameda County Arrests Share of County Population 25% 20% 15% 13.7% 10% 5% 0% White African American 4
More People of Color with Criminal Records, Combined with Increased Records Checks Private Employers & Screening Firms: -In 2004, 80% of large employers conducted criminal background checks (up 29% since 1996), often include blanket hiring prohibitions. - A major survey of Los Angeles employers found that over 60% of employers would probably not or definitely not be willing to hire an individual with a criminal record. - Proliferation of private screening firms conducting inaccurate and inexpensive criminal background checks. Federal Screening Mandates: -Federal laws and Office of Personnel Management regulations mandate screening of millions of entry-level and skilled workers, often including few employment protections. -In 2002, for the first time, the FBI conducted more fingerprint-based background checks for civil purposes than for criminal investigations (5 million for employment purposes). -The FBI s rap sheets are 50% incomplete due mostly to failure of the states to report dispositions on arrests. State Screening Mandates: -State laws require criminal background checks of hundreds of entry-level occupations (including schools, transportation, private security and health care), often including blanket hiring prohibitions. 5
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Racial & Ethnic Profile of Selected "At-Risk" Industries Subject to Laws Denying Employment for Criminal Records 40% 35% 30% 36% 32% 27% African-Americans Latinos 25% 20% 16% 18% 19% 15% 12% 14% 10% 5% 0% Nursing Home Workers Private Security Bus Drivers Non-Certified School Employees 8
Private Security Officers (Unarmed) Features of State Criminal Background Check Laws State Criminal Background Law 36 Blanket Felony Disqualification 25 Lifetime Felony Disqualification 24 Waiver Procedure 5 Offense Age Limits 4 0 5 10 15 20 25 30 35 40 Number of States 9
Employment Significantly Reduces Recidivism (Results of Chicago's Safer Foundation Job Placement for 1,600 Recently Released from Prison) 60% 3-Year Recidivism Rate (2004) 50% 40% 30% 20% 10% 54% 21% 18% 8% 0% IL Dept. of Corrections Safer Job Placement 30 Days Employed 360 Days Employed 10
After 5 Years, Offenders No More Likely Than Non-Offenders to Be Re-Arrested (Kurlychek, et al. Scarlet Letters & Recidivism: Does An Old Criminal Record Predict Future Criminal Behavior?, 2006) 11
New Criminal Background Checks Authorized by Federal Laws Since September 11 th, more federal laws have required criminal background checks of transportation workers (3-4 million port workers and truck drivers) to identify terrorism security risks. Recent federal laws also authorize FBI background checks of school employees, nursing home workers, private security officers, all workers employed in federal buildings and on federal construction projects. Minimum worker protections only apply to transportation workers (including 7 year age limits on disqualifying felony offenses and waiver procedures to take into account rehabilitation). 12
Impact of TSA Waivers & Appeals TSA port worker background checks broadly disqualify most felonies. Drug sales and fraud alone cover 30% of all state felony convictions. More than half of all disqualifications (55%) are appealed due to incomplete FBI rap sheets, and 75% are successful on appeal to TSA. Nearly all TSA waiver requests (1,000, or 92% of all applications) for truck drivers were successful. Though mostly successful, the number of waiver requests filed by port workers and truck drivers are still limited. 13
Disproportionate Impact of Port Worker Criminal Background Checks on People of Color (Profile of NELP TSA Cases N=134) 60% 50% 54% Waive Felony Conviction Appeal Inaccurate Record 40% 41% 30% 29% 24% 24% 20% 19% 10% 2% 6% 0% African American Latino White Other 14
Core Standards for Reform of Federal & State Screening Laws Limit criminal background checks required by law to occupations that genuinely involve public safety and national security. Limit disqualifying offenses (especially non-violent drug offenses) that are not job related. Impose age limits on disqualifying offenses, eliminating unwarranted lifetime disqualifications. Waive in current workers. Allow for individual waivers from disqualifying offenses for new hires, providing opportunity to document record of rehabilitation. Clean-up incomplete FBI rap sheets produced for employment screening purposes, similar to the procedure that applies for gun checks. 15
Know-Your-Rights: Title VII Applies to Background Checks Because criminal background checks have a disproportionate impact on people of color, Title VII regulates employer decisions based on a criminal record. Arrests: Employer decisions based on arrests alone routinely violate Title VII according to the EEOC. Convictions: Employer decisions based on convictions must be job-related according to the EEOC, taking into account the age and severity of the offense and evidence of rehabilitation. 16
The Special Challenges Facing U.S. Cities In Illinois, 51% of those released from prison returned to Chicago (6 out of 77 Chicago communities accounted for 34% of returnees). In California, 34% of those released from prison each year returned to Los Angeles County. In Texas, 58% of those released from prison returned to 5 of 254 counties. In Maryland, 59% of those released from prison returned to Baltimore City. 17
Major U.S. Cities Lead the Way for the Private Sector Boston, Chicago, Minneapolis, Oakland, Portland, Saint Paul, & San Francisco have adopted hiring policies that promote employment of people with criminal records without compromising public safety. Chicago Mayor Richard Daley: Implementing the new policy won t be easy, but it s the right thing to do.... We cannot ask private employers to consider hiring former prisoners unless the City practices what it preaches. 18
Major Features of City Policies Ban the Box Protect against discrimination by limiting criminal background checks to the final stages of the hiring process except where required by law. Fair Hiring Standards Require any inquiry into an applicant s criminal history to be job related. Procurement Standards Apply fair hiring standards to contracts and city vendors. Consumer Protection & Appeal Rights Protect against problems of inaccurate records and hiring decisions based on incomplete information by requiring early access to criminal history information and an opportunity to present evidence of rehabilitation. 19