Double Jeopardy: The Stigma that Stops Rehabilitated Felons from Re-Entering the Workforce

Posted In: Politics, State, Opinion,   From Issue 813   By: Matt deHeus

23rd July, 2015     0

They say we don’t make anything in America anymore, but in actuality there is one industry that has displayed consistent growth over the last 40 years, even finding a way to increase their business through imports.  If your guess were prisons, you would be right on the money; that’s right, our own State & Federal Penitentiary System.

Whether publicly owned or a privatized for-profit facility, the incarceration business is booming.  In 1974 there were approximately 215,000 inmates in State and Federal prisons.  By 2014 this number had grown to over 1.5 million.  (This does not include another 775,000 or so in local and county jails tonight.)

That number is actually a little misleading, as we don’t actually “make” that many new prisoners a year.  Some – the most violent offenders – are part of that count forever.  The remainders are actually often recycled, with estimates as high as three quarters of ex-cons re-offending within 5 years of their release, with a little over 50% ending up back behind bars. 

But this article isn’t going to be about violent crime or the merry-go-round of ones who can’t seem to figure how to get out of the system.  This is an article for those that do.


What Is A Felony?

In criminal law, a felony is a category of crimes that are often classified as the most serious types of offenses. The main characteristic of a felony is that being found guilty of one will result in incarceration for at least one year. Also, the imprisonment will be served in a prison facility rather than a county or local jail. Criminal fines may also be imposed for felony charges, often in the amounts of thousands of dollars.  Felons will also be responsible for costs related to their conviction and incarceration.

Under traditional common law, felonies were called “true crimes,” and usually included serious offenses like: homicide, rape, arson, burglary, robbery, larceny, animal cruelty, drug trafficking, fraud or assisting in a felony. State and federal criminal statutes dictate which types of crimes are felonies.

In addition to a prison sentence and fines, there are a number of other results from a felony conviction (which vary by State).  In Michigan, a convicted felon:

  • May not own firearms
  • May not hold a liquor license
  • May not serve on a jury
  • May not hold a gaming license
  • May not join the military
  • May be barred from holding certain professional licenses or certifications
  • May be barred from running for public office

(Note:  While incarcerated, a felon loses the right to vote, the right to file Civil Rights or ADA suits or the right to file a Freedom of Information Act request.  All are restored upon release.)

Each item on that list is a significant restriction to the rights or privileges normally enjoyed by American citizens.  While each might represent a varying level of nuisance to each individual, there is one requirement that weighs most heavily on an ex-con and their path going forward … the box.

Have You Ever …

As of 2012, one in 33 working-age adults was an ex-prisoner, and about one in 15 working-age adults was an ex-felon. Among working-age men in that same year, about one in 17 was an ex-prisoner and one in eight was an ex-felon.  By any measure, this is a substantial portion of the potential workforce.

What this means in practice is one in 15 people need to “explain” after they check “Yes” on the “Have you ever been convicted of a felony?” question.

The unfortunate problem is the extra weight from the ink used to write the explanation usually makes the application sink straight to the bottom of the pile, because the reality is that it often doesn’t matter what kind of resume you have attached, once you fill in that box, your chances have evaporated into the nether regions of a shaky economy.

In the past you might be able to get away with a lie.  Records were on paper and sketchy.  States didn’t collaborate.  Background checks were expensive and rare.

Today, you can buy a background report on any individual for as little as a few dollars that will tell you every place that person has lived, employers, civil judgments and – yes – criminal convictions. The impact on an ex-con when a background check is conducted is usually pretty obvious – you just don’t get the job.

But, there isn’t just one person.  There are millions of ex-convicts around the country who are not re-offending, who are trying to get on with their lives and who are proving to be an unintentional burden on our economy.

A 2010 study by the Center for Economic and Policy Research (CEPR) concluded that ex-convicts who were unable to find work were adding up to 0.8% to the national rate of unemployment.  This population also represents a large portion of the chronically unemployed that is not even counted in the unemployment numbers.

The cost of this huge pool of “unemployable” workers was estimated by the CEPR to be 0.5% of GDP, or around $85 billion in 2010. 

That is a serious chunk of change and certainly worth retrieving.



This might be a good time to talk about Michael, who has been as good a friend to me as anyone since I moved here.  Michael isn’t his real name … well, actually it is, but that is a long story.

Michael is an ex con.  He was 17 when he was convicted, a four year veteran of living on his own by that point.  Michael was already working, with a daughter and another baby on the way.  But he was making mistakes.

Unlike a lot of people convicted of crimes, Michael admits he did it.  As he often puts it, “I was in the wrong place, at the wrong time, doing the wrong thing.” 

In his case the wrong thing was buying stuff from other teenagers like power tools and laptops – things he knew were probably stolen – and reselling them.  By the time the authorities brought charges, he had been at it awhile.  It was a far bigger deal than he realized.  And at 17, Michael was sentenced to 42 to 120 months.

I have been given no impression about his time in prison other than it being a brutal experience, but he managed it and walked out at age 21 with the mindset he would never go back.

Never one to shy away from work, Michael established a small toehold in the economy, mostly due to his willingness to take on tough jobs and day labor.  It was work, but it was often work few others wanted, as it was low paying, exhausting or, sometimes downright dangerous. 

A career based on manual labor also leads to feast or famine.  It is not unusual for unemployment for these workers to hover around 27% year round, soaring to over 55% in Michigan during the winter months.

It has been 14 years now for Michael – scrambling for a living, raising his family and staying out of trouble.  Even a cynic might look at the situation and say that the rehabilitation system worked this time. 

Except for that damn box.  Almost a decade and a half later it still casts its shadow.

More stable employment has been a goal for some time and it appeared that might finally come when an acquaintance managed to obtain an interview for him at a major area employer – a big company, with room to grow and advance. 

The interview went fine.  So did the check of references and a urine screen.  They let him know that they’d finish up the background check and get him started ASAP.

And then he waited. And waited a little more.  And then, one day, a letter came in the mail from the company that was a little thicker than one might expect.  The first page in it was a rejection letter, indicating he was not eligible for employment based on his background check.  Also enclosed was a copy of that report.  Flipping through the document, there it was:  a felony conviction – 17 years ago – and nothing since. 

For the better part of a four year period the addresses were all those of Michigan Department of Corrections facilities.  The addresses since trace the path of a man and a family trying to get by.

This story supports a statement I have been making about crime and punishment for some time:  It doesn’t matter what the judge says when you are convicted or how long you stay in prison.  Every sentence is a life sentence.


Seven Is Enough

Every State has entities – public and private – that attempt to help prisoners re-enter the workforce.  The largest in Michigan is the Michigan Prisoner ReEntry Initiative (MPRI).

Subject to the whims of state legislatures, funding for these programs may come and go.  And, unfortunately, many of the employers that are around for the press release concerning the program never really find the kind of candidate they are looking for in the program’s pool.

A new trend, however, might offer some actual relief to this issue of unintentionally idling such a large portion of the workforce.  Many states are now looking at statutes that would limit the period of time that an employer may search for non-violent felony offenses.  Gun crimes, sex crimes and other serious offenses would still be reported “in perpetuity.” 

But the new laws are allowing for felony records to be sealed (not expunged) for non-violent offenses if there have been no subsequent convictions for some period of time (e.g. 7 years).  In essence, they are offering a second chance once an ex-convict has shown the rehabilitation process worked.

States such as Hawaii, New Mexico, New Hampshire, Minnesota and Massachusetts have enacted laws that put a limit on how far a background check can go and what it can look for.  Schools, day cares or other institutions with specific mandates would be exempted and allowed to do a much more detailed check.

California, always known for its very liberal approach to government, is taking this one step further with a potential “ban the box” initiative, which would eliminate the felony question from most initial employment applications. In essence, rules like these would allow a convicted felon the opportunity to check “No” in the dreaded box, if it is even there are all.

These initiatives are not meant to address violent offenders or the huge percentage of felons who end up back in prison.  They should be tracked, identified and – often – kept right where they are.

What these States are trying to accomplish is to actually grant a true second chance to those who have shown they learned their lesson.

Michigan has had as difficult a time over the last decade as any State and – comparatively – to many former inmates of its prison system.  Indicators on education and economic growth sank, while the number of people placed into state custody soared.  It was a recipe that mixed all the ingredients of failure into one poison stew.

The efforts states like Minnesota and New Hampshire make so much practical sense.  It starts with the idea that your efforts are going to pay dividends.

Those that are convicted of non-violent felonies should have some expectation that they can do their time and get on with their life.  When we send someone into the corrections system, we expect the rehabilitation effort to work.  In the instances where it does, we need to make it easier for that individual to get to work, too. 

For the success story, there should come a point where the only time they have to mark is on a time card.


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