Guilty Until Proven Innocent: On Conviction Records and Hiring

by James Compton

It is 9:55 at a chain sandwich shop, five minutes from close. The manager is finishing her paperwork, frustrated by an itch stemming from a health condition contracted during a night of poor judgment in college. Meanwhile, another employee restocks the freezer; mind lost in memory of a particularly blurry night from the week previous spent in the arms of a woman whose name was never committed to memory. A third employee is doing a drawer count while under the effects of an illegal substance ingested a few minutes previous inside the car he fully intends on driving home. Into this scene shuffles our point of interest, a particularly exhausted middle-aged man in a hooded sweatshirt. The only difference between him and his fellow sandwich artists is that the various shames of his cohorts are their own personal business and as such unknown to the company and each other. His “worst mistake” is a matter of public record – the fact that he spent time in prison for a non-violent drug offense.

With names omitted to protect the dignity of the guilty, this is the environment I found myself in while holding a part-time job in the late 2000’s.  Our former inmate worker proved himself to be a walking cliché, routinely outworking his younger counterparts and picking up slack where and whenever it could be found. From a jaded perspective, some might say that he did this in an effort to “make up” for his prior life’s breach of the social contract. In truth, it is far more likely that he, like many other offenders, relished the opportunity to work as he knew how lucky he was to have procured employment at all given his past.

By any metric, gaining steady employment in today’s America is no simple task (though to hear the OGs tell it, it was never “simple”). Most people seem to land their steady gigs through personal contact with employees or managers, a system of privilege that the privileged have christened “networking”. In this context, any advantage is desirable while the effects of any disadvantage are effectively doubled. Jefferey Morenoff and David Harding found in their research on Michigan ex-cons that most employers are reluctant to hire applicants with criminal records at all, with a prior conviction “[reducing] the likelihood of a callback or job offer by nearly 50 percent” (qtd. in NIJ, “Research on Reentry and Employment” par. 5) – possibly more if the applicant is melanin positive.

This showcases a bleak reality faced by those who have gone through the incarceration/rehabilitation process. If one leaves the prison system genuinely remorseful for their prior actions and yearning to “give back” to society (a state that our pro-justice citizens claim is the aim of the prison-industrial complex), one of the first steps on that path is to gain the kind of steady employment that can support a lifestyle. If after several months our ex-prisoner is unable to find that kind of job because two dozen applications have been met with a friendly “we’ll let you know” followed by radio silence then our subject finds themselves at a crossroads. Do they continue to follow a path that has yielded little but demoralization and exhaustion in the hopes of giving back to a society that is communicating their ‘worthlessness’ to them in every arena? Or does our hypothetical everycon do what all adult Americans know can net an easy rent payment with a little courage, a ski mask and a water pistol?

Ask yourself honestly what you would do in this situation.

Most of us would probably answer with some variation on a third option and I would assume most of these would involve the charity or good faith of friends or a family member. It is at this point that I will remind you that the kinds of home realities common amongst convicts are less the stable unchanging iconography of suburbia, but more the organized chaos that rotates around the poverty line – if those connections exist at all after the incarceration. Often, an offender finds that they have to ‘prove themselves’ as much to their mother as to society. As well, our American preoccupation with ‘self-reliance’ is further compromised as most of the Government-backed programs that we use to maintain ourselves in times of trouble are inaccessible to former convicts. We effectively place those who are the most at risk to fall into a life of theft and violence in a position where one of the most worthwhile options available to them is to re-engage with that life and not get caught. This reality can be easily circumvented with a job.

The Pew Research Center states in a report on the subject “the stigma of having a felony record can be an insurmountable obstacle when a former inmate is eligible for employment” (Pew pg. 22). I argue this reality is irresponsible, as we should not be comfortable with the fact that many employers in America use the presence of conviction records as a “one strike, you’re out” policy when it comes to our fellow citizens. While use of Hanlon’s Razor tells us that this is probably done less to keep the convicts out as much as it is done to streamline the process of sifting through applications (a sacrifice to the noble god of knocking off work early) this phenomena still has a name: hiring bias. Solving this problem with legislation is complicated as the kinds of behaviors and biases that are used to bar the door against these applicants are really only covered by the civil rights act and any attempt to make laws that specifically target these problems falls under the umbrella of “legislating morality”. So the answer as far as I see it is easy; we have to do the incredibly hard work of changing the public perception of ex-cons in orders to facilitate their reintegration into society.

While I don’t have a strategy to showcase, I will close with a thought. I often hear from my more conservatively minded fellows that I shouldn’t be so “idealistic about criminals” (a term I refrained from using), and that term “criminal” is probably where the work needs to start. There exists a widespread perception that our prisons are socked full of hardened murderers and rapists in spite of survey after survey painting a far more diverse picture, with population numbers bolstered by foiled amateur thieves of color and minor drug offenders of color. Somehow these people are deserving of the term criminal, while my friends who skirt government regulation to own multiple unlicensed firearms will refer to themselves as ‘patriots’ and my friends who treat speed limits as suggestions are merely ‘rebels’. If a criminal is one who merely breaks the law then we have to face the fact that most Americans are, in effect, criminals. As we currently use the term, ‘criminal’ simply refers to those among us who have been caught.

It is that perception that is most harmful, as in practice it continues to punish citizens long after the end of what the courts found appropriate. As Kenneth Anderson states in the documentary The Return: “I paid my debt to society. . .Why is my criminal history always going to be at the forefront of who I am?”

 

Works Cited:

De la Vega, Kelly & Galloway, Katie. The Return. Public Broadcasting Service, n.d. Web 27 Feb 2017.

National Institute of Justice. “Research on Reentry and Employment.” National Institute of Justice. NIJ, 3 April. 2013 np. Web. 27 Feb. 2017.

Pew Charitable Trusts. Collateral Costs: Incarceration’s effect on Economic Mobility The Pew Charitable Trusts (2010) 27 Feb 2017.