Post incarceration imprisonment

Americans are infatuated with retributive justice. Our cultural attitudes towards crime and punishment are reflected by a media saturated with images of violence, the highest rate of incarceration in the world, and our metaphorical vice-grip on using state-sanctioned executions as a form of punishment.  What many people do not know is the ways in which our prison system continues to arrest people who have served their time in custody.
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     Incarcerated people and their families are frequently pressed for cash both during and after incarceration. Contrary to our stereotypes surrounding people who have been or are incarcerated, 41 states in the US allow for people to be charged for room and board while they are incarcerated. Additionally, 43 states and the District of Columbia allow defendants to be charged for a public defender – something every person is Constitutionally guaranteed; 44 states can bill for probation services and every state but Hawaii and D.C. charge for mandatory location monitoring after a defendant’s release.
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     In 1983, the Supreme Court ruled in Bearden v. Georgia courts were not allowed to revoke a person’s probation simply because they lacked the resources to pay for fines or restitution. The crux of this decision’s dysfunction is rooted in the court having to decide if a “petitioner has [made] bona fide efforts to seek employment or borrow money to pay”. There are numerous accounts of people who spent time in jail for things like catching fish out of season, stealing a $2 can of beer, or entering an abandoned building. If you’ve read our post “Privatization and How it Compromises Civil Liberties”, it will come of little surprise to you that over 1,000 courts in the US delegate their work to for-profit probation companies, who are able to send people with unpaid accounts to jail for things as simple as moving violations or a lack of insurance – only perpetuating the cyclical nature of our criminal justice system.
As if having to pay for being incarcerated wasn’t enough, people have distinct and widespread difficulty finding employment after their release. An estimated 60% to 75% of people who exit incarceration are still unemployed a year after their release date. Those who do find work will find their wages are, on average, 20% smaller than what they were used to before incarceration. Why is this the case? Incarceration records become relevant to the Equal Employment Opportunity Commission in two contexts:

1. In matters of disparate treatment where job applicants of a protected class are treated differently for the same criminal record as someone who does not belong to a protected class
2. In matters of disparate impact where disqualification based on conviction records is being used to disproportionately disqualify people belonging to protected classes*, the employer is required to show how a conviction-disqualification is relevant and necessary to the business, i.e. someone with an identity theft charge is reasonably disqualified to work with sensitive personal information.  

• *Bearing in mind that the criminal justice system disproportionately interacts with people of color more often – it is arguably impossible to eliminate people based on convictions without disproportionately affecting a protected class.​

​     In other words, it is technically illegal to discriminate against people for having a criminal history. It’s also perfectly legal for potential employers to ask about convictions on an application. When HR recruiters are looking for ways to cull a stack of applications for one job, criminal convictions are an easy way to eliminate potential employees. All employers are required to do when assessing an applicant is “take into account the nature of the job sought, the type of conviction, and how long it has been since the conviction. In addition, the employer should consider any relevant information submitted by the applicant, such as evidence of rehabilitation or past work experience”.

    It does not take much imagination to think about the ways that exiting prison or jail with few employment prospects and hundreds or thousands of dollars of debt would inhibit a person from being successful – regardless of the level of rehabilitation that happened during their incarceration. That being said, some localities have decided to address the disparities faced by people exiting their incarceration with a couple of best practices:

1. Ban the box! In 2014, Fair hiring advocates in Boston and San Francisco urged their city leadership to make it illegal to ask potential applicants about whether they have a previous criminal record. A wildly popular law because of the benefits it provides both job seekers and employers, nearly 1/3 of Americans now live in a locality with a requirement that candidates are assessed on their skill level and interview before a background check is conducted. Not only are formerly incarcerated people able to find work that helps them avoid recidivism, but employers are finding the narratives surrounding formerly incarcerated people to be untrue: people with records can be and are just as productive and talented as people without records.  
2. We need to disrupt our cultural disposition towards how inmates are supposed to spend their time and how they are compensated for it. Banning the box does us no good if upon their release, people are required to explain why they were unemployed for the last few months or years. Studies have shown that when we pay incarcerated employees full wages, they are better prepared to exit incarceration both financially and professionally. A vast majority of the employment opportunities that exist in prison teach softer skills, such as cleaning or cooking, and are overwhelmingly underpaid. Those that do receive a paycheck for their work often have their wages garnished for costs associated with their incarceration, other court ordered fees and payments, as well as the prison itself in exchange for such comforts as toothpaste, shaving razors, and until the early part of August 2017, feminine hygiene products.
3. Prisons need to implement comprehensive discharge planning for inmates as they enter an institution. This gives people a light at the end of the tunnel to focus on while they are incarcerated and forces institutions to fulfill their obligation as opposed to passing the buck to other services. The best model to date is called APIC. It involves a social worker engaging with incarcerated people to assess their needs relevant to reintegrating into society, plan how they will get those needs met, identify the resources that are available or out of reach to an inmate, and coordinate their delivery upon their release.  
4. At large – eliminating the for-profit prison industry. Organizations that lose sight of their mission or goal will fail. When those institutions are largely funded by the government, failing to complete the task they are intended to complete, taxpayers simply find themselves funding a system that is inherently unjust and arguably makes problems worse than makes them better.