A “Second Chance” for Redemption or Life on The Installment Plan? Can Job Training negate the Collateral Consequences of Criminal Convictions?

In 2000 Harvard Law Professor Charles Ogletree, Rev. Al Sharpton, and the Late NYC Mayor Ed Koch famously announced a “second chance program” for non-violent, drug-offenders. Hugh Price then of the National Urban League, the NAACP’s Kweisi Mfume, and many other prominent civil rights and criminal justice advocacy programs, touted the initiative as a sane response to the “lock-‘em-up-and-throw-away-the-key” approach that had driven criminal justice policy with varying degrees of severity in this country; virtually since the inception of the United States prison system in 1796 on “the Hudson River’s east bank on Manhattan Island’s western shoreline, in Greenwich Village, a mile and a half north of City Hall.”

Little has been said or done by Sharpton or Ogletree in the 16 years since to address the collateral consequences of criminal history records. Requests to Sharpton's Washington [National Action Network] office has not responded to requests for an interview. The “second change” program had no office, website, director, staff, budget, policy position, white paper, lobbying arm or, in short, any teeth. Meanwhile the prison-industrial complex churned on inexorably toward privatization even though prison populations are declining as the first wave of Baby Boomers have passed retirement age.

New York in example is third in the nation only behind Texas and California in incarceration with 56,419 1 inmates as of 12/30/2012 down from a high of 71,600 1 in 03/31/2003 and is one of the largest drivers of the state’s budgetary woes. New York State Department of Corrections has a handsomely compensated (salary $144,000) Deputy Commissioner for Programs who is tasked with developing and, more importantly, implementing “programs”. However, the existing "programs" are merely "past times". They do not impart inmates with demonstrable skill sets once they are released back into the community because the goal is not to enable them to obtain viable employment.

White ethnics with little inclination toward or less aptitude for higher education complained bitterly that inmates were being rewarded for their criminality: essentially getting a “full ride” at their kids -  as well as taxpayers - expense by obtaining a “free” education. The fact it was not true, because inmates cannot obtain Federal student loans or qualify for state grants, did little to dispel the myth. So, the charge resonated, gained steam, and their insular Milquetoast like elected representatives heard them.

Consequently, even progressive states such as New York, its relatively huge prison population notwithstanding, slowly curtailed before finally eliminating privately funded prison college programs altogether - unless an inmate could find a way to pay tuition without accessing private funding sources. The same conflicts existed in the vocational-educational model employed (no pun intended) by the NYS DOC under the auspice of the Deputy Commissioner for Programs. The current Deputy Commissioner is not an educator in accordance with best practices but a career prison manager, however.

The NYS DOC vocational-educational programs he oversees are not tied to any recognized bona fide United States Department of Labor apprenticeship or journeyman training model, because the same white ethnics. who successfully lobbied to eliminate prison college programs, also dominate the trade-craft unions that have traditionally excluded minorities (e.g., African Americans, Chinese, Japanese, Hawaiians, Native Americans, Filipinos, Puerto Ricans, Dominicans, Mexicans, East Indians) from joining.

It is a cynical policy fostered by provincial state legislators employing the prison-industrial complex to bolster floundering local economies on the backs of poor brown and black inmates in remote rural, isolated communities where the vast majority of these prisons are located; directly contributing in the process to an abysmal 60% recidivism rate in New York’s urban centers where many of these inmates lived - and whatever tenuous support system they have - often still do.

The vocational-educational programs, which require New York State “certified” teachers according to Civil Service guidelines need to be standardized throughout the prison system and structured to take participating inmates through apprenticeship-to-journeyman training in United States Department of Labor BLS occupational fields in a pre-determined amount of time – e.g., 4 years. Four years is the average sentence to which these men and women are incarcerated and, ironically, the minimum amount of time required by BLS apprenticeship guidelines for an apprentice to be well versed in his craft.

Graduating inmates could be eligible technically for membership and, concomitantly, well-paying jobs in trade-craft unions upon release back into the community. It is not a reward for anti-social conduct but a rational response to socioeconomic pathology that plagues inner city communities practically decimated by the loss of low skill, high wage manufacturing jobs where many of these inmates will return.

Ogletree, Sharpton and Koch never got that far in their advocacy, though. The focus was on low hanging fruit: crack heads, dope fiends, winos and drunks who find themselves in the state prison system typically for non-violent offenses associated with their substance abuse and addictions. The data shows alternatives-to-incarceration (ATI) programs, treatment and training provide far greater positive outcomes in a shorter amount of time at considerably lower cost, however. In short, a bigger bang for the buck.

The fact there is little sympathy for so-called "hardened" criminals does not help make the case for more robust vocational-educational prison programming because stake holders, policy makers and politicians have little will to ensure minority felons gets out of prison with bona fide US Department of Labor apprenticeship certificates.

In automotive technology in example, the median annual wage of automotive service technicians and mechanics was $35,790 in May 2010. An enterprising one who upgrades his skill through Automotive Service Excellence (ASE) certification can easily command $100,000/year in a high end dealership, or even more if he becomes an entrepreneur, manages to stay afloat and carve out a lucrative niche.

Doubtless with this type of demonstrable skill set as well as considerable earning power, the successful inmate-apprentice eschews becoming a statistic in the recidivism rate. It is well known — and widely accepted by criminologists and practitioners alike — that recidivism declines steadily with time "clean." Most detected recidivism occurs within three years of an arrest and almost certainly within five years. (see “'Redemption' in an Era of Widespread Criminal Background Checks” NIJ Journal No. 263)

In a ground breaking longitudinal study done by Alfred Blumstein and Kiminori Nakamura 3, they obtained the criminal history records of 88,000 individuals who were arrested for the first time in New York State in 1980. First, they determined whether they had committed any other crime(s) during the ensuing 25 years or if they had stayed clean.

The researchers compared this data against two populations:

People in the general population who were the same age.

People of the same age who had never been arrested.

"Their goal was to determine empirically at what point in time the risk of recidivism for people in the study group was no greater than the risk for their two comparison populations. To do this, they plotted data curves to determine when the risk of re-arrest for individuals in their study group:

•Dropped below the risk of arrest for same-aged people in the general population.

•Approached the risk of arrest for people who had never been arrested.

That analysis provides the criminal justice community with the first scientific method for estimating how long is "long enough" for someone with a prior record to remain arrest-free. A statistical concept known as the "hazard rate" is the probability, over time, that someone who has stayed clean will be arrested. For a person who has been arrested in the past, the hazard rate declines the longer he stays clean. To determine the hazard rate for their study group, Blumstein and Nakamura looked at two factors:

•Age at the time of the 1980 (first) arrest.

•Type of crime.

They compared these hazard rates, as they declined over time, to people of the same age in the general population. For these data, they used the arrest rate (the age-crime curve) from the Uniform Crime Reports, maintained by the Federal Bureau of Investigation.

In the above figure, they show the hazard rate for 18-year-olds when they were arrested for a first offense of one of three crimes: robbery, burglary and aggravated assault. The figure shows that for robbery, the hazard rate declined to the same arrest rate for the general population of same aged individuals at age 25.7, or 7.7 years after the 1980 robbery arrest. After that point, the probability that individuals would commit another crime was less than the probability of other 26-year-olds in the general population.

The hazard rates of people who committed burglary at age 18 declined to the same as the general population somewhat earlier: 3.8 years post-arrest at age 21.8. For aggravated assault, the hazard rates of their study group and the general population of same-aged individuals occurred 4.3 years post-arrest or at age 22.3.

Individuals who were arrested for robbery at age 18 had to stay clean longer than those who were arrested for burglary or aggravated assault to reach the same arrest rate as same-aged people in the general population."

They also looked at the effect of the arrestee's age at the time of his first arrest in 1980. They examined the hazard rates for three ages of people in their study group — 16, 18 and 20 years old — who were arrested for robbery in 1980. Based on the criminal histories of these people, they found that individuals who were first arrested when they were 18 years old had the same arrest rate 7.7 years later as a same-aged individual in the general population.

In contrast, those whose first arrest occurred at age 16 crossed the curve for a same-aged individual in the general population 8.5 years later, and individuals who were first arrested at age 20 crossed their curve 4.4 years after their first arrest.

Blumstein and Nakamura’s analysis showed that the younger an offender was when he committed robbery, the longer he had to stay clean to reach the same arrest rate as people his same age in the general population. They also performed the same analysis for the first offenses of burglary and aggravated assault and found similar results.

As noted earlier, their study also compared hazard rates to people who had never been arrested. Needless to say, the hazard rates for people in their study group (because they had been arrested) would never be the same as the hazard rate for people who had never been arrested. But it is reasonable to expect that an ex-offender's hazard rate gets close enough — the longer he stays clean — for an employer performing a criminal background check to determine acceptability for a particular position.

The higher an employer's risk tolerance — that is, the closer a prospective employer would have to get to the hazard rate of the never-arrested — the longer an ex-offender would have to stay clean.
Their preliminary results are limited to people who were arrested in New York State in 1980. Their next step will be to determine if the data hold true at other times and in other places. For example, they want to see whether they get similar results if they draw upon a sample of people who were arrested for the first time in 1985 and in 1990 because these years were quite different from 1980 in a number of important ways:

•1980 was a peak crime year due to demographic shifts of baby boomers aging out of the high-crime ages.

•1985 saw a "trough in crime rates" before young people were recruited to sell crack as older crack sellers were sent to prison.

•1990 was near a peak before the beginning of the crime drop in the 1990s.

If they found that the hazard rates for ex-offenders in these years are similar to what they had found in their preliminary analysis, the usefulness of their hazard-rate analysis method would be strengthened.

The analysis looked at any crime as the marker for when a second arrest occurs; they would also like to examine the relative risk of a specific second crime because, as they stated earlier, different types of employers have different risk tolerances for particular crimes.

They also want to test their risk-analysis model with data from different states. Although it is possible that variations in local populations and arrest practices may affect the results, they anticipate that they would be reasonably close."

Another aspect of future research will explore the possibility that some of the individuals in their study group who looked clean in New York State might have been arrested in another state. They will access FBI records to determine if an individual with no further arrests in New York may have been arrested in New Jersey or Florida, for example.

They believe that their preliminary findings and ongoing research offer an opportunity to think about when an ex-offender might be "redeemed" for employment purposes — that is, when his or her criminal record empirically may be shown to be irrelevant as a factor in a hiring decision. People performing criminal background checks would find it valuable to know when an ex-offender has been clean long enough that he presents the same risk as other people in the general population. Employers also might be more likely to use this type of analysis if there were state statutes protecting them against due diligence liability claims when they adhered to reasonable risk-analysis findings.

They also believe that their findings could play an important role in policy discussions about the maintenance of and access to criminal record databases. Considerable policy control rests with policy makers and stake holders who oversee state criminal history repositories. These decision-makers could establish policies that prevent repositories from distributing records that are determined by hazard-rate analysis to be no longer relevant.

Repositories could seal or even expunge old records if they are deemed, based on such an analysis, to be no longer relevant to assessing future risk. Such policy decisions would inevitably vary from state to state and be driven by other relevant considerations, but policymakers may find valuable guidance in their research findings and methods for considering such decisions.

For example, officials who manage repositories of criminal records could inform prospective employers (and others who access criminal history records) when such records are "stale" — that is, when a recidivism risk analysis demonstrates that a prior arrest or conviction is no longer meaningfully relevant. Pardon boards, too, could use this type of analysis to decide when to grant a pardon to an applicant.

At a meeting of the American Society of Criminology in the early 1970s, one of the panelists argued against computerization — that was just then beginning — of criminal history records. Computers, he maintained, didn't understand the Judeo-Christian concept of "redemption." Another panelist challenged him, stating that paper records certainly did not understand that concept ... but at least computers could be "taught."

Much has been written but little done to address the collateral consequences of criminal convictions, because it requires legislative action. Politicians are notoriously risk adverse, and do not want to be perceived as soft on crime. Consequently, little if any efforts beyond lip service are ever paid to true reformation.

The Supreme Court of the United States addressed collateral consequences of criminal convictions as early as 1984, however. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court explored ineffective assistance of counsel with respect to collateral consequences of criminal convictions. In evaluating competence, the Court explained, judges should look at all relevant circumstances and evidence of appropriate measures of professional behavior, such as the ABA Standards for Criminal Justice ("ABA Standards"). The ABA Standards require defense lawyers to consider collateral consequences of conviction. Judges, accordingly, should monitor the performance of counsel. States chose to apply this rule in varying ways.

Strickland encouraged but did not mandate consideration of collateral consequences. Some claim that structural incentives exist for lawyers to not elicit information relevant to collateral consequences because doing so may prolong a case; others note that no attorney or judge could predict any and all collateral consequences of a criminal conviction. Since Strickland did not require an analysis of collateral consequences, they generally are not regarded as cause to overturn criminal convictions. However, some argue that the Constitution should require consideration of collateral consequences.

Most states do not accord much legal effect to the collateral consequences of criminal convictions. For example, in New York the consideration of collateral consequences is merely discretionary, while the elucidation of direct consequences is required. For instance, in People v. Ford, 86 N.Y.2d 397 (N.Y. 1995), New York's highest court held that a defendant's guilty plea would not be overturned on learning that the defendant was not advised at the time of the plea that his conviction could result in his deportation. However, “[W]e now hold that counsel must inform her client whether his plea carries a risk of deportation.” PADILLA v. KENTUCKY 559 U. S. ____ (2010).

The U.S. Supreme Court held that the collateral consequence of deportation was a consequence of such great importance that failure by counsel to advise the defendant of deportation is ineffective assistance of counsel which is a constitutional protection under the Sixth Amendment. This advice about deportation is now the law of the land and required in all fifty states.

Likewise, the Kentucky Supreme Court in Commonwealth v. Fuartado, 170 S.W.3d 384 (Ky. 2005) held that the failure of defense counsel to advise a defendant of potential deportation did not give rise to a claim of ineffective assistance of counsel. In May 2005, Chief Judge Judith S. Kaye of the New York State Court of Appeals, organized the Partners in Justice Colloquium to address this issue. Judge Kaye formed a working group which, in partnership with the Lawyering in the Digital Age Clinic at the Columbia University Law School, created a site that, for the first time, collects academic works, court opinions, and professionals' resources (by virtue of a message board and database) in one place. The Columbia University Law School in collaboration with the Columbia Center for New Media Teaching and Learning CCNMTL developed and recently released a calculator for looking up and comparing collateral consequences of criminal charges in New York State.

In Federal law, the federal sentencing guidelines have a model for collateral consequences which is determined by the date of when the offense was committed and by the type of the offense. The punishment imposed by the court(s) does not foresee the collateral effects of publically available criminal records, because that is not their primary function, which in many cases is tantamount to serving a life sentence for persons with criminal records whom have shown through time in society, stable work histories, family ties, educational, vocational, artistic accomplishments, civil and community involvement, bona fide celebrity, or avoidance of criminal justice system contacts, demonstrable evidence of rehabilitation.

To address these civil disabilities, which bar certain types of employment, and deny certain licenses, persons with criminal records may apply for relief under § 259-r of the New York State Executive Law, which may remove any mandatory legal bar or disability imposed as a result of conviction of the crime or crimes specified in the certificate.

New York laws governing Certificates of Relief from Disabilities and Certificates of Good Conduct were enacted “to reduce the automatic rejection and community isolation that often accompany conviction of crimes” and “contribute to the complete rehabilitation of first offenders and their successful return to responsible lives in the community.”

The collateral consequences of a criminal history prospective, which essentially resigns persons convicted of a crime in the United States to serving life on an installment plan, has been subsumed by the sexiest topic of "mass incarceration." But what good is having one's liberty if one has no rights? Alfred Blumstein and Kiminori Nakamura have been researching this issue for years. But stakeholders and policymakers have not brought into their conclusions, which debunks an ethos in America that cynically claims to foster redemption. The only people I seen able to land on their feet after serving a stint in the pokey look like Martha Steward, though. And she hardly looks like my mother.

New York State, which is one of the more progressive states regarding prison and criminal justice reform, has legislation in committee to seal criminal history records after twenty (20) years. This approach to mitigating the enormous damage this derogatory information poses for ex-offenders - in the age of high-speed Internet access to credit reporting agencies (“CRA”) - should become a nationwide model.

The model is also one that needs to be adopted by all serious prison, re-entry and criminal justice reformers - or they are just spinning their proverbial wheels. Access to jobs, housing, licensure and services to which an ex-offender is entitled and the risk of him or her re-offending negatively correlates to this needlessly permanent record. It is high time for serious researchers, advocates, stakeholders, policymakers and reformers - who often often squander their time looking at are the effects but not the actual causes of recidivism with the collateral consequences of criminal history records ranking at the very top of the list - to start addressing this pernicious disability with reforms predicated on Blumstein and Kakamura's research..
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1 NYS Commission on Correction (http://www.scoc.ny.gov/pop.htm)

2 New York State Department of Correctional Services, "1996 Releases: Three Year Post Release Follow-Up" (June 2000).

3 Paying a Price, Long After the Crime By ALFRED BLUMSTEIN and KIMINORI NAKAMURA