We need to “Ban the Box”

Stephanie George is serving as a stark reminder that despite recent prison reform announcements, we cannot be complacent, that the struggle for re-integration does not end outside prison walls.

George had been given a life sentence for “letting her former boyfriend keep drugs in their Florida home,” and assisted in his facilitation of dealings. While the presiding judge saw her crime as being relatively minor, “his hands were tied” by mandatory minimum sentencing. 

During her time there, the mother of three (one of whom was murdered shortly before her release and had written a letter to President Obama pleading for her release) did a complete about-face, using her time there to earn a business certificate and even working for a private call centre through the institution. She was amongst the lucky ones whose sentence was commuted by the President in 2013.

While certainly her release after more than 15 years was profoundly joyful, like it did for so many others, that joyfulness subsided when reality set in that that while we are a country that speaks of freedom and opportunity, that gives tremendous lip service to granting forgiveness and second chances, there are far fewer employers who actually take those sentiments to heart. What she has discovered is that no matter the extent of her efforts to rehabilitate, most employers are not even willing to let a foot in the door to someone with a past conviction. Upon her release, George should have been a poster child for the importance of education plays in reducing recidivism. Except that while George put in the time and effort, employers aren’t willing to put in a fraction of the effort to learn about the context of one’s imprisonment, or how they made use of their time in prison in a productive capacity.

In many states, it is far too easy for an employer to immediately reject an individual’s candidacy based on one simple, but fateful, checkmark of the “yes” box beside “Have you been convicted of a crime?” (Though we seem to have few qualms about those responsible for the banking meltdown taking prominent positions in Wall Street and major financial firms).

The organizers of the “Ban the Box Campaign” rightly points out the structural nature of this type of discrimination, not only because of the slanting of convictions towards people of colour, but also because such questions are asked not only on employment applications, but also those for “housing, public benefits, college admissions, loans, and opportunities for volunteer service.  and they have been leading the call to prohibit employers from including questions regarding a candidates criminal past on initial applications.

The US Equal Employment Opportunity Commission (EEOC) has endorsed its removal, yet there is no federal mandate requiring states follow that recommendation. In its guidelines for how employers are to consider arrest and conviction records, it states: “A covered employer is liable for violating Title VII when the plaintiff demonstrates that the employer's neutral policy or practice has the effect of disproportionately screening out a Title VII-protected group and the employer fails to demonstrate that the policy or practice is job related for the position in question and consistent with business necessity.”  But the problem is, that unless an employer actually tells an applicant they were rejected on the basis of their criminal history no violation of these guidelines is likely to ever be identified, yet reported.

Less than 20 states the United States have implemented ban the box measures, meaning that in more than half the states across the nation, job applicants can be immediately dismissed on the basis of any prior conviction. And while discrimination is still more than likely to occur, it at least gives applicants the opportunity to enter the hiring process on a level playing field without prejudice. Should their criminal history be specifically relevant to job—such as in the manner identified above by the EEOC—it will be considered at a more appropriate time, rather than before an individual has even stepped in the door.  These initiatives do not prevent any employer from performing a background check when the position requires it, nor does it make organizations liable for criminal activities of someone whose past convictions may have been identified by asking that question (though someone bent on re-offending is unlikely to tick that box anyway).

Once again, by allowing these “boxes” to exist, we are endorsing counter-intuitive practices. Given that poverty plays such a significant role in crime and recidivism, should we not be taking every measure possible to reduce it among vulnerable populations? What precisely do we expect to happen when a former prisoner has changed their life for the better and pursued every possible opportunity for improvement, is released only to find every door closed to them upon their release? How does this improve our communities? How does this serve anyone?

If all those individuals (many of whom are small business owners) who were so quick to say “they’ve done their time” and “everyone deserves a second chance” to others were putting those words into practice, quite frankly this situation wouldn’t exist. If you are an employer, be aware of your responsibilities and duties as an employer—you do not have the right to preclude anyone from employment whose conviction does not have direct bearing on the job’s responsibilities.  

And you would like to learn more about fair chance employment initiatives and how your jurisdiction can help “ban the box,” the National Employment Law Project has created a toolkit to help you: http://www.nelp.org/publication/the-fair-chance-ban-the-box-toolkit/

By banning the box, it’s a chance for Americans to say to the world that were are the “land of opportunity,” and actually mean it.

When is sexual abuse not sexual abuse? When it happens to a prisoner.

 Public service campaign from justdetention.org

 Public service campaign from justdetention.org

This past week saw the handing down of an important ruling in Second Circuit Court of Appeals regarding the rights of prisoners; specifically a prisoner’s right not to be sexual abused by prison officials. If you’re questioning how this could even have been a question before the Supreme Court, don’t worry, you’re not alone.

The fact of the matter is that just this year the New York Northern District court dismissed the complaints of inmates James Crawford and Thadeus Corley that not only were they abused by officer Simon Prindle at the Easter Correctional Facility, but that their complaints (and those of at least twenty others) were ignored by Superintendent William Brown.

The dismissal was not based on any question of the events having occurred—that was not in doubt—but rather it was premised on the notion that there is a certain level of sexual abuse that can be deemed acceptable in the prison setting. In granting the defendant’s motion to dismiss for “failure to state a claim,” Judge Norman Mordue agreed with their citing of the 1997 Boddie v Schneider case as evidence that what had occurred was not abuse. In doing so, Judge Mordue stated that the abuse could not be considered a violation of the Eighth amendment (against cruel and unusual punishment) as they were not “prolonged and did not cause physical pain.”

As any victim of sexual abuse—whether imprisoned or not—can attest, the length, incidence, or breadth of the event does not matter in the least. What is most shocking about the ruling, is that the appeals court actually has to instruct lower courts to take “evolving understanding[s] of common decency into account.” Fortunately, the questionable nature of this logic was not lost on the Second Circuit who overturned that dismissal last week.

The Boddie case of 1997 set out the standards by which contact of a prisoner by an officer can be considered abuse. Its summary findings were that any “contact with an inmate’s genitalia or other intimate area, which serves no penological purpose and is undertaken with the intent to gratify the officer’s sexual desire or to humiliate the inmate, violates the Eighth Amendment.”

Yet somehow the appeals court had to spell out to the lower court how it is that the officer’s actions with the dozens of prisoners he molested constituted abuse, stating “a single incident of abuse, if sufficiently severe or serious, may violate an inmate’s Eighth Amendment rights no less than repetitive abusive conduct” and that an inmate “need not allege that there was penetration, physical injury, or direct contact with uncovered genitalia.”  They further go on to explain that contemporary standards of decency have evolved such that society’s acceptance of prisoner abuse has diminished: “Moreover, we recognize that sexual abuse of prisoners, once passively accepted by society, deeply offends today’s standards of decency.”  

But offending our sense of common decency, such acts are considered criminal in nearly every state.  Outside the prison environment, enforcement of such criminal actions are seriously prosecuted, but yet within these walls they are treated as though they are minor inconveniences to the lives of prisoners.

Many rights are withheld from prisoners, but our human rights are not amongst them. So while one’s gut instinct might be to cite this as a victory for prisoners’ rights, and in some ways it certainly is. But in so many other ways, it’s a sad testament to the state of prisoners’ rights that we are told to celebrate for affording prisoners freedom from sexual abuse.

Prisoners bearing the brunt of institutional incompetence over escapes

The escapes and ultimate death and capture of inmates Richard Matt and David Sweat, respectively, were supposed to have prompted a clean-up in the Clinton Correctional Facility. There were suspensions, leaves, and retirements aplenty as myriad failures in prison protocol were revealed. The FBI also launched an investigation into the facility’s operations over accusations of drug smuggling and corruption. Despite federal and state agencies supposedly putting the spotlight on the institution, new abuses of power by prison employees are surfacing.

Disturbing revelations are coming from inmates who were also housed in the same block as Matt and Sweat, that they suffered serious beatings at the hands of guards seeking retribution for and/or information regarding of the escape. The New York Times has revealed that in the weeks after the escape as many as 60 inmates may have been abused and tortured at the hands of prison officials. 

These were not the acts of a few random disgruntled guards upset with the extra scrutiny the events brought to the behaviors within the prison’s walls; the paper trail goes higher up. As the Times revealed, the State Department also got in on the act of penalizing honor block inmates for no apparent reason other than to mask their own institutional and political incompetence:

“Dozens of inmates, many of whom had won the right to live on the honor block for good behavior, were transferred out of Clinton to other prisons. Many were placed in solitary confinement, and stripped of privileges they had accrued over the years—even though no prisoners have yet been linked to Mr. Matt’s and Mr. Sweat’s actions.”

The “honor block” refers to those sections of New York State’s that house inmates with records for good behaviours—they receive privileges above those of other inmates. In the wake of the escape, some have suggested eliminating them altogether. But focusing on the existence of/inmates in honor blocks is a band-aid solution that fails to recognize the systemic failures of the prison system. While the sensationalist “Shawshank” elements are most captivating to the public, more it’s the more mundane plot points that were the most contributive factors to allowing the men to escape—namely, laziness and a staunch disinterest in maintaining prison standards.

Unsurprisingly the misplaced focus on other inmates in the block that initially came with news of the escape—supported by Gov. Cuomo—served not only to distract from internal problems that led to the escape and but also to perpetuate the abuses of power that followed. It ignores the fact that this particular facility had had a serious uptake in violence in recent years and that its reputation amongst prisoners is less than stellar. I

It seems almost farcical that brownies, sex, and inmate-painted artwork were used as leverage to gain more privileges and the material tools they used to affect their escape.  But such is the state of affairs in our prison system—corruption is an everyday practice and oversight of prison guard activities is virtually non-existent.



Mental illness and the first line of defense in the justice system

In 2013 public defenders across the country sounded the warning alarm when the federal sequester forced many offices to slash budgets and take on fewer cases.  Many have yet to recover and offices are still dealing with not enough lawyers, few resources, and not nearly enough time to help a dearth of clients. With indigent defenders stretched beyond the limits, one particular demographic finds itself particularly vulnerable: the mentally ill.

An important new article in The Columbian highlights that by and large, public defense attorneys simply aren’t able to provide these clients with the attention and care they deserve. The mentally ill may present a whole host of additional challenges to public defenders that the untrained are simply unable to deal with.

Training in mental health is desperately needed for public defenders.

Training in mental health is desperately needed for public defenders.

Attorneys point out that such information and training is not part of law school curriculum, and that once they leave school, they’re not provided with any additional or specialized training for working with the mentally ill (some exceptions exist in private law firms). Without this training, they may be unable recognize the symptoms of mental illness, let alone how best to serve clients suffering from them.

That public defenders may be inexperienced with these particular challenges is, a serious contributor to the criminalization of mental illness that seems to be nearing epidemic proportions in the United States. Prisoners with mental health issues have a tendency to cycle in and out of the system repeatedly, and their conditions are most often aggravated by prison conditions (with frequently deadly outcomes ). 

An increasing number of jurisdictions are now establishing mental health courts, designed to help divert those individuals with mental health issues into more appropriate venues.  Other counties are funding education programs for frontline workers in the justice system, including public defenders, prosecutors, and judges.

We look forward to seeing how these initiatives develop and hope that governments will recognize the importance of these programs, and provide adequate funding for additional jurisdictions to follow suit. Because for so many who are incarcerated and struggling with mental health, this is a life and death situation. 

Mandatory minimum sentencing: A tragedy of comedic proportions

Just as Obama did with his landmark speech at the NAACP several weeks ago, comedian and host of Last Week TonightJon Oliver has thrust the issue of mandatory minimum sentencing into the spotlight of public discourse. In a segment both critically astute and emotionally wrenching, Oliver demonstrated that comedians are amongst those taking most seriously the devastating toll such policies take on our society as a whole.

Because when the situation has become so bad that reality becomes the basis for almost absurdist comedy, something’s gone terribly, terribly wrong.