At its first meeting the Task Force engaged in roundtable discussion and issue spotting:
- Criminal records disqualify individuals from jobs that require certification/licensure.
- Employers are prohibited by law from hiring people with certain convictions.
- Offenders are still not able to obtain a provisional driver’s license for apprenticeship programs.
- Debt accrual during incarceration, collections issues, and low credit scores are huge barriers.
- Disparate use of funds at the county level and different resources/services, county- by-county, impact reentry services and opportunities unfairly/unevenly across the state.
- Federal housing prohibition against felons; little-known/used appeals process.
- Lack of follow-through by persons recently released; need for better navigational assistance and support during reentry.
- Need for earlier reach-in; need for more, and more uniform, prerelease services and information.
- Urban versus rural resources, jobs, housing – unevenly/unfairly impact opportunities and experiences.
- A criminal history is still a bar to employment, housing, etc., even 20 years later.
- The cost of and need for multiple background checks is unnecessarily burdensome.
- Difficulty measuring/documenting the effects of up-front investments in support of reentry versus the societal costs absent investment.
Given the breadth of the information the Task Force was asked to study in an abbreviated amount of time, it decided to approach issues in a generally chronological fashion, beginning with in-prison programs, then pre-release, then post-release. Over the course of its subsequent meetings, the Task Force reviewed a wide variety of materials . . . (See the Appendix for a list of meeting materials and other resources.)
Opportunities during incarceration.
The Task Force received information from the Department of Corrections (DOC) and Oregon Corrections Enterprises (OCE) about training and educational opportunities available during incarceration, including programs that result in a variety of certifications and licensure. OCE is a semi-independent agency that operates within DOC to provide internal, self-sustaining work and training opportunities for persons while they are incarcerated, using revenues generated by sales of products and services. Certificates are offered for a variety of work skills – from laundry to Auto CAD to upholstery – and more than 1300 inmates participate. Two programs (welding and custodial) result in journeyman’s cards, and are available to about 25 people. There are also half-a-dozen work-based education programs and eight apprenticeship programs. The work-based programs are delivered by community colleges, last anywhere from six months to two years, accommodate about 160 total students, and result in trade certificates or licensure. The eight apprenticeship programs are both licensed and unlicensed, available to more than 40 people, and result in limited licensure and/or a journeyman’s card.
Alternative Incarceration Programs.
The Department of Corrections (DOC) offers two statutory Alternative Incarceration Programs (AIPs) to inmates assessed as the most likely to reoffend, in an effort to reduce recidivism: an intensive cognitive program and an intensive addictions program. According to DOC, “Each program is a minimum of 270 days with at least 14 hours per day of highly structured routine seven days per week involving treatment, physical work, exercise, and service to the community. Participants live in dedicated housing units for approximately six months and participate in programs that stress personal responsibility and accountability. Inmates accepted into the alcohol and drug AIPs must also participate in intensive addiction treatment. The curriculum includes preparing for employment, developing healthy relationships and family skills, and recognizing and changing criminal-thinking errors. Participants also focus on developing pro- social decision-making skills and habits for successful community living.” Successful completion can result in sentence reduction by an average of about 13 months.
Driver’s license suspension practices.
A valid driver’s license is critical to apprenticeship programs, post-release employment opportunities, and general independence. In Oregon as in most other states, a person’s driver’s license can be suspended for hundreds of reasons under both state and federal law, including for failure to pay a fine or a failure to appear in court, even if the fine or court date had nothing to do with a moving violation. License suspensions for financial or technical reasons are criticized as unfairly impacting individuals with the least financial resources, because it is possible to lose a license over some minor infraction if the individual is not able to pay. This is described as the “crime” of “driving while poor.” The Task Force reviewed a number of resources, obtained suspension data from Oregon’s Department of Transportation, and heard from the State of Washington about its reformed license suspension practices, precluding a number of suspensions under state law that were not related to moving violations.
College applications and accessibility.
The University of Oregon’s admissions process came under some scrutiny for soliciting applicants’ disciplinary/criminal histories, and admissions personnel provided clarification. The current admissions process, incorporating information about applicants’ past conduct, was vetted and designed by a work group that included students that was organized for the express purpose of developing best practices. Past conduct is not sought or collected by the University from a law enforcement source, it is entirely self-reported by applicants, and shared only among members of the admissions panel. Applicants’ names are not known to the admissions panel and unflattering information does not result in automatic denial or bias: decisions are made by panels/groups involved in discussion and review – not unilaterally – and only actions that clearly violate student codes of conduct, or the existence of restraining orders, trigger further review. About three applicants in 30,000 were denied admission based on this information. The University also conducted surveys to determine whether there was any chilling effect (people withdrawing an application or feeling discouraged from applying) and found none; and will continue to attempt to collect data.
“SAME” hiring practices. [State as Model Employer]
The Task Force learned that Oregon did not follow “SAME” policies or practices (state as model employer) with regard to hiring individuals with criminal records, but was open to exploring opportunities to incorporate such practices. SAME policies and programs put the state in a position to lead by example, and are intended to target underrepresented populations for greater inclusion in the state workforce. SAME policies originated with and most often target people with disabilities, and include human resource measures designed to improve employment opportunities, such as alternative examination and selection processes, and probationary or trial work periods. SAME practices may also take the form of active planning groups that include the target population; education and awareness training by the target population for human resource professionals and other state employees; and internship programs designed for members of the target population.
In Oregon, the Department of Administrative Services’ (DAS) hiring practices are the same for all applicants, up to the point that an applicant’s criminal history is disclosed. According to DAS: “The state’s hiring practices are derived from ORS 240.306 ‘Recruitment, selection and promotion of state employee; criteria; procedures; duties of department’ and State HR policy 40-010-02 ‘Recruitment and Selection.’ These sources outline the recruitment and selection process regardless of the population. There are no practices or mechanisms to separate former inmates from other populations. [ … ] Once an offer of employment has been extended to an applicant, the applicant may be required to complete a criminal records check (CRC). Agencies requiring a CRC, will at that point require the applicant to disclose any criminal history. [ … ] Pursuant to ORS 181A.195 ‘Criminal records check; authorized agencies; retention of fingerprint cards by FBI and Department of State Police; rules’ and OAR 125-007-0200 through 125-007-0330 ‘Statewide Criminal Record Check Rules,’ a candidate with a criminal history would be subject to a fitness determination.”
The Oregon Employment Department assists persons with criminal convictions to obtain employment through employer incentives, staff trained in identifying and overcoming barriers to employment and, connection to an array of services to help the unemployed.
Incentives for employers to hire persons with criminal convictions include the Work Opportunity Tax Credit and the Federal Bonding Program. The Work Opportunity Tax Credit is an incentive to employers for hiring individuals from specific groups, one of which is individuals within a year of a felony conviction or release from prison.
A cooperative effort with Oregon Department of Corrections provides eligible individuals with a letter explaining the tax credit and describes how employers can apply for it. The Employment Department also participates in the Federal Bonding Program. Sponsored by the U.S. Department of Labor, Oregon employers who apply for the bond through the Employment Department receive a six-month fidelity bond free of charge for hiring individuals with criminal records (or other at-risk applicants).
Employment Department staff are trained to assess job seekers’ needs and provide opportunities to overcome employment barriers with resume, interview and basic computer skills workshops. Staff review job seekers’ skills and knowledge and use the WorkSource Oregon Management Information System (WOMIS) to find appropriate jobs. Employment Department employees are also part of an integrated system that includes connections with education, housing, and other services to help job seekers improve skills, get job ready or find services they need.
Disparate impact as applied to public housing.
In late 2014 the U.S. Supreme Court, in a split decision, held that disparate-impact claims could be brought under the Fair Housing Act. Practices that disqualify applicants for public housing based on the applicant’s criminal history have a disparate impact on people of color, because people with criminal histories are disproportionately people of color. Racial minorities are a protected class for purposes of discrimination claims and such practices are subject to challenge not only if they are facially discriminatory, but also if they are discriminatory in effect.
In early 2016, the U.S. Department of Housing and Urban Development (HUD) issued an opinion letter to guide providers making adverse housing decisions based on criminal histories. HUD is also currently developing a FAQ sheet, and federal legislation may be pending. Housing advocates cautioned patience, to allow time for the new jurisprudence to play-out at the federal level, and voiced support for the following: certificates of good standing; navigation services for individuals reentering the community; finding ways to ease the burden of obtaining multiple background checks; finding ways to ensure the accuracy of background checks; and eliminating no-cause evictions.
Debt accumulation and damage to credit rating.
The total financial cost of a criminal conviction can vary widely and the obligation to pay can be a significant economic burden. Debt can result directly from the underlying criminal conduct, such as fines, court costs, restitution orders, and costs of supervision; but can also accumulate as an indirect or collateral result of criminal conduct, for example, due to an eviction process, or due to the nonpayment of a variety of consumer debts, or a failure to keep up with child support obligations, during and surrounding a period of incarceration.
- Regarding direct costs. The Task Force learned that Oregon courts are authorized (and sometimes required) to impose a variety of fees and fines upon conviction, as well as ordering the reimbursement of a variety of court costs and the payment of restitution for victim/s. Sometimes courts are explicitly required to take an offender’s ability to pay into account; other times consideration is discretionary; and yet other times, as with the payment of restitution to a victim, courts are specifically prohibited from considering an offender’s ability to pay. Other entities within the criminal justice system may also impose fees. Payment is made, or arranged via payment agreement, at the time of sentencing. Many of these obligations may be waived, suspended and delayed; however, if a person fails to pay (or fails to seek modification or otherwise communicate with the court) it can get worse, with the imposition of additional fees and interest. During incarceration, the obligation to pay the court is suspended and no interest may accrue; collection begins upon release.
- Regarding indirect/collateral costs. A person’s preexisting, ordinary debt obligations prior to conviction – such as credit cards, lease agreements, child support obligations, civil judgments – are not automatically suspended or modified during incarceration. If not addressed prior to incarceration, such obligations may accrue, or go into collection or be written-off. In addition, things like federal veterans benefits must be suspended or modified during periods of incarceration, or overages may be owed upon release.
Certificates of readiness, compliance, and/or completion.
Certificates confirming that a person is ready for a career, or has completed a criminal sentence and not committed any new offenses, are intended to reassure potential employers and landlords primarily, but may also be used to reestablish eligibility for certain professional licensure. The Task Force received information about a number of different examples:
- Specific to employers. Oregon participates along with a large number of other states, in recognizing National Career Readiness Certificates (NCRCs). An NCRC is a credential that may be earned after taking three standardized tests in Reading for Information, Locating Information, and Applied Math, that are designed to demonstrate what a person can do, rather than what they know. The Task Force learned that the certificates help job-seekers stand-out to employers and that many Oregon industry groups and employers support using NCRCs to improve hiring and training practices.
- Specific to employers. In 2015, Oregon considered but did not enact a process to provide “Certificates of Good Standing” to individuals with criminal records, as described in House Bill 3437. Such certificates would only have been available to persons convicted of Class A misdemeanors or felonies, and would have confirmed that, as of the date of the certificate, it had been at least a year since the person completed all the terms and conditions of a criminal sentence; that no new charges were pending; and that the person either had a lawful source of support, or was engaged in or seeking employment, training, education, or participation in other programs. The measure provided for: a two-tiered application process; an opportunity to object and schedule a hearing; revocations; a new offense for falsification or misuse of an invalid certificate; and protection from certain negligence claims for employers who relied on the certificate.
- Specific to landlords. MercyCorps Northwest and Innovative Housing are piloting a program to issue housing certificates to individuals with criminal records, through a grant provided by Meyer Memorial Trust. Those seeking certificates submit an application that is evaluated by a panel of reentry experts. The housing certificate is intended to offer landlords some reassurance of successful rehabilitation and thereby expand housing opportunities.
- Comprehensive. The Task Force learned that the state of Washington just enacted a comprehensive process to offer Certificates of Restoration of Opportunity (CROP; Senate Bill 1533 from 2015-2016). The eligibility criteria to receive a CROP are substantially the same as to obtain an expungement order, but unlike expungement, the CROP remains part of a person’s criminal history in order to show-up on a background check as proof that the person has successfully completed the terms of a sentence. In addition to opening doors to employment and housing, a licensing authority is prohibited from denying an occupational license to an otherwise qualified person, based on criminal history alone, if a CROP has issued.
Metropolitan Public Defenders Office, Pre-entry Program.
In early 2016 the Metropolitan Public Defenders Office formalized a pre-entry services program in order to try and address client reentry issues before they enter Department of Corrections custody. It starts with a thorough review of existing data and interviewing clients as close to sentencing as possible, using predeveloped checklists designed to uncover obligations that may be suspended or deferred while the person is incarcerated. The checklists are also useful to educate clients, and could be useful to persons already sentenced, or transferred, or recently released, and to anyone who works with the reentry population. In addition to interview checklists, the program centralizes a number of common forms needed to suspend or defer obligations, and program development is ongoing.
Senate Bill 91 (2013) and House Bills 2986 (2013) and 4123 (2016). The Task Force revisited previous legislation, enacted and not, to discuss possible expansions and improvements.
- Senate Bill 91 (2013) was the Landlord Tenant Coalitions’ omnibus bill for 2013. It prohibits landlords from considering certain things in a rental applicant’s history: eviction actions more than five years old; dismissed eviction actions; eviction actions in an applicant’s favor; and mere/bare arrests (where no charges were filed). Where criminal histories are concerned, it specifically permits consideration of the following: the existence of unresolved criminal charges; convictions for drug related crimes, person crimes, sex offenses, crimes involving financial fraud, and “any other crime if the [charged] conduct is of a nature that would adversely affect […] property […] or the health, safety or right to peaceful enjoyment of the premises of residents.” – The Task Force respects the work and effort of the Landlord Tenant Coalition and would seek its involvement if any modifications of landlord/tenant law were sought.
- House Bill 2986 (2013) directed the Departments of Transportation and Corrections to assist individuals with obtaining a driver license or identification card prior to release, and allows reinstatement of privileges that were suspended for failure to pay, based on enrollment in apprenticeship and pre-apprenticeship programs. – Implementation of this measure was reportedly still falling short, described herein as a kind of “catch 22”: reinstatement of a person’s driver’s license depends on acceptance into an apprenticeship program, while acceptance into an apprenticeship program requires a valid driver’s license. Task Force member, Jen Netherwood, volunteered to nail-down particulars and seek solutions. (See report section on “Progress.”)
- House Bill 4123 (2016) sought to create a program to permit completion of community service in lieu of payment of certain debts/fines for parolees and others subject to post-prison supervision. It would also have permitted performance of community service in lieu of payment of attorneys’ fees. – The Task Force recommends continuing its work on this topic.
Open discussion periods at each Task Force meeting provided an opportunity for members to brainstorm a laundry list of potential remedies and improvements, including the following:
- Create a statewide pre-entry program modeled after Metropolitan Public Defender’s project
- Reform driver’s license suspensions (for substantive versus technical violations)
- Improve short-term transitional leave and alternatives to incarceration
- Expand/improve work release opportunities
- Expand/improve career readiness certificates; require employer recognition
- Improve prison environment (technology; access to higher education)
- Require earlier reach-in with support; require continuity of hand-off between state agencies/providers at pre-entry, to those providing assistance during incarceration, to those responsible for reach-in, to those providing supervision and services upon release
- Fix “catch 22” with regard to driver’s licenses and apprenticeship program applications (issuance of driver’s license depends upon proof of acceptance into an apprenticeship program; acceptance into apprenticeship program depends upon issuance of driver’s license)
- Fix “transfer credit” issues (improve quality of in-custody educational opportunities to meet state standards for transferability; or relax state standards to allow greater transferability; or expressly require transferability of offenders’ work/job training/academic and/or life experience)
- Standardize supervision and costs as between counties
- Require Department of Corrections and/or each county to provide a “map” of resources
- Reduce the cost and/or eliminate duplication of background checks
- Improve all resources in rural areas
- Expand/improve transitional housing (general availability and length of stay)
- Work to lift public housing restrictions
- Assist with housing appeals
- Work on court issuance of certificates of compliance with conditions of sentence and/or completion of sentence; require landlords and employers to honor of such certificates; require licensing/accrediting bodies to honor such certificates
- Institute “SAME” policies for persons with criminal records (state as model employer)
- Create incentives for employers who hire individuals with criminal records
- Create mitigation fund for landlords modeled after Section 8 mitigation fund
- Educate the general public, employers, human resource professionals, etc.
Possible Legislative Concepts.
In September of 2016, the legislative members of the Task Force submitted a number of requests for bill concepts addressing reentry issues, four months before the Task Force was set to expire, in order to meet deadlines imposed by the Legislature in advance of the 2017 regular session. These concepts included:
- Reforming driver’s license suspensions
- Offering Certificates of Compliance with and/or Completion of Sentence
- Creating a bill of rights for the children of incarcerated parents
- Expanding the Family Preservation Project
- Piloting pre-entry programs
- Redrafting previously-introduced measures concerning collections, confiscated funds, and trespass
By the last Task Force meeting in January of 2017, the following measures had been introduced for consideration by the 79th Legislative Assembly as a result of Task Force activity:
SB 241 Bill of Rights for Children of Incarcerated Parents
SB 242 General Fund appropriation for Family Preservation Project
SB 682 Provides for modification/suspension of child support during incarceration
SB 689 Recreates Task Force
SB 690 Provides for Certificates of Good Standing
SB 691 Modifies driver’s license suspensions
SB 692 Enables pre-entry pilot program with General Fund appropriation
At the time of this writing, a large number of legislative concepts are still pending introduction, but a few other measures have been introduced that contemplate issues of concern to the Task Force:
SB 360 Providing for public service in lieu of certain debts
HB 2249 Supplemental funding for counties to support reentry of certain persons
HB 2650 Prohibiting early consideration of criminal history by landlords
HB 2724 Creating a Rent Guarantee Program for low-income tenants