The collateral consequences of a criminal conviction — the secondary punishments we impose on those with a record — are significant. Years ago, they kept Muhammad Ali from the boxing ring. They may keep Bowe Bergdahl from medical care. And, they recently led to rescinding the admission of a talented applicant from a Harvard doctorate program.
These are just some high-profile examples. The lingering effects of convictions block thousands of people who are released from prison from the employment opportunities that most agree are the greatest antidote to recidivism.
The Massachusetts House and Senate are currently debating legislation that would improve many of the problems with our state’s criminal justice system. The measure is controversial, which is no surprise. Reducing unnecessary prosecutions and prison time while ensuring public safety poses challenges.
The legislature has largely met those challenges. We support changes in the bail system that end discrimination against the poor, elimination of mandatory incarceration for certain drug offenses, tightening control over use of solitary confinement, and decriminalization of certain offenses. But when it comes to dealing with collateral consequences, the current proposals fall short of meeting the need for effective change.
No matter the number of people we send to prison, the vast majority will be released. The key to facilitating a successful reintegration into society is employment. Yet the repercussions of conviction have historically put hurdles in front of ex-offenders seeking decent jobs even if they were skilled — even if they learned those skills in prison — and were highly motivated to stay away from crime.
The House and Senate bills dance around the edges of the problem. In general, they aim to reduce fees imposed on indigent defendants, make it easier to work off fines and strengthen record expungement and sealing options. Yet even if all these provisions survive the legislative process and are applied with full force, they will have only a marginal impact on ex-offenders seeking employment.
Under current Massachusetts law, employers are generally prohibited from making written pre-employment inquiries as to criminal history. The law also restricts employers’ ability to ask, either orally or in writing, about arrests that did not result in convictions and about misdemeanors that occurred more than five years prior to the interview. Governor Deval Patrick hailed this “Ban the Box” legislation, one of the first of its kind in the nation, as a turning point when he signed it into law.
But the law has its limitations. For one thing, employers are allowed to ask applicants whether they have ever been convicted of a felon. For another, nothing prohibits a Massachusetts employer from making an adverse decision on the basis of criminal history, although if the employer does so, it must provide the criminal record information to the affected individual, which at least allows a chance to challenge the accuracy of the record.
In contrast, the federal Equal Employment Opportunity Commission recommends that only job-related convictions should be considered in hiring. As the Legal Action Center’s National H.I.R.E. Network put it, “A criminal conviction should disqualify a job applicant only when there is a connection between the nature of the conviction and the nature of the job that creates a greater risk than hiring the applicant for other jobs.” In other words, hiring a person with prior DUI convictions to drive a school bus creates a risk that would not exist in other jobs; hiring someone with a DUI conviction for a position that does not involve driving would not create such a risk.
Real progress against mass incarceration means that employers should have a legitimate business reason before denying a job based on a conviction record. Legislators negotiating a final version of the reform bill should adopt such a direct relationship test, one that weighs the value of employment in reducing recidivism and abandons any idea that conviction always equals a character flaw — unless the job in question requires very particular needs.
Daniel S. Medwed and Michael Meltsner are professors at Northeastern University School of Law. Professor Medwed also serves as WGBH News’ Legal Analyst.