[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]



 
 AN EXAMINATION OF FEDERAL EMPLOYMENT PRACTICES/POLICIES IN HIRING EX-
                               OFFENDERS

=======================================================================



                                HEARING

                               before the

                   SUBCOMMITTEE ON FEDERAL WORKFORCE,
                    POSTAL SERVICE, AND THE DISTRICT
                              OF COLUMBIA

                                 of the

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 10, 2008

                               __________

                           Serial No. 110-141

                               __________

Printed for the use of the Committee on Oversight and Government Reform


  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                               index.html
                      http://www.house.gov/reform




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              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                 HENRY A. WAXMAN, California, Chairman
EDOLPHUS TOWNS, New York             TOM DAVIS, Virginia
PAUL E. KANJORSKI, Pennsylvania      DAN BURTON, Indiana
CAROLYN B. MALONEY, New York         CHRISTOPHER SHAYS, Connecticut
ELIJAH E. CUMMINGS, Maryland         JOHN M. McHUGH, New York
DENNIS J. KUCINICH, Ohio             JOHN L. MICA, Florida
DANNY K. DAVIS, Illinois             MARK E. SOUDER, Indiana
JOHN F. TIERNEY, Massachusetts       TODD RUSSELL PLATTS, Pennsylvania
WM. LACY CLAY, Missouri              CHRIS CANNON, Utah
DIANE E. WATSON, California          JOHN J. DUNCAN, Jr., Tennessee
STEPHEN F. LYNCH, Massachusetts      MICHAEL R. TURNER, Ohio
BRIAN HIGGINS, New York              DARRELL E. ISSA, California
JOHN A. YARMUTH, Kentucky            KENNY MARCHANT, Texas
BRUCE L. BRALEY, Iowa                LYNN A. WESTMORELAND, Georgia
ELEANOR HOLMES NORTON, District of   PATRICK T. McHENRY, North Carolina
    Columbia                         VIRGINIA FOXX, North Carolina
BETTY McCOLLUM, Minnesota            BRIAN P. BILBRAY, California
JIM COOPER, Tennessee                BILL SALI, Idaho
CHRIS VAN HOLLEN, Maryland           JIM JORDAN, Ohio
PAUL W. HODES, New Hampshire
CHRISTOPHER S. MURPHY, Connecticut
JOHN P. SARBANES, Maryland
PETER WELCH, Vermont
------ ------

                     Phil Schiliro, Chief of Staff
                      Phil Barnett, Staff Director
                       Earley Green, Chief Clerk
               Lawrence Halloran, Minority Staff Director

Subcommittee on Federal Workforce, Postal Service, and the District of 
                                Columbia

                        DANNY K. DAVIS, Illinois
ELEANOR HOLMES NORTON, District of   KENNY MARCHANT, Texas
    Columbia                         JOHN M. McHUGH, New York
JOHN P. SARBANES, Maryland           JOHN L. MICA, Florida
ELIJAH E. CUMMINGS, Maryland         DARRELL E. ISSA, California
DENNIS J. KUCINICH, Ohio, Chairman   JIM JORDAN, Ohio
WM. LACY CLAY, Missouri
STEPHEN F. LYNCH, Massachusetts
                      Tania Shand, Staff Director


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on June 10, 2008....................................     1
Statement of:
    Keefe, Paul, staff attorney, Community Service Society; Mark 
      Earley, president, Prison Fellowship Ministries; and 
      William R. Calhoun, Jr., executive vice president, Clark 
      Construction Group, LLC....................................    53
        Calhoun, William R., Jr..................................    70
        Earley, Mark.............................................    62
        Keefe, Paul..............................................    53
    Kichak, Nancy, Associate Director, Office of Personnel 
      Management; Major General Thomas P. Bostick, U.S. Army 
      Recruiting Command; and Brent Orrell, Acting Assistant 
      Secretary for the Employment and Training Administration, 
      U.S. Department of Labor...................................    21
        Bostick, Major General Thomas P..........................    27
        Kichak, Nancy............................................    21
        Orrell, Brent............................................    34
    Meyers-Peeples, Roberta, director, National H.I.R.E. Network.     7
Letters, statements, etc., submitted for the record by:
    Bostick, Major General Thomas P., U.S. Army Recruiting 
      Command, prepared statement of.............................    29
    Calhoun, William R., Jr., executive vice president, Clark 
      Construction Group, LLC, prepared statement of.............    73
    Davis, Hon. Danny K., a Representative in Congress from the 
      State of Illinois, prepared statement of...................     3
    Earley, Mark, president, Prison Fellowship Ministries, 
      prepared statement of......................................    64
    Keefe, Paul, staff attorney, Community Service Society, 
      prepared statement of......................................    56
    Kichak, Nancy, Associate Director, Office of Personnel 
      Management, prepared statement of..........................    23
    Meyers-Peeples, Roberta, director, National H.I.R.E. Network, 
      prepared statement of......................................    10
    Orrell, Brent, Acting Assistant Secretary for the Employment 
      and Training Administration, U.S. Department of Labor, 
      prepared statement of......................................    36


 AN EXAMINATION OF FEDERAL EMPLOYMENT PRACTICES/POLICIES IN HIRING EX-
                               OFFENDERS

                              ----------                              


                         TUESDAY, JUNE 10, 2008

                  House of Representatives,
Subcommittee on Federal Workforce, Postal Service, 
                      and the District of Columbia,
              Committee on Oversight and Government Reform,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 2:03 p.m., in 
room 2154, Rayburn House Office Building, Hon. Danny K. Davis 
(chairman of the subcommittee) presiding.
    Present: Representatives Davis, Norton, and Marchant.
    Staff present: Lori Hayman, counsel; William Miles, 
professional staff member; Marcus A. Williams, clerk/press 
secretary; Jim Moore, minority counsel; and Benjamin Chance, 
minority professional staff member.
    Mr. Davis. The subcommittee will now come to order. Let me 
welcome the ranking member, Mr. Marchant, and members of the 
subcommittee, hearing witnesses and all of those in attendance. 
I welcome you to the Subcommittee on the Federal Workforce, 
Postal Service, and the District of Columbia's oversight 
hearing, examining the Federal Government's principles and 
policies on hiring ex-offenders.
    The chairman, ranking member and subcommittee members will 
each have 5 minutes to make opening statements, and all Members 
will have 3 days to submit statements for the record. Hearing 
no objection, so is the order.
    I will begin, and I thank all of you for coming.
    This hearing today is about determining if the Federal 
Government is actually practicing the policy of giving ex-
offenders a real opportunity at living the best life that they 
can live. As the author of the Second Chance Act, which was 
recently signed into law by the President, it goes without 
saying that I am committed to reducing crime and recidivism in 
America by supporting proven ex-offender reform and reentry 
initiatives.
    Every year nearly 650,000 prisoners are released from 
Federal and State correctional facilities after having served 
their time and paid their debt to society for the crimes they 
committed or were convicted of. In most cases upon release from 
prison, many of these individuals return to communities and 
conditions that may not be conducive to developing a new 
productive and crime-free life.
    One of the biggest hurdles ex-offenders face in reforming 
their lives is finding adequate employment, whether in the 
public, private or nonprofit sectors. According to the Justice 
Department's National Institute of Justice's 1998 Successful 
Jobs Placement for Ex-Offenders report, ex-offenders have great 
difficulty reintegrating into society not because they lack 
job-seeking experience or valid work history or occupational 
skills, but because many employers refuse to hire individuals 
with criminal records. Consequently many ex-offenders 
consistently hit a dead end on the road to work force reentry 
despite national efforts targeted at improving ex-offender 
access to permanent, unsubsidized, well-paying jobs.
    Whether it's the Department of Labor's Prisoner Reentry 
Program or the U.S. Department of Education's Office of 
Correctional Education, the Federal Government has clearly 
taken steps to develop programs to assist ex-offenders with 
becoming contributing members of society. And while these 
initiatives are complemented by the work of thousands of 
nonprofit and community groups across the country that advocate 
on behalf of ex-offenders, the fact is that we as a country and 
a government continue to fall short in our attempt to eliminate 
barriers to employment for ex-offenders, which keeps us at the 
top of the world in terms of the numbers of individuals who are 
incarcerated. Our country, the United States of America, has 
more people incarcerated per capita than any other nation on 
the face of the Earth.
    Aside from select branches of the U.S. military, there is 
very little evidence that the Federal Government is availing 
itself as a legitimate source of employment for ex-offenders. 
It is my hope that today's hearing will serve as a catalyst for 
changing this predicament by shedding light on exactly what 
role the Federal Government is playing in employing and hiring 
ex-offenders.
    I look forward to today's witnesses' testimony and thank 
you all for coming.
    [The prepared statement of Hon. Danny K. Davis follows:]

    [GRAPHIC] [TIFF OMITTED] 48239.001
    
    [GRAPHIC] [TIFF OMITTED] 48239.002
    
    Mr. Davis. I would now yield to the ranking member, Mr. 
Marchant, for an opening statement.
    Mr. Marchant. Thank you, Mr. Chairman, for holding this 
very important hearing this afternoon.
    In February of this year, the Pew Center on the States 
issued a report which announced for the first time in history 
that more than one in every American adult is in jail or 
prison. Clearly, most of these prisoners will be released back 
into society and the question of whether they will be able to 
become a successful contributing member of society depends on 
something as simple as whether they can find a job or not.
    In looking at the larger question of what happens to ex-
offenders after they are released, it only makes sense to 
understand what Federal policies exist in both civilian and 
military services to make sure that the right persons are hired 
where appropriate and the need for public safety is respected 
in the process.
    I look forward to the testimony from all three panels. And 
thank you, Mr. Chairman.
    Mr. Davis. Thank you very much, Mr. Marchant.
    And now I would yield to Delegate Eleanor Holmes Norton for 
an opening statement.
    Ms. Norton. Thank you very much, Mr. Chairman. I certainly 
want to associate my own remarks with those that you have made 
and that the ranking member made particularly concerning this 
important hearing.
    Mr. Chairman, I must say that I appreciate that you have 
not rested on your landmark bill, that you're following through 
on your concern about the counterproductive treatment of ex-
offenders. The Second Chance bill is a path-breaking bill that 
opens the way for the Federal Government and the States as they 
begin to face the fact that most people who go to prison return 
and that we cannot escape our responsibility for them.
    It is with some irony that we note that the Federal 
Government funds others to train and hire ex-offenders. But 
before this, for this hearing, Mr. Chairman, I don't know when 
the Congress has looked at what our own record was in hiring 
ex-offenders or for that matter people only with arrest 
records.
    I'm the very last as a member of the Homeland Security 
Committee to say that we shouldn't look very closely at the 
particular offenses; so should every private employer. And yet 
the Federal Government wants private employers to, in fact, 
hire ex-felons. What about the whole notion of leading by 
example?
    Now, we will hear from the OPM: Of course we do not have 
any blanket rule against hiring ex-offenders. Of course the 
Federal Government will hire ex-offenders. Where's the proof? 
Of course they don't have any blanket rule. Title VII of the 
1964 Civil Rights Act defines that as unlawful if you can show 
it has a disparate impact on racial and ethnic groups and those 
protected by the statute. Manifestly, it does. So nobody, no 
employer, has a rule against hiring ex-offenders. Why would 
they put themselves in that way? They should hire them.
    [Inaudible portion. Sound malfunction in hearing room.]
    Ms. Norton. I was speaking about the fact that no employer 
today would have a blanket rule. But if sued, many employers 
would have a hard time showing they were not in violation of 
Title VII because the burden will shift to you once the 
Department of Education was made to show by--depending on the 
facts why--class was not being employed.
    Mr. Chairman, I have serious doubts that the Government of 
the United States could survive such a lawsuit today. If they 
can, then I think it behooves them to bring forward the 
evidence that they are, in fact, doing what they're asking 
private-sector employers to do throughout the country.
    In the post-9/11 time, one might have expected that the 
rules would have become more stringent, and indeed it may be in 
the Federal Government that a great many felt that they might 
not be hired. One wonders if felons are employed, for example, 
in manual labor. One wonders if felons or ex-felons are hired 
in low-level positions in the government.
    It's interesting to note that times have gotten hard enough 
in recruiting for the volunteer Army that the military issues 
waivers to allow people with records to come in. This was done 
routinely in the old armed services. Now, of course, that we 
have a volunteer armed services, and until the Iraq war 
depleted us of volunteers and I think destroyed the voluntary 
armed services, until then we have raised the standards, and 
among those excluded were people with records.
    Well, I would be particularly interested--and I certainly 
hope I can stay, because I have a bill on the floor and another 
committee hearing--to hear what the armed services has to say 
about their experience in addition to what OPM will have to 
say, because the question is, are the times tough enough for 
the Civil Service to now be about the business of setting the 
example for the private sector urging them to hire ex-
offenders? And it is a fair question to put to the largest 
employer in the United States.
    I thank you again for this hearing, Mr. Chairman.
    Mr. Davis. Thank you very much, Delegate Norton. I 
certainly appreciate your comments.
    And one of the reasons that we have this hearing is I just 
don't believe you can lead where you don't go. I'm very simple. 
I don't believe that you can lead where you don't go. And I 
don't believe that you can even ask others to do things that 
you are unwilling to do yourself. So it's difficult for me to 
see how a Federal Government could ask the private sector to do 
things relative to the employment of certain types of 
individuals unless it is willing to lead by example.
    So let me thank you. And let us go right to our first 
witness.
    [Witness sworn.]
    Mr. Davis. The record will show that the witness answered 
in the affirmative.
    [Inaudible portion. Sound malfunction in hearing room.]
    Mr. Davis. Our first witness is Ms. Roberta Meyers-Peeples. 
She is director of the National Legal Action Center National 
H.I.R.E. Network. The organization's mission is to increase job 
opportunities for people with criminal records by changing 
public policies and opinions and employment practices.
    Ms. Peeples, we have a tradition of giving 5 minutes of 
summary. Your entire statement will be included in the record. 
The green light means that you've got the full 5 minutes. The 
yellow light means that you're down to a minute. And, of 
course, the red light means that the time is up. And we thank 
you so much for being here with us. And you may proceed.

    STATEMENT OF ROBERTA MEYERS-PEEPLES, DIRECTOR, NATIONAL 
                        H.I.R.E. NETWORK

    Ms. Meyers-Peeples. Thank you, Congressman. I want to thank 
the committee, of course, for holding this important hearing.
    I echo many of the sentiments that you all have already 
expressed regarding this issue. And I particularly want to 
thank Congressman Davis for his steadfast leadership and 
commitment to ensuring people with criminal records have a fair 
opportunity at getting their lives back on track.
    Since you did give some background about our organization, 
I will kind of skip down. I wanted to talk a little bit about 
the fact that people with criminal histories actually have to 
contend with being locked out of potentially thousands of 
employment opportunities. There are literally thousands that 
are connected to criminal record bars to employment, some from 
the State level and some that are the result of Federal 
regulation. But the two biggest challenges we do identify is 
one that Congressman Davis spoke about, one addressing the 
stigma of having a criminal record, and it's a huge hurdle that 
many individuals have to live with for the rest of their lives 
and the fact that many employers do have a concern about hiring 
people with criminal records.
    But also the other is related to State and Federal 
statutory barriers. We're here to talk a little bit about some 
of the Federal regulations, and we've identified eight industry 
barriers that are created based on Federal regulations that 
have far-reaching impact in terms of exclusions and barriers to 
employment. And some of those industries are, I think, common, 
and we would initially identify in terms of finance, insurance, 
unions, health care, child care, transportation, particularly 
aviation, working on the ports, and truck drivers and also 
security guards.
    I wanted to give a couple of examples because at the Legal 
Action Center, we actually help people directly who are 
directly affected with criminal records with overcoming some of 
the challenges to getting employed.
    In New York there is an anti-discrimination law to protect 
the rights of qualified individuals with criminal histories. 
But even still, people are often denied access to jobs that 
they are qualified for and that they pose no potential risk. 
But I just wanted to give a few examples of individuals that 
have come to us over the last year that have been affected by 
various Federal regulations.
    We had a man in Florida contact us. He's now in his 
thirties. He had been employed by a company doing debt 
collection activities for Citicorp for nearly 2 years, and his 
supervisor informed him that there was a customer service sales 
position available with Citicorp. He applied for the job, had 
an excellent interview, favorable response, but because of his 
criminal history, he had a 10-year-old debt-related conviction, 
he had to apply for an FDIC waiver.
    So he was told to go do that. He contacted the regional 
office of the Federal Deposit Insurance Corporation [FDIC], to 
try to apply for a waiver, and he was told that he couldn't 
apply for the waiver, the employer had to apply for the waiver. 
So we know he did not get the job.
    I followed up with this regional director just to get a 
sense and find out how many waivers are actually applied for on 
behalf of applicants who are applying for jobs who have a 
criminal record, and he said never in his 15 years has he ever 
seen an employer apply.
    So that immediately came in terms of how that affected me. 
I'm wondering, OK, why do we have this waiver process? Many 
employers aren't going to take the time if they have the chance 
to choose other applicants that are applying for these 
positions. And why aren't we making it easier for individuals 
to apply to get the clearance to provide evidence of their 
rehabilitation and be cleared to work in that industry, and 
even be limited, maybe be limited, to a certain type of job?
    Another example is a 46-year-old man who was fired from his 
job as a baggage handler at JFK Airport in New York based on a 
10-year-old conviction. The U.S. Department of Homeland 
Security refused to grant him security clearance due to his 
drug-related conviction without giving any consideration to all 
of his accomplishments since his conviction and successful 
rehabilitation. Earlier in his life he had struggled with 
substance abuse, but had been clean for 9 years after receiving 
treatment, stayed out of trouble, went to school, did 
everything that we would expect him as a society to do in terms 
of rehabilitation. He couldn't get clearance to work. And by 
the time he came to us, he had exhausted any appeals 
opportunities. And again, this is a situation where he couldn't 
even--he didn't even have a right to be told why--other than 
the fact that he had a criminal record--why he was being 
denied. The port director didn't want to get evidence of 
rehabilitation, didn't ask for it, and didn't have to ask for 
evidence of rehabilitation.
    And that's a huge concern for us. If we put these 
stipulations in place in terms of what we expect people to do 
when they're released from prisons once they complete their 
sentences, we would expect that they would have an opportunity 
to get employment in certain positions.
    One other example, we have a client who was denied a 
nursing position because of a Federal employment barrier that's 
imposed by the Department of Health and Human Services. She was 
convicted 6 years ago for misappropriation of Federal funds. 
She had been a director for a day care owned by her mother 
where the funds from a Federal grant that served children was 
used by her mother for nonbusiness purposes. After her 
conviction she went to college, received a bachelor's in 
nursing, was approved for licensing in New York and Florida, 
was hired at a New York hospital, but then found out that she 
was barred from working in any facility that received Medicaid 
or Medicare funds. There is noplace that she can work in the 
medical industry without--you know, with an entity that won't 
receive these funds. So she's now out of work and receiving 
public assistance, mind you, and has done all that we would ask 
her to do.
    There's a number of things, and I don't have enough time 
unfortunately to go into a number of issues, but I do want to 
give some additional recommendations if you give me the 
opportunity. I would ask that the Congress considers creating a 
standard that prohibits flat bans against hiring individuals 
with criminal records. It's really difficult, and I think 
Representative Norton did mention the fact that people, not 
only those with conviction records, those who have arrests that 
didn't lead to convictions, their records are being used 
against them in many industries. Most States do allow employers 
to consider arrests that didn't lead to conviction, let alone a 
conviction.
    We would also like to see Congress particularly look at 
codifying the EEOC guidance on the use of criminal record 
information. Continuously there's laws being passed to open up 
the FBI data base and various other routes for getting criminal 
record information, and there's no guidance being given to 
employers on looking at this information, considering this 
information, or further guidance on looking at what the person 
has done in terms of determining whether they would pose a risk 
in that particular industry.
    We would like to see all legislation that works to 
disqualify people with criminal histories from jobs or other 
benefits to include a waiver process as we see in our military 
service. And some other occupational licensing bars do come 
with a waiver process, but there are others that only allow for 
the release of criminal record information, but no right for 
the individual to present evidence of rehabilitation; and also 
to encourage if there is going to be a fitness determination, 
that it's done by an unbiased and independent body.
    And on that note, I will close out. And I don't know if you 
have any other questions, but I'm really encouraged by the work 
that you continue to do. I would hope that you will continue to 
look at the Legal Action Center and the H.I.R.E. Network as a 
resource to you and keep pressing forward. We'll be at your 
side. Thank you.
    Mr. Davis. Thank you very much.
    [The prepared statement of Ms. Meyers-Peeples follows:]
    [GRAPHIC] [TIFF OMITTED] 48239.003
    
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    [GRAPHIC] [TIFF OMITTED] 48239.010
    
    Mr. Davis. And I'll just go to Mr. Marchant for questions.
    Mr. Marchant. Ms. Meyers-Peeples, in your testimony you 
seemed to equate requirements for criminal record checks or 
fingerprint checks as a barrier to employment for ex-offenders. 
Most of these programs are very popular with citizens. So we 
have to find some way of balancing the public's demand for 
security with a desire to give each applicant a fair chance. 
How would you suggest that we do this?
    Ms. Meyers-Peeples. We're not opposed to criminal record 
checks. I think there's a number of things that have to happen. 
We know that there are a lot of inconsistencies and 
inaccuracies that show up on credit records, particularly 
within some of the State repository records. And we're finding 
that more and more legislation is being introduced to open up 
the FBI records as well, and there are a lot of incomplete 
records and things of that nature.
    And we're not opposed to employers having a right to 
consider criminal record and conviction information; however, 
they often don't have any further guidance beyond seeing the 
information and making their determinations, you know, based on 
their own individual bias on whether or not to hire that 
individual.
    And only a handful of States have actually issued guidance 
or have a State anti-discrimination legislation that actually 
offers additional guidance, where an employer in New York is 
one of those examples. And I believe there's a panel that's 
following me that will talk more about New York State law. But 
they're giving guidance to say, OK, yes, you can look at the 
person's criminal history; yes, you can determine if that 
person could potentially pose a risk and work in this 
particular job; but you should also look at how old the 
conviction is, the age the person was at the time that they 
committed the crime, how old is their record, what have they 
been doing since then, do they have any evidence of 
rehabilitation.
    And I would imagine it's nothing different than 
determining, you know, if the person is qualified to do the 
job. You want to check whether or not they have gone to school, 
that they have adequate skills. But the problem is many people 
with criminal records, they don't get to the point of being 
judged on the merits and their qualifications. They check off a 
box saying that they have a criminal record, and that's where 
it stops.
    And actually there are a number of localities and even in 
Massachusetts where they're looking to remove the criminal 
record question from job applications so that the person can be 
judged based on their education, skills, work experience, up 
front; and later in the hiring process their criminal record is 
checked, verified, and then the risk assessment is done at that 
point. So it actually makes it a lot easier to identify and 
isolate but--whether or not it is the criminal record and is 
the employer doing due diligence in looking at other factors 
beyond whether the person has a criminal record or not.
    Mr. Marchant. So you would argue that the timing of the 
check should be later in the process?
    Ms. Meyers-Peeples. Absolutely. Absolutely.
    Mr. Marchant. But you would not argue that it's legitimate 
to check. It just shouldn't be--it should not be the first 
thing?
    Ms. Meyers-Peeples. It shouldn't be the first thing. The 
person should be cleared based on--in terms of moving forward 
in the hiring process, they should be identified as someone 
who's qualified, the way that they're identified and the way to 
determine that they're being judged on the merits of their 
abilities, skills, education or whatever requirements are 
necessary beyond the criminal record, if it's not asked on the 
initial job application. That's been one way to kind of isolate 
whether or not it's just the criminal record. And some 
localities are actually looking at that. Chicago has opted to 
remove that question off of the city government application. 
Governor Patrick in Massachusetts is moving in that direction. 
Boston has already moved in that direction and removing the 
question of criminal records off the initial job application. 
So it's easier--so it's already determined that, yes, this 
person is qualified based on their education, skills and 
abilities to do this job. Later in the process the criminal 
record is checked, and if that person poses a risk, then it's a 
whole other story. But it gives the person an opportunity to 
actually get through the front door and make the case that they 
can do this job and are equipped to do this job and don't pose 
a risk.
    Mr. Marchant. Thank you.
    Ms. Meyers-Peeples. You're welcome.
    Mr. Davis. Thank you very much, Mr. Marchant.
    Ms. Meyers-Peeples, let me ask you, do you know any ex-
offenders who actually work for a Federal Government agency? 
Have you come into contact with anybody?
    Ms. Meyers-Peeples. No, I haven't. My understanding, I 
believe, and this--I was just thinking. I know that the post 
office has been an issue. I know that this has been an issue. 
Years ago we've had clients who have indicated on their job 
applications for the post office that they have a criminal 
record, and they were stopped out. I had a couple of clients, 
and even a friend of mine, who didn't get through the front 
door because she had a criminal record.
    Mr. Davis. This question of rehabilitation, what evidence, 
I guess I would want to know, of rehabilitation would you think 
that a potential employer might look at if they were trying to 
assess whether or not one was hirable?
    Ms. Meyers-Peeples. Well, first and foremost, how long it's 
been since there's been any criminal activity. In many cases we 
have people coming to us where they've had long stretches of 
not being involved in any criminal activity, meaning they 
haven't been arrested ever again, have not had any police 
contact over a certain amount of time. Other evidence, some 
people's criminal activity was connected to substance abuse 
history or some type of addiction for which they've been in 
recovery and have successfully completed recovery. Evidence of 
completing treatment is evidence of rehabilitation.
    The fact that someone has come out of prison, and has gone 
to college, and has successfully or is successfully going to 
college, has attained various occupational skills, has worked 
in other types of jobs, is taking care of their family, have 
been paying their taxes, stable housing, all the things that we 
know act as challenges to someone having a successful reentry 
experience, when people manage to go through the reentry 
process in getting some type of job and holding down a job, it 
all serves as evidence of rehabilitation. And this is 
information that I think should play a major role in an 
employer determining whether or not this person could be a 
loyal employee on top of having the skills and the education 
that are necessary to do that particular job. And that's 
something we just ask that employers do. They need to do that 
for any applicant that comes through their door.
    Mr. Davis. And finally, let me just ask you, do you see any 
connection between an individual who was convicted of passing a 
bad check and being able to wash windows here at the Capitol?
    Ms. Meyers-Peeples. Absolutely not. There is no connection. 
That person can obviously do the job. And it's interesting that 
you mention that, because that is one of the--in terms of New 
York's laws, employers can determine whether or not there's a 
connection between the person's criminal history and the job 
that they would be doing. And I have to say, in many cases 
employers are sometimes kind of far-fetched or far-thinking in 
terms of trying to connect certain types of histories with 
certain jobs.
    But absolutely not. Passing a bad check, the employer may 
want to question that person about what was going on in their 
life; it was a financial burden or what have you. But in many 
cases there isn't a relationship. And I think there are clear 
relationships. And we hope that employers have determined the 
type of individual and the type of skills that person would 
need to have in terms of doing the job. But there's no way they 
can connect someone with check-writing fraud or credit that, 
you know, should be prohibited from washing windows or 
vacuuming or what have you. They don't have access to money or 
anything like that.
    Mr. Davis. Well, thank you very much. We really appreciate 
you----
    Ms. Meyers-Peeples. You're very welcome.
    Mr. Davis [continuing]. Coming to testify.
    Ms. Meyers-Peeples. Thank you.
    Mr. Davis. We will go to our second panel, and while they 
are coming, I will introduce the panelists.
    Ms. Nancy Kichak was named Associate Director for the Human 
Resources Policy Division of the Office of Personnel Management 
[OPM], in September 2005. Ms. Kichak leads the design, 
development and implementation of innovative flexible and 
merit-based human resource policies.
    We also have Major General Thomas P. Bostick. Major General 
Bostick assumed command of the U.S. Army Recruiting Command on 
October 12, 2005. He is responsible for overseeing more than 
13,000 recruiting soldiers and civilians assigned throughout 
the United States and Europe and the Far East, with the primary 
mission of meeting the Army's recruiting goals.
    And we have Mr. Brent Orrell, who is the Principal Deputy 
Assistant Secretary for Employment and Labor at the Department 
of Labor. Prior to this appointment he worked at the Department 
of Labor on the President's faith-based and community 
initiatives.
    Thank you all for being here. And if you would stand and be 
sworn in.
    [Witnesses sworn.]
    Mr. Davis. The record will show that the witnesses answered 
in the affirmative.
    Again, let me thank all three of you for being here and 
being willing to come and help us explore this serious issue. 
Of course, your entire statement is in the record. And if you 
would take 5 minutes and summarize, then we would go into a 
question and answer.
    The green light indicates that the full 5 minutes are 
available. The yellow light means you've got a minute, and, of 
course, the red light means that the time is up.
    Ms. Kichak, we'll begin with you. And it's good to see you 
again.

   STATEMENTS OF NANCY KICHAK, ASSOCIATE DIRECTOR, OFFICE OF 
  PERSONNEL MANAGEMENT; MAJOR GENERAL THOMAS P. BOSTICK, U.S. 
  ARMY RECRUITING COMMAND; AND BRENT ORRELL, ACTING ASSISTANT 
SECRETARY FOR THE EMPLOYMENT AND TRAINING ADMINISTRATION, U.S. 
                      DEPARTMENT OF LABOR

                   STATEMENT OF NANCY KICHAK

    Ms. Kichak. Thank you. Chairman Davis and Representative 
Marchant, thank you for inviting me here today to discuss the 
employment of ex-offenders in the Federal Government.
    The Federal Government supports the employment of 
rehabilitated offenders who have the knowledge, skills and 
abilities needed to accomplish the work of the government. We 
recognize that in addition to helping the Federal Government 
meet its staffing needs, employing rehabilitated offenders can 
contribute to the national effort to prevent crime and enable 
these individuals to become productive citizens.
    Under the merit system principles, agencies must consider 
applications from rehabilitated ex-offenders to see if they are 
the best candidate for the position and can comply with the 
requirements for the job.
    At the same time, we need to carefully balance providing 
employment opportunities for ex-offenders with our 
responsibilities to the public, including our fiduciary 
obligations to taxpayers. Not all jobs will be open to 
individuals with the kinds of backgrounds some ex-offenders 
have. It may be inappropriate to place certain ex-offenders in 
positions related to national security or in positions 
involving access to financial data or personally identifiable 
information. Consequently the principal issue for agencies as 
they consider hiring ex-offenders involves making suitability 
determinations and determinations of eligibility for security 
clearances.
    Applicants for employment in the executive branch, 
including ex-offenders, must undergo a background investigation 
and determination as to whether they are suitable for Federal 
employment based on their character and conduct relative to 
governmentwide standards. While there is no general bar against 
ex-offenders, Congress has determined that some types of 
criminal conduct would render an individual ineligible for 
Federal employment generally or for work in certain types of 
positions. Most of these provisions are in Title XVIII of the 
United States Code. For example, an individual convicted of a 
misdemeanor crime of domestic abuse is barred from being hired 
for a position requiring the incumbent to possess a firearm.
    In other cases involving criminal conduct, agencies would 
consider each applicant on a case-by-case basis. Among other 
things, agencies may consider how recently the criminal conduct 
occurred, the age of the individual at the time the conduct 
occurred, the relationship of the conduct to the position in 
question, and the evidence or lack of evidence of 
rehabilitation including the individual's own efforts at 
rehabilitation.
    It is important to keep in mind the fact that an individual 
is considered unsuitable--that if an individual is considered 
unsuitable for a particular job, that does not necessarily mean 
he or she is unsuitable for all Federal employment. Federal 
agencies must consider qualified rehabilitated ex-offenders to 
fill appropriate vacancies that are not otherwise restricted. 
Therefore, we believe current human capital practices provide 
adequate opportunities for employment, and that no special 
appointing authorities for hiring ex-offenders in the Federal 
Government are needed. Our current array of appointing 
authorities and flexibilities provides all the tools we need to 
bring qualified ex-offenders into the government.
    In addition, there has been a long accepted Schedule A 
appointing authority available to agencies for employing 
individuals who are on work release programs, these individuals 
who have not yet been released from custody, but who have an 
opportunity to gain work experience to prepare them for 
employment upon completion of their sentences. This authority 
allows agencies, with prior approval from OPM, to employ 
inmates of Federal and State correctional institutions when a 
local recruiting shortage exists for positions being filled.
    Thank you for inviting me to discuss the issue with you 
today, and I'd be happy to answer any questions.
    Mr. Davis. Thank you very much.
    [The prepared statement of Ms. Kichak follows:]
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    Mr. Davis. General Bostick.

          STATEMENT OF MAJOR GENERAL THOMAS P. BOSTICK

    General Bostick. Chairman Davis, Congressman Marchant and 
other distinguished members of the committee, thank you for the 
opportunity to appear here today on behalf of the U.S. Army.
    I take tremendous pride in saying that we are maintaining a 
high-quality volunteer force that is proudly serving this great 
country. We're the best equipped, best trained, best led Army 
in the Nation's history.
    In this era of persistent conflict, the Nation and the Army 
have the toughest recruiting challenge during the all-volunteer 
history, which dates back 35 years now. Having said this, we 
can be very proud that 170,000 Americans raised their right 
hand last year to serve in an Army at war. That's the size of 
Newport News, VA; Brownsville, TX; and a little bit bigger than 
Springfield, MO and Dayton, OH.
    The Army has always been an American institution that 
provides opportunity. We remain so today. We continue to 
transform civilians from all walks of life into quality 
soldiers, leaders and heroes imbued with a warrior ethos and 
the Army values.
    We do not actively recruit prior offenders, and they are 
not part of our targeted recruiting market; however, this does 
not mean that we completely exclude those who have made 
mistakes and demonstrated good behavior from the opportunity to 
serve their country. The Army leadership is committed to 
providing a quality force and will not accept the lowering of 
our standards. We thoroughly screen each volunteer who wants to 
serve the Nation as a soldier. Many never make it past the 
recruiter's office.
    The Army applies a rigorous waiver process which looks at 
the whole person. We examine their performance at school, at 
work, in their personal life and in their community before 
making a decision to allow individuals to enlist in our Army 
with a conduct waiver. That process requires review and action 
from 10 different leaders for serious misconduct waivers from 
the local recruiter to an Army General. The process is designed 
to identify those that have the potential to meet the high Army 
standards. We don't accept soldiers with waivers because we 
have to, but because we assess them as qualified and deserving 
of an opportunity to serve. The number of those with waivers 
remains relatively low, at about 18 percent, and serious 
misconduct waivers only account for approximately 1 percent of 
all accessions.
    And from those recruited with waivers, we are seeing 
positive trends reported in a recent 3-year study comparing the 
performance of soldiers with conduct waivers to those without. 
We found that soldiers who had enlisted with waivers had higher 
education and aptitude, reenlisted at higher rates, advanced to 
sergeant faster, and had a higher ratio of valorous awards with 
only a marginally higher misconduct rate.
    The willingness to serve in the Army during a period of 
persistent conflict highlights a unique aspect of quality that 
cannot be measured with a high school diploma, test scores or 
waivers alone. A special quality exists in the heart of a well-
trained, well-equipped and well-led soldier who serves in 
harm's way for his country.
    I'm proud of the soldiers entering our Army. They are 
America's heroes. Young soldiers like Corporal Angelo Vaccaro, 
a two-time Silver Star recipient, and Specialist Ross McGinnis, 
who recently received the Medal of Honor, both entered the Army 
through our waivers process. They, like all of our soldiers, 
became heroes the day they enlisted.
    Thank you for the opportunity to address the committee this 
afternoon, and I look forward to your questions.
    Mr. Davis. Thank you very much, General.
    [The prepared statement of General Bostick follows:]
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    Mr. Davis. Mr. Orrell.

                   STATEMENT OF BRENT ORRELL

    Mr. Orrell. Chairman Davis, Ranking Member Marchant, 
distinguished members of the subcommittee, I'm pleased to have 
the opportunity to testify today on the Prisoner Reentry 
Initiative. I wish to begin by thanking you, Mr. Chairman, for 
all of your leadership and securing the enactment of 
legislation authorizing the Second Chance Act, culminating in 
the President's signature on April 9th.
    Over the past 6 years, the Department of Labor under 
President Bush's leadership has sought to fundamentally change 
the way it approaches prisoner reentry programming, which 
previously had two main focuses. The first of those focuses was 
an extensive partnership with the U.S. Department of Justice to 
assist with funding and programming around the Serious and 
Violent Offender Reentry Initiative. The second was its 
implementation of a number of incentive programs, which is the 
Work Opportunity Tax Credit, which provides employers with 
subsidies for hiring a variety of hard-to-employ populations, 
and the Federal Bonding Program, which provides businesses with 
insurance for high-risk employees.
    During conversations with employers in 2002, it became 
clear that the Work Opportunity Credit and Federal Bonding 
Program by themselves were insufficient to help ex-offenders 
overcome employment barriers. The bond was not received as a 
benefit to employers as it tended to brand applicants as high 
risk without actually protecting employers against liability 
actions in the event an ex-offender committed a crime against a 
customer or employee.
    Since these conversations, the Department has redesigned 
its prisoner reentry activities to make them more responsive to 
employer concerns about hiring ex-offenders, while at the same 
time improving supports for ex-offenders when they return to 
their communities. Both elements are critical to successful 
reentry.
    Rather than relying only on a combination of employer 
incentives and training, the Department's reentry approach 
today is community-based, mentor-supported and employment-
focused. Our programs reflect the belief that work force 
development and employment placement services need to be done 
in concert with efforts to connect returning offenders to 
community institutions. These groups help returnees navigate 
the full range of reentry barriers from psychological and 
emotional issues to housing, child care and substance abuse 
treatment.
    Our approach has embraced partnerships with both religious 
and secular nonprofit organizations that serve as the front 
door of reentry to the community. The vision for the Prisoner 
Reentry Initiative built upon earlier successes of the Ready 
for Work demonstration program launched in 2003. This joint 
effort between the Department of Labor--the Department of 
Labor's Employment and Training Administration and Center for 
Faith-Based and Community Initiatives was designed to leverage 
the trust and leadership of faith-based and community groups to 
help ex-offenders build better lives. It not only increased ex-
offender access to stable employment, it also strengthened the 
participants' social bonds in the community, a factor that's 
important both in persuading employers to consider ex-offenders 
for jobs and helping them navigate nonwork-related problems 
after they are employed.
    Across the 11 Ready for Work sites, 60 percent of 
participants became employed, and recidivism rates for the 
program were 40 to 50 percent below the national average. About 
half of the Ready for Work participants took part in mentoring 
or life coaching, and those participants fared much better in 
terms of employment outcomes and avoiding recidivism than those 
who did not participate in mentoring.
    The Prisoner Reentry Initiative, key elements of which were 
recently authorized under the Second Chance Act, seeks to 
expand on the Ready for Work model. It's a collaborative model 
between the Departments of Justice and Labor, with Justice 
providing grants to State agencies for prerelease services. By 
June 30th of this year, DOL will have provided $59 million in 
30 3-year grants and 20 1-year grants. In 2008, we plan to 
award new grants in 15 to 20 cities.
    PRI Chicago is a good example of how this initiative can 
strengthen the capacity of community and faith-based 
organizations to serve returning prisoners. The Safer 
Foundation is using its grant to build the capacity of 
neighborhood-based churches to serve released prisoners in some 
of the poorest communities in the city. Safer trains case 
managers at each of its three faith-based subgrantees. 
Mentoring of returning prisoners occurs through the assistance 
of many community groups across the neighborhoods. Ex-offenders 
are provided work force, development services, life coaching, 
employment referrals and linkages to a wide variety of social 
services programs, including drug and alcohol treatment and 
housing assistance.
    We've established a rigorous performance tracking system 
for our grantees which allows us to determine the employment 
outcomes and recidivism rates for participants. Sixty-three 
percent of the PRI participants have been placed in jobs with 
an hourly wage of $9.41, and the program has a 1-year 
postrelease recidivism rate of only 15 percent, almost two-
thirds below the Department of Justice national benchmark.
    In conclusion, Mr. Chairman, I think it's vital that 
Congress and the administration continue its partnership in 
improving outcomes for ex-offenders. This is not just about the 
needs of returning offenders; reentry outcomes are critical for 
families, communities and the Nation. If we are to avoid the 
very large and growing costs of adjudication and incarceration 
as well as the staggering costs in lost productivity and wasted 
lives, government at all levels needs to examine how to provide 
effective transitions for ex-offenders. I believe the policies 
developed by the administration over the past 7 years are an 
important step in that direction.
    This concludes my prepared testimony, and I'm pleased to 
respond to your questions.
    Mr. Davis. Thank you very much, Mr. Orrell.
    [The prepared statement of Mr. Orrell follows:]
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    Mr. Davis. And again, I want to thank all three of you for 
your testimony.
    Ms. Kichak, let me ask you, how long have you been 
associated with personnel activity within the Federal 
Government?
    Ms. Kichak. I've been with OPM for 35 years, but for 
personnel activity, I would say 8 years.
    Mr. Davis. Have you ever come into contact with any 
individuals who work for the Federal Government who are ex-
offenders or that you knew as an ex-offender?
    Ms. Kichak. I have never asked anyone that question in the 
process of employing an individual, and I have never been asked 
to determine whether that has mattered for any employee under 
my management, so I am not aware of any working for me. But I 
don't think I would be.
    Mr. Davis. The city of Boston, I guess, could be thought of 
as being progressive relative to the question of letting 
individuals know that just because they may have a conviction, 
that they're not barred from employment with the city. And I've 
been very pleased that the mayor of the city of Chicago issued 
an executive order indicating that a felony conviction did not 
necessarily bar one from seeking employment with the city, and 
that they could be evaluated like any other applicant. And, of 
course, that has given hope to some individuals.
    Does the Federal Government have anything on job 
applications that would ask an individual of their status 
relative to criminal conviction?
    Ms. Kichak. The Federal Government on the standard request 
for information submitted through USAJOBS does not ask that 
question. We do not have a governmentwide application form in 
use anymore. I can't assert that question is never asked at 
specific agencies for specific applications. For example, 
Customs and Border Patrol, I don't know what their application 
looks like.
    Mr. Davis. So if an individual completed a job application, 
until they reached a certain level where there was a background 
check or something of that nature, whoever is doing the 
reviewing or maybe even the initial interviewing may never know 
whether or not the individual has any kind of criminal 
background?
    Ms. Kichak. Right. If they didn't volunteer that 
information in the drafting of their resume, the reviewer would 
not know.
    Mr. Davis. General Bostick, I was very intrigued and 
pleased to hear your testimony relative to individuals who have 
performed in an outstanding way who did, in fact, receive 
waivers. And I guess my question becomes, have you seen any--
and you did cite some instances and some statistics. But have 
you seen any underperformance of these individuals?
    And I also appreciated the standards that the military 
uses, that this is not something that's done willy-nilly . I 
mean that if individuals come and apply, and it's discovered 
that they have something in their background that merits taking 
a hard look at or other looks at; but my question becomes, have 
you noticed or has the military found any underperformance or 
anything to suggest that these individuals who were granted 
waivers did not perform as well as individuals who did not find 
it necessary to get a waiver to come into the service?
    General Bostick. Mr. Chairman, first let me say that we 
have ongoing studies that are reviewing this very point. We 
have had limited studies in the past, one in 2003 that looked 
at misconduct of soldiers with felony waivers. And in that 
particular study, there was no significant difference between 
those with waivers and those without waivers. We then did 
another study of a larger cohort group from 2003 to 2006. About 
17,000 of that group needed waivers, conduct waivers, and 
another population of 250,000-plus that did not need waivers. 
And in that group we found that reenlistment was a bit higher 
in those that needed waivers. Education and aptitude was a bit 
higher, and higher valorous awards. Where they were a bit 
underperforming against that population was in misconduct. 
Marginally higher in misconduct.
    But I think in any group, whether with a waiver or without 
a waiver, you're going to find some level of challenge in any 
organization. And what we're doing now is taking another hard 
look at this with different analytical organizations to look at 
the downstream effect in Operations Iraq and Afghanistan and 
throughout the Army of the impact of those that have received 
waivers. And we expect some of those studies to be coming out 
in the next fiscal year.
    Mr. Davis. Have you found any undue burden or hardship on 
the military or great expense to go through making these 
assessments, evaluations and determinations? And I guess my 
question is, is it too costly to try and make this kind of 
determination as to whether or not individuals are eligible to 
come into the service?
    General Bostick. It's difficult for me to answer from the 
recruiting commander perspective of the cost of these studies. 
I know the Department of the Army is looking at that. I'm 
certain that it will take some time, and it will take some 
cost, but we believe that's important.
    We know that we have increased the number of waivers over 
the last several years. We know that we have more GEDs today 
than we did in past years. And we think it's important to go 
out and make sure that our Army is sound, that the soldiers 
that we've brought in for any type of waivers or challenges in 
any other area--in fact, a lot of the waivers are in the 
medical area. So we're looking at each of those areas to ensure 
that the Army is in good shape and can serve the Nation well.
    Mr. Davis. Thank you very much.
    Mr. Orrell, let me just ask you, I'm a real fan of faith-
based initiatives and the faith-based approach to trying to 
assist individuals to a get a handle or a better handle on 
their being--although I am a trained psychologist, and some of 
my associates when it comes to behavior don't necessarily buy 
into some of the faith-based activity. But there appears to be 
something that sometimes happens that it's difficult to 
determine scientifically what that might have been. And these 
individuals come away from those experiences really prepared to 
function at a different level.
    When the Department evaluates faith-based initiatives in a 
generic sense and across the country, what have you found? I 
mean, what is it----
    Mr. Orrell. I guess I'd respond by saying, first of all, I 
think that the most important element in this project I've been 
talking about is the role that faith factor plays is probably 
in the motivation of volunteers that stepped forward from the 
community to work with the returning offenders. The volunteers 
and the organizations are--operate under DOL restrictions with 
regard to the mingling of religious and social services 
activities, and mentors are supposed to be briefed on this as 
what you can and cannot do in this relationship in terms of 
discussions around religious topics.
    So that's pretty well, I think, separated, but I do think 
it's an extremely important motivating factor for the 
organizations and individuals within those organizations who 
are stepping forward to try to address this problem. And I 
think that's true across the country and all sorts of 
initiatives in which faith-based organizations are active. I 
think that it's a very important motivating factor.
    What happens in the lives of individuals happens in the 
lives of individuals. I think it's very difficult to quantify, 
to know what's happening in the lives of an individual ex-
offender who's taking part in those--or somebody who's going 
through, say, a faith-based drug rehabilitation program. But 
it's an extremely important factor in terms of motivating them.
    Mr. Davis. Well, thank you all very much, and I'll yield to 
Mr. Marchant.
    Mr. Marchant. Thank you, Mr. Chairman.
    General Bostick, are there other branches of the military 
or the Department of Defense that use the same process to take 
soldiers in and employees under waivers?
    General Bostick. I can't speak to the specifics of the 
other services, but they do have a waiver process that they 
consider at each level, somewhat similar to what the Army does.
    Mr. Marchant. So the Army is not the only one of the 
services that's involved in this?
    General Bostick. Correct. But each service has the ability 
to decide based on their requirements at what level they will 
make the determination on what waivers they will accept.
    Mr. Marchant. So that in any given situation, there will 
be--will there be marines that are operating under waivers? 
Will there be members of the Navy or the other branches have 
the same approach to this.
    General Bostick. I would say each service has a very 
rigorous approach to how they make the decision on whether a 
soldier, sailor, airman, marine would come into the Army or 
their service.
    Mr. Marchant. Or they just have a plain, if you are a 
felon, you cannot receive a waiver program. Do they?
    General Bostick. Some are very restrictive. And I would say 
that there are very limited felony waivers in some of the 
services. And some have more. I can't say what their specific 
rules are. I would rather not speak on their behalf. But I can 
say that they have a very rigorous process. They look at the 
conduct waivers in a very similar fashion that we do, and to a 
higher degree or to a lesser degree, the service that you are 
talking about.
    Mr. Marchant. But you are not the only service that's 
involved in this.
    General Bostick. Correct.
    Mr. Marchant. Ms. Kichak, Texas has its share of 
incarcerated individuals, as does California and, I am sure, 
Illinois. The Sunbelt attracts a lot of young men and women 
looking for work and then looking for lots of other stuff. We 
have every year, in the Dallas area, a very aggressive--our 
police chief in Dallas is very aggressive at having job fairs 
for people that have served their sentences and have been 
released. The disappointing thing is that very few companies, 
and I know of no governmental agencies, that attend those job 
fairs. Now, would this be something that each individual 
regional area or each individual government entity would have 
to make a decision on whether they would actually go.
    There is the step of receiving an application. There is 
another step that is taken many times in government, and that 
is to go to a job fair and actually look for levels of 
employment.
    Ms. Kichak. We have learned, in order for a job fair to be 
effective, the agencies who have positions need to go and 
discuss the specific positions they have available. So those 
decisions have to be made on an agency-by-agency basis as to 
whether they have positions available for people who might be 
at that job fair.
    Mr. Marchant. The job fair being only attended by people 
that would generally need a waiver.
    Ms. Kichak. There are no waivers needed for Federal 
employment. There is no strict bar for an ex-offender. Ex-
offenders are another segment of society that are welcome to 
apply and compete for Federal employment. They don't need a 
waiver. They go, they compete.
    Very few selections are made at job fairs. That is where 
you learn about the job. Then you submit your application. The 
application--or at least--the application that is generally 
filed through USAJOBS, where all of our jobs are required to be 
posted, does not ask a question as to whether the person is an 
ex-offender. The application then goes back to the agency, and 
the person competes against other people who applied. And it is 
only when they are selected and then the final suitability for 
employment decision gets made that it is likely to be found out 
whether or not they have a record. And the record does not 
necessarily bar them from employment. It depends upon the 
nature of the job, with the exception of the statutory bars, 
you know, that Congress has levied.
    Mr. Marchant. Thank you, Mr. Davis.
    Mr. Davis. Thank you very much, Mr. Marchant.
    Ms. Norton.
    Ms. Norton. Thank you, Chairman.
    And I want to thank all of you for your very helpful 
testimony. Also, the first witness, I was in the other room, I 
heard her testimony as well, the first witness.
    I want to especially thank you, General Bostick, for your 
service to our country. And I want to thank the armed services 
of the United States for the many, many young people who went 
into the service sometimes on order of a judge. And to this day 
you will hear veterans, the prevolunteer Army, talk about how 
the best rehabilitation they ever got was in the armed services 
in the United States.
    And I fully understand the requirements of the volunteer 
Army, but having heard about this all my life, I cannot help 
but note it and am grateful to the armed services, which, after 
all, in many, many of the important policies of our country has 
been way ahead of the private and the public sector, 
integration of the armed services. Today, the record of the 
Armed Forces promoting people like yourself is to be envied by 
the Civil Service, where we have just had hearings on the SES, 
for example, and for that matter the private sector.
    You indicated that there were not many people who had, 
quote, serious misconduct. You mean felons?
    General Bostick. We call it serious misconduct because 
within that group we include more than just felonies. For 
example, in our process that goes all the way up to a general 
officer, if you have had two DUIs, for example, or two 
possessions of marijuana, those are not felonies per se, but we 
put them in that category of seriousness.
    Ms. Norton. Two small possessions of marijuana?
    General Bostick. Correct. And two arrests for marijuana. We 
would ask----
    Ms. Norton. A kid who comes out of college and wants to 
join the Armed Forces of the United States and use his college 
degree and did what every other kid does now but got caught, he 
couldn't join the Armed Forces of the United States today? 
Maybe he could get a waiver.
    General Bostick. We are not saying that they could not 
join. In terms of those that have used marijuana in the past, 
we look at it as a medical condition. We look at--our doctors 
would look at that person and see if they have any dependency 
on drugs or alcohol that would preclude their ability to serve 
as a soldier. If they have been arrested----
    Ms. Norton. I understand. I just want to make sure that we 
are not talking about--we are not talking about disqualifying 
every other kid going to college or high school today.
    Now, what percentage of those are ex-felons, people who 
have a felony record?
    General Bostick. Of those that we assess into the Army, it 
is less than one-half of 1 percent that are convicted of a 
felony.
    Ms. Norton. What kinds of felony, examples of felonies that 
waivers have been granted for in the Army, where you have, of 
course, the largest number of men and women serving today?
    General Bostick. If you look at the FBI data base, in the 
last couple years there has been about a 14, 15 percent 
increase in crime in the areas of burglary, robbery, larceny, 
drug use, those sorts of crimes. And aggravated assault. And we 
see some of that as we are recruiting America's sons and 
daughters, and we've got to make a decision on whether that 
offense is one that would preclude them from serving in the 
military.
    So, for example, aggravated assault. I have seen a case 
where two teenage girls, one that we are recruiting, get into a 
fight. Mom calls the police, the police comes. Because she 
kicked her sister with a shoe, it is a deadly weapon, 
aggravated assault, and she is charged with a felony. Several 
years later she has demonstrated good performance in school, in 
her community, and from her supervisors. And we would make the 
decision in a case like that, probably to bring her in.
    Ms. Norton. That kind of individualized consideration is 
precisely what we would expect of the Federal Government and of 
any private employers. So I understand it.
    In your testimony, you cited 2004. Is that when the policy 
of waivers grew or changed or became more active, from 2004 on?
    General Bostick. I am sorry, I am not following the 
question.
    Ms. Norton. The volunteer Army was known for not, in fact, 
encouraging. You say, of course, they have always been allowed. 
Is it not so that the number of waivers began to grow beginning 
in 2004?
    General Bostick. I understand now.
    Yes. The waivers have grown about 2 percent to 3 percent 
every year since 2004.
    Ms. Norton. Why is that, sir?
    General Bostick. For a number of reasons. First, I would 
say that the felony convictions are still very low, less than 
one-half of 1 percent of all that we bring in. The other 
reasons for changes in society, changes in our process.
    Ms. Norton. Weren't those changes going on before 2004?
    General Bostick. Some of them are recent. Some of the 
changes in policy, for example.
    Ms. Norton. I am talking about changes in society. For 
example, we have the greatest crime wave in the early 1990's 
when crack came on the scene, so that I am interested in 2004, 
why 2004 sees an increase in waivers.
    General Bostick. And, again, going back to the FBI data 
base and the information we are able to review, this is in 2005 
and 2006, it's been about a 14 percent increase in burglary, 
robbery, larceny, aggravated assault----
    Ms. Norton. So you are saying because of increase in crime, 
you have an increase in waivers?
    General Bostick. That's part of it. Part of it is an 
increase in crime overall. And the military is a subset of 
society; in many ways we reflect society, our youngsters do. 
And if crime is at an increase, then some of those we would 
look to bring in would----
    Ms. Norton. So we would, from your testimony, understand 
that as crime goes up you are inclined to give more and more 
waivers of that kind to reflect what you see going on in 
society; that this is going to continue to increase if that is 
the reason.
    General Bostick. I wouldn't say that. The other part that 
has changed is we have had a change in our process. We've 
automated our process. So this 10-step process for conducting 
waivers used to take 90 days, and this was just a short time 
ago. Certainly in 2004 this process would take 90 days, and we 
have streamlined that process down to about 2 weeks.
    So a recruiter's most valuable resource is his time. And if 
he has someone that comes in that needs a waiver, and, for 
example, he comes in and says, I have lived in 10 States, and I 
have been in trouble of 5 of them, that recruiter must go work 
with those 5 States in order to make sure what he is telling is 
accurate.
    Now we have electronic background checks, we are 
Internetted, we are connected through automation, we have e-
mails, so the whole process of getting someone through the 
waiver process is a lot faster. So that recruiter is much more 
apt, if he knows that he has a valid case here that he knows 
all of the details on, on this young man or woman, to submit 
that file for a waiver, where in the past he would just say, I 
don't have time to work with you, and I have to go to another 
high school or college to look for another recruit.
    Ms. Norton. But, General, particularly since, if anything, 
the Army has developed a model process for waivers, I mean no 
criticism of the Army, but is it not the case, sir, that it has 
been harder to recruit people to the volunteer Army in the last 
few years? And that would make any military person think that 
they ought to look at all of their policies, including the 
number of waivers granted in the past, and perhaps grant more 
today, take a greater risk today since there are fewer people 
just willy-nilly coming forward as they were, I don't know, 
say, 10 years ago before the Iraq war?
    General Bostick. As I said in my opening statement, this is 
the toughest period of time in the history of the all-volunteer 
force for recruiting for a number of reasons. Some of it has to 
do with economy and the low unemployment rate. Some has to go 
with the ongoing conflict and persistent combat operations. 
Some has to do with the youngsters and their background today. 
A lot has to do with education across America and obesity. Less 
than 3 out of 10 of the 17 to 24-year-olds are qualified to 
join the Army.
    So there are a number of issues that are out there, but 
there is no question that it is a more challenging time to 
recruit. But there is also no question that we are not going to 
lower our standards in order to meet the needs of the Army.
    Ms. Norton. Of course, it is considered a lowering of 
standards, and I would consider it a lowering of standards and 
a greater risk, to take people you wouldn't have taken before. 
And I am not criticizing you for that, but I do criticize you 
for saying you are doing enough because you have to. I expect 
that is a boilerplate that the Army comes forward.
    But I think it important to note, though, for example, the 
National Guard has had to pay people like they were going to 
strike it rich, and they have had some success in recruiting. 
What began as a volunteer Army has become increasingly an Army 
that either you become more and more mercenary, therefore going 
to those who most need money, or--or should I say and/or--you 
look at other policies.
    The Army, the great thing about military campaign is people 
come back, and they don't say what we did right; they want to 
know what we did wrong, or what can we do to improve it. It 
does seem to me that there is no getting away from all the 
statistics we are aware of are the difficulty of recruiting to 
a volunteer Army in the middle of a controversial and tough 
war, that has something substantially to do or at least 
significantly to do with looking at the waiver process. What is 
interesting to note is you find that the waiver process is so 
careful, you say that at least the study that you referred to 
doesn't see any particular difference in those who receive the 
waiver and those who do not. That is important data.
    The Army is known for studies and data. And I would ask 
you, General Bostick, if you would submit that study to this 
committee so that we may look at that study, because I think it 
would be important for the Federal Government to see. I think 
it would be important for private employers, Mr. Orrell, to be 
able to use that. Given the rigor of your process, it might say 
that you have a rigorous enough process, you may get comparable 
results.
    Now, Ms. Kichak, I understand that decentralization of 
hiring, we've had some very important aspects to it. Have you 
ever done a survey of any kind to see what the actual practice 
is of Federal agencies who have any knowledge, since you have 
decentralized this matter, along with thousands of others--have 
you any knowledge of what the actual process is, and do you 
know of any attempt by the OPM to find out what the actual 
practice is?
    Ms. Kichak. The practice for hiring ex-felons?
    Ms. Norton. That is right.
    Ms. Kichak. No. We have not done any survey, and we do not 
ask for that question in the hiring process.
    Ms. Norton. Well, of course, you do in some agencies. What 
are you talking about? You know good and well that some 
agencies do, but you seem not to know which agencies do and 
which agencies don't. We are just trying to find out.
    Look, we can't deal with policy unless we know what is 
happening. Now, we know good and well that some agencies for 
good and sufficient reason ask that question, and better ask 
it, or I want to know the reason why. So, we can even guess at 
what they would be. But I am asking you about--and I know you 
don't have that. So all the disclaimers will be noted for the 
record. Do you have any idea which agencies don't ask that 
question? Do you have any idea what jobs--for what jobs this 
question might be considered irrelevant?
    Ms. Kichak. We at OPM, in hiring HR specialists, claims 
examiners, and all the personnel we hire at OPM for our own 
use, do not ask that question. The question as to whether 
anyone is a felon is not part of the USAJOB application process 
for applications that come in through USAJOBS. It would have to 
be asked when an application is made at the agency level.
    Ms. Norton. Do you believe it would be appropriate for OPM 
to offer advice on this matter either by giving examples or 
giving case examples from agencies that you learn have, in 
fact, hired ex-felons? Do you believe that would be an 
appropriate function of OPM?
    Ms. Kichak. I believe that, No. 1, we give advice on the 
suitability process. I heard the first witness that talked 
about someone who was not found suitable because of a previous 
drug conviction. And our regs specify that a rehabilitation 
must be considered when reviewing previous drug convictions for 
jobs. So in that process we already give advice.
    Ms. Norton. Is that on a case by case?
    Ms. Kichak. No. That is in our regulatory process, and it 
is available to agencies governmentwide. It is not on a case-
by-case basis. Those decisions are made at----
    Ms. Norton. So you have--you have guidelines of some kind 
that say----
    Ms. Kichak. Rehabilitation should be considered.
    Ms. Norton. Would you submit those guidelines to the 
committee?
    Ms. Kichak. Yes.
    Ms. Norton. Could I ask you if you think it would be 
appropriate, given the rising number and--as the gentleman 
testified, the rising number of people committing felonies, 
some of them with vastly different--for vastly different 
crimes, do you think it would be appropriate for you to find 
out what agencies are doing in the post-9/11 period?
    Ms. Kichak. I think we could ask agencies if they ask 
questions about offenders in their application process.
    Ms. Norton. I am going to have to ask you to do--Ms. 
Kichak, I am a member of the Homeland Security Committee, and 
you leave the impression that you leave everybody to his 
druthers. And, of course, I can depend upon the judgment of 
most of the agencies that come before my own committee, but 
after I leave those agencies, I don't know what the others do. 
Could I ask you to submit any materials you have on questions 
agencies ask--and to ask agencies what questions they ask 
concerning this subject? Just to find out. We are not here to 
criticize agencies. After all, nobody's told them. Congress 
hasn't held any hearings on this matter. So we are in the blind 
here. We have an idea, so we just want to find out what 
agencies--if you went down the agencies--for example, I know, 
because there are so many parks in the District of Columbia, 
that agencies hire, quote, temporary--the National Park Service 
hires temporary workers during peak periods. Now, there are 
parks and there are parks. But I wonder if they ask that 
question.
    Do you know about arrests? What does the Federal Government 
say on arrests?
    Ms. Kichak. The Federal Government does not--again, as 
we've said, it is agency-specific.
    Ms. Norton. So could you also ask that question of agencies 
with respect to arrests? Again, and the last question would 
only tell you where there is more to ask. You know, most people 
who put an arrest down would want to explain it.
    I was arrested in the city movement. I had to go before the 
bar. You can bet your bottom dollar I wrote down all I could 
about that arrest. I was even arrested when I was in law 
school, because they rounded up everybody when the head of one 
of our--this is in New Haven--one of our groups in the city had 
difficulties. So they brought all of us in. Law school saw to 
it that the couple of us who were brought in, because we were 
involved in the movement, that we--and I think others 
ultimately also--were released. We were questioned. But, hey, 
and while I think the arrest probably didn't take place, I 
think I revealed it on my bar, however.
    So I understand that, you know, agencies ought to look 
behind anybody who has said he has had any encounter with the 
law. What would bother me, though, in this period, particularly 
given the important work the Federal Government itself is 
doing, you heard the testimony of the Department of Labor, if 
we just continued, in light of what the general said, to 
operate in an atmosphere of ignorance. And that is why I am 
asking you to do that. See, I am not going to ask you whether 
or not, for example--and I gave as an example whether--a 
temporary worker at the National Park Service. You know, I 
don't know enough about it. I really don't. Also, there may be 
lots and lots of people who want these jobs. I have no idea. 
But it is because I have no idea that I think it would be 
foolhardy of us to simply try to legislate in the blind and 
tell the Federal agencies what to do. I do know that post-9/11, 
I don't fool with without knowing what I am doing.
    Ms. Kichak. We will survey the agencies and ask them that 
question.
    Ms. Norton. I would very much appreciate that.
    Thank you very much, Mr. Chairman.
    Mr. Davis. Let me thank all three of you for your 
participation and for your answers. And we will go to our next 
panel.
    And while we are changing panels, let me just introduce the 
third panel of witnesses.
    Mr. Paul Keefe is a staff attorney with the Community 
Service Society. He trains individuals with criminal histories 
and organizations that assist ex-offenders with employment 
discrimination.
    And Mr. Mark Earley became president of Prison Fellowship 
on February 1, 2002. Prison Fellowship works with thousands of 
churches and volunteers across the United States and prepares 
ex-offenders to reenter their communities.
    And our third witness is Mr. William R. Calhoun, Jr. He is 
corporate executive vice president for Clark Construction Co., 
and in this capacity Mr. Calhoun is responsible for Clark 
Construction's acquisition work and for overseeing the 
company's strategic focus on major projects. Gentlemen, let me 
thank you very much. And if you could stand and be sworn in. If 
you would raise your right hands.
    [Witnesses sworn.]
    Mr. Davis. The witness--the record will show that the 
witnesses answered in the affirmative. And we will begin with 
you, Mr. Keefe. Of course, your full statement is in the 
record. You have 5 minutes in which to summarize. The yellow 
light indicates you have a minute left, and the red light 
indicates that the time is up.
    We want to thank all three of you for being here with us, 
and we will begin with you, Mr. Keefe.

  STATEMENTS OF PAUL KEEFE, STAFF ATTORNEY, COMMUNITY SERVICE 
SOCIETY; MARK EARLEY, PRESIDENT, PRISON FELLOWSHIP MINISTRIES; 
 AND WILLIAM R. CALHOUN, JR., EXECUTIVE VICE PRESIDENT, CLARK 
                    CONSTRUCTION GROUP, LLC

                    STATEMENT OF PAUL KEEFE

    Mr. Keefe. Good afternoon, Chairman Davis and committee 
members. Thank you very much for the opportunity to appear 
before you today.
    As you mentioned, I am a staff attorney at Community 
Service Society, a 160-year-old antipoverty organization in New 
York City. On a daily basis, I help people who are encounter 
employment and licensure discrimination because of their 
criminal record, even after years of employment, education, 
sobriety, civic engagement, and lack of involvement with the 
criminal justice system. I thank you on their behalf for 
examining an issue vital to their individual self-fulfillment, 
our neighborhood safety and stability, and the fairness of our 
society as a whole.
    My full remarks discuss three federally regulated 
industries that provide jobs accessible to people of limited 
education and work history, but unavailable to people with 
criminal records. Many of these were discussed by Ms. Meyers-
Peeples. I will also discuss New York State laws that require 
individual determinations and sometimes a hearing before 
someone can be denied a job or license because of a criminal 
record.
    These remarks distill to two points: First, giving Federal 
agencies discretion to deny employment based upon any criminal 
conviction or requiring denials for certain misdemeanors 
disproportionately impacts poor and nonwhite individuals.
    Second, the Federal system lacks a uniform accessible 
process for individuals to demonstrate their rehabilitation and 
fitness for a job when they encounter a statutory barrier.
    As to my first point, some blanket bars are rationally 
related to the employment sought. Permissive bars, like those 
in the health care field and those based upon misdemeanors, 
however, are not. Overly aggressive policing and stops-and-
frisks in New York City, for example, among other localities, 
have resulted in increased convictions for low-level 
misdemeanors.
    While there is no excuse for breaking the law, we know that 
police encounters happen more often in poor and nonwhite 
neighborhoods. That is, in fact, the reason why blanket 
policies against hiring people with criminal records violate 
Title VII. Certain protected classes are stopped, charged, and 
convicted at a rate disproportional to their representation in 
the population. It is not fair to perpetuate discriminatory 
practices by adding barriers.
    As to my second point, again, the Federal system lacks a 
uniform and easy way to access this process by which 
individuals can demonstrate their rehabilitation and fitness 
for a particular job. Such policies ignore the reality of the 
reentry population today, many of whom can demonstrate 
significant personal accomplishment, growth, and stability.
    New York law, in contrast, requires employers and licensing 
agencies to make individualized determinations before a person 
can be legally denied, usually following statutory factors: 
First is the State's expressed public policy in favor of 
employing the formerly incarcerated; the job's necessary duties 
and responsibilities, and the convictions bearing on the 
applicant's fitness and ability to fulfill them; how long ago 
the offense occurred, how serious it was, and the applicant's 
age at the time; evidence from the applicant of rehabilitation 
and good conduct. The employer of the agency is allowed to 
consider their interests in protecting people and property. And 
the employing agency must also consider a certificate of relief 
from disabilities or certificate of good conduct, which are 
creatures of New York State law that create a presumption of 
rehabilitation and remove statutory bars to employment.
    As a result, I urge this committee to push for a top-down 
executive review of conviction barriers to Federal employment 
and determine whether they actually increase public safety, are 
based on real data on recidivism, and do not negatively impact 
the employment of nonwhite persons. The review should also 
consider ways in which to routinely consider individuals' 
rehabilitation, ensure fair employment decisions, and 
incorporate State mechanisms whereby people demonstrate 
rehabilitation, such like the certificates I mentioned earlier.
    The underlying concern for all laws and regulations 
hindering the employment of people with criminal records is the 
risk of recidivism and the resulting damage to persons and 
property. That is, given someone's record, we should have known 
that they would recidivate working at a job related to their 
record. While there is certainly room for limitations based 
upon rational public safety justification, when individuals are 
unable to find a job and recidivate, we can similarly say we 
should have known. Thank you.
    Mr. Davis. Thank you very much.
    [The prepared statement of Mr. Keefe follows:]
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    Mr. Davis. And we will go to Mr. Earley.

                    STATEMENT OF MARK EARLEY

    Mr. Earley. Mr. Chairman, Ranking Member Marchant, 
distinguished members of the committee, we thank you for paying 
attention to this issue, and thank you all for your leadership 
on the Second Chance Act.
    If I could for just a moment, I think it is important to 
recognize the environment that brings us all here. Chairman 
Davis, you mentioned this. The United States not only has the 
highest rate per capita of incarceration, but we have more 
people in prison today than any other Nation in the world. We 
have 2.3 million behind bars. China only has 1.5 million. The 
population has grown 600 percent in the last 25 years. We have 
700,000 almost coming out of prison every year. And the really 
bad news for us as governmental agencies is that 50 percent of 
those individuals are back in prison within 3 years.
    So the issue of jobs, ability to get a job is really 
critical, because so many of the studies have shown that 
getting a job postdischarge from prison is one of the really 
critical factors in being able to stay out of prison.
    I come at this maybe somewhat differently than others. I 
came from being involved in the State government for 15 year 
during a time when all of the States and the Federal Government 
were getting tough on crime. And all of those things we did to 
get people off the streets, we had a bit of an imbalanced 
approach, I think. We were very successful in getting them off 
the street; but what we weren't paying attention to is what 
could we do when they were in prison to get them ready to come 
back out on the street. And that is really the key public 
safety issue today.
    The key public safety issue is not how do we get more 
people off the street, but how do we get those who are in 
prison and get them ready to come back on the street, because 
they are all going to be our neighbors. And in this issue of 
job barriers, barriers to employment is critical, and that is 
the context in which we come here today.
    The importance of a job, I think, is common sense to 
everyone. It gives a financial base, it gives a stable base, 
and it gives structure. For former prisoners these things are 
acutely necessary, even more so than they are for someone who 
has never been in prison. Inmates coming out of prison have no 
means to support themselves unless they can get a job. Most 
have unstable family environments. They are going to have 
transient housing environments. And the job is often that first 
rung on the ladder that enables them to be successful.
    I categorize the barriers into three categories. One is 
personal, the other a prison-generated, and the third are legal 
and governmental, which we're really to talk about here today. 
But I don't think we can forget the other two.
    The personal barriers are that for many, many people in 
prison today, they suffer from educational accomplishment, no 
work environment, and very little job training. So they are at 
a disadvantage day one when they walk out of prison.
    Second, they have a prison barrier, and that is if you are 
a convicted felon, it is very difficult to get a job anywhere, 
I don't care who asks the question when. Sooner or later, you 
are going to be climbing a pretty steep staircase.
    The third are legal and governmental barriers, and they are 
probably the easiest to do something about, which is why I 
think it is so important that you are addressing them. There 
are direct and indirect legal and governmental barriers. On the 
direct ones, they take the form of basically disqualifying a 
felon out of the gate. For example, in most States today, of 
all the occupations that are licensed, from locksmith to 
barber, you can't have a felony conviction and get that license 
and get that job. It is interesting, for many, many years 
barber schools were one of the great trade schools in prisons, 
and yet today almost every State does not allow anyone to be a 
barber or a cosmetologist with a felony conviction.
    You all probably know that the Court Security Act that was 
passed last year asked the Justice Department to look at all of 
the barriers in the Federal Government in all 50 States to 
employment such as these. That has yet to be done. That would 
be a great first step to move forward, because once these 
barriers are identified, then you can ask what is a really 
important question, and that is, do they have any substantive 
and direct relationship to the job in question?
    I serve on the ABA Committee for Effective and Criminal 
Sanctions, and what we have said there is that any prohibition 
ought to have a direct and substantive relationship.
    Finally, I just want to say that indirect barriers, you 
cannot rent a motel room today, you cannot rent almost anything 
without a job, without a personal ID, either a DMV or a State 
ID. If the Federal Bureau of Prisons would require any inmate 
who is discharged to be given an ID by the Federal Bureau of 
Prisons, that would be a huge step.
    Finally, Mr. Chairman, I would say that after all these 
barriers are removed, it's kind of like you can lead a horse to 
water, but you can't make them drink. We have found in all of 
our work that unless there is someone who can walk a former 
inmate through all of these barriers and into the 
opportunities, you will have built something, but nobody can 
get to it, which is why we feel so strongly about mentors and 
why it is so important that both on the Federal and State 
sector there be continuing partnerships with nonprofits who 
have their finger on the pulse of the community for volunteers 
who are willing to provide that mentoring.
    Thank you, Mr. Chairman.
    Mr. Davis. Thank you very much.
    [The prepared statement of Mr. Earley follows:]
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    Mr. Davis. And we will go to Mr. Calhoun.

              STATEMENT OF WILLIAM R. CALHOUN, JR.

    Mr. Calhoun. Thank you, Mr. Chairman, and thank you, 
Ranking Member Marchant, for inviting us to be here today. My 
name is Bill Calhoun, I am executive vice president for Clark 
Construction Group, locatedor headquartered in nearby Bethesda, 
MD.
    Founded in 1906, our construction group LLC today is one of 
the Nation's most experienced and respected providers of 
construction services with over $2 billion of annual revenue 
and major projects throughout the United States. In 2007, we 
ranked 13th in the United States based on Engineering News 
Record Top 400 list.
    We perform a full range of construction services throughout 
the United States, from small interior renovations to some of 
the most visible architectural landmarks in the country, such 
as the Washington Nationals' ballpark, FedEx Field, the D.C. 
Convention Center locally, to the McCormack Place Convention 
Center in Chicago, Los Angeles County University of Southern 
California Hospital in Los Angeles, and Brooke Army Medical 
Center in San Antonio, TX.
    The foundation of all of our construction work is a solid 
relationship with both public and private clients who have the 
confidence to rely time and again on our experience, our 
financial strength, and our in-house expertise to make their 
vision a reality and to the commitments we make to the 
communities within which we work.
    We approach each project with a cooperative mindset, 
working with clients, architects, owners, and the community to 
the common goal; that is, successful project delivery. Our 
diverse construction portfolio and specialized divisions and 
subsidiaries ensure that each project is matched with the 
appropriate resources and expertise. Through technical school, 
preconstruction know-how, and self-performance capability, we 
anticipate project challenges, we develop solutions that meet 
clients' objectives, and ultimately deliver award-winning 
projects. In this way, our work today continues to meet the 
stringent standard of quality, safety, integrity that have been 
the company's core values since their founding in 1906.
    In the Washington, DC, area, Clark self-performs concrete 
and foundations work. That means we hire direct hourly labor to 
perform the work. In addition, Clark's subsidiary, Shirley 
Contracting, self-performs highway and bridge work in the 
Washington, DC, metropolitan area. Other work disciplines for 
the most part are subcontracted.
    This subcommittee requested that Clark address the issue of 
our experience hiring ex-offenders as part of our work force. 
As I just mentioned, we set and maintain stringent standards 
for quality, safety, and integrity. These apply to our entire 
work force. As a result, ex-offenders do not get a pass for 
poor behavior or poor work. They must meet the same high 
standards for doing the job as every other employee in our 
company.
    Having said that, I would like to use the Shirley 
Contracting Co. as an example of why and how we began employing 
ex-offenders and how that process has evolved into a successful 
program over the past 7 or 8 years.
    The highway and bridge division of Shirley encompasses the 
roadways and bridges we travel on in the Washington 
metropolitan area, but nowhere more so than in Fairfax County, 
VA, home of Shirley Contracting. From a simple turn lane on the 
Fairfax County Parkway, to the more complex Springfield 
interchanges, Shirley Contracting has been a key player in 
helping improve Virginia's roads and bridges. Shirley 
Contracting maintains a field labor force that varies from 300 
to 700 depending upon its workload.
    Fairfax County is a very competitive labor market, 
especially for unskilled, physically demanding work such as 
road and highway construction. We compete for these unskilled 
jobs against companies such as McDonald's, Wal-Mart, Costco, 
jobs at the mall, other unskilled employers. While we pay more, 
our work is physically demanding, typically outside in the heat 
and cold. Today is a great reminder of what it takes to be out 
in the heat. In a very competitive job market with low 
employment, maintaining a full work force complement can be 
difficult. It is these set of challenges such as this challenge 
that initially led us to hire or look at ex-offenders as 
another potential labor source.
    When we first started working with a ex-offenders, I cannot 
say the program was a roaring success. Just 1 out of every 10 
ex-offenders stayed more than 60 days. You should note that we 
do not just hire someone and say, go to work. Applicants must 
complete an application, pass a fitness for duty and a drug 
test, and provide proof of eligibility to work. We provide 
safety training, job training, orientation, safety equipment, 
work equipment, supervision, and oversight. We also provide 
health insurance, dental insurance, life insurance, 401(k), 
additional training, and opportunities for promotion. The first 
30 to 60 days involve a substantial amount of time and money in 
our part in each of our employees. Beyond the poor retention 
initially, we were also using a substantial amount of our HR 
personnel time to run the ex-offenders program.
    However, we did not give up after our initial poor results. 
Our HR staff and highway and bridge supervisors sought to 
understand why the retention level was so poor. We learned a 
few things about the ex-offender employees. Sometimes it was as 
simple as giving them an alarm clock to ensure they got up in 
the morning. Sometimes it was more complicated. For many, if 
not most, they no longer had a valid driver's license; a 
vehicle to drive to work was even a greater challenge. This 
simple ability of getting transportation to the job site in a 
manner that did not violate parole presented a challenge for 
many.
    Additional problems we discovered were many of the ex-
offenders had their first paycheck garnished for court costs, 
fines, back child support, and other liens. As a result, they 
may have earned a good wage, but ended up with only $15 or $20 
after taxes and garnishment. Working hard for 2 weeks for $15 
or $20 was not motivating to these ex-offenders.
    Yet, as we began to understand some of the challenges, we 
started to work with the ex-offenders and the courts to come up 
with the solutions to these and other challenges so they could 
continue to meet their legal obligations and also have enough 
money to live.
    Much of our success can also be credited to several 
outstanding programs, such as VASAVOR, Skill Source, and OAR. 
Each of these programs have done a great job referring 
qualified applicants to us who are willing and able to work 
hard and follow the rules that all of the Shirley and Clark 
employees must abide by. They have worked with the ex-offenders 
to come up with ride sharing, and even provided vehicles to get 
to job sites. VASAVOR has even started provided bonding for 
some ex-offenders, a real benefit from our perspective. In 
addition, we work with the Alexandria Seaport Foundation, which 
is a group that works with at-risk youth.
    In Virginia, all prisoners to be paroled or released back 
to Fairfax County must go back to the Fairfax County Jail 
within 45 days of their release. During these 45 days, they are 
assessed and determined if they are VASAVOR qualified. If so, 
they are assigned a number of services, including a caseworker 
that determines their skills. VASAVOR then may contact us 
regarding potential applicants. In recent years we have even 
gone into the Fairfax County Jail to hold a job fair with 
VASAVOR-qualified applicants.
    As a result of these programs and our becoming more skilled 
at working with the offenders, the ex-offenders, our retention 
rate has improved from 1 in 10 from when we first started to 6 
in 10 today. This 6 in 10 mirrors the general number of our 
employment at large. We still have to monitor which job sites 
ex-offenders are working at. We need to make sure, as an 
example, that sex offenders are not working on road projects 
near schools. These are liability issues that you would not be 
concerned with, yet it becomes with the territory of being a 
responsible employer and a good citizen.
    As with any construction work force, the total number of 
ex-offenders rises and falls with the workload. Currently we 
have about 35 ex-offenders employed in our highway and bridge 
division. I should note, they have been employed for more than 
1 year. This is not a constant number. This summer we expect to 
add more ex-offenders as our highway and bridge division work 
picks up in the coming months. We expect it to be in the 6 to 
10 percent or 7 to 10 percent range.
    Today we have a number of ex-offenders that have been with 
our companies for 3 or more years. Some have moved into skilled 
positions. At least one is a supervisor. At Clark we believe 
that all of our employees can and do contribute. In a few cases 
we have placed an ex-offender on leave of absence and held that 
job open for the person for when they returned to work because 
the violations, the parole violations, may have been unrelated 
to the work.
    We have learned to work with our ex-offender employees just 
as we would work with any of our employees. Our employees have 
good jobs, they pay taxes, they work to vest in the company's 
retirement system and vest in their future.
    As I said at the beginning, all of our employees work today 
to meet the stringent standards of safety, quality, and 
integrity, the company's core values.
    Thank you for the opportunity to tell you what we at Clark 
and Shirley have been doing. I will be happy to answer any 
questions that you may have.
    Mr. Davis. Thank you very much.
    [The prepared statement of Mr. Calhoun follows:]
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    Mr. Davis. And I will go directly to Mr. Marchant.
    Mr. Marchant. Thank you, Mr. Chairman.
    Mr. Earley, do you find that the general public's attitudes 
about ex-offenders prevent them from giving the offenders, the 
ex-offenders, a fair chance to succeed in the workplace?
    Mr. Earley. Well, I think there is some bias in that 
regard, and I think there always will be a bit. But I have seen 
a radical change over the last 10 years in particular. I think 
the reason is, once you get up to a level, as we are today, 
where 1 out of every 32 adults are either behind bars or on 
probation or parole, the idea of having been incarcerated is 
not something that is foreign to everybody anymore. So almost 
everybody today literally has had either a member of their 
family or a friend or someone they know who has been behind 
bars, and they know those individuals, the vast majority of 
them, have some redemptive possibilities, both in the 
workplace.
    In addition to that, a Zogby poll was done in 2006 that 
showed that 76 percent of voters in America thought that 
something other than a punish model in prison was appropriate, 
i.e., rehabilitation; and 80 percent thought that 
rehabilitation ought to continue postprison. So I think those 
are positive signs in terms of what we are talking about today.
    I do think that for many employers in the private sector, 
the issue of liability is a very constraining issue, and so 
they tend to take a super cautious position even when the crime 
doesn't have necessarily a direct or substantial relationship 
to the job.
    Mr. Marchant. And when you are talking to ex-offenders, 
when you are talking to prisoners about their prospects, has 
the general attitude of the prison population improved with 
their prospects of getting a job on the outside? Are they aware 
yet that there are jobs available?
    Mr. Earley. I think most of the prisoners in prison coming 
out feel like they have a very difficult, steep hill to climb 
to get employment. Even those who have training, even those who 
are going to come out with some things like IDs, they know 
there's going to be difficulties.
    I will give you two quick examples. I got a call this week 
for someone who has been out of prison for 6 years now. They 
got their college degree, they were actually a Colson Scholar 
at Wheaton University. They got their degree in counseling. 
They were employed in a nearby State in an eating disorders 
clinic giving counseling. They disclosed their felony 
conviction up front, they were hired, and 4 months later were 
told that the company has a blanket prohibition against hiring 
any felons who are counselors or they would lose their 
licensing from the State. So it is those sorts of things that 
make it very difficult.
    Construction jobs are one of the best fields around. So we 
spend a lot of time trying to interface with companies that are 
very forward-looking, I think like Clark, in trying to push 
employees in that direction. But not every company is as 
enlightened in their approach as Clark Construction Co. is.
    Mr. Marchant. So the chances of recidivism taking place in 
an employee that finds their place in a company like his, the 
recidivism rate will go way down?
    Mr. Earley. Absolutely. Absolutely.
    Mr. Marchant. And is most of your work in State prisons, or 
is it Federal?
    Mr. Earley. State and Federal. The majority would be in 
State prisons just because there is more of them.
    Mr. Marchant. And I suppose the Federal, there are 
employees that are not going to be near their place where they 
are going to go back to work.
    Mr. Earley. As with a lot of State prisons, most people who 
get released from prison, whether it is the Federal or State 
prison, they are not getting released to somewhere near the 
prison. They are coming back from where they were sentenced. 
And there has been a deliberate policy, another negative factor 
over the last 15 to 20 years, to incarcerate people away from 
where they live. So that means they are coming back to 
communities from which they have had very little contact with, 
even in terms of visitors, in many cases their families, 
because they couldn't get to them. So, again, that makes it 
more difficult.
    Mr. Marchant. And are you finding that the job programs 
inside the prisons are relevant to their possibility of 
employment on the outside?
    Mr. Earley. I would say it is very spotty. I served in the 
Legislature of Virginia for 10 years. Correctional budgets that 
have to do with job training and education are the first to be 
cut; they are the last to be restored. So it really depends on 
what prison you are. If you have a very entrepreneurial warden, 
even if there is not a lot of money available from the State, 
he makes a way or she makes a way. But I would say, generally 
speaking, rehabilitation efforts including any job efforts are 
very, very spotty across the U.S. prison system today.
    Mr. Marchant. Do you find that most groups that come into 
prisons are coming in on a spiritual--trying to make some kind 
of a spiritual impact in lieu of a practical job training? 
Would a prison allow a ministry to come in and focus primarily 
on job training instead of the spiritual aspect?
    Mr. Earley. I would say yes. Part of the problem 
historically, and it is still an evolving issue, is for many 
prison systems they want to own everything they do. The idea of 
partnering with a nonprofit, be it faith-based or nonfaith-
based, in a very integral way inside of the prison, even if it 
is very close to pre-release, is a relatively new thing. And 
when a prison system administrator is told your first priority 
is security, they are not necessarily all that eager to open up 
the doors to let volunteers come in, whether it is life 
transformation on a spiritual level, a mental level, an 
intellectual level, or job training.
    But that is changing, too, because all of the States, as 
well as the Bureau of Prisons, everybody is choking on this 
financial drain of the policies we have adopted over the last 
20 years and the high recidivism rates. So they are looking for 
a way to accomplish this without spending more money, and the 
nonprofit community is stepping forward. And, quite frankly, 
from our standpoint, to the extent there is a line at the door 
of people willing to help inmates, many of them are coming from 
the faith community because there is something in their DNA 
that is compelling them to reach out and love people that other 
people don't want to love.
    Mr. Marchant. And are you finding that the actual job 
training, I guess the actual job training that is taking place, 
does it relate to the actual jobs that they can get when they 
walk out the door?
    Mr. Earley. Just to give you a ballpark, I would say maybe 
50 percent of the time.
    Mr. Marchant. Thank you very much.
    Mr. Davis. Thank you very much, Mr. Marchant.
    Let me ask Mr. Keefe, are you familiar with Federal 
Government agencies that routinely deny ex-offenders work 
opportunities?
    Mr. Keefe. Some of them I am personally. The main one would 
be people who have trouble getting jobs at airports. As I 
mentioned in my testimony, I work with a State-sponsored job 
development organization that provides one-stop services to 
people, many who are exiting incarceration, and they put up on 
their boards job postings for all these places. And they say--
they write on the job postings for the airports, if you have a 
record, don't apply. And, of course, they shouldn't be doing 
that, but that is--based upon their experience, no one with a 
record gets hired at the airport because of the security 
clearances.
    Mr. Davis. You were here when we heard testimony from the 
Office of Personnel Management. Are there any partnerships that 
perhaps you can think of or any recommendations or suggestions 
that you might have for them relative to how they may view this 
issue and this problem?
    Mr. Keefe. I have a few. First of all, I think that when 
Federal policies reach down to the misdemeanor level and start 
barring people at that level, nationwide you end up catching 
lot of people that are sort of casually involved with the 
criminal justice system. And as I said before, there is no 
excuse for doing anything wrong, but I have sat in drug court 
with a client for 3 hours, and I hear four or five people get a 
misdemeanor drug conviction, and then for some of these 
agencies that pretty much shuts the door for them.
    So when you go--I think we can all agree that felony 
convictions involve much more serious activity. When you have 
these policies that affect things on the misdemeanor level, I 
think you end up catching a lot of people that, given the 
opportunity to have a steady job and show their rehabilitation, 
would not be involved with the criminal justice system anymore.
    I also think that a review of the policies that the Federal 
Government has to make sure that they are connected to real 
data on recidivism will make sense to make sure that the bars 
that do exist are rational from a public safety perspective.
    Mr. Davis. How effective, I guess I would say, would you 
say that the work being done in New York relative to looking at 
the whole issue of discrimination--would you say that work is 
progressing that would protect, I guess, an individual's right 
to employment or an opportunity for employment?
    Mr. Keefe. Our biggest problem in New York is lack of 
education on the behalf of employers about what the law 
requires, and we do have a lot of work to do about that. My 
colleague here mentioned that employers are often concerned 
about negligent hiring, and the city bar has just come out with 
a report that says if you follow article 23(a), which is the 
part of the corrections law that contains the protections that 
I've described, that you should be immune from negligent hiring 
liability. And I think that is more education we need to do on 
that perspective.
    As a lawyer it gives me something to hang my hat on when I 
go into court for someone who has been illegally denied a job, 
and I think that is a great boon for us. But there aren't 
really--more could be done as far as making processes 
accessible to people without a lawyer to come and enjoy the 
rehabilitation.
    So I think a combination of creating those processes and 
also doing education amongst employers and agencies about what 
the law actually requires and how to properly evaluate evidence 
of rehabilitation still needs to be done.
    Mr. Davis. Thank you very much.
    Mark, I'm struck by the fact that much of the leadership 
coming out of Prison Fellowship, individuals have also had 
legislative and governmental experience. I think of yourself, I 
think of people like Pat Nolan and others. How helpful has that 
been in terms of helping promote the effectiveness of Prison 
Fellowship in terms of getting people to listen to you?
    Mr. Earley. Well, I think it has been helpful, particularly 
if you look at Pat Nolan, who's also here with me today, who is 
president of Justice Fellowship at Prison Fellowship. You know, 
both of us when we served, Pat in the California Legislature 
and then I in the Virginia Legislature, in the attorney 
general's office, I mean, we were part of the tough-on-crime 
movement. And, you know, when I say today that, OK, we were 
successful in getting people off the street, but we had an 
imbalanced approach, it's not working now the way we 
constructed it, we need to go back and take a look at it; that 
the real public safety issue today is what are we going to do 
with people getting out of prison, not how many more people we 
can put in. I do think that helps set a different tone. And we 
have found that today in the United States, whether it's in the 
State legislature or here on Capitol Hill, people on both sides 
of the aisle from every political spectrum understand that the 
real issue today we need to focus on is how do we as 
legislatures and policymakers--help these individuals that are 
in prison, who the vast majority of them are coming out, get 
ready to return and return successfully, otherwise we're going 
to have a significant crime problem on the back end.
    And so I think it has been helpful. And I think we've seen 
some significant movement. I do think there's still some 
reluctance on many people in office to go back and rethink some 
of these things or bring a more balanced approach, but I think 
it's changing.
    Mr. Davis. And you would agree that unless we find--no 
matter how difficult it appears to be, that unless we do a 
better job of finding employment opportunities for these 
individuals, that--I mean, our crime problem and criminal 
justice problem and cost is just going to be beyond anything 
that we can almost imagine.
    Mr. Earley. No question about it. I agree with you 
completely. I was in California last week. California's an 
example of a State that's being swallowed up by its 
correctional budget and the recidivism rate that's going on in 
the prisons there. In all of the States in the United States, 
the average between 1985 and today, the increase in higher 
education spending was 25 percent; the increase in correctional 
spending has been 125 percent. And a great deal of it has been 
refueled by recidivism, and a great deal of that has been 
fueled by people who have not been given an opportunity to 
change their lives and to get meaningful employment when they 
come out.
    Mr. Davis. Mr. Calhoun, I am struck by the fact that Clark, 
one of the largest construction companies in the country, and, 
from everything that I hear, one of the best construction 
companies----
    Mr. Calhoun. Thank you.
    Mr. Davis [continuing]. In the country, is able to have a 
program where you hire individuals who've obviously had 
problems, yet you maintain your standards. You're able to bid 
successfully on projects and continue to get work. How did this 
happen? I mean, how----
    Mr. Calhoun. Thank you for your comments, your favorable 
comments.
    I think if you think back to the year--6 or 7 years ago 
when Shirley Contracting, in my example, first started, it was 
a time where there was high employment, there was a lot of 
work, there was a need for manpower in the construction 
business. We didn't know where we were going to get all the 
manpower to execute all the work that was out there; that if we 
had the manpower, we could go build. So they were looking all 
over for viable sources of manpower to hire and train. And 
that's how the initial--start hiring of ex-offenders.
    I think one of the organizations--it may have been 
SkillSource or OAR reached out to us, I think was probably the 
first contact. And it begun a long relationship that we found 
has been very helpful. And as I said in the testimony that we 
find now statistically at least with the Shirley Contracting 
Group that 6 of 10 of the ex-offenders generally stay with us 
longer than 60 days, which mirrors the general work force that 
we have.
    So the marriage with the nonprofit or governmental agencies 
that help do some screening and placement, they've come into 
our organization enough to understand what kind of individuals 
and skill sets and trades that we're looking for so that their 
ability to place qualified applicants that have a higher 
likelihood of staying with us and that are trainable has 
increased. And then our ability and knowledge of how to work 
with each of these organizations has improved as well.
    I can't say enough how these organizations help with the 
identification, training, employment, and then during that 
first couple of months while the individual comes out of 
incarceration and overcomes the basic life hurdles of 
transportation, driver's license, getting to work, getting up 
and those sorts of things, the agencies help nurture through 
that time where we can actually train people and create long-
term good employees.
    Mr. Davis. As you bid on projects and look at 
opportunities, have you ever had any governmental agencies to 
express any concerns that you may be hiring individuals who 
have been convicted, and that some of these may be funded--some 
of these projects may be funded with public money or government 
money, or it's for a government agency?
    Mr. Calhoun. Sir, if I understand your question, sir, it's 
has the potential contracting--government contracting agency 
expressed a desire that we should or should not be hiring ex-
offenders?
    Mr. Davis. Yeah.
    Mr. Calhoun. Only in the sense of classified work where 
there's different levels of regulation with regard to the 
background and background checks for the Confidential, Secret, 
Top Secret type of work. But other than that, I'm not aware of 
any governmental agencies having expressed any desire at all 
that we should or should not do it. I think there are--it's not 
infrequent when we obtain or are awarded a job in a particular 
municipality that agencies such as those that deal with ex-
offenders would contact us and ask us to open our doors or 
consider hiring ex-offenders, much like other groups that 
represent other labor sources. And we typically do open our 
doors to--in any local that we've worked or anyone who has an 
interest in providing labor--to learn what that market has to 
offer and how we can help and try to match our needs with their 
skill sets.
    Mr. Davis. Well, gentlemen, let me thank all of you. I 
think there is a realization that there are no simple solutions 
to very complex problems, and that this is one of the most 
perplexing problems and issues that face our country, quite 
frankly, today. And I'm of the opinion that every time we get a 
little progress--I come from the school of thought that says if 
you want to go south, the first thing that you do is turn and 
face that direction. And every time you take a step, you get a 
little bit closer to Richmond. But if you you're headed up 
toward Baltimore, chances are you're not going to get down in 
the Shenandoah Valley. You just won't get there.
    So every bit of this is a little bit of movement, a little 
bit of change, a little bit of possibility, a little bit of 
hope for those millions of people, quite frankly, when you 
consider the individuals on probation, the individuals on 
parole, the individuals who came out last year, the individuals 
who came out the year before last, the individuals who not only 
are impacted themselves, but, quite frankly, everybody with 
whom they have any kind of intimate relationship are also 
seriously impacted.
    And so I thank all of you for being here this afternoon, 
and I thank all of those who have come to listen to the 
testimony, and we'll keep plugging along.
    Mr. Earley. Thank you, Mr. Chairman.
    Mr. Davis. This hearing is adjourned.
    [Whereupon, at 4:17 p.m., the subcommittee was adjourned.]

                                 
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