    [House Hearing, 111 Congress]
    [From the U.S. Government Publishing Office]

     COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTIONS: BARRIERS TO REENTRY
                         FOR THE FORMERLY INCARCERATED

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

                                    HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON CRIME, TERRORISM,
                             AND HOMELAND SECURITY

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED ELEVENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                  JUNE 9, 2010

                                   __________

                               Serial No. 111-139

                                   __________

             Printed for the use of the Committee on the Judiciary

          Available via the World Wide Web: http://judiciary.house.gov

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                           COMMITTEE ON THE JUDICIARY

                     JOHN CONYERS, Jr., Michigan, Chairman
    HOWARD L. BERMAN, California         LAMAR SMITH, Texas
    RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr.,
    JERROLD NADLER, New York                 Wisconsin
    ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
    MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
    ZOE LOFGREN, California              BOB GOODLATTE, Virginia
    SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
    MAXINE WATERS, California            DARRELL E. ISSA, California
    WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
    STEVE COHEN, Tennessee               STEVE KING, Iowa
    HENRY C. ``HANK'' JOHNSON, Jr.,      TRENT FRANKS, Arizona
      Georgia                            LOUIE GOHMERT, Texas
    PEDRO PIERLUISI, Puerto Rico         JIM JORDAN, Ohio
    MIKE QUIGLEY, Illinois               TED POE, Texas
    JUDY CHU, California                 JASON CHAFFETZ, Utah
    TED DEUTCH, Florida                  TOM ROONEY, Florida
    LUIS V. GUTIERREZ, Illinois          GREGG HARPER, Mississippi
    TAMMY BALDWIN, Wisconsin
    CHARLES A. GONZALEZ, Texas
    ANTHONY D. WEINER, New York
    ADAM B. SCHIFF, California
    LINDA T. SANCHEZ, California
    DANIEL MAFFEI, New York
    JARED POLIS, Colorado

                Perry Apelbaum, Staff Director and Chief Counsel
          Sean McLaughlin, Minority Chief of Staff and General Counsel
                                     ------

            Subcommittee on Crime, Terrorism, and Homeland Security

                 ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman

    PEDRO PIERLUISI, Puerto Rico         LOUIE GOHMERT, Texas
    JERROLD NADLER, New York             TED POE, Texas
    ZOE LOFGREN, California              BOB GOODLATTE, Virginia
    SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
    MAXINE WATERS, California            J. RANDY FORBES, Virginia
    STEVE COHEN, Tennessee               TOM ROONEY, Florida
    ANTHONY D. WEINER, New York
    MIKE QUIGLEY, Illinois
    TED DEUTCH, Florida

                          Bobby Vassar, Chief Counsel

                        Caroline Lynch, Minority Counsel

                                C O N T E N T S

                                  ----------

                                  JUNE 9, 2010

                                                                       Page

                               OPENING STATEMENTS

    The Honorable Robert C. ``Bobby'' Scott, a Representative in
      Congress from the State of Virginia, and Chairman, Subcommittee
      on Crime, Terrorism, and Homeland Security.....................     1
    The Honorable Louie Gohmert, a Representative in Congress from
      the State of Texas, and Ranking Member, Subcommittee on Crime,
      Terrorism, and Homeland Security...............................     3
    The Honorable John Conyers, Jr., a Representative in Congress
      from the State of Michigan, and Chairman, Committee on the
      Judiciary......................................................     4

                                   WITNESSES

    Mr. Marc Mauer, Executive Director, The Sentencing Project,
      Washington, DC
      Oral Testimony.................................................    12
      Prepared Statement.............................................    15
    Mr. Maurice Emsellem, Policy Co-Director, National Employment Law
      Project, Oakland, CA
      Oral Testimony.................................................    29
      Prepared Statement.............................................    31
    Mr. Calvin Moore, D.C. Employment Justice Center, Washington, DC
      Oral Testimony.................................................    45
      Prepared Statement.............................................    47
    Mr. Richard A. Lewis, Fellow ICF International, Fairfax, VA
      Oral Testimony.................................................    49
      Prepared Statement.............................................    51
    Ms. Pamela K. Lattimore, Ph.D., Principal Scientist, RTI
      International, Research Triangle Park, NC
      Oral Testimony.................................................    58
      Prepared Statement.............................................    60
    Mr. Richard T. Cassidy, Hoff Curtis, Burlington, VT
      Oral Testimony.................................................    73
      Prepared Statement.............................................    75

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Prepared Statement of the Honorable John Conyers, Jr., a
      Representative in Congress from the State of Michigan, and
      Chairman, Committee on the Judiciary...........................     6
    Prepared Statement of the Honorable Steve Cohen, a Representative
      in Congress from the State of Tennessee, and Member,
      Subcommittee on Crime, Terrorism, and Homeland Security........    10

                                    APPENDIX

    Material Submitted for the Hearing Record........................   151

     COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTIONS: BARRIERS TO REENTRY
                         FOR THE FORMERLY INCARCERATED

                                  ----------

                            WEDNESDAY, JUNE 9, 2010

                  House of Representatives,
                  Subcommittee on Crime, Terrorism,
                                  and Homeland Security
                                    Committee on the Judiciary,
                                                        Washington, DC.

        The Subcommittee met, pursuant to notice, at 10:20 a.m., in
    room 2141, Rayburn House Office Building, the Honorable Robert
    C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
        Present: Representatives Scott, Conyers, Pierluisi, Jackson
    Lee, Cohen, Quigley, and Gohmert.
        Staff Present: (Majority) Bobby Vassar, Subcommittee Chief
    Counsel; Jesselyn McCurdy, Counsel; Veronica Eligan,
    Professional Staff Member; (Minority) Kimani Little, Counsel;
    Art Baker, FBI Detailee; and Kelsey Whitlock, Staff Assistant.
        Mr. Scott. Good morning. The Subcommittee will now come to
    order. Welcome to today's Subcommittee hearing on Collateral
    Consequences of Criminal Convictions: Barriers to Reentry for
    the Formerly Incarcerated.
        As the historic Second Chance Act 2-year authorization will
    expire on September 30, the law authorizes Federal grants to
    government agencies and swe non-profit organizations in order
    to better address the needs of the growing population of ex-
    offenders returning to their communities. As Congress continues
    to evaluate the implementation of the Second Chance Act,
    today's hearing will examine some of the continuing barriers
    that former offenders in this country face as they reenter
    society.
        This is the second hearing we have had on this issue, the
    first on voting rights. But in 2008 more than 735,000
    individuals were released from Federal and State prisons. In
    addition, over 9 million were released from local jails.
    According to the Bureau of Justice statistics, in that same
    year more than 7.3 million people were on probation or parole
    or in prison, which equals 1 out of every 31 adults, the
    highest rate in the world.
        A recent Pew Center report noted that any benefits from
    incarceration begin to have diminishing returns after about 300
    per 100,000 population and any rate above 500 per 100,000 are
    counterproductive. The United States' rate is over 700 per
    100,000 already.
        In addition to those serving or those who have served
    prison time, even a larger number have been convicted of a
    criminal offense without going to prison. Millions are being
    released from prisons, jails, probation and parole supervision
    every year. They must either successfully reintegrate into
    society or be at risk of reoffending.
        People who are convicted of a crime are subject to a number
    of additional civil penalties that remain with them long after
    they have served their sentence. Often referred to as
    collateral consequences, these penalties take different forms
    at the Federal and State level.
        These collateral sanctions create roadblocks for
    individuals who are trying to rebuild their lives during the
    critical period following incarceration. For example, many
    States deny people with certain felonies the right to vote,
    which in turn discourages that person from participating in the
    political process.
        One of the most important aspects of reintegrating in
    society is the ability to obtain and maintain employment.
    Limited employment opportunities are perhaps the most serious
    of the secondary legal consequences of a conviction since an
    inability to keep a job often leads to recidivism.
        Federal law requires background checks and mandates
    disqualification of job applicants based on convictions in a
    number of occupations, including education, health care
    services, child and elder care, financial institutions, and
    transportation. Also, unskilled and semiskilled occupations are
    regulated by occupational licensing and employment laws.
        Employers in a growing number of professions are barred
    from State licensing agencies from hiring people with a wide
    range of criminal convictions, even convictions that are
    unrelated to the job or occupational license. In some States,
    occupations such as cosmetologists or barbers are prohibited
    from receiving licenses if they have criminal records.
        These collateral consequences contribute to the
    historically high rate of recidivism. Nationally two-thirds of
    returning prisoners are rearrested for new crimes within 3
    years.
        Moreover, the public availability of criminal records
    through the Internet had made it more difficult for offenders
    to return to society. According to the Department of Justice,
    in 2006 nearly 81 million individuals were in the criminal
    history files of the State criminal history repositories.
        When information is inaccurate, as in the case with over 50
    percent of FBI criminal records, according to a DOJ report, it
    makes it even more difficult to find a job. I have introduced a
    bill, The Fairness and Accuracy in Employment Background
    Checks, that will require the FBI to clean up its records and
    provide employers with accurate criminal histories.
        Even the Supreme Court in a recent decision of Padilla v.
    Kentucky has recognized the serious implications of collateral
    consequences. The petitioner, Mr. Padilla, was a lawful
    permanent resident of the United States for over 40 years. He
    pleaded guilty to a felony and relied on his defense counsel's
    advice that his guilty plea would not result in his
    deportation. But shortly after his conviction Padilla's guilty
    plea did in fact lead to the start of deportation proceedings.
    The Court overturned the sentence and held that defense counsel
    must inform a client whether his plea carries a potential of
    deportation or risk not providing the client with effective
    legal assistance.
        I look forward to hearing from our witnesses about these
    barriers and how we can provide ex-offenders an opportunity to
    rehabilitate themselves, successfully reenter their
    communities, reduce the future incarceration costs, and reduce
    the chance that people will be victims of crimes.
        At this point, I yield to the Ranking Member of
    Subcommittee, Judge Gohmert.
        Mr. Gohmert. Thanks, Chairman Scott.
        Research estimates indicate that over 95 percent of
    currently incarcerated individuals will eventually be released
    back into communities across America. Studies show also that,
    unfortunately, about two-thirds of them will recidivate within
    3 years. High recidivism rates not only decrease the safety of
    the neighborhoods affected by crime but also increase
    government expenditures on prisons and criminal justice
    systems.
        As Members of Congress, we have the responsibility to enact
    robust criminal laws to protect Americans from harm. We have
    simultaneously the duty to ensure that taxpayer money is wisely
    and efficiently spent. Recidivism among former criminals is
    increasingly a budget strain. Congress should, as we are, seek
    out new approaches that facilitate reintegration of criminals
    in the community, rather than continuing to appropriate Federal
    funds to expensive failing programs.
        Faith-based prisoner rehabilitation and post-release
    programs have proven successful in reducing the likelihood that
    a prisoner will reoffend. In 2009, Mr. Lewis testified that the
    faith-based Interchange Freedom Initiative reduced recidivism
    among its participants by over 50 percent. Congress should not
    discredit religion's role in facilitating reintegration in
    curbing criminal propensities. Faith-based programs are also
    frequently less expensive than other reintegration initiatives.
        When we debated the Second Chance Act of 2007 last
    Congress, I supported including a provision to fund faith-based
    initiatives because of the proven success in cost efficiency.
    As Federal deficits continue to skyrocket, Congress cannot
    afford to ignore innovative initiatives while funding
    traditional programs that have only mediocre results.
        In fiscal year 2009, $25 million was processed by the
    Federal Government and then returned to fund State and local
    initiatives. This included $15 million for State and local
    reentry demonstration projects and $10 million for grants to
    non-profit organizations for mentoring and other transitional
    services.
        In fiscal year 2010, Congress appropriated $100 million for
    Second Chance Act grants. President Obama has requested yet
    another $100 million for fiscal year 2011, though the Act has
    not been reauthorized.
        Currently, 6.7 million people make up the Federal and State
    correctional population. Approximately 800,000 of these men and
    women return home to their communities each year. These
    statistics highlight the important responsibility State and
    local governments have in implementing programs to ease the
    transition for offenders. The Second Chance Act shifts the
    State and local burden to the Federal Government. It addresses
    the problem of prisoner reentry through inefficient channeling
    of Federal funds to State and local organizations.
        I question whether taxing to bring dollars to Washington so
    we can take a cut for the Federal Government and then only
    return the remainder to State and local governments is as
    efficient, when actually we might be better off having that tax
    money stay at the State and local level without funneling it
    through Washington to get our cut.
        As a former State judge, I strongly support efforts to
    develop new approaches to reduce recidivism by assisting ex-
    convicts in their reentry into communities. However, we can no
    longer afford to spend Federal money on inefficient State and
    or local reintegration programs.
        I look forward to hearing from our witnesses today, getting
    their perspectives, and I appreciate you for this opportunity.
    Thank you.
        Mr. Scott. Thank you.
        We have been joined by the Chairman of full Committee, Mr.
    Conyers.
        Mr. Conyers. Thank you, Mr. Chairman.
        This is a very important subject matter; and, of course, we
    wouldn't about talking about this unless Marc Mauer was in the
    room as a witness.
        But I wanted to thank Judge Gohmert, who was with us
    yesterday in Los Angeles as we examined the NBC-Comcast merger;
    and it was a very good hearing. I don't know what you are going
    to do with the 5-minute rule today, but if you knew how much
    time Judge Gohmert used up at that hearing--and it was very
    well-spent, too, the time and the questioning. As a matter of
    fact, after he had asked his questions, you couldn't stop--the
    witnesses all wanted--they almost demanded an opportunity to
    respond to these questions.
        But this Committee does so much important work. You and
    Danny Davis started off with the Second Chance Act, and our
    staff man on the Committee was reminding me that the Second
    Chance Act--and I always look for a chance to praise a former
    Republican President--came out of George Bush's State of the
    Union address, and it was picked up by you and Danny.
        We ended up with 24 Republican cosponsors of the bill,
    including Chris Cannon of Utah; Lamar Smith of Texas, our
    Ranking Member; Steve Chaffetz of Cincinnati, Ohio; Jim
    Sensenbrenner, the former Chairman of the Committee; Adam
    Schiff; Sheila Jackson Lee; and many others.
        What I am indicating is the bipartisan nature of this
    activity and the importance of what we are doing here today,
    and this is why I count this as an exceedingly important
    hearing.
        Now, here is the challenge, and I am looking for some
    responses. I haven't found it in any of the statements of the
    six witnesses. How can we look into the Second Chance
    consideration and all of these--we have got a system now--I
    will never forget the former inmate, as he was going out and
    was saying goodbye to one of the keepers, and he said, don't
    worry. You will be back. I will be waiting for you when you
    come back.
        This is the nature of the atmosphere that we are in. As
    Judge Gohmert said, most of them recidivate, some much sooner
    than others.
        Now what can somebody do that has been incarcerated for
    years. He may have a bus ticket. He certainly has no clothing.
    He has no prospects of a job. He doesn't even know who still
    lives in the city he came from. Of course he is going to
    recidivate.
        But the additional problem we are faced with is that we are
    in--our Administration calls it a heightened recession. In some
    areas, we are in a depression. Now, come on, folks, who is
    going to hire a former felon and people who, through no fault
    of their own, are running out of unemployment benefits?
        Housing foreclosures are predicted to be higher this year
    than they were last year, and my city and State was at the top
    almost all the time in unemployment and foreclosure.
        So for us to be talking about how we strengthen this bill--
    and the fact of the matter is we are in a recession everywhere
    and a depression in many other places--does not conform with
    reality, and that is why my remarks are on creating a full
    employment system which some of you are already aware of. I
    don't know what the witnesses think of this, but it seems clear
    to me that we are not going to strengthen it; and, even if we
    do, what are we going to do with all the people that haven't
    been in the judicial system, the criminal justice system?
        So we have got to start thinking about the responsibilities
    of the government to create a full employment society when the
    private sector can't do it, and that is why I have rewritten
    the Humphrey-Hawkins Full Employment and Balanced Growth Act to
    accommodate that. That goes back to 1978. We had this huge
    battle. I will never forget it. Coretta Scott King had to fly
    up. They almost--we passed it in the House with Gus Hawkins,
    but they were going to scuttle it. And, fortunately, she was
    there and said that she wanted it to stay alive.
        Unfortunately, it was never enforced; and so I just want to
    make sure that all of our witnesses and everybody on the
    Committee is thinking about the connection.
        And I will put the rest of my----
        [The prepared statement of Mr. Conyers follows:]

                                   __________

        Mr. Gohmert. Mr. Chairman, will you yield?
        Mr. Conyers. Sure, judge.
        Mr. Gohmert. I think we all agree on the end--one of the
    things that I saw as a judge, statistics, 70 percent or more
    were either addicted to drugs or alcohol. And one of the
    problems that I saw in Texas was while people were incarcerated
    we didn't deal with that problem adequately; and something was
    created called Substance Abuse Felony Punishment facilities,
    where, basically, you went through AA while you were there.
    There was high school or college courses.
        And so, just to plant this seed, to get full employment
    after people are released, it seems like we needed to do a
    better job of helping them deal with their addiction while they
    are incarcerated and getting them the education that they
    didn't have when they came there so that they are better
    prepared. But just from personal experience that seemed to be a
    shortcoming in the Texas system, and I was pleased when the
    SAFP system was developed.
        But I have heard from colleagues--I hope it isn't true--
    that is where major cuts are being made in the very areas that
    seem to be doing the best job toward preparing people for the
    future.
        Appreciate the Chairman's indulgence.
        Mr. Scott. Thank you.
        We will ask the other Members, if they would, to place
    statements in the record, unless you have a very brief
    statement.
        [The prepared statement of Mr. Cohen follows:]

                                   __________
        Mr. Pierluisi. I will just wait for the witnesses to start,
    and then I will ask some questions.
        Mr. Scott. I thank the gentleman from Puerto Rico.
        We have a distinguished panel of witnesses who will help us
    consider the important issue today.
        Our first witness is Marc Mauer, the Executive Director of
    The Sentencing Project. He is one of the Nation's leading
    experts on sentencing policy, race in the criminal justice
    system, and the author of several books.
        The second witness will be Maurice Emsellem, Policy Co-
    Director of the National Employment Law Project. He has worked
    on collaborations with organizers and advocates that have
    successfully modernized State unemployment insurance programs,
    created employment protections for workfare workers, and
    reduced unfair barriers to employment of people with criminal
    records.
        Our third witness is Calvin Moore, a native of Washington,
    D.C. He struggled with the criminal justice system as a young
    adult, was incarcerated over 20 years ago but has since been
    trying to rebuild his life. He found several jobs at private
    companies and with the D.C. Government as a professional driver
    until 2007 when he was laid off. Since that time, he has been
    trying to find work and has applied for about 42 different
    positions. He has been turned down by all of them, primarily
    because of his criminal records.
        Our next witness is Richard Alan Lewis, who is the senior
    manager of ICF International, a global professional services
    firm. He manages the National Responsible Fatherhood
    Clearinghouse and Web site and provides consulting services to
    help clients develop and manage effective human services
    programs.
        The fifth witness is Pamela K. Lattimore, Ph.D., principal
    scientist at RTI International. She is an expert in prisoner
    reentry and multimodal correctional program evaluation, as well
    as approaches to improving criminal justice systems operations.
        Our final witness will be Richard Cassidy, founding member
    of the law firm of Hoff Curtis and chair of the Uniform Law
    Commission's Drafting Committee on Uniform Collateral
    Consequences of Conviction Act. That law was adopted in July
    2009, and endorsed by the--was adopted in July 2009, and
    endorsed by the American Bar Association in February 2010.
        Each of our witnesses' written statements will be made part
    of the record in their entirety.
        I ask each witness to summarize your testimony in 5 minutes
    or less. To help you stay within that time, there is a lighting
    device on the table which will start green, go to yellow when
    you have 1 minute to conclude your testimony. It will turn red
    when your 5 minutes have expired.
        We will begin with Mr. Mauer.

             TESTIMONY OF MARC MAUER, EXECUTIVE DIRECTOR,
                 THE SENTENCING PROJECT, WASHINGTON, DC

        Mr. Mauer. Thank you, Chairman Scott. I appreciate the
    opportunity to be here and the important nature of this issue.
        The issue of collateral consequences is not a new issue. We
    have had these policies and practices in many ways since the
    time of the founding of the Nation. In those early days, not
    only might you lose your job, you could have your marriage
    dissolved as well and other consequences.
        But one thing that has been consistent over the last 200
    years is that there has rarely been any kind of analysis or
    assessment about the impact and effectiveness of collateral
    consequences, and I think that is what makes this hearing
    particularly important.
        The other element that makes it so important today is that
    we now have an impact of collateral consequences that is far
    more broad ranging than we have ever seen before. This has come
    about from two factors: First, the enormous increase in the
    criminal justice population over the last four decades. We have
    eight times as many people in prison as we did in 1970. Some 13
    million people have had a felony conviction. Millions more have
    been arrested or had a misdemeanor conviction. So the scope of
    who is affected is really unprecedented now.
        Secondly, a series of policy initiatives over the last 20
    years or so, many of them coming out of the war on drugs, have
    further restricted the ability of people with felony
    convictions, and particularly drug felony convictions, to have
    access to public benefits and services. And so we have this
    very broad range.
        There are a variety of questions that come up in this area.
    Some of them are philosophical, in a sense. For example, what
    should be a punishment for a crime and should it include
    forfeiture of your rights?
        There are a number of very practical problems, though, that
    I just want to dwell on to lay out some of the issues that we
    need to examine today.
        The first one, of course, is the impact of collateral
    consequences on reentry; and it seems to me that many of the
    policies currently in place are very counterproductive to
    successful reentry. We look at restrictions on employment, for
    example. There are some restrictions that few people would
    argue with. Most people don't want to have a convicted
    pedophile working in a day care center, but that is generally
    the exception to the rule.
        Other kinds of restrictions, such as restrictions on
    getting a license to be a barber, to work in asbestos removal,
    or to work in physical therapy, are rarely connected at all to
    a person's past behavior, rarely connected to any kind of
    public safety objectives. So it is hard to see what the
    rationale is for restricting people from these occupations.
        Another set of restrictions are the drug felony bans, some
    of these coming out of the 1996 Federal welfare reform
    legislation, which prohibit people with a drug felony from
    receiving welfare benefits or food stamps for life unless the
    State in which they live opts out of that. This policy applies
    to drug felonies and only drug felonies, so someone with an
    armed robbery conviction or a stolen car conviction or anything
    else is perfectly eligible to qualify but only people with a
    drug felony have lost their social safety net, essentially.
        Another one that is very counterproductive is the
    elimination of Pell Grants that Congress approved in 1994. At
    the time, prisoners received less than 1 percent of all Pell
    Grant funds, but this permitted them to get a college education
    in prison. I think it is fair to say the number of college
    education programs declined dramatically following the
    imposition of that policy. All the research we have tells us
    that more education contributes to reduced recidivism rates. So
    I think this is very counterproductive.
        We also have implementation problems. There is no State at
    the moment that can tell us exactly what all the collateral
    sanctions are for a given offender in the State. This is not a
    very helpful way to go about this. We know they are frequently
    implemented in error.
        I do a good deal of work on the issue of felon
    disfranchisement. One study of 10 States looked at election
    officials and found that 30 percent of the local election
    officials misinterpreted the applicable law in their State,
    which means we have errors on both sides of the equation, that
    sometimes people who are eligible to vote are denied the
    opportunity to do so, but, conversely, people who are
    ineligible to vote in a given State are permitted to vote. This
    is no way to run an election system but I think just an
    indication of how these laws expand over a broad range of
    areas.
        There is momentum for reform. Many States are beginning to
    address this. I know there is interest in Congress as well. But
    it seems to me if we care about reentry and care about doing it
    productively we need to reassess whether these policies have a
    legitimate role or whether it is time to repeal or scale back
    their impact.
        Thank you.
        [The prepared statement of Mr. Mauer follows:]
                        Prepared Statement of Marc Mauer

                                   __________
        Mr. Scott. Thank you, Mr. Mauer.
        Mr. Emsellem.

      TESTIMONY OF MAURICE EMSELLEM, POLICY CO-DIRECTOR, NATIONAL
                  EMPLOYMENT LAW PROJECT, OAKLAND, CA

        Mr. Emsellem. Chairman Scott, Ranking Member Gohmert,
    Members of the Committee, thank you for this opportunity to
    testify in support of Federal reform of criminal background
    checks for employment.
        Today, nearly one in three adults, almost 70 million
    workers, have a criminal record that can show up on a routine
    background check for employment. It is a devastating reality
    that most of us can choose to ignore, but it is a fact of life
    for those workers and their families who are living in constant
    fear of being laid off or missing out on the perfect job
    because of background checks, especially in today's tight labor
    market.
        One of our clients, Mr. William Truxton, an esteemed ship
    clerk who has worked in the Philadelphia ports for over 10
    years, was one of these Americans whose lives was turned upside
    down by the FBI criminal background check required of all the
    Nation's port workers after September 11th. When the Federal
    deadline hit, closing off the Philadelphia port to anyone who
    didn't yet clear the TSA background check, Mr. Truxton was out
    of work due to his FBI rap sheet.
        During the 5 months that it took TSA to process his appeal
    where he documented that his FBI rap sheet failed to show that
    an old arrest never actually led to a disqualifying conviction,
    Mr. Truxton and his family of four children lost everything.
    They received an eviction notice, their car was repossessed,
    and they sold their furniture to help pay their bills.
        Unfortunately, Mr. Truxton's case was anything but an
    isolated event. Every year, the FBI conducts six million
    criminal background checks for employment for all sorts of
    jobs, from cafeteria workers employed by Federal contractors
    probably in this building, to nursing home workers, to Federal
    civil service employees, to port workers and truck drivers.
        However, according to the Department of Justice, almost 50
    percent of the criminal records in the FBI systems are not up
    to date, just like Mr. Truxton's old arrest record, because the
    States are very good at getting the arrest record into the
    system, but they routinely fail to send along the final
    disposition of the case to the FBI. That is exactly what
    happened to nearly 40,000 port workers, like our client, Mr.
    Truxton, who successfully appealed their TSA background check
    determinations based on the faulty FBI records. Their appeals,
    which took TSA several months to resolve, resulted in a
    remarkable 96 percent success rate, which is proof positive
    that the FBI's records are in very rough shape. Unfortunately,
    thousands more workers fell through the cracks of the TSA
    background check system, unable to get the help they needed to
    navigate the special appeals process.
        So to avoid all this needless hardship the challenge is to
    get the FBI rap sheet right before it is released to the
    employer and ends up wasting the valuable resources of
    government agencies that have to deal with all the fallout from
    the problem of the FBI records. In fact, that is exactly what
    is done in the case of the Brady gun checks where an FBI unit
    tracks down the missing dispositions before the information is
    released to the gun dealers. As a result of this follow up, the
    FBI locates 65 percent of the missing records in just 3 days.
    If it works for FBI gun checks, it can also work for employment
    background checks.
        Thanks to your leadership, Chairman Scott, that is the
    basic premise of H.R. 5300, The Fairness and Accuracy in
    Employment Background Checks Act, which you introduced last
    month with strong bipartisan support. H.R. 5300 takes the
    tested Brady gun check process and applies it to criminal
    background checks for employment. It is a simple measure, but
    it is a huge reform of the system which is paid for with the
    supplement to the fee that is now charged for each FBI
    employment background check.
        In addition, the bill adopts several basic consumer
    protections that apply to private background check screening
    firms, including the right to get a copy of the record to
    challenge its accuracy.
        Finally, I would like to highlight a key protection in the
    port workers screening law which we urge Congress to extend to
    all Federal statutes requiring criminal background checks for
    employment. It is a policy that allows most port workers who
    have a disqualifying felony offense on their record to make the
    case to TSA that they have been rehabilitated under the law's
    special waiver provision. The waiver protection has proved its
    weight in gold. It saved the jobs of 5,000 hardworking workers
    who TSA determined do not pose a terrorism security threat
    based on evidence of rehabilitation. In fact, at least 60
    percent of those who applied for the waiver were approved by
    TSA. What is more, people of color were significant
    beneficiaries of the waiver process, given the huge impact of
    criminal records, especially drug offenses, on low-income
    communities.
        Thank you again for your hard work on this critical issue.
        [The prepared statement of Mr. Emsellem follows:]
                     Prepared Statement of Maurice Emsellem

                                   __________
        Mr. Scott. Thank you.
        Mr. Moore.

              TESTIMONY OF CALVIN MOORE, D.C. EMPLOYMENT
                     JUSTICE CENTER, WASHINGTON, DC

        Mr. Moore. Good morning, everyone. I would like to thank
    you for this golden opportunity to testify today about the
    collateral consequences of my criminal convictions.
        My name is Calvin Moore, and I would like to share my story
    about how my criminal record has been a barrier to rebuilding
    my life and finding meaningful employment. I am 59 years old. I
    grew up in the District of Columbia in the 1950's and 1960's.
    The district was a very different place than it is today. I
    lived in a primarily segregated neighborhood near the Navy
    Yard, where racism and racial profiling were rampant and there
    weren't a lot of opportunities for young people.
        I was part of a tough neighborhood crowd; and,
    unfortunately, I got into some trouble with the law. I had made
    some bad decisions because of my immaturity, but I paid for
    them. I was eventually convicted to serve a 10-year sentence,
    3-and-a-half years in prison and the remaining 6-and-a-half
    years on parole.
        During my incarceration, I prepared myself for release. I
    took college courses. I got my high school diploma. I got
    married. I am still married. I was released; and, when I was,
    it was still very difficult. I didn't have a strong support
    system and not a lot of opportunities.
        Unfortunately, I got into some more trouble, trying to
    medicate the problem with drugs. In the 1980's, I also found
    myself face to face again with the criminal system. So since
    that time, though, however, I have been working to rebuild my
    life and start all over. I have been totally clean. I also
    obtained my commercial driver's license, and I have not had any
    problems with the law. I found various jobs, some with private
    companies, laying asphalt and also a position as a professional
    driver with D.C. government.
        These jobs, however, took its toll on my health and didn't
    pay well and didn't provide much benefits. So over the years I
    also started developing serious health problems and injuries
    from my previous two jobs which prevented me from working full
    time. I am currently receiving SSDI; and since October, 2007, I
    have been out of work, diligently looking for jobs, any job to
    help my pay my bills and make ends meet.
        When the recession hit, finding long-term employment became
    that much harder. I also applied for probably over 42 jobs but
    was turned down by all of them, and the reason was that my
    criminal record prevented me from being hired. In short, the
    decisions that I made 30 plus years ago and that I have already
    paid for are still preventing me from moving forward and
    getting a second chance.
        However, I went to the D.C. Employment Justice Center last
    year about the possibility of sealing my criminal record in the
    District's 2006 expungement and sealing law so that I could
    have a better chance of finding a job with decent wages. But,
    unfortunately, again, because the law is so narrowly drafted, I
    was not able to seal any part of my record. So my criminal
    record will, I would imagine, be a continued impediment for me,
    even though I am a different person than I was back then.
        I want to be able to help others who are also in similar
    situations. I recently joined the Workers Advocacy Group as
    part of the Employment Justice Center so that I can advocate
    for changes in the law and help improve the barriers for people
    who have criminal records.
        There is some good news. I recently was put in contact with
    Catholic Charities, and I am in the process of returning to
    school to become a certified addiction counselor. I am also
    hoping that after I become certified it won't be as difficult
    to find a job where I can help others with addiction problems.
        So I am taking this time again to thank you all for this
    golden opportunity to share my story about the barriers that
    many individuals such as myself face with criminal records when
    they try to rebuild their lives after their convictions. I am
    happy to answer any questions. I am open for that. And I thank
    you very much.
        [The prepared statement of Mr. Moore follows:]
                       Prepared Statement of Calvin Moore

                                   __________

        Mr. Scott. Thank you, Mr. Moore.
        Mr. Lewis.

                    TESTIMONY OF RICHARD A. LEWIS,
                 FELLOW ICF INTERNATIONAL, FAIRFAX, VA

        Mr. Lewis. Good morning, Mr. Chairman, Judge Gohmert, and
    Members of the Subcommittee.
        On behalf ICF International, I thank you for this
    opportunity to appear before you today to discuss this very
    important issue of reducing barriers to reentry and to discuss
    collateral consequences of criminal convictions and how it is
    we can overcome those multiple barriers to reintegration. We
    appreciate your passion and your compassion about this very
    important issue.
        I want to speak briefly about the problem of prisoner
    reentry, how we overcome some of those barriers to successful
    reintegration, and make some recommendations to reduce some of
    these collateral consequences that my colleagues have talked
    about. And thank you, Mr. Moore, for your personal testimony of
    how this has impacted you and your life and your family.
        As the millennium advances, American corrections is in
    crisis. Many of our communities are in crisis. And perhaps one
    of the most pervasive issues that folks are facing right now
    and that corrections is facing is record numbers of folks
    returning home without adequate supervision. We are very
    concerned about that, and that is what is really feeding the
    cycle of reentry that we see.
        Currently, there is about 1.6 million folks in prison and
    about 5.1 million adults that are returning home to communities
    each year. The real question becomes how do we overcome some of
    these barriers? Because we know that the research indicates
    that increasing numbers of folks are returning home without any
    supervision whatsoever. Prisoners are returning having spent
    longer periods behind bars with inadequate supervision upon
    returning home and inadequate assistance in their reintegration
    as a whole.
        While formidable, the prisoner reentry challenges provide
    an opportunity to really think about how is it that we balance
    this need to increase public safety and at the same time reduce
    barriers to successful reintegration. We know that prisoners
    returning home have a lot of difficulty reconnecting, first and
    foremost, with their families, reconnecting with their housing,
    and reconnecting with their jobs. Those are the three pillars
    that we focus on in our work at ICF and my prior work with
    prison fellowship.
        Unfortunately, this problem disproportionately affects
    African American males who predominantly live in poor, urban
    environments which are already plagued by profound social and
    economic consequences.
        Moreover, as you all know, criminal conviction carries
    profound social and economic consequences in the areas
    including getting access to housing, and particularly public
    housing; and getting access to gainful employment, as Mr.
    Conyers mentioned earlier today; getting access to higher
    education, as Mr. Mauer mentioned earlier; and getting access
    to welfare benefits; and, of course, voting.
        Our major concern is that these collateral consequences
    really are having a profound affect upon folks' ability to
    reconnect with their children and families. Over the past
    couple of decades, the number of children impacted by
    incarceration has increased exponentially. Parental
    incarceration has increased, and there is now some 809,000
    prisoners out there out of the 1.5 million that we know have
    children, and about 1.7 million minor children who are impacted
    by incarceration. And, unfortunately, the plight of children
    affected by parental incarceration, they are viewed as
    collateral damage; and we need to think very carefully about
    how it is that we can help fathers in particular who are
    returning from prison to reconnect with their families and
    overcome some of the multiple barriers so that the children are
    not essentially victimized by incarceration.
        Focusing on housing and homelessness, one of the issues
    that we have observed in the work that we have done is that we
    need to think strategically about how to get ex-prisoners
    access to affordable housing, how it is that we can reduce the
    problem of homelessness among ex-offenders. We recommend that
    policymakers support promising prisoner reentry programming,
    some of the faith-based programming that we have seen that can
    provide access to affordable housing and public housing and
    reduce the problem of homelessness among ex-offenders and among
    prisoner's children.
        In the era of education and employment, we recommend that
    policymakers think strategically about how to refrain from
    policies that prevent folks from getting access to student
    loans to pursue higher education and welfare benefits and other
    income supports that we know returning prisoners need to
    support their families.
        In addition, we recommend that policymakers consider very
    carefully some of the promising programs we are seeing in the
    area of substance abuse. As mentioned earlier, folks have to
    have access to substance abuse treatment if they are going to
    be successful upon reentry; and we believe that that is one of
    the major issues that is impacting the reentry problem.
        Finally, there is a real issue of physical health and
    mental illness. A lot of folks who are returning from prison
    have a disproportionate number of physical ailments and also
    mental illness. We need to think strategically about how to get
    these folks access to health care and mental health treatment
    if we are going to have an impact on incarceration.
        In conclusion, we know that there is a growing body of
    evidence that confirms that a felony conviction potentially
    leads to a lifetime of consequences, including barriers to
    housing, education and employment, income supports, health
    care, and even voting; and we recommend that we provide
    regional relief from the collateral consequences of criminal
    convictions.
        Thank you for your time. This completes my formal
    statement, and I will be glad to answer any questions you may
    have.
        [The prepared statement of Mr. Lewis follows:]
                     Prepared Statement of Richard A. Lewis

                                   __________

        Mr. Scott. Thank you.
        Dr. Lattimore.

     TESTIMONY OF PAMELA K. LATTIMORE, Ph.D., PRINCIPAL SCIENTIST,
             RTI INTERNATIONAL, RESEARCH TRIANGLE PARK, NC

        Ms. Lattimore. Thank you, Mr. Chairman, Ranking Member and
    Members of the Subcommittee. I am pleased to appear before you
    today to provide information about prisoner reentry.
        I am Dr. Pamela Lattimore, a principal scientist at RTI
    International. As you may know, RTI International is an
    independent nonprofit research organization based in North
    Carolina that provides evidence-based research and technical
    expertise to governments and businesses in more than 40
    countries.
        Since Congress addressed the prisoner reentry issue more
    than 10 years ago, we have made considerable progress in
    understanding the challenges faced by those reentering the
    community and the prospects for successful intervention. The
    Second Chance Act is providing an opportunity to continue to
    build on this progress.
        I was asked to talk some about the findings from the
    evaluation of the Serious and Violent Offender Reentry
    Initiative. It goes by the acronym of SVORI. The SVORI
    multisite evaluation was funded by the National Institute of
    Justice and was completed at the end of last year. The 6-year
    study was conducted by researchers at RTI International and the
    Urban Institute.
        As detailed in my written testimony, SVORI, which was the
    predecessor to the Second Chance Act of 2007, was funded by
    Congress to provide one-time grants in 2003 to 69 State
    agencies across the country to implement prisoner reentry
    programs. The findings from the SVORI evaluation are summarized
    in my written testimony and detailed in the evaluation final
    reports which are available online; and we have an evaluation
    Web site: www.svorievaluation.org.
        What we learned included the following:
        Individuals returning to their communities from prison or
    juvenile detention have problems that span multiple domains and
    that are interwoven: little education, few job skills, drugs
    and alcohol abuse, and often mental illness. Things that we
    take for granted, such as drivers' licenses, how to fill out a
    job application, having a place to live, may be out of reach
    for these individuals. Licensing requirements, criminal
    background checks and restrictions on housing access are among
    the collateral consequences of a criminal record that provide
    additional obstacles to success on the outside.
        We found that SVORI program participants fortunately
    received more services and programs than comparable individuals
    who did not participate, although at level far below their
    reported needs. Additionally, we also found service receipt,
    service provision dropped substantially following release from
    prison. There were many more services provided during
    incarceration than after.
        Our outcome results were mixed. SVORI program participation
    was associated with improvements in both housing and employment
    and substance use domains, but recidivism findings were more
    equivocal. Men participating in SVORI programs had smaller,
    somewhat lower arrest rates, but we observed no difference in
    the reincarceration rates after 24 months.
        In conclusion, although we have made a lot of progress
    since SVORI was conceived more than a decade ago, it is
    important that we build on that progress. In particular,
    identifying and coordinating multiple services and programs
    delivered in most cases in multiple institutions and multiple
    communities is a complicated undertaking for Departments of
    Corrections and Departments of Juvenile Justice.
        Implementation science suggests that implementing new
    programs can take 2 or 3 years. Thus, grantees may need more
    than 3 years to develop and successfully implement reentry
    programs that address the employment, housing, and treatment
    needs of serious criminal justice populations. Further, we need
    to develop a better understanding of issues that are associated
    with assuring that programs are implemented and delivered with
    fidelity.
        Secondly, although those participating in SVORI programs
    had better outcomes across employment, housing, and health
    domains and were somewhat less likely to be rearrested, these
    improvements did not translate into reduction in
    reincarceration. Further study is needed on carefully
    implemented, evidence-based programs to determine the effects
    on both intermediate outcomes such as employment and drug use
    and the recidivism outcomes of such concern to the public and
    policymakers.
        Finally, I would like to point out that the comprehensive,
    detailed SVORI multisite evaluation is highly unusual for
    justice research. Although government expenditures for law
    enforcement, courts, and corrections now approach $215 billion
    a year, research and evaluation funds remain relatively meager.
    NIJ, the primary funder of criminal justice research, has had a
    base budget of only about $40 million per year for as long as
    we can remember. That has to cover law enforcement courts as
    well as corrections, criminal behavior, victimization,
    sentencing, and so forth.
        Although there are many priorities competing for Federal
    dollars, comprehensive evaluations can lead to policy
    development, improve program implementation and administration,
    better use of taxpayer dollars, and improved outcomes, returns
    on investments that will also make us safer.
        Thank you for your time, and I am happy to answer any
    questions.
        [The prepared statement of Ms. Lattimore follows:]
                   Prepared Statement of Pamela K. Lattimore

                                   __________

        Mr. Scott. Thank you.
        Mr. Cassidy.

      TESTIMONY OF RICHARD T. CASSIDY, HOFF CURTIS, BURLINGTON, VT

        Mr. Cassidy. Thank you Mr. Chairman, Members of the
    Committee.
        The law of collateral consequences in the United States is
    in a state of shocking disarray. It is not just a Federal
    problem, it is not just a State problem, it is a problem at all
    levels of government; and it will require government
    cooperation to improve the situation.
        You have already heard a great deal this morning about the
    serious problems to reintegration in the community that
    collateral consequences cause people coming out of prison and
    other incarceration programs. I won't repeat that.
        But let me say to you that it is important to understand
    that this problem is not just a problem for people who have
    served time in prison. As the example of the Vermont National
    Guard member outlined in my written testimony makes very clear,
    the collateral consequences of convictions can reach out of the
    distant past and strike down an individual who has a
    conviction, even one who has never served a single day in
    prison. That story is not unique. It is a story that is played
    out again and again across this country, and it is a tragedy.
        Meanwhile, the number and variety of collateral
    consequences in this country have mushroomed. To date, no
    comprehensive collection of collateral consequences has ever
    been completed, but under a grant pursuant to section 5 of the
    Court Security Act of 2007, the National Institute of Justice
    contracted with the American Bar Association to do the first
    ever truly comprehensive national study.
        Preliminary results drawn from eight States show an average
    of over 720 statutory and regulatory collateral consequences in
    each State that was studied. Nearly 80 percent of those
    collateral consequences are occupational in nature. Almost
    every one lasts for life.
        Once complete, that study will need support, because the
    information that it provides will have to be continued and has
    to be updated on a continual basis in order for the public
    policymakers and participants in the criminal justice system to
    understand what collateral consequences exist and how they
    relate to the various crimes that individuals may have been
    convicted of. There is no obvious source for continuation of
    that project except the Federal Government, and I urge you to
    consider including continuation of that funding in the Second
    Chance Act.
        The Uniform Collateral Consequences of Conviction Act,
    which was promulgated by the Uniform Laws Commission, provides
    a solid basis from which to organize State law on this subject
    and is also a very useful potential model for the Federal
    Government. It addresses some very significant problems.
        First, as I mentioned in talking about the study, it
    ensures that participants in the process understand what the
    collateral consequences associated with convictions are. The
    Padilla case suggests to those who read it carefully that, at
    least with respect to important and relatively certain
    collateral consequences, understanding the implications of
    conviction may be required in order for a defendant to make an
    adequate plea of guilty to a crime.
        The Uniform Collateral Consequences Act also creates a
    system of appropriate relief from collateral consequences. It
    operates at two levels. First, it creates an order of limited
    relief to assist prisoners seeking reentry into society by
    lifting the automatic bar of collateral sanctions as to
    employment, education, housing, public benefits, and
    occupational licensing. The effect is to require that
    government dealing with these subjects treat convicted
    individuals the same way that they would treat other
    individuals who admit the same conduct but do not have a
    conviction.
        Second, it would establish a certificate of restoration of
    rights for individuals who have been out of prison for more
    than 5. It would, in effect, lift collateral consequences
    except sex offender registries, drivers' licenses, and law
    enforcement employment limitations.
        To administer these programs, the States will need to
    create or revitalize some sort of parole-board-like process to
    receive and act upon relief applications.
        The Federal Government can help this by providing some kind
    of grant program to encourage States to set up and operate
    those structures, at least initially. You can also help by
    giving effect to State acts lifting collateral consequences
    from the Federal level and with respect to Federal convictions.
    You can also help by incorporating the concepts of the Uniform
    Collateral Consequences Act such as its relief mechanisms into
    Federal law.
        If I can say one thing and one thing only in closing, it is
    providing some method of relief apart from the pardon process
    which, frankly, in most jurisdictions is simply not operative,
    is essential.
        Thank you.
        [The prepared statement of Mr. Cassidy follows:]
                    Prepared Statement of Richard T. Cassidy

                                   __________

        Mr. Scott. Thank you very much.
        We want to thank all of our witnesses, and then we will
    have questions under the 5-minute rule.
        I will defer to the gentleman from Puerto Rico, 5 minutes.
        Mr. Pierluisi. Thank you, Mr. Chairman.
        Actually, there are so many things we can cover. You have
    all done very well testifying today. Let me try to address two
    subjects.
        First, listening to you, Mr. Moore, I see you mentioned
    trying to get your record expunged or sealed; and I raise this
    issue to the whole panel. Is this working, expungement and
    sealing of records? Should we encourage it? Is it consistent
    throughout America? What are we seeing out there in this area?
    Would it be helpful for individuals such as Mr. Moore in trying
    to come back and be employed again?
        That is the first area I want to raise; and I welcome any
    comments from the panelists on this issue, expungement and
    sealing of criminal records.
        The second area is government jobs. You know, I am one who
    believes that government should lead by example. So is it
    harder to get a job in government as opposed to the private
    sector once you have a criminal record? Shouldn't it be easier
    getting gainful employment in government, both at the State
    level, Federal level, local level? So I want your testimony in
    that area, too. What have you seen? What could we encourage or
    not in those two areas, expungement of records and government
    jobs vis-a-vis private jobs.
        So, Mr. Mauer, if you would like to start, and then anybody
    else.
        Mr. Mauer. I think other members of the panel have more
    specific information on some of the issues.
        Just on the expungement-sealing issue, I think there are a
    variety of mechanisms we would want to consider: executive
    actions, legislative actions, licensing boards, and the like.
        One of the particular ways to frame the issue, I think,
    emerging research by a criminologist shows us that when a
    person has been out of prison, completed their sentence, after
    6 or 7 years of being out and remaining arrest-free, then his
    or her chances of being involved in a crime is no different
    than yours or mine at that point. So that is partly telling us
    what public policy should look like.
        If in fact there are restrictions, we should certainly at
    the very least have a time limit. We also should be doing
    education with potential employers so they become more familiar
    with any risk that they believe they are taking on.
        I think, in general, the expungement process, the pardon
    process, I think in broad terms what we see today is that it is
    severely under used, any mechanisms by which we restore rights,
    starting with the White House and going to governors of all 50
    States. We have had periods in our history when it was much
    more freely used. It was viewed as a reasonable, charitable,
    compassionate approach; and I think part of the sort of climate
    on crime control policy has made these officials very
    reluctant, unfortunately, to take advantage of this.
        Mr. Emsellem. I would like to speak to the issue of public
    employment. I can say I am from California. On the subject of
    expungement, there technically isn't even an expungement policy
    in California. You can go to the court and have your record
    dismissed, but it shows up as a dismissal, which in many cases
    when you apply for a job, in some cases you can say you don't
    have a record. For government jobs and other jobs, it still
    shows up.
        So there is a lot of variation I should just say among the
    States on expungement policies, and they are very important
    policies, and they can make a very big difference.
        On the subject of public employment, I want to really talk
    about that a little bit, because that is a big priority for us
    in our organization. We are trying to really think through how
    the Federal Government conducts its background check policies
    and making sure that the Federal Government and State and local
    governments are complying with some very basic standards that
    were set up under title VII by the EEOC. There are very helpful
    standards that require that the job the person is being
    considered for, if they have a record, that the record is job-
    related, that it connects to the job. That has to take into
    consideration the age and seriousness of the offense.
        What we have right now throughout the public and private
    sectors is what Mark was talking about earlier, just this huge
    proliferation of background checks, huge numbers of workers
    with records, but the process of hiring, any standards
    whatsoever haven't even close to caught up with the reality of
    the situation. So it is really time for the Federal Government
    to let both State and local governments to take some time to
    evaluate their current standards, most don't comply with title
    VII, and then work forward from there.
        In some States, a lot of States, recently New Mexico,
    Minnesota, Connecticut is just about to sign off on a bill that
    adopted a policy they call ``ban-the-box'' that removes the
    question about the criminal records from the job application
    and it delays the criminal background check until the end of
    the hiring process so that folks have a shot at the job based
    on their merits, but it doesn't compromise safety in any way
    because the person is still--they are still conducting that
    background check at the end of the process. Twenty-one cities
    and States, 21 counties and cities also have ban-the-box; and
    that is just in the last 4 or 5 years.
        So there is a lot of good thinking out there. There is a
    lot of opportunity. It is a good time to take a good look at
    everybody's policies and kind of move forward from there.
        Mr. Moore. I would like to address this concern, because,
    basically, I am living it.
        I have a problem with the background check because,
    basically, a potential employer, it gives them a chance to look
    not only at a conviction but they also get a chance to look at
    your arrest record. And on most of your applications they ask
    if you have been convicted of a felony within the realms of a
    5-year to 7-year to 10-year period. When you put that down
    there and they have the opportunity to check your background,
    they decide mainly to not hire you depending on the length of
    your criminal record, if you have arrests, not convictions.
        So as a combined, I guess, overload for most criminal
    activity that the individual may have done in the past, they
    may not even have done whatever the charge was. They may have
    been cleared of it or what have you, but it remains on your
    criminal record. And, as a result, like I say, when the
    potential employer puts this together in some cases, I wouldn't
    hire if I was the employer myself looking at not only the one
    conviction that you had maybe 20 or 30 years ago but the
    combined total amount of charges that you have related to
    arrests on the record.
        So that right there within itself is the first obstacle or
    blockage toward being respected for who you are today, the
    changes that you did in your life to make yourself a mature,
    responsible adult, to try to take care of your family. Because,
    in essence, that is what we all do. We go to work every day so
    that we can have peace of mind because we have paid our bills
    and we are ready for the next month when your bill flow comes
    in. But you can't do this if you don't have an income.
        So in looking at the whole situation, I think that the
    whole community of each jurisdiction in the United States
    really--not just the criminal himself, but I am talking about
    every tax-paying citizen--is really putting themselves in
    jeopardy. Because now you have got these guys that come out
    that want to do good, but they can't do good because they can't
    get a job. So now when you are talking about recidivism that is
    what is going to happen, because everybody wants to be able to
    take care of themselves and their family, pretty much.
        With that said, I would like to just--I thought about
    constructing maybe a clearinghouse, where an individual, I am
    really basically speaking for myself, because there are
    basically a lot of other people that are in a worse predicament
    than I am, but it still all remains to be the same because it
    all boils down to employment.
        If we get like a clearinghouse together where each
    individual can be streamlined or scrutinized in reference to
    what their record is and what can be hidden from the public and
    what should be on your record and what shouldn't be, I mean, if
    we have in each jurisdiction a clearinghouse like that, then
    that would be over half the battle and pretty much give an
    individual with this collateral consequence of having a
    criminal record a chance to take himself care of himself and
    his family.
        I thank you for giving me a chance to talk.
        Mr. Quigley. Will the gentleman yield?
        Mr. Pierluisi. Yes. No, I am done. I am out of time.
        Mr. Quigley. It is just on the same point.
        Mr. Scott. I ask unanimous consent that the gentleman be
    given an additional minute.
        Without objection.
        Mr. Quigley. My experience in Cook County that relates to
    expungement is it is varied, even within Cook County, depending
    on which courthouse you actually have to go back and do your
    expungement with. So across the State it is widely varied; and,
    for many people, the expungement process is a daunting task.
    While there are a few legal clinics that help people, it
    appears that if we are going to use expungements, they ought to
    be available for everyone.
        Unfortunately, right now, the people who are getting
    expungements are the ones who can afford someone to handle the
    process for them. I don't know if that is true nationally, but
    it is certainly true in Cook County.
        So I appreciate your remarks on that.
        Mr. Scott. The gentleman's time has expired.
        Mr. Gohmert.
        Mr. Gohmert. Thank you. I appreciate everybody's testimony
    and your perspectives.
        There was a comment made about--of course, there was some
    discussion about government jobs and also about voting. Since
    we know from what statistics have been provided to us that 70
    percent or so are going to recommit offenses, then it would
    seem we shouldn't get the cart before the horse. I mean,
    government is bad enough. America looks at Washington and
    thinks we don't need any more crooks up there than what we have
    already got.
        But there was some mention about some time period. It
    seemed like it is kind of like with cancer. You know, you got a
    5-year window and you know if you survive 5 years odds are very
    good that you are going to survive as anybody else would. So it
    may be that maybe we are looking at potentially a time period
    where, if you don't re-offend in that period, then you are
    eligible for certain jobs and you are eligible at a certain
    point to vote.
        And that is an interesting point, Mr. Mauer. Some, where
    they are prohibited from voting, vote, and some where they are
    not prohibited, they are not allowed. So that is a good point,
    that we need to have better-educated folks working to assure
    that.
        But, Mr. Moore, you mentioned that everyone just wants to
    take care of their family. But one of the things that disturbed
    me, that when I put people on probation I made it a matter of
    incentive, either by maximizing the number of hours that they
    had to do community service and then crediting those off, if
    they finally got around for the first time in their lives
    providing some support for their children or families or even
    just found out where they are. Some of the presentence reports,
    they didn't know where their kids were.
        So I appreciate someone like yourself that really does want
    to take care of family. But that wasn't my experience. Everyone
    didn't want to take care of their family. And it was one of the
    vast shortcomings in society, because it seemed to be a
    reciprocal thing. You would think that if someone went through
    life without knowing their father at all, without having any
    relationship, by golly, when they had kids, they would really
    address that. But it seemed to be more the exception that broke
    the cycle. Most seemed to fall back into it.
        So these all seem to be social issues that need addressing.
    So maybe we can help keep people out of prison in the first
    place. But the point that was made about wanting to take care
    of their families, I wish it were so, but it seemed like that
    would be something that needs to be done to prevent the next
    generation from following in daddy's footsteps.
        I would appreciate any comments, insights. All of you in
    one way or another deal with this issue, but do you have any
    suggestions from a societal standpoint of what we could be
    doing to try to break that cycle? Mr. Moore?
        Mr. Moore. Okay. Also, while I was speaking, I mentioned
    the fact, because I do realize what you just said in reference
    to everybody is not within the framework of positivism, okay,
    in terms of trying to take care of their family. There is a lot
    to that.
        During the speech or during my submitting what I have to
    say in reference to it, I brought up the point that if we can
    formulate somewhat of sort of like a clearinghouse, where each
    individual in each jurisdiction of the United States can have a
    chance to be scrutinized, okay, in reference to what they want
    to do with the rest of their lives. Because, I mean, I hate to
    say it, but some people do need to be locked up, and some
    people are just not prepared, and then when they get an
    opportunity, they don't take advantage of it, which makes it
    bad for a person like myself.
        So that was just one of my suggestions in reference to
    getting that idea to whom you are really dealing with. I am not
    saying that everybody is going to get scrutinized 100 percent,
    because still, even if you do that, you can't understand what
    is inside an individual's head in reference to what they really
    want to do with their life. I am just one of those--to further
    exacerbate my problem, I am going through all of the stuff that
    I am going through because of individuals like that.
        So I fully understand what you are saying. I don't have a
    problem with the fact that not everybody is trying to take care
    of their family.
        Mr. Gohmert. But we do need to get to that point where more
    people do care until we break that cycle.
        Mr. Moore. Yes, sir. Absolutely.
        Mr. Gohmert. Anyway, time is so short in one of these
    hearings. You have 5 minutes to make an opening statement and
    you submit statements in writing. But really, as you think
    about these issues, we would welcome your input in writing in
    the form of letters, suggestions, or something additionally
    that you want to submit. Everybody up here really--you know, we
    may disagree about the means, but I think everybody does want
    to get to an end where we have a lot less crime and we break
    these cycles of recidivism that we haven't done a good job of
    breaking.
        Mr. Lewis. Congressman Gohmert, I would like to add to
    that.
        A lot of the research we have done on recidivism does
    indicate that after about 3 years the likelihood of you re-
    offending does drop dramatically. It actually drops
    significantly after that first year, if you can stay out for a
    year, and then it really trails off after 3 years. There is
    hardly any data there. So I would like to suggest considering
    as a reasonable relief to collateral consequences considering a
    3-year time limit.
        On the issue of employment----
        Mr. Gohmert. In that regard, was there any data in what you
    found that indicated a much higher chance of non-recidivism if
    there were additional education, like high school, college
    courses? Was there any data in which you----
        Mr. Lewis. Not specifically on education, but certainly on
    employment, and employment is certainly related to education.
    And what really compounds the issue of employment for ex-
    offenders is the fact that they do have limited education, they
    do have limited job skills, there is low levels of viable work
    experience to go along with that; and, in addition, there is
    oftentimes some substance abuse challenges that we have to deal
    with. That is why it is important to make sure that ex-
    offenders do indeed have access to employment and training
    opportunities, to income supports and to even welfare benefits
    while they are trying to find sustainable employment and
    improve their job skills.
        Mr. Gohmert. Thank you.
        Mr. Scott. The gentleman from Michigan, the Chairman of the
    full Committee.
        Mr. Conyers. Thank you, Mr. Chairman.
        This is a very important hearing, and I think we can put on
    the record that we have been talking with Judge Gohmert and
    Chairman Scott, and we are planning an extended hearing. We
    want to continue this subject in Detroit and Michigan. We want
    to enlarge the panel. We want to bring in some people and
    hopefully the Governor of Michigan, the State of Michigan's
    corrections chief, which is a very effective woman, one of the
    first female corrections chiefs we have had in the State, who
    is doing an excellent job.
        We would like all of you--Nikichi Tieva with the Criminal
    Justice Roundtable is here, Charlie Sullivan of CURE, because
    we have got to go deeper. Judge Gohmert is going to come in
    with us, and we are going to put this hearing on our Web site,
    and then we are going to blog it so that thousands of other
    people who want to comment will be able to call in and add to
    it. And we will be keeping, of course, the conversations, so
    that other people will be able to benefit.
        This hearing will be a full Committee hearing, of course,
    with the leaders here working with us on it. It is going to be
    in August during the recess, because we know when we come back
    in September all the appropriations matters and Afghanistan and
    the oil spill and everything else is going to be on it. So we
    are going to take a full day in Detroit, probably at Coble
    Hall, and bring in a number of other people that some of you
    can recommend.
        We are not just going to, of course, repeat the same
    things. We are going to be examining each others' comments and
    others so we will be bringing in even a deeper appreciation of
    what it is we are up against.
        Calvin Moore, your idea of a clearinghouse is brilliant.
    Have you ever thought about--no, I won't do that.
        Let me ask you to continue the discussion that our
    colleague from Puerto Rico began about the expungement and
    sealing of records and why it is that getting government
    employment, especially Federal, is tougher because of FBI and
    other checks that we do that make it even more complicated than
    getting private sector employment.
        There were others that had not commented on that part of
    our hearing, that if any of you wanted to contribute to it, you
    can now.
        Ms. Lattimore. I would just like to make a couple of
    points.
        One is that this notion of automatic restoration of rights
    is something that is done in other countries, with 5-year, 10-
    year time frames, depending on the offense, depending on the
    behavior during the process, depending on the right, and that
    the Committee might be interested in getting some information
    on that.
        I think another important point that was raised is this
    issue of the accuracy of records. I think this is another place
    where the Committee might be able to provide some leadership to
    the various agencies to try to improve the quality of the
    criminal justice records that are out there and to try to
    assure they are accurate. Because this is information that is
    collected at the State level, but it is disbursed primarily
    through the FBI to the NCIC, and assuring the quality of those
    records, particularly since so many of those--so much of that
    information is available on line.
        So, for $19.95, you can get a 1-year membership into these
    public record searches on line and go up and check whatever
    they have managed to pull together from all these various State
    agencies on anybody. So the fact that these records are as good
    as they are, which oftentimes they are not very good, you know,
    you don't have to do a full official criminal background check.
    If you come to me looking for a job, I can go on line and pull
    up whatever people have managed to pull up.
        So I would point, I think, the Committee toward maybe
    considering that at some time. Because, given that people's
    lives are affected by that and it is something that I think
    crosses State lines, it certainly would be in the jurisdiction
    of the Committee.
        Mr. Conyers. Our friend Mr. Mueller at the FBI is going to
    hear about this if he isn't listening, because I am being told
    that the FBI can charge for the cost. It isn't even like they
    are incurring any debt necessarily. But I would like to extend
    him a courteous notice of a hearing that we are going to have
    in August, and I want him to be there and his person as well.
        We have got to get to the bottom of this.
        Ms. Lattimore. If you will excuse me, it really goes back
    to State and local governments that have relatively little or
    poor investment in infrastructure. So they are quick to get the
    first note in, but then, after that, there is no system in
    place to backfill and make sure that things are corrected.
        Mr. Cassidy. Chairman Conyers, one point that you mentioned
    about expungement and sealing of records that is critical ties
    into what Dr. Lattimore just said about public records; and
    that is that expungement and sealing are most effective, quite
    frankly, for juveniles. Because the records with respect to
    adults are public records; and, today, once it is in the
    record, it is everywhere and people can't walk away from it. I
    don't mean to discourage expungement and sealing. I do think
    that----
        Mr. Conyers. In other words, expungement is a porous
    process anyway.
        Mr. Cassidy. At best. And it may put an ex-offender in a
    very difficult situation where they believe they are free of
    their past and they are asked a direct question and they don't
    understand whether they are supposed to lie or tell the truth,
    and they are on a knife's edge either way they go. So any
    expungement device that is developed has to address the
    question of what the offender is instructed to say.
        Mr. Scott. The gentleman's time has expired.
        Mr. Conyers. Could we get Mr. Moore?
        Mr. Moore. I will do this in brevity.
        Basically, it has been my experience when you are applying
    for employment in either the District or Federal Government, it
    is usually a process of who you know that is already working
    within the realms of what you are applying for.
        Mr. Conyers. To help you, or harm you?
        Mr. Moore. I am sorry?
        Mr. Conyers. To get help, you have to know someone?
        Mr. Moore. I am talking about to gain meaningful employment
    in the government agencies, Federal or District, it is usually
    my experience that you can easily get in if you have someone
    that already works within that department and they know you and
    they can vouch for you. Outside of that, it is pretty difficult
    to obtain a job within either one of those places, the Federal
    Government or the District Government.
        I just wanted to make that comment. The private sector is
    totally different, something different.
        Mr. Scott. The gentleman's time has expired.
        The gentleman from Tennessee.
        Mr. Cohen. Thank you, Chairman Scott and Chairman Conyers,
    for your interest and your work on this issue and, Mr. Gohmert,
    for participating and your interest, also. I know you, as a
    criminal court judge, have seen people who have been convicted
    and what can happen.
        This is a very important issue in my district in Memphis,
    Tennessee, the 9th District of Tennessee. Hardly a day goes by
    that I don't have somebody come up to me and say, Congressman,
    I need a job, but because I have a previous felony I can't get
    one, and they want to take--sometimes they are with their
    children, and I feel so bad for them, that they have got their
    daughter or son who is maybe 10 or 7 or 8 and that their father
    has to come up and express to me the situation they are in.
        And this is because of actions of our government. It is
    their actions to start with, but nobody should have a scarlet
    letter for life. There should be within everyone--whether you
    are Judeo-Christian, Muslim, agnostic, Christopher Hitchens, or
    whatever, you should have the idea that people can be forgiven
    and people can improve, and that is what man is about, is about
    hope and improvement and learning from your experiences.
        The Criminal Code doesn't really see that, and they punish
    these people forever. It hurts our society. It leads them back
    into crime, so it hurts the whole society, not just that
    individual and their family, but the entire society, and it is
    one of the problems with our criminal justice system.
        Our criminal justice system has so many holes in it where
    we refuse to see the truth. One of them is drug laws. So many
    people get drug convictions, and the collateral consequences of
    felony convictions, drug convictions, whether felonies or
    misdemeanors, are great, and they lead to the lack of
    opportunities for employment, for housing, for scholarships,
    for TANF grants, for you name it. It is a scarlet letter that
    keeps these people in a situation where they are more likely to
    be recidivists and go back into crime because they can't get
    into Main Street. So it hurts. It contributes to the drug
    problem. It contributes to the crime problem.
        What we have got to do is get a get a bill that we can get
    passed. I have introduced a bill today--or will be introducing
    a bill today called the Fresh Start Act. It wouldn't affect
    everybody, indeed. But it will say, after 7 years, if you have
    been convicted in Federal court of a non-violent crime,
    regardless of anything else, no other conditions, you get your
    record expunged.
        You go back to the court that sentenced you. The U.S.
    Attorney can weigh in and make some observations. But for two
    crimes that we came up with, which would be sex offenders,
    where we know there is a likelihood or there is I think it is a
    likelihood of repeat offenses and danger to the public, and
    financial crimes of over $10,000, where people should know that
    somebody has committed fraud and defrauded somebody in certain
    amounts so they can protect their investors or their own
    business--and with those two exceptions, anybody can go into
    the Federal court and get their sentence expunged, which means
    they can go back out and say I have never been convicted
    before, I have a clean slate, and get a job. And these
    collateral consequences wouldn't affect them as well.
        It would be incentive grants to the States to have a
    similar type of laws and pass their own expungement laws, and
    financial penalties if they don't, incentive grants if they do.
    This is the type of action we need. Mr. Rangel has got a bill
    that is similar but not quite as liberal as mine.
        I think you need--and I picked 7 years simply because the
    law has a lot of areas with 7 years, 14, and 21 on statute of
    limitations and property rights and all that stuff, and it is
    something that stuck in my head from law school. Not much did,
    but that did.
        I think, Mr. Mauer, you mentioned 6 years. Is that the kind
    of magic bullet?
        Mr. Mauer. Well, 6 to 7 is what the research shows,
    somewhere in that range.
        Mr. Cohen. So we are within the margin of error, which is
    better than most laws. So we are introducing that bill today. I
    would ask everybody to sign on to the Fresh Start Act.
        Just some of the things we have done, we did something in
    our education bill this year on I think misdemeanors that says
    they can get scholarships again if they have committed a
    misdemeanor drug offense. It used to be you couldn't get a
    scholarship. It makes no sense whatsoever.
        The drug war, quote-unquote, has cost us billions of
    dollars, I presume most of these collateral consequences. And I
    am trying to think, Mr. Cassidy, were you the main spokesperson
    here on collateral consequences?
        Mr. Cassidy. I wouldn't make that claim, but certainly I
    did talk about it.
        Mr. Cohen. Are most of these collateral consequences
    supposed to be deterrents or are they punishments?
        Mr. Cassidy. Well, I think that is a very good question. I
    think oftentimes what you have is a response to public anger
    about a particular instance and the first response is, well,
    let's go back and close the barn door. I am not sure they are
    very well crafted to achieve a purpose.
        Mr. Cohen. So you are not saying they are deterrents. You
    are not saying they are punishments. You are saying they are
    political yahoo points?
        Mr. Cassidy. I think when you have a situation where, for
    example, in New York State it appears there are more than 1,000
    collateral consequences related to conviction, you set up a
    situation where the net is so fine and the mesh is so clear
    that it is surprising we don't have a 100 percent recidivism
    rate.
        Mr. Cohen. They are obviously not deterrents, because the
    crimes that are committed are growing in numbers. It is like
    prohibition, and the American public is saying these are not
    our values. Yet we are incarcerating people and taking away
    their rights and spending lots of resources and money that we
    should be spending on education and health care and EPA
    standards and cleaning up the Gulf and all the other problems
    we have got, rather than incarcerating people and putting them
    to a life of indentured servitude by gift of your United States
    Government.
        But I thank each of you for your testimony and your works
    and I thank Chairman Conyers and hope that we will have a bill
    on this that we can pass out of this Committee and get with
    Chairman Leahy and get this approved in this Congress. And
    thank Mr. Gohmert for leading in what I hope will be a
    bipartisan effort in seeing that we are moving forward with
    realistic, rational legislation and that we don't have to
    remove all of our cynicism to get to the right point at the
    right time.
        Thank you, Mr. Chairman.
        Mr. Scott. Thank you.
        The gentleman's time has expired. I recognize myself at
    this point.
        Mr. Emsellem, are arrest records generally available on
    criminal background checks?
        Mr. Emsellem. Well, under Federal law, under an FBI check,
    if you are screened for any of the hundreds of occupations that
    require an FBI check, yes, the arrest is produced.
        Under State laws, there are many State laws that say you
    can't provide the arrest record.
        For private employers who go through the criminal
    background check private screening firms, Federal law says they
    can't produce an arrest record older than 7 years. So there is
    this huge variation.
        To summarize, there is a lot of variation around access to
    arrest records, depending on State law, depending on whether it
    is an employer background check, depending on whether it is a
    Federal background check.
        Mr. Scott. Dr. Lattimore, you had one program where the
    conclusion was that there is no change in recidivism?
        Ms. Lattimore. The Serious and Violent Offender Reentry
    Initiative grant programs that funded 89 reentry programs
    across the country, prisoner reentry programs across the
    country, and that were basically supposed to do needs and risk
    assessment, provide education, vocational training, substance
    abuse treatment, and mental health, what we found was that they
    started making incremental improvements in the provision of
    those types of services but not as much as was needed. In most
    cases, we saw modest improvements in employment and housing and
    drug use outcomes; did not see any differences in
    reincarceration rates.
        Part of this may be due to the impact of technical
    violations, which is another sort of complication when you
    study recidivism. You have got people that are on parole.
    Oftentimes, you put them in programs where they are actually
    being watched more closely than the people that aren't in the
    programs, which leads to an opportunity for them to be caught
    on some technical violation of parole. We are still continuing
    to sort of scrutinize our data with respect to whether and the
    extent to which that might have had some influence on the
    findings.
        The other issue that I think is important to keep in mind
    that we have not studied as much--well, it has been studied
    relatively little--is this notion that comes out of the
    substance abuse treatment area of relapse. And given that so
    many prisoners come out of prison swearing that they are never
    going to go back, they are done, and some of them--something
    happens in that immediate transition period that we really
    don't fully understand about what all the factors, the
    characteristics of the individual, the environment they are in,
    the support they are receiving and so forth, we really don't
    understand where this attitude of not coming back is shifting
    and changing that leads to something where they get back in
    trouble again. You know, is it I can't find a job? Is it as
    soon as I got out I went back and started hanging out with the
    guys that got me in trouble before?
        Mr. Scott. Have you seen some programs that work and some
    that don't?
        Ms. Lattimore. There are programs. There is evidence that
    some employment-based programs work. There is some evidence of
    positive outcomes with drug courts. Certainly some substance
    abuse treatment. There is emerging evidence of sort for
    cognitive behavioral programs that attempt to change criminal
    thinking.
        Mr. Scott. So some tend to work and some don't.
        Ms. Lattimore. It is complicated by the fact you are
    talking about--when you talk about criminal justice
    populations, you are talking about--Judge, as you know--lots of
    different kinds of people, from the first-time marijuana smoker
    to people like in our study that had an average of 14 prior
    arrests when they were incarcerated.
        So you talk about very serious populations and so forth. So
    there is evidence that some types of programs work for some
    populations, but in terms of the full grid we don't know.
        Mr. Scott. Mr. Lewis, have you seen evidence to show what
    works and what doesn't work?
        Mr. Lewis. We have. In some of our work that we did at
    Prison Fellowship with the evaluation of the Interchange
    Freedom Initiative and of the Kairos Horizon Prison Program, we
    found that there is a growing body of empirical evidence that
    shows that folks who participate in faith-based programming
    while in prison and complete those programs do show significant
    reductions in both recidivism and in one of the studies were
    more likely to meet their child support obligations upon
    release.
        So if I made a recommendation it would be to certainly
    continue faith-based programming while in prison, along with
    some of the other programming.
        Mr. Scott. You mentioned health care. Have you reviewed the
    health care bill that passed to determine what impact that is
    going to have on recently released prisoners, whether they are
    going to have continue to have problems getting health care?
        Mr. Lewis. Just a cursory review of that.
        Mr. Scott. Did you come to any conclusion?
        Mr. Lewis. No, I haven't.
        Mr. Scott. You mentioned also children and the effect
    that--the collateral consequence to society, I guess, on the
    effect on children. What effect, and how can we limit the
    effects that involve children?
        Mr. Lewis. I am glad you mentioned that, Mr. Chairman,
    because that is an area that we are particularly concerned
    about, is the growing number of children that are impacted by
    incarceration and, therefore, impacted by collateral
    consequences.
        Research shows that when a parent is incarcerated the
    children's lives are disrupted not only by separation from
    their parents but also they are more likely to endure poverty,
    to endure parental substance abuse or poor academic
    performance. They are more likely to suffer aggression,
    anxiety, depression. And on top of all of that, they are more
    likely to experience alcohol and drug abuse themselves; and the
    lifetime probability of incarceration of those children
    actually goes up significantly. So the children who are
    impacted by incarceration are also impacted by these collateral
    consequences, particularly in the area, I believe, of housing.
        As a personal anecdote, when I was with Prison Fellowship,
    I can't tell you the number of ex-offenders that I ran into and
    interviewed during our recidivism portion of the study who, for
    example, wanted to do the right thing and wanted to connect
    with their families upon release. In most cases, the children's
    mother was living perhaps in public housing, and because that
    offender had a felony drug conviction and/or a gun conviction,
    probably both, he was prohibited from reuniting with his
    family.
        Those cases, sadly, were few and far between, but we
    believe that is a good example of how children suffer the
    collateral consequences of incarceration.
        Mr. Scott. Finally, Mr. Emsellem, you mentioned the TSA
    Waiver Program. How feasible would it be to implement that on a
    broad basis? Are there logistical complications that would make
    that difficult to do generally?
        Mr. Emsellem. I think when it comes to Federal background
    checks there is really no reason why it couldn't be implemented
    by the various agencies that are doing the screening anyway. I
    mean, there are certain resource issues that would be involved,
    I think. With port worker background checks, they are charged a
    fee that goes toward the process.
        But when we are talking about all the State various
    occupational restrictions or private employer restrictions, I
    think there are opportunities there, and there are a lot of
    States that have the equivalence of waivers with different
    occupations. But I would focus more, especially with private
    employment, on compliance with the EEOC guidelines, which, like
    I say, are very straightforward and they require all of the
    things we have been talking about, that the offense be job-
    related, be sensitive to the age of the offense, the nature of
    the offense, all those basic criteria. They are good standards.
        The Federal Government was just sued over the census
    enumerators, all of them, on this title VII theory that the
    EEOC guidelines have been around for over 20 years.
        So I think there is either--you know, you can go at both,
    and there is a lot of opportunity with waiver, with all the
    Federal laws that are implemented.
        Mr. Scott. Thank you.
        Mr. Gohmert, any other questions?
        Mr. Gohmert. Well, I might just comment, the discussion
    about expungement, there are cases when it would certainly be
    helpful. But then you guys know as well, there are some cases
    where you don't want that expunged.
        For example--all I can do is make it a hypothetical because
    of the law--but, hypothetically, you are a child molester, you
    are caught, you are brought to court, and because the little
    children can't convince, can't remove all reasonable doubt from
    the jury's mind, you end up being acquitted. The whole record
    is expunged. So then you go to work for a couple of other
    entities that, one, a probation office and then a school and
    then you end up destroying lives for which you are convicted.
        We know that, like child molesters, the studies I have seen
    indicate they are going to have a greater risk of re-offending.
    Some things you don't want that expunged. You want to be able
    to consider that, and some of the EEO criteria are very helpful
    in that record.
        Then I had an appointed case where I had concerns about the
    defendant's mental state. Well, I brought in a psychiatrist. He
    was excellent and had been very helpful on another appointed
    case. But he said, he has got a problem, but it is called
    nowadays, under DSM-4, antisocial personality. It used to be a
    sociopath. He knows right from wrong. He can comport with the
    requirements of law. He just enjoys not doing so.
        The best place for him--I said, well, maybe you could help
    us on mitigation and sentencing. He said, but, yeah, the best
    place for him is a very structured environment for as long as
    you can possibly keep him, hopefully, the rest of his life,
    because he enjoys hurting people. And I said that sounds like
    prison. He said, yeah, he needs to be there the rest of his
    life. Well, we may not use you on sentencing then.
        But, anyway, there are some people who you don't want their
    records expunged, and I would hate for a law that just made it
    blanket across-the-board. There are others you want to
    encourage them to have a fresh start.
        Ironically--I can't help but point this out--under the hate
    crimes bill we passed, it is a complete defense under the
    Federal hate crimes bill, not most State, but under the Federal
    hate crimes bill, if you raise a reasonable doubt that you
    selected your victim randomly. I just wanted to shoot somebody.
    It was a random shooting. I didn't care. That is a complete
    defense under the Federal law, ironically.
        But I do appreciate the input. These are troubling issues,
    because we do want to have protection for society. On the other
    hand, you know, one of the things that has made America great
    is that we are a very forgiving society, which also makes it
    weird that so many people get in trouble in Washington covering
    things up, whereas history tells us if you just were open,
    people are very forgiving.
        That is why I would like for your input to go beyond the
    hearing today. You know the reaction of the public. If this
    body were to come out and say we are going to let you expunge
    anybody after a certain period, there are some things that
    shouldn't be. That is why we really need to be cautious, or you
    end up doing more damage than good if you have a law that sets
    up a system where people are going to get hurt and then they
    blame the law and then it gets even more Draconian.
        Mr. Scott. If the gentleman will yield, is there a
    difference between expunging arrest records and conviction
    records? I would ask Mr. Emsellem what the civil rights
    implications may be for discriminating against someone on a job
    because of an arrest record for which there was no conviction.
        Mr. Emsellem. The EEOC has two sets of guidelines. One
    relates to arrest records and one relates to conviction
    records. There is basically a blanket policy that you can't
    deny a job--blanket policy based arrest records because of the
    huge impact on people's color and the absence of any reliable
    indication that that is a real predictor of future job
    performance.
        Convictions is another thing, and that is where you get
    into these criteria I was talking about before, that the
    offense is job related, that you are looking at the age and
    seriousness of the offense. That is not about expungement.
        Mr. Scott. You can't have a blanket policy on arrests. What
    about a kind of haphazard policy or an individual policy? The
    fact that someone has been arrested and then ultimately found
    not guilty, can you discriminate against someone based on that
    record?
        Mr. Emsellem. Not unless you can prove that that arrest
    actually--we are talking about EEOC and title VII. Not unless
    you can prove that the underlying activity actually happened.
    That is what basically the standard is. If you can show it is
    not in the arrest record anymore, you have got to go out and do
    your own determination whether what they were accused of doing
    actually happened.
        Mr. Gohmert. Well, I know in Texas if you are found not
    guilty at trial, then you can have your records expunged,
    including the arrest record, so there is no indication that you
    were ever arrested. And it probably is a factor of cost, as Mr.
    Cohen mentioned. Some are found not guilty, and they just don't
    have the money to pursue expungement. But then others, if you
    are found not guilty and you don't go through the formal
    expungement, then the arrest record is still out there. If you
    do, then you can't bring that up at all. It has to be
    completely eliminated from your record entirely.
        Mr. Scott. Thank you.
        The gentlelady from Texas.
        Ms. Jackson Lee. Thank you very much, Mr. Chairman.
        I think this is also a topic that needs to be periodically
    reviewed and reintroduced, meaning the topic of reentry. We
    went through this for a number of years with the Second Chance
    Act, and I believe that many of those in the criminal justice
    system, reform system, will say there are even barriers to
    implementing the Second Chance Act. There are even, if you
    will, obstacles in its full implementation, not to mention the
    poor funding that has been allowed for some of the initiatives
    that have been introduced through that legislation. So I
    believe this is important.
        I cite as an example--and I don't know if this young man is
    aware of it. I would assume. He, having a lot of people
    interested in his future professional football career, might be
    ready to pounce on this, but who knows. A young man playing at
    the University of Texas at Austin, our premier football
    institution as well as academic institution, African American,
    was arrested, I guess along with some others, for armed robbery
    and, of course, presented a story of horrors. How could he do
    that.
        Just quietly a week or so ago you heard quietly that all
    charges had been dropped, and he has now quietly dispatched
    himself off to another university.
        The question is, will that individual have to forever and
    ever say that he was arrested.
        The question is, what does expunging mean in terms of our
    Federal housing requirements? I think someone just evidenced a
    story about an individual not being able to be reunited with
    their family. If the record is expunged, does that mean under
    our Federal housing guidelines, a misguided law, and I
    understand the purpose of it, would that person still have to
    indicate that they have been incarcerated and/or arrested?
        So let me just pose this question that I will go--I think I
    saw something from Mr. Cassidy, and I couldn't determine
    whether he was for or against the concept or the understanding
    of how arrest records block the reentry, because it indicated--
    includes some information on the record.
        I want to go on record by saying that I have an aversion to
    child predators and individuals that have a propensity of
    repeating and preying on the innocent. So let me just put that
    on the table and put that aside.
        The HUD rules came about because of the attempt by HUD to
    clean up public housing, where grandmothers either were, I
    wouldn't say forced, but maybe forced, but in many instances
    willingly had youngsters taking care of them; and they were
    being, in essence, running drug houses because the youngsters
    were in gangs or whatever they were and therefore creating an
    unsafe atmosphere. And you didn't want to throw grandma out,
    and so it was that you couldn't have these individuals in. That
    was sort of the underlying premise. It has expanded so that
    people coming back and wanting to get a job and come back to
    their family are now blocked.
        So I would ask each of you to give me your sense of the
    most horrific aspects of reentry as relates to reentry. And you
    can cross the gambit. I know there are people here with
    expertise in work. There is housing. Because I really think the
    expunging is a very, I think, instructive approach, and as I
    understand my colleague has a very limiting approach that I
    think this Committee should consider.
        Many of you know that I have been pushing under the Federal
    system good-time early release so that at 45 years you could be
    released if you are a nonviolent offender. That has caused a
    fire on the head of many of my colleagues, and I hope that
    maybe we will see the light of day of that legislation. Because
    I think that is important, releasing individuals who are
    nonviolent offenders in the Federal system without parole who
    are just taking up space.
        But I would like to hear what you believe is the most
    horrific aspect of blocking a favorable reentry. Mr. Mauer--and
    forgive me if you are repeating yourself--but maybe you can
    come up with a new idea that we can have on the record as I ask
    each of you to answer that question.
        And thank you, Mr. Chairman and Ranking Member, for holding
    this hearing.
        Mr. Mauer. Well, just very briefly, I mean, two actions
    that have come out of Congress--and I think we have 15 years of
    experience with them now--are the ban on Pell grants for
    education in prison and the TANF food stamp bans, both adopted
    by Congress in the mid-1990's. I think there is no evidence
    whatsoever that shows that has had a positive effect. There is
    a great deal of evidence that shows it has made reentry more
    difficult. It probably has contributed to higher rates of
    recidivism, rather than lower. So if we really care about
    evidence-based approaches, I think it is time to revisit both
    of those policies.
        Ms. Jackson Lee. Excellent. Thank you.
        Mr. Emsellem. I would say there are two pieces of criminal
    background checks for employment. First, get the records right.
    Clean them up so that they are not hurting folks who have clean
    records and they are still showing up as having a problem,
    either an arrest or conviction. And that covers the scope of
    FBI records, private records, all across the board.
        And then also, you know, adopt standards--and they can be
    in Federal law, they can expand on the EEOC standards that we
    have been talking about, they can create presumptions based on
    certain time periods which is supported by the research--but
    create standards that everybody--that work also across the
    board, from Federal Government to State government to private
    employers and that everybody becomes really familiar with. That
    is what we are missing. It is the Wild West out there,
    basically, and it is time to create standards and enforce
    standards.
        Ms. Jackson Lee. Thank you.
        Mr. Moore.
        Mr. Moore. Good morning. Yes, ma'am.
        I myself have a problem with pedophilia, sex crimes, not to
    mention pretty much all crimes, but those are two major crimes
    that I really, really have a problem with.
        How do we address the issue? I keep going back to what I
    said probably 25 minutes ago about establishing a way that you
    can scrutinize individuals when they do return in reference to
    a measure of crime that fall off the charts when we are dealing
    with pedophilia and stuff along the lines of sex crimes and
    crimes that will put people's lives in jeopardy as far as armed
    robberies and the like.
        So in living this experience myself, not that I believe I
    am telling you anything, especially Judge Gohmert, things that
    he hasn't witnessed as far as criminals that come before him
    and you expunge their record and you really don't know what
    they are about once they return to society, you really have no
    idea. But it has been my experience as far as this thing called
    life goes there is also pros and cons and negativism and
    positivism to each and every given situation.
        So in order to give the person a chance, you know, like I
    said, I keep hearing this thing about what I mentioned a little
    while ago, about scrutinizing the individual that you have
    before you to give them that chance, if it is a clearinghouse
    or something established where you can get an idea what this
    individual is all about. Does he have a family? Does he care
    about himself or the people, taxpaying citizens? Pretty much
    that is basically what I have to say.
        Ms. Jackson Lee. Thank you, sir. That is very instructive.
        Mr. Lewis?
        Mr. Lewis. I am concerned primarily about policies that
    limit participation of ex-offenders in employment and training
    programs, the receipt of income supports and including welfare
    benefits. If we are going to tackle the problem of prison
    reentry, we have to allow access to those programs.
        Ms. Jackson Lee. Would that include housing?
        Mr. Lewis. And that would include housing.
        Ms. Jackson Lee. You see the barriers to federally funded
    housing. Is that an issue that you think is of concern?
        Mr. Lewis. Yes, it is.
        Ms. Jackson Lee. Ms. Lattimore.
        Ms. Lattimore. Thank you. I would agree with Mr. Lewis that
    job training and educational programming are needed. If people
    are going to be able to put a decent life together, they are
    going to have to have that, as well as treatment services.
    Substance abuse treatment and mental health services are not
    available at anywhere close to the level that are needed, given
    the needs of the population.
        Ms. Jackson Lee. So if there are Federal--a job training
    program--and, Mr. Chairman, I had one of my major
    infrastructure projects funded by Federal dollars. I had the
    CEO of that project say, ``I think we are not allowed to hire
    ex-offenders.'' I was asking where he got that from. I even
    asked the President of the United States in a meeting, do
    Federal funds bar someone from getting a job moving trash,
    frankly. I am glad that our President said he had never heard
    of it.
        But if I had not challenged, because I was trying to get a
    job training program, Mr. Chairman, Mr. Chairman Conyers, that
    would include ex-offenders, that specifically would go and
    outreach to them, which I am still pushing for, and that willy-
    nilly this well-thinking CEO of the project, getting $1
    billion-plus from the Federal Government is saying, oh, we
    can't hire ex-offenders.
        Mr. Emsellem. You should report them to the OFCCP. I mean,
    that is their job, and I think they are very interested in
    pursuing that, again because of the title VII standards.
    Blanket policies are illegal under title VII as applied to
    Federal contractors, State governments, private employers. So--
    unless there is some special provision. And no provision that I
    am aware of says no one with a record qualifies for a Federal
    job.
        Ms. Jackson Lee. I will dispatch myself to do it. Because
    the contractors, as you well know, who are being the major
    contractors are saying that, and they also have their own
    private policies, but they are using Federal dollars.
        Can I get Mr. Cassidy?
        Mr. Cassidy. Congresswoman, I think you are hearing the
    right themes, housing, education, employment, job training. But
    all of those issues are limited by the hundreds--in some
    States, perhaps thousands--of laws and regulations that say no
    to ex-offenders. There has to be some rational order brought to
    that system. Without it, people just don't have a chance.
        Ms. Jackson Lee. So you are saying that we need to scrap
    the State laws that block individuals returning to their home
    States that are just a maze of opposition to them reentering?
        Mr. Cassidy. It is a State problem. It is a local problem.
    There has got to be cooperation from all three elements of
    government.
        Ms. Jackson Lee. Thank you.
        Thank you very much, Mr. Chairman, for yielding to me.
        Mr. Scott. I would like to thank the witnesses for their
    testimony today.
        Members may have additional written questions which we will
    forward to you and ask that you answer as promptly as possible
    so the answers can be made part of the record.
        The hearing will remain open for 7 days for submission of
    additional material.
        If there are no further questions, without objection, the
    Subcommittee stands adjourned.
        [Whereupon, at 12:16 p.m., the Subcommittee was adjourned.]
                                A P P E N D I X

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                   Material Submitted for the Hearing Record