[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





                                 
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