The wealth gap between blacks and whites is projected to take 228 years to bridge,1Dedrick Asante-Muhammad et al., The Ever-Growing Gap: Without Change, African-American and Latino Families Won’t Match White Wealth for Centuries, Inst. for Pol’y Stud. 5 (2016), https://perma.cc/4DWN-T546. which may appear to be an insurmountable challenge. Yet, identifying the challenge and facing the reality of its contributing factors is the first step towards addressing the issue.2James Baldwin, As Much Truth as One Can Bear; To Speak Out About the World as It Is, Says James Baldwin, Is the Writer’s Job as Much of the Truth as One Can Bear, N.Y. Times, Jan. 14, 1962, at T11(“Not everything that is faced can be changed; but nothing can be changed until it is faced.”). Economists and scholars have identified many contributing factors influencing this gap, from disparities in education to lack of access to jobs providing a livable wage.3Elin Johnson, Racial Inequality, at College and in the Workplace, Inside Higher Ed. (Oct. 18, 2019), https://perma.cc/VT7E-B9KT. Solutions for eradicating the wealth gap often include tax reform, baby bonds, reparations, and investment in minority-owned businesses.4See Dedrick Asante-Muhammad, Chuck Collins, Darrick Hamilton & Josh Hoxie, Ten Solutions to Bridge the Racial Wealth Divide, Inequality.org (Apr. 15, 2019), https://perma.cc/JKC9-MAA7; Kriston McIntosh, Emily Moss, Ryan Nunn & Jay Shambaugh, Examining the Black-White Wealth Gap, Brookings (Feb. 27, 2020), https://perma.cc/U9KC-Z4NU; Jeff Kauflin & Janet Novack, 5 Big Ideas to Narrow the Racial Wealth Gap, Forbes (June 25, 2020), https://perma.cc/SAE5-6LQD. However, a missing link related to eradicating the wealth gap is a critical analysis of the effects of the “tangled web of mass incarceration”5Melenie Soucheray, Advocates Explore Link Between Mass Incarceration, Intergenerational Poverty, Cath. Spirit (Feb. 3, 2017), https://perma.cc/GN36-5K5M. on the African American community, which draws upon the legacy of chattel slavery (the Transatlantic Slave Trade) and Jim Crow policies. African Americans are disproportionately impacted by the criminal justice system and its associated collateral consequences. The nature of this social phenomenon is pervasive and has a detrimental impact on the lives of offenders, their families, and society at large.6The Prison Industry: How it Started. How it Works. How it Harms., Worth Rises, https://perma.cc/5X4J-RTGU.. Mass incarceration impacts the daily lives of over two million Americans.7Am. C.L. Union, Back to Business: How Hiring Formerly Incarcerated Job Seekers Benefits Your Company 4 (2017), https://perma.cc/D5ST-KU9A.. An estimated “70 million Americans—one in three adults—have a criminal record.”8Id. Race matters in terms of incarceration rates: “In 2017, blacks represented 12% of the U.S. adult population but 33% of the sentenced prison population. Whites accounted for 64% of adults but 30% of prisoners.”9John Gramlich, The Gap Between the Number of Blacks and Whites in Prison Is Shrinking, Pew Rsch. Ctr. (Apr. 30, 2019), https://perma.cc/C2UQ-N37Q.. Further, there are “1,549 black prisoners for every 100,000 black adults—nearly six times the imprisonment rate for whites (272 per 100,000) and nearly double the rate for Hispanics (823 per 100,000).”10Id.
African Americans face a unique set of challenges related to mass incarceration due to their disproportionately high rate of representation in the criminal justice system. The inextricable connection to the criminal justice systems begins early with African American youth who “account for 15% of all U.S. children yet made up 35% of juvenile arrests in .”11The Sent’g Project, Report of the Sentencing Project to the United Nations Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia, and Related Intolerance: Regarding Racial Disparities in the United States Criminal Justice System 2 (2018), https://perma.cc/GSQ8-N87Y. This pattern of overrepresentation is also reflected in the data associated with adult prison populations. “African-American adults are 5.9 times as likely to be incarcerated than whites and Hispanics are 3.1 times as likely.”12Id. at 1.. This “tangled web” of mass incarceration illustrates the intricate and complex nature of this phenomenon. There are far too many entry points into the criminal justice system and far fewer exit points. The channeling of African Americans into the prison system is known as the “cradle to prison pipeline,” which signifies the perpetually mounting and exponentially intensifying probability of incarceration throughout one’s lifetime. Disparities at the intersections of race and poverty manifest in a myriad of quality-of-life indicators from maternal health and infant mortality to access to quality early childhood education, and many of these disparities increase the probability that an individual may be incarcerated.13Marian Wright Edelman, A Call to Action to Dismantle the Cradle to Prison Pipeline, Child.’s Def. Fund (Sept. 28, 2007), https://perma.cc/L3DP-9BDD.
Often overlooked in this analysis of the trajectory of mass incarceration is the ever-expanding financial impact on African American families and communities. When analyzed in isolation, lack of wealth or assets, job development, and generational poverty are the main focal points for remedying this societal challenge. The connection between the disproportionate representation in the criminal justice system as a barrier to wealth creation is typically not discussed. However, economic barriers are immediately evident when examining the challenges associated with bail, prison phone calls, and legal fees.14Ella Baker Ctr., Forward Together, Research Action Design, Who Pays? The True Cost of Incarceration on Families, 14, 29 (2015), https://perma.cc/KK8Z-PHNQ.. Further, families’ finances are hampered by incarcerated loved ones’ lost wages and their limited opportunities for wealth-building potential over time.15Id. at 21.
Once an individual enters this tangled web, the financial implications are profound, with a lasting impact over generations. This is why families, children, and community members are described as the “silent victims” of mass incarceration. Although they are not physically behind bars, they are chained by economic barriers and hardships commonly associated with mass incarceration, including relatives’ lost wages, high costs associated with prison phone calls, and supporting family members who are behind bars.16Tremaine N. Leslie, The Impacts of Incarceration on the Wellbeing of Family Members of African American Males Who Experience the U.S Prison System: A Phenomenological Study 67 (July 2020) (Ph.D. dissertation, University of Arkansas), https://perma.cc/5VVV-9F2Z..
Part I of this Article explores the emergence of mass incarceration and the detrimental effects on the African American community. Part II analyzes the connection between mass incarceration and the economic growth and mobility of African Americans. Part III outlines recommendations for policy changes, and is followed by a conclusion summarizing key findings from this Article.
I. The Impact of Mass Incarceration
The United States incarcerates over twenty percent of the world’s prison population despite only having approximately five percent of the world’s population.17Michelle Ye Hee Lee, Yes, U.S. Locks People Up at a Higher Rate than Any Other Country, Wash. Post (July 7, 2015), https://perma.cc/2BYU-AYD3. Accordingly, the United States earned the title of the incarceration capital of the world.18Drew Kann, 5 Facts Behind America’s High Incarceration Rate, CNN (Apr. 21, 2019), https://perma.cc/CFF2-WP3N. A 2018 study from the Bureau of Justice Statistics showed that the United States had 2.2 million people in jail or prison at the end of 2016. Id. This means approximately 655 people per 100,000 were imprisoned. Id. In comparison to prison populations across the world,
the median European prison population rate was 133.5 inmates per 100,000 people. In the United States, the rate was 478 per 100,000—three and half times the European rate. The United States also far exceeded Canada (188 per 100,000), Australia (130 per 100,000), New Zealand (192 per 100,000) and Japan (51 per 100,000).19Lee, supra note 17.
Despite its large population and rising growth rates, the African continent also has a significantly lower incarceration rate. “[T]he African continent confines 1 million of the 11 million prisoners worldwide.”20Mark P. Fancher, Where Incarceration Isn’t the Answer, Yes! Mag. (Nov. 3, 2020), https://perma.cc/28DY-DUTF. This means that, as a whole, the African continent incarcerates at a rate of about 72 people per 100,000.21This math was calculated using the current population of the African continent. As of March 8, 2021, the population was 1,373,480,428. African Population 2021, World Population Review, https://perma.cc/824V-98P7..
The increase in U.S. incarceration rates coincides with a certain time period and drastic policy shifts. Over a two-decade timespan (1970–1990), there was a dramatic increase in U.S. incarceration rates at both the state and federal levels. The spark of this national crisis was President Richard Nixon’s declaration of a “War on Drugs,” when he pronounced drug abuse as the number one public enemy of the nation.22War on Drugs, Hist. (Dec 17, 2019), https://perma.cc/BT37-EU7H. This declaration shaped the trajectory of criminal justice policies for future administrations and impacted the lives of many generations to come. Subsequently, President Ronald Reagan built on this legacy with a “tough on crime” approach to a public health crisis. At the beginning of his presidential term, there were 329,000 individuals incarcerated; at the end of his second term, the prison population had nearly doubled to 627,000 behind bars.23James Cullen, The History of Mass Incarceration, Brennan Ctr. for Just. (July 20, 2018), https://perma.cc/VF3A-QNAW. “The impact of the drug war has been astounding. In less than thirty years, the U.S. penal population exploded from around 300,000 to more than 2 million, with drug convictions accounting for the majority of the increase.”24Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 6 (2010).
A. Slavery by Another Name
This period is referred to as “Slavery by Another Name” due to the disproportionate rate at which African Americans were arrested and incarcerated.25Id. at 175. This term represents the history of exploitation and criminalization of the black body. Enslaved Africans were the economic engine of America by supplying generations of unpaid labor. Characterized as mere chattel or property and denied of basic human rights, African Americans were deprived of the promise that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness.”26The Declaration of Independence para. 2 (U.S. 1776). Even with slavery’s abolishment through the enactment of the Thirteenth Amendment,27U.S. Const. amend. XIII, § 1. this promise was left unfilled. The exception clause of the Thirteenth Amendment created the gateway to a legalized racial caste system. Caste can be characterized as “the infrastructure of our divisions and the rankings, whereas race is the metric that’s used to determine one’s place in that.”28Terry Gross, It’s More than Racism: Isabel Wilkerson Explains America’s ‘Caste’ System, NPR (Aug. 4, 2020, 1:24 PM), https://perma.cc/3MNZ-R55L. This taxonomic structure limited the rights and access of African Americans through laws, policies, and customs. Further, the Thirteenth Amendment allowed for convict leasing, which was a new form of indentured servitude of criminals.29Flores A. Forbes, How a 13th Amendment Loophole Created America’s Carceral State, Crime Rep. (June 3, 2019), https://perma.cc/UY63-FJ2F.
Similar to slavery, the emergence of mass incarceration influenced the dismantlement of the family structure, which created a ripple effect on the social fabric of the African American community.30Digital Hist., Slave Family Life (2019), https://perma.cc/YUE6-U2B2. Fifty-two percent of U.S. offenders incarcerated in state prisons and sixty-three percent in federal facilities are parents; there has also been a drastic increase in the number of mothers incarcerated (doubling since 1991).31Lauren E. Glaze & Laura M. Maruschak, U.S. Dep’t of Just., Parents in Prison and Their Minor Children (2008), https://perma.cc/5PER-3PUG. “Black children (6.7%) were seven and a half times more likely than white children (0.9%) to have a parent in prison.”32Id. Strong families are the backbone of vibrant, sustainable communities. The overrepresentation of African Americans in the criminal justice system has caused a severe negative ripple effect on the community.
B. The New Jim Crow
Today, the criminal justice system has evolved into the “New Jim Crow” as a result of the War on Drugs, the 1994 crime bill, and mandatory minimums. These laws and policies have impacted the lives of countless African Americans. Nonviolent drug offenders were sentenced to harsh penalties for crack-cocaine offenses in comparison to powder-cocaine convictions, despite the reality of both drugs having the same pharmacological foundation.33Marc Mauer, The Sentencing Project, The Changing Racial Dynamics of the War on Drugs 1 (2009), https://perma.cc/46FP-VNXC. The former category of offenders were mostly people of color, African Americans in particular, while the latter category tended to be Caucasians.34Deborah J. Vagins & Jesselyn McCurdy, Am. C.L. Union, Cracks in the System: Twenty Years of the Unjust Federal Crack Cocaine Law (2006), https://perma.cc/6XQ8-72AN. In practical terms “anyone convicted of possessing as little as five grams of crack cocaine (the weight of two sugar packets) receive[d] a five-year prison term for a first-time offense.”35Mauer, supra note 33, at 1. A similar sentence would be associated with 500 grams of powder cocaine; hence, the 100:1 ratio between crack cocaine and powder cocaine.36Elise Viebeck, How an Early Biden Crime Bill Created the Sentencing Disparity for Crack and Cocaine Trafficking, Wash. Post (July 28, 2019), https://perma.cc/VQ32-PMT9..
The past is the prologue to the next chapter of American history when one in three African American males and one in eighteen African American females are expected to be under the control of the criminal justice system during their lifetimes.37Elizabeth Hinton, LeShae Henderson, & Cindy Reed, Vera Inst. Just., An Unjust Burden: The Disparate Treatment of Black Americans in the Criminal Justice System 2 (2018), https://perma.cc/KR3J-2T6F. “The United States imprisons a larger percentage of its black population than South Africa did at the height of apartheid.”38Ta-Nehisi Coates, Mapping the New Jim Crow, The Atlantic (Oct. 17, 2014), https://perma.cc/Z4ZW-H7V4. Further, there are more African American males under the custody of the correctional system today than who were enslaved during the 1800s.39Alexander, supra note 24, at 175. While other countries have addressed drug abuse as a public health crisis, the United States has used the criminal justice system to penalize the poor and BIPOC communities (“Black, Indigenous, and People of Color”). For example, Norway, unlike the United States, has created a restorative and rehabilitative approach to criminal behavior.40Fancher, supra note 20. This strategy draws upon principles of cognitive behavioral practices and focuses on reintegration into society through job preparation with vocational skills development.41Christina Sterbenz, Why Norway’s Prison System Is So Successful, Bus. Insider (Dec. 11, 2014, 6:31 PM), https://perma.cc/C6WU-9KYB.
II. The Financial Implications Associated with Mass Incarceration
Mass incarceration and collateral consequences restrict access to jobs, housing, financial aid, and even the ballot box. Each of these elements are key components of healthy and strong families and communities. For example, according to the U.S. Office of Disease Prevention and Health Promotion, research demonstrates a direct correlation exists between improved access to education, healthcare, and economic stability in communities that have a high level of civic engagement.42Off. of Disease Prevention and Health Promotion, Civic Participation, https://perma.cc/B3VK-35W9. Felon disenfranchisement restricts access to the benefits derived from voting, in turn diminishing the vibrancy of local communities. Hence, the impact of incarceration has been referred to as entering a “parallel universe.”43Alexander, supra note 24, at 139. This impact is evidenced by the challenges associated with gaining employment, obtaining professional licenses, receiving financial aid or scholarships, and accessing public benefits. This parallel universe leaves those sojourning through the criminal justice system with the scars of shame, scorn, and rejection.44Id. Instead, what is needed is reconciliation, restoration, and access to the ladder of economic and social mobility.
A. Employment and Job Development
Employment can serve as a means for restoration through the hope of a second chance. When “nearly 75 percent of formerly incarcerated individuals are still unemployed a year after release,”45Am. C.L. Union, supra note 7, at 4. deliberate, strategic action is needed to connect offenders with economic opportunities. The pursuit of employment is riddled with complexities for African Americans generally, yet is especially complex for those with a criminal record. Studies demonstrate systemic racism and employer discrimination unfairly disadvantage people of color.46Kim Eng Ky, Ryan Nunn, & Libby Starling, People of Color Face Systemic Disparities in Minnesota’s Labor Market, Fed. Rsrv. Bank Minneapolis (Nov. 13, 2020), https://perma.cc/PFM6-NZQQ.. When seeking employment, white applicants receive on average thirty-six percent more callback interviews than black applicants with identical resumes and backgrounds.47Lincoln Quillian & Ole Hexel, Hiring Discrimination Against Black Americans Hasn’t Declined in 25 Years, Harv. Bus. Rev. (2017), https://perma.cc/N5RM-QUFW. There are also disparities in job retention rates, and white workers have lower unemployment rates in both good and bad economic times.48Ky et al., supra note 46. Workers of color have lower annual earnings than white workers.49Id. A criminal record adds additional layers of barriers and complexity to this analysis for African Americans. “Employers, already reluctant to hire blacks, appear particularly wary of blacks with known criminal histories.”50Devah Pager, Bruce Western & Naomi Sugie, Sequencing Disadvantage: Barriers to Employment Facing Young Black and White Men with Criminal Records, 623 Annals Am. Acad. Pol. Soc. Sci. 195, 199 (2009), https://perma.cc/K369-FYKL.. This is in comparison to the experience of their white counterparts with a similar criminal background during the interviewing and hiring process.
[T]he magnitude of the criminal record penalty suffered by black applicants (60 percent) is roughly double the size of the penalty for whites with a record (30 percent). This interaction between race and criminal record is large and statistically significant, which indicates that the penalty of a criminal record is more disabling for black job seekers than whites.51Id.
Therefore, inclusive hiring practices can create a window of opportunity for reintegration and rehabilitation.
B. Collateral Consequences
Collateral consequences associated with a criminal record restrict access to jobs and professional licensures, further solidifying a parallel universe for formerly incarcerated African Americans. Collateral consequences are often referred to as hidden sanctions because they are not formally quantifiable in criminal sentences or associated penalties.52Sarah B. Berson, Beyond the Sentence—Understanding Collateral Consequences, 272 Nat’l Inst. Just. J. 25 (2013). “Collateral consequences are legal and regulatory restrictions that limit or prohibit people convicted of crimes from accessing employment, business and occupational licensing, housing, voting, education, and other rights, benefits, and opportunities.”53Nat’l Inventory of Collateral Consequences of Conviction, Collateral Consequences Inventory, https://perma.cc/Y54J-9SX5. There are over 40,000 documented collateral consequences in the National Inventory of Collateral Consequences of Conviction created by the American Bar Association.54Id. Despite this high number, most lack awareness about the nature and significant impact of collateral consequences. Some characterize collateral consequences as civil disabilities, a characterization that acknowledges that a felony charge disables one’s reputation, career prospects, and economic opportunities.55See Parker v. Ellis, 362 U.S. 574, 576 (1960). The disproportionate rate of incarceration of African Americans has led to a widespread number of individuals experiencing a civil disability as a result of a criminal conviction. Hence, job prospects and wealth creation possibilities are limited.
C. The Impact on Children and Families
When a criminal conviction occurs, a whole family is impacted. “The conjoined forces of imprisonment and blackness produce waves of lifelong hardships for those who are imprisoned, their families, and the community at large.”56Artika Renee Tyner & Darlene Fry, Iron Shackles to Invisible Chains: Breaking the Binds of Collateral Consequences, 49 Univ. Balt. L. Rev. 357, 370 (2020). African Americans already are overrepresented in poverty rates;57John Creamer, Inequalities Persist Despite Decline in Poverty for All Major Race and Hispanic Origin Groups, U.S. Census Bureau (Sept. 15, 2020), https://perma.cc/D75R-AAKN (“In 2019, the share of Blacks in poverty was 1.8 times greater than their share among the general population. Blacks represented 13.2% of the total population in the United States, but 23.8% of the poverty population.”). by adding the racial disparities associated with mass incarceration to this equation, the economic challenges of the community intensify. Across the United States, over five million children have had an incarcerated parent.58The Annie E. Casey Found., A Shared Sentence: The Devastating Toll of Parental Incarceration on Kids, Families, and Communities 1 (2016), https://perma.cc/Y5US-YD97. Children of incarcerated parents are five times more likely to go to prison during their lifetime than youth who have not had an incarcerated parent.59Charlene Wear Simmons, Cal. Rsch. Bur., Children of Incarcerated Parents 6 (2000), https://perma.cc/W2N7-5ADH. “One in 9 African American children (11.4%), 1 in 28 Hispanic children (3.5%) and 1 in 57 white children (1.8%) have an incarcerated parent.”60Nat’l Resource Ctr. on Child. and Families Incarcerated, Rutgers Univ., Children and Families of the Incarcerated Fact Sheet, https://perma.cc/2FJ8-FFY9. This is continuing a cycle of social isolation and financial exclusion across generations.
Families are between a rock and hard place as they must choose between supporting their incarcerated loved ones and meeting their basic needs. According to the Ella Baker Center for Human Rights, “nearly 2 in 3 families (65%) with an incarcerated member were unable to meet their family’s basic needs.”61Ella Baker Ctr., supra note 14, at 7. More than one in three families went into debt as they attempted to cover the costs of prison phone calls and visitation.62Id. at 9. One study surveyed women about the costs associated with maintaining contact with incarcerated African American men.63Olga Frinstead, Bonnie Faigeles, Carrie Bancroft & Barry Zack, The Financial Cost of Maintaining Relationships with Incarcerated African American Men: A Survey of Women Prison Visitors, 6 J. Afr. Am. Men 59 (2001). The average cost was $292 a month to maintain contact; these costs are associated with prison visits, phone communications, and mailing packages.64Id. at 59, 64–66. For a family struggling with other financial barriers, these funds could be used to meet their basic needs, such as food or shelter. Funds could also be leveraged to create and build intergenerational wealth for one’s family.
III. Recommendations for Change
There are immediate steps that can be taken to alleviate the financial burden of mass incarceration of African Americans on children, families, and the community. These steps focus on advancing reform in criminal justice, creating equal access to employment opportunities, fostering family connections, and developing a vision of the future informed by a racial justice framework. Each effort can serve as a step towards bridging the racial wealth gap.
A. Criminal Justice Reform
Addressing the impacts of “tough on crime” policies and other stringent policies associated with the War on Drugs calls for comprehensive criminal justice reform. Strides have been made in the two most recent administrations (Obama, Trump), yet there is still more work to do. An initial action manifested in the passage of the First Step Act.65President Donald J. Trump Is Committed to Building on the Successes of the First Step Act, White House (Apr. 1, 2019), https://perma.cc/336U-TV5C. This bipartisan effort laid the foundation for criminal justice reform.66Dartunorro Clark & Janell Ross, The First Step Act Promised Widespread Reform. What Has the Criminal Justice Overhaul Achieved So Far?, NBC News (Nov. 24, 2019, 8:00 AM), https://perma.cc/L85A-J3Y8. The Act reduces federal prison sentences for nonviolent offenders and address recidivism.67Dale Chappell & Douglas Ankney, First Step Act Update: Over 1,600 Sentences Reduced, 3,000 Prisoners Released, Prison Legal News (Sept. 9, 2019), https://perma.cc/7K4F-JEM4. It also retroactively applies the Fair Sentencing Act of 2010, an Act championed by President Obama, which reduces the historical wrongs associated with the disparity in sentencing for crack cocaine versus powder cocaine.68Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372. The First Step Act supports a holistic and restorative approach to reintegration by focusing on employment and fostering community connections.69#cut 50 & Root & Rebound, First Step to Second Chances: A Guide for People Leaving Federal Prison Under the First Step Act 4–5 (July 2019), https://perma.cc/RW5V-8H62. These reforms are not enough. The next step forward requires states to adopt similar strategies from the First Step Act that reduce lengthy sentences for nonviolent drug offenses and other members of state prison populations. Further, adopting the American Bar Association’s Standards for Criminal Justice: Collateral Sanctions and Discretionary Disqualification of Convicted Persons, which includes two key elements—notice requirement procedures and the abolition of most collateral sanction laws—will have positive effects.70Collateral Sanctions and Discretionary Disqualification of Convicted Persons, Am. Bar Ass’n, https://perma.cc/QWZ6-TH8P..
B. Employment Opportunities
Obtaining gainful employment is key for wealth creation and intergenerational financial gains. Father Gregory Boyle stresses the importance when he states: “[N]othing stops a bullet like a job.”71Nico Pitney, Nothing Stops a Bullet Like a Job, HuffPost (Sept. 30, 2015, 7:49 PM), https://perma.cc/EYB8-7U5N.. Employers can make this a reality by supporting inclusive hiring practices. A felony record or criminal conviction should not serve as a blanket bar to employment. This does not, however, negate the employer’s responsibility to take appropriate precautions in the hiring process. The Equal Employment Opportunity Commission (“EEOC”) suggests critically examining the nexus between the conviction and the job sought.72U.S Equal Emp. Opportunity Comm’n, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (Apr. 25, 2012), https://perma.cc/9XMY-XUSR. The EEOC offers key guidance on how to create a fair, equitable, and just hiring process:
(1) Employers should not ask about convictions on job applications. Inquiries should be limited to convictions for which exclusion would be job-related for the position.
(2) Employers should avoid policies that automatically exclude people from employment based on only certain criteria (such as criminal status) – particularly “blanket exclusion” policies.
(3) Employers should avoid hiring practices that result in adverse impact for a protected group (such as on race, national origin, etc.). Employers should regularly investigate whether their background screening practices are resulting in adverse impact for protected group.
(4) Employers should be cautious about excluding employees from the hiring process based on their criminal record, especially if the criminal offense is unrelated to the job.
(5) Employers should consider other factors relative to the conviction including the facts or circumstances of the offense/conduct, the number of offenses the individual has been convicted of, the age of the convictions, the length and consistency of employment history before and after offense, rehabilitation efforts, and references.
(6) Employees should give all applicants a chance to explain their criminal records.73Hiring Felons: 6 Rules Employers Need to Know, ERC: HR Insights Blog (July 10, 2013), https://perma.cc/QDS9-QXQD.
Despite the EEOC guidelines and other measures (like the “Ban the Box” campaign aimed at removing questions regarding past criminal records from applications), individuals with a criminal record face discrimination during the hiring process. The EEOC has identified this type of discrimination as racial discrimination, due to the disproportionately high rate of African American incarceration.74Fancher, supra note 20. Inclusive hiring will require the removal of barriers and enforcement of EEOC guidelines related to ending racial discrimination (in the context of criminal records). Additional funding is needed to increase the EEOC’s capacity to investigate these practices.
Correctional facilities can play a key role in the reintegration process by focusing on job development training that is not legally restricted by collateral consequences. These opportunities should also focus on high job growth areas in the technology and manufacturing sectors. It is critically important to address occupational segregation by creating equal access to career opportunities that provide economic growth, building new job pipelines in key growth areas, and aligning job development programs with prisons achieving this goal. Correctional facilities can also support the transition into employment outside the prison gates by establishing connections with employers to create a bridge for post-release job placements.
C. Children, Families, and Community
Children and families seek to remain connected with their incarcerated loved ones. One of the key ways to do so is phone communication because most offenders are incarcerated an average of one hundred miles away from home.75Artika R. Tyner, End Minnesota’s High Prison Phone Rates, MSR News Online (March 13, 2014), https://perma.cc/8MH3-T748. However, the high costs of prison phone calls create an undue burden. The Campaign for Prison Phone Justice seeks to eradicate this barrier to communication by ensuring prison phone call prices are fair, reasonable, and just.76Campaign for Prison Phone Justice, Nation Inside, https://perma.cc/GW3N-SCCD. The adoption of the Martha Wright Act can serve as a vital tool for placing a cap on prison phone calls and making calls more accessible.77Martha Wright Prison Phone Justice Act, H.R. 6389, 116th Cong. (2019)..
Investment in prosocial activities can also aid in reducing recidivism and promoting community engagement. Voting is one of the key factors because it supports rehabilitation.78Erika Wood, Restoring the Right To Vote 8–11 (2009), https://perma.cc/M246-G9B2. States can coordinate voter registration upon release and allow those on probation and parole to vote. In addition, undercounting and prison gerrymandering have an impact on communities’ economic and political well-being.79Artika R. Tyner, Be a Leader & Be Counted: 2020 Census, Monitor (Sept. 24, 2020, 1:16 PM), https://perma.cc/NZE7-ESGS. To promote financial inclusion, the next census should count offenders in the community where they were last domiciled. This would redirect millions of dollars into African American and other disenfranchised communities. Further, it would support fair political representation since districting lines are defined by census numbers.80Prison Pol’y Initiative, Prison Gerrymandering Project, https://perma.cc/X7EX-YWPM..
D. Racial Justice Framework
Bridging the racial wealth gap with a focus on the financial impact of mass incarceration on the African American community will also require a paradigm shift. A clear vision for the future informed by the past will aid in formulating sustainable solutions to this multifaceted challenge. As legendary innovator and creator George Washington Carver stated, “where there is no vision, there is no hope.”81Emily Van Schmus, Quotes for Black History Month, Better Homes & Gardens (Jan. 27, 2021), https://perma.cc/FUX7-BLZ8. A vision of a more just and inclusive society will need to be informed by the guiding principles of racial justice. “Racial Justice is the creation and proactive reinforcement of policies, practices, attitudes and actions that produce equitable power, access, opportunity, treatment, and outcomes for all . . . .”82Boston Public Health Comm’n, Equitable Community Engagement Plan 2020-2023, at 2, https://perma.cc/9D4K-59DA. Vision requires action that is demonstrated through clarity of purpose, metrics, benchmarks, and ongoing evaluation.83Artika R. Tyner, The Inclusive Leader: Taking Intentional Action for Justice and Equity, Att’y at L. Mag. (Jan. 29, 2021), https://perma.cc/J74D-RAVS. These measures will guide the vision forward as it materializes.
Working towards closing the wealth gap between blacks and whites is integral to the future of America. A vibrant and productive economy is built upon full workforce participation. The realities of mass incarceration limit the possibility of realizing this vision. According to renowned scholar and activist Angela Davis, “[t]o safeguard a democratic future, it is possible and necessary to weave together the many and increasing strands of resistance to the prison industrial complex into a powerful movement for social transformation.”84Angela Davis, Masked Racism: Reflections on the Prison Industrial Complex, Colorlines (Sept. 10, 1998, 12:00 PM), https://perma.cc/TT5B-S976. Because significant resources are allocated towards corrections, limited resources are available to address other pressing challenges. Most of the $75 billion that was spent on corrections in 2008 was spent on incarceration.85James Cullen, Four Things We Can Do to End Mass Incarceration, Brennan Ctr. for Just. (Dec. 19, 2016), https://perma.cc/27RE-4DE3; John Schmitt & Sarika Gupta, The High Budgetary Cost of Incarceration, Ctr. For Econ. & Pol’y Rsch. 1, 2 (June 2010), https://perma.cc/3JXM-DJKT. These resources could be used to finance other national priorities that yield residual benefits, such as healthcare and education. Further, offenders struggle to become gainfully employed due to their criminal records. The U.S. gross domestic product (“GDP”) is reduced by $78–$87 billion as a result of excluding formerly incarcerated job seekers from the workforce.86Cherrie Bucknor & Alan Barber, The Price We Pay: Economic Costs of Barriers to Employment for Former Prisoners and People Convicted of Felonies, Ctr. for Econ. & Pol’y Rsch. 1–3 (June 2016), https://perma.cc/RBA3-N857 These are missed opportunities to strengthen the economic engine of the African American community and bridge the wealth gap.
A conversation on the racial wealth gap that leaves out the role of mass incarceration is incomplete. For decades, African Americans have been disproportionately impacted by higher rates of arrest, convictions, and harsher, extended sentencing. This has led to missed opportunities for economic growth and wealth creation in addition to fragmented familial bonds and community connections. Future financial growth in African American communities is contingent upon a radical transformation of our laws and policies that restrict access to economic growth, by decreasing the highly disproportionate rate of African American incarceration.