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July 8, 2020

Criminal Justice Reform in the Commonwealth: 1.6 Million People in Virginia with a Criminal Record Deserve A Fair Chance To Succeed

In the wake of a national conversation about racism, policing, and criminal justice reform, the time has come for changes to a system that has disproportionately targeted and incarcerated communities of color. This summer’s special session will be the next opportunity for Virginia’s lawmakers to advance necessary reforms, including new “fair chance” policies that remove counterproductive barriers including in areas of employment, housing, and education and allow people with criminal records to build a more secure economic future. 

A Flawed, Racially Biased System

Decades of “tough on crime” policies and mass incarceration have left more than 70 million people or nearly one in three adults in the United States with an arrest or conviction record. As a consequence, nearly half of all children in the country have at least one parent with a criminal record, making it easier for poverty to linger for multiple generations. 

But these trends have not been equally experienced, including in our commonwealth. A variety of factors including discriminatory laws, practices (e.g., “broken windows” policing), and implicit biases mean that race is a major factor at every stage of the justice system, such that Black Americans experience more frequent stops, searches, and arrests by police, while also facing higher rates of pre-trial detention, and ultimately harsher sentences than similarly situated white people. In fact, Black Virginians comprise about 19% of the population, but they accounted for more than 40% of all arrests in 2019. More than half 55% of all people in Virginia’s prisons are Black. These data points encapsulate a problem that is national in scope: in 2018, for every 100,000 adults in the United States, 555 people were imprisoned. But for every 100,000 Black adults, that number surged to more than 1,500 people. 

For the nearly 13,000 people who are released from prison in Virginia each year, and even for those who have been convicted of a minor offense, the stigma of a criminal record is difficult to wash away, including in the employment context. This is in part because employer background checks have become a standard practice. When these checks turn up a record, the applicant if they are hired at all can expect lower earnings: men who were formerly incarcerated can expect to work nine fewer weeks per year and earn 40% less annually, for a total loss of $179,000 even before the age of 50. 

These collateral consequences, however, are most pronounced for people of color. A landmark study found that among job applicants with a criminal record, the likelihood of a favorable response (e.g., an interview or job offer from the employer) for white candidates dropped by half, from 34% to 17%, but it fell by almost two-thirds, from 14% to 5%, for Black candidates. In fact, evidence suggests that white applicants with a criminal record are more likely to receive an interview from an employer than Black applicants without one. And among women who were formerly incarcerated, one analysis found that the odds of a favorable response from an employer were 93% greater for white women than for Black women. Overall, these findings underscore how job-seekers with a past criminal record are often punished twice: once for the record itself and again for the color of their skin. 

The barriers to employment that people with records face undermine our economy and public safety. According to one estimate, the stigmatization of people with felony records reduces the annual U.S. gross domestic product by an estimated $78 to $87 billion. This is despite growing evidence that people with records make good employees, an important consideration for businesses and even the U.S. military. In fact, research on individuals with a felony record serving in the military found that they were promoted more quickly and to higher ranks than other enlistees and were no more likely than service members without records to be discharged for negative reasons. At the same time, access to employment and higher wages has been shown to reduce recidivism and makes our communities safer. 

Image of typewriter with a job offer letter

Creating Opportunity through Fair Chance Policy Reforms

As the General Assembly considers a menu of options to reform our criminal justice system, policies that create pathways to good-paying jobs for people with records can bolster families, communities, and our economy. These fair chance reforms, which build on existing laws in Virginia and best practices from other states, include:

  1. Extending Ban-the-Box (BtB) to the private sector.

    In general, BtB laws delay when employers may inquire about a job applicant’s past criminal record, often until the interview stage. The basic goal is to ensure that an applicant is judged on their qualifications first. BtB laws often provide a framework, based on guidance from the Equal Employment Opportunity Commission, to conduct an individualized assessment of any past convictions, including 1) the amount of time passed since the offense was committed, 2) whether the offense is related to the job sought, and 3) any evidence of the applicant’s rehabilitation.

    During the 2020 legislative session, the General Assembly passed in bipartisan fashion –  House Bill 757 (Del. Aird), which prohibits arrest and conviction inquiries on initial employment applications for positions with state agencies and localities. This was an important first step for people in Virginia with a record: research has shown that BtB policies “raise the probability of public employment for those with convictions by about 30% on average.” Other recent studies have found that BtB laws increase the employment of residents living in “high-crime” neighborhoods, suggesting that these policies are meaningfully increasing opportunity for people with records.

    To build on this progress, Virginia’s lawmakers should extend BtB to the private sector, as 13 other states across the country have done.
  2. Reforming Virginia’s restrictive expungement law.

    Virginia needs a strong expungement policy both because a criminal record should not be a life sentence to poverty and research shows that an individual’s risk of recidivism drops significantly over time, eventually making them no more likely than the general public to commit a crime in the future. With this in mind, the main idea behind expungement laws is simple: once someone remains crime-free for a specified period, certain prior offenses are sealed from public view. With a “clean slate,” the goal is to knock down the many barriers relating to employment, housing, education, and public benefits that often result from a criminal record.

    Expungement policies hold the power to change lives. A recent study of Michigan’s law found that within one year after a record is cleared, people are not only more likely to be employed, but wages go up by more than 20%.

    Virginia’s expungement law is widely understood as one of the “least forgiving and most restrictive” laws in the nation, giving very few people the chance at a clean slate. Current law generally provides no process by which adults can expunge a past record. The law’s scope is severely limited, extending only to people who have been tried but not found guilty, people who face charges that are later dropped, and people who receive an absolute pardon from the governor.  

    For these reasons, legislation to reform the law has become commonplace, even as the most significant reforms have failed to advance. In the 2019 session, HB 2278 (Del. Cole), which provided for the automatic expungement of a record after an absolute pardon, passed unanimously. More recently, in the 2020 regular session, a flurry of bills were introduced but did not pass, including a proposal that would have permitted people to pursue expungements of past convictions if they remain crime-free for eight years.

    Future reform should be guided by two key principles. First, the scope of Virginia’s law should be expanded to make expungement possible in more circumstances. For example, Maryland outlines more than 100 misdemeanors that are eligible for judicial expungement after a specified waiting period. Many other states from North Carolina to Mississippi to Michigan permit, in some situations, the expungement of certain felonies, especially minor, non-violent offenses and where the individual has no other significant criminal history. 

    Second, Virginia should establish a system that seals records through an automatic process, rather than a petition process, which can be costly and time-consuming. The experiences of other states underscore why this is important: according to one study, only 6.5% of people who could get their records sealed did so within 5 years of becoming eligible. To avoid this “uptake gap,” Pennsylvania became the first state in the country to set up an automatic process, which seals arrest records after charges are dropped and for certain minor conviction records after 10 years. Virginia can learn from this model, which was enacted with bipartisan support in Pennsylvania. Indeed, the Virginia Legislative Black Caucus has specifically named automatic expungement as a necessary component of future criminal justice reform.

The Time for Reform Has Come

The work to reform our criminal justice system and unravel collateral consequences that keep too many people in Virginia in poverty is vital, urgent, and will require a sustained effort. The General Assembly can begin that work this summer.

Decriminalizing Poverty

Phil Hernandez

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