How Mass Incarceration Became a Poverty Trap

Rebecca talks to the Brennan Center’s Ames Grawert & Terry Ann Craigie about their research finding the annual earnings loss by Americans with criminal conviction records now totals $372 billion per year — further entrenching poverty and the racial divide. Subscribe to Off-Kilter on iTunes.

“America is approaching a breaking point. For more than four decades, economic inequality has risen inexorably, stunting productivity, weakening our democracy, and leaving tens of millions struggling to get by in the world’s most prosperous country. The crises that have rocked the United States since the spring — the coronavirus pandemic, the resulting mass unemployment, and a nationwide uprising for racial justice — have made the inequities plaguing American society more glaring than ever.

This year’s intertwined emergencies have also driven home a reality that some would rather ignore: that the growing gap between rich and poor is a result not just of the market’s invisible hand but of a set of deeply misguided policy choices. Among them… is our entrenched system of mass incarceration.”

So writes Joseph Stieglitz in a foreword to a recent report released by the Brennan Center that provides critical new analysis showing the extent to which America’s failed experiment with mass incarceration and over-criminalization has served to dramatically worsen income inequality in the U.S. — while also deepening already glaring racial disparities, such as the massive racial wealth gap.

Among the report’s harrowing findings: people who spend time in prison see their lifetime earnings cut in half — and the annual earnings loss by Americans with criminal conviction records is $372 billion per year.

This week’s guests:

  • Ames Grawert, Senior Counsel in the Brennan Center’s Justice Program (@amescg)
  • Terry Ann Craigie, Economics Fellow in the Brennan Center’s Justice Program, and associate professor of economics at Connecticut College

For more on all this:

TRANSCRIPT:

♪ I work and get paid like minimum wage

Sights to hit the clock by the end of the day

Hot from downtown into the hood where I slave

The only place I can afford ’cause my block ain’t safe

I spend most of my time working, tryna bring in the dough…. ♪

REBECCA VALLAS (HOST): Welcome to Off-Kilter, the show about poverty, inequality, and everything they intersect with, powered by the Center for American Progress Action Fund. I’m Rebecca Vallas.

“America is approaching a breaking point. For more than four decades, economic inequality has risen inexorably, stunting productivity, weakening our democracy, and leaving tens of millions struggling to get by in the world’s most prosperous country. The crises that have rocked the United States since the spring — the coronavirus pandemic, the resulting mass unemployment, and a nationwide uprising for racial justice — have made the inequities plaguing American society more glaring than ever. This year’s intertwined emergencies have also driven home a reality that some would rather ignore: that the growing gap between rich and poor is a result not just of the market’s invisible hand, but of a set of deeply misguided policy choices. Among them, this groundbreaking report reveals, is our entrenched system of mass incarceration.”.

I’m quoting here from Professor Joseph Stiglitz in a foreword to a recent report released by the Brennan Center that provides critical new analysis showing the extent to which America’s failed experiment with mass incarceration and over-criminalization has served to dramatically worsen income inequality in the U.S., while also deepening already glaring racial disparities, such as the massive racial wealth gap. Among the report’s harrowing findings, people who spend time in prison see their lifetime earnings cut in half, and the annual earnings lost by Americans with criminal conviction records is now $372 billion with a B per year. The report is called Conviction, Imprisonment, and Lost Earnings: How Involvement with the Criminal Justice System Deepens Inequality. And I’m excited to be joined by two of its authors.

Ames Grawert is Senior Counsel in the Brennan Center’s Justice Program. He leads the program’s quantitative research team, focusing on trends in crime and policing and the collateral costs of mass incarceration. And Terry-Ann Craigie is the Economics Fellow in the Brennan Center’s Justice Program. She works to document the broader economic and social costs of mass incarceration and is also an Associate Professor of Economics at Connecticut College. Ames, Terry-Ann, thank you so much to you both for making time to come on the show in such a busy moment. And congratulations on this phenomenally important and timely report.

TERRY-ANN CRAIGIE: Thank you, Rebecca.

AMES GRAWERT: Thank you. It’s such a pleasure to be here.

VALLAS: Well, and I say timely, of course, as COVID economic relief talks resume in Washington, although we’ll see to what end this time around. And timely, of course, as the transition to a Biden/Harris administration moves forward — words that feel good to say every single time we get to say them — with addressing inequality, and in particular, racial inequality, high on the President-elect and VP-elect’s promised priority list. So, just to get right into it, because there’s a lot to talk about here, I want to just sort of say (we were talking a little bit about this off air) a big part of why this report struck me and why I really wanted to have you both on the pod at this kind of a moment is because of how often economic policy and criminal justice policy are treated as entirely separate conversations. A lot of my own research and policy work over the years has been at this intersection, so obviously, I have something of a bias here. But I also think I’m right when I say that criminal justice policy is economic policy and vice versa. Or put differently, sometimes I’ve said it as a criminal record is both a cause and a consequence of poverty. And your report is just an incredibly important contribution to really the literature that makes this point.

So, I’d really love to start with you, Terry-Ann, and give you an opportunity to talk about some of the chief findings in this report. I noted in my opening that some of what you do is to actually put numbers to the long-term impact of criminal justice involvement on a person’s future economic chances. Talk a little bit about what you guys found there.

CRAIGIE: So, you make a great point there, Rebecca. To start us off, let’s think about the fact that having a criminal record is really like a death sentence when it comes to the labor market in many ways. We know that having a criminal record also presents a roadblock to education, housing, public assistance, civic participation as well. But it’s chiefly, these collateral consequences, are chiefly found in the labor market. And what our report set out to do is investigate how a criminal record might affect labor market outcomes, primarily earnings. And the report has to be meaningful, right?

What we wanted to do, we wanted to calculate the number of Americans alive who’ve had a misdemeanor, a felony, or who have been imprisoned. Next, we wanted to figure out what that impact would be. So, what is the impact of a criminal record such as this on earnings measured on annual and lifetime bases? And then we would calculate the total economic losses from these events. And what our study confirmed is that a criminal record, regardless of the spectrum, whether it’s as small as simple assault or petty theft to a long time spent behind bars via imprisonment, the impact on earnings is pretty astronomical.

So, just to give you some numbers, what we find is that there are close to 70 million Americans alive who’ve been either imprisoned, who’ve had a misdemeanor, or who’ve had a felony. And what we find for this particular population is that either a conviction or imprisonment will lower your earnings significantly. So, if you’ve been imprisoned, your earnings will be cut by half on an annual basis. But over the course of a 30-year career, you’re bound to lose about a half a million dollars in earnings. And further, what we find is that even a misdemeanor or a felony, if you’ve never been imprisoned, your annual earnings are going to be cut by 16 to 22 percent. And over the course of a 30-year career, you’re going to lose about $100,000 on average. And so, when we aggregate these numbers, it accounts for $372 billion. That’s with a B.

And when we put that in context, it’s about half of GDP per year. You could close the York City poverty gap 60 times over, and you could even give a home to a homeless person worth half a million dollars with money left to spare. And so, these consequences, these economic consequences from either a conviction or imprisonment are pretty large, and they seem to be quite perpetual.

VALLAS: Well, and I want to jump in there and just note that part of, I think, what’s so stark about these findings, right, is it’s been, I think, pretty well appreciated — it hasn’t always been appreciated — but in recent years, it has been increasingly well appreciated that having a criminal record can be a significant barrier to employment. And that’s something we talk a lot about on the show, in particular because of my interest in these issues. But you all have really taken that concept many steps further because it isn’t just about, OK, while people face barriers to employment, they might not get callbacks, they might not get the job, people are at some point going to, in the lifetime they have after being released from prison or if they’ve never done time behind bars but have a conviction that’s following them, going to find some way to support themselves. And very infrequently do I find that the conversation ends up being, well, what is going to be the impact on their earnings once they are lucky enough to find a job at some point, if they are?

So, draw out the earnings/losses just a little bit further for me, given that you really broke this down in really rich ways. You looked at different types of records that people have who did time behind bars and who didn’t. There’s a lot there. But help us understand really the significance of the findings when you zoom out and kind of recognize what it is that we’re talking about when you think about the tremendous scale here.

CRAIGIE: Right. You’re absolutely right, Rebecca. I mean, it is a tremendous scale. Our report really dissected or dissolved what criminal justice involvement looks like. So, again, we separate those who’ve had a misdemeanor but who’ve never been imprisoned. We also look at those with felonies who have never been imprisoned, and then we look at those who’ve been imprisoned separately. And even if you’ve never been imprisoned, a conviction of any spectrum, whether it’s a misdemeanor or a felony, is going to cost you on an annual or lifetime basis. If you have a misdemeanor, your annual earnings are going to fall by 16 percent. If you have a felony, but you’ve never been imprisoned, your earnings are going to fall. Your annual earnings are going to fall by 22 percent. And over a lifetime, this accounts for about $100,000 in earnings over a 30-year career.

And we further dissect this by race. And what we find is that by the end of a career, someone who’s Black and without a criminal record actually does worse than somebody who’s white with a criminal record! And so, we see that the consequences or the stigma attached to a criminal record is not uniform across racial ethnic groups, and it tends to be more devastating for Black and brown people.

VALLAS: And I want to dig in on that more, and Ames, I want to bring you in as well. That was really another major finding of the report. Actually, there’s a few different findings that are all worth spending time with when it comes to the racial implications here, right? On the one hand, you find that mass incarceration and over-criminalization, really, we should say — because it isn’t just about people who have been behind bars, to restate that — they haven’t just become major drivers of poverty and of inequality. They’ve also played a huge role in exacerbating and perpetuating racial inequality, and in particular, racial income disparities and the racial wealth gap. But you also note that you really got to keep in mind, as you think about the intersection of the stigma that comes with a criminal record and the racial disparities that a criminal record can exacerbate, the baseline racial disparities that we already have are so great that a white person with a record, as you just said, is going to earn more, on average over their lifetime, than a Black person who does not have a record. Which, of course, parallels other work, including by greats like Devah Pager who’ve looked at this in other contexts. But I’d love to hear you, Ames, as we bring you in a little bit here, talk a little bit about how your report finds that mass incarceration and over-criminalization have themselves exacerbated existing racial disparities.

GRAWERT: Absolutely, and thanks so much for having me, Rebecca. It’s a real pleasure to be here. Devah Pager and some of her work is something that was on a lot of our minds when we were working on this report and when we came up with that finding. I think we were all surprised by it. But at another level, we sort of knew to expect that. When we’re dealing with the disadvantage created by the criminal justice system, none of that exists independent of racism and racial injustice in this country. So, even if you strip away all the problems caused by mass incarceration, there’s still a baseline level of disadvantage that’s being perpetuated against people of color. And I think that’s what that finding that you referred to really shows: that if we have someone who’s Black with no record, who at the end of a career is still earning less than someone who’s white with a record, that suggests that if you could snap your fingers and disappear the criminal justice system from that picture, you’d still be operating with a profoundly unjust society. Look, there’s something else going on. I think that was a really sobering thing to expose.

Going into this report, we also sort of wondered. I don’t think we had any preconception about this, about whether you’d see the effect of a criminal record or a prison record dissipate over time. I mean, I think we hoped the answer was yes, that as life goes on, it becomes less and less salient in your job prospects and career. But what our findings really suggest is that that conviction or imprisonment event sort of knocks you on to a completely different trajectory, which is a really sobering and upsetting thing to think about. That you can’t really get back on that track beforehand, that a second chance might not be real.

And Terry-Ann alluded to this too, but we found that to be much more so for Black men and women. In our sample, it seemed like people who were white or Latino seemed to sort of recover a bit of their income trajectory. That never really happened for Black men and women in the sample, which is really sobering and tees up exactly what you’re saying, that what we’re seeing is mass incarceration help tee up and perpetuate cycles of poverty. You become justice-involved because you’re poor. You’re poor because you’re justice-involved and on and on and on. Yeah, it was a sobering report to work on, to say the least.

VALLAS: Well, and in some ways, right, you’re raising a couple of different buckets of issues. And on the one hand, not everyone starting from the same starting line, right? And so, when you add a criminal record onto existing either disadvantage or privilege, right, you see that intersection there. But on the other hand, and I think this is just such an important takeaway from your report — obviously, again, adding to a really important literature, not the first time that we’ve seen this, but the most recent, and I think largest-scale report that I have seen that underscores this point — and that is that a criminal record follows someone for life. This is not just a problem that someone faces when they are immediately quote “returning” to society or in the period following finishing their sentence, if they don’t end up behind bars. This is something that follows someone for life and has dramatic economic implications for an individual, for a family.

I want to just sort of do the public service announcement reminder, even though your report doesn’t get into this, that this is families, too, who get impacted. Some work that CAP did a number of years ago on related issues found that nearly half of American kids have at least one parent with a criminal record, and that that can dramatically impact family economic security and kids’ long-term chances here. So, this lifelong implication, as you put it, Terry-Ann, a death sentence for someone’s employment chances or their economic potential, I think that really sums it up incredibly well.

So, I want to bring the significance of the report into kind of the present day conversations that are happening in Washington, in halls of power across the country. To do that, I want to refer back to Joseph Stiglitz, who I quoted before, quoted his foreword in the opening, and I mentioned this up top as well. And that is that given how many people’s lives have now been impacted by America’s failed experiment — I think we can all call it a failed experiment — with mass incarceration and over-criminalization, the individual earnings losses that you guys are talking about and that we up till now have been talking about on mostly an individual basis and a family basis, they add up to immense macroeconomic implications that we as a nation can’t afford to ignore either even if we didn’t care about the individual people who are having their lives destroyed economically as the aftermath of involvement with the criminal justice system.

And this is a big part of why I wanted to have this conversation about a report that you guys put out actually in September now, in this current moment. Because we’ve got leaders in Washington resuming COVID relief talks. Most of the focus is on more traditional economic policy solutions, many of which I should note, like unemployment insurance and the expiring federal eviction moratorium, have to be at the top of the list as Congress hopefully gets something done. But your report is just such a clarion call to policymakers to remember that criminal justice reform is also an economic issue and has to be understood as such, particularly at times of economic downturn, or else we risk — to be really concrete about it — leaving behind one in three American adults in an unintentionally exclusive recovery, and then longer term, relegating them to a permanent underclass that’s serving out life sentences to poverty that no judge ever handed down!

Ames, staying with you for just a moment, talk to me about the significance of these research findings in the context of the current downturn spurred by the pandemic and what your hoping that leaders in Washington take from it as they continue to debate needed relief.

GRAWERT: Absolutely. Yeah, it’s really funny. I think this paper did wind up coming at precisely the right time, but almost by accident. We spent a long time developing this paper, and it originally, the original focus was on the macroeconomic costs. We wanted to see if you add up all the dollars that go unearned from unemployment and underemployment related to criminal justice involvement, would that be a big number? And would it be something that would grab people’s attention at a macroeconomic level? The answer turns out to be yes. [chuckles] As Terry-Ann pointed out, the answer is definitely yes. But that was sort of not the full story that we found. We found the full story was more personal, that, as you say, these are people who are being set up for a permanent sentence of poverty. So, I think people are sort of coming to a point where they’re ready to hear that, which has been a welcome thing to see.

I actually saw Senator Schumer gave an interview early last month saying, and I want to find a quote because the quote is actually just really interesting. He says, quote, “Criminal justice reform is another economic issue. If you have a small conviction for a minor crime, you can never get a good job.” That’s not something I would’ve expected to hear from a United States senator a couple months or even a year ago. But to hear a leading Democrat say that and to say it in the context of what he envisions his work with President-elect Biden will be is really exciting. It’s exciting in the sense that this is a problem whose time might finally have come to be talking about it as a solvable problem. So, I’m hopeful that it means that when we get to talking about real recovery, real measures to fight inequality, we won’t leave the justice-involved community behind. And you’re entirely correct to talk about the effect on families as well. I know Terry-Ann’s done some research on that, too.

CRAIGIE: And just to follow up with Ames’s point that was brilliantly put, by the way, yes, incarceration has far-reaching effects, not just the individual. There is an extensive literature, including my own, confirming that incarceration, especially of fathers, has adverse effects on children’s outcomes, such as their cognitive development, behavioral problems, food security, as well as future justice involvement. But to speak to Senator Schumer’s point more directly, he is indeed correct that having a minor conviction makes it difficult for you to find a job. Unemployment and underemployment are two of the most common collateral consequences associated with a criminal record. Still, I think that criminal justice reform as an economic issue runs far deeper than that. We really need to think about reforms both from the ex-ante and ex-post positions. Now, when I say ex-ante here, I mean we need to do more on preventing justice involvement in the first place along with their far-reaching precautions before they happen. Now, for the population most at risk for justice involvement, educational and economic opportunities and future economic prospects are usually pretty grim, and in my view, mean key factors leading to justice involvement.

Further, the lack of economic self-sufficiency influences carceral outcomes in other ways, specifically through the inequities already embedded within the criminal justice system. Now, the poor and disadvantaged typically have representation by public defenders, for example. And they often encourage them to take plea deals whether they’re guilty or not, which basically secures them a spot behind bars. And so, living in areas with over-policing or rampant racialized policing as well ensure that Black and brown people will be disproportionately represented behind bars. And so, we do need to do a lot more to improve the economic outlook and economic justice for at-risk populations on the front end, so we won’t be left trying to fix the hefty collateral consequences such as joblessness ex-post or on the back end.

VALLAS: It’s also, and I feel like you’ve both really sort of touched on this, but it’s worth really drawing out as its own point as well, the fact that it sort of sets up a feedback loop, right? That you’ve got poverty actually being itself a driver and a cause of criminal justice involvement. And then you have criminal justice involvement itself being a poverty trap that can then result in further criminal justice involvement, for lack of any sort of other way to get a foothold. And so, this sort of, I’m actually struck thinking about a survey, some survey data that I was looking at just the other day from The Marshall Project that was just absolutely harrowing. They had gone, it was the second round of survey data I’d seen from this project, which is really, really significant. Because the people they’re serving are actually people who are behind bars who almost never get actually asked for their opinions or their qualitative data in surveys. And they were asking kind of the $1 million question, right? Or I guess based on you guys’ research, it would be the $372 billion question, which is what could have prevented you from ending up behind bars in the first place? And the top three answers — and this just like should be absolutely soul crushing to anyone listening — were number one, a living wage, number two, therapy, and number three, affordable housing, right?

And so, the takeaway, of course, is that here we are, as a society, effectively choosing to warehouse people, largely low-income people, largely Black and brown people, disabled people behind bars in numbers that eclipse anything else that any other country around the world sees fit to do, rather than provide affordable housing and ensure a living wage and ensure that we have universal, affordable healthcare that also involves mental health services. I mean, and on and on. So, back to the kind of the other directionality, right, of economic policy also intersecting with criminal justice policy.

And Ames, I want to go back to you as we sort of dig in more deeply then on the policy agenda that flows from this. As I think Terry-Ann was just putting it, the policy take aways sort of fall into a couple of different buckets. There’s the front-end piece of needing to prevent people from ending up behind bars and/or with a conviction in the first place to prevent them from falling into that poverty trap, among many other things. But we also need relief on the back end for the 70+ million people who already have criminal records that are preventing them from securing anything resembling gainful employment that could allow them to get ahead and close those racial gaps. Talk to me about the policy agenda that you feel that this research speaks to. We’ll start at the federal level. I know there’s a lot we can get into at the state and local level as well.

GRAWERT: Absolutely. Yeah, I also want to plug we worked on this project with the Robin Hood Foundation. There’s a group in New York that’s aimed squarely at funding efforts to eradicate poverty in New York City. And Wes Moore, who leads Robin Hood, just released a book over the summer called [00:26:41]Five [0.0s] Days, talking about Baltimore and the Baltimore uprising in 2015. In his prelude, I just think it’s a great vignette that shows exactly what you and what Terry-Ann were talking about. His prelude to the book talks about Freddie Gray, but about Freddie Gray’s life: how the incredible level of poverty is something that I think few of us can really understand that he was born into and the effect that had on his life. Like the high concentration of lead in the house that he was born into affecting brain development. And I don’t think we’ve truly reckoned with the way, you know, talk a lot about equality of opportunity, but I don’t think we’ve truly reckoned with the degree to which we don’t provide equality of opportunity to people. And that really, it’s really staggering. And I think it does set people up on a trajectory that a society more committed to dignity could help them escape from.

So, policies! [chuckles] I think one big one, and one thing that I know you have an interest in. I know you were just speaking with Josh Hoe, who’s one of my Twitter friends as well about, is sealing expungement. What we show is that these conviction records never really go away. But that’s a policy choice. You can make them go away. There are laws that can be written that would allow people to move past a minor criminal record or a more serious criminal record if we were willing to be a little more bold about it. So, I know there was pending in Congress a federal version of the Clean Slate Act that would allow people to seal minor criminal records and let them move past it so they don’t have to acknowledge that record in future applications. That’s a real step in the right direction. And there’s, I can’t remember if you mentioned this in that episode with Josh, but there’s been some promising research showing that in the year after a record is sealed, it actually does lead to some promising wage growth for people who receive that benefit. I think that’s really promising and worth exploring, especially at the state and local level, but at the federal level, to be sure as well.

Another thing that’s really dear to my heart is prison education. A lesser-known aspect of the 1994 crime bill that was litigated so extensively over this past presidential election cycle essentially made it impossible for people who are behind bars of a federal or state prison to receive Pell Grants. And the effect on what was then a burgeoning field of post-secondary education behind bars was nothing short of cataclysmic. The data on the number of providers who had to essentially close up shop because their students could no longer afford to participate is really staggering. So, what’s happened since then is that prison education came close to vanishing from prisons for a little bit, then adapted considerably to new funding models, but funding models that are sort of less stable. So, that means that, especially if we’re talking about a population of people who might have other disadvantages, might never have had a chance to get a good education, if those people behind bars now are hoping to get an education and turn their life around, it’s that much harder for them today.

Restoring Pell Grant eligibility would be just the simplest thing in the world, especially if we’re talking about the harms created by the ’94 crime bill. And it seems both Republicans and Democrats are having that conversation. I’ve seen, you know, I’ve talked to some of the best providers in the field about this. They think it would really turn the ship around. It would have a huge, almost waterfall, effect on their ability to provide services to people in prisons.

And something that’s been really fascinating to me — this is actually a really popular idea with both Republicans and Democrats. It’s just a good idea — [chuckles] I actually, I worked with Gerard Robinson, Stan Veuger, who also was a peer reviewer on our report, and some people at the American Enterprise Institute, generally regarded as a somewhat right-of-center think tank, on a book about prison education. And one of the sort of sub-currents of the book was we should really restore Pell eligibility. So, I think if…. You know, it’s hard to move anything in Congress, but there’s such a huge coalition behind Pell restoration. And I think it wouldn’t negate the damage that we identified, the damage of time in prison, but it would blunt that effect. And that sort of harm reduction is, I think, it’s not nothing. I think it’s really worth doing.

VALLAS: I don’t want to put you on the spot to look in a crystal ball that is incredibly cloudy until at least January 5th, possibly a little bit after that — assuming it will take a minute to know exactly what has transpired. Of course, I’m referring to the date on which we’re going to see some really important Senate runoff elections take place in Georgia that will help us understand, we think, who controls the Senate — what do you see as prospects right now for criminal justice reform conversations, but also in particular, the bipartisanship you were just talking about? It hasn’t just described the outside stakeholders who maybe are strange bedfellows on these kinds of issues. It has also, to some extent, described the energy and momentum we’ve seen in Congress, especially in a time when very little can be agreed on. But even in the incredibly polarized Congress that we’re apparently still living through for just a little while longer, criminal justice reform has been one of those kind of rare bipartisan issues that has seen traction despite the polarity. Most recently, we saw the First Step Act where some incremental progress was made at the federal level.

Rather than just putting you on the spot to say, where do you think criminal justice reform is headed in the next conversation and under a Biden/Harris administration, where we may have a little bit greater clarity, I think I’ll phrase the question a little more generously and ask you, where would you like to see criminal justice reform conversations headed in a new Congress now that we have a Biden/Harris administration coming in? And do you see — you referenced that terrific Chuck Schumer quote before about criminal justice being an economic issue — do you see increasing understanding in Washington of the interconnectedness between reckoning with mass incarceration and what a huge swath of our population we’ve saddled with criminal records at this point, and the economic and racial divides that are currently being put on steroids by the ongoing downturn that was triggered by the pandemic?

GRAWERT: Yeah, it’s a really complicated issue. I have to say too, I grew up in Atlanta, so I am just fascinated to see all this attention on my home city. [laughs]

VALLAS: I didn’t know that you did, because I did, too. That is so weird.

GRAWERT: Oh, really?! We’ll have to talk about it. [laughs]

VALLAS: All right. On the list for after we stop taping.

GRAWERT: Exactly. Yeah, it’s fascinating. But so, one thing that my colleagues and I have talked about for years — and we’re hardly the only people talking about it. And this is something that could happen regardless of what happens on January 5th — is clemency reform. There’s been, especially in the past few weeks, some really sobering and disturbing news about how the pardon power has been used or how it’s alleged to have been used by this president. Obviously, he’s done some limited good things with it as well, like the clemency for Alice Marie Johnson, who’s an incredible advocate in her own right. But so, the antidote to a bad use of the clemency power, in my mind, is not let’s curtail the clemency power. The antidote is good use of the clemency power to restore public faith in that as an important tool in a criminal justice system that has some semblance of belief in mercy.

So, what the Brennan Center has been talking about for years is really, we advocate for a proposal that Professor Rachel Barkow and Professor Mark Osler have been championing forever, the idea of which is to strip DOJ of its sort of veto point over the clemency process. I think Mark Osler would say DOJ has like seven different points where they can veto a clemency petition. But instead, centralize the power more in the person of the president. So, the idea is that you would have a panel of experts, essentially, who would advise on clemency petitions that come in. And DOJ would be a stakeholder in that conversation, but they wouldn’t be the only voice. And the idea is to systematize clemency, basically, and to ensure that it takes account of things like rehabilitation, mercy, sociological understanding of how crimes happen, like you mentioned earlier.

And another good part of that is that, aside from systematizing it, it could subject it to some predictability. You know, I was a huge fan of the Obama administration’s clemency initiative, but one criticism was that it was hardly routine. There were people who seemed to be very similarly situated. Some got clemency, some didn’t. And I think that was, I know that was, very frustrating for people. If we were to truly systematize clemency, you could come up with a way to ensure that people are bought in on the process every step of the way. So, if there’s a concern that might stop them from getting clemency, they can respond to it. Or even if not, that there can be at least be some internal precedent about how clemency grants work, so that people can apply for clemency, keeping that in mind. The sky’s the limit! The president has the ability to almost rewrite the rules of executive clemency. And there’s no shortage of experts willing to tell him how. And I think Professors Barkow and Osler have a real, a great plan on how to do it. So, that’s one. [chuckles]

Number two, I really think there were a few things that were sort of left behind by the First Step Act. And something that was really interesting about watching this campaign, this presidential campaign, it seemed like President Trump was trying to cast himself as the criminal justice reform candidate. Like he was the one who’d gotten the First Step Act passed versus Joe Biden, who he said was a key person in crafting the ’94 crime bill. Of course, that argument belies the fact that Joe Biden has had a completely, a really interesting evolution in criminal justice, and his justice platform was really fascinating and in-depth. But I read that as basically a dare, like a dare from Trump and from the Republican Party, daring Democrats to go big on criminal justice. And we’ll meet you in the middle, and we’ll do something. And that’s a dare that Democrats should take up! They should say, you know, you campaigned in part on criminal justice reform being an important part of the Trump legacy. Let’s actually put pen to paper on a Second Step Act, which you never bothered to do, by the way.

And one really simple thing would be there are a lot of provisions of the First Step Act that weren’t retroactive. So, you have people serving time under provisions of the law that’ve been changed and that everyone now agrees are unjust. Making those provisions retroactive would help some people immediately. That could be done through clemency, but it would probably, it could also be done through legislation. That’s something I would love to see. I’ll go back to Pell and sealing as other things that I think could be bipartisan. If you talk to people on the conservative side of the criminal justice movement, which I do a lot — they’re really valuable allies — some of the vocabulary that they use is “redemption” and “second chances.” And that’s something I very firmly believe in and I think there’s real agreement on. So, if we orient some of our solutions to second chances and redemption, I think maybe we can actually get something done. The concern, of course, is if the Senate shifts into obstruction mode, and then we might just have to really, really hope that President-elect Biden takes the advice of experts seriously and pursues fairly aggressive clemency reform, matching or exceeding something that his former superior, President Obama, did.

VALLAS: Well, and one of the things I have to say with all of this as a question mark around January 5th is, I share your, I think, appreciation for the very genuine bipartisan interest that really does seem to not only still exist, but to continue to be growing in the wake of the First Step Act. And my hope, I think, is the same as yours: that Second Step becomes something people are really going to start to be talking about in earnest at some point in a new Congress, no matter what happens on January 5th, given both parties’ interest in hopefully coming to the issue, coming to the table. But I like your frame, I think, even better, which is that this was a dare, and Democrats should take it. And I think that’s absolutely the message that we should take.

Terry-Ann, are there any other policies that you want to add into the mix? Your work not only on this report and at Brennan, but also in the academy as a professor, focuses on collateral consequences broadly, the barriers that people with criminal records face. And one of the issues you have looked at in particular, is fair chance hiring, often known as Ban the Box. Anything else that you want to throw into the mix in terms of the kinds of policies that could really make a difference to break the link between criminal justice involvement and that poverty trap?

CRAIGIE: Absolutely. I believe that policies must be put in place to prioritize investment in second-chance employment. Now, as you said, Rebecca, I research about how Ban the Box policies affect the public-sector employment outcomes of those with criminal records. And just to give a brief overview of my work to the audience, now, currently we have about 70 million people in the U.S. with some form of criminal record. And trying to find a sense of economic independence is often the number one goal for this population. And so, about 17 years ago, a grassroots civil rights organization called All of Us or None spearheaded a campaign for a fair chance hiring or Ban the Box policies, which again aim to improve the employment outcomes of those with criminal records, primarily within the public sector.

Now, Ban the Box policies, for those who are unfamiliar, mandate the removal of criminal history questions from job application forms. And the objective here is to allow job seekers to highlight their qualifications to employers before criminal history becomes known to them, which could potentially improve their odds of securing a job. And so, my study evaluated how Ban the Box policies change the employment odds within the public sector for those with criminal records. And what I find is that it’s doing a tremendous job. Ban the Box policies increase the probability of public employment for those with criminal records by about 30 percent on average.

Now, in recent years, there has been quite a bit of media attention on the negative unintended consequences of Ban the Box policies, primarily related to a concept called statistical discrimination against young minority males. Now, what do we mean by statistical discrimination here? Now, the theory of statistical discrimination asserts that since young, low-skilled, minority males are more likely to be justice-involved, employers will basically use their race, their gender, their education to try to figure out who has a criminal history. And so, employers might use these characteristics to weed out applicants regardless of their criminal history. And so, young, Black and Latino males with low education are going to be left worse off compared to their white counterparts. And so, my study tests for statistical discrimination against young minority males, but uncovers no evidence of this.

Now, other studies actually confirm my results, including one recent study by Daniel Shoag and Stan Veuger find that Ban the Box policies improve employment in general in high-crime neighborhoods as well. And so, in general, Ban the Box is indeed a good policy, despite initial media accounts. And securing fair-chance hiring should be a priority moving forward. Currently, we have about 36 states, the District of Columbia, and more than 150 municipalities with Ban the Box policies in effect, and it would be great to see that number continue to improve.

Now, one other thing we should be mindful of is the fact that a majority of people behind bars are afflicted with drug addictions and mental health disorders as the United States continues to use incarceration as a solution to these problems. Now, the narrative for law enforcement diversion programs for drug offenses and reinstalling rehabilitative programs and centers for mental health issues is picking up steam. And I’m really hopeful that this will continue to gain traction, and especially so in the new administration.

VALLAS: I appreciate so much the sharing of some of the critiques of fair-chance hiring that have gotten perhaps even more attention than the policy itself, and also probably more attention than the early indications of how much the policy is working to remove barriers to employment for people with records in recent years. So, really appreciate you going into detail on that. And obviously, more research is going to be incredibly helpful to help folks have the full picture on fair-chance hiring because no one is interested in unintended consequences and wants to do policymaking the right way, so that it’s not just people with records who get helped, but it’s the broader population being better off as well. That’s obviously the goal.

I appreciated you, Ames, mentioning that there’s research as well looking at record clearing and the impact that getting a criminal record cleared can have on wages and employment. I want to give a shout out to Sonja Starr and J.J. Prescott, two fantastic researchers at the University of Michigan who have done some of the best work there and the most direct work there, a much fuller conversation on this in that episode you referenced, Ames, a couple of months ago that I did with Josh Hoe, who is also the host of Decarceration Nation. And his podcast is always worth a plug. But the TL;DR on the Starr/Prescott research on what happens after you get a record expunged is really pretty phenomenal in that it’s wages go up by about 11 percent in the first year, that that person’s chances of employment also increase by about 25 percent on average. Really, really stark findings for one year after a record being cleared.

We’re going to run out of time. But I want to give both of you an opportunity to sort of close, just briefly, given that it is not only Congress that can do things. You guys have a lot of recommendations in this report for state policymakers, local policymakers, and other findings we didn’t get a chance to cover. So, Ames, and then Terry-Ann, I’ll give you each a chance to sort of have a last word on what you think are sort of the most important takeaways here or anything we didn’t get a chance to cover.

GRAWERT: Yeah, happy to. I have two quick ones, if you don’t mind. One is actually federal, but it’s worth mentioning because we’re going through stimulus negotiations now. The original draft of the Paycheck Protection Program, as originally implemented, had a fairly aggressive criminal background check, made it very difficult to get a PPP loan if you had a criminal record. And that requirement appeared nowhere in the CARES Act, nowhere in congressional legislation. It was inflected on the program by the administration, which was very odd. That actually eventually got moderated, but sort of too little, too late. So, that’s something Congress can do if we’re going to talk about extending some sort of stimulus effort that will affect business so that we can not have background checks like that or have them much more narrowly tailored than they were in the original version.

And number two is something really exciting that I found while doing the research for this report is, there are some really successful state and local programs that — the broad term was diversion programs, I know you’re familiar with — but the idea that I found really interesting was the pre-arraignment pre-charge diversion. The idea is that if you’re brought in by police for an eligible offense, rather than even getting charged with a crime, you’re immediately sent to a program where you might be offered treatment or the opportunity to complete some community service. And if you complete it, you never get charged with a crime at all. The DA, the prosecutor, just declines the case. Those are really powerful programs, depending on how you analyze it. It seems that programs like that actually helped drop the misdemeanor conviction count in New York City and State significantly over the last decade. The Brooklyn DAs did some really impressive work on a project called Project Reset pre-charge diversion. But I don’t see that model being taken up much outside of the city and much outside of the state. I think that’s a really valuable program worth replicating. Because one of the messages of our report is just it would be good to help people avoid ever getting charged with a crime in the first place. And a pre-arraignment diversion does just that.

VALLAS: And it also really connects in a big way to some of what Terry-Ann was just rightly talking about, right. It obviously isn’t just mental health; it’s disability more broadly that effectively gets criminalized, given the disproportionate share of people behind bars who have disabilities, something that we haven’t talked about on this show in a focused way in quite some time, but which really is, I think, underappreciated in the broader conversation around criminal justice and criminal justice reform. The lead statistic there is that people behind bars in prisons and jails are three to four times more likely than the general population to have a disability. And a big part of why we are, in some cases on purpose and in some cases not on purpose, as a country, locking people up because of their disabilities is often police interactions and first responder interactions that go wrong and that could have been averted with diversion. So, I really appreciate you mentioning that and wanted to sort of draw that connection with Terry-Ann’s really important point before about the front end.

Terry-Ann, you’re going to get the last word.

CRAIGIE: Right. So, in this moment, we cannot forget that people behind bars are at a high risk of coronavirus infection. Statistics early in the pandemic showed that coronavirus cases in federal and state prisons were over five times higher than that of the general population. Death rates were three times higher. Now, these infection death rates are high because of limited testing, close confinement within prison cells, the lack of personal protective equipment, and high rates of pre-existing conditions for this population. Early on in the pandemic, numerous prison and jail facilities across the nation sought to curb the spread by releasing inmates who did not pose a significant threat to public safety. Now, in my view, these efforts have either dropped off or remain insufficient as prisons continue to see incredibly high infection rates. A prime example of this that comes to mind is El Paso’s county jail, which currently has nearly 60 percent of inmates infected with coronavirus. And so, more than ever, we need to make an effort to decarcerate those who pose little threat to public safety. But we should also be mindful of the fact that they’re going to be entering a bitter economic crisis. And so, it’s going to make reentry quite difficult for this at-risk population. Right now, we have millions who are facing food insecurity, homelessness, and unemployment as a direct consequence of the pandemic. And so, as we implement policies to curb this economic crisis, we should also keep this at-risk population in mind.

VALLAS: And such an important note to end on as we sort of leave off with the message that every conversation about addressing the pandemic needs to start with people are dying behind bars. The spread of the pandemic needs to be addressed not only as a nation, but in the places where we’ve shelved people out of sight, out of mind, first and foremost, given what gruesome death traps they have proven to be. I’m talking about prisons as well as other congregate settings like nursing homes, back to the ways that people with disabilities and seniors have been impacted, to our conversation before. So, the place we need to leave it for now and really the right note to end on.

Terry-Ann Craigie is Economics Fellow in the Brennan Center’s Justice program, where she’s working to document the broader economic and social costs of mass incarceration. She’s also an Associate Professor of Economics at Connecticut College. And Ames Grawert is Senior Counsel in the Brennan Center’s Justice Program, where he leads the program’s quantitative research team, which produces numbers like the ones we’ve been talking about today and that are in this report. The report, again, is Conviction, Imprisonment, and Lost Earnings: How Involvement with the Criminal Justice System Deepens Inequality. And you can, of course, find it on our nerdy syllabus page at OffKilterShow.medium.com. And we’ll be tweeting it out as well.

Appreciate you both so much for making the time. Ames, Terry-Ann, thank you so, so much. And congratulations again on this incredibly important and timely report.

GRAWERT: Thank you so much.

CRAIGIE: Thank you.

VALLAS: And that does it for this episode of Off-Kilter, the show about poverty, inequality, and everything they intersect with, powered by the Center for American Progress Action Fund. I’m Rebecca Vallas. The show is produced by Will Urquhart. Find us on the airwaves on the We Act Radio Network and the Progressive Voices Network, and say hi and send us your show pitches on Twitter @OffKilterShow. And of course, find us anytime on iTunes or wherever you get your podcasts. See you next time.

♪ I want freedom (freedom)

Freedom (freedom)

Now, I don’t know where it’s at

But it’s calling me back

I feel my spirit is revealing,

And now we just tryna get freedom (freedom)

What we talkin’ bout…. ♪

Off-Kilter is the podcast about poverty and inequality—and everything they intersect with. **Show archive 2017-May ‘21** Current episodes: tcf.org/off-kilter.