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COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTIONS: BARRIERS TO REENTRY FOR THE 

FORMERLY INCARCERATED 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

JUNE 9, 2010 

Serial No. 111–139 

Printed for the use of the Committee on the Judiciary 

( 

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

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DANIEL MAFFEI, New York 

JARED POLIS, Colorado 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia, Chairman 

PEDRO PIERLUISI, Puerto Rico 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

ANTHONY D. WEINER, New York 

MIKE QUIGLEY, Illinois 

TED DEUTCH, Florida 

LOUIE GOHMERT, Texas 

TED POE, Texas 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

TOM ROONEY, Florida 

BOBBY VASSAR, Chief Counsel 

CAROLINE LYNCH, Minority Counsel 

(III) 

C O N T E N T S 

JUNE 9, 2010 

Page 

OPENING STATEMENTS 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Chairman, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 1 

The Honorable Louie Gohmert, a Representative in Congress from the State 

of Texas, and Ranking Member, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 3 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Chairman, Committee on the Judiciary ..................... 4 

WITNESSES 

Mr. Marc Mauer, Executive Director, The Sentencing Project, Washington, 

DC 

Oral Testimony ..................................................................................................... 12 

Prepared Statement ............................................................................................. 15 

Mr. Maurice Emsellem, Policy Co-Director, National Employment Law 

Project, Oakland, CA 

Oral Testimony ..................................................................................................... 29 

Prepared Statement ............................................................................................. 31 

Mr. Calvin Moore, D.C. Employment Justice Center, Washington, DC 

Oral Testimony ..................................................................................................... 45 

Prepared Statement ............................................................................................. 47 

Mr. Richard A. Lewis, Fellow ICF International, Fairfax, VA 

Oral Testimony ..................................................................................................... 49 

Prepared Statement ............................................................................................. 51 

Ms. Pamela K. Lattimore, Ph.D., Principal Scientist, RTI International, Research Triangle Park, NC 

Oral Testimony ..................................................................................................... 58 

Prepared Statement ............................................................................................. 60 

Mr. Richard T. Cassidy, Hoff Curtis, Burlington, VT 

Oral Testimony ..................................................................................................... 73 

Prepared Statement ............................................................................................. 75 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Chairman, Committee on 

the Judiciary ......................................................................................................... 6 

Prepared Statement of the Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Member, Subcommittee on Crime, 

Terrorism, and Homeland Security .................................................................... 10 

APPENDIX 

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

(1) 

COLLATERAL CONSEQUENCES OF CRIMINAL 

CONVICTIONS: BARRIERS TO REENTRY FOR 

THE FORMERLY INCARCERATED 

WEDNESDAY, JUNE 9, 2010 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:20 a.m., in 

room 2141, Rayburn House Office Building, the Honorable Robert 

C. ‘‘Bobby’’ Scott (Chairman of the Subcommittee) presiding. 

Present: Representatives Scott, Conyers, Pierluisi, Jackson Lee, 

Cohen, Quigley, and Gohmert. 

Staff Present: (Majority) Bobby Vassar, Subcommittee Chief 

Counsel; Jesselyn McCurdy, Counsel; Veronica Eligan, Professional 

Staff Member; (Minority) Kimani Little, Counsel; Art Baker, FBI 

Detailee; and Kelsey Whitlock, Staff Assistant. 

Mr. SCOTT. Good morning. The Subcommittee will now come to 

order. Welcome to today’s Subcommittee hearing on Collateral Consequences of Criminal Convictions: Barriers to Reentry for the Formerly Incarcerated. 

As the historic Second Chance Act 2-year authorization will expire on September 30, the law authorizes Federal grants to government agencies and swe non-profit organizations in order to better 

address the needs of the growing population of ex-offenders returning to their communities. As Congress continues to evaluate the 

implementation of the Second Chance Act, today’s hearing will examine some of the continuing barriers that former offenders in this 

country face as they reenter society. 

This is the second hearing we have had on this issue, the first 

on voting rights. But in 2008 more than 735,000 individuals were 

released from Federal and State prisons. In addition, over 9 million 

were released from local jails. According to the Bureau of Justice 

statistics, in that same year more than 7.3 million people were on 

probation or parole or in prison, which equals 1 out of every 31 

adults, the highest rate in the world. 

A recent Pew Center report noted that any benefits from incarceration begin to have diminishing returns after about 300 per 

100,000 population and any rate above 500 per 100,000 are counterproductive. The United States’ rate is over 700 per 100,000 already. 

2 

In addition to those serving or those who have served prison 

time, even a larger number have been convicted of a criminal offense without going to prison. Millions are being released from 

prisons, jails, probation and parole supervision every year. They 

must either successfully reintegrate into society or be at risk of reoffending. 

People who are convicted of a crime are subject to a number of 

additional civil penalties that remain with them long after they 

have served their sentence. Often referred to as collateral consequences, these penalties take different forms at the Federal and 

State level. 

These collateral sanctions create roadblocks for individuals who 

are trying to rebuild their lives during the critical period following 

incarceration. For example, many States deny people with certain 

felonies the right to vote, which in turn discourages that person 

from participating in the political process. 

One of the most important aspects of reintegrating in society is 

the ability to obtain and maintain employment. Limited employment opportunities are perhaps the most serious of the secondary 

legal consequences of a conviction since an inability to keep a job 

often leads to recidivism. 

Federal law requires background checks and mandates disqualification of job applicants based on convictions in a number of occupations, including education, health care services, child and elder 

care, financial institutions, and transportation. Also, unskilled and 

semiskilled occupations are regulated by occupational licensing and 

employment laws. 

Employers in a growing number of professions are barred from 

State licensing agencies from hiring people with a wide range of 

criminal convictions, even convictions that are unrelated to the job 

or occupational license. In some States, occupations such as cosmetologists or barbers are prohibited from receiving licenses if they 

have criminal records. 

These collateral consequences contribute to the historically high 

rate of recidivism. Nationally two-thirds of returning prisoners are 

rearrested for new crimes within 3 years. 

Moreover, the public availability of criminal records through the 

Internet had made it more difficult for offenders to return to society. According to the Department of Justice, in 2006 nearly 81 million individuals were in the criminal history files of the State 

criminal history repositories. 

When information is inaccurate, as in the case with over 50 percent of FBI criminal records, according to a DOJ report, it makes 

it even more difficult to find a job. I have introduced a bill, The 

Fairness and Accuracy in Employment Background Checks, that 

will require the FBI to clean up its records and provide employers 

with accurate criminal histories. 

Even the Supreme Court in a recent decision of Padilla v. Kentucky has recognized the serious implications of collateral consequences. The petitioner, Mr. Padilla, was a lawful permanent 

resident of the United States for over 40 years. He pleaded guilty 

to a felony and relied on his defense counsel’s advice that his guilty 

plea would not result in his deportation. But shortly after his conviction Padilla’s guilty plea did in fact lead to the start of deportaVerDate Aug 31 2005 13:13 Nov 19, 2010 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\060910\56830.000 HJUD1 PsN: 56830
3 

tion proceedings. The Court overturned the sentence and held that 

defense counsel must inform a client whether his plea carries a potential of deportation or risk not providing the client with effective 

legal assistance. 

I look forward to hearing from our witnesses about these barriers 

and how we can provide ex-offenders an opportunity to rehabilitate 

themselves, successfully reenter their communities, reduce the future incarceration costs, and reduce the chance that people will be 

victims of crimes. 

At this point, I yield to the Ranking Member of Subcommittee, 

Judge Gohmert. 

Mr. GOHMERT. Thanks, Chairman Scott. 

Research estimates indicate that over 95 percent of currently incarcerated individuals will eventually be released back into communities across America. Studies show also that, unfortunately, 

about two-thirds of them will recidivate within 3 years. High recidivism rates not only decrease the safety of the neighborhoods affected by crime but also increase government expenditures on prisons and criminal justice systems. 

As Members of Congress, we have the responsibility to enact robust criminal laws to protect Americans from harm. We have simultaneously the duty to ensure that taxpayer money is wisely and 

efficiently spent. Recidivism among former criminals is increasingly 

a budget strain. Congress should, as we are, seek out new approaches that facilitate reintegration of criminals in the community, rather than continuing to appropriate Federal funds to expensive failing programs. 

Faith-based prisoner rehabilitation and post-release programs 

have proven successful in reducing the likelihood that a prisoner 

will reoffend. In 2009, Mr. Lewis testified that the faith-based 

Interchange Freedom Initiative reduced recidivism among its participants by over 50 percent. Congress should not discredit religion’s role in facilitating reintegration in curbing criminal propensities. Faith-based programs are also frequently less expensive 

than other reintegration initiatives. 

When we debated the Second Chance Act of 2007 last Congress, 

I supported including a provision to fund faith-based initiatives because of the proven success in cost efficiency. As Federal deficits 

continue to skyrocket, Congress cannot afford to ignore innovative 

initiatives while funding traditional programs that have only mediocre results. 

In fiscal year 2009, $25 million was processed by the Federal 

Government and then returned to fund State and local initiatives. 

This included $15 million for State and local reentry demonstration 

projects and $10 million for grants to non-profit organizations for 

mentoring and other transitional services. 

In fiscal year 2010, Congress appropriated $100 million for Second Chance Act grants. President Obama has requested yet another $100 million for fiscal year 2011, though the Act has not been 

reauthorized. 

Currently, 6.7 million people make up the Federal and State correctional population. Approximately 800,000 of these men and 

women return home to their communities each year. These statistics highlight the important responsibility State and local governVerDate Aug 31 2005 13:13 Nov 19, 2010 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\060910\56830.000 HJUD1 PsN: 56830
4 

ments have in implementing programs to ease the transition for offenders. The Second Chance Act shifts the State and local burden 

to the Federal Government. It addresses the problem of prisoner 

reentry through inefficient channeling of Federal funds to State 

and local organizations. 

I question whether taxing to bring dollars to Washington so we 

can take a cut for the Federal Government and then only return 

the remainder to State and local governments is as efficient, when 

actually we might be better off having that tax money stay at the 

State and local level without funneling it through Washington to 

get our cut. 

As a former State judge, I strongly support efforts to develop new 

approaches to reduce recidivism by assisting ex-convicts in their reentry into communities. However, we can no longer afford to spend 

Federal money on inefficient State and or local reintegration programs. 

I look forward to hearing from our witnesses today, getting their 

perspectives, and I appreciate you for this opportunity. Thank you. 

Mr. SCOTT. Thank you. 

We have been joined by the Chairman of full Committee, Mr. 

Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. 

This is a very important subject matter; and, of course, we 

wouldn’t about talking about this unless Marc Mauer was in the 

room as a witness. 

But I wanted to thank Judge Gohmert, who was with us yesterday in Los Angeles as we examined the NBC-Comcast merger; and 

it was a very good hearing. I don’t know what you are going to do 

with the 5-minute rule today, but if you knew how much time 

Judge Gohmert used up at that hearing—and it was very wellspent, too, the time and the questioning. As a matter of fact, after 

he had asked his questions, you couldn’t stop—the witnesses all 

wanted—they almost demanded an opportunity to respond to these 

questions. 

But this Committee does so much important work. You and 

Danny Davis started off with the Second Chance Act, and our staff 

man on the Committee was reminding me that the Second Chance 

Act—and I always look for a chance to praise a former Republican 

President—came out of George Bush’s State of the Union address, 

and it was picked up by you and Danny. 

We ended up with 24 Republican cosponsors of the bill, including 

Chris Cannon of Utah; Lamar Smith of Texas, our Ranking Member; Steve Chaffetz of Cincinnati, Ohio; Jim Sensenbrenner, the 

former Chairman of the Committee; Adam Schiff; Sheila Jackson 

Lee; and many others. 

What I am indicating is the bipartisan nature of this activity and 

the importance of what we are doing here today, and this is why 

I count this as an exceedingly important hearing. 

Now, here is the challenge, and I am looking for some responses. 

I haven’t found it in any of the statements of the six witnesses. 

How can we look into the Second Chance consideration and all of 

these—we have got a system now—I will never forget the former 

inmate, as he was going out and was saying goodbye to one of the 

5 

keepers, and he said, don’t worry. You will be back. I will be waiting for you when you come back. 

This is the nature of the atmosphere that we are in. As Judge 

Gohmert said, most of them recidivate, some much sooner than 

others. 

Now what can somebody do that has been incarcerated for years. 

He may have a bus ticket. He certainly has no clothing. He has no 

prospects of a job. He doesn’t even know who still lives in the city 

he came from. Of course he is going to recidivate. 

But the additional problem we are faced with is that we are in— 

our Administration calls it a heightened recession. In some areas, 

we are in a depression. Now, come on, folks, who is going to hire 

a former felon and people who, through no fault of their own, are 

running out of unemployment benefits? 

Housing foreclosures are predicted to be higher this year than 

they were last year, and my city and State was at the top almost 

all the time in unemployment and foreclosure. 

So for us to be talking about how we strengthen this bill—and 

the fact of the matter is we are in a recession everywhere and a 

depression in many other places—does not conform with reality, 

and that is why my remarks are on creating a full employment system which some of you are already aware of. I don’t know what the 

witnesses think of this, but it seems clear to me that we are not 

going to strengthen it; and, even if we do, what are we going to do 

with all the people that haven’t been in the judicial system, the 

criminal justice system? 

So we have got to start thinking about the responsibilities of the 

government to create a full employment society when the private 

sector can’t do it, and that is why I have rewritten the HumphreyHawkins Full Employment and Balanced Growth Act to accommodate that. That goes back to 1978. We had this huge battle. I will 

never forget it. Coretta Scott King had to fly up. They almost—we 

passed it in the House with Gus Hawkins, but they were going to 

scuttle it. And, fortunately, she was there and said that she wanted 

it to stay alive. 

Unfortunately, it was never enforced; and so I just want to make 

sure that all of our witnesses and everybody on the Committee is 

thinking about the connection. 

And I will put the rest of my—— 

[The prepared statement of Mr. Conyers follows:] 

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Mr. GOHMERT. Mr. Chairman, will you yield? 

Mr. CONYERS. Sure, judge. 

Mr. GOHMERT. I think we all agree on the end—one of the things 

that I saw as a judge, statistics, 70 percent or more were either addicted to drugs or alcohol. And one of the problems that I saw in 


JCJ-3.eps
9 

Texas was while people were incarcerated we didn’t deal with that 

problem adequately; and something was created called Substance 

Abuse Felony Punishment facilities, where, basically, you went 

through AA while you were there. There was high school or college 

courses. 

And so, just to plant this seed, to get full employment after people are released, it seems like we needed to do a better job of helping them deal with their addiction while they are incarcerated and 

getting them the education that they didn’t have when they came 

there so that they are better prepared. But just from personal experience that seemed to be a shortcoming in the Texas system, and 

I was pleased when the SAFP system was developed. 

But I have heard from colleagues—I hope it isn’t true—that is 

where major cuts are being made in the very areas that seem to 

be doing the best job toward preparing people for the future. 

Appreciate the Chairman’s indulgence. 

Mr. SCOTT. Thank you. 

We will ask the other Members, if they would, to place statements in the record, unless you have a very brief statement. 

[The prepared statement of Mr. Cohen follows:] 

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Mr. PIERLUISI. I will just wait for the witnesses to start, and 

then I will ask some questions. 

Mr. SCOTT. I thank the gentleman from Puerto Rico. 

We have a distinguished panel of witnesses who will help us consider the important issue today. 

Our first witness is Marc Mauer, the Executive Director of The 

Sentencing Project. He is one of the Nation’s leading experts on 

sentencing policy, race in the criminal justice system, and the author of several books. 

The second witness will be Maurice Emsellem, Policy Co-Director 

of the National Employment Law Project. He has worked on collaborations with organizers and advocates that have successfully 

modernized State unemployment insurance programs, created employment protections for workfare workers, and reduced unfair barriers to employment of people with criminal records. 

Our third witness is Calvin Moore, a native of Washington, D.C. 

He struggled with the criminal justice system as a young adult, 

was incarcerated over 20 years ago but has since been trying to rebuild his life. He found several jobs at private companies and with 

the D.C. Government as a professional driver until 2007 when he 

was laid off. Since that time, he has been trying to find work and 

has applied for about 42 different positions. He has been turned 

down by all of them, primarily because of his criminal records. 

Our next witness is Richard Alan Lewis, who is the senior manager of ICF International, a global professional services firm. He 

manages the National Responsible Fatherhood Clearinghouse and 

Web site and provides consulting services to help clients develop 

and manage effective human services programs. 

The fifth witness is Pamela K. Lattimore, Ph.D., principal scientist at RTI International. She is an expert in prisoner reentry 

and multimodal correctional program evaluation, as well as approaches to improving criminal justice systems operations. 

Our final witness will be Richard Cassidy, founding member of 

the law firm of Hoff Curtis and chair of the Uniform Law Commission’s Drafting Committee on Uniform Collateral Consequences of 

Conviction Act. That law was adopted in July 2009, and endorsed 

by the—was adopted in July 2009, and endorsed by the American 

Bar Association in February 2010. 

Each of our witnesses’ written statements will be made part of 

the record in their entirety. 

I ask each witness to summarize your testimony in 5 minutes or 

less. To help you stay within that time, there is a lighting device 

on the table which will start green, go to yellow when you have 1 

minute to conclude your testimony. It will turn red when your 5 

minutes have expired. 

We will begin with Mr. Mauer. 

TESTIMONY OF MARC MAUER, EXECUTIVE DIRECTOR, 

THE SENTENCING PROJECT, WASHINGTON, DC 

Mr. MAUER. Thank you, Chairman Scott. I appreciate the opportunity to be here and the important nature of this issue. 

The issue of collateral consequences is not a new issue. We have 

had these policies and practices in many ways since the time of the 

founding of the Nation. In those early days, not only might you lose 

13 

your job, you could have your marriage dissolved as well and other 

consequences. 

But one thing that has been consistent over the last 200 years 

is that there has rarely been any kind of analysis or assessment 

about the impact and effectiveness of collateral consequences, and 

I think that is what makes this hearing particularly important. 

The other element that makes it so important today is that we 

now have an impact of collateral consequences that is far more 

broad ranging than we have ever seen before. This has come about 

from two factors: First, the enormous increase in the criminal justice population over the last four decades. We have eight times as 

many people in prison as we did in 1970. Some 13 million people 

have had a felony conviction. Millions more have been arrested or 

had a misdemeanor conviction. So the scope of who is affected is 

really unprecedented now. 

Secondly, a series of policy initiatives over the last 20 years or 

so, many of them coming out of the war on drugs, have further restricted the ability of people with felony convictions, and particularly drug felony convictions, to have access to public benefits and 

services. And so we have this very broad range. 

There are a variety of questions that come up in this area. Some 

of them are philosophical, in a sense. For example, what should be 

a punishment for a crime and should it include forfeiture of your 

rights? 

There are a number of very practical problems, though, that I 

just want to dwell on to lay out some of the issues that we need 

to examine today. 

The first one, of course, is the impact of collateral consequences 

on reentry; and it seems to me that many of the policies currently 

in place are very counterproductive to successful reentry. We look 

at restrictions on employment, for example. There are some restrictions that few people would argue with. Most people don’t want to 

have a convicted pedophile working in a day care center, but that 

is generally the exception to the rule. 

Other kinds of restrictions, such as restrictions on getting a license to be a barber, to work in asbestos removal, or to work in 

physical therapy, are rarely connected at all to a person’s past behavior, rarely connected to any kind of public safety objectives. So 

it is hard to see what the rationale is for restricting people from 

these occupations. 

Another set of restrictions are the drug felony bans, some of 

these coming out of the 1996 Federal welfare reform legislation, 

which prohibit people with a drug felony from receiving welfare 

benefits or food stamps for life unless the State in which they live 

opts out of that. This policy applies to drug felonies and only drug 

felonies, so someone with an armed robbery conviction or a stolen 

car conviction or anything else is perfectly eligible to qualify but 

only people with a drug felony have lost their social safety net, essentially. 

Another one that is very counterproductive is the elimination of 

Pell Grants that Congress approved in 1994. At the time, prisoners 

received less than 1 percent of all Pell Grant funds, but this permitted them to get a college education in prison. I think it is fair 

to say the number of college education programs declined dramatiVerDate Aug 31 2005 13:13 Nov 19, 2010 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\060910\56830.000 HJUD1 PsN: 56830
14 

cally following the imposition of that policy. All the research we 

have tells us that more education contributes to reduced recidivism 

rates. So I think this is very counterproductive. 

We also have implementation problems. There is no State at the 

moment that can tell us exactly what all the collateral sanctions 

are for a given offender in the State. This is not a very helpful way 

to go about this. We know they are frequently implemented in 

error. 

I do a good deal of work on the issue of felon disfranchisement. 

One study of 10 States looked at election officials and found that 

30 percent of the local election officials misinterpreted the applicable law in their State, which means we have errors on both sides 

of the equation, that sometimes people who are eligible to vote are 

denied the opportunity to do so, but, conversely, people who are ineligible to vote in a given State are permitted to vote. This is no 

way to run an election system but I think just an indication of how 

these laws expand over a broad range of areas. 

There is momentum for reform. Many States are beginning to address this. I know there is interest in Congress as well. But it 

seems to me if we care about reentry and care about doing it productively we need to reassess whether these policies have a legitimate role or whether it is time to repeal or scale back their impact. 

Thank you. 

[The prepared statement of Mr. Mauer follows:] 

15 

PREPARED STATEMENT OF MARC MAUER


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Mr. SCOTT. Thank you, Mr. Mauer. 

Mr. Emsellem. 

TESTIMONY OF MAURICE EMSELLEM, POLICY CO-DIRECTOR, 

NATIONAL EMPLOYMENT LAW PROJECT, OAKLAND, CA 

Mr. EMSELLEM. Chairman Scott, Ranking Member Gohmert, 

Members of the Committee, thank you for this opportunity to testify in support of Federal reform of criminal background checks for 

employment. 

Today, nearly one in three adults, almost 70 million workers, 

have a criminal record that can show up on a routine background 

check for employment. It is a devastating reality that most of us 

can choose to ignore, but it is a fact of life for those workers and 

their families who are living in constant fear of being laid off or 

missing out on the perfect job because of background checks, especially in today’s tight labor market. 

One of our clients, Mr. William Truxton, an esteemed ship clerk 

who has worked in the Philadelphia ports for over 10 years, was 

one of these Americans whose lives was turned upside down by the 

FBI criminal background check required of all the Nation’s port 

workers after September 11th. When the Federal deadline hit, closing off the Philadelphia port to anyone who didn’t yet clear the 

TSA background check, Mr. Truxton was out of work due to his 

FBI rap sheet. 

During the 5 months that it took TSA to process his appeal 

where he documented that his FBI rap sheet failed to show that 

an old arrest never actually led to a disqualifying conviction, Mr. 

Truxton and his family of four children lost everything. They received an eviction notice, their car was repossessed, and they sold 

their furniture to help pay their bills. 

Unfortunately, Mr. Truxton’s case was anything but an isolated 

event. Every year, the FBI conducts six million criminal background checks for employment for all sorts of jobs, from cafeteria 

workers employed by Federal contractors probably in this building, 

to nursing home workers, to Federal civil service employees, to port 

workers and truck drivers. 

However, according to the Department of Justice, almost 50 percent of the criminal records in the FBI systems are not up to date, 

just like Mr. Truxton’s old arrest record, because the States are 

very good at getting the arrest record into the system, but they 

routinely fail to send along the final disposition of the case to the 

FBI. That is exactly what happened to nearly 40,000 port workers, 

like our client, Mr. Truxton, who successfully appealed their TSA 

background check determinations based on the faulty FBI records. 

Their appeals, which took TSA several months to resolve, resulted 

in a remarkable 96 percent success rate, which is proof positive 

that the FBI’s records are in very rough shape. Unfortunately, 

thousands more workers fell through the cracks of the TSA background check system, unable to get the help they needed to navigate the special appeals process. 

So to avoid all this needless hardship the challenge is to get the 

FBI rap sheet right before it is released to the employer and ends 

up wasting the valuable resources of government agencies that 

have to deal with all the fallout from the problem of the FBI 

30 

records. In fact, that is exactly what is done in the case of the 

Brady gun checks where an FBI unit tracks down the missing dispositions before the information is released to the gun dealers. As 

a result of this follow up, the FBI locates 65 percent of the missing 

records in just 3 days. If it works for FBI gun checks, it can also 

work for employment background checks. 

Thanks to your leadership, Chairman Scott, that is the basic 

premise of H.R. 5300, The Fairness and Accuracy in Employment 

Background Checks Act, which you introduced last month with 

strong bipartisan support. H.R. 5300 takes the tested Brady gun 

check process and applies it to criminal background checks for employment. It is a simple measure, but it is a huge reform of the system which is paid for with the supplement to the fee that is now 

charged for each FBI employment background check. 

In addition, the bill adopts several basic consumer protections 

that apply to private background check screening firms, including 

the right to get a copy of the record to challenge its accuracy. 

Finally, I would like to highlight a key protection in the port 

workers screening law which we urge Congress to extend to all 

Federal statutes requiring criminal background checks for employment. It is a policy that allows most port workers who have a disqualifying felony offense on their record to make the case to TSA 

that they have been rehabilitated under the law’s special waiver 

provision. The waiver protection has proved its weight in gold. It 

saved the jobs of 5,000 hardworking workers who TSA determined 

do not pose a terrorism security threat based on evidence of rehabilitation. In fact, at least 60 percent of those who applied for the 

waiver were approved by TSA. What is more, people of color were 

significant beneficiaries of the waiver process, given the huge impact of criminal records, especially drug offenses, on low-income 

communities. 

Thank you again for your hard work on this critical issue. 

[The prepared statement of Mr. Emsellem follows:] 

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Mr. SCOTT. Thank you. 

Mr. Moore. 

TESTIMONY OF CALVIN MOORE, D.C. EMPLOYMENT 

JUSTICE CENTER, WASHINGTON, DC 

Mr. MOORE. Good morning, everyone. I would like to thank you 

for this golden opportunity to testify today about the collateral consequences of my criminal convictions. 

My name is Calvin Moore, and I would like to share my story 

about how my criminal record has been a barrier to rebuilding my 

life and finding meaningful employment. I am 59 years old. I grew 

up in the District of Columbia in the 1950’s and 1960’s. The district 

was a very different place than it is today. I lived in a primarily 

segregated neighborhood near the Navy Yard, where racism and 

racial profiling were rampant and there weren’t a lot of opportunities for young people. 

I was part of a tough neighborhood crowd; and, unfortunately, I 

got into some trouble with the law. I had made some bad decisions 

because of my immaturity, but I paid for them. I was eventually 

convicted to serve a 10-year sentence, 3-and-a-half years in prison 

and the remaining 6-and-a-half years on parole. 

During my incarceration, I prepared myself for release. I took 

college courses. I got my high school diploma. I got married. I am 

still married. I was released; and, when I was, it was still very difficult. I didn’t have a strong support system and not a lot of opportunities. 

Unfortunately, I got into some more trouble, trying to medicate 

the problem with drugs. In the 1980’s, I also found myself face to 

face again with the criminal system. So since that time, though, 

however, I have been working to rebuild my life and start all over. 

I have been totally clean. I also obtained my commercial driver’s 

license, and I have not had any problems with the law. I found various jobs, some with private companies, laying asphalt and also a 

position as a professional driver with D.C. government. 

These jobs, however, took its toll on my health and didn’t pay 

well and didn’t provide much benefits. So over the years I also 

started developing serious health problems and injuries from my 

previous two jobs which prevented me from working full time. I am 

currently receiving SSDI; and since October, 2007, I have been out 

of work, diligently looking for jobs, any job to help my pay my bills 

and make ends meet. 

When the recession hit, finding long-term employment became 

that much harder. I also applied for probably over 42 jobs but was 

turned down by all of them, and the reason was that my criminal 

record prevented me from being hired. In short, the decisions that 

I made 30 plus years ago and that I have already paid for are still 

preventing me from moving forward and getting a second chance. 

However, I went to the D.C. Employment Justice Center last 

year about the possibility of sealing my criminal record in the District’s 2006 expungement and sealing law so that I could have a 

better chance of finding a job with decent wages. But, unfortunately, again, because the law is so narrowly drafted, I was not 

able to seal any part of my record. So my criminal record will, I 

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would imagine, be a continued impediment for me, even though I 

am a different person than I was back then. 

I want to be able to help others who are also in similar situations. I recently joined the Workers Advocacy Group as part of the 

Employment Justice Center so that I can advocate for changes in 

the law and help improve the barriers for people who have criminal 

records. 

There is some good news. I recently was put in contact with 

Catholic Charities, and I am in the process of returning to school 

to become a certified addiction counselor. I am also hoping that 

after I become certified it won’t be as difficult to find a job where 

I can help others with addiction problems. 

So I am taking this time again to thank you all for this golden 

opportunity to share my story about the barriers that many individuals such as myself face with criminal records when they try to 

rebuild their lives after their convictions. I am happy to answer 

any questions. I am open for that. And I thank you very much. 

[The prepared statement of Mr. Moore follows:] 

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Mr. SCOTT. Thank you, Mr. Moore. 

Mr. Lewis. 


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TESTIMONY OF RICHARD A. LEWIS, 

FELLOW ICF INTERNATIONAL, FAIRFAX, VA 

Mr. LEWIS. Good morning, Mr. Chairman, Judge Gohmert, and 

Members of the Subcommittee. 

On behalf ICF International, I thank you for this opportunity to 

appear before you today to discuss this very important issue of reducing barriers to reentry and to discuss collateral consequences of 

criminal convictions and how it is we can overcome those multiple 

barriers to reintegration. We appreciate your passion and your 

compassion about this very important issue. 

I want to speak briefly about the problem of prisoner reentry, 

how we overcome some of those barriers to successful reintegration, 

and make some recommendations to reduce some of these collateral 

consequences that my colleagues have talked about. And thank 

you, Mr. Moore, for your personal testimony of how this has impacted you and your life and your family. 

As the millennium advances, American corrections is in crisis. 

Many of our communities are in crisis. And perhaps one of the 

most pervasive issues that folks are facing right now and that corrections is facing is record numbers of folks returning home without adequate supervision. We are very concerned about that, and 

that is what is really feeding the cycle of reentry that we see. 

Currently, there is about 1.6 million folks in prison and about 5.1 

million adults that are returning home to communities each year. 

The real question becomes how do we overcome some of these barriers? Because we know that the research indicates that increasing 

numbers of folks are returning home without any supervision 

whatsoever. Prisoners are returning having spent longer periods 

behind bars with inadequate supervision upon returning home and 

inadequate assistance in their reintegration as a whole. 

While formidable, the prisoner reentry challenges provide an opportunity to really think about how is it that we balance this need 

to increase public safety and at the same time reduce barriers to 

successful reintegration. We know that prisoners returning home 

have a lot of difficulty reconnecting, first and foremost, with their 

families, reconnecting with their housing, and reconnecting with 

their jobs. Those are the three pillars that we focus on in our work 

at ICF and my prior work with prison fellowship. 

Unfortunately, this problem disproportionately affects African 

American males who predominantly live in poor, urban environments which are already plagued by profound social and economic 

consequences. 

Moreover, as you all know, criminal conviction carries profound 

social and economic consequences in the areas including getting access to housing, and particularly public housing; and getting access 

to gainful employment, as Mr. Conyers mentioned earlier today; 

getting access to higher education, as Mr. Mauer mentioned earlier; 

and getting access to welfare benefits; and, of course, voting. 

Our major concern is that these collateral consequences really 

are having a profound affect upon folks’ ability to reconnect with 

their children and families. Over the past couple of decades, the 

number of children impacted by incarceration has increased exponentially. Parental incarceration has increased, and there is now 

some 809,000 prisoners out there out of the 1.5 million that we 

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know have children, and about 1.7 million minor children who are 

impacted by incarceration. And, unfortunately, the plight of children affected by parental incarceration, they are viewed as collateral damage; and we need to think very carefully about how it is 

that we can help fathers in particular who are returning from prison to reconnect with their families and overcome some of the multiple barriers so that the children are not essentially victimized by 

incarceration. 

Focusing on housing and homelessness, one of the issues that we 

have observed in the work that we have done is that we need to 

think strategically about how to get ex-prisoners access to affordable housing, how it is that we can reduce the problem of homelessness among ex-offenders. We recommend that policymakers support promising prisoner reentry programming, some of the faithbased programming that we have seen that can provide access to 

affordable housing and public housing and reduce the problem of 

homelessness among ex-offenders and among prisoner’s children. 

In the era of education and employment, we recommend that policymakers think strategically about how to refrain from policies 

that prevent folks from getting access to student loans to pursue 

higher education and welfare benefits and other income supports 

that we know returning prisoners need to support their families. 

In addition, we recommend that policymakers consider very carefully some of the promising programs we are seeing in the area of 

substance abuse. As mentioned earlier, folks have to have access to 

substance abuse treatment if they are going to be successful upon 

reentry; and we believe that that is one of the major issues that 

is impacting the reentry problem. 

Finally, there is a real issue of physical health and mental illness. A lot of folks who are returning from prison have a disproportionate number of physical ailments and also mental illness. We 

need to think strategically about how to get these folks access to 

health care and mental health treatment if we are going to have 

an impact on incarceration. 

In conclusion, we know that there is a growing body of evidence 

that confirms that a felony conviction potentially leads to a lifetime 

of consequences, including barriers to housing, education and employment, income supports, health care, and even voting; and we 

recommend that we provide regional relief from the collateral consequences of criminal convictions. 

Thank you for your time. This completes my formal statement, 

and I will be glad to answer any questions you may have. 

[The prepared statement of Mr. Lewis follows:] 

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PREPARED STATEMENT OF RICHARD A. LEWIS


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Mr. SCOTT. Thank you. 

Dr. Lattimore. 


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

NC 

Ms. LATTIMORE. Thank you, Mr. Chairman, Ranking Member 

and Members of the Subcommittee. I am pleased to appear before 

you today to provide information about prisoner reentry. 

I am Dr. Pamela Lattimore, a principal scientist at RTI International. As you may know, RTI International is an independent 

nonprofit research organization based in North Carolina that provides evidence-based research and technical expertise to governments and businesses in more than 40 countries. 

Since Congress addressed the prisoner reentry issue more than 

10 years ago, we have made considerable progress in understanding the challenges faced by those reentering the community 

and the prospects for successful intervention. The Second Chance 

Act is providing an opportunity to continue to build on this 

progress. 

I was asked to talk some about the findings from the evaluation 

of the Serious and Violent Offender Reentry Initiative. It goes by 

the acronym of SVORI. The SVORI multisite evaluation was funded by the National Institute of Justice and was completed at the 

end of last year. The 6-year study was conducted by researchers at 

RTI International and the Urban Institute. 

As detailed in my written testimony, SVORI, which was the 

predecessor to the Second Chance Act of 2007, was funded by Congress to provide one-time grants in 2003 to 69 State agencies 

across the country to implement prisoner reentry programs. The 

findings from the SVORI evaluation are summarized in my written 

testimony and detailed in the evaluation final reports which are 

available online; and we have an evaluation Web site: 

www.svorievaluation.org. 

What we learned included the following: 

Individuals returning to their communities from prison or juvenile detention have problems that span multiple domains and that 

are interwoven: little education, few job skills, drugs and alcohol 

abuse, and often mental illness. Things that we take for granted, 

such as drivers’ licenses, how to fill out a job application, having 

a place to live, may be out of reach for these individuals. Licensing 

requirements, criminal background checks and restrictions on 

housing access are among the collateral consequences of a criminal 

record that provide additional obstacles to success on the outside. 

We found that SVORI program participants fortunately received 

more services and programs than comparable individuals who did 

not participate, although at level far below their reported needs. 

Additionally, we also found service receipt, service provision 

dropped substantially following release from prison. There were 

many more services provided during incarceration than after. 

Our outcome results were mixed. SVORI program participation 

was associated with improvements in both housing and employment and substance use domains, but recidivism findings were 

more equivocal. Men participating in SVORI programs had smaller, 

somewhat lower arrest rates, but we observed no difference in the 

reincarceration rates after 24 months. 

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In conclusion, although we have made a lot of progress since 

SVORI was conceived more than a decade ago, it is important that 

we build on that progress. In particular, identifying and coordinating multiple services and programs delivered in most cases in 

multiple institutions and multiple communities is a complicated 

undertaking for Departments of Corrections and Departments of 

Juvenile Justice. 

Implementation science suggests that implementing new programs can take 2 or 3 years. Thus, grantees may need more than 

3 years to develop and successfully implement reentry programs 

that address the employment, housing, and treatment needs of serious criminal justice populations. Further, we need to develop a 

better understanding of issues that are associated with assuring 

that programs are implemented and delivered with fidelity. 

Secondly, although those participating in SVORI programs had 

better outcomes across employment, housing, and health domains 

and were somewhat less likely to be rearrested, these improvements did not translate into reduction in reincarceration. Further 

study is needed on carefully implemented, evidence-based programs 

to determine the effects on both intermediate outcomes such as employment and drug use and the recidivism outcomes of such concern to the public and policymakers. 

Finally, I would like to point out that the comprehensive, detailed SVORI multisite evaluation is highly unusual for justice research. Although government expenditures for law enforcement, 

courts, and corrections now approach $215 billion a year, research 

and evaluation funds remain relatively meager. NIJ, the primary 

funder of criminal justice research, has had a base budget of only 

about $40 million per year for as long as we can remember. That 

has to cover law enforcement courts as well as corrections, criminal 

behavior, victimization, sentencing, and so forth. 

Although there are many priorities competing for Federal dollars, 

comprehensive evaluations can lead to policy development, improve 

program implementation and administration, better use of taxpayer dollars, and improved outcomes, returns on investments that 

will also make us safer. 

Thank you for your time, and I am happy to answer any questions. 

[The prepared statement of Ms. Lattimore follows:] 

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Mr. SCOTT. Thank you. 

Mr. Cassidy. 


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TESTIMONY OF RICHARD T. CASSIDY, HOFF CURTIS, 

BURLINGTON, VT 

Mr. CASSIDY. Thank you Mr. Chairman, Members of the Committee. 

The law of collateral consequences in the United States is in a 

state of shocking disarray. It is not just a Federal problem, it is not 

just a State problem, it is a problem at all levels of government; 

and it will require government cooperation to improve the situation. 

You have already heard a great deal this morning about the serious problems to reintegration in the community that collateral consequences cause people coming out of prison and other incarceration programs. I won’t repeat that. 

But let me say to you that it is important to understand that this 

problem is not just a problem for people who have served time in 

prison. As the example of the Vermont National Guard member 

outlined in my written testimony makes very clear, the collateral 

consequences of convictions can reach out of the distant past and 

strike down an individual who has a conviction, even one who has 

never served a single day in prison. That story is not unique. It is 

a story that is played out again and again across this country, and 

it is a tragedy. 

Meanwhile, the number and variety of collateral consequences in 

this country have mushroomed. To date, no comprehensive collection of collateral consequences has ever been completed, but under 

a grant pursuant to section 5 of the Court Security Act of 2007, the 

National Institute of Justice contracted with the American Bar Association to do the first ever truly comprehensive national study. 

Preliminary results drawn from eight States show an average of 

over 720 statutory and regulatory collateral consequences in each 

State that was studied. Nearly 80 percent of those collateral consequences are occupational in nature. Almost every one lasts for 

life. 

Once complete, that study will need support, because the information that it provides will have to be continued and has to be updated on a continual basis in order for the public policymakers and 

participants in the criminal justice system to understand what collateral consequences exist and how they relate to the various 

crimes that individuals may have been convicted of. There is no obvious source for continuation of that project except the Federal 

Government, and I urge you to consider including continuation of 

that funding in the Second Chance Act. 

The Uniform Collateral Consequences of Conviction Act, which 

was promulgated by the Uniform Laws Commission, provides a 

solid basis from which to organize State law on this subject and is 

also a very useful potential model for the Federal Government. It 

addresses some very significant problems. 

First, as I mentioned in talking about the study, it ensures that 

participants in the process understand what the collateral consequences associated with convictions are. The Padilla case suggests to those who read it carefully that, at least with respect to 

important and relatively certain collateral consequences, understanding the implications of conviction may be required in order for 

a defendant to make an adequate plea of guilty to a crime. 

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The Uniform Collateral Consequences Act also creates a system 

of appropriate relief from collateral consequences. It operates at 

two levels. First, it creates an order of limited relief to assist prisoners seeking reentry into society by lifting the automatic bar of 

collateral sanctions as to employment, education, housing, public 

benefits, and occupational licensing. The effect is to require that 

government dealing with these subjects treat convicted individuals 

the same way that they would treat other individuals who admit 

the same conduct but do not have a conviction. 

Second, it would establish a certificate of restoration of rights for 

individuals who have been out of prison for more than 5. It would, 

in effect, lift collateral consequences except sex offender registries, 

drivers’ licenses, and law enforcement employment limitations. 

To administer these programs, the States will need to create or 

revitalize some sort of parole-board-like process to receive and act 

upon relief applications. 

The Federal Government can help this by providing some kind 

of grant program to encourage States to set up and operate those 

structures, at least initially. You can also help by giving effect to 

State acts lifting collateral consequences from the Federal level and 

with respect to Federal convictions. You can also help by incorporating the concepts of the Uniform Collateral Consequences Act 

such as its relief mechanisms into Federal law. 

If I can say one thing and one thing only in closing, it is providing some method of relief apart from the pardon process which, 

frankly, in most jurisdictions is simply not operative, is essential. 

Thank you. 

[The prepared statement of Mr. Cassidy follows:] 

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PREPARED STATEMENT OF RICHARD T. CASSIDY


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Mr. SCOTT. Thank you very much. 

We want to thank all of our witnesses, and then we will have 

questions under the 5-minute rule. 

I will defer to the gentleman from Puerto Rico, 5 minutes. 

Mr. PIERLUISI. Thank you, Mr. Chairman. 


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Actually, there are so many things we can cover. You have all 

done very well testifying today. Let me try to address two subjects. 

First, listening to you, Mr. Moore, I see you mentioned trying to 

get your record expunged or sealed; and I raise this issue to the 

whole panel. Is this working, expungement and sealing of records? 

Should we encourage it? Is it consistent throughout America? What 

are we seeing out there in this area? Would it be helpful for individuals such as Mr. Moore in trying to come back and be employed 

again? 

That is the first area I want to raise; and I welcome any comments from the panelists on this issue, expungement and sealing 

of criminal records. 

The second area is government jobs. You know, I am one who believes that government should lead by example. So is it harder to 

get a job in government as opposed to the private sector once you 

have a criminal record? Shouldn’t it be easier getting gainful employment in government, both at the State level, Federal level, 

local level? So I want your testimony in that area, too. What have 

you seen? What could we encourage or not in those two areas, 

expungement of records and government jobs vis-a-vis private jobs. 

So, Mr. Mauer, if you would like to start, and then anybody else. 

Mr. MAUER. I think other members of the panel have more specific information on some of the issues. 

Just on the expungement-sealing issue, I think there are a variety of mechanisms we would want to consider: executive actions, 

legislative actions, licensing boards, and the like. 

One of the particular ways to frame the issue, I think, emerging 

research by a criminologist shows us that when a person has been 

out of prison, completed their sentence, after 6 or 7 years of being 

out and remaining arrest-free, then his or her chances of being involved in a crime is no different than yours or mine at that point. 

So that is partly telling us what public policy should look like. 

If in fact there are restrictions, we should certainly at the very 

least have a time limit. We also should be doing education with potential employers so they become more familiar with any risk that 

they believe they are taking on. 

I think, in general, the expungement process, the pardon process, 

I think in broad terms what we see today is that it is severely 

under used, any mechanisms by which we restore rights, starting 

with the White House and going to governors of all 50 States. We 

have had periods in our history when it was much more freely 

used. It was viewed as a reasonable, charitable, compassionate approach; and I think part of the sort of climate on crime control policy has made these officials very reluctant, unfortunately, to take 

advantage of this. 

Mr. EMSELLEM. I would like to speak to the issue of public employment. I can say I am from California. On the subject of 

expungement, there technically isn’t even an expungement policy 

in California. You can go to the court and have your record dismissed, but it shows up as a dismissal, which in many cases when 

you apply for a job, in some cases you can say you don’t have a 

record. For government jobs and other jobs, it still shows up. 

134 

So there is a lot of variation I should just say among the States 

on expungement policies, and they are very important policies, and 

they can make a very big difference. 

On the subject of public employment, I want to really talk about 

that a little bit, because that is a big priority for us in our organization. We are trying to really think through how the Federal Government conducts its background check policies and making sure 

that the Federal Government and State and local governments are 

complying with some very basic standards that were set up under 

title VII by the EEOC. There are very helpful standards that require that the job the person is being considered for, if they have 

a record, that the record is job-related, that it connects to the job. 

That has to take into consideration the age and seriousness of the 

offense. 

What we have right now throughout the public and private sectors is what Mark was talking about earlier, just this huge proliferation of background checks, huge numbers of workers with 

records, but the process of hiring, any standards whatsoever 

haven’t even close to caught up with the reality of the situation. 

So it is really time for the Federal Government to let both State 

and local governments to take some time to evaluate their current 

standards, most don’t comply with title VII, and then work forward 

from there. 

In some States, a lot of States, recently New Mexico, Minnesota, 

Connecticut is just about to sign off on a bill that adopted a policy 

they call ‘‘ban-the-box’’ that removes the question about the criminal records from the job application and it delays the criminal 

background check until the end of the hiring process so that folks 

have a shot at the job based on their merits, but it doesn’t compromise safety in any way because the person is still—they are still 

conducting that background check at the end of the process. Twenty-one cities and States, 21 counties and cities also have ban-thebox; and that is just in the last 4 or 5 years. 

So there is a lot of good thinking out there. There is a lot of opportunity. It is a good time to take a good look at everybody’s policies and kind of move forward from there. 

Mr. MOORE. I would like to address this concern, because, basically, I am living it. 

I have a problem with the background check because, basically, 

a potential employer, it gives them a chance to look not only at a 

conviction but they also get a chance to look at your arrest record. 

And on most of your applications they ask if you have been convicted of a felony within the realms of a 5-year to 7-year to 10-year 

period. When you put that down there and they have the opportunity to check your background, they decide mainly to not hire 

you depending on the length of your criminal record, if you have 

arrests, not convictions. 

So as a combined, I guess, overload for most criminal activity 

that the individual may have done in the past, they may not even 

have done whatever the charge was. They may have been cleared 

of it or what have you, but it remains on your criminal record. And, 

as a result, like I say, when the potential employer puts this together in some cases, I wouldn’t hire if I was the employer myself 

looking at not only the one conviction that you had maybe 20 or 

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30 years ago but the combined total amount of charges that you 

have related to arrests on the record. 

So that right there within itself is the first obstacle or blockage 

toward being respected for who you are today, the changes that you 

did in your life to make yourself a mature, responsible adult, to try 

to take care of your family. Because, in essence, that is what we 

all do. We go to work every day so that we can have peace of mind 

because we have paid our bills and we are ready for the next 

month when your bill flow comes in. But you can’t do this if you 

don’t have an income. 

So in looking at the whole situation, I think that the whole community of each jurisdiction in the United States really—not just 

the criminal himself, but I am talking about every tax-paying citizen—is really putting themselves in jeopardy. Because now you 

have got these guys that come out that want to do good, but they 

can’t do good because they can’t get a job. So now when you are 

talking about recidivism that is what is going to happen, because 

everybody wants to be able to take care of themselves and their 

family, pretty much. 

With that said, I would like to just—I thought about constructing 

maybe a clearinghouse, where an individual, I am really basically 

speaking for myself, because there are basically a lot of other people that are in a worse predicament than I am, but it still all remains to be the same because it all boils down to employment. 

If we get like a clearinghouse together where each individual can 

be streamlined or scrutinized in reference to what their record is 

and what can be hidden from the public and what should be on 

your record and what shouldn’t be, I mean, if we have in each jurisdiction a clearinghouse like that, then that would be over half 

the battle and pretty much give an individual with this collateral 

consequence of having a criminal record a chance to take himself 

care of himself and his family. 

I thank you for giving me a chance to talk. 

Mr. QUIGLEY. Will the gentleman yield? 

Mr. PIERLUISI. Yes. No, I am done. I am out of time. 

Mr. QUIGLEY. It is just on the same point. 

Mr. SCOTT. I ask unanimous consent that the gentleman be given 

an additional minute. 

Without objection. 

Mr. QUIGLEY. My experience in Cook County that relates to 

expungement is it is varied, even within Cook County, depending 

on which courthouse you actually have to go back and do your 

expungement with. So across the State it is widely varied; and, for 

many people, the expungement process is a daunting task. While 

there are a few legal clinics that help people, it appears that if we 

are going to use expungements, they ought to be available for everyone. 

Unfortunately, right now, the people who are getting 

expungements are the ones who can afford someone to handle the 

process for them. I don’t know if that is true nationally, but it is 

certainly true in Cook County. 

So I appreciate your remarks on that. 

Mr. SCOTT. The gentleman’s time has expired. 

Mr. Gohmert. 

136 

Mr. GOHMERT. Thank you. I appreciate everybody’s testimony 

and your perspectives. 

There was a comment made about—of course, there was some 

discussion about government jobs and also about voting. Since we 

know from what statistics have been provided to us that 70 percent 

or so are going to recommit offenses, then it would seem we 

shouldn’t get the cart before the horse. I mean, government is bad 

enough. America looks at Washington and thinks we don’t need 

any more crooks up there than what we have already got. 

But there was some mention about some time period. It seemed 

like it is kind of like with cancer. You know, you got a 5-year window and you know if you survive 5 years odds are very good that 

you are going to survive as anybody else would. So it may be that 

maybe we are looking at potentially a time period where, if you 

don’t re-offend in that period, then you are eligible for certain jobs 

and you are eligible at a certain point to vote. 

And that is an interesting point, Mr. Mauer. Some, where they 

are prohibited from voting, vote, and some where they are not prohibited, they are not allowed. So that is a good point, that we need 

to have better-educated folks working to assure that. 

But, Mr. Moore, you mentioned that everyone just wants to take 

care of their family. But one of the things that disturbed me, that 

when I put people on probation I made it a matter of incentive, either by maximizing the number of hours that they had to do community service and then crediting those off, if they finally got 

around for the first time in their lives providing some support for 

their children or families or even just found out where they are. 

Some of the presentence reports, they didn’t know where their kids 

were. 

So I appreciate someone like yourself that really does want to 

take care of family. But that wasn’t my experience. Everyone didn’t 

want to take care of their family. And it was one of the vast shortcomings in society, because it seemed to be a reciprocal thing. You 

would think that if someone went through life without knowing 

their father at all, without having any relationship, by golly, when 

they had kids, they would really address that. But it seemed to be 

more the exception that broke the cycle. Most seemed to fall back 

into it. 

So these all seem to be social issues that need addressing. So 

maybe we can help keep people out of prison in the first place. But 

the point that was made about wanting to take care of their families, I wish it were so, but it seemed like that would be something 

that needs to be done to prevent the next generation from following 

in daddy’s footsteps. 

I would appreciate any comments, insights. All of you in one way 

or another deal with this issue, but do you have any suggestions 

from a societal standpoint of what we could be doing to try to break 

that cycle? Mr. Moore? 

Mr. MOORE. Okay. Also, while I was speaking, I mentioned the 

fact, because I do realize what you just said in reference to everybody is not within the framework of positivism, okay, in terms of 

trying to take care of their family. There is a lot to that. 

During the speech or during my submitting what I have to say 

in reference to it, I brought up the point that if we can formulate 

137 

somewhat of sort of like a clearinghouse, where each individual in 

each jurisdiction of the United States can have a chance to be scrutinized, okay, in reference to what they want to do with the rest 

of their lives. Because, I mean, I hate to say it, but some people 

do need to be locked up, and some people are just not prepared, 

and then when they get an opportunity, they don’t take advantage 

of it, which makes it bad for a person like myself. 

So that was just one of my suggestions in reference to getting 

that idea to whom you are really dealing with. I am not saying that 

everybody is going to get scrutinized 100 percent, because still, 

even if you do that, you can’t understand what is inside an individual’s head in reference to what they really want to do with their 

life. I am just one of those—to further exacerbate my problem, I am 

going through all of the stuff that I am going through because of 

individuals like that. 

So I fully understand what you are saying. I don’t have a problem with the fact that not everybody is trying to take care of their 

family. 

Mr. GOHMERT. But we do need to get to that point where more 

people do care until we break that cycle. 

Mr. MOORE. Yes, sir. Absolutely. 

Mr. GOHMERT. Anyway, time is so short in one of these hearings. 

You have 5 minutes to make an opening statement and you submit 

statements in writing. But really, as you think about these issues, 

we would welcome your input in writing in the form of letters, suggestions, or something additionally that you want to submit. Everybody up here really—you know, we may disagree about the means, 

but I think everybody does want to get to an end where we have 

a lot less crime and we break these cycles of recidivism that we 

haven’t done a good job of breaking. 

Mr. LEWIS. Congressman Gohmert, I would like to add to that. 

A lot of the research we have done on recidivism does indicate 

that after about 3 years the likelihood of you re-offending does drop 

dramatically. It actually drops significantly after that first year, if 

you can stay out for a year, and then it really trails off after 3 

years. There is hardly any data there. So I would like to suggest 

considering as a reasonable relief to collateral consequences considering a 3-year time limit. 

On the issue of employment—— 

Mr. GOHMERT. In that regard, was there any data in what you 

found that indicated a much higher chance of non-recidivism if 

there were additional education, like high school, college courses? 

Was there any data in which you—— 

Mr. LEWIS. Not specifically on education, but certainly on employment, and employment is certainly related to education. And 

what really compounds the issue of employment for ex-offenders is 

the fact that they do have limited education, they do have limited 

job skills, there is low levels of viable work experience to go along 

with that; and, in addition, there is oftentimes some substance 

abuse challenges that we have to deal with. That is why it is important to make sure that ex-offenders do indeed have access to 

employment and training opportunities, to income supports and to 

even welfare benefits while they are trying to find sustainable employment and improve their job skills. 

138 

Mr. GOHMERT. Thank you. 

Mr. SCOTT. The gentleman from Michigan, the Chairman of the 

full Committee. 

Mr. CONYERS. Thank you, Mr. Chairman. 

This is a very important hearing, and I think we can put on the 

record that we have been talking with Judge Gohmert and Chairman Scott, and we are planning an extended hearing. We want to 

continue this subject in Detroit and Michigan. We want to enlarge 

the panel. We want to bring in some people and hopefully the Governor of Michigan, the State of Michigan’s corrections chief, which 

is a very effective woman, one of the first female corrections chiefs 

we have had in the State, who is doing an excellent job. 

We would like all of you—Nikichi Tieva with the Criminal Justice Roundtable is here, Charlie Sullivan of CURE, because we 

have got to go deeper. Judge Gohmert is going to come in with us, 

and we are going to put this hearing on our Web site, and then we 

are going to blog it so that thousands of other people who want to 

comment will be able to call in and add to it. And we will be keeping, of course, the conversations, so that other people will be able 

to benefit. 

This hearing will be a full Committee hearing, of course, with the 

leaders here working with us on it. It is going to be in August during the recess, because we know when we come back in September 

all the appropriations matters and Afghanistan and the oil spill 

and everything else is going to be on it. So we are going to take 

a full day in Detroit, probably at Coble Hall, and bring in a number 

of other people that some of you can recommend. 

We are not just going to, of course, repeat the same things. We 

are going to be examining each others’ comments and others so we 

will be bringing in even a deeper appreciation of what it is we are 

up against. 

Calvin Moore, your idea of a clearinghouse is brilliant. Have you 

ever thought about—no, I won’t do that. 

Let me ask you to continue the discussion that our colleague 

from Puerto Rico began about the expungement and sealing of 

records and why it is that getting government employment, especially Federal, is tougher because of FBI and other checks that we 

do that make it even more complicated than getting private sector 

employment. 

There were others that had not commented on that part of our 

hearing, that if any of you wanted to contribute to it, you can now. 

Ms. LATTIMORE. I would just like to make a couple of points. 

One is that this notion of automatic restoration of rights is something that is done in other countries, with 5-year, 10-year time 

frames, depending on the offense, depending on the behavior during the process, depending on the right, and that the Committee 

might be interested in getting some information on that. 

I think another important point that was raised is this issue of 

the accuracy of records. I think this is another place where the 

Committee might be able to provide some leadership to the various 

agencies to try to improve the quality of the criminal justice 

records that are out there and to try to assure they are accurate. 

Because this is information that is collected at the State level, but 

it is disbursed primarily through the FBI to the NCIC, and assurVerDate Aug 31 2005 13:13 Nov 19, 2010 Jkt 000000 PO 00000 Frm 00142 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\060910\56830.000 HJUD1 PsN: 56830
139 

ing the quality of those records, particularly since so many of 

those—so much of that information is available on line. 

So, for $19.95, you can get a 1-year membership into these public 

record searches on line and go up and check whatever they have 

managed to pull together from all these various State agencies on 

anybody. So the fact that these records are as good as they are, 

which oftentimes they are not very good, you know, you don’t have 

to do a full official criminal background check. If you come to me 

looking for a job, I can go on line and pull up whatever people have 

managed to pull up. 

So I would point, I think, the Committee toward maybe considering that at some time. Because, given that people’s lives are affected by that and it is something that I think crosses State lines, 

it certainly would be in the jurisdiction of the Committee. 

Mr. CONYERS. Our friend Mr. Mueller at the FBI is going to hear 

about this if he isn’t listening, because I am being told that the FBI 

can charge for the cost. It isn’t even like they are incurring any 

debt necessarily. But I would like to extend him a courteous notice 

of a hearing that we are going to have in August, and I want him 

to be there and his person as well. 

We have got to get to the bottom of this. 

Ms. LATTIMORE. If you will excuse me, it really goes back to State 

and local governments that have relatively little or poor investment 

in infrastructure. So they are quick to get the first note in, but 

then, after that, there is no system in place to backfill and make 

sure that things are corrected. 

Mr. CASSIDY. Chairman Conyers, one point that you mentioned 

about expungement and sealing of records that is critical ties into 

what Dr. Lattimore just said about public records; and that is that 

expungement and sealing are most effective, quite frankly, for juveniles. Because the records with respect to adults are public records; 

and, today, once it is in the record, it is everywhere and people 

can’t walk away from it. I don’t mean to discourage expungement 

and sealing. I do think that—— 

Mr. CONYERS. In other words, expungement is a porous process 

anyway. 

Mr. CASSIDY. At best. And it may put an ex-offender in a very 

difficult situation where they believe they are free of their past and 

they are asked a direct question and they don’t understand whether they are supposed to lie or tell the truth, and they are on a 

knife’s edge either way they go. So any expungement device that 

is developed has to address the question of what the offender is instructed to say. 

Mr. SCOTT. The gentleman’s time has expired. 

Mr. CONYERS. Could we get Mr. Moore? 

Mr. MOORE. I will do this in brevity. 

Basically, it has been my experience when you are applying for 

employment in either the District or Federal Government, it is usually a process of who you know that is already working within the 

realms of what you are applying for. 

Mr. CONYERS. To help you, or harm you? 

Mr. MOORE. I am sorry? 

Mr. CONYERS. To get help, you have to know someone? 

140 

Mr. MOORE. I am talking about to gain meaningful employment 

in the government agencies, Federal or District, it is usually my experience that you can easily get in if you have someone that already works within that department and they know you and they 

can vouch for you. Outside of that, it is pretty difficult to obtain 

a job within either one of those places, the Federal Government or 

the District Government. 

I just wanted to make that comment. The private sector is totally 

different, something different. 

Mr. SCOTT. The gentleman’s time has expired. 

The gentleman from Tennessee. 

Mr. COHEN. Thank you, Chairman Scott and Chairman Conyers, 

for your interest and your work on this issue and, Mr. Gohmert, 

for participating and your interest, also. I know you, as a criminal 

court judge, have seen people who have been convicted and what 

can happen. 

This is a very important issue in my district in Memphis, Tennessee, the 9th District of Tennessee. Hardly a day goes by that I 

don’t have somebody come up to me and say, Congressman, I need 

a job, but because I have a previous felony I can’t get one, and they 

want to take—sometimes they are with their children, and I feel 

so bad for them, that they have got their daughter or son who is 

maybe 10 or 7 or 8 and that their father has to come up and express to me the situation they are in. 

And this is because of actions of our government. It is their actions to start with, but nobody should have a scarlet letter for life. 

There should be within everyone—whether you are Judeo-Christian, Muslim, agnostic, Christopher Hitchens, or whatever, you 

should have the idea that people can be forgiven and people can 

improve, and that is what man is about, is about hope and improvement and learning from your experiences. 

The Criminal Code doesn’t really see that, and they punish these 

people forever. It hurts our society. It leads them back into crime, 

so it hurts the whole society, not just that individual and their 

family, but the entire society, and it is one of the problems with 

our criminal justice system. 

Our criminal justice system has so many holes in it where we 

refuse to see the truth. One of them is drug laws. So many people 

get drug convictions, and the collateral consequences of felony convictions, drug convictions, whether felonies or misdemeanors, are 

great, and they lead to the lack of opportunities for employment, 

for housing, for scholarships, for TANF grants, for you name it. It 

is a scarlet letter that keeps these people in a situation where they 

are more likely to be recidivists and go back into crime because 

they can’t get into Main Street. So it hurts. It contributes to the 

drug problem. It contributes to the crime problem. 

What we have got to do is get a get a bill that we can get passed. 

I have introduced a bill today—or will be introducing a bill today 

called the Fresh Start Act. It wouldn’t affect everybody, indeed. But 

it will say, after 7 years, if you have been convicted in Federal 

court of a non-violent crime, regardless of anything else, no other 

conditions, you get your record expunged. 

You go back to the court that sentenced you. The U.S. Attorney 

can weigh in and make some observations. But for two crimes that 

141 

we came up with, which would be sex offenders, where we know 

there is a likelihood or there is I think it is a likelihood of repeat 

offenses and danger to the public, and financial crimes of over 

$10,000, where people should know that somebody has committed 

fraud and defrauded somebody in certain amounts so they can protect their investors or their own business—and with those two exceptions, anybody can go into the Federal court and get their sentence expunged, which means they can go back out and say I have 

never been convicted before, I have a clean slate, and get a job. 

And these collateral consequences wouldn’t affect them as well. 

It would be incentive grants to the States to have a similar type 

of laws and pass their own expungement laws, and financial penalties if they don’t, incentive grants if they do. This is the type of 

action we need. Mr. Rangel has got a bill that is similar but not 

quite as liberal as mine. 

I think you need—and I picked 7 years simply because the law 

has a lot of areas with 7 years, 14, and 21 on statute of limitations 

and property rights and all that stuff, and it is something that 

stuck in my head from law school. Not much did, but that did. 

I think, Mr. Mauer, you mentioned 6 years. Is that the kind of 

magic bullet? 

Mr. MAUER. Well, 6 to 7 is what the research shows, somewhere 

in that range. 

Mr. COHEN. So we are within the margin of error, which is better 

than most laws. So we are introducing that bill today. I would ask 

everybody to sign on to the Fresh Start Act. 

Just some of the things we have done, we did something in our 

education bill this year on I think misdemeanors that says they can 

get scholarships again if they have committed a misdemeanor drug 

offense. It used to be you couldn’t get a scholarship. It makes no 

sense whatsoever. 

The drug war, quote-unquote, has cost us billions of dollars, I 

presume most of these collateral consequences. And I am trying to 

think, Mr. Cassidy, were you the main spokesperson here on collateral consequences? 

Mr. CASSIDY. I wouldn’t make that claim, but certainly I did talk 

about it. 

Mr. COHEN. Are most of these collateral consequences supposed 

to be deterrents or are they punishments? 

Mr. CASSIDY. Well, I think that is a very good question. I think 

oftentimes what you have is a response to public anger about a 

particular instance and the first response is, well, let’s go back and 

close the barn door. I am not sure they are very well crafted to 

achieve a purpose. 

Mr. COHEN. So you are not saying they are deterrents. You are 

not saying they are punishments. You are saying they are political 

yahoo points? 

Mr. CASSIDY. I think when you have a situation where, for example, in New York State it appears there are more than 1,000 collateral consequences related to conviction, you set up a situation 

where the net is so fine and the mesh is so clear that it is surprising we don’t have a 100 percent recidivism rate. 

Mr. COHEN. They are obviously not deterrents, because the 

crimes that are committed are growing in numbers. It is like prohiVerDate Aug 31 2005 13:13 Nov 19, 2010 Jkt 000000 PO 00000 Frm 00145 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\060910\56830.000 HJUD1 PsN: 56830
142 

bition, and the American public is saying these are not our values. 

Yet we are incarcerating people and taking away their rights and 

spending lots of resources and money that we should be spending 

on education and health care and EPA standards and cleaning up 

the Gulf and all the other problems we have got, rather than incarcerating people and putting them to a life of indentured servitude 

by gift of your United States Government. 

But I thank each of you for your testimony and your works and 

I thank Chairman Conyers and hope that we will have a bill on 

this that we can pass out of this Committee and get with Chairman 

Leahy and get this approved in this Congress. And thank Mr. 

Gohmert for leading in what I hope will be a bipartisan effort in 

seeing that we are moving forward with realistic, rational legislation and that we don’t have to remove all of our cynicism to get 

to the right point at the right time. 

Thank you, Mr. Chairman. 

Mr. SCOTT. Thank you. 

The gentleman’s time has expired. I recognize myself at this 

point. 

Mr. Emsellem, are arrest records generally available on criminal 

background checks? 

Mr. EMSELLEM. Well, under Federal law, under an FBI check, if 

you are screened for any of the hundreds of occupations that require an FBI check, yes, the arrest is produced. 

Under State laws, there are many State laws that say you can’t 

provide the arrest record. 

For private employers who go through the criminal background 

check private screening firms, Federal law says they can’t produce 

an arrest record older than 7 years. So there is this huge variation. 

To summarize, there is a lot of variation around access to arrest 

records, depending on State law, depending on whether it is an employer background check, depending on whether it is a Federal 

background check. 

Mr. SCOTT. Dr. Lattimore, you had one program where the conclusion was that there is no change in recidivism? 

Ms. LATTIMORE. The Serious and Violent Offender Reentry Initiative grant programs that funded 89 reentry programs across the 

country, prisoner reentry programs across the country, and that 

were basically supposed to do needs and risk assessment, provide 

education, vocational training, substance abuse treatment, and 

mental health, what we found was that they started making incremental improvements in the provision of those types of services but 

not as much as was needed. In most cases, we saw modest improvements in employment and housing and drug use outcomes; 

did not see any differences in reincarceration rates. 

Part of this may be due to the impact of technical violations, 

which is another sort of complication when you study recidivism. 

You have got people that are on parole. Oftentimes, you put them 

in programs where they are actually being watched more closely 

than the people that aren’t in the programs, which leads to an opportunity for them to be caught on some technical violation of parole. We are still continuing to sort of scrutinize our data with respect to whether and the extent to which that might have had 

some influence on the findings. 

143 

The other issue that I think is important to keep in mind that 

we have not studied as much—well, it has been studied relatively 

little—is this notion that comes out of the substance abuse treatment area of relapse. And given that so many prisoners come out 

of prison swearing that they are never going to go back, they are 

done, and some of them—something happens in that immediate 

transition period that we really don’t fully understand about what 

all the factors, the characteristics of the individual, the environment they are in, the support they are receiving and so forth, we 

really don’t understand where this attitude of not coming back is 

shifting and changing that leads to something where they get back 

in trouble again. You know, is it I can’t find a job? Is it as soon 

as I got out I went back and started hanging out with the guys 

that got me in trouble before? 

Mr. SCOTT. Have you seen some programs that work and some 

that don’t? 

Ms. LATTIMORE. There are programs. There is evidence that some 

employment-based programs work. There is some evidence of positive outcomes with drug courts. Certainly some substance abuse 

treatment. There is emerging evidence of sort for cognitive behavioral programs that attempt to change criminal thinking. 

Mr. SCOTT. So some tend to work and some don’t. 

Ms. LATTIMORE. It is complicated by the fact you are talking 

about—when you talk about criminal justice populations, you are 

talking about—Judge, as you know—lots of different kinds of people, from the first-time marijuana smoker to people like in our 

study that had an average of 14 prior arrests when they were incarcerated. 

So you talk about very serious populations and so forth. So there 

is evidence that some types of programs work for some populations, 

but in terms of the full grid we don’t know. 

Mr. SCOTT. Mr. Lewis, have you seen evidence to show what 

works and what doesn’t work? 

Mr. LEWIS. We have. In some of our work that we did at Prison 

Fellowship with the evaluation of the Interchange Freedom Initiative and of the Kairos Horizon Prison Program, we found that there 

is a growing body of empirical evidence that shows that folks who 

participate in faith-based programming while in prison and complete those programs do show significant reductions in both recidivism and in one of the studies were more likely to meet their child 

support obligations upon release. 

So if I made a recommendation it would be to certainly continue 

faith-based programming while in prison, along with some of the 

other programming. 

Mr. SCOTT. You mentioned health care. Have you reviewed the 

health care bill that passed to determine what impact that is going 

to have on recently released prisoners, whether they are going to 

have continue to have problems getting health care? 

Mr. LEWIS. Just a cursory review of that. 

Mr. SCOTT. Did you come to any conclusion? 

Mr. LEWIS. No, I haven’t. 

Mr. SCOTT. You mentioned also children and the effect that—the 

collateral consequence to society, I guess, on the effect on children. 

What effect, and how can we limit the effects that involve children? 

144 

Mr. LEWIS. I am glad you mentioned that, Mr. Chairman, because that is an area that we are particularly concerned about, is 

the growing number of children that are impacted by incarceration 

and, therefore, impacted by collateral consequences. 

Research shows that when a parent is incarcerated the children’s 

lives are disrupted not only by separation from their parents but 

also they are more likely to endure poverty, to endure parental 

substance abuse or poor academic performance. They are more likely to suffer aggression, anxiety, depression. And on top of all of 

that, they are more likely to experience alcohol and drug abuse 

themselves; and the lifetime probability of incarceration of those 

children actually goes up significantly. So the children who are impacted by incarceration are also impacted by these collateral consequences, particularly in the area, I believe, of housing. 

As a personal anecdote, when I was with Prison Fellowship, I 

can’t tell you the number of ex-offenders that I ran into and interviewed during our recidivism portion of the study who, for example, 

wanted to do the right thing and wanted to connect with their families upon release. In most cases, the children’s mother was living 

perhaps in public housing, and because that offender had a felony 

drug conviction and/or a gun conviction, probably both, he was prohibited from reuniting with his family. 

Those cases, sadly, were few and far between, but we believe 

that is a good example of how children suffer the collateral consequences of incarceration. 

Mr. SCOTT. Finally, Mr. Emsellem, you mentioned the TSA Waiver Program. How feasible would it be to implement that on a broad 

basis? Are there logistical complications that would make that difficult to do generally? 

Mr. EMSELLEM. I think when it comes to Federal background 

checks there is really no reason why it couldn’t be implemented by 

the various agencies that are doing the screening anyway. I mean, 

there are certain resource issues that would be involved, I think. 

With port worker background checks, they are charged a fee that 

goes toward the process. 

But when we are talking about all the State various occupational 

restrictions or private employer restrictions, I think there are opportunities there, and there are a lot of States that have the 

equivalence of waivers with different occupations. But I would 

focus more, especially with private employment, on compliance 

with the EEOC guidelines, which, like I say, are very straightforward and they require all of the things we have been talking 

about, that the offense be job-related, be sensitive to the age of the 

offense, the nature of the offense, all those basic criteria. They are 

good standards. 

The Federal Government was just sued over the census enumerators, all of them, on this title VII theory that the EEOC guidelines 

have been around for over 20 years. 

So I think there is either—you know, you can go at both, and 

there is a lot of opportunity with waiver, with all the Federal laws 

that are implemented. 

Mr. SCOTT. Thank you. 

Mr. Gohmert, any other questions? 

145 

Mr. GOHMERT. Well, I might just comment, the discussion about 

expungement, there are cases when it would certainly be helpful. 

But then you guys know as well, there are some cases where you 

don’t want that expunged. 

For example—all I can do is make it a hypothetical because of 

the law—but, hypothetically, you are a child molester, you are 

caught, you are brought to court, and because the little children 

can’t convince, can’t remove all reasonable doubt from the jury’s 

mind, you end up being acquitted. The whole record is expunged. 

So then you go to work for a couple of other entities that, one, a 

probation office and then a school and then you end up destroying 

lives for which you are convicted. 

We know that, like child molesters, the studies I have seen indicate they are going to have a greater risk of re-offending. Some 

things you don’t want that expunged. You want to be able to consider that, and some of the EEO criteria are very helpful in that 

record. 

Then I had an appointed case where I had concerns about the defendant’s mental state. Well, I brought in a psychiatrist. He was 

excellent and had been very helpful on another appointed case. But 

he said, he has got a problem, but it is called nowadays, under 

DSM-4, antisocial personality. It used to be a sociopath. He knows 

right from wrong. He can comport with the requirements of law. 

He just enjoys not doing so. 

The best place for him—I said, well, maybe you could help us on 

mitigation and sentencing. He said, but, yeah, the best place for 

him is a very structured environment for as long as you can possibly keep him, hopefully, the rest of his life, because he enjoys 

hurting people. And I said that sounds like prison. He said, yeah, 

he needs to be there the rest of his life. Well, we may not use you 

on sentencing then. 

But, anyway, there are some people who you don’t want their 

records expunged, and I would hate for a law that just made it 

blanket across-the-board. There are others you want to encourage 

them to have a fresh start. 

Ironically—I can’t help but point this out—under the hate crimes 

bill we passed, it is a complete defense under the Federal hate 

crimes bill, not most State, but under the Federal hate crimes bill, 

if you raise a reasonable doubt that you selected your victim randomly. I just wanted to shoot somebody. It was a random shooting. 

I didn’t care. That is a complete defense under the Federal law, 

ironically. 

But I do appreciate the input. These are troubling issues, because we do want to have protection for society. On the other hand, 

you know, one of the things that has made America great is that 

we are a very forgiving society, which also makes it weird that so 

many people get in trouble in Washington covering things up, 

whereas history tells us if you just were open, people are very forgiving. 

That is why I would like for your input to go beyond the hearing 

today. You know the reaction of the public. If this body were to 

come out and say we are going to let you expunge anybody after 

a certain period, there are some things that shouldn’t be. That is 

why we really need to be cautious, or you end up doing more damVerDate Aug 31 2005 13:13 Nov 19, 2010 Jkt 000000 PO 00000 Frm 00149 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\060910\56830.000 HJUD1 PsN: 56830
146 

age than good if you have a law that sets up a system where people 

are going to get hurt and then they blame the law and then it gets 

even more Draconian. 

Mr. SCOTT. If the gentleman will yield, is there a difference between expunging arrest records and conviction records? I would ask 

Mr. Emsellem what the civil rights implications may be for discriminating against someone on a job because of an arrest record 

for which there was no conviction. 

Mr. EMSELLEM. The EEOC has two sets of guidelines. One relates to arrest records and one relates to conviction records. There 

is basically a blanket policy that you can’t deny a job—blanket policy based arrest records because of the huge impact on people’s 

color and the absence of any reliable indication that that is a real 

predictor of future job performance. 

Convictions is another thing, and that is where you get into 

these criteria I was talking about before, that the offense is job related, that you are looking at the age and seriousness of the offense. That is not about expungement. 

Mr. SCOTT. You can’t have a blanket policy on arrests. What 

about a kind of haphazard policy or an individual policy? The fact 

that someone has been arrested and then ultimately found not 

guilty, can you discriminate against someone based on that record? 

Mr. EMSELLEM. Not unless you can prove that that arrest actually—we are talking about EEOC and title VII. Not unless you can 

prove that the underlying activity actually happened. That is what 

basically the standard is. If you can show it is not in the arrest 

record anymore, you have got to go out and do your own determination whether what they were accused of doing actually happened. 

Mr. GOHMERT. Well, I know in Texas if you are found not guilty 

at trial, then you can have your records expunged, including the arrest record, so there is no indication that you were ever arrested. 

And it probably is a factor of cost, as Mr. Cohen mentioned. Some 

are found not guilty, and they just don’t have the money to pursue 

expungement. But then others, if you are found not guilty and you 

don’t go through the formal expungement, then the arrest record 

is still out there. If you do, then you can’t bring that up at all. It 

has to be completely eliminated from your record entirely. 

Mr. SCOTT. Thank you. 

The gentlelady from Texas. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. 

I think this is also a topic that needs to be periodically reviewed 

and reintroduced, meaning the topic of reentry. We went through 

this for a number of years with the Second Chance Act, and I believe that many of those in the criminal justice system, reform system, will say there are even barriers to implementing the Second 

Chance Act. There are even, if you will, obstacles in its full implementation, not to mention the poor funding that has been allowed 

for some of the initiatives that have been introduced through that 

legislation. So I believe this is important. 

I cite as an example—and I don’t know if this young man is 

aware of it. I would assume. He, having a lot of people interested 

in his future professional football career, might be ready to pounce 

on this, but who knows. A young man playing at the University of 

Texas at Austin, our premier football institution as well as acaVerDate Aug 31 2005 13:13 Nov 19, 2010 Jkt 000000 PO 00000 Frm 00150 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\060910\56830.000 HJUD1 PsN: 56830
147 

demic institution, African American, was arrested, I guess along 

with some others, for armed robbery and, of course, presented a 

story of horrors. How could he do that. 

Just quietly a week or so ago you heard quietly that all charges 

had been dropped, and he has now quietly dispatched himself off 

to another university. 

The question is, will that individual have to forever and ever say 

that he was arrested. 

The question is, what does expunging mean in terms of our Federal housing requirements? I think someone just evidenced a story 

about an individual not being able to be reunited with their family. 

If the record is expunged, does that mean under our Federal housing guidelines, a misguided law, and I understand the purpose of 

it, would that person still have to indicate that they have been incarcerated and/or arrested? 

So let me just pose this question that I will go—I think I saw 

something from Mr. Cassidy, and I couldn’t determine whether he 

was for or against the concept or the understanding of how arrest 

records block the reentry, because it indicated—includes some information on the record. 

I want to go on record by saying that I have an aversion to child 

predators and individuals that have a propensity of repeating and 

preying on the innocent. So let me just put that on the table and 

put that aside. 

The HUD rules came about because of the attempt by HUD to 

clean up public housing, where grandmothers either were, I 

wouldn’t say forced, but maybe forced, but in many instances willingly had youngsters taking care of them; and they were being, in 

essence, running drug houses because the youngsters were in 

gangs or whatever they were and therefore creating an unsafe atmosphere. And you didn’t want to throw grandma out, and so it 

was that you couldn’t have these individuals in. That was sort of 

the underlying premise. It has expanded so that people coming 

back and wanting to get a job and come back to their family are 

now blocked. 

So I would ask each of you to give me your sense of the most horrific aspects of reentry as relates to reentry. And you can cross the 

gambit. I know there are people here with expertise in work. There 

is housing. Because I really think the expunging is a very, I think, 

instructive approach, and as I understand my colleague has a very 

limiting approach that I think this Committee should consider. 

Many of you know that I have been pushing under the Federal 

system good-time early release so that at 45 years you could be released if you are a nonviolent offender. That has caused a fire on 

the head of many of my colleagues, and I hope that maybe we will 

see the light of day of that legislation. Because I think that is important, releasing individuals who are nonviolent offenders in the 

Federal system without parole who are just taking up space. 

But I would like to hear what you believe is the most horrific aspect of blocking a favorable reentry. Mr. Mauer—and forgive me if 

you are repeating yourself—but maybe you can come up with a 

new idea that we can have on the record as I ask each of you to 

answer that question. 

148 

And thank you, Mr. Chairman and Ranking Member, for holding 

this hearing. 

Mr. MAUER. Well, just very briefly, I mean, two actions that have 

come out of Congress—and I think we have 15 years of experience 

with them now—are the ban on Pell grants for education in prison 

and the TANF food stamp bans, both adopted by Congress in the 

mid-1990’s. I think there is no evidence whatsoever that shows that 

has had a positive effect. There is a great deal of evidence that 

shows it has made reentry more difficult. It probably has contributed to higher rates of recidivism, rather than lower. So if we really care about evidence-based approaches, I think it is time to revisit both of those policies. 

Ms. JACKSON LEE. Excellent. Thank you. 

Mr. EMSELLEM. I would say there are two pieces of criminal 

background checks for employment. First, get the records right. 

Clean them up so that they are not hurting folks who have clean 

records and they are still showing up as having a problem, either 

an arrest or conviction. And that covers the scope of FBI records, 

private records, all across the board. 

And then also, you know, adopt standards—and they can be in 

Federal law, they can expand on the EEOC standards that we have 

been talking about, they can create presumptions based on certain 

time periods which is supported by the research—but create standards that everybody—that work also across the board, from Federal 

Government to State government to private employers and that everybody becomes really familiar with. That is what we are missing. 

It is the Wild West out there, basically, and it is time to create 

standards and enforce standards. 

Ms. JACKSON LEE. Thank you. 

Mr. Moore. 

Mr. MOORE. Good morning. Yes, ma’am. 

I myself have a problem with pedophilia, sex crimes, not to mention pretty much all crimes, but those are two major crimes that 

I really, really have a problem with. 

How do we address the issue? I keep going back to what I said 

probably 25 minutes ago about establishing a way that you can 

scrutinize individuals when they do return in reference to a measure of crime that fall off the charts when we are dealing with 

pedophilia and stuff along the lines of sex crimes and crimes that 

will put people’s lives in jeopardy as far as armed robberies and the 

like. 

So in living this experience myself, not that I believe I am telling 

you anything, especially Judge Gohmert, things that he hasn’t witnessed as far as criminals that come before him and you expunge 

their record and you really don’t know what they are about once 

they return to society, you really have no idea. But it has been my 

experience as far as this thing called life goes there is also pros and 

cons and negativism and positivism to each and every given situation. 

So in order to give the person a chance, you know, like I said, 

I keep hearing this thing about what I mentioned a little while ago, 

about scrutinizing the individual that you have before you to give 

them that chance, if it is a clearinghouse or something established 

where you can get an idea what this individual is all about. Does 

149 

he have a family? Does he care about himself or the people, taxpaying citizens? Pretty much that is basically what I have to say. 

Ms. JACKSON LEE. Thank you, sir. That is very instructive. 

Mr. Lewis? 

Mr. LEWIS. I am concerned primarily about policies that limit 

participation of ex-offenders in employment and training programs, 

the receipt of income supports and including welfare benefits. If we 

are going to tackle the problem of prison reentry, we have to allow 

access to those programs. 

Ms. JACKSON LEE. Would that include housing? 

Mr. LEWIS. And that would include housing. 

Ms. JACKSON LEE. You see the barriers to federally funded housing. Is that an issue that you think is of concern? 

Mr. LEWIS. Yes, it is. 

Ms. JACKSON LEE. Ms. Lattimore. 

Ms. LATTIMORE. Thank you. I would agree with Mr. Lewis that 

job training and educational programming are needed. If people are 

going to be able to put a decent life together, they are going to have 

to have that, as well as treatment services. Substance abuse treatment and mental health services are not available at anywhere 

close to the level that are needed, given the needs of the population. 

Ms. JACKSON LEE. So if there are Federal—a job training program—and, Mr. Chairman, I had one of my major infrastructure 

projects funded by Federal dollars. I had the CEO of that project 

say, ‘‘I think we are not allowed to hire ex-offenders.’’ I was asking 

where he got that from. I even asked the President of the United 

States in a meeting, do Federal funds bar someone from getting a 

job moving trash, frankly. I am glad that our President said he had 

never heard of it. 

But if I had not challenged, because I was trying to get a job 

training program, Mr. Chairman, Mr. Chairman Conyers, that 

would include ex-offenders, that specifically would go and outreach 

to them, which I am still pushing for, and that willy-nilly this wellthinking CEO of the project, getting $1 billion-plus from the Federal Government is saying, oh, we can’t hire ex-offenders. 

Mr. EMSELLEM. You should report them to the OFCCP. I mean, 

that is their job, and I think they are very interested in pursuing 

that, again because of the title VII standards. Blanket policies are 

illegal under title VII as applied to Federal contractors, State governments, private employers. So—unless there is some special provision. And no provision that I am aware of says no one with a 

record qualifies for a Federal job. 

Ms. JACKSON LEE. I will dispatch myself to do it. Because the 

contractors, as you well know, who are being the major contractors 

are saying that, and they also have their own private policies, but 

they are using Federal dollars. 

Can I get Mr. Cassidy? 

Mr. CASSIDY. Congresswoman, I think you are hearing the right 

themes, housing, education, employment, job training. But all of 

those issues are limited by the hundreds—in some States, perhaps 

thousands—of laws and regulations that say no to ex-offenders. 

There has to be some rational order brought to that system. Without it, people just don’t have a chance. 

150 

Ms. JACKSON LEE. So you are saying that we need to scrap the 

State laws that block individuals returning to their home States 

that are just a maze of opposition to them reentering? 

Mr. CASSIDY. It is a State problem. It is a local problem. There 

has got to be cooperation from all three elements of government. 

Ms. JACKSON LEE. Thank you. 

Thank you very much, Mr. Chairman, for yielding to me. 

Mr. SCOTT. I would like to thank the witnesses for their testimony today. 

Members may have additional written questions which we will 

forward to you and ask that you answer as promptly as possible 

so the answers can be made part of the record. 

The hearing will remain open for 7 days for submission of additional material. 

If there are no further questions, without objection, the Subcommittee stands adjourned. 

[Whereupon, at 12:16 p.m., the Subcommittee was adjourned.] 

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