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AN EXAMINATION OF FEDERAL EMPLOYMENT

PRACTICES/POLICIES IN HIRING EX-OFFENDERS

HEARING

BEFORE THE

SUBCOMMITTEE ON FEDERAL WORKFORCE,

POSTAL SERVICE, AND THE DISTRICT

OF COLUMBIA

OF THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

SECOND SESSION

JUNE 10, 2008

Serial No. 110–141

Printed for the use of the Committee on Oversight and Government Reform

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.house.gov/reform

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

HENRY A. WAXMAN, California, Chairman

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

BRIAN HIGGINS, New York

JOHN A. YARMUTH, Kentucky

BRUCE L. BRALEY, Iowa

ELEANOR HOLMES NORTON, District of

Columbia

BETTY MCCOLLUM, Minnesota

JIM COOPER, Tennessee

CHRIS VAN HOLLEN, Maryland

PAUL W. HODES, New Hampshire

CHRISTOPHER S. MURPHY, Connecticut

JOHN P. SARBANES, Maryland

PETER WELCH, Vermont

——— ———

TOM DAVIS, Virginia

DAN BURTON, Indiana

CHRISTOPHER SHAYS, Connecticut

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

VIRGINIA FOXX, North Carolina

BRIAN P. BILBRAY, California

BILL SALI, Idaho

JIM JORDAN, Ohio

PHIL SCHILIRO, Chief of Staff

PHIL BARNETT, Staff Director

EARLEY GREEN, Chief Clerk

LAWRENCE HALLORAN, Minority Staff Director

SUBCOMMITTEE ON FEDERAL WORKFORCE, POSTAL SERVICE, AND THE DISTRICT OF

COLUMBIA

DANNY K. DAVIS, Illinois

ELEANOR HOLMES NORTON, District of

Columbia

JOHN P. SARBANES, Maryland

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio, Chairman

WM. LACY CLAY, Missouri

STEPHEN F. LYNCH, Massachusetts

KENNY MARCHANT, Texas

JOHN M. MCHUGH, NEW YORK

JOHN L. MICA, Florida

DARRELL E. ISSA, California

JIM JORDAN, Ohio

TANIA SHAND, Staff Director

(III)

C O N T E N T S

Page

Hearing held on June 10, 2008 ............................................................................... 1

Statement of:

Keefe, Paul, staff attorney, Community Service Society; Mark Earley,

president, Prison Fellowship Ministries; and William R. Calhoun, Jr.,

executive vice president, Clark Construction Group, LLC ........................ 53

Calhoun, William R., Jr. ........................................................................... 70

Earley, Mark .............................................................................................. 62

Keefe, Paul ................................................................................................. 53

Kichak, Nancy, Associate Director, Office of Personnel Management;

Major General Thomas P. Bostick, U.S. Army Recruiting Command;

and Brent Orrell, Acting Assistant Secretary for the Employment and

Training Administration, U.S. Department of Labor ................................ 21

Bostick, Major General Thomas P. .......................................................... 27

Kichak, Nancy ........................................................................................... 21

Orrell, Brent .............................................................................................. 34

Meyers-Peeples, Roberta, director, National H.I.R.E. Network ................... 7

Letters, statements, etc., submitted for the record by:

Bostick, Major General Thomas P., U.S. Army Recruiting Command,

prepared statement of ................................................................................... 29

Calhoun, William R., Jr., executive vice president, Clark Construction

Group, LLC, prepared statement of ............................................................ 73

Davis, Hon. Danny K., a Representative in Congress from the State

of Illinois, prepared statement of ................................................................ 3

Earley, Mark, president, Prison Fellowship Ministries, prepared statement of ........................................................................................................... 64

Keefe, Paul, staff attorney, Community Service Society, prepared statement of ........................................................................................................... 56

Kichak, Nancy, Associate Director, Office of Personnel Management, prepared statement of ........................................................................................ 23

Meyers-Peeples, Roberta, director, National H.I.R.E. Network, prepared

statement of ................................................................................................... 10

Orrell, Brent, Acting Assistant Secretary for the Employment and Training Administration, U.S. Department of Labor, prepared statement

of ..................................................................................................................... 36

(1)

AN EXAMINATION OF FEDERAL EMPLOYMENT

PRACTICES/POLICIES IN HIRING EX-OFFENDERS

TUESDAY, JUNE 10, 2008

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON FEDERAL WORKFORCE, POSTAL

SERVICE, AND THE DISTRICT OF COLUMBIA,

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 2:03 p.m., in room

2154, Rayburn House Office Building, Hon. Danny K. Davis (chairman of the subcommittee) presiding.

Present: Representatives Davis, Norton, and Marchant.

Staff present: Lori Hayman, counsel; William Miles, professional

staff member; Marcus A. Williams, clerk/press secretary; Jim

Moore, minority counsel; and Benjamin Chance, minority professional staff member.

Mr. DAVIS. The subcommittee will now come to order. Let me

welcome the ranking member, Mr. Marchant, and members of the

subcommittee, hearing witnesses and all of those in attendance. I

welcome you to the Subcommittee on the Federal Workforce, Postal

Service, and the District of Columbia’s oversight hearing, examining the Federal Government’s principles and policies on hiring exoffenders.

The chairman, ranking member and subcommittee members will

each have 5 minutes to make opening statements, and all Members

will have 3 days to submit statements for the record. Hearing no

objection, so is the order.

I will begin, and I thank all of you for coming.

This hearing today is about determining if the Federal Government is actually practicing the policy of giving ex-offenders a real

opportunity at living the best life that they can live. As the author

of the Second Chance Act, which was recently signed into law by

the President, it goes without saying that I am committed to reducing crime and recidivism in America by supporting proven ex-offender reform and reentry initiatives.

Every year nearly 650,000 prisoners are released from Federal

and State correctional facilities after having served their time and

paid their debt to society for the crimes they committed or were

convicted of. In most cases upon release from prison, many of these

individuals return to communities and conditions that may not be

conducive to developing a new productive and crime-free life.

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One of the biggest hurdles ex-offenders face in reforming their

lives is finding adequate employment, whether in the public, private or nonprofit sectors. According to the Justice Department’s

National Institute of Justice’s 1998 Successful Jobs Placement for

Ex-Offenders report, ex-offenders have great difficulty reintegrating into society not because they lack job-seeking experience or

valid work history or occupational skills, but because many employers refuse to hire individuals with criminal records. Consequently

many ex-offenders consistently hit a dead end on the road to work

force reentry despite national efforts targeted at improving ex-offender access to permanent, unsubsidized, well-paying jobs.

Whether it’s the Department of Labor’s Prisoner Reentry Program or the U.S. Department of Education’s Office of Correctional

Education, the Federal Government has clearly taken steps to develop programs to assist ex-offenders with becoming contributing

members of society. And while these initiatives are complemented

by the work of thousands of nonprofit and community groups

across the country that advocate on behalf of ex-offenders, the fact

is that we as a country and a government continue to fall short in

our attempt to eliminate barriers to employment for ex-offenders,

which keeps us at the top of the world in terms of the numbers of

individuals who are incarcerated. Our country, the United States

of America, has more people incarcerated per capita than any other

nation on the face of the Earth.

Aside from select branches of the U.S. military, there is very little evidence that the Federal Government is availing itself as a legitimate source of employment for ex-offenders. It is my hope that

today’s hearing will serve as a catalyst for changing this predicament by shedding light on exactly what role the Federal Government is playing in employing and hiring ex-offenders.

I look forward to today’s witnesses’ testimony and thank you all

for coming.

[The prepared statement of Hon. Danny K. Davis follows:]

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Mr. DAVIS. I would now yield to the ranking member, Mr.

Marchant, for an opening statement.

Mr. MARCHANT. Thank you, Mr. Chairman, for holding this very

important hearing this afternoon.

In February of this year, the Pew Center on the States issued a

report which announced for the first time in history that more than

one in every American adult is in jail or prison. Clearly, most of

these prisoners will be released back into society and the question

of whether they will be able to become a successful contributing

member of society depends on something as simple as whether they

can find a job or not.

In looking at the larger question of what happens to ex-offenders

after they are released, it only makes sense to understand what

Federal policies exist in both civilian and military services to make

sure that the right persons are hired where appropriate and the

need for public safety is respected in the process.

I look forward to the testimony from all three panels. And thank

you, Mr. Chairman.

Mr. DAVIS. Thank you very much, Mr. Marchant.

And now I would yield to Delegate Eleanor Holmes Norton for

an opening statement.

Ms. NORTON. Thank you very much, Mr. Chairman. I certainly

want to associate my own remarks with those that you have made

and that the ranking member made particularly concerning this

important hearing.

Mr. Chairman, I must say that I appreciate that you have not

rested on your landmark bill, that you’re following through on your

concern about the counterproductive treatment of ex-offenders. The

Second Chance bill is a path-breaking bill that opens the way for

the Federal Government and the States as they begin to face the

fact that most people who go to prison return and that we cannot

escape our responsibility for them.

It is with some irony that we note that the Federal Government

funds others to train and hire ex-offenders. But before this, for this

hearing, Mr. Chairman, I don’t know when the Congress has

looked at what our own record was in hiring ex-offenders or for

that matter people only with arrest records.

I’m the very last as a member of the Homeland Security Committee to say that we shouldn’t look very closely at the particular offenses; so should every private employer. And yet the Federal Government wants private employers to, in fact, hire ex-felons. What

about the whole notion of leading by example?

Now, we will hear from the OPM: Of course we do not have any

blanket rule against hiring ex-offenders. Of course the Federal Government will hire ex-offenders. Where’s the proof? Of course they

don’t have any blanket rule. Title VII of the 1964 Civil Rights Act

defines that as unlawful if you can show it has a disparate impact

on racial and ethnic groups and those protected by the statute.

Manifestly, it does. So nobody, no employer, has a rule against hiring ex-offenders. Why would they put themselves in that way?

They should hire them.

[Inaudible portion. Sound malfunction in hearing room.]

Ms. NORTON. I was speaking about the fact that no employer

today would have a blanket rule. But if sued, many employers

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would have a hard time showing they were not in violation of Title

VII because the burden will shift to you once the Department of

Education was made to show by—depending on the facts why—

class was not being employed.

Mr. Chairman, I have serious doubts that the Government of the

United States could survive such a lawsuit today. If they can, then

I think it behooves them to bring forward the evidence that they

are, in fact, doing what they’re asking private-sector employers to

do throughout the country.

In the post-9/11 time, one might have expected that the rules

would have become more stringent, and indeed it may be in the

Federal Government that a great many felt that they might not be

hired. One wonders if felons are employed, for example, in manual

labor. One wonders if felons or ex-felons are hired in low-level positions in the government.

It’s interesting to note that times have gotten hard enough in recruiting for the volunteer Army that the military issues waivers to

allow people with records to come in. This was done routinely in

the old armed services. Now, of course, that we have a volunteer

armed services, and until the Iraq war depleted us of volunteers

and I think destroyed the voluntary armed services, until then we

have raised the standards, and among those excluded were people

with records.

Well, I would be particularly interested—and I certainly hope I

can stay, because I have a bill on the floor and another committee

hearing—to hear what the armed services has to say about their

experience in addition to what OPM will have to say, because the

question is, are the times tough enough for the Civil Service to now

be about the business of setting the example for the private sector

urging them to hire ex-offenders? And it is a fair question to put

to the largest employer in the United States.

I thank you again for this hearing, Mr. Chairman.

Mr. DAVIS. Thank you very much, Delegate Norton. I certainly

appreciate your comments.

And one of the reasons that we have this hearing is I just don’t

believe you can lead where you don’t go. I’m very simple. I don’t

believe that you can lead where you don’t go. And I don’t believe

that you can even ask others to do things that you are unwilling

to do yourself. So it’s difficult for me to see how a Federal Government could ask the private sector to do things relative to the employment of certain types of individuals unless it is willing to lead

by example.

So let me thank you. And let us go right to our first witness.

[Witness sworn.]

Mr. DAVIS. The record will show that the witness answered in

the affirmative.

[Inaudible portion. Sound malfunction in hearing room.]

Mr. DAVIS. Our first witness is Ms. Roberta Meyers-Peeples. She

is director of the National Legal Action Center National H.I.R.E.

Network. The organization’s mission is to increase job opportunities

for people with criminal records by changing public policies and

opinions and employment practices.

Ms. Peeples, we have a tradition of giving 5 minutes of summary.

Your entire statement will be included in the record. The green

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light means that you’ve got the full 5 minutes. The yellow light

means that you’re down to a minute. And, of course, the red light

means that the time is up. And we thank you so much for being

here with us. And you may proceed.

STATEMENT OF ROBERTA MEYERS-PEEPLES, DIRECTOR,

NATIONAL H.I.R.E. NETWORK

Ms. MEYERS-PEEPLES. Thank you, Congressman. I want to thank

the committee, of course, for holding this important hearing.

I echo many of the sentiments that you all have already expressed regarding this issue. And I particularly want to thank Congressman Davis for his steadfast leadership and commitment to ensuring people with criminal records have a fair opportunity at getting their lives back on track.

Since you did give some background about our organization, I

will kind of skip down. I wanted to talk a little bit about the fact

that people with criminal histories actually have to contend with

being locked out of potentially thousands of employment opportunities. There are literally thousands that are connected to criminal

record bars to employment, some from the State level and some

that are the result of Federal regulation. But the two biggest challenges we do identify is one that Congressman Davis spoke about,

one addressing the stigma of having a criminal record, and it’s a

huge hurdle that many individuals have to live with for the rest

of their lives and the fact that many employers do have a concern

about hiring people with criminal records.

But also the other is related to State and Federal statutory barriers. We’re here to talk a little bit about some of the Federal regulations, and we’ve identified eight industry barriers that are created based on Federal regulations that have far-reaching impact in

terms of exclusions and barriers to employment. And some of those

industries are, I think, common, and we would initially identify in

terms of finance, insurance, unions, health care, child care, transportation, particularly aviation, working on the ports, and truck

drivers and also security guards.

I wanted to give a couple of examples because at the Legal Action Center, we actually help people directly who are directly affected with criminal records with overcoming some of the challenges to getting employed.

In New York there is an anti-discrimination law to protect the

rights of qualified individuals with criminal histories. But even

still, people are often denied access to jobs that they are qualified

for and that they pose no potential risk. But I just wanted to give

a few examples of individuals that have come to us over the last

year that have been affected by various Federal regulations.

We had a man in Florida contact us. He’s now in his thirties. He

had been employed by a company doing debt collection activities for

Citicorp for nearly 2 years, and his supervisor informed him that

there was a customer service sales position available with Citicorp.

He applied for the job, had an excellent interview, favorable response, but because of his criminal history, he had a 10-year-old

debt-related conviction, he had to apply for an FDIC waiver.

So he was told to go do that. He contacted the regional office of

the Federal Deposit Insurance Corporation [FDIC], to try to apply

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for a waiver, and he was told that he couldn’t apply for the waiver,

the employer had to apply for the waiver. So we know he did not

get the job.

I followed up with this regional director just to get a sense and

find out how many waivers are actually applied for on behalf of applicants who are applying for jobs who have a criminal record, and

he said never in his 15 years has he ever seen an employer apply.

So that immediately came in terms of how that affected me. I’m

wondering, OK, why do we have this waiver process? Many employers aren’t going to take the time if they have the chance to choose

other applicants that are applying for these positions. And why

aren’t we making it easier for individuals to apply to get the clearance to provide evidence of their rehabilitation and be cleared to

work in that industry, and even be limited, maybe be limited, to

a certain type of job?

Another example is a 46-year-old man who was fired from his job

as a baggage handler at JFK Airport in New York based on a 10-

year-old conviction. The U.S. Department of Homeland Security refused to grant him security clearance due to his drug-related conviction without giving any consideration to all of his accomplishments since his conviction and successful rehabilitation. Earlier in

his life he had struggled with substance abuse, but had been clean

for 9 years after receiving treatment, stayed out of trouble, went

to school, did everything that we would expect him as a society to

do in terms of rehabilitation. He couldn’t get clearance to work.

And by the time he came to us, he had exhausted any appeals opportunities. And again, this is a situation where he couldn’t even—

he didn’t even have a right to be told why—other than the fact that

he had a criminal record—why he was being denied. The port director didn’t want to get evidence of rehabilitation, didn’t ask for

it, and didn’t have to ask for evidence of rehabilitation.

And that’s a huge concern for us. If we put these stipulations in

place in terms of what we expect people to do when they’re released from prisons once they complete their sentences, we would

expect that they would have an opportunity to get employment in

certain positions.

One other example, we have a client who was denied a nursing

position because of a Federal employment barrier that’s imposed by

the Department of Health and Human Services. She was convicted

6 years ago for misappropriation of Federal funds. She had been a

director for a day care owned by her mother where the funds from

a Federal grant that served children was used by her mother for

nonbusiness purposes. After her conviction she went to college, received a bachelor’s in nursing, was approved for licensing in New

York and Florida, was hired at a New York hospital, but then

found out that she was barred from working in any facility that received Medicaid or Medicare funds. There is noplace that she can

work in the medical industry without—you know, with an entity

that won’t receive these funds. So she’s now out of work and receiving public assistance, mind you, and has done all that we would

ask her to do.

There’s a number of things, and I don’t have enough time unfortunately to go into a number of issues, but I do want to give some

additional recommendations if you give me the opportunity. I

9

would ask that the Congress considers creating a standard that

prohibits flat bans against hiring individuals with criminal records.

It’s really difficult, and I think Representative Norton did mention

the fact that people, not only those with conviction records, those

who have arrests that didn’t lead to convictions, their records are

being used against them in many industries. Most States do allow

employers to consider arrests that didn’t lead to conviction, let

alone a conviction.

We would also like to see Congress particularly look at codifying

the EEOC guidance on the use of criminal record information. Continuously there’s laws being passed to open up the FBI data base

and various other routes for getting criminal record information,

and there’s no guidance being given to employers on looking at this

information, considering this information, or further guidance on

looking at what the person has done in terms of determining

whether they would pose a risk in that particular industry.

We would like to see all legislation that works to disqualify people with criminal histories from jobs or other benefits to include a

waiver process as we see in our military service. And some other

occupational licensing bars do come with a waiver process, but

there are others that only allow for the release of criminal record

information, but no right for the individual to present evidence of

rehabilitation; and also to encourage if there is going to be a fitness

determination, that it’s done by an unbiased and independent body.

And on that note, I will close out. And I don’t know if you have

any other questions, but I’m really encouraged by the work that

you continue to do. I would hope that you will continue to look at

the Legal Action Center and the H.I.R.E. Network as a resource to

you and keep pressing forward. We’ll be at your side. Thank you.

Mr. DAVIS. Thank you very much.

[The prepared statement of Ms. Meyers-Peeples follows:]

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Mr. DAVIS. And I’ll just go to Mr. Marchant for questions.

Mr. MARCHANT. Ms. Meyers-Peeples, in your testimony you

seemed to equate requirements for criminal record checks or fingerprint checks as a barrier to employment for ex-offenders. Most of

these programs are very popular with citizens. So we have to find

some way of balancing the public’s demand for security with a desire to give each applicant a fair chance. How would you suggest

that we do this?

Ms. MEYERS-PEEPLES. We’re not opposed to criminal record

checks. I think there’s a number of things that have to happen. We

know that there are a lot of inconsistencies and inaccuracies that

show up on credit records, particularly within some of the State repository records. And we’re finding that more and more legislation

is being introduced to open up the FBI records as well, and there

are a lot of incomplete records and things of that nature.

And we’re not opposed to employers having a right to consider

criminal record and conviction information; however, they often

don’t have any further guidance beyond seeing the information and

making their determinations, you know, based on their own individual bias on whether or not to hire that individual.

And only a handful of States have actually issued guidance or

have a State anti-discrimination legislation that actually offers additional guidance, where an employer in New York is one of those

examples. And I believe there’s a panel that’s following me that

will talk more about New York State law. But they’re giving guidance to say, OK, yes, you can look at the person’s criminal history;

yes, you can determine if that person could potentially pose a risk

and work in this particular job; but you should also look at how

old the conviction is, the age the person was at the time that they

committed the crime, how old is their record, what have they been

doing since then, do they have any evidence of rehabilitation.

And I would imagine it’s nothing different than determining, you

know, if the person is qualified to do the job. You want to check

whether or not they have gone to school, that they have adequate

skills. But the problem is many people with criminal records, they

don’t get to the point of being judged on the merits and their qualifications. They check off a box saying that they have a criminal

record, and that’s where it stops.

And actually there are a number of localities and even in Massachusetts where they’re looking to remove the criminal record question from job applications so that the person can be judged based

on their education, skills, work experience, up front; and later in

the hiring process their criminal record is checked, verified, and

then the risk assessment is done at that point. So it actually makes

it a lot easier to identify and isolate but—whether or not it is the

criminal record and is the employer doing due diligence in looking

at other factors beyond whether the person has a criminal record

or not.

Mr. MARCHANT. So you would argue that the timing of the check

should be later in the process?

Ms. MEYERS-PEEPLES. Absolutely. Absolutely.

Mr. MARCHANT. But you would not argue that it’s legitimate to

check. It just shouldn’t be—it should not be the first thing?

19

Ms. MEYERS-PEEPLES. It shouldn’t be the first thing. The person

should be cleared based on—in terms of moving forward in the hiring process, they should be identified as someone who’s qualified,

the way that they’re identified and the way to determine that

they’re being judged on the merits of their abilities, skills, education or whatever requirements are necessary beyond the criminal

record, if it’s not asked on the initial job application. That’s been

one way to kind of isolate whether or not it’s just the criminal

record. And some localities are actually looking at that. Chicago

has opted to remove that question off of the city government application. Governor Patrick in Massachusetts is moving in that direction. Boston has already moved in that direction and removing the

question of criminal records off the initial job application. So it’s

easier—so it’s already determined that, yes, this person is qualified

based on their education, skills and abilities to do this job. Later

in the process the criminal record is checked, and if that person

poses a risk, then it’s a whole other story. But it gives the person

an opportunity to actually get through the front door and make the

case that they can do this job and are equipped to do this job and

don’t pose a risk.

Mr. MARCHANT. Thank you.

Ms. MEYERS-PEEPLES. You’re welcome.

Mr. DAVIS. Thank you very much, Mr. Marchant.

Ms. Meyers-Peeples, let me ask you, do you know any ex-offenders who actually work for a Federal Government agency? Have you

come into contact with anybody?

Ms. MEYERS-PEEPLES. No, I haven’t. My understanding, I believe,

and this—I was just thinking. I know that the post office has been

an issue. I know that this has been an issue. Years ago we’ve had

clients who have indicated on their job applications for the post office that they have a criminal record, and they were stopped out.

I had a couple of clients, and even a friend of mine, who didn’t get

through the front door because she had a criminal record.

Mr. DAVIS. This question of rehabilitation, what evidence, I guess

I would want to know, of rehabilitation would you think that a potential employer might look at if they were trying to assess whether or not one was hirable?

Ms. MEYERS-PEEPLES. Well, first and foremost, how long it’s been

since there’s been any criminal activity. In many cases we have

people coming to us where they’ve had long stretches of not being

involved in any criminal activity, meaning they haven’t been arrested ever again, have not had any police contact over a certain

amount of time. Other evidence, some people’s criminal activity

was connected to substance abuse history or some type of addiction

for which they’ve been in recovery and have successfully completed

recovery. Evidence of completing treatment is evidence of rehabilitation.

The fact that someone has come out of prison, and has gone to

college, and has successfully or is successfully going to college, has

attained various occupational skills, has worked in other types of

jobs, is taking care of their family, have been paying their taxes,

stable housing, all the things that we know act as challenges to

someone having a successful reentry experience, when people manage to go through the reentry process in getting some type of job

20

and holding down a job, it all serves as evidence of rehabilitation.

And this is information that I think should play a major role in an

employer determining whether or not this person could be a loyal

employee on top of having the skills and the education that are

necessary to do that particular job. And that’s something we just

ask that employers do. They need to do that for any applicant that

comes through their door.

Mr. DAVIS. And finally, let me just ask you, do you see any connection between an individual who was convicted of passing a bad

check and being able to wash windows here at the Capitol?

Ms. MEYERS-PEEPLES. Absolutely not. There is no connection.

That person can obviously do the job. And it’s interesting that you

mention that, because that is one of the—in terms of New York’s

laws, employers can determine whether or not there’s a connection

between the person’s criminal history and the job that they would

be doing. And I have to say, in many cases employers are sometimes kind of far-fetched or far-thinking in terms of trying to connect certain types of histories with certain jobs.

But absolutely not. Passing a bad check, the employer may want

to question that person about what was going on in their life; it

was a financial burden or what have you. But in many cases there

isn’t a relationship. And I think there are clear relationships. And

we hope that employers have determined the type of individual and

the type of skills that person would need to have in terms of doing

the job. But there’s no way they can connect someone with checkwriting fraud or credit that, you know, should be prohibited from

washing windows or vacuuming or what have you. They don’t have

access to money or anything like that.

Mr. DAVIS. Well, thank you very much. We really appreciate

you——

Ms. MEYERS-PEEPLES. You’re very welcome.

Mr. DAVIS [continuing]. Coming to testify.

Ms. MEYERS-PEEPLES. Thank you.

Mr. DAVIS. We will go to our second panel, and while they are

coming, I will introduce the panelists.

Ms. Nancy Kichak was named Associate Director for the Human

Resources Policy Division of the Office of Personnel Management

[OPM], in September 2005. Ms. Kichak leads the design, development and implementation of innovative flexible and merit-based

human resource policies.

We also have Major General Thomas P. Bostick. Major General

Bostick assumed command of the U.S. Army Recruiting Command

on October 12, 2005. He is responsible for overseeing more than

13,000 recruiting soldiers and civilians assigned throughout the

United States and Europe and the Far East, with the primary mission of meeting the Army’s recruiting goals.

And we have Mr. Brent Orrell, who is the Principal Deputy Assistant Secretary for Employment and Labor at the Department of

Labor. Prior to this appointment he worked at the Department of

Labor on the President’s faith-based and community initiatives.

Thank you all for being here. And if you would stand and be

sworn in.

[Witnesses sworn.]

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Mr. DAVIS. The record will show that the witnesses answered in

the affirmative.

Again, let me thank all three of you for being here and being

willing to come and help us explore this serious issue. Of course,

your entire statement is in the record. And if you would take 5

minutes and summarize, then we would go into a question and answer.

The green light indicates that the full 5 minutes are available.

The yellow light means you’ve got a minute, and, of course, the red

light means that the time is up.

Ms. Kichak, we’ll begin with you. And it’s good to see you again.

STATEMENTS OF NANCY KICHAK, ASSOCIATE DIRECTOR, OFFICE OF PERSONNEL MANAGEMENT; MAJOR GENERAL

THOMAS P. BOSTICK, U.S. ARMY RECRUITING COMMAND;

AND BRENT ORRELL, ACTING ASSISTANT SECRETARY FOR

THE EMPLOYMENT AND TRAINING ADMINISTRATION, U.S.

DEPARTMENT OF LABOR

STATEMENT OF NANCY KICHAK

Ms. KICHAK. Thank you. Chairman Davis and Representative

Marchant, thank you for inviting me here today to discuss the employment of ex-offenders in the Federal Government.

The Federal Government supports the employment of rehabilitated offenders who have the knowledge, skills and abilities needed

to accomplish the work of the government. We recognize that in addition to helping the Federal Government meet its staffing needs,

employing rehabilitated offenders can contribute to the national effort to prevent crime and enable these individuals to become productive citizens.

Under the merit system principles, agencies must consider applications from rehabilitated ex-offenders to see if they are the best

candidate for the position and can comply with the requirements

for the job.

At the same time, we need to carefully balance providing employment opportunities for ex-offenders with our responsibilities to the

public, including our fiduciary obligations to taxpayers. Not all jobs

will be open to individuals with the kinds of backgrounds some exoffenders have. It may be inappropriate to place certain ex-offenders in positions related to national security or in positions involving

access to financial data or personally identifiable information. Consequently the principal issue for agencies as they consider hiring

ex-offenders involves making suitability determinations and determinations of eligibility for security clearances.

Applicants for employment in the executive branch, including exoffenders, must undergo a background investigation and determination as to whether they are suitable for Federal employment

based on their character and conduct relative to governmentwide

standards. While there is no general bar against ex-offenders, Congress has determined that some types of criminal conduct would

render an individual ineligible for Federal employment generally or

for work in certain types of positions. Most of these provisions are

in Title XVIII of the United States Code. For example, an individual convicted of a misdemeanor crime of domestic abuse is barred

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from being hired for a position requiring the incumbent to possess

a firearm.

In other cases involving criminal conduct, agencies would consider each applicant on a case-by-case basis. Among other things,

agencies may consider how recently the criminal conduct occurred,

the age of the individual at the time the conduct occurred, the relationship of the conduct to the position in question, and the evidence

or lack of evidence of rehabilitation including the individual’s own

efforts at rehabilitation.

It is important to keep in mind the fact that an individual is considered unsuitable—that if an individual is considered unsuitable

for a particular job, that does not necessarily mean he or she is unsuitable for all Federal employment. Federal agencies must consider qualified rehabilitated ex-offenders to fill appropriate vacancies that are not otherwise restricted. Therefore, we believe current

human capital practices provide adequate opportunities for employment, and that no special appointing authorities for hiring ex-offenders in the Federal Government are needed. Our current array

of appointing authorities and flexibilities provides all the tools we

need to bring qualified ex-offenders into the government.

In addition, there has been a long accepted Schedule A appointing authority available to agencies for employing individuals who

are on work release programs, these individuals who have not yet

been released from custody, but who have an opportunity to gain

work experience to prepare them for employment upon completion

of their sentences. This authority allows agencies, with prior approval from OPM, to employ inmates of Federal and State correctional institutions when a local recruiting shortage exists for positions being filled.

Thank you for inviting me to discuss the issue with you today,

and I’d be happy to answer any questions.

Mr. DAVIS. Thank you very much.

[The prepared statement of Ms. Kichak follows:]

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Mr. DAVIS. General Bostick.

STATEMENT OF MAJOR GENERAL THOMAS P. BOSTICK

General BOSTICK. Chairman Davis, Congressman Marchant and

other distinguished members of the committee, thank you for the

opportunity to appear here today on behalf of the U.S. Army.

I take tremendous pride in saying that we are maintaining a

high-quality volunteer force that is proudly serving this great country. We’re the best equipped, best trained, best led Army in the Nation’s history.

In this era of persistent conflict, the Nation and the Army have

the toughest recruiting challenge during the all-volunteer history,

which dates back 35 years now. Having said this, we can be very

proud that 170,000 Americans raised their right hand last year to

serve in an Army at war. That’s the size of Newport News, VA;

Brownsville, TX; and a little bit bigger than Springfield, MO and

Dayton, OH.

The Army has always been an American institution that provides

opportunity. We remain so today. We continue to transform civilians from all walks of life into quality soldiers, leaders and heroes

imbued with a warrior ethos and the Army values.

We do not actively recruit prior offenders, and they are not part

of our targeted recruiting market; however, this does not mean that

we completely exclude those who have made mistakes and demonstrated good behavior from the opportunity to serve their country. The Army leadership is committed to providing a quality force

and will not accept the lowering of our standards. We thoroughly

screen each volunteer who wants to serve the Nation as a soldier.

Many never make it past the recruiter’s office.

The Army applies a rigorous waiver process which looks at the

whole person. We examine their performance at school, at work, in

their personal life and in their community before making a decision

to allow individuals to enlist in our Army with a conduct waiver.

That process requires review and action from 10 different leaders

for serious misconduct waivers from the local recruiter to an Army

General. The process is designed to identify those that have the potential to meet the high Army standards. We don’t accept soldiers

with waivers because we have to, but because we assess them as

qualified and deserving of an opportunity to serve. The number of

those with waivers remains relatively low, at about 18 percent, and

serious misconduct waivers only account for approximately 1 percent of all accessions.

And from those recruited with waivers, we are seeing positive

trends reported in a recent 3-year study comparing the performance of soldiers with conduct waivers to those without. We found

that soldiers who had enlisted with waivers had higher education

and aptitude, reenlisted at higher rates, advanced to sergeant faster, and had a higher ratio of valorous awards with only a marginally higher misconduct rate.

The willingness to serve in the Army during a period of persistent conflict highlights a unique aspect of quality that cannot be

measured with a high school diploma, test scores or waivers alone.

A special quality exists in the heart of a well-trained, well-equipped

and well-led soldier who serves in harm’s way for his country.

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I’m proud of the soldiers entering our Army. They are America’s

heroes. Young soldiers like Corporal Angelo Vaccaro, a two-time

Silver Star recipient, and Specialist Ross McGinnis, who recently

received the Medal of Honor, both entered the Army through our

waivers process. They, like all of our soldiers, became heroes the

day they enlisted.

Thank you for the opportunity to address the committee this

afternoon, and I look forward to your questions.

Mr. DAVIS. Thank you very much, General.

[The prepared statement of General Bostick follows:]

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Mr. DAVIS. Mr. Orrell.

STATEMENT OF BRENT ORRELL

Mr. ORRELL. Chairman Davis, Ranking Member Marchant, distinguished members of the subcommittee, I’m pleased to have the

opportunity to testify today on the Prisoner Reentry Initiative. I

wish to begin by thanking you, Mr. Chairman, for all of your leadership and securing the enactment of legislation authorizing the

Second Chance Act, culminating in the President’s signature on

April 9th.

Over the past 6 years, the Department of Labor under President

Bush’s leadership has sought to fundamentally change the way it

approaches prisoner reentry programming, which previously had

two main focuses. The first of those focuses was an extensive partnership with the U.S. Department of Justice to assist with funding

and programming around the Serious and Violent Offender Reentry

Initiative. The second was its implementation of a number of incentive programs, which is the Work Opportunity Tax Credit, which

provides employers with subsidies for hiring a variety of hard-toemploy populations, and the Federal Bonding Program, which provides businesses with insurance for high-risk employees.

During conversations with employers in 2002, it became clear

that the Work Opportunity Credit and Federal Bonding Program

by themselves were insufficient to help ex-offenders overcome employment barriers. The bond was not received as a benefit to employers as it tended to brand applicants as high risk without actually protecting employers against liability actions in the event an

ex-offender committed a crime against a customer or employee.

Since these conversations, the Department has redesigned its

prisoner reentry activities to make them more responsive to employer concerns about hiring ex-offenders, while at the same time

improving supports for ex-offenders when they return to their communities. Both elements are critical to successful reentry.

Rather than relying only on a combination of employer incentives

and training, the Department’s reentry approach today is community-based, mentor-supported and employment-focused. Our programs reflect the belief that work force development and employment placement services need to be done in concert with efforts to

connect returning offenders to community institutions. These

groups help returnees navigate the full range of reentry barriers

from psychological and emotional issues to housing, child care and

substance abuse treatment.

Our approach has embraced partnerships with both religious and

secular nonprofit organizations that serve as the front door of reentry to the community. The vision for the Prisoner Reentry Initiative built upon earlier successes of the Ready for Work demonstration program launched in 2003. This joint effort between the Department of Labor—the Department of Labor’s Employment and

Training Administration and Center for Faith-Based and Community Initiatives was designed to leverage the trust and leadership

of faith-based and community groups to help ex-offenders build better lives. It not only increased ex-offender access to stable employment, it also strengthened the participants’ social bonds in the

community, a factor that’s important both in persuading employers

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to consider ex-offenders for jobs and helping them navigate nonwork-related problems after they are employed.

Across the 11 Ready for Work sites, 60 percent of participants became employed, and recidivism rates for the program were 40 to

50 percent below the national average. About half of the Ready for

Work participants took part in mentoring or life coaching, and

those participants fared much better in terms of employment outcomes and avoiding recidivism than those who did not participate

in mentoring.

The Prisoner Reentry Initiative, key elements of which were recently authorized under the Second Chance Act, seeks to expand on

the Ready for Work model. It’s a collaborative model between the

Departments of Justice and Labor, with Justice providing grants to

State agencies for prerelease services. By June 30th of this year,

DOL will have provided $59 million in 30 3-year grants and 20 1-

year grants. In 2008, we plan to award new grants in 15 to 20 cities.

PRI Chicago is a good example of how this initiative can

strengthen the capacity of community and faith-based organizations to serve returning prisoners. The Safer Foundation is using

its grant to build the capacity of neighborhood-based churches to

serve released prisoners in some of the poorest communities in the

city. Safer trains case managers at each of its three faith-based

subgrantees. Mentoring of returning prisoners occurs through the

assistance of many community groups across the neighborhoods.

Ex-offenders are provided work force, development services, life

coaching, employment referrals and linkages to a wide variety of

social services programs, including drug and alcohol treatment and

housing assistance.

We’ve established a rigorous performance tracking system for our

grantees which allows us to determine the employment outcomes

and recidivism rates for participants. Sixty-three percent of the

PRI participants have been placed in jobs with an hourly wage of

$9.41, and the program has a 1-year postrelease recidivism rate of

only 15 percent, almost two-thirds below the Department of Justice

national benchmark.

In conclusion, Mr. Chairman, I think it’s vital that Congress and

the administration continue its partnership in improving outcomes

for ex-offenders. This is not just about the needs of returning offenders; reentry outcomes are critical for families, communities and

the Nation. If we are to avoid the very large and growing costs of

adjudication and incarceration as well as the staggering costs in

lost productivity and wasted lives, government at all levels needs

to examine how to provide effective transitions for ex-offenders. I

believe the policies developed by the administration over the past

7 years are an important step in that direction.

This concludes my prepared testimony, and I’m pleased to respond to your questions.

Mr. DAVIS. Thank you very much, Mr. Orrell.

[The prepared statement of Mr. Orrell follows:]

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Mr. DAVIS. And again, I want to thank all three of you for your

testimony.

Ms. Kichak, let me ask you, how long have you been associated

with personnel activity within the Federal Government?

Ms. KICHAK. I’ve been with OPM for 35 years, but for personnel

activity, I would say 8 years.

Mr. DAVIS. Have you ever come into contact with any individuals

who work for the Federal Government who are ex-offenders or that

you knew as an ex-offender?

Ms. KICHAK. I have never asked anyone that question in the

process of employing an individual, and I have never been asked

to determine whether that has mattered for any employee under

my management, so I am not aware of any working for me. But I

don’t think I would be.

Mr. DAVIS. The city of Boston, I guess, could be thought of as

being progressive relative to the question of letting individuals

know that just because they may have a conviction, that they’re not

barred from employment with the city. And I’ve been very pleased

that the mayor of the city of Chicago issued an executive order indicating that a felony conviction did not necessarily bar one from

seeking employment with the city, and that they could be evaluated like any other applicant. And, of course, that has given hope

to some individuals.

Does the Federal Government have anything on job applications

that would ask an individual of their status relative to criminal

conviction?

Ms. KICHAK. The Federal Government on the standard request

for information submitted through USAJOBS does not ask that

question. We do not have a governmentwide application form in

use anymore. I can’t assert that question is never asked at specific

agencies for specific applications. For example, Customs and Border Patrol, I don’t know what their application looks like.

Mr. DAVIS. So if an individual completed a job application, until

they reached a certain level where there was a background check

or something of that nature, whoever is doing the reviewing or

maybe even the initial interviewing may never know whether or

not the individual has any kind of criminal background?

Ms. KICHAK. Right. If they didn’t volunteer that information in

the drafting of their resume, the reviewer would not know.

Mr. DAVIS. General Bostick, I was very intrigued and pleased to

hear your testimony relative to individuals who have performed in

an outstanding way who did, in fact, receive waivers. And I guess

my question becomes, have you seen any—and you did cite some

instances and some statistics. But have you seen any underperformance of these individuals?

And I also appreciated the standards that the military uses, that

this is not something that’s done willy-nilly . I mean that if individuals come and apply, and it’s discovered that they have something

in their background that merits taking a hard look at or other

looks at; but my question becomes, have you noticed or has the

military found any underperformance or anything to suggest that

these individuals who were granted waivers did not perform as

well as individuals who did not find it necessary to get a waiver

to come into the service?

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General BOSTICK. Mr. Chairman, first let me say that we have

ongoing studies that are reviewing this very point. We have had

limited studies in the past, one in 2003 that looked at misconduct

of soldiers with felony waivers. And in that particular study, there

was no significant difference between those with waivers and those

without waivers. We then did another study of a larger cohort

group from 2003 to 2006. About 17,000 of that group needed waivers, conduct waivers, and another population of 250,000-plus that

did not need waivers. And in that group we found that reenlistment was a bit higher in those that needed waivers. Education and

aptitude was a bit higher, and higher valorous awards. Where they

were a bit underperforming against that population was in misconduct. Marginally higher in misconduct.

But I think in any group, whether with a waiver or without a

waiver, you’re going to find some level of challenge in any organization. And what we’re doing now is taking another hard look at this

with different analytical organizations to look at the downstream

effect in Operations Iraq and Afghanistan and throughout the

Army of the impact of those that have received waivers. And we

expect some of those studies to be coming out in the next fiscal

year.

Mr. DAVIS. Have you found any undue burden or hardship on the

military or great expense to go through making these assessments,

evaluations and determinations? And I guess my question is, is it

too costly to try and make this kind of determination as to whether

or not individuals are eligible to come into the service?

General BOSTICK. It’s difficult for me to answer from the recruiting commander perspective of the cost of these studies. I know the

Department of the Army is looking at that. I’m certain that it will

take some time, and it will take some cost, but we believe that’s

important.

We know that we have increased the number of waivers over the

last several years. We know that we have more GEDs today than

we did in past years. And we think it’s important to go out and

make sure that our Army is sound, that the soldiers that we’ve

brought in for any type of waivers or challenges in any other

area—in fact, a lot of the waivers are in the medical area. So we’re

looking at each of those areas to ensure that the Army is in good

shape and can serve the Nation well.

Mr. DAVIS. Thank you very much.

Mr. Orrell, let me just ask you, I’m a real fan of faith-based initiatives and the faith-based approach to trying to assist individuals

to a get a handle or a better handle on their being—although I am

a trained psychologist, and some of my associates when it comes

to behavior don’t necessarily buy into some of the faith-based activity. But there appears to be something that sometimes happens

that it’s difficult to determine scientifically what that might have

been. And these individuals come away from those experiences

really prepared to function at a different level.

When the Department evaluates faith-based initiatives in a generic sense and across the country, what have you found? I mean,

what is it——

Mr. ORRELL. I guess I’d respond by saying, first of all, I think

that the most important element in this project I’ve been talking

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about is the role that faith factor plays is probably in the motivation of volunteers that stepped forward from the community to

work with the returning offenders. The volunteers and the organizations are—operate under DOL restrictions with regard to the

mingling of religious and social services activities, and mentors are

supposed to be briefed on this as what you can and cannot do in

this relationship in terms of discussions around religious topics.

So that’s pretty well, I think, separated, but I do think it’s an

extremely important motivating factor for the organizations and individuals within those organizations who are stepping forward to

try to address this problem. And I think that’s true across the

country and all sorts of initiatives in which faith-based organizations are active. I think that it’s a very important motivating factor.

What happens in the lives of individuals happens in the lives of

individuals. I think it’s very difficult to quantify, to know what’s

happening in the lives of an individual ex-offender who’s taking

part in those—or somebody who’s going through, say, a faith-based

drug rehabilitation program. But it’s an extremely important factor

in terms of motivating them.

Mr. DAVIS. Well, thank you all very much, and I’ll yield to Mr.

Marchant.

Mr. MARCHANT. Thank you, Mr. Chairman.

General Bostick, are there other branches of the military or the

Department of Defense that use the same process to take soldiers

in and employees under waivers?

General BOSTICK. I can’t speak to the specifics of the other services, but they do have a waiver process that they consider at each

level, somewhat similar to what the Army does.

Mr. MARCHANT. So the Army is not the only one of the services

that’s involved in this?

General BOSTICK. Correct. But each service has the ability to decide based on their requirements at what level they will make the

determination on what waivers they will accept.

Mr. MARCHANT. So that in any given situation, there will be—

will there be marines that are operating under waivers? Will there

be members of the Navy or the other branches have the same approach to this.

General BOSTICK. I would say each service has a very rigorous

approach to how they make the decision on whether a soldier, sailor, airman, marine would come into the Army or their service.

Mr. MARCHANT. Or they just have a plain, if you are a felon, you

cannot receive a waiver program. Do they?

General BOSTICK. Some are very restrictive. And I would say

that there are very limited felony waivers in some of the services.

And some have more. I can’t say what their specific rules are. I

would rather not speak on their behalf. But I can say that they

have a very rigorous process. They look at the conduct waivers in

a very similar fashion that we do, and to a higher degree or to a

lesser degree, the service that you are talking about.

Mr. MARCHANT. But you are not the only service that’s involved

in this.

General BOSTICK. Correct.

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Mr. MARCHANT. Ms. Kichak, Texas has its share of incarcerated

individuals, as does California and, I am sure, Illinois. The Sunbelt

attracts a lot of young men and women looking for work and then

looking for lots of other stuff. We have every year, in the Dallas

area, a very aggressive—our police chief in Dallas is very aggressive at having job fairs for people that have served their sentences

and have been released. The disappointing thing is that very few

companies, and I know of no governmental agencies, that attend

those job fairs. Now, would this be something that each individual

regional area or each individual government entity would have to

make a decision on whether they would actually go.

There is the step of receiving an application. There is another

step that is taken many times in government, and that is to go to

a job fair and actually look for levels of employment.

Ms. KICHAK. We have learned, in order for a job fair to be effective, the agencies who have positions need to go and discuss the

specific positions they have available. So those decisions have to be

made on an agency-by-agency basis as to whether they have positions available for people who might be at that job fair.

Mr. MARCHANT. The job fair being only attended by people that

would generally need a waiver.

Ms. KICHAK. There are no waivers needed for Federal employment. There is no strict bar for an ex-offender. Ex-offenders are another segment of society that are welcome to apply and compete for

Federal employment. They don’t need a waiver. They go, they compete.

Very few selections are made at job fairs. That is where you

learn about the job. Then you submit your application. The application—or at least—the application that is generally filed through

USAJOBS, where all of our jobs are required to be posted, does not

ask a question as to whether the person is an ex-offender. The application then goes back to the agency, and the person competes

against other people who applied. And it is only when they are selected and then the final suitability for employment decision gets

made that it is likely to be found out whether or not they have a

record. And the record does not necessarily bar them from employment. It depends upon the nature of the job, with the exception of

the statutory bars, you know, that Congress has levied.

Mr. MARCHANT. Thank you, Mr. Davis.

Mr. DAVIS. Thank you very much, Mr. Marchant.

Ms. Norton.

Ms. NORTON. Thank you, Chairman.

And I want to thank all of you for your very helpful testimony.

Also, the first witness, I was in the other room, I heard her testimony as well, the first witness.

I want to especially thank you, General Bostick, for your service

to our country. And I want to thank the armed services of the

United States for the many, many young people who went into the

service sometimes on order of a judge. And to this day you will

hear veterans, the prevolunteer Army, talk about how the best rehabilitation they ever got was in the armed services in the United

States.

And I fully understand the requirements of the volunteer Army,

but having heard about this all my life, I cannot help but note it

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and am grateful to the armed services, which, after all, in many,

many of the important policies of our country has been way ahead

of the private and the public sector, integration of the armed services. Today, the record of the Armed Forces promoting people like

yourself is to be envied by the Civil Service, where we have just

had hearings on the SES, for example, and for that matter the private sector.

You indicated that there were not many people who had, quote,

serious misconduct. You mean felons?

General BOSTICK. We call it serious misconduct because within

that group we include more than just felonies. For example, in our

process that goes all the way up to a general officer, if you have

had two DUIs, for example, or two possessions of marijuana, those

are not felonies per se, but we put them in that category of seriousness.

Ms. NORTON. Two small possessions of marijuana?

General BOSTICK. Correct. And two arrests for marijuana. We

would ask——

Ms. NORTON. A kid who comes out of college and wants to join

the Armed Forces of the United States and use his college degree

and did what every other kid does now but got caught, he couldn’t

join the Armed Forces of the United States today? Maybe he could

get a waiver.

General BOSTICK. We are not saying that they could not join. In

terms of those that have used marijuana in the past, we look at

it as a medical condition. We look at—our doctors would look at

that person and see if they have any dependency on drugs or alcohol that would preclude their ability to serve as a soldier. If they

have been arrested——

Ms. NORTON. I understand. I just want to make sure that we are

not talking about—we are not talking about disqualifying every

other kid going to college or high school today.

Now, what percentage of those are ex-felons, people who have a

felony record?

General BOSTICK. Of those that we assess into the Army, it is

less than one-half of 1 percent that are convicted of a felony.

Ms. NORTON. What kinds of felony, examples of felonies that

waivers have been granted for in the Army, where you have, of

course, the largest number of men and women serving today?

General BOSTICK. If you look at the FBI data base, in the last

couple years there has been about a 14, 15 percent increase in

crime in the areas of burglary, robbery, larceny, drug use, those

sorts of crimes. And aggravated assault. And we see some of that

as we are recruiting America’s sons and daughters, and we’ve got

to make a decision on whether that offense is one that would preclude them from serving in the military.

So, for example, aggravated assault. I have seen a case where

two teenage girls, one that we are recruiting, get into a fight. Mom

calls the police, the police comes. Because she kicked her sister

with a shoe, it is a deadly weapon, aggravated assault, and she is

charged with a felony. Several years later she has demonstrated

good performance in school, in her community, and from her supervisors. And we would make the decision in a case like that, probably to bring her in.

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Ms. NORTON. That kind of individualized consideration is precisely what we would expect of the Federal Government and of any

private employers. So I understand it.

In your testimony, you cited 2004. Is that when the policy of

waivers grew or changed or became more active, from 2004 on?

General BOSTICK. I am sorry, I am not following the question.

Ms. NORTON. The volunteer Army was known for not, in fact, encouraging. You say, of course, they have always been allowed. Is it

not so that the number of waivers began to grow beginning in

2004?

General BOSTICK. I understand now.

Yes. The waivers have grown about 2 percent to 3 percent every

year since 2004.

Ms. NORTON. Why is that, sir?

General BOSTICK. For a number of reasons. First, I would say

that the felony convictions are still very low, less than one-half of

1 percent of all that we bring in. The other reasons for changes in

society, changes in our process.

Ms. NORTON. Weren’t those changes going on before 2004?

General BOSTICK. Some of them are recent. Some of the changes

in policy, for example.

Ms. NORTON. I am talking about changes in society. For example,

we have the greatest crime wave in the early 1990’s when crack

came on the scene, so that I am interested in 2004, why 2004 sees

an increase in waivers.

General BOSTICK. And, again, going back to the FBI data base

and the information we are able to review, this is in 2005 and

2006, it’s been about a 14 percent increase in burglary, robbery,

larceny, aggravated assault——

Ms. NORTON. So you are saying because of increase in crime, you

have an increase in waivers?

General BOSTICK. That’s part of it. Part of it is an increase in

crime overall. And the military is a subset of society; in many ways

we reflect society, our youngsters do. And if crime is at an increase,

then some of those we would look to bring in would——

Ms. NORTON. So we would, from your testimony, understand that

as crime goes up you are inclined to give more and more waivers

of that kind to reflect what you see going on in society; that this

is going to continue to increase if that is the reason.

General BOSTICK. I wouldn’t say that. The other part that has

changed is we have had a change in our process. We’ve automated

our process. So this 10-step process for conducting waivers used to

take 90 days, and this was just a short time ago. Certainly in 2004

this process would take 90 days, and we have streamlined that

process down to about 2 weeks.

So a recruiter’s most valuable resource is his time. And if he has

someone that comes in that needs a waiver, and, for example, he

comes in and says, I have lived in 10 States, and I have been in

trouble of 5 of them, that recruiter must go work with those 5

States in order to make sure what he is telling is accurate.

Now we have electronic background checks, we are Internetted,

we are connected through automation, we have e-mails, so the

whole process of getting someone through the waiver process is a

lot faster. So that recruiter is much more apt, if he knows that he

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has a valid case here that he knows all of the details on, on this

young man or woman, to submit that file for a waiver, where in

the past he would just say, I don’t have time to work with you, and

I have to go to another high school or college to look for another

recruit.

Ms. NORTON. But, General, particularly since, if anything, the

Army has developed a model process for waivers, I mean no criticism of the Army, but is it not the case, sir, that it has been harder

to recruit people to the volunteer Army in the last few years? And

that would make any military person think that they ought to look

at all of their policies, including the number of waivers granted in

the past, and perhaps grant more today, take a greater risk today

since there are fewer people just willy-nilly coming forward as they

were, I don’t know, say, 10 years ago before the Iraq war?

General BOSTICK. As I said in my opening statement, this is the

toughest period of time in the history of the all-volunteer force for

recruiting for a number of reasons. Some of it has to do with economy and the low unemployment rate. Some has to go with the ongoing conflict and persistent combat operations. Some has to do

with the youngsters and their background today. A lot has to do

with education across America and obesity. Less than 3 out of 10

of the 17 to 24-year-olds are qualified to join the Army.

So there are a number of issues that are out there, but there is

no question that it is a more challenging time to recruit. But there

is also no question that we are not going to lower our standards

in order to meet the needs of the Army.

Ms. NORTON. Of course, it is considered a lowering of standards,

and I would consider it a lowering of standards and a greater risk,

to take people you wouldn’t have taken before. And I am not criticizing you for that, but I do criticize you for saying you are doing

enough because you have to. I expect that is a boilerplate that the

Army comes forward.

But I think it important to note, though, for example, the National Guard has had to pay people like they were going to strike

it rich, and they have had some success in recruiting. What began

as a volunteer Army has become increasingly an Army that either

you become more and more mercenary, therefore going to those

who most need money, or—or should I say and/or—you look at

other policies.

The Army, the great thing about military campaign is people

come back, and they don’t say what we did right; they want to

know what we did wrong, or what can we do to improve it. It does

seem to me that there is no getting away from all the statistics we

are aware of are the difficulty of recruiting to a volunteer Army in

the middle of a controversial and tough war, that has something

substantially to do or at least significantly to do with looking at the

waiver process. What is interesting to note is you find that the

waiver process is so careful, you say that at least the study that

you referred to doesn’t see any particular difference in those who

receive the waiver and those who do not. That is important data.

The Army is known for studies and data. And I would ask you,

General Bostick, if you would submit that study to this committee

so that we may look at that study, because I think it would be important for the Federal Government to see. I think it would be imVerDate 11-MAY-2000 15:51 Apr 21, 2009 Jkt 000000 PO 00000 Frm 00054 Fmt 6633 Sfmt 6633 U:\DOCS\48239.TXT KATIE PsN: KATIE
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portant for private employers, Mr. Orrell, to be able to use that.

Given the rigor of your process, it might say that you have a rigorous enough process, you may get comparable results.

Now, Ms. Kichak, I understand that decentralization of hiring,

we’ve had some very important aspects to it. Have you ever done

a survey of any kind to see what the actual practice is of Federal

agencies who have any knowledge, since you have decentralized

this matter, along with thousands of others—have you any knowledge of what the actual process is, and do you know of any attempt

by the OPM to find out what the actual practice is?

Ms. KICHAK. The practice for hiring ex-felons?

Ms. NORTON. That is right.

Ms. KICHAK. No. We have not done any survey, and we do not

ask for that question in the hiring process.

Ms. NORTON. Well, of course, you do in some agencies. What are

you talking about? You know good and well that some agencies do,

but you seem not to know which agencies do and which agencies

don’t. We are just trying to find out.

Look, we can’t deal with policy unless we know what is happening. Now, we know good and well that some agencies for good and

sufficient reason ask that question, and better ask it, or I want to

know the reason why. So, we can even guess at what they would

be. But I am asking you about—and I know you don’t have that.

So all the disclaimers will be noted for the record. Do you have any

idea which agencies don’t ask that question? Do you have any idea

what jobs—for what jobs this question might be considered irrelevant?

Ms. KICHAK. We at OPM, in hiring HR specialists, claims examiners, and all the personnel we hire at OPM for our own use, do

not ask that question. The question as to whether anyone is a felon

is not part of the USAJOB application process for applications that

come in through USAJOBS. It would have to be asked when an application is made at the agency level.

Ms. NORTON. Do you believe it would be appropriate for OPM to

offer advice on this matter either by giving examples or giving case

examples from agencies that you learn have, in fact, hired ex-felons? Do you believe that would be an appropriate function of OPM?

Ms. KICHAK. I believe that, No. 1, we give advice on the suitability process. I heard the first witness that talked about someone

who was not found suitable because of a previous drug conviction.

And our regs specify that a rehabilitation must be considered when

reviewing previous drug convictions for jobs. So in that process we

already give advice.

Ms. NORTON. Is that on a case by case?

Ms. KICHAK. No. That is in our regulatory process, and it is

available to agencies governmentwide. It is not on a case-by-case

basis. Those decisions are made at——

Ms. NORTON. So you have—you have guidelines of some kind

that say——

Ms. KICHAK. Rehabilitation should be considered.

Ms. NORTON. Would you submit those guidelines to the committee?

Ms. KICHAK. Yes.

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Ms. NORTON. Could I ask you if you think it would be appropriate, given the rising number and—as the gentleman testified,

the rising number of people committing felonies, some of them with

vastly different—for vastly different crimes, do you think it would

be appropriate for you to find out what agencies are doing in the

post-9/11 period?

Ms. KICHAK. I think we could ask agencies if they ask questions

about offenders in their application process.

Ms. NORTON. I am going to have to ask you to do—Ms. Kichak,

I am a member of the Homeland Security Committee, and you

leave the impression that you leave everybody to his druthers. And,

of course, I can depend upon the judgment of most of the agencies

that come before my own committee, but after I leave those agencies, I don’t know what the others do. Could I ask you to submit

any materials you have on questions agencies ask—and to ask

agencies what questions they ask concerning this subject? Just to

find out. We are not here to criticize agencies. After all, nobody’s

told them. Congress hasn’t held any hearings on this matter. So we

are in the blind here. We have an idea, so we just want to find out

what agencies—if you went down the agencies—for example, I

know, because there are so many parks in the District of Columbia,

that agencies hire, quote, temporary—the National Park Service

hires temporary workers during peak periods. Now, there are parks

and there are parks. But I wonder if they ask that question.

Do you know about arrests? What does the Federal Government

say on arrests?

Ms. KICHAK. The Federal Government does not—again, as we’ve

said, it is agency-specific.

Ms. NORTON. So could you also ask that question of agencies

with respect to arrests? Again, and the last question would only

tell you where there is more to ask. You know, most people who

put an arrest down would want to explain it.

I was arrested in the city movement. I had to go before the bar.

You can bet your bottom dollar I wrote down all I could about that

arrest. I was even arrested when I was in law school, because they

rounded up everybody when the head of one of our—this is in New

Haven—one of our groups in the city had difficulties. So they

brought all of us in. Law school saw to it that the couple of us who

were brought in, because we were involved in the movement, that

we—and I think others ultimately also—were released. We were

questioned. But, hey, and while I think the arrest probably didn’t

take place, I think I revealed it on my bar, however.

So I understand that, you know, agencies ought to look behind

anybody who has said he has had any encounter with the law.

What would bother me, though, in this period, particularly given

the important work the Federal Government itself is doing, you

heard the testimony of the Department of Labor, if we just continued, in light of what the general said, to operate in an atmosphere

of ignorance. And that is why I am asking you to do that. See, I

am not going to ask you whether or not, for example—and I gave

as an example whether—a temporary worker at the National Park

Service. You know, I don’t know enough about it. I really don’t.

Also, there may be lots and lots of people who want these jobs. I

have no idea. But it is because I have no idea that I think it would

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be foolhardy of us to simply try to legislate in the blind and tell

the Federal agencies what to do. I do know that post-9/11, I don’t

fool with without knowing what I am doing.

Ms. KICHAK. We will survey the agencies and ask them that

question.

Ms. NORTON. I would very much appreciate that.

Thank you very much, Mr. Chairman.

Mr. DAVIS. Let me thank all three of you for your participation

and for your answers. And we will go to our next panel.

And while we are changing panels, let me just introduce the

third panel of witnesses.

Mr. Paul Keefe is a staff attorney with the Community Service

Society. He trains individuals with criminal histories and organizations that assist ex-offenders with employment discrimination.

And Mr. Mark Earley became president of Prison Fellowship on

February 1, 2002. Prison Fellowship works with thousands of

churches and volunteers across the United States and prepares exoffenders to reenter their communities.

And our third witness is Mr. William R. Calhoun, Jr. He is corporate executive vice president for Clark Construction Co., and in

this capacity Mr. Calhoun is responsible for Clark Construction’s

acquisition work and for overseeing the company’s strategic focus

on major projects. Gentlemen, let me thank you very much. And if

you could stand and be sworn in. If you would raise your right

hands.

[Witnesses sworn.]

Mr. DAVIS. The witness—the record will show that the witnesses

answered in the affirmative. And we will begin with you, Mr.

Keefe. Of course, your full statement is in the record. You have 5

minutes in which to summarize. The yellow light indicates you

have a minute left, and the red light indicates that the time is up.

We want to thank all three of you for being here with us, and

we will begin with you, Mr. Keefe.

STATEMENTS OF PAUL KEEFE, STAFF ATTORNEY, COMMUNITY SERVICE SOCIETY; MARK EARLEY, PRESIDENT, PRISON

FELLOWSHIP MINISTRIES; AND WILLIAM R. CALHOUN, JR.,

EXECUTIVE VICE PRESIDENT, CLARK CONSTRUCTION

GROUP, LLC

STATEMENT OF PAUL KEEFE

Mr. KEEFE. Good afternoon, Chairman Davis and committee

members. Thank you very much for the opportunity to appear before you today.

As you mentioned, I am a staff attorney at Community Service

Society, a 160-year-old antipoverty organization in New York City.

On a daily basis, I help people who are encounter employment and

licensure discrimination because of their criminal record, even after

years of employment, education, sobriety, civic engagement, and

lack of involvement with the criminal justice system. I thank you

on their behalf for examining an issue vital to their individual selffulfillment, our neighborhood safety and stability, and the fairness

of our society as a whole.

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My full remarks discuss three federally regulated industries that

provide jobs accessible to people of limited education and work history, but unavailable to people with criminal records. Many of

these were discussed by Ms. Meyers-Peeples. I will also discuss

New York State laws that require individual determinations and

sometimes a hearing before someone can be denied a job or license

because of a criminal record.

These remarks distill to two points: First, giving Federal agencies discretion to deny employment based upon any criminal conviction or requiring denials for certain misdemeanors disproportionately impacts poor and nonwhite individuals.

Second, the Federal system lacks a uniform accessible process for

individuals to demonstrate their rehabilitation and fitness for a job

when they encounter a statutory barrier.

As to my first point, some blanket bars are rationally related to

the employment sought. Permissive bars, like those in the health

care field and those based upon misdemeanors, however, are not.

Overly aggressive policing and stops-and-frisks in New York City,

for example, among other localities, have resulted in increased convictions for low-level misdemeanors.

While there is no excuse for breaking the law, we know that police encounters happen more often in poor and nonwhite neighborhoods. That is, in fact, the reason why blanket policies against hiring people with criminal records violate Title VII. Certain protected

classes are stopped, charged, and convicted at a rate disproportional to their representation in the population. It is not fair to perpetuate discriminatory practices by adding barriers.

As to my second point, again, the Federal system lacks a uniform

and easy way to access this process by which individuals can demonstrate their rehabilitation and fitness for a particular job. Such

policies ignore the reality of the reentry population today, many of

whom can demonstrate significant personal accomplishment,

growth, and stability.

New York law, in contrast, requires employers and licensing

agencies to make individualized determinations before a person can

be legally denied, usually following statutory factors: First is the

State’s expressed public policy in favor of employing the formerly

incarcerated; the job’s necessary duties and responsibilities, and

the convictions bearing on the applicant’s fitness and ability to fulfill them; how long ago the offense occurred, how serious it was,

and the applicant’s age at the time; evidence from the applicant of

rehabilitation and good conduct. The employer of the agency is allowed to consider their interests in protecting people and property.

And the employing agency must also consider a certificate of relief

from disabilities or certificate of good conduct, which are creatures

of New York State law that create a presumption of rehabilitation

and remove statutory bars to employment.

As a result, I urge this committee to push for a top-down executive review of conviction barriers to Federal employment and determine whether they actually increase public safety, are based on

real data on recidivism, and do not negatively impact the employment of nonwhite persons. The review should also consider ways in

which to routinely consider individuals’ rehabilitation, ensure fair

employment decisions, and incorporate State mechanisms whereby

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people demonstrate rehabilitation, such like the certificates I mentioned earlier.

The underlying concern for all laws and regulations hindering

the employment of people with criminal records is the risk of recidivism and the resulting damage to persons and property. That

is, given someone’s record, we should have known that they would

recidivate working at a job related to their record. While there is

certainly room for limitations based upon rational public safety justification, when individuals are unable to find a job and recidivate,

we can similarly say we should have known. Thank you.

Mr. DAVIS. Thank you very much.

[The prepared statement of Mr. Keefe follows:]

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Mr. DAVIS. And we will go to Mr. Earley.

STATEMENT OF MARK EARLEY

Mr. EARLEY. Mr. Chairman, Ranking Member Marchant, distinguished members of the committee, we thank you for paying attention to this issue, and thank you all for your leadership on the Second Chance Act.

If I could for just a moment, I think it is important to recognize

the environment that brings us all here. Chairman Davis, you mentioned this. The United States not only has the highest rate per

capita of incarceration, but we have more people in prison today

than any other Nation in the world. We have 2.3 million behind

bars. China only has 1.5 million. The population has grown 600

percent in the last 25 years. We have 700,000 almost coming out

of prison every year. And the really bad news for us as governmental agencies is that 50 percent of those individuals are back in

prison within 3 years.

So the issue of jobs, ability to get a job is really critical, because

so many of the studies have shown that getting a job postdischarge

from prison is one of the really critical factors in being able to stay

out of prison.

I come at this maybe somewhat differently than others. I came

from being involved in the State government for 15 year during a

time when all of the States and the Federal Government were getting tough on crime. And all of those things we did to get people

off the streets, we had a bit of an imbalanced approach, I think.

We were very successful in getting them off the street; but what

we weren’t paying attention to is what could we do when they were

in prison to get them ready to come back out on the street. And

that is really the key public safety issue today.

The key public safety issue is not how do we get more people off

the street, but how do we get those who are in prison and get them

ready to come back on the street, because they are all going to be

our neighbors. And in this issue of job barriers, barriers to employment is critical, and that is the context in which we come here

today.

The importance of a job, I think, is common sense to everyone.

It gives a financial base, it gives a stable base, and it gives structure. For former prisoners these things are acutely necessary, even

more so than they are for someone who has never been in prison.

Inmates coming out of prison have no means to support themselves

unless they can get a job. Most have unstable family environments.

They are going to have transient housing environments. And the

job is often that first rung on the ladder that enables them to be

successful.

I categorize the barriers into three categories. One is personal,

the other a prison-generated, and the third are legal and governmental, which we’re really to talk about here today. But I don’t

think we can forget the other two.

The personal barriers are that for many, many people in prison

today, they suffer from educational accomplishment, no work environment, and very little job training. So they are at a disadvantage

day one when they walk out of prison.

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Second, they have a prison barrier, and that is if you are a convicted felon, it is very difficult to get a job anywhere, I don’t care

who asks the question when. Sooner or later, you are going to be

climbing a pretty steep staircase.

The third are legal and governmental barriers, and they are

probably the easiest to do something about, which is why I think

it is so important that you are addressing them. There are direct

and indirect legal and governmental barriers. On the direct ones,

they take the form of basically disqualifying a felon out of the gate.

For example, in most States today, of all the occupations that are

licensed, from locksmith to barber, you can’t have a felony conviction and get that license and get that job. It is interesting, for

many, many years barber schools were one of the great trade

schools in prisons, and yet today almost every State does not allow

anyone to be a barber or a cosmetologist with a felony conviction.

You all probably know that the Court Security Act that was

passed last year asked the Justice Department to look at all of the

barriers in the Federal Government in all 50 States to employment

such as these. That has yet to be done. That would be a great first

step to move forward, because once these barriers are identified,

then you can ask what is a really important question, and that is,

do they have any substantive and direct relationship to the job in

question?

I serve on the ABA Committee for Effective and Criminal Sanctions, and what we have said there is that any prohibition ought

to have a direct and substantive relationship.

Finally, I just want to say that indirect barriers, you cannot rent

a motel room today, you cannot rent almost anything without a job,

without a personal ID, either a DMV or a State ID. If the Federal

Bureau of Prisons would require any inmate who is discharged to

be given an ID by the Federal Bureau of Prisons, that would be a

huge step.

Finally, Mr. Chairman, I would say that after all these barriers

are removed, it’s kind of like you can lead a horse to water, but

you can’t make them drink. We have found in all of our work that

unless there is someone who can walk a former inmate through all

of these barriers and into the opportunities, you will have built

something, but nobody can get to it, which is why we feel so strongly about mentors and why it is so important that both on the Federal and State sector there be continuing partnerships with nonprofits who have their finger on the pulse of the community for volunteers who are willing to provide that mentoring.

Thank you, Mr. Chairman.

Mr. DAVIS. Thank you very much.

[The prepared statement of Mr. Earley follows:]

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Mr. DAVIS. And we will go to Mr. Calhoun.

STATEMENT OF WILLIAM R. CALHOUN, JR.

Mr. CALHOUN. Thank you, Mr. Chairman, and thank you, Ranking Member Marchant, for inviting us to be here today. My name

is Bill Calhoun, I am executive vice president for Clark Construction Group, locatedor headquartered in nearby Bethesda, MD.

Founded in 1906, our construction group LLC today is one of the

Nation’s most experienced and respected providers of construction

services with over $2 billion of annual revenue and major projects

throughout the United States. In 2007, we ranked 13th in the

United States based on Engineering News Record Top 400 list.

We perform a full range of construction services throughout the

United States, from small interior renovations to some of the most

visible architectural landmarks in the country, such as the Washington Nationals’ ballpark, FedEx Field, the D.C. Convention Center locally, to the McCormack Place Convention Center in Chicago,

Los Angeles County University of Southern California Hospital in

Los Angeles, and Brooke Army Medical Center in San Antonio, TX.

The foundation of all of our construction work is a solid relationship with both public and private clients who have the confidence

to rely time and again on our experience, our financial strength,

and our in-house expertise to make their vision a reality and to the

commitments we make to the communities within which we work.

We approach each project with a cooperative mindset, working

with clients, architects, owners, and the community to the common

goal; that is, successful project delivery. Our diverse construction

portfolio and specialized divisions and subsidiaries ensure that

each project is matched with the appropriate resources and expertise. Through technical school, preconstruction know-how, and selfperformance capability, we anticipate project challenges, we develop solutions that meet clients’ objectives, and ultimately deliver

award-winning projects. In this way, our work today continues to

meet the stringent standard of quality, safety, integrity that have

been the company’s core values since their founding in 1906.

In the Washington, DC, area, Clark self-performs concrete and

foundations work. That means we hire direct hourly labor to perform the work. In addition, Clark’s subsidiary, Shirley Contracting,

self-performs highway and bridge work in the Washington, DC,

metropolitan area. Other work disciplines for the most part are

subcontracted.

This subcommittee requested that Clark address the issue of our

experience hiring ex-offenders as part of our work force. As I just

mentioned, we set and maintain stringent standards for quality,

safety, and integrity. These apply to our entire work force. As a result, ex-offenders do not get a pass for poor behavior or poor work.

They must meet the same high standards for doing the job as every

other employee in our company.

Having said that, I would like to use the Shirley Contracting Co.

as an example of why and how we began employing ex-offenders

and how that process has evolved into a successful program over

the past 7 or 8 years.

The highway and bridge division of Shirley encompasses the

roadways and bridges we travel on in the Washington metropolitan

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area, but nowhere more so than in Fairfax County, VA, home of

Shirley Contracting. From a simple turn lane on the Fairfax County Parkway, to the more complex Springfield interchanges, Shirley

Contracting has been a key player in helping improve Virginia’s

roads and bridges. Shirley Contracting maintains a field labor force

that varies from 300 to 700 depending upon its workload.

Fairfax County is a very competitive labor market, especially for

unskilled, physically demanding work such as road and highway

construction. We compete for these unskilled jobs against companies such as McDonald’s, Wal-Mart, Costco, jobs at the mall, other

unskilled employers. While we pay more, our work is physically demanding, typically outside in the heat and cold. Today is a great

reminder of what it takes to be out in the heat. In a very competitive job market with low employment, maintaining a full work force

complement can be difficult. It is these set of challenges such as

this challenge that initially led us to hire or look at ex-offenders

as another potential labor source.

When we first started working with a ex-offenders, I cannot say

the program was a roaring success. Just 1 out of every 10 ex-offenders stayed more than 60 days. You should note that we do not

just hire someone and say, go to work. Applicants must complete

an application, pass a fitness for duty and a drug test, and provide

proof of eligibility to work. We provide safety training, job training,

orientation, safety equipment, work equipment, supervision, and

oversight. We also provide health insurance, dental insurance, life

insurance, 401(k), additional training, and opportunities for promotion. The first 30 to 60 days involve a substantial amount of

time and money in our part in each of our employees. Beyond the

poor retention initially, we were also using a substantial amount

of our HR personnel time to run the ex-offenders program.

However, we did not give up after our initial poor results. Our

HR staff and highway and bridge supervisors sought to understand

why the retention level was so poor. We learned a few things about

the ex-offender employees. Sometimes it was as simple as giving

them an alarm clock to ensure they got up in the morning. Sometimes it was more complicated. For many, if not most, they no

longer had a valid driver’s license; a vehicle to drive to work was

even a greater challenge. This simple ability of getting transportation to the job site in a manner that did not violate parole presented a challenge for many.

Additional problems we discovered were many of the ex-offenders

had their first paycheck garnished for court costs, fines, back child

support, and other liens. As a result, they may have earned a good

wage, but ended up with only $15 or $20 after taxes and garnishment. Working hard for 2 weeks for $15 or $20 was not motivating

to these ex-offenders.

Yet, as we began to understand some of the challenges, we started to work with the ex-offenders and the courts to come up with

the solutions to these and other challenges so they could continue

to meet their legal obligations and also have enough money to live.

Much of our success can also be credited to several outstanding

programs, such as VASAVOR, Skill Source, and OAR. Each of

these programs have done a great job referring qualified applicants

to us who are willing and able to work hard and follow the rules

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that all of the Shirley and Clark employees must abide by. They

have worked with the ex-offenders to come up with ride sharing,

and even provided vehicles to get to job sites. VASAVOR has even

started provided bonding for some ex-offenders, a real benefit from

our perspective. In addition, we work with the Alexandria Seaport

Foundation, which is a group that works with at-risk youth.

In Virginia, all prisoners to be paroled or released back to Fairfax County must go back to the Fairfax County Jail within 45 days

of their release. During these 45 days, they are assessed and determined if they are VASAVOR qualified. If so, they are assigned a

number of services, including a caseworker that determines their

skills. VASAVOR then may contact us regarding potential applicants. In recent years we have even gone into the Fairfax County

Jail to hold a job fair with VASAVOR-qualified applicants.

As a result of these programs and our becoming more skilled at

working with the offenders, the ex-offenders, our retention rate has

improved from 1 in 10 from when we first started to 6 in 10 today.

This 6 in 10 mirrors the general number of our employment at

large. We still have to monitor which job sites ex-offenders are

working at. We need to make sure, as an example, that sex offenders are not working on road projects near schools. These are liability issues that you would not be concerned with, yet it becomes

with the territory of being a responsible employer and a good citizen.

As with any construction work force, the total number of ex-offenders rises and falls with the workload. Currently we have about

35 ex-offenders employed in our highway and bridge division. I

should note, they have been employed for more than 1 year. This

is not a constant number. This summer we expect to add more exoffenders as our highway and bridge division work picks up in the

coming months. We expect it to be in the 6 to 10 percent or 7 to

10 percent range.

Today we have a number of ex-offenders that have been with our

companies for 3 or more years. Some have moved into skilled positions. At least one is a supervisor. At Clark we believe that all of

our employees can and do contribute. In a few cases we have

placed an ex-offender on leave of absence and held that job open

for the person for when they returned to work because the violations, the parole violations, may have been unrelated to the work.

We have learned to work with our ex-offender employees just as

we would work with any of our employees. Our employees have

good jobs, they pay taxes, they work to vest in the company’s retirement system and vest in their future.

As I said at the beginning, all of our employees work today to

meet the stringent standards of safety, quality, and integrity, the

company’s core values.

Thank you for the opportunity to tell you what we at Clark and

Shirley have been doing. I will be happy to answer any questions

that you may have.

Mr. DAVIS. Thank you very much.

[The prepared statement of Mr. Calhoun follows:]

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Mr. DAVIS. And I will go directly to Mr. Marchant.

Mr. MARCHANT. Thank you, Mr. Chairman.

Mr. Earley, do you find that the general public’s attitudes about

ex-offenders prevent them from giving the offenders, the ex-offenders, a fair chance to succeed in the workplace?

Mr. EARLEY. Well, I think there is some bias in that regard, and

I think there always will be a bit. But I have seen a radical change

over the last 10 years in particular. I think the reason is, once you

get up to a level, as we are today, where 1 out of every 32 adults

are either behind bars or on probation or parole, the idea of having

been incarcerated is not something that is foreign to everybody

anymore. So almost everybody today literally has had either a

member of their family or a friend or someone they know who has

been behind bars, and they know those individuals, the vast majority of them, have some redemptive possibilities, both in the workplace.

In addition to that, a Zogby poll was done in 2006 that showed

that 76 percent of voters in America thought that something other

than a punish model in prison was appropriate, i.e., rehabilitation;

and 80 percent thought that rehabilitation ought to continue

postprison. So I think those are positive signs in terms of what we

are talking about today.

I do think that for many employers in the private sector, the

issue of liability is a very constraining issue, and so they tend to

take a super cautious position even when the crime doesn’t have

necessarily a direct or substantial relationship to the job.

Mr. MARCHANT. And when you are talking to ex-offenders, when

you are talking to prisoners about their prospects, has the general

attitude of the prison population improved with their prospects of

getting a job on the outside? Are they aware yet that there are jobs

available?

Mr. EARLEY. I think most of the prisoners in prison coming out

feel like they have a very difficult, steep hill to climb to get employment. Even those who have training, even those who are going to

come out with some things like IDs, they know there’s going to be

difficulties.

I will give you two quick examples. I got a call this week for

someone who has been out of prison for 6 years now. They got their

college degree, they were actually a Colson Scholar at Wheaton

University. They got their degree in counseling. They were employed in a nearby State in an eating disorders clinic giving counseling. They disclosed their felony conviction up front, they were

hired, and 4 months later were told that the company has a blanket prohibition against hiring any felons who are counselors or

they would lose their licensing from the State. So it is those sorts

of things that make it very difficult.

Construction jobs are one of the best fields around. So we spend

a lot of time trying to interface with companies that are very forward-looking, I think like Clark, in trying to push employees in

that direction. But not every company is as enlightened in their approach as Clark Construction Co. is.

Mr. MARCHANT. So the chances of recidivism taking place in an

employee that finds their place in a company like his, the recidivism rate will go way down?

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Mr. EARLEY. Absolutely. Absolutely.

Mr. MARCHANT. And is most of your work in State prisons, or is

it Federal?

Mr. EARLEY. State and Federal. The majority would be in State

prisons just because there is more of them.

Mr. MARCHANT. And I suppose the Federal, there are employees

that are not going to be near their place where they are going to

go back to work.

Mr. EARLEY. As with a lot of State prisons, most people who get

released from prison, whether it is the Federal or State prison,

they are not getting released to somewhere near the prison. They

are coming back from where they were sentenced. And there has

been a deliberate policy, another negative factor over the last 15

to 20 years, to incarcerate people away from where they live. So

that means they are coming back to communities from which they

have had very little contact with, even in terms of visitors, in many

cases their families, because they couldn’t get to them. So, again,

that makes it more difficult.

Mr. MARCHANT. And are you finding that the job programs inside

the prisons are relevant to their possibility of employment on the

outside?

Mr. EARLEY. I would say it is very spotty. I served in the Legislature of Virginia for 10 years. Correctional budgets that have to do

with job training and education are the first to be cut; they are the

last to be restored. So it really depends on what prison you are. If

you have a very entrepreneurial warden, even if there is not a lot

of money available from the State, he makes a way or she makes

a way. But I would say, generally speaking, rehabilitation efforts

including any job efforts are very, very spotty across the U.S. prison system today.

Mr. MARCHANT. Do you find that most groups that come into

prisons are coming in on a spiritual—trying to make some kind of

a spiritual impact in lieu of a practical job training? Would a prison

allow a ministry to come in and focus primarily on job training instead of the spiritual aspect?

Mr. EARLEY. I would say yes. Part of the problem historically,

and it is still an evolving issue, is for many prison systems they

want to own everything they do. The idea of partnering with a nonprofit, be it faith-based or nonfaith-based, in a very integral way

inside of the prison, even if it is very close to pre-release, is a relatively new thing. And when a prison system administrator is told

your first priority is security, they are not necessarily all that eager

to open up the doors to let volunteers come in, whether it is life

transformation on a spiritual level, a mental level, an intellectual

level, or job training.

But that is changing, too, because all of the States, as well as

the Bureau of Prisons, everybody is choking on this financial drain

of the policies we have adopted over the last 20 years and the high

recidivism rates. So they are looking for a way to accomplish this

without spending more money, and the nonprofit community is

stepping forward. And, quite frankly, from our standpoint, to the

extent there is a line at the door of people willing to help inmates,

many of them are coming from the faith community because there

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is something in their DNA that is compelling them to reach out

and love people that other people don’t want to love.

Mr. MARCHANT. And are you finding that the actual job training,

I guess the actual job training that is taking place, does it relate

to the actual jobs that they can get when they walk out the door?

Mr. EARLEY. Just to give you a ballpark, I would say maybe 50

percent of the time.

Mr. MARCHANT. Thank you very much.

Mr. DAVIS. Thank you very much, Mr. Marchant.

Let me ask Mr. Keefe, are you familiar with Federal Government

agencies that routinely deny ex-offenders work opportunities?

Mr. KEEFE. Some of them I am personally. The main one would

be people who have trouble getting jobs at airports. As I mentioned

in my testimony, I work with a State-sponsored job development

organization that provides one-stop services to people, many who

are exiting incarceration, and they put up on their boards job postings for all these places. And they say—they write on the job postings for the airports, if you have a record, don’t apply. And, of

course, they shouldn’t be doing that, but that is—based upon their

experience, no one with a record gets hired at the airport because

of the security clearances.

Mr. DAVIS. You were here when we heard testimony from the Office of Personnel Management. Are there any partnerships that

perhaps you can think of or any recommendations or suggestions

that you might have for them relative to how they may view this

issue and this problem?

Mr. KEEFE. I have a few. First of all, I think that when Federal

policies reach down to the misdemeanor level and start barring

people at that level, nationwide you end up catching lot of people

that are sort of casually involved with the criminal justice system.

And as I said before, there is no excuse for doing anything wrong,

but I have sat in drug court with a client for 3 hours, and I hear

four or five people get a misdemeanor drug conviction, and then for

some of these agencies that pretty much shuts the door for them.

So when you go—I think we can all agree that felony convictions

involve much more serious activity. When you have these policies

that affect things on the misdemeanor level, I think you end up

catching a lot of people that, given the opportunity to have a steady

job and show their rehabilitation, would not be involved with the

criminal justice system anymore.

I also think that a review of the policies that the Federal Government has to make sure that they are connected to real data on recidivism will make sense to make sure that the bars that do exist

are rational from a public safety perspective.

Mr. DAVIS. How effective, I guess I would say, would you say

that the work being done in New York relative to looking at the

whole issue of discrimination—would you say that work is progressing that would protect, I guess, an individual’s right to employment or an opportunity for employment?

Mr. KEEFE. Our biggest problem in New York is lack of education on the behalf of employers about what the law requires, and

we do have a lot of work to do about that. My colleague here mentioned that employers are often concerned about negligent hiring,

and the city bar has just come out with a report that says if you

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follow article 23(a), which is the part of the corrections law that

contains the protections that I’ve described, that you should be immune from negligent hiring liability. And I think that is more education we need to do on that perspective.

As a lawyer it gives me something to hang my hat on when I go

into court for someone who has been illegally denied a job, and I

think that is a great boon for us. But there aren’t really—more

could be done as far as making processes accessible to people without a lawyer to come and enjoy the rehabilitation.

So I think a combination of creating those processes and also

doing education amongst employers and agencies about what the

law actually requires and how to properly evaluate evidence of rehabilitation still needs to be done.

Mr. DAVIS. Thank you very much.

Mark, I’m struck by the fact that much of the leadership coming

out of Prison Fellowship, individuals have also had legislative and

governmental experience. I think of yourself, I think of people like

Pat Nolan and others. How helpful has that been in terms of helping promote the effectiveness of Prison Fellowship in terms of getting people to listen to you?

Mr. EARLEY. Well, I think it has been helpful, particularly if you

look at Pat Nolan, who’s also here with me today, who is president

of Justice Fellowship at Prison Fellowship. You know, both of us

when we served, Pat in the California Legislature and then I in the

Virginia Legislature, in the attorney general’s office, I mean, we

were part of the tough-on-crime movement. And, you know, when

I say today that, OK, we were successful in getting people off the

street, but we had an imbalanced approach, it’s not working now

the way we constructed it, we need to go back and take a look at

it; that the real public safety issue today is what are we going to

do with people getting out of prison, not how many more people we

can put in. I do think that helps set a different tone. And we have

found that today in the United States, whether it’s in the State legislature or here on Capitol Hill, people on both sides of the aisle

from every political spectrum understand that the real issue today

we need to focus on is how do we as legislatures and policymakers—help these individuals that are in prison, who the vast

majority of them are coming out, get ready to return and return

successfully, otherwise we’re going to have a significant crime problem on the back end.

And so I think it has been helpful. And I think we’ve seen some

significant movement. I do think there’s still some reluctance on

many people in office to go back and rethink some of these things

or bring a more balanced approach, but I think it’s changing.

Mr. DAVIS. And you would agree that unless we find—no matter

how difficult it appears to be, that unless we do a better job of finding employment opportunities for these individuals, that—I mean,

our crime problem and criminal justice problem and cost is just

going to be beyond anything that we can almost imagine.

Mr. EARLEY. No question about it. I agree with you completely.

I was in California last week. California’s an example of a State

that’s being swallowed up by its correctional budget and the recidivism rate that’s going on in the prisons there. In all of the States

in the United States, the average between 1985 and today, the inVerDate 11-MAY-2000 15:51 Apr 21, 2009 Jkt 000000 PO 00000 Frm 00084 Fmt 6633 Sfmt 6633 U:\DOCS\48239.TXT KATIE PsN: KATIE
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crease in higher education spending was 25 percent; the increase

in correctional spending has been 125 percent. And a great deal of

it has been refueled by recidivism, and a great deal of that has

been fueled by people who have not been given an opportunity to

change their lives and to get meaningful employment when they

come out.

Mr. DAVIS. Mr. Calhoun, I am struck by the fact that Clark, one

of the largest construction companies in the country, and, from everything that I hear, one of the best construction companies——

Mr. CALHOUN. Thank you.

Mr. DAVIS [continuing]. In the country, is able to have a program

where you hire individuals who’ve obviously had problems, yet you

maintain your standards. You’re able to bid successfully on projects

and continue to get work. How did this happen? I mean, how——

Mr. CALHOUN. Thank you for your comments, your favorable

comments.

I think if you think back to the year—6 or 7 years ago when

Shirley Contracting, in my example, first started, it was a time

where there was high employment, there was a lot of work, there

was a need for manpower in the construction business. We didn’t

know where we were going to get all the manpower to execute all

the work that was out there; that if we had the manpower, we

could go build. So they were looking all over for viable sources of

manpower to hire and train. And that’s how the initial—start hiring of ex-offenders.

I think one of the organizations—it may have been SkillSource

or OAR reached out to us, I think was probably the first contact.

And it begun a long relationship that we found has been very helpful. And as I said in the testimony that we find now statistically

at least with the Shirley Contracting Group that 6 of 10 of the exoffenders generally stay with us longer than 60 days, which mirrors the general work force that we have.

So the marriage with the nonprofit or governmental agencies

that help do some screening and placement, they’ve come into our

organization enough to understand what kind of individuals and

skill sets and trades that we’re looking for so that their ability to

place qualified applicants that have a higher likelihood of staying

with us and that are trainable has increased. And then our ability

and knowledge of how to work with each of these organizations has

improved as well.

I can’t say enough how these organizations help with the identification, training, employment, and then during that first couple of

months while the individual comes out of incarceration and overcomes the basic life hurdles of transportation, driver’s license, getting to work, getting up and those sorts of things, the agencies help

nurture through that time where we can actually train people and

create long-term good employees.

Mr. DAVIS. As you bid on projects and look at opportunities, have

you ever had any governmental agencies to express any concerns

that you may be hiring individuals who have been convicted, and

that some of these may be funded—some of these projects may be

funded with public money or government money, or it’s for a government agency?

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Mr. CALHOUN. Sir, if I understand your question, sir, it’s has the

potential contracting—government contracting agency expressed a

desire that we should or should not be hiring ex-offenders?

Mr. DAVIS. Yeah.

Mr. CALHOUN. Only in the sense of classified work where there’s

different levels of regulation with regard to the background and

background checks for the Confidential, Secret, Top Secret type of

work. But other than that, I’m not aware of any governmental

agencies having expressed any desire at all that we should or

should not do it. I think there are—it’s not infrequent when we obtain or are awarded a job in a particular municipality that agencies

such as those that deal with ex-offenders would contact us and ask

us to open our doors or consider hiring ex-offenders, much like

other groups that represent other labor sources. And we typically

do open our doors to—in any local that we’ve worked or anyone

who has an interest in providing labor—to learn what that market

has to offer and how we can help and try to match our needs with

their skill sets.

Mr. DAVIS. Well, gentlemen, let me thank all of you. I think

there is a realization that there are no simple solutions to very

complex problems, and that this is one of the most perplexing problems and issues that face our country, quite frankly, today. And I’m

of the opinion that every time we get a little progress—I come from

the school of thought that says if you want to go south, the first

thing that you do is turn and face that direction. And every time

you take a step, you get a little bit closer to Richmond. But if you

you’re headed up toward Baltimore, chances are you’re not going

to get down in the Shenandoah Valley. You just won’t get there.

So every bit of this is a little bit of movement, a little bit of

change, a little bit of possibility, a little bit of hope for those millions of people, quite frankly, when you consider the individuals on

probation, the individuals on parole, the individuals who came out

last year, the individuals who came out the year before last, the

individuals who not only are impacted themselves, but, quite frankly, everybody with whom they have any kind of intimate relationship are also seriously impacted.

And so I thank all of you for being here this afternoon, and I

thank all of those who have come to listen to the testimony, and

we’ll keep plugging along.

Mr. EARLEY. Thank you, Mr. Chairman.

Mr. DAVIS. This hearing is adjourned.

[Whereupon, at 4:17 p.m., the subcommittee was adjourned.]

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