CONVICTED OFFENDERS AND THE NEW UNEMPLOYMENT EPIDEMIC

The economic downturn, the housing market crash, and the persistently high unemployment rates have been weighing heavily on the majority (arguably 99%) of the American people. As to determining the method needed to bring the economy out of this slump; well, that can be debated between economists. As the news media covers the differing perspectives of economists, the American people are struggling to maintain their standards of living, and little attention is given to the niche groups who may never recover from the economic downturn or obtain gainful employment. One such group is convicted offenders.

Convicted offenders of America suffer from employment barriers that are very different from the difficulties that the non-offender faces when seeking employment. In an article published by The New York Times on January 9, 2012, entitled “Paying the Price, Long After the Crime,” by Alfred Blumstein and Kiminori Nakamura, the authors address the long standing issues that face ex-offenders in the United States. They cite a database released by the American Bar Association in November 2011 that identifies over 38,000 punitive provisions that apply to ex-offenders, namely those that affect housing and employment opportunities.

In the State of New Jersey, employers have the right to discriminate against any person who has an arrest record based on the principle of “negligent hiring.” “Negligent hiring” essentially means that an employer can be held liable for the inappropriate or criminal actions of an employee, if the employer did not exercise enough caution in hiring the employee or supervise the employee. For instance, if a toy store manager were to hire a convicted sex offender, and that sex offender molested a child during his work hours, the store manager may be civilly liable for the employee’s actions. As a result of these liability statutes, employers protect themselves and their businesses by refusing to hire convicted offenders. The end result – convicted offenders, and even those who only have an arrest record, have extreme difficulty obtaining employment.

The unemployment rate may seem unwavering, but if legislation does not address employment barriers for convicted offenders, the unemployment will rate will only increase. In an article “Many in U.S. Are Arrested by Age 23, Study Finds,” published by The New York Times in December 2011, the author Erica Goode reports that 30.2 percent of young adults, 23 years of age and under, have been arrested for non-traffic violation offenses. Most of the arrests were cited for domestic violence and drug-related crimes.

Luckily, not every one of the young adults in that 30.2% will be hindered by their criminal records. Some of those sited in the statistic will be eligible for an expungement; in which case, they will be able to put their criminal record in the past once they have satisfied the statutory time bar. (Time bars vary based on the level of crime. For instance, municipal ordinances require a two year wait period, disorderly person offenses are 5 years, and indictable offenses can be up to 10 years.) The New Jersey expungement statutes contain many exemptions and requirements. As a result, many people are ineligible, and their only option is the little known Certificate of Rehabilitation.

The Certificate of Rehabilitation (COR) offers convicted offenders the option to apply to the New Jersey court or the Parole Board for an official certificate declaring that the offender is rehabilitated and no longer presents a threat to society greater than the standard norm for all citizens. The impact of the COR, when fully realized, will provide employers of the public sector the confidence to hire convicted offenders (decreasing their fear of “negligent hiring” liability lawsuits), enable ex-offenders to obtain professional licenses and lift bars related to housing. Currently, the law only applies to employment bars in the public sector. The private sector still has the capacity to discriminate against people who have a criminal record.

The COR statute was signed into New Jersey law about fifteen years ago, and the Certificate has been only granted by the Parole Board to a few individuals. In conclusion, the Certificate of Rehabilitation remains in uncharted legal territory. Few people in New Jersey have ventured to obtain it, and even fewer have received it. As the law stands, the COR provides limited relief. It does not absolve public employers of “negligent hiring” liability, nor does it provide ex-offenders with any help or hope in obtaining employment in the private sector.

In sum, the criminal justice system categorizes its goals as the following: punishment, deterrence, and rehabilitation. With over 38,000 recorded punitive measures, beyond fines and imprisonment, there is no lack in punishment and deterrence in the United States. However, it is irrefutable that the system fails to aid offender rehabilitation and reentry into society based on the statutory “incentives” to avoid hiring ex-offenders and the meager opportunities for offenders to put their criminal records in the past. If state and federal legislators do not reexamine their stance on employment barriers, the high unemployment rate will go beyond this short-term economic downturn, but become a long-term national epidemic for Americans with offense histories.