The Revolving Door

What's the Commonwealth doing to keep former prisoners from returning to jail?

By CARA BAYLES

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The night before Hakim Cunningham was released from MCI Plymouth, he lay in his cell unable to sleep. "It was very overwhelming, very scary," he remembers. "You realize you're going back into the world and you have a second chance to make things right. I was thinking 'What if I go out and fail? Are people going to be more apprehensive because I'm an ex-offender, or will they help me turn things around?'"

Cunningham's concerns were well-founded. A 2002 Legislature-commissioned study by the Massachusetts Sentencing Committee found recidivism rates had reached 49.1 percent. The Commission to End Homelessness estimated 16 percent of the 25,500 people released from Massachusetts correctional facilities each year become homeless. Former prisoners must also navigate Criminal Offender Record Information (CORI), the state's rap sheet on anyone ensnared in the criminal justice system.

As the number of individuals arrested and incarcerated swells, so does the abundance of criminal records. In 2003, approximately 29 percent of Americans had a criminal record. Massachusetts keeps 2.8 million CORI on file. Approximately 1.5 million CORI checks are requested annually.

Joe Finn, executive director of the Massachusetts Housing and Shelter Alliance, says people often emerge from prison with little support. "They have to find work and housing, when many of them never had those resources to begin with," Finn says. "Shelters are the one agency that have to let everybody in, so they don't run CORIs. They've become the de facto emergency net for people discharged from systems of care:; mental health institutions, corrections, treatment programs ... "

Cunningham was convicted of possession with intent to distribute a Class B substance and given the mandatory minimum sentence of two years. Joel Pentlarge, of the Criminal Justice Policy Coalition, says mandatory minimums have impact beyond adding years to sentences. "Anybody serving a mandatory minimum is basically restricted to medium security and can never get classified down," he says. "It makes it impossible to get them into work release programs." Work release programs help prisoners who are less than 18 months away from freedom ease the transition to discharge. They work a full-time job, returning to prison or a halfway house after their shift.

"I had no chance for pre-release," Cunningham says. "I was thrown into society." He received some transitional assistance as his release date approached. "They offer a two-day program that helps you get a game plan together. They had a resource directory of information for employment, services, emergency food stamps, vouchers. But some of that was outdated."

Cunningham worked as a room attendant at Boston Park Plaza, until they did a CORI check and fired him. Then he worked at Stanley Steemer, a company less adverse to CORI. He's now a car salesman.

He also got involved with Boston Workers Alliance (BWA), an advocacy group for the underemployed, where he's the job creation director. Aaron Tanaka, one of the group's organizers, recognizes a vicious cycle of imprisonment and unemployment.

"The unemployment rate among black men in Roxbury and Dorchester is about 50 percent," he says. "A lot of young men and women in those areas can't get mainstream jobs and get sucked into crime. Seventy percent of our members are dealing with CORI problems."

The Criminal History Systems Board (CHSB) is the state's CORI keeper, and it has authorized 10,000 employers and housing authorities to access records. Organizations that serve children, the disabled and the elderly have "statutory access," meaning they're mandated to check CORI, but any organization can apply for certification. Certified agencies see all convictions after age 17. Those with statutory access see non-convictions and acquittals.

Last week, Carolyn Resnek trained six employers for certification at CHSB's Chelsea headquarters, explaining antidiscrimination law and translating CORI's confusing language of abbreviations.

"This isn't a hiring tool," Resnek explained. "You have to be ready to hire someone before looking up their CORI. You can't narrow your applicant pool by doing twenty CORI checks."

Resnek touted recent policy reforms, which include mandatory training for all registered employers (trainings are offered weekly), special procedures for identity theft victims and for those who receive someone else's CORI (the system's searched by name and birthday, so this is a fairly common occurrence) and aggressive audits to ensure employers follow procedure.

"It became apparent not everyone understood how to read the document," Resnek says. "So we're requiring agencies be trained every two years in order to access it."

But there are publicly accessible records. Anyone can look up a CORI and get results for felonies in the last two years, misdemeanors in the last year, cases that are still on parol, or convictions that carry more than a five-year sentence. You don't need to be CHSB-certified or trained; you just need a person's name and birthday and $30.

All the basic amenities vital to a recently released prisoner are subject to a CORI check. Most employers run applicants' CORIs, and a clean record is almost essential to getting public housing. Even credit and student loans can be denied due to a CORI.

Matt McCreight, a lawyer with Greater Boston Legal Services, says public housing policies vary, depending on the agency. "If it's section 8, what to do with the CORI is often left to the discretion of the private landlord who accepts government subsidies," says McCreight. "If it's HUD, they generally won't accept anyone with drug-related offenses or violent crimes."

Housing providers and employers are required to tell applicants what aspect of the CORI made them ineligible, and to listen to rebuttals and explanations.

"You have an opportunity for a hearing, but an applicant may get the impression—and it's probably true—that the other person isn't listening," says McCreight.

Fran Fajana, a lawyer with the Massachusetts Law Reform Institute, says it's easy to get out of this requirement. "If the employer doesn't tell you that the reason they're not hiring you is your CORI, due process doesn't apply."

McCreight insists it's a question of liability. "What if they take a chance on someone with a CORI and he re-offends? They're afraid of the headline in the Herald, which will say that the housing authority knew that person had a record," he says. "The judgment call often goes negative, out of caution."

Housing authorities are more likely to accept ex-offenders if advocacy groups promise to advise former prisoners for their first few months of release, shouldering some of the liability.

Anti-discrimination law is intended to protect job applicants with CORI. It prohibits employers from asking about non-convictions or about a misdemeanor that's over five years old. But Fajana says such provisions are outdated.

"The statute says, 'Don't ask certain questions on a form or orally.' But there's nothing that says 'Don't use the information from CHSB.' So are these protections really meaningful, if an employer can still access all this information?" she asks. "Antidiscrimination law was written at a time when there was limited access to CORI. Over the last 15 years or so, there's been a significant movement to expand access to criminal records."

CORI was created by the Legislature in 1972, to computerize records and protect privacy rights by restricting access. Prior to that, criminal records were disseminated freely, so CHSB was created to oversee CORI distribution. At first, access was limited to criminal justice officials, but certification has expanded. In 1990, the Legislature tried to address crime in housing projects by granting public housing authorities statutory access to CORI. In 2002, the Legislature granted statutory access to organizations serving vulnerable populations, including hospitals, schools and retirement homes. A Boston Foundation report found that in 1993, about 2,000 non-criminal justice agencies could access CORI; by 2005, over 10,000 were certified.

Fajana says more limitations on CORI access are needed. "They should at least determine whether there's a connection between the job and the record. If you're applying to be a bank teller, and you've been convicted of larceny, that's a fair concern," she says. "But why can't you work in a daycare if you drove with an expired license?"

BWA is creating CORI-friendly jobs, forming a nonprofit temp agency and green jobs in home weatherization and biodiesel conversion. BWA also seeks contracts with the city of Boston, which has "banned the box" asking if you've been convicted of a felony on civil service applications (they still run CORI checks, but criminal records are addressed later in the hiring process).

"We're trying to create a direct database of contract vendors with the city and employers who wait until they know someone's eligible for a position before checking CORI," says Cunningham. "So far, we've got around 16, but there's probably another 50 or 75 that we're trying to get affiliated with."

Gov. Deval Patrick wants to reform CORI policy. In January, he issued an executive order responsible for most of CHSB's impending changes. It strengthens CHSB's oversight by testing, retraining and doling out sanctions for agencies who violate nondisclosure and antidiscrimination laws. It also changed the Executive Office of Health and Human Services' (EOHHS) hiring policies, which used to require either a letter from a probation officer stating the ex-offender poses no threat, or an evaluation from a mental health professional (the applicant pays the therapist's fee). The executive order mandated the EOHHS' hiring policies be clearer and well-regulated. The EOHHS is finishing its policy revamp now, and cannot comment until they're done.

Terrel Harris, spokesman for the Executive Office of Public Safety, acknowledged the order only changes governmental policies. "Look at it this way," he offers, "if one of the Commonwealth's largest employers no longer automatically turns away a former inmate for a job he qualifies for, other than past incarceration, it puts people to work. We also hope it sets the right example for private sector employers."

Universities are a private sector monolith of employment, and students are appealing to their administrations to change hiring policies.

Alyssa Aguilera is a Harvard junior who got involved in CORI reform through labor organizing. "For the past three years I've been pretty active in labor issues throughout Boston," she says. "CORI was something that kept coming up."

Students at Harvard, Tufts, Brandeis, Roxbury Community College, Boston College and other schools formed a loosely confederated CORI reform network. "We've been doing teach-ins on campus. A lot of students now know 'CORI,' this Massachusetts policy term. And people get behind it, it's not a really hard sell," says Aguilera. "We've been doing phone-ins and call-ins, participating in public rallies."

Aguilera says it took weeks to find out the university's policy. "They use a common application that asks if you've been convicted of a felony," she says. "We're gearing up for a ban the box campaign. Labor relations at Harvard seem interested, especially since the city of Cambridge has already banned the box."

They also support the governor's legislation to reduce the waiting period to seal records. Anyone with a CORI who has remained arrest-free can have their CORI sealed, making a background check yield a "no record" result. Ex-offenders have to wait 10 years for misdemeanors and 15 years for felonies, before getting their records sealed. The governor's bill would change the waiting period to five for a misdemeanor and 10 for a felony.

Many groups, like BWA and the student network, think the legislation doesn't close the waiting period enough. "We're basing our numbers on sociological data," Tanaka says, citing a study from the Florida DOC that found an ex-prisoner who doesn't re-offend for three years after a misdemeanor and seven years after a felony is as likely to get arrested as someone with no priors. BWA will march to the Statehouse on May 22nd to rally for reform more radical than the governor's legislation (Aguilera says many students plan to attend). But unless a special session is called, the governor's bill probably won't move this year, anyway.

A paradox is nestled into the argument for shortening the seal waiting period; those first few years after someone gets out of jail are their most vulnerable to recidivism. Even if CORI were sealed after three years, the ex-offender still must find work and housing with a criminal record.

Fajana sees the catch-22, but she says that safety concerns can't be ignored. "Regardless of where we draw the line, what should happen to this individual while they're waiting? What social services should we be offering to help them get back to mainstream? How much information should employers have access to?" asks Fajana. "I don't have the answers to those questions. But it's something we need to grapple with. I'm not suggesting that employers and housing groups don't have an interest in records. They have legitimate concerns. They don't want to be sued."

Tanaka also acknowledges the paradox, but says the BWA must work within the system. "We have to deal with the political reality of the state," he says. "There's been a history of tough-on-crime politicians in Massachusetts. It's just not politically tenable to say you should seal CORI completely."