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Independent Social Science Research ISR -ES Research Profiles Interdisciplinary Social Research Ethnography Series June, 2006 ISSR – ISR – ES: 06-02 Civil Death Penalty: Social Disenfranchisement to deny the vote to black people. While disenfranchisement laws had existed long before these practices began, a number of Southern States tailored these laws to maximize their impacts on African-Americans. Unlike most other laws that burden the right of citizens to vote based on some form of social status, felony disenfranchisement laws have been held to be constitutional.2 Robert S. Grigsby Center for Social Justice Policy Disenfranchisement Main Entry: dis·en·fran·chise Pronunciation: "dis-in-'fran-"chIz Function: transitive verb : to deprive of a franchise, of a legal right, or of some privilege or immunity; especially : to deprive of the right to vote - dis·en·fran·chise·ment /-"chIz-m&nt, -ch&z-/ noun In Richardson v. Ramirez, the United States Supreme Court upheld the constitutionality of felon disenfranchisement statutes, finding that the practice did not deny equal protection to disenfranchised voters. The Court looked to Section 2 of the Fourteenth Amendment to the United States Constitution, which proclaims that States which deny the vote to male citizens, except on the basis of "participation of rebellion, or other crime", will suffer a reduction in representation. Based on this language, the Court found that this amounted to an "affirmative sanction" of the practice of felon disenfranchisement, and the 14th Amendment could not prohibit in one section that which is expressly authorized in another. However, many critics argue that Section 2 of the 14th Amendment does not represent an endorsement of felon disenfranchisement statutes as constitutional in light of the equal protection clause; but is limited only to the issue of reduced representation.3 Source: meriam-webster dictionary HISTORY The roots of felony disenfranchisement laws can be traced back to ancient Greek and Roman traditions. Disenfranchisement was commonly imposed on individuals convicted of "infamous" crimes as part of their "civil death", whereby these persons would lose all rights and claim to property. The practice of disenfranchisement was transplanted to America by English settlers1, and has since that time been used as a political tool to discriminate. Upon the passage of the Fifteenth Amendment, giving African-Americans the right to vote, Southern States began to use seemingly neutral voting qualifications–e.g. literacy tests, property requirements, grandfather clauses, tests for good moral character and criminal disenfranchisement– The United States Supreme Court has generally upheld felony disenfranchisement laws, but has at the same time struck down those that were clearly intended to disenfranchise particular racial groups, or which allowed disenfranchisement based on the 1 Such an examination permits an exploration into domains of our society which otherwise would be hidden, and heightens a sense of awareness of felony disenfranchisement that occurs as a result of some other aim or intent of a social policy. commission of acts so minor that they could not be classified as felonies.4 A Point of Departure This is a point of departure from the common usage of the term felony disenfranchisement, although not a radical departure. But it is a departure we believe is important in order for a clearer understanding to exist of the different forms of felony disenfranchisement that are used within our American society to discriminate against those who have been formerly incarcerated. Public Safety From our very beginnings as a nation, public safety has been espoused as the prime directive for much of the laws that have contributed to the expansion of America’s prison system. Everyday, somewhere in the United States, there is an effort to intone the public safety chant on the road to creating and implementing new laws. Along with this chant, there are many political special interest groups that converge to support such measures, and raise the chant to a scream. Through sensationalized media generated reports, Americans are flooded with fictional statistics from these groups and politicians, made possible by politically misrepresented research findings.6 Given the historical nature of felony disenfranchisement, where many sectors of our society have been denied the right to vote and to participate in the benefit of that freedom, the contemporary social environment is no less prone toward sustaining, and advancing felony disenfranchisement on many different levels within our society and our social institutions. While the major focus of felony disenfranchisement has been directed toward the denial of the right to vote, the endeavor here is to expand the focus to embrace the fact that felony disenfranchisement also encompasses an exclusion from society: social disenfranchisement. Such a case in point is the Iowa sex offender registry law that mandates “… [a] person who is required to register as a sex offender and whose underlying criminal offense was committed against a minor is prohibited from residing within 2,000 feet of the real property comprising a public or nonpublic elementary or secondary school or a child care facility.”7 Much has been made about the effect having a felony conviction has on an individual’s ability to be able to participate in the political process. In deed, we should examine every facet of the denial process, and scrutinize every element for why it exists. No stone should be left unturned, and when an argument is given to continue its practice, it should be thoroughly evaluated and analyzed for its intent. This law, and the many other similar laws enacted throughout the United States, has come to be known as the Exclusion Zone law. Many communities have followed suit in drafting city ordinances which prohibit all individuals formerly incarcerated for a sex offense from living in their community or city, whether their offense involved a child or not and whether the parties involved were consensually dating teens with one being 16 years of age and the other 18 years of age. The fact that we now incarcerate between 2.1 and 2.5 million people, with an estimated 7 million plus under some type of correctional probation or parole supervision,5 demands that we inspect every realm within our society for practices of felony disenfranchisement. For example, the eastern Iowa town of Ely, a population of approximately 1500, which did not have a school or day care, passed an ordinance banning sex offenders from residing in nearly all of the town.8 Officials in Des Moines, Iowa in 2005 added parks, libraries, swimming pools, even recreational trails to the restricted-zone list, virtually exiling sex offenders from the state’s largest city.9 Every realm means every sector, segment, division, and subdivision where felony disenfranchisement can exist to manifest the historical practice of biased intolerance and inequality, better know as discrimination. 2 Most notably in these Ordinances, are the references to the high rate of recidivism in declaring their cities and counties restricted residency areas for all sex offenders. In citing their reason for doing so they stated the following in the City Ordinance [No. 145000], and point to a high rate of recidivism: ARTICLE VIII. RESIDENCY RESTRICTIONS FOR SEX OFFENDERS However, national studies, and Iowa’s own state studies on sex offender recidivism conclude just the opposite.13 Sec. 70-307. PURPOSE. This article is a regulatory measure aimed at protecting the health and safety of children in Des Moines from the risk that convicted sex offenders may reoffend in locations close to their residences. As recognized by the Eighth Circuit United States Court of Appeals in its April 29, 2005 decision of Doe v. Miller, and as recognized by the Iowa Supreme Court in State v. Seering, decided on July 29, 2005, the city finds and declares that sex offenders are a serious threat to public safety. When convicted sex offenders reenter society, they are much more likely than any other type of offender to be re-arrested for a new rape or sexual assault. Given the high rate of recidivism for sex offenders and that reducing opportunity and temptation is important to minimizing the risk of reoffense, there is a need to protect children where they congregate or play in public places in addition to the protections afforded by state law near schools and day care centers. The city finds and declares that in addition to schools and daycare centers, children congregate or play at child-oriented facilities identified 10 in section 70-309(1). In Criminal Justice Research: A Point of Departure in Offender Rehabilitation and Restoration, the research cites Bureau of Justice Statistics data and Iowa Criminal and Juvenile Justice Planning data that sex offenders have one of the lowest recidivism rates among offenders, second only to those incarcerated for murder: Iowa and national Bureau of Justice Statistics studies (2004, 2006 respectively), as well as many other state and federal studies, show that recidivism for sex-offenders committing a new sex offense is significantly low, 3.0% to 3.5% in Iowa;14 with national rates of 3-13%15 and that 80% of the offenses are committed in the home by a family member.16 The Iowa Division of Criminal and Juvenile Justice Planning in their Statistical Overview of Crime and Justice in Iowa (2006),17 show new arrests for a sex offense to be 2.3%, for treatment strategies, the lowest recidivism rate in the entire nation. The City of Des Moines is in Polk County. Polk County itself enacted Ordinance 238 declaring almost the exact restrictions and citing the same reasons.11 Making Polk County virtually off-limits to individuals previously incarcerated for a sex offense, and to their families. Of further note, the Iowa laws have no time limit. It is virtually for life; thus excluding those formerly incarcerated for a sex offense from being able to embrace their new found citizenship to participate in the political process in the cities and counties wherein they once lived, but now have been banished from. Other major cities such as Iowa City located in Johnson County and the City of Cedar Rapids located in Linn County, are almost completely restricted.12 In 2005, on July 4th, Iowa’s Governor Thomas J. Vilsack (D), issued Executive Order Number 42, restoring the right to vote and hold public office to those formerly incarcerated. The pertinent text of Executive Order Number 42 reads as follows: Iowa City, Iowa “The rights of citizenship, including that of voting and qualification to hold public office, which were forfeited by reason of conviction shall be restored for all Cedar Rapids, Iowa 3 offenders that are completely discharged from criminal sentence, including any accompanying term of probation, parole, or supervised release, as of July 4, 2005, but have not made an application pursuant to Iowa Code 914. This executive order shall serve as evidence of restoration of citizenship rights for such individuals”18 have a formula that is used to accept or reject an individual or family. Models of Access One of the major roles of our society and of our social institutions in America is to provide the opportunity to achieve social and personal goals, and assist citizens within our society, our communities, to achieve what these citizens are not able to accomplish on their own to reach their social and personal goals. Given the fact that state laws and city/county ordinances have banished sex offenders from residing within city limits, and for the most part, county limits, could an argument be made that they are now politically disenfranchised from voting and holding public office? These social institutions come in a variety of packages: schools, colleges, universities; health and human service agencies, hospitals, and government, to name a few. They are sponsored through legislative acts of law, policy, and procedures, and funded by federal, state, and local appropriations. Perhaps a legal argument of a Constitutional nature will be made at some point, wherein a challenge is made that they have been legislatively disenfranchised by city ordinances that bar them from the community as a new discrimination method to keep them from voting or holding public office. Is one not first required to have established residency in the city or county they seek to vote or hold public office? Their mission statements are clearly defined, their policies and procedures are written well, and their services are designed to assist and support those whom are in need. In reality, though, our social institutions are designed to assist and support those whom are in need, and who can qualify, to receive the services promulgated by each of our social institutions. Along the same lines, do residency restrictions where one can live or not live subject the person and the family to barriers in meeting eligibility requirements to gain access to public social service assistance programs, to private programs, that are afforded to those who have no restrictions on their residency, and can live within the city, the county? Not everyone who enters through the doors of our social institutions qualify to receive the services. Legislative laws and formulas have been designed that clearly identify who shall be served and who shall not. In Iowa, and many other states, current social policy requires that one must live in the specified city or county to be able to be eligible for public and/or private assistance.19 Other criteria is also mandated by federal, state and local law that set the eligibility standards for most of these programs. One defining characteristic of our social institutions is their need to selectively inhibit access for services. By controlling the barriers affecting access, social institutions control the number of individuals who will (or will not) progress from one phase in the process to the next. To illustrate this point, we have designed and developed a model of the phases that comprise service access and the barriers to deny access; it is shown in Figure 1. In essence, one must be a resident of that particular state, city, community, or county to gain access to the services these entities provide–(e.g., a resident of Iowa City cannot seek public assistance in Cedar Rapids, without first becoming a resident of Cedar Rapids, and having resided in that city for at least 6 months.) A similar criterion is required by county and state programs. Most all To exemplify this position, we will utilize the model in Figure 1 to demonstrate two essential points. The first point is that federal, state, and local laws as they currently exist in Iowa and many states 4 impose social disenfranchisement on people who have been convicted of a felony; and the second point is that Iowa and others states have condemned them to a civil death sentence as a result. A brief note regarding this model: the horizontal arrows at each of the potential barriers to access represent a deselecting, a weeding out, of individuals from one phase to the next. For example, not all individuals who are known to need services will possess knowledge of that need or of service availability; not all with knowledge will possess the means of physical access, and so on. The Civil Death Penalty In revisiting our point of departure stance, we once again reiterate that felony disenfranchisement has historically been directed toward the denial of the right to vote. The endeavor here, as we so stated previously, is to expand the focus to embrace the fact that felony disenfranchisement also encompasses exclusion from society⎯in many different ways, and on many different levels. The process is much like the progression through the grades in public school. Not all who matriculate will graduate; some will be forced to drop out at each grade along the way. By employing this model, we aim to provide a model that accomplishes two main goals: a model that provides a more comprehensive understanding and realization of the many social forces that are acting within our social environment that condemn ex-cons to a civil death sentence; and provide a model that others can use to evaluate and analyze their own social environment, their own world. The point being made is this; felony disenfranchisement is also disenfranchisement from access to economic, social, educational, political and vocational opportunities as a result of having a felony conviction. Models of Access: SAM-I and SAM-II The model represented in Figure 1 is a graphical description of service access⎯a model of service access. This Service Access Model identified as SAM-I will be used to demonstrate this point. The Models of Access we have designed are a tool developed to assess, evaluate, and analyze our social institutions, our society, our world. The Models of Access are identified as the Service Access Model (SAM-I) and the Social Access Model (SAM-II), each are comprised of eight (8) primary sections which are identified as: Need Population, Knowledge, Physical Access, Psychological Access, Screening and Eligibility Criteria, Resource Availability, Service/Resource Utilization, and Denial of Resource Access. Regional Population Need Population Knowledge Physical Access D E N I A L Each section represents the basic elements that exist within all of our American social institutions. Whether it is a government institution or a private institution, these eight elements are the primary controlling sectors in attendance to disqualify access to resources in our society. Psychological Access O F Screening and Eligibility Criteria Resource Availability S E R V I C E S • Service/Resource Utilization Figure 1. A Service Access Model (SAM-1) 5 Need Population The need population is any individual or group that is said to be in need of the services or resources offered or provided by the social institution. • Knowledge The individual or group must have knowledge that the desired service(s) or resource(s) exist, are available, and what social institution offers the service or resource. • Physical Access The individual or group must have physical access to the social institution; e.g., to the building or office, and to the staff or services/resources available. • • • • As such, the individual or group seeking or requiring access to services and/or resources depends on the need of the individual or group, the knowledge that the services and resources exist, having physical access to the services/resources, the social and psychological barriers associated with receiving the services/resources, the screening and eligibility criteria required, the resources available, and actually receiving the desired or needed services and/or resources. The purpose of formulating this model is to identify current social policies within our social institutions, mandated by federal, state, and local laws, which socially and politically disenfranchise citizens who have a felony conviction; and show how that disenfranchisement condemns them to a civil death sentence. Psychological Access The individual or group must have psychological access to the services/resources available, [refers to the possible or potential stigma of the service(s) offered, staff perceptions/prejudices, views of others who are in need and are also seeking to receive similar services, and public disclosure of information. Can be any or all of these, and can include socio-cultural norms.] By controlling the barriers affecting access, policymakers control the number of individuals who will or will not progress from one phase in the process to the next. Put another way, social policy, and thus social policy-makers, can control the variables and/or probability that an individual or group will make the transition to the next phase. Screening and Eligibility Criteria The individual or group must be able to meet screening and eligibility criteria established by federal, state, and local laws; the social institution or mandated by a third party institution. This is very evident in view of the federal, state, and local laws and municipal ordinances that have been developed for those having been formerly incarcerated. Barriers to Temporary Assistance to Needy Families (TANF) Resource Availability The social institution must have adequate resources available to meet the individual or group need population. In 1995, as part of the Welfare to Work Program, Congress enacted the Temporary Assistance to Needy Families Act (TANF), wherein screening and eligibility criteria were developed that introduced specific disqualifications to deny public assistance to anyone formerly convicted of a specified drug offense. TANF is an example of political forces controlling the barriers to access public assistance. Service/Resource Utilization Services actually provided to the individual or group in the need population. For purposes of clarity, the above seven (7) sections are barriers to access services and resources, and combine in an exponential manner to either severely limit or deny access to services and resources. Federal law requires states to impose a lifetime ban on the receipt of TANF cash assistance and food stamps for those individuals who have been convicted of drug felonies for conduct that occurred after August 22, 1996.20 The eighth section, Denial of Resource Access, is self-defining. In 2000, the law was adjusted to allow states the option to either modify or opt out of the lifetime ban. 6 Breakdowns of the states that opted out, and of the states that continue the disqualification, are provided in Table 1. This required passage of legislation at the state level. Various states adopted their own form of TANF, although many states did not, and allowed the lifetime ban to continue to disenfranchise those who are disqualified. Table 1: State Responses to the Federal Drug Felon Ban on TANF and Food Stamps As of January 2005 Adopted Federal Ban on TANF and Food Stamps Opted Out of Federal Ban Entirely Opted Out of Food Stamps and Modified Ban on TANF Modified Ban by Requiring Treatment Modified Ban by Requiring Completion of Sentence or Treatment Other Modifications (i.e. Limiting Ban to Distribution or Sale Offenses or Requiring Submission to Drug Testing) Alabama Alaska Arizona Georgia Indiana Kansas Mississippi Missouri Montana Nebraska North Dakota South Dakota Texas Virginia West Virginia Wyoming Idaho Maine Michigan New Hampshire New Mexico New York Ohio Oklahoma Pennsylvania Oregon Utah Vermont Illinois Massachusetts Colorado Hawaii Iowa Kentucky Nevada South Carolina Tennessee Connecticut Arkansas California Delaware Florida Louisiana Maryland Minnesota New Jersey North Carolina Rhode Island Washington Wisconsin Source: Double Jeopardy: An Assessment of the Felony Drug Provision of the Welfare Reform Act, Center on Juvenile and Criminal Justice Disqualification from TANF and similarly crafted programs unfairly punishes people who have already been punished by the criminal justice system. In addition, TANF disqualification harms children, whose access to basic financial support is reduced when their formerly incarcerated parents are denied TANF funds or assistance. The Family Investment Program requires that in order for an ex-felon incarcerated for a specified drug offense to meet the criteria to receive assistance, they must first comply with the provisions that they are enrolled in a drug treatment program and undergo drug testing in order to receive assistance.21 The State of Iowa opted to modify TANF by establishing the Family Investment Program (FIP). Availability of drug treatment programs with waiting list less than 12-months are virtually non-existent in 7 Iowa. Further complicating access to TANF assistance is that Iowa has very little to no treatment programs that are located in rural areas, most if not all are located in urban areas that require traveling sixty (60) miles or more (one way). Public transportation from rural to urban centers is non-existent. criminogenic attributes have been undoubtedly shown to be contributing factors or forces in crime and recidivism. In explaining crime, we know that there are a number of "criminogenic factors" that are foretelling about why our society experiences crime. These are factors such as poverty, discrimination, inadequate health care, ineffective parenting, lack of education, and other socialization aspects such as family violence and abuse. Social policy that disqualifies and denies access to basic human needs of the individual and/or family is morally wrong to say the least. Yet, we have many such policies and practices embedded within our social institutions which impose felony disenfranchisement as a means of further punishment. Criminogenic Forces As the research literature persuasively shows, public social policy brought about through legislative enactment can be a major contributing force in maintaining, if not furthering, the "criminogenic factors" related to crime, criminals, criminal behavior, and victimization. Social policies that restricts, inhibits, and outright bars access to the human needs identified by research to be criminogenic factors, are in and of themselves "criminogenic forces" that contribute to crime. In deploying this model for evaluating and analyzing our social institutions⎯our society⎯one recognizes many things at once. Social policies which severely limit or outright deny access to human needs are criminogenic. When we speak of social policies as being criminogenic, we are categorically stating that there is a causal relationship between social policies and behavior labeled as criminal. These spheres of influence, which a) have been shown to be associated with recidivism and b) can be changed, are called criminogenic attributes. The imposition of a lifetime ban on the receipt of TANF cash assistance and food stamps for those individuals who have been convicted of drug felonies for conduct that occurred after August 22, 1996 is a criminogenic attribute of this social policy. Which dynamic factors and forces are actually criminogenic attributes and which are not does not always equal some of the commonly held opinions and beliefs in our society, or held by prison administrators and legislators. Criminogenic Attributes Briefly stated, research has shown the following types of needs to be criminogenic factors: For purposes of clarification, criminogenic attributes are by definition: • • • • • • “Contributing factors and/or forces identified by research as causal elements of crime and/or related recidivism.” 22 Major research studies available show criminogenic attributes to be contributing factors or forces of crime and/or recidivism. In order for the general public to grasp the need to understand the notion of criminogenic attributes it is crucial we provide the following. Lack of employment/employment skills Education Substance abuse Family dysfunction Poor self-control, poor problem-solving skills Mental Health Anti-social personality disorders Anti-social attitudes and values Anti-social relationships/associates Within the criminogenic factors classification, the major predictor for recidivism is "employment", followed by an "adequate education" to establishing "meaningful" employment. Criminogenic Factors A significant amount of research over the last decade has fully established that definite types of 8 What the professional literature reveals about criminogenic attributes in our society and offender crime and recidivism, and victimization makes it inexcusable that we have social policies that severely restrict and deny access to these resources. Although many of these laws have been in existence for years, obstacles to ex-offenders have recently proliferated as legislators have expanded the statutory authority of noncriminal justice agencies and groups to access criminal histories for purposes of employment screening, occupational licensing, and certifications. 24 Social policies, the likes of TANF, and the sex offender exclusion zones, are indefensible and need to be exposed for what they truly are; for they are nothing more than a legislative means to socially disenfranchise people and families. Barriers to ex-offender employment may be direct or indirect. Direct barriers, found in various statutes and occupational code licensing requirements, require employers to exclude applicants with criminal convictions and, in some cases, arrest records. 25 Barriers to food, health care, financial support, employment, education, housing, and voting are barriers to life. When social policy is formed to exclude people and families from realizing these benefits as a result of formerly being incarcerated, social disenfranchisement is the result and the punishment is a civil death penalty. Indirect barriers originate in Title VII of the Civil Rights Act of 1964, which establishes parameters affecting the scope of a potential employer’s inquiries about prior arrests, convictions, and other aspects of the applicant’s criminal history. Under Title VII, employers may exclude applicants with arrest or conviction records if they can prove that the applicant’s criminal history prevents the latter from satisfying certain job requirements.26 In this country, social policies have been developed at the federal, state, and local levels which systematically punish people, and entire families, as a result of being previously incarcerated. Employers in many industries are legally compelled to exclude ex-offenders. Some of these regulations exclude ex-offenders outright and do not require a nexus between the specific professions and the type of offense committed.27 Through the lens of the Service and Social Access Models we are able to identify numerous social policies that have been designed to restrict access to, and/or bar access to services and resources. The screening and eligibility criteria of our social institutions and of our business institutions are mandated by social policy, and are crafted specifically to exclude people who have been formerly incarcerated. Although some licensing provisions prohibit employment of ex-offenders convicted of specific offenses, other codes prohibit employment of individuals lacking “good moral character.” It is significant that most codes do not define good moral character, leaving licensing boards and agencies much latitude in determining which criminal backgrounds do not meet this criterion.28 Barriers to Employment Direct barriers to employment for those who have been previously incarcerated exist in many different forms of social policy. Occupational licensing restrictions are daunting both in numbers and scope. A survey by Hunt, Bowers, and Miller (1973) conducted in the early 1970s revealed as many as 1,948 separate statutory and licensing provisions barring or restricting applicants with arrest or conviction records. Thirty years later, occupational licensing restrictions have spread to such an extent that they defy enumeration.29 A number of legal barriers exist that bar exoffenders from acquiring lawful employment, an essential means for acquiring the resources to human needs, and social reintegration. Most states have enacted various laws that make it difficult, if not impossible, for ex-offenders to acquire employment, regardless of their work history or risk of re-offending. 23 Many states have also taken the position that employers should be given much discretion in 9 The sale of a controlled substance: making hiring or licensing decisions about applicants with any form of criminal record. Thirtyeight states permit employers and licensing agencies to rely on arrest that do not lead to convictions in determining whether to hire or license.30 Ineligibility First Second (i) complies with such criteria as the Secretary shall prescribe in regulations for purposes of this paragraph; and This is also true as to barriers to education, in that federal, state, and local social policies have effectively barred a great number of people from entering colleges or universities as a result of having been formerly incarcerated for a series of offenses. (ii) includes two unannounced drug tests; or (B) the conviction is reversed, set aside, or otherwise rendered nugatory. (3) DEFINITIONS- In this subsection, the term “controlled substance” has the meaning given the term in section 102(6) of the Controlled Substances Act (21 U.S.C. 802(6)). Barriers to Education Subsection (r) of section 484 of the Higher Education Act of 1998 [see 20 U.S.C. 1091(r)] states: (2) EFFECTIVE DATE- The amendment made by paragraph (1), regarding suspension of eligibility for drug-related offenses, shall apply with respect to financial assistance to cover the costs of attendance for periods of enrollment beginning after the date of enactment of this Act.33 Suspension of eligibility for drug related offenses; (1) IN GENERAL - A student who has been convicted of any offense under any Federal or State law involving the possession or sale of a controlled substance shall not be eligible to receive any grant, loan, or work assistance under this title during the period beginning on the date of such conviction and ending after the interval specified in the following table: Barriers to Housing Having a criminal history is a significant barrier to people with criminal records who need to have access to safe, secure and affordable housing just as any other resident in a community. If convicted of an offense involving the possession of a controlled substance: - Period 2 years Indefinite (A) the student satisfactorily completes a drug rehabilitation program that— Iowa law allows noncriminal justice agencies, state and private employers, access to obtain criminal records of arrest and/or convictions.32 Offense Offense Offense - REHABILITATION- A student whose eligibility has been suspended under paragraph (1) may resume eligibility before the end of the ineligibility period determined under such paragraph if-- In many of these States, every session of the legislature in recent years has resulted in new statutory authority for noncriminal justice agencies and groups to obtain criminal record checks for such purposes as public and private employment.31 Ineligibility First Second Third Offense Offense Many people leaving the criminal justice system do not have a home to return to. Additionally, they very often return to communities where persistent poverty and lack of jobs and affordable housing make finding a permanent home difficult. This is especially true for sex offenders. Period 1 year 2 years Indefinite 10 Additionally, if a member of a household applying to lease a Tax Credit unit has been arrested for a felony, and the charge has not yet been adjudicated, the unit cannot be rented to that household. For example: Federal laws give local housing agencies much leeway to decide whether to bar individuals with criminal records from public housing premises. Many public housing authorities deny eligibility for federally assisted housing based on an arrest that never led to a conviction. Housing and Urban Development (HUD) initiatives for public housing assistance clearly state that Public Housing Authorities (PHA) have very little restrictions under the act: The Low-Income Housing Tax Credit (LIHTC) is the most important resource for creating affordable housing in the United States today. The LIHTC database, created by HUD and available to the public since 1997, contains information on nearly 22,000 projects and more than 1,141,000 housing units placed in service between 1987 and 2002.34 Access to criminal and drug abuse records - The act allows PHAs to require applicants for public housing and tenant-based assistance to consent to the PHA obtaining adult criminal conviction records from the National Crime Information Center, other law enforcement agencies and drug abuse treatment facilities. The PHA requires applicants to allow the PHA to get records on possible current illegal drug use from a drug abuse treatment facility. Created by the Tax Reform Act of 1986, the LIHTC program gives States the equivalent of nearly $5 billion in annual budget authority to issue tax credits for the acquisition, rehabilitation, or new construction of rental housing targeted to lowerincome households.35 Admissions screening - The act authorizes PHAs and project owners to establish standards prohibiting admission to federally assisted housing to households with a member who they determine is illegally using a controlled substance or abusing alcohol in a way that may interfere with the health, safety, or peaceful enjoyment of the premises by other residents. They are also allowed to deny admission to a household if any member during a reasonable time before admission engaged in drugrelated or violent criminal activity. PHAs and project owners must also screen for and prohibit admission of persons who are dangerous sex offenders. Affordable Housing Tax Credit (AHTC) Rules permanently banned any person convicted of a felony. Although the 2007 AHTC Rules allow the housing of some convicted felons after a certain number of years, confusion has arisen over the issue of those individuals who have only been arrested for a felony, and have not been convicted. The new language, as adapted from the HUD Section 8 Rules, reads, “currently engaged in, has been arrested, convicted, or incarcerated (for a felony).” Any felony. Terminations and evictions - Residents of public housing, tenant-based Section 8 assistance, and other federally assisted housing may have their leases terminated and be subject to expedited eviction (after an expedited grievance process) for violent or drug-related criminal activity and felony convictions. Families evicted for drug-related criminal activity from public housing, tenant-based Section 8, or other federally assisted units are prohibited from being readmitted for 3 years.36 The intent of the AHTC Rules is not to prevent innocent people from residing in Tax Credit housing. For example, an individual arrested for a felony, but who is acquitted of the charge (not convicted), is eligible to reside in a Tax Credit property. The same is also true for an individual arrested on a felony charge that is dismissed. However, if a member of a household currently residing in a Tax Credit unit is arrested for a felony, that individual is no longer qualified to remain in the unit pending the disposition of his/her case. People with criminal records who seek private housing are often also confronted with the same requirements set-forth by HUD, and are routinely screened out following a background check that reveals their criminal history. 11 Rental agreements contain many, if not all of these eligibility requirements, and in effect bar entire families from obtaining necessary shelter. these restoration processes are so cumbersome that few ex-offenders are able to take advantage of them.36 Barriers to Voting Impact of Felony Disenfranchisement: As stated previously, felony disenfranchisement has historically been the predominate tool to deny those formerly incarcerated the right to vote. • An estimated 5.3 million Americans, or one in forty-one adults, have currently or permanently lost their voting rights as a result of a felony conviction. In many states, the effect of being denied the right to vote have silenced the political voice of those whom have sought changes in a criminal justice system they view as a human landfill that serve political interests not society, especially states which have embarked on a robust prison construction effort to meet the reservoir of citizens being incarcerated as a result of the “Get Tough” on crime legislative packages. • 1.4 million African American men, or 13% of black men, are disenfranchised; a rate seven times the national average. • An estimated 676,730 women are currently ineligible to vote as a result of a felony conviction. • More than 2 million white Americans (Hispanic and non-Hispanic) are disenfranchised. • In five states that deny the vote to ex-offenders, one in four black men is permanently disenfranchised. Since the founding of the country, most states in the U.S. have enacted laws disenfranchising convicted felons and exfelons. In the last 30 years, due to the dramatic expansion of the criminal justice system, these laws have significantly affected the political voice of many American communities.37 • Given current rates of incarceration, three in ten of the next generation of black men can expect to be disenfranchised at some point in their lifetime. In states that disenfranchise ex-offenders, as many as 40% of black men may permanently lose their right to vote. State Disenfranchisement Laws: • 48 states and the District of Columbia prohibit inmates from voting while incarcerated for a felony offense. • 2.1 million disenfranchised persons are exoffenders who have completed their sentences. The state of Florida had an estimated 960,000 exfelons who were unable to vote in the 2004 presidential election.38 • Only two states - Maine and Vermont - permit inmates to vote. Barriers to Life In deploying the Service/Social Access Model we are able to now systemically state that an individual who is in need of services and/or resources, who possess knowledge of those services and/or resources, has the physical means to reach these services and/or resources, and who hurdles the psychological stigma attached to the services and/or resources, is barred from receiving those services and/or resources in that they are unable to pass the screening and eligibility criteria that has legislative disqualified them as a result of being formerly incarcerated. • 35 states prohibit felons from voting while they are on parole and 30 of these states exclude felony probationers as well. • Three states deny the right to vote to all exoffenders who have completed their sentences. Nine others disenfranchise certain categories of exoffenders and/or permit application for restoration of rights for specified offenses after a waiting period (e.g., five years in Delaware and Wyoming, three years in Maryland, and two years in Nebraska). • Each state has developed its own process of restoring voting rights to ex-offenders but most of 12 Utilizing SAM I-II, we are able to identify that social policies have been developed to make sure that those formerly incarcerated have little, to no access to these life resources. The psychological health of offenders have been determined to be that 33.8% of those incarcerated have a diagnosed mental illness.42 The operating budget for the Department of Corrections for Fiscal Year 2006 is $348,584,948.43 Social policy that inhibits and denies such access to services and resources saturate our social institutions. General Fund Tobacco Money Other Revenue Total They are barriers to life for many in our society, and they are social disenfranchisement policies that impose a civil death sentence on those who have made mistakes in their lives. $292,975,307 $3,141,285 $17,146,766 $313,263,35843a (43a See budget note) Looking In The Mirror We, as a society, must endeavor to change our social policies, change our social institutions, and change our political institutions to be pro-social factors, not criminogenic factors. If we were to look at ourselves in the mirror, as a State, the reflection that we find should scare us. Social policies that impose restrictions and bar citizens of human needs are incongruous with criminogenic research. For what we would fined is this; we are spending over $348.5 million dollars a year to incarcerate and supervise just a little over 8,183 or 20.9% for a crime against a person, (3,761) in prison, (4,421) on parole. The inevitable results of such social policies are a prelude to further alienation, social disruption, and human suffering ⎯it is bizarre to think otherwise. The remaining 31,006 or 79.1% of those imprisoned or on parole are non-violent offenses. The “Civil Death Penalty” is real⎯people are dying as a result of it⎯everyday. The image we see emerging is not very attractive, in that 20,701 or 66.7% are drug offenders (11,006) and public order offenders (9,695). The Face of Iowa Considering the social policies we have articulated regarding access to services and resources, these numbers have a chilling effect. In May 2006, we find 39,189 citizens under the authority of the Iowa Department of Corrections. Of that population, 11,006 or 28% are drug offenders, 9,695 or 24.7% are under correctional authority as a result of Public Order, 9,324 or 23.8% are property offenders, 8,183 or 20.9% are offenders having committed a crime against a person, with 981 or 2.5% being classified as other.39 If we were to take just 1% of the 11,006 drug offenders, which is approximately 110, and plug that number into the Service/Social Access Model, the result of service/resource utilization (access to services/resources) would be zero. Of the 8,183 classified as having committed a crime against a person, 1,119 or 7.31% were classified as a sex offense.40 Broken down into its defined states and transition probabilities, the SAM mathematical expression is as follows: The racial makeup of those under correctional authority at mid-year in 2006, are as follows: 41 P(U/N) = P(K/N) x P(A/K) x P(P/A) x P(E/P) x P(R/E), where, P(U/N) is the probability that an individual in need utilizes the services during some interval of time; White: Black: Hispanic: Nat. Amer.: Unknown: 30,804 5,573 2,002 452 28 78.6% 14.2% 5.1% 1.2% 0.1% P(K/N) is the probability that an individual has knowledge of the need and of service availability given that the individual has a need; 13 P(A/K) is the probability that an individual has physical access given that the individual has knowledge; legislative social policies have had on offender access. P(P/A) is the probability that an individual can overcome psychological barriers given that the individual has physical access; Parametric analysis or simulation is another use of SAM. It involves changing various transition probabilities and then simulating what happens to service, resource, and social access. The decision by legislators and special interest groups to initiate the 2000 foot residency restriction on sex offenders, is an excellent example. P(E/P) is the probability that an individual is eligible given that the individual has overcome psychological barriers; P(R/E) is the probability that resources are available given that the individual is eligible. Broken down into its defined states and transitions it is expressed as: Referring to the data, we can quantify our statement, our position, that zero offenders will be able to access the services/resources. P(U/N) is the probability that an individual sex offender who needs shelter locates and establishes housing within a community or county. There are a total of 11,006 individuals in the regional population. Of these, 110 (1%) are found to be in need. Of the 110, one (1) is found to be unaware of the service availability and drops out, failing to make the transition from knowledge to physical access. Thus: P(K/N) = (110-1)/110 = 109/110 or 0.9. Another individual has no transportation even though that individual knows about the services; therefore, P(A/K) = (109-1)/109 = 108/109 or 0.9. All other individuals surmount the previous barriers and get to the service/resource institution but finds that they are ineligible, and therefore P(E/P) = (108-108)/108 or 0.0. No individual is eliminated because of psychological barriers or a lack of resources available, so P(P/A) = 1.0 and P(R/E) = 1.0. When these probabilities are inserted into the equation, we find that: P(K/N) is the probability that an individual sex offender has knowledge of the need of housing availability given restrict access of sex offenders to the community or county; P(A/K) is the probability that an individual sex offender has physical means to un-restricted access to housing outside the 2000 foot buffer zone given that the individual sex offender has knowledge; P(P/A) is the probability that an individual sex offender can overcome psychological barriers to restricting liberties where a sex offender can live given that the individual sex offender has physical access; P(U/N) = 0.9 x 0.9 x 1.0 x 0.0 x 1.0 = 0.0 P(E/P) is the probability that an individual sex offender is legally capable of living in a community or county restricting access to sex offenders given that the individual sex offender has overcome the psychological barriers; Thus, for a population of 110, total utilization of the services/resources is given by: U = 9 x P(U) = 9 x 0.0 = 0 P(R/E) is the probability that housing resources are available to individual sex offenders given that the individual sex offender is eligible to legally live in a community or county. SAM-I and SAM-II have three possible uses: prediction, parametric analysis, and evaluation. Prediction is a rather straight-forward application of the model and merely involves extrapolating past performance of accessing the services or resources of the social institution. Thus, if social policies that make offenders ineligible were not in existence, and the data were available from our social institutions on how many offenders they once served in the past, we could predict how many are not now being served today, and the impact these There are a total of 6,209 sex offenders registered in Iowa, you do the math. Care must be taken, however, to assess the impact of new legislation upon all transition probabilities. Gains in restricting access made at the front end of the process are lost when sufficient resources are 14 assuredly the device that births the system of imprisonment and prisons. not made available to the new demands, that is, P(R/E) (housing resource availability) will surely drop. The continuous debate that focuses on the prison system, and who is in the prison system, must be re-directed to why we have a prison system, and why people are imprisoned. The truth of such a focus will reveal that social policy developed at the local, state, and federal level is designed to create inequalities and then exploit those inequalities to advance social, political, and economic agendas that uphold the view that prison and imprisonment are justified in our society. The image in the mirror is revealing, it says we are old, antiquated, in our views and our ways. It says we need another face, one we can look at and not be ashamed of. It says it is time for a change; a change in social policy that does not endeavor to disenfranchise entire segments of our society. Being Comfortable with Uncomfortable Policies We have become comfortable about being uncomfortable with the inequities we see in our communities. We have become numb to the social and economic disparities that have been created by social policies that socially, economically, and politically disenfranchise millions of people in our society. Social policy that endeavors to maintain inequalities to further the existence of prison, and imprisonment, serve architects of such policy, not society. Identifying such policies and their framers, who hold our society hostage to such immoral entrepreneurialism, is central in eliminating the manufactured inequalities we use to disenfranchise and imprison people in our society. We have become comfortable with the fact that 2.1 million people⎯human beings⎯are imprisoned in this country. And that over 7 million more are under some sort of correctional supervision. It is social policy that fills our prisons; one must not ever forget that. Policies that socially, economically, and politically disenfranchise millions⎯are a civil death penalty. We have become comfortable with uncomfortable social policies, because we have failed to see the result of such policies and the connection between social policies of inequality and the prison system. It is time for a radical change in our social policies, our social institutions, and in our comfortableness. A Call for Radical Change We can no longer be comfortable with embracing social policies and social institutions that produce the very suffering they were sold to the American public to cure. The prison system is about inequalities. In our social system these inequalities are planned, manufactured, and produced, and then marketed in attractive packages labeled social policy, and sold to American society. Abolish the social policies that birth the system of imprisonment, and the prison system will be abolished. What “social policy” has criminalized, decriminalization will remedy. The inherent sense of this is unmistakable in view of the people who populate our prisons. We must address the cause, not the result. Changing the causes for prisons, changes the result for prisons. ENDNOTES: 1. 2. 3. 4. 5. The social policies that are embedded in our social institutions which labor to disenfranchise citizens from quality health care, education, employment, housing, economic stability, and all facets of endeavoring to realize their benefits, are most 6. 7. 15 Manza, Jeff (2006), Locked Out. NY. Oxford Ibid, p.35 Ibid, p.43 Ibid, p.73 Bureau of Justice Statistics, "Prison and Jail Inmates at Midyear 2002" (NCJ-198877), Paige M. Harrison and Jennifer C. Karberg. Grigsby, Robert S. (2000-2006), Criminal justice research: a point of departure in offender rehabilitation and restoration. Iowa: Restorative Justice Research Center. Iowa Code § 692A.2A(1,2). 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. Christopher Uggen, Locked Out: Felony ICLU Press Release, Ben Stone, Executive Director, September 29, 2005 Ibid. City of Des Moines, Ordinance 145000, Residency Restrictions for Sex Offenders, 2005 Polk County Board of Supervisors, Ordinance No. 238, Chapter 34, Residency Restrictions for Sex Offenders, effective upon publication (2005). Johnson County GIS Mapping, Sex Offender Restriction Zone, 2006; Linn County GIS Mapping, Sex Offender Restriction Zone, 2006. Grigsby, Robert S. (2000-2006), Criminal justice research: a point of departure in offender rehabilitation and restoration. Iowa: Restorative Justice Research Center. Criminal Justice Research: A Point of Departure in Offender Rehabilitation and Restoration, 2006 Ibid, p.22 Ibid, p.51 Ibid, p.77 Executive Order 42, Thomas J. Vilsack, Governor, Iowa; 2005 48A.5 Iowa Code; Iowa City Housing Code; City of Cedar Rapids Housing Code TANF, Welfare Reform Law, 1996 U.S. DHS Ibid, p.12 Restorative Justice Research Center, 2006 Legal Action Center, 2004 Ex-Offenders Need Not Apply: The Criminal Background Check in Hiring Decisions; Journal of Contemporary Criminal Justice, Vol. 21 No.1, February 2005 6-30 Ibid, p.7 Ibid, p.9 Ibid, p.9 Ibid, p.10 Ibid, p.22 Ibid, p.23 Compendium of State Privacy and Security Legislation: 2002 Overview; November 2003, NCJ 200030; U.S. Department of Justice Office of Justice Programs; Bureau of Justice Statistics Ibid, p.7 Subsection (r) of section 484 of the Higher Education Act of 1998 (see 20 U.S.C. 1091(r)) Low-Income Housing Tax Credit (LIHTC), HUD, March 8th, 2005 Ibid, p.15 Sources: Jamie Fellner and Marc Mauer, Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States, Human Rights Watch, The Sentencing Project, October 1998; Patricia Allard and Marc Mauer, Regaining the Vote: An Assessment Disenfranchisement and American Democracy, 2006 Ibid, p.17 Ibid, p.23 Iowa Department of Corrections, 2006 Ibid, p.16 Ibid, p.16 Iowa Department of Corrections, Report to the Board of Corrections, Mental Health, April 2006. 43. Iowa Department of Corrections, Quick Facts May 2006. 37. 38. 39. 40. 41. 42. 43a. Budget Note: Iowa Budget Report 2007, identifies the revenue and expenditures for the Iowa Department of Corrections for FY 2006. of Activity Relating to Felon Disenfranchisement Laws, The Sentencing Project, January 2000, updates by The Sentencing Project, and Jeff Manza and 16