Washington Governor Vetoes Bill That Would Have Automatically Cleared Criminal Records

Originally published in The Appeal on May 19, 2020.
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When the Great Recession hit in 2008, the unemployment rate among the general public stood at 6 percent. But it stood at a staggering 27 percent among the formerly incarcerated, according to a study by the Prison Policy Initiative —“higher than the overall U.S. unemployment rate during any historical period, including the Great Depression.” As the nation now grapples with the novel coronavirus and tens of millions of newly unemployed workers, individuals with criminal records—upward of 70 to 100 million Americans—are bracing for an even more severe crisis, with heightened difficulties obtaining jobs, loans, and housing.

In that context, criminal justice reform advocates in Washington State were all the more disappointed in April when Democratic Governor Jay Inslee vetoed House Bill 2793. It would have initiated the process of automatically expunging criminal records in nearly 2 million eligible cases.

Advocates have pushed for this type of reform, dubbed “Clean Slate,” around the country. Although expunged records yield major benefits, the vast majority of people who are eligible to get an expungement—over 90 percent of them, according to a University of Michigan study published in 2019—don’t even apply, for a host of reasons ranging from cost and time to legal complexity and a lack of information. Clean Slate bills propose to remedy these obstacles by requiring states to automatically expunge people’s records for eligible offenses. Though specifications vary, these bills typically involve clearing cases promptly if they did not result in a conviction, and clearing convictions after some waiting period.

The economic downturn has amplified the issue’s importance. Applicants with criminal records can be half as likely to get a callback or job offer, research has shown, and nearly nine in 10 employers use criminal background checks when hiring. Even among those who do find jobs, employees with records generally face significant earning penalties, while those with expunged records typically see their wages spike.

Still, in his formal veto letter, Inslee cited COVID-19 to explain his decision to block HB 2793. He argued that given the health and economic crisis wrought by coronavirus, Washington could not afford to move forward with the bill. Despite the research showing automatic record-clearing boosts economic opportunity for vulnerable people and ultimately saves states money, he insisted, “we must prepare for the effects of the lost revenue that will result from this pandemic.”

“To have Inslee veto our Clean Slate bill was really devastating for all of us who worked so hard and continue to make progress toward the relief that so many individuals need help with,” said Tarra Simmons, director of the Washington-based Civil Survival Project, a criminal justice organization led by formerly incarcerated individuals, and the co-chair of Washington’s Statewide Reentry Council. “Austerity is not going to help us in the economic recession.”

Simmons herself was sentenced to 30 months in prison for theft and drug crimes back in 2011. Six years later, when she graduated from Seattle University Law School, the Washington State Bar Association denied her entry into the bar exam, citing her felony record, but Simmons got the state Supreme Court to affirm her right to take the test. Simmons is now a licensed attorney and is also running for the state House.

The final version of HB 2793 was watered down from what advocates had originally proposed. It would have authorized a pilot program of automatic record-clearing in just one county, as well as a study due in December assessing how to implement the policy statewide, given Washington’s decentralized court system. The total price tag, according to the fiscal note, was $1.2 million over two years.

When the coronavirus hit, advocates pressed Inslee to sign the bill even if he couldn’t authorize the funding. Though it was limited, supporters still saw the legislation as essential to get the ball rolling in the state. Major philanthropic organizations like the W.K. Kellogg Foundation, Arnold Ventures, and the Chan Zuckerberg Initiative have supported automatic expungement efforts, and Simmons said they were confident they’d be able to secure private resources for the study if needed.

“He could have passed the policy without the funding piece, and it would have at least compelled state agencies to come to the table and collaborate with us,” Simmons told the Appeal: Political Report. “We said we can still do the report and we’ll figure it out, the cost, as a coalition.”

Nevertheless, Inslee nixed the legislation in full.

Mike Faulk, the press secretary for Inslee’s office, told the Political Report that the governor believes record-clearing is “an important issue” and “would like to see work done to move this forward when there are resources to allow for the work.” Faulk noted that Inslee vetoed many bills that he endorsed to control the budget and emphasized that the governor supports Clean Slate, “regardless of whether it got his signature this time around.”

Washington’s setback stands in stark contrast to the wave of momentum reformers have seen over the past few years when it comes to automatic record-clearing.

Pennsylvania was the first state to pass a Clean Slate bill in 2018, with polling showing over 80 percent of Pennsylvanians backed the idea. The law has had a tremendous impact in a short amount of time: Since it went into effect in June 2019, more than 34 million cases have already been sealed, including more than 80,000 misdemeanor convictions.

Unlike in Washington State, Pennsylvania has a unified court system—meaning that the data was already consolidated from all 67 counties. This aided Pennsylvania’s swift passage of its bill. “It mostly required some programming to make the concept run, and I think the fact that it wasn’t going to cost much of anything was really key,” explained Sharon Dietrich, the litigation director of the Philadelphia-based Community Legal Services.

Then, in 2019, Utah became the second state to pass a Clean Slate bill. California followed suit in October, though unlike in the prior two states, its reform does not apply retroactively. Only eligible offenses that occur after 2021 will be automatically cleared.

California went further than Pennsylvania and Utah in another way, though. Its law will apply not just to misdemeanors, as in these other states, but to some felony offenses as well.

Michigan is also advancing a Clean Slate bill, which passed the state’s House in November; the Senate may still take it up this year. If that bill passes, Michigan would have the first Clean Slate law to clear prior felony offenses. Lawmakers have also introduced bills this year in California, which may expand on its 2019 reform, and in Connecticut.

Advocates are pressing states to speed up consideration of these measures, rather than use the pandemic as a reason to slow it down. Workers with criminal records tend to be among those first fired from jobs and last hired during economic crises, they stress.

“This kind of policymaking is going to be more important—it’s not something that should be left as a COVID-19 afterthought,” said Rebecca Vallas, senior fellow at the Center for American Progress, where she works on automatic expungement. “It needs to be part and parcel of our economic recovery or else we’ll just further compound the inequities we already have.”

Simmons agrees that discriminating against those with criminal records amid the pandemic puts Americans more at risk. “As the illness continues to spread, we need to beef up our essential workforce,” she said. “Folks with criminal records would be well equipped to step into these delivery and grocery roles.”

The federal government may be paying some attention. In 2019, Representatives Lisa Blunt Rochester, a Delaware Democrat, and Guy Reschenthaler, a Pennsylvania Republican, introduced legislation to automatically seal some people’s criminal records. Vallas says she has also heard of bipartisan interest in offering federal support to states that face greater financial and technological barriers to implementing automatic record-clearing than Pennsylvania did.

Reschenthaler told the Political Report in an email that Clean Slate-like legislation is important to battling “the revolving door to prison.” He added, “As we recover from the COVID-19 outbreak, eliminating barriers to employment will ensure formerly incarcerated individuals can fully participate and contribute to their communities to help us reopen America and reignite our economy.”

So far, the federal government has only made it more difficult for people with records to benefit from its economic stimulus package, though, by restricting access to forgivable business loans.

Free Prison Calls Could Be Coming to Connecticut

Originally published in The Intercept on April 2, 2019.
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CONNECTICUT MAY SOON be the first state in the nation to make calls from prison free for incarcerated people and their families, following on the heels of New York City, which became the first city to do so last year. Decades of research have shown that keeping in touch with loved ones while incarcerated greatly improves an individual’s chance for successful re-entry when they are released and that the financial toll of maintaining contact disproportionately falls on low-income family members.

A hearing for the bill — H.B. No. 6714 — was held in Hartford in late March, and advocates are cautiously optimistic it will be voted out of the state’s House Judiciary Committee next week. The bill was introduced by Rep. Josh Elliott, a progressive elected in 2016 to represent Connecticut’s 88th District, and drafted by Worth Rises, a national nonprofit focused on ending the influence of commercial interests in the criminal justice system.

According to a recent report by Prison Policy Initiative, Connecticut charges more for in-prison phone calls than any other state in the nation aside from Arkansas. A 15-minute call from a Connecticut prison costs $3.65, nearly five times the cost of calls from prisons in neighboring states like Rhode Island and New York (71 cents and 65 cents, respectively). Advocates say the high rates are due to Connecticut poorly negotiating its telecommunications contract with Securus Technologies, the national prison telecommunications corporation it has contracted with since 2012.

In addition to making phone calls free, the bill includes language stipulating that if Connecticut implements video conferencing for prisoners in the future — which it doesn’t currently offer, but other states have slowly begun to — then those communications should be free of charge too. The bill also maintains that Connecticut shall not limit in-person visitation if it makes phone calls and video conferences free. (The Prison Policy Initiative estimates that 74 percent of U.S. correctional facilities have reduced or eliminated in-person visitation since implementing video conferencing.)

A Securus spokesperson noted that their company offers not only a way for families to keep in touch but also “critical security features that prevent victim harassment, violent crime and other criminal activity.” With respect to the jurisdictions considering paying directly using taxpayer funds, the Securus spokesperson said, “we welcome discussions regarding financing models with all the agencies we serve, in order to determine the most effective way to pay for technology that keeps people both connected and safe.”

Karen Martucci, the director of external affairs for the Connecticut Department of Correction, said her agency “is supportive of efforts that increase communication between offenders and their loved ones, which will hopefully help to reduce the rate of recidivism.”

State data shows that Connecticut residents pay roughly $15 million annually for prison phone calls, with the state taking 68 percent as a kickback. A spokesperson for the state’s judicial branch testified at the hearing that losing prison phone call commission fees would result in cutting several important adult probation officer positions, illustrating how the state relies on revenue extracted from incarcerated people and their families.

One Republican legislator, Rep. Craig Fishbein from Wallingford, raised objections at the hearing and suggested that the bill would be too expensive and would seemingly allow for unlimited calls every day. He suggested making calls free on holidays like Christmas and Thanksgiving, instead.

Bianca Tylek, the executive director of Worth Rises, dismissed Fishbein’s proposal and told The Intercept that his comments reveal a fundamental misunderstanding of what advocates aim to achieve with the legislation.

“This bill was not introduced so people can talk on Christmas. It’s so family ties can be fostered, which we know leads to so many improved outcomes for children with incarcerated parents, for people on the inside to lower recidivism, and improving re-entry outcomes on the outside,” she said. “None of that is resolved with a few free days throughout the year.”

THE EXORBITANT COST of prison phone calls exacts a heavy psychic price as well. Some prisoners are able to use their meager prison wages to cover the costs, which leaves them with no savings when they finish their sentence. Many, though, must rely on family members to pick up the tab. Every minute they’re on the phone, they’re aware of the literal cost their incarceration is putting on their loved ones, straining the types of relationships that are key to re-entry.

If the state of Connecticut assumed the costs of prison phone calls, Tylek said, it should revise its contract with Securus or another company to be a flat, fixed rate.

“It would be absolutely inappropriate and imprudent for the state to continue to pay for a contract that assumes the liability of costs on a per-minute basis,” she said. “Think about your state legislature. All elected officials have telephones in their offices, and some provider, maybe it’s Verizon or AT&T — that provider isn’t saying to the state legislator you’ll pay on a per-minute basis. In no place in the country are we doing that except in prisons.”

Tylek also dismissed the idea that this would mean people would have unfettered access to phones, noting prisons still need to establish systems so that the phones can be shared equitably. Tylek suggested that a solution may be limiting phone use to 90 minutes per day (or up to six 15-minute phone calls). “We’ve done surveys across the country and found that, on average, 90-120 minutes is what people are looking for, so we might actually look to codify something like that in the bill,” she said.

New York City passed a law in August 2018 to eliminate the charge for prison phone calls, making it the first city to do so; the change is set to go into effect in May. New York City will assume the costs of paying Securus for the phone services and will forego the $5 million it had annually collected in commission fees.

Aside from Connecticut and New York City, other states and cities are now also considering eliminating phone costs on prisoners and their families, including Massachusetts and San Francisco. In November, Shelby County, Tennessee, announced it would no longer charge juvenile detainees and their families for making phone calls; shortly thereafter, in North Carolina, the Mecklenburg County Sheriff’s Office also agreed to stop charging juveniles in custody at county jails for using phones.

The new legislative traction comes after years of activists raising alarm about the high costs of prison phone calls. In 2000, Martha Wright, a grandmother in Washington, D.C., filed a lawsuit against the private prison where her grandson was living, saying that the costs of calling him were unconscionably steep. The court ruled that Wright’s complaint was an issue for the Federal Communications Commission to handle; she then moved to petition them to intervene. In 2013, the agency finally acted, voting to cap rates for interstate phone calls in jails and prisons. Two years later, the FCC also capped the amount an incarcerated person could be charged for calling someone within their state.

The major prison telecommunication providers — including Securus Technologies, Global Tel Link, and CenturyLink — all challenged the FCC’s authority to regulate the rates, and in 2017, the U.S Court of Appeals for the D.C. Circuit ruled against the FCC. As The Intercept reported at the time, the court decision came amid political turnover at the federal agency, with the individual who voted against the FCC’s 2013 proposal, Ajit Pai, having been recently named commission chair by President Donald Trump. Pai praised the D.C Circuit for agreeing with him that the FCC overstepped its authority.

Last month, the National Consumer Law Center issued a new report detailing consumer abuses wrought by private companies that extract profits from the criminal legal system and highlighted the kickbacks that cash-strapped governments accept in exchange for things like offering exclusive contracts.

Report author Brian Highsmith, who testified in favor of Connecticut’s bill to make prison phone calls free, told The Intercept that it’s important for the public to understand that this is not just a criminal justice issue, but a fiscal policy and consumer protection issue too.

“Candidly, that changes the advocacy strategy,” he said. “One of the reasons we have arrived at this moment, in having created a system of mass incarceration and social control, is because it’s very easy for people to imagine that this stuff doesn’t affect you, and so many of these abusive practices have escaped widespread public awareness.”

While Highsmith thinks there can be a role for the federal government to play, he emphasized that many of these exploitative policies are set at the state and local level, and so will have to be tackled with laws like the ones proposed in Connecticut.

“This all really gets at the intersection of two of the worst trends,” he said. “One is offloading tasks to the private sector, which comes with reduced accountability and transparency, and the other is cost-shifting,” where governments rely on bails, fines, and fees imposed on people who interact with the criminal legal system to cover the costs of policing.