TREATING THE SYMPTOMS AND THE DISEASE
Every year in L.A. County, 45,600 people are released on parole.
A survey revealed that over 40 percent of L.A. employers would not hire a person with a criminal record.
When I looked at mass incarceration and all 45,000 barriers to re-entry, the way I saw it was that the law was a major part of the problem. I also saw that the law was difficult to change. But if some laws are part of the problem, can we make other laws part of the solution?
Saúl Sarabia and I got to talking. It was 2007, and he was now the director of UCLA School of Law’s Critical Race Studies program, the first of its kind in the country. His students studied racial oppression and the law, and delved into groundbreaking projects, such as filing lawsuits in New Orleans after Hurricane Katrina to prevent the city from bulldozing homes without notice.
Eager to return his attention to issues of incarceration and re-entry, Saúl began organizing campus panels on structural racism and speaking about the legal needs of people who’d been behind bars. But the response outside of the Critical Race Studies program shocked him. “It was as if I was talking about things you don’t mention in polite company,” he described. Which made him all the more convinced we really needed to be talking about such things.
Together, Saúl and I applied for a grant from the UCLA Center for Community Partnerships, with the vision of coupling law students and A New Way of Life to create a prisoner re-entry initiative. I had never set foot in a university classroom, but after we received the two-year grant, there I stood, side by side with leading civil rights law professors, talking to law students who were motivated to learn and eager to make a difference.
The grant coincided with the first time the Ban the Box initiative was going before the L.A. County Board of Supervisors for a vote, and the students got behind it full force. It was exhilarating to listen and watch as they held focus groups with formerly incarcerated people, discussed employment rights law in a community meeting, and created fact sheets to illustrate how requiring a job applicant to automatically indicate past convictions had a disproportionate negative effect on black and Latino men. Until I met these students, I doubted that the weight of the law could be tilted in our favor, a notion that, sadly, had been reinforced by most everything I’d seen and lived. But the students’ passion swept me up, and I dared get optimistic. When Ban the Box was rejected by the Board of Supervisors, my shock was mirrored, even amplified, by the students. Young and idealistic, wanting so badly to believe the law was just, many were devastated.
To Saúl, this was a critical and teachable moment: How can citizens actually affect change? How does a poor person or someone with a criminal record have a voice and a presence in a democracy? From discussions of our disappointment and defeat, a new idea materialized: though we couldn’t—yet—ban the box, what other barriers to employment could we address?
The students began researching existing policy for expunging misdemeanors and crimes that didn’t culminate in incarceration. They also learned that certain job licenses could be obtained if a judge was petitioned to grant a Certificate of Rehabilitation, showing someone had been law-abiding for seven consecutive years. What emerged was the idea of a free legal clinic to assist the community in petitioning for expungements and Certificates of Rehabilitation.
But this idea didn’t excite me. The public defender’s office already offered these services. Sure, we’d be helping by bringing assistance directly into the community, but it was a one-person-at-a-time approach that tended to the symptoms but ignored the disease. To me, a clinic wouldn’t get us any closer to preventing why all this was going on in the first place.
“What else can we do,” Saúl asked his class, “to get at some of the core issues?” We knew that job discrimination and negligent hiring practices were rampant. We knew employers were unaware there could be incentives for hiring people with records. What if, Saúl and the students posed, we could screen people who came into the legal clinic? By surveying this target base, we could uncover large-impact issues, such as discrimination, that could be litigated—and this was where we could make seismic moves. Saúl then added, “Susan, we can also use the clinic to recruit for All of Us or None.” Now I was excited.
We planned two pilot legal re-entry clinics to be held in Phoenix Hall in Watts. Volunteering with Saúl to supervise the students were attorneys from Homeboy Industries, an L.A.-based program providing classes and employment to people with criminal pasts; Neighborhood Legal Services, one of California’s largest public interest law offices, which offered free legal services countywide; and a supervising paralegal from the public defender’s office.
Amazingly, when the doors of the first clinic opened, clients were already waiting. A steady stream continued throughout the day, numbers we hadn’t anticipated. We learned that, even though similar city resources existed, they were mostly self-help—Here’s the form, good luck! With our clinic, to walk in and be able to talk, for free, with an attorney, that was a big deal—especially since most of the people showing up had only ever spoken with a lawyer when they were in orange and cuffed.
After our hugely successful launch, Saúl gathered the students. “The legacy of our grant was supposed to be Ban the Box,” he said. “But when that didn’t happen, it made us think differently and deeper to make law an agent of change, not an agent of oppression.” Then he turned to me. “This re-entry clinic is going to long outlast the grant.”
At our second legal re-entry clinic, students began to survey the clients, asking things such as Where have you applied for a job? Did you experience any discrimination? This approach made some of the other volunteer lawyers uneasy. Nervously, someone said to Saúl, “Your students’ questions are suggesting to people that they have rights under federal discrimination law.”
Through the clinic, a picture began to form of the attitudes and hiring practices of South L.A. employers. In response, we created an Employment Rights Job Fair to put employers face-to-face with people who wanted to be employed. It was our own way of banning the box. To watch people showing up flat-out kicked the myth that those with criminal histories or those on welfare didn’t want to work: people were lining up around the block to find work.
The students were deeply impacted by all this, and some went on to careers in public interest or civil rights law. One third-year student, Joshua Kim, was so affected he wrote a paper about areas where the current model of law didn’t address discrimination. It was sometimes over my head, but Josh and Saúl were often in heated discussion. How can you have Title VII of the Civil Rights Act and still have an increase of racial oppression? How can we create the language for re-entry law? How can legal strategies support social movement building?
Josh, a hippie-ish guy with long hair wrapped in a ponytail, was born in South Korea and raised in California. He had planned to become a public defender but, after the grant ended, he asked if he could temporarily stay on as an unpaid intern to get the re-entry clinic running on a monthly basis. Here was a young man with opportunities awaiting him, but if he wanted to stay on, I was thrilled to have him. “There are needs here,” he said. “And I want to be where the needs are.”
Josh grew deeply invested in the clinic. This was the forefront, he believed, of a burgeoning movement: creating re-entry law. He saw, in the hazy distance, an entire legal area devoted to the needs of people getting out of prison.
As I got to know Josh, he opened up about his past. In his first year of law school, he started using crystal meth. Addiction led him to fail classes, and eventually he was kicked out of UCLA. “I knew how fortunate I was to be able to return home to loving parents, and to be given the time to recover,” he told me. “Which meant taking a good, hard look at my life and realizing who I’d become and how I got there.” He wanted to reapply to law school, but he was detoxing, and that clouded his focus and memory; he couldn’t read a page, let alone a law book. “My family was patient,” he said. “And I was so grateful that I didn’t have to worry about where my next meal was coming from, or how to cover the rent.” Eventually, he reapplied and was accepted back to UCLA.
As Josh told me his story, I began to realize what was fueling his extreme passion and dedication—and why he’d offered to work for free. He’d had run-ins with law enforcement, but was never incarcerated, never even arrested. He’d been given a pass, and he understood that other people didn’t get passes.
Josh had been volunteering for six months when he came to tell me he’d passed the bar exam and needed to look for a job. It was 2008, the first wave of the recession, and I couldn’t afford an additional salary. But I didn’t want to lose Josh and what he was doing in the legal clinic. I gave him my salary.
I set up a desk for Josh across from mine. Here he was, stepping out of UCLA Law and into a garage.
It didn’t take long before potential cases of discrimination arose in the monthly legal clinic, some of which Josh filed with the U.S. Equal Employment Opportunity Commission (EEOC). What continued to pop up as a major issue was licensure. Josh was seeing that most jobs that paid a living wage—such as security guard, nurse’s assistant, commercial truck driver—required a license, but licensing required a background check. When people were denied licensing because of their records, they were all but relegated to earn the minimum wage for the rest of their lives.
Josh grew increasingly troubled by these commercial background checks. Under California law, there was the Seven Year Rule—though it was rarely enforced—where, after seven years, a crime that either hadn’t resulted in a conviction or was pardoned should not show up on a background check. But Josh noted instance after instance where this wasn’t happening in compliance with the law. Because Josh wasn’t a litigator and we had limited resources, he referred these cases to private firms. But the private firms rarely ended up pursuing the cases, making it clear that re-entry law and this demographic of people weren’t a priority for most attorneys.
Stemming from his own frustration, Josh partnered with a former classmate from law school who was a litigator and together they took on the cases he found through the clinic—and began making small recoveries. Josh spent countless hours piecing together all the laws that could affect formerly incarcerated people. He uncovered laws that had fallen into obscurity. The more he learned, the more convinced Josh became of the potential for impact in this area of the law—which he was helping to pioneer.
Josh came to me one day with the case of a client. Her record had been expunged through the clinic, but she showed up again saying she’d been denied a job because her background check didn’t reflect the expungement, her entire record was still there. Josh tracked where she went next: she applied for another job and the background check was run through the same company, IntelliCorp, that had provided her previous background check. Again, it showed her expunged record.
IntelliCorp Records Inc., a large Ohio-based company, advertised nationwide about its instant background checks. The problem with the instant background check was that it didn’t allow for the time-consuming procedure of checking with the courts for any updated records. This was why recently expunged records were still showing up even though, according to the law, none should have. Since the law wasn’t being enforced, instant background checks were being conducted by companies all across the country.
Why was a practice that violated the law allowed to flourish right out in the open? Because it was extremely lucrative, and because the people most affected belonged to a segment of the population with little voice and no recourse.
“We found our named plaintiff,” Josh said to me, and shared the details of the person he’d been tracking: a black woman in her thirties who was pursuing her master’s degree in social work and had been seeking employment to fulfill her mandatory internship credits. When the results from the background checks shut her out of jobs, it also threatened her ability to graduate.
“IntelliCorp is far from the only company doing instant background checks,” Josh said. “But they’re the one we’re going after. We only need to make an example of one for all the others to comply.” Then he took a breath. “But it’s going to take a while.”
To keep A New Way of Life afloat, I donated my savings; it wasn’t a loan, it was a gift. The problem was, I was overextended. Two years earlier, in 2006, when real estate was booming, I bought a duplex in South L.A. for A New Way of Life’s longer-term residents who had gotten their lives together but still were unable to secure their own housing. But now, with the economy in the toilet, A New Way of Life was feeling it severely. For the women, jobs that were always tough to come by disappeared entirely. Donations that we relied upon had dried up. At first, I tried to remain optimistic, but as the months went on, it became clear this wasn’t a dark cloud that would be lifting anytime soon. One morning, I couldn’t bring myself to get out of bed. I had no salary and no savings, and the day before we’d learned that one of the women had lost her child to the system. This wasn’t the first time a woman’s children had been lost, and it wouldn’t be the last, but each time it happened, I felt as if I were losing K.K. all over again. I was emotionally and physically spent. Everything looked bleak, and I just couldn’t see how I was going to push on. Dragging myself up, I decided to do something different. I got in the car and went to the car wash, something I rarely did, especially when money was tight. As I sat in the car wash, I flipped through the day’s mail, coming across a letter from Vinny Green, a name I didn’t know.
“I am the principal at the Wilshire Boulevard Temple religious school,” she wrote. “I teach the Jewish concept of Tikkun Olam, that one person can change the world through acts of loving kindness. I learned about you after you were honored as a Phenomenal Woman at Cal State Northridge. When I told my class about you, they asked if we could send tzedakah to your organization. Tzedakah is a Hebrew word meaning justice or righteousness. One of the highest forms of tzedakah is an anonymous donation, where lives are changed without need of credit or anything in return. Our donation is modest, collected from change brought in by the students over the year, but we hope this can help one of the women in your organization to pursue her education. As an educator, I stress the importance of education in changing someone’s life. Please let her know we are behind her with our support. In turn, when this woman earns her degree, perhaps she can help another person.”
Enclosed was a check for $900. I sat there in my car, the water flowing down the windows, and tears flowing out of my eyes. How could I be in a place where I wanted to give up, when these children I didn’t even know wanted to support our cause? Here was this teacher, imparting to young people how important it was to look out for others, to take responsibility for your actions, to act with loving kindness. These weren’t the messages I heard growing up. I folded the letter for safekeeping. Sometimes in the darkest moments, the dawn comes, and those kids were my dawn.
Josh worked around the clock to bring about the first nationwide class-action suit based on instant background checks. I moved us out of the garage and into office space, but A New Way of Life could barely afford it, and it showed. The office was stifling, and if we ran too many fans the power cut off; worse, the plumbing was always stopping up. I felt like a sweatshop boss.
After the class-action suit became known, large law firms outside of California filed similar cases. Instead of fighting to keep them out, Josh agreed to join forces with them. Ultimately, there were six law firms and twelve attorneys attached. As far as I could tell, none of those fancy firms put in as much work as Josh, even though they had entire staffs at their disposal, even though their hourly billable rates were double, nearly triple, what Josh billed. To me, those big firms were mainly out for the dollar, while Josh toiled away in hopes of restoring people’s rights and removing systemic barriers. I lost count of how many mornings I came in to see that Josh had fallen asleep at his desk. For two and a half years, he litigated the case.
In 2014, a settlement was approved for $18.6 million, and background check companies were mandated to accurately report up-todate background records. A New Way of Life received about $400,000 of the settlement money. The people who were violated received a structured settlement of $300 each—not a lot, but far more than the paltry sums plaintiffs typically receive from class-action suits. The majority of attorneys’ fees went to the white-shoe law firms, though none of this would have existed without Josh. Even in the law profession, there was a class system, rich versus poor, corporate versus nonprofit. Even this was about power.
Still, I reveled in our victory, and I moved us out of the sweatshop and into new office space with reliable plumbing, heat, and air conditioning.
But Josh was having a tough time feeling satisfied with the outcome. “The big settlement number tends to obscure the relative insignificance of this win,” he said. “We pushed the law as far as we could, but was it enough to make a real difference?” He estimated that it would only cost companies a couple dollars more per background check to comply with the law. “If the cost of background checks had gone up significantly,” he said, “companies would start to think twice about requiring background checks for every single job, especially positions where a mistake someone made in the past would have no impact on their ability to successfully be employed.”
In a way, Josh reminded me of myself. Surmounting a hurdle only seemed to provide a clearer view of how much further we had to go. Still, I was so proud of Josh. And his work put us on the map.
Never had there been any notion that a legal department would come out of A New Way of Life, but we continued to expand. Had anyone told me at the start that I’d go on to have six staff lawyers, I’d have laughed them right out the door.