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D.C. Council member Marion Barry’s record of public service spans five decades, yet many people still remember him for that grainy FBI surveillance video showing him inhaling from a crack-cocaine pipe in the Vista Hotel in 1990. Unlike many ex-offenders, Barry easily returned to work after serving a six-month federal prison sentence for misdemeanor cocaine possession, winning a seat on the Council in 1992 and being elected for his fourth and final term as mayor two years later. Barry, who was re-elected to the Ward 8 Council seat in 2004, says most ex-offenders face discrimination in finding a job because of their criminal records. After fighting racial discrimination as a civil rights activist in the 1960s, Barry is now pushing a bill that would add rehabilitated ex-offenders to the already-expansive list of classes protected from employment discrimination under the D.C. Human Rights Act of 1977. “Everybody in Washington knows that was a sting, an FBI setup,” Barry tells Legal Times about his drug case. “People understood what happened and were sympathetic, and I paid my debt to society. But that’s not true of 99 percent of the other [ex-offenders]. They didn’t have the chances or opportunities I had. I didn’t do this [bill] out of my self-interest but for the interest of others.” Five states ban discrimination against ex-offenders by both public and private employers under certain circumstances. But Kenneth Saunders, director of the D.C. Office of Human Rights, says he doesn’t know of any state that has added ex-offenders as a protected class under human rights law. The need to address the re-entry of ex-offenders is acute in the District and impacts recidivism, public safety, and rates of unemployment and homelessness. Recent studies have found that more than 50 percent of African-American men in the District have a criminal record. Barry says many employers, including the D.C. government, discriminate against ex-offenders, in part because some businesses are “myopic in their thinking.” “The way the American justice system is supposed to work is, you’ve served your time, you’ve paid your debt to society, and that should be it,” he says. “This is a new day in the nation’s capital. We’re not going to have discrimination of any kind. If you do discriminate, you’re going to pay for it.” At an Oct. 26 public hearing before the D.C. Council’s Committee on Government Operations, representatives of government agencies and ex-offender groups testified about the struggle for thousands of ex-offenders returning home to a grim future of limited work opportunities, the threat of homelessness, and the seductive allure of drug abuse and old criminal habits. But some would-be supporters, including the D.C. Public Defender Service, say the bill, which covers just two pages, is so vague and poorly worded that it is unworkable. “If you have a bill on something as delicate as this that is not fully conceptualized and thought through, it can do more harm than good, and the protections that it gives to a class of workers can be illusory at best,” says Judith Conti, executive director of the D.C. Employment Justice Center. It appears those concerns will kill the bill this year at the committee level. Council member Vincent Orange Sr. (D-Ward 5), who chairs the Committee on Government Operations, told Legal Times after the public hearing he had “some unreadiness to go forward on that particular bill,” even though he and four other Council members co-sponsored it. Orange, who as committee chairman can keep the legislation from moving forward, said the bill is “very vague,” and he doesn’t think its shortcomings can be fixed before the Council session ends in December. “We don’t want to just do legislation for the sake of doing legislation,” Orange says. “We don’t want to do anything detrimental to ex-offenders.” Orange says he supports a companion bill from Barry to establish a District office and advisory commission on ex-offender affairs. Fiscal impact reports haven’t been completed for either bill. Keith Perry, Barry’s legislative director, says the human rights bill may still be salvaged this year, or it may be one of Barry’s first pieces of legislation when the Council reconvenes in January with some newly elected members. “It was literally just thrown together in 10 minutes as a placeholder until we could really get the language the way we wanted it,” says Perry, who drafted the legislation. “We have folks who are really in distress. It’s clear, when this population is in distress, the whole community is in distress.” Alphonso Walker, a 45-year-old father of five children and a former crack-cocaine addict who has been in and out of prison for drug convictions, sounds desperate when he talks about his efforts to survive without a job in the District. The words tumble out of his mouth in rapid-fire fashion, piling on top of each other, quickly shifting through emotions of anger, sadness, and fear. After completing a 40-month federal prison sentence for felony marijuana distribution, Walker spent four months last year in a D.C. halfway house. With no home of his own, Walker now stays with relatives and was sleeping at a cousin’s apartment in Southeast Washington last week. An 11th-grade dropout with few job skills, Walker says he is honest on job applications about his past and keeps getting turned down for food service jobs because of his criminal record. “You get so depressed you can’t get a job,” he says. “That’s what causes homelessness. That’s what causes you to go back to using drugs.” Frustrated and angry, Walker began drinking and smoking crack cocaine again last year while on parole. He says he has been clean for nine months since leaving a 90-day treatment program mandated after he failed a drug test required as a condition of his parole. “I have to fight this thing and face it every day. I know me. I’m going to set up shop [selling drugs]. That’s my thing, but I’m trying to do the right thing,” he says. “If you don’t have patience, man, you’ll be back in prison.” Walker’s story is repeated thousands of times, with subtle variations, in the District each year. The U.S. Bureau of Prisons releases approximately 2,500 former inmates back to the District annually. Some ex-offenders return to family ties that have been broken by lengthy stays in federal prisons scattered across the country or to crowded conditions in District homeless shelters. Many are dropouts from the District’s failing public education system and have limited job skills. Employers often don’t want to take a chance hiring an ex-offender, or they may feel constrained by liability concerns, insurance coverage, government restrictions, or occupational licensing regulations. “I can understand why a bank won’t hire a bank robber, but if you serve your time and otherwise have some skills to offer, you should not be discriminated against,” Barry says. “If you come out of jail or off of parole or probation, what are you going to do? There are three ways you get money. You inherit it, but most of these guys didn’t inherit nothing but trouble; you earn it legitimately; or you take it. Since they can’t earn it legitimately, they turn to taking it.” A �VERY VAGUE’ BILL Called the “Human Rights for Ex-Offenders Amendment Act,” Barry’s bill would prohibit employment discrimination against ex-offenders who would be considered rehabilitated under three categories. The ex-offender would need a pardon, expungement of a conviction, or certification by a D.C. Superior Court judge or a statement by a probation or parole official that the ex-offender “has achieved a degree of rehabilitation that would indicate that the applicant engaging in the proposed employment would not be incompatible with the welfare of society.” The certification process does not currently exist, however, and the bill contains no details about creating the process. The bill’s introduction states employment discrimination would be prohibited for ex-offenders if “the criminal record is unrelated to the position sought or applied for,” but the body of the bill neither contains this exception nor explains how an employer should decide if a job is related to an applicant’s criminal record. “I’m not sure the bill is very coherent,” says Philip Fornaci, director of the D.C. Prisoners’ Project at the Washington Lawyers’ Committee for Civil Rights & Urban Affairs. “I think a lot of people who would support it are having trouble with it, because it doesn’t really make sense.” The D.C. Chamber of Commerce, which represents about 2,000 members, has some concerns about creating a human rights class for ex-offenders, but the chamber has not lobbied for or against the bill, says spokesman Chris Knudson. “We support efforts to find ways to put the ex-offender population back into society in a productive fashion,” he says. “To make it a civil right to protect their status may infringe on the rights of businesses. We want to make sure individuals, as well as the companies that are hiring them, are protected.” Employment decisions based on criminal records have already been considered racial discrimination in some cases under Title VII of the U.S. Civil Rights Act of 1964. The U.S. Equal Employment Opportunity Commission and some courts have ruled the use of criminal records to deny jobs can be racial discrimination if it has a disparate impact on blacks because they are arrested and convicted at a disproportionate level. Blacks, who make up 12 percent of the U.S. population, account for 27 percent of all arrests and 44 percent of felony convictions, according to a 2004 FBI report. An employer must show a “business necessity” for using the criminal records if a disparate impact is found, but such cases are rarely filed in the District. Most ex-offenders, and even many civil rights attorneys, don’t know Title VII can be used to fight employment discrimination against ex-offenders, says Conti of the D.C. Employment Justice Center. Jamie Fellner, U.S. program director of Human Rights Watch, says she supports adding ex-offenders as a protected civil rights class, but Human Rights Watch has not endorsed that position because “it hasn’t come up.” “As a practical matter, many people today with criminal records face the same kind of off-the-cuff discrimination that people have faced because of race or sex,” she says. “It shadows your life. It’s like wearing the brand A on your chest, the scarlet letter.” Council member Phil Mendelson (D-At Large) is pushing another bill that would seal criminal records under certain circumstances for some nonviolent misdemeanors or a felony charge of failure to appear. That bill is scheduled for a vote Oct. 30 by the Committee on the Judiciary, and Mendelson says he expects it will be approved by the full Council before the end of the session. GRADUATING FROM THE STREETS In a small classroom at the Anacostia Mentoring & Employment Network, five students, most of them ex-offenders, practice mock interviews. AMEN Associate Director Chester Hart, a former bank robber who spent 26 years in prison, grills the students on their performances, chiding one student for a “ghetto handshake” and another for forgetting some details of his work history. A program of Southeast Ministry, AMEN pays $20 a week to students to attend the three-week job-readiness classes, provides dress clothes for interviews, and helps with job placement. Last fiscal year, 115 of 189 students graduated, with 82 percent of the graduates finding jobs, job training, or further education. Andre Jackson, a young ex-offender, says the classes are building his confidence after he was denied several jobs because of his criminal record. “You get hope,” he says. “Out there, there ain’t nothing on the streets.”
Brendan Smith can be contacted at [email protected].

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