Held to answer

The guy sitting next to me at the Portland City Council meeting kept dozing off, his mouth dropping open, his head falling towards his chest. Then he would jolt awake.

He did this a few times. Finally he gave in, his head sinked, his wire-rim glasses fell to his lap, then to the floor. He snoozed. A tired man, who looked to be about 40, dressed in worn jeans and a loose shirt. A few minutes later, he shook himself awake and saw me glancing at him.

“I hope I can stay awake to speak. I didn’t get to last time,” he said.

“Didn’t get much sleep last night?” I asked.

“I’ve been in Salem on this,” he said.

He pointed to a pin he was wearing: “Yes on 3025 Ban the Box.” 

He wanted to know if I knew what it meant.

“Yes,” I replied. “I’m opposed to it.”

His eyes widened as if he hadn’t encountered someone who might not be on board.

With our voices low so as not to interfere with a public hearing under way on another subject, I told him I knew law-abiding folks – some of them young, recent college graduates – who can’t find good jobs. They are saddled with college debt for degrees that may not be worth much. Why should ex-felons qualify for special preference in the job market? We don’t need another group with a sense of entitlement.

He was quiet for a moment and then said, “I was in prison for 18 years. I got out 10-10-11. I couldn’t find anything for months. … I got on at Sportsmen’s Warehouse. … They gave me a raise my first 90 days. … I was Employee of the Month.”

I nodded my head as if to say, “That’s good.” But I was thinking: Eighteen years?

I learned a long time ago as a newspaper reporter that when you ask someone why they’ve been incarcerated, there’s a good chance you won’t get an honest answer. But I asked him anyway.

He looked down and mumbled. It was hard to understand him – something about children. He spoke more clearly, though, when he added, “I was wrongfully convicted. … I got out 10-10-11. When I got out, I didn’t know how cell phones worked.”

Ah, yes. The easy fallback that many ex-felons use to generate sympathy for what they have suffered. Cell phones and technology. Being left behind while the free world marches on.

Life can be rough.

“My boss gave me the day off so I could testify,” he continued.

While we chatted quietly, three young women sat at the table before the city council and testified in favor of an ordinance that would ban the use of neonicotinoid pesticides. The pesticides have been linked to colony collapse. The young women talked about preserving habitats for honeybees, butterflies and ladybugs.

It’s a good cause. Bees, butterflies and ladybugs are among the tiny workhorses of nature.

“Colony collapse is caused by a lot of reasons,” one young woman said.

Then Mayor Charlie Hales weighed in and, as he often does, pointed out the specialness of Portland. He supported the ordinance banning the pesticide.

“We were early leaders in the debate on climate change…,” he boasted.

As the mayor went on, the man next to me said, “I don’t think I’m going to get to talk.”

But he did. And that’s when I discovered that the guy sitting next to me was actually a woman named Christine Harbacheck. As any HR manager can tell you, people aren’t always what they seem.

Harbacheck told the council what she’d already told me, about the 18 years in prison, the “wrongful conviction,” getting out on 10-10-11, the cell phone, the job at Sportsman’s Warehouse.

“The reason I was wrongfully convicted was related to a sexual offense,” she said. It almost sounded like she was the victim.

“I will be at Sportsman’s Warehouse three years in July. … As long as we have this stigma … you will not have productive people coming back into society…,” Harbacheck said. “You can’t get people to pay taxes and will be losing money by sending them to prison.”

When she finished, a few people in the audience stood and applauded.

“You did good,” a woman told her, as she settled back into the seat next to me.

I asked Harbacheck what prison she’d been in.

Washington Corrections Center for Women, it turned out. When she was free to leave the state, she moved to Portland because it was “more giving,” she said. “A woman with the same background told me about Portland.”

Harbacheck’s kids were 5, 6, and 8 when she went to prison. She hasn’t seen them since. They are adults now. But life has dealt her one lucky break – although she looked to be no more than 40, she just turned 54.

“Gravity has been very kind to me,” she said.

The city council meeting continued, and with the exception of a couple of speakers everybody seemed to agree with Harbacheck. It’s time for all employers to ban the box, they said, time to stop inquiring about criminal histories, to stop penalizing job seekers because they have committed crimes.

Like several other cities, Portland has already banned the box on city job applications. The mayor’s proposed ordinance would require all private employers to fall in line. As listed on the council’s agenda, the ordinance sounds harmless: “Add Code Removing Barriers to Employment.”

It would be more honest to describe it as “Add Code Requiring Employment of Ex-Felons.”

Here’s how Hales’ proposed ordinance in its current form would work: Employers would not be allowed to ask about or investigate a job applicant’s criminal history until after a job offer has been made. At that point, an investigation would be permitted. If the employer found something objectionable in the background check, he could rescind the offer. However, the rejected applicant could file an appeal with the city.

The employer could find himself in front of a city hearings officer where he would have to defend his decision or face a $1,000 fine.

Deputy City Attorney Judy Prosper said private employers could legally rescind a job offer to an ex-felon by satisfying what she called “the nature-time-nature test.” What was the nature of the offense? How much time has lapsed since the offense? What is the nature of the job under consideration?

An example where an employer could legitimately rescind a job offer would be for someone who has been offered a payroll job but turns out have been convicted of embezzlement within a certain number of years. (The city of San Francisco’s “Fair Chance Ordinance” prohibits employers from inquiring into or considering any conviction that is more than seven years old.)

Prosper and City Attorney Tracy Reeve seemed very much in support of Hales’ proposed ordinance. They offered no potential downsides to the city essentially acting as HR managers for private employers. Prosper even appeared to relish the thought of going after some employers.

She envisioned a scenario where “advocates send a group of folks to one employer” who is suspected of not following the procedure and is rejecting ex-felons. The advocates could complain to city officials, who could then demand the employer reveal when he/she inquired into the applicant’s criminal history and whether his/her decision met the nature-time-nature test.

Prosper didn’t precisely say who these advocates might be. I suspect some of them were sitting in the audience at the city council meeting – members of a prisoner’s rights group, the deceptively named Partnership for Safety and Justice (formerly called the Western Prison Project).

One member of this group, who spoke to the city council, inadvertently pointed out an unintended consequence of the proposed ordinance.

Judy Cirillo called the difficulty of ex-felons finding employment “the New Jim Crow,” as if to suggest that all ex-felons are black. It won’t help black applicants in general if employers – of any race or ethnicity – shy away from them for fear of getting locked into a job offer if a background check turns up something.

That’s the least of what’s wrong with this ordinance.

Portland is jumping on the national ban-the-box bandwagon at the same time that there is a national push to “end mass incarceration now.”

Neither The New York Times nor the ACLU nor Attorney General Eric Holder, three of the biggest champions of this cause, can say with certainty what will happen if the prisons are emptied. In states that have large cities, an in-flux of felons is not likely to improve neighborhoods dominated by gangs and drugs.

In areas with high unemployment, where there are more qualified job applicants than jobs, how do you justify giving preference to ex-felons without creating ill will among law-abiding job seekers, employers and their employees?

Deputy City Attorney Prosper insisted that cities like Philadelphia and Durham, N.C., which have banned the box, have not had any negative experiences, “but their rate of hiring people with criminal histories shot up.”

Then she said something that should have set off an alarm bell, but nobody on the council appeared to hear it: It’s not considered ideal to have a workplace where many people working at a certain location are ex-offenders. It’s better that ex-offenders not associate with ex-offenders, Prosper said.

Why? What could possibly go wrong?

While Hales and the city council can easily appreciate the collapse of honeybee colonies, they cannot see the human breakdown all around them.

In Portland bike thieves are doing a booming business, and car thieves are practically offered a free ride – stealing a car is often treated as a “minor crime” and not a felony.

And burglars? In order to land in prison for burglary (another felony, supposedly) you need to get caught and convicted several times. Otherwise, you will receive multiple second chances. (Most burglaries are never solved so the odds favor the burglar.)

Yet here’s Portland looking to create a new violation that the city can crack down on: Employers who refuse to hire ex-felons.

Just as honeybees lose their sense of direction, and their colonies collapse, we are going in the wrong direction.

Only a couple of people at the council meeting spoke against the proposed ordinance, and their criticism sounded tepid. Perhaps they were afraid of being called racist. (Now there’s a crime that can lead to a virtual public stoning.)

Steve McCoid, president of the Oregon Restaurant and Lodging Association, started off with, “We understand the logic of banning the box.”

As he went on, it was clear there is no logic. Imagine hiring hotel employees who will have passkeys to every room where guests keep their personal belongings, but the employer can’t immediately screen applicants for a history of theft or burglary. Or imagine hiring restaurant employees who will be handling customers’ credit cards, but the employer can’t check applicants for a history of fraud until after a job offer has been made.

Marion Haynes of the Portland Business Alliance told the council her group was growing more concerned about the proposed ordinance. In the city’s efforts to help ex-felons, the pendulum has swung so far, she said, that the council is impeding conversations between employers and job applicants.

The mayor didn’t seem moved by McCoy’s or Haynes’ concerns. Earlier in the meeting, Hales referred to the “moving testimony” he has heard from ex-felons since he has proposed the ordinance. By the end of the meeting, he seemed pleased with himself and decided city staff would continue working on the ordinance and bring it back for a vote.

“We have a broadly shared goal in an ordinance that will make a difference. I’m not interested in an ordinance for show. … I’m very interested in making it work … and making it real for people coming out of the criminal justice system and seeing closed door after closed door.”

Back home after the city council meeting, I paid $10 to the Washington State Patrol to access Harbacheck’s criminal history.

In 1992, she was convicted out of Clark County for first-degree rape of a child and felony child molestation.

That was 23 years ago. She is most certainly not the same person she was back then. I wish her well. She has several things in her favor: She was honest and used her true name, making it easier to check her background. Tracking a criminal history is not a simple matter of Googling someone’s name. Even law enforcement personnel can have trouble tracking someone’s criminal history unless they have fingerprints.

Also in Harbacheck’s favor: She found a job through her own efforts, without politicians arm-twisting an employer.

She understandably fudged on why she had been in prison. That does not mean, however, that the rest of us have to play along. Society has a right to object to certain behaviors. Stigmas can be justified. It’s the ex-felons who need to meet our standards. We should not lower ours.

For those employers who want to reach out to ex-felons, go ahead. There are federal tax incentives available to employers who hire ex-felons. Voluntary efforts by employers, whether they’re borne out of desire for a tax break or for personal or political reasons, are a positive motivation. There is nothing positive about forcing employers to act under duress to satisfy somebody else’s politics.

It’s almost like a form of battery.

For the health of our own fragile ecosystem, we don’t need affirmative action for felons.

– Pamela Fitzsimmons

Related:

Making the Wrong History