STAND UP

Stephen Johnsongrove of the Ohio Justice and Policy Center


by David Higgins
Jan 2009

 

Well, I guess the first question is, how did you wind up with this program? What brought you here?

Part of what brought me to Cincinnati was this job.


So you're not originally from Cincinnati?

No. No, I moved here partly because of this job. I had a background in public interest law, I had been working with homeless people in Philadelphia doing outreach legal clinics in homeless shelters and soup kitchens, and then I did some other things in between, and wasn't sure if I wanted to continue being a lawyer, but decided to check it out again, and discovered this office.

I had always been very interested in criminal justice issues and sort of the halo that the criminal justice system creates around peoples’ lives – not the halo of goodness, but the shadow, I guess, of difficulty. This is something I had been interested in long before I went to law school. I had worked in some low-income neighborhoods in Philadelphia, and I saw how individuals’ relationships with the courts and the police were filled with animosity and distrust. It was very destructive, and so I was excited to have this opportunity to get involved with prisoners’ rights issues as well as re-entry issues – people coming out of prison and having to deal with the aftereffects of criminal conviction.


So clearly you have a long history with this work. What spurred this interest? Can you identify something either in your background or value system that influenced you?

Oh, yes, sure. Going way back, I have a Christian faith, and that is a large part of it. That Christian faith was largely informed by urban ministry. I went and worked in Philadelphia – before the homeless advocacy project that I mentioned. I worked at churches doing urban youth work, doing a variety of housing development: gutting houses and working on stuff like that, and I was guided by a certain man named Bart Campolo. He's a real national leader in the Christian world. He actually lives, oddly enough, in Cincinnati now, in Walnut Hills, but he had lived in Philadelphia for a long time. His father, Tony Campolo, is really famous, but Bart also is a pretty well-respected national leader. He had this fantastic program of putting young people together in teams and coaching them – taking young people who might have had no experience in urban living and introducing them to urban ministry in respectful and positive ways that allowed people to connect their faith to action.

So, that is where my faith got formed and directed, on the train of social justice, when I was in college doing some of this work. The trajectory from that was college, and then I did a whole year of that kind of urban work – ministry work – and then I went to law school for the purpose of being able to take law to places where people are disadvantaged, and who don't have a voice speaking for them.


So, now that you're here, at the Ohio Justice and Policy Center, what are some things you are keeping a close eye on, in terms of inmate re-entry?


The things we care about the most are the legal barriers to anything: legal barriers to employment; legal barriers relating to your family; legal barriers to education; and things that block you specifically because you have a criminal record. They are often referred to as collateral sanctions, or collateral consequences-the legal side effects of getting a criminal conviction.

When someone is sentenced, he is told that he will spend this number of years in prison, or this much time on parole, or will have to pay a fine of this amount, but isn’t told that his child support will go through the roof, or that he won't be able to get a job in this field, because he can't get licensed in this field or that field. There is a huge array of legal barriers that people face, and my mission is to identify those barriers and figure out ways to fix them, either through litigation – suing someone to get the law overturned as unconstitutional – or by advocacy efforts to convince the powers-that-be to change the law.


That dovetails into a question I have about House Bill 130 in the Ohio General Assembly. What can you tell me about that bill?

Well, it's a big bill, with a lot of pieces to it. I hope it gets passed. Some of the things include just some administrative changes to the way the Ohio Department of Rehabilitation and Corrections (ODRC) operates. Some more interesting things is that it allows for early release for really sick or elderly prisoners, which makes sense. They aren't going to be doing anything anymore, even if they are on a life sentence. They need to be in a nursing home and not on the state's watch. It is much more expensive to take care of someone who is ill in a prison than in a conventional nursing home. So that would be just a common sense thing to do.

It also will change some aspects of the Department of Youth Services (DYS), and will make sure that the youth are not unnecessarily incarcerated too long, and that they are treated fairly and gently in the Youth Services facility, rather than harshly. Right now, DYS operates a mini-prison, rather than a rehabilitation-oriented facility.

One of the other significant things that it does is it mandates those collateral sanctions that I mentioned, which slowly accrue over the years, due to various agencies and legislators getting laws passed one-by-one to limit various licenses that the state can grant to individuals with criminal records. This has occurred over such a long period of time, and in such a number of different arenas that no one has really paid attention to the huge body of law that has been created.

This monster is so incredibly burdensome and doesn't really make sense. For example, you could never be a game warden, but you could potentially work in a nursing facility if you jump through a certain number of hoops, and provided that a certain number of years have passed since your conviction. So, certain legal barriers have a standard for rehabilitation, or time periods, after which a former inmate can gain employment. However, other barriers are much more permanent, and don't make sense. They're incommensurate.

I bring this back to House Bill 130 because House Bill 130 mandates that each time a new regulation is passed, there must be documentation as to why those particular criminal offenses are relevant to that particular job. It doesn't say that an employer can't deny a job to someone, but it does place an extra responsibility on the governing body to not just pass laws and pile them up on top of one another.


This sounds like an incredibly ground-breaking bill.

And very necessary. Critical. Another good part of House Bill 130 is that it creates a re-entry council, which basically consists of the heads of nearly all the state agencies, from the Ohio Department of Rehabilitation and Corrections to the Medical Board, the Barber Board, and the State Cosmetology Board. All of these different boards have to send somebody to be on this one coalition to systematize all the pre-existing collateral sanctions.

In 2005, the University of Toledo Law School published a great article that tried to catalog the Ohio Revised Code and the Ohio Administrative Code – to comb out all the different collateral sanctions that we've been discussing. They found 404 of those sanctions. That has changed dramatically, and it is continually evolving. So, this re-entry council will clean that up.

Actually, our office has already begun that work for them, because we are passionate about this, and we also realize that no one, not even the best criminal defense attorneys in town, much less the underpaid and overworked public defenders, are advising their clients very well as to what they are getting themselves into over the long haul when they plead guilty to something. Whether they will lose their public housing, or whether they are from a foreign country, whether they are risking immigration status, or their ability to get federal student loans in the future. This is just a huge array of things; it’s almost impossible to catalog all of this, so our office is trying to do this for Ohio, but we are so connected to some national efforts to do this in every state and at the federal level – to systematize and catalog all the different, civil extraneous consequences of pleading guilty to something.


You mention all those boards. So, there is something of an interdisciplinary approach to all this. How recent is that approach-is it fairly new?

Yes. Nothing else like this is happening now. To my knowledge, there aren't too many states doing that, that is holding the feet of these legislative bodies to the fire, and holding them responsible, and remind them that they all have to be out in the light of day about what they are doing, and not just think that each board is off in their own little silo, and can thus create their own laws. All these different groups need to recognize the huge, life-shattering effects that they have on people, especially on people from low-income neighborhoods throughout Ohio. Often, people with criminal records are concentrated in low-income neighborhoods which create a further drag on the economy in those areas.


Granted that the Ohio Justice and Policy Center can only do so much. But, assuming that House Bill 130 passes, do you see other states trying to reform their particular laws concerning prisoner reentry?


Yes, definitely, I do see that happening. The National Institute of Justice, which is an arm of the Federal Attorney General's Office, has put out a funding request to do this national catalog review, in very excruciating detail, of every state. I think that stands to shine a very bright light on this.

The problem is that advocates on the street, such as little store-front ministries, or even larger social service agencies that are reaching out to people with criminal records are saying that there is a big problem, but nobody has said it clearly enough, or with enough convincing data behind them to move the powers that be. So, it ends up devolving into a conservative “lock 'em up” law and order versus the liberal “hug a thug” approach. So, when the debate is framed in that way, it always goes badly, and the people that want to see reform take place always lose. But, it can be framed with real research, and with data concerning the economic effects of these collateral consequences, and the economic effects of massive incarceration, and how that practice doesn't improve public safety or our economy. It actually is a drag on all those things. That is where the conversation changes and becomes one about intelligence-based progressive reform.


How does the political discourse change then? I think of the Willy Horton ad that was used twenty years ago, and with that in mind, it seems as though it might be pretty difficult to move away from the binary in which this debate – and it certainly isn't the only one – exists.

Well, as I said, I see that as my mission, as my whole M.O. here at the Ohio Justice and Policy Center. We're a non-partisan group that promotes evidence-based reform. And massive incarceration, especially with the amount of racial disparity that is involved, is not working. It is not making us safer. It is wasting our dollars; it is damaging our society.

There are certainly people who deserve to be locked up, who wouldn't function well, who need to be punished. I'm not against punishing people for doing harmful things to our communities. But, there has to be a mindset concerning the majority of the people that are incarcerated which asks, “How can we get this person back into our community?” They may have harmed their community, but there has to be a mindset that connects people with their community. If we don't have that mindset, and just have a holier-than-thou, self-righteous, punish-punish-punish mindset, then we create pariahs who will in turn commit new crimes.

If you re-integrate a citizen, then you stop new crimes from taking place. That is being tough on crime. If you are just tough on the criminal, then you end up destroying that person. But, if you are tough on crime, then you have to reform the criminal, and see them as something other than a criminal. That is one way the conversation has to change.

Some other states, for example, are leading the way in things that Ohio hasn't done, in terms of doing much more rigorous analyses of alternatives to incarceration. The state of Washington has an incredible resource on the web where it went through and measured something like 30 different programs that it had, such as cognitive behavioral therapy, substance abuse treatment, anger management, and the like – used as alternatives to prison. The state of Washington measured the costs of those programs per person, and it measured the long-term recidivism of those clients that went through those programs, versus people who went through the prison system for the same convictions. Officials laid this out for the legislature, and showed how much money could be saved and the reduction in recidivism that stood to take place when defendants took part in these programs, rather than prison.

The state did this for several different programs, not all of which were applicable to each kind of crime. But, the state used a very sophisticated statistical analysis and showed that these programs aren't some “pie in the sky” non-profit programs run by well-meaning liberals, but that they are cost effective and public safety effective programs. The state of Pennsylvania just realized that its prison system is maxed out, and that the state is out of money, so Pennsylvania has decided to do the same thing and go through all the available programs, measure their effectiveness, certify certain programs as alternatives to incarceration, and allow for judges to put people in those programs, rather than in prison. Kentucky is going to do something similar as well, and that is what needs happen in Ohio.

Our prison system is way beyond capacity. It is at 50,000 people, and is only meant to handle 38,000. It really is an ongoing disaster.


Yes, you mention “ongoing.” What exactly is going on with Queensgate Jail in Cincinnati?

That is all in flux, and has to do with the county budget, which is strapped because of the economy. But it is a great example, though, that this is an opportunity. The profligate, extravagant, “lock 'em up” mentality played well in American politics for a while, and our economy allowed a county to spend that kind of money. We can't spend that kind of money now. We don't have the money to do it, and this reality is coming down to the level of public safety. We have to be careful with the money we spend on public safety, and incarceration is an expensive and ineffective way to spend that money.

So, Queensgate may have to close. That was the impetus several years ago when the county commissioners tried to pass a tax hike to fund a new jail and some re-entry programming. That specific tax hike failed, and Queensgate is, according to one politician I've talked to, our version of the bridge in Minnesota that collapsed. It is dangerous, it is not safe, and it isn't meant to be a jail. It needs to be closed because it is ineffective and dangerous. If it falls, we are talking massive, massive lawsuits, which would be much more expensive for the county.

[Editor’s Note: Queensgate Jail was officially closed by Hamilton County in December, 2008.]


So, politically speaking, we're at a crossroads?

Yes, and I'm excited because there is great potential for people who want to see reform happen, and talk about it in the realm of financial and economic cost effectiveness, and public safety effectiveness, and leave behind the whole “soft on crime vs. hard on crime” discussion. Because, that sort of polarity is useless, and I don't want to ever get into that conversation with anybody. It just isn't useful to anybody. But, to the extent that Democrats and Republicans – and anybody else – want to sit down and talk about what is going to be cost effective, and what will make our communities safer, then I'm there for that conversation. I think that is how we're going to move ahead.


Since a lot of this relates to politics, what is happening on the national level, say in Washington, D.C., that is helping this move along?

Well, it was then-Senator Barack Obama who introduced an act which was ultimately passed, the Second Chance Act. It became a federal law that provided funding to states to increase re-entry programming, to state department of corrections, like our prison systems, to increase their ability to do re-entry type programming. That's great. It isn't a huge amount of money, but it is something. It will mostly be model pilot projects that are there as examples, so other states can copy them. Although the law was passed, it hasn't been funded as of yet, and since we seem to be throwing money left and right at the banks, I'm not sure if there will be any money left to fund that bill. We'll see. So, that's one thing I'm going to be watching.

Another thing is this research that the Attorney General is highlighting to create a national, state-wide resource of each and every collateral consequence. That's huge, I think. The problem is that in every state and on the federal level this has been in the dark, because judges don't know it, prosecutors don't know it, defense attorneys don't know it, clients don't know it. No one knows what they are getting into when they plead guilty to a crime.

For so long the company line in every courthouse was, “Well, those are civil consequence, and we don't need to talk to our clients about those.” But, as we've been through decades of massive incarceration, and recognize the aftereffects of that incarceration, no one with a strait face can deny that is having a huge effect, and not recognize that we need to make some changes.


I have to ask as a historian, what are the lessons that you have learned from history which have guided you as you've worked on this?

Well, the reform that I know of from history has been the civil rights type reform, where there have been marches-that needs to happen now. It's difficult with people with criminal records. That is a hard group to galvanize into political action. If you are, let's say, identifying people as African-American, and you're starting a civil rights movement, you can say that for too long, being a person of color has carried a negative connotation, but now we're reclaiming our pride, and saying that we are proud to be African-American. But, nobody that has a criminal record is proud to say he or she has a criminal record, so there is a difficulty there, and also to some extent because people can say that someone chose that identity, as opposed to choosing to be blind, or your skin color.

The other difference is that, with things such as the Internet and other pieces of technology, this conversation that I mentioned earlier, about basing reform on evidence based data, is possible on an entirely new level. There certainly have been research and reports as long as there have been legislatures, but the fine-tuned, and convincing nature that data brings to this conversation nowadays is pretty extensive.


You talk about uniting the people with these backgrounds, as well as the root causes of crime. Are you, either here at Ohio Justice and Policy Center, or elsewhere, aware of any efforts that are trying to root out the systemic causes of crime? It seems that, considering what you have mentioned, it might be good to take such an approach.

Well, the systemic nature of crime is something that no one has ever been able to solve. How much is based on society, or the individual, or their upbringing. As an example of how far ranging this can go, the University of Cincinnati did a study that showed that childhood exposure to lead had a very strong correlation to long-range violent criminality in people. There was a very strong statistical relation there. Our office isn't going to be involved with lead poisoning, of course, but those are the kinds of roots that we are talking about when we are talking about criminality.

Poverty is an issue, and cultural norms that people are raised in, that it's okay to hate the police and be a criminal. You're never going to solve crime and make it go away, but it can be reduced.

One of the biggest sources of crime right now is recidivism. The Department of Justice says that two thirds of prisoners return to prison after three years. That doesn't measure how many of those released prisoners went back to local county jails, and were convicted of something and ending up being put on probation. So you're talking about a huge amount of people that exist in this revolving door.

We have a huge swath of people going round and round and round as we've introduced mandatory minimums for drug crimes and keep people locked up for longer periods of time, we're just doing more and more damage and and doing nothing but increasing this pool of people that live their lives  in and out of prison. We need to stop that revolving door, treat their drug offense, or whatever sort of mental health issues they have, deal with them in some other way so that we don't simply have a mill that creates more crime and does more damage.


Clearly new methods of treatment are needed, but given the economic problems that we've discussed, where does the money for all of this come from?

Well, a community-based mental health facility is less expensive than a prison, and right now the prison system is the de facto mental health system in our state. So, we advocate moving these things out of the realm of the prison system, and they will become more effective and less costly.

That is the basic reality:  acknowledging locking up a person up for a drug offense, which is destructive and horrible, does nothing to solve the problem, especially because drugs are readily available in prison. And the whole mindset that criminal sentences will scare people straight just doesn't work when you talk about addiction. Any scientist that has done research on addiction would agree that that isn't an effective approach for stopping addiction.


This begs the question: how did we get to this point?

There is some great research about the trends from recent history-the 1970s and 80s, the War on Drugs- I don't know enough about the War on Drugs to give you some hard data, but the incarceration rate has skyrocketed since the 80s.

I know recently that the Pew Charitable Trust did an excellent report released earlier this year. It’s a great source of information on the current state of incarceration. One in 99 people in the United States is currently incarcerated.


And there is also a great racial disparity within that population. What accounts for African-Americans representing such a large percentage of those who are currently incarcerated? Is there a bias in the system that works against them?

There is definitely a bias in the criminal justice system, some of it is institutionalized, almost to the point where no one would openly admit to being racist. But, there are sociological studies that document the internal, visceral reactions people have when they see something like the Willy Horton ad versus a white person charged with a crime, or the way people instinctively react to certain crimes.

In terms of the larger effects, there has been research that has shown that a black person without a criminal record has actually got a lower chance of getting a job than a white person with a criminal record. There was a controlled study: a white person without a criminal record, a white person with a criminal record, a black person without a criminal record, and a black person with a criminal record. And the black person with a criminal record still had a lower likelihood of getting a job than did a white person with a drug felony on his record. So, there is an abundance of research that shows that there is explicit racial disparity in the way people make decisions in out society, from employers to those in the criminal justice field.


So how does that get rooted out? It almost seems as though the system needs to be re-worked, but that isn't terribly feasible.

Again, our office is approaching this through data driven research. We can't accept racial disparity such as this, but we have to show it very, very clearly. There is a lot of resistance to believing that it's true; there is a lot of justifying, and ways of dismissing it. Our office has been involved in ways of measuring sentencing disparities of different people of different races, and we're trying to figure out ways to measure a prosecutor's discretion in charging decisions, and police decision making on the spot. Those are difficult nuts to crack, because generally prosecutors are very confidential about their decision making, and the police make their decisions in the heat of the moment, and that can be hard to be measure. But it is not impossible.


So, how do you go about educating the public?

Public education involves a good presentation: getting on T.V., and having a solid presentation of your ideas, along with data to back it up. There will always be resistors, but the more reasonable elements of society, which I think constitute a majority, might be receptive to real data.


With all that in mind, and assuming that Ohio House Bill 130 does pass, can you project the status of prisoner re-entry programs in, say, five years?

I think five years from now one possibility could be that, through developing a clear explanation of these collateral sanctions, we would be on the road to change. I'm trying to create an online database that makes it easy to see all of the things that people with criminal records can't do, so that the legislature and everyone else in society can see what happens when someone is convicted of a felony, and can also see the legal effects of that felony.

So, that work could bring some significant change, if people see and understand that, and with some more research on top of that showing the economic effect on low income neighborhoods, and how that is a grad on all of us, that could really lead to some significant reform so that collateral sanctions laws that create these barriers become much more refined and limited and have very specific purposes, rather than be overly broad.

I think there is great potential for that, and I think we will see many more efforts that are evidence-based, as well as methods of doing workforce development, job placement, and skills training, for people caught up in the criminal justice system, whether in the prison or soon after their release, so that there will be much more intensive workforce-type programs for that population.

The other alternative is that prisons, instead of doing any of this, will be the subject of a huge backlash, and we'll end up with prisons like Angola in Louisiana that are tortuous and an embarrassment to our country. Those sorts of places generally become factories for communicable diseases, and since most people aren't on life sentences, those people will come back into our society with those diseases. So, it could get much worse if we don't decide to make a change towards cost-effective, and public safety effective policies.


I know you are non-partisan, but since we are on the verge of a new administration, what would you like to see from the incoming Attorney General?

Number one, a simple thing: fix the Criminal Records Reporting Law. The Attorney General in Ohio – right now the Bureau of Criminal Identification and Investigation – is in charge of keeping track of all criminal records in Ohio. Right now BCI, the way it reports criminal records is by reporting the original charge, but not the outcome. So, what that means is if you get charged with – as a client of mine was –  patient abuse and aggravated robbery and then go to trial, and the person you're accused of assaulting says, “No, he never did any of this, this didn't happen” – but he nevertheless ended up with a disorderly conduct charge. He's got a case where he's got a ticket – a disorderly conduct is a minor misdemeanor. The maximum possible penalty for disorderly conduct is a $150 fine, that's it. And that is on his record. But, when he gets his criminal record done by BCI, it says “patient abuse” and “aggravated robbery”.

Now, that is a huge problem, because at the bottom of the form there is a vague disclaimer that says, “If the record above does not show disposition information, please contact your local arresting agency.” Number one: nobody does that. Number two: the way the record reads, it isn't clear what that charge is. Someone reading that doesn't know if it is the original charge or not. And third: of course, what arresting agency is going to have time to do this? They have business to do, and they have to be out patrolling the streets.

So, this is just a ridiculous way of reporting criminal records, which creates more damage than it needs to. Prosecutors, as their business warrants, routinely overcharge crimes, so that they can then get plea deals, and then they will “plea that down” to something that the prosecutors want. What that means is that a prosecutor who overcharges creates this huge, permanent damage to someone without even having to get a conviction. That's absurd, and it needs to be fixed.

Another major reform that I'd really like to see happen would be child support. Currently, in Ohio, when you are locked up, your child support continues to accrue, at the exact same level. So, you come out of prison thousands of dollars in arrears, and it doesn't do anybody any good.

There is a lot of moralizing about it, about how horrible it is that someone committed a crime, and how these kids need to be taken care of. I agree with all of that, but wracking up tens of thousands of dollars in arrears in child support payments, which this person will never pay off, doesn't help anybody. It doesn't help the kids, and it doesn't help the mom or the dad. It creates more animosity between family members, and makes it less likely that the dad is going to connect to the kid, and probably less likely that he's ever going to do anything.

When you set somebody up for failure, they are much less likely to ever participate. But, if you create a system where a person can pay a reasonable amount, and you don't continually punish them for child support, then you invite them in, and they will be more likely to pay.

A couple of other things that I'd like to see would begin with local governments and then broaden out to private employers: explicit hiring policies that reduce the ability of the decision-maker to discriminate against people with criminal records. Local governments all over the country have done this and have voluntarily adopted hiring policies that say, “We're going to first check your qualifications, and if you're qualified, then we will check the criminal record, and if you have a criminal record we will only refuse to hire you if there is an explicit connection between the crime you committed and this specific job – or, refuse to hire you if it is a recent crime, or if we don't think you are sufficiently rehabilitated.”

Right now, applicants with criminal records have their applications thrown in the trash. We must get over that hump, and create a system where people with criminal records have a fair shot to get a fair consideration – not being set aside, but getting a fair consideration of their qualifications before any knee-jerk rejection can occur.


In trying to bookend this interview, since we began discussing your history prior to coming here, where do you see yourself in, say, five years or so?

Still here, hopefully. I'll continue to work on these issues, but there are a lot of opportunities here. There are so many burdens, and I can only take them one at a time. I see myself and our office becoming much more well known across Ohio, and becoming much more involved in Columbus in trying to provide the legislators up there with good information so they can make more intelligent criminal justice decisions.

Stephen Johnsongrove

Stephen Johnsongrove