April 2001

Views expressed are those of the authors, not necessarily of the AFSC.

Legislation by Regulation and the Creation of a Permanent Underclass

Over the past decade, levels of punishment for those who have committed crime have increased dramatically. They have increased through intensification of the conditions that prisoners experience while in prison. They have increased in the way that the law regards youth who are poor and from communities of color. And, most dangerously, these punishments continue for those who leave prison and return to our communities.

All federal and state jurisdictions have passed laws that prohibit ex-felons from many kinds of state assistance. Those include: employment in state agencies, housing assistance, educational assistance, federally secured loans, and, in some places, health assistance. These government practices have been mirrored by private businesses and industry. Agencies receiving federal and state funding have been forced to reject employment applications from ex-felons without even reviewing them. This punishment can continue for a lifetime. Women with infant children are released from prison, completely ineligible for housing assistance. These policies are seriously compromising all poor communities. In some of these communities, upwards of 60% of the adults are unemployable. These policies closely mirror the European fascism of the past century.

In Massachusetts, a group of activists has begun to organize to reverse this trend. State regulations were proven unconstitutional, public hearings on emergency regulations have been organized, civil disobedience undertaken, and a statewide organizing effort begun. In the following article, Boston City Councilor Chuck Turner lays out the issues. These issues affect every person, nation-wide, who reads this article. The time for action is now. In the United States, with 600,000 people returning to our communities from prison this year, we cannot afford to wait.

--Jamie Suarez-Potts, AFSC Justice Program

Chuck Turner, long-time grassroots organizer, is a Boston City Councilor.

Recently, the Massachusetts Department of Public Health held public hearings on emergency regulations governing the use of CORI--Criminal Offender Record Information--in hiring protocol. Two hundred fifty citizens turned out to testify against these regulations. No one testified in favor. The original CORI legislation, drafted in 1972, was focused on protecting the privacy of those who had served their time. The current CORI regulations, championed by Governor Celucci, deprive citizens of their right even to consideration for employment.

Chuck Turner with Suarez-Potts, left, and her AFSC colleague Kazi Touré, right. The three sat in after public hearings on CORI regulations, and were arrested for trespass. Photo: courtesy Banner Publications, Inc.

The history of this country reflects a continuous struggle to build into the fabric of American law the concept that every human being, regardless of race, creed, class, gender, disability, or any other distinguishing characteristic, has the right to equal protection under the law. There is no political concept more fundamental to American democratic thought than the idea that no human being or group of human beings, regardless of station or status, is entitled to deny another human being or group of human beings their rights.

In the last couple of decades, an active movement has developed to pass laws or referenda restricting the rights of those with criminal backgrounds--even after they have completed their sentences. During most of this country's history, the assumption has been that once people have served their sentences they should regain their rights as citizens, including the right to be considered for employment. This was not an unusual concept for a country founded by many who had been released from English prisons in order to come to the colonies. The person's attitude, the nature of the crime, the type of work to be done must be taken into consideration. However, the right to the opportunity to be considered for employment has been viewed as a fundamental right.

What gives Governor Celucci the right to bar and restrict employment based on categories of crime? There is no law that gives him such a right. In fact, even if passed by the legislature, such a law would be found to be an unconstitutional denial of liberty--that is, a denial of freedom from unjust or undue governmental control. That is why Governor Cellucci is trying to accomplish, through regulation, that which he knows cannot be accomplished or justified through law. There is no way to morally justify Governor Cellucci's system. When we separate moral principle from governmental action, we create a monster that will devour us all. Look at history if you doubt my words!

The administration wants us to believe that we can determine the content of the character of a man or woman who has been to prison by finding out whether their name is on the mandatory, ten year, five year, or discretionary list. [These lists categorize types of offenses and proscribe employment for specified periods of time.] We are being asked to abandon common sense. We are being asked to deny the reality that no crimes are identical even if put in the same category. We are being asked to deny the reality that to understand what led a person to commit a crime, you have to look carefully at their thinking, their feelings and the situation they were facing at the time of a crime. We are being asked to deny the reality that everyone changes throughout their life as they struggle with sin; some for better and some for worse. We are being asked to deny the reality that the state needs to set a moral framework for business to follow by building into its employment practice a rigorous individual examination of each and every candidate who presents themselves for service. We are being asked to deny the reality that both James Michael Curley and Malcolm Little, better known as Malcolm X, spent time in jail and therefore would have had their names appear on a list. We are being asked to deny the reality that the best counselors and clinicians for those with addictions, particularly drugs and alcohol, are those who have overcome similar addictions and who usually have spent time in jail. We are being asked to deny the class bias of a system in which a banned person can get into public service by paying a forensic psychologist or psychiatrist a $1000 fee.

In addition to rejecting the CORI regulations based on their merit, we must also take a stand against this government's practice of creating law through regulation. This practice is clearly an abuse of power as well as an attack on the political doctrine of the separation of powers between the administrative branch of government run by the governor, the legislative branch run by the legislature leadership, and the judicial branch led by the judicial leadership. The administration has been using administrative regulation to create new policies without going through a legislative process; thus putting into action policies and practices that have little relationship to the laws whose application they are supposed to be regulating.

It is difficult to see the relationship of the regulations that are considered to correspond to the CORI law that was originally established in the 1970s as a system designed to protect the privacy of those who had broken the law but served their sentence. Rather than protecting those who have served sentences, Governor Celucci's lists are designed to lessen the opportunity for self development of those with criminal backgrounds--a clear step to creating a permanent underclass.

We cannot allow the administration to manipulate class and race divisions in this society. We must say NO to the regulations, we must say NO to strengthening class division, we must say NO to strengthening racial division, and finally we must say NO to the Weld-Celucci attempt to undermine our somewhat fragile democracy and its concept of individual liberty. We owe it to ourselves, our families and our society to just say NO.

Previous Article    Next Article