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Coming home - many doors closed
Parents released from prison face barriers to rebuilding family
By Hazel Bonner
Posted to the South Dakota Prisoner's Support Group by Marletta Pacheco 30 Dec 2002
Part II of III
By Hazel Bonner
RAPID CITY - Nearly as many federal and state prisoners are released
each year as entered prison to begin a sentence. These released
felons finished their sentences or were released on parole. At the
same time many inmates will leave local jails having completed up to
two years in jail as sentences for misdemeanors.
Most will have served longer sentences and participated in fewer
programs to deal with issues which contributed to their
imprisonment. Some will have contracted contagious diseases. Others
will have become diabetic because of diet and lack of exercise in
jail or prison. Others who were diabetic on entry, find their
condition worsened.
A publication issued by the United States Department of Justice in
1999 reported on the percent of inmates who reported a history of
drug and/or alcohol abuse and the percent who received treatment
while imprisoned. They found that although 83 percent of state
prisoners reported a history of drug and/or alcohol use, only 12
percent received drug and alcohol treatment while imprisoned.
A large number of released prisoners are parents who return home
eager to rebuild their family. Over 10 million children in the
United States "have parents who were imprisoned at some point in
their children's lives," according to a report by the California
Research Bureau.
In 2001, approximately 400,000 mothers and fathers finished serving
sentences in this country and returned home eager to reestablish
family relationships and rebuild their lives. Because of changes in
federal laws many of these parents will face doors closed to them.
Some will face a life sentence without their children because of
termination of parental rights. Others will be immediately
incarcerated in county jails because of child support that
accumulated before and during their incarceration.
During fiscal year 2002, which ended June 30 2002, 1,996 inmates
were received by South Dakota prisons and 1,709 were released,
according to the South Dakota Department of Corrections. The number
who are parents was not readily available.
If inmates have spent a few years in prison, they will find a
myriad of legal barriers to rebuilding their lives that they were
unaware of when they entered prison. Most were not informed that
certain civil penalties would be tacked on to any criminal sentence
they served. The barriers will make it extraordinarily difficult for
them to succeed in caring for themselves and their children.
Changes in federal law have made it impossible to get safe housing
they can afford, obtain financial assistance for post-secondary
education, and to access public benefits. Some disqualifications end
after a period of time. Others become part of a life sentence.
Employment has always been a problem for someone with a felony
record.
EMPLOYMENT: Like most Americans, felons released from prison need
paid employment in order to support their families. Those who
receive TANF are subject to the welfare-to-work policies that are
the key provision of state plans. Moreover, jobs play a major role
in defining who we are, and thus participation in the job market is
key to a person's identity. Employment is, therefore, a linchpin to
the successful rehabilitation of a felon released from prison or
jail.
Finding employment at a livable wage with a limited education and
sporadic work history is difficult for any person. Add to that the
lifelong disability of having a felony record, and more doors close
that might have been open without the criminal record.
Certain jobs are closed by state statute to felons. Even if the
person has a good education that person may be prevented from
obtaining or renewing a professional license or certification. Any
violent crime will prevent a person with a teaching certificate from
renewing that certificate.
Any felony conviction involving children will prevent that person
from ever working with children. Any substantiated civil or criminal
charge of abuse or neglect places a persons name on a child abuse
registry.
While most felonies do not bar a person from most jobs, the attitude
of employers may do what the law does not do. In several national
surveys, employers for a variety of private and government entities
said that they would not hire a person with a felony record if any
other qualified person was available.
Because felony convictions disproportionately affect minorities,
refusal to hire based on a felony conviction may implicate Title VII
of the Civil Rights Act of 1964. In order to prevent the disparate
impact on minorities, The Equal Employment Opportunities Commission
(EEOC), the federal agency responsible for enforcing Title VII, has
issued several directives as guidelines to employers. Directives in
1987 and 1990 state that unless the employer demonstrates a business
necessity, persons with felony records are not to be treated
differently unless four factors exist. Those factors involve the
nature of the crime and the nature of the employment.
A theft offense may justifiably disqualify a person for a job that
involves handling money. Another consideration established by EEOC
is the time that has passed since a conviction or completion of a
sentence. A fourth factor is consideration of arrest records. The
1990 directive issued a prohibition against employers making a
decision based on an arrest that did not lead to a conviction.
A person released from prison is left with the quandary of informing
a job service office or an employer about their recent release from
prison or finding ways to avoid giving the information. When a
person released from prison within the last year registers at a job
service program, informing the counselor of their recent release may
lead to qualification for a Work Opportunity Tax Credit (WOTC).
WOTC is a federal program to aid ex-offenders and other very low
income job-seekers by providing a tax credit to an employer as an
incentive to hire that person. The tax credit leads to a maximum of
$2,400 savings to the employer for each such person hired. The
employee must work for at least six months or 400 hours (10 weeks
full time) for the employer to qualify. There is no requirement
under federal rules that an employee must be retained by the
employer, once the tax credit ends.
A national study showed that the program is under funded and also
under-utilized by both ex-offenders and employers. In South Dakota,
the One Stop Career Centers issue up-front vouchers that the person
can take to an employer. Joy Rayfield, in the Rapid City office,
stated in a phone interview, that every person interviewed who
informs the employment counselor that they were released from prison
within the last year is referred to her for qualification for a
voucher.
The potential employee must also qualify based on income. The income
limits are set at 70 percent of the lower level income standard
which is lower than the poverty level. An individual must earn less
than $7,000 gross wages annually to qualify. Verification of
income for six months is completed at the time of application. A
person working full-time at minimum wage for six months, even if
that person is in the work release program, is not eligible for the
tax credit. No offset is used for payments to the jail or for child
support, under federal guidelines.
A black man released from federal prison in June visited the local
job center the day after Rayfield was interviewed about the program.
He had visited the office immediately on his return from prison, but
was not sure that he had informed them that he was just out of
prison. On this visit he specified to the employment counselor that
he had been released from federal prison in June, 2002. The female
counselor provided him no information about the WOTC and made no
referral to Rayfield. A young Indian man released from state prison
in July had the same experience. These young men left the local
office with job referrals, but no voucher for an employer as an
incentive to hire them.
Peggy Carrico in the Department of Labor office in Aberdeen is the
person who issues the certifications. She said in a phone interview
that nearly every major employer in the state takes advantage of the
program. She completes quarterly and annual reports to the United
States DOL on the program. The last annual report covered the period
of October 1, 2001 to September 30, 2002. During that period 706
employees qualified for the tax program of which 346 were ex-
offenders. Thus only about 20 percent of persons released from
prison during that time were participants in the program.
PUBLIC ASSISTANCE: Parents reentering a community after
incarceration often need public benefits in order to reunify the
family, pay rent, and buy food, clothing and other necessities.
Those able to work need assistance until they can find a job, as
well as money for transportation, telephone calls, newspaper want
ads, suitable clothing and child care, just to seek employment.
TANF, the cash assistance program for needy families, and the Food
Stamp program provide meager benefits. The median monthly TANF
benefit in this country is $379 for a family of three with no other
income. Food Stamps provide an average of 81 cents per person per
meal. Even with the meager amount of benefits, access to these
programs can mean the difference between survival and total
desperation.
The federal welfare reform law under which TANF replaced AFDC, was
passed in 1996 and amended in 1997. The law imposed a lifetime
ineligibility for TANF and Food Stamps for people with felony drug
convictions for possession or distribution of drugs. States can opt
out or modify the ban, and 31 states have done so, including
Colorado, Iowa and Minnesota. Some states that have modified the ban
have modified it to extend the coverage to their general assistance
programs, known as County Poor Relief in South Dakota.
A majority of drug crimes are prosecuted in federal court under the
federal Controlled substances Act (CSA). All drug crimes on a
reservation are prosecuted in federal court. The percentage of
persons in federal prisons for a drug related crime rose to more
than 80% at midyear 2001. In South Dakota prisons just under 20
percent of inmates received during FY 2002 were convicted of drug
crimes. Conviction of females for drug related crimes has quadrupled
since 1990. A large majority of conviction for drug crimes in
federal and state court are of minorities, especially females.
Approximately 60,000 women are convicted of felony drug offenses
each year in the United States. Approximately 65 percent of women in
state prisons have minor children.
In a study of women with drug convictions in Pennsylvania, the
overwhelming majority had no prior drug convictions, and their
felonies were for very small amounts of drugs (often $5 or $10
worth). They had limited education, limited literacy, employment
histories in short-term low-wage jobs, histories of homelessness,
and multiple physical and mental health problems.
LaVonne is a 38 year old Lakota woman who lived in Rapid City. She
is a mother and grandmotehr. She was convicted in Federal Court of
drug trafficking in 1996. Only trace amounts of methamphetamine and
a small amount of marijuana was found in a search of her home. She
was linked to drug trafficking by confidential informants who
received reduced sentences for their testimony. She was convicted
and sentenced to 30 years in federal prison. Her projected release
date is November 19, 2023.
It is believed that her only connection to drug trafficking was
through her husband, Mario. He had been caught with a large amount
of methamphetamine in Rapid City several years before LaVonne's
conviction. He was shot to death in his car while acting as a
confidential informant for the state Drug Enforcement agency and
local police a few days after being busted with the met amphetamine.
Parents with outstanding warrants, often for inability to pay a
fine, or sought for violation of probation, parole, or federal
supervised release, are ineligible for TANF, Food Stamps and SSI
until the matter is resolved. About 70 percent of persons arrested
on bench warrants or for violation of probation, parole, or
suspended sentence in Pennington County last year were Indian.
Welfare offices have become an arm of law enforcement. Persons with
warrants or sought for a petition to revoke any form of supervised
release are turned into local law enforcement if they apply for
benefits.
A major problem with the denial of assistance to persons with felony
drug convictions is the manner in which the program deals with
income of the ineligible adult. If that adult resides in a family
receiving food stamps or TANF, the income of that person is counted
against the household and reduces the food stamps and cash
assistance accordingly. Since the ineligible adult cannot receive
any allotment, his or her presence in the family, harms the children
by reducing the amount they receive.
SUBSIDIZED HOUSING: Nearly five million families live in subsidized
housing in the United States. The three major types of housing are
Public Housing, Section 8 tenant assistance and Section 8 project
assistance. Approximately 1.2 million families live in Public
Housing, more than 1.5 million reside in tenant-based Section 8,
which provides vouchers to the tenant looking for a place to live,
and 1.3 million families live in project based Section 8 units. All
these families must meet strict income guidelines.
Beginning in 1988, Congress amended the U.S. Housing Act to deny
admissions and mandate evictions for alleged criminal activity.
These amendments have had a devastating effect on families that
need stable housing, by excluding them from subsidized housing for
criminal acts that may be remote in time or not attributable to them
at all, but to another member of the household.
The ban is quite broad. In general, the local Public Housing
Authority (PHA), which handles both Public Housing, Section 8 tenant
assistance and Section 8 project assistance in South Dakota, has a
right to do criminal background checks. The PHA can deny admission
to adults who have a history of physical violence to persons or
property, or of other criminal acts that would adversely affect
the "health, safety, and welfare of other tenants." The local PHA
has the option of looking at mitigating circumstances, which can
lead to inequities in admissions to subsidized housing.
In 1998 amendments to the housing act specifically mandated that the
local PHA had to establish standards to deny admission to applicants
they determine to be using controlled substances, or whose pattern
of using controlled substances or alcohol might interfere with the
health, safety or peaceful enjoyment of other residents.
If an adult in a family already residing in subsidized housing is
charged with criminal activity, the entire family may be evicted.
The application of this is most egregious when a family is evicted
for a crime charged against a member of the household even if that
criminal charge ultimately leads to acquittal or is dismissed before
trial. If a person returning from prison moves into such a household
the entire family may be, but does not have to be, evicted.
Douglas D. Wells, Executive Director of the Pennington County
Housing and Redevelopment commission, the PHA here, said in a
letter dated December 27, 2002 that "approximately 118 applications
were denied based on criminal activity in 2002." He added that one
tenant had been evicted for criminal activity.
Regulations for subsidized housing were again revised in 2001. Until
that revision a local PHA was required to exercise discretion in
deciding to evict for criminal activity. Since their revision,
weighing mitigating factors and scrutinizing each eviction case by
case has become optional.
Once evicted or denied admission, the family remains ineligible for
three years. However getting back into subsidized housing usually
takes a much longer time. The three year ban can be waived if the
head of household completes a LHA approved rehabilitation program or
the circumstances that led to the eviction has changed. For example,
if the household member charged with criminal activity leaves the
household, the family may reapply. Waiting lists for subsidized
housing are generally very long.
A young Lakota mother with two children recently released from the
Women's Prison in Pierre, applied for and was denied admission to
subsidized housing. She challenged it in front of committee of the
Housing Authority board using her completion of a drug treatment
program to mitigate the past circumstances. The board upheld the
denial. She and her children continue to reside with her father in a
home outside of Rapid City. The home is seriously overcrowded and
because she is ineligible for food stamps and TANF, the family
struggles to provide food for the entire household. Any income she
receives reduces the amount of food stamps received by the entire
household.
Ex-offenders, many of them fathers and mothers who seek to reunite
with their children, are part of low income communities throughout
this country. Their success is important for their families and for
the communities they live in. Yet ex-offenders are denied admittance
to subsidized housing even after they have paid their dues and are
trying to turn their lives around. A recent report from the Center
for Law and Social Policy and Community Legal Services, Inc.
concluded that, "The unavailability of important stepping stones
such as subsidized housing creates more obstacles to their success.
These barriers are not only unjust but also increased the likelihood
of recidivism and persistent family poverty."
FEDERAL ASSISTANCE FOR HIGHER EDUCATION: Obtaining post-secondary
education has been universally recognized as the most certain road
out of poverty. For a person returning to the community from prison,
that option may be closed to them.
As part of its 1998 reauthorization of Title IV of the Higher
Education Act of 1965, Congress enacted a complicated eligibility
restriction applicable to students who have prior convictions for
possession or sale of controlled substances. Applicants subject to
this restriction cannot receive Pell grants or student loans, which,
for low-income students, effectively means a denial of higher
education.
In addition to aiding a person to obtain jobs that pay wages which
allow them to leave poverty, there is a great deal of evidence that
quality education is an effective form of crime prevention. The
majority of persons in prisons and jails are poorly educated.
According to the study released in November about racial inequities
in the South Dakota criminal system, all inmates averaged 10.9 years
of education completed. The report showed significant difference in
educational levels for Indians and whites. The difference was
especially significant when comparing white females, who had the
highest average level of education at 11.25, with Indian females
with 10.02 years of education.
Only 14.7 percent of Indian inmates reported no problem with drug
or alcohol use while 85.3 percent of whites reported no problem
according to the report on racial disparity in South Dakota's
system. Studies have shown that females trying to conquer a drug or
alcohol addiction are more likely to need post secondary education.
Prisons in South Dakota ended access to Pell grants to inmates under
state law several years before the federal law made them ineligible.
According to the Center on Crimes, Communities and Culture only 8
prisons had higher education programs for inmates in 1997. The loss
of educational opportunity for incarcerated parents means that
access to educational opportunity after release is even more
critical. Prison educational programs are proven to be cost-
effective in preventing recidivism.
The amendment to the higher education act is very broad. It bans
financial assistance to any aid applicant "who has been convicted of
any offense under any federal or state law involving the possession
or sale of a controlled substance." For the first conviction for
possession the ineligibility period ends after one year. A second
offense of possession leads to two years of ineligibility. A third
or subsequent offense could mean lifetime ineligibility. The first
offense for distribution disqualifies an applicant for two years and
the second could lead to lifetime ineligibility.
Rep. Mark Souder of Indiana introduced the amendment to the Higher
Education Act. He states that the ban was originally intended to
apply only to recipients of financial aid who were convicted of
offense while in school, not to financial aid applicants with drug
convictions in their past. Unfortunately work on technical
amendments was not completed and the ban for any conviction, which
the Bush Administration has proceeded to enforce, remains in
effect. Souder continues to press for an Administrative
interpretation of the statute that would apply the ban "solely to
students already receiving federal aid when convicted."
Persons who can pay for their own education are not banned from
college, regardless of drug convictions, only those who need
financial assistance. The American Council of Education, which
represents major colleges and universities, has called the
restriction "double-punishment" and says that it discriminates
against poorer people because more affluent students do not need
financial aid."
Thus persons leaving prison with little or no money accumulated,
often poorly educated and in poor mental or physical health, must
continue the punishment on the outside. The young man who left the
local Job Service office without a tax credit voucher as an
incentive for an employer to hire him said, "Maybe they should just
take me out and shoot me. It would be kinder than the torture they
put me through. But, of course, this is a nation under law, we can't
do that in this country. Instead they simply make my life
intolerable and make my family suffer, if I live with them." His
conviction was a possession conviction of a small amount of drugs.
Part III will discuss changes in federal law affecting child welfare
of children of incarcerated parents and will look at some programs
in other state prisons including a long distance dads program in a
North Dakota Prison and a special statewide program in Colorado.
Hazel Bonner is a free lance writer who writes from her home. She
can be reached electronically at hbonpidge1@hotmail.com; by phone at
34304467 and by mail at PO Box 3712, Rapid City, SD 57709-3712.
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