Earlier this week the Trump administration proposed a change to hiring requirements that could prove detrimental to employment prospects for those accused of misdemeanors or low-level felonies. According to the new policy, job applicants who get an offer for any position within the federal government — as well as its contractors — would be required to disclose whether they’ve been through a “pretrial diversion” at any point in their life. Pretrial diversion is a program allowing low-level offenders to avoid prison and a criminal record. It’s especially important for minors who’ve made mistakes early in life and hope to move forward without those youthful indiscretions casting a shadow over the years to come.
Back in February the proposal was made available for public comment by the Office of Personnel Management. Meanwhile, ironically, supporters for the First Step Act were working with the White House and Congress to remove existing barriers for former offenders to seek federal employment. The Marshall Project — a nonpartisan organization that raises awareness about mass incarceration and other issues in our criminal justice system — first reported the new language.
What’s unusual is that voices on both the left and right have joined together to advocate for a fairer justice system, and the majority were completely taken by surprise when the White House announced its proposal for job seekers to disclose past involvement with the diversion program. If this change is enacted, the new hiring requirement would introduce an added layer of screening that isn’t even used in most private companies.
Since the announcement, criminal justice reform advocates across the political spectrum have been in an uproar, arguing that screening for diversion programs would drastically reduce the number of applicants for government work and thousands of affiliated federal contractors. In fact, since the federal government is the largest employer in the U.S. (with approximately 2.7 million workers), they point out that it should lead the way in giving Americans second chances.
The White House has been punting on complaints and questions, referring journalists and criminal reform advocates to the Office of Personnel Management (OPM) for comment. In a public statement the OMP said the new requirement is actually consistent with existing practices, since, it notes, current requirements to disclose prior criminal conduct implicitly include any participation in the diversion program. The new language, it explained, is simply a way to clarify that.
“We have proposed a change to the current question to improve clarity and avoid unnecessary complication for applicants while creating better uniformity for the process,” the agency said in a statement.
Such statements, however, are misleading. The OPM argues that requiring applicants to disclose prior criminal conduct doesn’t actually prohibit someone from being hired into the vast majority of federal jobs, since all hiring decisions are made on a “case-by-case basis.” But in reality, everyone knows that such disclosures will automatically put an applicant at a disadvantage in a pool of applicants, even if they merely committed a low-level offense decades early as a teenager.
Employment and workers rights attorney Tim Emery notes that diversion programs have been adopted in nearly every state in the U.S., where they are typically offered to first offenders who are young and/or people charged with nonviolent crimes like shoplifting, moving violations or drug possession. When facing such a charge, Emery explains, a defendant can avoid jail by enrolling in a drug treatment program, community service, paying restitution or completing an anger management program. In this way, the program is seen as both good for the defendant and good for society. Moreover, the diversion program has been widely acclaimed as a measure that prevents former offenders from being automatically dismissed for employment because of past mistake.
Some jobs are not covered by the diversion policy, however, such as law enforcement and other sensitive security positions.