Institute Associate Counsel and Debevoise Fellow Scott Novakowski delivered testimony at the New Jersey Black Issues Convention and Legislative Black Caucus 2017 Annual Conference:

        I.            INTRODUCTION

My name is Scott Novakowski. I am Associate Counsel and Debevoise Legal Fellow at the New Jersey Institute for Social Justice (“Institute”). I would like to thank the members of the Legislative Black Caucus and Senator Rice for the opportunity to speak with you today.

The Institute’s mission is to empower urban residents to realize and achieve their full potential. Our work is aimed at toppling load-bearing walls of structural inequality to create just, vibrant, and healthy urban communities. We employ a broad range of advocacy tools to advance our ambitious agenda, including research, analysis and writing, public education, grassroots organizing, the development of pilot programs, legislative strategies, and litigation.

Using a holistic approach to address the unique and critical issues facing New Jersey’s urban communities, the Institute advocates for systemic reform that is at once transformative, achievable in the state, and replicable in communities across the nation.

     II.            THE THREE PILLARS OF OUR WORK

Our work at the Institute focuses on the three pillars of social justice – Economic Mobility, Civic Engagement, and Criminal Justice. Under the Economic Mobility pillar, we fight for the opportunity for every person to have the equal opportunity for a meaningful, full-time job, safe and affordable housing in healthy, vibrant communities, equitable access to transportation, and fair access to credit. In our Civic Engagement Pillar, the Institute facilitates and encourages full, equal, and active participation in the democratic process. Finally, our Criminal Justice reform work focuses on enhancing public safety, while ensuring sensible and fair criminal justice outcomes from policing through reentry. Today, I am going to highlight our priorities in each of these pillars. There are additional policy proposals detailed in our platform document, “A Social Justice Vision for New Jersey,” which I have attached to each copy of my testimony.

1. ECONOMIC MOBILITY

The Institute’s work on Economic Mobility seeks to ensure that every person, particularly those in urban communities, has the ability to realize their full potential and achieve the American dream. 

Fifty years ago, Dr. Martin Luther King, Jr. spoke about the existence of “two Americas” sharply divided by race.^[1] In one “America,” children grow up in the “sunlight of opportunity.” But in the “other America,” people of color confront staggering rates of unemployment, poverty, and a lack of opportunity. Half a century after Dr. King made this famous speech, far too many people of color in New Jersey live in the “other America.”

In New Jersey, people of color are more than one-and-a-half times likelier to be unemployed than white people.^[2] Due to both higher rates of unemployment and wage disparities, people of color in New Jersey have a poverty rate nearly triple that of white residents.^[3]  Approximately 21 percent of Latino and 19 percent of Black residents live below the federal poverty line, in comparison to 7 percent of white residents.^[4] Further, 39 percent of households of color in New Jersey—in comparison to 24 percent of all households—live in asset poverty, meaning that they do not have enough assets to live at the poverty level for three months if they lost their income.^[5]   

In our recent report, “Bridging the Two Americas: Employment & Economic Opportunity in Newark & Beyond,” the Institute found that these striking disparities are the result of systemic failures—not individual ones—and that they require systemic solutions. These statistics reflect the accumulation of decades of law and policy decisions at the federal, state, and city level, structural changes in the economy, and racial discrimination that limited economic opportunity.^[6]

The policies and practices that created and sustained the Two Americas can—and must—be addressed. To bridge the Two Americas, the Institute recommends that the New Jersey State Legislature focus on the most immediate cause of poverty and inequality—unemployment and a lack of access to jobs that pay a living wage. 

Raise the Minimum Wage

As one of the wealthiest states in the nation, with one of the highest costs of living, New Jersey should ultimately raise its minimum wage to a living wage. Currently, a living wage in the State of New Jersey for a single adult is $12.99 per hour, although it is even higher for a single adult in Essex County, where Newark is located ($13.49 per hour).^[7] Given the substantial economic research supporting raising the national minimum wage to $12 per hour, and the many competitive economic advantages that the State of New Jersey enjoys over other states, the State Legislature should immediately raise the minimum wage to $12 per hour. The Legislature should also adopt an expeditious phase-in of an increase of the minimum wage to $15 per hour, similar to California and New York’s adoption of a $15 per hour minimum wage.^[8] This increase will enable New Jersey employers to remain competitive with neighboring New York State employers in attracting employees, and it will increase the ability of many individuals and families in the state to support themselves, lifting hundreds of thousands of people out of poverty, and reducing the gender and race pay gaps in the state.

Tax Credits and Additional Funding for Apprenticeship Programs

The New Jersey Legislature should allocate additional funding for apprenticeship programs in the state, which help directly bridge the middle skills gap between unemployed or under-employed people and employers. The U.S. Department of Labor estimates that every federal dollar of investment in apprenticeship programs yields more than $50 in federal revenue.^[9]  Realizing a similar return on investment in New Jersey would mean that these programs will more than pay for themselves over time, as well as enable thousands of residents to enter career paths that pay a living wage and provide the opportunity for career advancement.

Amend the Opportunity to Compete Act

The Opportunity to Compete Act^[10] (also known as the “Ban the Box” law) was an important first step in improving access to employment for people with criminal convictions in New Jersey, but it needs to be strengthened. The law should be amended to only permit employers to inquire about an applicant’s criminal history and complete a background check after a conditional offer of employment is extended. Then, in order for the employer to rescind the conditional offer of employment, it should be required to provide a written explanation to the applicant of why the criminal history makes them ineligible for the position, and provide the applicant an opportunity to respond, before the employer extends the offer to another applicant.^[11] New Jersey should also examine and publicly report on the denial of employment based on criminal convictions across different racial and ethnic groups in the state. In addition to government enforcement of this law, there should be a private right of action to facilitate enforcement.    

1. CIVIC ENGAGEMENT

The Institute’s Civic Engagement pillar seeks to make the promise of democracy real for people of color across New Jersey by advocating for full, equal, and active access to the ballot. Unfortunately, significant barriers to voting remain and many have a disproportionate impact on people of color.

As I recently wrote in an op-ed for NJ Spotlight,[12] one of the most pernicious and indefensible barriers to civic participation are laws that disfranchise people with criminal convictions. In New Jersey, a person convicted of a felony[13] is denied the right to vote until they have completed their full sentence, including parole and probation.[14]

New Jersey currently bans almost 95,000 residents from voting because of a criminal conviction—over three-quarters of whom (more than 70,000 people) are on parole or probation.[15] These residents are living in the community, raising families, and contributing to our economy. As the Institute’s recent report with the Brennan Center for Justice at NYU School of Law points out, New Jersey shamefully disfranchises more people living in the community than any other state in the Northeast and more than New York, Connecticut, and Delaware combined.[16]

People of color are disproportionately impacted by criminal disfranchisement laws due to well-documented racial discrimination in the criminal justice system. That disparate impact is acutely felt here in New Jersey, where a recent Sentencing Project report found that Black residents are incarcerated at a rate twelve times higher than their white counterparts.[17] New Jersey, shamefully, has the worst Black/white racial disparity rate in the country.

Disfranchisement laws directly import these disparities into our electorate, resulting in a loss of Black voting power. Half of those who have lost the right to vote because of a criminal conviction in New Jersey are Black, and over 5 percent of Black New Jersey residents of voting age are currently disfranchised.[18] As demonstrated in a recent article by the ACLU of New Jersey, almost a quarter of voters removed from the voting rolls because of a criminal conviction between 2010 and 2016 come from Essex and Camden Counties.[19]

Voting power is further diluted as a result of prison-based gerrymandering—the practice by which people in prison are counted at the facility for the purposes of drawing district lines, rather than at their home communities. This prison-based gerrymandering artificially inflates the political power of districts containing prisons at the expense of the communities from which people in prison come and ultimately return.[20]

Criminal disfranchisement laws also have a negative impact on public safety. An expanding body of social science literature links disfranchisement with a greater likelihood of recidivism.[21] This finding makes intuitive sense, as the message being sent is one of stigma, isolation, and exclusion. Instead of pushing people out of our community, we must do everything we can to welcome returning citizens back and to support their successful re-entry.

We need to recognize the distorting effect that disfranchisement has on our public dialogue and, ultimately, our policy choices. For example, a recent paper linked criminal disfranchisement laws to harsher sentencing and over-incarceration, even when taking into account that people with criminal convictions may be less likely to vote.[22] When people with criminal convictions are unable to vote, politicians have no incentive to protect their interests. As we as a society debate issues such as criminal justice reform, removing economic barriers, and reforming policing, systematically removing the voices of those most directly impacted does a disservice to democracy.

Despite the disparate impact on people of color, state and federal courts have refused to invalidate most criminal disfranchisement laws. That is why it is incumbent upon the Legislature to restore voting rights and to ensure that all voices are heard.

The Institute supports legislation that would, at a minimum, automatically restore the right to vote to all people with criminal convictions upon release from prison. Such a bill should also require that probation, parole, and corrections agencies provide voter registration materials to people under their supervision, as well as assistance with completing and transmitting the voter registration application. Providing this assistance is important, as studies have shown that many people—including election officials themselves—do not know the rules around voting with a criminal conviction in their states.[23]  

While enfranchisement of people on parole and probation is an immediate priority, we should not be satisfied until voting rights are fully restored to all people with a criminal conviction, including those serving a prison sentence. We ultimately need a full decoupling of the criminal justice system and the fundamental right to vote. It is a pairing, born in a historical period very different from our own, which damages our communities and has long outlived any purpose it may have once served.

1. CRIMINAL JUSTICE

Finally, the Institute’s third pillar is Criminal Justice reform. Today, I will talk to you about our campaign to transform our youth justice system, specifically by closing two of the three youth prisons in our state and building a community-based system of care.

During the formative years of childhood and adolescence, young people need community support and room to grow in order to successfully transition into adulthood. Unfortunately, the right to learn from one’s mistakes is not evenly distributed. Indeed, despite little difference between Black and white youth in terms of delinquent behavior, Black children in New Jersey are 24.3 times more likely to be committed to a secure juvenile facility than their white counterparts.[24] In fact, New Jersey has the third-highest Black-white commitment disparity rate in the nation.[25]  Of the 222 young people incarcerated in a New Jersey youth prison as of January 1, 2017, two-thirds (148) are Black. Incredibly, just 13 are white.[26]

As we explained in our report on New Jersey’s juvenile justice system, “Bring Our Children Home: Ain’t I A Child,” these stark racial disparities reflect racially discriminatory policy decisions and practices that determine which kids get sentenced to youth prisons and who gets treated as a child.

In short, the juvenile justice system is failing young people of color. Not only are they incarcerated at a higher rate, but once convicted, they are subject to a system that is ineffective and harmful. Research on adolescent brain development shows that most children grow out of delinquent behavior. However, incarcerating youth does not account for this fundamental difference between children and adults, and in fact, inflicts a punishment that will likely carry into a child’s adult years. Children who are incarcerated are more likely to be imprisoned and live in poverty as adults.[27]

Further, youth prisons do not make our communities safer. For instance, in New Jersey, of the approximately 500 juveniles released from juvenile correctional facilities in 2012, 80 percent had a new court filing/arrest, 68 percent had a new adjudication/conviction, and 32.8 percent were recommitted within three years of release.[28] 

The Institute recommends that in place of youth prisons, we invest in community-based programming for youth that provides intensive wrap-around services. These programs result in positive outcomes for children and reduce recidivism rates. In fact, according to research by the John Jay College of Criminal Justice Research and Evaluation Center, of 3,523 high-risk youth participating in an intensive community-based program, 86 percent remained arrest-free during the program and 93 percent remained at home at the end of services.[29]

Community-based programs are also more cost effective than incarceration. The 2018 proposed state budget estimates that New Jersey will spend $248,186 annually to incarcerate a single child.[30] In contrast, community-based programs have a daily average cost of $75, according to Youth Advocates Program, Inc., a national non-profit that operates community-based programming for justice-involved youth in New Jersey and throughout the country.[31]

Exorbitant spending on youth incarceration persists even though the State youth prisons are largely underutilized. As of January 2017, the New Jersey Training School for Boys (aka “Jamesburg”), which has a maximum capacity of 330 youth, housed only 152 young people.[32]  As of that same date, the Female Secure Care and Intake Facility (aka “Hayes”), the girls’ youth prison, housed only nine young women, approximately 19 percent of its maximum capacity of forty-eight.[33]

What this research makes abundantly clear is that youth incarceration is a failure. It fails our children, our communities, and our budgets. And so on June 28, 2017, 150 years after Jamesburg opened its doors, we say: 150 years is enough. On that day, the Institute and our partners will hold a rally outside Jamesburg to call for the closure of Jamesburg and Hayes, and to create, in its place, a community-based system of care.

We invite you to stand with us on June 28, and lend your collective voices to this urgent civil rights issue. The future of our state’s youth of color depends on it.

Thank you for your time and leadership on all of these critical social justice issues. I am happy to answer any questions you have.