President Trump was joined by 300 guests at the White House one evening early this month to celebrate the criminal justice system’s most significant overhaul in a decade.
The president applauded the First Step Act, which revises sentencing laws and expands reentry and early release programs, as a bipartisan victory. Jared Kushner, his son-in-law and the law’s champion, drew applause from an unlikely coalition of liberals, conservatives and ex-offenders. That day, Cabinet secretaries highlighted the changes at public events.
But as activists and supporters toasted with champagne in the East Wing, the Trump administration was taking steps that critics say would throw up a potential roadblock for those accused of misdemeanors or low-level felonies.
Under a proposed update to hiring requirements, applicants who get a job offer from the federal government or its contractors would have to disclose whether they went through a pretrial diversion program that allowed them to avoid prison — and a criminal record. The answer could lead an agency to rescind the offer.
The proposal was posted for public comment by the Office of Personnel Management in late February as advocates for the First Step Act were working with the White House and Congress on a change that would ease the path to federal employment for former offenders. The Marshall Project first reported the new language.
Activists on the political left and right, who have joined forces to push broadly for a fairer justice system, say they were blindsided by the diversion disclosure — an extra level of screening that typically is not used by private companies.
The requirement, they say, bucks a bipartisan, national movement to embrace alternatives to incarceration and defies Trump’s own public stance on reform.
“If this doesn’t get corrected, we’ll be on it,” said Mark Holden, general counsel of Koch Industries, the private company controlled by billionaire industrialist Charles Koch, whose political network worked closely with Kushner on the First Step Act.
Koch-backed groups were among dozens of criminal justice reform advocates to mobilize last week against the proposed requirement, barraging Kushner and Ja’Ron Smith, a White House adviser who worked on the First Step Act, with text messages and phone calls.
Advocates say screening for diversion programs would shrink the pool of applicants for government work and openings with thousands of federal contractors, which would have to comply. And they said an employer with 2.1 million workers should lead the way in the growing movement toward giving people second chances.
“I think this is something that Jared Kushner had no idea was going on,” Holden said. “It’s inconsistent with the First Step Act.”
A senior administration official, who spoke on the condition of anonymity to describe internal discussions, said the proposed update to hiring rules originated with the federal personnel officials. Kushner was not aware of the proposal, which was reviewed by the White House Office of Management and Budget, according to two people familiar with what he has told advocates.
The White House referred a request for comment to the Office of Personnel Management, which said in a statement that the current requirement that applicants disclose prior criminal conduct includes any participation in diversion programs. The new language is merely an effort to make that clear, it said.
“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.
“While disclosure of prior criminal conduct is required, it does not prohibit a person from being hired into the vast majority of federal jobs, and each decision is determined on a case-by-case basis,” it added.
Diversion programs have spread to almost every state and tend to be offered to first offenders, who often are young, and those charged with nonviolent crimes, including shoplifting, moving violations and drug possession. A defendant can avoid jail, for example, by completing an anger management or drug treatment program, performing community service or paying restitution.
California bans public and private employers from asking people whether they have completed diversion programs.
The new language requiring applicants to disclose their participation comes amid building political support to make it easier for those with criminal histories to get jobs.
The Obama administration moved in 2016 to prohibit federal agencies from asking applicants for government jobs about any criminal history until the end of the process, when they receive a conditional offer.
The policy was hailed by advocates as a step toward preventing former offenders from being dismissed for employment out of hand because of a mistake they made in the past. The policy exempts some jobs, including law enforcement and other sensitive security positions.
The Trump administration, joining more than 150 local governments in 33 states, kept the rule, known as “ban the box,” in place. Now, following supportive testimony in recent weeks from Democrats and conservative Republicans, Congress is on track to approve a bipartisan measure to make it permanent.
The proposed update to hiring rules would ask applicants to share more than criminal convictions at the end of the hiring process, specifying that they also disclose whether they have “been subject to judge or court specified conditions requiring satisfactory completion before a criminal charge has been or will be dismissed.”
If the answer is yes, the applicant must provide the date, an explanation of the charge, where it took place, and the name and address of the police and court involved.
Trump administration officials said agencies are seeking this information as they vet candidates — and called the disclosure requirement a way to speed up the background check process.
“They’re not big crimes, but they look into that, even though it’s not a criminal conviction,” said a senior administration official, who spoke on the condition of anonymity to discuss what has become a politically sensitive issue.
The idea that federal hiring managers have been seeking information about diversion programs surprised advocates, who said a background check is unlikely to turn up such participation, which can often be expunged from a person’s record. It’s unclear how hiring managers would be able to discover it.
FreedomWorks, a conservative group that pushes for criminal justice reform, last week posted a notice on its website urging its large membership to submit comments opposing the language.
“We’re still potentially stigmatizing people who’ve been put into diversion programs, and that’s a real problem,” said Jason Pye, the group’s vice president of legislative affairs. As of Friday, the proposal had received more than 3,000 public comments.
“This is just a huge step backward,” said Brent Cohen, a criminal justice expert and vice president for youth engagement at the Center for American Progress, a liberal think tank. “For an administration that has said they want to be champions of criminal justice reform, it’s just soaked in hypocrisy.”
Cohen and other activists noted that the White House was eager to promote Kushner’s efforts on behalf of a woman released from prison under the First Step Act in February who benefited from the law’s retroactive reductions of crack cocaine sentences. Kushner made a direct call to a top official at Walmart, which offered her a job.
Advocates are now questioning the administration’s commitment to fulfilling its promises on the law. The White House’s budget proposal initially fell far short of the funding it called for, then was increased under pressure.
“If you’re going to throw up obstacles to these individuals, you’re opposed to second chances for everyone,” said Holly Harris, former general counsel to the Kentucky Republican Party and executive director of the Justice Action Network, a bipartisan criminal justice reform group. “There’s a dearth of skilled labor in this country.”
Harris called the administration’s defense of its proposal a “word salad that’s attempting to justify something that’s unjustifiable.”
“Someone is attempting to undermine the president’s commitment to second chances,” she said. “It’s unfathomable that anyone in this administration would do this, and yet it’s been done.”
In its statement, the personnel office said the Trump administration has “publicly committed to reforming the criminal justice system and deeply believes in second chances,” adding that the office is reviewing positions considered off-limits to those with a criminal background in an effort to promote “second chance” employment.