The update to hiring requirements was posted for public comment in late February by the Office of Personnel Management. The change would have required applicants who receive a conditional job offer to note on a form any participation in a diversion program. The answer could lead a hiring manager to rescind the offer.
An administration official, who was not authorized to speak publicly about the decision, said the White House told the federal personnel agency to drop the new language following an outcry from advocates and a report in The Washington Post.
An OPM official confirmed the administration had dropped the proposal and said the agency would provide comment later. The proposed change was first reported in March by the Marshall Project.
Diversion is a widely recognized sentencing alternative designed to help low-level offenders avoid prison and a criminal record by completing drug treatment, anger management or community service programs.
OPM staffers who came up with the proposal said they were trying to speed up the hiring process. They said that background checks already can turn up whether someone went through a diversion program. Advocates dispute their assertion, since the point of successful alternative sentencing programs is to clear someone’s record.
The new requirement had escaped Kushner’s notice. It blindsided liberal and conservative groups, which formed an unlikely coalition last year to push major legislation through Congress called the First Step Act that revises sentencing laws and expands reentry and early release programs.
“The prospect of stigmatizing people who have gone through a diversion program is horrible,” said Jason Pye, vice president of legislative affairs for FreedomWorks, a conservative group that pushes for criminal justice reform. FreedomWorks members submitted almost 1,000 of 3,900 comments to the Federal Register against the change.
“The sentiment against this was overwhelming,” Pye said. “If the administration wants to do something in the criminal justice field, they should talk to stakeholders first.”
The proposal drew opposition from lawmakers in both parties, as well as from prosecutors and public defenders.
If the Trump administration had moved forward with the proposal, critics said, that would have muddied the president’s efforts to show his commitment to a fairer justice system.
That promise has moved front and center in the presidential race, as Trump has attacked former vice president Joe Biden over his role in shepherding a 1994, Bill Clinton-era crime bill through Congress.
The legislation was a centerpiece of the tough-on-crime movement of the 1990s that Biden is having to confront on the campaign trail more than two decades later. Views on criminal justice have shifted, and the law is now controversial because of its disparities in sentencing guidelines for crack and powder cocaine offenses and its role in increasing incarceration rates.
“Anyone associated with the 1994 Crime Bill will not have a chance of being elected. In particular, African Americans will not be able to vote for you,” Trump said in a tweet recently in a swipe at Biden, who polls show is leading the Democratic field.
“I, on the other hand, was responsible for Criminal Justice Reform, which had tremendous support, & helped fix the bad 1994 Bill!”
Advocates said Wednesday that any move to raise, rather than lower, the stakes for job applicants with arrests for low-level offenses would backfire.
“It’s a smart political play to pull it back,” Holly Harris, former general counsel to the Kentucky Republican Party and executive director of the Justice Action Network, a bipartisan criminal justice reform group, said of the decision on the hiring proposal.
“When you’re the president out there claiming credit for criminal justice reform, the rule would have reversed the narrative the president needs to run on to win key battleground states,” Harris said.
Since congressional passage of the First Step Act, the White House has invited the first prisoner released under the law to be Trump’s guest at his State of the Union address in January and hosted a summit in April highlighting other beneficiaries of the law.
Administration officials, seeking to defend the proposed hiring policy last month, said it would not disqualify a candidate from getting a job. But advocates said there was no way to ensure an even playing field for someone who made a mistake and was given a second chance by the court system.
OPM officials said they proposed the change to smooth the cumbersome federal hiring process. When hiring officials conduct what are known as “suitability checks” of applicants’ backgrounds before they extend final job offers, they could learn, from neighbors or friends, for example, that a candidate had gone through a diversion program.
Requiring the disclosure up front would have sped up the process, they said.
Diversion programs have spread to almost every state. Judges generally offer them to first offenders who are often young and those charged with nonviolent crimes such as shoplifting or drug possession. Private companies do not tend to ask job applicants to disclose participation in sentencing alternatives.
Hearing that the proposal was withdrawn, advocates urged the Trump administration to take its support for reform still further, by supporting legislation pending in Congress to make permanent an Obama-era rule called “ban the box.”
That proposed policy, which has passed House and Senate committees, prevents federal agencies from asking applicants for government jobs about their criminal history until they receive a conditional offer.
“Don’t stop there,” said Will Heaton, vice president of government affairs and policy at JustLeadershipUSA, a nonpartisan advocacy group. “If the president can get on his Twitter feed and throw his support behind this bill in recognition that criminal justice reform is not just a one-and-done effort, we would applaud it.”