Case Highlights: Incarceration and Past Earnings Loss

So where do I start? First, the above earnings loss assumes that the violent sex offender would work every day from the age of 36 to age 65. A given retirement age of 65 is complete speculation and displays zero support from objective data. There was no examination by the expert of realistic variables that would cause one to leave the work force. These variables can include injury, health, mortality, and transition between jobs and careers. All variables and the probability of their impact on work life is exhibited by statistical work life tables. Given the man’s age, gender and education, on average we could expect the individual to work an additional 17 years compared to the 29 years given by my counterpart.

 

Furthermore, there was zero consideration from my counterpart concerning the risks of recidivism and leaving the labor force in the future. Recent studies have found long-term recidivism for state prisoners is at 83 percent over a nine-year term and 64 percent for violent offenders in federal prison over an eight-year term[1]. There are obvious impacts on future work-life due to the intermittent participation and the potential to exit the work force permanently[2]. This research would lead to a strong argument to further discount the future work-life expectancy of the ex-offender.

 

It may prove to be difficult or speculative to calculate the ex-offender’s near-term and long-term future earnings capacity. If pre-incarceration records are available, we can compare the individual at that time to his peer group. The Bureau of Labor Statistics [BLS] publishes Census survey earnings data by educational attainment. In this case, I reasonably argued that the individual was already on a path of underachieving from an earnings perspective. It’s difficult to argue against the foundational basis of the individual’s historical earnings pattern. In other words, if the individual earned at the 60th percentile when compared to his peer group prior to his incarceration, isn’t it a stronger likelihood that the individual will continue to earn at the 60th percentile upon his release? Forensics are required to assert opinions based on a “more probable than not basis”. I presented the idea that in the future, we could expect the individual to earn 60 percent of his peer group average as an earnings assertion.

 

[1] Matthew Clarke, “Long-Term Recidivism Studies High Arrest Rates”, Prison Legal News, May 3, 2019,60

[2] Needham, Allyn and Shannon Shipp. “The Impact of Recidivism on Projecting Future Earnings for Individuals with a History of Correctional Supervision.” Journal of Forensic Economics 16(3) (2003): 275-281.

Further, there is a strong probability that restrictions will be placed on the type of careers the individual can pursue and the competition for jobs is no longer a level playing field. Quite simply, certain professions require a license that cannot be held with a felony record. Civil jobs for the city, county, state or federal authorities are closed to the individual with a history of correctional supervision. Survey research has demonstrated the strong likelihood that a low percentage of employers would actually hire an ex-offender.[1] These are examples of external factors in the labor force the individual faces upon their release. One also must consider the factors that have advanced or remained stagnant specific to the individual as a result of prison time. Upon their release from prison, the individual has been disallowed of their development of human capital and social capital[2]. Examples of human capital would be the  acquisition of job skills necessary to remain continuously employed. Examples of social capital are the personal contacts and infrastructure of professional contacts.

 

Without considering the individual’s conviction, incarceration, and recidivism, an overestimate of future active work years and earnings capacity will most likely occur. The forensic must avoid speculation of the work years and earnings and employ objective data centered on the ex-offender and his employment prospectus.

 

[1] Holzer, Harry & Raphael, Steven & Stoll, Michael & Professor, Associate. (2005). The effect of an applicant's criminal history on employer hiring decisions and screening practices: Evidence from Los Angeles.

 

[2] Needham, Allyn and Shannon Shipp. “The Impact of Criminal Convictions on Calculations of Lost Earnings in Personal Injury and Wrongful Death: Issues for Forensic Economics and Vocational Assessment.” Journal of Forensic Economics. 18(2-3) (2005); 187-195

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