Our Criminal Justice System Is Biased. Access To Criminal Records Makes It Worse.

People with criminal records — especially blacks — face hidden consequences years after their sentences end. But access to those records is a First Amendment right. Is there anything anyone can do?

Mass incarceration has left our beloved country in a very bad way.

Fueled by mandatory minimum sentencing laws and other factors, the statistics speak for themselves:

  • Our country’s incarcerated population reached its highest in 2008 totaling more than 2.3 million people, of which nearly 1 million were African American [ABC News].
  • One in 87 working-aged white men is in prison or jail, compared with 1 in 36 Hispanic men and 1 in 12 African American men [NAACP].
  • It’s estimated that approximately 1 in every 28 children in the United States now has a parent in jail or prison, and that 1 in 9 black children has a parent in jail or prison, a rate that has more than quadrupled in the past 25 years [Pew].

These inequalities also manifest themselves after the debt to society has been paid — be it through time served, fines paid, or community service completed.

Collateral Consequences: The Residual Effects Of A Criminal Conviction

Long after the criminal act has been committed and the punishment served, people with convictions face collateral consequences, which include a swarm of legal restrictions and regulatory sanctions [American Bar Association].

The exact consequences depend on many factors, such as the type of conviction committed, race, and all applicable state and federal codes. But generally speaking, people suffer restrictions or full bans on:

  • Housing (including access to government housing)
  • Certain types of employment
  • Occupational and professional licenses and certifications
  • Voting
  • Government loans and grants (including student loans)
  • Motor vehicle licenses; and
  • Government benefits (including food stamps) [ABA].

The American Bar Association’s Collateral Consequences Map, which links criminal convictions to state-specific collateral consequences, shows the scope of restrictions and full bans.

American Bar Association’s Interactive Collateral Consequences Map

There is perhaps no greater driver of collateral consequences than a criminal record — arguably the largest roadblock for those who need a fresh start.

Criminal records are files about a person’s arrests, charges, convictions, and punishment. They’re created, collected and stored by courts and law enforcement agencies.

Today, most employers use criminal records as a hiring tool. The problem comes when they automatically filter out every applicant with a criminal record.

A “Hit” Is Not A Harbinger

We are wired to think in binary — good and bad, criminal and noncriminal. So, not surprisingly, it’s this same lens through which we see a “hit” — or criminal conviction — on a background check. But as much as some may want them to be, the presence of a criminal record is not an indisputable harbinger of future behavior.

Criminal records do not and cannot tell us that a particular person will commit a crime in the future. And they certainly don’t tell us if she’ll show up to work on time, do her job well, or make a meaningful contribution to her community. Criminal records are snapshots, a window into one’s life at a precise moment in time. They should not — they must not — brand a person in perpetuity.

But they do.

Perhaps this is most obvious in employment.

Getting A Job With A Criminal Record

Of the collateral consequences that people with criminal records face, employment is one of the hardest to overcome. A criminal record significantly limits employment chances. Indeed, people who have a record land fewer jobs, earn less, and have less economic mobility than people who don’t [Petersen, 2015].

Blacks are the hardest hit.

For example, in 2003, one researcher looked at the effects of both race and criminal record on job prospects for entry-level positions in low-skill jobs. Two white and two black male college students were assigned as testers — “all were bright and articulate, with appealing styles of self-presentation.” The white pair audited 150 employers, and the black pair a total of 200 employers. The analysis revealed that 34% of white male applicants with no prior conviction received a call back for the job compared to only 17% of those with a conviction [Pager, 2004; Kurlychek, et al., 2006].

The black testers fared considerably worse, with only 14% of non-offender applicants receiving a call back, in comparison to the dismal 5% of applicants with a criminal record [Pager, 2004; Kurlychek, et al., 2006]. What this research indicates is that while criminal records do affect hiring, being black — regardless of criminal records status — affects employment chances more.

Findings like these raise the question: How would blacks fare if no criminal records were used at all?

Studies have shown that when employers don’t have access to criminal histories, they end up hiring fewer black people. The reasoning for why they do this is because they believe there’s a higher proportion of offenders among blacks [Petersen, 2014]. So, for them, hiring a black person is tantamount to hiring someone with a criminal record.

Sadly, this means that the absence of a criminal record may not even matter for some segments of the population.

Online Access Makes Criminal Records Permanent

The wide availability of criminal records to anyone with an Internet connection intensifies the challenge for people — especially blacks — reentering society after incarceration [Elmore, 2015].

This easy availability, combined with their low cost and commercialization, has made criminal records so sought after that they are now a staple ingredient in decisions regarding employment, credit, insurance, and housing.

Records that once stayed buried in government filing cabinets now populate databases owned by commercial data brokers, background screening companies, and people search sites.

And once these records are put online, they may be available forever.

US criminologists view this seemingly inexorable movement toward completely public criminal record information negatively. They believe that such a system poses a significant obstacle to prisoners’ reintegration and prevents people from rejoining society [Jacobs & Larrauri, 2011].

Why Criminal Records Are Public

So, if open access to criminal records helps facilitate, and even fuel, these collateral consequences, why do we as a society allow it? Why doesn’t government restrict access so that only those with a need-to-know can view them?

The short answer is: It’s not that simple.

The Supreme Court sees Americans’ access to criminal records as a constitutional right. On several occasions, they’ve held that criminal proceedings and the records that accompany them are protected under the First Amendment. [See, for example, Richmond Newspapers, Inc. v Virginia; and Nixon v Warren Communications, Inc.]

Most of us immediately think of our right to freedom of speech when we hear the words First Amendment. But it covers so much more, both as written and as interpreted by the Supreme Court.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

A prominent theme in the Court’s interpretation is the assurance of checks and balances. Resolving court cases in public gives citizens a view into the workings and decision-making of government officials, which promotes accountability, fosters public confidence, and provides notice of the legal consequences of behaviors and choices [Reagan, 2010].

So, the Court’s interpretation comes down to this: If a person obtains information about a criminal conviction, the First Amendment protects her right to publish the names of people who have been convicted, acquitted, or even arrested [Jacobs & Larrauri, 2011]. This same protection extends to the media and people search companies, background screening companies and data brokers — unless prohibited by law.

Figure 1: Key Milestones Of Criminal Records

In the last several years this interpretation has cleared the way for a host of state and federal mandates that require the use of criminal records as a way to address crime prevention, child protection, fraud mitigation, and greater government transparency (Figure 1).

Like It Or Not, Criminal Records Are A Necessary Component Of American Society

Criminal records serve important purposes to society — especially for government, which is perhaps the largest stakeholder, seller, and proponent of such records.

Government leverages criminal records, including rap sheets, to:

  • Locate witnesses and suspects to investigate crimes and to assist in judicial proceedings
  • Assess risk of flight and future criminality for pretrial and post-trial detention
  • Make prosecutorial decisions on diversion, charging, and plea bargaining
  • Determine appropriate sentences [Jacobs, 2006]
  • Check backgrounds of people responsible for child, elder, and disabled care
  • Conduct background checks to protect public safety and national security
  • Identify felons and others prohibited from firearm purchases
  • Identify people who have a history of domestic violence or stalking [BJS]

Clearly, criminal records serve a meaningful purpose. And, given the long list of state and federal mandates in effect, they aren’t going anywhere.

Criminal Records Are Here To Stay, So We Need To Humanize Their Use

Just as the criminal justice landscape and the impact of criminal records’ availability have evolved over the years, the public’s access and use of these records should, too.

We need to humanize our approach.

For one thing, we need to challenge the binary view that people are either criminals or not.

Over the last decade or so researchers have been hard at work trying to better understand hazard rates — the number of years it takes for an ex-offender’s predictive risk of committing a new crime to equal that of the general population.

This research digs at the core of society’s stigma around those with criminal records. Many tend to believe that people with records — even from the distant past — are more likely to commit new crimes than those with no criminal history at all [Kurlychek, et al., 2006].

But that’s not true, according to the research. The probability of reoffending is based on several factors, such as time, age, and the type of crime committed.

Here is what the research suggests:

  • The hazard rate for reoffending decreases steadily with time since the last incident.
  • For one-time offenders, hazard rates decline dramatically as the age of the offender increases — from ten years after conviction for the youngest groups of offenders to two years for offenders between forty-two and forty-six years old [Elmore, 2015; Bushway, et al., 2011].
  • For offenders with four or more offenses, redemption rates are substantially longer, from ten years for the oldest reoffenders to twenty-three years for younger offenders [Elmore, 2015; Bushway, et al., 2011].
  • The type of crime may dictate the hazard rate. For example, researchers found that the hazard rate for people arrested in their 20s for burglary is 3.8 years, while those arrested for robbery in their 20s is 7.7 years. (Robbery includes the threat of force of violence whereas burglary does not.) [Blumstein & Nakamura, 2009]
  • Employment can help to reduce the risk of recidivism [Tripodi et al., 2010].

This research surfaces hope for ex-offenders wanting a fresh start. And it helps to challenge the stigma around those with a criminal record.

Another promising development in the humanization of how we think about criminal records comes from my own employer.

GoodHire, an employment background screening company, is working to help people with criminal records get a fair shake.

We know that employment may have a significant impact on recidivism [Tripodi et al., 2010]. If people have jobs, they’re much less likely to reoffend. They’re also more likely to pay restitution to their victims, and they’re better able to support their children [Western & Pettit, 2010]. So, employment is not only positive for the individual, but for society as a whole.

Yet we also know that background checks are a barrier to employment for people with a record. To help erode the binary gauntlet of criminal records, we introduced our Comments for Context feature, so that employers can see the person behind the record.

Comments for Context lets job seekers provide more details about their record than a traditional background check provides. In their own words, they can explain the context around the offense, along with any steps they’ve taken since the conviction occurred. This additional information gives prospective employers a way to consider the whole person, rather than just the record, when making their employment decision.

Moving Forward

Unquestionably, there’s still a lot of work to be done. But hazard rate research and contributions like GoodHire’s Comments for Context are serious steps in the right direction.

We need to humanize our approach to criminal records. If we don’t, our workforce pool and economy will suffer. Our communities will suffer. Race relations will suffer. And so will our nation’s kids.

So, what’s the solution? Well, we can start by focusing on these areas:

  • Encouraging government to incentivize private companies to hire ex-offenders through subsidies, tax credits, and reasonable negligent hiring protections
  • Overturning existing laws that disenfranchise people with criminal records and lobbying against new ones.
  • Creating real opportunities for those incarcerated to have access to education and work experience.

Over sixty million Americans have a criminal record. That figure means that we likely all know someone who has been convicted of a crime. A family member. A partner. A friend. A neighbor. A colleague.

The question is simple: Would you give that person a second chance?


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