The Criminal Record Millstone

There’s a lot of talk, some of it even bipartisan, these days about the need for criminal justice reform and for doing something to create upward mobility for poor and minority folk. Some observers even connect the two to note that mass incarceration has disproportionately taken away any prospect of a normal middle-class family life for millions of Americans, often due to deliberately hammer-headed mandatory minimum sentencing laws, criminalization of non-violent drug use, and “zero-tolerance” arrests that stigmatize people for who they are and where they live.

But there’s been far too little talk of the means by which these life-destroying stigmas are communicated: universally available criminal records that make those they mention “untouchable” when it comes to jobs and other opportunities. In the latest issue of the Washington Monthly, Gilad Edelman reviews James B. Jacob’s The Eternal Criminal Record, an account of how we got to the point large segments of our population are perpetually and without any individual scrutiny left beyond the pale.

It’s basically a story of how old and venerable legal principles of transparency combined with digital technology to eliminate the ability for anything like a “fresh start” for people with a criminal record. It’s a very recent development:

In 1996…only 50 percent of employers used background checks for some hires. But as more and more information was centralized by the state and made available online—spurred by the Brady Handgun Violence Prevention Act of 1993, which required states to create statewide databases—the commercial background check industry exploded. These companies can now compile data—most often by buying records online directly from the courts—and in turn sell it easily and cheaply. Single-state searches cost as little as $10, while a comprehensive nationwide search may cost only $60. Checking applicants’ criminal histories has become perfunctory.

So now the background check has become ubiquitous:

Three out of four employers run criminal background checks on all applicants, and some 90 percent use them for at least some hires. In studies, an overwhelming proportion of employers say they are unwilling to hire someone with a felony conviction. Many refuse to hire anyone with a record, period. The Equal Employment Opportunity Commission has declared that it’s illegal for companies to categorically exclude ex-offenders, but its rules leave enough wiggle room to make them difficult to enforce.

This ability and willingness to stimatize ex-cons has made a mockery of any idea of “rehabilitation.”

The single most important predictor of future crimes is whether or not an ex-offender finds work once he or she leaves prison. This creates what economists call a collective action problem: hiring ex-offenders reduces recidivism, which is in everyone’s best interest; but to any individual employer, the perceived risk of hiring someone with a record outweighs the marginal benefit to society.

The problem isn’t limited to actual offenders, moreover; simply being arrested–a heavily racialized event that may or may not have any connection to any real criminality in the era of “zero tolerance” policing–can be enough to blight lives, since police records of arrests are typically available to the public in an easy digital form.

So what is to be done short of making criminal records private (as is the case in many other countries)? Don’t employers have some right to know about their employees’ past criminal activity?

Edelman notes that sixteen states and many counties and cities have adopted “block the box” laws that prevent employers from asking about criminal records on job applications and then simply excluding anyone who “checks the box” with a “yes.” Under such laws they must at least conduct job interviews first. Categorical exclusion of ex-offenders from government contracts is another excessive practice that should be curbed.

More generally Edelman urges adoption of a need-to-know principle for easy access to criminal records. Obviously a transportation company would need to know if someone applying for a driver’s job has a record of DUIs. But general bans on hiring of anyone with a criminal record–or even a record of arrests–should not be assumed to be fair or rational. And it’s also not obvious why criminal records need to be made available in digital form for bulk purchase by background-check companies.

This isn’t just a matter of fairness or justice or even mercy, but also of efficiency: Edelman cites a study from the Center for Economic and Policy Research indicating that the economy loses $57-65 billion in output each year from the exclusion of ex-offenders from the workforce.

The bottom line is that all the criminal justice reform in the world will not have the intended effect for a long time so long as pre-reform records are allowed to permanently stigmatize people we’ve now decided should probably have never been arrested, tried or imprisoned.

The policies surrounding criminal records are mostly the product of inertia. They also embody the assumption that everyone who commits a crime is somehow forever bad, dishonest, or dangerous. For everyone’s sake, governments and employers would do well to revisit that assumption. As long as ex-offenders are systematically kept out of the workforce, it may be a self-fulfilling prophecy.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.