The share of American men with criminal records — particularly black men — grew rapidly in recent decades as the government pursued aggressive law enforcement strategies, especially against drug crimes. In the aftermath of the Great Recession, those men are having particular trouble finding work. Men with criminal records account for about 34 percent of all nonworking men ages 25 to 54, according to a recent New York Times/CBS News/Kaiser Family Foundation poll.Remember: unlike race, creed, gender, ethnicity or sexual orientation, having been in prison is not a protected status under the law when it comes to discrimination. Meaning, employers cannot discriminate against you based on those other categories, but if you've been in prison? Delete.
The reluctance of employers to hire people with criminal records, combined with laws that place broad categories of jobs off-limits, is not just a frustration for men like Mr. Mirsky; it is also taking a toll on the broader economy. It is preventing millions of American men from becoming, in that old phrase, productive members of society.“Prior to the prison boom, when convictions were restricted to a smaller fraction of the population, it wasn’t great for their rehab potential but it wasn’t having a huge impact,” said Devah Pager, a Harvard professor of sociology. “Now such a large fraction of the population is affected that it has really significant implications, not just for those people, but for the labor market as a whole.”
Naturally, the "criminal records industry" is pushing back.Rising concern that background checks are being used to systematically exclude applicants with criminal records is fueling a national “ban the box” movement to improve their chances. The name refers to the box that job applicants are sometimes required to check if they have been convicted of a felony or a misdemeanor. Fourteen states and several dozen cities have passed laws, mostly in recent years, that generally require employers to postpone background checks until the later stages of the hiring process.Georgia became the latest state to join that list when Gov. Nathan Deal signed an executive order Monday. It described the new policy as a matter of fairness and a way to strengthen the state’s economy by expanding the pool of workers. New Jersey passed its own “ban the box” law last year. It is scheduled take effect March 1.
The ready availability of criminal records databases has fueled the perception that it is irresponsible for employers to ignore available information. Local governments increasingly put criminal records online, and private companies like HireRight, Sterling BackCheck and LexisNexis Risk Solutions aggregate those records, offering almost instant results. In the early 1990s, less than half of companies routinely checked criminal histories. Now relatively few refrain.The information contained in the criminal record databases pedaled by private companies is wrong almost exactly 50% of the time.
“Criminal background screening is an important tool — nearly the only tool — that employers have to protect their customers, their employees and themselves from criminal behavior,” Todd McCracken, president of the National Small Business Association, testified before a congressional committee last year. Local, state and federal governments have embraced the same logic, writing background checks into professional licensing requirements and post-9/11 security regulations.
The quality of the information used in background checks is another cause for concern. One of the most common problems is that databases may include arrest records without any indication of whether a person was convicted
My colleague Sarah Shannon and Chris Uggen of U.Minn take it from here.
As I've written before, colleges and universities, perhaps unwittingly, perhaps not, play a direct role in Big Incarceration by routinely screening out student applicants who have any kind of criminal conviction on their record. Information, frankly, that is none of a college's business.These policies affect a growing number of people. About 10 percent of nonincarcerated men had felony records in 2010, up from 4 percent in 1980, according to research led by the sociologists Sarah Shannon of the University of Georgia and Christopher Uggen of the University of Minnesota. The numbers are much higher among African-American men: About 25 percent of nonincarcerated black men had been convicted of a felony, up from 9 percent in 1980.The problem with criminal background checks, in Mr. Uggen’s view, is a lack of deliberation about what employers should be looking for. Some employers ask about convictions for felonies; some ask only about narrow categories of felony like violent crimes or sex crimes. Others ask about any arrest whatsoever. “We haven’t really figured out what a disqualifying offense should be for particular activities,” he said.Mr. Uggen was himself arrested few times as a Minnesota teenager for fighting and other minor sins but, when he submitted his college application to the University of Wisconsin, he was not asked and he did not tell. Now a professor, he said that some of his own students were not able to escape the past so easily.Colleges routinely ask applicants about criminal history. So do landlords.“For somebody of my generation who had a brush with the law, they were able to quickly put it in the rearview mirror and move on,” said Mr. Uggen, who is 50. “Now I have graduate students who maybe 10 years ago they were convicted of a crime and for them to try to get an apartment, it’s a huge barrier.”
Nearly three out of four colleges ask applicants a variation of the question most dreaded by those who have been on the wrong side of the law: Have you ever been convicted of a crime?I should point out when I say above, that they routinely weed out applicants based on this information, it is certainly not something the student ever knows about. They just get the standard, routine chain rejection letter, no explanation necessary or required on behalf of the college.
Some colleges are only concerned with violent felonies, others with misdemeanors or even high-school suspensions. And what they do with that information, ostensibly gathered only to keep their campuses safe, varies widely.
Relatively few reject students outright on the basis of criminal convictions, but many require those applicants to jump through so many hoops, gathering letters from probation officers and corrections officials, waiting additional months for committee deliberations, that the students give up.
And the college's defense (we have to weed out the potential sexual assailants and school shooters), while somewhat understandable, is out of proportion to the true threat.
Many of the colleges that now pore over applicants’ rap sheets began doing so in response to violent crimes by students, including the mass shooting at Virginia Tech in 2007.Precisely. You want to stop recidivism and help turn someone's life around? Get them an education. We shoot ourselves in the foot, literally, by continuing to punish these people via college admission or employment denial, long after they've paid their debt to society.
Colleges are also acutely aware today of their responsibilities in preventing sexual assaults, a factor that could cause more to turn away applicants with histories of sex crimes. Such policies, some campus officials argue, could help protect students from harm and colleges from lawsuits.
But there is no evidence that people with criminal histories are any more likely to commit crimes on campus, or that any of the recent campus shootings, including those at Virginia Tech, were by people with criminal histories, says Robert A. Stewart, a doctoral student at the University of Minnesota-Twin Cities, who is conducting a nationwide study of such screenings.
After examining the applications of about 1,400 baccalaureate colleges in the United States, Mr. Stewart found that about 70 percent inquired about students’ criminal records. About 58 percent of the public colleges and 78 percent of the private colleges did so.
Answering yes rarely means automatic rejection, but the scrutiny that usually follows is enough to make some applicants feel unwelcome, says Alan Rosenthal, co-director of justice strategies at the Center for Community Alternatives, an advocacy group for the rehabilitation of juvenile offenders.
"We know education reduces recidivism," he says. "So if you close your doors, thinking you’re keeping your campus safe, you’re undermining the safety of your communities."
There is hope, perhaps, but it's limited.
The United States Equal Employment Opportunity Commission warned in 2012 that the systematic exclusion of people with criminal records was effectively a form of discrimination against black men, who were disproportionately affected. It has filed lawsuits charging such discrimination by companies including BMW, Dollar General and Pepsi.I say limited because it's still only race that is a protected status here under employment discrimination laws. It might benefit African-American men most (and certainly is necessary), but what about white, Hispanic, Asian or Native American men who are systematically discriminated against based on criminal conviction?
In the end, these are what penologist Marc Mauer calls "the invisible punishments." They are subtle, latent forms of discrimination and punishment that follow ex-felons around, long after they have served their sentences and paid their debt to society, thus creating further collateral damage via the war on crime.
And by denying ex-cons gainful employment or educational opportunities, we merely perpetuate the cycle of repeat criminal behavior and recidivism.