Criminal Background Checks & Prior Offenders: A Discussion of Policy Choices

Criminal Background Checks & Prior Offenders: A Discussion of Policy Choices Prof. Kent Markus, At-Large Member SEARCH Membership Group Meeting January 28, 2005 St. Pete Beach, FL

Two Session Goals • Discussion of a public policy issue impacting criminal history repository managers • Discussion of the role of those with substantial knowledge about state criminal history record systems in the development of related public policy

The Public Policy Question • What steps, if any, should public policymakers take to ease the societal re-entry of prior offenders in an era of increasingly pervasive employment, housing and other non-criminal justice background checks?

What’s going on? • Not long ago, the fact of a criminal conviction was relatively inaccessible to the general public • Dramatically expanded technological and record storage capacity changed everything

What’s going on? • Technological advancements expanded access to records that, individually, were always public: • Made public desire for criminal history record information reasonable • Made commercial vendors viable • Accordingly: • Governmentally managed web & other access increased whenever authorized by open record laws • Purposes for which governments authorized access expanded (and continues to expand) • High volume commercial vendors developed

What’s going on? • Now, background checks are widely utilized by private employers, landlords, and myriad others in our society with the authority to grant prior offenders access to jobs, housing and other aspects of everyday life in society necessary for them to become productive citizens and to avoid recidivism

What’s going on? • These background checks are utilized with few limitations, and with even less guidance about their relevance to the employment, housing and other critical decisions being made.

An aside … • Not talking here about circumstances in which policy makers have already made their own judgments about the relevance of criminal activity to various jobs or other opportunities (e.g. - statutory prohibitions on those with certain backgrounds being employed in certain professions, having access to public housing, being allowed to adopt children, etc.) • My focus today is on public and private decision-makers with discretion to utilize criminal history information as they see fit

So what’s the problem? • Criminal history records, now quite pervasively available, are being routinely and extensively used to exclude prior offenders from basic life opportunities and needs.

Isn’t that appropriate? • Shouldn’t prior offenders be treated with greater suspicion and concern than those seeking jobs or housing who have no criminal history? • Don’t employers, landlords, and day care operators have an obligation to protect their employees, tenants and client families from harm that might come from a prior offender?

The problem! • Prior offenders are left with an untenable version of the societal social compact: • A sentence is imposed as punishment for the offender’s transgressions. • Offender’s completing their sentences are told they have repaid their debt to society; they must sin no more, reject crime and become productive members of that society • And yet …

The problem! • Prior offenders who have completed their sentences: • Are denied jobs and housing, and may not coach their child’s soccer team or lead their child’s scout troop • Are branded with an indelible mark that provides various societal decision-makers a powerful reason to avoid the actual and perceived risk associated with involving a prior offender in their affairs • Are part of an ever-growing underclass looking at recidivism as a practical choice

The problem made worse … • Those incarcerated as part of their criminal sentence have a harder time re-entering society – a harder time obtaining employment and housing, post-incarceration, than those sentenced but not incarcerated

The problem made worse … • Between 1972 and 1999, while the American population increased by 28%, the American prison population increased by more than 500%. • While in 1990, 405,000 inmates were released from American prisons, by 2002, over 650,000 inmates were released. • It is estimated that in about 5 years, in 2010, 1.2 million prisoners will be released to society in search of new lives.

How much background checking? • A 2001 survey of state criminal repositories revealed 29 states with a policy that its own records could be accessed by “anybody” • There are now over 1500 state statutes permitting access to the FBI’s national background check system ranging from traditionally authorized entities like schools and day care providers, all the way to those seeking a mortuary license or employment in the dry cleaning industry.

How much background checking? • In 1991, the FBI processed 3.85 million non-criminal justice background checks requests unrelated to ongoing criminal cases or investigations. By 1997, that number had reached 6.85 million and in 2003, 8.6 million. • In 2002, for the first time in its history, the FBI processed more non-criminal justice background checks than criminal justice background checks.

How much background checking? • The expanded access and use of criminal background checks through governmental sources is dwarfed by activity in the new private criminal background check industry • ChoicePoint, one of the largest commercial information vendors in the country, conducted roughly 1 million background checks in 1997. Five years later, that number had ballooned to 6.1 million. A senior ChoicePoint executive estimated that in 2003, commercial vendors provided between 50 and 100 million criminal background checks to employers, landlords and other societal decision-makers.

Even more checks post-911! • The instinct to conduct background checks was notably reinforced by the 9/11 attacks • One private limousine company spent over $40,000 to conduct criminal background checks on all of its drivers just two days after the attacks. The company’s owner justified the expenditure by stating “it was the only way we could think of to reassure our clients that they’re safe with our drivers…”

Even more checks post-911! • One corporate senior vice president told the NYT that though it was unlikely that his company had hired any terrorists, his company was stepping up its security screening because it “wanted to make sure someone with a felony history [hadn’t] snuck into [his] organization.” • One private background check vendor told the Charlotte Observer that after 9/11, his 200 to 250 checks per month skyrocketed to 3,500 to 4000 checks per month.

The public policy quandary • It is undoubtedly the case that there are certain types of offenders who should be denied employment or volunteer positions they seek; prohibitions on convicted child sexual predators working in day care centers are reasonable and appropriate

The public policy quandary • The difficult question is, are there ways to facilitate the “appropriate” use of criminal history record information while discouraging its across the board use to bar all prior offenders from the jobs, housing and other societal benefits they need to reintegrate and remain ex-offenders

Solutions: what do we know? • Those who commit crimes are statistically more likely to commit another crime than those who have never committed a crime. • Prior offenders unable to obtain jobs or housing are substantially more likely to return to crime than those who obtain jobs and housing

Solutions: what don’t we know? • The “Backgrounding of America” Task Force has thus far been unable to identify any empirical evidence demonstrating a relationship between offense types and employee or tenant suitability (or suitability to provide other functions for which background checks are routine).

Possible public policy responses 1) Record use education: Develop and provide guidance about effective and appropriate use of criminal history information in discretionary decision-making. While it is not uncommon for the government to recommend that various employers, for example, conduct background checks, it is almost unheard of for the government to suggest how those employers use that information once they have it. While comparatively non-controversial, the mere provision of guidance is unlikely to bring about substantial improvement in the current national situation.

Possible public policy responses 2) Restrict access to records: More severely restrict access to federal and state criminal history repositories and the distribution of criminal history information to commercial vendors. This approach is probably politically untenable and may well be shutting the barn door after the horse has already escaped given the information already possessed by commercial vendors.

Possible public policy responses 3) Restrict use of information: While Title VII currently limits use which would have a disparate racial impact, proving such claim is well beyond the capacity of the vast majority of ex-offenders. Some states have enacted statutes that limit or prohibit use in various ways. Wisconsin law prohibits all employers and licensing agencies from practicing employment discrimination based on arrest or conviction information but …

Possible public policy responses 3) Restrict use of information (cont.): the statute has been read by the Wisconsin courts to permit employers to deny employment when an applicant’s criminal history is “substantially related” to the required job duties. Several state statutes use “time elapsed since conviction” in determining whether an employer may use criminal history information. The ABA has supported restrictions on end-user utilization of criminal history information.

Possible public policy responses 4) Purge more records: Expand and ease the process by which certain arrests and convictions are officially expunged. In many ways this is simply a more aggressive version of restrictions on access to the records since they would not only be “unavailable” but legally a nullity. This solution would likely face substantial law enforcement community resistance.

Possible public policy responses 5) Keep certain adjudications out of the records: Florida has a law permitting judges to withhold the adjudication of felony offenders. This practice, explicitly designed to give “a one-time break to help first-time offenders” allows those offenders to say that they had never been convicted of a crime. This 1941 statute has been under heavy attack recently.

Possible public policy responses 5) Keep certain adjudications out of the records (cont.): An extensive study by the Miami Herald found that the withholds were being administered in a highly racially disparate manner and that more than 17,000 defendants had been given a free pass more than one time with a few identified instances of defendants receiving “withholds” as many as five times.

Possible public policy responses 5) Keep certain adjudications out of the records (cont.): In July of last year, the Florida legislature rewrote the withhold law to substantially restrict the authority of judges to issue “withhold” orders. Yet even the new law’s limited “withhold” authority is being undermined by commercial background check vendors who are providing discretionary decision-makers information about cases in which individuals had their convictions formally withheld.

Possible public policy responses 6) Tax credits for risk takers: Provide tax credits to employers, landlords and others who take risks with prior offenders (though hiring, leasing to, etc.). While the federal government has a limited program of this nature in place for employers, as do a small handful of states, if the goal is to widely encourage employers, landlords and others to take a chance on individuals who bring special problems to the table with them, these programs will have to be more generous and more extensive, costing substantial tax dollars.

Possible public policy responses 7) Liability immunity for risk takers: It is absolutely clear that fear of liability is a major factor in employer and landlord discretionary decision-making about prior offenders. If society wants reduce the likelihood that prior offenders will recidivate, the society may have to collectively bear some of the risk that prior offenders abuse the second chances they are provided.

Possible public policy responses 8) Services for prior offenders: Job training, subsidized job placements, anger management certification, and other governmentally supported efforts to make it more palatable for employers, landlords, and others to take risks with prior offenders and might help make prior offenders appealing employees, tenants, etc. but this seems like a very hard sell that is also quite expensive.

Possible public policy responses 1) Record use education 2) Restrict access to records 3) Restrict use of information 4) Purge more records 5) Keep certain adjudications out of the records 6) Tax credits for risk takers 7) Liability immunity for risk takers 8) Services for prior offenders 9) Others?

What do you think? • Which public policy responses do you like? • What role should all of you take in debates about these policy questions in your home states? • Should you express your own views or simply wait for decisions by policy makers? • Do policy makers know that you have extensive knowledge about the criminal background checks being conducted (e.g. – purpose, volume, etc.)?

Thanks!(… and now, Charlie Friel!)

Criminal Background Checks & Prior Offenders: A Discussion of Policy Choices