Criminal%20Background%20Checks%20

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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

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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

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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?

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Whats 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

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Whats 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

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Whats 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

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Whats 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.

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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

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So whats 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.

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Isnt that appropriate?

• Shouldnt prior offenders be treated with greater
  suspicion and concern than those seeking jobs or
  housing who have no criminal history?
• Dont 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?

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The problem!

• Prior offenders are left with an untenable
  version of the societal social compact
• A sentence is imposed as punishment for the
  offenders transgressions.
• Offenders 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

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The problem!

• Prior offenders who have completed their
  sentences
• Are denied jobs and housing, and may not coach
  their childs soccer team or lead their childs
  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

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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

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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.

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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 FBIs 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.

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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.

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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.

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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
  companys owner justified the expenditure by
  stating it was the only way we could think of to
  reassure our clients that theyre safe with our
  drivers

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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 hadnt 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.

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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

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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

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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

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Solutions what dont 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).

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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.

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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.

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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

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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
  applicants 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.

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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.

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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.

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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.

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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 laws
  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.

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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.

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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.

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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.

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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?

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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.)?

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Thanks!( and now, Charlie Friel!)