One of our great romantic national myths is that no matter what you have done wrong, it’s pretty much always possible to remake yourself. You can move, take a new name, turn over a new leaf; the point is, your past need not define your future. Stories of reinvention have always had special resonance in America, from “Huckleberry Finn” to “Pretty Woman.”
But over the course of the last several decades, reinvention has become harder than ever for a huge and growing class of Americans: people with criminal records. Today, about a quarter of the US population carries some kind of record, with about 9 percent bearing felony convictions. Meanwhile, technology has made it dramatically easier and cheaper for anyone—particularly employers—to access those records. These days, a fresh start can seem impossible.
That may be good news for law enforcement, but it can be devastating for people trying to start over. “For most people who are arrested and charged with a crime, the most serious consequence is the record that’s created,” said James Jacobs, the director of the Center for Research in Crime and Justice at the New York University School of Law. “The criminal record is now perhaps the most important indicator of your public identity.”
Jacobs, the author of a new book called “The Eternal Criminal Record,” is just one of a wave of legal experts and advocates arguing that it is time to take drastic steps to reduce these records’ unprecedented power. Criminal records follow people after their release from prison; they even cling to those with minor offenses who never serve a day in prison, or who were arrested but never convicted. The stickiness of American criminal records—which, unlike in most European countries, can be readily searched by employers and landlords—can make it harder to qualify for housing, for public benefits programs, and for higher education. Worst of all, it can put legitimate employment out of reach, leading ex-offenders right back to the underground economy.
Increasingly, this criticism is beginning to drive legislation. On March 1 in New Jersey, a “ban the box” law went into effect, requiring employers to delay asking job applicants about their criminal records until the late stages of the hiring process. A similar policy was approved for state jobs last month in Georgia. And the criminal-record issue is uniting some conservatives and progressives at a time when that can seem an impossible feat. Last summer, Senators Cory Booker and Rand Paul introduced federal legislation to make it easier for juveniles and nonviolent adult offenders to expunge nonviolent charges from their records. “The biggest impediment to civil rights and employment in our country is a criminal record,” Paul said in a statement at the time. “Our current system is broken and has trapped tens of thousands of young men and women in a cycle of poverty and incarceration.”
The role of the criminal record in that cycle is raising questions about fairness and opportunity, about the balance between employer and employee rights, and about how the current system weighs on taxpayers and the economy as a whole. But underlying all of these is the question of which value we hold most dear: to guard our safety by permanently tracking those accused of crimes, or to preserve our identity as a country of second chances.
Broadly speaking, there are two types of criminal records: “rap sheets,” which are based on arrests and bookings, and court records. In the 19th century, a rap sheet might have consisted of a name, a list of offenses, and a sketch or, by the 1880s, a photograph. Later, it came to include fingerprints, and today it often features DNA.
Rap sheets are stored in state databases and with the FBI. Historically, they were generally accessible to police, other law enforcement entities, and select members of the public, like gun dealers and Boy Scout leaders vetting potential volunteers. But after Sept. 11, 2001, a wave of new security legislation dramatically expanded the number of public agencies and private companies that could access the FBI records; many employers, including those dealing with hazardous materials, were newly required to conduct background checks. The Patriot Act alone mandated background checks for an estimated 3.5 million additional employees.
Meanwhile, criminal justice expanded its reach, leaving more people shackled with records. “It’s no longer a small fraction of the population that’s being affected,” said Devah Pager, a Harvard University sociologist who has studied the effects of criminal records on employment. “It’s really difficult for employers to figure out which criminal records they need to pay attention to, and which they can look beyond.” Rap sheets, as Jacobs points out, are often missing notes on the final disposition of a case. That means a prospective employer might see that a person was arrested for murder, but not that charges were dropped or he was acquitted. And how many employers will bother to further investigate?
Court records, in contrast to rap sheets, have always been public, but it used to be expensive and time-consuming to gather them. (This alone sets us apart: In Europe, court files are considered confidential.) Today, it’s often as easy as hopping online. With so much raw information available, a network of private vendors has arisen to meet the needs of curious parties. Worried that your new boyfriend seems like trouble? A background check costs around $20 and will be on your screen in minutes. Jacobs compares these services to old-fashioned private detective agencies, only they work much faster and much cheaper than Sam Spade. Their results can also be devastatingly misleading. Though court records tend to be more complete than rap sheets, it’s far too easy to get information on one John Smith when you’re looking for another.
People with records suffer severe civic consequences, which vary from state to state. To name just a few: Many convicted drug offenders can’t get federal education loans. Most states ban felons from voting for a period of time after their incarceration, and sometimes permanently. Others disqualify felons from receiving money from victims’ compensation funds. Jacobs calls the criminal record “the resume that the government makes for an ex-offender.”
For ex-offenders, that “resume” often ends up interfering with the ability to build a real one: A complex web of federal and state regulations hold back those with a criminal record from public and private employment opportunities. In some states, felons are not eligible for any kind of public employment. Some ex-offenders are also forbidden by various jurisdictions to hold certain kinds of private-industry jobs, like in banking or security firms; in even more cases, a criminal record can affect a person’s ability to attain professional licenses that are required in an ever-increasing variety of fields. (In Nevada, for example, a criminal record can render a person ineligible to register with the state gaming commission, which is required of most casino employees.) Even when employers are legally allowed to hire someone with a record, the ease and affordability of a criminal background check can make it tempting to go ahead and prescreen all applicants. A 2012 survey conducted by the Society of Human Resource Management found that 69 percent of organizations say they conduct criminal background checks on all job candidates.
For the quarter of people with some kind of record, that can have dire consequences. In research presented in her 2007 book “Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration,” Pager sent out young men on the job market, randomly assigning some of them criminal records. Ex-offenders received less than half the responses of those with otherwise identical qualifications. (The population with criminal records is, on average, harder to place in jobs than non-offenders in other ways, too. “This is a hard population, they have a lot of deficits,” said Harry Holzer, a professor of public policy at Georgetown University.)
Even people without a record of their own are affected by the criminal record’s current power. The harder it is for an ex-offender to earn a living, critics point out, the higher the costs to taxpayers for the social services he must rely on instead. It’s bad for the economy to have an entire class of people for whom the mainstream labor market is out of reach. And there are more diffuse effects, too. As Jacobs put it, “It creates harder lines between those who have been convicted and those who haven’t, a ‘we and them’ culture.”
Everyone agrees that reducing the number of people in contact with the criminal justice system is one important way to decrease the power of the criminal record. (Holzer mentioned the decriminalization of marijuana as one promising development on this front.) But another broad approach is to make criminal records more difficult for employers and others to access.
The idea that seems to have the most traction at the moment is the “ban the box” movement, which seeks to do away with the question about former convictions that appears on many job applications. More than 60 jurisdictions, including Boston and the state of Massachusetts, have passed versions of a ban for certain public-sector applications. The point is not that employers will never have access to background information, but that they not use it as a preliminary screening tool: They evaluate a candidate on other merits first, and then factor in his criminal record. Not everyone is bullish on such bans. Holzer points to research that suggests employers who check criminal records actually have a higher likelihood of hiring black men. The implication is that employers who can’t or don’t screen may be wary of black men in general, rather than just those with records.
Meanwhile, several universities and law firms have launched Innocence Project-style programs to help people eligible to have their records cleared. “This is not a new problem, it’s just one that’s getting recognition now,” said Eliza Hersh, director of the Clean Slate practice at the East Bay Community Law Center in Berkeley, Calif. “One thing that often surprises people is they were arrested wrongly, or years and years ago, and it always remains on their records.” A working paper based on a small study in California last year found that “clean slate” programs like Hersh’s stem declining earnings among people with records, and may even increase earnings.
Among Democrats, these ideas are a relatively easy sell. But there is also growing Republican support for reform, and not just from the reliably law-enforcement-skeptical libertarian wing of the party. Somehow criminal justice reform has become a genuinely bipartisan issue within the last few years. “We’re spending a ton of public money essentially to make people permanently unemployable,” Holzer said. “What conservative principle does that serve?”
Even if criminal records have become overly influential, of course, they are not always irrelevant. The availability of records has had concrete benefits for law enforcement officials, who are able to quickly make distinctions between chronic recidivists and first offenders. The fact that a person has been arrested dozens of times is often a useful guide to future behavior. And considering that the production of criminal records is paid for by public funds, Jacobs, for one, is resistant to the idea of erasing them, or of blocking citizens from access to them.
Still, there is increasingly widespread agreement that a record in and of itself should not wreck a reputation. Jacobs would like to see the government set an example by giving people with records second—or even third—chances. After all, it is well established within the field of criminology that the chance of recidivism declines dramatically after around five years, to the point where an ex-offender is no likelier to commit a new crime than a member of the general population. “For this to be a marker for the rest of their lives seems wrong,” Holzer said. The only thing we have to figure out now is how to make it right.
Ruth Graham, a writer in New Hampshire, is a regular contributor to Ideas.