There is no dispute that far too many Americans carry the burden of a criminal record — at least 70 million, by recent estimates — or that the easy accessibility of these records in the information age imposes debilitating obstacles, especially when it comes to finding a job.
The harder question is what to do about it.
Employment is, after all, an important factor in keeping people out of the criminal justice system, yet, in a struggling job market, employers are often tempted to turn away anyone who appears to pose even the slightest risk. Thanks to the proliferation of companies offering instant online background checks, a vast majority of employers now run such checks on all job applicants. They can, and do, refuse to hire people on the grounds of an arrest itself — let alone a conviction.
People with criminal records often face all manner of entrenched and unjustified prejudice. Studies have found that job applicants who reported having a criminal record were 50 percent less likely to receive a callback or job offer. And, as with virtually every part of the criminal justice system, the effect was more pronounced when the job candidate was black.
Over the last five years, according to a recent report by the Vera Institute for Justice, 23 states have passed more than three dozen laws aimed at sealing or expunging criminal records for certain offenses so that low-level offenders do not continue to suffer for relatively minor transgressions. The convictions that may be sealed commonly include misdemeanors like disorderly conduct, shoplifting, or, in some cases, low-level drug possession.
The laws generally impose a waiting period of several years from the end of a sentence before a convicted person may ask a court to seal his or her record.
But record sealing, however well-intentioned, is not an optimal solution. For one thing, trying to keep anything secret in the 21st century is no sure thing. Anyway, sealing laws regularly include significant exceptions, leaving criminal records available to law enforcement and the courts, as well as to certain employers who are legally required to perform background checks.
Also, record-sealing laws do not and cannot address the underlying problem of overcriminalization. Many of the misdemeanors the laws single out should never have been prosecuted in the first place. Does it make sense that a 21-year-old who is caught, say, driving without a license will then be burdened by a criminal record that trails him and keeps him from getting jobs into middle age?
A better approach, though admittedly longer term, is to emphasize the need for a change in attitudes about people with criminal records. So-called ban-the-box laws now on the books in about a dozen states and many municipalities require employers to consider applicants more fully before asking about their criminal history. Some states offer employers tax breaks or reduce their legal liability for hiring applicants with a conviction in their past.
In the end, everyone benefits when people with criminal records are not shut out from the opportunity to be productive members of society.