Post # 150
About 100 words; 5 minutes to read.
This post is adapted with permission from a longer article by the same authors posted by The Niskanen Centre, a US policy organization. This is an issue in which the Canadian situation appears to be quite similar to that in the US.
An arrest or conviction reduces the likelihood of finding a job or housing for many years to come. In this way, our criminal justice system casts a long shadow over the lives of those it touches. As we decriminalize low-level offenses (like minor drug possession) and recognize that police, judges, and prosecutors treat white and black [and Indigenous] civilians differently, many have wondered if people with past convictions should have the opportunity to wipe their slate clean and start over without the stigma of a criminal record.
There is plenty of evidence that employers discriminate against people with criminal records. While discrimination may be rational for an individual employer, it is quite destructive for society as a whole, given the importance of employment to reducing recidivism. It is also perverse and unfair to tell formerly incarcerated people that we expect them to go on the straight and narrow, only to repeatedly slam the doors of honest work in their faces.
Many people have called for broader sealing (also called “expungement”) of criminal records, hiding these from employers, landlords, and others doing formal background checks. These are often referred to as ‘Clean Slate’ policies.
Unfortunately, the evidence we have suggests these policies will not work. In fact, record-sealing could increase discrimination based on race when criminal records are not visible. Even without these unintended consequences, so long as employers want information on criminal records, sealing official records is unlikely to hide criminal justice involvement.
Ban the Box: Hiding information about criminal records did more harm than good
So-called “Ban the Box” policies prevent employers from asking about applicants’ criminal records until late in the hiring process. But because they don’t directly address employers’ concerns about safety and fit for the job, not being able to ask about criminal records upfront simply leaves employers to guess.
Research on this policy’s effects shows that employment for young men of color with limited education actually decreased in areas that passed Ban the Box. While it is possible that the policy helped some people with records get a job, the best evidence suggests that any beneficial effects were small. Employers could still check applicants’ criminal records at the end of the hiring process, and it appears that most did.
The effects of Clean Slate will hinge largely on why employers discriminate against people with records. To the extent that Clean Slate seals records that employers care about, it could leave them guessing, just as Ban the Box did. Employers who want to avoid hiring people with a criminal past may then discriminate against applicants from groups where criminal records are more common. Once again, this would most likely harm young men of color who do not have a criminal record.
Criminal record information will remain available online
Information on arrests and convictions is typically a matter of public record, which means anyone can access it. There is a good reason for this: locking someone up is an infringement on their liberty, and we should know how often our government is doing this and to whom. However, public criminal record data are unregulated and are often available online from various sources, such as news media reports, social media, or even private vendors seeking to make money by selling information.
These unofficial online criminal records are often unreliable or inaccurate, and there’s no way to correct this information. Record sealing policies do not address this problem, which may pose a greater hurdle than official background checks ever did.
There is a risk that Clean Slate would cause employers to rely more on the private market for criminal records. Interested parties could find this information through a simple web search.
It is not yet clear if record-sealing itself has any benefits, or if those benefits outweigh any unintended costs. In our view, the rush to broaden record sealing is premature. We should study places where these measures have been taking to see whether they find net benefits before scaling these policies further.
More promising alternatives exist
We see at least three other policies that are likely to be more effective at helping people with criminal records.
Centralize criminal record data and improve accuracy: It could be far more helpful if measures were taken to ensure that available records are complete and accurate. People should also have free and direct access to their own criminal records so that they can check for and correct inaccuracies. In other words, we should treat criminal records the way we now treat credit reports and medical records. These are administrative records that affect people’s lives; they deserve privacy and integrity.
Broaden the use of deferred adjudications for first-time offenses: Helping people avoid a record in the first place is likely to be the best way to help them move forward. Research from Texas provides compelling evidence that policies that divert people from the system have considerable benefits: they dramatically reduce the likelihood of future convictions and increase employment. In other words, giving people a real second chance before putting a (first) conviction on their record is an effective way to ensure that one bad decision doesn’t derail their lives.
Invest in rehabilitation and training: For most people coming out of jail and prison, the criminal record itself may not be the primary barrier to employment. We currently do little to give individuals the skills and support they need to compete in the labor market. Investing in education, job training, cognitive behavioral therapy, and health care for those with recent convictions could all go a long way toward helping people reintegrate into society – and address employers’ concerns in the process. Policymakers should also experiment with designing systems to increase the information available to employers about individuals’ rehabilitation and job-readiness (for instance, court-issued rehabilitation certificates).
None of these alternatives provide the magic wand that advocates seek. But they might actually work.
Jennifer Doleac is an Associate Professor of Economics and Director of the Justice Tech Lab at Texas A&M University. She hosts the Probable Causation podcast about law, economics, and crime.
Sarah Lageson is an Assistant Professor of Criminal Justice at Rutgers University. She is the author of Digital Punishment: Privacy, Stigma, and the Harms of Data-Driven Criminal Justice.