Getting a job can be a particular challenge for those who have a criminal record. Surveys by the Kauffman Foundation find that between 60 and 75 percent of those released from prison—roughly 600,000 Americans every year—are still unemployed one year out. And the pain isn’t just short-term. Research by the Pew Charitable Trusts finds that former inmates’ lifetime earnings are reduced by roughly 40 percent.
Nor is the damage limited to those who have gone to prison. As of mid-2015, more than 70 million Americans had at least one arrest record filed in the Interstate Identification Index and a 2012 U.S. Justice Department survey suggests the total number of Americans who have been arrested may actually top 100 million. By the age of 23, nearly half of African-American males and more a third of white males have police records of some sort. Given that the Society of Human Resource Management finds that 69 percent of U.S. employers conduct criminal background checks on all employees, that’s a large swath of the workforce with at least one incident from their pasts they must try to explain, provided they even get that opportunity.
Unfortunately, many state and local governments exacerbate the problem with needless professional-licensing requirements and mandatory, fingerprint-based background checks. These rules are counterproductive to the goal of keeping ex-offenders on the straight and narrow by pursuing gainful employment and living productive lives. They also disproportionately affect people of color and encourage reliance on fundamentally flawed databases.
Most arrest records are for reasonably minor infractions, such as petty theft, minor fistfights, and possession of small quantities of drugs. However, because prosecutors and police tend to “overcharge” in hopes of getting some conviction, a fistfight can become “attempted murder” and carrying marijuana can become “possession of narcotics with intent to distribute.” These initial charges, which sound quite serious, remain visible in databases, even when individuals aren’t prosecuted for them. Indeed, a fair number of records in both state-level and national databases—including roughly half the records in the FBI database—lack any information about the final disposition of charges.
This can have a disparate impact on minority populations. A 2014 survey by USA Today found 1,600 jurisdictions across the country where the disparity in arrests rates between black men and white men equaled or topped that seen in Ferguson, Mo. – roughly three to one. Analysis of Bureau of Justice Statistics data by the Sentencing Project finds that, while one in 17 white men will be incarcerated in their lifetimes, the figure is one in six for Latino men and one in three for black men. There are a variety of reasons for those trends, but they include still-serious social prejudices.
While there certainly are reasons police agencies should keep a variety of records, even on people without any convictions, that’s far different from requiring private companies to use them in making employment decisions. Government professional-licensing mandates make the use of these incomplete records databases more common, with some statutes mandating that licenses be denied to individuals with nearly any kind of conviction. All states have some professional-licensing requirements and more and more cities—notably, Austin, Texas—even have begun to impose their own fingerprinting requirements.
While it makes sense for doctors and civil engineers to prove they’ve undergone specific training, it’s less clear one needs more than basic instruction in keeping instruments clean to begin cutting hair or that there’s any particular reason a former embezzler can’t work as an interior decorator. Economists Morris Kleiner and Alan Krueger find that, while less than 5 percent of the U.S. workforce was covered by state licensing laws in the early 1950s, 29 percent of the workforce is required to hold a license today. This is bad policy on its own, but the hardships occupational licensing imposes on those with criminal convictions magnifies the problem. In the overwhelming majority of cases, employers should be able to make their own decisions about how much criminal records matter.
Even more importantly, the government shouldn’t mandate how private employers make such decisions or what kinds of background checks they must perform. Requiring fingerprints can scare away potential applicants altogether, particularly those from communities that may have problematic relationships with law enforcement. This is particularly important in growing industries like ridesharing and for people who offer services through apps like TaskRabbit and Handy. These platforms work with anyone who meets simple requirements, providing opportunities to those who need to overcome mistakes in their past. The services also face strong incentives to maintain their reputations for safety and would pay a big price if they let anyone harm customers. Requiring them to conduct background checks that include fingerprinting serves no additional public-safety function.
Mandatory professional licensing and background checks hurt people with troubled pasts, which in turn makes society less safe, not more. More than any other rehabilitation program or educational effort, the best way to keep ex-offenders on the straight and narrow is to let them hold a job.
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