The following op-ed was co-authored by Jon Haggerty, a research assistant at the R Street Institute.

The Bay State has been abuzz this month at news that more than 8,000 Uber and Lyft drivers statewide failed new, more extensive background checks mandated under legislation Massachusetts Gov. Charlie Baker signed last August.

Alarmist headlines notwithstanding, the facts are that this law is not likely to improve public safety but is instead a prime example of thinly-veiled protectionism.

Under the terms of H.B. 4570, a new division was created within the Department of Public Utilities to oversee transportation network companies that offer smartphone-based ridehailing apps. As a precondition to operate a so-called Transportation Network Company (TNC) vehicle legally, the law requires a driver to get a “background check clearance certificate,” the first stage of which requires the TNCs to screen applicants based on standards set by the division.

The ridesharing companies satisfied this part of the process by agreeing to memoranda of understanding. In Uber’s MOU, the firm agreed to conduct “a multi-state/multi-jurisdiction criminal records locator,” and to cross-reference those searches with the National Sex Offender Registry and motor-vehicle records. This part largely mirrors how ridesharing firms already vet drivers for criminal history. Uber and Lyft’s rules, for example, reject drivers if they have committed a felony in the past seven years.

The second part of the background-check process forces the TNCs to submit their applicants’ information to the state, where it is referred to the Department of Criminal Justice Information Services. Additionally, the CJIS, according to Massachusetts law, can gather information about “adult and youthful offender convictions, non-convictions, [and] previous and pending hearings conducted.”

This is where an array of ethical and practical objections emerges. Of the 10,500 infractions the background checks turned up (some rejected drivers had multiple infractions), the top three categories were: license suspensions (1,640); driver not licensed long enough (1,580); and open cases (1,250). The first category might pose minor safety issues worth addressing, but the latter two are dubious, at best.

Open cases are defined as “any outstanding or unresolved criminal proceedings.” Using this category to deny jobs to otherwise law-abiding citizens amounts to the government suspending the presumption that one actually must be proven guilty to bear the consequences of criminal allegations. “Driver not licensed long enough” is simply a technical disqualification. Drivers under age 23 are required to have a license for at least three years to pass the screening. Those over age 23 must be licensed at least one year. All told, these three categories account for just under 6,000 infractions, all of which are likely nonviolent and pose little, if any, public-safety threat.

It’s important to bear in mind how the more stringent background-check requirements became law. Massachusetts policymakers called for the tighter restrictions after several alleged driver assault incidents. But even combining the tallies for “serious violent crimes” and “less serious violent crimes,” the checks turned up just 1,559 records of violent infractions, out of more than 10,000 total. Moreover, recall that Uber and Lyft already reject both violent and nonviolent felons convicted within the last seven years, meaning these records were likely even older.

This raises a key moral question. Are those who have committed a violent crime in the past beyond redemption? Should they not be allowed to reintegrate into society after they have paid their debt to society? Recently, a coalition of policy organizations from both the left and right ends of the political spectrum formed to address just this issue. If the goal of our justice system is to correct behavior and rehabilitate offenders, punishing them indefinitely for a timeworn offense is morally unacceptable.

Another set of questions center on how likely it is that a person with a past conviction will commit another violent act, as well as identifying at what point an ex-offender should once be considered part of the general population. Under the law, the “point of redemption” occurs at around eight years for those who committed crimes as a youth and at only three years for older offenders. Digging up records of past acts of violence—stretching back potentially as far as childhood—may make people feel safer. However, its practical effect is to lock out of social and economic life precisely those people who need that access the most.

In a familiar pattern, entrenched taxi interests are applauding this development. The Boston Globe reported that taxicab representatives want even stricter requirements for TNC drivers, including mandatory fingerprinting. Unfortunately, entrenched interest groups often benefit from erecting barriers to competition. In the meantime, consumers and those trying to earn an honest living will be caught with the bill.

Image by  f11photo

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