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Criminal Background Checks & Prior Offenders: A Discussion of Policy Choices. Prof. Kent Markus, At-Large Member SEARCH Membership Group Meeting January 28, 2005 St. Pete Beach, FL. Two Session Goals. Discussion of a public policy issue impacting criminal history repository managers
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Prof. Kent Markus, At-Large Member
SEARCH Membership Group Meeting
January 28, 2005
St. Pete Beach, FL
1) Record use education: Develop and provide guidance about effective and appropriate use of criminal history information in discretionary decision-making. While it is not uncommon for the government to recommend that various employers, for example, conduct background checks, it is almost unheard of for the government to suggest how those employers use that information once they have it. While comparatively non-controversial, the mere provision of guidance is unlikely to bring about substantial improvement in the current national situation.
2) Restrict access to records: More severely restrict access to federal and state criminal history repositories and the distribution of criminal history information to commercial vendors. This approach is probably politically untenable and may well be shutting the barn door after the horse has already escaped given the information already possessed by commercial vendors.
3) Restrict use of information: While Title VII currently limits use which would have a disparate racial impact, proving such claim is well beyond the capacity of the vast majority of ex-offenders. Some states have enacted statutes that limit or prohibit use in various ways. Wisconsin law prohibits all employers and licensing agencies from practicing employment discrimination based on arrest or conviction information but …
3) Restrict use of information (cont.): the statute has been read by the Wisconsin courts to permit employers to deny employment when an applicant’s criminal history is “substantially related” to the required job duties. Several state statutes use “time elapsed since conviction” in determining whether an employer may use criminal history information. The ABA has supported restrictions on end-user utilization of criminal history information.
4) Purge more records: Expand and ease the process by which certain arrests and convictions are officially expunged. In many ways this is simply a more aggressive version of restrictions on access to the records since they would not only be “unavailable” but legally a nullity. This solution would likely face substantial law enforcement community resistance.
5) Keep certain adjudications out of the records: Florida has a law permitting judges to withhold the adjudication of felony offenders. This practice, explicitly designed to give “a one-time break to help first-time offenders” allows those offenders to say that they had never been convicted of a crime. This 1941 statute has been under heavy attack recently.
5) Keep certain adjudications out of the records (cont.): An extensive study by the Miami Herald found that the withholds were being administered in a highly racially disparate manner and that more than 17,000 defendants had been given a free pass more than one time with a few identified instances of defendants receiving “withholds” as many as five times.
5) Keep certain adjudications out of the records (cont.): In July of last year, the Florida legislature rewrote the withhold law to substantially restrict the authority of judges to issue “withhold” orders. Yet even the new law’s limited “withhold” authority is being undermined by commercial background check vendors who are providing discretionary decision-makers information about cases in which individuals had their convictions formally withheld.
6) Tax credits for risk takers: Provide tax credits to employers, landlords and others who take risks with prior offenders (though hiring, leasing to, etc.). While the federal government has a limited program of this nature in place for employers, as do a small handful of states, if the goal is to widely encourage employers, landlords and others to take a chance on individuals who bring special problems to the table with them, these programs will have to be more generous and more extensive, costing substantial tax dollars.
7) Liability immunity for risk takers: It is absolutely clear that fear of liability is a major factor in employer and landlord discretionary decision-making about prior offenders. If society wants reduce the likelihood that prior offenders will recidivate, the society may have to collectively bear some of the risk that prior offenders abuse the second chances they are provided.
8) Services for prior offenders: Job training, subsidized job placements, anger management certification, and other governmentally supported efforts to make it more palatable for employers, landlords, and others to take risks with prior offenders and might help make prior offenders appealing employees, tenants, etc. but this seems like a very hard sell that is also quite expensive.
1) Record use education
2) Restrict access to records
3) Restrict use of information
4) Purge more records
5) Keep certain adjudications out of the records
6) Tax credits for risk takers
7) Liability immunity for risk takers
8) Services for prior offenders