"Sixty-five million Americans have criminal records that might cause them to be denied jobs, even for arrests or minor convictions that occurred in the distant past," writes The New York Times editorial board. The paper of record's proposed solution? Laws that prohibit employers from "inquiring into an applicant's criminal history until the person has been given an opportunity for an interview and a chance to prove his or her worth."
Why stop at prohibiting formal background checks early in the application process? Why not also ban employers from reading local crimes stories? From using inmate locator websites, or Nexis? From simply Googling applicants' names? While the background check business continues to boom, it's no longer the only way to find out if an applicant has a criminal record.
Don't get me wrong. Blanket discrimination against people with criminal records is pretty horrendous (and one of the collateral consequences of the drug war that both drug reform advocates and prison reformers are trying to change). But you can't eradicate the consequences of over-criminalization by turning judicious employers into criminals. The smarter answer is to have fewer crimes, and thus fewer criminals.
A few months back, Stan Alcorn and WNYC ran a story on people who couldn't find work because of criminal convictions. Here's one job seeker's story:
Melissa was standing outside her welfare-to-work program in Downtown Brooklyn, about to go to a job interview. It was the same routine she has performed for six months, every day, Monday through Friday. She projected confidence about her abilities and her experience, but not about her chance of getting the job.
"I'm a people person, and I always ace every interview I go on," she said. "It's just my background that's holding me back."
When Melissa was 15 years old, an older man began manipulating her, ultimately becoming her pimp.
When she was 19, she was convicted for her third, and final, prostitution-related offense. For Melissa, who asked that WNYC not use her last name, that was a turning point. Six years later, she has her GED and years of work experience as a cashier and home health aide—jobs she took to support her younger brother and two-year-old daughter.
As she searches for a job in today's tough job climate, however, she is finding that job experience matters less to many employers than her three convictions.
Based on Melissa's case, it's worth asking which strategy makes more sense: Changing the law so that employers can't investigate whether an applicant has been arrested or convicted, or changing the laws so that women like Melissa aren't considered criminals in the first place? We should be asking the same question about people like James, a Florida man who was caught with a single Oxycontin pill for which he did not have a prescription. As a result of that single pill, here's what happened to him and his job:
Despite having no criminal record and never having taken Oxycontin, James was required to attend two Narcotics Anonymous meetings a week for an entire year, and 15 weekend-long state-run drug classes (the latter he was required to pay for). Despite the fact that he was going to school at night for his MBA, James was given a curfew, and had to be inside his own home between the hours of 9 p.m. and 6 a.m. every day of the week, for the entire year. As a final punishment, the judge instructed James to immediately report his arrest to his employer, and to let his probation officer know when he had done so.
With his case settled, James returned to Jacksonville and told his boss at Merrill Lynch what happened. His supervisor told him not to worry. A week later, he was instructed to modify his broker's license to reflect that he'd pled no-contest to drug possession. This is both a federal and a state-level requirement, generally meant to protect investors. It ended up ruining James's career. The modification to his license triggered an internal warning at Merrill Lynch. The firm placed him on paid leave for two weeks, and then fired him.
Once James's probation officer found out he'd been let go, she required him to bring with him to their meetings a list of every job for which he'd applied since they last met. His probation officer then called each and every company's HR department to verify that James had actually applied.
A smart guy with a single blemish on his record, James nevertheless spent several years working as a short-order cook, as one financial sector employer after another rejected his application. The NYT has its heart in the right place, but their proposal is addressing this issue at the wrong end of the process. (That said, it's getting easier and easier to imagine a future in which so many Americans have been criminalized that a criminal record ceases to shock, dissuade, or disqualify.)