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Sealing Criminal Records for the Possibility of Redemption

Cory Booker and Rand Paul’s REDEEM Act.
(Photo: David Alary/Shutterstock)

(Photo: David Alary/Shutterstock)

Senators Cory Booker (D-New Jersey) and Rand Paul (R-Kentucky)—two men who have opposing politics on paper but very similar reputations for their ambition and attention-getting prowess—have together proposed the REDEEM Act, an overhaul of the American criminal justice system.

Their proposal would give much more protection to juvenile offenders in the system, automatically expunge records of non-violent crimes committed before the age of 15, and allow for all ex-offenders to seal their criminal records more easily. These last two aspects could make it much easier for ex-offenders to get jobs after they’ve done their time.

Criminal records are often also barriers to finding public housing, collecting public benefits, and receiving admission to (and financial aid for) college.

“The biggest impediment to civil rights and employment in our country is a criminal record,” said Senator Paul in a statement to the press. “Our current system is broken and has trapped tens of thousands of young men and women in a cycle of poverty and incarceration.”

Booker and Paul are right to bring more attention to this issue. Millions of Americans are already denied the right to vote because of felony convictions in their past, and hundreds of thousands more are denied it because they are still “under supervision of the state.” Should they be denied the right to work, too?

Many people—and corporations, even—don’t think so. Earlier this year Pacific Standard covered the “ban the box” campaign, an effort to remove the box about criminal histories from job applications. Under this plan, employers can (of course) still run criminal background checks on their prospective employees, and ask any questions they like in follow-up interviews. But the idea is to prevent employers from automatically disregarding applicants with convictions in their pasts as viable choices. Emily Wang writes:

An overwhelming 65 million Americans with criminal records face significant barriers to employment each day. Most applications for employment include a box that asks, “Have you ever been convicted of a crime?” Check the box, and nowadays, the application most likely goes to the trash. In 2009, a team of Princeton and Harvard researchers found that having a criminal record in New York city reduced the likelihood of a callback or job offer by nearly 50 percent. It doesn’t matter if you finished serving your time, committed a crime decades ago, or whether the crime would impact the quality of your work.

Studies have shown over and over that most employers won’t give applicants with criminal records a second look. Ex-convicts are doubly stigmatized; by the very fact of their incarceration, and by the interruption in work experience that the incarceration caused (PDF). Employers tend to worry about the “people skills” that people would have after having been in prison, as well as about “their customers’ discomfort if customers knew that an ex-convict worked for them.” They also, fairly or unfairly, often perceive ex-offenders as being less likely to be able to keep jobs than other people. And in some states, employers can actually be held legally liable for crimes that their employees commit while they are working for them, under the concept of “negligent hiring” (PDF). For so many reasons, when they see that little criminal record box checked, it just seems easier for employers not to take a chance.

Still, there’s reason for optimism. Some of the biggest companies in the U.S. have gotten on board with the “ban the box” plan; last year Target (one of the largest employers in the country) announced it would take criminal-history questions off of its job applications. Before that, California Governor Jerry Brown did the same for applications for state government jobs.

Employment isn’t the only aspect of post-prison life that is consistently complicated by criminal records. As researchers Alfred Blumstein and Kiminori Nakamuri have shown in their research for the National Institute of Justice, criminal records are often also barriers to finding public housing, collecting public benefits, and receiving admission to (and financial aid for) college.

“The American Bar Association released a database identifying more than 38,000 punitive provisions that apply to people convicted of crimes, pertaining to everything from public housing to welfare assistance to occupational licenses,” as Blumstein and Nakamuri wrote in a New York Times op-ed in 2012. “In New York, former offenders can be forever denied licenses for certain jobs, ranging from beer distributor to real estate broker. Such ‘forever rules’—which fall heavily on minorities, who are particularly likely to be arrested—are inherently unfair.”

Blumstein and Nakamuri proposed an alternative: the “actuarial” development of a time schedule for the expiration of criminal records, created by looking at statistics on the timing of previous offenders’ recidivism. The risk of repeat-offending decreases as post-prison time passes. So it may be possible to actually calculate at what point ex-offenders have been “redeemed”—that is, when they would present the same risk (risk to employers, landlords, or schools, say) of committing crimes as would any other members of the general population. And after that point, the researchers argue, criminal records could either be expunged, or marked “stale.”

With approximately 600,000 people being released from Americans prisons back into society every year, isn’t it in everyone’s interest for them to attain stability, structure, and the ability to financially support themselves? Whether through a wide-sweeping political plan like Booker and Paul’s, or a more mathematical model like Blumstein and Nakamuri’s, we should work out a way for them to, somehow, have the opportunity for redemption.