Overlooked and Undervalued: Ex-Offenders in the Employment Market

In the “highly protective” category, there were eight states, and Hawaii (eleven points) was the highest ranked state. Hawaii’s statute is the only one that applies to all employers and prohibits criminal history questions until after a conditional offer is made. Of the states that ranked in the highest category, five out of eight states’ statutes applied to all employers in the state. These eight states consistently showed prohibitions against asking about criminal records until after the initial interview, but a majority of the states extended that prohibition until the applicant was either deemed qualified, made a finalist, or extended a conditional offer. Under Hawaii’s statute, all employers, public and private, are prohibited from inquiring into an applicant’s criminal history until the applicant has been given a conditional offer, unless the conviction record “bears a rational relationship to the duties and responsibilities of the position.” Under Hawaii’s statute, employers are not able to consider felony convictions more than seven years old or misdemeanors from more than five years ago, but there are exceptions.

When applying Hawaii’s statute to Joe’s situation from the introduction, Joe would likely face few issues when applying to jobs. It is true that, under Hawaii’s statute, employers that are hiring for a position at a federally insured financial institution are not limited by the time restrictions on how far back an employer can consider a conviction. Notwithstanding this exception to the time limits, Joe’s employer would still only be able to ask about convictions that are rationally related to the job’s duties and responsibilities, and Joe’s conviction for involuntary manslaughter would likely not qualify. Additionally, Joe’s potential employer would not be able to ask about any conviction record until after Joe had been given a conditional job offer, which means Joe would have already been deemed qualified for the position. Under Hawaii’s current statute, Joe’s conviction record would be unlikely to affect his employment prospects in a significant way.

Almost forty percent of states fall into the “moderately protective” category. Three states—Illinois, Nebraska, and Wisconsin—fall right at the top of the group with eight points. The key reason that these three states fall into the moderate group instead of the high group was their lack of universal protection. All three states limit their statutes to cover only a portion of employers. States in this category also tend to allow employers to ask criminal history questions earlier in the hiring process. The most common timing restrictions found in the statutes prohibited asking criminal history questions before the initial interview or simply prohibited the inquiry during the initial application.

If Joe from the introduction were to apply for a job in Illinois, he would likely face at least a few more issues during the application process than if he were to apply in Hawaii. Illinois’s statute prohibits employers from inquiring into an applicant’s criminal history until either (1) the applicant has been deemed qualified and offered an interview or (2) if there is no interview, the applicant has been given a conditional offer of employment. Under Illinois law, “employer” refers to any person or entity that employs more than fifteen people. Although Illinois does not require that the conviction be related to the position, this would not necessarily be a hurdle for Joe. He would likely not be asked about his conviction until later in the process. With the possibility of employers falling under a different combination of the statutes, though, Joe’s situation is very dependent on each employer. On one end of the spectrum, the employer could be very small and not covered by the statutes at all. But any business with over fifteen employees would have to wait to ask about a conviction record until he had been deemed qualified or given a conditional offer. Applying to a larger employer, Joe would likely have an easier time getting a job than if he were to apply to a smaller employer, because the larger employer would have to focus solely on his qualifications until later in the process.

At the low end of the moderately protective group are states like Arizona. Arizona’s Ban-the-Box law comes from an executive order signed by the governor in 2017. Under Arizona law, state agencies are prohibited from asking about an applicant’s prior convictions during the initial application process. While the order does encourage other employers to provide the same protections to applicants, compliance is only required by state agencies. The precise application of Arizona’s executive order to state agencies is also unclear, though. One section prohibits state agencies from disqualifying an applicant due to a criminal record, but that statement is contradicted two paragraphs later when the order states that particular crimes may automatically preclude an applicant from employment.

When applying Arizona’s statute to Joe’s situation, it quickly becomes clear that he may face some significant issues when applying for jobs in the state. If Joe doesn’t apply for a job at a state agency, nothing prevents a potential employer from asking about his felony conviction on the initial application and then throwing Joe’s application in the trash. Under this law, Joe’s qualifications and the circumstances of his conviction may never be considered because employers are not required to provide applicants with the opportunity to explain themselves during an interview. Joe may find a private employer that doesn’t ask about conviction history right away, or he may be applying for a job that is covered by the statute, but more likely than not, Joe will probably have some challenges finding a job in Arizona.

Finally, the last group of states, the “low-protective” category, contains twenty-three states. Of those twenty-three states, fourteen received zero points, because none of those states has a statute. The states in this category that do have statutes seem to have early-­process restrictions similar to the “moderately protective” group, but these states tend to cover fewer employers under their statutes. These states also have more exclusions than higher ranking states. For example, Maryland excludes employers with less than fifteen employees, and its statute does not apply if the employer is permitted to inquire into an applicant’s background by another statute. Maryland’s restrictions also don’t apply to applicants for positions that involve work with children or vulnerable adults. Kansas is in the group of low-­protective states because its law, created through Executive Order, like in Arizona, is narrow and only covers a very select group of employers. Under Kansas’s Executive Order, an employer is prohibited from asking about an applicant’s criminal record on the initial application. The order also prohibits applicants from being automatically denied an interview because of a criminal history. While those prohibitions seem fairly protective, the order contains some very large exceptions and narrow clauses, which is why Kansas falls under the low-­protective category. Kansas’s Ban-the-Box Executive Order only applies to positions in the executive branch of the state government. Additionally, the employer is allowed to inquire about convictions that would automatically bar the applicant from employment. The order is also clear that the language is not meant to limit the employer’s ability to conduct a background check or inquire into an applicant’s criminal record after the initial application.

In Joe’s case, if he were applying for jobs in states that are in the low-protective category, unless he was applying to a covered position in the state government, his potential employer would likely ask about his conviction history on the initial application or during the initial interview. Under Kansas law, Joe would likely face significant hardships during his employment search. Even more problems would come for Joe in any of the fourteen states that do not have a Ban-the-Box law or executive order on the books. In a state like Iowa, nothing prevents an employer from asking about an applicant’s criminal history on the initial application and subsequently refusing to call the applicant back for an interview. In Iowa and the other thirteen states, applicants with criminal histories are significantly disadvantaged in the hiring process because they are likely to face judgment from the beginning of the process.

The Ban-the-Box movement took off quickly, and, on its face, it seemed promising to protect individuals with criminal histories from employment discrimination. However, the lack of uniformity in these statutes and varying levels of protection mean that some ex-offenders will find protection lacking, especially in low-protective states. Individuals in low-protective states are more likely to see their rejection only delayed until later in the hiring process, and not prevented. Additionally, research suggests that Ban-the-Box statutes may actually increase discrimination based on race, or other class associated with stereotypes of criminality. It is clear that Ban-the-Box statutes, especially low-ranking ones, are likely doing more harm than good. These statutes are either simply delaying an employer’s discriminatory decision based on the applicant’s conviction status, or worse, causing an increase in racially motivated hiring decisions based on assumptions about applicants that don’t provide their criminal history.

B. Licensing Restrictions

One of the clearest barriers to employment for ex-offenders is state statutes that completely bar employment in certain fields through licensing restrictions. Almost twenty percent of working Americans need a professional license to work, which often means that ex-offenders are excluded from many fields of work. Additionally, the average license in the United States requires almost a year of education, passing an exam, and paying close to $300 in fees, which is nearly impossible for some ex-offenders. States also do not treat ex-offenders uniformly; there is a wide variety of laws across the country relating to occupational licensing restrictions for ex-offenders.

Nick Sibilla, a legal analyst for the Institute for Justice, studied the effects of these licensing laws, using ten different criteria to grade and organize states based on their professional licensing limitations on ex-offenders. Under Sibilla’s criteria, Indiana ranked the most protective of ex-offenders at an “A.” Indiana’s statute ranked so highly because its law governing licensure for ex-offenders is fairly narrow, requires a specific and direct relationship between the crime and the job, has mandatory factors for consideration so each case is evaluated separately, and includes a strict review process similar to that of a criminal appeal. However, Indiana’s statute does not apply to jobs in law enforcement, the probation office, or the community corrections department. Indiana law also prohibits licensing boards from using general or vague language, such as “moral turpitude,” in their disqualifications. Even if the applicant is deemed to be disqualified under the licensing requirements for a particular field, the reviewing board is required to consider certain factors when making a final decision. Finally, with specific exceptions, applicants cannot be barred from obtaining a license for longer than five years after their release or conviction, whichever is later.

In Indiana, Joe would likely be able to get a license in most fields because the decision maker would be required to consider the nature of his crime, the relationship between his crime and the job for which he is applying, and evidence of his rehabilitation. Additionally, since Joe was released from prison almost five years ago, his crime is almost out of the time limitations placed on which crimes can be considered. Even if Joe were to apply within five years after his release, the review board must consider how long it has been since his conviction. Indiana also requires that the applicant’s position be “specifically and directly related” to the occupation or profession the applicant is applying for or holds a license for, which is unlikely to be the case in Joe’s situation.

The average score for states in the Sibilla study was a dismal “C−,” and includes Nebraska, New Jersey, Wyoming, and five other states. Nebraska ranked lower because it has very few exclusions in its application for specific offenses, but the law does include some factors that must be considered during the review and appeal process should the applicant be denied. New Jersey’s ranking resulted mostly because the statute only required that the crime be adversely related to the job in order to be considered, which provides the licensing board with excessive discretion. Additionally, the New Jersey statute has an extremely weak review and appeal process.

Joe would likely have a more difficult time getting an occupational license in a state like Nebraska. Nebraska does not have a time limitation on what crimes can be considered, but the licensing board is required to consider the time that has passed since the conviction, rehabilitation, employment history, and testimonials. Nebraska’s statute also allows for the applicant to appeal an adverse decision by the board, so in the unlikely event that Joe’s application were denied, he could get a second review after a denial. Like in Nebraska, Joe’s situation would be more difficult in New Jersey but for different reasons. New Jersey’s statute requires only that the applicant’s criminal history “relate adversely” to the job or occupation for which the applicant is applying. New Jersey’s statutes also allow for the board to refuse to issue a license for crimes involving “moral turpitude.” This vague language can result in arbitrary decisions and qualified applicants being denied a license for crimes that aren’t closely related to their prospective employment field. New Jersey’s statute also does not provide for the right to an appeal, so applicants have no way to get their decisions reviewed should their license be denied.

Seven states, including Alabama and Alaska, received an “F,” and six of those seven states received zero points. Sibilla’s research found that Alabama and Alaska both “generally lacked protections for ­ex-offenders seeking licenses to work.” Massachusetts was given an “F,” but scored some points. Massachusetts’s statute includes a ban on considering dismissed or sealed records and includes the right to appeal the denial and written notice, but there are virtually no other protections for ex-offenders applying for occupational licenses in the state.

Finally, if Joe were to apply for an occupational license in Massachusetts, he would likely have a difficult time getting that license approved. Unlike the states mentioned earlier, Massachusetts does not have an overarching state law regulating the admission or denial of occupational licenses. Rather, each agency gets to set its own regulations. Additionally, there are no mandatory factors to consider when reviewing a case, and there are very few due process protections. In a state like Massachusetts, Joe’s chances of obtaining a professional license are left completely up to the discretion of the professional board to which he is applying. And, in states like Alabama and Alaska, Joe’s application process has no oversight from the state legislature. The vast differences in the statutes throughout the country create uncertainty and inconsistency in the experiences of ex-offenders trying to get professional licenses after release.

C. Fair Chance Laws

In April 2012, the Equal Employment Opportunity Commission (EEOC or Commission) issued Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, which is designed to provide covered employers with information about the possibility of liability under Title VII for discriminating against protected classes of people through hiring practices involving arrest and conviction records. While the EEOC does not have the power to prevent employers from obtaining arrest and conviction records, the Commission can hold employers accountable for using the information in a discriminatory way. The EEOC’s guidance, along with the Obama administration’s “Fair Chance Pledge,” is aimed at getting ex-offenders back into the workforce after they are released. While these actions are nonbinding, a number of states have introduced binding legislation that protects applicants with criminal records by limiting the ways an employer can consider an applicant’s arrest and conviction records during the hiring process. To analyze the state statutes, I assigned each state statute points based on the following criteria:

After the points were assigned, the states were classified as “highly protective” (6+), “moderately protective” (2–5), or “low-protective” (<2). Five states fell in the highly protective group, and the highest-­ranking state was Wisconsin. The moderately protective group had fifteen states in it, and Pennsylvania ranked the highest with five points. The lowest category had the last thirty states in it, and twenty-two of those states had no legislation relating to the use of an applicant’s criminal history during the hiring process.

Wisconsin ranked the highest because it is the only state that expressly includes those with arrests and convictions in its discrimination statute. Along with sex, religion, race, and other protected classes, Wisconsin includes those with criminal convictions in its statute. Under Wisconsin’s prohibited discriminatory actions, an employer may not refuse to hire or promote someone on the basis of their conviction or arrest record. The state legislature did provide for some exceptions in certain occupations or with certain convictions. Under Wisconsin law, an employer may refuse to hire an applicant because of their criminal or arrest record if the record is substantially related to the job for which the applicant is applying. Not only does Wisconsin provide clear legal coverage, wronged individuals have clear redress through the court system to prevent the discrimination from continuing and to hold employers accountable because it is a part of the state’s anti-discrimination law.

New York has a similar statute, but individuals with criminal records are not protected under the state’s overarching discrimination statute. New York law states that no applicant should be denied employment for the sole reason of having a conviction, unless there is a direct relationship between the conviction and the job or if hiring the applicant would bring about unreasonable risk to members of the public or property. Additionally, New York doesn’t allow employers to deny employment based on a “lack of good moral character,” which prevents a more subjective application of the statute. Just like Wisconsin, New York provides applicants with a clear way to seek redress in the case of discrimination.

When applying Joe’s situation to Wisconsin and New York, Joe would likely face very few problems. Joe’s involuntary manslaughter charge is unlikely to be sufficiently related to any job in finance to warrant disqualification based solely on his conviction. Similarly, in New York, Joe’s conviction would likely not be deemed directly related to the job for which he is applying, which means a potential employer could not refuse to hire him based solely on his criminal record. Joe would be protected by strong language and clear standards in both states. Additionally, Joe would be able to sue a potential employer if he thought he was denied employment on the basis of his criminal history.

Pennsylvania ranked the highest in the moderately protective group with five points. While Pennsylvania does not consider ­ex-offenders a protected class like Wisconsin, the state still offers fairly strong protections for individuals with convictions during the hiring process. Pennsylvania’s statute provides that an applicant’s convictions can be considered only to the extent that they relate to the applicant’s suitability for the job for which they applied. Covered employers are also not permitted to consider records that have been properly expunged under state law, which, considering Pennsylvania’s new Clean Slate law, applies to a much larger number of people.

When applying Joe’s situation to the Pennsylvania statutes, he is still pretty well covered. However, the phrase “relate to the applicant’s suitability” is fairly subjective and could lead to arbitrary decisions by employers during the hiring process. It is possible that an employer would consider Joe’s conduct sufficiently related to the position to disqualify Joe, especially if the position involves frequent contact with the public. In my opinion, however, it is unlikely that Joe’s conviction from five years ago would be sufficiently related to his job to warrant consideration or denial, especially if the employer took the time to ask questions about the circumstances of his conviction.

Delaware is one of thirty states that fell into the low-protective category, but one of only eight in that category that scored any points. Under Delaware law, employers are permitted to disqualify an applicant if their criminal history is “job related” and “consistent with business necessity.” A previous section the state’s code defines the phrase “business necessity” as “render[ing] the individual unable to perform the essential functions of the position.” The statute also expressly includes situations in which the applicant is perceived to be a threat to health or safety in the workplace, which would allow employers to deny an applicant under situations in which public safety is a concern. The subjectiveness of the language included in Delaware’s statute allows a great deal of discretion in employers’ decisions during the hiring process.

Under Delaware law, Joe would likely have a harder time getting a job. Even though the employer is required to consider the type of offense, the time that has passed since, and the job being sought, if the employer does not ask the right questions about Joe’s situation, it would be easy for the employer to disqualify Joe based on his felony conviction. If the employer did not ask about or consider the circumstances that led to Joe’s conviction, which they are not required to do, Joe’s felony conviction for involuntary manslaughter carries enough weight that it might lead an employer to believe he would be a danger to those around him.

The other twenty-two states in the low-protective category received zero points because they have no statute limiting the use of criminal conviction or arrest information during the hiring process. Alabama is one of the states that falls into this category. Because Alabama does not have any regulations about the use of conviction records in hiring decisions, any Alabama employer would be free to consider an arrest or conviction in any way that they felt appropriate, even if that meant automatically disqualifying any person that has ever been arrested or convicted of a crime.

For Joe, this will likely not bode well. Most likely, Joe will be asked about his conviction, or it will come up in a background check later in the process, and his application will be thrown out. As mentioned above, over sixty percent of employers say they would “probably not” or “definitely not” hire someone that had a criminal conviction on their record. Statistically, Joe will have a much harder time finding gainful employment in a state like Alabama that doesn’t have any limitation on how employers can consider an applicant’s criminal convictions during the hiring process.

As we have seen, Joe’s outcomes differ significantly depending on where he is looking for employment, what type of position he is applying for, and the employer reviewing his application. Additionally, Joe’s chances of getting a job are affected by the state’s Ban-the-Box policy. Ten states across the country, including Alabama, do not have a Ban-the-Box statute or a statute regarding the use of criminal conviction or arrest information. In these states, applicants with convictions are especially likely to struggle because employers will probably ask them on the initial application whether they have a conviction, and then these employers have no limitations on how that information is considered if the applicant answers “yes.” Because no statute prohibits them from doing so, employers in these states likely disqualify potential employees by throwing out any applications that mark “yes” on their criminal conviction questions. These applicants do not get a second chance, they are judged based on the box they are mandated to check, and they have no redress.

IV. Why Should Employers Hire Ex-Offenders?

A. Avoiding Liability under Discrimination Statutes

Even though ex-offenders are not officially included under Title VII of the Civil Rights Act, there are ways in which an employer could be found liable under Title VII if they refuse to hire people with criminal records. The EEOC has recognized the possibility that an employer could be held liable for racial discrimination under a disparate impact theory if an employer’s refusal to hire applicants with criminal histories has a statistically significant negative impact on racial minorities. Under a disparate impact cause of action, an employer would be liable if the plaintiff could demonstrate that the facially neutral policy—the employer’s refusal to hire applicants with criminal histories—disproportionately excludes a protected class, such as members of a particular race or national origin. Minority populations, especially African-American men, are disproportionately impacted by the criminal justice system. Studies have found that Black Americans are over five times more likely to be incarcerated than their white counterparts. Latinos are incarcerated at almost one-and-a-half times the rate of whites. These racial disparities in the criminal justice system make it more likely that applicants with criminal histories will also be racial minorities. These racial inequities create the possibility that facially neutral hiring policies that prohibit the hiring of ex-offenders will create a disparate impact on minority applicants.

To avoid this liability, the EEOC recommends that employers consider the nature of each applicant’s offense, the time that has elapsed since the conviction, and how each conviction relates to the specific job the applicant applied for. Additionally, employers could provide a denied applicant with an opportunity to explain why they do not think denial is appropriate. However, with generalized policies that do not provide for individual decisions or a rebuttal opportunity for the applicant, employers run the risk that their hiring policies will disproportionately affect minority applicants, which will expose them to liability under Title VII. Implementing laws regarding the use and consideration of convictions records during the hiring process could help employers avoid creating a disparate impact on minority applicants.

B. Ex-Offenders Tend to Be Better Employees

Even if the law does not require it, employers should hire ­ex-offenders because it makes good business sense to do so. Hiring individuals with convictions has more advantages than just avoiding legal liability. Research done at John Hopkins University found that employees with criminal records had a lower rate of turnover than those without. Contributing to that finding, the researchers found that workers with criminal records are less likely to quit. Workers with criminal records have been found to get promoted more quickly and to higher positions than their coworkers without criminal records. Additionally, research done on military enlistees has shown that soldiers with criminal records are “no more likely to be discharged for negative reasons.” Finally, researchers at Harvard University have found that employees with criminal records are more productive at work than their co-workers without criminal histories. All of this research suggests that employees with criminal records tend to be better and more loyal employees compared to those without convictions. If an employer is looking to decrease turnover or increase productivity, this research shows that hiring this group may provide an advantage.

C. Tax Incentives

Additional incentives exist, as well. Few employers know that the federal government offers tax benefits to businesses that hire qualified ex-offenders. The Work Opportunity Tax Credit provides employers with up to $9,600 in credit for each ex-felon that is hired, and there is no limit on the number of credits an employer can receive. While this can be a good incentive to encourage employers to hire ex-offenders, employers do not seem to be taking advantage of the credit. Between 2009 and 2013, only 5.8% of ex-offenders who were working were claimed by their employers for this credit. The credit applies equally to employers that hire felons on parole and those that were convicted but sentenced to other punishments, which actually suggests that employees are claiming a mere three percent of eligible ex-felons. These tax breaks do not just help the employers; research has shown that ex-felons certified under the Work Opportunity Tax Credit make ten percent more than those that are not. The economic benefits that are passed on to the employees provide additional economic stability and can contribute to a reduction in recidivism rates.

V. Solutions

There are a number of policy changes that states can make to help eliminate, or at least reduce, the struggle to find employment for those with convictions. As thirty-six states have already, passing strong Ban-the-Box laws, like Hawaii could lessen the effect of criminal convictions during the hiring process. At a minimum, Ban-the-Box laws like Hawaii’s prevent employers from immediately screening out applicants with conviction histories by requiring that the applicant be given a conditional offer of employment prior to disclosing any information about their conviction or arrest record. However, these Ban-the-Box laws provide little protection if there is no accompanying statute that explicitly limits the ways in which employers can use and consider an applicant’s conviction history.

It is my belief that the best way to combat this issue is to pass anti-discrimination laws that include those with conviction and arrest records. Wisconsin would be the model state for this approach because it explicitly protects those with prior convictions and arrests in the same ways as those of different races, sexes, or religions. The state also provides a clear remedy for those that are a victim of discriminatory practices when trying to gain employment. Even without a strong Ban-the-Box statute, Wisconsin provides extremely strong protections for those trying to get back into the labor market after a conviction or arrest. States have been experimenting with other forms of legislation to encourage employers to hire ex-offenders, such as Clean Slate laws and training programs about the collateral consequences of convictions. These solutions, for various reasons, however, do not adequately address the needs of ex-offenders in the employment market.

A. Clean Slate Laws

Many states have statutes and procedures that allow certain offenders to petition for expungement or sealing of certain records, but this petition-based system leaves some number of people out. This realization has led to what are now called “Clean Slate Laws,” which began in Pennsylvania. In 2018, Pennsylvania’s state legislature passed Act 56, which streamlined and automated the process of expunging and sealing the criminal records of almost thirty million people in that state. This collection of statutes lays out numerous offenses and types of offenders that are automatically entitled to expungement and sealing if their case meets certain criteria under the statute. For example, under the statute, a person whose case has not reached a disposition within eighteen months of arrest shall have their record expunged of that case if the proper court certifies that no disposition is available and no action is pending. Additionally, persons are entitled an expungement if they have been completely acquitted at trial of all charges based on the same conduct or criminal incident. While some offenses do not fall under this statute, more situations are covered by limitations on what police can disseminate to noncriminal justice organizations and people upon request. Under Pennsylvania’s statute, a police agency must redact any indications of an arrest, indictment, or other information if (1) the arrest was three or more years ago, (2) no disposition is included in the record, and (3) nothing on the record indicates that a proceeding is still pending on the charge. There are sometimes requirements that must be fulfilled before a record is sealed, like having all fines paid, but Pennsylvania’s legislation is expected to seal or expunge over half of the charges in the courts’ databases. These efforts will prevent sealed records from appearing on employee background checks and allow applicants to tell employers that they do not have a criminal record at all. Research suggests that one year after a criminal record is cleared, affected people are eleven percent more likely to have a job and earn twenty-two percent more than those without cleared records. While these Clean Slate laws have only been passed in a few states, legislation has been introduced at the federal level and is predicted to increase in popularity over the coming years.

While initial statistics and research show Clean Slate laws are promising, these laws also come with challenges. Most of these laws are fairly narrow, so they will not have an impact on that many people. Additionally, the statutory language used by some states is confusing, so it can be difficult to understand when the statute applies to specific people and offenses. This strategy might also create issues similar to Ban-the-Box laws. If Clean Slate laws become more mainstream, employers may start to make assumptions about the applicant’s criminal history based on protected characteristics, such as race. If the employer is aware that the applicant could have had their record erased, they may be less likely to hire someone of a minority race because stereotypes and statistics would suggest that the applicant is more likely to have a record that was subsequently expunged. Still, these laws seem like a good starting point because they are at least better than the status quo of having an official criminal record attached to the job applicant’ name.

B. Collateral Consequence Training

In addition to formal legislation, judges and members of the courts have begun to emphasize the importance of considering the collateral consequences that accompany a criminal conviction when sentencing someone. Collateral consequences are “legal disabilities imposed by law as a result of a criminal conviction regardless of whether a convicted individual serves any time incarcerated.” These consequences create barriers for convicted individuals who are trying to reenter society by restricting their access to benefits or opportunities that would otherwise be available. Collateral consequences can affect housing, employment, immigration, and many other things. Although these collateral consequences can severely impact someone’s life, courts are not required to warn defendants about any consequences other than possible immigration consequences, when they are accepting a plea or after a conviction. The American Bar Association has encouraged prosecutors, defense attorneys, and judges to consider collateral consequences at various stages during a prosecution in order to make sure that the defendant is fully aware of all the possible consequences of having a conviction on their record. Actively considering and discussing collateral consequences could also result in an outcome that does not punish the offender for the rest of their life for a minor crime. If they were to consider all the possible collateral consequences, prosecutors and judges may be more likely to reduce charges or work out some other arrangement like those in diversion courts so that the punishment is more proportional to the crime being charged. To help solve this issue and assist the legal community in this endeavor, the American Bar Association encourages its members to use the National Inventory of Collateral Consequences of Conviction (NICCC), which provides access to all the sanctions, disqualifications, and other consequences of a criminal conviction that don’t appear in the actual judgment filed after a criminal case is disposed of. Education can be a great tool to effect change, but, just like Clean Slate laws, strictly relying on educating members of the criminal justice system about collateral consequences comes with challenges that would make it less effective in practice.

Relying on education about collateral consequences presents three main issues. First, there is no guarantee that judges or prosecutors would take this education seriously or apply it in a meaningful way. Simply providing the courts with information about possible collateral consequences does not mean that those consequences would be changed or avoided when the charge is brought, or the sentence is imposed. Second, there are many situations in which the collateral consequences are built into the penal code or other state legislation. Specifically regarding licensing restrictions, there is nothing a judge or prosecutor can do if a conviction would automatically exclude the offender from getting licensed in certain fields. The only hope for the offender would be for the prosecutor to find a different offense to charge that would not result in such harsh consequences, but that option is not always available or appropriate. Lastly, acknowledging the collateral consequences that accompany certain convictions does not prevent employers from discriminating against the ex-offender based simply on their conviction status. Even if certain restrictions or consequences are avoided, the offender still has a conviction on their record, which greatly affects their employment prospects, regardless of whether other potential consequences were avoided. Educating members of the criminal justice system about the challenges that offenders face after release is important and could definitely help put things into perspective, but this approach isn’t going to prevent employers from discriminating against ex-offenders.

C. Fair Chance Laws

As mentioned above, Fair Chance laws limit the ways in which employers can consider an applicant’s criminal history during the hiring process. These laws prevent, or at least limit, the discriminatory effects that come with having a criminal background. By limiting the ways in which employers can use criminal record information, there would be little need to enact laws that automate expungements or require the members of the court to delve deeply into the possible collateral consequences of each case they deal with.

By treating those with criminal convictions as a class protected under Title VII or other similar state legislation, many of the problems that accompany other possible solutions can be avoided. Unlike Ban-the-Box or Clean Slate laws, Fair Chance laws would prohibit employers from refusing to hire those with convictions based on their conviction status alone. Fair Chance laws would also avoid the confusion and complications involved in Clean Slate laws because the effects of the legislation would cover all ex-offenders equally, and coverage would happen automatically; there would be no need to opt in or file a petition. Perhaps most importantly, including individuals with conviction records within legislation like Title VII would provide individuals with remedies when they are discriminated against. Including these protections under a structure similar to Title VII would mean causes of action for discriminatory employment practices that could provide the plaintiff with remedies like damages, specific performance, injunctive relief, or other court ordered remedies. Adding individuals with criminal convictions to the list of protected classes would be the most effective way to bring about meaningful change in the employment market and ensure that employers are providing ex-offenders with the opportunity to paid employment.

Conclusion

Individuals with criminal records face many challenges when applying for employment after their conviction. To alleviate some of the lifelong negative consequences associated with having criminal convictions, a number of solutions have been proposed. As the country begins to acknowledge the struggles that these individuals face in the job market and work to help them effectively reintegrate into society, the most popular policies have not necessarily had the effects that they were intended to have. Ban-the-Box policies, which were intended to alleviate some of the negative consequences that come with having to divulge a criminal arrest or conviction early in the hiring process, have led to greater possibilities of racial profiling in employment, or simply pushing the discrimination later into the hiring process. While Clean Slate laws and training members of the criminal justice system about collateral consequences present some benefits, those solutions are not likely to be completely effective in alleviating the issues that ex-offenders are facing. Fair Chance laws present the best protection against discrimination in the employment market. Expressly prohibiting employers from denying employment based on an applicant’s criminal history almost completely eliminates the need for supplemental policies. With strong limitations on how employers can use and consider criminal records, it does not matter when in the hiring processes the record is disclosed or discovered. Additionally, the need to expunge or seal low-level offenses becomes less prominent if employers cannot legally discriminate against the applicant. While these additional policies provide extra support for applicants during the hiring process, strong Fair Chance laws have the ability to carry most of the burden in protecting individuals with criminal histories. Implementing strong Fair Chance legislation is the best way for applicants like Joe to be able access the labor market.