September 18, 2015
Loyola Law School professor Kevin Lapp recently published an article titled “American Criminal Record Exceptionalism.” He examined the onerous lifelong burden of having a criminal record through the lens of criminal justice scholar James B. Jacobs’s new book “The Eternal Criminal Record.”
Lapp praised Jacobs’s book as documenting the broad scope of criminal record keeping. Criminal records have found their way to employers, schools, landlords, licensing agencies, the media and more.
Easy access to such information has increased the stigma of crime, created formal disabilities — disenfranchisement, deportation, housing restrictions, government entitlement eligibility and statutory employment prohibitions.
A 2010 survey by the Society for Human Resource Management found that 92 percent of their members, which are mostly large employers, perform criminal background checks on some or all job candidates.
One prominent researcher has found that a criminal record reduces the likelihood of a job callback, or offer, by nearly 50 percent.
An estimated 65 million U.S. adults have criminal records and they often confront barriers that prevent even the most qualified from securing employment, according to the National Employment Law Project.
A single criminal conviction should not tarnish a life otherwise spent abiding the law. A criminal record should disappear over time and there is research to support that proposition.
If an offender has a history of criminal conduct that stretches over time then the record should be preserved and used to enhance penalties and warn employers, the public, and law enforcement that this individual is potentially dangerous and definitely a criminal nuisance.
On the other hand an offender who has gone crime-free for a period of time should have his criminal record removed.
In 2009, Alfred Blumstein and Kiminori Nakamura of Carnegie Mellon University wrote in Redemption in the Presence of Widespread Criminal Background Checks that there comes a time after a period of crime-free behavior that an ex-offender is no more likely to commit a crime than the general population.
Their analysis was based on a statistical concept called the “hazard rate.” The hazard rate is the probability, over time, that someone who has stayed clean will be rearrested. For a person who has been arrested in the past, the hazard rate declines the longer the former offender remains arrest free.
The study examined the hazard rate for 18-year-olds when they were arrested for a first offense of one of three crimes — robbery, burglary and aggravated assault. For robbery, the hazard rate declined to the same arrest rate for the general population of same aged individuals at age 25.7 or 7.7 years after the robbery arrest. After that point, the probability that the convicted individual would commit another crime was less than the probability of other same aged individuals in the general population.
The study also examined the effect of the arrestee’s age at the time of his first arrest. The researchers examined the hazard rates for three ages of people in the study group — 16, 18 and 20-years-olds — who were arrested for robbery.
The analysis showed that the younger an offender was when he committed robbery, the longer he had to stay arrest free to reach the same arrest rate as people his same age in the general population. The researchers found similar results for first offense burglary and aggravated assault.
Only those ex-offenders who have been crime free for an extended period of time would be eligible to have their criminal records purged. A repeat violent offender would not enjoy the benefit of having her record eliminated. Providing opportunity to law abiding citizens is good for the individual and good for society.
Shouldn’t an ex-offender, crime-free for 10 years, have the opportunity to succeed — it’s the American way.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
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