Criminal background check restrictions

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Criminal background check restrictions are policies that limit how and when someone can seek information about an individual's criminal history, such as their prior charges and convictions, as well as how such information can be used. The intention of these restrictions, which are sometimes called "banning the box" when prohibiting the use of the question "Please check this box if you have ever been convicted of a crime" on an application, is typically to prevent the denial of benefits (e.g., employment, housing or public assistance) to individuals based on their criminal history. The specific nature of restrictions placed on entities' ability to perform criminal background checks may vary based on factors such as the nature of the entity requesting the information (e.g., the government vs. a private company), the information that can be requested (e.g., only permitting checks for convictions of serious and violent crimes), the length of history that can be requested (e.g. limiting allowable requests to a defined period, such as the past seven years), the point at which the information can be requested (e.g., not until a preliminary determination has been made based on an application that does not include such checks) and the ways in which that information can be used (e.g., only denying a person a position where their criminal history bears directly on their employment activities, such as a bank denying a fiduciary position to a candidate who has a history of embezzlement or other financial crimes).

CONCEPT


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Goals
Conceptual Example

After years of declining crime rates, a State experiences an influx of formerly incarcerated individuals who have completed their sentences associated with a past crime wave. Upon re-entering society, however, many of these individuals face struggles in accessing employment opportunities, housing, student loans, and other resources that they require to reintegrate into society because applications for such resources all require them to disclose any history of prior criminal charges or convictions. Many of these individuals, in struggling to access such resources, become more prone to homelessness, unemployment, and new crimes, damaging society and returning the individuals to incarceration. To counteract these effects, the State passes a new law that, in certain circumstances, prevents employers, landlords and lenders from asking an individual about their criminal history on initial applications. By preventing the disclosure of criminal history-related information, the state enables more formerly incarcerated individuals to access the opportunities they need to resume a productive, law-abiding role in society, achieving declines in recidivism, homelessness and unemployment.

Tradeoffs

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Tradeoffs of implementing this policy may include:

  1. Risks producing socially problematic arrangements (e.g., If employers were prohibited from asking whether prospective teachers had been convicted of child abuse, prospective nursing home assistants of elder abuse, pharmacists of drug trafficking, etc.) depending on whether or not exemptions to such restrictions are provided.
  2. Reduces the overall penalties associated with committing a crime if punishment is a goal of the criminal justice system.
  3. Reduces deterrents to committing crimes (by making it easier to re-enter society afterwards).
  4. Prevents providers of benefits from prioritizing and rewarding individuals who have an established history of following the laws.
Compatibility Assessment

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If answered yes, the following questions indicate superior conditions under which the policy is more likely to be appropriate:

  1. Is there a high number of individuals who possess a criminal history in the jurisdiction?
  2. Are the individuals with a criminal history currently being denied benefits or opportunities due to their criminal history?
  3. Is the denial of benefits or opportunities to those with a criminal history occurring in contexts in which the individual's criminal history should not be relevant to the decision?
  4. Is the denial of benefits or opportunities to those with a criminal history producing negative social consequences (e.g., higher levels of unemployment, homelessness and recidivism)?
  5. Does sufficient capacity for the relevant benefits exist so that allowing those with a criminal history to be provided with them will not require denying them to those without a criminal history?
Design

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Assuming that a jurisdiction has decided to adopt the policy, the following questions will need to be answered when determining how to implement this policy:

  1. Will the restrictions on criminal background checks be designed as a blacklist or as a whitelist, and what circumstances will dictate whether or not the checks will be permissible?
    1. The use of a whitelist (I.e., "You may only request information on an individual's criminal history in the following circumstances..."), which limits the allowance of checks to only explicitly defined circumstances, is the most restrictive policy option, but is also the most challenging to write, as it may accidentally leave out circumstances in which a check may be desired. An example of a whitelist policy would be only allowing criminal background checks for cases in which an application and initial decision had already been processed, with such checks being limited to the past seven years for actual convictions of violent or financial crimes.
    2. The use of a blacklist (I.e. "You may not request information on an individual's criminal history in the following circumstances..."), which allows checks except when explicitly banned, is the most permissive policy option, but may be more prone to loopholes in which the entities identify ways to do the checks without falling into a blacklisted circumstance. An example of a blacklist approach would be to have a policy that prevented criminal background checks or inquiries on any crimes that were non-violent or do not have a direct bearing on the position or benefit for which they are applying.
  2. Which types of criminal charges and convictions, if not all, will the restrictions prevent the provider from considering?
    1. In order to avoid prejudicial interpretations in cases in which an individual was not found guilty, it may be advisable to restrict the use of criminal background checks to actual convictions and not charges.
    2. Often, the disclosure of criminal convictions is only required for serious crimes, such as felonies, violent crimes, and/or, in the case of employment, financial crimes.
  3. Will the restrictions on criminal background checks apply only to government providers (e.g., offering government jobs and public housing), or will they also apply to private providers (e.g., small business employers and private landlords)?
    1. It may be simpler and less controversial to begin the policy only for government jobs and public housing, allowing private entities to determine whether or not criminal inquiries are appropriate, particularly if criminal histories are matters of public record.
  4. When allowed to check an individual's criminal history, what restrictions, if any, will apply to the "look back period," or how far into the past a criminal history check can extend?
    1. Common lookback periods are seven or ten years.
  5. At what point in the process (e.g., at application, at conditional offer of the benefit, or never), if any, will criminal background checks and inquiries be allowed?
    1. The most common restrictions are to prevent a criminal history inquiry until later in a process, reducing the prejudicial history of the criminal history until the entity has already had a chance to review and assess the most relevant application information.
  6. When allowed to check an individual's criminal history, what restrictions, if any, will apply to how the information learned can be used?
    1. E.g., although a criminal background check might surface all prior criminal charges and convictions, perhaps the policy would exclude the party from considering non-convictions, convictions outside of a lookback period and/or non-violent crimes irrelevant to the circumstances.
  7. What means of preventing and policing the circumvention of the restrictions, if any, will need to be employed?
    1. In practice, it may be difficult to prevent private landlords and companies from gaining access to an individual's criminal history assuming that the information is a matter of a public record.
    2. It may be advisable to impose some form of penalties on employers (e.g., fines) who are found by government inspectors to include illegal questions on an application or who are otherwise the subjects of verified discrimination complaints.
  8. When a provider (e.g., of employment or housing) denies someone an opportunity because of their criminal history, will the entity be required to disclose that it did so for that reason?
    1. Forcing a party to go on record and articulate its reason for the denial may provide the denied individual with greater legal recourse and also inform them as to how their criminal history may be impacting their employment or housing search.


ADOPTION


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PolicyGraphics
  • Has adoption of: Common. Most criminal background check restriction policies that are currently in force pertain to the area of employment. Backgroundchecks.com, a provider of background check services, provides a chart summarizing 29 U.S. States and related municipalities that impose restrictions on criminal background checks for employment alone. [1]
Adopters
  • Notable entities who have implemented or adopted this policy include:
    • State of Indiana. Prevents employers from making an adverse employment decision based on sealed or expunged records. [1]
    • State of New York. Employers may only consider conviction-related information if it bears direct relationship to the job, or "if the individual would create an unreasonable risk to property to the safety or welfare of specific individuals or the general public." [2] Additional restrictions apply to juvenile records and to criminal background checks more broadly within the cities of Buffalo and Rochester, under which municipal codes provide additional protections. [1]
    • State of Pennsylvania. In addition to various restrictions, employers provide written notice to any applicants who were not hired at least in part due to their criminal history. [1]
    • State of Washington. Inquiries must pertain to convictions that reasonably relate to the job duties and have occurred in the prior ten years. [1]


STAKEHOLDERS


Supporters

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Opponents

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REFERENCES


Research

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Resources

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Footnotes
  1. 1.0 1.1 1.2 1.3 1.4 State and Local Restrictions on Criminal History Inquiries and Background Checks Backgroundchecks.com. April 3, 2015.
  2. New York Law on Employer Use of Arrest and Conviction Records. Nolo.com. Accessed on May 11, 2016.
Related Policies
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