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Criminal Records

ESR CEO Attorney Lester Rosen Reviews Criminal Records Book and Its Impact on Employment Screening

February 08, 2016

“The Eternal Criminal Record” by Professor James B. Jacobs (Harvard University Press 2015) provides an overview on the proliferation of criminal records in America for criminal justice and law enforcement use and their secondary uses in ways not intended or even foreseen by policy makers. This book covers critical topics and is essential reading for anyone dealing with background checks and the impact of criminal records on individuals.  Jacobs is Warren E. Burger Professor of Constitutional Law and Courts Director of the Center for Research in Crime and Justice at the New York University School of Law, and he has authored numerous books, articles, and book chapters in the area of crime and criminal records. 

The book makes the point that “it is best not to think of a criminal record as a single document,” since it can include numerous types of records as a person progresses through the criminal justice system, starting from the arrest and all the way through to parole or probation.  There may often be overlapping records and files created by various agencies, resulting in a “massive amount” of information about a person involved in the criminal justice system. 

The author notes that, “The criminal record is a kind of negative curriculum vitae or résumé,” or a “criminal biography.” It can follow a person around like a “branding” and ends up being used for a wide variety of reasons beyond the criminal justice system. Non-criminal justice uses can include qualifications for employment, professional licenses, gun ownership, jury service, dating, roommates, or political office among others. 

Although the book certainly explores and comments on the negative impact of “conviction-based employment discrimination,” or CBED, the book achieves a certain level of credibility and objectivity because it does not start with a pre-conceived social or political agenda. In fact, the author explains that although most academics approach the study of criminal records from the viewpoint of rehabilitation and re-entry, he came to the subject while researching gun control.  Although the book makes strong arguments concerning the importance of accuracy and re-entry, the book to its credit also acknowledges the real world that employers occupy.

The book discusses for example a study demonstrating that a conviction for assault has a negative impact on employment.  The author noted however that the study did not comment on the fact that an employer has no way of knowing how much risk an assault conviction represents, “but will reasonably conclude that it indicates greater risk than an applicant with a spotless criminal record.” The author also notes that, “It is not irrational for businesses, not-for-profits, volunteer organizations, and individuals to commission criminal background checks on those with whom they do business or employ. It is desirable to enter business and social relationships with more information rather than less.”  The book goes on to state that, “In general, we would prefer to hire and associate with people whose biographies indicate honesty, reliability, and self-control.”

The author also observes that the impact of employment discrimination based on criminal records “ought not to be exaggerated,” since  most  ex-offenders also suffer one or more additional employment handicaps, such as educational deficiency, mental illness, drug dependency  and little or no legitimate work history. 

The book is also a useful source of factual data to help policy makers understand just how many Americans are impacted by criminal records and the critical distinction between a “conviction” and an “arrest.” There has been substantial discussion in the media about the number of Americans with “criminal records.”  The book clarified that a criminal record is different than having a criminal conviction, since “a criminal record is created for every arrest, regardless of the ultimate disposition.”  The author notes that an estimated twenty million Americans, about 8.6 percent of the total adult U.S. population, have recorded felony convictions. The remaining people with convictions are misdemeanors.  Although the author indicates that there are criminal records on 25% of the population, the math indicates that a large percentage of those criminal records are arrests only, which many states prohibit employers from using. 

There are sections of the book that would have benefited however from a more in-depth understanding of the screening industry. Background screening professionals reviewing parts of the book relating to the screening industry may well conclude that book’s understanding of how background screening actually works and how the process is and should be regulated falls short.  If there is a second edition, the author may find that impute from background screening firms and the National Association of Professional Background Screeners (NAPBS) could be helpful in obtaining a better understanding of the area.  One small example: the book cites claims from a so-called study from the National Consumer Law Center (NCLC) that asserted screening firms routinely make mistakes.  That study has been widely discredited as essentially an editorial where out of the millions of background checks done every year, the NCLC “study” carefully cherry picked and endlessly rehashed a small handful of anecdotes and cases to support a pre-existing point of view.  By getting imput from the screening professionals, the author would have been on notice that there has been substantial criticism of that study and have a much better picture of how employment screening works.

Nevertheless, “The Eternal Criminal Record” is a critically important book that surveys the use of criminal records and the practical impact of policies allowing criminal records to be widely distributed.  Anyone trying to develop their expert credentials in the screening industry should be reading this book.

About the Reviewer:

Attorney Lester S. Rosen is founder and CEO of Employment Screening Resources® (ESR), a nationwide background check company located in California and accredited by the National Association of Professional Background Screeners (NAPBS). He was the chairperson of the steering committee that founded the NAPBS and served as the first co-chair. Rosen is the author of “The Safe Hiring Manual,” the first comprehensive book on employment screening. He is also a frequent presenter nationwide on pre-employment screening issues for “ESR Speaks” and his speaking appearances have included numerous national and statewide conferences. Rosen was previously a criminal trial attorney, serving as a Deputy District Attorney in in California, and a criminal defense attorney in both state and federal courts in the San Francisco area.  His cases ranged from misdemeanors to murder and death penalty cases.  He taught trial practice at the Hastings College of the Law and served as an adjunct professor teaching criminal law and criminal procedure at Hastings. He has also presided over criminal jury trials as a judge pro tem.

This article was originally published on The Background Buzz, the E-zine for the background screening industry and leading source of news for professional background screeners published by W. Barry Nixon.

NOTE: Employment Screening Resources (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this web site is for educational purposes only.

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