In recent years, legislators and advocates have repeatedly sought to make people with criminal records more employable, including by wiping out the records themselves. A new academic working paper, written by Rutgers economist Amanda Y. Agan and several coauthors and released through the National Bureau of Economic Research, analyzes several of these initiatives. The findings are discouraging.
The case for record remediation goes something like this. In surveys, employers (unsurprisingly) say that they are reluctant to hire workers with criminal histories. Experiments confirm that when jobseekers acknowledge a criminal record on an application, they are less likely to get callbacks. If policymakers limit the reach of these records—such as by automatically expunging them after a period of time, or by forbidding background-check companies to report certain records to employers—this obstacle to employment for those with past charges and convictions would be removed.
The tradeoff, of course, is that such measures deny employers true information about applicants’ past, which is relevant in assessing those candidates’ risk of criminal offending. As Agan and her coauthors report, based on their data from Bexar County, Texas, “having a recent record, even a non-conviction, is highly predictive of having another criminal event occur in the following five years.” While they note that, six years after an offender’s criminal event, “people who had been convicted of a crime or been charged but not convicted have the same likelihood of committing a crime as a random person in the population,” waiting six years to trigger expungement might be too late to make much difference for past offenders’ employment prospects.
To assess these policies’ real-world effects, Agan et al. analyze three initiatives. First is the federal Fair Credit Reporting Act, which, for jobs that pay less than $75,000, bars consumer reporting agencies (or CRAs, which “include the major credit bureaus and employment background check companies”) from disclosing applicants’ non-conviction criminal records after seven years. Second is a Maryland law that requires CRAs to extend the same policy to applicants’ convictions after seven years, for jobs paying less than $20,000—covering most employment for those with records. Third is Pennsylvania’s 2018 Clean Slate law, which automatically expunges non-convictions, though data limitations restricted the researchers’ analysis to those records expunged after 18 months or more.
The researchers use individual-level data on both criminal records and employment to measure these policies' effects on qualified applicants. As they summarize:
We find no evidence that removal of non-conviction records from criminal background checks at seven years under FCRA increases the likelihood of having any formal employment income for those whose records are completely clear seven years after their last non-conviction event. . . . Similarly, using variation in Maryland, we fail to find a detectable improvement in average employment rates seven years after an individual’s last conviction event. . . . These results are further supported by the analysis of the Pennsylvania Clean Slate Law, where we find no effect of having non-conviction records 18 months or older automatically sealed on employment outcomes amongst those with only non-convictions on their record.
Given the obvious fact that employers consider applicants’ criminal history, why didn’t the policies demonstrate statistically significant effects? Agan et al. suggest a “scarring” theory, in which criminal-justice incidents disrupt employment and create gaps in applicants’ work history, creating problems for applicants beyond their criminal histories. This would explain their finding that gig-economy employment seems to improve after record-sealing, since gig companies tend to screen for criminal records but not for employment history.
This puts policymakers in a serious bind. While immediate record-sealing may have bigger pro-employment effects and be defensible on fairness grounds for non-convictions, it would deny employers valuable information. The alternatives, however, don’t appear much better. “Ban-the-box” laws, which forbid employers to ask about criminal history on initial job applications, have generated mixed-at-best results in studies. Some have argued that these policies induce discrimination against black applicants, with employers treating race as a proxy for a candidate’s criminal past when his record isn’t available.
For those job applicants who were formerly incarcerated, the outcomes of traditional programming aren’t much better. Agan et al. note that “well-known programs that provide transitional jobs or mentoring and work readiness training for those recently released from prison” have done little to improve former inmates’ employment prospects. The researchers suggest creating “more intensive wrap-around programs that actively seek to connect those with records to stable long-term employment.”
For people with criminal records, stable employment lowers their risk of future offending and is a crucial part of rebuilding their lives. Unfortunately, we still seem to have little idea how to integrate these would-be workers back into the labor force.
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