I’ve always found newspaper rundowns of police activities strange because they mention who had been arrested. In a country that prides itself on the fact that people are “innocent until proven guilty,” such public shaming seemed anathema. Everyone assumes that people who are arrested are guilty of something. So printing arrestees’ names in the paper is a form of punishment without due process. I seem to be alone in thinking this. But the issue seems ever bigger as it changes from one name printed among many in a local newspaper to one name delivered globally to anyone who plugs it into a search engine.
This is just the very edge of a larger issue of criminal background checks for employment, housing, and even more trivial things. Gilad Edelman wrote an excellent article about the subject in the new issue of Washington Monthly, Second Chance, My Ass. It is nominally a review of the book, The Eternal Criminal Record. But it serves as a good primer about the issues that people with criminal records face in our hyper-connected country. It’s really disturbing. In 1996, only 50% of all companies did background checks on some new hires. Today, 75% of all companies do background checks on all applicants — and 90% do background checks on at least some.
Looking at these numbers, you might wonder how companies got along before. And remember: 1996 is far into the computer revolution. So if we go back to 1960, we are probably talking virtually no one but the CIA doing background checks. And I think this is the critical issue: background checks do not result in companies having better workers. Companies do background checks because they can. They are used as yet another tool to weed out candidates. And when you consider 12% of all Americans have felonies — not to mention those who simply have misdemeanors or simply arrests — it works really well!
I’ll tell you when companies did not do criminal background checks: during the dot-com bubble in Silicon Valley. Companies were so desperate for any people who could do the work that they didn’t care. That was a heady time. All other times in my working life, I’ve been struck with the fact that employers were not terribly interested in getting work done. Interviews were more about fitting in and being the kind of person who wouldn’t upset anything — ever. I discussed this in, Unstable Weirdos and Business Success. The point is that the modern American corporation seems more like a social club than a business.
This is why the use of criminal background checks and similar “weeding out” strategies are so pernicious. They really have nothing to do with business. They are just ways of keeping the poor down — maintaining existing social barriers. I mentioned that 12% of Americans have felony records: 25% of African Americans have felony convictions. As Michelle Alexander discussed at length in The New Jim Crow, this is the modern way to keep a whole race down.
In Europe, things are different. There are laws to protect individuals’ rights to privacy. But according to Edelman, the Supreme Court has found that in order to have transparent government, criminal records must be available to all. Think about that for a moment. According to the Supreme Court, we don’t need to know the people who can spend unlimited amounts of money on political candidates, but we do have to know every arrest and conviction of every individual in the country. But I have a hunch that this is not just a matter of legality. In my experience, employers from Europe and Asia are simply far more focused on getting the job done than they are on the misty-eyed nonsense that Americans focus on.
There is some good news, however. More and more places are making it illegal to ask job applicants if they have a conviction until after the job interview. This is a big deal. It is generally illegal to not hire someone on the basis of a criminal conviction. So what most employers do is simply never interview people who say they have conviction. If an ex-con lies, the employer declines to hire not based upon the conviction but rather because the applicant lied. So this is a good change. But, of course, we could and should do so much more.
Because of television and movies, most people have a highly unrealistic idea of the criminal justice system. They think that people go off to prison and so pay their “debt to society.” That could not be more untrue. The fact is that the society expects the convict to go on paying that debt for the rest of her life. And it is all in the name of making society itself worse. Edelman quoted some work from our friends at the Center for Economic and Policy Research (I assume she’s referring to this: Ex‐offenders and the Labor Market.) who find that keeping ex-cons out of the labor market costs the economy roughly $60 billion in output per year. But maybe that’s a small price to pay for this extra tool that allows managers to only ever have to manage workers who went to the same strata of colleges they did.