Tag: bushway

Making the research case for hiring people with a conviction record

To persuade employers and policymakers to make fact-based decisions on hiring people who have been involved with the criminal justice system, they need the research facts presented in an accessible way. A new, short, sharable publication from Dr. Shawn Bushway at RAND explodes many of the myths about people with a conviction record that keep them from getting hired. Using plain language for hiring managers, it lays out the deep body of research that can help them make better decisions. The research brief “Resetting the Record: The Facts on Hiring People With Criminal Histories” is designed to help overcome fear-based skepticism about hiring people with records. It includes citations to the underlying research for advocates who want to learn more. Read more

Pending federal reforms promise support for justice-affected entrepreneurs

Word is getting around about pending reforms that would make federal support for small businesses more widely available to entrepreneurs with a criminal history. Notably, the U.S. Small Business Administration has recently taken steps to reduce or remove entirely criminal record-related restrictions in its loan and contracting programs.  These are steps that CCRC has been urging ever since the SBA’s restrictive policies first came to public attention during the pandemic. An article by Michael Friedrich published today by Arnold Ventures (AV) describes a number of reforms recently proposed or adopted by the SBA that will eliminate arbitrary program barriers based on criminal history that are unrelated to any established risk. These reforms should encourage more justice-affected business owners to seek SBA support for their entrepreneurial ventures in the form of federally guaranteed loans or federal contract set-asides for “socially and economically disadvantaged” businesses. The AV article points out that the near-exclusion from these programs based on criminal history “frustrate[s] federal efforts to contribute to economic development in disadvantaged communities, often the same low-income communities of color that have suffered the most during the era of mass incarceration and tough-on-crime policies.”     The AV article showcases the situation of Sekwan Merritt, whose electrical contracting company has become established in Baltimore since his release from prison five years ago, through small loans from a local community development organization, but which now needs the more substantial financial support provided by SBA loans to expand. “Entrepreneurs like Merritt, who have previously been involved with the justice system, often start small businesses as a response to discrimination and exclusion by traditional employers; around 4% of all small businesses have an owner with a criminal conviction. But they face dire challenges when trying to access capital through the SBA, the federal agency that connects small businesses with lenders to help them launch and develop. Merritt describes coming home from prison with a desire to start his own business and   “make things easier for people who have been through the same thing I have” by hiring others reentering the community after a prison term. His business, Lightning Electric, has grown steadily since that time, surpassing $600,000 in revenue last year. But when Merritt tries to take out small business loans, he hits a brick wall because of his criminal record. The Small Business Administration (SBA) and other institutional lenders have routinely denied him, making it difficult to hire and take on larger contracts.” Merritt believes that a change in the SBA’s policy “would create a seismic shift for his business, and for many others, making it possible to grow larger, take on more business, and contribute to their communities.”  Carson Whitelemons, director of criminal justice at AV, points out that “t]he SBA guaranteed more than $44.7 billion in loans in 2021 and serves as a particularly important lender for disadvantaged communities.”  CCRC’s Margaret Love notes that the capital controlled by the SBA “is critically important to helping people with a criminal record establish themselves in the community and to closing the racial wealth gap.”  Shawn Bushway, who has done extensive research on criminal records and employment, argues that ​“Places that have high crime, poverty, and other issues have fewer businesses than they could, and one reason may be that the people who want to develop businesses can’t get a loan.” Awesta Sarkash of the Small Business Majority adds that “entrepreneurship is a proven pathway to decrease recidivism,” and justice-affected business owners “should not be further marginalized or perceived as a credit risk simply because of their past.”  Research is underway that promises to support and encourage the reforms contemplated by the SBA, reforms that in turn should influence the policies of banks and other lending institutions. A group of researchers at the University of Michigan Law School is currently studying the effects of SBA laws, rules, and regulations on access to capital and entrepreneurship more broadly. They are particularly interested in the willingness of people with criminal records to apply for loans. J.J. Prescott, Henry King Ransom professor of law at the university, notes that such rules are likely to deter people with criminal records from starting businesses and submitting loan applications in the first place. The rules also sway other institutional lenders to employ similar restrictions. “The SBA influences the norms of the industry and gives the broader private market a justification for also looking at criminal records as a way to judge creditworthiness,” Prescott says. ​“Once you have a policy like this in place, there is a bit of a domino effect.” Prescott further notes that people’s criminal records have no clear impact on whether they repay loans, according to research. We will report in this space on further developments in the various SBA reforms proposed or foreshadowed. We hope that the spirit of reform that is seemingly moving the SBA in connection with its 7(a) loan program will in time be extended to its 8(a) business development and disaster assistance programs, which contain essentially the same criminal history-related restrictions.   Read more

A radical new approach to measuring recidivism risk

NOTE: This post has been updated as of 4/2 to incorporate additional research. Researchers at the RAND Corporation have proposed a radical new approach to measuring recidivism risk that raises questions about decades of received truth about the prevalence of reoffending after people leave prison.  At least since the 1990s, the Bureau of Justice Statistics has measured risk of recidivism at the time of a person’s last interaction with the justice system, when the statistical cohort includes many who are frequent participants in the criminal system as well as those for whom it is a one-time affair.  As a result, employers and others tend to interpret background checks as overstating the risk posed by someone who in fact may have been living in the community for years without criminal incident, and is unlikely to become criminally involved again. In Providing Another Chance: Resetting Recidivism Risk in Criminal Background Checks, Shawn Bushway and his RAND colleagues argue that risk should instead be measured at the time a background check is conducted, after an individual has had an opportunity to demonstrate their ability to reintegrate lawfully as well as their propensity to reoffend.  They label this the “reset principle,” and argue that this more individualized approach to risk assessment promises to improve the predictive value of criminal background checks.  In fact, they propose that it will “strengthen the case that people with convictions can, and usually do, change their ways.” Coupled with other studies showing that the risk of recidivism depends on a variety of factors (e.g., age at time of offense), this new RAND study suggests that general “time to redemption” research should not be relied upon to predict future behavior of specific individuals. The premise of the “reset principle” seems reasonable and even self-evident once explained.  And, if models based on the reset principle are developed into viable tools that employers and others can use to assess recidivism risk, these models may offer many with criminal histories a way to demonstrate that they should be offered another chance.  But there is a good reason why this has not already been done: it has been hard to identify data that would account for a sufficiently long period of time that an individual spends free in the community after their last interaction with the criminal justice system to accurately measure risk of reoffending. As Bushway and his colleagues point out, this sort of data collection requires long-term surveillance that implicates issues of privacy. The large data set from the North Carolina Department of Public Safety allowed the researchers to measure the frequency with which people who have a conviction are reconvicted over a ten-year period, how quickly their likelihood of reoffending declines, and how their risk profiles change.  They reached three highly significant conclusions based on the North Carolina data: The majority of individuals with a conviction do not have a subsequent conviction. A person’s likelihood of being convicted again declines rapidly as more time passes After a sufficient period without a new conviction, even people initially deemed to be at highest risk for recidivism (such as those with a more extensive criminal background) transition to risk levels that appear similar to those initially at the lowest risk. The RAND researchers caution that “prediction models that work in a specific context are not guaranteed to work in other contexts,” and that “there is no one-size-fits-all solution.” With that caveat, based on their conclusions respecting the North Carolina data, they make a series of recommendations: Policymakers should recognize that, over an extended sampling period, most people who get convicted are not reconvicted. This provides a fact base for policymaking that differs from findings by the Bureau of Justice Statistics that articulate that, in a given cohort of people released from prison (e.g., in a given year), most people experience another conviction. Updates to the Uniform Guidelines on Employee Selection Procedures can validate a new class of models, such as those that satisfy the reset principle, providing employers a more certain defense to challenges to their employment decisions. Policymakers and other decisionmakers should make determinations about risk thresholds that are applied in a particular setting (e.g., an employer deciding how much recidivism risk is appropriate for a given job description) because those thresholds implicate issues of equity and fairness. Data quality can limit the development of successful recidivism risk models, and policymakers should consider creating data infrastructure that supports models that adhere to the reset principle. Policymakers should understand that exploring and stressing models that adhere to the reset principle for bias will be crucial. Model predictions may reflect the unfair systemic biases in the current criminal justice system. Tools that use models that adhere to the reset principle should be developed judiciously and after carefully considering many systemic factors regarding fairness. An adequate assessment of bias should include a comparison to the current state. Even an imperfect tool could provide more opportunities to candidates against whom the current system is biased than the current methods. This research was sponsored by Arnold Ventures and conducted by the RAND Justice Policy Program. Read more

CCRC scholarship round-up – August 2019

Editor’s note:  This past year has seen a burgeoning of scholarship dealing with collateral consequences broadly defined, from lawyers, social scientists, and philosophers.  CCRC’s good friend Alessandro Corda has selected fifteen notable articles published in 2018-19, with information, links, and abstracts.  They are organized into five categories: (1) Legal collateral consequences (2) Collateral consequences and criminal procedure (3) Sex offender registration laws (4) Informal collateral consequences (5) Criminal records, expungement, sealing, and other relief mechanisms A complete and regularly updated collection of scholarship on issues relating to collateral consequences and criminal records can be found on our “Books & Articles” page.  From time to time we will preview and comment on new articles, and Alessandro has promised to provide another round-up by the end of the year.  We hope he will continue indefinitely in the role of CCRC’s official bibliographer.  (A PDF copy of this scholarship round-up is here.) Legal collateral consequences: Are Collateral Consequences Deserved? Brian Murray, Seton Hall Law School 95 Notre Dame L. Rev. (2020, forthcoming) While bipartisan passage of the First Step Act and state reforms like it will lead to changes in sentencing and release practices, they do little to combat the collateral consequences that ex-offenders face upon release. Because collateral consequences involve the state’s infliction of serious harm on those who have been convicted or simply arrested, their existence requires justification. Many scholars classify them as punishment, but modern courts generally diverge, deferring to legislative labels that classify them as civil, regulatory measures. This label avoids having to address existing constitutional and legal constraints on punishment. This Article argues that although collateral consequences occur outside of the formal boundaries of the criminal system, they align with utilitarian purposes for criminal punishment, such as incapacitation. Interpreting the nature of collateral consequences, legislative justifications during their creation and during reform efforts, and judicial doctrine confirms that decision-makers are operating on utilitarian terrain while cognizant of functional concerns in the criminal system. But these philosophical premises inhibit broad reform efforts relating to collateral consequences because public-safety and risk prevention rationales chase utility. The result is extra punishment run amok and in desperate need of constraints. This Article suggests a different approach to reforming collateral consequences: subjecting them to the constraints of retributivism by first asking whether they are deserved. Retributivist constraints emphasize dignity and autonomy, blameworthiness, proportionality, restoration, and impose obligations and duties on the state, suggesting many collateral consequences are overly punitive and disruptive of social order. This mode of analysis aligns with earlier Supreme Court precedent and accounts for retributivist constraints that already exist in present day sentencing codes. Proponents of rolling back collateral consequences should consider how utilizing desert principles as a constraint on punishment can alleviate the effects of collateral consequences on ex-offenders. ___________________________________________________________________  Third-Class Citizenship: The Escalating Legal Consequences of Committing a “Violent” Crime Michael M. O’Hear, Marquette University Law School 109 J. Crim. L. & Criminology 165 (2019) For many years, American legislatures have been steadily attaching a wide range of legal consequences to convictions — and sometimes even just charges — for crimes that are classified as “violent.” These consequences affect many key aspects of the criminal process, including pretrial detention, eligibility for pretrial diversion, sentencing, eligibility for parole and other opportunities for release from incarceration, and the length and intensity of supervision in the community. The consequences can also affect a person’s legal status and rights long after the sentence for the underlying offense has been served. A conviction for a violent crime can result in registration requirements, lifetime disqualification from employment in certain fields, and a loss of parental rights, among many other “collateral consequences.” While a criminal conviction of any sort relegates a person to a kind of second-class citizenship in the United States, a conviction for a violent crime increasingly seems even more momentous — pushing the person into a veritable third-class citizenship. This article provides the first systematic treatment of the legal consequences that result from a violence charge or conviction. The article surveys the statutory law of all fifty states, including the diverse and sometimes surprisingly broad definitions of what counts as a violent crime. While the article’s aims are primarily empirical, concerns are raised along the way regarding the fairness and utility of the growing length and severity of sentences imposed on “violent” offenders and of the increasingly daunting barriers to their reintegration into society. ________________________________________________________________ Beyond Punishment? A Normative Account of the Collateral Legal Consequences of Conviction Zachary Hoskins, University of Nottingham, Department of Philosophy Oxford University Press, 2019 People convicted of crimes are subject to a criminal sentence, but they also face a host of other restrictive legal measures: Some are denied access to jobs, housing, welfare, the vote, or other goods. Some may be deported, may be subjected to continued detention, or may have their criminal records made publicly accessible. These measures are often more burdensome than the formal sentence itself.  In Beyond Punishment?, Zachary Hoskins offers a philosophical examination of these burdensome legal measures, called collateral legal consequences. Drawing on resources in moral, legal, and political philosophy, Hoskins analyzes the various kinds of collateral consequences imposed in different legal systems and the important moral challenges they raise. Can collateral legal consequences ever be justified as forms of criminal punishment or as civil measures? Hoskins contends that, considered as forms of punishment, such restrictions should be constrained by considerations of proportionality and offender reform. He also argues that they may in a limited range of cases be permissible as risk-reductive civil measures. Whether considered as criminal punishment or civil measures, however, collateral legal consequences are justifiable in a far narrower range of cases than we find in current legal practice. Considering just how pervasive collateral legal consequences have become and their dramatic effects on offenders’ lives, Beyond Punishment? sheds valuable light on whether these restrictive measures are ever morally justified. ________________________________________________________________________ Wealth-Based Penal Disenfranchisement Beth A. Colgan, UCLA School of Law 72 Vand. L. Rev. 55 (2019) This Article offers the first comprehensive examination of the way in which the inability to pay economic sanctions—fines, fees, surcharges, and restitution—may prevent people of limited means from voting. The Supreme Court has upheld the constitutionality of penal disenfranchisement upon conviction, and all but two states revoke the right to vote for at least some offenses. The remaining jurisdictions allow for re-enfranchisement for most or all offenses under certain conditions. One often overlooked condition is payment of economic sanctions regardless of whether the would-be voter has the ability to pay before an election registration deadline. The scope of wealth-based penal disenfranchisement is grossly underestimated, with commentators typically stating that nine states sanction such practices. Through an in-depth examination of a tangle of statutes, administrative rules, and policies related to elections, clemency, parole, and probation, as well as responses from public disclosure requests and discussions with elections and corrections officials and other relevant actors, this Article reveals that wealth-based penal disenfranchisement is authorized in forty-eight states and the District of Columbia.  After describing the mechanisms for wealth-based penal disenfranchisement, this Article offers a doctrinal intervention for dismantling them. There has been limited, and to date unsuccessful, litigation challenging these practices as violative of the Fourteenth Amendment’s equal protection and due process clauses. Because voting eligibility is stripped of its fundamental nature for those convicted of a crime, wealth-based penal disenfranchisement has been subject to the lowest level of scrutiny, rational basis review, leading lower courts to uphold the practice. This Article posits that these courts have approached the validity of wealth-based penal disenfranchisement through the wrong frame—the right to vote—when the proper frame is through the lens of punishment. This Article examines a line of cases in which the Court restricted governmental action that would result in disparate treatment between rich and poor in criminal justice practices, juxtaposing the cases against the Court’s treatment of wealth-based discrimination in the Fourteenth Amendment doctrine and the constitutional relevance of indigency in the criminal justice system broadly. Doing so supports the conclusion that the Court has departed from the traditional tiers of scrutiny. The resulting test operates as a flat prohibition against the use of the government’s prosecutorial power in ways that effectively punish one’s financial circumstances unless no other alternative response could satisfy the government’s interest in punishing the disenfranchising offense. Because such alternatives are available, wealth-based penal disenfranchisement would violate the Fourteenth Amendment under this approach. ___________________________________________________________________  Collateral Consequences and Criminal Justice: Future Policy and Constitutional Directions Gabriel J. Chin, University of California, Davis – School of Law 102 Marq. L. Rev. 233 (2018) National policy with respect to collateral consequences is receiving more attention than it has in decades. This article outlines and explains some of the reasons for the new focus. The legal system is beginning to recognize that for many people convicted of crime, the greatest effect is not imprisonment, but being marked as a criminal and subjected to legal disabilities. Consequences can include loss of civil rights, loss of public benefits, and ineligibility for employment, licenses, and permits. The United States, the 50 states, and their agencies and subdivisions impose collateral consequences—often applicable for life—based on convictions from any jurisdiction. However, because they were deemed “civil,” collateral consequences have been created and imposed with few constitutional limitations. In recent years, the American Law Institute, American Bar Association, and Uniform Law Commission all have proposed reforms, which are now being seriously considered in a number of jurisdictions. Meanwhile, scholars have advanced, and courts have sometimes accepted, an argument that they previously rejected, namely that collateral consequences can be of constitutional magnitude. As courts take collateral consequences more seriously, legislatures have begun to reduce the numbers of collateral consequences and provide legal mechanisms for the relief of those that remain. ________________________________________________________________________ The Collateral Consequence Conundrum: Comparative Genealogy, Current Trends, and Future Scenarios Alessandro Corda, Queen’s University Belfast School of Law in After Imprisonment, 77 Studies in Law, Politics and Society (Austin Sarat ed., 2018), pp. 69-97 Collateral consequences (CCs) of criminal convictions such as disenfranchisement, occupational restrictions, exclusions from public housing, and loss of welfare benefits represent one of the salient yet hidden features of the con- temporary American penal state. This chapter explores, from a comparative and historical perspective, the rise of the many indirect “regulatory” sanctions flowing from a conviction and discusses some of the unique challenges they pose for legal and policy reform. US jurisprudence and policies are contrasted with the more stringent approach adopted by European legal systems and the European Court of Human Rights (ECtHR) in safeguarding the often-blurred line between criminal punishments and formally civil sanctions. The aim of this chapter is twofold: (1) to contribute to a better understanding of the overreliance of the US criminal justice systems on CCs as a device of social exclusion and control, and (2) to put forward constructive and viable reform proposals aimed at reinventing the role and operation of collateral restrictions flowing from criminal convictions. ________________________________________________________________________ Collateral Consequences of Criminal Conviction: Law, Policy and Practice Margaret Colgate Love, Law Office of Margaret Love Jenny Roberts, Washington College of Law, American University Wayne A. Logan, Florida State University Law School West/NACDL, 3d ed. 2018-2019 This volume is a comprehensive resource for practicing lawyers, judges and policymakers on the legal restrictions and penalties that result from a criminal conviction over and above the court- imposed sentence. Today, many millions of Americans have a criminal record of some kind, potentially triggering a vast array of highly burdensome and stigmatizing consequences that can have life-long debilitating effects. This volume provides comprehensive discussion and analysis of these after-effects of the nation’s ongoing “tough on crime” policies, ranging from loss of civil rights and employment opportunities, to firearms dispossession, registration and residency restrictions, and immigration consequences. It also discusses state and federal laws applicable to access to and use of criminal records, and the informal consequences that exist apart from formal legal restrictions. It serves as a single go-to resource for lawyers, judges, and policymakers as they negotiate the often complex and obscure statutes and regulations that come into play as a consequence of arrest and conviction. ____________________________________________________________________  Collateral Consequences of Punishment: A Critical Review and Path Forward David S. Kirk, University of Oxford, Department of Sociology Sara Wakefield, Rutgers School of Criminal Justice 1 Annual Review of Criminology 171 (2018) The unprecedented growth of the penal system in the United States has motivated an expansive volume of research on the collateral consequences of punishment. In this review, we take stock of what is known about these collateral consequences, particularly in the domains of health, employment, housing, debt, civic involvement, families, and communities. Yet the full reckoning of the formal and informal consequences of mass incarceration and the tough-on-crime era is hindered by a set of thorny challenges that are both methodological and theoretical in nature. We examine these enduring challenges, which include (a) the importance of minimizing selection bias, (b) consideration of treatment heterogeneity, and (c) identification of causal mechanisms underlying collateral consequences. We conclude the review with a focused discussion on promising directions for future research, including insights into data infrastructure, opportunities for policy tests, and suggestions for expanding the field of inquiry. ___________________________________________________________________  Collateral consequences and criminal procedure Incorporating Collateral Consequences into Criminal Procedure Paul T. Crane, U.S. Department of Justice, Criminal Division 54 Wake Forest L. Rev. 1 (2019) A curious relationship currently exists between collateral consequences and criminal procedures. It is now widely accepted that collateral consequences are an integral component of the American criminal justice system. Such consequences shape the contours of many criminal cases, influencing what charges are brought by the government, the content of plea negotiations, the sentences imposed by trial judges, and the impact of criminal convictions on defendants. Yet, when it comes to the allocation of criminal procedures, collateral consequences continue to be treated as if they are external to the criminal justice process. Specifically, a conviction’s collateral consequences, no matter how severe, are typically treated as irrelevant when determining whether a defendant is entitled to a particular procedural protection. This Article examines that paradoxical relationship and, after identifying a previously overlooked reason for its existence, provides a framework for incorporating collateral consequences into criminal procedure. Heavily influenced by concerns of practicality and feasibility, the proposed methodology establishes a theoretically coherent path forward that requires only modest adjustments to existing doctrines. After setting forth the three-step framework, the Article applies its insights to the two most hallowed rights in our criminal justice system: the constitutional right to counsel and the constitutional right to a jury trial. ______________________________________________________________________  Wrongful Collateral Consequences Abigail E. Horn, Lawyer 87 Geo. Wash. L. Rev. 315 (2019) Collateral consequences of criminal convictions perpetuate racial hierarchy, disadvantage individuals and families, undermine communities, and harm the public by hindering reentry efforts. This Article is the first to systematically expose another overlooked characteristic of collateral consequences—the extent to which they are imposed wrongfully. Wrongful collateral consequences are those that attach erroneously and in clear violation of the law. The causes are structural. Imposing collateral consequences requires a two-step matching process. First, an administrator must match a person to his or her criminal-records data. Second, an administrator must match the criminal- records data to the law enacting the collateral consequence—to determine whether the consequence should lawfully attach. These steps are simple to state, but difficult to implement. Errors occur at both steps. Wrongful collateral consequences arise because criminal-records data is notoriously incomplete and inaccurate. They also arise because the laws enacting collateral consequences are structurally complex—legislators employ catchall clauses to enumerate the triggering offenses and complex duration clauses to prescribe the length of the consequences. Reforms are possible. Two would get at the root causes: improving criminal-records data and simplifying collateral-consequence laws. Other reforms would leave in place the existing structure but should be implemented immediately: improvements in procedural due process, creative plea bargaining by criminal-defense counsel, and quality controls by administrators who do the two-step matching. These reforms would prevent wrongful collateral consequences at the margins, but not eradicate the problem. Wrongful collateral consequences ultimately present yet another reason why collateral consequences, and the caste system they create, are misguided and unjust. _______________________________________________________________  Sex offender registration laws Beyond Panic: Variation in the Legislative Activity for Sex Offender Registration and Notification Laws Across States Over Time Robert Lytle, Department of Criminal Justice at the University of Arkansas at Little Rock 30 Criminal Justice Policy Review 451 (2019) Nationwide moral panic has long served as a primary explanation for sex offense laws. These laws, however, remain primarily left to state legislatures, which implies potential variation in their content over time. Variation in legislative content, to the degree that it represents implementation, not only suggests differential consequences for registrants and communities, but also it would raise questions to the sufficiency of moral panic as a sole explanation for sex offense policy change. I build upon earlier work by exploring variation in the content and timing of sex offender registration and notification (SORN) reform in all 50 states over time. After documenting variation in these laws, I present the ways in which SORN legislative content has evolved differently across states. In addition, the timing of legislative reforms differed not only across states but also within states over time. These findings have implications for existing theoretical assertions regarding criminal justice policy. ___________________________________________________________________  Challenging the Punitiveness of “New-Generation” SORN Laws Wayne A. Logan, Florida State University College of Law 21 New Crim. L. Rev. 426 (2018) Sex offender registration and notification (SORN) laws have been in effect nationwide since the 1990s, and publicly available registries today contain information on hundreds of thousands of individuals. To date, most courts, including the Supreme Court in 2003, have concluded that the laws are regulatory, not punitive, in nature, allowing them to be applied retroactively consistent with the Ex Post Facto Clause. Recently, however, several state supreme courts, as well as the Sixth Circuit Court of Appeals, addressing challenges lodged against new-generation SORN laws of a considerably more onerous and expansive character, have granted relief, concluding that the laws are punitive in effect. This article examines these decisions, which are distinct not only for their results, but also for the courts’ decidedly more critical scrutiny of the justifications, purposes, and efficacy of SORN laws. The implications of the latter development in particular could well lay the groundwork for a broader challenge against the laws, including one sounding in substantive due process, which unlike ex post facto–based litigation would affect the viability of SORN vis-à-vis current and future potential registrants.  _______________________________________________________________  Informal collateral consequences Disordered Punishment: Workaround Technologies of Criminal Records Disclosure and the Rise of a New Penal Entrepreneurialism Alessandro Corda, Queen’s University Belfast School of Law Sarah E. Lageson, Rutgers School of Criminal Justice British Journal of Criminology (2019, online first) The privatization of punishment is a well-established phenomenon in modern criminal justice operations. Less understood are the market and technological forces that have dramatically reshaped the creation and sharing of criminal record data in recent years. Analyzing trends in both the United States and Europe, we argue that this massive shift is cause to reconceptualize theories of penal entrepreneurialism to more directly address the role of technology and commercial interests. Criminal records, or proxies for them, are now actively produced and managed by third parties via corporate decision-making processes, rather than government dictating boundaries or outsourcing duties to private actors. This has led to what we term ‘disordered punishment’, imposed unevenly and inconsistently across multiple platforms, increasingly difficult for both government and individuals to control. ______________________________________________________________________  Criminal Employment Law Benjamin Levin, University of Colorado Law School 39 Cardozo L. Rev. 2265 (2019) This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law. This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with criminal records and to discharge employees based on non-workplace criminal misconduct. In this way, private employers effectively operate as a branch of the criminal legal system. But private employers act without constitutional or significant structural checks. Therefore, I argue that the criminal system has altered the nature of employment, while employment law doctrines have altered the nature of criminal punishment. Employment law scholars should be concerned about the role of criminal records in restricting entry into the formal labor market. And criminal law scholars should be concerned about how employment restrictions extend criminal punishment, shifting punitive authority and decision-making power to unaccountable private employers. ___________________________________________________________________ Privatizing Criminal Stigma: Experience, Intergroup Contact, and Public Views about Publicizing Arrest Records Sarah E Lageson, Rutgers School of Criminal Justice Megan Denver, Northeastern University School of Criminology and Criminal Justice Justin T. Pickett, University of Albany School of Criminal Justice 21 Punishment & Society 315 (2019) Current U.S. policy allows private companies to publish arrest records prior to conviction in print and online sources, yet little is known regarding the extent to which people actively search for criminal records or whether the public supports these policies. Utilizing two large public opinion surveys (N = 1008 and N = 1601), we find that approximately 15% of Americans searched online for conviction records last year (an estimated 38 million people), but that a strong majority (88%) oppose the publication of arrest records by private companies. We measure correlates of opposition to record disclosure and find that having high-quality interpersonal contact with an arrestee diminishes support for publicizing arrest records and also tempers views of recidivism risk for those with nonviolent convictions. Findings suggest that learning firsthand about the negative consequences of contemporary criminal labels changes popularly held views on the value of immediate arrest record disclosure. _____________________________________________________________________  The Collateral Consequences of Incarceration for Housing David S. Kirk, University of Oxford, Department of Sociology In Handbook on the Consequences of Sentencing and Punishment Decisions (Beth M. Huebner & Natasha A. Frost eds., 2018), pp. 53-68. The ability to obtain safe, decent, and affordable housing is critical to the successful reentry and reintegration of formerly imprisoned individuals back into society. Yet many convicted individuals face significant barriers to securing housing, both in the private and the public market. One barrier includes the so-called “invisible punishments”—that is, the legal and regulatory sanctions beyond the criminal sentence imposed in court. For instance, certain classes of felons may be automatically and even permanently banned from receiving public housing benefits or vouchers. A second related barrier is the stigma of a criminal record. Easy access to criminal records makes it easy and efficient for landlords and other real estate professionals to access criminal history information about a prospective tenant or buyer. In fact, because of the vast racial and ethnic disproportionality in the criminal justice system, the use of criminal records in housing decisions has civil rights implications in accordance with the Fair Housing Act. A third barrier is a lack of income in combination with a dearth of affordable housing in the U.S. The employment prospects of the average convicted individual are already dismal, and an ever-growing body of research demonstrates that job prospects and wages are further undermined by criminal conviction. Without stable income, one’s housing prospects are sorely curtailed. This chapter will review what is known about the housing experiences of formerly incarcerated individuals as well as the consequences of these barriers to stable housing. ________________________________________________________________________ Criminal records, expungement, sealing, and other relief mechanisms Expungement of Criminal Convictions: An Empirical Study J.J. Prescott, University of Michigan Law School Sonja B. Starr, University of Michigan Law School Harv. L. Rev. (Forthcoming 2020). Date Posted on SSRN: March 16, 2019 Laws permitting the expungement of criminal convictions are a key component of modern criminal justice reform efforts and have been the subject of a recent upsurge of legislative activity. This debate has been almost entirely devoid of evidence about the laws’ effects, in part because the necessary data (such as sealed records themselves) have been unavailable. We were able to obtain access to deidentified data that overcomes that problem, and we use it to carry out a comprehensive statewide study of expungement recipients and comparable non-recipients. We offer three key sets of empirical findings. First, among those legally eligible for expungement, just 6.5% obtain it within five years of eligibility. Drawing on patterns in our data as well as interviews with expungement lawyers, we point to reasons for this serious “uptake gap.” Second, those who do obtain expungement have extremely low subsequent crime rates, comparing favorably to the general population—a finding that defuses a common public-safety objection to expungement laws. Third, those who obtain expungement experience a sharp upturn in their wage and employment trajectories; on average, within two years, wages go up by 25% versus the pre-expungement trajectory, an effect mostly driven by unemployed people finding jobs and very minimally employed people finding steadier or higher-paying work. ____________________________________________________________________ Criminal Records, Positive Credentials and Recidivism: Incorporating Evidence of Rehabilitation Into Criminal Background Check Employment Decisions  Megan Denver, Northeastern University School of Criminology and Criminal Justice Crime and Delinquency (2019, online first) Decision makers increasingly incorporate “evidence of rehabilitation” into criminal background checks. Positive credentials can decrease criminal record stigma and improve employment outcomes, but we lack research on whether rehabilitative factors used in such assessments are correlated with recidivism. The current study examines more than 1,000 state-mandated criminal background checks in the rapidly growing health care sector. Everyone in the sample received an initial denial and requested reconsideration by submitting evidence of rehabilitation. The findings indicate prior employer recommendations and program completion are positively correlated with clearance to work, but conditional on contesting in the first place, none of the evidence of rehabilitation factors are negatively correlated with recidivism. Persistently pursuing an employment opportunity through a contestation process may, in itself, signal rehabilitation and lower risk. ______________________________________________________________________  Credentialing Decisions and Criminal Records: A Narrative Approach Megan Denver, Northeastern University School of Criminology and Criminal Justice Alec C. Ewald, University of Vermont, Department of Political Science 56 Criminology 715 (2018) Decision makers such as employers and state occupational licensing officials are often encouraged or required to incorporate evidence of rehabilitation into hiring decisions when applicants have criminal records. Current policy movements at the local, state, and federal levels may increase the use of such individualized assessments. Yet little is known about which types of information these decision makers use, how they evaluate evidence, and how they ultimately make determinations. We examine a sample of 50 unarmed security guard licensing decisions in New York State using content analysis. We find that administrative law judges rely on a narrative framework to document whether applicants currently have a prosocial identity and merit licensure. Judges typically describe one of two prosocial identity narratives for successful applicants: The applicant demonstrates achieving meaningful change, or his or her criminal record represents an aberration. Two factors seem vital to these assessments: applicants’ postconviction trustworthiness, as demonstrated through good conduct or inferred through positive appraisals, and credible testimony. In narrative explanations, personal responsibility and adult milestones are often discussed, reflecting a judicial nod to the notion of a “transition to adulthood.” The results hold implications for scholars and policy makers examining employment barriers, stigma remediation, and collateral sanctions for individuals with criminal records. ______________________________________________________________________ Criminal Records and Employment: A Survey of Experiences and Attitudes in the United States Megan Denver, Northeastern University School of Criminology and Criminal Justice Justin T. Pickett, University of Albany School of Criminal Justice Shawn D. Bushway, University of Albany, Department of Public Administration & Policy 35 Justice Quarterly 584 (2018) Ban-the-Box (BTB) legislation, which bans employers from asking about criminal history records on the initial job application, is arguably the most prominent policy arising from the prisoner reentry movement. BTB policies assume: 1) most employers ask about criminal records, and 2) inquiries occur at the application stage. However, we lack reliable information about the validity of these assumptions or about public attitudes towards criminal background checks, which limits our understanding of the potential scope of this innovative policy. Using survey data from a national probability sample, we estimate that in the past year, over 31 million U.S. adults were asked about a criminal record on a job application. According to our survey, virtually all of the criminal record inquiries occurred at the application stage, highlighting the potential of BTB. However, we also found that the public is sharply divided on whether to prevent employers from asking on applications, as per BTB. Read more