The clean slate movement to expunge public records of arrests and convictions has been gathering momentum as concerns about mass incarceration in the United States and the effort to decriminalize drug use have gained traction.
But the potential erasure of these records has left some business owners and employers — who want to insulate themselves from legal risk and fear disruption from potentially troublesome tenants and workers — feeling anxious.
”We have enough challenges with people with no criminal record,” said Jeff March, CEO of BRG Realty Group in Cincinnati, Ohio, which owns rental apartments in Ohio, Indiana and Kentucky.
While record erasure is available in nearly every state, it can be expensive and cumbersome. That has prompted several states to look at other ways to offset the consequences of having a criminal record, including offering certificates of rehabilitation to ensure good behavior and providing tax credits for employers who hire people with records.
In addition, some states are looking at reducing or eliminating the fees that people on parole have to pay and boosting funding for reentry programs that help with getting an ID card, job training, and housing. Some states also have taken the controversial step of immunizing employers from liability should they hire someone with a record and something goes wrong.
For someone like March, a potential tenant with a criminal record is not a deal-breaker, he said. But it is one of many factors that go into a decision by the company to rent or not to rent. Having stable employment, for instance, can be a plus for anyone, and in particular someone with a record.
“It is not one size fits all,” he said “How do you give some people very deserving of a second chance and how do you balance that with the need to keep people safe and avoid unnecessary liability?”
One option on the table: immunizing employers from that liability. About half the states have taken steps to do just that.
In Texas, for instance, the employer can be freed of responsibility if something occurs on the job and the employer is sued for “negligent hiring,” as long as the employer did not know and was not in a position to know about the employee’s past problems.
The doctrine of negligent hiring means the employer knew or should have known about the potential risk. Of course that doesn’t help the person who claims harm from the employee.
OPTIONS FOR LANDLORDS WORRIED ABOUT CRIMINAL RECORDS
Even so,many studies show widespread hesitancy about working with or providing housing for people with criminal records. And without a job or a place to stay, other problems can emerge. According to the Prison Policy Initiative, difficulty finding employment, affordable housing, and physical and mental health care can be factored in explaining why people are often re-arrested a few years after release.
Criminal records are especially problematic for people of color, especially Black and Hispanic people, who disproportionately are arrested and convicted in the U.S. — in what critics have said is often a direct result of decades of overzealous policing and a criminal justice system that has been weighted against them.
If an employer or landlord is worried about hiring or renting to someone with a criminal record, the U.S. Commission on Civil Rights suggests there are options, including certificates of rehabilitation or other methods that might prove qualification for employment or rental, or a loan.
The system allows a judge or other designated official to issue a certificate if certain conditions exist, such as no arrests since conviction, an assessment of good character, and the seriousness of the offense.
Non-violent offenders, for instance, could be strong candidates for the certificates. In 2012, Ohio enacted a law allowing courts to issue Certificates of Qualification for Employment, based on the person seeking employment’s ability to meet similar criteria.
Margaret Colgate Love, a former U.S. pardon attorney who has lobbied across the country to eliminate collateral consequences of having a record, said the certificate concept can be a very useful means of balancing the various interests at stake.
“People committed a crime. We can offer every opportunity for them to change their lives, but we don’t want to glorify crime-committing and we don’t want to pretend it doesn’t exist,” she said. The certificate of rehabilitation, she said, can encourage those she calls “worried but willing” to hire or rent or loan money to people with criminal records.
Other cities and states, such as California, Philadelphia, Illinois, Iowa and Maryland have, or have experimented with, offering tax credits to employers who hire people with criminal records, based on varying criteria and how much time has passed.
The criteria and conditions attached to the tax credits vary, according to a 2019 report by the U.S. Civil Rights Commission.
“These policies may begin to proliferate as more states understand that employing people with criminal records provides tax revenue, whereas incarceration represents a significant tax expenditure,” the civil rights commission found.
The federal government also offers the work opportunity tax credit to promote hiring of various groups of people who have had trouble getting work, including former felons, but also veterans, residents of certain low-income areas, and others.
ARE BUSINESSES, LANDLORDS TOO WORRIED ABOUT CRIMINAL RECORDS?
But a key question remains: does having a criminal record really matter? How strong is the link between having a criminal record and job performance? How great is the risk of hiring or renting someone with a record?
“After two to three years, if someone hasn’t been convicted again, their risk of a future conviction is the same as the general public,” said Amanda Agan, a Rutgers economics professor who is studying recidivism.
A Brookings study supports that. “Recidivism is highest immediately after release: 43 percent of released prisoners are rearrested during the first year. By contrast, those who are not quickly rearrested are less likely” to become a repeat offender.
Getting rid of a record, or not getting rid of a record may not be the key factor in whether someone can make a new start, Agan said.
Instead, making the public more aware of the limited risk people with records pose could have a more long lasting effect, she said. A survey of 1,102 workers by the Society of Human Resource Management, published in 2021, found substantial support for hiring workers with criminal records.
In addition, Agan worries that after elected officials enact record removal laws, they will say they have done enough. This, she fears, will divert attention from elected officials to other issues that may have a more direct impact on people with criminal records, such as expanding programs to help reentry, including job skill development.
“They are so gung ho, and then will not try other things,” she predicted. “We need to invest time and money to help people re-integrate and avoid rearrest,” she said.
A 2018 study for The Prison Policy Initiative found that unemployment among formerly incarcerated people hovers around 27 percent. Other studies have cited poverty as the strongest factor that predicts whether a person will become a repeat offender. And without a job, poverty looms for many people leaving prison.
Troy Burner, a D.C. resident who was exonerated after 24-and-a-half years in prison after he was convicted of aiding and abetting others in a murder case, said reentry help is desperately needed by people leaving prison.
“Everybody is treating us like we should just be lucky that we had the opportunity for a second chance, to live another life,” he said. “I immediately found that though I was released, ultimately my liberties were still restricted. Whether it was housing or unemployment the stain of incarceration would serve as an impediment for moving forward.”
There is a great need, he said, for education, training and other programs in prison and after that offer help finding a job, a place to live and other means to allow full reintegration into their communities.
Jennifer Ortiz, a criminal justice professor at Indiana University Southeast, said reentry programs need more attention.
“They are severely underfunded,” she said. “Most reentry services are provided by small non-profit organizations that cannot handle the sheer volume of those who are being released.”
HOW SOME SIMPLE CHANGES CAN HELP FORMERLY INCARCERATED
At least 650,000 people are released from prison annually in the United States, federal data show. In the fiscal year that ended on Sept. 30, about $100 million has been allocated by Congress for various post-prison programs, which would not only support people released this year, but people from prior years who remain in need of reentry services, such as skills training and housing aid, for more than a year.
Since 2009, the Department of Justice’s Innovation in Reentry Initiative, which funds programs across the country to improve reentry services, had spent about $73 million for 113 projects.
That stands in contrast to estimates that the states and the federal government spend about $80 billion annually on keeping about 2 million people in federal prisons, and state prisons and jails.
For someone returning to life on the outside, the first set of needs are pretty basic. Something as simple as having an ID card can be helpful and is needed to get services and apply for jobs. But identification cards are not easy to get, especially for people who may lack other basic forms of identification, often the case for formerly incarcerated people, Ortiz said.
And that’s just the beginning of the challenges, she said.
In an article written with Hayley Jackey of Eastern Kentucky University, Ortiz and Jackey went even further. “Reentry is a farce designed to keep the revolving door of prisons functioning while simultaneously giving society a new opportunity to pretend to be committed to rehabilitation.”
People coming out of prison need training while in prison, face numerous fees to participate in various programs after prison, including probation and parole in many states, and often lack any source of income, they wrote.
“The formerly incarcerated are set up to fail by an unjust system determined to control them from birth to grave.”
