INDEFINITE PUNISHMENT AND THE CRIMINAL RECORD: STIGMA REPORTS AMONG EXPUNGEMENT‐SEEKERS IN ILLINOIS*

Although criminal records in the United States are more publicly accessible than ever before, we lack knowledge about how record‐bearers seek to overcome the negative consequences associated with a visible criminal record as they apply for jobs, housing, and financial aid. Furthermore, although criminal histories record all arrests—and not just those that result in conviction—researchers have yet to compare how those with more extensive versus minor criminal records cope with criminal record stigma. We present interview data from a comparative study of expungement‐seekers (N = 53) who have petitioned the courts to remove their criminal records from public view. One group had extensive criminal records (46 percent); the other group had more minor criminal records (54 percent). Several key findings emerged. First, both groups of participants tried, but failed, to persuade potential employers and landlords to overlook the criminal record. They also faced restricted educational opportunity. Second, participants in both groups expressed distress that criminal justice contact could follow them throughout their lives, subjecting them to ongoing stigma. However, those with extensive versus minor criminal records offered different rationales explaining why the visible criminal record history unfairly burdened them. Implications for reintegration theory and policy are discussed.     

Attitudes toward hiring applicants with mental illness and criminal justice involvement: The impact of education and experience

Individuals with mental health diagnoses, as well as those involved in the criminal justice system, experience a number of barriers in the recovery and reintegration progress, including access to stable, prosocial employment opportunities. Employment for these populations is important for establishing financial security, reducing unstructured leisure time, increasing self-worth, and improving interpersonal skills. However, research has demonstrated that individuals with psychiatric and/or criminal backgrounds may experience stigmatizing attitudes from employers that impede their ability to find adequate work. This study aimed to evaluate stigmatizing beliefs toward hypothetical applicants who indicated a mental health history, a criminal history, or both, as well as the effectiveness of psychoeducation in reducing stigma. Participants consisted of 465 individuals recruited from a large university who completed a series of online questions about a given applicant. Results of this study varied somewhat across measures of employability, but were largely consistent with extant research suggesting that mental illness and criminal justice involvement serve as deterrents when making hiring decisions. Overall, psychoeducation appeared to reduce stigma for hiring decisions when the applicant presented with a criminal history. Unfortunately, similar findings were not revealed when applicants presented with a psychiatric or a psychiatric and criminal history. Implications and limitations of these findings are presented, along with suggestions for future research.     

THE EDGE OF STIGMA: AN EXPERIMENTAL AUDIT OF THE EFFECTS OF LOW‐LEVEL CRIMINAL RECORDS ON EMPLOYMENT

Ample experimental evidence shows that the stigma of a prison record reduces employment opportunities (Pager, 2007). Yet background checks today uncover a much broader range of impropriety, including arrests for minor crimes never resulting in formal charges. This article probes the lesser boundaries of stigma, asking whether and how employers consider low‐level arrests in hiring decisions. Matched pairs of young African American and White men were sent to apply for 300 entry‐level jobs, with one member of each pair reporting a disorderly conduct arrest that did not lead to conviction. We find a modest but nontrivial effect, with employer callback rates about 4 percentage points lower for the experimental group than for the matched control group. Interviews with the audited employers suggest three mechanisms to account for the lesser stigma of misdemeanor arrests relative to felony convictions: 1) greater employer discretion and authority in the former case; 2) calibration of the severity, nature, and timing of the offense; and 3) a deeply held presumption of innocence, which contrasts the uncertainty of arrest with the greater certainty represented by convictions. In addition, personal contact and workplace diversity play important roles in the hiring process.     

Legal Ambiguity in Managerial Assessments of Criminal Records

In an age of widespread background checks, we ask how managers in different organizational contexts navigate legal ambiguity in assessing applicants' criminal history information, based on interview data obtained in a recent field experiment. The study builds on institutional analyses of the social sources of workplace legality to describe how employers consider applicants with criminal histories. We find that some organizations set explicit standards to guide hiring decisions, providing concrete policies on how to treat applicants with records. Where such procedural mandates are lacking, however, hiring managers turn to a micro‐rational decision process to evaluate potential risk and liability. These individualized approaches create inconsistencies in how the law is interpreted and applied across organizations, as evidenced by actual hiring behavior in the field experiment.     

THE EFFECT OF CRIMINAL BACKGROUND CHECKS ON HIRING EX‐OFFENDERS*

Research Summary The rapid increase in the nation's incarceration rate over the past decade has raised questions about how to reintegrate a growing number of ex‐offenders successfully. Employment has been shown to be an important factor in reintegration, especially for men over the age of 27 years who characterize most individuals released from prison. This article explores this question using unique establishment‐level data collected in Los Angeles in 2001. On average, we replicate the now‐common finding that employer‐initiated criminal background checks are negatively related to the hiring of ex‐offenders. However, this negative effect is less than complete. The effect is strongly negative for those employers that are legally required to perform background checks, which is not surprising because these legal requirements to perform checks are paired with legal prohibitions against hiring ex‐offenders. However, some employers seem to perform checks to gain additional information about ex‐offenders (and thus hire more ex‐offenders than other employers), and checking seems to have no effect on hiring ex‐offenders for those employers not legally required to perform checks. Policy Implications One public policy initiative that has received considerable attention is to deny employers access to criminal history record information, which includes movements to “ban the box” that inquires about criminal history information on job applications. The assumption underlying this movement is that knowledge of ex‐offender status leads directly to a refusal to hire. The results of this analysis show that policy initiatives aimed at restricting background checks, particularly for those firms not legally required to perform checks, may not have the desired consequences of increasing ex‐offender employment. This result is consistent with an alternative view that some employers care about the characteristics of the criminal history record and use information about criminal history in a more nuanced, nondiscrete way.     

Ex-Offenders and Educational Equal Access: Doctoral Programs in Criminology and Criminal Justice

Utilizing data from university websites, this exploratory study examined criminology and criminal justice doctoral program admission requirements, while focusing on identifying barriers and challenges unique to applicants with criminal records. Findings reveal that all doctoral programs in criminology and criminal justice expect applicants to complete the GRE, submit recommendation letters, and provide personal statements. The majority of programs also specify minimum grade point averages necessary for admission, while just over one-half request academic writing samples. Further, data show that many academic institutions housing criminology and criminal justice doctoral programs make deliberate efforts to identify ex-offender applicants, particularly sex offenders. Limitations and directions for future research concerning equal and equitable educational access for ex-offenders are discussed.     

Criminal record stigma,race, and neighborhood inequality

Justice-involved people experience high levels of housing instability and residential mobility, making the housing search a recurrent part of life. Little is known, however, regarding how criminal record stigma functions in the rental housing market. This article examines how housing providers use criminal records to screen tenants in the rental housing market and whether it varies by type of neighborhood. I conduct an online correspondence audit to test discriminatory behaviors and find an adverse criminal record effect on housing opportunities. Many housing providers disqualify all tenants with a criminal record, even without information about the severity or timing of offenses. The criminal record effect is significantly stronger in gentrifying neighborhoods and in neighborhoods where the proportion of Black residents is dwindling. Tenant screening emerges as a central obstacle faced by the justice-involved population, vital to understanding the web of disadvantages that traps so many in the wake of the carceral state.     

How to overcome the cost of a criminal record for getting hired

Many theories emphasize how employment is protective against criminal recidivism, yet a criminal record is a major barrier for getting hired. We asked 591 managers to make hypothetical hiring decisions between two applicants whose key difference was the presence or absence of a criminal conviction. In addition, we randomly manipulated the education, references, wage, or experience of the applicant with the criminal record to identify which manipulations can offset the cost of the record on an applicant's probability of being selected. We found that, when credentials were the same, the applicant with a criminal record was unlikely to be hired. That applicant, however, could become likely to be hired (i.e., the likelihood crossed 50 percent) by having at least 1 year of relevant experience, a GED or a college degree, or references from a former employer or a professor. Incomplete degrees, references from criminal justice professionals, or wage discounts did not make the applicant with the record likely to be hired. Findings confirm that a criminal record carries a high employability cost but also indicate that this cost can be superseded by specific credentials that signal an applicant's reliability, which can be provided by existing programs and institutions.     

LEGAL STIGMA FOR MARIJUANA POSSESSION

A field experiment demonstrated that (1) the more serious a person's criminal history involving marijuana, the fewer positive responses were received from potential employers and (2) positions requiring bonding received fewer acceptances than those that made no such specification. No interaction between the combined effects of bonding and criminal record occurred. The present and previous studies suggest that legal stigma from a criminal record may affect employment opportunities in a generalizable manner and that even nonjail penalties have negative repercussions for future employment opportunities. This suggests inherent limitations to achieving a significant reduction of the harmful effects of criminalizarion by reducing the severity of penalties: some indirect costs of legal sanction appear to be inevitable.     

Drug testing in the criminal justice work place

This article investigates the use of drug testing to combat drug use and abuse by criminal justice personnel. Arguments for and against drug testing are discussed, as well as the current legal status of employees. The implications and future legal trends of drug testing of criminal justice personnel are analyzed.     

Mental disabilities under the ADA: a management rights approach

While numerous sources have focused on employee rights and employer obligations under the Americans with Disabilities Act, this article will emphasize employer rights with respect to mental disabilities under the ADA. Specifically, it addresses the ADA's definition of "mental disability," the right of employers to screen job applicants in spite of the ADA, the conditions under which an employer may require an employee to undergo a "fitness for duty" examination, and the limits of the duty to "reasonably accommodate" an employee with a mental disability.     

THE LANGUAGE OF STIGMATIZATION AND THE MARK OF VIOLENCE: EXPERIMENTAL EVIDENCE ON THE SOCIAL CONSTRUCTION AND USE OF CRIMINAL RECORD STIGMA

After years of stagnation, labeling theory has recently gained new empirical support. Simultaneously, new policy initiatives have attempted to restructure criminal record stigma to reduce reintegration barriers, and subsequent recidivism, driven by labeling. For example, in a recent Department of Justice (DOJ) language policy, person‐first terms (e.g., “person with a conviction”) were substituted for crime‐first terms (e.g., “offender”). The Equal Employment Opportunity Commission has also issued guidelines to structure how decision‐makers use criminal records. Unfortunately, little is currently known about the social construction and use of criminal record stigma or the potential effects of such policy changes. In the current study, we provide two unique empirical tests. In study 1, we examine the social construction of stigma by testing DOJ's language policy with experimental data from a nationally representative sample of American adults (N = 996). In study 2, we use a separate nationwide experiment (N = 1,540) to examine how the contextualization of criminal records influences social exclusion decisions. Across both studies, we find consistent evidence of a “mark of violence.” The public perceives that individuals with violent convictions are the most likely to commit future crimes, and it is more supportive of excluding these individuals from employment. Crime‐first terms exacerbate perceived recidivism risk for individuals with violent convictions.     

Discriminatory aspects of pre-employment screening: low-back X-ray examinations in the railroad industry.

In screening the majority of job applicants, most of this nation's railroads administer a low-back X-ray examination in an attempt to ascertain the likelihood that the applicant will sustain future work-related low-back pain or injury. Many applicants are rejected for employment on the basis of the X-ray findings. The railroads apparently perceive this screening program as a cost-effective means (1) of decreasing the incidence of compensation claims for work-related injuries, brought against the railroads under the Federal Employers' Liability Act (FELA), (2) of reducing the number of lost workdays resulting from low-back pain or injury, and (3) of protecting particularly susceptible workers from job-related hazards. The authors of this Article submit that low-back X-ray examinations are poor predictors of future low-back pain or injury. They assert that the railroads' use of such examinations misclassifies a substantial number of job applicants as being at increased risk for such pain or injury, and, in consequence, unfairly denies them employment. Furthermore, the authors claim, the screening program has other negative consequences. For example, applicants rejected for railroad employment on the basis of X-ray findings may as a result have difficulty finding jobs in other industries. In addition, they state, there is a potential radiation hazard to examinees. Moreover, both the railroads and those applicants accepted for employment may inappropriately be reassured by normal findings. On balance, the authors conclude, the screening program has a negative social value. The authors suggest that the program, in effect, erraneously labels many applicants as handicapped, and then denies them employment. Such persons might have legal recourse under federal and state statutes prohibiting employment discrimination against the handicapped.     

In defense of criminal defense expenditures and plea bargaining

Given the continuing controversy over defendants' buying justice through defense expenditures, this paper shows that disparities in criminal defense expenditures can insure that it is the guilty and not the innocent who will be punished. Our model allows defense and prosecution expenditures to be simultaneously determined. We show that criminal defense expenditures result in lower expected penalties for the innocent at trial and that they helo ensure that plea bargaining efficiently screens defendants even when differential risk aversion is present. Finally, we examine how differences in defendant's wealth and the use of public defenders affect the legal system's ability to differentiate the innocent from the guilty.     

Criminal Records and Employment: A Survey of Experiences and Attitudes in the United States

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.     

"Reasonable accommodation" under the Americans with Disabilities Act--what does it mean?

The Americans with Disabilities Act (ADA) imposes on employers the duty to afford qualified disabled applicants and employees "reasonable accommodation," but provides minimal guidance as to the range of actions necessary to fulfill this duty. Under the statutory scheme, required accommodations will vary from employer to employer, from worksite to worksite for the same employer, and perhaps even from employee to employee at the same worksite. Personnel managers will be required to make very fact-specific decisions in each case as to whether to offer particular accommodations, with any decision declining to provide the accommodation subject to attack in litigation. Based on an analysis of how similar reasonable accommodation requirements have been interpreted under other statutes, this article analyzes the likely parameters of the duty to afford reasonable accommodation under the ADA and offers specific suggestions for employers to minimize their risk of liability.     

论雇主责任过错推定原则的合理性

雇佣是现代社会的一个普遍现象。受雇人因执行一定的职务不法侵害他人权益时，如何规制其雇主的损害赔偿责任是法律上的一个重要的课题。无论从构成要件的认定，还是从责任承担的安排上，均可推导出雇主责任过错推定原则的合理性。我国未来的侵权责任法宜明确规定雇主责任为过错推定原则。     

REDEMPTION IN THE PRESENCE OF WIDESPREAD CRIMINAL BACKGROUND CHECKS*

Criminal background checks have now become ubiquitous because of advances in information technology and growing concerns about employer liability. Also, a large number of individual criminal records have accumulated and have been computerized in state repositories and commercial databases. As a result, many ex‐offenders seeking employment could be haunted by a stale record. Recidivism probability declines with time “clean,” so some point in time is reached when a person with a criminal record, who remained free of further contact with the criminal justice system, is of no greater risk than a counterpart of the same age—an indication of redemption from the mark of crime. Very little information exists on this measure of time until redemption and on how its value varies with the crime type and the offender's age at the time of the earlier event. Using data from a state criminal‐history repository, we estimate the declining hazard of rearrest with time clean. We first estimate a point of redemption as the time when the hazard intersects the age–crime curve, which represents the arrest risk for the general population of the same age. We also estimate another similar redemption point when the declining hazard comes “sufficiently close” to the hazard of those who have never been arrested. We estimate both measures of redemption as a function of the age and the crime type of the earlier arrest. These findings aid in the development of guidelines for the users of background checking and in developing regulations to enhance employment opportunities for ex‐offenders.     

Judicial scrutiny of gender-based employment practices in the criminal justice system

Purpose

This article examines employment practices of criminal justice agencies within state and federal court decisions that have interpreted sex discrimination claims under Title VII of the 1964 Civil Rights Act.

Methods

After collecting and analyzing appellate court cases through the LEXIS-NEXIS and WESTLAW databases, the article examines lower state and federal court decisions that have been applied by the U.S. Supreme Court to criminal justice workplaces.

Results

The findings show that employment practices are valid if the employer can demonstrate: first, the disputed discriminatory action is based on considerations not solely dependent on the plaintiff's gender; and second, such considerations are more than mere pretext, making them justifiable under the circumstances.

Conclusions

Courts have considered a wide range of employer practices in both law enforcement and corrections agencies at various stages of the employment process, such as hiring, assignment of duties, promotion, discipline, and termination. Title VII is violated when the employers’ adverse employment action is motivated by discriminatory intent and is based on gender stereotypes. Even so, employment actions are legal when employers prove their employment actions are not based on sex stereotypes, but are either business-related or justified by “legitimate,” “important,” or “compelling” interests.     

劳动刑法视野下劳动用工违法犯罪的惩治与预防机制对策

劳动用工违法犯罪的行为可以分为违法犯罪类型、单纯违法类型和模糊行为类型;劳动刑法应当以保障劳动密集型企业中底层劳动者的合法权益为重心,严厉惩治严重的劳动侵权犯罪;同时关注劳动者和用人单位双方利益的适度平衡;惩治和预防劳动用工违法犯罪,应当构建和完善劳动刑事处罚机制、宽严相济刑事政策机制、劳动法律体系衔接机制、司法协调救济机制等。