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Analysis

Just Facts: As Many Americans Have Criminal Records as College Diplomas

With as many criminal convictions as college degrees, it’s more evident than ever why “ban the box” laws are important for the economy.

  • Matthew Friedman
November 17, 2015

The number of Amer­ic­ans with a crim­inal history has risen sharply over the past three decades. Today, nearly one-third of the adult work­ing age popu­la­tion has a crim­inal record. In fact, so many Amer­ic­ans have a crim­inal record that count­ing them all is nearly impossible.

Accord­ing to a 2012 Depart­ment of Justice survey, state crim­inal history repos­it­or­ies contain more than 100 million records. These are popularly referred to as “rap sheets” or “crim­inal records” although most people who have them have never been convicted of a seri­ous crime. These repos­it­or­ies chron­icle nearly every arrest, regard­less of whether or not it leads to an indict­ment or convic­tion. And while 100 million records do exist, this figure almost certainly over­states the true number of indi­vidu­als who have been arres­ted at any point in their lives, since one person can have an arrest record in multiple states.

In an effort to make complete crim­inal histor­ies easily access­ible to all law enforce­ment agen­cies, the FBI main­tains a data­base index­ing these records known as the Inter­state Iden­ti­fic­a­tion Index (III). Whenever a suspec­ted crim­inal is arres­ted and finger­prin­ted by a local, state, or federal law enforce­ment agency; those records are forwar­ded to the FBI to be included in the III. The FBI assigns each subject a unique iden­ti­fic­a­tion number that indexes all state records exist­ing for that person, mean­ing each number corres­ponds to a distinct indi­vidual.

As of July 1, 2015, more than 70 million people have records indexed by the III.

The Numbers in Perspect­ive:

Amer­ica now houses roughly the same number people with crim­inal records as it does four-year college gradu­ates.

Nearly half of black males and almost 40 percent of white males are arres­ted by the age 23.

If all arres­ted Amer­ic­ans were a nation, they would be the world’s 18th largest. Larger than Canada. Larger than France. More than three times the size of Australia.

The number of Amer­ic­ans with crim­inal records today is larger than the entire U.S. popu­la­tion in 1900.

Hold­ing hands, Amer­ic­ans with arrest records could circle the earth three times. 

Large Groups of People In Amer­ica

The Biggest Club No One Wants to Join

Regard­less of race or gender, research­ers estim­ate that by age 23 nearly one in three Amer­ic­ans will have been arres­ted.

In 1965, the last time published estim­ates for this rate were tabu­lated; the rate was 22%. (see Christensen (1967))

The figure below shows how arrest rate patterns have changed between the 1960s and the 2000s. The blue diamonds repres­ent estim­ates of the cumu­lat­ive prob­ab­il­ity of having been arres­ted by the age on the hori­zontal axis in 1965 and red squares repres­ent the corres­pond­ing 2012 estim­ates. While the prob­ab­il­ity of a person being arres­ted by age 16 is roughly the same today as it was 50 years ago, by age 19 the prob­ab­il­it­ies begin to signi­fic­antly diverge. As a result, a young adult today is 36 percent more likely to be arres­ted than their parents’ 1960s cohort. 

Frequency of Young-Adult Arrests (1965, 2012)

Partial repro­duc­tion from: Robert Brame, Michael G. Turner, Raymond Pater­noster, and Shawn D. Bush­way (2012). Cumu­lat­ive preval­ence of arrest from ages 8–23 in a national sample. Pedi­at­rics, 129:21–27. Click image to see the original

Every Arrest Comes With a Sentence, Guilty or Not

A 2012 survey by the Soci­ety for Human Resource Manage­ment, found that 86 percent of employ­ers use crim­inal back­ground checks on at least some candid­ates, with the major­ity (69 percent) check­ing all candid­ates. In a similar 2010 survey by the same group, 31 percent of respond­ents said an arrest without convic­tion would at least be “some­what influ­en­tial” in their hiring decision.

Before a back­ground check is run, job applic­a­tions often ask poten­tial employ­ees if they’ve “ever been arres­ted for a seri­ous crime?” Not convicted, just arres­ted. It would not be unreas­on­able to assume that check­ing that box would dramat­ic­ally reduce the chances of being considered. At some point, a job-seeker with an arrest record might just stop asking for applic­a­tions alto­gether, resign­ing to the uncer­tain future of the informal labor market — more will­ing to suffer through finan­cial insec­ur­ity than the embar­rass­ment of contin­ued rejec­tion.

Of course, convic­tions are even worse for job applic­ants. A 2009 Justice Depart­ment study found that a past crim­inal convic­tion of any sort reduced the like­li­hood of a job offer by 50 percent. Moreover, the negat­ive effect of having a convic­tion in their crim­inal history was found to be twice as large for black job-seekers as compared to their white coun­ter­parts. Clearly there is a signi­fic­ant stigma attached to a crim­inal convic­tion, but the over­whelm­ing major­ity of Amer­ic­ans with a crim­inal history were never convicted of a seri­ous crime; many were not even form­ally charged with one.

The Atlantic recently ran a sponsored feature titled “What We Don’t Mention About Unem­ploy­ment: Seventy million Amer­ic­ans with crim­inal records are barred — by law or stigma — from contrib­ut­ing to the economy.” That would be very troub­ling if it were true, but it is not.

The truth is that if an arrest univer­sally disqual­i­fied a person from employ­ment our economy would implode. Instead, a crim­inal record does­n’t disqual­ify a candid­ate categor­ic­ally; it just limits a candid­ate’s abil­ity to attain certain posi­tions that may be the best match for their skill­set. For one to be outright disqual­i­fied a felony convic­tion is typic­ally required and even then this sanc­tion is reserved predom­in­antly for licensed fields. Some­times this makes good sense (secur­ity guards, nurses, bank employ­ees), while other times it does not (barbers or cosmet­o­lo­gists).

Employ­ers are justi­fied in want­ing to hire trust­worthy, respons­ible work­ers. But with so many people with crim­inal records, it stands to reason that valu­able poten­tial employ­ees are being over­looked. Accord­ing to the Soci­ety of Human Resource Manage­ment survey, more than half of employ­ers (52 percent) said their primary reason for check­ing candid­ates’ back­grounds was to reduce legal liab­il­ity rather than to ensure a safe work envir­on­ment (49 percent) or to assess trust­wor­thi­ness (17 percent). These concerns lead employ­ers to pass over qual­i­fied employ­ees for less compet­ent ones. Like­wise, weary work­ers with arrest records may grav­it­ate toward occu­pa­tions that are less select­ive, ending up in jobs that may not ask about past arrests, but that often pay less and are a poorer match for their skills.

Accord­ing to Profs. Alfred Blum­stein and Kiminori Nakamura, this is an unne­ces­sary loss for both parties. These research­ers set out to learn whether it is possible to determ­ine empir­ic­ally when it is no longer neces­sary for an employer to be concerned about a crim­inal offense in a prospect­ive employ­ee’s past. They looked at 88,000 first-time arrestees in New York State and followed them for the next 25 years to see whether they had commit­ted any other crimes. Their results make intu­it­ive sense: after a suffi­cient amount of time follow­ing a prior offense passes without new charges, ex-offend­ers are no more likely to be arres­ted than the aver­age citizen. At that point, asking about crim­inal records serves little purpose. For those who commit their first crime at a young age or whose first crime is a seri­ous offense, it takes about eight years without another offense to “redeem” them­selves. For others, such as those who commit non-seri­ous crimes, it can take as little as three years.

Limit­ing the Damage

Legis­lat­ors and private sector employ­ers are recog­niz­ing the futil­ity of chas­ing ghosts in prospect­ive employ­ees’ pasts and are begin­ning to adopt common-sense reforms. Seven states have adop­ted “fair chance” or “ban the box” laws that bar a private employer from asking about a convic­tion history on a job applic­a­tion and delay the back­ground check until later in the hiring process.

These laws recog­nize that discrim­in­at­ing on the basis of an arrest record makes little sense. Some thought­ful employ­ers are already taking inde­pend­ent action. Earlier this year Koch Indus­tries, which employs more than 60,000, removed ques­tions about prior crim­inal convic­tions from their job applic­a­tions. Just this month Pres­id­ent Obama signed an exec­ut­ive order to ban the box for federal employ­ment applic­a­tions, an action sugges­ted by the Bren­nan Center in 2014. Clearly, this initi­at­ive has gained power­ful support and that is a posit­ive devel­op­ment for job-seekers with a crim­inal history.

But even a univer­sal ban will not stop employ­ers who wish to discrim­in­ate against candid­ates with crim­inal histor­ies. There is no short­age of third party sources stock­pil­ing book­ing photos, police reports, and all manner of public records for the curi­ous. Trying to prevent the dissem­in­a­tion of inform­a­tion is, though of noble intent in this instance, a losing battle. Instead, we should let indi­vidu­als reclaim their personal narrat­ives.

If asking about a convic­tion from a decade ago almost never does anyone any good, certainly there is even less impetus to ask about an arrest from long ago. Espe­cially given that tens of millions of Amer­ic­ans with arrest records were never convicted of a crime. Lawmakers should explore the implic­a­tions of a uniform policy that drops arrests not accom­pan­ied by subsequent charges and wipes a record clean after a suffi­cient period of time (or in the case of ex-convicts, desist­ence from crime), which would be a pivotal step in reform­ing our crim­inal justice system. Given their role in promot­ing public-safety it sends a strong signal to the general public about the relev­ance of a prior bad act when law enforce­ment offi­cials seal or expunge the asso­ci­ated crim­inal record.

Currently, there is no stat­ute gener­ally allow­ing federal crim­inal record expun­ge­ments, and at the state level the issue is regu­lated by a dizzy­ing patch­work of laws. These laws vary from state to state in the offenses they cover, as well as the process for seek­ing expun­ge­ment, and navig­at­ing them is often diffi­cult, time-consum­ing and expens­ive. Efforts are being made to clear these road­b­locks. In March, Sens. Rand Paul (R-KY) and Cory Booker (D-NJ) intro­duced the REDEEM Act, which would allow some nonvi­ol­ent crim­inal and juven­ile offenses to be sealed or expunged. Just this month the White House announced the estab­lish­ment of a National Clean Slate Clear­ing­house, a part­ner­ship between the Depart­ments of Labor and Justice to help with record-clean­ing and expun­ge­ment.

It is unclear whether either of these efforts will ulti­mately reach fruition, but at the very least they indic­ate that politi­cians from both sides of the aisle are ready to address crim­inal justice reform. It is time for their colleagues to simil­arly recog­nize broad social and economic bene­fits asso­ci­ated with a future wherein 70 million Amer­ic­ans aren’t shackled to the mistakes of their distant pasts. 

(Photo: Think­stock)