Study: Public Access to Criminal History Information

Public Access to Criminal History Record Information
Enhancing Public Safety

Brian L. Withrow, Ph.D.
Texas State University

Executive Summary

            Access to criminal history record information was once limited to criminal justice agencies.  In the early 1990’s the Texas Legislature began expanding access to criminal history record information to the general public.  Today numerous companies offer criminal history, driver’s license and vehicle registration information to employers, licensing authorities, local youth athletic associations, churches or anyone who desires to learn more about the people with whomthey associate.

            Today, criminal history record information is routinely used by private employers and has become an integral part of the hiring process.  Proponents of this practice argue that access to this information is critical to protecting their assets and the people they serve.  In some cases employers are required by statute or rule to conduct a criminal history records check on all people they intend to hire.  Opponents of this practice argue that overly restrictive hiring processes have a detrimental effect on ex-offenders as they attempt to re-enter the job market and society.  

             A primary purpose of this research is to determine and report how the private sector, from youth athletic organizations to employers of every kind and similar private sector decision makers, actually use criminal history record information as a core part of what they do.  The research indicates considerable variation in how criminal history record information is actually used in making employment and licensing decisions.  In Texas, few criminal convictions absolutely prohibit employment in every situation.  Users, regardless of how they actually consume criminal history record information, are cognizant of the impact these data have on an individual’s future.  Furthermore, employers appear to be cautious about the inadvertent disclosure of criminal history record information.  

About the Author

            Dr. Brian L. Withrow is a Professor of Criminal Justice at Texas State University.  He began his career in criminal justice as a State Trooper for the Texas Department of Public Safety  (DPS) in 1981 after graduating with a Bachelor’s degree in Criminal Justice from Stephen F. Austin State University.  In 1990, he was promoted to Bureau Manager of the Fingerprint and Records Bureau at DPS.  In 1993, shortly after earning his Masters of Public Administration degree from Texas State University, Brian left DPS for the Bill Blackwood Law Enforcement Management Institute of Texas.  While at Sam Houston State University he earned his Ph.D. in Criminal Justice.  In 1999, Dr. Withrow accepted a faculty position at Wichita State University.  Then in 2009, he came back to Texas to accept his current faculty position at Texas State University.  His research interests include police officer decision making and organizational behavior.  Brian has authored numerous scholarly articles and several books, including his recent works on police ethics and research methodology.  

Introduction

In recent years some criminal justice reformers have challenged the appropriateness of using criminal history information in employment, professional licensing, and other similarly consequential decisions.  Proponents of using criminal history record information argue that it is essential for managing risk in their organizations and for protecting the people associated with them.  Opponents of the practice argue that it undermines the re-entry process by focusing attention on an ex-offender’s past failures rather than his or her desire to change the trajectory of their lives through meaningful work.  Failure to find a suitable job after prison strongly increases an offender’s propensity for recidivism (Harding, et. al., 2018; Holzer, Offner & Sorensen, 2005; Pager, 2003).  The ultimate balance between these competing interests is likely to be found through legislative changes and court decisions.

Those fueling both sides of this debate make assumptions regarding how criminal history record information is being used by decision makers.  Unfortunately, the research on how these data are actually used is scant (Denver, Pickett and Bushway, 2018; Pager and Quillian, 2005).  

The primary purpose of this research is to provide insight into how criminal history record information is actually being used in support of better informed public policy choices.  In addition, this research is intended to provide insight into the effect of either an expansion or restriction of access to criminal history record information by individuals and entities outside of the traditional criminal justice process.  Perhaps, Texas legislative leadership could take a good look at how to structure a re-entry program.  Such a program might consider restricting access to certain elements of an individual’s criminal history record information from public view following a period wherein an ex-offender remains crime free.   

Overview of Criminal History Record Information 

            Criminal history record information is initially created by local and county criminal justice organizations.  Typically, the initial record is based on an arrest whereupon fingerprints are taken from a suspect and then submitted to a repository managed by a state agency.  In Texas this is the Crime Records Service of the Department of Public Safety (DPS).  Fingerprint experts at the DPS compare newly submitted fingerprints with the millions of records currently in their file.  If a match is found they attach this new information to an existing criminal record and, if applicable, indicate a new alias name.  If no match is found a new criminal history record is created.  The use of fingerprints in order to establish identity is essential to maintaining the reliability of criminal history record systems. 

Subsequent information relating to the court disposition of the case (i.e. a finding of guilt, the sentence imposed, an acquittal, a dismissal, etc.) is also reported to the DPS by local and state agencies.  If the individual is found guilty, sentencing information (jail time, imprisonment, probation, parole, release date, etc.) is reported to the DPS by the Texas Department of Criminal Justice.

Ultimately, all of this information is submitted to a national repository managed by the United States Federal Bureau of Investigation.  Access to the criminal history record information system maintained by the FBI is granted to all bona fide criminal justice organizations in the nation.  This central repository of criminal records is an important tool within the criminal justice process.  

History of Access to Criminal History Record Information

For most of their existence, criminal history record information systems were only accessible to bona fide criminal justice agencies.  Over time, and in recognition of the value of these information systems, state legislatures and the U.S. Congress granted access to non-criminal justice agencies.  In most cases these agencies were responsible for issuing professional licenses (e.g. accountants, lawyers, plumbers, etc.) or certification of individuals that would regularly be in contact with vulnerable populations (e.g. teachers, day care workers, elderly care attendants, etc.).  Even so, access to criminal history record information was typically limited to a narrowly defined criteria of offenses.

            In the mid-1990’s the State of Texas began broadening access to the Computerized Criminal History System (CCH), the central repository of criminal history record information in Texas.  The initial access expansion was limited to criminal records with convictions.  Records including ‘arrest only’ data were not generally accessible.  Later in this decade access was expanded to nearly all types of records in the CCH.

Today, information relating to arrests, prosecutions and dispositions of cases in the CCH is accessed through the DPS or through one of several private companies by anyone.  Many of these private companies (under strict federal rules and/or laws) also provide access to driver’s licensing and vehicle registration information.  Because access is acquired via a name search there is a possibility for attributing a criminal history record inappropriately.  In most cases a comparison of the dates of birth between an applicant and what is on the criminal history record will resolve an identity question (Barr, Coggeshall and Zhao, 2011).  To further mitigate this the DPS will (for a fee) accept a fingerprint card to verify identity and ‘ownership’ of a criminal history record.

From a practical perspective the date of birth, as part of the criminal history record, is essential to our review.  Last year we had an applicant that we wanted to hire but he appeared to have a conviction for an offense (aggravated assault) that would prohibit us from hiring him.  The applicant’s name and the name on the criminal history record were exactly the same.  The physical descriptions were similar.  And the county where the conviction occurred was close to where the applicant lived.  The applicant was able to produce a passport reflecting his date of birth.  His date of birth and that of the actual offender are nearly ten years apart.  We also confirmed that he had been working for another employer during the time the criminal history record indicated a period of incarceration at TDC.  I guess we could have asked him to submit a fingerprint card to the DPS just to be sure, but why have him go through that expense and delay the hiring process?  So, we hired him and we are glad we did.  He is an excellent employee. 

-Branch manager of a bank   

            An individual’s name and date of birth are essential to the efficacy of a criminal history records search.  Name only searches, particularly those that capture similar sounding names, often produce numerous records.  These records must then be sifted through to determine whether or not a person of interest (e.g. an applicant or potential licensee) is among them.  Usually, the date of birth, which appears in a criminal history record, is used as an additional identifier.  

Most criminal history records systems encourage users to search with an individual’s name and date of birth.  This practice improves the efficacy of searching and connecting criminal history records to their actual ‘owners’.  Perhaps more importantly, using a name and date of birth reduces the probability of exposing the criminal history records of individuals that are not associated (e.g. an applicant or potential licensee) with an inquiry.  

            In recent years public access to dates of birth has become restricted.  Given the ubiquitous use of dates of birth as effective identifiers in many areas of commerce, this restriction is a concern.  The Freedom of Information Foundation of Texas (FOIFT) is a 501(c)(3) non-profit organization dedicated to open government and the First Amendment rights of free press and free speech.  The FOIFT argues that there is considerable value in the public access to dates of birth.  

The Public Information Act & Dates of Birth

BACKGROUND:

  • Dates of birth are found in a multitude of public records, including the sex offender database, jail records, civil legal filings, election candidate applications, voter registration rolls and others.
  • However, public access to dates of birth in some parts of the State have been largely cut off by a 2015 Third Court of Appeals ruling, Paxton v. City of Dallas, 03-13-00546-CV, 2015 WL 3394061 (Tex. App.—Austin May 22, 2015, pet. denied).  In this case, the court expanded a prior Texas Supreme Court ruling in which dates of birth in public employees’ personnel files were declared private and ruled that all dates of birth covered under the PIA were private.
  • This decision has caused confusion among governmental agencies and has resulted in the inability to verify the accuracy of information when dealing with common names. 

THE ISSUE:

  • Since this ruling, more than 10,000 attorney general opinions have been issued foreclosing access to information under the Paxton v. City of Dallas decision.
  • Access to dates of birth is vitally important to the economic engines continuing to run in the State of Texas; for example, businesses require access to dates of birth to cross-reference dates of birth in lending transactions and real estate applications.
  • Public access to dates of birth ensures the accuracy of information being reported about those who have been convicted of a crime or who are running for elected office as well.
  • Access to dates of birth is vital to discovering voter fraud or determining if sex offenders are teaching our children or people with DWI arrests are driving school buses.
  • Furthermore, public access to dates of birth does not create significant privacy or security issues, as identity theft and fraud are not problems commonly associated with the release of a date of birth unaccompanied by other key identifiers. In fact, many people voluntarily post their dates of birth on social media.
  • An individual’s date of birth is listed on a person’s driver’s license, and people are routinely asked to provide their date of birth (i.e., bank transactions, credit card holder verification in stores, alcohol purchases, hotel check-ins, and job applications).

PROPOSED LEGISLATION:

  • HB 1655 by Rep. Todd Hunter would amend Texas Government Code §552.0222 to state that dates of birth are open under the Texas Public Information Act unless they are permitted to be withheld under §552.102 or other constitutional or statutory law.

For more information contact:

Kelley Shannon, Executive Director

Freedom of Information Foundation of Texas

512-377-1575 kelley.shannon@foift.org 

Opposing Sides of the Debate

            At some level, public access to criminal history record information has always been controversial.  Well-intentioned professionals differ on how and when this information should be used, whether it provides meaningful insight into an individual’s propensity for additional offending, and even whether it should be used at all.  These questions demand a thoughtful public policy discussion.  Here is a summary of the arguments from each side of this issue. 

Proponents of public access to criminal history record information

            Public access to criminal history record information extends the reach of public safety beyond the traditional institutions of social control, like the police or correctional agencies, to an individual level.  Organizations that subscribe to services providing criminal history record information are not merely curious.  The process of acquiring and interpreting a criminal history record is time consuming.   Additional security measures are necessary in order to prevent the inappropriate disclosure of an individual’s criminal history record.  So, why do they bother?  They bother because preventing someone with a history of deviant behavior from employment in their organization is essential to protecting their assets and reducing their liability exposure.  One of the most reliable predictors of future criminal behavior is past criminal behavior. So preventing someone with a history of serious deviant behavior from interacting with customers and clients, many of whom may be vulnerable, is prudent.

Hiring decisions are made by the individuals in an organization that are intimately knowledgeable about the risks within their organizations.  The type of risk varies widely among organizations.  For example, organizations that handle financial transactions would likely not prefer to hire individuals with a history of fraud or embezzlement.  Organizations that serve children would not likely prefer hiring individuals with a history of sex related crimes.  Providing these decision makers with the information they need (i.e. criminal history record information) enables hiring decision makers to make more informed decisions.  More importantly, it prevents individuals with a propensity for behaviors that conflict with the needs of the organization from being hired.  In other words, informed hiring managers prevent known offenders from the very places where they are likely to re-offend.  Moreover, it makes the hiring process fairer.  In some cases individuals with criminal convictions, even for serious crimes, can be hired if that previous behavior is not threatening or offensive to a particular workplace.  The point is that a hiring manager gets to make this decision rather than a third party who may not be familiar with the needs of the organization. 

Prior to when criminal history record information was accessible to the public, licensing agencies in the State of Texas sent tape drives with the names and dates of birth of individuals who were seeking licensure to the DPS.  The names and dates of births on these tape drives were compared with the name index portion of the CCH.  If a match was found the DPS downloaded the criminal history record back onto the same tape drive.  The next day the licensing agency would retrieve the tape drive and use the information contained on it to make licensing decisions.  The Texas Department of Human Resources sent tape drives on a regular basis with the names and dates of birth of individuals seeking approval to work in the child day care industry.  In one case the tape drive contained the name of an individual who had a criminal conviction for indecency with a child.  The DHS inadvertently approved this individual for employment at a day care facility for children.  The media became aware of this and sought an interview with the Manager of the Fingerprint and Records Bureau at the DPS.  In the interest of full disclosure, this Manager is now the researcher and author of this report, Dr. Brian L. Withrow.  In those days, as the Custodian of the Criminal History Record System the Manager was actually prohibited from publically confirming the existence of a criminal history record.  A review of the audit trail indicated that the DPS had reported the criminal history of this individual to the DHS appropriately.  Someone at the DHS just missed it.  Fortunately this mistake was caught before another child was victimized.  Ultimately, the Manager responded to the media by explaining how the process worked and informing the media that the process had worked properly in this instance.  It is not likely that a similar scenario would occur now.  Today, applicants for licensure can be evaluated on an individual basis in real time. 

Opponents of public access to criminal history record information

Recidivism is chronic within almost all correctional systems in the American criminal justice process (Alper, Durose and Markham, 2018).  Consistently, as many as seventy percent of certain classes of offenders re-offend within three years of release from prison.  Providing in-prison counseling, therapy, education and job skills training during incarceration to reduce recidivism have not been as effective as once hoped. Treatment takes time, and can dramatically add to the costs of confinement.  In most cases ex-offenders return from prison to the same social, economic and familial situations that existed at the time of their conviction. Some of these situations may have contributed to their criminal behavior.  In many cases their social environments are made more challenging because of the offender’s absence from family. 

It is difficult for an ex-offender to get a job once their criminal history becomes known to an employer.  Even when they do their earnings are usually a fraction of what they were prior to incarceration.  The resulting strain of prolonged unemployment can ‘encourage’ ex-offenders to recidivate, thereby continuing their downward spiral to the bottom of the American socio-economic system.

Second, although rare, inaccuracies do exist within the criminal history record system.  The common use of fingerprints to create, combine and add subsequent arrests to criminal history records substantially reduces the potential for misidentification.  Even so, subsequent information, like dispositions, are dependent upon the accuracy of data entry.  Essentially the accuracy of a criminal history record depends upon the attentiveness of a coding clerk. 

Third, incomplete criminal history records can have adverse effects on individuals seeking employment or licensure.  It can take months, or even years, for a local jurisdiction to either update a record or submit it to the central repository.  All the while an individual’s access to employment can be delayed.

 Finally, criminal history records can be challenging to interpret.  This is especially true for individuals not familiar with the penal code or with how the criminal justice process works.  Offense titles can be misleading.  A criminal defendant may be charged with a serious offense and found guilty of a lesser offense.  In this case it is often not possible to know whether the defendant was over charged by an overzealous prosecutor, accepted a plea bargain for conviction to a lesser crime, or was actually not guilty of the more serious charge.  Even so, the arrest for the serious charge remains on the criminal history record.  

Method

In August, 2018, Dr. Brian L. Withrow, a professor in the School of Criminal Justice at Texas State University, met with representatives from an online public records provider to discuss the possibility of conducting this research.  The provider does not prepare or produce reports regarding specific individuals, but instead enables subscribers to conduct Google-like searches for public records that are made available by government agencies.

 After agreeing on the scope of the research, Dr. Withrow developed the following methodology for collecting the necessary information. The online public records provider imposed no limitations on the researcher. They merely had a desire to know how their customers actually used criminal history record information.

 Because information on how criminal history record information is gathered and actually used by various organizations is scarce, this research is exploratory in format. Such research is often necessary when very little is known about a social trend or practice.  In exploratory research, the objective is to find out what is actually happening (Withrow, 2017).  This broad category of research does not attempt to explain behavior or to develop causal relationships.    

The specific methodological technique used is called a semi-open ended interview.  This method requires the researcher to develop a series of initial questions to ask respondents (see Appendix A).  These questions are designed to illicit longer, and more thoughtful, responses than one would normally see in a structured interview or written questionnaire.  More importantly, the answers to these questions afford the researcher with an opportunity to ask additional questions.  This enables the researcher to elicit more detailed information and produce a more comprehensive overview of the respondents’ practices.

Sample selection

Because the nature of this research is exploratory there was no need to develop a formal inferential sample.  In other words, the results from the interviews are not intended to be inferred to the larger population of users.  Instead we chose to develop a purposeful sample that is generally representative of the population of users.  

The online public records provider has thousands of users.  Of these approximately 15,000 provide an actual business name, thereby enabling the researcher to employ a stratified sampling technique.  In the end this will provide more detailed insight into how the use of criminal history record information varies between types of organizations.  

Our analysis reveals that the most common ‘known’ users are attorneys and law firms.  They represent nearly half of all ‘known’ organizations.  Insurance providers represent a little less than one-fourth of all ‘known’ organizations.  The remaining ‘known’ organizations include; churches, cities and municipal agencies (e.g. water departments), schools and universities, financial institutions, childcare and child protective services, and healthcare providers (see Table 1).    

Table 1.  Proportional representation of ‘known’ organizations that regularly use criminal history record information to make business decisions.

Type of ‘known’ organizationPercent of  users 
Attorneys49.1
Insurance providers23.5
Churches11.4
Cities and Municipal agencies3.7
Schools and Universities3.6
Financial institutions3.2
Childcare and Child Protective Services2.9
Healthcare providers2.5
Total99.9

The online public provider contacted customers within each of these categories and asked them if they would like to participate in the study.  These potential respondents were told the purpose of the study and that someone would call them by telephone to ask them questions about how they use criminal history record information.  If the potential respondent agreed then their telephone number and a contact name was provided to the researcher.  Once the total number of respondents for each stratum in the sample were collected, these requests for assistance stopped.  The sample size in each stratum was intended to be proportional.  The total sample size is 100 ‘known’ organizations (see Table 2).  

Table 2.  Proportional representation of ‘known’ organizations that regularly use criminal history record information to make business decisions selected by stratum for sample.

Type of ‘known’ organizationNumber of users in the sample
Attorneys49
Insurance providers23
Churches11
Cities and Municipal agencies4
Schools and Universities4
Financial institutions3
Childcare and Child Protective Services3
Healthcare providers3
Total100

Data collection

            Using the sample provided by the online public records provider. the respondents were called and asked, at a minimum, the questions listed in Appendix A.  Typically, their responses led to additional questions.  The researcher took detailed notes during the conversation and then transcribed them for subsequent analysis.  When warranted the researcher entered verbatim quotes into the transcripts.  

Due to scheduling difficulties and some personnel turnover of contact persons associated with the respondents a total of 68 of the original 100 respondents in the sample participated in the research.  The proportional representation of the original sample remained intact.  Despite this, the researcher is assured of the quality of the data by the consistent patterns within and between the responses by ‘known’ entity.  These patterns emerged very quickly during the data collection.  For example, School and University users primarily tended to use driver’s license and vehicle data, while Childcare and Child Protective Services users primarily tended to use criminal history record information.  

Analysis

            Using the transcribed notes the researcher identified both consistent and inconsistent patterns in how the respondents use criminal history record, driver’s license, vehicle record information.  Consistencies within and across ‘known’ organizations are reported in the findings.  Inconsistencies within and across ‘known’ organizations are also reported in the findings.  Importantly, whether or not the use of criminal history record information is justified, legal or ethical is beyond the scope of this research project.  This research is intended to document how this sensitive information is used.  Whether it should be is a decision left to policy makers.  

Results

CREATOR: gd-jpeg v1.0 (using IJG JPEG v62), quality = 82
There are distinct differences in how criminal history record information is used between the various types of users.  The most glaring differences exist between lawyers, by far the most common type of user, and non-lawyers.  The following sections describe how these users routinely use criminal history record information.   

Lawyers are the most common users of criminal history record information. The most frequently stated reasons for accessing criminal history record information are to;

  1. Verify the criminal histories of litigants and witnesses during case preparation,
  2. Determine eligibility in child custody cases, and
  3. Locate potential witnesses and litigants.

Criminal defendants seeking legal services are typically not as forthcoming about their pasts as they should be with their attorneys.  This may be due to embarrassment or concern that their potential attorney will not agree to represent them.  Regardless, it is essential for an attorney to be knowledgeable about a client’s past.  Attorney users indicate that clients often relax and are more able to participate in their defense once they become aware that their attorney knows their criminal past.  This information is crucial for crafting an adequate defense and/or during plea negotiations.  From a practical perspective, knowing a client’s criminal past enables an attorney to estimate how much time (and expense) will be necessary in representing their clients.

All of the attorneys indicate they routinely access criminal history record information as part of their case preparation.  Many of these attorneys practice family law and most commonly represent clients during divorce or child custody cases.  They report knowing the criminal history of their client as well as their opponent’s is important during the negotiation phase and essential when or if the case goes to trial.  It seems intuitive that an attorney would use a client’s opponent’s criminal past as a bargaining tool.  Indeed that does happen.  But the opposite is also true.  

My client was adamant.  “I want full custody of my children!” he yelled.  Unfortunately my client had an extensive criminal record.  I advised him that the court was not likely to award him full custody and he’d be lucky to have unsupervised visitation rights, given his record and other things.  I really felt sorry for him, but I had to level with him.  Besides, I’m positive his ex-wife’s attorney already had a copy of my client’s rap sheet.  Doing this saved my client the embarrassment of having to discuss his record in open court.

-A divorce attorney

A few of the attorneys we spoke to practice criminal law.  Within this context full and complete knowledge of a client’s criminal history is crucial.  This information affects case preparation and/or plea negotiations.  Importantly, it appears that in practice, prosecutors are not as forthcoming with this information during discovery as one would hope.  As a result many defense attorneys find it necessary to procure criminal history records on their own clients. 

Many of the lawyers we spoke to practice personal injury law.  Their use of criminal history record information is similar to that of other legal practitioners in that they use it to conduct background investigations of the litigants involved in their cases.  For the most part, however, these types of attorneys are more likely to use drivers licensing or vehicle registration information to identify or locate the individuals that may be involved in a case.     

Non- lawyers use criminal history record information in a variety of ways.  Among non-lawyers the most commonly stated reasons for accessing criminal history record information are to;

  1. Comply with statutory law, regulation or funding requirements,
  2. Reduce risk to their employees and clients, and
  3. Protect vulnerable people.

Companies that provide in-home health services, usually to aged or disabled individuals, are required by Texas state law and regulation to conduct a background check on applicants.  The Texas Department of Aging and Disability, who licenses and regulates these companies, requires a criminal history records check as part of this background check.  In addition, these companies are required to conduct subsequent inquires on existing employees on a regular basis.  These companies are subject to an audit of their employees’ files every three years.  These files must contain evidence that; 1) a criminal history record information check was conducted initially at hiring and subsequently, and 2) no convictions exist among its employees for a disqualifying crime.  The Texas Department of Aging and Disability has, within its rules, an extensive list of criminal convictions that would bar a person from licensure to work with an aged or disabled client.  As a matter of practice contractors will not hire individuals with felony convictions within the past ten years.  Registered sex offenders and individuals with criminal convictions involving a history of abuse, neglect or exploitation may be absolutely barred from licensure.  Importantly, the Agency’s rules provide extensive guidance to contractors for evaluating criminal history record information.  These rules include a process whereby an applicant may be informed that a disqualifying conviction exists and, if possible, how to resolve a case of mistaken identity.

A few years ago we had an applicant that appeared to be a registered sex offender.  The dates of birth on the criminal history record and the applicant’s application were different, but not enough to remove all of our suspicion.  So, we asked him to get a fingerprint check and explained why.  Turned out, it wasn’t him. So we hired him and he still works for us.  He actually thanked us for letting him know that a person with the same name has a serious criminal history record. 

-A home health agency administrator   

            Insurance providers consistently require companies to conduct background checks, including criminal history and driver record checks, in order to bond their employees, thereby managing the company’s risk.  For example, a few of the larger churches require the volunteers who are tasked with managing financial accounts (e.g. the Sunday collection) to either be ‘bondable’ or actually bonded by their insurance provider.  This, they believe, reduces the risk of embezzlement and other financial crimes in vulnerable or unaudited funds.

Ours is a large congregation.  And, we are very generous.  In addition to our internal needs our members support missions throughout our community and the world.  We feel a sincere obligation to be good stewards of the funds provided to us.  So, yes we do criminal history checks on the individuals who volunteer to handle the offering.  These people must be above reproach.  I figure that if they are honest then they won’t mind allowing us to be sure we don’t allow a person with a history of financial crime to handle our funds.

-Pastor of a large congregation

            Among the companies that hire unskilled or semi-skilled labor the need for access to criminal history record information to manage risk is particularly acute.  These companies hire individuals with limited education and, in some cases, very little work experience.  Wages, particularly in transportation, construction or oil field service companies, tend to be better than average.  Even so, turnover is typically high so employers are constantly recruiting and hiring new employees.  For a myriad of reasons these companies seem to attract a higher than average number of applicants with criminal history convictions.  One respondent offered, “They come to us because they think we won’t do a criminal history check or drug test.  They’re wrong, we always do!”  Typically, these employers will allow a minor drug possession conviction if “enough time has passed.”  When asked how much time is “enough” most said about five years.  In nearly every case these employers will disqualify an individual with a history of assaultive behavior, as evidenced by a criminal history record.  One hiring manager said, “The work here is stressful enough without having somebody on the shop floor with a history of violent crime.”  These respondents were particularly forthcoming when asked how their hiring process would change if they were not allowed to access criminal history records.  Most said that they would have to hire third party background investigators, which would increase costs and delay the hiring process.

There are nine ladies that work here in the front office. Sometimes they work as late as 8:00 PM.  Our shop is in a very bad part of town.  The last thing I want to do is to put a sex offender to work around them.

-Hiring manager at a machine shop            

I get about 20 applications a year from guys with violent criminal convictions.  I just cannot risk hiring these guys to work here.

-Construction supervisor

            Many of the organizations responding to the interviews serve vulnerable clients.  Typically, this includes the aged, infirm or children.  They hire employees that provide direct services to vulnerable clients, often with limited supervision.  So, they must be sure that they are not inadvertently exposing a vulnerable client to potential harm.  This issue is particularly relevant to organizations that are responsible to protect children, like Child Protective Services.  These agencies access criminal history record information to insure that the children under their care are placed in a safe environment.  Timely access to criminal history record information, while in the field sometimes late into the night, is particularly important during emergency placements.  These occur when a child is in danger and needs to be placed with a relative or friend of the parents.  In these cases the social worker will conduct criminal history record information checks on all residents of the home into which the child might be placed.  Restricting timely access to criminal history record information in these situations has the potential to make a bad situation even worse.  

            Occasionally, Child Protective Services workers will receive a request from a relative or family friend asking to be placed on a list of persons or places that could accept a specific child when or if a dangerous situation arises in the child’s current living situation.  More often than not these are situations that frequently become unsafe or unstable.  These professionals agree that this proactive step was beneficial to the children and families they serve.  They also recognize, however, that this would be a highly efficient way for a sex offender to gain access to a child.  As a matter of practice Child Protective Services workers will conduct a criminal history check on these persons as well as all other persons that reside in the home.

We have a local family that from time to time just craters.  When they do we have to find a place for their children to go until the parents are able to care for them.  Luckily, we have a few emergency foster homes available to us.  One afternoon I got a call from a lady who wanted to be approved as an emergency foster home specifically for these children.  The lady’s teenage daughter is a friend of one of the children in the at-risk household.  “I just want to be there for them if they need me” the lady said.  She filled out the paperwork and we began the process.  Unfortunately, we found out that her adult son (who lives in her house) is a registered sex offender.  Turns out the adult son had been grooming the teen girl in the at-risk household and convinced his mother to register as an emergency foster home.  In other words, he was looking for a way to ‘get close’ to the girl.  Luckily, we figured this out before the girl was victimized.

-A Child Protective Services social worker  

Overall use of criminal history record information

            There are three commonly stated practices that appear to be followed by users regardless of the type of organization they represent.  These practices are as follows.

  1. Appropriate measures are being taken to reduce the inadvertent disclosure of criminal history record information.
  2. Systems are in place to allow individuals to challenge a misidentification or mistake.
  3. There are very few instances wherein an individual is absolutely denied employment on the basis of any criminal history. 

It is evident from the conversations we had with users that they consider criminal history record information to be confidential, although it is not.  Most report that they keep criminal history record information in a secure location and that they do not allow employees to access these data on computers that are viewable in public contact areas.  In most cases criminal history record information (i.e. rap sheets) are shredded.  In fact, only one user reported that they were required by their regulatory agency to retain a copy in an employee’s file.  Many of the users report that specific criminal history record information relating to an applicant or employee is not routinely disclosed internally.    

            Nearly all of the users report that they routinely inform applicants about the existence of a disqualifying criminal conviction.  They do this for two reasons.  First, occasionally they will encounter what appears to be an inaccurate criminal history record.  Sometimes these are mistakes, in which case the applicant is at least allowed to provide evidence that would correct the record.  More often, this happens because the applicant is unaware of how criminal information is reported.  For example, a criminal history report may contain an arrest and what appears to be conviction for a crime, when in fact the applicant was informed that the case would be dismissed after a term of probation or following the completion of a drug awareness educational program.  In most cases, however, to qualify for these programs the defendant must first plead guilty to the offense.  The nuances of these creative sentencing programs are often difficult to discern.  

Inquiries into the criminal history record information systems are almost always based on an individual’s name and/or date of birth.  Occasionally, an applicant with a common name may appear to have a criminal record.  When this happens employers nearly always report using the date of birth and other common identifiers to resolve a possible misidentification.  Unfortunately, individuals with the same name and date of birth are more common than we think (Barr, Coggeshall and Zhao, 2011).  In the absence of other identification documents (e.g. a driver’s license, passport or certified birth certificate) it may not be possible for an employer to verify an applicant’s date of birth.  So, many users will encourage a misidentified individual to submit a fingerprint card to the DPS in order to verify the existence, or most commonly nonexistence, of a criminal history record.  

Finally, there are very few instances wherein an individual is absolutely denied employment on the basis of any criminal history.  When prospective employees are denied employment on the basis of a criminal history there is usually a legal or regulatory basis.  For example, many of the organizations that provide services to children are prohibited by the state agencies that regulate them from hiring an individual with a history of child abuse, domestic assault or serious sex related crimes.  In most cases the employer will at least evaluate a criminal history record and consider other mitigating factors.  For example, the employer may hire an individual with a serious felony conviction if the conviction is more than ten years old or if the applicant appears to have abandoned his or her criminal past.  

Discussion

            This section contains a discussion of the key findings in this research within the context of the current public policy debate. 

Access to criminal history record information, once only granted to criminal justice agencies and a select few licensing authorities, is now ubiquitous in commerce.  Restriction or outright denial of access to criminal history record data sets will not reduce the demand for the information contained within them.  In some cases (e.g. home health care, child protective services) organizations are required by state and/or federal law to access information in these data sets.  All of these laws would need to be revised and additional systems would need to be created to insure the vulnerable populations served by these agencies are adequately protected.  Such a change would likely increase the likelihood for a predatory offender (e.g. chronic sex offender) to exploit inefficiencies in the system.  

Access to criminal history record information extends the reach of public safety beyond what could be achieved by the formal agencies of social control.  Convicted felons in Texas cannot vote, bear arms, hold public office, serve on a jury, serve in the military, get financial aid for education, easily find a place to live, work for most state agencies or be licensed to work in numerous professions.  A felony conviction, particularly for a sexual related offense, is a heavy burden that can deny an ex-offender numerous economic and social opportunities over the life course.  Nothing, however, restricts a convicted felon from attempting to seek meaningful employment.  Employers are in the best position to determine whether hiring an individual with a certain type of criminal conviction would be appropriate for their organizations.  Importantly, these employers are in the best position to deny employment to individuals with criminal convictions suggesting a potential for future victimization.  In other words, these employers make decisions every day at an individual level on who gets to be trusted with access to their companies and the people served by them.  This level of detailed decision making profoundly reduces the potential for victimization and cannot be replaced by relying the formal agencies of social control (e.g. the local police, parole or probation departments) for assistance.   

Private employers and other decision makers that rely on criminal history record information will continue to seek access through other means.  It is highly likely these decision makers will transfer the responsibility (and costs) of accessing criminal history record information to the applicants.  Employers and other decision makers are likely to ask applicants to procure a copy of their own criminal history record, if any.  This will lengthen the hiring process and may deter otherwise qualified applicants from seeking employment with that organization.  This could result in unintended consequences.  Qualified employees with no criminal histories may simply refuse to seek employment at that organization, thereby reducing the pool of qualified labor available to employers.  In some industries, particularly small businesses, the reduction of an available labor pool may result in hardships.  Of more concern is the likelihood that a qualified applicant with a criminal history record will merely refuse in order to avoid the embarrassment of disclosing a conviction.  This could be counterproductive to efforts designed to reintegrate ex-offenders.  In most cases a conviction is not necessarily an absolute bar to employment.  People with criminal convictions, sometimes serious criminal histories, can be and are hired every day, when given the chance to explain their past.  

Accessing criminal history record information via local and county databases will result in ‘blind spots’ for decision makers.  When asked what would happen if access through their current providers were prohibited or severely restricted, nearly all of the respondents indicated that they would seek access through local and county databases, if possible.  The management, oversight and access policies at local and county databases are inconsistent.  Some jurisdictions allow electronic access, others do not.  Some jurisdictions charge fees for this service, others do not.  Some jurisdictions require formal freedom of information requests, others do not.  More importantly, if access to the statewide criminal history record information system were denied employers and decision makers would have to ‘guess’ the county in which an applicant might have been convicted of a criminal offense.  A convicted felon need only omit a previous address in a county known not to provide efficient access to criminal history record information in order to gain access to vulnerable people.

Access to criminal history record information reduces liability exposure of private employers and, more importantly, the potential for victimization to the people served by their organizations.  Accessing criminal history record information during the employment process is more than merely satisfying a requirement imposed on an employer by an insurance provider.  This access enables an employer to reduce the probability of hiring an employee that has a demonstrated potential for victimizing others.  It is prudent to do so.  Some offenders, particularly chronic sex offenders, are highly predatory.  They typically seek out opportunities that put them in direct and unsupervised contact with their desired victims.  These offenders are often very creative and are aware of inefficiencies in the system.  For example, youth serving organizations (e.g. youth sports leagues) do not hire employees.  They seek volunteers.  Often the process by which a person is approved as a volunteer is less rigorous than it would be if the organization were hiring an employee.  Predatory offenders know this and attempt to seek volunteer positions in these organizations for the sole purpose of attaining access to potential victims.   

Private employers, with access to criminal history record information, are in a better position to evaluate an applicant’s criminal history within the context of their own organizational needs and risks.  Prior to legalizing public access to criminal history record information, access to criminal history record information was solely determined by state law.  The Texas State Legislature determined (or extended this authority to state agencies) which constituencies were to be protected, and by default, which constituencies could not be effectively protected from ex-offenders.  For example, state agencies that licensed or regulated individuals that work with children were allowed access to criminal history record information.  Furthermore, the State Legislature determined (or extended this authority to state agencies) the types of convictions that prohibited individuals from licensure or work in certain professions.  For example, individuals convicted of sex crimes could not be licensed as day care workers.  This model is inflexible and may contribute to the problems associated with ex-offender re-entry.  Today, employers have the opportunity to conduct a judicious review of an applicant’s complete criminal history to determine their potential for re-offending.  This enables employers to hire ex-offenders that might be victims of an overzealous prosecutor (e.g. overcharging) or ex-offenders who have not recidivated in decades.  

Current state resources are not likely to provide the same level of service to the public as that of private sector providers.  Nearly all of the respondents indicated that access to criminal history record information via the state repository is cumbersome and expensive.  Many responded that the final product (i.e. the rap sheet) from the central repository is difficult to read and analyze.  It appears that these respondents prefer the formats available via private providers.  These providers also have the flexibility, and capital, to respond to specific customer needs.  Interestingly, during the process of collecting the sample for this study we learned that a large number of the online public records provider users have .gov suffixes in their website URL’s or email addresses.  A fair number of these are criminal justice agencies that have direct access to the CCH file at the DPS already, and have had such access for decades.  For whatever reason, these clients prefer to pay a fee for access to a data set that they already may access free of charge.  

There is substantial evidence that private employers are judiciously using criminal history record information.  None of the respondents provided evidence that they are automatically denying employment to an applicant based solely on the results of a name and date of birth search.  While few will disclose the results of a criminal history search, most of them will inform the candidate that a disqualifying conviction may exist.  Furthermore, nearly all respondents indicated that they will provide a candidate with an opportunity to submit the results of criminal history search based on a set of fingerprints, in order to insure accuracy.

            Public access to criminal history record information has the potential to improve the accuracy of records in the central repository.  A criminal history record is only as accurate as the person who enters it into the data base.  It can reside there for decades without anyone ever reviewing it, or even knowing that it exists.  Unless and until a person accesses, reviews and uses the record it may never be verified for accuracy.  Public access provides this opportunity because it increases the probability that a record will be accessed and reviewed.  It provides an individual an opportunity to know the record exist and then to initiate a process by which it may be corrected.      

Final Thoughts

            The author of this report was the Manager of the Fingerprint and Records Bureau at DPS in the early 1990’s when opening access to criminal history record information to the public was first discussed by the Texas Legislature.  It was a time of great change at DPS.  Automatic fingerprint identification systems technology was emerging.  The Computerized Criminal History system was progressing from a hierarchal to a relational database structure.  

Old school criminal history records managers, including this one, often scoffed at the notion of allowing anyone access to anyone else’s criminal history transcript.  They even predicted that access to this information would result in serious unintended consequences.  Some even expressed a concern that incorrect records would expose the agency to litigation.  Decades later we now know that these traditionalists, including this one, were only partially correct.  Indeed there were a few instances whereby criminal history records were used for nefarious reasons.  On balance, however, the results of this research overwhelmingly finds that non-criminal justice users are as judicious in their use of criminal history record information as criminal justice professionals, and maybe even more so.  

Unfortunately, this does not address the larger question facing policy makers today.  At what point and under what conditions should an ex-offender be absolved of his or her errant past?  When does an ex-offender ‘pay their debt to society’?  Indeed, a criminal conviction, or even an arrest in some cases, can have long term and deleterious effects on an individual’s ability to participate in commerce.  Indeed, some criminal violations (e.g. serious sex offenses) warrant long term scrutiny.  Maybe it is possible, however, for certain criminal arrests or convictions to become inaccessible to public disclosure following a period of time whereby the ex-offender does not commit a subsequent violation.  For example, arrests and/or convictions for minor drug possession or non-violent property crimes could remain indefinitely in the central repository managed by the DPS, but not reported to non-criminal justice users following an appropriate time frame (post release) wherein no subsequent criminal arrest and/or conviction occurs.  This approach could address the concerns of most current critics and may enable ex-offenders to fully rejoin society. 

There is some evidence that time matters.  It is generally true that most ex-offenders tend to recidivate within three years of release from prison.  This lends support to the practice of accessing criminal history records during the employment process.  However, the predictive value of a criminal conviction appears to diminish ten years following release from prison. (Denver, 2017).  In other words, ex-offenders that remain conviction free for ten years following release tend to remain conviction free for the remainder of their lives.  Furthermore, these individuals also appear to improve their employment status and earnings.  Given this it may be possible to allow for the confidentiality and maybe the expunction of a criminal conviction for certain offenses after a given period of time, assuming the absence of subsequent conviction.  The viability of this policy would depend on credible research on ex-offender recidivism.  For example, some types of sex offenders tend to recidivate regularly, while others seldom do.

Thirty-three states and more than 150 communities or counties have adopted policies that delay when an employer asks about a criminal history.  This gives the ex-offender a chance to at least be evaluated on the basis of his or her actual qualifications before asking about a criminal conviction.  These programs, generally known as ‘Ban the Box’ appear to provide some relief for ex-offenders.  Many of these programs are administered in part through state level Equal Employment Opportunity Commissions (Avery & Hernandez, 2018; Gaebler, 2013; The Southern Coalition for Social Justice).  It appears these policies might provide some encouragement to ex-offenders, and save Texas and our counties billions. 

            Some states only allow access to criminal history records that have final dispositions, e.g. convictions, dismissals or acquittals (Gaebler, 2013).  These policies are ostensibly based on the notion that an individual is innocent of a crime until proven guilty.  This practice would avoid the consequences associated with a criminal record for those individuals who have not actually been convicted of a crime.  Here again, time matters.  If the case is not dismissed, recent, or actively being prosecuted then it is likely that a prospective employer would want to, and should, know of it.  

Finally, it would not likely be easy to ‘put the toothpaste back in the tube’.  Access to criminal history record information is ubiquitous in commerce.  This access has become an integral part of the hiring and licensing processes.  It is not possible to quantitatively measure how much victimization was prevented by the use of criminal justice record information during the hiring or licensing process.  What we do know is that decision makers consider unfettered access to criminal history record information essential to protecting their assets and the vulnerable people they serve.

Bibliography

Alper, M., Durose, M.R., and Markham, J. (2018). 2018 Update on prisoner Recidivism: A 9-year follow-up period. Washington, DC.: United States Department of Justice, Bureau of Justice Statistics.

Avery, B. and Hernandez, P. (2018). Ban the box: U.S. cities, counties and states adopt fair-chance policies to advance employment opportunities for people with past convictions.  New York, NY: National Employment Law Project.

Barr, J.R., Coggeshall, S., and Zhao, W (2011). The trouble with names/dates of birth combinations as identifiers.  San Diego, CA: ID Analytics.

Denver, M. (2017). Evaluating the impact of “old” criminal conviction decision guidelines on subsequent employment and arrest outcomes.  Journal of Research in Crime and Delinquency. 54(3). pp. 379-408.

Denver, M., Pickett, J.T., and Bushway, S.D. (2018). Criminal history records and employment: A survey of experiences and attitudes in the United States. Justice Quarterly. 35(4). pp. 584-613.  

Gaebler, H. (2013). Criminal records in the digital age: A review of current practices and recommendations for reform in Texas. Austin, TX: The University of Texas School of Law, William Wayne Justice Center for Public Interest Law.

Harding, D.J., Morenoff, J.D., Nguyen, A.P. and Bushway, S.D. (2018). Imprisonment and labor market outcomes: Evidence from a natural experiment. American Journal of Sociology. 124(1). pp. 49-110.

Holzer, H.J., Offner, P., and Sorensen, E. (2005). Declining employment among young Black less-educated men: The role of incarceration and child support. Journal of Policy Analysis and Management. 24(2).  pp. 329-350.

Pager, D. (2003). The mark of a criminal record. American Journal of Sociology. 108(5). pp. 937-75.

Pager, D. and Quillian, L. (2005). Walking the talk? What employers say versus what they do. American Sociological Review. 70(3). pp. 335-380.

The Southern Coalition for Social Justice. (Undated). The benefits of ban the box: A case study of Durham, NC.  Durham, NC.

Withrow, B.L. (2017).  Research methods in crime and justice.  New York, NY. Routledge/Taylor and Francis.

Appendix A

Open Ended Interview Questions

  1. Would you please describe the sort of organization you work for?  What it does?  How it operates?  What products or services does it provide?
  2. What is your role in your company or organization?
  3. As part of your responsibilities do you access criminal history record information from official sources?
  4. How often do you access criminal history record information?  
  5. Please describe the situation(s) wherein you access criminal history record information. 
  6. When you get this information how is it used?  What decisions are made?
  7. Do you ask applicants to divulge whether or not they have been convicted of a felony or misdemeanor? 
    1. In your experience, how forthcoming (accurate) are the applicants’ responses to these questions on the application or during an interview?
    1. At what point in the hiring process do you access criminal history record information?  Before or after the interview?  Prior to the final hiring decision?
    1. Do you inform prospective employees that they are not hired because of a criminal conviction or arrest?
    1. Have you ever encountered a situation where the criminal history record is inaccurate?  How did you handle this?
  8. Is a conviction or an arrest (which one or both) for a felony or misdemeanor an automatic disqualifier for any of the jobs you hire for?  What sorts of crimes are automatic disqualifiers?
  9. If the state legislature prohibited your access to criminal history record information how would it affect your organization?
  10. What improvements should be made to the criminal history records themselves and/or the service you use to access them?