CREDENTIALING DECISIONS AND CRIMINAL RECORDS: A NARRATIVE APPROACH*

• DOI: http://doi.org/10.1111/1745-9125.12190
• Published date: 01 November 2018
• Date: 01 November 2018

CREDENTIALING DECISIONS AND CRIMINAL

RECORDS: A NARRATIVE APPROACH∗

MEGAN DENVER1and ALEC EWALD2

1School of Criminology and Criminal Justice, Northeastern University

2Department of Political Science, University of Vermont

KEYWORDS: evidence of rehabilitation, occupational license, criminal record, employ-

ment, collateral consequences

Decision makers such as employers and state occupational licensing officials are

often encouraged or required to incorporate evidence of rehabilitation into hiring de-

cisions when applicants have criminal records. Current policy movements at the local,

state, and federal levels may increase the use of such individualized assessments. Yet

little is known about which types of information these decision makers use, how they

evaluate evidence, and how they ultimately make determinations. We examine a sample

of 50 unarmed security guard licensing decisions in New York State using content anal-

ysis. We find that administrative law judges rely on a narrative framework to document

whether applicants currently have a prosocial identity and merit licensure. Judges typ-

ically describe one of two prosocial identity narratives for successful applicants: The

applicant demonstrates achieving meaningful change, or his or her criminal record

represents an aberration. Two factors seem vital to these assessments: applicants’ post-

conviction trustworthiness, as demonstrated through good conduct or inferred through

positive appraisals, and credible testimony. In narrative explanations, personal respon-

sibility and adult milestones are often discussed, reflecting a judicial nod to the notion

of a “transition to adulthood.” The results hold implications for scholars and policy

makers examining employment barriers, stigma remediation, and collateral sanctions

for individuals with criminal records.

Overcoming the stigma of a criminal record has historically been challenging. This type

of “deeply discrediting” attribute (Goffman, 1963: 3) can limit a host of social and eco-

nomic opportunities for individuals with criminal records (Bushway and Sweeten, 2007;

Love, Roberts, and Klingele, 2016; Pager, 2007). Positive credentials, meanwhile, such as

∗We are grateful to Jody Miller and three anonymous reviewers for their helpful critiques and sug-

gestions. We would like to thank Whitney Clark at the Division of Licensing Services and Teneka

Frost-Amusa (formerly at the Office of Administrative Hearings) for generously taking the time

to explain how their respective agencies operated. Tony Thompson and Molly Kovel provided

valuable context on the New York State occupational licensing process in the early stages of this

project. We would also like to thank Shawn Bushway, David Harding, Justin Pickett, Megan Kurly-

chek, and Christy Visher for feedback and suggestions on earlier versions of this article. All respon-

sibility for errors of fact and interpretation is our own. This research was supported by a grant from

the National Institute of Justice, Graduate Research Fellowship Program (2016-R2-CX-0017).

Direct correspondence to Megan Denver, School of Criminology and Criminal Justice, College

of Social Sciences and Humanities, Northeastern University, 421 Churchill Hall, 360 Huntington

Avenue, Boston, MA 02115 (e-mail: m.denver@northeastern.edu).

C2018 American Society of Criminology doi: 10.1111/1745-9125.12190

CRIMINOLOGY Volume 56 Number 4 715–749 2018 715

716 DENVER & EWALD

an occupational license, training-program diploma, or judicially awarded rights-restoring

certificate, can reduce criminal record stigma and enhance future opportunities (Leasure

and Martin, 2017; Pager, 2007; Radice, 2012). Amidst dramatically expanded public and

academic attention to the burdens of living with a criminal record, “work has become

the sine qua non of reentry” discussions (Demleitner, 2016: 167).1A central challenge

for decision makers charged with employment credentialing decisions—which involve

balancing public safety against the need to provide social and economic opportunities to

individuals with criminal records—is determining what types of information to use and

how to evaluate competing information.

One way credentialing decision makers could explain their decisions in a context rich

with competing information is by constructing and deploying narratives. In an interdis-

ciplinary literature, scholars appraise how individuals with criminal records synthesize

complex and varying information to construct their own identity narratives, but the study

of whether and how other actors in or adjacent to the American criminal justice system

construct rehabilitation narratives about individuals with criminal records is far less de-

veloped. Notably, decision makers can have substantial influence well beyond courts and

correctional institutions. The extended American carceral state (Beckett and Murakawa,

2012) features a wide array of actors making discretionary decisions about the rights, priv-

ileges, and status of people with criminal records. Yet to our knowledge, there is not cur-

rently a framework for understanding how decision makers external to the criminal justice

system evaluating applicants with criminal records craft narratives. This omission is criti-

cal given the interactive nature of criminal record stigma, which not only relies on the stig-

matized person’s self-perceptions and internalizations but is also fundamentally shaped

by broader societal norms and perceptions. In addition to implementing restrictions for

those with criminal records, these actors may also play a role in stigma remediation and

contribute to the de-labeling process (Ewald, 2016; Ispa-Landa and Loeffler, 2016).

Furthermore, a current policy-reform movement could rapidly increase the use of

individualized assessments. In 2012, the Equal Employment Opportunity Commission

(EEOC) advised employers to conduct individualized assessments—decisions that

incorporate context-specific and rehabilitative information—instead of blanket denying

applicants with conviction records. The military uses a “whole person” review, which

“bears a striking similarity” to EEOC guidance (Lundquist, Pager, and Strader, 2018: 5).

Similarly, the spread of “Ban the Box” measures across the country requires public (and,

occasionally, private) employers to delay criminal record inquiries past the application

stage, sometimes until after the candidate has a successful interview (Rodriguez and

Avery, 2016). Although the findings from recent empirical studies have raised concerns

about the unintended consequences of Ban the Box in practice (Agan and Starr, 2016;

Doleac and Hansen, 2016; Vuolo, Lageson, and Uggen, 2017), the underlying notion of

comprehensive assessments may alter how decision makers evaluate candidates.

The use of individualized strategies could also apply to policy contexts beyond employ-

ment. For example, the U.S. Department of Housing and Urban Development (2016)

announced similar guidance in the housing context, and several major housing agencies

are experimenting with individualized assessment pilot programs (Walter, Viglione, and

1. As Demleitner (2016: 167) wrote, “Work is being hailed as a protector against recidivism, even

though not all studies confirm that view.”

CREDENTIALING DECISIONS AND CRIMINAL RECORDS 717

Tillyer, 2017). Yet anecdotal evidence suggests ambiguity in individualized assessment

guidance. According to a major human resources agency, screening experts report that

the term “individualized assessment” was “one of the hardest things to understand about

the [EEOC] guidance,” and “the guidance provides little to no direction around how to

set up a standardized process for performing individualized assessments” (Maurer, 2016:

1). The Dollar General chain recently (and so far unsuccessfully) challenged the “merely

generic suggestions” of the guidance as part of an EEOC lawsuit against the company

(Equal Employment Opportunity Commission v. DOLGENCORP, 2017: 3).

In the current study, we place individualized assessments involving criminal records,

evidence of rehabilitation, and employment opportunities within the broader decision-

making literature to understand better how decision makers proceed when facing

ambiguity. We focus on state-mandated occupational licensing, which presents an

important context for examining individualized assessments. Licensing and certification

requirements apply to a wide variety of jobs and are extremely common in the United

States: For example, in New York, the state examined here, more than 130 occupations—

and nearly a million people—are licensed (New York State Education Department,

2017). State laws vary considerably, but many impose restrictions for people with

convictions, sometimes for jobs that do not involve typical vulnerable populations—such

as real estate agents or cosmetologists (Council of State Governments, 2017; May, 1995;

Petersilia, 2003). When state laws do not explicitly bar employment, they often empower

licensing authorities to deny applicants on the basis of a criminal record.

We focus on an occupational licensing decision process in New York State for appli-

cants seeking unarmed security guard licenses. New York is frequently highlighted in

discussions of prisoner reentry and reintegration in large part because of Correction Law

Article 23-A, which is in effect an antidiscrimination statute for people with conviction

records (Thompson, 2008). First enacted in 1976, Article 23-A prohibits employers

and public agencies from refusing to hire or license people based solely on a criminal

conviction. The statute lists several factors these decision makers must consider and

includes an explicit reference to information related to the applicant’s “rehabilitation

and good conduct.”2

Meanwhile, the awarding of security guard licenses to individuals with criminal records

raises important policy questions. Unarmed security guards do not carry weapons and are

not law enforcement agents; given that many positions are not highly paid, can involve

unorthodox schedules, and may not be held in high esteem by the public, some might

consider the occupation to be undesirable “dirty work” (Johnston and Hodge, 2014). Yet

the job involves protecting people and property and has gained some legitimacy through

a growing recognition of private security as part of the “extended police family” (Thu-

mala, Goold, and Loader, 2011: 294). Indeed, since the early 1980s, some scholars have

depicted the rise of private security as “one of the most striking features of social control

in North America” (Shearing and Stenning, 1983: 493). Declining public budgets and

increased public anxiety about disorder have contributed to the industry’s growth, and

regulation through licensure can help professionalize expanding industries (Thumala,

Goold, and Loader, 2011). The tension between the social goals of employment for

2. Exceptions to the prohibition (i.e., situations in which a denial is permitted) may occur when there

is a “direct relationship” between the infraction and potential job, or when a hire would present

“unreasonable risk” to property or public safety.