A NEW LOOK AT THE EMPLOYMENT AND RECIDIVISM RELATIONSHIP THROUGH THE LENS OF A CRIMINAL BACKGROUND CHECK*

• Published date: 01 February 2017
• Author: MEGAN DENVER,SHAWN D. BUSHWAY,GARIMA SIWACH
• DOI: http://doi.org/10.1111/1745-9125.12130
• Date: 01 February 2017

A NEW LOOK AT THE EMPLOYMENT AND

RECIDIVISM RELATIONSHIP THROUGH THE LENS

OF A CRIMINAL BACKGROUND CHECK∗

MEGAN DENVER,1GARIMA SIWACH,2

and SHAWN D. BUSHWAY3

1School of Criminal Justice, University at Albany, SUNY

2Department of Economics, University at Albany, SUNY

3Rockefeller College of Public Affairs and Policy, University at Albany, SUNY

KEYWORDS: recidivism, criminal background checks, desistance, employment, instru-

mental variables

Criminal background checks are increasingly being incorporated into hiring de-

cisions by employers. Although originally uncompromising—almost anyone with a

criminal record could be denied employment—court rulings and policy changes have

forced criminal background checks to become more nuanced. One motivation for al-

lowing more individuals with criminal records to work is to decrease recidivism and

encourage desistance. In this article, we estimate the causal impact of receiving a clear-

ance to work on subsequent arrests for individuals with criminal records who have

been provisionally hired to work in certain nonlicensed health-care jobs in New York

State (N=6,648). We employ an instrumental variable approach based on a substan-

tive understanding of the state-mandated criminal background check process. We ex-

amine age-graded effects within this group of motivated individuals and differential ef-

fects by sex in the rapidly growing health-care industry, which is typically dominated by

women. Our estimated local average treatment effect indicates a 2.2-percentage-point

decrease in the likelihood of a subsequent arrest in 1 year and a 4.2-percentage-point

decrease over 3 years. We find meaningful variations by sex; men are 8.4 percentage

points less likely to be arrested over the 3-year period when cleared compared with a

2.4-percentage-point (and nonsignificant) effect for women. Older women in particular

are driving the nonsignificant results for women.

∗Additional supporting information can be found in the listing for this article in the Wiley Online

Library at http://onlinelibrary.wiley.com/doi/10.1111/crim.2017.55.issue-1/issuetoc.

Direct all correspondence to Megan Denver, School of Criminal Justice, University at Albany,

State University of New York, 135 Western Avenue, Draper Hall 219, Albany, NY 12222 (e-mail:

mdenver@albany.edu).

The authors are extremely grateful to our New York State partners who made this project possible.

We would like to thank Terry Salo and Leslie Kellam and their team at the Division of Criminal

Justice Services; Daryl Barra and his team at the Department of Health; and the research staff at

the Department of Labor for their encouragement, access to data, and complete support. We ex-

tend a special thank you to the project co-PI Megan Kurlychek for her support and encouragement

on this article. We would also like to thank our editor and four anonymous reviewers for detailed

feedback that helped strengthen the article. All errors remain our own. These data are provided by

the New York State Division of Criminal Justice Services (DCJS) and the Department of Health

C2017 American Society of Criminology doi: 10.1111/1745-9125.12130

CRIMINOLOGY Volume 55 Number 1 174–204 2017 174

CRIMINAL BACKGROUND CHECKS AND RECIDIVISM 175

During the last 20 years, there has been an expansion in the use of criminal records

by employers for hiring decisions (Jacobs, 2015; Raphael, 2011). These changes have

occurred in part because of developments in technology—primarily the Internet—

and perceptions of increased risk arising from events like 9/11 (Bushway et al., 2007;

SEARCH, 2005). One major source of criminal background information is official crim-

inal record repositories. Originally created for criminal justice purposes by states us-

ing fingerprint cards, the volume of fingerprint-based background checks for noncrim-

inal justice purposes increased 55 percent from 2006 to 2014 in 48 states and the Dis-

trict of Columbia (Bureau of Justice Statistics, 2008, 2015). During the same period,

the volume of fingerprint-based checks for criminal justice purposes declined 6 percent

(Bureau of Justice Statistics, 2008, 2015). The net effect was that in 2014, for the first time,

most of the 24 million fingerprint-based criminal background checks conducted by staff at

repositories were for noncriminal-justice purposes. The practitioners at these repositories

processed an additional 19.4 million name-based criminal background checks in 2014 for

noncriminal-justice purposes.

Although these numbers are large, they are undoubtedly dwarfed by the biggest source

of criminal background checks for employers: consumer reporting agencies. Consumer

reporting agencies are private commercial vendors whose staff members conduct name-

based searches using information collected from court records and other publicly avail-

able data sources (Jacobs, 2015: 75). For example, the commercial vendor LexisNexis

(n.d.) reported maintaining a national database spanning all 50 U.S. states and containing

more than 250 million criminal records for more than 100 million individuals. Although

there are not clear national estimates on how many employers conduct criminal back-

ground checks using these sources, the existing evidence indicates that these searches are

common, particularly for large companies (Bushway et al., 2007; EEOC, 2012; Holzer,

Raphael, and Stoll, 2006; Society for Human Resources Management, 2012).

The use of these records for employment decisions, regardless of the source of criminal

history record information, is governed by state laws and federal court rulings about po-

tential disparate impact under Title VII of the Civil Rights Act of 1964 (King and Fliegel,

2011). In the seminal Green v. Missouri Pacific Railroad Company (1977) case, a federal

court of appeals banned employers from implementing “blanket bans” or from using an

applicant’s conviction record as an absolute bar to employment. Instead, employers were

encouraged to clear individuals with records to work unless there was a business necessity

to deny the applicant (EEOC, 1987). Despite this guidance, blanket bans remain com-

mon, particularly in the context of occupational licenses. More than a quarter of the U.S.

workforce was covered by license requirements in 2008, which was a dramatic increase

from 5 percent in the 1950s (Kleiner and Krueger, 2011). Half the states and the District

of Columbia currently allow a blanket ban denial approach for individuals with criminal

convictions in the licensure process (White House, 2015).

The results of recent social science research have not supported the idea of blanket

bans; instead they have supported the idea that individuals with criminal records can be

(DOH). The opinions, findings, and conclusions expressed in this publication are those of the au-

thors and not those of DCJS or DOH. Neither New York State nor DCJS nor DOH assumes

liability for its contents or use thereof. This research was supported by Award 2012-MU-MU-0048

from the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice. The

opinions, findings, and conclusions expressed in this publication are those of the authors and do

not necessarily reflect the views of the Department of Justice.