Shifting Peaks and Cumulative Consequences: Disqualifying Convictions in High-security Jobs

• DOI: 10.1177/00224278211043926
• Date: 01 May 2022
• Author: Brandon Behlendorf,Megan Denver
• Published date: 01 May 2022
• Subject Matter: Original Research Articles

Original Research Article

Shifting Peaks and

Cumulative

Consequences:

Disqualifying

Convictions in

High-security Jobs

Megan Denver

1

and Brandon Behlendorf

2

Abstract

Objectives: Disqualifying conviction lists (DCLs) bar applicants with certain

convictions within specified timeframes from employment. Using proposed

federal legislative changes in the aviation sector as a case study, we examine

whether convictions under the existing policy are associated with subse-

quent arrest. Then we consider the implications of proposed expansions—

arrests instead of convictions and a longer look-back window—on employ-

ment restrictions. Methods: Since DCLs exclude ineligible applicants with

conviction records, we use a large, single-state sample of diverse criminal

histories. We compare subsequent arrest rates across offense types,

consider variations in hazard patterns, and project exclusion estimates

based on current and anticipated policy reforms. Results: Only half of the

1

School of Criminology and Criminal Justice, Northeastern University, Boston, MA, USA

2

College of Emergency Preparedness, Homeland Security, and Cybersecurity, University at

Albany, SUNY, NY, USA

Corresponding Author:

Megan Denver, School of Criminology and Criminal Justice, Northeastern University,

360 Huntington Ave., Churchill 421, Boston, MA 02115, USA.

Email: m.denver@northeastern.edu

Journal of Research in Crime and

Delinquency

ªThe Author(s) 2021

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/00224278211043926

journals.sagepub.com/home/jrc

2022, Vol. 59(3) 279–326

disqualifying offenses have consistently higher recidivism rates than

non-disqualifying offense types. Over 20 percent of the sample would be

barred from employment, policy extensions double this estimate, and

exclusions are age-graded, shifting a peak conviction age of 20 years old

to a peak “consequence age” of 28. Conclusions: Including a narrower set of

offenses would reduce those automatically disqualified in our study context

by nearly 20 percent, or 39,000 individuals. Instead of expanding the DCL

scope, successful criteria should be both effective in prediction and narrow

in application.

Keywords

criminal background checks, transportation security, disqualifying

conviction lists, recidivism, collateral consequences

Criminal background checks for non-criminal justice purposes, including

employment and occupational licensing vetting, are widespread in the

United States (Goggins and DeBacco 2018; Society for Human Resource

Management 2018). Decision makers express concern about criminal

records, and particularly felony convictions, when assessing a job appli-

cant’s skillset, moral character, trustworthiness, and risk of recidivism

(Holzer 1996; Pager 2007). Moreover, employers may be concerned about

negligent hiring lawsuits if they employ a person with a criminal record

(Holzer, Raphael, and Stoll 2006) since past actions are a traditional pre-

dictor of future behavior (Farrington 1987; Kurlychek, Brame, and Bush-

way 2006). Listing disqualifying conviction offenses is a popular strategy

for using criminal histories to imply potential risks.

Disqualifying conviction lists (DCLs) have the unique feature of combin-

ing security and desistance considerations into a structured decision policy.

On the security side, restricted access to select jobs is designed to prevent

certain behaviors from occurring in contexts with vulnerable populations.

Although offense type is traditionally a weak predictor of recidivism

(Bushway and Kalra 2021), policymakers and employers focus on the pre-

vious type of conviction in risk calculations, particularly for offenses involv-

ing violence. From the desistance perspective, many policies also limit

historical “look-back” windows through which decision makers can view a

person’s criminal record, which aligns with research that finds most people

eventually desist (Blumstein and Nakamura 2009; Kurlychek et al. 2006,

2007). DCLs can dramatically shape employment opportunities for people

280 Journal of Research in Crime and Delinquency 59(3)

with conviction records, especially in high-security positions where addi-

tional scrutiny may be justified to preserve security, but that exchange is void

if the elevated scrutiny is not justifiably tied to reductions in potential risk.

In the current study we consider this tradeoff in a high-security sector

(aviation),focusing on the implications of a recentfederal-level policy debate

that could alter the criminal background screening process for hundreds of

thousands of app licants. While D CLs vary by occup ational and geogr aphic

context and arerarely formally studied, the potential implications of this type

of policy are vast.According to statutes maintainedby the National Inventory

of CollateralConsequences of Conviction (2021),there are over 11,000 man-

datory disqualifications across the country that require licensing agencies to

deny applicants (Rodriguez and Avery 2016). In the healthcare field, more

than 3,100 businesses and 71,000 individuals were actively on the List of

Excluded Individuals/Entities for federally funded healthcare programs as of

July 2021

1

. The selected offense types vary by field, but DCLs are similar in

design. Unlike the individualized assessment policies promotedby the Equal

Employment Opportunity Commission (EEOC 2012), which recommend a

comprehensive and holistic decision process, such mandatory bans are

intended to block access to a set of jobs based on limited criteria, often

without waivers or further information. While the use of look-back windows

removes lifetime bans, barring job applicants for a decade or more has the

unique implicati on of imposing age-grade d collateral consequ ences—what

we refer to in the current paper as the “age-consequence curve.” As such,

DCLs deserve particular empirical attention.

We have two main research questions. First, we evaluate whether indi-

viduals with offenses on the DCL (which prohibits access to certain posi-

tions in the aviation sector) have higher recidivism rates than individuals

with non-disqualifying offense types. DCL policies are anticipated to have a

“chilling” effect (Harris and Keller 2005) on potential applicants because

individuals with listed offenses are automati cally barred from consider-

ation. Not only are the disqualifying offenses publicly available in federal

statute (49 USC part 1542.209(d)), but airports also require applicants to

sign statements certifying they have not been convicted of any disqualifying

offenses as part of the application process.

2

Therefore, the SIDA applicant

pool would only consist of people without criminal records or with eligible

low-level convictions. Instead of applicant or employee data, we use

detailed computerized criminal history data for over 700,000 individuals

in New York State to address this question. We al so investigate which

offenses, if any, are driving subsequent arrest patterns. Our second research

question investigates the potential employment exclusion implications of

281

Denver and Behlendorf