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Meeting of November 20, 2008 – Employment Discrimination Faced by Individuals with Arrest and Conviction Records

Statement of Shawn D. Bushway
Associate Professor of Criminal Justice
University at Albany (SUNY), School of Criminal Justice

  1. Current Practice for assessing risk of offending.
    1. Individual decisions made by human resources
    2. In most cases, individual decision making is worse than formal decision making based on statistical rules.
    3. Criminal history records are complicated documents intended for informed members of the criminal justice system.
  2. Statistical risk assessment using samples of ex-offenders.
    1. Large literature on the use of statistical rules to conduct risk assessment of ex-offenders
      1. Sentencing
      2. In prison management
      3. Parole
    2. Four best predictors of risk in samples of ex-offenders: age, criminal history record, race and sex
    3. Most tools only use aspects of the criminal history record
      1. Caveats
        1. Most tools only use criminal history record
          1. Ignoring age, sex and race could still lead to bias because criminal history records are correlated with age, sex and race.
        2. Evidence is based on official criminal history records with fingerprint quality matches.
          1. Public Criminal History record searches with finger print matches have a number of well known problems centered on dispositions.
          2. Private criminal history record searches with name and date of birth matches are substantially worse, and may miss up to half of all individuals with criminal history records.
        3. Why is recidivism the measure for employment decisions?
    4. Overall quality of prediction is modest at best
    5. Particularly hard to predict rare, high-risk offenders.
      1. Any decision rule will include substantial numbers of people who were not in fact high risk.
  3. Criminal history records
    1. Type of offense largely irrelevant
      1. Offenders are generalists not specialists.
        1. Past offense modest predictor of the next offense
      2. High rate offenders will tend to have more violence, even without specialization
      3. Property offenders actually recidivate at higher rates than violent offenders
    2. Criminal history record DOES NOT indicate individual always at a higher risk for recidivism than an individual with no record
      1. KEY QUESTION: How many years of non-offending does it take before an ex-offender looks like a non-offender
        1. Active area of research
        2. Risk differential is very high – up to 10 times higher -- immediately after arrest/contact with the criminal justice system
        3. Risk of offending for young first-time offenders declines to the same level as those with no record by roughly 6-8 years after the first arrest.
      2. KEY INSIGHT: Non-offenders do not have zero risk
        1. Definition of non-offenders very important in employment realm
          1. What is the level of risk of people for people who currently work for the company?
          2. Nature of criminal history record check
      3. Caveats
        1. Time since conviction might not be as relevant as time since release from prison for those incarcerated.
        2. Number of prior offenses MIGHT be good predictor of relative risk even after a number of years of release
        3. This risk assessment is being done in an environment where criminal history record has costs. But, risk assessment does not take current practices into account.
        4. Time since last conviction may not be causal – could just be good signal.
  4. Potential mitigators for ex-offenders besides years since last conviction.
    1. Abstinence from drugs/alcohol decreases risk dramatically for ex-offenders
    2. Stable employment (a year on same job) is rare, and predictive of low risk
    3. Age: 40 year old ex-offender much less risky than 20 year old.
    4. Marriage