If you live in Kentucky and want to work on a farm, run an HVAC company, or interpret for the deaf community, you’d better not have a criminal record.
Those professions and more than 100 others have licensing restrictions in the state based on a person’s prior convictions, making it hard for even those with minor offenses in their history to get a job. It’s not just Kentucky—every state in the U.S. has some form of employment restriction based on criminal records.
There are nearly 70 million Americans with a prior arrest or conviction. The mark on their record follows them around, sometimes for 30 or 40 years.
Brad Clark, a criminal defense attorney in Kentucky, tells the story of one of his clients. An older man who worked in a factory for much of his career, he was reaching an age where he knew he wouldn’t be able to keep doing the job. So he began school to become a radiology technician.
But he didn’t get his license. A conviction for not paying child support in the 1990s showed up on his background check and the licensing board refused him.
“This is a huge, potentially productive segment of the population that’s being basically taken out of circulation because of having made a mistake at one point in their lives,” says Margaret Love, a Washington, D.C., lawyer who specializes in restoration of rights and serves on the board of the Collateral Consequences Resource Center, a nonprofit investigating the economic and social effects of these long-lasting convictions.
“Most of the time, these records last forever,” Love says. “I think that integrating this population into the labor market in a fair and constructive way would be a tremendous advantage to our economy.”
Enter expungement, sealing, and set-aside. These legal terms sometimes refer to different processes state to state, but they end with the same result: prior offenses not showing up on background checks for employment. Depending on the state, a criminal record can effectively remove every right a citizen has—like the right to vote, serve on a jury, run for office, or even travel internationally. Going through expungement restores those rights.
Clark runs Unconvicted.com, a web service that helps people expunge Kentucky criminal records. He launched it last year following the passage of House Bill 40, which allows those convicted of certain felonies in the state to apply to have the convictions vacated and expunged, once five years have passed since the end of their sentence. Kentucky’s law applies to certain Class D felonies including possession of a controlled substance, third-degree burglary, and “flagrant nonsupport” (persistently not paying child support despite a court order).
“The non-constitutional personal benefits [of expungement] are wide-ranging,” Clark says. “Being able to coach your son or daughter’s soccer team. Being able to chaperone your son’s school trip. … Not worrying about what will happen if your company is acquired and the new owner runs a background check.”
The expungement laws differ state to state (and some don’t offer the option at all). Most states allow for expungement of misdemeanors, and some for felonies after a waiting period. But not every crime can be expunged: Homicide, rape, and child molestation are generally permanent. Critics of the laws say they limit employers’ ability to get a full picture of the people they’re hiring.
But advocates say that old blots on people’s records limit their prospects and are a drag on the economy. Some areas of Kentucky have a 20 to 30 percent unemployment rate, Clark says, even though there are jobs; local people just can’t fill them because of prior convictions. A recent study put the national cost of the employment penalty for former prisoners and those convicted of felonies at $78 to $87 billion annually.
“I fear that the summary exclusion of so many otherwise qualified people is going to perpetuate a cycle of poverty and social marginalization,” Love says. “A criminal record has become a sorting mechanism that excludes minorities. It can confine people who are already over-prosecuted to the margins of society.”
Ban the Box, an initiative started in 2004, urges employers to remove questions about criminal history from job applications, so people with prior convictions have a fair chance of getting hired. To date, more than 150 local governments in the U.S. have changed their hiring practices to level the field for those with criminal records.
Nine states—Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont—have gone further and removed the question about criminal history on job applications for private employers. In November, President Obama finalized a rule to make federal agencies wait to ask most applicants about their criminal history until a conditional offer of employment is made.
Criminal-record expungement tackles the same problem from the other side, which has spurred more states to adopt or broaden their laws. But the process can be complicated and expensive. Typically, fees range from $500 for misdemeanors to up to $5,000 for felonies, plus any legal costs. That can be a major hurdle, especially for people who have spotty employment histories.
“It’s easy to think that this is life-saving, that it’s going to radically change this person’s life, therefore it’s worth $500 to everyone,” Clark says. “And that’s absolutely true—if you can pay that $500. And so many can’t.”