Will Guzzardi ’09: Jeopardy and a half

Flawed criminal background checks break a pact with justice

On television the other day I saw an advertisement for a criminal background-check service. It portrayed potential babysitters and new boyfriends who bore stickers that read “Convicted of Assault and Battery,” “I Drove Drunk” or some other illegal activity. The message was that if it were this easy to spot them, then one wouldn’t need to employ the service.

Frankly, the ad was disturbing. I wasn’t disturbed by the possibility that people around me might be ex-cons. What troubled me was the notion inherent in the ad that the punishment criminals receive from the justice system isn’t enough.

I think it’s reasonable to want to know if potential friends or lovers have committed violent crimes. But the portrayal of background checks as a means to keep your family safe only speaks to a tiny percentage of those who use these services. For the most part, employers hire these background-check companies to screen potential hires. Childcare agencies and security firms rely heavily on such checks for obvious reasons, but large employers in virtually every field use the checks as well. Health care, transportation and financial companies all check criminal records before hiring.

In a competitive job market, it seems inevitable that an applicant with anything at all on his record will be fighting an uphill battle for employment.

Thankfully for anyone with a youthful indiscretion in his past, many states (41 to be exact) have a mechanism for making some convictions go away. Certain petty misdemeanors on your criminal record can be expunged so that they don’t stick with you. Often this is contingent on the person not committing any more offenses for a certain period of time. In the end, in the eyes of the law, it’s as if you never encountered the justice system at all.

Well, not really. The companies accrue their databases by purchasing criminal records from the courts. I’m sure it’s expensive to keep these archives up-to-date, so many simply don’t make the effort. As the New York Times reported in an Oct. 17 article, the databases update these records infrequently at best and “many smaller ones use outdated, incomplete and sometimes inaccurate data.”

As a result, offenses that have been expunged from one’s record often turn up on background checks anyway. Expungement is, after all, contingent on a lapse of time, so without updating their records, the databases will never know a conviction has been erased.

The Times article tells the story of a man whose 10-year-old conviction for disorderly conduct, an offense that in his home state of New York is supposedly treated “like a traffic infraction rather than a crime,” prevented him from getting a job that would have doubled his $20,000 annual income. Such a raise could have changed his life and that of his family. But the company conducted a criminal background check, the disorderly conduct charge showed up -which it shouldn’t have – and he was denied the position.

In short, in this digital age of infinite proliferation of data, expungement is a fantasy. The blank slate it once offered to those convicted of minor offenses is more like the old whiteboard on my dorm room door: though you might try to wipe it clean, there will always be some traces of what used to be written there.

If there were ever an issue for which civil rights groups on campus should get up in arms, this is it. Just like denying ex-convicts voting rights or sex offender tracking and registration, this is an instance of societal double jeopardy. These offenders have made an agreement with the justice system about the recompense they owe society for their transgression; having paid it, they should be able to return to society as members in good standing. Instead, they are dogged by their conviction for the rest of their lives.

The very notion of courts selling criminal records to private companies is really what’s at fault here. For violent crimes – felonies – the information about convicts should be made available to concerned parties like potential employers, as it currently is. But misdemeanors, especially ones that could potentially be expunged, should stay between the individual and the judicial system. The minute the commercial market is brought in, there is potential for life-changing harm to be done.

Will Guzzardi ’09 is still trying to shake that public awkwardness conviction.