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Chapter 6 Private Providers of Criminal History Records: Do You Get What You Pay For? Shawn Bushway, Shauna Briggs, Faye Taxman, Meridith Thanner, and Mischelle Van Brakle I ndividuals who have been incarcerated are significantly more likely than the never-incarcerated to have an unstable work career and low earnings potential, owing in part to the stigmatizing impact of a criminal history record.1 Attempts to measure the negative impact on employment outcomes associated with having a criminal record have consistently shown that contact with the criminal-justice system leads to increased job instability and an average decline in income (Nagin and Waldfogel 1995; Grogger 1995; Freeman 1991; Waldfogel 1994; Lott 1992; Bushway 1998; Western 2002; Western, Kling, and Weiman 2001).2 And compelling evidence presented in this volume suggests that employers use criminal history records to screen employees. Harry Holzer, Steven Raphael, and Michael Stoll (chapter 4, this volume) found that 65 percent of all employers would not knowingly hire an ex-offender, and between 30 and 40 percent of all employers actually checked the criminal history records of their most recently hired employees. Devah Pager (2003; chapter 5, this volume) used a matched-pair audit study to understand whether criminal history plays a role in a job applicant’s getting a callback from an employer. The study showed that whites with a criminal history record had a 50 percent reduction in the probability of a callback compared to their matched partner without a criminal history record, whereas blacks had a 64 percent reduction in the probability of a callback. The finding that ex-offenders are one-half to one-third as likely to be considered by employers suggests that having 174 Private Providers of Criminal History Records 175 a criminal record represents a major barrier to employment (Pager 2003; chapter 5, this volume). Employers have many incentives to screen applicants for criminal history records. Some employers believe the existence of a criminal history record is indicative of a lack of trustworthiness (Hulsey 1990), while others are worried about their liability for the actions of their employees. Under the legal theory of negligent hiring, employers who know, or should have known, that an employee has had a history of criminal activity may be liable for the employee’s criminal or tortious acts. Negligent-hiring actions are now recognized in most states (Craig 1987). In addition, most states require an ever-expanding list of employers to check the criminal history records of applicants and to refuse employment to anyone convicted of a crime. This is especially true of jobs in which work includes caring for children or vulnerable adults.3 This concern for security can be understood in the context of a post– 9/11 world, but there is also a competing concern that ex-offenders whose criminal histories might restrict them from jobs might be forced to resort to further criminal activity in order to survive. This concern is supported by research published in the academic literature to the effect that the maintenance of employment is at least moderately helpful in curbing ex-offenders return to crime (see Sampson and Laub 1993; Fagan and Freeman 1999; Bushway and Reuter 2002). As a result of concerns about both the reentry process of ex-offenders and the potential for racial discrimination, researchers who study the employment situation of ex-offenders often call for tighter controls on the release of information about criminal histories (Pager 2003; Petersilia 2003). Recent reports by national committees constructed to study the surge of background checks by nongovernment agencies routinely recommend increased rights for ex-offenders (Search Inc. 2006). But the suggestions that records be sealed or that employers should be restricted from having access to criminal history information miss the fact that state-operated repositories, used by state criminal-justice systems, or larger data repositories maintained at the federal level for use by government agencies, are no longer the sole source of information about criminal history records. Private companies also regularly provide criminal background information to employers that are based on court and prison records. A recent employer survey in Los Angeles showed that over half of all employers who check for criminal records do so through private companies (Holzer, Raphael, and Stoll 2003). Unlike public repositories, private records providers operate in a largely unregulated environment and very little information is known about the accuracy and completeness of these private background checks. In this article we attempt to shed light on the nature of information provided...

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