EmployeeScreenIQ Blog

There have been a few studies conducted in the United States covering recidivism rates of offenders and ex-convicts. Anything above .0001% is virtually why the employment screening industry even exists. We have written in the past about our own domestic recidivism rates but have yet to post anything outside the US. I found this article discussing these staggering rates in Canada. The Winnipeg Sun is reporting that the re-offending rate in some cases is as high as 100%. The article throws out some incredible, almost unbelievable numbers about recidivism. The author summarizes by saying if Manitoba’s corrections branch is to rehabilitate criminals, they’re not doing a very good job! Do you do background checks on your Canadian applicants? I hope so!!

Re-offending rates are staggering

If the main objective of Manitoba’s Corrections branch is to rehabilitate criminals, they’re not doing a very good job.

At least according to their own numbers released by the Opposition Tories Tuesday, which show the rate of re-offending in some cases is as high as 100% for young criminals.

The most recent data from the last three months of 2007 shows 75% of adult inmates released from provincial jails were charged with another offence within two years of completing their sentence.

The numbers include charges for new offences and for breaching conditions of release.

It’s an astonishingly high number and it confirms what many of us have observed anecdotally for years — our courts/corrections system has evolved into a revolving door of justice where criminals re-offend over and over again.

The 75% recidivism rate for the last quarter of 2007 is the highest in at least five years, according to the data. Which means the problem is getting worse, not better.

The recidivism rates for young offenders during the same period are even more staggering.

In the three-month period from April to June 2006, 100% of young offenders released from youth custody were charged with another offence within two years.

That means every young offender in Manitoba who completed a youth jail sentence between April 1 and June 30 that year was charged with another offence within the following two years.

That’s an incredible statistic and a glaring example of what a massive failure our justice system is.

What’s equally startling is not once has the recidivism rate for young offenders in custody dropped below 75% since 2002.

Most quarters it ranged between 80%-95%. It’s a horrible record.

The stated objective of the Youth Criminal Justice Act is to rehabilitate young criminals and help them transform their lives.

It’s obviously not working. Even in deferred custody cases — where young offenders serve their sentences in the community with conditions — the recidivism rate is as high as 85%-90%.

There are obviously no easy solutions to bring down recidivism rates for adults and young offenders. But whatever our courts and jails are doing now is not working.

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Utah Representative Jason Chaffetz (R) does not want the Census Bureau to hire anyone with a criminal record.  “Allowing individuals with criminal records to be enumerators, who go out into the public and walk up to people’s homes and knock on doors, can have serious detrimental effects on the American people’s confidence in the census,” Chaffetz said.

Rep. Jason Chaffetz Wants Census to Hire No Criminals

And while I applaud his efforts to protect our nation’s citizens, his proposal will get the undivided attention of the EEOC who is aggressively pursuing employers that impose what they believe are discriminatory hiring practices on job applicants.  They also are trying to curb criminal recidivism to get former convicts back to work so that they won’t turn back to crime.  Their argument is that when conducting employment background checks employers need to look at the crime to determine job relatedness.  They also need to consider other factors such as severity, how long ago it took place, whether the person is a repeat offender, etc.

In my opinion, there are certainly going to be some crimes that the Census Bureau should have a zero tolerance policy on.  There will be others that really won’t amount to much.  Take for instance check fraud in the state of Texas.  Sounds like a pretty serious crime, right?  In actuality, a person is charged with check fraud if they bounce a check for greater than $5.00.  Oftentimes, the individual never knows that they have been prosecuted for the offense and the only thing they need to do to have it taken care of is to make good on the amount of the bounced funds.  Now, in other places, check fraud is a very serious offense.  There are many more instances of convictions like this and it wouldn’t really be practical/fair to reject candidates such as these.

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Last year, the state of New York amended their general business laws to force businesses to consider certain factors in their hiring decisions when their job applicants had criminal conviction records.  (New York State Correction Law Article 23-A, Section 753 “Licensure and Employment of Persons Previously Convicted of One or More Criminal Offenses”.) The law was aimed to help former convicts get jobs.  To comply, businesses that conduct background checks have to follow guidelines set forth in Article 23-A before taking adverse action.  The guidelines focus on the seriousness or severity of crimes, job relatedness of the criminal activity, how old the record was, if the person was a repeat offender, etc.

All has been pretty quiet since the law was enacted . . . until now.  Check out this editorial we found in today’s New York Times.  Clearly, they are prepared to begin enforcement.  If you are interested in learning more about Article 23-A, check out our podcast with Seyfarth Shaw’s, Pam Devata.

Denied A Chance for Honest Employment

Among the leading causes of recidivism are employment policies in the private and public sectors that discriminate against former offenders and too often drive them back to jail. New York State first addressed this problem more than 30 years ago with laws protecting the employment rights of people with criminal convictions. But two investigations by Attorney General Andrew Cuomo suggest that some companies are finding ways around these laws.

Employers in New York can, of course, review an applicant’s history. But they cannot deny an applicant a job on the basis of a conviction without considering whether the offense bears a relationship to the job being sought. New York law also forbids employers from shutting out qualified applicants because of convictions that are sealed or dismissed, minor infractions like speeding tickets or for arrests that do not lead to conviction.

In a recently completed investigation, the attorney general found that ChoicePoint, a nationally known employee screening company, was involved in creating an online job application system for employers that automatically disqualified thousands of applicants who disclosed criminal convictions. Moreover, investigators found that the company had recommended to employers that they disqualify applicants based on sealed or dismissed convictions and legal outcomes that are regarded as violations — not crimes — under New York law. One ChoicePoint client violated state law by withdrawing conditional job offers after information that should not have been taken into account turned up in background checks.

In a separate investigation, the attorney general found that RadioShack also had ignored the law by rejecting job applicants whose violations had been sealed, set aside or deemed to be minor. Both companies have agreed to pay financial penalties and to obey the law, without admitting or denying wrongdoing. But the cases raise the disturbing possibility that the practices they engaged in may be more widespread than supposed in a state that has been a national model in giving former prisoners a chance at honest work.

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Ok, I hate to even write this posting because like many of you; I am a huge Pee-Wee Herman fan!  However, I would be negligent if I didn’t.  Hollywood makes it so easy.  I could spend the rest of my life writing blogs about stories they create!!  Today is no exception.  Pee-Wee Herman is mounting a huge comeback.   “The Pee-wee Herman Show,” opening next month in downtown Los Angeles at Club Nokia theater, cost millions to produce. It boasts 11 actors, 20 puppets and marks the show’s first production since 1982.

What would a background check on Pee-Wee Herman look like?  It wouldn’t be pretty, I’ll tell you that much!  According to Wikipedia:

In July 1991, while visiting relatives, Reubens was arrested in Sarasota, Florida for masturbating publicly in an adult theater while watching a triple bill of Catalina Five-O: Tiger Shark, Nurse Nancy and Turn up the Heat. Detectives would periodically visit pornographic theatres and observe the audience, arresting those engaged in indecent exposure. After having arrested other men, a detective who had been observing Reubens stopped him while he was on his way out. While detectives looked at his driver’s license, Reubens told them, “I’m Pee-wee Herman”, and then offered to do a children’s benefit for the sheriff’s office “to take care of this”. The next day, after a local reporter recognized Reubens’ name, Reubens’ attorney made the same offer to the Sarasota Herald-Tribune in exchange for withholding the story. This was not Reubens’ first arrest in the county; in 1971 he was arrested for loitering and prowling near an adult theater, though charges were later dropped. His second arrest was in 1983 when Reubens was placed on two years’ probation for possession of marijuana, although adjudication was withheld. The night of the arrest Reubens fled to Nashville, where his sister and lawyer lived, and then to New Jersey, where he would stay for the following months at his friend Doris Duke’s estate.

I wish it stopped there, but unfortunately it doesn’t.

In November 2002, while filming David La Chapelle’s video for Elton John’s “This Train Don’t Stop There Anymore”, Reubens learned that policemen were at his house with a search warrant, acting on a tip from a witness in the pornography case against actor Jeffrey Jones, finding among over 70,000 items of kitsch memorabilia, two grainy videotapes and dozens of what the city attorney’s office characterized as a collection of child pornography. Kelly Bush, Reubens’ personal representative at the time, said the description of the items was inaccurate and claimed the objects were “Rob Lowe’s sex videotape and a few 30- to 100-year-old kitsch collectible images”. Reubens turned himself in to the Hollywood division of the LAPD and was charged with possession of obscene material improperly depicting a child under the age of eighteen in sexual conduct. The District Attorney looked at Reubens’ collection and computer and found no grounds for bringing any felony charges against him, while the city attorney brought misdemeanor charges against Reubens “on the very last day” that the statute would allow.Reubens was represented by Hollywood criminal defender lawyer Blair Berk. In December he pleaded not guilty through Berk, who also complained that the city attorney failed to turn over evidence to the defense, which City Attorney Richard Katz countered that prosecutors were not required to do until after arraignment, after which they did; neither side disclosed the contents.

Now just to be clear, we would never, EVER use Wikipedia for background checks, its simply a source.

Mr. Rubens has several offenses in his lifetime.  Criminal recidivism rates for any offender is noteworthy and certainly justifies an employers right to screen employees.  For you screening professionals out there, we understand this opens a quagmire of legal issues under California reporting laws; we can debate that later! Lets hope Pee-Wee (Paul Rubens) is using this as an opportunity to turn his life around!

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This August I wrote about the Blumstein study on criminal recidivism rates.  Ironically, there is a lot of news this week about several states including California, releasing prisoners early due to prison overcrowding!  Now, before you throw your coffee mug through your computer screen allow me to clarify this.  According to Time Magazine:

No state is freeing sex offenders, murderers or habitually violent criminals. Most inmates who are eligible for early release are those who were caught with relatively small amounts of drugs. And generally, early-release guidelines require that inmates be within six months of their official exit date.

Still however mistakes will be made.  There is an old adage, “I didn’t become a criminal until I went to Jail.” Are we putting dangerous people into society? I only raise the question, I don’t really have a strong opinion either way.  One would hope that these offenders embraced rehabilitation programs and will re-enter society as upstanding citizens.  It does beg the question; “Is your employment screening program strong enough to vet these individuals?”  We now have three states; California, Colorado and Kentucky releasing inmates early.  Is your state next?

Do Early-Release Programs Raise the Crime Rate?

Americans famously overspent during the 1990s and early ’00s. It’s a familiar story: we mortgaged oversized homes to buy colossal TVs. But you may have heard less about another commodity we binged on: justice. Americans indulged in an enormous criminal-justice spending spree during the past 25 years, locking up more and more offenders (particularly for drug-related crimes) for longer and longer sentences. Total spending on incarceration rose from $39 per U.S. resident in 1982 to $210 per resident in 2006, according to the most recent figures from the Justice Department. We now spend $62 billion a year on corrections, and about 500 of every 100,000 Americans are behind bars. As recently as the 1970s, the figure was only 100 in 100,000.

Owing to budget crises, many states are now having trouble affording to keep so many people locked up. Some states are cutting incarceration expenses by consolidating prisons; some are trying to slash prison-food and health-care costs. But real savings come only when you reduce prison populations, and so some states — including California, Colorado and Kentucky — have begun releasing inmates early. “The pressure in state legislatures all over the country is to bring down the populations, because we just can’t afford the level of punishment that we’ve had the last 20 years,” says Joan Petersilia, a criminologist at Stanford Law School.

Criminologists say little research has been conducted to determine whether early-release initiatives lead to higher crime rates, although some prisoners who get out will undoubtedly commit crimes that they wouldn’t have been able to commit if they were still behind bars. “There’s no risk-free early-release program,” says Jeremy Travis, president of John Jay College of Criminal Justice in New York City. But early release doesn’t simply mean opening the gates and letting inmates run for it. No state is freeing sex offenders, murderers or habitually violent criminals. Most inmates who are eligible for early release are those who were caught with relatively small amounts of drugs. And generally, early-release guidelines require that inmates be within six months of their official exit date.

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Recently a long awaited study was published on the recidivism rates of ex-criminals in the United States.  This study known in our industry as the “Blumstein Study” examined New York State Arrest records for more than 88,000 individuals who were first arrested in 1980.  Their recidivism rates were followed for 27 years through 2007.  The study which was published in the Journal of Criminology was conducted by Carnegie Mellon Professor Alfred Blumstein and Co-Author Kiminori Nakamura.

To summarize the report, ex-offenders do in fact have a high rate of recidivism within the first five years after arrest.  However, the study suggests that for offenders who “stay clean” for five years or more are much less likely to get arrested.  They suggest that after five years they are almost as likely to commit a crime as the rest of the general population of the United States.

The study is timely and important for many reasons.  First, the Obama administration has made it a point to break down those barriers for individuals who have committed crimes to gain employment.  Secondly, the EEOC has a mission to ensure a disparate class of ex-offenders is not created in the Untied States.  The problem is that the study has a lot of holes.

Noted employment screening industry experts and members of the National Association of Professional Background Screeners (NAPBS)  have commented on this study for months.   This week  Security Management Magazine published a great article on the topic.  One well respected expert concluded that because the study was limited to New York state it fails to find those criminals who may have committed crimes in other states.  Blumstein acknowledges this and expects that might lead to a 10 percent increase in the risk findings after that data is added.  The same expert also notes that because the study only looks at arrests and not convictions the true sample size is greatly reduced.

In my opinion these industry experts are spot on! Having examined the findings of the study I find even more shortcomings.  First, what are the parallels between major crimes and minor ones.  Meaning, how does the recidivism rate for someone convicted of Armed Robbery compare to someone convicted of Petty Theft? Secondly, the study is only able to track the rate of crimes re-committed that the individual has been caught committing.  Many times employees are simply fired and never prosecuted for breaking the law.  Lastly, in the pre-employment screening world, many times we are very concerned with “white collar” crimes.  There is no data on crimes committed at the Federal District Court level.  These crimes could include embezzlement, bank fraud, kidnapping etc..  These are only three examples of where I feel the study falls short.  I will reserve further comments because I feel an article brewing in my head and I don’t want to give it all away here!

In conclusion, the study is very important.  It would have had a huge impact on the recent El Vs. SEPTA case, had it been published a few years back.  It’s also important because it could pose a great defense to employers being sued under the Negligent Hiring doctrine.  What we do know is this; the current administration has made the “ex-offender in the workplace” issue a priority to solve.  The question is do employers want the government telling them which perspective employees are a risk enough to take?

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