R Street in The Weekly Standard: Ex-Offenders Need Jobs, Not Handouts. But There Are Too Many Regulatory Barriers

The following was published in The Weekly Standard and was authored by Ian Adams.

There's a tragic irony at the heart of American criminal-justice policy. While we invest billions of dollars each year to house inmates in state and federal correctional facilities, our collective willingness to invest falters when it comes to ensuring the formerly incarcerated don't reoffend.

Of the more than 600,000 Americans released from custody every year, two-thirds will be rearrested within three years. What most ex-offenders need isn't a handout, but a job. Alas, landing a job is no easy feat for those with a criminal record. And to at least some extent, bad public policy is to blame.

Study after study have demonstrated that, when the formerly incarcerated can receive training and find work, they are far less likely to reoffend. But the very fields that they are likely to find success in are often subject to occupational-licensing regimes that preclude those who have been convicted of a crime.

Take fingerprinting for one example. Employers obviously should be free to screen potential employees in the ways they feel best align with their goals and mission. For example, a person convicted of a violent offense probably should not be free to work in fields related to public safety. But in other fields, such a measure ends up being overly broad and end up hurting both aspiring employees and consumers.

Proponents of fingerprinting tout it as a way to get the ironclad protection of an FBI cross-referenced background check. In reality, requiring job applicants to provide fingerprints is a quick way to get the wrong impression. The FBI's database is a record of arrests, not convictions. As many as half of all records don't include the final disposition of an encounter with the law. That means that when a person has been acquitted or where the charges were dropped can still show up with a black mark against their name. Given prosecutors' tendency to overcharge, many are branded with serious crimes for which they were never tried or convicted. Further, someone who is convicted for a minor crime that should not disqualify them from employment could also be hampered by being in the system for arrests for larger crimes that didn't result in convictions. And some convicts, knowing that they could be fingerprinted, might avoid applying for jobs.

As a result, the FBI's database is prone to offering false indications about a person's criminal history. That might not be such a hurdle for job applicants were the stakes for would-be employers not so high. Correcting the record is time-intensive and expensive, meaning a false positive can be as good as a rejection.

That's a real problem in an age in which almost one-third of all jobs require a professional license. Driving for a ride-sharing company is exactly the kind of work that would otherwise suit those returning to society, because it requires little more than a smartphone, a car and a friendly disposition.

And ride-sharing has other regulatory issues that create a serious barrier for former convicts: state and local governments impose staggering fines on those who hire drivers who are legally prohibited from driving. In California, the birthplace of ridesharing, the legislature adopted a measure that levies fines of up to $5,000 per violation. By comparison, in Austin, which has stuck closely to its own flawed fingerprint policy, a similar fine is capped at $500 per violation.

While it is absolutely appropriate to enforce sanctions against firms that fail to meet hiring standards, setting those fines at a reasonable level is also important. At $5,000 per violation in California, ridesharing firms are forced to take a very conservative approach to screening drivers for fear of racking up huge fines. But it's not clear that those fines accomplish anything the market wouldn't do on its own. Companies have built-in incentives to protect their customers from harm. Many would opt for rigorous vetting even without the threat of large financial penalties.


Jonathan Haggerty