Work over prison: Illinois should expand record sealing

Research shows that recidivism rates drop for ex-offenders who are able to find steady employment.

More than 90 percent of employers in the U.S. conduct criminal background checks for some applicants, and more than 70 percent of employers conduct criminal background checks for all job applicants, according to a 2012 study from the National Consumer Law Center.

Through this process, ex-offenders are often disqualified from job openings, even if they’re qualified for a position.

And if ex-offenders can’t find work, they won’t be able to get back on their feet; or provide for their families; and many can’t afford basic necessities such as food and housing.

This isn’t just hypothetical – it happens every day. And when ex-offenders can’t find work, they’re more likely to re-enter prison. Nearly 50 percent of ex-offenders in Illinois are back in prison within three years.

But a job changes that. Illinois ex-offenders who are employed a year after release can have a recidivism rate as low as 16 percent, according to research from the Safer Foundation.

And it’s a problem that doesn’t just affect the individual struggling to find work. Taxpayers have a major incentive to support rehabilitation over recidivism. Each instance of recidivism in Illinois costs, on average, approximately $118,746, including costs borne by taxpayers and victims, according to a report by the Illinois Sentencing Policy Advisory Council.

So how can the state make it likelier that ex-offenders can find work instead of resorting to crime?

By removing barriers preventing them from getting a good job. One reform: expanding eligibility for record sealing.

Record sealing isn’t a free pass to erase a person’s criminal history – anyone who wants to have his or her record sealed must make it through an adversarial process in the courts. First, the person has to file a petition with a judge. This triggers notification of law enforcement officials, who have the chance to oppose sealing the record if they believe the ex-offender still poses a public safety risk. If there is no objection and a judge approves the petition, the ex-offender’s record is closed to most viewers, except for law enforcement agencies and employers in sensitive fields such as schools and financial institutions.

The problem is that many ex-offenders don’t even have a shot at the process.

House Bill 2373, sponsored by state Rep. Camille Lilly, D-Oak Park, would expand eligibility, allowing ex-offenders with previous nonviolent, nonsexual felony convictions to apply to have their records sealed from view by many private employers.

Illinois should also eliminate the waiting period that currently exists before a person may apply to seal his or her record – if that person is rehabilitated, there is no reason to make him or her wait an arbitrary amount of time before petitioning for a better shot at employment. Making that person wait only increases the likelihood that he or she will not be able to make a living.

Record sealing rules don’t have any effect on a person’s digital footprint. So even if a judge decides to seal someone’s record, that doesn’t necessarily mean she has a fresh start. To have the most meaningful impact possible, state lawmakers should also reform negligent hiring liability laws. Employers are rightly concerned about liability issues related to hiring. Employer liability rules should be limited to cases in which an employer knew of the conviction, the charge was directly related to the nature of the employee’s work, and the conduct that gave rise to the alleged injury is the basis for the lawsuit. Colorado has adopted similar reforms in recent years. In Illinois, House Bill 665 would change the state’s law so that a cause of action may not be brought against a party solely for hiring an employee or independent contractor who has been convicted of a nonviolent, nonsexual offense. Under this bill, a lawsuit may only be brought if the conviction was directly related to the nature of an employee’s or independent contractor’s work, and the conduct that gave rise to the alleged injury that is the basis of the suit.

Reforms such as record sealing expansion and negligent-hiring liability make it likelier that ex-offenders will be able to find work – and stop cycling in and out of prison. That means they and their families will have a chance to succeed. And the more ex-offenders enter this virtuous cycle – instead of returning to prison – the better off the state and taxpayers will be, too.