A couple of weeks ago, we passed SB 731, which is another round in a set of efforts to give people with criminal records a fighting chance in life, and in the job market in particular. This Vox article (one of their better “explainers”) comprehensively lays out what the bill will do:
If signed, SB 731 would significantly expand automatic sealing eligibility for people who served time in prison. And while people with violent, serious felony records would not be offered the automatic “clean slate,” they could, for the first time, petition to have their records sealed. Virtually all ex-offenders, except registered sex offenders, would now be eligible for relief.
Under SB 731, while landlords and most employers would not be able to view expunged records, public and private schools would still be able to review them during job background checks. Law enforcement, courts, and the state justice department would also still have access to the sealed records, and individuals would be required to disclose their criminal history if asked about it when applying to serve in a public office, among other exceptions. And the law would not apply to sex offenders.
If signed into law, record relief would become available for most defendants convicted of a felony on or after January 1, 2005, if they had completed their sentence and any remaining parole and probation, and had not been convicted of a new felony offense for four years. Advocates originally wanted records sealed after two years, but that version failed to clear the state assembly a year ago.Rachel Cohen, “California could give more than a million people with criminal records a fresh start,” Vox, Sep. 9, 2022
If you’re unfamiliar with background checks, you’d be stunned by the sheer number of occupations and life transitions that require clean criminal records. It’s pervasive and it has a deeply unsavory racial aspect. David McElhattan of Purdue University found out that, between 1983 and 2013, the number of institutional thresholds where background checks frighteningly mushroomed, and not only that: The rate at which state institutions adopted background checks increased as African-Americans represented larger shares of state criminal record populations. McElhattan also found considerable support for racial economic threat and, to a lesser extent, ethnic economic threat–and only a weak association between background checks and violent crime.
A few years ago, I was part of a statewide effort to give people with criminal records the ability to at least get through the first stage of employment screening, which resulted in the Ban the Box initiative. Not only did we believe this would lead to less discrimination against people with criminal records, but we thought it would minimize employers’ use of criminal records as a proxy for race. I wrote about this experience here, and especially about its aftermath: to my deep disappointment, my colleagues Jennifer Doleac and Benjamin Hansen found out that employers, unable to discriminate against people based on their criminal record, went back to… discriminating by race as a proxy for criminal records. I concluded that race in America has a protean quality that makes discrimination pop up somehow, no matter what we try to do to undo it. This led me to the bitter observation that any effort to curb overt racism (such as in Foster v. Chatman) seems to just drive the racism underground. What prosecutors once did by scribbling notes at the margins of their work product, they probably now do via snapchat.
This doesn’t mean we have to stop trying, and I’m glad we’ll have a chance to see whether SB 731 works as planned. But my problem with the incompleteness of this bill goes deeper than that: like pretty much everything else I’ve been paying close attention to in the last few years, the people left outside this bill are precisely the people who would benefit the most from it, and the surest bets on clean slate proposals. I refer to people released from prison after serving very long stretches of time for, well, violent crime.
As I explained in Yesterday’s Monsters, and as we further explain in FESTER, any time leniency or mercy comes up, politicians and the public are conditioned to create an exception for “violent offenders”, which we imperfectly define as people convicted for violent crimes. For the many reasons that my colleague David Sklansky explains in his new book, it is not always clear what counts as a “violent crime”–and for the reasons my colleague Susan Turner has repeatedly explained, there isn’t really much of an overlap between the crime of conviction and the risk the person actually poses.
There is an excellent reason for this, which I’ve come to refer to as “the age-violence knot”: people who are convicted of violent crimes are sentenced to long stretches–sometimes decades–in prison. Because of that, when they come out, sometimes after numerous hearings, they are much older–and are now an important demographic in California (a quarter of our prison population is over 50.) Tomorrow is my 48th birthday, and I have increased appreciation of the way age changes mentality–and I, of course, benefit from freedom, loving people, resources, an excellent education, a comfortable job, a lot of sports, and healthy nutrition. Imagine what 20-30 brutal years in these areas do to a person’s body and soul. We know people tend to age out of violent street crime in their late 20s; they become far less risky and far more expensive (healthcare-wise) the more they are incarcerated. My fieldwork for Yesterday’s Monsters included visiting places in which parole agents spoke with a lot of respect and care about these aging folks, many of them lifers, as mature, nonviolent, mentoring influences both in the yard and on the outside. These are precisely the people that are already going to face a ton of discrimination in the job market because they’d be fighting for jobs against much younger candidates, and with a complicated résumé to explain. The advantages of giving these folks a leg up are manifold, and the only reason we don’t do it is the murky political optics of “forgiving violent people.” As long as we exclude this group, we’ll continue to miss out on getting the most bang out of the reentry buck, and it’s beginning to feel like I will have to sing this refrain for many more years of my career.