Hand getting fingerprinted


Colin McCallin Jan. 30, 2020

The Background

The 1970s, by which time “tough on crime” had become a catchphrase among successful politicians, gave rise to policies whose effects we see even now in the justice system in the U.S. During that decade, sentences previously left to the discretion of judges were instead set out in official guidelines, parole opportunities were reduced in both number and scope, the taxonomy of crime was redrawn with previously minor offenses in more serious categories, law enforcement budgets were increased, and in general the country indulged a spirit of punishing criminals rather than rehabilitating them. Incarceration statistics soon reflected this development, and the overall trend of punishment continued through the 1980s. These changes led to the creation of the prison industrial complex, which we wrote about here. Now, with the benefit of forty-some years’ hindsight, we notice that toughness on crime has changed the course of many American lives, perhaps more lives than necessary. How many Americans today have criminal histories? And to what extent does this affect their interests?

What Qualifies As Criminal History?

Determining the number of people in this country with criminal histories is more complicated than you might think. Do you include only cases ending in conviction? Only cases that go to court? All traces of police contact? Commonly, arrest records on felony charges are the benchmark of a criminal history, since such arrests, whether or not they end in conviction, cause a lasting entry to be created in an FBI database. By this standard, 73.5 million, or 29.5%, of American adults have criminal history. In comparison, 33.4% of American adults have college degrees. Including arrests on misdemeanor charges would raise the criminal history figure dramatically—misdemeanors account for around 80% of all state dockets—but since those minor offenses do not make it into the FBI’s registry, they have never been counted.

Is There a Problem Here?

When nearly as many people have criminal history as have a post-secondary degree, a hard look at the system that produces that result, to ensure that it is doing more good than harm, would seem to be in order. Obviously, the subject of a criminal history that includes a conviction will have, on average, more trouble than otherwise securing housing and employment, but what about histories in which no conviction is entered? Do those records hinder people’s chance to prosper? The answer is it depends. Although an arrest by itself does not typically show up on some background screens, mistakes are sometimes made and records unattached to a conviction are disclosed. Other services will return any police contact that resulted in an arrest, even if those charges were dismissed the next day. How unfair would it be for someone to be arrested, charged in an untenable criminal case that is shortly dismissed, and then turned down for a job years afterward because the record of their arrest is still moving through cyberspace?

While there is a clear trend in many states to promote sealing or expungement of criminal records, such as with Colorado’s new sealing statute, this trend is just beginning. Each state decides on its own how to handle sealing, and some have not changed their laws regarding this issue for some time. Others have enacted laws less permissive than before. In the end, the only criminal history it is completely safe to have is no criminal history at all, but many Americans have more.