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FBI Background Checks and Misinformation: Barriers to Reentry for the Formerly Incarcerated

Justin Casson,
Washington Legislative Office
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June 15, 2010

Last Wednesday morning, the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security held a hearing on the current multitude of hardships encountered by individuals reentering society from prison. Each year, as approximately 650,000 people are released from state and federal prisons, they struggle with substance abuse, lack of education, and inadequate mentorship.

Even those who possess proficient job training are stymied from potential employment opportunities when an FBI background check reveals a past criminal conviction. This is further exacerbated when the report erroneously reflects incomplete information which, according to a 2006 Department of Justice report, plagues over 50 percent of the existing FBI database records (although Daniel Roberts, Assistant Director of Criminal Justice for the Information Services Division of the FBI noted it is being worked on in a recent New York Times op-ed). In some circumstances, a report requested by an employer may even erroneously reveal an arrest for which the applicant was never convicted. During Wednesday’s hearing, Rep. Steve Cohen (D-Tenn.) noted his distaste of this practice, stating, “No one deserves a scarlet letter for life.”

Calvin Moore, a witness invited to testify at the hearing, recounted his childhood in a D.C. suburb, and the 2 ½ years he spent in prison after getting mixed up with drugs. Now 59 years old, Moore is volunteering at the D.C. Employment Justice Center while still searching for a job. Expressing his frustration at the seemingly insurmountable barriers to gaining employment, he said, “The mistake I made over 30 years ago, and already paid for, is still haunting me.” As the FBI conducts over 600 million background checks per year, he is certainly not the only one.

However, acknowledging the shortcomings associated with the current federal records database, as well as the absence of crucial programs to facilitate societal re-entry altogether, Congress is beginning to take steps to address this problem.. Rep. Robert Scott (D-Va.), Chairman of the House Judiciary Subcommittee on Crime, has introduced the Fairness and Accuracy in Employment Background Checks Act as a means to improve the reliability and accuracy of criminal background checks issued by the FBI for employment screening purposes. Because many state records, whether from law enforcement agencies or courts, have not been updated or even included, the FBI database is filled with irregularities. While the ACLU expresses concerns regarding the expansive use of criminal background checks as a condition of employment, we strongly support this measure as a step to improve the current unreliable methods used that bar job applicants from obtaining employment.

In this challenging fiscal climate, to needlessly impede the path to employment of an otherwise competent and upstanding individual is unacceptable. For the characteristics and circumstances leading to an individual’s original incarceration are not unchangeable. Indeed, Moore illustrates the very prospect that a criminal conviction does not permanently prevent one from becoming a positive and contributing member of society. If any one of the 650,000 persons released from prison this year are to have a genuine chance of breaking the formidable recidivism rate, Congress must ensure the proper policies and initiatives are in place to limit the collateral consequences of criminal convictions. It is paramount that following release, potential employees be afforded the legitimate opportunity to verify and challenge the accuracy of incomplete and inaccurate FBI records. As panelist Richard Cassidy, Chairman of the Uniform Law Commission, reiterated during Wednesday’s discussion, “Providing some method of relief is increasingly essential.”

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