Criminal Records: A Modern Day Scarlet Letter

Date Filed: 02/16/2018

Over the last several decades, the number of Americans who have contact with the criminal justice system has increased at an alarming rate.  While in 1980 the number of people incarcerated in America was about 500,000, by 2008 it had more than quadrupled to 2.3 million.  The United States now incarcerates more people than any other country in the world.  As a result of our nation’s drive towards mass incarceration, today over one in four Americans has a criminal record.  Many of those records are for arrests that did not lead to convictions or convictions for non-violent offenses, such as drug possession.

Criminal record rates are not evenly distributed throughout the population.  As a result of racial profiling and discriminatory criminal justice policies, African Americans and Latinos are far more likely to have arrest and conviction records than whites.  For example, even though African Americans make up less than 14% of the population, they account for 28% of all arrests.  A recent study found that the share of adult males that has ever been imprisoned was 16.6% for African Americans and 7.7% for Latinos, but only 2.6% for whites.  

The punishment for a criminal conviction does not end once a person has served his time:  people with criminal records face tremendous barriers when they re-enter society.  Many employers exclude any applicant with a criminal record.  Similarly, many public housing authorities have overly broad criminal records policies that exclude tenants and sometimes even visitors who have criminal records, even for minor offenses.  A criminal record can also make a person ineligible to receive some forms of public assistance.  Policies that deny people with criminal records such vital opportunities and resources are both unfair and unjust.  They also undermine public safety:  research has shown a clear link between access to gainful employment and stable housing and the likelihood that a person will reoffend.   

Criminal records policies that are overly broad and unnecessarily restrictive may also violate federal and state antidiscrimination laws.  The United States Equal Employment Opportunity Commission (EEOC), the federal agency tasked with enforcing federal employment antidiscrimination laws, recently issued updated guidance concerning employers’ use of arrest and conviction records when hiring, promoting, or deciding whether to retain employees.  According to the EEOC, policies that exclude applicants with criminal records may violate the law if they disqualify large numbers of racial minorities and are not justified by a sound business reason.  The federal agency also warned employers that policies that automatically disqualify people with any criminal record are particularly troubling. 

The NAACP Legal Defense and Educational Fund (LDF) recognizes the devastating and long-lasting effects that these criminal records laws and policies are having on Americans in general, and communities of color in particular.  Through litigation, legislative reform, and public education, LDF is committed to reforming the manner in which criminal history is used to ensure that no one is unfairly denied opportunity because of a past mistake.

Read more about LDF’s efforts to expand job opportunities for those who’ve earned a second chance: