By Gary Fields and John R. Emshwiller
America has a rap sheet.
Over the past 20 years, authorities have made more than a
quarter of a billion arrests, the Federal Bureau of Investigation
estimates. As a result, the FBI currently has 77.7 million
individuals on file in its master criminal database--or nearly one
out of every three American adults.
Between 10,000 and 12,000 new names are added each day.
At the same time, an information explosion has made it easy for
anyone to pull up arrest records in an instant. Employers, banks,
college admissions officers and landlords, among others, routinely
check records online. The information doesn't typically describe
what happened next.
Many people who have never faced charges, or have had charges
dropped, find that a lingering arrest record can ruin their chance
to secure employment, loans and housing. Even in cases of a
mistaken arrest, the damaging documents aren't automatically
removed. In other instances, arrest information is forwarded to the
FBI but not necessarily updated there when a case is thrown out
locally. Only half of the records with the FBI have fully
up-to-date information.
"There is a myth that if you are arrested and cleared that it
has no impact," says Paul Butler, professor of law at Georgetown
Law. "It's not like the arrest never happened."
When Precious Daniels learned that the Census Bureau was looking
for temporary workers, she thought she would make an ideal
candidate. The lifelong Detroit resident and veteran health-care
worker knew the people in the community. She had studied psychology
at a local college.
Days after she applied for the job in 2010, she received a
letter indicating a routine background check had turned up a red
flag.
In November of 2009, Ms. Daniels had participated in a protest
against Blue Cross Blue Shield of Michigan as the health-care law
was being debated. Arrested with others for disorderly conduct, she
was released on $50 bail and the misdemeanor charge was
subsequently dropped. Ms. Daniels didn't anticipate any further
problems.
But her job application brought the matter back to life. For the
application to proceed, the Census bureau informed her she would
need to submit fingerprints and gave her 30 days to obtain court
documents proving her case had been resolved without a
conviction.
Clearing her name was easier said than done. "From what I was
told by the courthouse, they didn't have a record," says Ms.
Daniels, now 39 years old. She didn't get the job. Court officials
didn't respond to requests for comment.
Today, Ms. Daniels is part of a class-action lawsuit against the
Census Bureau alleging that tens of thousands of African-Americans
were discriminated against because of the agency's use of arrest
records in its hiring process. Adam Klein, a New York-based
plaintiff attorney, says a total of about 850,000 applicants
received similar letters to the one sent to Ms. Daniels.
Representatives for the Census Bureau and the U.S. Justice
Department declined to comment. In court filings, the government
denied the discrimination allegation and said plaintiffs' method
for analyzing hiring data was "unreliable" and "statistically
invalid."
The wave of arrests has been fueled in part by unprecedented
federal dollars funneled to local police departments and new
policing tactics that condoned arrests for even the smallest
offenses. Spending on law-enforcement by states and local
governments hit $212 billion in 2011, including judicial, police
and corrections costs, according to the most recent estimates
provided to the U.S. Census Bureau. By comparison, those figures,
when adjusted for inflation, were equivalent to $179 billion in
2001 and $128 billion in 1992.
In 2011, the most recent year for which figures are available,
the Bureau of Justice Statistics put the number of full-time
equivalent sworn state and local police officers at 646,213--up
from 531,706 in 1991.
A crackdown on what seemed like an out-of-control crime rate in
the late 1980s and early 1990s made sense at the time, says Jack
Levin, co-director of the Brudnick Center on Violence and Conflict
at Boston's Northeastern University.
"Zero-tolerance policing spread across the country after the
1990s because of the terrible crime problem in late '80s and early
1990s," says Mr. Levin.
The push to put an additional 100,000 more officers on the
streets in the 1990s focused on urban areas where the crime rates
were the highest, says Mr. Levin. And there has been success, he
says, as crime rates have fallen and the murder rate has
dropped.
But as a consequence, "you've got these large numbers of people
now who are stigmatized," he says. "The impact of so many arrests
is catastrophic."
That verdict isn't unanimous. "We made arrests for minor
infractions that deterred the more serious infractions down the
road," says James Pasco, executive director of the Fraternal Order
of Police, which represents about 335,000 officers. "We don't
apologize for that. Innocent people are alive today and kids have
grown up to lead productive lives because of the actions people
took in those days."
At the University of South Carolina, researchers have been
examining other national data in an attempt to understand the
long-term impact of arrests on young people. Using information from
a 16-year-long U.S. Bureau of Labor Statistics survey, researchers
tracked 7,335 randomly selected people into their 20s, scrutinizing
subjects for any brushes with the law.
Researchers report that more than 40% of the male subjects have
been arrested at least once by the age of 23. The rate was highest
for blacks, at 49%, 44% for Hispanics and 38% for whites.
Researchers found that nearly one in five women had been arrested
at least once by the age of 23.
They further determined that 47% of those arrested weren't
convicted. In more than a quarter of cases, subjects weren't even
formally charged.
It can be daunting to try to correct the record. In October
2012, Jose Gabriel Hernandez was finishing up dinner at home when
officers came to arrest him for sexually assaulting two young
girls.
Turns out, it was a case of mistaken identity. In court
documents, the prosecutor's office acknowledged that the "wrong
Jose Hernandez" had been arrested and the charges were dropped.
Once the case was dismissed, Mr. Hernandez assumed authorities
would set the record straight. Instead, he learned that the burden
was on him to clear his record and that he would need a lawyer to
seek a formal expungement.
"Needless to say, that hasn't happened yet," says Mr. Hernandez,
who works as a contractor. Mr. Hernandez was held in the Bexar
County jail on $150,000 bond. He didn't have the cash, so his wife
borrowed money to pay a bail bondsman the nonrefundable sum of
$22,500, or the 15% fee, he needed to put up. They are still
repaying the loans.
Exacerbating the situation are for-profit websites and other
background-check businesses that assemble publicly available arrest
records, often including mug shots and charges. Many sites charge
fees to remove a record, even an outdated or erroneous one. In the
past year Google Inc. has changed its search algorithm to
de-emphasize many so called "mug-shot" websites, giving them less
prominence when someone's name is searched.
On Friday, California Gov. Jerry Brown signed into law a bill
making it illegal for websites to charge state residents to have
their mug shot arrest photos removed.
In 2013, Indiana legislators approved one of the most extensive
criminal record expungement laws in the country. The law was
sponsored by a former prosecutor and had a range of conservative
Republican backers. One had worked as a mining-company supervisor
who frequently had to reject individuals after routine background
checks found evidence of an old arrest.
"If we are going to judge people, we need to judge them on who
they are now, and not who they were," says Jud McMillin, the bill's
chief sponsor.
The "growing obsession with background checking and commercial
exploitation of arrest and conviction records makes it all but
impossible for someone with a criminal record to leave the past
behind," concludes a recent report from the National Association of
Criminal Defense Lawyers.
Further analysis by the University of South Carolina team,
performed at the request of The Wall Street Journal, suggests that
men with arrest records--even absent a formal charge or
conviction--go on to earn lower salaries. They are also less likely
to own a home compared with people who have never been
arrested.
The same holds true for graduation rates and whether a person
will live below the poverty line.
For example, more than 95% of subjects without arrests in the
survey graduated high school or earned an equivalent diploma. The
number falls to 84.4% for those who were arrested and yet not
convicted.
Tia Stevens Andersen, the University of South Carolina
researcher who performed the analysis, says the results are
consistent with what criminologists have found. The data,
especially when coupled with other studies, show that an arrest
"does have a substantial impact on people's lives," she says. That
is in part because "it's now cheap and easy to do a background
check."
According to a 2012 survey by the Society for Human Resource
Management, 69% of employers conduct criminal background checks on
all job applicants. Fewer than that--about 58%--allow candidates to
explain any negative results of a check.
Mike Mitternight, the owner and president of Factory Service
Agency Inc., a heating and air-conditioning company in Metairie,
La., worries that if he turns down a job applicant because of a
criminal record, he could be open to a discrimination claim. But
hiring the person could leave him open to liability if something
goes wrong. "I have to do the background checks and take my
chances," says Mr. Mitternight. "It's a lose-lose situation."
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John and Jessica Keir, of Birmingham, Ala., have tried various
means to combat their arrest stigma. In 2012 the married couple was
accused of criminal mischief for scratching someone's car with a
key. They were found not guilty at trial.
In January of last year, Ms. Keir, a law-school student, googled
herself. "My mug shot was everywhere," she recalls. "I was just
distraught."
Though she was in the top 15% of her first-year class at
Cumberland School of Law School in Birmingham, she says about a
dozen law firms turned her down for summer work. Since she rarely
made it to the interview stage, she feared her online mug shots
played a role. Eventually, she landed a summer position at the
Alabama attorney general's office.
The couple says they paid about $2,000 to various websites to
remove their mug shots. It didn't work, Mr. Keir says. New mug-shot
sites seemed to appear almost daily. Keeping up with them all was
"like playing Whac-A-Mole," says Mr. Keir.
Ms. Keir, who is finishing her law degree at the University of
Alabama, has been using Facebook, LinkedIn and Google to create
enough positive Internet traffic to try to push down negative
information lower in any search-engine results.
Meanwhile, her husband believes he has been caught up in a
separate quagmire. Earlier this year Mr. Keir was hired by Regions
Bank as an information security official. Weeks later, he says he
was let go from his $85,000 job for allegedly lying on his
application.
The 35-year-old Mr. Keir says his firing resulted after failing
to disclose his recent arrest record as well as a number of traffic
violations during his teens that had branded him as a "youthful
offender" in Alabama. He says he didn't lie on his application, and
only recalls being asked about any criminal convictions.
A spokeswoman for Regions Bank, a unit of Regions Financial
Corp., says the company couldn't discuss individual personnel
matters, but says the bank sends applicant fingerprints to the FBI
as part of criminal background check and asks candidates to answer
questions about previous criminal charges and convictions.
Arrest issues don't necessarily abate with age.
Late last year, Barbara Ann Finn, a 74-year-old great
grandmother, applied for a part-time job as a cafeteria worker in
the Worcester County, Md., school system.
"I was a single woman on a fixed income. I was trying to help
myself," she recalls.
Along with the application came fingerprints and other checks--a
process Ms. Finn dismissed as mere formality. After all, she had
lived in the area since 1985, had worked in various parts of county
government and served as a foster parent. Her background had been
probed before.
So she was surprised by the phone call she received from the
school district. Her fingerprints, she says she was told, had been
run through both the state and FBI criminal databases. She was
clear in Maryland, but the FBI check matched her prints to a 1963
arrest of someone with a name she says she doesn't recognize.
Barbara Witherow, a spokeswoman with the school district,
confirms that Ms. Finn had applied for employment and that there
were "valid reasons why" she wasn't considered.
Ms. Finn says she believes her problem might trace back to a
1963 episode when she and a girlfriend had gone to a clothing store
in Philadelphia. The other woman began shoplifting, she says.
Police took both of them into custody, Ms. Finn recalls, but she
was released.
"I never heard any more about it and never thought any more
about it," says Ms. Finn.
Michael Lee is executive director of the nonprofit Philadelphia
Lawyers for Social Equity's Criminal Record Expungement Project and
has been working on Ms. Finn's behalf for months.
The challenge, he says, is expunging a record no one can
find.
An arrest record can only be removed if the local court system
notifies the FBI that it should be taken out of the file. In Ms.
Finn's case, the local authorities say they can't find the original
record.
A Philadelphia District Court document obtained by Mr. Lee and
reviewed by the Journal says Ms. Finn was never charged. A
Pennsylvania State Police spokesman declined to comment.
Mr. Lee has asked for another background check from the state to
try to put the matter to rest. Says Ms. Finn: "I don't want to die
with a criminal record."
Write to Gary Fields at gary.fields@wsj.com and John R.
Emshwiller at john.emshwiller@wsj.com
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