Criminal Background Checks in the Helping Professions
Our systems need to embrace the human capacity for change and recovery
By Kevin Doyle, EdD
Checking the criminal background or history of an individual seeking employment may seem at first glance to be a logical, innocuous, even routine activity. But it is far from that in the helping professions. A deeper dive is worthwhile and, one could, argue, critical at this time of workforce challenges unlike that faced in decades, with greater demand/need for services than perhaps ever before for those with mental health and substance use disorders.
Simply put, criminal background checks consist of a review an individual’s criminal history when assessing whether to allow that individual to enter or continue in the workforce. There are many issues, however, that make the execution of this process fraught with challenges and potentially counterproductive.
An important consideration is that of timeline and circumstance; in other words, how long it has been since the criminal activity/conviction, and what was the context? In some states, employment bans are permanent. That is, someone with a certain conviction may never work in a human services setting. This restriction should be reserved for only the most serious of offenses and even then there should be a provision for review or appeal. An offense occurring when a person was in the late teens or early 20s could mean an employment ban of up to 50 years, even if there has been no subsequent legal system involvement. Likewise, the circumstances around the conviction should be considered. If the conviction occurred, for example, during the active phase of addiction, and the individual has subsequently and demonstrably been in recovery, a person should not be ruled out automatically as a candidate for a position in the helping professions.
A second consideration is that of structural inequities. A plethora of data exist to indicate that people of color and members of lower socioeconomic groups are far more likely to be charged with, and convicted of, crimes than White people and those of higher socioeconomic groups. More affluent people have the benefit of more highly trained (and expensive) attorneys than those routinely provided to people of lower means. In addition to the higher potential to be found ‘not guilty,’ these individuals may enter into a plea agreement or be found guilty of a lesser offense — one that does not carry with it the employment ban that a higher-level conviction (i.e. a felony vs. a misdemeanor) might.
Finally, there is the concept of double jeopardy — or more accurately, double punishment. Many are familiar with the phrase “paid one’s debt to society,” which describes an individual having fulfilled all legal requirements, such as jail/prison time, fines and restitution, probation/parole, etc. With employment barriers, however, an individual continues to experience life consequences far beyond those imposed by a court. Action against a professional license or certification, or outright employment bans, constitute another barrier, similar to what Michelle Alexander has written about in The New Jim Crow: Mass Incarceration in the Age of Colorblindness, preventing marginalized and oppressed groups from overcoming societal obstacles to equity. In other words, the status quo is perpetuated in subtle but effective ways, making it much more complex than asking people to work hard to achieve results.
All of these issues reflect the need for additional structural work to support individuals who are attempting to overcome past issues to become fully contributing members of society. Counselors, by virtue of our professional identity, embrace the concept of change; in fact, it is at the core of most counseling interactions. Clients seek help to address, or change, something in their life that is not satisfactory, such as a relationship, a job, self-worth, etc. If we do not address systemic barriers that perpetuate a person’s identity — regardless of changes made — we risk acting inconsistently with one of the core principles of the profession, namely that individuals, couples and families, are capable of, and can and do, change.
In what seems to be an increasingly litigious culture, cautious attorneys advise us not to assume the apparent undue risk of hiring a person who has been convicted of a crime in the past. The easy way out is to avoid hiring such an individual; after all, who wants to be responsible if something negative were to happen? Acting in this way, however, only perpetuates a system that is inherently flawed — and prevents the very people we are charged with helping from assuming a contributing role in society.
Employment practices, licensing laws, and similar structures should be looked at through a different lens, one that considers what the individual has become not what the individual was at a time in the past.