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Our criminal records system is more punitive than the US
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FairChecks finds criminal record disclosure requirements in England and Wales much more punitive than the US.

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Fairchecks report

A new (29 January 2024) report from the FairChecks campaign compares criminal record disclosure requirements in England and Wales with five U.S. states and finds that our system is much more punitive. Researchers at Reed Smith LLP have compared what appears on criminal record checks in England and Wales and five US states: California, Connecticut, Utah, New Jersey, and Oklahoma. The information listed on criminal record checks depends on the type of offence someone has committed and the type of check a job is eligible for. Therefore, to get a clear and comparable view of each system, researchers explored the criminal record implications of five specific scenarios in each jurisdiction.

In three out of five scenarios, the England and Wales system is more punitive than any of the five US states. In the other two scenarios, the England and Wales system is similarly punitive to certain states, and more punitive than others.

Context

The problem is well known. One in six people in England and Wales have a criminal record. But 27% of UK employers say they wouldn’t hire someone with a conviction. Criminal records checks are requested by employers as part of the recruitment process and these checks reveal offences and sentences, from prison sentences to police warnings for minor crimes.

Employment is a key factor in preventing future offending. But people with criminal records are often trapped in the past, unable to find stable work and contribute their talents to society because of their record.

Other countries, like the US, have begun taking steps to solve the issue and help people with criminal records into employment by changing what is revealed on checks and for how long. The report looks at how we compare with a country whose justice system we generally regard as much more punitive than our own.

The research

The information listed on criminal record checks depends on the type of offence someone has committed and the type of check a job is eligible for. Therefore, to get a clear and comparable view of each system, researchers explored the criminal record implications of five specific scenarios in each jurisdiction.

In three out of five scenarios, the England and Wales system is more punitive than any of the five US states. In the other two scenarios, the England and Wales system is similarly punitive to certain states, and more punitive than others.

Findings

The researchers, led by Alexandra Kimmons, concluded:

“It is clear that criminal record disclosure requirements in England and Wales are much more punitive than the five U.S. states we have researched. In Oklahoma, Utah and New Jersey, convictions can often be expunged or pardoned, meaning that a background check will not reveal them.

“In other states, such as California and Connecticut, employers cannot access information on childhood convictions and many offences are sealed automatically so that employers cannot see them. This allows individuals with past convictions a degree of comfort in knowing that future career prospects will not be hindered by the past. Neither position is replicated in England and Wales.”

Real world consequences

One of the scenarios explored in the report is Rich’s story. Rich was convicted of drug possession 12 years ago. In all five US states explored, he can delete the conviction from his record after a maximum of 10 years and move on with his life.

In England and Wales, Rich’s conviction will show for the rest of his life on the detailed checks required for many roles such as teacher, nurse, accountant, or taxi driver. He will constantly face the fear, and very real prospect, that employers will discriminate against him based on his record.

The table below, reproduced from the report, provides an overview of the comparison.

Campaigning for change

FairChecks campaigns for people with criminal records need a fair chance to fulfil their potential. The organisations is calling for a full review of the criminal records disclosure system in England and Wales. In the short-term, FairChecks has three stepping stone policy recommendations which would free thousands of people from the enduring impact of a criminal record:

  1. Wipe the slate clean for childhood offences
  2. Remove cautions from criminal record checks
  3. Stop revealing short prison sentences forever

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