Criminal background checks are used widely in the U.S. to screen applicants for employment, licenses, housing, and government benefits. State lawmakers instituted many of these requirements, ostensibly with the aim of managing criminal risk in various areas of social life. The present study examines the development of this legal form. Drawing from legislative discourse in the Illinois General Assembly, this study puts forward an endogenous account of constructing criminal risk, showing that lawmakers justified new background check laws largely as a means of filling security loopholes created by prior legislation. While the laws respond to identified criminal risks, the process of expanding background checks itself draws attention to other dimensions of vulnerability, necessitating the addition of new screening requirements. Incremental expansions are further justified on the basis of background screening’s low cost, which, lawmakers argue, creates an obligation to extend the requirements wherever vulnerabilities are identified, particularly when children are potential victims and sex offenders the possible villains. The study shows how security and vulnerability are mutually generative in the area of background screening and discusses implications for understanding this legal form in the context of contemporary American penality.
McElhattan, D. (2018), "“$40 to Make Sure”: Background Check Laws and the Endogenous Construction of Criminal Risk", After Imprisonment (Studies in Law, Politics, and Society, Vol. 77), Emerald Publishing Limited, pp. 99-121. https://doi.org/10.1108/S1059-433720180000077005Download as .RIS
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Criminal background screening is a routine feature of social life in the United States. Alongside a person’s educational record, credit history, and personal references, criminal background checks now act as credentialing mechanisms that shape eligibility for a variety of institutional attachments (Love, Roberts, & Klingele, 2013; Pager, 2003, 2007). State lawmakers have played an important role in extending the social reach of criminal records, enacting background check statutes that govern a broad range of social institutions, including the labor and housing markets, higher education, civic participation, and family life (Bureau of Justice Statistics, 1988, 2006a, 2006b; Jacobs, 2015; Love et al., 2013).
While state criminal justice agencies have maintained systematic criminal history record files for nearly a century (Cole, 2001), 1 the ability to access this information generally is regulated by statute, and lawmakers traditionally had reserved its use for the criminal justice community (Bureau of Justice Statistics, 1988, 2006a, 2006b). 2 However, over the last several decades, lawmakers gradually have carved out exceptions to these standards by instituting background check requirements for certain non-criminal justice purposes (Bureau of Justice Statistics, 1988). As a result of these incremental expansions, criminal record files in the U.S. now are used largely for non-criminal justice purposes. Historical data from the Bureau of Justice Statistics’ annual Survey of State Criminal History Information Systems illustrate the magnitude of the shift. In 1996, for example, state criminal record repositories reported processing 8.5 million background checks: 5.5 million of the searches were for traditional criminal justice purposes related to investigations, prosecutions, and sentencing, while another 3 million checks were performed for non-criminal justice purposes, such as suitability determinations for various types of employment and licensing (Bureau of Justice Statistics, 1997). By 2014, however, the annual number of non-criminal justice checks had increased to 12 million, compared to the 11.6 million checks performed that year for conventional criminal justice activities (Bureau of Justice Statistics, 2014). During a period of declining crime rates, the contemporary American criminal record system now functions as a prominent social screening institution.
While the overall body of statutory background checks has grown substantially, states vary widely in the number of different checks they require and the specific areas of social activity that they target. The present study examines legislative discourse surrounding background check bills introduced in the Illinois General Assembly to explore how diverse areas of social life become inflected with criminal risk and targeted for risk management. The study examines how lawmakers select new targets for background screening and identifies the common frameworks that they draw upon to justify new background check laws.
The legislative discourse reveals that background check laws expand through an endogenous process, whereby lawmakers justify new requirements largely on the basis of the pervasive, yet always incomplete, quality of the existing screening system. Edelman (2005) defines the “endogenous construction” of law as a process through which law is “generated within the social realm that it seeks to regulate” (2005, p. 337). Here, endogeneity refers to a more general process through which an outcome of interest – in this case, the growth of background check laws – serves as a contributor to its own explanation. That is, background check statutes ostensibly respond to the perceived risk of criminality associated with a particular type of social activity, but these risks themselves often are identified through the very process of expanding the screening requirements.
Lawmakers use the language of closing “loopholes” to explain the logic of this process. By new enacting background checks, questions arise as to why similar types of social activity are not covered by the laws. Lawmakers move to fill these gaps by further expanding background check requirements. Security and vulnerability are mutually generative in this process, where the fact of existing background check requirements helps define the danger posed by leaving other, similar areas exposed to criminal risk.
Two additional, linked themes feature prominently in the legislative discourse: the threatening image of violent sex offenders and the low cost of performing background checks. Taken together, these themes frame background checks as a commonsense security bargain: for a low cost to the state, lawmakers can secure vulnerable spaces from the most menacing, unsympathetic offenders. However, the analysis also shows that despite the laws’ justification as a response to these worst-case risks, background check laws ultimately carry a much broader exclusionary potential, as the final versions of the statutes often target a variety of lower-level, nonviolent offenses.
To better situate the rise of background check laws in historical perspective, Fig. 1 shows the cumulative expansion of new screening requirements in Illinois between 1977 and 2013. For a broader context, the figure also displays the state’s historical rates of violent crime and imprisonment. 3 Between the late 1970s and the end of the twentieth century, the number of statutory background checks expanded alongside rising imprisonment rates. However, while imprisonment rates flattened over the later part of the time series, background checks continued to proliferate. The opposing trend with violent crime rates is perhaps more striking: as violent crime declined between the mid-1990s and 2013, the growth of background check laws continued unabated. Claims about causal relationships are of course beyond what these univariates on a single case can offer, but they do indicate that, at least in Illinois, the growth of background screening occurred during a period when rates of violent crime declined and the pace of incarceration slowed. At the very least, it appears that the growth of background screening cannot be explained away as a straightforward response to underlying criminal risk or more general punitive trends.
The present study turns attention to the internal dynamics of the legislative process to examine how lawmakers justify new background check requirements. Because the uses of state-held criminal history records generally are regulated by statute, state lawmakers are the primary actors responsible for incremental expansions that require various non-criminal justice entities, such as employers, license boards, and volunteer organizations, to use this information for screening purposes. Given the central role of state legislators in this process, the proliferation of background checks raises questions about how lawmakers characterize criminal risk, where they locate it in social space, and how they assign responsibility for managing these perceived vulnerabilities.
This study employs a social constructionist approach to address these questions, focusing specifically on the rhetorical dimension of policy-making to investigate how lawmakers characterize the need for increasing numbers of background screening requirements. For social constructionists, policy-making priorities are not given by underlying social conditions themselves; instead, these conditions must be given meaning through a continual process of claims-making and collective reaction (Best, 2008; Stone, 1989). Policy-makers play an important role in the work of designating public problems through rhetorical framings and narrative accounts that promote particular understandings of a given troubling condition (Best, 2008; Gusfield, 1967, 1968; Stone, 1989).
In a more general sense, this analysis of background check laws shares features with research on the process of criminalization, which studies the development of deviant labels and their institutionalization in the domain of criminal law (Becker, 1963; Grattet, 2011; Grattet, Jenness, & Curry, 1998; Jenness, 2004; Jenness & Grattet, 2001; Sutherland, 1950). Statutes that require non-criminal justice entities to perform background checks have emerged as a widespread feature of contemporary American governance, and this proliferation occurred against a regulatory framework that had traditionally limited criminal history record access to law enforcement, judicial, and correctional authorities. Similar to the focus of criminalization research, the growth of background check laws raises questions about the mechanics of institutionalization that account for this emergent legal form. However, while criminalization research generally addresses the problematization of particular behaviors through criminal law, in the case of criminal background screening, social contexts and relations are the targets of the lawmaking process. Background checks expand as lawmakers define greater numbers of social activities, roles, and situations as potentially criminogenic.
This study will refer to institutional attachments as the particular type of social relation that lawmakers regulate through criminal background check requirements. Institutional attachments occur when individuals participate formally in the “major societal institutions including those in the civic, education, economic, and family domains” (Foster & Hagan, 2015 136; see also Brayne, 2014). These attachments often require prospective entrants to possess certain characteristics that policy-makers deem relevant. These criteria, of course, vary by place and time, and certain characteristics that are required in some contexts are deemed irrelevant – or inadmissible – in others. Thus, for example, age, educational credentials, exam scores, citizenship or residency status, language proficiency, and financial background all can form the basis for inclusion or exclusion from certain institutional attachments under American law. By contrast, other characteristics – such as race, gender, national origin, and sexual orientation – that once served as the basis for legally sanctioned exclusion now have been barred from consideration in many contexts. As Pager (2007) observes, criminal records similarly operate as a “negative credential” that can legitimately serve to exclude an individual from certain types of institutional attachments. Background check statutes typically require the exclusion of individuals with a record of certain offenses, and their proliferation focuses attention on how different institutional attachments come to be regulated using this characteristic. The constructionist perspective forces us to consider that these designations may not follow in a straightforward way from the underlying rates of criminal activity associated with these particular social spaces, but instead reflect the representations of criminal risk and vulnerability that emerge from the policy-making process itself.
Scholars of punishment have addressed the broad contours of these issues in a historical perspective, observing that criminal risk increasingly factors into the policies and practices of organizations that are situated outside the traditional domain of the criminal justice system (Ericson & Haggerty, 1997; Garland, 1996, 2001, 2003; Haggerty, 2003; O’Malley, 1992; Rose & Miller, 1992; Shearing, 2001; Simon, 2007). This dispersal and intensification of risk consciousness reflects the distinctive character of governing crime in the current period, as crime control comes to involve diffuse arrangements of responsibility that supplement and extend the conventional role of the state in this area (Garland, 1996, 2001; Shearing, 2001). Garland (1996) uses the term “responsibilization” to capture the logic of this strategy:
These developments are thought to follow from the alignment of several factors: the perceived failure of the state’s formal control authorities as the primary guarantors of public safety (Garland, 1996, 2001); ideological affinities between the new security strategies and neoliberal frameworks of governance (O’Malley & Hutchinson, 2007; Rose & Miller, 1992; Shearing, 2001; Wacquant, 2009); and the cultural and political influence of the crime victims’ movement (Best, 1999; Simon, 2001). Taken together, these developments enlarge the institutional boundaries of crime control beyond the specialized purview of the state, enlisting diverse actors and constituencies in crime policy and security practices.
The recurring message of this approach is that the state alone is not, and cannot effectively be, responsible for preventing and controlling crime. Property owners, residents, retailers, manufacturers, town planners, school authorities, transport managers, employers, parents, and individual citizens – all of these must be made to recognize that they too have a responsibility in this regard. (p. 452)
Accompanying the extended the range of institutions and actors involved in crime control activities, the contemporary period also witnesses an expansion in the set of social relations that are viewed through the lens of criminality. Simon (2007) describes this approach as “governing through crime,” drawing attention to the development of crime as an important framework through which authorities define problems and channel power. Governing through crime makes “crime and the forms of knowledge associated with it – criminal law, popular crime narrative, and criminology – available outside of their limited original subject domains as powerful tools with which to interpret and frame all forms of social action as a problem for governance” (p. 17). As Simon points out, awareness and strategic orientation to crime and its prevention become priorities in the current context. Under this way of thinking, governing a particular institutional attachment by definition involves managing the forms of criminal risk associated with it.
The expansion of mandatory background screening also overlaps historically with the burst of legislative activity related to sex offender surveillance in the early 1990s through the 2000s. During this period lawmakers at the state and federal levels enacted a range of provisions for registering, tracking, and placing residency restrictions on convicted sex offenders (Best, 1990; Jenkins, 1998; Lynch, 2002; Simon, 1998, 2001). As a number of scholars have observed (Jenkins, 1998; Lynch, 2002; Victor, 1998), this wave of lawmaking exhibits features of a classic moral panic (Cohen, 1972), where intense media and policy-making concern about a threatening, highly stylized “folk devil” substantially exceeds the “real and present danger a given threat poses to the society” (Goode & Ben-Yehuda, 1994, p. 156). The excesses of the sex offender panic and the resulting sex offender laws are by now well documented (Jenkins, 1998; Lynch, 2002). However, as scholars of moral panics point out, these outbursts of intense concern also leave institutional “deposits,” carrying implications that extend far beyond the original problem in question (Goode & Ben-Yehuda, 1994).
Characterizations of sex offenders in media accounts and political rhetoric share important affinities with the logic of background screening. In popular understanding, sex offending is a type of deviance that is deeply ingrained, pathological, and driven by impulses that are durable features of the offender’s identity (Jenkins, 1998). Relatedly, the term “sexual predator” calls to mind a deviant who relentlessly pursues “prey” by exploiting gaps in existing security regimes to access new victims (Jenkins, 1998; Lynch, 2002; Simon, 1998). Given these representations, the threat of sex offenders may serve as a valuable symbolic device for justifying background check laws, which take as a central premise the assumption that a record of previous offenses is predictive of future risk. Sex offenders – in the stylized, stereotyped language of politicians and the media – represent an obvious and especially threatening case of the kind of durable criminal propensities that background checks aim to reveal.
In sum, the rise of background screening laws in this particular historical period resonates with a number of broader trends observed by sociolegal scholars. The present study examines how these different themes operate in lawmakers’ justifications for expanding background check laws to cover a wider array of institutional attachments in the contemporary period.
Data and Methods
The data for this study come from transcripts of floor debates in the Illinois General Assembly on bills that introduce criminal background checks. Illinois is a useful entry point to begin examining the proliferation of background check laws for several reasons. Relative to other states, Illinois sits near the center in distributions of factors that are known to affect punitiveness, including demographic composition and Republican Party dominance (Beckett & Western, 2001; Jacobs & Carmichael, 2001). As of 2015, the state’s imprisonment rate ranked 29th among states, putting it slightly below the national median (Bureau of Justice Statistics, 2016). Illinois also sits close to the median among state rates of violent crime (Federal Bureau of Investigation, 2017). Finally, with 139 separate background check provisions in force as of 2013, Illinois is close to the state average of 144 (SD = 70.4). 4
The bills analyzed in this study were identified using two methods. First, the American Bar Association’s National Inventory of the Collateral Consequences of Conviction (NICCC) was used to compile a list of Illinois statutes that contain criminal background check provisions. Statute citations from the NICCC were then searched in Westlaw and HeinOnline to identify the underlying bill that originally introduced each background check. Transcripts of floor debates for each bill were then obtained from the online database maintained by the Illinois General Assembly. This method captured 68 separate bills – nearly the entire set of bills that have established background checks in Illinois through 2013. Because debate transcripts are available only from 1971 onward, one bill – for a 1968 law establishing a check for law enforcement personnel – falls outside the data. 5
Using the second method, these transcripts were supplemented with floor debates on bills introduced in the General Assembly between 2001 and 2013, including those that were not enacted or that address technical aspects of background screening processes. 6 These bills were identified by searching WestLaw’s Illinois transcripts database for language typically contained in background check provisions. 26 bills were identified this way, yielding a total of 94 bills. Lawmakers made substantive commentary on 51 of the bills, and 8 bills that pertained to firearm background checks ultimately were excluded from this analysis of lawmakers’ commentary. Thus, the results below are based on an analysis of speeches on 43 bills.
Table 1 displays the breakdown of the debated bills by the category of institutional attachment covered by the proposed background check provision. A large share of the bills regulates employment (39%), as well as occupational licenses and certifications (22%). The bills also cover housing and residency restrictions, education and occupational training, family life, civic and political participation, and volunteer work, although the bills addressed these topics less frequently.
|Licenses and certifications||22||11|
|Housing and residency restrictions||8||4|
|Education and occupational training||2||1|
|Civic and political participation||2||1|
Notes: aThese bills cover technical issues related to the state’s central repository of criminal history record information. Percentages do not sum to 100, as bills may contain multiple topics.
Coding of the debates proceeded in three stages. First, the full set of transcripts was examined to identify inductively the arguments and rhetorical elements lawmakers used in their statements related to background screening requirements. These elements were then arranged through multistepped coding into thematic categories (Charmaz, 2006). Having identified “loophole” language as a common feature, these statements were then divided into three subcategories that reflect the similarities and differences in the way lawmakers discuss loopholes: implied loopholes, exploited loopholes, and exposed loopholes. This coding scheme was then applied to the full set of debate transcripts. The following section describes the specific features of each loophole category in detail.
Loopholes and the Endogenous Construction of Criminal Risk
In general, lawmakers enact criminal background checks to screen ex-offenders out of institutional attachments where their presence is thought to pose an excessive risk to the public. Background checks establish barriers, and loopholes represent gaps in those barriers. Three types of loopholes are found in legislative discourse on background checks: implied loopholes, exploited loopholes, and exposed loopholes. Implied loopholes exist when a criminal background check is already in place for a type of social activity or entity, but a similar type of activity or entity lacks a background check. For example, a background check may be required for a teaching certificate, but an implied loophole exists if school bus drivers are not required to pass a background check. For implied loopholes, actual evidence of criminal activity is not necessary; the loophole is implied because the absence of a background check exposes people to undue risk. By contrast, exploited loopholes arise when crime – often a highly publicized, gruesome crime – occurs in an area where a background check did not exist. Lawmakers then move to close the loophole with a new background check. Finally, when lawmakers discuss new background checks, they often expose new loopholes in the process. These exposed loopholes represent possibilities for future background check requirements.
Based on this typology, lawmakers used the language of loopholes in 51% of identified debates on background check bills, suggesting that this framework features prominently in justifications for expanding the laws. Out of 43 debated bills, implied loopholes were mentioned in connection with 16 bills (37%), exploited loopholes were mentioned in 8 (19%), and exposed loopholes were discussed in 8 (19%). However, as the examples below illustrate, there often is substantial overlap between the categories, and lawmakers may draw on one or all of the frameworks as they argue for new background checks.
While loophole language was a prominent feature in lawmaking discourse, several points are worth noting to account for the absence of this theme from the other 49% of the debates. First, because the logic of loopholes depends in large part on preexisting background check laws, it is unlikely that earlier debates will feature loophole language. Indeed, the first mention of loopholes happened during a 1993 debate, although Illinois adopted its first background check requirement in 1968. Second, because background checks may be introduced as part of broader legislative packages, lawmakers may make only passing references to the provisions during floor debates. Common themes thus are difficult to identify in these cases. Finally, for the bills that do see extended discussion, lawmakers often raise themes that are closely linked to those discussed below in the context of loopholes, although the speakers do not always tie these topics to loopholes themselves. In such cases, the coding scheme errs on the side of a conservative tabulation.
Provisions that fill implied loopholes draw upon preexisting background checks for their justification. For example, when a lawmaker introduced legislation to extend background checks to home personal assistants, he argued that the new provision is needed because background checks already were in place for several similar occupations:
This proposal simply amends the enabling legislation on home personal assistants to require a background check. Working in conjunction with [Department of Human Services], several of their other employment categories already require these types of background checks including homemakers, nursing home workers, and equivalent home care workers for people that work with development [sic] disabilities. These personal assistants are essentially the same type of category, so this is making those requirements consistent with all categories. (2012 HB 4541, p. 43, Rep. Sosnowski)
For implied loopholes, lawmakers often express surprise that background checks are not already in place. On the same home personal assistant bill, another Representative described her reasoning:
The sponsor of a bill on background checks for nurses used similar language: “Surprise on this Bill was that nurses in the State of Illinois have no background checks whatsoever” (1999 HB 502, p. 220, Rep. Mitchell).
I support his bill […] these are some of the most vulnerable citizens. We hand the keys over, and we send people into their homes […] I think people need more information. And my point in committee was I think a lot of people just assume that we would give a background check […] to potential employees that we’re sending into people’s homes. So, I mean, I was actually kind of amazed that we didn’t do a background check on these employees. (2012 HB 4541, p. 58, Rep. Mell)
Implied loopholes often exist when background check coverage is incomplete for a particular type of institutional attachment. For example, a 2011 bill proposed background checks for juveniles employed by state park districts, although background checks already were in place for adults working in those occupations:
Background checks expand incrementally to fill implied loopholes, often over a period of many years. In this case, the original law requiring background checks for park district employees was enacted in 2000 (70 ILCS 1505/16a-5), yet the new screening requirement was introduced more than a decade later.
House Bill 3129 as amended by the second Floor Amendment we did yesterday basically requires park districts to do […] criminal background checks on minors. This was a request from several park districts. Right now they do background checks on adults but not juveniles. And how the background check works is basically the juvenile has an application, the application is filled out by the juvenile, the police do the background checks and the park district gets the information. (2011 HB 3129, p. 61, Rep. Senger)
Risk and cost are important, linked themes in the debates. Conceptually, risk refers to the likelihood of an event and the magnitude of its effects. Yet, when lawmakers discuss criminal risk, the magnitude of potential harm outweighs consideration of likelihood. This focus on magnitude is tied closely to the relatively low cost of running criminal background checks. Because background checks are inexpensive to perform, their threshold for justification in terms of marginal risk reduction is very low, and the emphasis shifts to the kind of crimes that the checks could prevent. The following speech excerpt on a bill introducing background checks for Internet dating sites illustrates this way of thinking about risk and cost:
This rhetoric is extreme on both sides of the equation: the claim that background checks can be run for less than a dollar is almost certainly inaccurate, 7 and convicted serial killers – the kind that would be flagged by a background check – probably are incarcerated anyway. However, despite its excesses, the argument illustrates the contrasting of potential harm with the relatively low cost of risk management technology. This cost-benefit calculation, according to the lawmaker’s reasoning, amounts to common sense.
This is a very simple bill. I was shocked when I learned from some of my constituents that none of the or very few of the Internet dating sites, which charge member services to find true love and romance, et cetera, provide any kind of background check whatsoever. The cost of doing a very simple routine background check, making sure someone’s not a sex offender or a serial killer, a felon, those types of things, is really inexpensive. It could be done for less than a dollar, dollar and a half. It seems to me like this is good common sense. (2006 HB 5299, pp. 101–102, Rep. Bradley)
Considerations of liability also enter discussions of implied loopholes. The speech excerpt below comes from a bill introducing background checks for camp counselors. Describing the implied loophole, the sponsor points out that Illinois already requires background checks for teachers – another occupation that works with children in a position of trust. And, he argues, because applicants themselves pay the background check fee, this risk management strategy is cost-free from the state’s perspective. Further, the small fee itself is a worthwhile investment because it can help prevent lawsuits:
This bill also shows the slippage that can occur between types of loopholes. In contrast to the other examples earlier, this lawmaker presents evidence of sex crimes perpetrated in the context of the loophole. However, it is not clear that these cases involved individuals with prior criminal records who would have been screened out if background checks were in place.
Ladies and Gentlemen, for many years now recognizing the need to protect our children we required background checks for our schoolteachers. On doing some research on related issues, I discovered only one state in the country has background checks for camp counselors. We did some research and we found dozens of cases around this country of children being sexually assaulted or otherwise abused by adults that were in a position of trust at camps. What this simply would do is set up a provision for a requirement for background checks for camp counselors identical to that we are implementing for teachers in this state […] The cost of the background checks will be borne by the applicant. There is no cost to the state […] even from a camp standpoint, paying $40 to make sure that you do not have a convicted felon in charge of your children is not only prudent money to spend, it’s a lot cheaper than defending a lawsuit down the road. (2004 HB 6951, p. 59, Rep. Fritchey)
In cases of exploited loopholes, lawmakers argue, individuals with prior criminal records were able to use the loophole in background check laws to enter positions of trust and commit crimes. The example below comes from a sponsor’s speech on a bill requiring background checks for childcare providers:
In the speaker’s view, the lack of a background check law for child care providers is distressing in part because background checks already are in place for occupations that he perceives as lower risk.
I’d like to tell you how this came about. In Cook County, the prosecutors are alleging that a young woman caused the death of a young—young baby that was just fourteen months old […] It was last June […] We found out that under current Illinois law, this woman was operating this day care center, she had a criminal background but it did not bar her from getting a licensed care home for children. And if you think about that for a second, in Illinois, a convicted ex-felon can’t get a job mopping floors in a – in a senior citizen home, but a woman who is living a foul life can be licensed to baby-sit […] I find this unacceptable and I find it deplorable. She got a license as a child care provider in the State of Illinois after being convicted of crimes. (2003 SB 110 (a), p. 37, Sen. DeLeo)
Counterfactual thinking also finds its way into arguments for closing exploited loopholes, as lawmakers reason that background checks would have been effective in preventing crimes that occurred in the absence of a background check. For example, on a bill establishing background checks for volunteer fire fighters, a lawmaker noted: “just for the Senate’s history about it, I had a volunteer fire department in my district where one of the firemen was actually setting the fires and then they were going to put them out. So we believe that if this had been in place, then we could have alleviated these problems” (1999 HB 1224, pp. 35–36, Rep. Clayborne). Although a series of arsons prompted the bill, the new law ultimately casts a much wider net, requiring that the background check “report any conviction information” available on applicants (20 ILCS 2605/2605-330).
Lawmakers often use the language of loopholes explicitly when they describe the crimes that prompted the new laws. When background checks were proposed for employees of group care homes, the bill’s sponsor explained the genesis of the new requirement:
A lawmaker used similar reasoning speaking in support of a bill that would institute background checks for carnival workers:
This is a piece of legislation that passed out of the Human Services Committee unanimously yesterday that attempts to tighten the controls on group homes […] in the State of Illinois in response to some total […] truly, truly horrendous abuses that occurred in the homes run by the Graywood Foundation here in Central Illinois where two children were murdered and there were 11 other cases of abuse and neglect that were substantiated […] We’re trying to close these loopholes, prevent this kind of tragedy from ever happening again. (2011 HB 653, p. 56, Rep. Harris)
The argument draws its force from the legislature’s prior efforts toward preventing sex offenders from accessing children. To the extent that lawmakers take that objective seriously, new background checks are justified wherever that vulnerable population is found. In this case, even anecdotal evidence of an exploited loophole lends support to the argument.
[The issue] was brought to me by a local chief of police who was out of uniform at a small community festival […] taking his two young daughters to the circus or the amusement carnival or whatever you want to call it, and the operator of the carnival ride did not know he was talking to the chief of police and went on to regale the chief of police with all of the things he had been charged with, convicted of, and just gotten out of prison and had been railroaded on a sex offender charge and went on and on and on. And this chief of police came to me […] and said, ‘you know what, with all of the work we’re doing on sex offenders, there’s a loophole big enough to drive a Mac truck through and that’s people who come through working for amusement companies.’[…] And I think for those of you who have long memories there was an incident at the State Fair here in Springfield not that long ago, where a young lady was accosted […] They have happened, they happened in Springfield. As a chief of police in my district will testify, he certainly had his eyes opened at a festival in his own community […] It’s time to close off one of the most glaring loopholes in this whole case of people who might abuse or harm children […]. (2007 HB 820 pp. 101–102, Rep. Black)
These references to sex offenders feature prominently in lawmakers’ speeches. In this framing, sex offenders are the most obvious candidates for exclusion from vulnerable areas of social life. However, while the threatening image of the sex offender may serve as the starting point for justifying new background checks, the statutes generally include a much wider range of disqualifying offenses. For example, during a discussion of the types of offenses that would make a person ineligible for a massage therapist license, a lawmaker quipped: “Jeffrey Dahmer might not be the best candidate for a massage therapist in Illinois” (2004 HB 5891, p. 46, Rep. Black). The speaker is referring to a serial killer and sex offender who raped, murdered, and mutilated 17 people in Midwestern states between 1978 and 1991 (Barron & Tabor, 1991). Despite the framing of risk in these worst-case terms, the resulting statute is considerably broader, allowing the licensing department to “take into consideration conviction of any crime under the laws of the United States or any state or territory thereof that is a felony or a misdemeanor or any crime that is directly related to the practice of the profession” (225 ILCS 57/15). Although certain specified crimes, including “prostitution, rape, or sexual misconduct” automatically bar applicants from licensure, the exclusionary reach of the background check has the potential to extend far beyond the kinds of offenses lawmakers used to justify the new law.
Similar framing appeared in the floor debate on the 2003 bill (mentioned earlier) about background checks for childcare facility licenses. Arguing in favor of the bill, one lawmaker asked rhetorically whether, based on an “individual’s moral turpitude as a pedophile, who’s someone who can’t keep his hands off of his own child, do we want him working in our day care centers?” (2003 SB 110 (b), p. 130, Sen. Delgado). Yet, as another lawmaker observed, the disqualifying offenses included in the bill encompassed far more than sex offenses:
The resulting law contains a list of 95 disqualifying offenses, 19 of which are related to drugs, including felony possession of a controlled substance, sale or delivery of drug paraphernalia, delivery of controlled substances, and unauthorized production of more than 5 cannabis sativa plants (225 ILCS 10/4.2). Thus, while sex offenses occupy a prominent place in the legislative discourse on background checks, the laws themselves are considerably broader in their exclusionary potential.
Now, I can understand you not wanting a sex offender to work with children in a day care facility or owning one, but […] vehicular something? Vehicular homicide. Now you’re saying if somebody has an accident and it could very well be an accident, but the court decides to charge him or her with vehicular homicide, they serve their time, when they come out they can’t work in a childcare facility. (2003 SB 110 (b), pp. 128–129, Sen. Davis)
Alternatively, in the context of exploited loopholes, sex offenses can arise as a concern for lawmakers despite the lack of an obvious connection to the incident that prompted the new law. For example, a 2005 bill that established background checks for applicants to Illinois medical schools arose in response to a murder-suicide on a medical campus, and while the underlying crimes did not involve sex offenses, the legislative discourse quickly turned its focus to keeping sex offenders out of the medical professions. Speaking in support of the bill, one lawmaker observed:
The resulting statute listed 14 offenses that could disqualify a person from admission to medical school (110 ILCS 57/20), and the majority – 8 offenses in total – concerned sex crimes: indecent solicitation of a child, sexual exploitation of a child, custodial sexual misconduct, exploitation of a child, child pornography, predatory criminal sexual assault of a child, aggravated criminal sexual assault, and criminal sexual assault.
I think it’s an excellent piece of legislation. And the schools should be aware of people who are on their medical campuses, what they’re going to study and the professions that they are looking to be in. If you have a sex offender who preys on children, would you want that [person] to be a child […] pediatrician? If you have a sex offender who preys on women, would you want that person being your OBGYN? (2005 HB 3801, pp. 57–58, Rep. Graham)
Lawmakers may expose new loopholes in the process of closing others, as new background check bills raise questions about why similar types of social activity are not covered by the requirements. An exchange concerning nursing licenses between two state representatives illustrates how this happens:
Skinner: I wonder if the Gentleman could explain why we’re only going to test newly licensed nurse’s backgrounds, why we’re not going to test all the nurses’ backgrounds?
Mitchell, J: Representative Skinner, that’s a good question […] everything has to start somewhere and I believe that this time that this at least was a good beginning and down the road it will mean that all nurses will have a background check.
As the lawmaker acknowledges, the background check law would apply only to new applicants for nursing licenses, but it does not cover nurses who received their licenses prior to the law taking effect. This gap in background check coverage leaves open a vulnerability that the legislature may address in the future, and, as the speaker points out, it is especially likely to do so if the loophole is exploited.
Skinner: Representative, I agree with you. I predict that the first time there’s an atrocity that you or someone else will be back here asking that all nurses be checked […]. (1999 HB 502, pp. 219–220)
A similar dialogue occurred on a bill covering public school employees, where a lawmaker expressed concern that the new provision did not adequately address the range of individuals who come in contact with children in educational settings:
Eddy: Regional offices of education sometimes employ tutors or other individuals that work in school districts on a daily basis. Does this bill cover those types of non-school district services that are provided at the school level?
Gordon: If it is a person who is employed by the school they are covered […] or the school district, they are covered under this legislation.
Eddy: That […] that’s the concern […] these folks are not employed by the school district. They’re employed either by the regional office of education, in some cases special education cooperatives employ the individual, and those individuals then work onsite at different school buildings. Regional vocational offices employ teachers and it appears to me that from the language of the bill none of those personnel are included here, so that they would not be subject to the same background check, however, they would still be working with students at the site of schools on an individual basis.
Gordon:[…] it does include people who are employed through the regional offices.
Eddy: Does it include specifically employees of special education cooperatives or vocational educational cooperatives or alternative schools or community colleges? Oftentimes community college classes are taught at the high school level […] I believe this bill has a great intention and […] as someone who works in public education I agree that there are loopholes that need to be closed […] would you be willing to pull this bill out of the record to make those changes […] that this Bill simply seems to overlook?
Gordon: […] I take your advice to heart […] I would like the bill to be voted on as written.
The lawmaker identifies the protection of children as the objective motivating the background check requirement for school district employees. Yet, as his comments illustrate, the child protection objective implicates a considerable number of legal relations that fall outside the purview of the new law. In the process of safeguarding one area of social life, lawmakers expose other potentially criminogenic relations, each representing possibilities for further expanding the reach of background checks. This logic was also at work in the bill (mentioned earlier) on background checks for juveniles seeking work in Illinois park districts:
Eddy: That concerns me, Representative, because there are some obvious flaws to your intent. If your intent is to safeguard children at school buildings […] it’s not gonna meet that desire. (2004 HB 3977, p. 37–39)
Franks: […] Are there any instances right now when minors need to be checked for background checks [sic] to get a job?
Senger: […] unlike the school districts that actually receive information from several cases for juveniles who have committed offenses, the park district’s excluded from the information […] we’re using for the same things that the school district [sic] were receiving, but […] we decided not to go that route just to go back to basically the criminal checks that are entitled to the adults for park districts and then others who are employing [sic].
Franks: But like at […] like at a city pool? Because a city pool, for instance, wouldn’t be a park district, but we have a lot of children there. I presume what you’re trying to do […]”
Franks: […] is protect our youth.
Franks: I’m just wondering […] whether […] the exemption of the City of Chicago not having municipal pools, for instance, covered or municipal parks which may not be a park district. I just think the way it’s been drafted, it’s been drafted so narrowly […] I couldn’t in good faith support something like this which is just riddled with these kind of loopholes […] Wouldn’t you want it larger? Wouldn’t you want municipals […]
Senger: I’d be willing to, you know, maybe even work on another Bill down the road to do that.
Eddy: And if a park district […] there’s multiple park districts in my legislative district that also have pools that they are easily part of park districts and so they would be covered if it is a municipal pool maybe not, but you’re willing to make changes of this in the Senate to take care of concerns.
Senger: That’s correct.
This exchange displays the logic of the endogenous construction of criminal risk, where new vulnerabilities come to light in the process of expanding the coverage of risk management. The lawmaker first justifies the bill by explaining that school districts already receive criminal record information on juveniles, couching the new background check law in that precedent. She then points out that the law already requires background checks for adult applicants for park district jobs, implying that a loophole exists for juveniles. In so doing, the lawmaker lays out two comparisons to other laws that justify the new measure: precedent for sharing criminal record information on juveniles, and a preexisting background check governing this particular institutional attachment. A third connection, the objective of protecting children, is emphasized in the discussion with her colleague. By establishing these three linkages, however, the argument for the new background check provision also draws attention to other sites of vulnerability that satisfy the same conditions as the original nexus. Her colleague suggests that this is precisely the case for municipal pools: they are similar to public parks, children frequently use them, and they presumably employ juveniles – yet they would not be safeguarded under the new law. In keeping with her colleague’s suggestion, the version of the bill that passed the Senate and ultimately was enacted extended the background check requirement to cover the City of Chicago (see 70 ILCS 1505/16a-5; 70 ILCS 1205/8–23). 8 As this case demonstrates, exposed loopholes extend the process of endogenous lawmaking. New background checks expand the horizons of risk management, bringing new sites of vulnerability into view by virtue of their proximity to newly secured areas of social life.
Eddy: Thank you. Ladies and Gentlemen of the House, I think multiple times in the last few days we’ve had situations where Bills have not been absolutely perfect. We are against a deadline. The Representative has agreed to work on the issues that have been brought up and this is a very commonsense, reasonable approach to try to protect young children, mostly those […] the venue she’s trying to make sure the background check is accomplished then attract young kids and she’s trying to protect them. I think this is a great Bill. There’s time to work on it in the Senate. We’ve done this on multiple occasions in the last couple days on both sides to help individuals along with a Bill. I’d urge an ‘aye’ vote. (2011 HB 3129 p. 66–68)
During two decades of steadily declining crime rates, criminal background screening emerged as a widespread, commonsense feature of American governance. Prior research has yielded valuable insights about the effects these practices have on ex-offenders, particularly in terms of labor market outcomes and the disproportionate penalty paid by African-American men with criminal records (Alexander, 2010; Holzer, Raphael, & Stoll, 2004; Pager, 2003, 2007; Pager, Western, & Bonikowski, 2009; Stoll & Bushway, 2008; Travis, 2002; Uggen, Vuolo, Lageson, Ruhland, & Whitham, 2014; Vuolo, Lageson, & Uggen, 2017; Western, 2006). Yet, sociolegal scholars have given relatively less attention to the development of this legal form. While technological advancements and liability concerns play important roles (Hickox, 2011; Jacobs, 2005, 2015; Jacobs & Crepet, 2007; Lageson, 2016; Lageson, Vuolo, & Uggen, 2015; Laudon, 1986; Love et al., 2013), the present study draws attention to the rhetorical dynamics surrounding the growth of criminal background check laws in the policy-making arena. The legislative discourse reveals that while background check requirements are instituted in response to perceived vulnerabilities, the process of expanding background checks itself brings new vulnerabilities to light, marking additional institutional attachments as candidates for risk management.
The proliferation of background check laws carries several important implications for understanding contemporary penality in the American context. The fact of background checks’ expansion in an era of declining crime and stabilizing imprisonment rates suggests that we cannot theorize this type of formal control as a straightforward artifact of other better recognized features of American penal excess. For lawmakers, the incompleteness and pervasiveness of the state’s background check laws provide the commonsense justification for further expansion. This logic is all the more effective because background checks are framed as low-cost security measures: at relatively little cost, more background checks could be added in small increments without serious consideration of their marginal contributions to preventing crime. This contrasts with the recent critique of the carceral state that draws together political will from both sides of the ideological spectrum, where policy-makers have begun to reconsider large-scale imprisonment precisely because it now is widely understood as ineffective and expensive (Aviram, 2010, 2015). For background check requirements, however, lawmakers have indicated that neither cost nor effectiveness are salient factors. Instead, the utility of new background checks is found in making exclusionary coverage more complete.
However, it is also important to recognize that civil rights activists have been successful recently in securing reforms of criminal background screening practices. At the time of writing, 27 states and over 150 cities and counties have adopted Ban the Box reforms that regulate how employers use criminal records in the hiring process (Rodriguez & Avery, 2017). Ban the Box laws generally require employers to delay criminal record inquiries until the later stages of the hiring process, typically after an applicant has been selected for an interview or a conditional employment offer has been made. Yet, the laws also leave in place the body of statutory background checks that are the subject of this study. For example, the Illinois Ban the Box law makes exceptions for employers that “are required to exclude applicants with certain criminal convictions due to federal or state law” (820 ILCS 75/15). Empirical evidence suggests that these exceptions are important in terms of maintaining the laws’ exclusionary effects. For example, Stoll and Bushway (2008) find that employing organizations that are legally required to perform background checks are more likely to exclude people with criminal records, compared to employers that perform discretionary checks. As they point out, this difference likely follows from the fact that background check statutes also include sets of automatically disqualifying offenses.
A large share of the laws discussed here target employment and professional licensing, but their reach also extends to a number of other types of institutional attachments. While the areas of education and occupational training clearly are related to the labor market, background checks in these areas are notable in the sense that the “negative credential” of a criminal record can directly inhibit offenders from gaining other “positive” credentials (Pager, 2007). Background checks that enforce housing restrictions, particularly those that apply to nursing homes and other types of assisted living facilities, are also notable. While background checks cover prospective employees in these settings, more recent restrictions extend the coverage to residents themselves.
It is also important to acknowledge that this study did not pursue an analysis of background check requirements related to gun ownership. The language of loopholes features prominently in gun control discourse – to such a degree, in fact, that the “gun show loophole” has become a central point of political mobilization and contention at both the state and federal levels. Given the high-profile nature of the issue, lawmakers are especially voluble on bills related to gun control, and background checks in this area tend to be the most forcefully resisted. However, this study has deliberately bracketed the gun control issue because its size and complexity – due in no small part to the constitutional questions involved – exceed the space permitted here.
There are several other limitations to this study. First, because some bills do not generate any substantive commentary by lawmakers, it is difficult to trace exhaustively the extent to which additional background check laws are passed in response to preexisting statutes. Similarly, although the language of loopholes was used often in the context of relatively recent background check bills, this framework is less effective in accounting for the genesis of early background check laws. That is, early background check laws necessarily lack the loophole justification, and more research is needed into the historical period in which states began eroding the confidentiality norms that reserved criminal history information access for criminal justice agencies.
The third limitation concerns generalization. With 139 separate provisions, Illinois has a body of background check laws that is similar to the national average of 144, but the variation in state requirements is substantial. Further state case studies are needed to determine what alternative frameworks may thwart or accelerate the proliferation of background check laws in different contexts.
Finally, further research is also needed on how the laws expand from the narrow rhetorical focus on sex offenders to cover substantially longer lists of offenses. Sex offender rhetoric has clear advantages for lawmakers, as it tends to contrast the most menacing, unsympathetic offenders at one extreme with a vulnerable, sympathetic population in need of protection – children – at the other. This calculation seems designed to remove the moral ambiguity that would follow from foregrounding individuals with, for instance, records of low-level property or drug offenses as the laws’ intended targets. Further, as others have pointed out, sex offender rhetoric can have wide political appeal, resonating with conservatives who link it to broader concerns about nontraditional sexuality, and with liberals invested in issues related to sexual violence (Jenkins, 1998). If sex offender rhetoric is in fact used in these instrumental ways to foreclose debate on a broader exclusionary project, future research could address the conditions under which background check laws cast a wider net in terms of disqualifying offenses, as opposed to more narrowly tailored exclusions that better match their public justification.
States began establishing centralized bureaus of criminal identification at the turn of the twentieth century. These new agencies were tasked with maintaining statewide criminal identification files supported by fingerprint records and Bertillon measurements (Cole, 2001). Based on the author’s legislative history of the relevant enabling statutes, California established the first bureau of identification in 1905. Other states followed close behind: Massachusetts in 1905 (1905 Mass. Acts 408), New York in 1913 (1913 N.Y. Laws 1185), Vermont in 1915 (1915 Vt. Acts & Resolves 350), and Hawaii Territory in 1917 (1917 Ter. Haw. Laws Act 178). Between 1920 and 1945, another 40 states established bureaus of identification as their central criminal record repositories. Illinois – the subject of this study – created its central repository, the State Bureau of Criminal Identification and Investigation, in 1931 (20 ILCS 2630/8).
There are important legal distinctions between the criminal history record information (CHRI) that states maintain in their central repositories and the types of criminal records obtainable through other sources (Bureau of Justice Statistics, 1988). States generally regulate access to the former through statutory requirements that target specific entities such as license boards or particular types of employers. However, criminal records can also be obtained from courthouses or by contracting the services of commercial data vendors. Court records that contain information about criminal prosecutions traditionally have been open to the public in the United States. Court records differ from CHRI in their comprehensiveness and level of aggregation. CHRI represents a comprehensive list of an individual’s contacts with the criminal justice system of a particular state, and the FBI’s Interstate Identification Index (III) enables national searches of these records. By contrast, courts generally maintain information only on cases processed through their particular jurisdiction. As such, an individual with multiple prosecutions in different jurisdictions will have criminal records scattered throughout various court files. Thus, although criminal records are available in a fragmented form through courts, the jurisprudence on record privacy treats CHRI and its higher level of aggregation as legally distinct, keeping intact states’ ability to regulate access through statutory authorizations. For more on this important distinction, see Belair, R. (1988) “Public Availability of Criminal History Records: A Legal Analysis.” In Open vs Confidential Records: Proceedings of a BJS/SEARCH Conference. Washington: US Department of Justice; see also United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989).
Each enacted bill may contain more than one new background check provision. For example, on the subject of childcare, a bill may require criminal background checks both for childcare facility license applicants and for employees who work at a licensed facility. Similarly, a bill concerning health care occupations may introduce background checks for admission to nursing school, nursing licenses, and hospital employment. These categories were counted separately to arrive at a total of 139 statutory provisions in force in Illinois as of 2013.
Per the 2010 Census, the state’s African-American population (14.5%) and Latinx population (15.8%) reflect the national averages of 12.6% and 16.3%, respectively (U.S. Census Bureau, 2017a, 2017b). In 2013, Illinois ranked 18th in state rates of violent index crimes (Federal Bureau of Investigation, 2017). Finally, in terms of the partisan composition, in 2010 the Illinois House of Representatives ranked 21st among states in its percentage of Democratic lawmakers, while the Senate ranked 15th (Klarner, 2013).
General Assembly transcripts are published online beginning with the 1971 session. Floor debates were not transcribed prior to 1971: http://ilga.gov/default.asp.
Seven of these bills were enacted, two failed, and the rest were designated session sine die, meaning that they did not make it through the entire legislative process before the end of the session. Session sine die bills may have passed in one or more chambers.
As of 2006, the Illinois Bureau of Identification charged non-criminal justice requestors between $15 and $44 for fingerprint-supported background checks (Bureau of Justice Statistics, 2006b).
The bill’s sponsor, Representative Darlene Senger, explained this process when she introduced the revised Senate version: “Thank you, Mr. Speaker and Members of the House. Senate Bill 3809 requires criminal background checks for juvenile applicants to be employed in a park district. This was a Bill we passed through the House last year. Basically, in the Senate, it was asked to be amended to include […] to include the Chicago Park District which, then, the Bill was shelled. So, it went unanimously through the Senate. And I’m open to answer any questions” (2012 SB 3809).
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et al. 1915 Vt. Acts & Resolves 350
et al. 1917 Ter. Haw. Laws Act 178
I am deeply indebted to John Hagan, Laura Beth Nielsen, and Robert Nelson for their insight and generous support. Jesse Bowman at the Northwestern law library gave invaluable guidance on the legal research infrastructure that made this project possible. The project benefitted from thorough and thoughtful comments from an anonymous reviewer, as well as feedback from presentations at the Chabraja Center for Historical Studies at Northwestern University and the 2015 Law and Society Association Meeting in New Orleans. I also gratefully acknowledge funding from the American Bar Foundation and its Doctoral Fellowship Program.
Please direct all correspondence to David McElhattan, Department of Sociology, Purdue University, 700 W. State Street, West Lafayette, IN 47907; email@example.com.
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