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“$40 to Make Sure”: Background Check Laws and the Endogenous Construction of Criminal Risk

After Imprisonment

ISBN: 978-1-78769-270-1, eISBN: 978-1-78769-269-5

Publication date: 6 November 2018


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.




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;


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, Leeds, pp. 99-121.



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