Getting and keeping a job is a critical element of economic security, particularly for Mainers who face barriers to opportunity and prosperity. That includes Mainers with criminal backgrounds or records of arrest, whose records unfairly hold them back even after they served out their sentences.
This year, Maine legislators have a chance to make the application process more fair and to help Mainers with criminal records meaningfully re-enter society after their sentence has been fulfilled.
Today in Maine, employers can inquire about applicant’s criminal history as part of the first step in the application process. These inquiries create barriers to opportunity for Mainers who have served their time and are trying to re-enter society in one of the most central ways: by getting a job and earning an income. LD 2087 — The Fair Chance Employment Act, sponsored by Rep. Rachel Talbot Ross of Portland — would prohibit employers for asking about criminal history until after an interview has taken place.
A criminal sentence is meant to be the extent of punishment for a crime. For all but the most extreme crimes, that punishment is by nature designed to end, not last forever. This policy would ensure Mainers with a criminal record have a fair chance at getting a job based on who they are today. It would guarantee no one is unfairly screened out before receiving a fair chance to demonstrate their suitability for the job.
Because a lack of gainful employment is linked to recidivism, The Fair Chance Employment Act would reduce the likelihood of repeat offenses. It also would increase opportunity by reducing the unique barriers to prosperity faced by Mainers of color. Criminal background screening creates space for racial discrimination in Maine’s job market. Mainers of color are disproportionately policed and prosecuted, and punished more severely after conviction, than white Mainers. People of color are also more likely than whites to be eliminated from an applicant pool because of a criminal record. Leveling the playing field in the application process would help reduce these racial disparities.
Banning criminal background screening will reduce barriers to opportunity, limit recidivism
More than one in six working-age Mainers — 139,000 people between 18 and 64 years old — have been arrested at least once in their life.1 Because Maine does not have an organized process for sealing or expunging criminal histories, records of these arrests follow Mainers for their entire lives.
It’s important to note that having been arrested for a crime is not the same as having been convicted. While some states allow employers to inquire only about past convictions, Maine law allows employers to ask applicants about any past arrests, even if they were later found innocent of the charges against them or had charges dropped. Research shows that while having an arrest record without a subsequent conviction is not as harmful as having been convicted of a crime, it can still make it harder to get a job2 and can lead to decreased future earnings.3
For those Mainers who have been incarcerated, a criminal record is a formidable barrier to employment. One study found that applicants for entry-level positions who reported a recent 18-month period of incarceration for drug possession were half as likely to be hired as their peers without the same record.4 This is especially troubling because employment is a significant factor in preventing recidivism. A study of Mainers on probation found that full-time employment reduced the chances of reoffending by 28 percent.5 Yet under the status quo, too many Mainers find themselves in a cycle of incarceration, joblessness, and re-incarceration.
Current law perpetuates racial inequality
The situation is particularly acute for Mainers of color, who are more likely to be arrested than white Mainers6 and to be prosecuted for more serious offenses.7 This is a symptom of unequal policing in our criminal justice system. For example, Black Mainers are slightly less likely to use cannabis than white Mainers,8 but are up to five times more likely to be arrested for cannabis possession.9
What’s more, employers tend to discriminate even more against people of color with criminal histories. White applicants with a criminal record were 30 percent less likely to get a call back for an interview; for Black applicants the effect was twice as large.10
In short Mainers of Color are more likely to be arrested, are accused of more serious crimes, and penalized more heavily when trying to re-enter the workplace after having served their time.
Similar legislation has passed across the country and in most of New England
Many other states are realizing the importance of preventing employers from discriminating against people who have served their time or who were never convicted in the first place. Ten states, including four in New England, have laws in place similar to LD 2087 – California, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, Vermont.
LD 2087 is aptly named. It’s about giving Mainers a fair chance at a job and the opportunity for economic security. For the tens of thousands of Mainers with a criminal history, past mistakes should not follow them throughout their careers. This is especially true for Mainers of Color who already face unfair treatment in our criminal justice system and labor markets. I urge you to vote “ought to pass” on LD 2087.
1 MECEP analysis of US Substance Abuse and Mental Health Agency, National Survey on Drug Use and Health, Restricted Data Analysis System, 2016-17, 2-year average.
2 Uggen, Christopher, et al., “The Edge Of Stigma: An Experimental Audit Of The Effects Of Low‐Level Criminal Records On Employment,” Criminology Vol 52, Issue 4. November 2014, pp627-654.
3 Grogger, Jeffrey, “The effect of arrests on the employment and earnings of young men,” Quarterly Journal of Economics, Vol 110, 1. Feb 1, 1995.
4 Pager, Devah and Bruce Western. Investigating Prisoner Reentry: The Impact of Conviction Status on the Employment Prospects of Young Men, October 2009. Available at: https://www.ncjrs.gov/pdffiles1/nij/grants/228584.pdf
5 Rubin, Mark and Maine Department of Corrections, Maine Adult Recidivism Report. 2013. Corrections Documents. Paper 3, 2013. Available at: https://digitalmaine.com/cgi/viewcontent.cgi?article=1002&context=doc_docs
6 Between 2002-2016, 19.7 percent of nonwhite Mainers reported having an arrest in their past, compared to 15.6 percent of white, non-Hispanic Mainers. MECEP analysis of US Substance Abuse and Mental Health Agency, National Survey on Drug Use and Health, Restricted Data Analysis System, 2002-17, 16-year average.
7 Shelor, Ben, Jessica Gonzales-Bricker, Carl Reynolds, “Justice Reinvestment in Maine”, Council of State Governments Justice Center. November 12, 2019. Available at https://csgjusticecenter.org/wp-content/uploads/2019/11/JR-in-Maine-second-presentation1.pdf
8 In 2015-18, 21.7% of white non-Hispanic Mainers reported using cannabis in the past year, compared to 18% of Black Mainers. MECEP analysis of US Substance Abuse and Mental Health Agency, National Survey on Drug Use and Health, Restricted Data Analysis System, 2015-18, 4-year average.
9 In 2013-16, the rate of arrest for adult cannabis possession averaged 2.5 per 1,000 white Mainers, but 11.2 per 1,000 Black Mainers. After Maine’s decriminalization of cannabis possession in 2017, arrest rates fell to an average of 0.7 per 1,000 white Mainers in 2017-2018, and 2.4 per 1,000 Black Mainers. MECEP analysis of Federal Bureau of Investigation, Uniform Crime Reports and US Census Bureau population estimates.
10 Pager, Devah and Bruce Western. Investigating Prisoner Reentry: The Impact of Conviction Status on the Employment Prospects of Young Men, October 2009. Available at: https://www.ncjrs.gov/pdffiles1/nij/grants/228584.pdf