SHOULD A CRIMINAL RECORD FOLLOW YOU FOREVER?
Over 25% of Americans have a criminal record. That’s about 65 million people. Yet employers are getting more and more reluctant to even consider hiring someone if they have a criminal record. It’s becoming a real problem, and people are being turned down for jobs simply because they were once accused, not convicted of, a crime.
Let’s draw some distinctions here: there are several types and sub-types of criminal records, each meaning something different:
- A record of an arrest but no prosecution;
- A record of an arrest and prosecution but no conviction; and
- A conviction.
Let’s talk about each of these in more detail, because a record of even one of these can mean vastly different things.
A record of an arrest but no prosecution:
All this means is that a person was arrested by a police officer. That officer believed (at least had to say he or she believed) that there was “probable cause” to arrest the person for a crime. But, once the case came to the prosecutor the prosecutor decided that it was not a case worth pursuing.
This could mean:
- the crime never happened;
- the crime did happen but the prosecutor knows there’s no way to prove guilt;
- the crime did happen but it was so minor in nature that it’s not worth the time and money to prosecute the accused;
- the crime did happen but the police officer arrested the wrong person; and/or
- the crime did happen and the police arrested the right person but the prosecutor believes the best thing is to not prosecute, for whatever reason (moral, the victim refuses to testify, etc.).
By looking only at an arrest record we have no idea. But arrest records and mugshots are public records, and stay public records until they are taken down through sealing or expungement. Also, even if the arrest record is sealed or expunged, several mugshot companies have popped up, basically holding people’s mugshots hostage. Even if the person pays to have their records taken down there’s no guarantee it won’t pop up again on another site, or in some cases, the same website.
A record of an arrest and prosecution but no conviction:
This means the person was arrested and the prosecutor decided that the case was worth pursuing, but the defendant was not convicted of the crime. This can happen in several ways:
- The case went to trial and the jury acquitted the defendant;
- The defendant agreed to a plea deal that did not include a conviction;
- The judge dismissed the case because the prosecutor was not able to prove the elements of the crime;
- The prosecutor dropped the case because new evidence came to light that showed they were prosecuting the wrong person;
- The prosecutor dropped the case because none of the witnesses could be found to testify;
- The defendant’s attorney got the judge to suppress the evidence against them because the police officers violated the defendant’s rights; and/or
- The prosecutor dropped the case because the defendant agreed to testify against a co-defendant.
Again, by looking only at the fact that a person was arrested and prosecuted, we have no idea of what really happened. Unless court records are sealed or expunged the record that a person was prosecuted is public, even if they were falsely accused of a crime.
A person is convicted of a crime. In Florida, you can be convicted of a crime for driving without a license. For fishing without a license. For doing or not doing a whole host of non-violent things.
Also, there’s a very big difference between a misdemeanor conviction and a felony conviction. Convicted felons lose their right to vote and own a firearm. They face very tough employment prospects. But being a convicted felon doesn’t mean a person committed a violent crime. The difference between a felony and misdemeanor marijuana conviction is a matter of grams.
A criminal record can follow you forever.
More and more employers are requiring background checks, even for jobs that probably shouldn’t require them. Do you really care if your dry cleaner got a DUI 10 years ago? What if the manager of your local grocery store got arrested for smoking dope in high school – would you still shop there? The point is that there are a huge number of stupid, meaningless and victimless crimes people can be accused, prosecuted for, and even convicted of that prevent them from being employed.
Yet we’re seeing some progress moving forward. Tampa’s city counsel is considering a “ban the box” law that would prevent some employers from considering criminal history before determining if the applicant is qualified. The Florida legislature has been considering new laws that would shorten the length of time a juvenile case stays on someone’s record.
Also, people (as long as they’re eligible) can get their records sealed or expunged. This is something that we always offer to our existing criminal clients for free, because we know that your future is important.
Hopefully our lawmakers will make more progress on common-sense ways to prevent a criminal record from being a permanent scar on someone’s future.