When it comes to employment, a felony conviction is more damaging than imprisonment.
Criminal justice reform advocates have rightly celebrated recent victories that will reduce the use of money bail. For example, New Jersey eliminated almost all cash bail last year, and recently more and more cities are doing so. Yet the significant harms created by incarcerating low-risk individuals awaiting trial simply because they are poor are just the tip of the iceberg when it comes to the damaging effects of the criminal justice system. “Mass incarceration” — of which pre-trial detention in jail is a key part — is now a well-known term.
However, the expansion of the criminal justice system since the 1970s was far broader than just the rise of mass incarceration. Mass incarceration was accompanied by a vast increase in the number of people convicted of felonies – during a time when arrests for serious crimes were flat or falling in most states. Between 1980 and 2010, the number of Americans with a felony record increased almost fourfold, from just under 5 million to over 19 million, according to new estimates. The main driver of this increase is a greater likelihood that an individual with an arrest will be charged by prosecutors with a felony.
The causes of the increase in felony charges and subsequent convictions are not yet well understood. It’s likely that multiple causes are at work. State legislatures re-classified formerly misdemeanor crimes to felonies. Prosecutors used their discretion to charge crimes as felonies rather than misdemeanors. Failure to adjust the dollar values that determine whether crimes like theft are felonies or misdemeanors for inflation also increased the chances an individual would be charged with a felony rather than a misdemeanor.
The consequences, however, are clear. Conviction for a felony not only leads to harsher punishment but also the stigma of a felony record, with implications for employment, housing, access to public benefits, and voting.
Our recently published study even suggests that when it comes to employment, a felony conviction is more damaging than imprisonment. Someone convicted of a felony is typically sentenced to either prison or probation supervision in the community. By leveraging the random assignment of cases to judges, we were able to compare otherwise identical felony offenders who were sentenced to probation to those sentenced to prison. Our comparison of employment in the formal labor market among probationers to those of prisoners after they were released revealed no differences for the majority of individuals. Only whites with prior employment experience were negatively affected by imprisonment.
How can this result be reconciled with the conventional wisdom that imprisonment harms employment prospects? That conventional wisdom is largely based on prior research in which fictional job applicants with and without a history of incarceration applied for jobs. Those who had never been incarcerated were much more likely to be called in for an interview by employers.
But those studies conflated a felony conviction and incarceration, making it impossible to tell which was creating the effect. Because this latest study shows little effect of imprisonment, it is now clear that a felony conviction, not incarceration, is critical when it comes to employment. This conclusion is also consistent with the fact that employers typically ask about conviction rather than incarceration on job applications. Indeed, the reason we found little difference between former prisoners and felony probations in employment was because employment rates are also extremely low for probationers after their conviction.
Imprisonment has many well-documented effects on both prisoners and their families, from separation from family to increased risk of recidivism to negative health effects, so the point is not that reducing the use of incarceration is an unworthy goal. Rather the point is that felony convictions, which impact two and half times as many Americans, are playing a larger role in limiting opportunity and increasing poverty.
What might be done to reduce the impact of felony convictions? Initiatives to limit the stigma of a felony conviction in the labor market, housing, and college admissions, such as ban the box policies, are one possible solution. However, their scope has thus far been limited to only certain employers or to initial applicant screening, and there is some evidence they have the perverse effect of increasing discrimination against black job applicants. When employers don’t have information about a criminal record, they rely on stereotypes that tell them black job applicants are more likely to have a criminal record – what scholars call “statistical discrimination.”
Another solution is to roll back the widespread use of felony prosecutions for low-level crimes to levels last seen in the 1970s, before the radical expansion of the criminal justice system. California took a small step in this direction in 2014 with Proposition 47, which re-classified certain drug and property crimes from felonies to misdemeanors, so far with minimal effects on crime. The savings from reductions in jails and prisons could be used to invest in community policing, mental health treatment, and other prevention programs, but the primary benefit would be that far fewer people would be permanently stigmatized and denied opportunity by a felony record.