Clean Slate Initiative Likely to Impact Criminal Background Checks

by Chris on November 19, 2018

A powerhouse of well-funded community activists is promoting the “Clean Slate” initiative, a movement aimed at helping individuals charged with crimes rehabilitate by clearing their criminal history.

In August, federal lawmakers introduced the Clean Slate Act of 2018. If passed, the law would pave the way for all federal criminal records for marijuana and other minor drug-related offenses to be sealed.

Landlords, employers and others would not see the records when running background checks. However, state criminal charges still would be reported.

But that may change, too. Pennsylvania recently passed Clean Slate legislation that expands the process for sealing statewide criminal records to include more offenses, such as first-degree misdemeanors. The new law will allow for automated computer processing to seal records, including many convictions over 10 years old. Arrests that do not result in conviction within 60 days also will be sealed. Violent and sexual offenses likely will be excluded.

Records sealed under Pennsylvania’s Clean Slate would no longer be considered criminal convictions, so a person whose record has been sealed is not required to disclose the offense on a rental application, as if the crime had never been committed.

Michigan, Colorado and South Carolina are expected to introduce similar legislation soon.

This week, heavy-hitters Koch Industries and Chan Zuckerberg Initiative teamed up to promote the passage of Clean Slate legislation that allows for automatic purging of criminal background history.

Citing statistics from the Center for American Progress, the two groups argue that one in three people has some level of criminal history. CAP statistics also indicate that recidivism rates fall over time, so people who stay crime-free for four to seven years are no more likely to commit a crime than anyone else. Because 90% of employers and 80% of landlords conduct background checks, a criminal record or arrest can result in a permanent barrier to housing, employment and building credit.

Many courts currently provide some method for expunging or sealing criminal records. The process typically is reserved for old convictions or arrests with no subsequent conviction. However, according to CAP, few individuals take advantage of the process. Clean Slate legislation would allow for these records to be sealed automatically.

Landlords already are limited in how they can use criminal background information. For example, HUD has concluded that landlords cannot adopt a blanket prohibition against rental applicants with any criminal history, and arrests cannot be considered unless there is a subsequent conviction. A handful of states have attempted to limit landlords’ use of criminal history with specific prohibitions, but legal challenges to those rules are ongoing.

In some ways, Clean Slate could be beneficial to landlords. If the use of criminal history already is limited, purging these records of any controversial entries, like arrests that did not result in conviction or single, ages-old nonviolent convictions, might be a blessing. Landlords can’t use the information, but they can’t unsee it, either. It’s difficult not to allow such entries to taint the landlord’s impression of an applicant. In that case, ignorance might be bliss — so long as the person is not a threat.

The obvious problem for landlords in tampering with criminal background checks is just that — the person could be a threat. And landlords could be liable for any resulting injury. Sealing away information that would have prevented subsequent harm is a concern. Landlords have a lot at stake if recidivism statistics prove unreliable. The fact that applicants may feel they are entitled to withhold information about their criminal past only exacerbates that concern.

Regardless of Clean Slate legislation, landlords should not be discouraged from running a tenant background check that includes criminal history. To avoid liability if a tenant with a criminal background harms someone else, landlords need to show that they acted reasonably — within industry standards — when screening tenants. Reasonable landlords, at least 80% of them, run professional tenant screening reports.

Additional Landlord Tips

When screening tenants, obtain detailed information on applicants. Criminal records are more difficult to match up to individual applicants because SSNs and alias names are not always reported. Full legal names, birthdates, and previous addresses can make a difference in determining if the reports match the applicant.

Stress the fact that the information in the rental application must be accurate and complete, or the applicant may be committing fraud — which, of course, can be a crime. It may be necessary to modify rental applications to meet any requirements of Clean Slate legislation. For instance, if the application requires information that is more than 10 years old, but the state is sealing those records, the application should be amended in some fashion. Speak to a lawyer for the precise language needed.

Always use more than one tenant screening report. If recent criminal history comes up empty, other problems may appear on the credit report or eviction history.

Only run the criminal background check after the rental application is verified and the person is otherwise qualified. It may not be necessary to delve into criminal history.

Don’t rely entirely on tenant screening reports. Speak directly with previous landlords to confirm that the person was a good tenant.

This post is provided by Tenant Verification Service, Inc., helping landlords reduce the risks of renting with fraud prevention tools that include Tenant Screening, Tenant Background Checks, (U.S. and Canada), as well as Criminal Background Checks, and Eviction Reports (U.S. only).

Click Here to Receive Landlord Credit Reports.

Disclaimer: The information provided in this post is not intended to be construed as legal advice, nor should it be considered a substitute for obtaining individual legal counsel or consulting your local, state, federal or provincial tenancy laws.

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