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Continuous Monitoring: Elixir for Early Release, Limited Prosecutions

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As the background screening industry continues to work through how to best support their end-users during the COVID-19 crisis, I thought made sense to shift to more forward thinking about some of the issues and obstacles that could persist when we are able to put this behind us. And as importantly, to think through solutions that could help support CRAs and their clients.

One important solution is the concept of Continuous Criminal Monitoring. But first let’s discuss what is going on right now that is guiding my theory.

Early Release Programs and Limited Prosecution During COVID-19

At 2.3 million inmates, the United States has more people in prison and jails on a per-capita basis than any other country in the world. No matter your political stance on the issue of our correctional system, that’s a big number.

This issue is now being magnified because the states and federal government have elected to release thousands (maybe even tens of thousands) of prisoners before their sentences are completed due to the new Coronavirus. In fact, it was just announced that President Trump’s former personal legal counsel (translation: fixer), Michael Cohen was just released early and will serve the remainder of his sentence at home.

CBS’ Sunday Morning recently highlighted this issue and referenced Rikers Island as a breeding ground for COVID-19.

“Rikers Island, in New York City's East River, currently holds more than 4,000 prisoners.  It is a toxic breeding ground for COVID-19.  Throughout all of the city's jails and prisons, the numbers of inmates and staff testing positive has now topped one thousand.”

In addition to early prison releases, many cities and municipalities have decided that they will not prosecute low level offenses during the pandemic. In Cook County (Chicago) for instance, State’s Attorney Kim Foxx announced that her office won’t prosecute non-violent, low level drug offenses and that her office would “continue to review and prioritize other charges in a case-by-case basis.

What does this mean for CRAs and Employers?

As it relates to the early release program, we could see tens of thousands of ex-convicts enter the labor force. Rather than immediately dwell on the negative, this could create significant opportunities for employers who are looking for qualified workers. The labor market will look different than it did in February, but employers were having a terrible time hiring qualified and reliable employees. Perhaps, this creates a new source for our nation’s employers.

However, this reinforces why stringent employment background checks could be even more important than they were pre-crisis. This is not to say that criminal records should automatically eliminate these folks from consideration. In fact, many studies have highlighted the benefits of hiring individuals with a criminal past. It means that employers need to know what they are dealing with and make an informed decision.

Unlike the early release program, offenses that are never prosecuted will never show up on a criminal background check. That doesn’t mean that employers should forego background checks. It just means that it is time to consider how to monitor employees after they’ve been hired- whether they have a documented criminal past or not.

A Case for Continuous Criminal Monitoring

I would suggest that CRAs and employers have a valuable resource which allows them to hire ex-convicts and give them more confidence in hiring when they have concerns that they could be missing the full picture with those that were never prosecuted.

As many of you know, we’ve been talking a lot about Continuous Criminal Monitoring this year, whereby employers can monitor their workforce for bookings and incarcerations.

In many cases, employers have more trepidation about what those with criminal records could or would do to harm their business (employees, customers and, or reputation). Continuous Criminal Monitoring could be the security blanket they need to know that they have a tool to highlight concerning behavior.

Let's look at an example of how this could play out. I've identified a qualified candidate to work at my company and I extend an offer based on the successful completion of a background check. Unfortunately, the background check reveals concerning criminal activity that ordinarily would give me pause. In essence, it's a judgement call. If I know I've got a Continuous Criminal Monitoring program in place that would alert me in real-time to future issues, I might be more inclined to hire the person.  

I actually had a chance to discuss the potential impact of the early release programs and decrease in prosecutions on a recent podcast with Bob Capwell from EBI and Sean O'Donnell from Disa. Both agreed that Continuous Criminal Monitoring could help employers hire those with convictions on their records. 

As we all emerge from this crisis, maybe it's time to consider how Continuous Criminal Monitoring can play an important role in growing your business and how it can help your clients protect their organizations.

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