On Nov. 6, during a Senate Finance Committee hearing on the Affordable Care Act (ACA), Sen. John Cornyn, R-Texas, had something of an "aha" moment as he grilled Health and Human Services Secretary Kathleen Sebelius. Cornyn forced Sebelius to admit that because there is no federal requirement for ACA navigators — the paid counselors who are responsible for guiding people through the often confusing enrollment process — to undergo criminal background checks, it was possible that felons could be hired to help run the program. Wasting no time, Sen. Marco Rubio, R-Fla., the following day introduced legislation that would prohibit anyone with a felony or, in some cases, just a misdemeanor conviction from even applying for a navigator job.
At first glance, this might seem like a sensible measure. "Keeping criminals out of our health care" would certainly make for a great sound bite. If Rubio's Healthcare Privacy and Anti-Fraud Act becomes law and yet another job category is closed off to those with criminal records, the senator will no doubt declare it a victory for public safety. In truth, however, it would be anything but that.
There are so many people who fall into the ex-convict category that it is neither practical nor wise to try to prevent them en masse from applying for certain types of jobs. The National Employment Law Project (NELP) estimates that there are a whopping 65 million Americans with criminal records. To put that number in context, it amounts to nearly 30 percent of working-age adults. Yes, you read that correctly: 30 percent.
Among that 30 percent, there are a handful of murderers, rapists and serial con artists who would perhaps not be best suited to a job as an "Obamacare" navigator. Lumped with them, however, is a considerably larger number of people who have been busted for something as trivial as smoking a joint or failing to pay a library fine. In other words, in a category this large and diverse, there is room for nuance. Imposing sweeping bans that would prevent (PDF) some 65 million people from applying for certain jobs — regardless of how trivial their crime may have been or how many decades have passed since they fell afoul of the law — does little to enhance public safety and a lot to do just the opposite.
Every year, some 650,000 people are released from prison, and (at least in part) because of the sometimes insurmountable barriers these former convicts face in securing employment and housing, up to two-thirds of them are likely to be rearrested within three years. These dismal recidivism rates have led to a growing recognition among criminal justice advocates, embodied by the Ban the Box campaign, that making it next to impossible for a felon to find a secure job is counterproductive at best and downright foolish at worst.