“$40 to Make Sure”: Background Check Laws and the Endogenous Construction of Criminal Risk

Abstract Criminal background checks are used widely in the U.S. to screen applicants for employment, licenses, housing, and government benefits. State lawmakers instituted many of these requirements, ostensibly with the aim of managing criminal risk in various areas of social life. The present study examines the development of this legal form. Drawing from legislative discourse in the Illinois General Assembly, this study puts forward an endogenous account of constructing criminal risk, showing that lawmakers justified new background check laws largely as a means of filling security loopholes created by prior legislation. While the laws respond to identified criminal risks, the process of expanding background checks itself draws attention to other dimensions of vulnerability, necessitating the addition of new screening requirements. Incremental expansions are further justified on the basis of background screening’s low cost, which, lawmakers argue, creates an obligation to extend the requirements wherever vulnerabilities are identified, particularly when children are potential victims and sex offenders the possible villains. The study shows how security and vulnerability are mutually generative in the area of background screening and discusses implications for understanding this legal form in the context of contemporary American penality.