Criminal records and employment restrictions in Argentina: Between post-sentence discrimination and resistance strategies
| Published date | 01 September 2023 |
| DOI | http://doi.org/10.1177/17488958231162519 |
| Author | Leandro Gastón,Carlos Carnevale |
| Date | 01 September 2023 |
https://doi.org/10.1177/17488958231162519
Criminology & Criminal Justice
2023, Vol. 23(4) 608 –628
© The Author(s) 2023
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DOI: 10.1177/17488958231162519
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Criminal records and
employment restrictions
in Argentina: Between
post-sentence discrimination
and resistance strategies
Leandro Gastón
University of Lausanne, Switzerland
Carlos Carnevale
Universidad Nacional del Sur, Argentina
Abstract
The current growth of criminal background screening for non-criminal justice purposes observed
in the Global North is also found in Latin America. The aim of this article is twofold. First, it
contextualises, analyses and discusses recent changes in criminal record policies in Latin American
jurisdictions. Second, the article focuses on Argentina – a jurisdiction that has not passed any
significant reforms to mitigate the disclosure and the effects of criminal records for employment
purposes. Specifically, attention is devoted to worker co-operatives created and owned by people
with a criminal record – a strategy specifically designed to overcome post-sentence discrimination
in the employment setting. Through the analysis of semi-structured interviews conducted with
members of Argentine worker co-operatives, we explore the reasons behind the establishment
of these organisations as well as their advantages in terms of reintegration and desistance from
crime. The article concludes by examining the extent to which this ‘resistance strategy’ against
stigma and discrimination in the labour market can be replicated in other countries of the region.
Keywords
Argentina, co-operatives, criminal records, Latin America, post-sentence discrimination, re-
entry
Corresponding author:
Leandro Gastón, School of Criminal Sciences, University of Lausanne, Lausanne CH-1015, Switzerland.
Email: leandro.gaston@unil.ch
1162519CRJ0010.1177/17488958231162519Criminology & Criminal JusticeGastón and Carnevale
research-article2023
Special Issue: Collateral Consequences of Criminal Records
Gastón and Carnevale 609
Introduction
Instances of criminal records-based employment discrimination have been attested in
recent decades in different Latin American countries, such as Chile (Mavila, 2007), Peru
(De la Cruz, 2016) and Argentina (Gastón, 2019). Previous research has depicted
employers’ background checking as standard practice in recruitment processes – and this
even occurs when several laws prohibit employers from asking for a criminal record
certificate for most jobs (Carnevale, 2016). Thus, some countries, such as Venezuela,
have chosen to explicitly forbid employers from asking for a criminal record certificate
from job applicants. Others, such as Mexico, Ecuador and Chile, more generally forbid
employment discrimination on any grounds. However, these prohibitions have not been
sufficient in practice to prevent employers from overlooking them and requesting a crim-
inal record certificate from applicants in job search processes. This trend has been par-
ticularly acute during recent economic crises where unemployment is higher and there
are lower incentives to employ former offenders (Campos Reynoso, 2017). Widespread
criminal background checking leads to exclusionary outcomes from legal labour markets
for formerly convicted individuals (Carnevale, 2016; García, 2017; Gastón, 2019), not-
withstanding the fact that employment has been detected as a crucial factor in the process
of desistance from crime (Maruna, 2001).
The aim of this article is twofold. First, we contextualise, analyse and discuss recent
legislative trends across Latin America affecting the disclosure, use and expungement of
criminal records. In particular, we focus on reforms enacted from 1991 to 2020 in 14
Latin American countries, namely, Argentina, Brazil, Chile, Colombia, Costa Rica,
Ecuador, El Salvador, Honduras, Mexico, Panama, Paraguay, Peru, Uruguay and
Venezuela. What emerges is a coexistence of mitigating and aggravating reforms regard-
ing the management and use of criminal records outside the criminal justice system with-
out any trend emerging clearly. On the one hand, between 2001 and 2016, different
countries have passed laws aimed at limiting the time limits for disclosure, use and
expungement of criminal records. On the other hand, since 2004 specific registries for
sex offenders have been created in the region with fewer protections in terms of disclo-
sure of the information contained. Argentina was the forerunner and was soon followed
by countries such as Chile, Colombia, Peru, Uruguay, Ecuador and Paraguay. Second,
we direct our attention to a particular ‘resistance strategy’ against the exclusion of people
with criminal records developed in Argentina: Work co-operatives created by individuals
with a lived experience in the criminal justice system. Over the past few decades,
Argentina has not passed any significant reforms to mitigate the disclosure and, more
generally, the effects of criminal records for employment purposes. Rather, criminal
record policy has become stricter, especially with regard to specific categories of
offences. This is the context in which worker co-ops run by people with a criminal record
developed. Through the analysis of in-depth interviews with 12 co-op members, we
explore the reasons behind the establishment of these organisations and their advantages
and disadvantage as a way of supporting re-entry. The study finds that, despite a few
drawbacks, the ‘co-operativisation’ of labour market re-entry offers a promising model
to unlock the doors that too often hinder the successful reintegration of criminal justice-
involved individuals. This article contributes to the global debate on the diffusion and
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