Awareness Wednesday :: Unintended Consequences — Ban the Box

It is no secret that an individual with a criminal background will struggle to find employment. It goes without saying that the majority of employers do not want to hire ex-convicts. Learning that a future employee once attempted murder, committed a string of robberies, or even sold drugs is an unsettling feeling for any employer. The stigma of a conviction and time served is not an easy obstacle to overcome.

In order to lower the barriers faced by those who have been convicted of a crime to being offered a job, fair-chance policies or “ban the box” laws have been introduced. Ban the box is legislation that restricts employers from asking about past criminal convictions on initial job applications. These laws remove that little box that asks, “Have you ever been convicted of a crime?” In fact, in many states, employers are not allowed to ask about an individual’s criminal history until after a face-to-face interview. The thought process behind this is that a person with a criminal history will have the advantage of “selling themselves” by having more personal contact with the employer.

It makes sense. We hire people with whom we connect. The interview is crucial! Enter unintentional consequences.

Without a way to discern background on an employment application, employers, especially in the private sector, rely upon their own biases. A few studies have shown that without the box to confirm criminal history, potential employers are more likely to lump together applicants with black-sounding and Hispanic names, assuming that those applicants are more likely to have a criminal history. The statistical evidence is not enormous, but it is there and it highlights the roles that racial profiling and racial discrimination play throughout the job application process. The results vary from state to state, depending upon demographics.

Many who support the ban the box campaign do not feel there are clear downsides to these initiatives. But others maintain that Ban the Box laws highlight areas that are in desperate need of reform. In many cases, employers have allowed stereotypes and statistics to guide their judgment, thus fewer black and Hispanic men reach the interview stage in the application process. In fact, most will never receive a callback.

“When employers asked about criminal records on the job application, they called white applicants slightly more often than identical black applicants — but that small gap became more than four times larger, and statistically significant, after ‘ban the box’ went into effect,” explains Michelle Natividad Rodriquez of the National Employment Law Project. “There is a link in the American public’s mind between being a person of color and having a record, and criminality.” These biases are steeped in the psyche of many Americans.

It is a sad truth of our justice system that the incarceration rate of black and Hispanic men is disproportionate to our populations. Though African Americans and Hispanics make up approximately 32% of the U.S. population, they comprised 56% of all incarcerated people in 2015. Because employers will guess that black and Hispanic men are more likely to have been in prison, and therefore less likely to be job-ready, the vicious cycle hurts these young men over and over and over. It is no wonder that within three years, two-thirds of those released from prison find themselves back behind bars.

On the off chance that an ex-convict reaches an interview, their prospects remain bleak. Sam Cobb spent 11 years behind bars for attempted murder. After being released from prison, he spent the next four years searching for a job, applying to over 75 jobs and sitting through 10-15 interviews. Each time his criminal history was brought to light, the interview was lost. “I try to tell people, ‘Listen, I made a mistake. I was young, and I’m sorry. Give me a chance,'” Cobb said. “It seems like it falls on deaf ears all the time.”

Another ex-convict, Gerald Alverez, echoes these experiences. “I was rather young when my crime happened,” Alvarez said. “I feel like I’ve done my time, but yet, to this day, it still haunts me. Just to transfer jobs, or anything of the sort. Everyone says, ‘Oh, if you have a felony, we’re not interested. We’re not interested.'”

Cornell William Brooks, who supports ban the box laws, wrote the following in his essay for the book, “Solutions: American Leaders Speak Out on Criminal Justice“: “The impacts of racial profiling do not end with an arrest. Long after a person receives an arrest record, and has even repaid their debt to society, he or she can potentially be sentenced to a life of economic insecurity. With 70 million Americans with a record and 2.3 million incarcerated nationally, everyone knows someone with a record—from the studious undergrad with a high school shoplifting conviction, to the respected middle manager guilty of a nearly forgotten sorority prank, to countless scores of ambitious young men arrested but never convicted under ‘stop and frisk’ policing run amuck in our cities.”

Ban the box can be seen as a positive first step, but it also exposes the great need that we have to tackle prison reform and racial profiling. It also underscores the need to provide opportunities to earn a degree while in prison and promote programs that aim to help ex-convicts lead lives where hopes and dreams can become reality.

For example, The Fortune Society provides individuals released from prison help finding housing, job skills training, and other services needed to successfully enter the workforce. We need a new way of thinking about prison sentences. New York Governor Andrew Cuomo sums up this idea with these words: “Incarceration is supposed to be about rehabilitating those who may have lost their way in the past, and it’s time that we get back to embracing that principle as a society.”

Incarceration and arrest are disruptive not only to individuals, but also families and communities, both financially and emotionally. These should be last-resort solutions to misconduct as they often cause greater problems. Time will tell whether ban the box works as intended. More research and, perhaps, adjustments to the associated policies, must accompany our efforts. But it seems the best solution to the unemployability of the formerly incarcerated is to incarcerate less.

Jenny Rogers Moody is the Lead Moderator for the Mormon Women for Ethical Government discussion Group.