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BAN THE BOX TO PROMOTE EX-OFFENDER

EMPLOYMENT

JESSICA S. HENRYMontclair State University

JAMES B. JACOBS New York University

It is close to a criminological truism that the lack of a legitimate job

fosters criminality and, conversely, that holding a legitimate job diminishes criminal conduct. Consequently, many criminologists and social reformershave long advocated programs to expand employment opportunities forex-offenders, particularly for those who have served prison time.Strategies for improving employability of ex-offenders include providingex-offenders with basic education and job-specific training, assisting inidentifying potential employment opportunities, interceding on the jobseeker’s behalf with prospective employers, and eliminating de jure and de

facto employment discrimination against ex-offenders.

Many federal and state laws make ex-offenders, or at least certain

categories of ex-offenders, ineligible to obtain employment licenses or towork in organizations serving children, the elderly, and other vulnerablepopulations (Love, 2006). In fact, such laws have proliferated during thepast two decades on account of tough-on-crime politics and heightened

post-9/11 security concerns. The reentry movement has cast a bright lighton these collateral consequences of conviction and has urged a wholesale

review and reform of them (American Bar Association, 2004; Travis,

2005). We agree with reentry proponents that de jure prohibitions on ex-

offender employment are far too overbroad and that many should berepealed. In this article, however, we focus on de facto discrimination to

highlight a recent trend for cities to voluntarily stop asking for criminalbackground information from applicants seeking city employment and, insome instances, employment with vendors who contract with the city(National Employment Law Project (NELP), 2007).

By recognizing that society has much to lose by excluding ex-offenders

from legitimate employment opportunities, several cities such as Boston,

San Francisco, and Minneapolis have agreed to “ban the box” on initial

job applications that ask applicants about past criminal convictions. Thesecities have committed themselves not to discriminate against ex-offendersand not to consider an applicant’s prior criminal record unless it is clearly

related to the requirements of a particular position. This welcome step, ifsuccessful, might persuade other public and private employers to stopdiscriminating against job applicants with a criminal record.

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DE FACTO DISCRIMINATION AGAINST EX-

OFFENDERS IN HIRING

Criminologists have long recognized that a criminal conviction has a sig-

nificant negative effect on employment. In the early 1960s, Richard

Schwartz and Jerome Skolnick (1962) sought to determine how much of adisadvantage a criminal record is when obtaining employment. In theirstudy, fictitious job seekers applied through the mail for employment posi-

tions. The job seekers had nearly identical curricula vitae (c.v.), with crimi-nal histories of varying severity. Although 36% of employers expressed aninterest in employing an individual with no criminal record, only 4% ofemployers expressed interest in the same applicant when an assault con-viction was added to his c.v. Indeed, even the existence of an assaultacquittal reduced employers’ interest to 12%. Studies that followed con-sistently found the same negative relationship between criminal record

and future employability (Finn and Fontaine, 1985; Sampson and Laub,

1993, Uggen et al., 2006; Western, 2006).

Nearly 40 years after the Schwartz and Skolnick study, Devah Pager

(2003) carried out a sophisticated field experiment confirming the adverseeffect of criminal history on employment. She sent to employers severalstudent job applicants who were matched on all attributes except criminalrecord; one member of the pair had on his c.v. an 18-month prison termfor a drug felony. She found that of the matched white “job seekers,”applicants without a criminal record received twice as many positiveresponses as the ex-offenders (34% vs. 17%). Among matched black “jobseekers,” employers showed interest in 14% of applicants without a crimi-nal record compared with 5% of applicants with a criminal record. Pager’sstudy provides powerful evidence that, holding everything else constant, acriminal record has a large negative effect on employment prospects.Strikingly, it shows that black job seekers without a criminal record fareworse than white job seekers with a criminal record. Evidently, criminal

record discrimination amplifies racial discrimination in employment. The

burgeoning proliferation of criminal records (Jacobs, 2006) and the de jure

and de facto discrimination against ex-offenders (Henry, 2007; Love 2006)

combine to create the prospect of a permanent underclass of ex-offenderswho are excluded from the legitimate economy and are funneled into a

cycle of additional criminality and imprisonment.

The obvious question is what to do to break that cycle. Is it possible to

eliminate or to ameliorate the job-depressing impact of a criminal record?Neither Schwartz and Skolnick (1962) nor Pager (2003) addresses the pol-

icy implications of their findings, but reentry proponents and governmen-

tal actors have begun paying significant attention to policy. Here, we focuson one sensible and promising strategy: the movement to “ban the box.” \\server05\productn\C\CPP\6-4\CPP413.txt unknown Seq: 3 16-OCT-07 13:03

CRIMINOLOGY & PUBLIC POLICY 757

THE “BAN THE BOX” CAMPAIGN

In the last year or two (2006-2007), several major cities, including Bos-

ton, San Francisco, Chicago, Newark, Philadelphia, Los Angeles, Minne- apolis, and St. Paul have begun initiatives to ameliorate public sectordiscrimination against job applicants with criminal records (NELP, 2007).

In San Francisco, an ex-offender group, All of Us or None (AUN), led a“ban the box” campaign to end discrimination against ex-offenders apply-

ing for city and county jobs. The box refers to the question on the city’semployment application form that asks whether the job applicant has ever

been convicted of a past crime. AUN argued that, in addition to promotingemployment discrimination against ex-offenders, the question deters ex-offenders from even applying for city jobs. After several rallies and vigor-ous lobbying with the city’s Human Rights Commission and Department

of Human Resources, AUN persuaded the San Francisco Board of Super-visors to pass a resolution calling on the city and county to eliminate thecriminal record question from the job application form, except when stateor local law expressly bars people with certain convictions from a particu-

lar job. The resolution would prohibit any criminal background check orinquiry until after a tentative offer of employment has been made. At thatpoint in the hiring process, a criminal record would only be relevant if itcreated an unacceptable risk that the applicant could not fulfill the job’srequirements.

Boston has taken the “ban the box” initiative even further. Within city

hiring, Boston requires background checks only for positions involvingyouth, the elderly, and the disabled, as well as for positions within thepolice department. Each posting on the Boston City employment websitespecifies whether a criminal background check will be required prior to an

offer of employment. The background check, however, is not conducteduntil after an applicant initially applies for a position, is interviewed by the

hiring department, and is selected as a finalist for the position. The depart-ment refers the finalists’ names to Human Resources, which conducts abackground check. If a conviction is revealed that does not disqualify theapplicant from the position, the department will be told that the applicantis cleared for the position. If a disqualifying conviction is revealed, theapplicant has an opportunity to meet with the Human Resources Depart-

ment to discuss any mitigating circumstances. The department head may

ask for a formal review of the denial (W. Kessler, personal communica-tion, April 3, 2007).

In addition to its own policy on hiring ex-offenders, Boston expanded its

attack on reforming its de facto employment discrimination by applying

the “ban the box” policy to the city’s 50,000 private contractors. Under a \\server05\productn\C\CPP\6-4\CPP413.txt unknown Seq: 4 16-OCT-07 13:03

758 HENRY & JACOBS

2006 ordinance, these contractors will have to adopt a policy of nondis- crimination against ex-offenders to obtain and, in some instances, main-

tain city contracts. This ordinance enhances the employment prospects ofthousands of ex-offender job seekers.To date, no city has gone as far as Boston has, but other cities are mov-

ing in the same direction. For example, the mayor of Chicago announcedwide-ranging reforms in how city agencies consider a job applicant’s crimi-

nal record. First, the question about prior convictions will be removedfrom the initial employment application. Second, under new guidelines,even when a criminal record might be relevant to a particular job, beforemaking a final hiring decision, city agencies must take into account thetime elapsed since the prior criminal conviction, seriousness of the prioroffense, evidence of rehabilitation, and other mitigating factors (NELP,2007). Both the cities of St. Paul and Minneapolis have also banned thebox at the initial stages of hiring. Minneapolis publicly encourages, but has

not mandated, private vendors to follow the city’s policy (E. Glidden, per-sonal communication, April 4, 2007).

WILL “BAN THE BOX” MAKE A DIFFERENCE?

The “ban the box” initiative is a promising and constructive policy inno-

vation that furthers the goals of the prisoner reentry movement. In volun- tarily ignoring past criminal convictions for most public-sector jobs in thefirst instances, local governments can lead the way toward reducing jobdiscrimination against ex-offenders. If cities successfully demonstrate thatex-offenders can be safely hired for most public-sector jobs, a strong argu-ment will exist for repealing many de jure restrictions on ex-offender

licensing and employment. Moreover, private employers’ discriminationagainst ex-offenders could come to be viewed as invidious andunreasonable.

Although the “ban the box” campaign represents a major step toward

regularizing the status of ex-offenders, it also illuminates the magnitude ofex-offender challenges to reentry. By definition, the “ban the box” move-ment only reaches those ex-offenders who are job ready and job capable.Banning the box will be of most assistance to ex-offenders with the mostsocial capital, education, skills, competent presentation of self and, per-haps, only a single conviction for a nonviolent offense. It may be less help-ful to ex-offenders who lack psychological and emotional stability,education, job skills, social skills and work experience, to those with anextensive record of recidivism, and to those with a conviction, or with mul-tiple convictions, for a horrific or a violent crime.

Even for those ex-offenders in a position to benefit from the “ban the

box” reforms, it is not yet clear how aggressively cities will implement and \\server05\productn\C\CPP\6-4\CPP413.txt unknown Seq: 5 16-OCT-07 13:03

CRIMINOLOGY & PUBLIC POLICY 759

administer these reforms. As with many social programs, the devil will be

in the details. The cities that have committed themselves to banning the

box have not said that a criminal record is irrelevant. They have said thatex-offenders should be encouraged to apply for public-sector jobs and thata criminal record will only be considered after the applicant passes initial

competency screening. What happens at that point? Maybe, as in Boston,the human resources department will never tell the hiring officer about theapplicant’s prior conviction. But what happens in Minneapolis, which con-tinues to require background checks on approximately two thirds of its

applicants? Will ex-offenders be referred out for final hiring? If criminalhistory information is shared with the hiring officer, will that officer haveformed a favorable view of the applicant’s capabilities and be willing tolook beyond a prior crime?Many “ifs” remain. We do not yet know how liberally or restrictively

various cities will administer their new or strengthened ex-offenderemployment policies. Several cities promise to promulgate guidelines on

what offenses/records could support a department’s refusal to hire. These

guidelines may not be easy to construct. They will have to consider therelevance of all types of convictions and the length and quality of criminalcareers to all sorts of jobs and employment settings. It is obvious that aperson with a single car theft conviction from many years ago should notbe disqualified from most city jobs, but what about a car theft plus a for-gery conviction? Plus a domestic assault? How will the city react when, ascurrent recidivism statistics suggest is likely, an ex-offender who was hiredto work for a city position relapses into drug use and fails to attend workor commits a serious crime?

CONCLUSION

To the extent that de jure and de facto employment discrimination

against ex-offenders are permitted to flourish, the employment prospectsof even the best qualified ex-offenders remain bleak. Under that scenario,society faces the prospect of an ever-expanding underclass of ex-offenders

who are separated and alienated from the mainstream population. Wehave an enormous stake in successfully reintegrating ex-prisoners and,indeed, all convicted persons.

All reentry programs involve some risk of failure, but they also offer

hope of large benefits. For every ex-offender who successfully reintegratesinto the world of work, there is one less potential recidivist consuming

expensive criminal justice and corrections resources. For this reason alone,the “ban the box” campaign is good news. In the best American tradition,it represents voluntary action at the grass roots level. It does not involvecostly regulation and enforcement. It constitutes a creative experiment \\server05\productn\C\CPP\6-4\CPP413.txt unknown Seq: 6 16-OCT-07 13:03

760 HENRY & JACOBS

that, if it works, will benefit ex-offenders, city governments, and society at large. Even more importantly, the “ban the box” movement may providean important example that people can and do change, and that second(and even third) chances can be a smart societal investment.

REFERENCES

American Bar Association2004 Criminal Justice Standards on Collateral Sanctions and Discretionary Disqualification of Convicted Persons . Available online: http://

www.abanet.org/crimjust/standards/collateralsanctionwithcommentary.pdf.

Finn, R. H. and Patricia A. Fontaine 1985 The association between selected characteristics and perceived employability of offenders. Criminal Justice and Behavior 12:353–365.

Henry, Jessica S. 2007 Closing the legal services gap in prisoner reentry programs. Criminal Justice Studies: A Critical Journal of Crime, Law and Society. In press.

Jacobs, James B. 2006 Mass incarceration and the proliferation of criminal records. St. Thomas Law Review 3:387–420.

Love, Margaret Colgate. 2006 Relief from the Collateral Consequences of Conviction: A State By State Resources Guide. Buffalo, N.Y.: William S. Hein, Inc.

National Employment Law Project 2007 Major U.S. Cities Adopt New Hiring Policies Removing Barriers to Employment of People with Criminal Records . Available online: http://

www.nelp.org/nwp/second_chance_labor_project/citypolicies.cfm.

Pager, Devah 2003 The mark of a criminal record. American Journal of Sociology 108:937–975.

Sampson, Robert J. and John Laub 1993 Crime in the Making: Pathways and Turning Points through Life. Cambridge, Mass.: Harvard University Press.

Schwartz, Richard D. and J. Skolnick 1962 Two studies of legal stigma. Social Problems 10:133.

Travis, Jeremy 2005 But They All Come Back: Facing the Challenges of Prisoner Reentry. Washington, D.C.: Urban Institute Press.

Uggen, Christopher, Melissa Thompson and Jeff Manza 2006 Crime, class, and reintegration: The socioeconomic, familial, and civic lives of offenders. Annals of the American Academy of Political & Social

Sciences 605:281–310.

Western, Bruce 2006 Punishment and Inequality in America. New York: Russell Sage Founda- tion \\server05\productn\C\CPP\6-4\CPP413.txt unknown Seq: 7 16-OCT-07 13:03

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Jessica S. Henry is an Assistant Professor at Montclair State University, where she

teaches in the Department of Justice Studies. She received her Juris Doctorate from

New York University School of Law in 1995. Her primary research areas include pris-oner reentry, criminal law and procedure, and hate crime.

James B. Jacobs is the Warren E. Burger Professor of Law at NYU School of Law.

His most recent book is Mobsters, Unions & Feds: The Mafia and the American Labor

Movement .