Cover image credits: Tim Hüfner, Unsplash.com
By Grant Williams
Perhaps nothing communicates the dismal state of the United States’ criminal justice system more immediately than its staggeringly high recidivism rates; around 46% of those released from prison in 2012 found themselves reincarcerated within 5 years (Antenangeli and Durose).
Many states and cities, in an effort to reduce this all-too-common reality and assist formerly incarcerated people in becoming employed, have turned to ban-the-box measures. These laws typically postpone the ability of employers to review applicants’ criminal histories until after they have been deemed otherwise qualified, thereby heightening applicants’ chances of securing employment.
The organization, “All of Us or None,” formed in 2004, is generally credited for coining the term ban-the-box and inaugurating the fight for fair, progressive, anti-discriminatory legislation (Stacy and Cohen 8). In advancing arguments that ban-the-box policies remedy not only moral but economic dilemmas, proponents of legislative change have found immense success. Around 80% of the American populace is now protected by some sort of ban-the-box policy in their city or state (Avery and Han).
Though “ban-the-box” legislation, often referred to as fair-chance legislation, has found national, bipartisan support, it has also been criticized by several studies for the unintended consequences it poses upon minorities, particularly Latinos and African Americans (Agan and Starr; Doleac and Hansen). These studies conclude that employers, unable to consider criminal history explicitly, often substitute race for criminal background and, consequently, disadvantage minority applicants with no previous convictions.
Amanda Agan and Sonja Starr, two professors at Rutgers University and the University of Michigan, respectively, published one such watershed study of how racial profiling is exacerbated by fair-chance legislation. Agan and Starr devised an experiment in which they submitted thousands of “fictitious online job applications” before and after ban-the-box legislation went into effect in New Jersey and New York in 2015 (192). Exercising great caution to normalize educational attainment and employment experience across applications, they randomly assigned either a black- or white-sounding name to each applicant. White-sounding applicants received 7% more callbacks than their black-sounding counterparts before screening processes were made illegal compared to 43% more callbacks once ban-the-box screening measures were officially prohibited (191).
Another study conducted by Jennifer Doleac of the University of Virginia and Benjamin Hansen of the University of Oregon uncovered similar bias. Doleac and Hansen pored over publicly available employment data from across the country and used “variation in the timing of BTB policies to test BTB’s effects on employment” (326). They found that “BTB policies decrease the probability of employment by 3.4 percentage points (5.1%) for young, low-skilled black men” (321).
Just as Doleac and Hansen concluded that “policy makers cannot simply wish away employers’ concerns about hiring those with criminal records” (362), politicians and other government leaders must acknowledge the pervasiveness of prejudice and the inability of superficial remedies like ban-the-box to single-handedly rid it. Nonetheless, fair-chance legislation has consistently demonstrated itself capable of empowering the formerly incarcerated to acquire meaningful employment and should not be reversed simply because it reveals the pervasiveness of racism. For example, in Washington D.C., the “employment of people with records jumped 33 percent” following the passage of ban-the-box legislation (Hernandez). Ban-the-box legislation is a significant step forward in restoring public safety and preventing recidivism, and it would be incredibly remiss to jeopardize these measures based on hasty, misguided conclusions that they somehow cause discrimination.
Further policy measures beyond banning the box, however, are also critical. Only 15 states currently “extend their fair-chance laws to private employment,” signifying that more than half of supposedly fair-chance states only protect applicants from discrimination in government job postings (Avery and Han). Given that there exist wide discrepancies between the exact stipulations of ban-the-box policies nationally, the federal government could seek to normalize fair-chance policies across the board by means of categorical grants. In making certain aspects of government funding for the criminal justice system contingent upon the adoption of specific ban-the-box protections, the federal government could expedite the adoption of fair-chance policies nationwide.
In addition to promoting the implementation of ban-the-box legislation and widening its scope, the United States must doubly counteract widely held misconceptions against formerly incarcerated populations and assist them in job placement. So long as people exiting correctional facilities lack technical training, job experience, and skills, their employability will always remain stunted. In order to supplement fair-chance policies and facilitate the societal integration of previously incarcerated persons, it is necessary that more robust job training be provided behind bars, investments be made in the enforcement of protections against racial discrimination, and more programs be developed to bridge the gap between prisons and pay stubs.
If the United States is ever going to reduce its recidivism rates and recommit itself to being a nation where all people are created and treated equally, it must not recoil and recede from studies that expose racist attitudes but, instead, react and retaliate. Agitation for criminal justice system reform is at a fever pitch in the United States—now is the time for federal policymakers to support the comprehensive reforms necessary to standardize ban-the-box policies and extirpate the fears and prejudices of employers against the formerly incarcerated.
- Agan, Amanda, and Sonja Starr. “Ban the Box, Criminal Records, and Racial Discrimination: A Field Experiment.” The Quarterly Journal of Economics, vol. 133, no. 1, Oxford University Press, 2018, pp. 191–235, doi:10.1093/qje/qjx028.
- Antenangeli, Leonardo, and Matthew R. Durose. Bureau of Justice Statistics. “Recidivism of Prisoners Released in 34 States in 2012: A 5-Year Follow-Up Period (2012–2017).” Recidivism of Prisoners Released, U.S. Dept. of Justice, July 2021, https://bjs.ojp.gov/library/publications/recidivism-prisoners-released-34-states-2012-5-year-follow-period-2012-2017.
- Avery, Beth, and Han Lu. “Ban the Box: U.S. Cities, Counties, and States Adopt Fair Hiring Policies.” National Employment Law Project, 1 Oct. 2021, https://www.nelp.org/publication/ban-the-box-fair-chance-hiring-state-and-local-guide/.
- Doleac, Jennifer L., and Benjamin Hansen. “The Unintended Consequences of ‘Ban the Box’:
- Statistical Discrimination and Employment Outcomes When Criminal Histories Are Hidden.” Journal of Labor Economics, vol. 38, no. 2, The University of Chicago Press, 2020, pp. 321–74, doi:10.1086/705880.
- Hernandez, Phil. Ban the Box “Statistical Discrimination” Studies Draw the Wrong Conclusions. 29 Aug. 2017, https://www.nelp.org/blog/ban-the-box-statistical-discrimination-studies-draw-the-wrong-conclusions/.