Ban The Box — Balancing Incarceration And Re-Entry, With Public Safety And Child Protection

By a Biometrica staffer

In 1998, Hawai‘i became the first U.S. state to pass a “Ban the Box” law. The law prohibited both public and private organizations from enquiring about a person’s criminal record in the early stages of the hiring process. Studies have shown that the measure has been successful in the years since, with some calling it “one of the nation’s most robust” Ban the Box laws.

A number of states, cities, and localities rushed to implement such laws in the aftermath of the Hawai’i decision. Currently, around 36 states and the District of Columbia have Ban the Box policies in place; in 14 of those, the law applies to private employers as well. But over the last few years, the discourse has centered around whether Ban the Box policies are actually effective or whether they might, in fact, be doing more harm than good.

In today’s piece, we take a look at the Ban the Box movement, what some of the arguments about it are, why it is important to allow formerly incarcerated people a shot at employment, and yet be cognizant of public and workplace safety.

Ban the Box laws, when thought out and implemented well, are effective in offering protection to employees and giving the formally incarcerated an opportunity for re-entry. However, background checks are essential for many reasons including public safety, workplace safety, child and vulnerable or at-risk adult protection, asset protection, employer liability and reputation, and also critical infrastructure protection in both the virtual and the physical world.

Can Ban the Box laws and background checks co-exist? Yes, they can, and can be used best with access to real-time data.

History Of Ban The Box

Usually, an employer — private or public — has the right to run a background check on a prospective or current employee. They generally tend to seek out the person’s signed, written permission to do so, to protect themselves against litigation.

Of particular concern to employers is a person’s criminal arrest or conviction record, mainly because there is a chance that if a formerly incarcerated individual commits a crime while on the job, the employer can be held legally responsible due to a reasonable belief that they should have known the history of the person they hired.

Companies may also be worried about what damage it might do to their public image if it is found out that they have hired an ex-prisoner. As public image is linked quite strongly to profit, this serves as a disincentivizing mechanism for them.

Ban the Box legislation was conceived to give all qualified individuals a fair shot at a job, based on their merits. The name of the campaign comes from the question frequently on job applications where a person has to tick a box if they have a criminal record. Banning the box does not stop an employer from enquiring about a criminal record; what it does is ensure that they cannot do so until a certain stage in the hiring process (what that stage is varies from state to state). Usually, these laws are only applicable to the public sector, though, as mentioned above, some states have extended it to the private sector.

It was also envisioned as a way to limit racial discrimination in hiring processes. Obviously, legally, an employer is not allowed to discriminate on the basis of race, gender, religion, etc. while hiring or in deciding who is subjected to a background check. Statistically, people of color have been incarcerated at a much higher rate than white people, meaning that a criminal record — no matter how minor the offense may have been — is more likely to disqualify a person of color rather than a white person.

In fact, some studies have shown that even with all factors except race being ceteris paribus, people with “white sounding names” on their resumes are more likely to get a call-back than those without. This is discounting criminal history, but even if that is included, researchers have found that black men without a criminal record are less likely to get a job interview than white men with a criminal record.

It is against this context that Ban the Box policies were first thought of.

However, some of this is already in existence and has been under the purview of the Equal Employment Opportunity Commission (EEOC). Anytime an individual’s background information is used to make an employment decision, state laws come into play, along with federal laws that protect applicants and employees from discrimination. Compliance includes making sure there is no discrimination based on race, color, national origin, sex, or religion; disability; genetic information (including family medical history); and age (40 or older). 

What does this mean? It means you cannot check criminal background for certain employees only, and everyone is entitled to be treated equally under the law, which the EEOC enforces. Do note that while the EEOC has no direct relevance to the use of criminal records in employment-related decisions, it enforces Title VII of the Civil Rights Act, which is what prohibits employment discrimination based on race, color, religion, sex, or national origin. 

Why It Matters 

The American phenomenon of mass incarceration is hardly unknown. What may be surprising to many is the sheer volume of Americans who have any kind of criminal record, be that an arrest or conviction. For instance:

• Per the NAACP, over 2.2 million people are currently incarcerated in jails or prisons nationwide.
• Historically, around 95% of those incarcerated are eventually let out of prison or jail. Per some estimates, around 600,000 people are released from prisons every year.
• Around one in every 3 American adults have a criminal record of some kind. The NAACP says this is roughly equivalent to the number of Americans who have a four-year college degree.
• Around 33–36.5 million American children have at least one parent with a criminal record of some kind.
• Almost 50% of Black men and 40% of white men are arrested by the time they turn 23 years old.
• People of color account for around 39% of the U.S. population, but make up around 60% of the population of federal and state prisons.

Before we look at what this means in terms of re-entry and Ban the Box, it’s important to mention that these statistics also underscore why background checks are crucial from a public safety, workplace safety, and children and vulnerable or at-risk adult safety perspective.

In order to truly understand why the Ban the Box movement began, it’s important to understand all the challenges that formerly incarcerated individuals face when they re-enter society. Possessing a criminal record limits what economic resources and support mechanisms a person has access to, including things like affordable or public housing, education, food assistance, and employment.

That last category is probably the most insurmountable and crucial one, experts say. The science seems to overwhelmingly indicate that the most effective way to keep someone out of prison once they’ve been released is by improving their access to a stable job.

It bodes well for society too, cutting down the economic burden the taxpayers would have to bear if someone gets re-incarcerated and boosting income and payroll tax revenue. The GDP loss the country sees due to people with criminal records not getting jobs can be anywhere between $78 to $87 billion a year, some economic experts suggest. There is also evidence that minimizing the risk of re-incarceration and recidivism can lower crime rates and reduce dependence on social welfare programs.

But the truth is that even if the formerly incarcerated person is motivated and eager to work, looking to turn their lives around, it is often impossible for them to find a job.

• Per some estimates, the unemployment rate for formerly incarcerated people is over one in every four (27%).
• Somewhere around two-thirds of all people with criminal records do not have a job a year after they are released, according to studies.
• When they do have a job, it is usually low-paying, with few benefits, which impacts their ability to support themselves and their families, and increases their risk of recidivism. A simple $3/hour difference in wages two months after release could, in fact, double the risk of recidivism.
• NAACP says that an existing criminal record reduces by half the likelihood of a person even getting a callback or job offer once they submit an application.

For many, a criminal record can be a factor that permanently disqualifies them from ever having economic security, stability, and mobility. Even if the offense is a minor marijuana possession charge or an arrest that does not lead to a conviction, if asked, a job applicant is obligated to reveal that to their potential employer.

That said, the EEOC does have guidelines on arrest records. Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act states the following: “The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.”

What does that mean? Although an arrest record standing alone may not be used to deny an employment opportunity, an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question. The conduct, not the arrest, is relevant for employment purposes. If, after an internal investigation, the applicant or employee is determined to have appeared to have done whatever he was arrested for and that conduct is job-related, adverse action would generally be justified.

Per the Prison Policy Initiative, the number one predictor of recidivism is poverty. For many, it seems inevitable that they return to crime or drug use in such circumstances. The numbers around this, too, are alarming:

• Around three-fourths of all released prisoners are rearrested within five years, according to some.
• The Prison Policy Initiative estimates that on average, an individual on probation has to comply with 18–20 regulations and requirements each day, on penalty of being sent back to jail if they fail to do so.
• Per a Bureau of Justice Statistics report that looked at recidivism rates across 34 states between 2012 and 2017, 62% of those released from prison in 2012 were rearrested within 3 years and 71% within 5 years.
• Younger prisoners were more likely to reoffend — of those aged 24 and younger when they were released in 2012, 81% were arrested within 5 years. For those aged 25–39 and over 40 it was 74% and 61% respectively.
• Along racial lines, re-arrest rates for Black, Hispanic, and white prisoners one year after release were found to be roughly the same, at 38%, 39%, and 35%, respectively. Five years later, however, the gap increased to 74%, 67%, and 70%, respectively.

So Does Ban The Box Work?

Generally, studies have shown that Ban the Box policies have been effective in opening up job opportunities for people with a criminal record. Some have even found that such guidelines actively encourage employers to hire previously convicted or incarcerated individuals.

There is a belief that Ban the Box policies are popular because they’re not very costly to put into place and because they give employers a feeling that they are actively working to help a disadvantaged population.

One of the biggest criticisms of Ban the Box laws, however, is that they actually act counterintuitively. Though they aim to reduce discrimination by making it illegal for employers to ask about criminal records, they also leave the door open for them to be liable if that employee later commits a crime, prompting employers to engage in “statistical” discrimination and racial profiling. Then there is the fact that in certain circumstances, the kind of arrest record a person has may, in fact, make them unfit for the position in question as we mentioned in the previous section. For example someone who has been arrested multiple times, or on multiple counts, for possession of child sexual abuse material (CSAM) is not the best candidate for the position of a home healthcare service provider or nanny for a child.

Even so, there could be added factors at play including an unconscious bias and that’s what the Ban the Box proponents are looking to address. That is, left to their own assumptions, employers may look at racialized incarceration rates and believe that statistically it is more likely that a Black or Hispanic person has a criminal background they say. Studies have shown this to be the case — as mentioned previously, employers have proven to be more likely to unknowingly hire a white man with a record than a Black man without one.

It is important, however, to stress that using race as an indicator or signal of a concrete criminal record is racial profiling. Whether this is overtly stated or not, statistical discrimination and racial profiling are still illegal.

According to proponents of Ban the Box policies, though, the existence of such phenomena does not mean the law as a whole is useless and has been ineffective. Some studies have successfully demonstrated that there is not much evidence that the positive effects engendered by Ban the Box have been met with a subsequent increase in racial profiling.

Others say that racial discrimination is systematic and a society-wide problem that exists with or without Ban the Box. The problem, according to one member of the group that began the Ban the Box movement, is not the policy itself, but rather the fact that employers seem to find loopholes, maybe inadvertently, to continue discrimination. Thus, the solution according to such stakeholders is not to get rid of these policies but to augment them with other legislation.

Some have drawn comparisons between racial and gender discrimination to better explain this — the solution to gender bias is not to remove discrimination laws. Legally, a company cannot explicitly turn down a woman for a role because she might get pregnant later, nor can health insurance companies set different premium rates based on gender disparities in health needs. 

There are many suggestions as to what can be done to improve access to employment for released prisoners.

• Reviewing and reforming processes related to expunging and sealing records
• Holistically supporting reentering prisoners from day one. Currently, they receive minimal preparation before release and insufficient support outside. The first month post release is extremely crucial, studies show, with them being highly vulnerable to homelessness and/or recidivism at that point.
• Allowing applicants to review and correct/explain (if applicable) their background checks.
• Allowing applicants to prove that they have been rehabilitated or have served their sentences, such as through certificates demonstrating compliance with terms of release or incarceration, support letters from the community, or testimony from parole officers.
• Financially incentivizing employers to hire people with criminal records.
• Setting some sort of measurable gold standard for gauging rehabilitation.

The most pressing and crucial measure, however, is more robust data collection and analysis. Right now, despite Ban the Box laws having existed for over two decades, there is no central database with criminal records, employment rates, and recidivism rates. Armed with concrete, conclusive, comprehensive numbers, policy experts and academicians will be able to better study the full extent of the implementation of Ban the Box laws and will be able to accurately assess their impact.

Ban the Box laws cannot exist in a vacuum, though. With everything from gun violence to hate crimes and child sexual abuse cases on the rise across the nation, especially since the onset of the Covid-19 pandemic, public safety, child safety and the safety of the vulnerable has never been more crucial. Background checks using real-time data is definitely a key way to prevent more crimes from occurring. And both Ban the Box and background checks have to co-exist in order to improve overall public safety while giving the incarcerated a chance at a livelihood.

You can find an in-progress, state-specific list of specific background check rules and guidelines here.