To advance meaningful criminal justice reform, ban the box

Photo by John Jordan

Jim Smith is ready for a fresh start. While serving time in prison after receiving a felony conviction for possessing a controlled substance, Jim took advantage of every job-training program available. Now that he's served his time, he's ready to turn his life around.

But Jim quickly discovers that at every turn, there are barriers preventing him from moving forward. Eager to complete a college degree, he finds he is not eligible for financial aid because of his status as a convicted felon. Public housing is similarly off the table.

With bills piling up, Jim focuses his attention on getting a job. But Jim lives in Texas, one of 31 states that has not yet "banned the box” — meaning potential employers can still require him to disclose his criminal history on job applications. He’s filled out dozens of applications with no success.

For the thousands of men and women in Jim’s shoes, President Barack Obama’s announcement last week to ban the box on federal job applications is a big deal. Obama’s executive action removes an obstacle standing in the way of convicted felons getting a first shot at employment.

All of us concerned with both public safety and fiscal responsibility have an interest in removing barriers to employment for those who have served their sentence and are trying to move forward with their lives. Employment can substantially reduce the risk of recidivism. Dr. Art Lurigio at Loyola University surveyed 1,600 people after their release from state jail in Illinois. Of those who found work, only 8 percent committed another crime. Compare that with Illinois’s average recidivism rate of 54 percent. The correlation between gainful employment and reducing recidivism is strong.

However, even organizations that tend to be on the right side of criminal justice reform have come out in opposition to the box ban in anticipation of “forced regulation” by the government on private business. In a recent interview with Texas Standard, Greg Glod of the Texas Public Policy Foundation's Right on Crime program relied on alarmist buzzwords such as fiscal waste, inefficiency, litigation and unintended consequences.

Glod’s claim that this measure will lead to extra expense for business by placing the burden of running background checks on the employer is without merit. Banning the box does not prevent employers from running background checks; it simply delays access to applicants’ criminal history to a later stage in the hiring process. And research shows that employers are already bearing this cost: According to the Society of Human Resources Management, the largest association of human resources personnel, 92 percent of their members regularly perform criminal background checks on candidates.

Waiting until later in the hiring process to perform a background check can make a difference. The National Institute of Justice conducted a study in New York City finding that employers are 50 percent less likely to pursue an applicant with a criminal history — but that a candidate’s prospects improve considerably when they have a chance to interact with a hiring manager. Delaying the employer’s knowledge of an applicant’s criminal history can give a candidate a chance to establish their qualifications and make a good impression.

Groups such as Glod's have offered what they consider a superior alternative to the box ban: sealing criminal records using Texas' order for nondisclosure. But such orders are not available for people whose criminal charges resulted in an actual conviction. They only apply in cases resulting in deferred adjudication — a plea bargain scenario that doesn’t leave an individual with a conviction on their record. Nondisclosures do nothing for the much broader population of folks re-entering society after serving time in jail or prison.

More than 100 cities and counties across the nation have passed a ban-the-box ordinance (and the Austin City Council likely will vote on one by the end of the year). While many of these policies are new, early data shows they can have considerable impact.

For example, in Durham, North Carolina, the proportion of people with criminal records hired at the city increased from 2.2 percent in 2011 before the box ban to over 15 percent just three years later in 2014. And in Minneapolis, the city hired 6 percent of people with criminal backgrounds before the policy took effect in 2007 — and now that number is over 54 percent.

According to a study conducted by the Vera Institute, the average annual cost of incarcerating one inmate is 31,286. If we know that there is a positive correlation between employment and reduced recidivism, then isn’t it smart to remove unnecessary obstacles preventing these Texans from getting jobs?

These are interesting times for criminal justice reform in Texas and across the nation. Texas is poised to be a national leader. But what kind of leader will we be? We need change agents willing to step outside their box and look at the issues with a broad lens. Banning the box gives the very people our society needs to be employed a fighting chance by letting them get a foot in the door.

Karen Gross

Criminal defense attorney

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