Asking questions about criminal records on job applications is America's “most serious civil rights issue,” advocates for ex-offenders say.
At a time of high unemployment, most Americans may not sympathize with the struggles of ex-offenders to get jobs. But consider what happened to Glenn Martin.
In June 2001, Martin walked out of the Wyoming Correctional Facility in western New York a free man after serving six years for a 1994 armed robbery of a New York City jewelry store. In the following two months, he applied for 35 jobs–all entry-level positions, from retail clerk to assembly line worker.
He didn't even get to first base. Then 23, he had a high school degree and experience managing a food concession. Although his qualifications might have earned him the same chance of an interview to plead his case that his fellow citizens have, he was turned down without a second glance. All of his prospective employers made their decision solely on the fact that Martin had checked a box on his employment application confirming that he had a criminal record.
In New York State, such discrimination is against the law. Martin wasn't aware of that, but even if he had been, it would have been small consolation. Similar check-boxes in employment applications around the country defeat thousands of former prisoners every year who are trying to go straight.
Whether or not you are concerned about employment equity, such boxes are arguably counterproductive. Some political leaders and advocates claim that this and similar bureaucratic hurdles could lead frustrated ex-offenders back to their old habits–and endanger public safety. “This is about being tough and smart on crime prevention, reducing recidivism, and helping ex-offenders get back on their feet to lead productive lives,'' said Massachusetts Governor Deval Patrick in arguing for ban-the-box legislation in that state, which passed in August.
Given the soaring number of people leaving prison each year–four times what it was in 1985–the problem is likely to get bigger. The increase stems from an incarceration rate that has more than doubled over the past two decades, resulting in more ex-offenders on the street after serving their terms.
Another key factor is the economic crisis. Many states struggling to address budget deficits have begun accelerated early release of some prisoners convicted of nonviolent crimes. And if it's tough for the average person to get a job with a national unemployment rate of almost 10 percent, it's doubly hard for those with a criminal record. There are no nationwide figures for unemployment among ex-offenders, but a 2006 study by New York's Independent Committee on Reentry and Employment (an advisory group assembled at the request of the New York State Division of Criminal Justice Services) cited rates in the state of up to 60 percent for formerly incarcerated people one year after their release.
Worse, a disproportionate number of those coming out of prison are African American and Hispanic, exacerbating the already high overall unemployment rates among these groups. Unemployment figures for African Americans now stand at 16 percent and those of Hispanics 12 percent, versus 8.7 for whites.
Martin finally found a way to clear the employment-box hurdle. The New York City-based Osborne Association, which assists released offenders, helped him land a $16,000-a-year job answering phones for the Legal Action Center, a nonprofit law firm that advocates for ex-offenders. By 2005 his hard work had impressed his employers enough that he was appointed deputy director of the firm's national hiring network that helps ex-offenders find employment.
His experience convinced him that even for ex-felons like himself who are convicted of violent crimes, the cycle of unemployment-trouble-prison can be broken if someone is willing to lend a helping hand. Now 39, he runs a public policy center at the Fortune Society, a nonprofit that supports re-entry for ex-offenders, and serves on numerous boards. He owns two houses in New York City.
Martin thinks ban-the-box initiatives can be “huge” in the thirty-six states that, unlike New York, have no law against discriminating against people with criminal records, “Ban the box is a great communications tool to get people talking about job seekers with criminal records, why they should be working, and how [employment of ex-offenders] lends itself to public safety,” he says.
Jobs 'lower recidivism'
Indeed, a large body of research links employment with reduced recidivism. A 2008 study in Illinois, for example, found that just sixteen percent of ex-prisoners employed for one year committed another crime. That compared with an overall recidivism rate of 54 percent for all released Illinois prisoners, including those employed less than a year.
But few can get to the employment stage as long as they are faced with that question of jail time on their job application. Even worse, the “employment box” may also exacerbate racial discrimination. A 2003 study by Princeton University researcher Devah Pager in Milwaukee showed that, after revealing their criminal record on the form, formerly incarcerated white applicants were half as likely to get a call back from prospective employers as those without a record. Black applicants with a record were about a third as likely to be called as those without.
If former prisoners can survive the initial screening and get an interview, say many experts, they can give a complete picture of themselves.
“Once people make a personal connection with somebody, it's a lot harder to dismiss them out of hand,” says Margaret Colgate Love, who was the U.S. Pardon Attorney between 1990 and 1997 and authored the 2005 Relief from the Collateral Consequences of a Criminal Conviction: A State-by-State Resource Guide. “It's really easy to throw resumes in the wastebasket if you don't even know who the applicants are.”
But getting rid of the box itself should be the ultimate goal, the experts say.
Perhaps appropriately, the campaign to “ban the box” began by targeting one of the country's largest employers: state and municipal governments.
On February 23, 2001, Boston City Councilor Chuck Turner and three others staged a 33-hour sit-in at the offices of the Massachusetts Department of Public Health to protest new hiring rules at the state's Executive Office of Health and Human Services, a major employer. The requirements took away managers' discretion to employ applicants with criminal records, including nonviolent offenders convicted of, for example, illegal betting, drug possession, or check fraud.
The attention led the Boston-based Northeastern University School of Law to produce a series of reports documenting the impact of employment discrimination on ex-offenders. In 2004, Turner successfully introduced an ordinance prohibiting city agencies from including the question about criminal records on their job applications. By 2006 the council had extended the ban to city contractors.
From there, “ban-the-box” legislation has spread to cities around the country. At least 21 cities, including Chicago, San Francisco, and St. Paul, Minnesota, have outlawed use of the question on their employment forms since 2004. Detroit was the latest to do so on September 29. States are following suit: since May 2009, four have passed laws blocking the question. (In 1998, Hawaii also had quietly passed its own ban-the-box legislation, a law that had little effect on the current trend on the mainland.)
Eight states have even broader laws prohibiting state agencies–at any stage of the hiring process–from weeding out applicants because they have a record; another six include private employers. Sensitive jobs like teachers and police are exempted from these statutes, as are jobs where an employer can show that the criminal record is directly relevant to the job duties.
Federal legislation also might be in the works, but if so the specifics remain vague. Illinois Congressman Danny Davis, a Democrat, told The Crime Report that at a Congressional Black Caucus conference in September, “we had a tremendous discussion and agreed on what we need to do.” Representative Charles Rangel, another Democrat, may be planning to introduce ban-the-box legislation next year, according to Davis, but he couldn't offer more specifics. (Representative Rangel's office didn't return several calls for comment.)
“There does seem to be a snowball effect,” says Madeline Neighly, an attorney at the National Employment Law Project.”I think part of it is states and cities realizing that a key to public safety is reducing recidivism, and the way to do that is giving folks access to reintegrate into their communities and provide for themselves and their families. And to do that you need a good job.”
Most ban-the-box laws still allow criminal background checks at a later stage of the hiring process.
“Ban the box is not quite the right description of what these laws tend to do,” says Sharon Dietrich, an employment law attorney at Community Legal Services of Philadelphia. “It's really postpone the box.”
And even those that don't allow background checks exempt sensitive jobs from the rule, such as those involving contact with children and the elderly.
Neighly concedes “there's very little data at this point” regarding the effect on recidivism of removing questions about jail and prison records, And she adds that researching the issue in this economic climate is challenging given how few employers are hiring anyone, let alone applicants with a criminal record.
And while ban-the-box may fly in blue states like Minnesota and Hawaii, it's not on the table in Texas and Alabama.
Even in liberal states, not all policymakers are embracing bans or delays in criminal background checks. In 2009, the Illinois legislature voted down a bill that would not even have banned the box entirely. Employers still would have been allowed to ask about violent felony convictions on their applications.
In June, Connecticut Governor Jodi Rell vetoed a bill that bans the box and delays the background check until the person is offered a job, arguing in part that the state will waste resources interviewing applicants for sensitive jobs who don't qualify because they're ex-offenders. (The legislature overrode her veto.)
Still missing: the private sector
But action by states and cities won't address the larger problem of finding jobs for ex-prisoners unless private business is on board.
None of the 21 cities that have passed ban the box include private employers under their provisions (though four of them do cover city contractors). And in only two of the five states that have the law are businesses regulated. Given that the private sector represents about 65 percent of the nation's economy and that federal jobs are not covered by these statutes, most job seekers in those jurisdictions still will face the crime question on applications.
The Massachusetts legislation may offer a template for gaining the business lobby's support for removing the crime question on applications. In August, a ban-the-box law passed in Massachusetts with broad support because it was part of a compromise that gives businesses access to a state criminal records database at a later stage of the hiring process and some liability protection. As a result, one of the groups pushing for the new law was the business lobby Associated Industries of Massachusetts, and one of its original co-sponsors was a Republican Party star, then-State Senator (now U.S. Senator) Scott Brown.
Glenn Martin believes that ban-the-box laws are only at best a first step towards educating employers. “I agree that [the box] was enough to make employers pause and say 'I'm not going to hire you,'” he says of his experience in New York State, which has no such law but is one of the fourteen states with a broader statute banning job discrimination against ex-offenders. “However, I think the missing piece is that most of these businesses didn't know that they were breaking the existing state law. And I didn't either.”
Back in Boston, the organizers of the original ban-the-box movement agree that there's no data to show the impact of the 2004 city ordinance. But Aaron Tanaka of the Boston Workers Alliance, one of the grassroots groups that lobbied for the Massachusetts law, says the stories of individual people who have benefited show it's working as intended.
One of those is Cedric Daniels, age 42. He told The Crime Report that between 1985 and 2008, he spent 18 years in prison on a number of convictions for selling drugs. Each time he was released, he applied for scores of jobs only to be turned down on the spot because of his record. “Anytime I'd get out, I'd have a hard time getting housing and finding a job. So I'd try to make a quick dollar and get caught up [selling drugs] and land back in prison again.”
After leaving prison in 2008, he decided to change his life and started doing volunteer work while living at a shelter. That led a contact at a city agency to recommend him, and in May 2010, Boston's Department of Parks and Recreation called him with an invitation to apply for a seasonal maintenance position. He landed the job despite his record.
But his situation also shows why banning the box on job applications doesn't address all the legal hurdles facing offenders trying to re-integrate into society. Daniels says he can't qualify for subsidized housing provided through the Boston Housing Authority (BHA) with his record. (The BHA notes on its website that it does criminal background checks on those seeking housing but doesn't say how it uses those records to screen applicants. The BHA did not return calls for comment.)
So Daniels is looking for an apartment on his own, but that's not going well either. A landlord told him that his application was subject to a criminal background check. Although there were three units free in the housing complex he was trying to get into, the landlord never called him back.
Advocates argue nevertheless that ban-the-box laws send an important signal to private employers as well as the public that it's worth taking a chance on ex-offenders. “It's just one item in the toolbox,” says Le'Ann Duran of the Council of State Governments.
But it also is crucial to addressing one of the most tragic facts about today's U.S. justice system: imprisonment rates for non-white populations are far higher. A recent report from the Pew Foundation notes that 1 in every 87 white males ages 18 to 64 is incarcerated; the number for similarly aged Hispanic males is 1 in 36 and for black men 1 in 12. Harvard law professor William Stuntz has calculated that the African American imprisonment rate in 2000 was roughly one-third higher than the incarceration rate of Soviet citizens in the gulag during the last years of Joseph Stalin.
And that overrepresentation means that the little box on job applications has an enormous impact on equal opportunity for those in minority communities.
That may be why Dietrich of Philadelphia's Community Legal Services says ban-the-box legislation addresses “the most serious civil rights issue of our time.”
Steve Yoder is a freelance journalist based in Woodstock, New York.
Photo courtesy U.S. Air Force, by Tech. Sgt. Larry A. Simmons