After 20 Years, ‘Ban The Box’ Isn’t Working
Reprinted with permission from Creators.
The original “ban-the-box” law — a prohibition on asking prospective employees to tick off a checkbox whether they’ve been convicted of a felony — turned 20 this year. The first of the bans happened in Hawaii in 1998. And no one’s wished the law a happy birthday.
Don’t feel bad. The anniversary of these laws doesn’t deserve that much celebration anyway. Banning the box doesn’t really work.
It’s long been thought that the best way to help a person leaving prison is to give them a job. Not only can that person not afford housing without income, but the disciplinary forces of the labor market — he can lose his job if he’s late or doesn’t perform — help him toe the line.
But we’re not providing this assistance. According to the Prison Policy Initiative, as many as 27 percent of formerly incarcerated people are unemployed. That’s more than were out of work during the Great Depression. This historic level of unemployment persisted in 2018 despite 33 states and more than 150 cities having adopted a ban-the-box law.
It looks like the bans are bombing.
One study specifically examined ban’s effectiveness in Hawaii, where the law’s been in effect the longest. Researchers looked to see if people who were arrested in the state had a previous record; from that they would conclude whether the ban was working. Researchers celebrated when they found that 57 percent of people arrested lacked a previous conviction. To them, that meant that more than half people were not re-offending, only offending.
But look at the facts contained within the study results: If 57 percent of people arrested didn’t have a prior conviction, then 43 percent of them had one, a recidivism rate that’s similar to jurisdictions that still allow employers to ask about a criminal background.
I fail to see how this ban is effective when almost half of people interface with the system again. I would have expected a more pronounced decrease in reoffending.
Where ban-the-box laws aren’t bombing, they’re backfiring, especially in how they affect men of color trying to get a job. The late Harvard sociology professor Devah Pager found that the ban-the-box law added another barrier for this population to mount in getting jobs.
Pager discovered that companies culled out applicants with “racially distinctive” names, using the names as a proxy for criminal justice involvement. The more “black sounding” a person’s name was, the less likely he was to get an interview. Pager’s study showed that not disclosing a criminal conviction doesn’t prevent employers from filling that blank themselves, even if it’s with an incorrect conclusion.
Not that all conclusions are incorrect. One of the ban’s most profound limitations is the fact that it applies only to the actual job application. Nothing prevents a hiring manager from Googling an applicant’s name to find news reports of arrests or checking local courthouse websites for pending charges or recent convictions. As long as there’s no checkbox, other circumvention of the ban is completely legal. And even if were unlawful, it’s impossible to police.
Bypassing the ban isn’t its biggest problem. My beef with the ban is that we’ve defined success in ex-offenders by disappearance and deceit. Your ability to hide your past, at least part of it, from neighbors and employers is key to survival. Re-entering society after prison or a felony conviction is great training in slyness and social chameleonism, and the ban gives tacit approval to this.
And that was never the ban’s purpose. Like me, the drafters of the legislation simply believed businesses should consider a job candidate’s qualifications first and foremost, outside the clouded lens of an arrest record, a criminal conviction or other stigmatized characteristic.
But it’s not clear that ban-the-box laws are really encouraging this, at least not if you examine the evidence of their effectiveness closely.
Happy birthday, ban the box, but I can’t wish you many more.
To find out more about Chandra Bozelko and read features by other Creators writers and cartoonists, visit the Creators website at www.creators.com.