The effects of arrest, conviction, and incarceration go beyond overcrowded prisons and negative psychological effects. Such “collateral consequences” include voter disenfranchisement for people with felony convictions, registration requirements for those found guilty of sex offenses, and employment discrimination through disclosure requirements and background checks. These penalties can stymie rehabilitation efforts by restricting an individual’s ability to re-integrate into society. National data showing African Americans and Latinos disproportionately convicted and imprisoned at a rate that does not correspond to their actual crimes committed[i] suggests that these penalties affect communities of color most. Thus, biases in criminal justice result in further discrimination that restricts long-term well-being.
In particular, gaining employment after release from prison is important for many reasons. Employment provides a daily structure to combat depression and the income needed to avoid further criminal activity.[ii] This reality has prompted some scholars to advocate for the inclusion of ex-offender status in firm-level diversity management programs.[iii] Some rehabilitation-focused organizations have even found the employment of ex-offenders beneficial in relating to other ex-offender clients.[iv] Yet those who have completed their sentences are regularly thrown out of applicant pools because they are perceived as possible threats. Due to liability standards, hiring firms fear they might be held responsible for possible future offenses by these individuals should they victimize clients or co-workers while in their employ.[v]
The “Ban the Box” movement in local and state governments provides one solution to this form of employment discrimination by physically removing the “box” that job seekers must check on application forms to indicate conviction of a crime. Advocates for this solution argue that eliminating the requirement prevents employment discrimination as well as ex-offender discouragement as they seek reentry into society.[vi] Several reports have surveyed this movement occurring throughout the United States. The National Employment Law Project found recently, for example, that 13 states and 97 localities have eliminated the reporting requirement since 1998.[vii] This trend appears to be gathering force, illustrated by the fact that the eight most recent state bans passed in 2013 and 2014.
One of the most contentious elements of these efforts relates to their application to private as well as public employers. A large percentage of the “Ban the Box” ordinances regulate private businesses in some form, a stipulation that complicates the issue for many. Since many private firms reacted negatively to previous anti-discrimination legislation compliance requirements, such as affirmative action, one could predict a similar response in this case. [viii] However, those views did not prevent affirmative action from yielding positive effects. Most federal, and some state, contracting companies are required to implement affirmative action plans, which have been found to be effective in reducing employment disparities across race and gender in organizations.[ix] Thus, despite negative views of these policies among some groups, they nonetheless appear to be effective instruments in accomplishing their goals.
I suspect that the history of anti-discrimination compliance regulations has normalized these practices. As a result, my sense is that despite initial negative reaction by some, ultimately, provisions that require ex-offenders to reveal that status in job applications following their incarceration will be eliminated. Martin Luther King Jr. famously stated that although he knew hearts could not be legislated, the law could still correct some injustices.[x] Affirmative action and “Ban the Box” policies have the potential to do precisely that by eliminating key discriminatory barriers for the populations they address. By legally requiring a new practice, “Ban the Box” can change minds as well as discriminatory practices in the long run.
Besides creating the potential for lasting positive change for individuals formerly involved with the criminal justice system and thereby contributing to the health of communities and society at large, the “Ban the Box” anti-discrimination movement also highlights the power of grassroots efforts. Several scholars have suggested the potential of this form of local legislation to serve as an example for more sweeping regulation.[xi] The fact that 13 states have recently enacted such laws, many after the successes of local policies within their jurisdictions, supports this view.
One reason for this may be the relative logistical ease of passing laws at the local government level, yet I also wonder if so many cities would have implemented “Ban the Box” legislation without citizen pressure. Bennett and Giloth’s (2008) comparative case studies of five cities’ “equity policies” suggested that “even the best of cities can only go so far in adapting and promoting equity ideas without a grassroots, multiracial, multiclass coalition for change.” [xii] Such coalitions across the nation, along with advocacy from organized groups such as All of Us or None and the National Employment Law Project, may have led to this anti-discrimination movement’s success to date.
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[i] Blessett, B., & Pryor, M. (2013). The invisible job seeker: The absence of ex-offenders in discussions of diversity management. Public Administration Quarterly, 37(3), 433.
[ii] Bohmert, M. N., & Duwe, G. (2012). Minnesota’s affordable homes program evaluating the effects of a prison work program on recidivism, employment and cost avoidance. Criminal Justice Policy Review, 23(3), 327-351.
[iii] Blessett, B., & Pryor, M. (2013). The invisible job seeker: The absence of ex-offenders in discussions of diversity management. Public Administration Quarterly, 37(3), 433.
[iv] Tomlinson, F., & Schwabenland, C. (2010). Reconciling competing discourses of diversity? The UK non-profit sector between social justice and the business case. Organization, 17(1), 101-121.
[v] Henry, J. (2008). Criminal history on a ‘need to know’ basis: Employment policies that eliminate the criminal history box on employment applications. Justice Policy Journal, 5(2), 1-22.
[vi] Henry, J. S., & Jacobs, J. B. (2007). Ban the box to promote ex‐offender employment. Criminology & Public Policy, 6(4), 755-761.
[vii] National Employment Law Project. (2015). Resource guide: Ban the box. Retrieved from http://www.nelp.org/page/-/SCLP/Ban-the-Box-Fair-Chance-State-and-Local-Guide.pdf?nocdn=1.
[viii] Sabharwal, M. (2014). Is diversity management sufficient? Organizational inclusion to further performance. Public Personnel Management, 0091026014522202.
[ix] Kalev, A., Dobbin, F., & Kelly, E. (2006). Best practices or best guesses? Assessing the efficacy of corporate affirmative action and diversity policies.American sociological review, 71(4), 589-617.
[x] King, M. L. (1968). Two Americas. Retrieved from http://www.thekingcenter.org/archive/document/two-americas.
[xi] Henry, J. (2008). Criminal history on a ‘need to know’ basis: Employment policies that eliminate the criminal history box on employment applications. Justice Policy Journal, 5(2), 1-22.
[xii] Bennett, M. I., & Giloth, R. P. (2008). Economic Development in American Cities: The Pursuit of an Equity Agenda. SUNY Press, 221.
Sarah Halvorson-Fried is a student in the Master’s in Urban and Regional Planning degree program at Virginia Tech. She received a bachelor’s degree in philosophy from Macalester College and has worked in agricultural education, engagement and community building in the Twin Cities, Minnesota. Sarah currently serves as a graduate assistant in Partnerships and Engagement at the Center for the Arts at Virginia Tech. Through her studies, she hopes to understand how public policy can more effectively facilitate community driven, equitable economic development.