/ Boxed Out: Consequences of Ban the Box Subscribe

While many view prison as a temporary punishment, formerly incarcerated individuals must contend with the mark of a criminal record for the rest of their lives. As mass incarceration continues to affect more and more Americans, policymakers are trying to develop programs that help those with a criminal record successfully transition back into society. Obtaining employment has become a particular area of focus, as working post-release has been assumed to lead to decreased risks of recidivism. However, studies have shown that those with criminal records face a particularly bleak labor market. To help end this labor market discrimination, a new policy called “Ban the Box” has been introduced as a potential way to help those with a criminal record obtain employment. Ban the Box (BTB) prevents employers from asking about criminal history on initial job applications. In most jurisdictions, BTB does not ban private or public employers from asking about criminal history but postpones this question until a later stage. Theoretically, the policy prevents employers from immediately eliminating those with a criminal record from their application pools, allowing qualified candidates to get further in the application process before having to disclose their criminal history. By delaying this identification, those with a criminal record are allowed to introduce themselves on the basis of their qualifications rather than their records. It also enables them to detail the circumstances of their criminal history, explaining the conditions of their arrest, the treatment they have obtained post-release, and other factors that might mitigate their criminal history for an employer.

Policymakers have hastened to endorse and implement BTB. Currently, 25 states have implemented BTB provisions for public sector employers, nine of which also include regulations for private sector employment. Additionally, over 150 cities and counties have implemented the new policy. This is a relatively new initiative, with most state- and city-wide adoption occurring in the past five years. The newfound popularity of this policy measure, however, may be a troubling trend.

BTB is a well-intentioned policy, but there are reasons to believe that its impact may be limited or perhaps even counterproductive. BTB legally prevents firms from asking about criminal backgrounds, but it cannot force employers to want to hire those with a criminal record. If employers remain reluctant to hire those with criminal convictions but cannot determine if an individual has a criminal record on an initial application, they may rely upon characteristics such as race and lack of education to infer criminal history. Over 70 percent of African American men who drop out of high school have been incarcerated at least once by age 30, compared to only 15 percent of white male dropouts. This could lead employers to associate criminality with African Americans who have limited educational attainment, reducing their willingness to interview any candidates with these characteristics.

Given the recent introduction of BTB laws, the evidence regarding their impact is limited but suggestive.  In one study, Agan and Starr (2016) submitted fake resumes to private sector employers in New Jersey and New York City before and after BTB implementation. They find that employers who ask about criminal records are 62 percent more likely to callback (or interview) a black applicant if he has no record. While African Americans are called back at lower rates than their white counterparts overall, this gap grows even larger after BTB implementation. Prior to BTB, there was a 7 percent gap between black and white callbacks; BTB increases this gap to 45 percent. Accordingly, white applicants with a criminal history did see their callback rates increase after BTB implementation. Similarly, Doleac and Hansen (2016) find that black and Hispanic men experience a decrease in employment of 5.1 and 2.9 percent, respectively, after implementation. The evidence suggests that BTB may only be effective for whites with a criminal record but is negatively impacting minority men with limited educational attainment, including both those without criminal records and the formerly incarcerated. This is cause for concern, as minority men already face disadvantages in the labor market.

Though advocates of BTB policies have good intentions, activists and politicians must consider the nuanced effects these laws may have before fully endorsing BTB. As tackling the problem of mass incarceration remains popular for both political parties, it is an opportune time to introduce policies lessening the repercussions of the mass incarceration epidemic. However, in doing so, activists and policymakers should be cognizant of potential negative repercussions of their policies and be more targeted in their approach. BTB is based on a belief that if employers get to speak to a potential employee with a criminal record, then their opinions and biases might change; however, stigma against the formerly incarcerated in the labor market is intimately tied to race, economic status, and historical factors. Simply targeting offender stigma in the labor market without changing ideas or norms about incarceration in other spheres of life will be a policy that is neither sufficient nor, as it appears, effective.

To truly improve the lives of those with a criminal record, public policymakers must comprehensively address the economic and social stigmas that accompany a criminal record. The unintended consequences of BTB highlight the complicated and strenuous battle many with criminal records face on their path to reintegration.

Photo credit: Kathryn Decker, “The Grindstone,” via Flickr, 14 April 2011.