On Nov. 2, President Barack Obama announced a new executive order to “ban the box,” a check-off on federal job applications that requires job seekers to disclose their criminal history. Without having to make a stigmatizing confession that often causes employers to eliminate applicants before even considering qualifications, former prisoners are able to reenter society with greater ease. Unfortunately, there’s a direct statistical link between “the box” and the under-employment of former convicts, which encourages recidivism. While background checks would still happen, employers would conduct them late enough in the hiring process that they would not be preemptively disqualifying applicants. Eliminating this disclosure requirement exemplifies good policy on behalf of the Obama administration — the kind that produces positive change.
All of the 2016 Democratic presidential candidates have endorsed banning the box, and at least one of the Republican candidates supports the initiative. New Jersey Gov. Chris Christie (R) signed a “ban the box” bill into law in 2014. A recent article in the National Law Review reported that 19 other states and more than 100 cities have passed similar legislation.
The National Employment Law Project estimates that 70 million Americans have a criminal record — almost one-third of all working-age adults. The United States, which represents 5 percent of the global population, possesses one-quarter of the world’s prison population. More than 600,000 inmates are released from prison every year, and according to the Department of Justice, between 60 and 75 percent of them will still be unemployed one year later.
The box Obama proposes to ban — as some of the largest employers in the United States, including Wal-Mart and Target, have already done — is just one thread in the fabric of systemic racism within the U.S. judicial system.
In 2003, an experiment by Devah Pager, a sociology professor at Northwestern University, showed how that works. In her study, two-person teams of Black and white men from Milwaukee applied for entry-level jobs with 350 employers. Each pair had equivalent resumes and qualifications, the salient difference between them being that one of them had a criminal record. Pager’s finding, which should surprise no one, was that those with criminal records were half as likely to be asked back for an interview as those without.
The data from Pager’s experiment produced shocking results about race. Of those with no criminal history, employers asked 34 percent of white applicants back for another interview, but only asked 14 percent of Black applicants — an even lower percentage than the 17 percent of white applicants asked back despite admitting to a criminal record. Of Black applicants who admitted having a criminal record, only 5 percent were called back for another interview.
On top of the persistent racism that Blacks face in applying for jobs, flaws in the criminal justice system make it more likely for Blacks to be incarcerated and have to check the box in the first place. According to figures compiled by the NAACP, African Americans are six times more likely to be incarcerated than whites. Five times as many whites as African Americans are drug users, but African Americans are sentenced to jail for drug offenses at a rate 10 times that of whites. African Americans and Hispanics, who make up only one quarter of the total population, represented 58 percent of the U.S. prison population as of 2008.
The reasons for such statistics are manifold and well known, a product of discriminatory practices such as mandatory sentencing, “three strikes” policies and the legal disparity between crack and powder cocaine.
The good news is that the American system of mass incarceration is no longer a partisan issue. Three of the leading conservatives in the U.S. Senate — Chuck Grassley (R–Iowa), Mike Lee (R–Utah) and Rand Paul (R–Ky.) — support sentencing reform that would, at least, begin to reduce the prison population.
Without limiting the ability of employers to hire the best candidates, the federal government has the duty under the law to prevent discrimination in hiring practices. The Equal Employment Opportunity Commission’s Guidance on the Consideration of Arrest or Conviction Records in Employment Decisions states that “an employer’s use of an individual’s criminal history in making employment decisions may … violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964.”
In other words, directly disregarding an application based on criminal history can bring about legal action by the EEOC.
State governments, including Michigan’s, must accept the same responsibility. Banning the box is only a start, but it’s an important step — not only for those who lose out when they have to check the box, but also for those who are discouraged from even applying for a job because they know that their criminal record will prevent them from being considered.
As citizens, we share that responsibility with our elected representatives, and as University students, we should, at the very least, urge the adoption of “ban the box” legislation for both public and private employers statewide. Detroit, Kalamazoo, Muskegon County and Saginaw County have already adopted “ban the box” policies. The state legislature should lose no time in following suit.