Criminal Justice

Obama Administration Doesn't Want Us to Hold Its Overzealous Prosecutions Against Its Targets

A week to try to help ex-prisoners return to communities follows years of relentlessly putting them away.


Credit: Photographing Travis / photo on flickr

The same government that threw the book at a man and tossed him in federal prison for facilitating a comical alteration of a headline at a news site wants to tell us all how to treat him when he finally gets back out.

The Department of Justice (with the support and backing of the Obama administration) has been holding something called National Reentry Week this week. They've sponsored tons of resource fairs and events and presentations all designed to facilitate the return of the people the government has locked away (some for good reason; far too many for bad reasons) to the outside world.

On this last day of the reentry blitz the administration announced it wants to "Ban the Box" for many people seeking jobs with the federal government. The "Ban the Box" movement is a push to eliminate the checkbox in job applications that ask people if they've ever been convicted of a crime. The idea is not to eliminate the consideration of criminal background entirely in the employment process. Instead the goal is to push it to later in the process so that applicants aren't immediately screened out on the basis of a criminal background that never gets evaluated to determine whether it's relevant to the job duties.

According to BuzzFeed, if the federal government had the rule in the place, it would have affected about half of the federal government's 200,000 hires in 2015. The rule would not apply to jobs in intelligence, national security, and law enforcement, and additional exceptions could be requested.

Dozens of major corporations are also signing on to voluntarily shift the way they consider job applicants in a "Fair Chance Business Pledge," and good for them, as long as these are voluntary shifts and not government mandates. Businesses are best equipped to decide for themselves the circumstances by which they'll consider the risks involved in hiring ex-cons, not the government.

Unfortunately—and sadly typically—if the government  thinks something's a good idea there are going to be people who believe it should be mandated by laws or regulations. Obama adviser Valerie Jarrett even took note of this slightly ominous threat from the Labor Department when talking to reporters (via BuzzFeed):

Asked whether there was consideration of whether to take action to require federal contractors to "ban the box," Jarrett said, "The president has supported federal legislation that would ban the box for federal contractors. He thinks that's the best approach."

Jarrett also noted, however, that the Department of Labor in 2013 adopted earlier guidance from Equal Employment Opportunity Commission to, in her words, "recommend that contractors refrain from inquiring about convictions on job applications." That Labor Department directive, she added, also warned there are scenarios in which criminal records-based exclusions could violate civil rights protections.

How could it be a civil rights violation to exclude ex-convicts? The EEOC points to the "disparate impact" on racial minorities scenario, which turns this all a little strange. The EEOC points out in its guidance that African Americans and Latinos are arrested in numbers disproportionate to their percent of the population. It even notes that Latinos face federal drug charges at a rate three times higher than the rest of the population.

But this is all happening because of the behavior of the federal government itself, not the private job sector. It is not McDonald's or Target or Microsoft that is putting these people in jail. This disparate impact is a direct result of the behavior of the government, including the very Department of Justice that is now taking a week away from abusing conspiracy laws in order to throw people in prison to beg us to help those same folks back into society.

So what we have here is one federal agency threatening to punish private employers for the civil rights violations that are actually caused by another federal agency.

Here's a better idea: If the federal government wants employers to give less consideration to applicants' criminal records, stop finding so many awful reasons to try to throw people in federal prison in the first place. Then maybe they can go around lecturing private businesses about "disparate impacts."