The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I have spoken strongly against public policy that coerces private employers to ignore job applicants' criminal records, while leaving them to cover the costs imposed by ex-offender employees.
Government, and thus the society generally, should pay for rehabilitating offenders just as it pays for punishing them. Integrating persons with criminal records into legitimate society should be a governmental responsibility. Government entities should start by reforming their own hiring policies and occupational licensing restrictions. (There are hundreds of occupations which state laws place off limits to persons with prior convictions.) Federal, state, county and local employment disqualifications and exclusions reinforce the public perception that individuals with prior criminal records are likely to commit future crimes.
Over the last decade, the Ban the Box movement has achieved some significance success in persuading cities, counties, and a few states to expand ex-offenders' job opportunities by removing "the prior convictions box" from their employment applications. The job application is initially reviewed without knowledge of criminal record information. If, on the basis of the written application and subsequent interviews, the applicant is recommended for employment, a criminal background check is authorized. At that point, any prior convictions will be assessed in light of the already-compiled favorable information.
We do not know how successful Ban the Box has been in achieving employment for ex-offenders who would not otherwise been hired by government agencies. Obviously, Ban the Box reaches only ex-offenders who are job-ready. It will be of most help to those ex-offenders with the most education, skills, job experience and competent presentation of self, in other word to white collar offenders.
Ban the Box will be of little or no help to ex-offenders who are mentally ill, educationally deficient, lacking work history and social and occupational skills. It will be of little if any help to ex-offenders with extensive records of recidivism and to those who have been incarcerated for many years on account of horrific crimes. [In 2008, 36 percent of ex-prisoners lacked a high school education or GED. Sixty percent reported using illegal drugs in the month before their current conviction offense; 16 percent reported being diagnosed as mentally ill.]
Success in integrating ex-offenders into the public sector work force would establish a strong case for repealing occupational licensing restrictions on ex-offender and provide a persuasive example for private sector employers. (Target Stores, the nation's second largest retailer, announced in late 2013 that it would voluntarily ban the box.)
Government should also support programs aimed at promoting ex-offender employment. This includes better job preparation programs in jails and prisons and transition-to-work programs in the community. The not-for-profit Chicago-based Safer Foundation provides a model for getting ex-offenders job-ready and finding them placements with willing employers. The preparation, involving coaching, counseling and training can take many months. Because the Safer Foundation seeks to establish long-term relationships with employers, its recommendations need to be credible. When Safer vouches for an ex-offender, it puts its credibility and reputation on the line. The employer is made aware of the ex-offenders full criminal record and the basis of Safer's conclusion that the person is job ready, able and willing.
After an ex-offender is placed with an employer, Safer maintains contact with employer and employee. If problems arise, Safer works with employer and employee to resolve them. The availability of these post-employment services has persuaded scores of employers to take a chance and has enabled ex-offenders to make the transition into legitimate employment.
For ex-offenders who are not job-ready, government could provide transitional employment. A credible government-run work program could work to bring ex-offenders to job-readiness and eventually certify that the client had worked regularly and successfully for a significant period of time. Supervisors could provide references. However, for recommendations to be credible, they would need to be earned, not handed out automatically.
It is not fair to force private employers to internalize the costs of risky ex-offender employees. Rather than forcing private employers to ignore criminal records, government should, by example, seek to demonstrate that ex-offenders can be safely and successfully employed.