'Ban the Box' Goes Too Far... and Not Far Enough

All over the country, towns, cities and even states have begun a move towards policies that "ban the box" and forbid employers from asking individuals about previous criminal convictions. It's a decent idea on the surface, but on analysis, it goes both too far and not far enough. If America wants to get serious about reintegrating the hundreds of thousands of people released from prison and jail each year, "ban the box" won't solve many problems.

Nonetheless, the idea seems to be sweeping the country. Philadelphia already forbids employers from asking about previous criminal convictions and Baltimore seems likely to do the same. Under these laws, job applications can't include a "box" asking about criminal history although employers can do background checks later in the process.

And the policy has certain things to recommend it. Most criminals suffer ordinary human weaknesses -- greed, envy and rage -- that afflict almost everyone sometimes. Many have real mental health problems. Some may get trapped in drug or alcohol abuse, at least partly, for genetic reasons beyond their control. Giving second chances to people who have committed crimes, but completed their sentences is a good idea that can benefit employer and employee alike. In previous jobs, I've personally hired two people I knew to have criminal records.

That said, I don't think that "ban the box" will accomplish much and, in some cases, it may make employers less likely to hire people with criminal records. Understanding a jobseekers' career accomplishments, history at work, and their relationships with previous co-workers is a key to any good job interview. Such an interview will inevitably bring up any period of incarceration. Thus, an employer who finds out about a conviction that a jobseeker doesn't volunteer upfront is going to feel deceived and will find a reason not to hire. Since the laws don't forbid background checks altogether, they may actually encourage employers to perform them since they know they can't ask upfront.

And the employers may have a good reason to do this. Unlike race, sex, national origin, sexual orientation, religion and other protected characteristics, having a criminal record obviously can have a significant bearing on someone's ability to do a job. Since it's (rightly) almost impossible to win a lawsuit over a "failure to hire," people who are discriminated against unfairly in a "ban the box" regime won't have much recourse. Without evidence that it will actually do good for ex-offenders, I think that "ban the box" might actually hurt the people it tries to help.

This doesn't mean that ex-convicts should necessarily have to carry the stigma of an offense around the rest of their lives. In this case, the United Kingdom's practice of allowing offenses to become "spent" deserves a close look in the U.S. In the UK, offenders that behave well can consider jail/prison time "spent" after seven or 10 years of good behavior. Once a sentence is spent, it isn't mentioned in publicly available records and, for most purposes, it's considered a non-issue. Recent criminal history can still be asked about and considered, however.

This policy makes sense. Few employers will want to go back more than a decade and a person who has really stayed out of trouble for a decade is almost certainly going to continue to keep his or her nose clean. Under an offense spending regime, certain records do still exist and national security, law enforcement and childcare-related employers can access them. Furthermore, records of the worst crimes -- the UK's standard is those requiring prison sentences of more than two-and-a-half years -- do still follow offender around for life.

Absent evidence that it actually does good for ex-offenders, "ban the box" seems like a bad policy. But a more sweeping and radical proposal to allow offenses to be spent deserves very serious consideration.