Ban the Box
by Harold Dean Trulear
In a growing movement around the country, advocates for formerly incarcerated persons are pressing for “ban-the-box” legislation that would eliminate questions concerning a person’s criminal history from an initial job application. Many applications require an applicant to check a box if he or she has ever been arrested for or convicted of a felony. The job market is already difficult for the nation as a whole in the current economy; the challenges are exacerbated for those who are poor, less skilled, and undereducated, so you can imagine the obstacle that disclosing a criminal past adds to entering (or reentering) the job market.
Ban-the-box legislation comes in various forms. At its most basic level, it prohibits employers from asking questions about applicants’ criminal past on the initial application. In this mode, applicants can still be queried, and even be subject to criminal background checks, once they come in for an interview. If you picture employment as a house, this form of legislation will get applicants onto the porch but no further. In its strictest form, such as the legislation enacted last summer in Richmond, Calif., employers in certain categories are not permitted to ask about criminal backgrounds at all.
The short film puts the viewer in the position of an employer interviewing for a job opening. Will you listen to the applicant for even 30 seconds? Or will you click on the “Skip Ad” button and move on?
For insight into the discrimination returning citizens face, check out this clever and poignant message.
What is the just position?
First, no legislation currently exists (proposed or passed) that completely eliminates questions concerning criminal past nor that requires employers to hire people with criminal records. Some positions carry a legal and common sense prohibition against hiring people who have committed certain offenses. It makes sense that a person convicted of an offense against a child would be barred from teaching kindergarten or that a person with a history of retail theft (or embezzlement) would face post-incarceration sanctions concerning employment in jobs that require handling money and/or merchandise.
Second, many ban-the-box provisions require employers to consider both the nature of the crime and the amount of time that has passed since an individual’s conviction. The law in Newark, N.J., considers both, where employers are only allowed to consider offenses within the past five to eight years (depending on the type of crime). This excludes such offenses as murder, voluntary manslaughter, and sex offenses (the last of which requires registry).
Third, once applicants arrive “on the porch” for an interview, many employers can still perform a background check. Federal guidelines dictate, however, that a check cannot go forward without the candidate’s permission. What happens if an applicant refuses to give consent to a background check? Put this in the common sense column.
Fourth, those opposing ban-the-box legislation consistently point to issues of public safety. Retailers voice concern about legal liability to customers and coworkers. Others point to character issues they say are revealed in a criminal past.
In the end, each attempt at reform concerning the job application process must be measured against all of these issues. The variety of ban-the-box measures, from Richmond to Newark, make each attempt worth considering on its own merits and a realistic appraisal of what it can accomplish. One thing the legislation does not do is guarantee employment. Nor does it create jobs.
We need more than ban-the-box laws. We need to ask ourselves as a society: Are the odds stacked so high against returning citizens that we increase the likelihood that they re-offend? We need to ask ourselves as Christians: Can we influence the culture and legislation by changing our own hearts and attitudes toward the formerly incarcerated? Are we willing to put our faith into action by welcoming and, whenever possible, hiring ex-offenders?
In a recent conversation among evangelical leaders in correctional ministries, several of us talked about the need for Christians to develop a biblically informed awareness of just who the incarcerated are. First, they are all created in the image of God, a theological affirmation that should mitigate against the objectifying and dehumanization of the incarcerated—and the 95 percent of them who come home. Many were raised in our congregations. We knew them as children and youth; their parents and grandparents attend worship every Sunday, burdened by the unspoken fact that the hopes they had for their family member seem dashed and that “the circle has been broken” by walls and wire.
Second, most returning citizens do not have violent convictions but rather have drug offenses that would be better served by treatment than incarceration. The growth of drug courts in our nation recognizes such. Why can’t the church?
Third, our efforts to reclaim the offender must be matched with compassion and healing for victims. Much of the opposition to assisting the formerly incarcerated comes from persons whose own victimization by crime goes unaddressed in our pastoral care, counseling, and fellowship. Indeed, many inmates, especially women (studies place women’s numbers between 50 and 90 percent), were victims of violence prior to developing the behaviors that led to their incarceration. Restorative justice models provide a context for healing past hurts and preventing further damage.
Ban-the-box legislation rightly addresses the issue of justice in access to employment. Its various forms require that each proposal and enactment be considered individually. But in the end, it is our hearts—Christian hearts, including those of legislators, employers, and the public—that must find room for people to justly pursue gainful employment consistent with the fulfillment of human dignity.
Harold Dean Trulear is director of the Healing Communities Prison Ministry and a fellow at the Center for Public Justice. He speaks and writes extensively on issues related to incarceration and is the coeditor of Ministry with Prisoners & Families: The Way Forward (Judson Press, 2011).