“Ban the Box” Policies Hurt Where They’re Supposed to Help

It’s taken some time, but realization is starting to dawn that certain re-entry policies championed by reform advocates on the Left—principally “Ban the Box,” one component of more comprehensive “fair chances” legislation—are prone to create new problems for ex-offenders looking to merge back into stable employment, rather than remedy old ones.

According to a new post over at the Pew Charitable Trusts:

“Ban the box” laws, which bar employers from asking job applicants whether they have a criminal record, may be harming some of the people they are intended to help.


Twenty-nine states prevent state and sometimes city and county employers from including a criminal history box on job applications. Nine states have extended the ban to private employers as well.


The idea behind the laws is that removing the box stops employers from immediately rejecting a candidate with a record before meeting him. If granted an interview, the applicant might be able to make a good impression and perhaps explain his conviction before the employer uncovers it.


But several recent studies have found that black men, even those without a criminal history, are less likely to get called back or hired after a ban the box law is put in place. Researchers suspect that employers who can’t ask about an applicant’s criminal background preemptively weed out young black men, who disproportionately have criminal records.

As both myself, and two of my colleagues, explained last year: In the absence of pertinent applicant information, other biases prevail—for good or ill. In this case, it’s unfortunately the latter. “Ban the Box” strategies—which have been hastily adopted in the past, despite their known and suspected shortcomings—seem to perpetuate the sort of racial disparities that left-leaning organizations have supposedly dedicated themselves for years to combating.

The “unseen hand” isn’t always an abstraction. Sometimes, the unseen becomes apparent—with real people who might pay a price.

Criminal records are a creation of government, and regulations such as Ban the Box–which conscript private employers into mopping up the unintended consequences of those records–are bearing their ugly fruit. It should be no surprise, but government has an impressive track record of making a mess of things.

Fortunately, market-focused alternatives to Ban the Box exist:

An alternative to “fair chances” hiring practices—of which “Ban the Box” is but a part—would be the expansion of record sealing, nondisclosure, and indemnification. For amenable ex-offenders who have demonstrated that they’re prepared to follow the law, their records for certain offenses can be sealed (or nondisclosed) from most public inquiry, while indemnification would protect landlords and business owners from liability for extending housing or employment to such individuals. Right on Crime has roundly advocated these policies in Texas and elsewhere.

During Texas’ latest (regular) legislative session, previous work on orders of nondisclosure was expanded again to include certain Class C misdemeanors and DWI offenses, and had retroactive effect. This will allow thousands of Texas citizens to overcome mistakes made in their past and take ownership of their future—without the sort of malodorous effects that counterproductive state meddling in business affairs can create.

Employers have long since recognized, of their own volition, that discounting a large potential labor force is an increasing poor business decision. As such, Target, Wal-Mart, Koch Industries, and others don’t ask about prior criminal history on their applications. They’ve found that it isn’t necessary. Left to conduct themselves, employers know how to give people a fair shake, and they do so freely.

Let’s try that for a change.




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