Courtesy Terry Chapman/
United States / Criminal Justice

A Fair Chance?

Note: This is the second piece in a series examining criminal justice in America. Read the introduction here.

The people most likely to go to prison in the United States are the ones who have been there before. It is known as the “revolving door”: over 650,000 people are released from state and federal prisons each year. Within three years of release, an estimated two thirds of these individuals will have been re-arrested.

High rates of recidivism make reducing mass incarceration much more difficult. Mass incarceration poses problems at both an individual and societal level: it disrupts the job market, interferes with family and community life, costs American taxpayers billions of dollars each year, and has not significantly reduced crime rates or made communities safer, according to a 2013 report from the National Academy of Sciences.

What can be done about high levels of recidivism? When it comes to predicting which ex-offenders will commit crimes in the future, access to employment is a leading indicator. This should not be shocking. Psychology studies have found that employment is deeply tied to self-esteem and self-worth, and a job typically provides a regular structure and schedule for ex-offenders. Unemployment, meanwhile, makes ex-offenders more likely to live in poverty and reoffend.

Empirical studies back up the connection between unemployment and recidivism. According to a 2008 study by the Safer Foundation, which tracked formerly incarcerated people in Illinois, the three-year recidivism rate was just sixteen percent for people who were employed for at least 365 days in the three years following their release. More recently, a 2013 government-commissioned study in Indiana likewise found that employment was the biggest indicator of future recidivism among ex-offenders.

Finding a job with a criminal record can be a challenge. Surveys indicate that anywhere between sixty and seventy-five percent of ex-prisoners are unemployed in their first year after prison. In most states, job seekers can be asked about their criminal histories on an initial application—a measure that, unsurprisingly, creates difficulties for former prisoners looking for work.

The solution offered to combat discrimination against former prisoners in the hiring process was a policy with an alliterative slogan: Ban the Box (BTB), also known as Fair Chance. The logic behind BTB was simple. It asked both government agencies and private employers to refrain from asking about a job applicant’s criminal history until the later stages of the hiring process. Advocates argue that by postponing the revelation of a criminal record until later in the hiring process, ex-offenders would have the opportunity to show potential employers their qualifications, and therefore increase employment prospects. Employers would still eventually learn of an applicant’s criminal history, but they would see the history as a part of an applicant’s full package: thus creating a “fair chance” for ex-offenders.

Hawaii, which passed its version of BTB in 1998, bans employers from investigating an applicant’s criminal history until after a conditional offer has been made, and bans employers from considering criminal convictions that occurred more than 10 years ago, excluding time spent incarcerated. Nearly half of U.S. states now prevent government agencies from asking about the criminal histories of applicants on initial job applications. Since 2012, six states and the District of Columbia have also implemented laws that, like Hawaii’s, extend to private employers, and a full BTB policy will go into effect in Connecticut and Vermont in 2017.

The expansion of Ban the Box has not just been limited to states. Locally, over one hundred fifty municipalities, including San Francisco, Seattle, New York City, and Austin have implemented BTB policies. In November 2015, President Obama announced that he would direct the Office of Personnel Management to delay asking about job applicants’ criminal history until later in the hiring process.

The effects of BTB laws have been mixed. Researchers studying Hawaii’s law found that removing questions about criminal history made it easier for former prisoners to get jobs, and recidivism rates dropped.

Unfortunately, the success of BTB in Hawaii has not always been replicated in other states. Researchers from the University of Michigan and Princeton sent thousands of fake job applications to employers in New Jersey and New York City—before and after the implementation of BTB. They found that BTB did increase the likelihood of interview callbacks for former convicts, but these benefits were almost exclusively for white job applicants.

Racial discrimination is a reality of the American job market. But, at least in New York City and New Jersey, BTB seemed to exacerbate it. Prior to the implementation of BTB, the researchers found that white applicants were seven percent more likely to receive callbacks than blacks. After the implementation of the BTB policy, that number soared to forty-five percent.

In a separate paper, two Brookings Institute economists found that black and Latino men were less likely to be employed after the implementation of BTB than before it.

Removing barriers to employment for former prisoners matters, both because the people who have been released have served their time and deserve another chance, and because it benefits society, which no longer has to bear the burden of unemployment or recidivism. But a solution that provides a fair chance for former prisoners in the workplace is not a solution at all, if it makes the job market less fair for people of color.

Unraveling the web of racism and mass incarceration in America will not be easy. The mixed results of BTB show that it will probably be really, really hard. Beyond lessons about jobs, recidivism, racism, and incarceration, there is another important lesson to be drawn from BTB: the importance of evidence-based policymaking.

Issues of race and incarceration require nuance. Given the existence of unintended consequences when it comes to policies like BTB, it is important to evaluate criminal justice reform policies based on outcomes, not just intentions. That is the way to create a fair chance.