In the last few decades, the rate and frequency of incarceration in America has boomed to unprecedented levels (U.S. Department of Justice, 2010, 2011). In 2010, 1,550,257 prisoners resided in correctional institutions, a rate of 500 persons for every 100,000. Accompanying this are larger numbers of Americans carrying criminal records, and researchers have examined the criminal record as being a powerful barrier toward reintegration and stability, and a driving force for higher recidivism which has been nicknamed the revolving door of justice. This paper presents a possible solution known by advocates as Ban the Box. By banning questions of criminal history on employment applications, it is believed the playing field will be leveled as ex-offenders are considered based on qualification like those without criminal histories. This should reduce recidivism as it reduces barriers toward reintegration. The weaknesses of this approach are that larger and systemic causes toward incarceration are not examined, and the term ban the box is actually misleading. The implications for social work are numerous as more and more people move into and out of prisons, affecting families and sometimes entire communities. Social workers need to know the issues and laws surrounding this vulnerable but historically denigrated population. They may be the ones called on to work with ex-offenders, their families, and communities as a broker for services and resources, and they may serve as educators and advocates within the criminal justice system.
Incarceration Nation: Banning the Box to Strengthen Rehabilitation Outcomes
When asked, people think people can reform their character (Sweig & McClure, 2010). But policymakers are historically unwilling to consider that 20% of our population with criminal records can reform theirs. That’s 65 million people, and 20% of those are convicted felons. These numbers will continue to grow as 700,000 prisoners are released from prison annually (Sweig & McClure, 2010; U.S. Department of Justice, 2011).
A direct consequence of a criminal conviction is serving a prison sentence. Arguably, the real consequences come after release. As one former prisoner stated: “I got out after ten years and I was so excited. But it was like I was starting the sentence all over again. I walked out of one prison into another. I thought I had, but now I see I’ll never repay my debt to society.” (S. Thomas, personal communication, 2013).
Sweig and McClure (2010) call this the collateral consequences of conviction. There are numerous federal and statutory bars to employment and, just as concerning, housing, for those with criminal convictions. Socially and legally, we enforce and endorse these restrictions which put emphasis on the “badness” of the person (Sweig & McClure, 2010, p 27). What this actually does is allow recidivism to flourish and prison populations to boom because accessing and implementing change in identity and seeking out a sense of self and what one can become is denied (Sweig & McClure, 2010). Without proper employment, the means for achieving that sense of self and a predictive future are depleted or eliminated. When we lock people up over and over and prison populations rise along with recidivism rates, we as a society shouldn’t act so baffled. The system isn’t broken, it’s fixed: the denial of employment, housing, education, and other social and welfare benefits breeds recidivism for people with criminal records (Sweig & McClure, 2010).
Studies by Pager (2003) have demonstrated employers would rather hire welfare recipients and those with no work experience over those with criminal records. In a fascinating experiment, she sent out job applications to employers that were the same in every way but for one thing: some of the applications disclosed an 18 month prison sentence for a drug felony. She also accounted for race. Of the white applicants, those without a criminal record were twice as likely to receive a positive response. Of the Black applicants, employers showed interest in 14% of those without a criminal record. This is compared to the 5% with criminal records. Alarmingly, Black job seekers without a record fare worse than whites with one. Evidently, criminal records amplify racial discrimination (Jacobs & Henry, 2007; EEOC, 2012).
That is the policy as it stands now. A recommended change is known by advocates as Ban the Box and simply means removing the criminal history question from initial employment applications (bantheboxcampaign.org, 2013). The rationale is that by denying employers access to criminal history information, all applicants are on the same playing field and considered for employment in the same way. Another way to look at it is this: knowledge of criminal history leads directly to a refusal to hire (Stoll & Bushway, 2008). Indeed, Pepsi Co. was required to pay 3.3 million back in 2012 because the Equal Employment Opportunity Commission (EEOC) found them to be in violation of Title VII of the Civil Rights Act: they had a blanket ban on consideration of applicants with a criminal history, which also meant they were discriminating on the basis of race (EEOC, 2012).
The Ban the Box campaign began in 2004 with All of Us or None – a coalition of smart justice advocates, former prisoners and their families, legal aid groups, and re-entry service providers in California (bantheboxcampaign.org, 2013). Research and ex-prisoner testimony revealed lack of access to employment as the primary barrier to reintegration and the primary variable in increased recidivism (Loeffler, 2013). The focus was first on public employers because they often have blanket bans in place on the hiring of those with criminal records, even if the conviction doesn’t have anything to do with the nature of the job itself (Sweig & McClure, 2010). This is in direct violation of EEOC guidelines (EEOC, 2012). In 2009, Minnesota was the first state to ban the box for public sector jobs (Sweig & McClure, 2010). Today over 45 cities and counties including New York, Boston, Philadelphia, Atlanta, Chicago, Detroit, Seattle, and San Francisco have implemented some kind of ban the box policy and removed questions about conviction history from initial employment applications. Some cities and the entire state of Massachusetts enacted legislation to require private sector employers to do the same. With advocacy and education, some employers are beginning to adopt this policy of their own accord (bantheboxcampaign.org, 2013).
When one in four adults in the United States has a criminal history (bantheboxcampaign.org, 2013) the need for this change in policy and practice appears necessary. The primary strength toward this approach is financial – it doesn’t cost anything to implement. No new programs are being created, no one in the justice system is being asked to perform additional duties or change the nature of their current job descriptions. Essentially, it is easy, and results can be immediate and measurable. Additionally, the EEOC backs these fairer hiring practices and in 2012, updated their Enforcement Guidance on Consideration of Arrest or Conviction Records in Employment Decisions. While they stop short on calling convicted persons a protected class, they do uphold the ban in places where this policy applies and have begun to aggressively prosecute employers with blanket bans on ex-prisoners because, from the EEOC’s point of view, this violates the Civil Right Act (EEOC, 2012).
A weakness toward this approach is the moniker for the movement: Ban the Box. Researchers Sweig and McClure (2010) challenge the practice of examining criminal records before the interview stage in hiring practices but also call attention to the misrepresentation Banning the Box causes. They propose calling it Moving the Box instead, because nothing is actually being banned – the criminal history inquiry is simply being moved aside for later, at the interview stage or post-interview stage, when a conditional offer of employment is made. This is making that playing field fairer between those with and without criminal records, as those with them are likely to be rejected by virtue of their conviction and not qualifications. It is better to call this Moving the Box rather than Banning the Box because people – especially legislators – feel banning the box means trying to “prevent an employer from discovering a criminal record.” (Sweig & McClure, 2010, p. 24; Stoll & Bushway, 2008).
As Stoll and Bushway (2008) note, this also doesn’t address the larger systemic causes of increased incarceration and recidivism, which is why it is a Band-Aid approach. Also, it isn’t clear if banning the box increases ex-prisoner employment, or if the basic assumption – that knowledge of criminal history results in refusal to hire – is correct. These researchers affirm in their work, however, that use of the background check is negatively related to the hiring of ex-offenders.
Opponents have already called out these very weaknesses and are hesitant to endorse such a policy because of them. Engagement with these opponents, whether they be legislators or employers, is more crucial than engaging supporters. The advocacy doesn’t truly begin until those opposing the advocacy are challenged and educated. Because of this I agree with Sweig & McClure (2010) who say we should call it Moving the Box: it is simply more accurate. It will make more sense to employers, who are arguably the greatest stakeholders in this whole issue – they have the jobs. Coalitions in California like All of Us or None and Minnesota’s Second Chance Coalition are already deeply engaged in the education and advocacy process and have wisely focused on educating employers, previously shown to be averse to hiring ex-prisoners (Pager, 2003; Stoll & Bushway, 2008). The work with legislators focuses on the emergency of the situation – hundreds of thousands of new felons are released every year with all the odds stacked against them, and it would be in society’s best interest to make pathways to reintegration as obstacle-free as possible. That’s why Moving the Box, or banning it, appears to be such a Band-Aid type of approach. It is truly a quick fix, ideally buying us time to come up with more nuanced and longer term solutions to the wider causes of incarceration and recidivism.
There are already models in place to follow in the implementation of this policy. At the grassroots level, ex-offenders, their families, and the communities they come from are organized. Emphasis is placed on advocacy and education – advocating for formerly incarcerated individuals as oppressed and marginalized persons, and education into what Moving the Box really means for employers and society as a whole. Of particular note is that Moving the Box isn’t beneficial for ex-prisoners per se, it is beneficial for the communities they come from and the nation at large (bantheboxcampaign.org, 2013). If we systematically deny people with criminal convictions access to fair hiring practices, fair housing and the like, we are essentially shooting ourselves in the foot: it is much more expensive to incarcerate someone (especially over and over) than it is to reintegrate them (bantheboxcampaign.org, 2013, Stoll & Bushway, 2008).
This policy recommendation is in line with the social work code of ethics because it puts dignity and worth of the person at the front of our attention. The policy recognizes ex-prisoners as human beings like the rest of us, and reminds us we have an obligation to help in the reintegration process once the debt to society is paid. It focuses on social (in)justice, taking into account not only ex-prisoners, but the families and communities they come from which are also impacted. In short, it adds some humanity and hope to a complex problem with no easy answers.
Social workers will need to know the laws and policies surrounding prisoners, their status, and effective reintegration methods. They will need to understand the gravity of the situation and realize they are not only working with ex-prisoners and their families but entire communities, some of which have been completely decimated by our record-breaking frequency of incarceration (Loeffler, 2013). The primary reason social workers will be at the forefront of issues surrounding prisoners is their sheer numbers – the justice system itself doesn’t work to advocate but to punish, and even when parole and probation officers have the best interests of their clients at heart, they don’t have necessary skills like brokering, examining systemic causes of oppression and potential solutions, mental health awareness and treatment, and environmental factors contributing to a person’s path toward prison. In short, the justice system as it stands needs the heart of a social worker.
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