A Second Chance for the Formerly Incarcerated

David R. Jones, The Urban Agenda

Every year, thousands of inmates are released from prison incarceration in New York State.  Many of them have no idea how they are going to survive in the outside world.  Without a job, their chances of success are nil.  Yet many of them face barriers when applying for employment.

We are not talking about a small number of people.  Over seven million New Yorkers — 38 percent of the state’s population — have a criminal record, according to the U.S. Department of Justice Bureau of Justice Statistics.  

A Civil Death

The stigma of a felony criminal conviction often carries with it a sort of “civil death”: no job, no cash, no place to live.  Without these necessities, the only option many of the formerly incarcerated may see is to continue to resort to a life of crime just to survive.  Eventually, many of them land back in prison.  It’s a vicious cycle for the individuals involved and a losing proposition for society.

Employment is a major factor in reducing recidivism.  Many experts studying the negative effects a criminal conviction could have on job opportunities found that people with a criminal past have a much better chance of getting hired when they are able to get to the interview phase of the hiring process. 

With the advent of almost universal background checking, getting to the interview phase has been a dream deferred for most job seekers with conviction histories.  They are automatically turned away or bounced out of online application systems when they answer “yes” to the question “Have you ever been convicted of a crime?”

To level the playing field for people with conviction histories, civil rights organizations in California began about ten years ago to urge local governments to remove questions about criminal convictions from job applications and initial interviews so that people could be judged on their qualifications. 

The campaign, dubbed "ban the box" – because of a box on job application forms asking if the applicant has a criminal record - scored a pioneering victory in San Francisco, which removed the criminal record question from city job applications.

This victory launched a movement that has spread across the country.  Since then the list of states and cities that have adopted ban the box laws is steadily growing.  Eleven states have adopted ban the box, including California, Connecticut, Illinois, Maryland, Massachusetts, and Minnesota. 

Over 60 cities and counties also have ban the box policies, including Austin, Chicago, Detroit, Philadelphia, San Francisco, Seattle – and now Baltimore, – which just passed ban the box legislation.  In addition, both Walmart and Target voluntarily removed questions about applicants’ criminal history information from their initial job applications.

In August 2011, Mayor Bloomberg announced a $130 million initiative to increase the education and employment prospects for young black and Latino men.  Recognizing the disparate impact of criminal records on these youths and their effects on employment, the mayor signed an executive order that prohibits city agencies from asking about an applicant’s criminal history on initial job application documents or in the initial interview.  The city extended this policy to contractors of nonprofit human services providers doing business with the Human Services Department.  These are laudable first steps.

City Council Bill

A bill that has recently been introduced in the City Council, the Fair Chance Act, would expand the current city policy to cover private as well as public employers, moving the criminal record question to later in the hiring process.  The Fair Chance Act would prevent employers from asking about a criminal history until they have decided that an applicant has the qualifications for the job and is the person that they want to hire.  After the applicant is given a conditional offer of employment, the employer can then do a background check and ask for information about convictions that may be relevant to the job.

It’s important to repeat – because pundits have gotten this wrong - that nothing in the Fair Chance Act prevents an employer from running a background check after giving a job applicant a conditional offer of employment.  The law just puts people with criminal records on the same footing with everyone else at the beginning of the hiring process.  This won’t be a hardship for business because background checks cost money, so most businesses wait to do one until after a job interview.  Instead, the Fair Chance Act would prevent businesses from circumventing existing law that prohibits employment discrimination based solely on a criminal record.

Another bill, the Fair Application Act (S3386), has been introduced in the state Senate.  It too would prevent employers from asking job applicants about their conviction history until after a job offer is made, allowing applicants to be evaluated on their merits just like those who do not have criminal records.  But its chances of being enacted into law this year are much slimmer than the bill in the Council.

New York State’s economy would benefit from the enormous tax revenue created by promoting the employment of able-bodied qualified people while at the very same time lowering our massive outlay of public funds for prisons.  Both in terms of economics and recidivism, banning the box makes sense.

Issues Covered

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