Banning the Box: the Human Resource Element of Criminal Justice Reform

By: Bill­ Schulz

One of the most talked-about issues this election season is criminal justice reform.  While the specifics vary from candidate to candidate, there is rising, bipartisan support for widespread changes to the way the criminal justice system works in America.  Among the changes being considered is the idea that reintegrating those convicted of crimes into the community’s economic environment will help rehabilitate them while also reducing the rate of recidivism.  The United States Department of Justice has recently published the results of a five-year study of recidivism rates amongst those released from prison in 2005 across thirty different states.  The DOJ concluded that by 2010 nearly 80% had been rearrested and nearly 60% had been convicted of new offenses.[1]  This is catastrophic and suggests that once convicted, many inmates face a depressingly predictable future of rearrest and subsequent return to prison with little time spent gainfully contributing to society.  A possible solution to this problem, as noted above, is the assisted reintegration of released offenders into society.   A key element to this reintegration is gainful employment. This factor is understood to be critical to avoiding future criminal behavior.  This assumption though, while backed by socioeconomic research, is not without controversy, as three separate studies have demonstrated. 

First, the Council of State Governments’ Justice Center issued the findings of their study of recidivism and employment rates in 2014.  A key discovery was, “Research does not support the proposition that simply placing an individual in a job is a silver bullet for reducing criminal behaviors. All told, there are few studies that demonstrate a direct causal relationship between current employment service practices and recidivism rates.”[2]  A second report, this one from the Manhattan Institute, found that rapid re-employment was key to reducing recidivism.  In particular, their results suggest that offering job-hunting assistance to nonviolent offenders with few or no prior convictions significantly reduces recidivism amongst that population.[3] Finally, the RAND Corporation conducted a similar study published in 2013, the results of which varied somewhat with the Manhattan Institute’s findings.  Specifically, the RAND study found, “Employment after release was 13% higher among prisoners who participated in either academic or vocational education programs than those who did not. Those who participated in vocational training were 28% more likely to be employed after release from prison than those who did not receive such training.”[4] This suggests that education and job training do play a role in reduced recidivism rates.  A gap becomes apparent between the Manhattan Institute’s suggestion that rapid re-employment after release, perhaps partnered with vocational and technical training, is most effective at reducing recidivism, and the RAND finding that such education is best provided while still incarcerated. The authors of both studies are cautious enough to suggest that further research is needed before coming to definite conclusions.

This issue presents itself at the state and local level via the initiative to “ban the box” or the push to stop potential employers from requiring disclosure of previous criminal convictions on employment applications.  In theory, this prevents employers from immediately disqualifying potential applicants solely on the basis of past criminal convictions.  The Baton Rouge City Council passed such a ban on some, though not all, city-parish jobs with a 10 – 2 vote on November 10 of this year.  Authored by outgoing Councilwoman C. Denise Marcelle and co-sponsored by Councilman Ryan Heck, the Fair Chance in Hiring Policy is meant to allow those with criminal records to have a better chance of obtaining local government positions.[5]  Supporters of the new policy are motivated not only by the desire to reduce recidivism rates, but also by a concern for misdemeanor offenders who are being punished too harshly by being excluded from many jobs.  Additional concerns include victims of domestic violence, some of whom are convicted for defending themselves against abusers, and highly skilled, non-violent felons.[6]  Councilman John Delgado, the chief opponent of the new policy, argued that banning the box would lead to wasted resources. He suggested that human resources personnel will need to do even more background checks than before since no disclosure of convictions is now required and that those background checks will ultimately lead to disqualification for many city-parish jobs anyway.[7]  Additionally, many employers are concerned about ban the box laws because some such laws are vague as to what disclosure is and is not required and what information employers may seek during interviews.[8]

What is really interesting about reintegration and recidivism are the specific DOJ figures for recidivism when broken down by type of offender.  For example, violent offenders are less likely to face subsequent arrests and convictions than property offenders. Furthermore, even within specific categories of conviction, the rates of recidivism vary.  Those convicted of homicide or sexual assault have lower recidivism rates than armed robbers, while convicted burglars have a higher recidivism rate than those convicted of fraud or forgery.[9]

This would seem, at first, to be evidence against ban the box advocates’ arguments.  After all, Councilors Marcelle and Heck suggest that the program is intended, at least in part, to allow nonviolent and misdemeanor convicts to return to the workforce.  However, crime and criminal psychology are not so simple.  Human beings break the law for any number of reasons, not all of which are evil or immoral.  One need look no further than Jean Valjean to consider the socioeconomic structures that sometimes create desperation in even good people.  “Criminals” of this sort are by no means beyond rehabilitation. Even some violent offenders, as the DOJ’s statistics on lower rates of recidivism suggest, may have been caught in circumstances that were, at least in part, beyond their control.  These offenders might be rehabilitated if introduced into a different set of circumstances than those that led to their law-breaking behavior.

Of course, this is not to suggest that employers’ and public policy makers’ concerns about former lawbreakers are entirely without merit.  Banning questions about past criminal history from employment forms might lead to expensive and unnecessary background checks for candidates that are going to be disqualified from certain jobs anyway.  Employers, if for no other reason than liability purposes (respondeat superior), have the right to make informed judgments about whom they do and do not hire.  Limiting their access to such information, or forcing them to pay for expensive background checks in lieu of simply asking about criminal history, may not be an ideal solution.  Councilman Delgado’s suggestion that civil service is not a place for offenders should be taken seriously because the power that many government employees are trusted with can very easily be abused.

What remains at the end of the day, however, is the fact that Louisiana incarcerates more of its own citizens than any state in the union.  This comes at a tremendous price, both financially and psychologically, as families and communities are irreparably harmed by members’ sometimes prolonged absences.  Enough research has been done to show that recidivism rates in the United States are very high, but also that such rates can be reduced by providing education and employment for offenders returned to civil society.  Policy makers face the difficult task of reintegrating such people in a way most likely to help them avoid future arrests and convictions.  While the ban the box policy is imperfect, it is a sign that some progress on criminal justice reform is being made.  Advocates should not understand it to be a goal so much as a starting place from which better, future policies can spring.

[1] See the executive summary of the report at the Bureau of Justice Statistics’ website here:

[2] The full report is available at the CSG’s website:


[3] See the Manhattan Institute’s press release with PDF links to the study here: http://www.manhattan-

[4] The RAND press release, with links to the study, is available here:

[5] Marcelle was recently elected to the Louisiana State House of Representatives.

[6]             institute-policy

[7] Ibid.