Justice and Due Process

Ban-the-Box: Good or Bad for Ex-Offenders?

This article was authored by research intern Kyra Inston.

In 2017, Utah became the twenty-fifth state to pass a bill that prevents certain government employers from rejecting candidates because of a prior criminal record. Since then, the number of states who have implemented similar policies has continued to grow. Now, these laws have become a widespread, bipartisan issue with thirty-seven states enacting laws as of 2021

Ban-the-box laws, as they are commonly called, broadly seek to protect applicants from automatic disqualification because of a criminal record. The intention is to remove the stigma that surrounds a criminal record and help a marginalized group in securing employment and, therefore, the potential for a better future. Under H.B. 156 in Utah, certain government employers cannot ask about criminal records before an interview has been conducted or until a job offer has been extended if there was no interview. 

Ban-the-box legislation is an important topic as it attempts to lessen the impact a criminal record has on those looking to enter the workforce. This is a laudable goal. Often, those with criminal records face severe challenges finding and maintaining stable, gainful employment. In fact, 27 percent of formerly incarcerated people are unemployed — almost eight times the current unemployment rate in the country. This high unemployment rate is concerning as both employment and income are linked to education outcomes, health, and quality of life. Additionally, this is a concerning statistic as employment is an important way to reduce recidivism rates, which affects both ex-offenders and the communities where they live. 

With the popularity of ban-the-box legislation and because of its existence in Utah, it is important to analyze the efficacy of this policy.

Studies done after such policies were implemented in Washington, D.C. and North Carolina showed a 33 percent increase in the number of applicants with records being hired; the number of applicants with criminal records recommended for hire nearly tripled in the two years since this policy was implemented. Additionally, it has been found that after ban-the-box laws went into effect, callback rates for Black applicants with records increased from 8 percent to 10.3 percent.

While results are largely positive, a few other studies are demonstrating potential drawbacks to ban-the-box legislation. For example, one study found that ban-the-box laws decreased the likelihood of being employed by 5.1 percent for young, low-skilled, black men, and by 2.9 percent for young, low-skilled Hispanic men. One reason NBER lists for these results is that employers are more likely to discriminate broadly against demographic groups that they perceive as more likely to have criminal records without being able to get data at an individual level. 

Such results demonstrate that ban-the-box laws can have overwhelmingly positive effects but that these effects can be hampered by employer biases continuing to be prevalent during the hiring process. Biases that employers may hold about ex-offenders limit the ability of these well-intentioned ban-the-box laws from working at the highest possible level. Employers impacted by ban-the-box laws must be conscientious of their biases and limit such thinking that may discriminate against minority groups.

Employers’ biases can be mitigated and ban-the-box legislation has a chance to become increasingly efficacious if states begin to explore and increase implementation of:

  • Court-issued certificates that signal an individual’s work readiness. In a 2016 study, researchers found that when applying for jobs that did not explicitly bar applicants with criminal records, ex-offenders holding certificates received nearly three times as many interview invitations or job offers as did those with equivalent criminal records and qualifications but no certificate. 
  • Nondisclosures that allow an individual to petition a court to seal their criminal record from the public. This would allow them to legally state that they do not have any criminal record to most employers. Texas has already passed legislation that would allow for first-time offenders to receive orders of nondisclosure, with certain offense exceptions. 
  • Removing the ability for government employers, currently beholden to ban-the-box legislation, to see any identifying information about an applicant’s race or ethnicity prior to an interview. 

It’s imperative to understand that ban-the-box policies are an important step in helping ex-offenders enter into a more equitable and fair labor market. Their goal of decreasing discrimination and increasing opportunity is a noble one. However, this legislation may be being held back in its real potential, and this potential that ban-the-box laws carry must be fully realized.