The House of Representatives assented Wednesday evening to legislation that would ban asking applicants for federal employment to disclose their criminal history.
But the bill flies in the face of overwhelming research evidence that such "Ban the Box" laws do not help former prisoners, and can actively hurt others, an expert on such bans told the Free Beacon.
The Fair Chance Act was passed by voice vote as an amendment to the 2020 National Defense Authorization Act. The bill is bipartisan, co-sponsored by Reps. Elijah Cummings (D., Md.) and Doug Collins (R., Ga.) in the House, and Sens. Cory Booker (D., N.J.) and Ron Johnson (R., Wisc.) in the Senate. If implemented, it would prohibit federal employers from asking about a would-be employee's criminal history prior to extending a conditional offer of employment.
The FCA is an instance of so-called ban the box (BTB) laws, a popular criminal justice reform proposal. They have been implemented in 35 states, the District of Columbia, and over 150 cities. In 2015, then-President Barack Obama instructed executive-branch agencies to delay asking about criminal history until later in the hiring process, a move widely interpreted as an endorsement of BTB.
Although data do not say with certainty how many Americans have a criminal record, one recent estimate pegged the figure at roughly 10 million people as of 2010, including roughly 15 percent of African-American men. America's sky-high recidivism rates mean that many of these people will go back to prison more than once.
One of the keys to breaking this cycle, most authorities agree, is helping formerly incarcerated people find a job. That can prove challenging. The Prison Policy Institute estimated in 2018 that the unemployment rate for ex-cons was roughly 27 percent, "higher than the total U.S. unemployment rate during any historical period, including the Great Depression."
It is not hard to understand why: All else equal, employers are likely to be squeamish about hiring people who have been convicted of crimes and have done jail time. BTB laws aim to change this reality by prohibiting employers from asking interviewees to check a box to indicate if they have a criminal history. In theory, this makes employers "blind" to an applicant's prior offenses and creates a level playing field.
The House's support for BTB earned plaudits from the broader criminal justice reform advocacy world. Holly Harris, executive director of the Justice Action Network, said that the bill "ensures that people with records applying for federal government work are not summarily dismissed before their skills and qualifications are even considered."
"We are thrilled to see the inclusion of such a critical piece of the criminal justice reform puzzle in the House version of the NDAA. As with the smart-on-crime policies included in the First Step Act, states and localities have proven that fair chance hiring practices work to reduce crime and boost the economy," Jason Pye, vice president at pro-reform group FreedomWorks, said. "We cannot expect those returning to society from prison to succeed in our country if they cannot secure gainful employment. The Fair Chance Act helps to give them a fair shake at this."
Banning the box federally is bipartisan, and it has the right sign-offs from the right advocacy groups. But is it a good idea?
Studies suggest it is not. Ban the box bills tend to encourage, rather than discourage, harmful discrimination, according to a bevy of evidence findings over the past several years. In 2016, a paper found that being in a BTB jurisdiction actually lowered the probability of being employed among young, low-skilled black and Hispanic men. A 2017 paper investigating Massachusetts's BTB implementation found that the policy actually had "a small negative effect on ex-offenders' employment that grows over time."
Two economists added experimental evidence to this finding by sending 15,000 job applications to employers in New York and New Jersey before and after the implementation of BTB. They found that before BTB, whites were 7 percent more likely to receive call-backs; after implementation, that number skyrocketed to 45 percent.
In other words: BTB does not actually increase ex-felons' rates of employment, and it means that fewer young men of color are able to get jobs.
This is a counter-intuitive finding, but there is a reasonable explanation. As the authors of the 2016 study put it, "removing information about job applicants' criminal histories could lead employers who don't want to hire ex-offenders to try to guess who the ex-offenders are."
For better or worse, incarcerated people are disproportionately young, male, and black or Hispanic. In the absence of the "box," employers may therefore decide to try to avoid former felons by refusing to hire young men of color—a group who already face worse-than-average employment rates.
One of the proponents of this theory—and the author of multiple papers on the topic, including the original 2016 one—is Jennifer Doleac, an economist at Texas A&M University. Doleac actually testified in front of the House Committee on Oversight, out of which the Fair Chance Act emerged.
"I'm disappointed that the House chose to ignore a rapidly growing academic literature showing that these policies are not only ineffective, but that they actively backfire by increasing labor market discrimination against young black men without criminal records," Doleac told the Free Beacon. "I hope that they soon turn to other, evidence-based policy options that can do more good than harm—such as investing in rehabilitation programs."
In her testimony, Doleac mentioned several alternative options. They include expanding access to education and training to help make former offenders job-ready, and issuing certificates of qualification for employment, to assuage employers' worries.
The Fair Chance Act still needs to make it through the Senate, meanwhile. As mentioned, it has bipartisan support, and its sister bill did not even need a vote to pass the House. Still, it remains unclear if the Republican-dominated Senate will be as friendly to it, or if either chamber will pursue the kind of policy options that Doleac suggested.