Let’s Keep the Box — For Now

The criminal justice system in America is horrendous. Evidence has shown that despite white and black people using marijuana at similar rates, black people are nearly four times more likely to be arrested for marijuana possession. But the disparities don’t stop at arrest rates. Even though black people make up 12% of the population of drug users, they make up 59% of those in state prisons for drug offenses. Although the process that leads up to many people, especially black men, being put into prison is shameful, one of the most pernicious aspects of mass incarceration is the way prisoners are treated after they are released. Most people can somewhat sympathize with the plight of ex-convicts. For the most part, we know that people usually have a hard time after they’ve been released from jail, but I think we tend to underestimate how difficult the life of an ex-con really is. Once they’ve been released, they aren’t just treated like regular citizens; their criminal histories follow them forever.

Former convicts deal with challenges around housing, employment, and even the basic rights of citizenship. In certain states, we don’t let people vote after they’re released, which means that 7% of black people can’t vote, as opposed to 1% of the non-black population. In certain states, the rates of black disenfranchisement are staggering. For instance, in Florida, one in every four black people can’t vote. We often don’t allow people with a criminal record to get public housing, and in some places, an entire family can be evicted from public housing because one member has a criminal record. Ex-cons are prevented from getting jobs because of their criminal records. Because of this, many people support “Ban The Box” initiatives (BTB), which make it illegal for an employer to ask if a person has been convicted on a job application. When these initiatives are explained, most liberals, like me, assume that they’re a good idea. If we can find a way to stop employers from discriminating against people, we should.

But we also have evidence that employers discriminate against people based on other factors. Research has shown that employers discriminate against applicants who have names that sound black such as “Lakisha Washington” or “Jamal Jones”. For instance, Marianne Bertrand and Sendhil Mullainathan at the National Bureau of Economic Research (NBER) created fake resumes with white-sounding names and black-sounding names. They found that, on average, the resumes with white names needed to be sent out to 10 employers to get one callback, while the resumes with black names needed to be sent out 15 times. This means that an employer’s racial prejudice — conscious or unconscious — can have a huge impact on a person’s job prospects.

Unfortunately, this is the issue with BTB laws. Although supporters of these laws want to make the hiring process more equitable, the actual effects are the opposite. After analyzing survey data, NBER researchers Jennifer Doleac and Benjamin Hansen found that it is actually harder for men of color to find jobs when BTB laws are in place. When employers are given less information, it is easier for them to make racially biased assumptions. Instead of making the process better for people of color, it just became easier for employers to assume that certain applicants were more likely to be criminals. Removing the box asking applicants about previous convictions didn’t affect white people’s unemployment prospects much, but the probability of employment for highly educated black women and older black men increased. Rather than increasing equity for black Americans and former convicts, BTB policies served to negatively impact those who fit a stereotypical criminal profile.

So how do we move forward? One option is employer education. While we may understand their skepticism at hiring former convicts, Dylan Minor, Nicola Persico, and Deborah M. Weiss from Northwestern University found that for all positions besides sales, employees with criminal backgrounds weren’t any more likely to be fired for misconduct, and they are less likely to quit. Research has also shown that when ex-offenders were allowed to join the military, they outperformed their peers without criminal histories. We should make an effort to educate employers about the actual performance of those with criminal backgrounds, but even if training programs were put in place, implicit bias could still take hold.

Because of this, it is clear that we need to rethink the ways we can try to reform the hiring process. The simple fact is that employers care about whether or not people have been to prison. When they have less information about applicants, implicit bias can come into play, and employers can begin to make assumptions. It makes sense that employers assume that ex-cons would make bad employees, but the evidence shows that “People who have been convicted of a misdemeanor or a felony perform just as well, if not better, than employees with no record of charges.” Dylan Minor, Nicola Persico, and Deborah M. Weiss from Northwestern University also found that for all positions besides sales, employees with criminal backgrounds weren’t any more likely to be fired for misconduct, and they are less likely to quit. Research has also shown that when ex-offenders were allowed to join the military, they outperformed their peers without criminal histories. We should make an effort to educate employers about the actual performance of those with criminal backgrounds, but even if training programs were put in place, implicit bias could still take hold. There is a lot of conventional wisdom about hiring, including that ex-cons make bad employees, that has been proven false, and it would serve society well if we educated employers about these myths. But even if employers are provided with all of the fact, implicit bias can still take hold.

Currently, there are many initiatives that attempt to remove implicit bias from the hiring process. One idea is to have applicants do blind performance tests. After top symphonies started asking potential orchestra players to audition behind a screen — so they wouldn’t know anything about the person except for their musical skills — there was an 84% increase in the percentage of women in orchestras. Other efforts include anonymizing resumes. Employers get to see resumes with only the information they need to decide whether or not to interview the applicant. This means that information such as the person’s name or high school has been obviated. The first time the employer knows anything personal about the applicant is when they interview them. Employers should also make a point to educate themselves on implicit bias and their own specific biases. This way, they can make their hiring practices more equitable.

Another solution could be more education on implicit bias. We’ve seen this strategy begin to take hold in police departments recently, and the Department of Justice started doing department-wide implicit bias training this year. In these trainings, people are educated on what implicit bias is and what they can do to minimize its effects. If these trainings were common for employers, we could see unintentional discrimination curbed. Although the responsibilities of Justice Department officials are different than most employers, these trainings could still prove effective.

Instead of trying to legislate information away from employers, the better solution is to make it so that ex-cons are not seen as such a detriment. In order to do that, we should make prison about reform, not just trapping people in a box. And because of the unintended consequences of BTB policies, it is clear that we also need to train employers on how to mitigate their implicit bias. Both of these projects would require radical change — years of overhaul, wide bipartisan agreement, increased funding — but radical change is needed. If we truly want to strengthen our society and lower recidivism rates, we need to stop making life after prison impossible. And unfortunately, because of current prejudice, that includes keeping the box.


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