Featherman: Debating the ban of 'Ban the Box'

A funny thing happened after I wrote a piece critical of the revised Ban the Box law – the law that no longer permits employers to inquire about criminal records until after a conditional job offer has been made.

It started a Twitter war.

Among those that were most critical of my stance was Caitlin Taylor, an assistant professor of Sociology and Criminal Justice at La Salle University.

Professor Taylor didn't mince words. "Ridiculous! No evidence that hiring #returningcitizens hurts economy. 'Ban the Box' Will Bankrupt Philly," Taylor posted on Twitter.

I responded to her, and we went back and forth until I realized that you – the readers – would benefit from hearing this local expert's perspective.

Unlike others, Taylor's responses were not filled with profanity, name calling or hate. Nor were they sugarcoated with generalizations. Instead, Taylor argued on merits and facts – something we are sorely missing both on this specific debate as well in the presidential debates we are witnessing.

Humble and with humility, I asked Taylor if she would like for me to interview her and present her side as to why Ban the Box will ultimately benefit Philadelphia. She immediately agreed, and I didn't lob her any softballs.

In the interview below, Taylor summarized to me that, "In sum, there are two points I'd like readers to understand.  First, many employers function under false assumptions and stereotypes about returning citizens.  Second, what is good for the community as a whole, such as reduced recidivism rates and improved public safety, is good for the business community as well."

Tune in tomorrow morning – Saturday, March 11^th at 7 a.m. – when Professor Taylor and I will be debating this topic live on Fox 29.

Here is a transcript of our discussion.

U-TURN:  Over the past decade, many businesses have substantially lowered their costs of hiring by using automated software to rule out hiring people, including ex-offenders. Ban the Box made that illegal with respect to weeding out ex-offenders. The updated Ban the Box made it illegal to even ask after an in-person interview. From the Wall St Journal: "But at a time of widespread unemployment, the volume of applications is swamping HR departments, many of which have been downsized to cut costs. That has led employers to further automate hiring—and to become incredibly specific about experience and skills they seek. Screening software weeds out anyone whose application lacks particular key words." I include that quote to ask you how the revised Ban the Box will not drive costs up for businesses -- particularly businesses that really don't have large HR departments?

TAYLOR: Automated screening of applications seems to address issues related to the original Ban the Box legislation (eliminating applicants prior to the first interview) and not the revised Ban the Box legislation (eliminating applicants after a conditional offer of employment).  If businesses are committed to not hire people with criminal records, then it is possible that the Ban the Box legislation may drive up costs to businesses because returning citizens cannot be automatically eliminated at the application stage (under the original Ban the Box legislation) or automatically eliminated after the first interview (under the revised Ban the Box legislation).  If a business knows they will ultimately refuse to hire even the most qualified candidate who has successfully passed all stages of the hiring process solely because the person is later found to have a criminal record, then taking this individual through the hiring process may be a waste of time, and subsequently money.  However, this is an empirical question for which I do not know of any research that has been done to actually test the hypothesis that Ban the Box increases business costs.  Until such research has been completed, stating that Ban the Box will or does increase business costs is purely conjecture.

The idea behind the legislation is to strongly encourage businesses to NOT automatically eliminate an applicant based solely on a criminal record.  If businesses don't eliminate such applicants, there will be no added costs.

A comparison to legislation banning discrimination in hiring on the basis of race, gender, or sexual orientation is appropriate.  A business may be interested in hiring only males, but as a result of anti-discrimination legislation, the business would be prohibited from weeding out all females until after the interview process was completed.  Pushing the business to at least interview females would increase the likelihood that the business may change their mind about wanting to hire only males because they may encounter some extremely well-qualified females during the interview process.

While it is currently illegal to deny an individual employment solely due to their race, gender or sexual orientation, it is still completely legal to deny an individual employment merely because of a past criminal record.  However, Ban the Box legislation compels employers to abandon their stereotypical views of ex-offenders by increasing the likelihood they will engage in discussion with such individuals during the interview stage.

A much more important issue related to criminal histories and costs to businesses is the use of online criminal record checks, which are infamously inaccurate.  Relying on such unreliable sources of criminal history information means that businesses may fail to hire applicants without criminal records because they have found inaccurate information indicating they have a criminal record, but may also hire applicants with a criminal record because they have found inaccurate information indicating they do not have a criminal record.

FEATHERMAN: A new component of the revised Ban the Box is the ban on inquiring about any criminal convictions that are more than seven years old. Do you believe that prior convictions for rape and murder that are older than seven years, as examples, are completely irrelevant if the applicant is going to say be a janitor at hospital, college or business? Do you believe that there is any crime that should disqualify someone who is now out of jail from working at a specific firm (other than law enforcement and organizations with predominantly children, as they are excluded in the legislation)?

TAYLOR: Criminal history should be irrelevant in hiring for these types of positions.  Overall, we know that approximately two-thirds of people released from prison are re-arrested within three years.  A variety of research has confirmed that "time clean" is associated with a decreased risk of reoffending.  In other words, the longer someone goes without criminal justice system contact, the less likely he or she is to reoffend.  Researchers Alfred Blumstein and Kiminori Nakamura have demonstrated that at seven years after the original arrest, violent and property offenders do have a higher risk of a new arrest than someone who was never arrested, but by twenty years following the original arrest, the likelihood of a new arrest is exactly the same for those with a prior arrest and those who were never arrested.  In other words, the longer someone is out of prison, the risk a business is taking in hiring that person begins to match the risk they take in hiring someone who was never arrested.

It is also important for employers to realize that formerly incarcerated persons are responsible for a relatively small percentage of all new crimes.  Researchers have estimated that prison releasees are responsible for about 10 percent of new homicides and robberies and about 12 percent of burglaries.

Claiming that criminal history should be irrelevant in hiring does not mean that policymakers should ignore high rates of recidivism.  It is perhaps surprising that rates of recidivism are not even higher considering the plethora of obstacles returning citizens face, such as legalized discrimination in housing, employment, and civic participation.  If Ban the Box minimizes obstacles to employment, this has the potential to reduce recidivism.  There is some preliminary evidence from Hawaii that confirms a relationship between Ban the Box and a reduction in recidivism rates.

Improved public safety has positive outcomes for everyone, including the business community.  First, investors are more willing to put their money into safe communities and not communities with high rates of crime and recidivism.  Second, when individuals and their families are overwhelmed by the crippling costs associated with involvement in the criminal justice system, they have less money to spend at local businesses.  And, lastly, the high costs associated with policing, courts and incarceration are a burden for all taxpayers, including those in the business community.

There are also important legal and moral issues at play here.  When someone is convicted of a crime, a judge indicates the length of time someone will be incarcerated or subject to community supervision on probation, but the person convicted is never informed of the plethora of "invisible punishments" that will be imposed, such as legalized discrimination in employment.  Do we expect punishments to continue for life?  When a prison sentence is over, should the punishment continue forever?

FEATHERMAN: Do you believe that businesses should be shielded from lawsuits that arise from them specifically because of claims that the business did not do a background check beyond seven years? That's not in the legislation, but certainly would make more businesses more receptive to this legislation.

TAYLOR: Business liability issues are outside my area of expertise. However, if the goal of Ban the Box legislation is to encourage businesses to reduce the use of background checks and hire returning citizens, then I do not believe businesses should be held liable for not conducting a background check.

FEATHERMAN: If a conditional job offer is revoked based upon a criminal conviction in the past 7 years, the employer must now provide written notice of its decision and the basis for the decision. Before, they could simply reject without such a detailed letter. Businesses will fear this. The new law says that the employer has to evaluate whether the criminal conviction "bears such relationship to the employment sought that the employer may reasonably conclude that the applicant would present an unacceptable risk to the operation of the business or to co-workers or customers, and that exclusion of the applicant is compelled by business necessity." Do you believe that most firms can fairly and honestly do that? Keep in mind that the revised Ban the Box now applies to all firms -- even with just one employee.

TAYLOR: The one social group for which it is most acceptable to openly discriminate against is formerly incarcerated people.  Requiring businesses to be open and honest about why someone is not hired is extremely important considering the large body of sociological evidence documenting discrimination in hiring.  Seminal work by sociologist Devah Pager has demonstrated that callback rates for job interviews are more common for white men with a criminal record than black men without a criminal record – even when levels of education and prior work experience are completely identical.  As such, employment prospects for men of color with a criminal record are particularly bleak.

Considering what we know about discrimination in hiring and employers' inaccurate assumptions about returning citizens, I do not believe that employers can accurately predict who poses an unacceptable risk to their business and who does not.  Even the best statistical models used by departments of corrections and probation/parole agencies for recidivism prediction are not all that accurate at the individual level.

For returning citizens who have demonstrated the appropriate qualifications and social skills necessary for a position, the written notice component of the revised Ban the Box legislation will prevent the employer from simply making a blanket statement that they do not want to hire ex-offenders.

FEATHERMAN: I know how you feel about this helping the former convict, but will any of this actually help employers? How do you believe employers will react to this legislation?

TAYLOR: I can understand employers' hesitation about hiring people who were formerly incarcerated.  We need to acknowledge that there are many returning citizens who have low levels of education as a result of our abysmal school systems, sporadic work histories caused by removal from society via incarceration, and social skills honed in a prison or jail culture that are not conducive to traditional employment.

However, many employers are not aware of the great potential of many returning citizens who come home with skills or certifications obtained while incarcerated, an incredible degree of resiliency, an impressive work ethic and a sincere desire for an opportunity to support themselves and their families through legitimate employment.

There are many companies who have found great success with hiring returning citizens.  A number of city agencies and reentry programs have developed successful partnerships with businesses eager to hire more returning citizens after they have seen the success of others referred to them.

It's important to note that Ban the Box legislation aids returning citizens with the greatest degree of what sociologists and criminologists refer to as "social capital" – the work and social skills necessary for being offered a job as well as the social networks that can aid in the employment search.  Returning citizens without such social capital (the ones already most likely to recidivate) are not helped at all by this legislation.  In other words, Ban the Box legislation is encouraging employers to hire returning citizens who are already the least likely to reoffend (as a result of having desirable job skills and social skills necessary for receiving a job offer).

There is a very strong body of research confirming the role that employment plays in desistance from crime.  People who are employed have less time to engage in criminal activity, are less likely to be tempted by the financial draw of criminal activity and can develop a prosocial identity as a productive member of society.  If Ban the Box increases employment for returning citizens and subsequently reduces recidivism, improvements to public safety will benefit everyone in the City of Philadelphia, including the business community.

FEATHERMAN: From this site, I saw the following quote: "The strongest predictor of future sexual violence is past sexual violence. (Scott, 2004)." And then I saw: "Most sex offenders are recidivists and commit other forms of interpersonal violence." Are those statements false? Do you believe most sex offenders -- especially, say, ones that were convicted over 7 years ago -- are not recidivists?

TAYLOR: This website and the majority of the research cited on this website is explicitly about offenders who commit sexual assault on college campuses.  The majority of these offenders commit crimes which are never reported to police and/or never result in an arrest.  This is a very different population from sex offenders overall and those who would benefit from Ban the Box legislation.

The statement on anamnestic prediction – the idea that past behavior predicts future behavior – is somewhat accurate, but only because past behavior is comparably better than other weak predictors of future criminal behavior.  As stated above, even the most sophisticated statistical models used by corrections agencies are not all that accurate at predicting who will recidivate at the individual level.

Research confirms that property and drug offenders have the highest rates of recidivism followed by violent and sex offenders.  Most sex offenders convicted over seven years ago are not recidivists.  While there is great variation by risk level and length of follow up period, research generally indicates that 10 to 15 percent of sex offenders reoffend, with the vast majority of reoffending occurring within the first five years following release.  Also contrary to public opinion, correctional treatment programs for sex offenders have been found to significantly decrease the likelihood of reoffending.

FEATHERMAN: Why do you refer to convicts as returning citizens? That terms seems to put them in the same category as veterans who came back home after bravely fighting a war abroad. Why should convicts not carry a stigma with them?

TAYLOR: Important question about the returning citizens terminology.  From an ethical perspective, the returning citizens terminology is important because it signifies that an individual has served his or her time and is being given a fresh start.  No one should be permanently defined by the worst thing he or she has ever done.  I'd encourage readers to think of the worst thing they've ever done for which they feel the most shame, embarrassment, remorse or regret.  Then imagine being permanently defined as that worst thing.  From more of a practical perspective, we know that people live up to or down to others' expectations.  If we continue to treat people who have been released from prison like we expect them to reoffend and place obstacles in their paths to successful reintegration, this will increase the likelihood they will reoffend.

Contact John Featherman at john@featherman.com