Wednesday, October 26, 2016

Ban-the-Box Laws

I don’t think that “ban the box” is the most felicitous expression, but laws that do not allow employers to ask whether an prospective employee has a criminal record have been thusly dubbed. More precisely, they forbid employers from putting a“box” on the application form asking for such information.

Apparently, the impetus behind this regulation was that minority applicants were more likely to have criminal records and thus to suffer discrimination. Because whether or not you have a criminal record is apparently not relevant to your ability to perform on the job.

In the midst of the great policy debate about these laws no one seems to have recommended that the best solution to the problem would be not to commit crimes in the first place. Would this not be better than to institute a rule that relieves you of the social consequences of your actions? Would it not be better to warn people of the extra cost associated with a criminal record?

In addition to doing time people who commit crimes suffer a social stigma. They becomes less desirable and less trustworthy potential employees. Rather than try to eliminate the stigma, why not make it clear that the government is not in the business of allowing you to cover up your bad behavior?

The “ban the box” rules were intended to open job opportunities for minority youth. In fact, they have closed doors to minority youth. If an employer cannot ask whether a candidate has a criminal record he is more likely to reject all applicants who belong to groups that have the highest crime rate. Why, he must ask himself, take the risk?

We are looking at yet another instance where good intentions and inadequate thought has produced a policy that works to the disadvantage of those it is trying to help.

Despite a low national unemployment rate, millions of Americans remain out of work, stuck in part-time jobs or sitting on the sidelines of the job market—including many with criminal records that turn off potential employers. Policies aimed at preventing firms from screening out ex-offenders can help those applicants get a foot in the door.

But new research suggests that ban-the-box laws—so-called because they eliminate a box on many job applications asking if applicants have a criminal record—are creating a wider racial gap when it comes to which applicants are interviewed and hired. In one study, employers appeared to screen out African-American candidates based on their names, and the callback gap with white applicants widened after ban-the-box laws took effect. Another study looked at Labor Department data and found fewer young, low-skilled Hispanic and black men were employed in U.S. regions that had adopted the policies.

Importantly, the Journal notes in passing that the great economic recovery we are now experiencing is very thin indeed. Workforce participation is low and many Americans are working at part-time jobs. Unfortunately, Obamacare plus minimum wage laws have made it too expensive to hire people full time.

The Journal story continues:

“Employers may tend, absent information to the contrary, to assume that black applicants have criminal records and white applicants do not,” said Sonja Starr, a University of Michigan School of Law professor who studied the introduction of ban-the-box laws in New York City and New Jersey.

Of course, employers are acting rationally. They understand that certain groups of people are far more likely to have committed crimes. They protect themselves and their businesses by filtering out all members of those groups.

Of course, the laws were constructed to allow convicted criminals a way back into the workforce. Surely, that is a worthy goal. Those who cannot hold down jobs will surely be more likely to return to crime.

It is worth noting that a vast number of fine American citizens has been arrested and has a record. We should ask why this is so and whether our failure to make clear that when you commit  a crime you damage the reputation of members of your family and your social group. Something like 30% of find law-abiding American citizens have their names on what is called the FBI’s “master criminal database:”

Tens of millions of Americans have been arrested at some point in their lives—nearly one in three U.S. adults is on file with the Federal Bureau of Investigation’s master criminal database.

A criminal conviction, or even just an arrest record, can make it more difficult to later find work, heightening the risk of recidivism. Many employers are wary of hiring ex-offenders, and questions on job applications about criminal records help hiring managers identify such candidates.

Two dozen states and scores of cities and counties have adopted laws, almost all in the past decade, that bar employers from asking applicants about criminal backgrounds early in the hiring process. The idea is that hiring managers should judge job candidates on individual merit and consider any past criminal behavior in context.

It sounds good. And the problem is certainly real. And yet, we never judge anyone on his or her merit. It takes far too much time to get to know someone and to see him in action. If you are hiring new staff for your company you cannot reasonably judge each applicant as an individual. The same applies to your relationships in your private life.

We judge people according to stereotypes. We judge members of our own community, people who are familiar to us more positively than we judge strangers. And we know that, to the chagrin of many, reputation is not simply attached to individuals. Your good name is not just your good name. You share it with others. If you drag your good name through the mud, other people will suffer the consequences.

If we are seeing things within the context of what is called guilt culture we would like to judge people as individuals. After all, if you have committed a crime, you and only you do the time. And yet, your criminal deeds diminish your own reputation and also the reputation of those who people who are associated with you.

We would like to see everyone as an individual, but one primary deterrent to crime lies in the awareness that others will suffer reputational damage. So, if you eliminate the reputational cost, the effect that the crime will have on others, you have eliminated a good reason for not doing it in the first place.

The Journal concludes:

second working paper released this summer, by University of Virginia economist Jennifer Doleac and University of Oregon economist Benjamin Hansen, analyzed Labor Department data for U.S. cities, counties and states that had adopted ban-the-box policies. They found black and Hispanic men ages 25 to 34 and lacking college degrees were less likely to be employed after the laws took effect.


Ignatius Acton Chesterton OCD said...

As to the UVA study, Lefties do not care about the real impact of their utopian ideas. It all sounds good, so must be done, all in the name of social justice.

Social justice seems to mean one thing: "Members of a protected classes got screwed by society, so you have to pay." Instead of judging one by his merits and actions, one is held accountable for their ancestors' actions, even if those ancestors had nothing to do with it. That's guilt by association. That's not justice... that's targeted revenge for the sake of power. Instead of institutionalized prejudice based on skin color, we now have institutionalized injustice based on pedigree: being made to pay for a crime you didn't commit. There's nothing one can do. That is definitionally unjust.

What sorts of crimes are covered under "Ban the Box" ideas? Rape? Murder? White collar crime? Is this meant to avenge some Jean Valjean-type tragedy, where Inspector Javert is chasing the protagonist around through his whole life over theft of bread? Hardly. I don't recall ever seeing a box asking me if I've ever been arrested (which I have not). That said, I have seen a box asking me if I've ever been convicted of a felony or imprisoned. Have we forgotten what a felony is? It's a serious crime, not a parking misdemeanor. The box on an employment application allows the employer to screen applicants in order to protect the employees and enterprise from harm. It's due diligence. It is common sense. It's self-administered so we don't need Inspector Javert looking over our shoulder, watching our every move. Or do we? And who will conduct the surveillance? The "pure" people who run our government?

Choices have consequences. Once we insulate people from reality, it makes choosing criminality easier. Criminality is based on the great lie: you can get something for nothing. You can take merchandise without paying. You can take another's life without consequence. You can rape without consideration of another's violation. Crime is fundamentally about assuming that others' person and possessions are your own. It is the ultimate form of narcissism, which is why people in prison score so high in self esteem. They're innocent. Just ask them.

Employers will seek ways around barriers/obstacles to mitigate risk. Human beings naturally protect themselves from risk. Trying to blindly solve natural law with government law just drives discrimination underground, because the risk is still there. Sorry to be the bearer of bad tidings, but people are not stupid.

Things are bad enough with just getting employment references. I have encountered major employee issues and come to find the previous employer dealt with the same thing. I'm talking about serious crimes: embezzlement, stealing body parts from a morgue, etc. Past employers are reluctant to share much of anything beyond confirming dates of employment, for fear of a defamation lawsuit.

The confusion stems from the sheer volume of employment law in the last 25 years. It has real impact in the marketplace. The idea of "at will" employment has been stripped of all practical relevance. I interact with employers every day, and they are so afraid of getting sued that it is often paralyzing. Good employees bear the brunt, bad employees are able to exert their power through fear and intimidation. It's like a union of sorts: the complainers and underperformers trying to insulate themselves from the reality of their choices. These kinds of laws and regulation hurt more than they help.

The lawyers are running this country. Law is treated with metaphysical reverence, rather than being a tool for society. Today we serve law, rather than law serving us. In terms of everyday practical impact, nowhere is this more destructive than in employment law.

Sam L. said...

Unintended consequences are not always the result of unforeseeable consequences. We are endlessly searching for work-arounds.

Ares Olympus said...

A criminal record is a bit subjective. That is, there's a difference between getting arrested at a bar fist fight decades ago when you were in college, and first degree murder where you just got out.

It might make a difference if you're applying for a job as accountant if you've previously been convicted for accounting fraud.

Sex offenders are the one the scares people the most, so if a man has statutory rape on his record, he might be a danger to society, even if he was 18 when it happened and his girlfriend was 17. So such a man may never be trusted to become a teacher, because of that.

Most states have laws that say felons can't vote, but some states have laws that allow a felony to be lifted from your record, enabling voting.

It seems to me if we're going to allow open discrimination, we'd better do it right, and classify crimes by what sorts of risks they suggest, and then allow a process of not only paying a price via prison or fines, but also paying back to society, or finding ways to show they are trustworthy, if that's possible.

And back to our current prediament, it is certainly a problem if we suppress a criminal record, then stereotype assumptions can be made, and we can assume all Mexicans are rapists and criminals, unless they can prove themselves innocent.

Or if we have a "don't ask" policy for employers, we may allow a "do tell" policy where minorities who are free of criminal records voluntarily offer this information, and those who don't freely offer, they will be met with suspicion, although that also may look like discrimination, so maybe that won't work.

And now-a-days there's a new source of discrimination for landlords and employers - your credit score. Why hire someone who can't manage money well? Why risk a tenant who looks at risk of falling behind in rent?

The whole problem with more information is it rewards success and punishes failure, and success doesn't necessarily mean good character, and failure doesn't necessarily mean bad character. And if you take away "second chances", you create a world where you'll have a permanent underclass who can't get ahead, and feels resentful, and feels no other choice except to break rules that seem to exist only to punish them more.

I've wondered where the Libertarian world goes, and it has a strong believe in rewarding success and punishing failure, so if we follow that exclusively then we have to have an authoritarian police state behind the scenes to keep all the losers in line, in prison, or drive them to end their lives.

Trigger Warning said...

A "libertarian police state"?

That's a first.

There should be a box on job applications labeled "reality-based".

Ignatius Acton Chesterton OCD said...

Ladies and gentlemen, I would like to draw your attention to the dearth of Black Lives Matter protests these days. The scheduling and coordination seem to have fallen remarkably for such a powerful "grass roots" movement with the endorsement of the President of the United States and his Attorney General.

I guess BLM protests and incidents either (a) weren't polling well, and Hillary asked them to take a break; or (b) they didn't incite any retaliation to further the narrative.

Imagine that. Perhaps it's the cool fall weather?

But the chill hasn't had any impact on the Chicago scene. So far this week in Chicago, we have 7 dead and 30 wounded from shootings. We're not even 4 days in. Have you heard a lot about it? The silence gives me the sense that the Democrats, national media and academia think black lives don't matter. Onto the next thing...

The brutal statistics:

And where is that "grassroots" Occupy ______ movement? No "Occupy Trump Rallies" or anything like that? Must not have been polling well, or already served its purpose. Meanwhile, Tea Party entities and other conservative groups are still waiting for processing of their 501(c)(4) applications.

All this "outrage" is so phony.

Trigger Warning said...

As it happens, I've had a bit of experience dealing with felons. I have spent many hours in Federal and state prisons mentoring inmates, and I've volunteer-taught GED mathematics classes in both.

One of the most serious problems we have in America is the problem of recidivism. Some investigators estimate recidivism rates as high as 80%. There are many reasons why virtually all first-time released felons will go back.

1. Skills: The vast majority of incarcerated felons are functionally illiterate. In part, that is the fault of public schools. And in part, it is the fault of the individuals and their families. I have taught felons whose mathematical skills are at or even below primary grade levels, and they can't read a primary grade level math book to study. Obviously, their ability to deal with a numerate world is severely limited.

2. Most felons have been neotenized, either by family, state, or both. This is particularly severe in black communities, but is also a problem in underclass white, usually rural, communities. It a feature, not a bug, in mother-headed households. It is sad, but amusing, to see a mother in the news supporting a young man who has just murdered a child (by accident, very often), claiming "My boy is a good boy and he ain't done nuthin!" We should all thank God that black gangbangers can't shoot straight, because the carnage would be ten times worse if they didn't learn gun handing skills from TV and movies.

3. Rehabiliation. The notion of "rehabilitating" criminals is fairly recent in an historical sense. WADR to the behavioral "sciences", we have no idea how to rehabilitate criminals. The person who discovers a way will be an instant billionaire.

4. Most felons, on release, simply return to the neighborhoods and family relations from whence they came, with the same lack of productive skills. In fact, this is formalized in the Federal system, wherein felons are transferred from the institution to a halfway house in their hometown as a matter of policy.

5. Institutionalization. Prisons are expert at institutionalization. Job #1 in prisons is security. Inmates are told when to rise, when to shower, when to eat, what to eat, when to socialize, and when to go to bed. Virtually all meaningful decision making is prohibited on pain of isolation (the SHU, or Special Housing Unit).

The elimination of the "felon box" on job applications is going to be interesting to watch. While it is true that the prior probability of a black male applicant has a prison record is much higher than that of a white male, Federal employment law argues that an employer whose hiring record does not match the natural racial distribution in the applicant pool (except in cases where blacks dominate like the NBA, or for minority-owned businesses who hire along racial lines) is "discriminating". So it's a classic knight fork, or "double-bind" as the shrinks would call it. Damned if you do and damned if you dont, in the argot. Popcorn-worthy, IMO.

Just a couple of additional comments...

For those who object to leisure activities and TV in prisons, trust me: nobody goes to prison to score a gym membership and free cable.

And regarding Ares' silly comment about the nature of the crime for which they were jailed, most felons are not jailed for the crimes they actually commit. My wife is an attorney with a criminal practice, and I can assert that so much dealing is done to avoid the time and cost of a trial that a gangbanger guilty of gun crime and first murder is likely to end up being charged with something like manslaughter, a much less serious crime. Or even a misdemeanor and time served, if he's willing to rat out his buds. I'd be surprised if 10% of the adult repeat felons in this country ever went to trial for anything.

Some investigators estimate that up to 80% of felonies are committed under chemical influence. Drunk/stoned + neoteny = deadly brew.

Ares Olympus said...

Trigger Warning said... As it happens, I've had a bit of experience dealing with felons. I have spent many hours in Federal and state prisons mentoring inmates, and I've volunteer-taught GED mathematics classes in both.

Thanks for sharing your perspective, direct experience is always helpful! I do imagine you're right - charged crimes may not suggest actual criminal behavior.

Although for smaller crimes, like possession of drugs, the system surely catches up on people for otherwise nonviolent behavior that is merely self-destructive.

I have some friends in the local quaker community who do a program called AVP, alternatives to violence Program, volunteer workshops with community members and prisoners within prisons.

Basic skills like math and reading are one thing, very important and teachable, but learning how to detach and verbalize rage without acting on it is another vital skills, and not as clear how to teach by people who haven't gone through hardship.

And that is, there's a gap between "street skills" and "social skills", the first teaching survival, and the second needed for prospering when basic needs are met.

So I imagine those with the most to give are those who passed through poverty and find their own success, and then go back to help others find a way through.

Trigger Warning said...

"learning how to detach and verbalize rage without acting on it is another vital skills, and not as clear how to teach by people who haven't gone through hardship."

So, in addition to making your claim that such a thing is possible if you have the "right people", refer me to a program that has exhibited demonstrable, durable success with objectively-measurable results.

Or are you just speculating that such a program might be possible in some world, but, sadly, no one has been receptive to your notions?

Ares Olympus said...

TW, I'd speculation there's no perfect program, and some people make progress all on their own as they age, but that programs (like AVP) can help people more than just letting them rot in prison, and letting them out X years later and expected something has changed.

I've not seen any measure for AVP success. And perhaps all such programs are in party "faith based", where belief that they work encourages believers to keep trying when they fail, rather than just falling back into old habits.

Certainly 14,000 people of 2.2 million prisons is a drop in the bucket. You can check out their report, but looks more focused on participation counts than measures of progress.
AVP started in prison and continues to flourish there. A total of 14,230 incarcerated citizens in the U.S.A. took the training in 2014. 1500 incarcerated facilitators in 100 prisons work to transform their communities both while incarcerated and upon their release.