Obama’s Post-Prison Jobs Plan Is Not Enough

4 minute read
Benjamin Levin is a lecturer at Harvard Law School who specializes in criminal justice.

What happens after a prison sentence ends? For many individuals with criminal records, their troubles are just beginning. Every year, more than 600,000 people are released from prison, but, a year after release, more than 70% remain jobless. Finding a job can be even harder for people of color with convictions or arrests on their record.

To address these obstacles, President Barack Obama recently made a major policy proposal: “ban the box” for all federal employment. This policy would forbid employers from requiring job applicants to disclose past convictions (i.e., they would remove the criminal history checkbox from the application). While the specifics of Obama’s proposal aren’t entirely clear, the rule would mean that federal job applicants wouldn’t be required to reveal any criminal history when they first applied for a position.

Research suggests that obtaining employment is critical to reentering society, not to mention a key step toward obtaining housing and a range of benefits. So a proposal that would put employment within reach for more people should be cause for celebration.

But the proposal has limitations that show just how great the obstacles to reentry are—and how much of a challenge it would be to ensure that formerly incarcerated individuals can find work.

First, the proposal would affect only federal employers, not private employers or state or local governments. It may be that the proposal would encourage other employers to follow suit, but it’s important to recognize that the rule (if adopted) would reach only federal jobs. While it’s not clear how the government would reach private employers most effectively, it’s possible that tax credits or other financial incentives might encourage private employers to take a chance on an applicant with a criminal record.

Second, like most ban-the-box proposals, it would affect only the initial application. Employers would still be free to inquire into an applicant’s history later in the application process, conduct criminal-background checks, or fire a worker later based on past misconduct. (In fact, one issue with the many ban-the-box laws generally is that they don’t specify when or how criminal history can factor into an employer’s decision to hire or retain an employee.) Expanding the principles of ban the box might require adopting a broader legal framework focused on discrimination against those with criminal records (as some jurisdictions have).

Third, the president’s proposal wouldn’t affect the background rules of tort law that expose employers to liability if they hire (or fail to fire) individuals with criminal records. In many jurisdictions, an employer may be liable for “negligent hiring” or “negligent retention” if an employee with a criminal record injures a customer, client or coworker. Therefore, employers may have strong financial incentives to steer clear of applicants with criminal records. Without addressing the potential for liability, ban the box and other similar proposals might still suffer from the hiring decisions of risk-averse employers.

Finally, the proposal doesn’t alter the massive web of licensing laws that prevent those with criminal records from working in a range of fields. In an effort to provide insight into the lingering effects of a criminal conviction, the American Bar Association compiles a National Inventory of Collateral Consequences of Conviction. According to this compendium, thousands of state and federal laws restrict employment for the previously incarcerated. (Indeed, 85% of the laws and regulations in the inventory restrict employment.) Preventing a federal employer from including a check box on application would be a good first step, but it wouldn’t eliminate these barriers.

Ultimately, the proposed federal policy would be much better than the status quo. And it would be good if the federal government followed the example set by a range of state and municipalities. But it’s important to recognize the magnitude of the barriers to reentry and how far there still is to go.

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