For those seeking to enact criminal justice reform and policies aimed at increasing the chances of employment for ex-offenders, referred to as returning citizens, there exist particular policies normally discussed as ‘banning-the-box’. Such policies require employers to remove the box on employment forms that applicants are asked to check if they have a criminal record. As evidenced by the 23 states and 100 cities and counties that have banned the use of the box on their forms already, efforts to enact such legislation have, since the early 2000s, become largely bi-partisan. This past November, President Obama banned the box for all federal employment applications.
Support for these efforts are not without foundation. Current research shows that in communities with ban-the-box mandates, recidivism rates have plunged and returning citizens more easily achieve the socio-economic security needed to permanently shirk profligate behavior. Moreover, private business productivity, tax revenue and public safety increase. Ban-the-box legislation thus should apply to the remainder of states and localities whose legislatures have, rather ignominiously, failed to pass this common sense measure.
However, banning the box has to be rudimentary; as the sole legal response in the fight to restore equal job opportunity to returning citizens, it is at best naïve, and more probably vacuous. The reason for this? Lax information privacy laws in the United States.
The morass that is information privacy encompasses consumer online, social networking, cellphone, email, internet, and personal background privacy. Its pertinence to criminal justice broadly, and employment opportunity more specifically, goes like this: employers in the 27 states that have not banned the box know immediately whether or not an applicant has a criminal background, and applications with a checked box end up in trash cans. But even in the 23 states that have banned the box, employers can simply search an applicant’s name, followed by the phrase “criminal history,” and a slew of results will appear with that person’s record.
This latter scenario may sound normal to you, and you may even utilize the underlying legality to search the background of a neighbor or babysitter. But in many, if not most, of our peer European countries, this unalloyed, unbounded ability to search the record of a job applicant or suspected bacchanal is far from normal.
In 1995, the EU passed the Data Protection and e-Privacy Directives, preventing anyone — employer or otherwise — from accessing the records of another individual. Instead, the European Criminal Records Information System acts as a decentralized system containing the personal records of each EU citizen that can be accessed, exclusively, by central authorities of member states upon request.
The United States, in stark contrast, lacks overarching privacy law. We have what is called a sectoral approach, in which certain industries—health insurance, credit, child privacy—possess protection. Some states have created individual information security laws to fill in vast gaps left by the dearth of overarching federal mandate, but these laws are just patchwork.
Let’s be clear: banning the box uplifts and exists as a first step to employment for returning citizens. But without a revitalization of information security law, we leave returning citizens vulnerable to cyclical and endemic unemployment, poverty, lack of education, and ultimately recidivism. Studies show 60-75 percent of returning citizens lack employment after their first year out of prison or jail; many minors struggle returning to their primary or secondary education, while few make it to college. In states, counties and cities across the country, denial of public and private housing upon the basis of criminal background is completely legal. These realities correlate deeply with recidivism, especially for people of color since the penalty for having a criminal record for whites is half that of having one for people of color.
And let’s not continue to feed ourselves the false narrative that returning citizens work less effectively or pose a threat to coworkers. Studies from organizations such as Evolv to the United States military reveal how returning citizens are 1 to 1.5 times as productive as their counterparts, and more likely to achieve leadership positions in military work. For companies, fiscal incentives exist as well through the Work Opportunity Tax Credit, the Job Training Partnership Act and the Prisoner Reentry Initiative.
If we’re serious about providing equal employment opportunity for all citizens and addressing the deep-rooted structural flaws of our criminal justice system, we must not use and promote banning the box as the only solution to post-incarceration employment. We must work to address issues of information privacy. We must ensure meaningful legislative change is made to the laws that affect who can see our personal records, when, and under what circumstances. And ultimately, we must not hide behind the ban-the-box banner.
Isaiah Fleming-Klink is a Sophomore in the School of Foreign Service. Vanguard Voices appears every other Wednesday.