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Why ‘Banning the Box’ Is Such a Big Deal for the Formerly Incarcerated

By November 5, 2015August 24th, 2018No Comments

Formerly incarcerated New Yorkers rally with VOCAL to ban the box outside City Hall. (VOCAL)

Each year, hundreds of thousands of people who have spent time behind bars prepare for life outside of prison. President Obama just helped ease their path back to society by removing one of the major barriers to reintegration: a common part of the job application known as “the box.”

The new executive order to “ban the box” from federal job applications prohibits employers from asking applicants to fill out a box disclosing their criminal history. Advocates say “the box” needlessly deters otherwise qualified candidates while fueling the cycle of discrimination against people involved with criminal justice system.

Applicants for federal government jobs will not be asked about a criminal record until later in the review process. Although employers could still run criminal background checks on candidates, this disclosure would be delayed, and be regulated by federal anti-discrimination guidelines.

Though the symbolic measure is limited to federal employers—and not private federal contractors—it reflects reform initiatives across many states and localities to decrease mass incarceration, restructure penalties for nonviolent offenses, and promote post-prison reintegration.

Keeping an HR manager from rejecting someone, sight unseen, based on a single box, parallels recently updated Equal Employment Opportunity guidelines for civil-rights statutes known as Title VII. The rules protect applicants from bias based on a criminal record—based partially on the concept that using criminal history as pretext for exclusion may disproportionately affect blacks and Latinos, ultimately aggravating racial discrimination in employment.

Often, a past conviction should be put into the context of an individual’s life. For someone who has dealt with a background of poverty or a struggle with addiction may simply need a steady job to get back on track. Or the issue might have been resolved decades ago, but their record still follows them. Either way, the real explanation exceeds a box on an application form—an alienating preemptive interrogation that may deter many from even trying.

Yet this question is one of several ways many communities are boxed in from the start. Kids of color in aggressively policed neighborhoods are, for instance, disproportionately vulnerable to incurring trumped-up pot-related charges; they may be pressured to plead guilty to avoid a harsher sentence, and regardless of actual guilt, conviction may be all but assured if they can’t afford decent legal defense—institutionalized consequences that middle-class whites may never face for their youthful indiscretions.

But the formerly incarcerated population has become too massive to just screen out in an applicant pool, so reforms have spread in dozens of states and cities. According to the National Employment Law Project (NELP), “more than 100 million Americans—roughly one-third of the U.S. population—live in a jurisdiction with a ban-the-box or fair chance policy”—and often these go further than just unboxing the formerly imprisoned. In Minnesota, for instance, consideration of a criminal record is delayed to the point of a secondary interview or “conditional offer of employment”; the burden shifts onto the boss to show why somone should be disqualified based on an imperfect criminal record, after initially finding her to perfectly qualified in other aspects.

For the roughly 700,000 people released annually, a steady job may serve as a circuit breaker for the pattern of self-perpetuating disadvantage that tends to follow people for years after they’ve served their sentence. By immediately restoring some measure of dignity and self-sufficiency, linking existing job markets with labor-ready economic potential may arguably be the cheapest path to reintegration—government can boost someone onto a career ladder just by making the first rung within reach.

When researchers tracked formerly incarcerated people three years following release, according to NELP, those with one year of employment returned to incarceration at a rate of 16 percent—dramatically improving on the general federal recidivism rate of 52 percent. Since formerly incarcerated people face extreme economic deprivation and often struggle to rebuild their families and livelihoods, the stark numbers suggest that absent a stable job, people may feel driven to resort to illegal means just to survive.

For Glenn Martin, head of the civil-rights advocacy network Just Leadership and a formerly incarcerated person himself, employment wasn’t so much a mode of discipline as it was a platform for empowerment. Recalling the dozens of initial rejections he faced after his release—before he landed his first break with a legal nonprofit group—he says, “the ability to actually get in and talk to employers without being turned down, before I even get a chance to interview, would be huge…. I would argue that most of those employers who denied me an opportunity off the bat probably lost a pretty good opportunity…[my] employer themselves benefited hugely from being able to hire a formerly incarcerated person.”

Nonetheless, prejudicial barriers remain woven into the employment process, particularly in low-wage job sectors. Criminal background checks have been employed by the majority of employers. Some industries impose bars on hiring people with tainted records. Moreover, communities that have suffered wholesale criminalization from the War on Drugs and concentrated poverty suffer social alienation that reflects and fuels the stigma of criminality.

Replacing the box with a real conversation can begin to curb the incarceration cycle. Opening a fair chance at a job expands the public dialogue on America’s prison addiction—and what it means for the formerly imprisoned, and the society that judges them, to “pay their dues.”

“It’s not about creating a protected class among people with criminal records, it’s about ensuring the civil rights of people of color in this country,” Martin says.

People just freed from prison are walking case studies in missed potential. One study found workers with a criminal record were slightly more productive than their non-convicted counterparts. According to one coffeeshop owner quoted in NELP’s research brief, “It’s not just a job for them—it’s their life.… They have inspired our staff because they are so serious.”

But some things you can’t get back. An untold number of the formerly imprisoned never belonged there in the first place. No job can compensate for lost time with a child or redeem missed years of education. But as millions of futures now hinge on that one second chance, erasing the box could allow people to demonstrate potential that’s been suppressed so long.


IBW21 (The Institute of the Black World 21st Century) is committed to enhancing the capacity of Black communities in the U.S. and globally to achieve cultural, social, economic and political equality and an enhanced quality of life for all marginalized people.