By Kenneth J. Cooper
States across the country are passing laws intended to make ex-offenders more likely to find jobs and, as a result, less prone to commit crime again. Behind the legislative trend is an unusual combination of budget-conscious officials seeking to trim prison populations and activists opposing “structural discrimination” against applicants with criminal records.
Within the last four years, one-third of the states have approved legislation to improve employment prospects of residents with records, according to surveys by the National Conference of State Legislatures. Generally, the laws either allow otherwise qualified ex-offenders to progress further in the hiring process or shield official records of some offenses from employers conducting background checks.
Four states have passed laws that prohibit employers from inquiring about criminal history on initial job applications. Activists based in California are waging a national campaign to “ban the box,” a reference to a standard question many employers ask about whether an applicant has convictions or arrests.
The ban applies to public and private employers in Massachusetts but only to public agencies in Connecticut, Minnesota and New Mexico. The laws exempt employers such as day care centers and schools that have other legal mandates to check criminal records.
Before last year, Hawaii was the only state with a similar law.
“It’s getting to be more and more an accepted idea,” said Madeline Neighly, an attorney with the National Employment Law Project, which provides technical assistance to state and local governments. “It creates a bigger, better applicant pool.”
About a dozen states have begun permitting people convicted of drug offenses, minor crimes or violations as juveniles to have their records sealed sooner or more easily. Nevada, for instance, requires special drug courts to seal the records of offenders after they complete drug or alcohol rehabilitation programs, eliminating a three-year waiting period. Washington automatically destroys some juvenile records three months after a youthful offender turns 18.
The trend of giving ex-offenders a better shot at a fresh start is strongest in the West, where seven of the 17 states with new laws are located. It extends into the South, a region historically tough on crime.
In South Carolina, a prison sentencing overhaul enacted in June includes a provision making first-time drug offenders eligible to have their sentences dismissed and records expunged. Gov. Mark Sanford, a conservative Republican, has predicted that the overall legislation will “both discourage recidivism and save taxpayer resources” because it would “limit unnecessary prison population increases.”
For the first time, Mississippi allows purging some felonies from public records. The law approved earlier this year applies to a single conviction for bouncing checks, possessing illegal drugs, shoplifting, stealing or engaging in malicious mischief. Such offenders can seek a court order five years after completing their sentences.
Taken together, the new state laws chip away at what All of Us Or None, the group in Oakland, Calif., that launched the “ban the box” campaign earlier this decade, calls “structural discrimination against formerly-incarcerated people.”
Nearly 40 percent of the country’s 2.3 million inmates are black, according to the U.S. Justice Department. In recent years, more than 700,000 offenders have been released annually. Most eventually return. Nationally, the recidivism rate approaches 70 percent.
Studies have shown consistently that ex-offenders are less likely to be incarcerated again if they are working. But their chances of landing a job are not good, despite federal and state laws banning blanket discrimination against applicants with criminal records. Young black men with records, in particular, have a tough time in the job market.
Early this decade, Devah Pager, now a Princeton University sociologist, sent college-age white and black men with similar qualifications to apply for entry-level jobs in Milwaukee, rotating which ones posed as former offenders. When the black applicants faked having a criminal record, they received fewer than one-third as many callbacks from potential employers as white applicants playing the same role.
Other studies have shown, however, that ex-offenders stand a much better chance of being hired if they pass initial screenings and participate in an interview, during which they can explain in person past problems with the law.
Hawaii’s pioneering law to ban initial inquiries about conviction records, adopted in 1998, also forbids employers from considering convictions until after a conditional offer of employment. The Chamber of Commerce of Hawaii balked initially but relented when the legislation was amended to allow withdrawal of offers if a potential hire’s convictions have a “rational relationship” to a job’s duties.
In Massachusetts, where Gov. Deval Patrick, a liberal Democrat, signed a less elaborate ban in August, a major business lobby dropped its opposition after employers were promised better access to official criminal records and protection from lawsuits if they reject applicants based on incorrect, state-supplied information. But applicants must approve employer requests for their state records and be given a copy if they are rejected for that reason.
“We just need to have the information to make the assessment based on risk and have that open and honest conversation” about an applicant’s record, says Bradley MacDougall, associate vice president of Associated Industries of Massachusetts.
The Massachusetts law also reduces the number of years that criminal records are available to employers and the public—to 10 years for felonies, down from 15; and five years for misdemeanors, down from 10. “The best way to break the cycle of recidivism is to make it possible for people to get a job,” Patrick said.
States that have eased barriers to employment for former offenders since 2006 include, at least, Colorado, Connecticut, Hawaii, Illinois, Louisiana, Maryland, Massachusetts, Minnesota, Mississippi, Nevada, New Mexico, New York, South Carolina, South Dakota, Utah and Washington.