The pros and cons: a gathering debate


In Newark, New Jersey, inquiries into an applicant’s criminal history are delayed until a conditional offer of employment is made.


J is 14 when he is arrested for possession of drugs. It’s his first brush with the law, but what happens to him next – in the short term and later in life – will depend on where in the world he is. And the quality of mercy with which it seasons its justice.

In Sweden, where prisons are closing, J would not have reached the age of criminal responsibility.

In India, punishment would be harsh once the inevitably long pre-trial detention ended. He would probably find it hard ever to escape his record.

In the UK, J might do time or pay a fine or both. But eventually, he could make a clean start. From March, UK law changed to help protect young offenders in the jobs market.

In 56 jurisdictions across the US, J could expect relatively fair prospects. Starting with Boston, Chicago and San Francisco in the mid-noughties, to New Orleans just this January, many Americans cities and counties have banned that key tick box on job applications: Have you ever been convicted.

But it’s in Newark, New Jersey, that J would have the best second chance available to an ex-con in the US. From September 2012, the city has had America’s most comprehensive ‘Ban the Box’ ordinance. It applies to itself, to private employers, local licensing and housing. Inquiries into an applicant’s criminal history are delayed until a conditional offer of employment is made. There is a limited “lookback” period for offenses. Unsuccessful job seekers have the right to know why they failed.

“The box is the opposite of rehabilitative justice,” says Jesse Stout of All of Us or None, a grassroots civil rights organization fighting for prisoners’ rights. “The box ensures that formerly incarcerated people are excluded from civil society instead of being fully reintegrated and completing their rehabilitation. Ban the Box is the way forward everywhere in this country.”

Its easy alliterative cadence and notion of nuanced fairness is certainly catching on. In mid-February, Washington, D.C. council debated the measure. Last year, the UK’s Business in the Community charity, whose 850-strong membership includes multinationals, small firms and public sector organizations, kicked off a national Ban the Box campaign. The trans-Atlantic twinning comes with growing recognition of the scale of the problem – one in four Americans and one in five Britons has a conviction.

Rachel Jones, resource manager at the UK’s Veolia Environmental Services, believes it’s about corporate responsibility. “If we don’t [offer] support from a rehabilitation point of view upon release they are going to reoffend.”

Mark Haase, vice-president of Minnesota’s Council on Crime and Justice says it’s just a matter of time before it becomes “standard practice”. Minnesota-headquartered Target, the US’s second largest discount retailer after Walmart, has banned the box nationwide, he points out, because the state did.

In the unreconstructed 1980s, Judge Jose A. Gonzalez upheld a trucking company’s refusal to hire convicted felons in Florida with a terse bit of common sense. If applicants “do not wish to be discriminated against because they have been convicted of theft then they should stop stealing,” he ruled. Even now, there are enough criminologists anywhere in the world to argue that the initial lapse of judgment that caused someone to commit an offense signposts their willingness to break the law again.

It’s not just jobs that automatically bar felons, such as airport security; the police; working with children. No one wants to put an embezzler at the cashier’s desk or a murderer at hotel reception. A report by Working Links, the UK’s leading contractor to get people into work, noted despairingly after consulting with 11 private and voluntary sector employers, that the vast majority expressed a willingness to recruit ex-offenders but “in reality a much smaller proportion knowingly hire(s) from this group.”

That key tick box, says Jeffrey M Conrad, Western New York Regional Director at Buffalo’s Center for Employment Opportunities, “does make sense from a business perspective because it provides employers with a quick way to swift through applications.”

But it still doesn’t do the whole job. The criminal justice system is one of the most costly responsibilities of government, says Conrad, and rehabilitation should be favored over perpetual punishment. “When people of high risk are working they have a 22% less chance of recidivating.”

The pros and cons can be debated endlessly but in 2012, the US federal Equal Employment Opportunity Commission gave a clear lead on the issue. It suggested that employers drop questions about convictions at the initial stage of the hiring process. Instead there should be “an opportunity for an individual assessment” that takes into account “at least the nature of the crime, the time elapsed and the nature of the job”.

The Commission’s suggestion was in sync with the twenty first century’s core belief that people can – and will often – remake themselves. Now the law seems to be catching up.