Why ‘banning the box’ for reformed offenders is the real quality of mercy

A generation ago, it would not have been out of place in a town or small municipality to hear the tale of some local citizen – a school bus driver, gas-station clerk, or even a professional – who, through a combination of bad judgment and situational strife, found himself behind bars. Maybe the cause was driving while intoxicated or carrying a controlled substance; maybe an unexpected moment of low-level violence or petty property damage. Whatever the nature of the incident, the individual in question wasn’t savvy enough, or financially secure enough, to escape a criminal conviction.

As such, even without significant jail or prison time, he was at risk of losing what little he had, which, of course, would have been everything to him. Sadly, some were lost forever, but others, as they say, turned their lives around. A moment of shame became an occasion for change, and through supportive friends, relatives and neighbors, they were either able to hold their old job or get a new one as part of a broader project of recapturing a healthy, productive and virtuous life.

Today, when all that is “relevant” about us is routinely crammed onto an online or printed form, a past mistake, no matter how transient and trivial, is a lifelong millstone about the neck.

Michigan, along with a majority of other states, allows employers to demand that job seekers check a box revealing their criminal backgrounds as a condition for entering the applicant pool, typically to the seeker’s detriment. The ostensible justification for employers doing so is to ensure a safe and secure work environment, though the screening process can be clumsily, if not thoughtlessly, applied under the simpleminded and problematic principle of “once a criminal, always a criminal.”

Thankfully, 11 states, including Nebraska earlier this month, have outlawed this practice in the hopes of providing a fairer environment for ex-convicts to contribute socially and economically rather than languish perpetually in the hell of unemployment, which often incentivizes renewed criminal behavior.

So why not Michigan? Democrats in Lansing have already introduced so-called “ban the box” legislation which keeps the application process open to individuals with criminal records, while prudently making exceptions for positions that are closed to felons. The proposed legislation, moreover, does not prevent employers from asking about an applicant’s criminal history during an interview nor stop them from conducting a thorough background check later in the process.

Although the macro-level policy justification for “ban the box” legislation is to get former criminals back into the workforce while reducing recidivism rates, there is an authentically humane side to this matter which ought not to be missed.

People who commit crimes have not abrogated their right to a living, nor forfeited their eligibility for mercy – a concept which has been obscured by the modern criminal justice system. As Stephanos Bibas of the University of Pennsylvania discusses in his magisterial “The Machinery of Criminal Justice,” there was a time in American socio-legal history where people “recognized that everyone was weak, so anyone of any social class could succumb to temptation and crime” and thus “the job of the criminal justice system was to reclaim the errant sheep and reintegrate them into the flock.” We may be far removed from that perspective today, but are we utterly disconnected from it ethically? Heaven forbid.

Naturally, there are those who are panicked over the possibility that banning the box will turn local businesses into dens of thieves with villains at every checkout counter and rogues working under their hoods. A more plausible scenario is that a handful of nearby businesses will increase the number of those looking to carry on their lives lawfully among their work force. “Ban the box” is not a mandate for hiring blindly.

On the other end of the spectrum, some believe that the bill doesn’t go far enough. As already noted, employers would still be allowed to inquire into a potential employee’s criminal background, though only after making an initial time investment to conduct an interview and, hopefully, review seriously the applicant’s other qualifications for the position.

Perhaps a more effective course of action would be to “sunset” public access to criminal records after a certain period of time (with exceptions for certain classes of heinous offenses). All things in due course. At this juncture, there is simply more political will for a ban-the-box approach than there is for comprehensive reform to how we treat ex-convicts once they have paid their debt to society and, hopefully, found a pathway to rehabilitation.

Detroit, Kalamazoo and Muskegon have already moved to remove initial criminal background disclosures from their public-employee applications. This demonstration effect should induce lawmakers at the state capital to follow suit.

How a given society handles those who violate its laws says a lot about its commitment to public tranquility, but it can also speak volumes about its collective moral character. Harsh crimes warrant harsh, but measured, punishments, but no punishment should be perpetual.

By adopting ban-the-box legislation, Michigan has the opportunity to help set an example for the rest of the nation that mercy and justice can work together, and that all its residents, regardless of past errors, are afforded the freedom to turn their lives around.

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Sun, 04/27/2014 - 7:47am
It's called a criminal record for a reason. Most minor offenders can get an expungement. If they don't qualify for an expungement then they deserve to have the record. One doesn't get a criminal record in a box of Cracker Jack, it has to be earned! "Responsibility" is a tough nut for many to crack. Some grasp the concept only after exposure to the criminal justice system. Proving you deserve consideration goes much further in my book than just removing a box from a form. Employers have every right to ask; it's their assets and livelihood that they're attempting to protect when they include a criminal records check on a future employee. All 'banning the box' will do is delay the inevitable and set new records for the shortest job interviews...and there's nothing merciful in that. And no Mr. Sanchez, I don't want Michigan to set the example for mercy to ex cons; Michigan already has the title locked up for champion of pothole repair. That's enough for me.
Tue, 04/29/2014 - 12:11pm
I have a criminal record based on a conviction that included 30 days in jail and six months of in-person probation. The crime... Keeping chickens in the city.
Jan Barney Newman
Sun, 04/27/2014 - 9:19am
I agree wholeheartedly with Mr. Sanchez. Not only is our prison system unable to attend to the rehabilitation of criminals, those incarcerated for minor crimes are released with a necessity of revealing their past indiscretions to face an impossible life without a means of support other than resorting to criminal activity again. With no job and no vote, they remain pariahs. How is that good for society? I support banning the box.
Gloria Woods
Sun, 04/27/2014 - 9:51am
I'm with you, Jan. The idea of punishment-in-perpetuity is not proportional--in America, we believe in second chances. The U.S. Equal Opportunity Commission also warns employers that a blanket refusal to hire anyone for any job may be seen as discrimination, given the disparate impact on men of color. What we continue to ignore is the harm to the whole community that occurs when its citizen is denied employment because of any kind of felony record, no matter how many years have passed, no matter what the crime may have been, no matter how irrelevant the crime might be to the job in question. It's time to "ban the box".
Mon, 04/28/2014 - 12:53am
I wonder whether Mr. Sanchez considers himself a ‘reporter’ or a public ‘lobbyist’. He seems to see only his side and shows no concern with even unintended consequences from what he is promoting. It appears that Mr. Sanchez only sees violations of the laws as those“…who, through a combination of bad judgment and situational strife, found himself behind bars.” He can only seems to see the crimes as, “Maybe the cause was driving while intoxicated or carrying a controlled substance; maybe an unexpected moment of low-level violence or petty property damage.” He seems to feel the persons convicted of such crimes are the victims. There is definitely a risk when being up front with such information, but if not then when? The longer the information is delayed the more difficult it becomes for the applicant and for the employer. I appreciate Mr. Sanchez’s ‘good intentions’, they would have much more credibility if he were willing to address the issues/consequences of what he wants to create. I wonder what risk Mr. Sanchez is taking compared to what risks he wants to force employers to take.
Mon, 04/28/2014 - 6:34am
People say that being fresh out of prison or having a folonie stops them from getting a job....Well iam on parole and I quit two jobs and now I got a job with Rose City Motors and I just got released from prison Jan-13-2014...I think it has to do with the dedication to get the job...Remember why a rear view mirror is where it is on a car,you are suppose to pay attention more to what is in front of you and less of what is behind of you...
Mon, 04/28/2014 - 10:38am
While the idea of permanently stigmatizing someone for an offence committed years before, even after years of good behavior on the outside, is something that should be reconsidered, but telling an employer that they can't ask the question when the state itself maintains permanent records smacks a little inconsistent. It might be better for the state to get its own policy figured out on this, then take it to the bully pulpit.