The United States incarcerates more individuals than any other nation in the world. In numbers, that means 2.3 million adults are incarcerated and around 12 million people move through the American jail system. The need for prison reform in the U.S. is apparent, but reforming the system is a massive undertaking. Recently, several arguments have been presented as to why there should be prison reforms, depending on which side of the aisle you look to. Liberals have consistently supported prison reform in order to rehabilitate inmates and provide them with better opportunities once they are released; on the contrary, conservatives point to the economic issues of having such a high number of incarcerated individuals. On that note, Americans pay about $80 billion a year to support the jail and prison system. For that kind of money, one would think that we would hear about positive reforms to do with inmates and incarceration, but nonetheless we still hear about the rate of recidivism and the fact that about 67.8% of released inmates are rearrested within three years. This is where the “Ban the Box” movement and the Fair Chance Act come into the picture; both movements seek to alter the stigma that comes with being formerly incarcerated and advocate for rehabilitation by providing job security.
The “Ban the Box” movement is a grassroots movement that advocates for employers to consider a potential employee’s qualifications before asking about a criminal record. The Ban the Box movement promotes an equal and fair chance at employment, allowing formerly incarcerated individuals a chance at reentry into society. The movement advocates removing the criminal history box on a job application form. This movement has been adopted in over 100 American cities and 19 states, and the movement asks that employers consider a number of factors when hiring a formerly incarcerated individual, including how much time has passed since the crime, and if the job is related to the crime committed. However, only seven states - Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, and Rhode Island - include private employers in their legislation.
Adding to this grassroots momentum, Senator Cory Booker of New Jersey led a bipartisan bill called the “Fair Chance Act”, which was unanimously approved in October 2015 by the Senate Homeland Security and Governmental Affairs Committee. While this bill has not moved passed the committee stage and is not ready for a Senate floor vote, it still has an immense amount of support from the public and government alike. The Fair Chance Act seeks to break down the barriers between former inmates and federal employment. The purpose of the Act is to allow qualified individuals to seek federal employment without being immediately judged for being formerly incarcerated. Furthermore, the Act would be an initial step in the greater picture of criminal justice reform; it could lead the way to smarter sentencing. If this bill passes, federal agencies will no longer be able to request an individual’s prior criminal history, which would open up a number of job opportunities for formerly incarcerated individuals.
(1) That employers do not inquire about criminal history until an employment offer is ready to be made,
(2) That federal contractors do not inquire about criminal history until the end of the hiring process,
(3) That there are appropriate exceptions, such as positions with access to classified information and,
(4) That there are statistics on the employment of former inmates.
Will the Ban the Box movement coupled with the federal Fair Chance Act result in better opportunities for former inmates? While the Fair Chance Act is applicable to federal employment, if it becomes law it has the potential to standardize the movement and provide nationwide legislation. This federal legislation would make it easy for employers to understand and adopt, as well as provide incentive for state legislators to make changes. However, it still may be difficult to get private employers to comply with such laws. Overall, with some large companies such as Koch and Target adopting variations of these policies, there may already be good policy examples for other companies to mimic. If the momentum keeps up, this type of legislation could bring positive impact to the greater prison reform movement. It is no secret that providing secure job opportunities will alter the rate of recidivism and foster the rehabilitation of former inmates.
The impact on practitioners is two-pronged: understanding how this policy affects the criminal justice system and inmates on a personal level, as well as understanding how the legislation will trickle down to the business and employment side of the law. Practitioners should hone in on the effects of the criminal justice system on inmates and understand the significant changes this type of legislation would bring to the table in terms of reforming the prison system. Further, practitioners should understand the impact of Ban the Box legislation in their respective jurisdictions. Whether an employer is fighting back against new legislation, or seeking to adopt it, practitioners should be prepared to interpret how the legislation may affect a specific employer’s hiring process. Any newly enacted regulations will most likely be complicated for employers to understand, and practitioners should be ready to tackle the new legislation. Additionally, it is important that defense attorneys understand the Act, as well as any state Ban the Box laws, to use as mitigating factors prior to sentencing. The Act will positively impact an individual’s job search, and attorneys can present the Act in court to establish that an individual can be rehabilitated through the widened job opportunities available. Hopefully, the potential for secure employment will encourage a judge to impose a lesser sentence, especially for non-violent offenders.