Do Ban-the-Box Laws Really Work?

• Author: Dallan F. Flake
• Position: Associate Professor of Law, Claude W. Pettit College of Law, Ohio Northern University
• Pages: 1079-1127

1079

Do Ban-the-Box Laws Really Work?

Dallan F. Flake*

ABSTRACT: Ban-the-box laws, which delay an employer’s inquiry into an

applicant’s criminal record until later in the hiring process, are gaining

remarkable traction at the local, state, and even federal levels. But the

assumption that employers will be more likely to hire ex-offenders if forced to

evaluate their qualifications before discovering their criminal record has gone

largely untested. Empirical uncertainty has given rise to various criticisms of

ban-the-box laws, chiefly that they merely postpone the inevitable decision not

to hire the ex-offender—often at considerable cost to both the employer and

applicant—and, worse yet, that they may actually harm racial minorities by

prompting employers to assume all minority applicants have a criminal record

in light of their much higher arrest and incarceration rates, and eliminate

them from consideration on that basis.

This Article reports the findings of a field experiment that tests both of these

criticisms. The experiment entailed applying to food-service job openings in

Chicago, which bans the box in private employment, and Dallas, which does

not, using a fictitious ex-offender applicant profile. One-third of the

applications in each city used a black-sounding name, one-third used a

Latino-sounding name, and the other third used a white-sounding name.

Each application was tracked to determine whether it elicited an employer

callback (i.e., a request for an interview or additional information). Multiple

regression modeling was then used to compare callback differentials between

cities and across races. The results refute the contention that ban-the-box laws

do not increase employment opportunities for ex-offenders, as applicants were

27% more likely to receive a callback in Chicago than in Dallas. The results

likewise contradict the claim that banning the box harms racial minorities.

*

Associate Professor of Law, Claude W. Pettit College of Law, Ohio N orthern University.

I presented earlier versions of this Article at the 2017 University of Kentucky College of Law

Developing Ideas Conference, the 2017 Colloquium on Scholarship in Employment and Labor

Law, the 2018 Ohio Legal Scholars Workshop, and the 2018 Annual Meeting of the Law and

Society Association. I would like to express my gratitude to participants at those confe rences for

their helpful comments on this project. I am profoundly grateful to Dr. Renata Forste for her

expert assistance with the data analysis, to Dr. John Hoffman for his helpful input on the

experimental design, and to Professors Richard Bales, Terry-Ann Craigie, Erica Goldberg, and

Deidré Keller for their input on earlier drafts of this Article. I would also like to thank ONU Law

for generously funding this project and William Salkin for his research assistance.

1080 IOWA LAW REVIEW [Vol. 104:1079

All three races had higher callback rates when the box was banned, with the

black applicant experiencing the largest increase. Still, the black applicant

had much lower callback rates than the white and Latino applicants in both

Chicago and Dallas, indicating race remains a formidable barrier to

employment, regardless of whether an employer is aware of a candidate’s

criminal record.

In light of these findings that banning the box increases an ex-offender’s odds

of employment without harming racial minorities, this Article considers the

potential costs and benefits of ban-the-box laws, both standing alone and as

part of broader efforts to successfully reintegrate ex-offenders into society.

Although banning the box may prove helpful in improving ex-offenders’ job

prospects, it is hardly sufficient; more is required to ensure that upon release,

an ex-offender’s prison sentence does not become a life sentence.

I.INTRODUCTION ........................................................................... 1080

II.THE BAN-THE-BOX MOVEMENT .................................................. 1087

III.EMPIRICALLY TESTING BAN-THE-BOX LAWS ............................... 1093

A.PRIOR STUDIES ...................................................................... 1093

B.THIS STUDY .......................................................................... 1095

1.Design .......................................................................... 1096

2.Cities ............................................................................. 1097

3.Job Postings.................................................................. 1098

4.Applicant Profile ......................................................... 1099

5.Callbacks ...................................................................... 1103

C.RESULTS ............................................................................... 1104

IV.DISCUSSION ................................................................................. 1111

A.MAKING SENSE OF THE DATA ................................................. 1111

B.FUTUREIMPLICATIONS .......................................................... 1117

C.THE BIG PICTURE .................................................................. 1122

V.CONCLUSION .............................................................................. 1127

I. INTRODUCTION

The United States’ mass incarceration epidemic is well documented. In

less than 50 years, the jail and prison population has grown more than tenfold

2019] DO BAN-THE-BOX LAWS REALLY WORK? 1081

from approximately 200,000 in 19721 to over 1.5 million in 2015,2 despite a

decades-long decline in crime rates.3 The nation’s incarceration rate of 698

per 100,000 residents far outpaces second-place El Salvador (614), as well as

countries such as Russia (413), Mexico (165), and China (118).4 Yet, the

incarceration rate tells only part of the story: In 2015, an additional 4.6

million Americans were under some form of community supervision, such as

parole or probation.5 In total, a staggering 65 million U.S. adults—one in

four—have some type of criminal record.6 These figures seem destined only

to increase under the administration of President Donald Trump, who ran for

office “on a platform of ‘law-and-order,’ claiming that crime was rising and

there was a ‘war on our police.’”7

Having even a minor criminal record can present significant obstacles

that often inhibit individuals from moving past their interactions with the

criminal justice system.8 This is especially true in the context of employment,

where a criminal record can drastically reduce a person’s odds of finding

steady work.9 The negative effect of a criminal record on employment is

1. BUREAU OF JUSTICE STATS.: U.S. DEP’T OF JUSTICE, PRISONERS 1925–81, at 2 tbl. 3 (1982),

http://www.bjs.gov/content/pub/pdf/p2581.pdf.

2. E. ANN CARSON & ELIZABETH ANDERSON, BUREAU OF JUSTICE STATS.: U.S. DEP’T OF

JUSTICE, PRISONERS IN 2015, at 1 (2016), https://www.bjs.gov/content/pub/pdf/p15.pdf.

3. See John Gramlich, 5 Facts About Crime in the U.S., PEW RES. CTR. (Jan. 30, 2018),

http://www.pewresearch.org/fact-tank/2017/02/21/5-facts-about-crime-in-the-u-s (citing data

from the FBI and Bureau of Justice Statistics showing that between 1993 and 2016, violent crime

fell between 48% and 74%, and property crime fell between 48% and 66%).

4. Peter Wagner & Wendy Sawyer, States of Incarceration: The Global Context 2018, PRISON

POL’Y INITIATIVE (June 2018), https://www.prisonpolicy.org/global/2018.html.

5. DANIELLE KAEBLE & LAUREN GLAZE, BUREAU OF JUSTICE STATS.: U.S. DEP’T OF JUSTICE,

CORRECTIONAL POPULATIONS IN THE UNITED STATES, 2015, at 2 (2016), https://www.bjs.gov/

content/pub/pdf/cpus15.pdf.

6. See MICHELLE NATIVIDAD RODRIGUEZ & MAURICE EMSELLEM, NAT’L EMP’T LAW PROJECT,

65 MILLION “NEED NOT APPLY”: THE CASE FOR REFORMING CRIMINAL BACKGROUND CHECKS FOR

EMPLOYMENT 3 (2011), http://www.nelp.org/content/uploads/2015/03/65_Million_Need_

Not_Apply.pdf.

7. AMES C. GRAWERT & NATASHA CAMHI, BRENNAN CTR. FOR JUSTICE, CRIMINAL JUSTICE IN

PRESIDENT TRUMP’S FIRST 100 DAYS, at 4 (2017) (footnotes omitted), https://www.brennancenter.org/

sites/default/files/analysis/Criminal_Justice_in_President_Trumps_First_100_Days.pdf. Grawert

and Camhi detect a number of key shifts that seem likely to eventually, if not immediately,

increase the country’s correctional population, including “push[ing] a false narrative about rising

crime and call[ing] for urgent, drastic action[;]” hinting at a return to harsher federal charging

policies; “[i]ncreas[ing] [i]mmigration [e]nforcement and [d]etention[;] . . . [d]ecreas[ing]

[o]versight of [l]ocal [p]olice[;] . . . [and] [i]ncreas[ing] the [u]se of [p]rivate [p]risons.” Id. at 1–2.

8. SENTENCING PROJECT, AMERICANS WITH CRIMINAL RECORDS 1 (2015), http://

www.sentencingproject.org/wp-content/uploads/2015/11/Americans-with-Criminal-Records-

Poverty-and-Opportunity-Profile.pdf (“Having even a minor criminal record, such as a misdemeanor

or even an arrest without conviction, can create an array of lifelong barriers that stand in the way

of successful re-entry.”).

9. See, e.g., Devah Pager et al., Sequencing Disadvantage: Barriers to Employment Faci ng Young

Black and White Men with Criminal Records, 623 ANNALS AM. ACAD. POL’Y & SOC. SCI. 195, 199

(2009) (finding that job applicants with a criminal record are about half as likely to receive a