Noncongruent policymaking by cities for citizens with criminal records: Representation, organizing, and “Ban the Box”

• Published date: 01 June 2023
• DOI: http://doi.org/10.1177/10659129221119988
• Author: Michael L. Owens,Anna Gunderson
• Date: 01 June 2023
• Subject Matter: Articles

Article

Political Research Quarterly

2023, Vol. 76(2) 977–993

© The Author(s) 2022

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DOI: 10.1177/10659129221119988

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Noncongruent policymaking by cities for

citizens with criminal records:

Representation, organizing, and “Ban the

Box”

Michael L. Owens

1

and Anna Gunderson

2



Abstract

Generally, public (and private) policymakers adopt policies—laws, rules, and procedures—that encumber groups with

negative social constructions and low political capital. Sometimes, however, they adopt policies benef‌icial, not bur-

densome, to them. We examine benef‌icial policy adoption for one disadvantaged group—U.S. citizens with cri minal

records. Our focus is the adoption of “Ban the Box”(BTB) policies that embargo criminal records questions on job

applications and defer them during hiring by employers. We leverage extant data on annual BTB policy adoptions, novel

annual city-level data on community organizing groups and descriptive representation (i.e., race and gender), and event

history analysis for a sample of 256 U.S. cities to provide a comprehensive understanding of the city contexts associated

with the spread of BTB policy adoptions by cities across the U.S. between 2004 and 2019. Although descriptive, the

f‌indings deepen and broaden the scholarship about the roles of civil society organizations and descriptive representation

for benef‌icial policymaking for disadvantaged groups and the connection of interests and representation for abolishing

some punitive policy designs by public (and private) actors.

Keywords

policy adoption, criminal records, urban politics, community organizing, descriptive representation

In the U.S., nearly one in three adults has a criminal record

(Lageson 2022). Criminal records are associated with less

labor force participation and less civic participation by the

majority of citizens with criminal records, including those

who are neither incarcerated nor under post-incarceration

supervision (Harding et al. 2018;Lerman and Weaver

2014). This is partly because public and private policy-

makers adopt, impose, and enforce “collateral conse-

quences”forcrimes, administering “penalharm”to citizens

with criminal records via mandates, sanctions, and ex-

clusions, ranging from prohibitions against occupational

licensures to immoderate fees and f‌ines to bans on ac-

cessing social benef‌its (e.g., public housing) to outlawing

voting and jury service (Clear 1994;Chesney-Lind and

Mauer 2002;Mele and Miller 2005;Middlemass 2017).

Perceiving citizens with criminal records, generally, as

morally def‌icient and recognizing most possess limited

political power, public and private policymakers can

constrain such citizens without much opposition, often-

times making them bear incommodities in the polis and

market, as they do other groups with negative social

constructions and low political capital (Schneider and

Ingram 1997). The general objective is to trammel the

liberty and mobility of citizens with criminal records

(Dilts 2014). Sometimes, however, policymakers may

engage in “noncongruent”policymaking, choosing pol-

icies that deliberately mismatch assumptions about the

deservingness of groups deemed socially and politically

negative and the distribution of benef‌its (and costs) to

them (Boushey 2016).

For citizens with criminal records, policymakers can

adopt policies intended to benef‌it, not burden, them.

Examples include criminal sentencing reform and degrees

1

Department of Political Science, Emory University, Atlanta, GA, USA

2

Department of Political Science, Louisiana State University, Baton

Rouge, LA, USA

Corresponding Author:

Michael L. Owens, Emory University, Department of Political Science,

Emory University, 1555 Dickey Drive, Tarbutton 327, Atlanta, GA

30322, USA.

Email: michael.leo.owens@emory.edu

of decarceration (Boushey 2016;Karch and Cravens

2014); restoration of the franchise following or even

during incarceration for felony convictions (e.g., Meredith

and Morse 2015;Owens 2014;White and Avery 2022);

and re-entitlement to social welfare benef‌its (e.g., Owens

and Smith 2012). Nonetheless, much remains unknown

about the factors associated with noncongruent policy-

making for citizens with criminal records (or other groups

with negative social constructions and low political

capital). What we do know is mainly about state and

federal policymaking, even as noncongruent policy-

making for citizens with criminal records occurs at the

local level, too (e.g., restoration of eligibility for public

housing and unfettered access to private rental housing).

Whether local political interests and contexts, social

identities of municipal policymakers, and differences in

municipal institutions are associated with noncongruent

policymaking for citizens with criminal records are

understudied.

We study a portion of noncongruent municipal poli-

cymaking by cities for citizens with criminal records—

adoptions of “Ban the Box”(BTB) policies. Usually, BTB

policies embargo questions about arrests and/or convic-

tions on employment applications, deferring them until

later in hiring processes. Typically, BTB policies mainly

cover public employment. Although uncommon, cities

can extend their BTB policies to cover private employ-

ment, including and beyond their private vendors, if states

do not preempt it.

1

BTB policies may include other el-

ements encouraging “fair chance hiring”(e.g., restricting

the use of background checks until f‌inal selection of job

candidates and/or after making conditional job offers;

restricting background checks to a narrow set of jobs

related to public safety; and imposing f‌inancial penalties

on employers that violate BTB policies).

Drawing from community organizing (Orr 2007;

Swarts 2008;Flores 2018;Han et al. 2021), descriptive

representation (Mansbridge 1999;Dovi 2002;Kerr et al.

2013), and the “internal determinants”of policy adoption

(Berry and Berry 1990;Karch 2007;Shipan and Craig

2006) scholarship, we deduce expectations about cities

adopting BTB policies and we test them. Our primary

interest is in the active presence of aff‌iliates of working-

class community organizing leagues; they exist to em-

power marginalized groups and seek positive policy

changes for them, and cities with such organizations

should have a greater likelihood of adopting BTB policies

than cities without them (Swarts 2008;Flores 2018;

LaPlant and Vuolo 2021). As BTB policies are labor-

related policies, whether localities with ostensibly better

labor-regarding contexts are associated with a greater

likelihood of BTB adoptions is an interest, too (Swarts and

Vasi 2011;Doussard and Jacob 2017). Furthermore, the

presence of some types of mayors and municipal

legislators in terms of race and gender should increase the

likelihood cities adopt BTB policies (LaPlant and Vuolo

2021). Finally, given city governments vary institution-

ally, which may affect municipal policymaking (Carr

2015), cities with council-manager systems may be

more likely to adopt BTB policies than cities with mayor-

council systems.

Event history analysis of f‌ifteen years of BTB policy

adoptions across the 256 largest cities counters claims of

an absence of a “clear pattern in BTB adoption”across

jurisdictions, including cities (Doleac and Hansen 2020,

338). We report consistent and strong associations of

community organizing with a greater likelihood cities

adopted BTB policies, coupled with a general f‌inding that

better labor-regarding contexts boosted the likelihood of

municipal adoptions of BTB policies. The results

strengthen and broaden, too, extant evidence that Black

descriptive representation in municipal government—the

presence of Black mayors and higher proportions of Black

members of municipal legislatures—is associated with an

increased likelihood cities adopted BTB policies (LaPlant

and Vuolo 2021). Yet they contradict theoretical expec-

tations that Latinx and women as elected municipal

policymakers are positively related to the likelihood cities

adopt BTB policies. Finally, while we found no evidence

council-manager cities are more associated with city

adoptions of BTB policies, city-to-city and state-to-city

“diffusion”of BTB policy adoptions was evident.

Criminal records and Ban the Box

Criminal records of arrests and convictions negatively

affect millions of citizens, long after their criminal justice

contact. Joblessness is one way. Of the f‌ive million ex-

prisoners in the U.S., estimates suggest 27% are unem-

ployed, nearly f‌ive times the rate for the general pop-

ulation (Couloute and Knopf 2018). However, generally,

possessing less human and social capital than the typical

jobless citizen (Harding et al. 2018), citizens with criminal

records bear the “negative credential”of criminal justice

contact (Pager 2007), further decreasing their employ-

ment prospects. Along with individual-level explanations,

and the persistent digital life of public records of

individual-level, involuntary contact with police, courts,

and corrections (Lageson 2022), institutional practices

contribute to unemployment and maintain under-

employment of citizens with criminal records.

Governments, f‌irms, and nonprof‌it organizations

suppress employment of citizens with criminal records via

laws, rules, guidelines, and norms. Catalogs such as the

National Inventory of Collateral Consequences of Con-

viction suggest state governments, for instance, maintain

about 42,000 policies barring or hindering employment,

occupational licensures, and certif‌ications for citizens

978 Political Research Quarterly 76(2)