Thinking Outside of the Box: Ethical Implications of the Unforeseen Backfire of Ban the Box Policies

• Author: Kimberly Saltz
• Position: J.D., Georgetown University Law Center (expected May 2022); B.A., Brown University (2017)
• Pages: 1301-1314

Thinking Outside of the Box: Ethical Implications of

the Unforeseen Backfire of Ban the Box Policies

KIMBERLY SALTZ*

INTRODUCTION

As early as the 1990s, criminal justice reform advocates have called for “ban-

ning the box” in reference to the check box on most job applications asking appli-

cants if they have a criminal history.

1

Having a criminal history greatly decreases

the number of interviews and job offers a candidate receives.

2

This reduces their

ability to find employment, rejoin their communities, and potentially escape the

revolving door of recidivism.

3

In just two decades, Ban the Box has quickly

become a national campaign that includes legislation in a majority of states,

pledges by private corporations, and support from the White House. As cam-

paigns go, it would appear that Ban the Box has reached its zenith.

However, research into the impacts of the campaign show that Ban the Box

policies may actually be backfiring.

4

Researchers found that passing Ban the Box

legislation did increase the number of responses applicants with criminal histories

received to their applications; however, the racial disparity between Caucasian

and Black or Hispanic applicants increased.

5

Caucasian applicants with criminal

histories saw better results, while Black and Hispanic applicants received fewer

responses.

6

Since the criminal justice system already disproportionally impacts

communities of color,

7

the backfiring of Ban the Box policies should concern

legal practitioners and criminal justice reform advocates.

* J.D., Georgetown University Law Center (expected May 2022); B.A., Brown University (2017). © 2021,

Kimberly Saltz.

1. Ban the Box Fact Sheet, NATIONAL EMPLOYMENT LAW PROJECT (August 2017), https://s27147.pcdn.co/

wp-content/uploads/Ban-the-Box-Fair-Chance-Fact-Sheet.pdf [https://perma.cc/RAD9-ZLD6].

2. See Mark T. Berg & Beth M. Huebner, Reentry and the Ties That Bind: An Examination of Social Ties,

Employment, and Recidivism, 28 JUST. Q. 382, 387 (2011), https://www.pacific-gateway.org/reentry,%

20employment%20and%20recidivism.pdf [https://perma.cc/XGD6-9KM4].

3. See id. at 389 (finding that two years after releasing ex-offenders who were employed were half as likely

to face arrest or conviction).

4. See Amanda Agan & Sonja Starr, Ban the Box, Criminal Records, and Statistical Discrimination: A Field

Experiment, U OF MICHIGAN LAW & ECON, No. 16-012, 1 (June 14, 2016), https://poseidon01.ssrn.com/

delivery.php?ID [https://perma.cc/DS7X-CWGQ].

5. See id.

6. See id. at 44.

7. See Shadow Report to the United Nations on Racial Disparities in the United States Criminal Justice

System, THE SENTENCING PROJECT (August 31, 2013), https://www.sentencingproject.org/publications/

shadow-report-to-the-united-nations-human-rights-committee-regarding-racial-disparities-in-the-united-states-

criminal-justice-system/ [https://perma.cc/9GU7-HZWC].

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