To Refuse the Mark: Racial Criminalization and Twenty Years of Struggle to Ban the Box.

• Author: Burch, Melissa

ABSTRACT

In 2003, formerly incarcerated organizers convened in Oakland, California, to develop a political strategy to challenge the discrimination associated with having a criminal record. The emerging Ban the Box campaign swept the nation, removing the question, "have you ever been convicted" from applications for employment in more than 150 cities and counties and 37 states. However, employers still regularly exclude people with convictions and the underlying ideological struggle over the legitimacy of criminal records within a fundamentally unjust criminal legal system is far from resolved. This essay revisits the contested struggle to Ban the Box in Los Angeles County from 2004-2006 in order to redraw attention to the stakes for formerly incarcerated organizers, who, in asking for a foot in the door, were demanding redress for decades of targeted criminalization. By revisiting the deep contestations at the heart of the struggle, the essay invites reflection on the gap that often exists between what people want and what can be achieved through policy reform.

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"DO YOU WANT TO WRAP IT UP PLEASE?" REQUESTED THE SUPERVISOR, his tone flat. The little red light was blinking. Her two minutes were up. An ankle-length, gold and black leopard-print dress, her hair wrapped in a matching piece of fabric--together with the V-shaped choker--conjured the image of a powerful African queen. Carved woodcuts of the continent, painted black, dangled from her earlobes as she spoke. Susan Burton was almost shouting now: "Two years ago, one of my nephews was in the Department of Children and Family Services' care. Because of my criminal record--because of what I did 15 years ago--I could not get my nephew out of the system."

Two minutes were hardly enough time to explain the impact of fifteen years spent in prison and the lifelong barriers that had resulted from the mark of a criminal record. "Since then, I've went back to college. I've gotten a Certificate of Rehabilitation. I've helped two hundred women transition out of prison. I've worked really hard, incredibly hard, to be accountable and in good standing. So I would implore you to support and vote 'yes' for the resolution to reposition the box." This time, the audience complied with the supervisor's rule: "No applause," he had instructed them earlier, slamming the gavel three times, "if you want to express yourself, just wave your hands."

Susan was one of the area's leaders for the national Ban the Box reform movement, an initiative seeking to remove barriers to employment, housing, education, and social services for people with criminal records. Seated behind her were nearly two hundred other supporters who had shown up to be counted that November morning in 2006 at the Los Angeles County Board of Supervisors' weekly meeting. Most of them had a criminal record. Many were unemployed, some had jobs, and some, like Susan, had gotten around the discrimination by finding ways to employ themselves. There to bolster their cause were also dozens of advocates from prominent nonprofits, several state representatives, one member of Congress, one city councilor, and a handful of other leaders of All of Us or None, the former prisoner-led political organization that had initiated the Ban the Box movement. They wanted the question "Have you ever been convicted of a felony or misdemeanor?" removed from County of Los Angeles employment applications.

Ban the Box was conceived in 2003 by All of Us or None members in California who had convened at the Center for Third World Organizing in Oakland, and later with members from across the United States who participated in Critical Resistance South, Beyond the Prison Industrial Complex, a conference of nearly 2,000 activists, scholars, and community members coming together to strategize an end to the use of policing and prisons as a response to social problems. Collectively, All of Us or None had decided that among the many barriers they faced as formerly incarcerated people, the first issue to be tackled was employment discrimination. They would begin their campaign in Oakland, where many of their members were concentrated.

At the time, elected officials across California were concerned about what they called a reentry crisis, the challenge to successfully reintegrate the 45,000 people who were returning home from state prisons each year. Nearly 70 percent of people released from California prisons were being sent back within eighteen months. The Ban the Box reform appealed to many elected officials because it was modest, specific, and nearly cost-free--it was a win-win, as San Francisco's human resources director had said when the city passed the measure in July 2006. Ban the Box quickly gained steam across the United States and by early 2006, when southern California members of All of Us or None had persuaded Supervisor Yvonne Brathwaite Burke to sponsor a resolution to Ban the Box for employees of the County of Los Angeles, thirty-odd municipalities nationally had already enacted the reform.

Because hiring processes vary widely across institutions, the details of the reform also varied. Some cities essentially repositioned the box--they removed the question "have you ever been convicted" from their initial applications, but added it to a subsequent form for applicants who made it to the next stage of the hiring process. Others decided never to ask-applicants to disclose their criminal history, but simply implemented background checks on all new hires. From All of Us or None's perspective, the best policy at the time had been implemented in Boston. There, the city not only removed the conviction question from its application, but decided that no background check would be necessary for a majority of jobs. Criminal history was not relevant to one's employment, Boston decided, unless the new hire would be working in unsupervised situations with vulnerable populations, such as children, the elderly, or the disabled.

The hope within the movement was that elected officials in other cities would reach Boston's conclusion that a criminal record was irrelevant to most jobs but also that government had a responsibility to support the reintegration of formerly incarcerated people. But in most places at the time, elected bodies would only consider arguments to reposition the box. Thus, the most basic demand was that cities and counties follow a similar logic to the American Disabilities Act, which prohibits employers from asking if an applicant is disabled. This model reasons that if an employer has disability information, or, in this case, information about criminal history, they are likely to use it against the applicant, even if unconsciously. Not asking the question up front, organizers reasoned, would help employers avoid wrongful discrimination.

The increased use of background checks during the past thirty years meant that the box now appeared on virtually every application for employment throughout the country. People with criminal records had come to believe that if they checked the box, their applications would be discarded. Their instincts were correct. A study of Los Angeles employers had found that only 20 percent were willing to hire someone with a criminal record (Holzer et al. 2003), despite the fact that blanket exclusions on the basis of a criminal record are illegal under Title VII of the Civil Rights Act of 1964, which protects Black and Latine workers from race-based employment discrimination, including discrimination on the basis of criminal conviction that leads to discrimination against people who are part of a protected class. Given that the criminal legal system...