Opinion

Ex-convicts should not be stigmatized into unemployment

Barring people with criminal records from certain jobs is unproductive and unjust

November 20, 2013 7:30AM ET

by Sadhbh Walshe @SadhbhWalshe

Inmates at the California Institution for Men state prison in class as part of their training to become commercial divers.

Patrick T. Fallon/Bloomberg/Getty Images

On Nov. 6, during a Senate Finance Committee hearing on the Affordable Care Act (ACA), Sen. John Cornyn, R-Texas, had something of an "aha" moment as he grilled Health and Human Services Secretary Kathleen Sebelius. Cornyn forced Sebelius to admit that because there is no federal requirement for ACA navigators — the paid counselors who are responsible for guiding people through the often confusing enrollment process — to undergo criminal background checks, it was possible that felons could be hired to help run the program. Wasting no time, Sen. Marco Rubio, R-Fla., the following day introduced legislation that would prohibit anyone with a felony or, in some cases, just a misdemeanor conviction from even applying for a navigator job.

At first glance, this might seem like a sensible measure. "Keeping criminals out of our health care" would certainly make for a great sound bite. If Rubio's Healthcare Privacy and Anti-Fraud Act becomes law and yet another job category is closed off to those with criminal records, the senator will no doubt declare it a victory for public safety. In truth, however, it would be anything but that.

There are so many people who fall into the ex-convict category that it is neither practical nor wise to try to prevent them en masse from applying for certain types of jobs. The National Employment Law Project (NELP) estimates that there are a whopping 65 million Americans with criminal records. To put that number in context, it amounts to nearly 30 percent of working-age adults. Yes, you read that correctly: 30 percent.

Among that 30 percent, there are a handful of murderers, rapists and serial con artists who would perhaps not be best suited to a job as an "Obamacare" navigator. Lumped with them, however, is a considerably larger number of people who have been busted for something as trivial as smoking a joint or failing to pay a library fine. In other words, in a category this large and diverse, there is room for nuance. Imposing sweeping bans that would prevent (PDF) some 65 million people from applying for certain jobs — regardless of how trivial their crime may have been or how many decades have passed since they fell afoul of the law — does little to enhance public safety and a lot to do just the opposite.

Every year, some 650,000 people are released from prison, and (at least in part) because of the sometimes insurmountable barriers these former convicts face in securing employment and housing, up to two-thirds of them are likely to be rearrested within three years. These dismal recidivism rates have led to a growing recognition among criminal justice advocates, embodied by the Ban the Box campaign, that making it next to impossible for a felon to find a secure job is counterproductive at best and downright foolish at worst.

It is misguided to impose blanket bans that keep tens of millions of people from applying for jobs for which they are qualified.

The campaign, which was started in 2004 by All of Us or None, a civil rights initiative created by formerly incarcerated people and their families, is making a nationwide push for legislation to ban the check box on job application forms that a person with a felony or misdemeanor conviction is required to mark. The idea is not to keep employers from ever finding out about job candidates’ criminal records but simply to give those people a chance to be judged on their skills and qualifications before being judged (and typically rejected) for the convictions they are trying to put behind them. Ban-the-box policies do not prohibit employers from ever conducting criminal background checks. As Madeline Neighly, a staff attorney with NELP, explained, "Ban-the-box laws simply remove the question from initial job applications, and many prohibit inquiry into an applicant’s criminal history until they have been deemed otherwise qualified or a conditional offer of employment has been given."

As of this August, more than 50 cities and counties and 10 states had enacted legislation to ban the box, at least on public-sector job applications. Of those, four states have gone a step further to cover private employers as well. Some private employers are voluntarily adopting ban-the-box hiring policies. (Last month the Minneapolis-based Target Corp., the nation's second-largest retailer, removed the question from its application after bowing to pressure from the grassroots community group TakeAction Minnesota, which claimed the company was screening out too many qualified candidates.) Still, despite the growing success of the ban-the-box movement, holders of criminal records too often find that though their prison sentence was a finite one, it comes with a built-in life sentence of unemployment.

As of 2007, according to the National Criminal Justice Reference Service, felons were barred from nearly 800 occupations in the United States. If Rubio gets his way with his proposed health care legislation, another occupation will soon be added to that list. Naturally, safeguards must exist to ensure, for instance, that a repeat sex offender is not inadvertently hired as a school janitor, or an incorrigible thief as a cashier. According to a 2010 survey, though, 92 percent of employers perform criminal background checks at some point in the hiring process, so it is unlikely that anyone who poses a genuine threat will slip through the cracks.

Imposing blanket bans that exclude tens of millions of people who may pose no risk from applying for jobs for which they are qualified is thus doubly misguided. Not only does it perpetuate the false assumption that a person who falls afoul of the law is forever irredeemable, but by doing so, it also makes it less likely that such a person will ever be hired for any job. Rubio may genuinely want to promote public safety with his new bill, but stigmatizing holders of criminal records and forcing more of them into the shadows will not achieve that goal.

Sadhbh Walshe is a filmmaker and former staff writer for the CBS drama series “The District.” She writes a weekly column for The Guardian on social and criminal justice and has contributed to The New York Times, The Irish Times and The Chicago Tribune, among other publications.

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera America's editorial policy.