Running Head: Ban the Box, Ban the Discrimination

Increase Skills, Ban the Box, and Ban the Discrimination

Melissa L. Malpass
Cal Baptist University
June 2016

Running Head: Ban the Box, Ban the Discrimination

Ban the Box, Ban the Discrimination

Despite the fact that Brian E. Oliver was sentenced to prison in 1993 for crimes he
committed at the age of 22 and was released in 1999 after serving his sentence of 6 years, 3
months, and 3 days, not to mention, lived in a halfway house for 93 days after his release, and
successfully completed 16 months and 27 days on parole without any violations, he is still being
punished for his crimes. He has been out of prison for over a decade, has received his Masters
Degree in Criminology and Criminal Justice, and has been published in four peer reviewed
journals (Oliver, 2010), but he is still being punished and held back from accomplishing all of his
goals because of his past convictions. His punishment, however, no longer involves
imprisonment, it now comes in the form of denied opportunities (Oliver, 2010). Specifically,
denied job opportunities. Olivers story is one of many, an ex-criminal who served their time,
paid their debt to society, gets released from prison and is continually faced with the stigma
and discrimination of having a criminal background. The discrimination comes in many forms
but one of the most notable is when seeking employment. Ex-criminals face limited, and often
times, denied employment opportunities because of the criminal history background box they
must check on job applications.
As a nation, the United States has the highest rate of incarceration in the world (Steiker,
2011). At the state level, in 2014 California had one of the largest prison population rates (The
Sentencing Project, 2014) and, according to a 2014 report from the California Department of
Corrections and Rehabilitation, had one of the highest recidivism rates in the nation (California
Department of Corrections and Rehabilitation, 2015). The ramifications of such high recidivism
rates are far-reaching, from a fiscal, moral, and social standpoint. A major contributing factor to

Running Head: Ban the Box, Ban the Discrimination

recidivism is unemployment. Aside from the obvious financial hardship it causes, unemployment
increases the likelihood of recidivism amongst those with a criminal history. Not only does
research evince an association between unemployment and crime generally, but unemployment is
also reported to influence recidivism (Berk, Lenihan, & Rossi, 1980; Needels, 1996; Harer,
1994; Visher, Debus-Sherrill, & Yahner, 2011; Wang, Mears, & Bales, 2010; Uggen, 2000). It
also appears that unemployment has a greater effect on repeat offending than on first-time
offending. (DAlessio, Stolzenberg, & Eitle, 2013).
The fact that California has one of the highest rates of recidivism is not being debated,
however, the ways in which to reduce its occurrence is a contentiously debated topic. The
question that needs to be answered is, what can be done to effectively and successfully assist excriminals who are trying to enter the job market get hired? Some say better rehabilitation
programs for felons while they are in jail are necessary in order to give the criminals the skills
and education required to become contributing members of society. Others believe it is
imperative to eliminate the discrimination ex-prisoners face once they are released from prison
by allowing them to withhold telling potential employers about their criminal history until later
in the interview process.
Rehabilitation programs in jail are not a new concept. Many prisons implement drug and
alcohol treatment programs, therapy, and educational and vocational courses, all in an attempt to
help felons assimilate to life outside of prison once they are released. In January of 2016
California Governor Jerry Brown announced a new law he hopes to get passed, the Public Safety
and Rehabilitation Act of 2016. This law will not only provide rehabilitation programs for felons,
but, upon completion of such programs will give them the possibility of early release from their

Running Head: Ban the Box, Ban the Discrimination

sentences. It incentivizes individuals to participate in programs that will, hopefully, benefit them
in both the short term and long term.
In an attempt to eliminate the discrimination caused by the criminal history background
check box on applications and give ex-criminals seeking employment an opportunity to get
recognized for their qualifications, rather than immediately disqualified because of their past,
many states have implemented Ban the Box policies. The goal of such policies is to provide
applicants a fair chance by removing the conviction history question on the job application and
delaying the background check inquiry until later in the hiring process (Avery & Natividad,
2016). Although employers can inquire about past criminal history later in the hiring process,
eliminating the box would at least give applicants the opportunity to get through the job market
door that is ever so slightly opened for them.
Obtaining employment can be a challenge even for those who do not have a criminal
conviction. In order to get hired, an applicant must have the social and vocational skills that will
make them a good fit with the company and the job in which they are applying for. The
rehabilitation programs promoted by Governor Jerry Brown through The Public Safety and
Rehabilitation Act of 2016 will give criminals the education and skills required to be qualified
candidates for employment. Furthermore, eliminating the criminal history background check box
on applications will give ex-felons the opportunity to prove their worth to their potential
employer before having to disclose the discriminating fact that they have a criminal history.
Considering the relationship between unstable employment and its influence on recidivism, I will
argue that implementing both The Public Safety and Rehabilitation Act of 2016 and ban the box
policies uniformly across the state, for both public and private employers, will reduce the
recidivism rates in California. I will argue this by examining the history of Californias

Running Head: Ban the Box, Ban the Discrimination

burgeoning prison population and high recidivism rates followed by discussing the two
aforementioned policies, The Public Safety and Rehabilitation Act of 2016 and Ban the Box.
This section will highlight the history of Californias rising prison population, the laws
contributing to it, and those in which have been passed to remediate it. Mass incarceration in
California is a relatively new problem. Prior to 1977, Californias criminal justice system leaned
more towards the idea of rehabilitation, rather than incarceration when it came to how it handled
its criminals. In 1917, California legislature enacted California Penal Code section 1168the
Indeterminate Sentencing Act. The new law required judges to impose an indefinite term of
imprisonment rather than select a determinate term. (Dansky, 2008). Under this law, prisoners
were sentenced to the range of years prescribed by the statutewhich could be as vague as one
year to lifeand the parole board determined the amount of time a felon would ultimately
spend in prison (Ball, 2009). Its goal was to reduce excessive sentences, bring more consistency
to sentencing practices, reform the majority of offenders, and keep violent offenders
incarcerated. Judges were also urged to impose more probation sentences to ameliorate the
prison overcrowding problem (Dansky, 2008). Under this law, for example, a criminal could be
sentenced to 5 years in prison and after serving a required portion of his term could go before the
parole board and state his case as to why he should be released early. Based on the parole boards
discretion and whether or not they felt the criminal could be deemed fit enough to re-enter
society, they would determine when he would ultimately be released, either once his full term
was served or before his term was up. If the prisoner were to be released early he would then
serve a given length of time on parole. Criminal offenders who are on parole are conditionally
released from prison to serve the remaining portion of their sentence in the community (Bureau

Running Head: Ban the Box, Ban the Discrimination

of Statistics, 2016). This reduces prison populations and puts them in the responsibility of parole
officers.
Beginning in the 1970s criticism began to emerge against the Indeterminate Sentencing
Act. Many opponents criticized the lack of evidence that parole reduced recidivism and the
arbitrariness of release decisions (Ball, 2009). Enter the Determinate Sentencing Law which was
passed in 1977. The legislation declared the purpose of incarceration to be punishment,
established a system of determinate sentencing with set terms called triads, and created a new
parole structure (Dansky, 2008). Before the Determinate Sentencing Law, criminals were
incentivized to participate in rehabilitation programs because of its chances of positively
influencing the parole board to shorten their sentence for showing an attempt at change and
bettering themselves. Now, because it was mandatory for criminals to serve their sentences in
their entirety, the desire for inmates to seek rehabilitative services diminished drastically (Green,
2012). Not only did this reduce inmates proclivity to seek rehabilitation services while in prison,
it also contributed to prisoners being in jail for longer periods of time since it limited the
opportunities for inmates to be released early on the basis of good behavior. As a result, the
boom in Californias prison population begins.
Since 1977, there have been a number of laws that were passed that further contributed to
the burgeoning prison population. One of the most notorious laws was Californias Three Strikes
Law which was passed in 1994. According to the California Judicial Branch website, the Three
Strikes Law requires a defendant convicted of any new felony, having suffered one prior
conviction of a serious felony to be sentenced to state prison for twice the term otherwise
provided for the crime. If the defendant was convicted of any felony with two or more prior
strikes, the law mandated a state prison term of at least 25 years to life (2016). Advocates of the

Running Head: Ban the Box, Ban the Discrimination

law, including the governor and attorney general, argued that the new policy would reduce crime
and improve public safety in a cost-effective way by incapacitating some bad actors, deterring
others, and encouraging still others to leave the state for more lenient climes (Sutton, 2013).
Unfortunately, the Three Strikes Law was not as effective as anticipated at accomplishing these
goals, in fact, there was little correlation between the implementation of the three strikes laws
and a reduction in crime rates and the population of Californias prisons continued to swell.
In response to the continual rise in the prison population, two laws were passed with the
intention to help the prison population by restricting the use of the Three Strikes Law for nonviolent offenses and by reducing penalties for certain crimes. Proposition 36 was passed in 2012
and restricts the use of the Three Strikes Law for non-violent offenses and Proposition 47 was
passed in 2014 which reduces the penalties for certain crimes. Proposition 47 has been proven to
be successful in reducing inmate populations. Following its approval, inmate populations in
prisons began to fall across California. According to Jody Sharp, a commander with the Los
Angeles County Sheriff's Department, narcotics arrests fell one-third and bookings fell by a
quarter in January 2015 relative to the previous year (Ballotpedia.org, 2015). In Los Angeles,
which has the country's largest jail system, the inmate population fell from 18,601 in November
to 17,285 in January 2015.
Considering high prison populations impact the number of criminals who get released
and, statistically are more likely to recidivate than not, it is important to discuss legislation that
has been passed with the intention of helping criminals reintegrate into society. One such policy
is the 2011 Public Safety Realignment bill. As stated by the California Department of
Corrections and Rehabilitation, the purpose of the legislation is to enable California to close the
revolving door of low-level inmates cycling in and out of state prisons. This bill recognizes the

Running Head: Ban the Box, Ban the Discrimination

importance of rehabilitation in reducing recidivism and states that funding can be used to provide
more intensive probation supervision and expand the availability of evidence-based rehabilitation
programs including, but not limited to, drug and alcohol treatment, mental health treatment,
anger management, cognitive behavior programs, and job training and employment services
(Flynn, 2013). Unfortunately, despite its potential and intentions of implementing rehabilitation
at the community level, the Public Safety Realignment bill has not been as successful as
anticipated at reducing recidivism rates. The reason for this is that the language of the bill does
not make it a mandatory requirement for communities and probation departments to provide
rehabilitative services, because of this, communities often dont even provide the services to
begin with. Job training programs, employment services, and alcohol treatment are all purely
suggestive, and the law does not provide counties with minimal requirements, performance
measurements, or accountability models to ensure these techniques are being implemented
properly (Flynn, 2013). One study, conducted by the Legal Analysts Office, found that probation
departments often do not make programming available that is proven to help people on probation
succeed in mainstream society post-conviction and incarceration (Flynn, 2013). Without the
language making it mandatory for counties to implement rehabilitation programs they end up
falling short of serving their purpose and criminals who are released from prison find themselves
without the support needed to successfully reintegrate into society.
In this portion of the research paper I will discuss the two most relevant and potential
solutions to reducing the high recidivism rates in California. In order to reduce the high
recidivism rates in California, it is imperative that measures be taken to help ex-criminals
reintegrate into society. Presently, there are two prospective solutions to mend the recidivism
problem that plagues California: The Public Safety and Rehabilitation Act of 2016 and the policy

Running Head: Ban the Box, Ban the Discrimination

known as Ban the Box. There are pros and cons to each solution and neither is free from
criticism, however, they do offer great potential in solving the problem at hand.
According to the website, safetyandrehabilitation.com, the Public Safety and
Rehabilitation Act of 2016 will attempt to reduce recidivism by incentivizing people in prison to
complete rehabilitation and education programs while in jail (2016). In doing so, the prisoner can
earn credits that will be considered when it comes to the possibility of being released early on
parole. The initiative will accomplish several other goals, such as releasing non-violent offenders
before they serve their entire sentence term and give judges more discretion when it comes to
whether or not a juvenile should be tried as an adult, among several other things, however, the
focus on incentivizing inmates to seek education and rehabilitation is the most relevant when it
comes to effective methods of reducing recidivism. The Chief Probation Officers of California
(CPOC) endorse the act. In a March 2016 press release, CPOC president Chief Mark Bonini
stated:
This measure will protect public safety. We know that people coming out of prison who
do not participate in programs have a much higher rate of re-offending. Doing nothing
with them while in prison only creates more victims and more costs to our prison system.
If we are serious about cutting recidivism, we must have a system that implements what
we know work; evidence-based programs based on correctional science and given the
proper resources are the only way to protect public and reduce recidivism.
Drawing from his considerable theological depth as a former Jesuit seminarian and lifelong
person of faith, Governor Brown has spoken clearly to the value of the measure for encouraging
rehabilitation and amendment of life among those who have committed criminal offenses

Running Head: Ban the Box, Ban the Discrimination

10

(Bruno, 2016) which the Religious Leaders Council are in great favor of. Upon discussion of the
Public Safety and Rehabilitation Act of 2016, they unanimously approve of the law.
Opponents to the law include, Senator Jim Nielsen, R-Gerber (Tehama county), who says
the measure would weaken the criminal justice system and increase the victimization of
California citizens (Gutierrez, 2016) and former Republican Governor Pete Wilson, who states,
The initiative should be entitled The Dangerous Streets Act: A Retreat to Lenient Sentencing of
Californias Violent and Serious Criminals. If passed, it will undo the protections that were
enacted to safeguard Californians from becoming crime victims in the 70s, 80s and 90s
(King, 2016). Their fear is that the crime rates will increase upon the release of non-violent
offenders and compromise the safety of citizens of California.
An alternative solution to fix Californias high recidivism rate is Ban the Box. This
policy, also known as AB 218, was signed into law on October 10, 2013 and restricts employers
from asking about the criminal history background of applicants on their application. Although
this law has been implemented for the past few years the policies have yet to be uniformly
adopted amongst private and public employers across all cities and counties. For example, state
law banning the box applies to all public employers in all cities and counties, but there are many
cities whose policies are independent of state law. In cities such as Compton and Richmond, the
ban the box initiative also covers private contractors and in San Francisco, where the ban the box
laws have been most widely embraced, the law also bans private employers from asking about
applicants criminal history backgrounds until later in the hiring process. In order for ban the box
policies to have the greatest impact on Californias recidivism rates, it needs to be implemented
uniformly across the public and private sector, in all cities and counties. Presently, there are over
100 Cities & Counties and 23 States that have taken steps to remove barriers to employment for

Running Head: Ban the Box, Ban the Discrimination

11

qualified workers with records. (NELP.org, 2016). Ban the box initiatives have been supported
amongst a wide range of civil rights groups, politicians, and businesses. Its not just liberal
criminal justice reform advocates who support the policy, but conservatives and libertarians are
embracing the idea, too. Republican governors Chris Christie, John Kasich, and Jeb Bush all
signed legislation banning the box in their respective states in 2014. (Allott, 2015).
Banning the box is important because employers are far less likely to hire individuals
with criminal history backgrounds over those without one, despite their education or previous job
history. In a survey conducted by Harry J. Holzer, Professor of Public Policy at Georgetown
University, over 70% of employers who checked for criminal background [history] did so before
hiring, that is, before most ex-offenders had any chance to demonstrate their ability to
successfully hold the jobs for which they were applying. This practice likely reinforces the
barriers to employment inherent in a criminal record (Holzer, Raphael, Stoll, 2004). As much as
rehabilitative programs can prepare an individual for life outside of prison by giving them the job
skills and social skills needed to be considered for employment, if an employer cannot look past
the ex-offenders criminal history, he never gets a chance to showcase the skills in the first place.
Since stable employment influences an ex-prisoners likelihood of recidivating, this is a
critically important law that needs to be embraced full-scale. According to law professors
Stephen J. Tripodi, Johnny S. Kim, and Kimberly Bender, most criminological research indicates
a strong inverse relationship between employment and crime, suggesting that ex-prisoners who
obtain employment are at significantly reduced risk for reoffending (Laub & Sampson, 2003;
Sampson & Laub, 1993). There are many reasons why stable employment reduces the risk of
recidivism, one of which includes the fact that having a job enables individuals to contribute
income to their families, which can generate more personal support, stronger positive

Running Head: Ban the Box, Ban the Discrimination

12

relationships, enhance self-esteem, and improved mental health. (Council of State Governments,
2013). Many ex-criminals have no way of supporting themselves or their families once they get
out of prison, leaving them little choice but to resort to making money through illicit activities
such as burglarizing or selling drugs to make ends meet. Having stable employment satisfies
their financial need and makes it unnecessary for ex-criminals to resort to such activities to make
a living, which in turn, decreases their likelihood of recidivism. Stronger positive relationships
are formed from employment because rather than being surrounded by the negative influences of
others who are unemployed and may partake in illicit activities to make a living, ex-offenders are
surrounded by other like-minded individuals who are working hard to provide for themselves
and their families and can offer a good system of support and positive influence. Both selfesteem and mental health are improved by stable employment because of the sense of
accomplishment, responsibility, and pride one feels when maintaining a job. Francine LeFrak,
social entrepreneur and author at the Huffington Post, hires female ex-prisoners to work for her
company, Same Sky. She says that the trust she gives the women to work with expensive jewelry
materials has allowed them to build up their self-esteem and self-confidence (2016). She also
notes in her article a shockingly low recidivism rate amongst the women she hires, after almost
4 years, we have a 0 percent recidivism rate. (2016). The effects of employment have an
impressive impact on reducing recidivism.
Despite the fact that the Public Safety and Rehabilitation Act will incentivize criminals to
seek rehabilitation while in jail and that, when implemented properly, rehabilitation programs
have been proven effective at helping reduce recidivism, it does not remove the stigma of having
a criminal history and employers apprehensions in the hiring of ex-criminals. Even if given
treatment for alcohol and drug abuse, mental health treatment, or vocational training, if ex-

Running Head: Ban the Box, Ban the Discrimination

13

offenders cant get past the discrimination they face once acknowledging on a job application
they have a criminal history, those treatment programs wont get them very far in getting hired
and obtaining stable employment. Taking into account that one of the most influential factors in
determining whether or not an ex-criminal will recidivate is an individuals ability to maintain
stable employment, it is imperative that they are given the opportunity to enter the workforce
with the necessary tools required to be considered employable and without being discriminated
against because of their criminal history. Passing both The Public Safety and Rehabilitation Act
of 2016 and uniform ban the box laws throughout the state will give ex-criminals the opportunity
to prove to their potential employer that they have made efforts towards rehabilitation while in
jail and that they are more than just the mistakes they made in the past.

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14

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Ball, David W. (2009). Heinous, Atrocious, and Cruel: Apprendi, Indeterminate Sentencing, and
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