May 5, 2010 -- For the past six months Justin Tolston, a 19-year-old University of Nebraska-Lincoln junior, has been interning at the Nebraska attorney general's office as a legislative research assistant.
Technically, he shouldn't have even been granted an interview for the job.
At 16, Tolston had pleaded no contest to a shoplifting charge in juvenile court. It's a record most employers can't access, and one that he had no legal obligation to acknowledge on any job application. So when he came to the part in the application that asks applicants to check a box if they have a criminal history, he left it blank.
But the state's top law enforcement office checked Tolston's background and discovered the charge.
Ordinarily, that would have disqualified him from even an interview. So Tolston appealed to Brenda Council, a state senator, and she helped him get not only an interview, but ultimately the job.
In turn, she introduced legislation that, if passed, would make Nebraska the fourth state to 'Ban the Box,' removing the criminal history box from initial application forms for public employment.
'Ban the Box' is a slogan for a nationwide initiative, launched independently in various states and cities, to enact legislation that would prohibit public employers from disqualifying ex-offenders based solely on their criminal history.
"As long as you're checking that box, your application doesn't stand a really good chance," said Susan Burton, one of the founders of All of Us or None, a San Francisco-based advocacy nonprofit that coined the catchphrase 'Ban the Box.'
Erasing the box is not about sweeping past mistakes under the rug or creating loopholes for ex-offenders, supporters of such bills say; it's simply about giving ex-offenders a chance to speak for themselves instead of having the box represent their whole story.
Costs and Implications
More than 71 million criminal records were in state repositories at the end of 2003, according to the U.S. Bureau of Justice Statistics' latest data. Accounting for the population size and the possibility of multiple crimes per person, advocates say one in five people has some kind of criminal history.
Every year approximately 9 million Americans leave jail after short-term incarcerations, and roughly 735,000 are released from state and federal prisons after serving more substantial time, according to the National Reentry Resource Center. More than two-thirds of those prisoners are re-arrested and more than half of the estimated 735,000 return to prison. Fewer than half of the released inmates find a job.
Advocates cite a direct link connecting those statistics. "Lack of employment is a major predictor of recidivism," said Sarah Walker, founder of the Minnesota Second Chance Coalition.
States Decide to Postpone Background Checks
Eradicating "the box," Walker said, reduces barriers for job-seeking ex-offenders and keeps them out of taxpayer-funded prisons, all the while being a "fair and responsible and pragmatic policy" with no obvious negative impact on the community. Fiscally, no box may mean savings as city and state governments that would normally pay for background checks for potential employees would actually save money, having to run fewer checks.
The states that have banned the box on initial public job applications include Hawaii in 1998, Minnesota in 2009 and, this year, New Mexico.
They've since reduced the number of background checks, running them only at the final stages of the selection process. Hawaii prohibits inquiries into criminal history until a conditional employment offer has been made. Minnesota puts the inquiry off until the applicant has been selected for an interview. New Mexico now runs the check after an applicant has been selected as a finalist for a position.
Legislators have suggested similar delays to the inquiry in Connecticut, Wisconsin and New Jersey, where ban the box bills are pending. Also, several cities including Chicago, San Francisco, Minneapolis, St. Paul and Boston have passed bans on the initial check.
'Ban the Box' Opposition
But with the national unemployment rate at 9.7 percent, sympathy for unemployed ex-offenders isn't always a popular sentiment.
Those who oppose such legislation consider the box a telling indicator of an applicants character and a cost-effective tool to sift out job candidates while ensuring a safe working place.
"It goes to the basic characteristics of the individual," said Galen Clagett, a state delegate on the Maryland House Appropriations Committee, which voted to kill a 'Ban the Box' bill 16-9 in March. Clagett also runs a private business, a property management firm, and said he uses the box to eliminate applicants.
"I don't want to spend money to get somebody in the cue and then find out I'm not going to hire them because they have a criminal record," Clagett said.
Besides, for Clagett, the variety of federal re-entry and placement programs available to ex-offenders makes the need for 'Ban the Box' "much ado about nothing."
Putting Pressure on Recruiters?
In Wisconsin, where pending legislation proposes banning the box on applications -- not only for the public sector but also for private employers -- the Wisconsin Manufacturers and Commerce actively opposes the bill. WMC is an association of mostly private businesses; no Wisconsin public employers have taken a specific side on the issue.
The state employment regulation in Wisconsin is already layered with a variety of work-safety, anti-discrimination and arrest and conviction record protection rules, said John Metcalf, WMC's human resource policy director. Yet another law limiting employers freedom to pick candidates, he said, would put even more pressure on recruiters.
In fact, he said, employers may also start facing more discrimination law suits from potential hires who receive a conditional employment offer and then get eliminated by a background check that uncovers a crime related to the job, such as a former money embezzler applying to be a cashier or a former burglar trying to be a janitor with open access to private property.
Boston Bans the Box
On the flip side, it was complaints of unfair treatment from job applicants that prompted Boston, Mass., to ban the box.
The city eliminated the need for a check from thousands of positions, mostly administrative, that are supervised and don't involve direct interaction with so-called vulnerable populations: young, elderly and disabled people.
For those positions in Boston that do warrant a background check, no inquiries are allowed until the candidate receives a conditional job offer.
"It's not in our interest to keep people out of work," said Bill Kessler, Boston's assistant director of human resources who spearheaded the 'Ban the Box' initiative.
Kessler says the problem with the box is twofold: It discourages people from applying or encourages them to lie about their past just to get their foot in the door. To him, removing the box didn't add problems, but eliminated some of them.
"We are not taking extra steps to hire folks," Kessler said. "We're just not creating obstacles to keep someone out of work."
Obstacles for Ex-Convicts
Reluctance and lack of proper information are what advocates commonly cite as the main stumbling blocks preventing 'Ban the Box' from being enacted in cities and states.
"It takes some enlightenment and political courage to introduce legislation promoting the rights of ex-convicts," said Nebraska state Sen. Council.
For Council, enlightenment means straying from the traditional view that the only way to reduce and prevent crime is to be tough on crime.
"I believe we ought to be smart on crime," she said.
That's the same phrase used as a motto by the group All of Us or None. This national organizing initiative was formed by ex-prisoners in California in 2003, vowing to fight discrimination of ex-felons after their technical sentence ends. Not the least of them is the criminal history box.
"I prove that [criminal history] doesn't define who I am, my character and my accomplishments," said Tolston, who graduated from high school in three years and now attends the University of Nebraska-Lincoln with enough scholarships to cover all his expenses. "Denying someone employment solely on the basis of the checked box, I don't think it's right."
But for now, with the box in place, the All of Us or None coalition argues, ex-offenders not only feel discouraged from applying but also struggle to put their past behind them and move on.
"When does the punishment end for people?" asked Burton, one of the groups founding members. To her, the answer is: "When a person is at the end of that sentence, the punishment should end."