‘Ban the Box’ no more than a cos­metic so­lu­tion

Albuquerque Journal - - BUSINESS OUTLOOK - Joel Ja­cob­sen Joel Ja­cob­sen is an author who re­cently re­tired from a 29-year le­gal ca­reer. If there are top­ics you would like to see cov­ered in fu­ture col­umns, please write him at le­gal. col­[email protected]

“Ban the box” is back in the news, likely to pass the Leg­is­la­ture dur­ing the up­com­ing ses­sion and this time to be signed into law. In many ways, it’s an ideal piece of leg­is­la­tion, when eval­u­ated from a leg­is­la­tor’s point of view: it iden­ti­fies a gen­uine social prob­lem, one cre­ated by the Leg­is­la­ture it­self and made worse by the ju­di­ciary, and deftly shifts re­spon­si­bil­ity for ad­dress­ing it onto New Mex­ico busi­ness.

“Ban the box” pro­hibits em­ploy­ers from ask­ing on an ini­tial em­ploy­ment ap­pli­ca­tion whether a job seeker has a crim­i­nal record. That way, an ex-of­fender isn’t au­to­mat­i­cally de­nied an op­por­tu­nity to come in for an in­ter­view and make a good first im­pres­sion. The prospec­tive em­ployer re­mains free to ask about crim­i­nal con­vic­tions later in the hir­ing process and to run a crim­i­nal back­ground check.

There’s no ques­tion the leg­is­la­tion iden­ti­fies a gen­uine need. Amer­ica’s rate of in­car­cer­a­tion per 100,000 pop­u­la­tion is three to ten times that of any other rich coun­try, and 95 per­cent of pris­on­ers are even­tu­ally re­leased. That adds up to a vast pop­u­la­tion of ex-con­victs in our so­ci­ety, and it’s in no­body’s best in­ter­est that they should be pre­vented from con­tribut­ing eco­nom­i­cally. “Ban the box” is an ef­fort to help them get their foot in the door.

But here in New Mex­ico, em­ploy­ers are held back by the pub­lic pol­icy choices of our ap­pel­late courts, which strongly dis­ap­prove of hir­ing ex-con­victs. Un­der the tort doc­trines of wrong­ful hir­ing and neg­li­gent re­ten­tion, an em­ployer who hires an ap­pli­cant with a crim­i­nal record runs a height­ened risk of be­ing held li­able for the em­ployee’s bad acts, both on the job and (bizarrely enough) dur­ing the daily com­mute. Un­der New Mex­ico law, it is sim­ply and sadly true that our courts make the hir­ing of for­mer con­victs a risky propo­si­tion.

“Ban the box” is a re­stric­tion on in­for­ma­tion. It dic­tates the tim­ing by which em­ploy­ers can dis­cover cer­tain data about an ap­pli­cant’s past. Re­strict­ing in­for­ma­tion may be jus­ti­fi­able when the in­for­ma­tion in ques­tion is ir­rel­e­vant or its con­sid­er­a­tion im­proper. But no one se­ri­ously dis­putes that a day care cen­ter needs to know about an ap­pli­cant’s child abuse record, a truck­ing com­pany about DWI con­vic­tions, and so on. In­deed, the gist of the two torts is pre­cisely that in­for­ma­tion about a per­son’s crim­i­nal record is more than merely rel­e­vant. It is “wrong­ful” or “neg­li­gent” for an em­ployer to ig­nore it.

“Ban the box” de­lays news of an ap­pli­cant’s prior record, spring­ing it as a sur­prise while do­ing noth­ing to coun­ter­act its neg­a­tive ef­fects. An al­ter­na­tive ap­proach is the cer­tifi­cate of em­ploy­a­bil­ity, which is based on up-front can­dor, al­ways a stronger foun­da­tion for a work re­la­tion­ship, while adding pos­i­tive counter in­for­ma­tion about the ap­pli­cant. As cham­pi­oned by Pro­fes­sor Jen­nifer Doleac of Texas A& M Univer­sity, the cer­tifi­cate pro­ce­dure al­lows an ex-pris­oner to ask a judge to cer­tify his or her suc­cess­ful re­ha­bil­i­ta­tion. Re­search shows that ap­pli­cants armed with such cer­tifi­cates are called back al­most as of­ten as those with no con­vic­tion at all.

More­over, the cer­tifi­cate pro­ce­dure puts the bur­den of de­ter­min­ing re­ha­bil­i­ta­tion where it be­longs, on the gov­ern­ment that im­posed the crim­i­nal record in the first place and which al­ready em­ploys many peo­ple with ex­per­tise in eval­u­at­ing claims of re­ha­bil­i­ta­tion, such as pro­ba­tion and pa­role of­fi­cers and judges them­selves.

But even the cer­tifi­cate pro­ce­dure fails to ad­dress the fun­da­men­tal is­sue. If our laws crim­i­nal­ized only acts of moral de­prav­ity, the mere knowl­edge of a per­son’s prior con­vic­tion would tell us some­thing im­por­tant about that per­son. But our crim­i­nal laws, and in par­tic­u­lar our drug laws, con­demn many acts that don’t re­flect on a per­son’s ba­sic moral char­ac­ter. We im­prison many peo­ple who are dan­ger­ous mainly to them­selves. That’s the un­der­ly­ing is­sue for which “ban the box” offers only a cos­metic so­lu­tion.

Drug of­fend­ers are of­ten vic­tims rather than per­pe­tra­tors. Who, af­ter all, is drawn to painkiller use more than a per­son in pain? Many drugs of abuse, from metham­phetamine to ke­tamine, are po­tent an­tide­pres­sants. True, an ad­dict who is still us­ing can­not be trusted, just as an al­co­holic in de­nial is a men­ace. But when such peo­ple get clean and sober, their re­ha­bil­i­ta­tion is grounds for re­spect, not con­tin­ued con­dem­na­tion.

If our leg­is­la­tors were se­ri­ous about rein­te­grat­ing ex-of­fend­ers into so­ci­ety, they would take re­spon­si­bil­ity for their own cre­ation of the prob­lem. First they would pro­vide re­leased pris­on­ers an op­por­tu­nity to doc­u­ment their re­ha­bil­i­ta­tion and de­clare the cer­tifi­cate of em­ploy­a­bil­ity a com­plete de­fense to a claim of wrong­ful hir­ing. And then they would be­gin the hard work of re­form­ing our drug laws. “Ban the box” isn’t even a baby step in the right di­rec­tion. It’s just a ges­ture.

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