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A Plan to Cut Costs and Crime: Curb Bias Against Ex-Convicts

The New York Times—Timothy Williams and Tanzina Vega

James White had steeled himself for the moment. But when he got to the question on the job application — Have you ever been convicted of a crime? — he shifted nervously in his seat.

If he checked the “yes” box, he would almost certainly not get the job as a hospital janitor.

He checked the box.

A moment later, a human resources employee looking over his shoulder told him not to bother with the rest of the form. “She said I should stop right there, that there was no need to continue filling out the application because I was done with the process,” he said.

Mr. White, convicted of possessing a handgun without a license 10 years ago, is one of the 60,000 people with a criminal record who live in Washington, and who, along with the 8,000 city residents who are released from prison each year, have a difficult time finding decent jobs.

To ease these residents’ re-entry into society, Washington’s City Council this summer approved legislation that forbids asking about criminal history on most job applications, a step being considered by Georgia, Michigan and New York, among other states.

After more than 25 years of tough-on-crime laws and the incarceration of millions of low-level drug offenders, the effort is part of a bipartisan re-evaluation of the criminal justice system and reflects a growing concern that large numbers of people, especially African-Americans — who have been jailed disproportionately — remain marginalized from the work force and at greater risk of returning to crime.

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“There’s been a shift in people away from wanting to get even,” said Marc A. Levin, the policy director for Right on Crime, a conservative anti-crime group in Texas. “People are focused now on getting results. It really is a great benefit to public safety if ex-offenders are able to get jobs, find places to live and get occupational licenses — whether it’s from the perspective of the ex-offender or those of us who are going to live next to them.”

With an estimated one in three American adults having been arrested at some point in their lives, and 16 million people — about 7.5 percent of the adult population — who are felons or former felons, the question of how to reintegrate the 700,000 people who are released from prison each year has become increasingly urgent.

During the past several months, states and cities as varied as Illinois; Nebraska; New Jersey; Indianapolis; Louisville, Ky.; and New Orleans and have adopted so-called Ban the Box laws. In total, some 70 cities and 13 states have passed such laws — most in the past four years.

The laws generally prohibit employers from asking applicants about criminal records as an initial step in the hiring process and from running criminal background checks until job seekers are considered serious candidates for an opening.

Studies have found that ex-offenders, particularly African-Americans, are far less likely to be called back for job interviews if they check the criminal history box on applications, even though research has shown that those possessing a criminal record are no more apt to commit a crime in the workplace than colleagues who have never been convicted.

Still, most of the Ban the Box laws have been enacted so recently that there is little conclusive evidence that they reduce recidivism or unemployment among ex-offenders. Surveys conducted in Minneapolis and Durham, N.C., after those cities passed laws showed that fewer job applicants had been rejected for public sector work because of a criminal conviction.

Ex-offenders, who have been at the fore in pushing for the laws, say preventing employers from inquiring about their criminal pasts in first interviews is critical in removing prejudices against them that make it tough to get work, find a place to live, regain their voting rights, receive federal student aid or obtain professional licenses.

Marilyn Scales, 52, a New York City resident convicted of selling drugs in the 1990s, said telling the truth on job forms had made her virtually unemployable, even though she was released from prison 17 years ago.

“When I answer that question honestly, I never get a call back,” she said. “I feel like I’m still paying for my crimes 20 years later.”

But researchers say Ban the Box laws and other reform measures have gained popularity with lawmakers because of fiscal constraints as much as a desire to aid ex-offenders.

Cities and states emerging from the recession are being forced to cut corrections costs — which total more than $52 billion annually — and have begun to focus on reducing prison populations by discouraging recidivism.

The changes come as the United States continues to have the world’s largest prison population, even though crime is far below its 1990s levels, when illegal drugs ravaged urban neighborhoods.

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While most Ban the Box legislation has covered only public employers, Washington, San Francisco, Minnesota and Massachusetts, among other cities and states, also have prohibited private workplaces from asking the criminal-history questions on introductory forms or in initial interviews. Several of the nation’s largest private employers, including Walmart, Target and Home Depot, have adopted the rules as well, the companies said.

The laws still allow employers to conduct criminal background checks before making hires and to inquire about criminal histories, but not until after the first interview. The laws typically exempt hiring in law enforcement, schools and day care centers.

And while federal law prohibits discrimination against job seekers based solely on criminal history, employers are permitted to deny jobs to ex-offenders if a crime is deemed to be directly related to the work — for example, if a person convicted of theft is applying to be a cashier.

Many of those returning from prison to their old neighborhoods are African-American men, who have incarceration rates far higher than any other group — one in 12 African-American men of working age (18-64) are imprisoned, according to a 2010 Pew Charitable Trust study, compared with one in 87 working-age white men — a circumstance that has raised concerns about the creation of a permanent underclass of men and women freed from prison with little hope of ever finding work.

“If we are going to block their path and not give them options to reintegrate — if they can’t get a job and the opportunity to earn a livelihood — what alternative do they have?” said Jim Scheer, a Republican state senator from Nebraska who describes himself as tough on crime but was still an outspoken advocate of the state’s Ban the Box law, approved 46-to-0 in April.

There have been assertions however that, paradoxically, the laws might encourage discrimination against minorities.

“If you’re not going to allow somebody without a criminal record to say, ‘I don’t have a criminal record,’ the hiring officer can say, ‘I bet this person has a criminal record, and I’m not going to hire them,’ ” said Adam T. Klein, an employment discrimination lawyer at Outten & Golden, a New York law firm.

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Mr. White, the ex-offender now seeking janitorial work, said the Washington hospital’s human resource officer had not asked him what he had been convicted of — or for any other details about his crime.

“She didn’t know that I didn’t have to serve time,” Mr. White said. “All she knew was that I checked the box, and as far as she was concerned, I didn’t deserve a shot. I was somehow too dangerous to clean the floors.”