Why ‘banning the box’ for reformed offenders is the real quality of mercy

People can mend their ways after a criminal conviction. So a record shouldn’t be a wall that boxes in a life forever. (Photo by Flickr user Michigan Municipal League; used under Creative Commons license)

A generation ago, it would not have been out of place in a town or small municipality to hear the tale of some local citizen – a school bus driver, gas-station clerk, or even a professional – who, through a combination of bad judgment and situational strife, found himself behind bars. Maybe the cause was driving while intoxicated or carrying a controlled substance; maybe an unexpected moment of low-level violence or petty property damage. Whatever the nature of the incident, the individual in question wasn’t savvy enough, or financially secure enough, to escape a criminal conviction.

As such, even without significant jail or prison time, he was at risk of losing what little he had, which, of course, would have been everything to him. Sadly, some were lost forever, but others, as they say, turned their lives around. A moment of shame became an occasion for change, and through supportive friends, relatives and neighbors, they were either able to hold their old job or get a new one as part of a broader project of recapturing a healthy, productive and virtuous life.

Today, when all that is “relevant” about us is routinely crammed onto an online or printed form, a past mistake, no matter how transient and trivial, is a lifelong millstone about the neck.

Michigan, along with a majority of other states, allows employers to demand that job seekers check a box revealing their criminal backgrounds as a condition for entering the applicant pool, typically to the seeker’s detriment. The ostensible justification for employers doing so is to ensure a safe and secure work environment, though the screening process can be clumsily, if not thoughtlessly, applied under the simpleminded and problematic principle of “once a criminal, always a criminal.”

Thankfully, 11 states, including Nebraska earlier this month, have outlawed this practice in the hopes of providing a fairer environment for ex-convicts to contribute socially and economically rather than languish perpetually in the hell of unemployment, which often incentivizes renewed criminal behavior.

So why not Michigan? Democrats in Lansing have already introduced so-called “ban the box” legislation which keeps the application process open to individuals with criminal records, while prudently making exceptions for positions that are closed to felons. The proposed legislation, moreover, does not prevent employers from asking about an applicant’s criminal history during an interview nor stop them from conducting a thorough background check later in the process.

Although the macro-level policy justification for “ban the box” legislation is to get former criminals back into the workforce while reducing recidivism rates, there is an authentically humane side to this matter which ought not to be missed.

People who commit crimes have not abrogated their right to a living, nor forfeited their eligibility for mercy – a concept which has been obscured by the modern criminal justice system. As Stephanos Bibas of the University of Pennsylvania discusses in his magisterial “The Machinery of Criminal Justice,” there was a time in American socio-legal history where people “recognized that everyone was weak, so anyone of any social class could succumb to temptation and crime” and thus “the job of the criminal justice system was to reclaim the errant sheep and reintegrate them into the flock.” We may be far removed from that perspective today, but are we utterly disconnected from it ethically? Heaven forbid.

Naturally, there are those who are panicked over the possibility that banning the box will turn local businesses into dens of thieves with villains at every checkout counter and rogues working under their hoods. A more plausible scenario is that a handful of nearby businesses will increase the number of those looking to carry on their lives lawfully among their work force. “Ban the box” is not a mandate for hiring blindly.

On the other end of the spectrum, some believe that the bill doesn’t go far enough. As already noted, employers would still be allowed to inquire into a potential employee’s criminal background, though only after making an initial time investment to conduct an interview and, hopefully, review seriously the applicant’s other qualifications for the position.

Perhaps a more effective course of action would be to “sunset” public access to criminal records after a certain period of time (with exceptions for certain classes of heinous offenses). All things in due course. At this juncture, there is simply more political will for a ban-the-box approach than there is for comprehensive reform to how we treat ex-convicts once they have paid their debt to society and, hopefully, found a pathway to rehabilitation.

Detroit, Kalamazoo and Muskegon have already moved to remove initial criminal background disclosures from their public-employee applications. This demonstration effect should induce lawmakers at the state capital to follow suit.

How a given society handles those who violate its laws says a lot about its commitment to public tranquility, but it can also speak volumes about its collective moral character. Harsh crimes warrant harsh, but measured, punishments, but no punishment should be perpetual.

By adopting ban-the-box legislation, Michigan has the opportunity to help set an example for the rest of the nation that mercy and justice can work together, and that all its residents, regardless of past errors, are afforded the freedom to turn their lives around.