Mimesis Law
10 August 2020

Jay Nixon Bans The Box

Apr. 14, 2016 (Mimesis Law) — Here at Fault Lines, we spend a lot (okay, most) of our time criticizing the criminal justice system. Once in a while, good things happen. When that happens, it’s worth both a small celebration and look at the possible consequences.

Our first story is out of Missouri, where Governor Jay Nixon signed an executive order implementing a “ban the box” policy for state agencies:

NOW, THEREFORE, I, JEREMIAH W. (JAY) NIXON, GOVERNOR OF THE STATE OF MISSOURI, by virtue of the authority vested in me by the Constitution and Laws of the State of Missouri, do hereby Order that all departments, agencies and boards and commissions in the Executive Branch subject to the authority of the Governor shall take all necessary action to amend initial employment applications by removing questions relating to an individual’s criminal history unless a criminal history would render an applicant ineligible for the position.

It’s not without limitations. First of all, it only applies to state agencies, not private employers or local government. Second, there are a number of jobs where a criminal conviction would DQ a person anyway (like police officer). So the actual number of jobs now open to ex-cons is not a fantastically huge number. Most significantly, potential employers are only prohibited to ask about criminal history in the initial job application, so one can assume that prior criminal history will come out eventually.

Nevertheless, it’s a step forward. This is another case where one of the disasters of the criminal justice system (namely, the difficulty of former guests of the state to reintegrate into society) isn’t a product of malice but of circumstances. In the Information Age, it’s no longer possible to move to a different town, change your name, and apply for a job with a clean slate. All that information is in the cloud. And let’s face it, if you have ten applicants for a job, and one of them is an ex-con, why run the risk of hiring him? Same goes for other things, like obtaining housing and college admissions.

One may recall the case of Gina Grant, who had her admission to Harvard rescinded when the school discovered (despite the case records being “sealed”) that she had been adjudicated responsible for voluntary manslaughter after she killed her mother when she was 14. As one wag put it at the time, “Harvard apparently felt that there were other students more deserving of admission who had killed neither of their parents.”

As far as Missouri’s new “ban the box” policy goes, this isn’t exactly a clean slate for convicts. What it does do, however, is give folks with criminal records a fighting chance. Previously, they were in an impossible position. If they were honest about their past and checked the box, most likely their application would end up in the circular file. If they lied about it, they’d either be discovered early, and never get the job; or if they somehow jumped that hurdle, they’d be working with the Sword of Damocles hanging over their head, continuously worried that they’d be fired if (when?) their employer found out.

Now at least, they’ll still have to disclose their convictions, but only after having made a first cut. It’s likely that hiring managers will still give them the side-eye, but at this point they can at least make the argument that their resume was otherwise acceptable, and that they should be judged as an individual and not just as the sum, or the gap, of their resumes.

The other positive aspect of the policy, if rather intangible, is the leadership aspect of it. Hopefully, private employers will see that the state’s policy hasn’t led to disaster. Even more intangible is the potential effect it will have on the morale of defendants, both those currently imprisoned and those who are out. That’s asking for a lot, but it’s a good first step.

This isn’t just a vague hope. For example, the first state to implement a ban the box policy was Hawaii, in 1998. A study in the American Journal of Criminal Justice found that:

Logistic regression results show that a criminal defendant prosecuted in Honolulu for a felony crime was 57 % less likely to have a prior criminal conviction after the implementation of Hawaii’s ban the box law. By mollifying the social stigma attached to a criminal record during the hiring process, Hawaii’s ban the box law proved to be extremely successful in attenuating repeat felony offending.

Differences between Missouri and Hawaii aside, that 57% reduction in recidivism is worth shooting for.

I have occasionally criticized Jay Nixon here. When I was an APD in Missouri, he was given to saying things like this about the Public Defender budget:

With the resources you have, what are your priorities?” he said. “We’ve kept its funding consistent. … We’d love to have unlimited money.”

Not to mention withholding money that the Legislature had already allocated to us. He also had this irritating habit of not declaring Black Friday and Christmas Eve to be state holidays, supposedly so that the State wouldn’t have to pay the state police and prison guards overtime on those days, meaning we either had to come to the office or take a vacation day. That said, he got this one entirely right. Good on him.

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