Getting Outside the Box

DLM’s Brian McGiverin recently appeared in an Austin Chronicle article about “ban the box” in Austin.

Getting Outside the Box

Should a criminal record mean a life sentence of unemployment?

What do these people have in common? They all check “yes.”
(Clockwise from top left: Susannah Bannon, Gwen Cubit, Douglas Smith, and Lauren Johnson)
PHOTOS BY JOHN ANDERSON (EXCEPT GWEN CUBIT BY JANA BIRCHUM)

Most people, when filling out a job application, accentuate the positive. The internship you spent getting your boss coffee gets described as “provided vital support to core members of the team”; your reason for leaving your last job is not “because I hated it,” but “I wanted to explore other exciting opportunities.” But for the nearly 12 million Texans with criminal records, there’s one question that’s not so easily spun: Have you been convicted of a crime?

The question appears so routinely that most people probably don’t give it much thought. After all, who wants to hire a criminal? That way of thinking, of course, ignores the fact that a lot of people do things that could be considered criminal without getting caught – they drive home after one too many drinks, they use illegal drugs, they get in fights – and those isolated acts don’t necessarily define their lives or characters.

The past few decades have seen tough-on-crime policies that have drastically increased the number of people caught up in the criminal justice system. Texas leads the nation in the number of incarcerated people, currently housing more than 200,000 inmates (Texas’ overall population is 26 million). Although some of those people are serving life without parole, and others are on death row, the vast majority will be released from prison or jail at some point, and will be expected to reintegrate into society. They’ll be expected to find jobs and housing while complying with the requirements of their parole or probation. Unfortunately for them, housing and employment discrimination are rampant.

Susannah Bannon was released from prison in 2010, after serving 11 months for a felony DUI. During her time there, she became sober, but when she got out she was unable to find work. She recalls applying at an athletics store to be a cashier. Her interviewers thought she was overqualified, but that she might be suitable for a management position. However, when she told them about her record, their corporate office nixed the idea. Eventually she decided to pursue a graduate degree in the hopes that it would improve her job prospects. She’s currently a Ph.D. student at the University of Texas. Looking for housing in Austin, she was rejected repeatedly before finding a garage apartment being rented by an individual, rather than a real estate company.

 

Liability vs. Discrimination

Part of the problem is that employers and landlords fear being held liable should an employee or tenant cause someone else harm. Employers can be sued for negligent hiring and supervision if an employee causes damage on the job, and the “employer knew or should have known the employee was convicted of an offense that was committed while performing duties substantially similar to those reasonably expected to be performed in the employment,” or if they knew or should have known that the employee was convicted of certain violent offenses. The current law regarding negligent hiring/supervision was passed in 2013, and is actually less punitive than it was before.

Despite that, employers can get into trouble with the federal government for discriminating solely on the basis of a criminal record, if that discrimination both “significantly disadvantage[s]” people of a specific race, national origin, or other protected category, and “do[es] not help the employer accurately decide if the person is likely to be a responsible, reliable, or safe employee.” But that rule is hard to enforce. An employer could get in trouble for refusing to consider all applications with checked criminal history boxes, but they’re allowed to decide that they don’t want to hire any particular person on the basis of their criminal record. The Equal Employ­ment Opportunity Commission asks that employers take into account “the nature of the crime, the time elapsed since the criminal conduct occurred, and the nature of the specific job in question,” and that they give “an applicant who is excluded by the screen the opportunity to show why he should not be excluded.”

 

Banning the Box

As the U.S. has begun to rethink its criminal justice policies, a movement has arisen to ban the criminal history box, and to require that employers ask the question later in the hiring process, if at all. President Obama endorsed the idea in July, and is reportedly considering making an executive order to remove the question from all applications for jobs with federal contractors. Texas state Rep. Eric Johnson, D-Dal­las, introduced a Ban the Box bill this past legislative session. (It was voted out of committee but didn’t make it to the Senate. Johnson will likely reintroduce it next session.) And in 2008, the city of Austin passed a resolution declaring, “The city will amend its employment application to no longer require the disclosure of past criminal history during the initial job application process for certain job positions within the city.”

This summer City Council Mem­ber Greg Casar announced his intention to introduce a resolution to ban the box for all employers doing business in Austin. (He also said he would be referring to it as a “fair chance” ordinance, so as not to confuse it with the city’s anti-traffic initiative, “Don’t Block the Box.”) Austin would join seven states and 12 cities that have a Ban the Box ordinance that applies to private employers. Casar says that he decided to introduce the resolution because it was something people in the community wanted, and because he wants the city to think more broadly about what economic development means. Often, the city will engage in “top-down” economic development, such as offering financial incentives. The fair chance ordinance, as well as the living wage hike that has already passed through Council, have been two opportunities for Casar to support economic development that comes from the ground up.

Getting to that point has involved stakeholder meetings and presentations at council committee meetings. One of the reasons Casar chose to introduce the fair chance ordinance is that there are plenty of organizations interested in the issue, but that have more experience with state law. Last month, Lauren Johnson, Jacqueline Conn, and Brian McGiv­erin, an attorney with the Texas Civil Rights Project, presented to Council’s Economic Opportunity Committee their recommendations for the ordinance. They asked that the committee require employers to refrain from running a background check until after making an applicant a conditional offer. Ban the Box advocates, including the National Employment Law Project, argue that laws that delay the background check until the conditional offer can be enforced while others can’t.

For both Johnson and Conn, the issue is personal. Johnson, a recovering drug addict, was last released from jail in 2011. She works a variety of jobs related to criminal justice reform, including at Grassroots Leadership and Conspire The­atre, and she waits tables at Hill’s Cafe. She previously worked with the office of state Rep. Senfronia Thompson, D-Houston, on a bill that allows people with drug-related convictions to be eligible for food stamps. Conn moved back to Austin after losing her job at Carnegie Mellon. She was released from prison in 2006 and graduated from the University of Texas in 2008. After attending graduate school at Carnegie Mellon, she worked for the university until a new law requiring stricter background checks for university employees led to her termination. The law was passed by the Pennsylvan­ia legislature in response to the revelations of Penn State assistant coach Jerry Sandus­ky’s numerous sexual assaults on children entrusted to his care. Although Conn’s crime did not involve children nor sexual assault, she was still let go. (Of course, the law would have done nothing to prevent Sandusky’s crimes: Sandusky had no criminal record during his time at Penn State.)

 

Moving Forward

Next Monday, Oct. 12, city staff will present their own recommendations to the Economic Opportunity Committee, which will vote on whether to bring the ordinance to the full Council. Acting Assistant City Manager Mark Washington, who is in charge of the city’s human resources depart­ment, has spoken favorably about the city’s hiring policy. Although Austin’s policy is, in theory, so vague as to be toothless, Washington says that the city doesn’t run background checks on potential employees unless the job is in a category with heightened requirements, such as jobs with the police and fire departments, or involves working with vulnerable populations. Washington believes the new policy allows Austin to hire “the best person for the job. We want to make sure that we recruit and hire the best people to serve our citizens.” He says that a lot of applicants with records aren’t really hardened criminals so much as people with addiction problems. “Possession is not an indication of an intent to commit a crime; it’s an indication of substance abuse.”

It’s true that the so-called “war on drugs” has caused a lot of nonviolent drug users to accrue criminal records and jail or prison time. But as drug addiction is now popularly accepted to be a disease, many people see drug use as less criminal than other offenses. However, for many people who struggle with addiction, their records don’t include merely possession charges, but also charges for serious crimes related to drug use. Those people also need employment. No one who agreed to speak with theChronicle was incarcerated for possession, although most of them believed that drug addiction had played at least some part in the crimes that led to their convictions. Douglas Smith, who works for the Texas Criminal Justice Coalition, became addicted to crack after years of alcoholism. At the time he started using he was 36, and had been working as a social worker for several years. His addiction in turn led to a series of robberies and a prison sentence. It wasn’t until his second arrest, when he knew he was headed to prison, that Smith was finally able to stick to his resolve to get sober. After spending five years and eight months in prison, he was released in 2014. Unable to find work as a social worker, he got his current job after going through a rigorous testing process. In person, Smith is serene and highly knowledgeable about his work, but his record marks him as a violent offender.

Ban the Box advocates are quick to reference studies that show that people who have committed violent crimes in the past, but have gone for seven years without reoffending, are statistically no more likely to commit another crime than anyone else. McGiverin also points out that a lot of violent crimes tend to be committed by young people. “People age out” of these crimes, he says. Of course, everyone recognizes that career criminals exist. Ban the Box doesn’t prevent an employer from discovering red flags. It just requires them to get a sense of the person behind the record before deciding how much their past crimes relate to their present character.

Furthermore, not all Ban the Box ordinances are created equally. There are a lot of variables that go into crafting them. Some cities exempt employers with few employees from their ordinances (Seattle forbids employers of one or more employees from asking the question, while San Fran­cis­co’s law only applies to employers of 20 or more people); others make employers take the box off of the initial application but allow the question to be asked at any point afterward, diluting the law’s intent, which is to have employers see applicants as individuals before deciding whether to dismiss them because of their records. Nearly every ordinance allows exceptions for certain jobs, such as those dealing with so-called “vulnerable populations,” like children, the elderly, and the incarcerated. McGiverin acknowledges the contradiction between banning the box in general and carving out exceptions based on the idea that people with criminal records aren’t fit to work with kids, or certain other groups, yet says compromise is necessary in order to create politically viable solutions.

 

No Silver Bullet

No one expects Ban the Box to solve the problem of unemployment among ex-offenders on its own. “It’s not a silver bullet,” says Casar. Many people leaving prison or jail lack the skills to be attractive job candidates, even without taking their records into account. Matthew Sheehy, who was released from federal prison in 2011, recalls that when he arrived at the McCabe Halfway House, he and the other residents were sent out to look for jobs every day, but not given any guidance. Sheehy has a friendly, outgoing personality, and says he took every single college course he was able to while he was in prison (California, where he served most of his sentence, offers free community college to all of its residents, including its inmates), and he quickly found work as a server. Gwen Cubit, who was released from prison in 1995, benefited from a program – discontinued during the Clin­ton administration – that offered employers financial incentive to hire and train former prisoners. The training she received allowed her to find work in the food service industry, including managerial positions, for years, although she experienced plenty of discrimination along the way. (She ultimately went back to school and now works as a licensed social worker.) “I never know for sure, though,” she says. “Did they not hire me because I have a record? Or is it because I’m black? Or because I’m a woman? Or because I’m gay?”

Yet Cubit and Sheehy were lucky, comparatively. Many inmates will leave the Texas Corrections system without having received an education or job training. And not everyone can count on the support of their family or friends. Bannon writes that “I haven’t always been this hard-working over-achieving nerd. The capacity to do so was there, as it is in thousands of people coming out of our justice system, but it was the post-release resources (familial/financial/recovery support) that made the difference for me. I have no doubt in my mind that if I didn’t have them I would be dead or back in prison by now. I lean towards thinking I would be dead, as addiction is a chronic and progressive disease that doesn’t give up.”

Reggie Smith, who was in and out of jail and prison from the early Eighties until 2012, says that people getting out of prison need practice to get back into the swing of working for pay. “They need to get used to going to work and not looking for a place to hide and sleep.” While he is in favor of Ban the Box, he thinks it won’t have much more than a symbolic effect. There’s no point in trying to convince people who don’t want to hire ex-cons to change their minds. Smith gestures to the shirt he’s wearing during his interview. “This company, Homeboy Indus­tries, only hires ex-offenders. There need to be more programs that focus on hiring ex-offenders so people can see that we’re good workers.”

Casar says his office is interested in listening to what his constituents want. More city-funded job training may be part of the answer, but Casar also doesn’t think the private sector should be counted out, and mentions the idea of providing incentives for companies that provide job training for a certain number of unskilled laborers, or are willing to hire a certain number of ex-offenders.

While advocates say that employment is key in combating recidivism, more job opportunities won’t address one of the persistent causes of drug addiction and related crime. Most of the people who spoke to the Chronicle described drugs as a coping mechanism for mental illness. Shelby Cole­man, who has been on probation for three related crimes since 2008, says that he began taking Xanax when a doctor prescribed it to treat his anxiety. He became addicted, and “felt invincible,” which led to a series of robberies. He says that the threat of jail was what he needed to become sober, but he still suffers from the anxiety.

Ultimately, Ban the Box won’t fix unemployment or discrimination. But its proponents believe that it will begin a conversation and help start the process of erasing the stigma of a criminal history. “It’s not going to get us to the finish line on its own,” say McGiverin, “but we’re not going to get there without it.”