How ‘banning the box’ can have unintended consequences

Ben Estep

Criminal records carry substantial consequences, but the largest repercussion may be their impact on employment. The requirement to disclose a past conviction to a prospective employer can put individuals and their families at significant disadvantage. This is doubly damaging as we know that finding a job can itself be a key driver of desistance – there is no shortage of evidence that finding and maintaining a job reduces the likelihood and frequency of offending. Helping this process along should be a policy priority for everyone.

One method, gaining momentum in Britain, is “banning the box” – calling on employers to remove the tick box from job applications asking about previous criminal convictions (which will instead be discussed with applicants later in the recruitment process). This is intended to level the playing field – removing a simple barrier to consideration for otherwise qualified applicants, and encouraging employers to judge candidates on their merits rather than immediately ruling them out of consideration on the basis of a past mistake. It’s an approach which has garnered support from Number 10, the Civil Service, and a range of high-profile business leaders.

This seems unimpeachably well-intentioned. But that doesn’t mean we can be complacent about its effects – we should still be concerned with measuring its impact. And recent research from the US has been extremely dispiriting. Two independent studies have recently found that “ban the box” policies produce serious unintended consequences – that they may not help many ex-offenders into employment, and, worse, that they actually depress employment among people from ethnic minority backgrounds without criminal records.

These studies suggest that when employers no longer have information on individual applicants’ criminal histories, they compensate by broadly discriminating against entire demographic categories. Put another way, when employers’ access to this information is curtailed, at least some of them appear to respond by generally avoiding groups that they believe are more likely to contain ex-offenders. This is illegal, infuriating and counter-productive, but it appears to be happening nonetheless. In attempting to guess which applicants might have records, employers magnify racial disparities in hiring – one study found that introducing “ban the box” decreased the probability of employment among young, low-skilled black men by 5%.

Conceivably, “ban the box” could have different effects here in Britain. But these results should at the very least compel us to find out. It’s also worth keeping in mind that “ban the box” is not the only possible policy response to this important problem. Another attempt at amelioration, issuing “certificates of employability” to ex-offenders, has recently received empirical support. There is also a strong case for increased job readiness training and employer education. Our own work on youth diversion seeks to support schemes that address low-level offending behaviour without saddling young people with unnecessary records.

More broadly, it is high time to consider the case for an overhaul of the entire criminal records system, particularly how it deals with childhood criminal records. Here, by international standards, England and Wales stands out as particularly punitive: there are few distinctions drawn between records acquired in childhood versus adulthood; there is no mechanism to expunge childhood records; and disclosure rules are comparatively broad. Charlie Taylor’s recently published review of the youth justice system calls for most childhood cautions and convictions to be non-disclosable to the Disclosure and Barring Service after a period of time. The government’s response is a bit equivocal, but appears to recognise the case for change. Hopefully the Justice Select Committee’s current inquiry into the issue will also add to the momentum.

Whatever changes are taken forward to reduce the collateral consequences of criminal records, the experience of “ban the box” suggests that it is important to monitor results to look for unintended consequences of good intentions.