Stopping Employers From Asking About Criminal History Is Not Working As Intended

Walter Olson

President Trump recently signed a bill including a measure called the Fair Chance Act, which will restrict federal contractors from asking applicants about criminal records until after a conditional job offer is made. In a summary of the research in this space last year, Peter Van Doren observed that “ban the box” laws of this sort do not appear to work as intended. Now there is new evidence that they either fail of effect or harm the intended beneficiaries.

A series of economic studies up to now has found not only a lack of statistical evidence for a positive effect from these laws, but even signs of a negative effect on the employment of young black men with no criminal records (because some employers will assume the worst if not allowed to ask; more from economist Jennifer Doleac of Texas A&M here and here). Despite this track record the laws have remained popular across the ideological spectrum, including some persons of generally free‐​market inclination. The unpromising outcomes have not deterred Congress from passing bills like the one enacted last fall, or city and state governments from extending such laws to private employers, often in onerous ways.

Now Ryan Sherrard of the University of California, Santa Barbara economics department illuminates another part of the picture, recidivism, in a new paper. Advocates routinely predict, and cite as a major expected benefit, that ban the box laws will reduce re‐​offense rates. But Sherrard found no such effect. Relevant portion of abstract:

Using administrative prison data, this paper examines the direct effect of BTB policies on rates of criminal recidivism. I find that while BTB policies don’t appear to reduce criminal recidivism overall, these policies may be exacerbating racial disparities. In particular, I show that being released into a labor market with a BTB policy is associated with higher rates of recidivism for black ex‐​offenders, with little to no effect for white ex‐​offenders.

It might sometimes make sense for government to tilt its own hiring policies toward the creation of opportunities for ex‐​offenders, even when that means shouldering extra costs or inconvenience, given that incarceration and its after‐​effects are themselves the consequences of government action. But why keep passing laws that backfire even when judged against that goal? And how much less justification is there for using them to constrain the freedom of private employers that have never incarcerated anyone, whether they be government contractors or just plain old businesses?

Ban the box laws, above all those that restrict the liberty of private employers, are a triumph of feel‐​good sentiment over economic rationality, practicality, and in the end the interests of the intended beneficiaries.

This article by Walter Olson first appeared at the Cato Institute.

Image: Reuters.

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