As gaffes go, it was an especially amusing one for a woman who has thus far been caught with 671 instances of classified information appearing in her personal email. “Earlier today I announced that as president I will take steps to ‘ban the box,’ so former presidents won’t have to declare their criminal history at the very start of the hiring process,” Hillary Clinton told an NAACP chapter on October 30.
We assume she meant to say “former convicts.” “Ban the box” is the name given by activists to their campaign to prevent employers from asking about prospective employees’ criminal histories. (Many job applications have a box to check if you’ve ever been convicted of a felony.) On November 2, President Obama announced he was backing the campaign and taking executive action to prevent prospective federal employees from being asked on job applications about their criminal histories. Activists are pressuring the president to expand this move to include federal contractors.
Obama himself seems aware of the pitfalls, even if he’s foolhardy enough to dismiss them. “It is relevant to find out whether somebody has a criminal record. We’re not suggesting ignore it,” Obama said. “What we are suggesting is that when it comes to the application, give folks a chance to get through the door. Give them a chance to get in there so they can make their case.”
One problem with extending the benefit of the doubt to felons is that the federal workforce is already rife with criminal activity that never gets punished. For instance, an inspector general report was released in March on sexual misconduct among Justice Department employees. The people entrusted to enforce federal crimes, perhaps unsurprisingly, often get away with them. (For more on the alarming extent of malfeasance among federal employees, see the editorial, “A Good Start,” in our November 9 issue.)
Further, the amount of fraud that already exists in the federal government and among federal contractors is startling. Medicare fraud amounts to approximately $60 billion a year, which is more than 10 percent of the program’s annual spending. The potential for fraudulently bleeding taxpayers is enormous, and the government has thus far been both unsuccessful and uninterested in doing anything about it. Not taking a hard line on keeping criminals out of the federal workforce and preventing them from being hired by federal contractors is tantamount to the president’s rounding up the foxes and telling them the henhouse is open for business.
Having stated the obvious, it’s important to acknowledge some of the sentiment behind the ban the box campaign is well-intentioned, if misplaced. The metastasizing of federal criminal law is such that even conservative Republicans in Congress are pushing for criminal justice reform. According to a Princeton study, around 20 million people, or about 1 out of every 15 Americans, have felony convictions. A significant number of felons are nonviolent and guilty of crimes that may not make them much of a risk to employers.
Accordingly, some companies—notably Target, Walmart, and even the dastardly Koch Industries—have already announced that they are banning the box. As private companies, they have the right to assume that risk, not to mention that it’s getting hard to fill large, low-skill labor forces if you write off everyone with a criminal history. On the other hand, there are obviously positions where one would want to know about the criminal histories of potential employees. Why not ask them on their job applications?
It’s also worth noting the alternatives to banning the box might prove worse. Chris Rey, a Democratic Senate candidate in North Carolina, recently put out a press release lauding Obama’s move and touting that he banned the box as a municipal ordinance when he was a small-town mayor.
“Instead, Rey urges the use of background checks, which are a powerful tool employers can utilize when considering applicants for employment, revealing much more than past incarceration and providing a truer view of the applicant as a whole,” notes Rey’s press release. So rather than screening for felonies, Rey is encouraging employers to do expensive and invasive digging into every applicant, which could reveal credit histories, legal actions, and other things that may not be germane to your employer.
While it behooves us to continue having a national conversation about criminal justice reform and how best to assist former criminals in becoming productive citizens, this should not entail throwing common sense out the window. Imposing some obligation to be upfront and honest about past mistakes is not unwarranted—and demanding honesty about past mistakes is especially important for federal employees and other guardians of the public trust.
