Ducey mulls banning criminal background question on state job applications

(Stock photo/ILeezhun)

The Ducey administration is considering a “ban the box” policy for state agencies that would delay the process of asking prospective employees for arrest or conviction information until later in the hiring process.

Such a policy would tie into Republican Gov. Doug Ducey’s efforts at reducing recidivism and providing second chances for criminals. Several initiatives in the past two years have focused on this goal, from employment centers at prisons to food stamps for former drug felons to inmate fire crews.

The policy in discussion at Ducey’s office would only apply to public sector jobs, not private companies, as a way to “model the behavior we want the private sector to follow,” according to a slide in a report put together by the Ducey administration.

Many job applications in both the public and private sector ask prospective employees for any criminal histories. For instance, on a state job application, candidates are asked if they’ve been convicted of any crime – felonies, misdemeanors or serious driving offenses – even if it was set aside or expunged, along with details of the offenses, dates, jurisdictions and dispositions.

The “ban the box” movement, also referred to as fair chance hiring, started more than a decade ago by advocating for eliminating questions about criminal records until later in the hiring process as a way to help ex-offenders get jobs.

More than half of states have some form of policy that delays the process of asking about criminal records. Some states remove the box from governmental job applications, while others also require private employers to remove it.

Gov. Doug Ducey (Photo by Katie Campbell/Arizona Capitol Times)

The topic came up in meetings between the Governor’s Office and agencies that center around new initiatives the administration could undertake. So, while the topic is being discussed, it may not ultimately be greenlighted, said Ducey spokesman Daniel Scarpinato.

The idea will be assessed by staff members, who will look at the impact of such policies, and what data and research show, Scarpinato said.

“Anything we do, we want to make sure it’s having a positive impact,” he said.

As part of its efforts to reduce recidivism, the Ducey administration is looking at various policies that other states have, ideas outside groups or stakeholders bring forward, or things staffers come across, Scarpinato said.

“We have a real commitment to reducing recidivism,” he said. “We’re looking at any number of policies around that.”

Several Arizona cities, including Phoenix, Tucson and Tempe, already have ban the box policies in place for public-sector jobs. The Obama administration banned the box for federal jobs in 2016.

Tucson has had an ordinance for more than two years. Lane Mandle, the city’s spokeswoman, said the policy has worked well for Tucson and hasn’t hindered employment in any way. The city of Tucson conducts background checks only once a candidate is a finalist for a position, she said.

“We’re pleased we’ve been able to ease some of the barriers to employment that convicted criminals face,” Mandle said.

Democratic Sen. Martin Quezada of Phoenix has introduced a bill to ban the box multiple times, to no avail. Last session, his proposal would have banned the box for state jobs. He said he’s glad to hear the Ducey administration is talking about the idea.

He said it’s not really a partisan move, but more of a common-sense one.

“This would help allow them to be judged on their merits instead of their past mistakes,” Quezada said.

Caroline Isaacs (Photo by Katie Campbell/Arizona Capitol Times)

Caroline Isaacs of the American Friends Service Committee, a Quaker group focused on criminal justice reform, said not being able to find work makes all problems worse – if people can’t find jobs, they likely can’t find housing or pay their bills, so they may be more likely to offend again and end up back in prison.

A ban the box policy would help end what she calls “legalized discrimination” against ex-offenders and allow Ducey the chance to set an example for the state and private employers, Isaacs said.

“All this stuff is old news practically everywhere except for Arizona. This stuff has been done and tested and proven. Not only is it not a risk, it’s going to be a net gain for the state,” she said.

Beth Avery, staff attorney at workers’ rights group the National Employment Law Project, said it’s hard to put a number on exactly how many people ban the box can help, but it’s significant. Nearly one-third of people have some type of record that could show up on an employment background check, she said.

Their records follow them around, attaching a stigma to employment and housing prospects, Avery said.

“They don’t get an opportunity to present their qualifications,” she said.

Fair chance hiring policies delay background checks, ideally until there’s a conditional job offer, Avery said. The ideal hiring policy looks at whether the conviction relates to the job, the nature of the offense, and how much time has passed, she said.

Ban the box policies aren’t strictly partisan either, Avery said. Some of the most recent adopters are Republican-led states like Utah, Kentucky, Indiana and Nevada, she noted.

She said the policy ties in with justice reform efforts Republicans have recently started promoting. The policies create less cost for government and increase public safety because they get people back to work, reducing recidivism, she said.

But some studies have shown possible unintended consequences for ban the box policies. A 2016 study by Amanda Agan of Rutgers University and Sonja Starr of University of Michigan Law School found ban the box policies negatively impacted black men because employers made assumptions on criminal records in the absence of a box.

The researchers sent 15,000 fake job applications to New Jersey and New York City employers both before and after ban the box policies were instituted. While white job seekers in general received more callbacks, the ban the box policy exacerbated the problem, the researchers said. Before ban the box policies, white candidates got
7 percent more callbacks, which increased to 45 percent after the policy was instituted.

Another study found the fair chance policies could lead employers to guess at criminal records, leading them to avoid interviewing low-skilled black and Hispanic applicants, researchers Jennifer Doleac of University of Virginia and Benjamin Hansen of University of Oregon concluded.

Avery said her group has a lot of questions about the studies’ methodology and conclusions, but said the ban the box policies aren’t the culprit – racial discrimination is.

“The real moral of the story here is that ban the box policies and fair chance policies are not intended to be a silver bullet,” she said. “They’re one part of a smart, comprehensive approach to this problem of mass incarceration and its effects on communities of color and people in general that’s been centuries in the making.”