In a 1968 sermon delivered just days before his assassination, Martin Luther King, Jr. proclaimed: “If a man doesn’t have a job or income, he has neither life nor liberty nor the possibility of the pursuit of happiness. He merely exists.” Today, far too many Americans are denied employment—and the economic security and fulfillment it brings—for the simple fact that they have an arrest or conviction in their past.
Our nation incarcerates more people than any other country in the world. On any given day, there are approximately 2.3 million people behind bars. Incarceration rates, which have more than quadrupled over the last several decades, have been driven by the failed War on Drugs; the vast majority of people in jail or prison are there because of nonviolent drug offenses.
Not all communities have had to equally endure our nation’s costly, failed experiment with mass incarceration. Because racism and inequality continue to plague every step of our criminal justice system, from “stop and frisk” to sentencing, communities of color have been particularly hard hit. The disproportionate enforcement of our criminal laws is not driven by higher rates of criminality: a recent study from the ACLU shows that although marijuana use among whites and African-Americans is nearly identical, the latter are nearly four times as likely to be arrested for possession.
The economic impact of this mass incarceration on communities of color is staggering. One in every twelve working-age, African-American men is behind bars, and upon release, these men can expect to earn 40% less per year. Those men will also lose out on $179,000 in wages by the time they are 48 years old.
Regardless of their race, people who have served their time and paid their dues face the challenging task of reintegrating back into their families and communities. Instead of making that pathway even more daunting, we as a society should support their reintegration with public policies that not only create the atmosphere necessary for fresh starts and new beginnings, but also pave the way for safer and more productive communities.
“Banning the box” represents one such policy. Removing the check-box that asks about criminal history from the initial job application and postponing any background checks until later in the screening process helps ensure that all job applicants have a fair chance. Job applicants are not denied consideration simply because of an arrest or conviction that may be old, minor, and irrelevant to the job, but are instead evaluated for their qualifications. The decision to ban the box is smart policy, and 10 states and more than 50 cities and counties across the country have wisely chosen to remove this unnecessary obstacle for millions of jobseekers who are trying to get on with their lives.
Our efforts, however, should not stop with banning the box. Many states have laws and regulations that needlessly render people with criminal records ineligible to work in a vast array of positions or deny them the licenses required to secure employment. State policymakers should review and revise these policies to ensure that they are not overly broad and unnecessarily exclusive.
Additionally, Congress should take steps to guarantee that the criminal history information employers are using to make hiring decisions is accurate. Shockingly, around half of the records in the FBI’s database of criminal records are inaccurate or incomplete; they include arrest information but not the final disposition of those arrests. Charges may have been dismissed but you wouldn’t know it from the FBI record, which is hugely problematic since many arrests never lead to convictions.
Federal legislation is pending that would require the FBI to reform its database and make sure that fewer Americans are losing job opportunities because of flawed and false background checks. But employers don’t have to wait for lawmakers to act; they can adopt fairer policies now, like banning the box, disregarding arrests that don’t lead to convictions, or choosing not to disqualify applicants because of old or minor convictions.
On this day of commemoration and reflection, let’s resolve to remove the unjust barriers that keep so many Americans from the dignity and fulfillment that work provides. Honoring Dr. King’s legacy requires nothing less.
Madeline Neighly is a staff attorney at the National Employment Law Project. Jonathan Smith is assistant counsel in the Economic Justice Group of the NAACP Legal Defense & Educational Fund, Inc.