The Long Shadow 2014

2 Western State Law Review Vol. 42 #1

The Long Shadow: Decreasing Barriers to
Employment, Housing, and Civic Participation for
People with Criminal Records Will Improve Public
Safety and Strengthen the Economy
Steven D. Bell1
INTRODUCTION .....................................................................................................2
I.CONSEQUENCES OF A CRIMINAL CONVICTION....................................................3
A. Direct Consequences...........................................................................3
1. Incarceration ..................................................................................3
2. Probation and Parole......................................................................4
3. Fines and Restitution......................................................................5
4. Registration....................................................................................5
5. Recidivism .....................................................................................5
6. A Note about California‘s Realignment ........................................6
B. Collateral Consequences .....................................................................7
1. Disenfranchisement........................................................................8
2. Other Civil Restrictions .................................................................9
3. Employment.................................................................................10
4. Housing........................................................................................11
II.WORSENING CONDITIONS ...............................................................................11
A. Getting Tough on Crime ...................................................................11
B. Technological Advances ...................................................................13
C. Increased Use of Background Checks...............................................13
III.―BAN THE BOX‖ MOVEMENT ........................................................................15
A. Disenfranchisement...........................................................................17
B. Employment ......................................................................................18
1. Minnesota.....................................................................................18
2. Massachusetts ..............................................................................19
3. California .....................................................................................19
4. San Francisco...............................................................................20
5. National Employers .....................................................................21
6. Federal Lawsuits..........................................................................21
IV.PROPOSAL......................................................................................................22
V.CONCLUSION...................................................................................................24
1. J.D. Candidate, May 2015, Western State College of Law. I would like to express my gratitude to
Western State for welcoming this formerly incarcerated person into its program and my appreciation
to Professor Elizabeth Jones, Director of the Criminal Law Practice Center, and Professor Dylan
Malagrinò for their continuing guidance, encouragement, and inspiration. Lastly, my profound
thanks to my wife, Sue, and to all my family and friends for their love, support, and patience through
the years, especially today as I pursue my passion

INTRODUCTION
Two hundred years ago, attorney Francis Scott Key described America
as ―the Land of the free.‖2
He would find it difficult to pen those words today,
when America imprisons more than two million people.3
Although home to
only about five percent of our world‘s population, America accounts for about
twenty-five percent of all prisoners.4
Today, roughly 65 million Americans –
one in four adults – have criminal records.5
In California, approximately 7
million people have criminal records.6
―Every week more than 10,000 ex-prisoners [sic]7
are released from
U.S. prisons . . . about 650,000 each year.‖8
However, even after completing
their sentences ex-prisoners face enormous obstacles to employment, housing,
and civic participation based on ―[f]ears, myths . . . stereotypes and biases
against those with criminal records.‖9
―[I]n 2010 5.5 million voting-age
citizens were disenfranchised because of their criminal records . . . 11 states
(six in the South) ban[] ex-felons from voting even after they have completed
prison and probation or parole.‖10
―[T]wo-thirds of employers surveyed in five
major U.S. cities would not knowingly hire a person with a criminal record,
regardless of the offense.‖11
The collateral consequences of a criminal conviction, the ―long
shadow‖ cast by prison walls over former prisoners even after full payment for
their crimes, threaten to permanently marginalize a significant segment of our
population. Such a marginalized, chronically unemployed population
represents a material threat to public safety.12
―We know from long experience
that if [former prisoners] can‘t find work, or a home, or help, they are much
more likely to commit more crimes and return to prison.‖13
2. Francis Scott Key, Defence of Fort McHenry (popularly known as The Star-Spangled Banner), 1814.
3. Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Conviction, 160 U.
PA. L. REV. 1789, 1791 (2012).
4. Joshua Holland, Land of the Free? US Has 25 Percent of the World‟s Prisoners, MOYERS & CO.
(Dec. 16, 2013), http://billmoyers.com/2013/12/16/land-of-the-free-us-has-5-of-the-worlds-
population-and-25-of-its-prisoners.
5. Ban the Box Resource Guide, NAT‘L EMPLOYMENT LAW PROJECT 1 (July 2014),
http://www.nelp.org/page/-/sclp/2011/cityandcountyhiringinitiatives.pdf?nocdn=1.
6. SAN FRANCISCO, CA., POLICE CODE Art. 49, §§ 4901-4920 (2014), [hereinafter ―Fair Chance
Ordinance‖] at § 4902 Findings.
7. ―Ex-prisoners‖ do not get released; prisoners get released and thereby become ex-prisoners.
8. Preeti Vissa, President Bush Was Right, HUFFINGTON POST (Feb. 27, 2014),
http://www.huffingtonpost.com/preeti-vissa/president-bush-was-right_b_4863511.html.
9. Comm‘r Ishimaru, Commission Meeting of November 20, 2008 - On Employment Discrimination
Faced by Individuals with Arrest and Conviction Records (Nov. 20, 2008),
http://www.eeoc.gov/eeoc/meetings/11-20-08/transcript.cfm.
10. Editorial, Disenfranchised Felons, N.Y. TIMES, p.A16 (July 15, 2012), available at
http://www.nytimes.com/2012/07/16/opinion/disenfranchised-
felons.html?module=Search&mabReward=relbias% 3Ar&_r=0.
11. See Fair Chance Ordinance, supra note 6, at 4.
12. Id.
13. Vissa, supra note 8.

2014 The Long Shadow 3
Because ―almost all convicted persons eventually rejoin society,‖14
this
article proposes that decreasing barriers to employment, housing, and civic
participation for these people will advance public safety and strengthen the
economy. Part I provides an overview of the direct and collateral consequences
of a criminal conviction. Part II considers how several factors – recent
technological advances, effects of ―get tough on crime‖ policies, and post-9/11
anxieties – have aggravated the collateral consequences crisis. Part III
examines the emergence of a national ―Ban the Box‖ movement, which seeks
to remove obstacles to employment, housing, and civic participation for former
prisoners, and the burgeoning body of law that this movement has triggered.
Part IV proposes language for a new California statute aimed at eliminating
blanket employment discrimination against former prisoners while
safeguarding legitimate employer concerns. Finally, Part V concludes that
when considering public safety, economic impact, and fundamental fairness,
the time is long overdue for California to eliminate many of the collateral
consequences faced by former prisoners.
I. CONSEQUENCES OF A CRIMINAL CONVICTION
A. Direct Consequences
Although ―[t]here is some disagreement among the courts over how to
distinguish between direct and collateral consequences,‖15
for the purposes of
this article direct consequences will be defined as those sanctions imposed
upon an individual by the judiciary as the result of a criminal conviction. Such
sanctions generally fall into four broad categories: incarceration, probation and
parole, fines and restitution, and registration.
1. Incarceration
When most people consider the direct consequences of a criminal
conviction, they usually think of the offender‘s physical confinement in a jail or
prison. In reality, most convictions do not result in such incarceration.16
See 2.
Probation and Parole, infra. In California, as in most jurisdictions, ―the
purpose of imprisonment for crime is punishment.‖17
A jail is ―[a] local government‘s detention center where persons
awaiting trial or those convicted of misdemeanors are confined.‖18
Historically,
jails have been operated by counties and were used to house those sentenced to
confinement for a year or less, usually for misdemeanor convictions.19
Prisons,
on the other hand, generally have been operated by the state and house those
14. Chin, supra note 3, at 1790.
15. Padilla v. Kentucky, 559 U.S. 356, 364 n.8 (2010).
16. See Chin, supra note 3, at 1804.
17. CAL. PENAL CODE § 1170 (West 2014).
18. BLACK‘S LAW DICTIONARY 409 (9th ed. 2009).
19. CAL. PENAL CODE § 18(b) (West 2014).

sentenced to more than a year, usually felony convictions.20
Recently in
California, however, these traditional distinctions have become blurred through
the state‘s so-called ―corrections realignment‖ process21
, discussed in Section
I.A.6. A Note about California‘s Realignment, infra.
Whether post-conviction incarceration is accomplished through jail or
prison, its purpose remains the same: to confine convicted criminals.
2. Probation and Parole
Despite America‘s unequaled incarceration rate, the prison population is
―dwarfed by the six-and-a-half million or so on probation or parole.‖22
―The
vast majority of people who have been convicted of crimes are not currently in
prison.‖23
While the terms often are used interchangeably, probation and parole
are distinctly different types of criminal sanctions. Probation is a ―criminal
sentence that, subject to stated conditions, releases a convicted person into the
community instead of sending the criminal to jail or prison.‖24
That is,
probation is an alternative punishment to incarceration. Parole, on the other
hand, is the ―conditional release of a prisoner from imprisonment before the
full sentence has been served.‖25
Unlike probation, parole in itself is not
punishment but rather a supervised transitional period that follows release from
punitive incarceration.
Probation may be either unsupervised (for minor offenses) or
supervised (for more serious crimes) by correctional officials; parole is nearly
always supervised. Historically, in California probationers were supervised by
county probation officers,26
while parolees were supervised by state parole
agents.27
As with incarceration, however, this distinction also has become
blurred pursuant to California‘s correctional realignment. See Section I.A.6. A
Note about California‘s Realignment, infra.
Whether probation or parole, the court or correctional officials impose
behavioral conditions upon a convicted person, the violation of which typically
results in incarceration. Such conditions vary widely but normally include
requirements to work, to obey the law, to submit to searches of person and
property, to regularly report to the supervising officer or agent, to submit to
drug or alcohol testing, and restrictions on travel and possession of weapons.28
A so-called ―technical violation‖ of a condition of parole or probation involves
20. JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 3 (6th ed. 2012).
21. Steven Thomas Fazzi, A Primer on the 2011 Corrections Realignment: Why California Placed
Felons Under County Control, 44 MCGEORGE L. REV. 423, 425 (2013).
23. Id.
24. BLACK‘S LAW DICTIONARY 599-600 (9th ed. 2009).
25. Id. at 554.
26. Helen R. Mac Gregor, Adult Probation, Parole, and Pardon in California, 38 TEX. L. REV. 887, 914
(1960) (citing CAL. PENAL CODE §§ 1203.5-1203.8).
27. See Fazzi, supra note 21, at 427.
28. See, e.g., 15 CAL. CODE REGS. tit. 15,§ 2512 (2014).

misbehavior, which cannot be prosecuted as a crime, such as failing to meet
with the supervising officer or agent, refusing to attend substance abuse
meetings, or not performing required community service.29
Violations of
behavioral conditions involving new crimes committed by the probationer or
parolee are addressed in Section I.A.5. Recidivism, infra.
Because both probation and parole impose significant restrictions on a
person‘s liberty, a probationer or parolee is considered to be legally ―in
custody‖ despite living in free society.30
3. Fines and Restitution
Both fines and restitution involve financial penalties paid by the
convicted person. A fine is a ―pecuniary criminal punishment . . . payable to
the public treasury.‖31
Restitution, on the other hand, is not considered
punishment but rather payment of compensation or reparation to those harmed
by the criminal offense. Typically all fines and restitutions must be paid before
a convicted person may be released from probation or discharged from parole.
4. Registration
Convictions for certain criminal acts, generally sex offenses, require the
offender to register with authorities even after completion of incarceration,
probation, parole, or other court-imposed sanctions.32
Registration has been
promoted as ―protecting public safety . . . an easy way for police to keep tabs
on potentially dangerous persons.‖33
5. Recidivism
Recidivism is ―[t]he behavior of a repeat or habitual criminal‖34
who
commits a crime after completion of a previous sentence, usually incarceration.
Most jurisdictions ―impose harsher sentences on habitual offenders‖ and ―[a]t
least thirty states have instituted some form of ‗three strikes‘ criminal
legislation, mandating progressively harsher sentences for adults convicted of
multiple serious crimes and typically culminating in a life sentence after the
third such ‗strike.‘‖35
29. ALISON LAWRENCE, PROBATION AND PAROLE VIOLATIONS: STATE RESPONSES, NATIONAL
CONFERENCE OF STATE LEGISLATURES 4 (2008), available at http://www.ncsl.org/print/cj/
violationsreport.pdf.
30. Jones v. Cunningham, 371 U.S. 236, 243 (1963).
32. See Chin, supra note 3, at 1801.
33. Sex Offenses Definition, http://legal-dictionary.thefreedictionary.com/Sex+Offenses (last visited Dec.
29, 2014).
34. Recidivism Definition, http://legal-dictionary.thefreedictionary.com/recidivism (last visited Dec. 29,
2014).
35. Steven D. Bell, A Corrupt Bargain, p.8, available at https://drive.google.com/file/d/
0B9ruoZZ_u3HmQTYyNUJIQWphUU0/edit?usp=sharing.

6. A Note about California‟s Realignment
Beginning in 2011, California changed many of the historical
characteristics of incarceration, probation, and parole discussed supra. Faced
with a ―monumental budget deficit‖ and a federal court order to reduce prison
overcrowding,36
the California Legislature passed the Prisoner Realignment Bill
(also known as Assembly Bill 109, hereinafter referred to as ―realignment‖).37
Under realignment, the State relinquished its responsibility for incarcerating
and supervising certain felony offenders, transferring this responsibility to
county governments. ―At its core, corrections realignment is about defining
which level of government is responsible for managing California‘s felons –
the state or the counties.‖38
California‘s twin goals in implementing realignment were (1) to help
balance the state budget by reducing prison costs and (2) to comply with the
federal court order by reducing the state prison population.39
Until realignment,
convicted felons sentenced to more than one year of incarceration were
confined in state prisons at state expense.40
Now, convicted felons sentenced to
confinement for up to three years remain incarcerated in county jails rather than
being transferred to state prisons.41
Thus ―felons whose crimes are the most
serious are treated as the least amenable to county control and left
predominantly to state control, while felons whose crimes are less serious are
considered more manageable and placed under significant (or complete) county
control.‖42
In addition, the State also transferred to the counties the
responsibility for virtually all parole violations, technical or not, ―requiring
county jails, rather than State prisons, to incarcerate most parole violators.‖43
However, some of the most significant changes wrought by realignment
concerned parole and probation. First, as with incarceration, the State
transferred to the counties responsibility for the supervision of significantly
more released offenders, usually low-level nonviolent felons.44
Next, as noted
supra, the State also transferred to the counties the responsibility for virtually
all parole violators.45
Third, realignment also created two brand new types of
noncustodial supervision in addition to parole and probation: mandatory
supervision and post-release community supervision (commonly known as
―PRCS‖).46
36. See Fazzi, supra note 21, at 425.
37. Michael Santos, How Are Realignment Billions Being Spent?, HUFFINGTON POST (Mar. 18, 2013),
http://www.huffingtonpost.com/michael-santos/california-prisons-realignment_b_2857140.html.
38. Fazzi, supra note 21, at 426.
39. Id. at 425.
40. Id. at 427.
41. Santos, supra note 37.
42. Fazzi, supra note 21, at 428.
43. Id. at 430.
44. Id. at 429.
45. Id. at 430.
46. Scott v. Bowen, No. RG14-712570, slip op. at 4 (Super. Ct. Alameda Cnty. April 2, 2014), available
at http://www.slideshare.net/andrewwilliamsjr/scott-v-bowen-140507-order-writ-reversing-illegal-

Mandatory Supervision. The Realignment Act states that defendants
without prior or current felony convictions for serious, violent, or sex
related crimes are sentenced to county jail rather than to state prison.
(Penal Code 1170(h).) Under Penal Code 1170(h)(5)(B), the court
may suspend the term and release the defendant to Mandatory
Supervision, ―during which time the defendant shall be supervised by
the county probation officer in accordance with the terms, conditions,
and procedures generally applicable to persons placed on probation.‖
A person on Mandatory Supervision is serving their felony sentence
under the supervision of a county probation officer instead of in a
county jail.47
Post-Release Community Supervision (“PRCS”). The Postrelease
Community Supervision Act states that defendants without prior or
current felony convictions for serious, violent, or sex related crimes
will, upon release from state prison, ―be subject to community
supervision provided by a county agency.‖ (Penal Code 3451(a).) A
person on PRCS is serving their mandatory period of supervision
following release under the supervision of a county agency instead of
the state Department of Corrections and Rehabilitation.48
Finally, county supervision of released offenders differs significantly
from state parole in the range of sanctions and programs available for
violations. ―Instead of relying primarily on one sanction – return to prison – to
punish parole violations, counties deploy a range of options, and harsh
sanctions need approval from a court-appointed hearing officer.‖49
However, as discussed infra, California‘s corrections realignment
scheme has had some unintended collateral consequences.
B. Collateral Consequences
Not all sanctions for a criminal conviction are direct in the sense of
being imposed by a sentencing court. These secondary or collateral
consequences include civil and social sanctions that attach to the individual as
the result of a conviction. ―For many people convicted of crimes, the most
severe and long-lasting effect of conviction is not imprisonment or fine.
Rather, it is being subjected to collateral consequences involving the actual or
potential loss of civil rights, parental rights, public benefits, and employment
opportunities.‖50
Some collateral consequences are mandated by statute, such as
disenfranchisement, or by civil regulations, such as ―professional licensing
schemes.‖51
Others have evolved into common community practices, such as
voter-disenfranchisment-in-california.
47. Id.
48. Id.
49. Fazzi, supra note 21, at 479 (citation omitted) (internal quotation marks omitted).
51. Jenny Roberts, Why Misdemeanors Matter: Defining Effective Advocacy in the Lower Criminal
Courts, 45 U.C. DAVIS L. REV. 277, 372 (2011).

the check box on employment or housing applications which generally reads
something like this: ―Have you ever been convicted of a crime?‖
1. Disenfranchisement
Disenfranchisement involves taking away the right to vote in public
elections from a citizen or class of citizens.52
Because each state determines by
statute the qualifications required for its citizens to vote,53
each state likewise
determines the voting effect of a criminal conviction. This has resulted in ―[a]
patchwork of state felony disfranchisement laws, varying in severity from state
to state, prevent[ing] approximately 5.85 million Americans with felony (and in
several states misdemeanor) convictions from voting.‖54
In at least three states – Iowa, Kentucky, and Florida55
– all persons
convicted of a felony ―are barred from the polls for life unless they receive
clemency from the governor.‖ 56
Many other states are almost as severe: ―[i]n
Mississippi, passing a $100 bad check carries a lifetime ban from voting.‖57
At
the opposite end of the spectrum, two states – Maine and Vermont – ―allow all
persons with felony convictions to vote, even while incarcerated.‖58
California falls in the middle, disenfranchising felons only during the
time they are imprisoned or on parole; those on probation do not lose their right
to vote.59
However, as noted supra, California‘s recent corrections realignment
scheme created two new types of noncustodial supervision (i.e., mandatory
supervision and PRCS) without considering how this would affect voting
rights.60
Despite the Legislature‘s silence on this issue, in December 2011, the
California Secretary of State nonetheless sought to deny voting rights to
approximately 42,000 persons61
on mandatory supervision or PRCS because
these were the ―functional equivalent‖ of parole.62
Because the state‘s
―functional equivalent‖ argument already had been rejected by three California
53. Arizona v. Inter Tribal Council of Arizona, Inc., 133 S. Ct. 2247, 2257-58 (2013).
54. Map of State Criminal Disenfranchisement Laws, AM. CIVIL LIBERTIES UNION,
https://www.aclu.org/maps/map-state-criminal-disfranchisement-laws (last visited Dec. 29, 2014).
55. Id.
56. Matt Apuzzo, Holder Urges States to Lift Bans on Felons‟ Voting, N.Y. TIMES, Feb. 11, 2014,
available at http://www.nytimes.com/2014/02/12/us/politics/holder-urges-states-to-repeal-bans-on-
voting-by-felons.html.
57. Id.
58. The Democracy Restoration Act of 2014, AM. CIVIL LIBERTIES UNION, at 2, available at
https://www.aclu.org/sites/default/files/assets/dra_-_fact_sheet_113th_congress_4_2014_2.pdf.
59. CAL. CONST. art. II, § 4.
60. Scott v. Bowen, No. RG14-712570, slip op. at 4 (Super. Ct. Alameda Cnty. April 2, 2014), available
at http://www.slideshare.net/andrewwilliamsjr/scott-v-bowen-140507-order-writ-reversing-illegal-
voter-disenfranchisment-in-california.
61. Paige St. John, Judge Says Ex-Cons Under Supervision Have the Right to Vote, L.A.TIMES, May 7,
2014, available at http://www.latimes.com/local/political/la-me-ff-judge-says-excons-under-
supervision-have-right-to-vote-20140507-story.html.
62. Scott, slip op. at 5.

appellate courts in different contexts,63
on April 2, 2014, the Alameda County
Superior Court held that those on mandatory supervision or PRCS retained
their right to vote:
In short: (1) the plain language of Elections Code 2101 states that
United States citizens who are residents of California and ―not in
prison or on parole for the conviction of a felony‖ are entitled to
register to vote; (2) Cruz, Fandinola, and Isaac each hold that
Mandatory Supervision and PRCS are not ―parole,‖ so (3) persons on
Mandatory Supervision and PRCS are entitled to register to vote.64
―State disenfranchisement laws disproportionately impact racial and
ethnic minorities,‖65
who are ―disproportionately over-represented in the
criminal justice system.‖66
―Nationwide one in 13 African Americans of voting
age have lost the right to vote – a rate four times the national average.‖67
2. Other Civil Restrictions
The patchwork of state disenfranchisement laws pales in comparison to
number and complexity of other statutory and regulatory restrictions faced by
former prisoners. In response, in 2011 the American Bar Association (―ABA‖)
created an on-line ―database identifying more than 38,000 punitive provisions
that apply to people convicted of crimes, pertaining to everything from public
housing to welfare assistance to occupational licenses. More than two-thirds of
the states allow hiring and professional-licensing decisions to be made on the
basis of an arrest alone.‖68
Federal law prohibits anyone ―who has been
convicted of a felony‖ from enlisting in the armed forces.69
According to the ABA database, California imposes 1,739 civil
restrictions on former prisoners in employment, housing, and public assistance;
the number of restrictions increases to 2,804 when including corresponding
federal consequences.70
Examples of California‘s civil restrictions include: (1)
mandatory prohibitions against operating or working at hospitals, daycare
centers, and elder care facilities (even if unrelated to the nature of the prior
offense), (2) ineligibility to become a certified domestic violence counselor
(but not a certified substance abuse counselor), and (3) discretionary
63. People v. Cruz, 143 Cal. Rptr. 3d 664 742, 747 & n.6 (5th Dist. Ct. App. 2012); People v. Fandinola,
165 Cal. Rptr. 3d, 388-389 (3rd Dist. Ct. App. 2013); People v. Isaac, 168 Cal. Rptr. 3d 544, 545 (1st
Dist. Ct. App. 2014).
64. Scott, slip op. at 9.
65. Democracy Restoration Act of 2014, S. 2235, 113th Cong., at 5 (2014), available at
https://beta.congress.gov/113/bills/s2235/BILLS-113s2235is.pdf.
66. Democracy Restoration Act of 2014, supra note 58, at 1.
67. Id.
68. Alfred Blumstein & Kiminori Nakamura, Op-Ed., Paying a Price, Long After the Crime, N.Y. TIMES,
Jan. 9, 2012, available at http://www.nytimes.com/2012/01/10/opinion/paying-a-price-long-after-
the-crime.html.
69. 10 U.S.C. § 504 (2012).
70. Am. Bar Ass‘n, National Inventory of the Collateral Consequences of a Conviction,
http://www.abacollateralconsequences.org/search/?jurisdiction=10 (last visited Dec. 29, 2014).

ineligibility or mandatory revocations of licenses in virtually every regulated
occupation or profession, from barbers to nurses to attorneys.71
3. Employment
By far the most serious and pervasive collateral consequence faced by
former prisoners is employment discrimination. While the Civil Rights Act of
1964 and its progeny banned employment discrimination on the basis of ―race,
color, religion, sex or national origin,‖72
no such protection was afforded
former prisoners.
A felony conviction, no matter how long in the past, carries a stigma
that makes job-hunting exceedingly difficult. Employment forms often
include a box that asks: ―Have you ever been convicted of a crime?‖
Check the box, and the application most likely goes to the bottom of
the stack or into the trash. In large companies or public institutions,
those applicants are generally blocked by lowest-level bureaucrats or
by human resources software before they can even make their case to
decision makers, who can put any criminal history in its proper
perspective.73
Studies have shown that job applicants with criminal records are fifty
percent less likely to receive a job callback.74
A former offender without some
type of employment ―is three times more likely to recommit‖ a crime.75
These
findings are ―even more pronounced for African American men than for white
men.‖76
Recently released prisoners face unemployment levels between
seventy and eighty percent.77
Unemployment is a major cause of recidivism. ―The most telling
predictor of whether an ex-offender will reenter the community as a law-
abiding and productive member, or whether instead he or she will return to jail
or prison, is employment.‖78
―[O]ne study of 1,600 individuals recently
released from prison in Illinois found that only eight percent of those who were
employed for a year committed another crime, compared to the state‘s average
recidivism rate of fifty-four percent.‖79
―Providing individuals the opportunity
71. Id.
72. 42 U.S.C. § 2000e (2012).
73. Editorial, To Help Ex-cons, Ban the Box, L.A. TIMES, July 3, 2013, available at
http://articles.latimes.com/2013/jul/03/opinion/la-ed-ban-the-box-employment-ex-felons-20130703.
74. Devah Pager, Bruce Western & Naomi Sugie, Sequencing Disadvantage: Barriers to Employment
Facing Young Black and White Men with Criminal Records, 623 THE ANNALS OF THE AM. ACAD.
POL. & SOC. SCI. 195, 199 (2009), available at http://prisonstudiesproject.org/wp-
content/uploads/2011/07/pager-western_sequencing-disadvantage_2009.pdf.
75. Eugene M. Hyman, The Scarlet eLetter and Other Roadblocks to Redemption for Female Offenders,
54 SANTA CLARA L. REV. 119, 123 (2014), available at http://digitalcommons.law.scu.edu/
lawreview/vol54/iss1/4.
76. Pager et al., supra note 74.
77. Little Hoover Comm‘n, Back to the Community: Safe and Sound Parole Policies, at vi, Nov. 13,
2003, available at http://www.lhc.ca.gov/studies/172/report172.pdf.
78. Editorial, supra note 73.
79. Fair Chance Ordinance, supra note 6.

for stable employment actually lowers crime recidivism rates and thus increases
public safety.‖80
4. Housing
Next to employment, the second most important factor affecting
recidivism is stable housing.81
A ―study in New York reported that a person
without stable housing was seven times more likely to re-offend after returning
from prison.‖82
Often even a misdemeanor conviction is sufficient for someone
to ―lose or be unable to get public housing and benefits.‖83
II. WORSENING CONDITIONS
While former prisoners have faced collateral consequences for
centuries, changing conditions over the past few decades have significantly
worsened the problem. The most significant of these have been: (1) America‘s
―get tough on crime‖ policies, (2) technological advances, particularly the
Internet, and (3) the upsurge of background checks in the wake of 9/11.
Today, this unprecedented combination of circumstances – record
numbers of former prisoners reentering society, more personal information
inexpensively and readily available on-line, and an upsurge in employers and
landlords conducting background checks on applicants – has created a ―perfect
storm‖ of collateral consequences, negatively affecting our economy and public
safety.84
A. Getting Tough on Crime
Beginning in the late 1980s, jurisdictions across America began
implementing ―get tough on crime‖ legislation which imposed increasingly
severe, mandatory penalties on people convicted of crimes, especially those
―committing violent crimes, those using guns in the commission of their
offenses, habitual or repeat offenders, and high-profile drug traffickers.‖85
As
part of this movement, in 1994 California implemented its ―Three Strikes‖ law
mandating harsher penalties for repeat offenders; ―[a]t least thirty states have
instituted some form of ‗three strikes‘ criminal legislation.‖86
As a result of these policies, America‘s prison population exploded,
80. Am. Corr. Assoc., 135th Congress of Correction, Presentation by Dr. Art Lurigio (Loyola
University) Safer Foundation Recidivism Study (Aug. 8, 2005).
81. San Francisco Youth Comm‘n, Draft – Minutes, Feb. 3, 2014, available at http://www.sfbos.org/
index.aspx?page=15867.
83. Jenny Roberts, Why Misdemeanors Matter: Defining Effective Advocacy in the Lower Criminal
Courts, 45 U.C. DAVIS L. REV. 277, 288-89 (2011).
84. See Fair Chance Ordinance, supra note 6.
85. James P. Lynch & William J. Sabol, Did Getting Tough on Crime Pay?, URBAN INST. CRIME POLICY
REPORT NO. 1, Aug. 1, 1997, available at http://www.urban.org/publications/307337.html.
86. See Bell, supra note 35.

―growing by over 700%‖ from 1970 to 2007.87
According to the Equal
Employment Opportunity Commission (―EEOC‖),
[I]n 1991, only 1.8% of the adult population had served time in prison.
After ten years, in 2001, the percentage rose to 2.7% (1 in 37 adults).
By the end of 2007, 3.2% of all adults in the United States (1 in every
31) were under some form of correctional control involving probation,
parole, prison, or jail. The Department of Justice‘s Bureau of Justice
Statistics (DOJ/BJS) has concluded that, if incarceration rates do not
decrease, approximately 6.6% of all persons born in the United States
in 2001 will serve time in state or federal prison during their
lifetimes.88
From 1980 to 2006, California‘s state prison population increased 600%,
―growing from 27,916 to 161,000.‖89
One of the problems with these ―get tough on crime‖ policies, and the
resulting prison population boom, was that no one considered the back-end of
the process. Because ―[t]he vast majority of prisoners get out eventually,‖ 90
the explosion of prison inmates resulted in a corresponding explosion of
parolees returning to society. ―Every week more than 10,000 ex-prisoners [sic]
are released from U.S. prisons . . . about 650,000 each year. That‘s more
people than the entire population of Boston – or Seattle or Denver or
Washington, D.C.‖91
Large populations of unemployed former prisoners are a drag on the
economy. ―[I]n 2008, the United States had between 12 and 14 million
formerly incarcerated people and people with felonies of working age.‖92
Given ―this population‘s greatly reduced job prospects . . . the cost to the U.S.
economy was between $57 and $65 billion in lost output.‖93
Permanent
unemployment for such a large population negatively impacts the overall
economy for everyone. The ―lowered job prospects of . . . formerly
incarcerated people cost the U.S. economy between $57 and $65 billion in lost
output. Not to mention that serving time reduces annual earnings for men by
40 percent, meaning their families too often fall into a poverty trap.‖94
Chronic unemployment among the formerly incarcerated also threatens
public safety.95
―Lack of employment and housing are significant causes of
87. Lauren Salins & Shepard Simpson, Efforts to Fix A Broken System: Brown v. Plata and the Prison
Overcrowding Epidemic, 44 LOY. U. CHI. L.J. 1153, 1157 (2013).
88. Equal Employment Opportunity Comm‘n, EEOC Enforcement Guidance on the Consideration of
Arrest and Conviction Records in Employment Decisions Under Title VII (Apr. 25, 2012), 2012 WL
2031244.
89. Salins & Simpson, supra note 87, at 1157.
90. Vissa, supra note 8.
91. Id.
93. Id.
94. Michelle Natividad Rodriguez, „Ban the Box‟ Fair Hiring Policies Take Hold Around the Nation,
HUFFINGTON POST, Feb. 18, 2014, available at http://www.huffingtonpost.com/michelle-natividad-
rodriguez/ban-the-box-fair-hiring_b_4811072.html.

recidivism; people who are employed and have stable housing are significantly
less likely to be re-arrested.‖96
B. Technological Advances
Since 1994, the Internet has ―expanded to serve millions of users and a
multitude of purposes . . . [and] has changed forever the way we do business
and the way we communicate . . . . Internet has become the universal source of
information for millions of people, at home, at school, and at work.‖97
One of the fastest growing internet businesses ―[i]n today‘s digital
age . . . has been widespread proliferation in the use of criminal background
checks, with hundreds of companies offering over the internet low-cost
criminal background checks.‖98
In recent years, the criminal background check
industry has grown exponentially. 99
On April 26, 2014, a Google search by the
author for ―criminal background checks‖ returned over 99 million hits
(compared to a mere 5.85 million hits for ―Kardashians‖).
Commercial background companies glean information from state and
local law enforcement agencies then re-package it for sale to employers.
Disturbingly, commercially prepared background checks have been found to be
riddled with inaccuracies, including criminal records being wrongly attributed
to innocent individuals, multiple reporting of the identical incidents, and
uncorrected identity theft.100
C. Increased Use of Background Checks
Employer nervousness following 9/11 together with ―the growing
problem of workplace violence‖ has dramatically increased the demand for
applicant background checks.101
―Increased access to criminal records
coincides with a recent, and exponential, growth in the collateral consequences
of criminal convictions.‖102
The demand for ―security checks are now greater
than ever.‖103
―[T]he background check industry has expanded and overall,
more employers are now using background checks as an employment screen
96. Id.
97. INTERNET GROWTH STATISTICS, http://www.internetworldstats.com/emarketing.htm (last visited Dec.
29, 2014).
99. Soc‘y for Human Res. Mgmt., Background Checking: Conducting Criminal Background Checks, at
3, Jan. 22, 2010, available at http://www.shrm.org/research/surveyfindings/articles/pages/
background checkcriminalchecks.aspx.
100. NELP & Comty. Legal Services of Philadelphia, Comments to Federal Trade Commission regarding
FACTA Notices, Sept. 20, 2010, available at http://www.nelp.org/page/SCLP/2010/
NELPandCLSFCRANewNotices Comments.pdf?nocdn=1 as cited in Michelle Rodriguez & Maurice
Emsellem, 65 Million “Need Not Apply”: The Case for Reforming Criminal Background Checks for
Employment, THE NATIONAL EMPLOYMENT LAW PROJECT (March 2011); infra note 110.
101. Fred Appleyard, Jr., Employee Background Checks: Security Checks on the Increase, Sept. 20, 2005,
available at http://ezinearticles.com/?Employee-Background-Checks:-Security-Checks-on-the-
Increase&id=72408.
102. Roberts, supra note 83, at 288.
103. Appleyard, supra note 101.

than ever before.‖104
―In one survey, more than 90 percent of companies
reported using criminal background checks for their hiring decisions.‖105
―The ubiquity of criminal-background checks and the efficiency of
information technology in maintaining those records and making them widely
available, have meant that millions of Americans — even those who served
probation or parole but were never incarcerated — continue to pay a price long
after the crime.‖106
―The result is that employers and landlords can now quickly
search criminal records, so that even when there is no legal barrier to housing
or employment for the individual, there is an effective bar.‖107
Under federal law, commercial providers of criminal histories are
subject to the provisions of the Fair Credit Reporting Act108
(―FCRA‖) and
―generally may not report records of arrests that did not result in entry of a
judgment of conviction, where the arrests occurred more than seven years ago.
However, they may report convictions indefinitely.‖109
Nonetheless, a survey
of fifty randomly-selected on-line providers of criminal history records found
that despite these federal regulations, enforcement of FCRA‘s protections
―appears spotty at best.‖110
Not surprisingly, such lax enforcement results in
criminal history reports which are ―not particularly comprehensive or
accurate.‖111
In addition, despite specific FCRA provisions to the contrary,
76.7% of the on-line providers surveyed report arrests not resulting in a
conviction and 57.1% report information more than seven years old.112
Worse,
―there is no mechanism for correcting or altering‖ incorrect information
reported by on-line providers.113
Even if such background reports were accurate, the corresponding
―assumption that the existence of a criminal record accurately predicts negative
work behavior is subject to some debate; one limited study questions whether
the two are, in fact, empirically related.‖114
In addition to being inaccurate and unreasonable, these background
104. NAT‘L EMPLOYMENT LAW PROJECT, supra note 5, at 1.
105. NELP & Community Legal Services of Philadelphia, supra note 100.
106. Blumstein & Nakamura, supra note 68.
107. Roberts, supra note 83, at 288.
108. 15 U.S.C. § 1681 (2012).
109. Equal Employment Opportunity Comm‘n, supra note 88.
110. BARRIERS TO REENTRY? THE LABOR MARKET FOR RELEASED PRISONERS IN POST-INDUSTRIAL
AMERICA 184-192 (Shawn Bushway et al. eds., 2007).
111.
Id. at 187.
112. Id. at 186.
113. Id. at 192.
114. See Brent W. Roberts, et al., Predicting the Counterproductive Employee in a Child-to-Adult
Prospective Study, 92 J. APPLIED PSYCHOL. 1427, 1430 (2007), available at
http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1044&context=managementfacpub
(explaining that there is little research examining the correlation between the existence of a criminal
record and the propensity to commit crimes at the workplace. However, in this study of New Zealand
residents from birth to age 26, researchers found that the existence of a criminal record for 13- to 16-
year-olds was unrelated to engaging in ―counterproductive activities at work‖ at age 26, including
tardiness, absenteeism, disciplinary problems, violence, theft, property destruction, and substance
abuse).

checks ―can also be illegal under civil rights laws. Employers that adopt these
and other blanket exclusions fail to take into account critical information,
including the nature of an offense, the age of the offense, or even its
relationship to the job.‖115
Because ―[a]rrest and incarceration rates are particularly high for
African American and Hispanic men,‖ the EEOC has found that blanket hiring
denials based on criminal records violates antidiscrimination laws.116
Confirming the racial bias associated with a criminal record, an
intriguing recent study dispatched testers to apply for actual jobs in a big city.
Each tester ―had identical credentials other than race and criminal record.‖ 117
The results were startling: ―the white non-offender tester received callbacks
34% of the time he applied; [the] white offender received callbacks for 17% of
applications; and the black offender tester callback ratio plummeted to 5%.‖118
In 2012, the EEOC issued new federal guidelines to employers
concerning the legal use of criminal background checks.119
The new guidelines
do not prohibit the use of criminal record background checks, but rather
recommends, inter alia, that employers ―wait until the final stages of the hiring
process to conduct a criminal background check. This sends the message to
applicants that they will be evaluated based on their qualifications for the job,
rather than being segregated before they have a fair chance to establish their
credentials.‖120
Under the EEOC‘s framework, ―[a]n employer‘s consideration
of criminal records may pass muster under Title VII if an individualized
assessment is made taking into account: (1) The nature and gravity of the
offense or offenses; (2) The time that has passed since the conviction and/or
completion of the sentence; and (3) The nature of the job held or sought.‖121
III.“BAN THE BOX” MOVEMENT
―Ban the Box‖ began in 2004 as a campaign by the civil rights
115. Michelle Rodriguez & Maurice Emsellem, 65 Million “Need Not Apply”: The Case for Reforming
Criminal Background Checks for Employment, THE NATIONAL EMPLOYMENT LAW PROJECT, Mar.
2011, at 1, available at http://www.nelp.org/page/-/SCLP/2011/65_Million_Need_Not_Apply.pdf?
nocdn=1.
116. See Equal Employment Opportunity Comm‘n, supra note 88.
117. Devah Pager, The Mark of a Criminal Record, 108 AM. J. SOC. 937, 958 (2003) as cited in Roberts,
supra note 83, at 372.
118. Id.
119. See Equal Employment Opportunity Comm‘n, supra note 88.
120. National League of Cities & NELP, Cities Pave the Way: Promising Reentry Policies that Promote
Local Hiring of People with Criminal Records, (July 2010), at Appendix, available at
http://www.nelp.org/page/-/SCLP/2010/CitiesPavetheWay.pdf; see also NELP, New State Initiatives
Adopt Model Hiring Policies Reducing Barriers to Employment of People with Criminal Record
(Sept. 2010), available at http://www.nelp.org/ page/-/SCLP/ModelStateHiringInitiatives.pdf.
121. U.S. Equal Employment Opportunity Comm‘n, EEOC Enforcement Guidance: Consideration of
Arrest and Conviction Records in Employment Decisions, Apr. 25, 2012, available at
http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm; see also U.S. Equal Employment
Opportunity Commission, Policy Statement on the Issue of Conviction Records under Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1982), (Feb. 4, 1987).

organization ―All of Us or None‖122
to ―open up opportunities for people with
past convictions in our workplace.‖123
The campaign derived its name from its
goal to remove from employment applications the box that asks: ―Have you
ever been convicted of a crime?‖ In subsequent years, the campaign expanded
to include efforts to ban housing discrimination and other collateral
consequences of criminal convictions. ―All of Us or None‖ sets forth the
following goals on its website:
 To win full restoration of our civil and human rights after release
from prison or jail;
 To eliminate all forms of discrimination based on arrest or
conviction records;
 To institute fair hiring practices concerning past convictions; and
 To eliminate any restrictions on membership, volunteer or Board
participation that may exclude people with arrest or conviction
history.124
The movement is not without its critics, who fear that ―banning the
box‖ could jeopardize workplace safety. ―[Ban the Box] may be giving those
with a criminal record a better chance of getting a job, but employers and
businesses no longer have a clear warning for who they are hiring.‖125
―Employers . . . need to know who they hire to avoid unqualified or dishonest
job candidates but, at the same time, must be sure to follow proper legal
[EEOC] procedures.‖126
The EEOC‘s new regime leaves businesses in a Catch-22. As Todd
McCracken of the National Small Business Association recently
warned: ―State and federal courts will allow potentially devastating
tort lawsuits against businesses that hire felons who commit crimes at
the workplace or in customers‘ homes. Yet the EEOC is threatening to
launch lawsuits if they do not hire those same felons‖ . . . . [T]he
EEOC is practically rewriting the law to add ―criminal offender‖ to
the list of protected groups under civil-rights statutes.127
Discussed infra are some of the legal successes of the ―Ban the Box‖
movement.
122. All of Us or None is ―a grassroots civil rights organization fighting for the rights of formerly- and
currently- incarcerated people and [their] families.‖ See http://www.prisonerswithchildren.org/our-
projects/allofus-or-none/ (last visited Dec. 29, 2014).
123. TAKE THE FAIR CHANCE PLEDGE, http://bantheboxcampaign.org/ (last visited Dec. 29, 2014).
124. Id.
125. Danni Wilson, Ban on the Box Could Mean No Warning for Employers, L.A. LOYOLAN, Nov. 5,
2013, available at http://www.laloyolan.com/opinion/ban-on-the-box-could-mean-no-warning-for-
employers/article_4103d5be-45c0-11e3-8115-001a4bcf6878.html.
126. ESR News Blog, California Employers Face Sticky Situations when Using Background Checks, Feb.
10, 2014, available at http://www.esrcheck.com/wordpress/2014/02/04/california-employers-face-
sticky-situations-using-background-checks/.
127. James Bovard, Perform Criminal Background Checks at Your Peril: A Federal Policy Intended to
Help Minorities Is Likely to Have the Opposite Effect, WALL ST. J., Feb. 14, 2013, available at
http://online.wsj.com/news/articles/SB10001424127887323701904578276491630786614.

A. Disenfranchisement
The ―Ban the Box‖ movement seems to have garnered some powerful
support in Washington, D.C., especially in the area of voting rights. In a
speech at Georgetown University on February 11, 2014, Attorney General Eric
Holder ―called for the repeal of laws that prohibit millions of felons from
voting.‖128
Recently the U.S. Congress has begun taking some action on
disenfranchisement, at least so far as federal elections are concerned. On April
10, 2014, Senator Ben Cardin (D-MD) and Representative John Conyers (D-
MI) introduced Senate Bill 2235, entitled the ―Democracy Restoration Act of
2014.‖129
In this bill, Congress explicitly finds that the widely varying
―discrepancies in State laws regarding criminal convictions lead to unfairness
in Federal elections.‖130
Under its broad authority to regulate federal
elections,131
the provisions of this pending legislation would restore ―Federal
voting rights of persons when released from incarceration.‖132
As of the writing
of this article, this Bill is under consideration by the Senate Judiciary
Committee.133
However, while this Bill is a step in the right direction it remains to be
seen whether it would have any effect on state restrictions aimed at former
prisoners‘ voting rights in state and local elections. ―Congress lacks the power
to directly set qualifications for voters in federal elections by virtue of the
Qualifications Clauses of Article I and the Seventeenth Amendment‖134
and
under Section 2 of the Fourteenth Amendment which provides, in relevant part:
[W]hen the right to vote at any election for the choice of electors . . . is
denied to any of the male inhabitants of such State . . . or in any way
abridged, except for participation in rebellion, or other crime.135
(emphasis added)
Citing this section, the Supreme Court has previously upheld
California‘s disenfranchisement law.136
However, the Supreme Court later
distinguished a challenge to another state disenfranchisement law, finding it
unconstitutional where it promoted ―purposeful racial discrimination‖ based on
128. Apuzzo, supra note 56.
129. Democracy Restoration Act of 2014, S. 2235, 113th Cong. (2014), available at
130. Id. at 2.
131. U.S. CONST. art. I, § 4, cl. 1.
132. Senate Bill 2235, The Democracy Restoration Act of 2014, 113th Congress, 2nd Session, introduced
April 10, 2014, http://beta.congress.gov/113/bills/s2235/BILLS-113s2235is.pdf.
133. Id.
134. BRENNAN CENTER FOR JUSTICE, NYU SCHOOL OF LAW, Legal Analysis Of Congress‟ Constitutional
Authority to Restore Voting Rights to People with Criminal Histories, 2, Aug. 3, 2009, available at
http://www.brennancenter.org/sites/default/files/legacy/Democracy/Brennan%20Center%20analysis
%20of%20DRA%20federal%20authority%208-10-09.pdf.
135. U.S. CONST. amend. XIV, § 2.
136. Richardson v. Ramirez, 418 U.S. 24, 56 (1974).

prior criminal convictions.137
As noted supra, because Congress has explicitly
found that ―disenfranchisement laws disproportionately impact racial and
ethnic minorities,‖138
it is possible, perhaps even likely, that the Democracy
Restoration Act, if enacted, would withstand judicial review.139
B. Employment
As of 2014, more than ―45 cities and counties, including New York
City, Boston, Philadelphia, Atlanta, Chicago, Detroit, Seattle, and San
Francisco have removed the question regarding conviction history from their
employment applications.140
Seven states, Hawai‘i, California, Colorado, New
Mexico, Minnesota, Massachusetts, and Connecticut, have changed their hiring
practices in public employment to reduce discrimination based on arrest or
conviction records.‖141
Hawaii, Massachusetts, Minnesota and Rhode Island
―have applied [ban-the-box] policies to private employers.‖142
―There are ban-
the-box bills pending in five states – Delaware, Nebraska, New Hampshire,
New Jersey, and Virginia. Governor Jack Markell of Delaware even endorsed
the policy in his state-of-the-state address, declaring that ‗we should ban the
box for state government hires this year . . . because marginalizing [people with
records] helps none of us.‘‖143
1. Minnesota
In 2009, Minnesota Statute section 364.021 banned the box from public
employment applications, requiring state and local public employers ―to wait
until a job applicant has been selected for an interview before asking about
criminal records or conducting a criminal record check.‖144
It also ―made it
illegal for public employers to disqualify a person from employment or to deny
them a license because of their criminal background unless it is directly related
to the position.‖145
Exceptions were made for peace officers and certain other
positions as required by existing law.146
Effective January 1, 2014, Minnesota Statute section 364.02 expanded
this prohibition, banning the box for all private employers in the state
regardless of size. ―[P]rivate employers may not inquire into an applicant‘s
137. Hunter v. Underwood, 471 U.S. 222, 233 (1985).
138. Democracy Restoration Act of 2014, S. 2235, 113th Cong. (2014), available at
139. Id. at 4.
140. See National League of Cities & NELP, supra note 120.
141. Id.
143. See Rodriguez, supra note 94.
144. Criminal Background Checks: Minnesota History, MINN. DEP‘T HUMAN RIGHTS,
http://mn.gov/mdhr/employers/cbgc_history.html (last visited Dec. 29, 2014).
145. Id.
146. Occupation Requiring Criminal Background Checks, MINN. DEP‘T HUMAN RIGHTS,
http://mn.gov/mdhr/employers/cbgc_occupations.html (last visited Dec. 29, 2014).

criminal history until after the applicant has been selected for an interview or
before a conditional offer of employment.‖147
Fines for non-compliance begin
at $100 per occurrence for companies with fewer than ten employees and at
$500 for larger employers.148
It is important to note that ―[e]mployers may still
conduct a criminal background check on an applicant before hiring an
applicant. The Ban the Box law merely moves the inquiry into criminal history
from the initial point of contact with the applicant until after the point in time in
which the employer has decided to interview or extend a conditional job
offer.‖149
2. Massachusetts
Effective on November 4, 2010, Massachusetts Statute G.L. c. 151B,
section 4(9½) prohibited all employers with more than six employees ―from
seeking disclosure of job applicants‘ criminal record information prior to the
interview stage of the hiring process.‖150
The statute further prohibited all
employer inquiries concerning ―a prior first conviction for any of the following
misdemeanors: drunkenness, simple assault, speeding, minor traffic violations,
affray, or disturbance of the peace‖ and limited ―employers‘ access to
information about convictions to 5 years for misdemeanors and 10 years for
felonies.‖ 151
The law also provided protection for employers ―from due-
diligence liability suits if someone they hire in accord with these restrictions
commits a further offense.‖152
3. California
Section 432.7(a) of the California Labor Code has long prohibited ―a
public or private employer from asking a job applicant to disclose an arrest or
detention that did not result in ‗conviction,‘ or seeking or utilizing such failed
arrest or detention as a factor ‗in determining any condition of employment
including hiring, promotion,[and] termination.‘‖153
Then in October 2013, Governor Brown signed Assembly Bill 218
which will ―Ban the Box‖ for all public employment in the state effective July
147. National Employment Law Project, Statewide Ban the Box Reducing Unfair Barriers to Employment
of People with Criminal Records, NAT‘L EMPLOYMENT LAW PROJECT, at 5 (2013),
http://www.nelp.org/page/-/SCLP/ModelStateHiringInitiatives.pdf.
148. Ban the Box: FAQ for Private Employers, MINN. DEP‘T HUMAN RIGHTS, http://mn.gov/mdhr/
employers/cbgc_faq.html (last visited Dec. 29, 2014).
149. Id.
150. MASS. COMMISSION AGAINST DISCRIMINATION, MCAD FACT SHEET CRIMINAL OFFENDER RECORD
INFORMATION ADMINISTRATIVE PROCEDURE REFORMS (2010), available at http://www.mass.gov/
mcad/documents/Criminal%20Records%20Fact%20Sheet.pdf.
151. Blumstein & Nakamura, supra note 68.
152. Id.
153. Wallace Wade, Who‟s Lying Now?: How the Public Dissemination of Incomplete, Thus Half-
Truthful, Criminal Record Information Regarding a Statutorily Rehabilitated Petty Offender Is an
Unjust Penalty and Why Laws Regarding Expungement of and Restrictions on Dissemination of
Criminal Records Information in California Must Be Reformed, 38 W. ST. U. L. REV. 1, 19 (2010).

1, 2014.154
The Legislature finds and declares that reducing barriers to
employment for people who have previously offended, and decreasing
unemployment in communities with concentrated numbers of people
who have previously offended, are matters of statewide concern.
Therefore, this act shall apply to state agencies, all cities and counties,
including charter cities and charter counties, and special districts. The
Legislature further finds and declares that, consistent with the 2011
Realignment Legislation addressing public safety, increasing
employment opportunities for people who have previously offended
will reduce recidivism and improve economic stability in our
communities.155
The Bill modified section 432.9 of the California Labor Code to
prohibit public employers from making any inquiry into an applicant‘s criminal
history ―until the agency has determined the applicant meets the minimum
employment qualifications, as stated in any notice issued for the position.‖156
Exceptions were made for ―position[s] for which a state or local agency is
otherwise required by law to conduct a conviction history . . . [including]
within a criminal justice agency.‖157
4. San Francisco
San Francisco‘s ―Fair Chance‖ Ordinance – arguably the most
comprehensive such measure in the country – was enacted on January 27, 2014,
with the stated purpose ―to enhance public health and safety by reducing
recidivism and its associated criminal justice costs and societal costs, and
facilitating the successful reintegration into society of persons with arrest and
conviction records.‖158
The ordinance, which applies to all employers and landlords, is careful
not ―to limit an employer or a housing provider‘s ability to choose the most
qualified and appropriate candidate from applicants for employment or
housing.‖159
However, prior to a ―live interview‖ or ―conditional offer‖ it
absolutely bans ―at any time or by any means‖ employer and landlord inquiries
into (1) any ―arrest not leading to a conviction,‖ (2) participation in ―a
diversion or deferral of judgment program,‖ (3) convictions that were
―dismissed, expunged, voided, [or] invalidated,‖ (4) juvenile adjudications, (5)
any conviction ―more than seven years old,‖ and (6) any offense ―other than a
felony or misdemeanor, such as an infraction.‖160
On January 30, 2014, the author spoke by telephone with Jim Lazarus,
154. A.B. 218, § 1, 2013 Leg. Reg. Sess. (Cal. 2013).
155. Id.
156. A.B. 218, § 2.
157. Id.
159. Id.
160. Id.

Senior Vice President of Public Policy at the San Francisco Chamber of
Commerce who indicated that he knew of no opposition in the business
community to the Fair Chance Ordinance.161
On February 12, 2014, the author
exchanged a series of e-mails with Ivy Lee, Legislative Aide to San Francisco
Supervisor Jane Kim, author of the Fair Chance Ordinance, who flatly stated:
―There was zero opposition to our ordinance.‖162
5. National Employers
Several national employers have voluntarily adopted ―Ban the Box‖
policies, the largest being Target Corporation.163
Additional national employers
may follow suit rather than adopt a patchwork employment application process
for each state or city in which it conducts business.
6. Federal Lawsuits
The EEOC has recognized that employer reliance criminal background
checks as ―proxies for race . . . [is] an important civil rights issue.‖164
―People
convicted of crimes don‘t get special protections under civil-rights laws, but the
EEOC can sue if it believes information about prior convictions is being used
to discriminate against a racial or ethnic group.‖165
Title VII of the Civil Rights Act of 1964 prohibits discrimination in
employment based on race, gender, national origin, and other
protected categories. Enforced by the EEOC, Title VII has long been
recognized as prohibiting not only overt, intentional discrimination,
but also disallowing those facially neutral policies and practices that
have a disproportionate impact on certain groups. Using arrest and
conviction records to screen for employment is an example of the kind
of ―neutral‖ selection criteria that invites Title VII scrutiny.166
Because the arrest rate for ―African Americans . . . is more than double
their share of the population,‖167
culling ―job applicants with criminal
records . . . has a ‗disparate impact‘ on African Americans (and Latinos).‖168
161. Telephone Interview with Jim Lazarus, Senior Vice President Public Policy, San Francisco Chamber
of Commerce (Jan. 30, 2014).
162. E-mail from Ivy Lee, Legislative Aide to San Francisco Supervisor Jane Kim, to author (Feb. 12,
2014) (on file with author).
163. Brent Staples, Target Bans the Box, N.Y. TIMES, Oct. 29, 2013, available at
http://takingnote.blogs.nytimes.com/?s=target+bans+the+box.
164. Commissioner Earp, Transcript of EEOC Meeting on Employment Discrimination Faced by
Individuals with Arrest and Conviction Records, at 2 (Nov. 20, 2008),
http://www.eeoc.gov/eeoc/meetings/11-20-08/transcript.cfm.
165. Scott Thurm, Employment Checks Fuel Race Complaints, WALL ST. J., June 6, 2013, available at
http://online.wsj.com/news/articles/SB10001424127887323495604578539283518855020
166. Rodriguez & Emsellem, supra note 115, at 5.
167.
In 2013, an estimated 13.2% of the U.S. population is black. Facts for Features: *Special Edition*
50th Anniversary of the Civil Rights Act: July 2, (June 26, 2012),
http://www.census.gov/newsroom/facts-for-features/2014/cb14-ff17.html.
168. Rodriguez & Emsellem, supra note 115, at 5.

This has led to several pending lawsuits, including EEOC v. Dollar General169
and EEOC v. BMW170
, in which the employers‘ alleged policies of blanket
denials to all applicants with criminal backgrounds had a disparate impact on
minority applicants. In response, Dollar General states that it ―prohibits
discrimination in its hiring and employment practices,‖ claiming that its
―criminal background checks are ‗structured to foster a safe and healthy
environment for its employees, its customers, and to protect its assets in a
lawful, reasonable and nondiscriminatory manner.‘‖171
IV. PROPOSAL
Since at least ten states, and many additional localities, have
implemented some form of ―Ban the Box‖ legislation,172
California has several
successful models to guide its enactment of similar reforms. While there is
considerable diversity among the various states‘ programs, each generally seeks
to prohibit across-the-board discrimination against former prisoners by: (1)
eliminating ―the Box‖ from employment and housing applications, (2)
postponing disclosure and consideration of criminal records until later in the
application process, usually after the first interview, and (3) limiting the use of
irrelevant information, such as arrests not resulting in a conviction, convictions
unrelated to the purpose of the application, and convictions rendered stale by
the passage of time.
These statutes typically balance these reforms with safeguards for
employers and landlords, including: (4) exceptions for small businesses and
home-based housing, (5) exceptions for critical public safety and criminal
justice agencies, and (6) exceptions for certain offenses requiring lifetime
registration, such as sex crimes. It is important to note these statutes do not
prohibit employers and landlords from conducting appropriate background
checks to ensure safety and security, they merely postpone such checks until
after an applicant is determined to be otherwise qualified.
Existing California law already prohibits both private and public
employers from asking or seeking to obtain information about a job applicant‘s
arrests, which did not result in conviction, referrals to diversion programs, or
convictions that have been dismissed or sealed.173
Even where the employer
has come into such information, existing law prohibits its use ―as a factor in
determining any condition of employment including hiring, promotion,
termination, or any apprenticeship training program or any other training
program leading to employment.‖174
Additionally, no employer may consider
convictions for the personal possession and use of marijuana ―two years from
169. U.S. Dist. Ct., N.D. Illinois, Case No. 1:13CV04307, filed June 11, 2013.
170. U.S. Dist. Ct., D. South Carolina, Case No. 7:13CV01583, filed June 11, 2013.
171. Thurm, supra note 165.
172. See NAT‘L EMPLOYMENT LAW PROJECT, supra note 5, at 1.
173. CAL. LAB. CODE § 432.7(a) (West 2014) (effective Jan. 1, 2014).
174. Id.

the date of such a conviction.‖175
These existing provisions meet most, but not
all, of factor (3) supra.
Further, as noted supra, as of July 1, 2014, California Assembly Bill
218 prohibits public agencies from asking or seeking to obtain ―information
regarding a criminal conviction, except as specified, until the agency has
determined the applicant meets the minimum employment qualifications for the
position.‖176
This prohibition meets factors (2) and (5) supra for public
employers but has no effect on private employers.
In order to address all six factors supra for private employers,
California Labor Code section 432.7 should be modified as follows (proposed
new language shown in italics):
(a) No employer, whether a public agency or private individual or
corporation, shall ask an applicant for employment to disclose,
through any written form or verbally, information concerning an arrest
or detention that did not result in conviction, or information
concerning a referral to, and participation in, any pretrial or post-trial
diversion program, or concerning a conviction that has been judicially
dismissed or ordered sealed pursuant to law, including, but not limited
to, Sections 1203.4, 1203.4a, 1203.45, and 1210.1 of the Penal Code,
or any conviction or adjudication in the juvenile justice system, or
any misdemeanor conviction or infraction, or any conviction more
than seven (7) years old, excepting those convictions requiring
lifetime registration pursuant to Sections 290 to 290.023 of the Penal
Code, nor shall any employer seek from any source whatsoever, or
utilize, as a factor in determining any condition of employment
including hiring, promotion, termination, or any apprenticeship
training program or any other training program leading to
employment, any record of arrest or detention that did not result in
conviction, or any record regarding a referral to, and participation in,
any pretrial or posttrial diversion program, or concerning a conviction
that has been judicially dismissed or ordered sealed pursuant to law,
including, but not limited to, Sections 1203.4, 1203.4a, 1203.45, and
1210.1 of the Penal Code, or any conviction or adjudication in the
juvenile justice system, or any misdemeanor conviction or
infraction, or any conviction more than seven (7) years old,
excepting those convictions requiring lifetime registration pursuant
to Sections 290 to 290.023 of the Penal Code, until after either the
first live, in-person interview with the applicant or the making of a
conditional offer of employment. As used in this section, a conviction
shall include a plea, verdict, or finding of guilt regardless of whether
sentence is imposed by the court.
* * *
(e) Persons seeking employment or persons already employed in
home-based businesses, or in businesses having fewer than five (5)
full-time employees, or as peace officers or persons seeking
employment for positions in the Department of Justice or other
175. Id. § 432.8 (West 2014).
176. A.B. 218, § 2, 2013 Leg. Reg. Sess. (Cal. 2013).

criminal justice agencies as defined in Section 13101 of the Penal
Code are not covered by this section.
* * *
(m) Subdivision (a) does not require an employer to hire any
applicant with a criminal background nor prohibit an employer from
asking an applicant about a criminal conviction of, seeking from any
source information regarding a criminal conviction of, utilizing as a
factor in determining any condition of employment of, or entry into a
pretrial diversion or similar program by, the applicant if either the
employer shows by a preponderance of evidence that the applicant’s
conviction directly relates to the specific business of the employer or,
pursuant to Section 1829 of Title 12 of the United States Code or any
other state or federal law, any of the following apply:
(1) The employer is required by law to obtain information regarding
a conviction of an applicant.
(2) The applicant would be required to possess or use a firearm in
the course of his or her employment.
(3) An individual who has been convicted of a crime is prohibited
by law from holding the position sought by the applicant, regardless
of whether that conviction has been expunged, judicially ordered
sealed, statutorily eradicated, or judicially dismissed following
probation.
(4) The employer is prohibited by law from hiring an applicant who
has been convicted of a crime.
Similar language should be inserted into section 432.9 of the California Labor
Code covering public employers.
V. CONCLUSION
As a recent Los Angeles Times editorial so aptly observed:
It is time for California to join the [Ban the Box] movement,
cautiously but deliberately. Cautiously, because employers have a
right to know who their workers are and a duty to protect their
businesses and workplaces; and deliberately, because we‘re foolishly
punishing ourselves by not welcoming safe and potentially productive
people into the workplace.177
Banning the box on employment and housing applications also would improve
public safety and help to remove the social stigma of a criminal conviction.178
The time is long overdue for California to embrace the maxim set forth
by President George W. Bush in his 2004 State of the Union Address:
―America is the land of the second chance, and when the gates of prison open,
the path ahead should lead to a better life.‖179
177. Editorial, supra note 73.
178. See, e.g., A.B. 218, § 1; Fair Chance Ordinance, supra note 6.
179. See Vissa, supra note 8.

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