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‘Ban the Box’ no more than a cosmetic solution

“Ban the box” is back in the news, likely to pass the Legislature during the upcoming session and this time to be signed into law. In many ways, it’s an ideal piece of legislation, when evaluated from a legislator’s point of view: it identifies a genuine social problem, one created by the Legislature itself and made worse by the judiciary, and deftly shifts responsibility for addressing it onto New Mexico business.

“Ban the box” prohibits employers from asking on an initial employment application whether a job seeker has a criminal record. That way, an ex-offender isn’t automatically denied an opportunity to come in for an interview and make a good first impression. The prospective employer remains free to ask about criminal convictions later in the hiring process and to run a criminal background check.

There’s no question the legislation identifies a genuine need. America’s rate of incarceration per 100,000 population is three to ten times that of any other rich country, and 95 percent of prisoners are eventually released. That adds up to a vast population of ex-convicts in our society, and it’s in nobody’s best interest that they should be prevented from contributing economically. “Ban the box” is an effort to help them get their foot in the door.

But here in New Mexico, employers are held back by the public policy choices of our appellate courts, which strongly disapprove of hiring ex-convicts. Under the tort doctrines of wrongful hiring and negligent retention, an employer who hires an applicant with a criminal record runs a heightened risk of being held liable for the employee’s bad acts, both on the job and (bizarrely enough) during the daily commute. Under New Mexico law, it is simply and sadly true that our courts make the hiring of former convicts a risky proposition.

“Ban the box” is a restriction on information. It dictates the timing by which employers can discover certain data about an applicant’s past. Restricting information may be justifiable when the information in question is irrelevant or its consideration improper. But no one seriously disputes that a day care center needs to know about an applicant’s child abuse record, a trucking company about DWI convictions, and so on. Indeed, the gist of the two torts is precisely that information about a person’s criminal record is more than merely relevant. It is “wrongful” or “negligent” for an employer to ignore it.

“Ban the box” delays news of an applicant’s prior record, springing it as a surprise while doing nothing to counteract its negative effects. An alternative approach is the certificate of employability, which is based on up-front candor, always a stronger foundation for a work relationship, while adding positive counter-information about the applicant. As championed by Professor Jennifer Doleac of Texas A & M University, the certificate procedure allows an ex-prisoner to ask a judge to certify his or her successful rehabilitation. Research shows that applicants armed with such certificates are called back almost as often as those with no conviction at all.

Moreover, the certificate procedure puts the burden of determining rehabilitation where it belongs, on the government that imposed the criminal record in the first place and which already employs many people with expertise in evaluating claims of rehabilitation, such as probation and parole officers and judges themselves.

But even the certificate procedure fails to address the fundamental issue. If our laws criminalized only acts of moral depravity, the mere knowledge of a person’s prior conviction would tell us something important about that person. But our criminal laws, and in particular our drug laws, condemn many acts that don’t reflect on a person’s basic moral character. We imprison many people who are dangerous mainly to themselves. That’s the underlying issue for which “ban the box” offers only a cosmetic solution.

Drug offenders are often victims rather than perpetrators. Who, after all, is drawn to painkiller use more than a person in pain? Many drugs of abuse, from methamphetamine to ketamine, are potent antidepressants. True, an addict who is still using cannot be trusted, just as an alcoholic in denial is a menace. But when such people get clean and sober, their rehabilitation is grounds for respect, not continued condemnation.

If our legislators were serious about reintegrating ex-offenders into society, they would take responsibility for their own creation of the problem. First they would provide released prisoners an opportunity to document their rehabilitation and declare the certificate of employability a complete defense to a claim of wrongful hiring. And then they would begin the hard work of reforming our drug laws. “Ban the box” isn’t even a baby step in the right direction. It’s just a gesture.

Joel Jacobsen is an author who recently retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at