One commentator says private employers can take action now to reduce the downstream effects on people who were formerly incarcerated. ban the box

One commentator says private employers can take action now to reduce the downstream effects on people who were formerly incarcerated.

This decade may mark one of the most significant shifts in popular thinking about criminal justice issues. Those shifts implicate every stage of the process, from policing, to charging and sentencing, to release terms, and to those many invisible penalties often visited on formerly incarcerated people.

There is no monolithic view of these topics. But there does appear to be growing consensus that a mass-incarceration and lifetime-penalty approach has not served society well.

Another example of that came in Saturday’s Arizona Republic, where attorney Mark Holden penned an op-ed recommending that private companies voluntarily adopt ban-the-box in their hiring practices.

Don’t know what ban-the-box is? Here’s Mark:

Mark Holden, GC and SVP of Koch Industries

Mark Holden, GC and SVP of Koch Industries

“Right now, most employers require job-seekers to check a box on an application if they have any criminal record. Too often, this can function as an automatic ‘application denied’ for individuals with a blemish in their past.”

“Nationwide, some 650,000 incarcerated individuals rejoin society every year, and they desperately need jobs to help them transition back into society and to provide for themselves and their families. But the criminal record box often shuts them out of the job market before they can get a foot in the door.”

You can read his entire piece here.

(In an awkward headline difference: The print version is titled simply “Ban the Box: Have You Ever Been Convicted of a Crime?” Meantime, the online version has the pretty inflammatory headline “Arizona businesses should hire felons (or at least stop immediately asking them about their records)” Um, not quite, Arizona Republic. But nice try.)

What makes this especially interesting is Mark’s day job—he is the general counsel and senior vice president for Koch Industries. Yes, that Koch Industries, of the famed and very conservative Koch Brothers.

Felony convictions have a significant and long-lasting effect on the economy.

Felony convictions have a significant and long-lasting effect on the economy.

Understand, as Holden makes clear, Ban the Box does not mean employers entirely omit the felony question from the hiring process. But instead of being asked the moment an applicant begins the process, the question is delayed until later in the process—by which time an employer may have found that the person’s skills and personality are a great match for the firm.

This stance is another indicator that the chasm between viewpoints may be shrinking a bit between civil libertarians and those concerned about the massive costs society incurs when incarceration effects continue long after a person is released from prison.

If you have a view into the downstream effects of incarceration, I’d like to talk to you for a possible story. Write to me at arizona.attorney@azbar.org.

Today, the Ninth Circuit made an intriguing ruling—not so much for its conclusion, but for its rejection of a certain portion of the state’s evidence. Do you agree?

In Breiner v. Nevada Dep’t of Corrections, the Court held that Nevada’s refusal to allow men to serve as correctional lieutenants at a female prison violates federal law. The result is that Nevada may not restrict to only women eligibility for promotions to supervisory positions at a female prison.

Here is the summary:

“In 2003, an inspection at the Southern Nevada Women’s Correctional Facility demonstrated that inappropriate sexual relationships between women inmates and male guards were frequent. In response to this problem and the media firestorm it caused, the State of Nevada decided that only women could be promoted to supervisory lieutenant positions at the facility. Several male corrections officers applied for the lieutenant positions and, when rejected, sued under Title VII of the federal Civil Rights Act of 1964. The federal district court for the District of Nevada (Dawson, J.) concluded that, because they could apply for other lieutenant jobs at other facilities, and because Nevada had lawful reasons for restricting the promotions to women, its policy was lawful. The Ninth Circuit reversed. Just because other promotional opportunities remained open to men, it reasoned, is not sufficient to permit Nevada to restrict certain promotions to women only.”

So far, I thought, it’s a moderately interesting case. Sure, some people may be pleased (and even surprised) at seeing the Ninth Circuit protect the rights of male workers as well as female workers. But a straightforward application of the law, especially when it protects any rights, is just a day at the office for the Circuit.

Reading further, though, I came across the Court’s reasoning in regard to the State’s position:

“Moreover, the district court’s determination that Nevada had good reasons to restrict the promotions at the all-female facility to women was flawed. Nevada argued that female lieutenants would be less likely to tolerate sexual misconduct by corrections officers and more likely to understand the needs of female inmates. The Ninth Circuit concluded that such claims rested on unproven and invidious gender stereotypes.”

Unproven and invidious? Maybe, but I might have expected “unproven and complimentary,” or “unproven and salutary.” I do understand how stereotypes, even “positive” ones, often serve as an obstacle to understanding and advancement (like the “model-minority myth” that Asian Americans must struggle with). Nonetheless, the phrase made me pause.

Though I cheer any ruling that makes the employment world a more equal place, I wondered about the evidence.

Could the State have proven up that part of its case? Does sharing the same gender—even across an officer–inmate divide—mean anything at all? And is there any way to determine who “would be less likely to tolerate sexual misconduct”? Is it at all possible that people at increased risk of being the brunt of such behavior might, I don’t know, get it more?

Maybe the Court was absolutely right, and such thinking is retrograde. But isn’t one of the benefits of our generation-long transformation to a more diverse workplace that when you gather people with multiple experiences, you get responses and outlooks that are multiple? That transformation has been a great and welcome one, and we still have quite a ways to go. But that evolution is premised, at least in part, on the notion that we shouldn’t hire people who are identical to ourselves if we want better results.

America has learned that difference is very important to the workplace. But important how? (as I’m sure Nevada wondered).

It’s quite likely I’m missing something here, so what do you make of this case? Could women corrections officers bring different and valuable insight to the job?

The opinion is available here.