Erasing the Mark of Cain: An Empirical Analysis of the Effect of Ban-the-Box Legislation on the Employment Outcomes of People of Color with Criminal Records

By Gubernick, Lucy | Fordham Urban Law Journal, August 2017 | Go to article overview

Erasing the Mark of Cain: An Empirical Analysis of the Effect of Ban-the-Box Legislation on the Employment Outcomes of People of Color with Criminal Records


Gubernick, Lucy, Fordham Urban Law Journal


"Criminals, it turns out, are the one social group in America we have permission to hate. "                                                --Michelle Alexander (1)  TABLE OF CONTENTS  Introduction                                          1154 I. Why Are Governments Banning the Box?               1157  A. Criminal Records in the Labor Market              1157 II. The Negative Credential and Race                  1164  A. The Legal History That Gave Rise to the Need for     States to Ban-the-Box                             1164   1. History of Federal Court Treatment of Disparate      Impact Challenges to Employers' Criminal Record      Policies                                         1164   2. Legally-Mandated Discrimination                  1175   3. The Rise of the Criminal Background Check      Industry                                         1178   4. Enter Ban-the-Box Laws                           1183  B. Reconsidering and Repositioning Ban-the-Box in     Light of Sociological Studies and Their     Political-Historical Context                      1190   1. Sociological Study on Race, Criminality, and      Employment                                       1190   2. Using Critical Race Theory and Critical Legal      Theory to Consider Ban-the-Box Law               1195 III. The Failures of Existing Data on Ban-the-Box     1200  A. Ban-the-Box Data from Minneapolis, Durham, San     Francisco, and New York City                      1200   1. Minneapolis, MN                                  1201   2. Durham City and County, NC                       1202   3. San Francisco, CA                                1203   4. New York, NY                                     1206   5. Summary                                          1208  B. A Proposal                                        1209 Conclusion                                            1211 Appendix A                                            1212 Appendix B                                            1213 Appendix C                                            1214 Appendix D                                            1214 Appendix E                                            1215 Appendix F                                            1215 

INTRODUCTION

In May of 2015, Judge John Gleeson of the Eastern District of New York expunged the conviction of Jane Doe, (2) a low-income mother of four, who had been sentenced to five years of probation more than a decade earlier for her involvement in an insurance fraud scheme. (3) At the time of her conviction Doe was working as a home health aide. Her criminal record had since made it impossible to find new work in her field. (4) In his decision, Judge Gleeson wrote, "I sentenced her to five years of probation supervision, not to a lifetime of unemployment." (5) In order to make the punishment fit the crime, the judge felt it necessary to erase the record of the crime ever happening.

There are over seventy million people in the U.S. with a criminal record on file. (6) Prison reformers have dubbed the criminal record "the mark of Cain" because of its indelible nature and its role as a justification for perpetual punishment--namely, exclusion from the economic and social spheres of American life. (7) This punishment is exacerbated by racial prejudice and the real and perceived connections between race and criminal justice involvement in this country. (8) Jane Doe is black and, in the decision, Judge Gleeson acknowledged her race as "even more of an impediment to her employment prospects than her conviction." (9) In the U.S. job market, race has effectively become a proxy for criminality. (10)

Sociologists have begun to draw attention to the racial disparities in both the population "marked" by a criminal record and the civic penalties inflicted on that population upon reentry into society. (11) Studies show that the criminal justice system acts as a manufacturer of inequality in the labor market. …

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