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Race & Justice News: Can Ban the Box Policies Result in Racial Discrimination?

May 17, 2017
Ban the Box reforms may disadvantage job applicants of color who do not have criminal histories, Brooklyn prosecutors protect immigrants from deportation over petty crimes, and more in Race and Justice News.

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Criminal Justice Reforms for Sanctuary Cities

Political leaders should end harmful criminal justice practices that criminalize poverty and send undocumented residents into the deportation pipeline, according to a new report by Harvard Law School’s Fair Punishment Project, the Immigration Defense Project, and the Immigrant Legal Resource Center. “Any contact with the criminal justice system that a non-citizen has, however small, creates a serious risk that ICE [Immigration and Customs Enforcement] will intervene,” the report states. However, even progressive cities claiming sanctuary status engage in ineffective criminal justice policies and practices, including “broken windows” policing, cash bail requirements, and harsh drug laws, which all increase the likelihood of ICE intervention. The report provides eight recommendations, including ending broken windows policing, considering immigration consequences in discretionary decisions, and ending all collusion with ICE.

Brooklyn Prosecutors to Protect Immigrants from Deportation Over Petty Crimes

While the Trump administration threatens to cut funding to police departments in cities that are not cooperating with ICE, the Brooklyn district attorney’s office has stepped up to protect the borough’s foreign-born residents. Under acting district attorney Eric Gonzalez, the office announced a new policy directing prosecutors to seek out guilty pleas without invoking federal laws that could lead to detention or deportation, reports The New York Times. The office will also hire immigration lawyers to train prosecutors on immigration law and advise them on individual cases, and notify defense lawyers about the potential immigration consequences of their clients’ cases. As Gonzalez explained, “We will not stop prosecuting crimes, but we are determined to see that case outcomes are proportionate to the offense as well as fair and just for everyone.”

Ban the Box Reforms and Statistical Discrimination

Some recent studies have found that Ban the Box reforms, which generally require employers to delay inquiring about criminal backgrounds, may disadvantage job applicants of color who do not have criminal histories. This is because in the absence of information about an applicant, employers may engage in statistical discrimination, assuming that black applicants—particularly young black men—have criminal histories because African Americans are overrepresented in the justice system. Most researchers advise caution in interpreting these study results. 

Mike Vuolo, Sarah Lageson, and Christopher Uggen’s recent Twin-Cities-based experimental audit compared employer callback rates for young African American male entry-level jobseekers who answered “no” to a criminal history question with those who were not asked this question. They found that African American applicants experienced a lower callback rate from employers who did not ask about criminal histories than if they could answer “no” to those who asked, although this finding was not statistically significant. They also found that the black/white disparity in callback rates was greatest when employers did not ask about records compared to when they did. The study was conducted before Minnesota’s Ban the Box legislation was adopted, and published in Criminology & Public Policy

Similarly, Amanda Agan and Sonja Starr’s study of New Jersey and New York City, described in a working paper, found that “the gap in employer callbacks between Black and White applicants grows significantly after Ban the Box.” Jennifer Doleac and Benjamin Hansen’s working paper reports that Ban-the-Box policies decreased the employment probability of young, low-skilled black and Hispanic men, while increasing employment among older, low-skilled black men and highly-educated black women. 

Cautioning that their statistically insignificant results have not yet been replicated in other settings, Vuolo and colleagues note that while policymakers must strike the right balance between leveling the playing field for those with records and not harming those without, they should also recognize the “large proportion of African Americans who do possess criminal records.” Agan cautions that while these studies identify a barrier to eventual employment, “neither study could analyze eventual employment outcomes, only initial callbacks.”

Reflecting on these findings and on Noah Zatz’s commentary, Naomi Sugie asks, “Instead of wavering on Ban the Box policies because of resulting racial discrimination by some employers, shouldn’t we advocate strategies that address both of these forms of discrimination”? The National Employment Law Project echoes these critiques. Doleac, in contrast, suggests repealing Ban the Box reforms and replacing them with employability certificates that only give employers more information about the candidate’s job readiness.

Wisconsin Documentary on Urban Agriculture and Re-Entry

A new short film explores how improving food systems can address the cycle of incarceration for individuals of color in Madison, Wisconsin, reports The Badger Herald. The film, “Break the Cycle: The Power of Food to Interrupt the Revolving Prison Door,” explains that black men make up 6% of Wisconsin’s population, yet comprise 52% of its state prison population. The film show how two South-Madison programs, Neighborhood Food Solutions and Nehemiah Center for Urban Leadership, equip formerly incarcerated individuals to engage in organic urban agriculture, helping them to reintegrate into their community while improving healthy food access. The film was produced by students from University of Wisconsin’s Nelson Institute for Environmental Studies as part of Building Food Justice Capacity in South Madison—a four-year community-university partnership.

State Police Dismiss Racial Disparities in Vermont Traffic Stops

Although a five-year analysis revealed clear racial disparities in Vermont State Police traffic stops, officials say they have found no instances of implicit or explicit racial bias after conversations with troopers, reports Vermont Public Radio. After conversations with the “outlier” state troopers, Captain Ingrid Jonas, Director of the Vermont State Police’s Fair and Impartial Policing Committee, concluded that troopers had reasonable explanations for the racial disparities in their stops. 

Since the original Northeastern University study, an analysis by University of Vermont economist Stephanie Seguino and Nancy Brooks of Cornell University found that after stops, black and Hispanic drivers had a higher likelihood of being ticketed, searched, or arrested compared to their white counterparts. However, searched white drivers were more likely to have contraband than their black or Hispanic counterparts. The American Civil Liberties Union of Vermont and lawyer Robert Appel, a member of the Fair and Impartial Policing Committee, suggest bringing in outside consultants to identify bias among the State Police. 

Incarcerated People in England Perceive Justice System as Unfair and Racially Biased

Based on focus groups with incarcerated people in an English prison, Catch22 reports that “both black and white prisoners, as a whole, consider the criminal justice system to show widespread racial bias.” Over the past year, researchers asked incarcerated people about their perceptions of fairness—particularly racial discrimination—spanning the breadth of the criminal justice system, from policing to legal representation, sentencing, prisons, and community-based sanctions. 

Study participants’ two greatest concerns were the lack of diversity among criminal justice practitioners and the lack of transparency in decision making. They believed that lack of diversity could lead to more racial stereotyping and discrimination against black and minority ethnic people. The researchers noted that opaque-decision making processes increased the likelihood of bias as well as its perception. The report was produced as part of MP David Lammy’s review into the justice system.

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