In the past, standard employment application forms almost always included a question asking about the applicant’s criminal record. Recently, however, some employers have begun using forms that do not ask that question. Instead, they give otherwise qualified applicants a chance to explain their criminal histories in detail at a later stage in the application process. Retail giants Walmart and Target have adopted that policy, and so has Koch Industries, a Wichita based multinational corporation that employs over 100,000 people, including more than 60,000 in the United States.

Last month, general counsel Mark Holden discussed Koch’s decision to ban the box (BTB) in an opinion piece in the New York Times:

Having a job is a major factor to leading a fulfilling life. So much so that it can prevent individuals from getting caught up in the criminal justice system in the first place. A job is also vital in keeping people who have served their time from once again getting caught up in the system….

Capable and qualified individuals who want an opportunity to work hard and contribute to the community should not be rejected at the very beginning of the hiring process. For employers seeking the best talent, it makes sense for a company to consider all factors, including any prior criminal record, in the context of the applicant’s other life experiences. To do otherwise would be unfair to individuals seeking redemption for prior mistakes.

It is also short-sighted from a business perspective. An estimated 70 Million adults in the United States, or one in three, have some type of criminal record. Considering these statistics, it doesn’t make sense to reject an individual at the outset of the hiring process based on a past mistake, especially given the imperfections of the criminal justice system.

Banning the box has worked well for Koch Industries and has led to the hiring of individuals who are productive and dedicated employees. It’s also a proven way to remove barriers to opportunity for all Americans, help people improve their lives and keep our communities safer. Other employers should consider doing the same, but the decision should be free from government influence or mandate. Ultimately, the decision to ban the box should only be made by the employer based on the specifics of its business.

This is sound advice. While many ban the box advocates want states to impose the policy by statute, doing so is counter-productive. The risk of employing someone with a criminal record varies greatly from employer to employer, and so does the employer’s capacity to mitigate that risk by making a detailed, individuated assessment of each prospective employee. Imposing a one-size-fits-all solution on every employer is bound to lead to unintended and undesirable consequences. In fact, several recent studies suggest this may already be happening in jurisdictions that have implemented ban the box laws.

In June, the University of Michigan published a paper by Amanda Agan and Sonja Starr that found:

Withholding information about criminal records could risk encouraging statistical discrimination: employers may make assumptions about criminality based on the applicant’s race. To investigate this possibility as well as the effects of race and criminal records on employer callback rates, we sent approximately 15,000 fictitious online job applications to employers in New Jersey and New York City, in waves before and after each jurisdiction’s adoption of BTB policies….

Our results confirm that criminal records are a major barrier to employment, but they also support the concern that BTB policies encourage statistical discrimination on the basis of race…. We find that the race gap in callbacks grows dramatically at the BTBaffected companies after the policy goes into effect. Before BTB, white applicants to BTBaffected employers received about 7% more callbacks than similar black applicants, but BTB increases this gap to 45%.

In July, University of Virginia public policy professor Jennifer L. Doleac and University of Oregon economics professor Benjamin Hansen released a working paper that reached a similar conclusion:

In this paper, we use variation in the details and timing of state and local BTB policies to test BTB’s effects on employment for various demographic groups. We find that BTB policies decrease the probability of being employed by 3.4 percentage points (5.1%) for young, lowskilled black men, and by 2.3 percentage points (2.9%) for young, lowskilled Hispanic men. These findings support the hypothesis that when an applicant’s criminal history is unavailable, employers statistically discriminate against demographic groups that are likely to have a criminal record.

In response to these studies, some ban the box advocacy groups have recommended supplementing BTB laws with more rigorous—and more rigorously enforced—anti-discrimination laws, but that recommendation fails to address the underlying cause of problem and would, if anything, make matters even worse. The reason more than 70 million Americans have criminal records is that we already have too much law and too much law enforcement. Solving that problem requires less of those things, not more.

When implemented in good faith by willing employers, ban the box policies can help mitigate the harm caused by overcriminalization. However, the decision of whether to implement such a policy should be left to the individual employer and not imposed by statute.