Conflicting Approaches to Addressing Ex-Offender Unemployment: The Work Opportunity Tax Credit and Ban the Box

Each year, roughly 700,000 prisoners are released from their six-by-eight-foot cells and back into society. Sadly, though, many of these ex-prisoners are not truly free. Upon returning to society, they often encounter several challenges that prevent them from resuming a normal, reintegrated lifestyle. For many, the difficulties associated with reentry prove to be too much, and within a short three years of their release, two-thirds of ex-offenders are rearrested, reconvicted, and thrown back into the familiar six-by-eight-foot cell. Recidivism might appear to be entirely the exoffenders’ fault, but ex-offenders are not solely responsible for these recidivism rates or the solution to this problem. Society must also understand and confront the challenges of the reentry process to “better serve prisoners, their families, their communities, and society at large.” The topic of ex-offender reentry is part of a much broader discussion of criminal justice reform. Many people are dedicated to reforming the criminal justice system as a whole. One example of criminal justice reform is the movement towards reducing mass incarceration and shifting away from the retributive focus of incarceration. There are also efforts to reduce the length of criminal sentences, as the recent reduction in sentences for some drug offenses demonstrates. The House Judiciary Committee is also involved in reform efforts in its work on several bipartisan bills aimed at reforming many aspects of the criminal justice system. However, these reform efforts will only truly work if ex-offender reentry works, and one key piece to successful reentry is the focus of this Note: ex-offender employment. Because an ex-offender’s unemployment status is the primary predictor of that individual’s likelihood of recidivating, this Note concentrates on the employment piece of the reentry picture. The majority of ex-offenders cannot find jobs after release from prison. The individuals returning to society face several barriers to employment, such as being less educated than the average adult, lacking work experience, and combating the stigma attached to having a criminal record. While the challenge of successful reintegration is multifaceted and not exclusively dependent on securing employment, strong policies directed at employing ex-offenders have the potential to make a meaningful difference, helping these individuals reenter society more effectively. This Note examines two current policies aimed at employing ex-offenders. First, this Note assesses the Work Opportunity Tax Credit (WOTC), a federal tax credit that private employers can claim for hiring individuals of certain target groups. One of these target groups is ex-felons released within the past year. This Note analyzes whether the WOTC is achieving its goal of encouraging employers to hire chronically unemployed individuals such as ex-felons and recommends how to improve the WOTC. The second policy this Note examines is “Ban the Box,” which aims to improve ex-offenders’ job prospects by requiring employers to remove the criminal history check box from job applications. Ban the Box legislation has recently received much attention in the press and in academic discussion because new research has reported that there are unintended negative consequences of the legislation. The research has found that while Ban the Box has successfully helped ex-offenders secure employment, the legislation has also led to increased discrimination of young men of color, including those without a criminal record. Given this negative research, this Note analyzes whether Ban the Box’s approach to the ex-offender unemployment problem is the correct one. Arguably, Ban the Box seeks to assist ex-offenders secure jobs by hiding their criminal history, whereas the WOTC seeks to assist chronically unemployed individuals by acknowledging their past. The two pieces of legislation appear to have contradicting ways of achieving the same goal. This Note attempts to begin the discussion on how to improve these policies in order to work together to serve the goal of employing ex-offenders. Accordingly, Part I explains the barriers that ex-offenders face when seeking employment and the consequences of not securing a job. This Note explains how being unemployed—and thus increasing the likelihood of recidivism—not only impacts the ex-offender himself but also his family and society in general. Part II evaluates one of two current policies focused on employment, the WOTC, and makes recommendations for improvement. Part III discusses the recent debate on Ban the Box legislation, and Part IV examines the interplay between Ban the Box and the WOTC. This Note explains how Ban the Box research further demonstrates the desperate need for changing employers’ hiring practices and argues that while the WOTC is not perfect, the WOTC’s overall approach is a better way of tackling this goal