Employment Restrictions, Legal Cynicism, and Thwarted Desistance: Why Smart Decarceration Efforts Must Tackle Employers' Risk and Liability Concerns

Background and Purpose

Despite mounting support for “Ban the Box” and other post-conviction “equal access to employment” initiatives and policies, research suggests that for many former prisoners, positive employment status does not appear to impose a significant influence on offending and substance abuse patterns.  The assumed supervisory effects of prosocial employment institutions may be dampened if access to gainful employment is precluded by virtue of codified law.  It may also be the case that for many former prisoners, legitimate labor market participation is not worth committing to if a host of laws and authorities backed by legal institutions make investing in that an impractical endeavor.

Methods

This mixed-method study draws from: (1) official National Criminal Information Center arrest records to capture five distinct offending trajectories of 1,247 men and women observed between 1990 and 2008; and (2) approximately 300 narratives from that cohort of drug-involved, mixed-race, mixed-gender offenders originally released from prison in the 1990s, and interviewed in 2010 and 2011. 

Results

Findings illustrate how the intersection of background checking, at-will employment doctrines, and mounting risk-related insurance premiums within the private service employment sector, leads to legal cynicism among job-seeking former prisoners and complicates their reentry and desistance efforts.  Respondents across race, gender, substance abuse patterns, and offending trajectories, spoke at length about how the compounded strains of deindustrialization and joblessness, collateral sanctions, and unchallenged employer discretion complicate their job-seeking and job-keeping efforts.  Moreover, the extent to which respondents attribute those challenges to statutory and employment laws perceived to operate in opposition to reentry success, conditions their attitudes towards the legitimacy of legal institutions and capacity to desist from criminal offending.

Conclusions and Implications

The perception that one’s reentry challenges are connected to laws that do not serve them, may impose profound impacts on their sense of citizenship and ability to comply with the mandates of law and conventional social institutions. Those perceptions also introduce implications for recidivism and the willingness of community stakeholders to embrace citizens with criminal records.  Implications for smart decarceration theory, practice, and policy will also be discussed.