Broken Windows, Broken Systems: Policing and Fair-Chance Hiring Policies

New York City Police Commissioner William Bratton recently told The Guardian that hiring black officers is difficult “because so many of them have spent time in jail and, as such, we can’t hire them.”

The commissioner acknowledges that the police department has contributed to the problem through its rampant use in the past of stop-and-frisk. That practice disproportionately targeted black and Latino communities and, in Bratton’s words, resulted in the “population pool [of eligible non-white officers being] much smaller than it might ordinarily have been.”

The commissioner’s critics would go further, however, blaming Bratton’s “broken windows” policing strategy for continuing the problem. These kinds of policing policies, they argue, perpetuate and amplify the disparities that exist in arrest and conviction rates between white people and people of color. According to one study, more than 80 percent of those who received summonses for minor infractions in New York City were black and Latino. These disparities mean that people of color are more likely to be shut out of jobs when employers refuse to hire, or even consider, applicants with conviction records.

Bratton’s remarkable comments to The Guardian spotlight the systemic barriers that people with conviction records face in accessing employment. To tackle these job barriers, the New York City Council recently passed the Fair Chance Act, which was signed into law last week. This new law creates guidelines for when and how employers can consider conviction records. Now, all employers in the city must wait until they have selected an applicant as the best candidate for the job before they can inquire about that person’s conviction history. And if an applicant does have a conviction, the employer must consider how must time has passed and whether the offense is related to the job.

While the Fair Chance Act is great news for New Yorkers, most jurisdictions across the country don’t have policies to help individuals with conviction records access employment—and those that do often cover only public employers. And like many of these policies nationwide, New York City’s expansive new law exempts law enforcement from coverage. Such exemptions leave untouched blanket bans on hiring those with felony convictions, making any felony conviction an absolute bar to employment.

As Commissioner Bratton’s remarks highlight, these hiring practices can lead to police forces that are disproportionately white in comparison to the communities they serve. Furthermore, such policies are based not on rational analysis but rather on fear. By failing to evaluate the circumstances and time passed since a conviction—factors that the U.S. Equal Employment Opportunity Commission’s guidance recommends all employers take into account—a rote dismissal of anyone with a felony record is likely to weed out qualified applicants whose life experiences may in fact prepare them to serve their communities with greater understanding and compassion.

Police Commissioner Bratton and police departments around the nation need to critically engage with how their policies are roadblocks to a more just policing system—one that includes more members of the communities most touched by law enforcement.

Special thanks to NELP summer law clerk Amy Tannenbaum for her invaluable contributions to this post.