Does discrimination based on criminal record make good business sense?

During the week of February 2, Professor James Jacobs posted a series of opinion pieces on The Volokh Conspiracy blog to promote his new book on criminal records.  The basic argument advanced in these pieces, which condense the final two chapters of the book, is that “criminal record based employment discrimination is neither immoral nor illegal.”  While I am not a lawyer, and leave it to my colleagues Sharon Dietrich and Adam Klein to speak to the legal arguments in Professor Jacobs’ pieces, I believe I can speak to the public policy implications (if not the morality) of his position.  That I myself have a criminal record, am now an employer, and have spent 13 years since exiting prison working on these policy issues, ought to be considered by anyone who reads what I have to say.

In his opinion pieces, Professor Jacobs argues that private employers should not be compelled by government to “ignore job applicants’ criminal records,” or “subordinate their own organizational and financial interests by adopting a pro-ex-offender employment policy.”  Having set up these straw men, he proceeds to attack them by arguing that employers actually have legitimate business-related reasons for refusing to employ people with a criminal record.   To make his case, he marshals an army of stereotypes, generalizations, and non sequiturs.   Consider this paragraph:

A rational employer wants the best qualified and motivated workforce at a particular price, not a minimally qualified workforce. While an employer may be hiring for a particular job, it cannot be faulted for aiming to hire individuals who can move into other positions if and as needed and to be promotable in due course. Therefore, the job applicant’s honesty, reliability and self-discipline will practically always be relevant, indeed extremely important. Likewise, the relevance of a particular conviction to a particular position will often be beside the point.

While it is hard to take exception to the first three sentences, the concluding “Likewise” sentence reveals their barely concealed message:  People with a criminal record are generally less promotable, less honest, less reliable, and less disciplined than people without one, so it is reasonable for an employer to refuse to employ any individual with a record without regard to whether “a particular conviction [is relevant to] a particular position.”  In effect, he is willing to assume for the sake of efficiency that the undesirable traits of some members of the class (a class that, by the way, includes 25% of all adult Americans) are shared by each individual member, and act on that basis.

His position is simple: Private employers should have unlimited discretion to reject people based on criminal record because this makes good business sense.  And because it makes good business sense, it is “not immoral.”  This reasoning is grounded in a libertarian ideology that values private autonomy over the public good.  It is premised on assumptions that are deeply unfair to people who have worked hard to overcome the stigma of a criminal record.

He even goes so far as to propose that “it could be persuasively argued that public policy should favor treating a clean criminal record as a plus factor for public and private hiring, a kind of benefit to reward and encourage good citizenship.”

Professor Jacobs makes liberal use of rhetorical questions (“Is it wrong to make a moral judgment about a person who tortured animals or brutalized a child or old man?”) and unfounded assertions (“Today’s burglar was yesterday’s drug dealer. The person who today was charged with assaulting his girlfriend yesterday used a stolen credit card.”) to paint a one-sided picture in which the possibility of rehabilitation seems remote.  Innuendo and stereotype are poor substitutes for evidence and nuance, particularly when the “research” on which they are said to be based is not identified (and may not exist).  In confining his examples to the margin, Jacobs would consign everyone with any kind of criminal record to an outlaw class of career criminals who are beyond redemption.

Professor Jacobs’ evident beliefs about the immutable negative character traits associated with having a criminal record make me wonder if he has had any meaningful contact with people who have turned their lives around after conviction and become productive members of society.  He discounts the fact that good people sometimes make bad choices, that most people are capable of improvement given the right encouragement, and that the passage of time is a significant factor in evaluating the likelihood that a person will repeat past mistakes.  Surely it makes better public policy sense to create an environment where change is encouraged, than to license the blacklisting of an entire class of people without regard to individual circumstance.

The extreme nature of Jacobs’ position becomes even more apparent when he defends discrimination based on criminal records that are inherently unreliable, like those of arrests that were never charged, charges that resulted in acquittal, or cases diverted out of the justice system entirely.   As he sees it, it is perfectly reasonable (and more efficient) for an employer to assume that anyone arrested for a crime is in fact guilty of that crime:  “If an employer can base its hiring decision on a previous employer’s suggestion or hint that the job applicant had been dismissed for dishonesty, why not on an arrest that was dismissed or even resolved by an acquittal?”  Moreover, “[i]t would be a mistake to infer that an arrest that did not lead to a conviction was improper” because “[t]he most likely reason for dismissal of charges is the victim’s unwillingness to testify.”   Given what we know about police practices, it would be at least as mistaken to infer that an arrest that did not lead to a conviction was proper, and a failure to charge likely indicates insufficient evidence of guilt.

Professor Jacobs claims that he wants to see private employers embrace more expansive hiring policies, he simply doesn’t believe that they should be legally required to do so.  But this claim is disingenuous.  His position is based not on the principled ground of freedom of contract, or even on potential exposure to negligent hiring lawsuits, but on substantive judgments about the likely performance in the workplace of people with criminal records.  If this is the real reason, it is hard to see why his objections should be confined to the private sector.  Why should any employer – why should we as taxpayers – want to pay a salary to people who are “dishonest, unreliable and un-self-disciplined?”

If Professor Jacobs’ opinions were fact, I wouldn’t want to hire myself.

There is another approach to these issues, and one that thankfully appears to be prevailing in policy circles when discussing how to deal with the massive problem of criminal records produced by three decades of over-criminalization.  That approach holds that social policy should be based on facts not stereotypes, that the legal system should embody individualized fairness, and that moral values should derive from something beyond the marketplace.  I share those beliefs.

I hope to find that Professor Jacobs’ distillation of his book chapters for the Volokh blog produced a distorted result, and that his bottom line position is a more balanced one. I have ordered a copy of his book and will soon see.

Glenn Martin

Glenn is Founder and Chief Risk Taker of Just Leadership USA, an organization dedicated to cutting the US prison population in half by 2030, and empowering people most affected by incarceration to drive policy reform. Prior to founding JLUSA, Glenn served for seven years as Vice President of Development and Public Affairs at The Fortune Society and six years as Co-Director of the National HIRE Network at the Legal Action Center. Before that, Glenn spent six years in New York state prisons where he learned that those closest to the problem are closest to the solution.

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