Criminal Justice

Penn. Court Says State Can't Block Folks from Some Jobs Forever Entirely Due to Criminal Record

Lifetime ban ruled a violation of due process.


Because the important thing here is to make sure you've never bounced a check before.
Credit: ulrichkarljoho / photo on flickr

A modest but important win for occupational liberty in Pennsylvania. Today its Commonwealth Court judges (that's a step below the state's Supreme Court) ruled unanimously that a state law that forbids people with any criminal past from getting jobs in nursing homes and long-term care facilities is unconstitutional.

National Public Radio, which had been exploring the impact of these kinds of laws, describes the ruling:

By a vote of 7 to 0, the court found the law violates the due process rights of otherwise law-abiding people who may have run afoul of the justice system decades earlier. The court also concluded that a lifetime ban on employment for people convicted of crimes is not "substantially related" to the "stated objective" in the Older Adults Protective Services Act—to safeguard the elderly.

The vagueness of these laws, and the lack of any relationship between the crimes and the occupation involved, has been a big problem from countless Americans with records of very old or not particularly significant crimes. NPR offers up an example:

The ruling represents a victory for plaintiffs like Tyrone Peake, featured in an NPR story in April.

Peake was arrested with a friend in 1981 for trying to steal a car. Peake never got behind the wheel, but he was convicted of attempted theft of an automobile and served three years of probation. The case became a black mark that prevented him from working full-time as a drug counselor for decades.

"I've been fired from three jobs," Peake told NPR, "because [of] having a criminal record. And my record is like 32 years old, and I haven't been in trouble since then."

NPR notes that other plaintiffs in the case had convictions for crimes more than 15 years old and had been clean since then. But they were still subject to a complete lifetime ban on holding these positions. There's something particularly twisted about having these kinds of bans that make it impossible for people in this situation to work in many different fields, closing off dozens of avenues for legal economic success, and then to also worry and warn about possible recidivism.

The state's attorney general is reviewing the opinion, according to NPR. They did defend the law in court. There was no word yet on whether they would be considering an appeal to the state's Supreme Court.

(Hat tip to the Reason Foundation's own Lauren Krisai, director of criminal justice reform.)

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  1. Don’t worry, they’ll just get denied employment based on a constitutional reason TOTALLY UNRELATED to their criminal history…

    1. Such as a 6 month employment gap 33 years ago?

  2. And proggies claim they are the compassionate ones, and libertarians are cold-hearted, in this case as in occupational licensing, zoning, minimum wage, and a zillion other police powers.

    At least hard core conservatives don’t claim to be compassionate when they fuck people over.

    1. It’s because there’s always an underdog they can claim is hurt.

      In this case, the courts in Pennsylvania are obviously anti-old-people. This will mean that every thug will immediately put away their crime shorts and apply to take care of septuagenarians for a quarter of the pay just to rob another quarter of their illegal income and we are now powerless to stop it because fraud and/or abuse still aren’t illegal.

      1. Sarcasm and hyperbole, btw.

      2. OT a bit: I’ve never understood why fraud itself is a crime. If the fraud is in support of a real crime, like theft, assault, murder, then what difference does it make that fraud was involved? If I con you out of $100, or pick your pocket, or hold you up, what’s the difference in having been done by fraud?

        And if the fraud results in no harm, why does it matter?

        Suppose I brag that my hot rod can do do 0-60 in 4 seconds and hit 200 mph. If that’s the end of it, the most I’ve gained is temporary gasps of awe. If someone offers to buy the hot rod and I demur, again there has been no harm. But if I agree to sell it, and it turns out I lied, then the harm was the purchase price, not the fraud.

        1. The harm was the purchase price, but it was the deception that caused it. Effectively it’s false advertising, since you made a profit based on a false claim (of course if anyone believes that your Ford Fiesta can break 200…).

          I suppose you could argue civil vs. criminal, but in the end, it was the fraud that caused the harm in the first place. Venturing into the land of the absurd, it’s akin to saying that the harm from armed robbery is simply losing your wallet, and having a gun pointed at you was irrelevant.

          1. If the fraud results in harm, then that harm is where the restitution comes in. If the fraud does not result in harm, then what restitution is there?

            Now throwing a gun into theft differs in that it elevates the appropriate response; if someone simply asks for your wallet but makes no pretense of having a gun or threatening you or even raising his voice, shooting him may be excessive and possibly unjustified. If he shows a gun, or makes a finger in a pocket look like a gun, or says he has a gun, or uses an unloaded gun, or has an airsoft which looks like a gun, that is probably fraud too, but tough luck for him that his fraud is immaterial to a shooting response.

        2. Because civil law is a tool to extract large sums from deep pockets, and criminal law is a tool to protect stupid people from other stupid people.

        3. The way it was explained to me a long time ago was: The difference is that “Fraud” was originally targeted as an advantage over someone/others (think: cheating) and not necessarily theft-by-lie. It has expanded into the “theft” statutory territory simply because that’s the idea that most people can imagine.

          An example of the original purpose of fraud (it’s a terrible example, but I’m not creative enough to defraud 😉 ): You take your “0-60 in a quarter second” and “200 mph” hot rod to a car race. You make those lies and then toss in that it is so fast that the asphalt will rip up and slam into other drivers’ cars. They resign from the race ticket because they don’t want to risk damage to their extremely expensive cars and you get the pot by default without a race.

          That is fraud while not technically theft – you didn’t take someone else’s money after they won and you didn’t take the lockbox from the track. They were given to you because you were the only racer entered. But you defrauded the other racers by making claims that were false and which gave you an unfair advantage.

          It grew into lie-by-theft over time because of how close that is, conceptually, to going “Buy my cancer cure! $350 a vial!”

          1. That’s an interesting example. I don’t know if I would call that theft. Part of it is your example, but I ran into that same problem time and again when I was trying to figure out why fraud should be a crime. If the other racers were so intimidated that they withdrew, then the real problem was that they didn’t go to the race organizer and complain about the dangerous entrant, so if they bail out instead, it really was their fault at letting themselves be intimidated.

            I spent a lot of time trying to come up with scenarios where the fraud itself was harmful, and it always came down to someone being intimidated or not standing up for themselves. It’s sort of like real con artists who brag that they only steal money from people who were looking to get something for nothing in a deal too good to be true, and I just couldn’t work up enough sympathy to call it actual harm.

            1. It’s not theft……Which is why I specifically said “That is fraud while not technically theft – you didn’t take someone else’s money after they won and you didn’t take the lockbox from the track.” It is fraud, but not theft. E.g. gaining an advantage by falsehoods.

              And while you think they should stand up for themselves to prevent harm, most of the non-theft-by-lie fraud is on people who have mental difficulty, such as the elderly. I know it’s hard for you, an ostensibly clear-minded and healthy individual, to see that day coming, but there will be a time when you are both easily confused and frail.

              On your argument, though, you miss a real detail: What if the track is libertarian? Come one come all, the risk is on you and not the track. They won’t interfere with the contestants because that’s not their place to let you run to them and complain that your cost:benefit ratio isn’t what you want it to be and that they should fix it like a good government daddy?

              1. On top of that, ignorance is why fraud is treated as an after-the-fact issue. You hear this guy bragging and you want a redress. Do you have the time to go and wage a complaint battle before the race? Do you have someone you can actually go complain to who might have the authority to eject the person from the race or all they all PFTs making 12cents an hour who can sell you pop-corn and that’s it?

                Of course, they should have stood up for themselves holding a US flag in one hand and an eagle in the other while fireworks went off in the background. But in real life, people rarely have time to set that stuff up. 🙂

                1. Most crimes are discovered after the fact. Even a face-to-face mugging is only reported after the fact. How does fraud change that? If fraud helped cover up the crime, then it is evidence of the intent to commit the crime and helps prove it. Why then punish the fraud itself? Or to put it another way, if you can punish the fraud the covered up a crime, whether it was before or after the crime, how can you not also be aware of the crime itself and punish that?

              2. I said I didn’t think of it as theft.

                If people can’t stand up for themselves, then they need guardians.

                Libertarian doesn’t mean chaotic. If people go to a chaotic race track, ie no rules, then how can there be fraud? If they go to a race track with rules, and the rules allow dangerous entrants which can blow up or damage other entrants, then where is the fraud?

                Like I said, I spent a long time trying to think of scenarios where the fraud itself constituted harm without being merely in pursuit of other harm, and I couldn’t. If the fraud does not result in harm, then why punish it? If it does result in harmm, then punish the harm, with the fraud merely being evidence of mens rea.

                1. The fraud is when a lie was used to give them an advantage. That is the definition of fraud, avoiding the theft-by-lie interpretations. They alter the C:B calculations of other racers in this example to their advantage via lies. If they didn’t actually have a car that would damage the others’, he used fraud to get ahead.

                  Now, if you want to say that they weren’t actually harmed, I disagree. They were robbed of their freedom to participate – which is one of the few things I think should be a universal law. Theft of freedom is never okay.

                  Let me put this into another situation: You ask a cop if it is illegal to light up a joint in the police station and he says “No.” Assuming you don’t live in the newly-legal jurisdictions, he then arrests you for possession after you whip out your joint. You have lost your freedom to participate (in society in this case) via fraud. You were given information that created a disadvantage for you. I don’t believe in this situation that we should take fraud off the table simply because it also resulted in entrapment. Or, because the fraud resulted in identify theft. And so forth.

                  In terms of your “I said I didn’t think of it as theft.” I was pointing out that It’s not. It’s fraud and not theft.

                  1. As for people who can’t stand up for themselves, the guardians are often the ones who perpetrate the theft from (and potentially defraud) them. After all, a guardian needs to have complete access to someone’s medical, financial, and even, in many cases, home life to properly care for them. Unless you want some horrible bureaucratic nightmare to watch the watchers (note that we have a lot of this nightmare already….and it still fails to prevent this sort of thing) this is going to happen.

                    1. Once again, fraud by a guardian against their ward is not a crime independent of the theft or assault.

                      I have not yet seen any case where fraud is a crime in and of itself, where it alone causes harm. It is always mere evidence of mens rea.

                  2. But the race analogy falls apart because all games and sports are competitive, and bluffing is part of the deal. If the bluffing includes threats such as the example, that is a matter for the race organizer. If the other racers give up for ordinary bluffing, that’s their problem. If they believe the threat but would rather quit than tell the organizer, what else can any one do?

                    If the cop lies to you and busts you for believing him, the harm is quite obviously the bust, but that’s a pointless analogy in a police powers state.

                    I repeat: I have not yet found any case where the fraud alone constitutes harm. Every example I have seen or thought of is merely evidence of mens rea in the actual crime.

                    1. I can accept that fraud is mens rea…..but mens rea-only is a crime elsewhere. I mean, if mens rea shouldn’t be a crime, then why is attempted assault or attempted murder a crime? Those are only evidences of mens rea. If the assault or murder isn’t actually performed, who cares if the wife tries to hire an undercover to beat/kill her husband, right? The intent wasn’t carried out, so there is no crime.

                      I walk onto your property with an AR15 pointed at you and you shoot me down….except that mens rea isn’t a crime. You had to wait until I fired (ostensibly resulting in your death before you could fire), so you should go to jail for murder instead of properly being released for self-defense and/or castle defense.

                      Mens rea was part and parcel to our system of justice. The problem is that we have gotten away from it. (Many crimes and regulatory offenses no longer include mens rea, creating a huge number of ridiculous convictions by our government.)

                      To the bust, I don’t think it’s a pointless analogy. You were defrauded of your freedom. The fraud provides mens rea by the police to entrap you. If he was actually mistaken on the law, it’s no longer entrapment. Without the crime of fraud, you have no crime of entrapment. So why would we take Fraud away?

                    2. A threat is a threat, and appropriately dealt with before it becomes unavoidable. If I plot to cause harm, but it never comes to the threat stage, what harm has been done?

                      Why add fraud to the punishment when the harm itself is the crime? When I said the bust analogy was pointless, I meant it only comes into play in a state with police powers to create victimless crimes. The enforcers are by definition untrustworthy; anybody fool enough to rely on an enforcer for legal advice is a fool, but supposing the state did have a law requiring cops to always tell the truth; the lie would be sufficient to throw out the arrest as entrapment. By pointless, I meant relying on state enforcers, who are legally able to lie their ass off (ie, commit fraud), for the truth as regards illegal victimless crimes, is senseless and ridiculous, and has nothing to do with fraud as mens rea.

                    3. I think you missed my point. A threat is considered mens rea. Why is deceit not, to you? In the first situation I outlined above, a wife hired an undercover to beat/kill her husband. Thus, no harm was to ever come to her husband, which means there was no threat. So there was no crime here, right?

                      A threat is used as evidence of intent. In the race car analogy, the threat of damage/bodily harm is a threat. It’s a threat by deceit and not a threat by an AK47, but the threat is still there.

                      In my opinion, either intent is a crime or it isn’t. Picking each situation where various forms of intent are picked out like we already do creates nothing but judicial nightmares, as you can see in your obvious distaste for victimless crimes and the miscarriage of justice they already enable. Basically, if you intend to commit a crime and fail by reason of circumstance, you are guilty of the crime of intent. Fraud is only a crime of intent, like threatening random people with a gun or threatening to assault or murder someone.

                      It might suck for cases like the race track to prove intent (he could just be really gullible and dumb and bought that Ford Fiesta 20 minutes before the race and bragged based on the salesman’s lies….or something else equally ridiculous) but should they be able to prove it, he is guilty of the fraud.

              3. “I know it’s hard for you, an ostensibly clear-minded and healthy individual, to see that day coming, but there will be a time when you are both easily confused and frail.”

                That day comes and I’ll be packing my forty-four day and night and won’t hesitate.

                My father started out that way and did pretty good. When they convinced him he was too elderly and senil to continue to go armed, he suddenly had permanent company talking him into signing over this or that or paying for something for them.

                My mother was right. A man’s got to stand up and take charge of his affairs, whether he’s old and frail or retarded and halt or whatever. It doesn’t amount to six piles of owl manure: he’s still a man, for all that. And all the fuck best anybody can do is his best. There no fucking way to righteously declare some folks incompetent and throw them in chains. That, of course, is only a minuscule part of the problem. The mainest part there is folks’ willingness to go along with the pretense that their debts, their honour, and their responsibility can somehow be abalienated to some third party wise guy.

                I seen a lot of people fucked by this stupidity, and worser than being dicked out of their SS checks or whatever is the shame that attends to the lie. And as far as that day coming… for me, it’s coming pretty fucking fast, so it’s not some unreal abstract thought experiment I’m working on.

          2. To add to that, again recognizing that your example may not be the best — bluffing is part of every sport and game, and people who can’t tolerate it should stick to time trials and setting records instead of person-to-person competition. Look at poker, where lying and bluffing are expected, although outright cheating is not. How many monopoly players like to hide their money or minimize how much they really have when the bicker over trades? Most would consider it cheating to take your money and property cards off the table, but not to simply stack your money to minimize it.

            I tried for a long time to find ways that fraud itself could be harmful, and never could. Either there was no measurable harm, or the harm itself was enough and the fraud was only evidence of intent, which matters only in that naive negligence shows a lack of mens rea, unless the naivete was intentional, in which case it turns right back into wilful intent and mens rea.

            1. How about lying about your competitors’ products or service?

              1. There’s a huge gray area between lies and truth. Suppose you say that your competitor’s furniture is made of thinner wood, implying it is fragile, and leave out that the wood used is stronger and held together better?

                Or the old joke about the first mate who hates his captain for no good reason, and adds a log entry one day, “The captain was sober today.”

                Both of these are true, yet also fraudulent. It is impossible to be fair as relates to fraud. You have to leave it to the parties to combat lies with truth.

                And how much harm was done? Can you prove how many sales you lost due to your competitor’s lies? Can the captain prove he was blackballed because of that first mate’s log entry?

                These also assume a reputation so fragile that a scumbag could ruin it. A long standing furniture store with a good reputation would not be easily ruined by someone else who lives by lies and deceit; the public is not that gullible. A first mate who could hate a good captain that much would not have a good enough reputation to ruin someone else that easily.

                Lies and deceit only work where there is fertile ground. It’s like an election won by one vote — either way, half the voters will be unhappy, so you may as well flip a coin as recount.

                1. For “fertile ground” I have to opine that no, this is not true. Not only do people operate on the idea that what they see and hear is mostly correct and then filter it through a lot of confirmation bias, but people care more about their convenience than ideals. Everyone knows that WalMart sells cheap and horrible crap and that they treat their employees like pond scum they are trying to bleach away. Lo and behold, WalMart is still the largest retailer, despite this information being generally known for several decades. And before that, they were known to drive out mom and pops, which was terrible….In theory. But hey, WalMart sells twice the toilet paper for half the price!

                  This is repeating itself with Amazon slowly getting more and more convenient and eating WalMart’s mindshare, too.

                  On the other hand, a couple of incidents of news-blown-up stories that aren’t true make people and then states and cities try to regulate entire sectors of business. Anyone see that Reason expose on the NYT nail salon articles? Half of NY is clamoring for this regulation because they only read the NYT information and not any counter information. The other half doesn’t really care and will go along with the regulation. Why? Because they assume that what they read is basically correct with no additional research. A thin sliver of rational people who are either informed about the nail salon industry or pursued additional details sits in between those two larger segments.

                  1. I don’t like WalMart, but my experience does not match yours. Markets drive inefficient businesses out and provide the excess labor, capital, and other resources for creative destruction which enables progress.

                    If people are as dumb, naive, and ignorant as you think they are, who do you think should protect them — the elites in the form of government?

                    People are far more adaptive than you give them credit for. They couldn’t survive otherwise. If WalMart really did provide shoddy products, people would be burned once, twice, even thrice, but sooner or later would shop elsewhere, even at higher prices. Plenty of competitors have gone out of business for providing inferior products, and you ought to have more faith in both people and markets to work in the long run.

                    I repeat: show me one clear example of fraud itself causing measurable harm independently of any other harmful crime. Police state victimless crimes are not acceptable.

                    1. This is a separate discussion from the fraud one.

                      To people being dumb, naive, and ignorant and needing protection, what is this? Preschool? Noting the way most people operate doesn’t mean they shouldn’t have to learn from their mistakes. And people adapt all the time – but they adapt to specific drivers in their specific mind sets and don’t easily change from that track. If you want proof, look at everyone who believes in a political reality despite the evidence showing their ideology to be flawed. People who use anecdotal evidence to drive their belief system and reject all evidence to the contrary simply because they don’t want to. Sure, they adapt….to keep their world view despite evidence to the contrary.

                    2. And, despite being burned multiple times by shoddy craft, they are still shopping there – all for different reasons. If you are in the “poor” category, you have an opportunity cost that you can’t overcome that forces you into the cheaper merchandise, even if it’s going to burn you and you know it. An example: You can buy cheap boots for $30. They will last you 3-4 months and then the poor quality will catch up to you when you buy another set of boots. If you are poor and need those boots to work, you throw that $30 “hump” into your normal purchases without much disruption, if any.

                      On the other hand, a decent pair of boots will cost you about $100 and last you 18-24 months. The “poor” in this case spends $35-60 more in boots over the 18 to 24 month time span than someone who could pay the higher cost. Their rational best interest is to eat ramen for a week and buy the good boots – and many single workers will even do this. But once a family is involved, it’s a lot harder to take the rational best interest. And this is only a single situation, many many more can come into play.

                      The only way to overcome this is by everyone having access to perfect information, which is hard for those of us who care about such things and spend lots of time on it. This is why the businesses like WalMart won’t go away because of market pressures to stop selling complete crap, as they haven’t in the 50 years they’ve been around. Their lunch will go to the next more convenient business instead.

                    3. And I must note that this isn’t a condemnation of a free market. I simply believe that the free market isn’t the end-all, be-all. It’s preferred because it’s, so far, the best system that will distribute the most capacity and capability (both in terms of ability and capital) to the most people.

                      It still has flaws, drawbacks, and buttons for manipulation of not only the market itself but also of the players in the market. Resisting these influences is a full time job that most people simply don’t have the time for. That you and I do is a luxury.

                      As has been bastardized and repurposed from Winston Churchill’s quip about democracy, “Capitalism is the worst economic system, except for all the others.”

            2. Don’t confuse it. Bluffing is essentially taking the favorablest to oneself possible interpretation of available evidence and then claiming it as truth. A proper bluff describes what may very well be the true character of the situation, if all unknown variables turn out to be maximally favorable. Problem is a lot of amateux seems to think bluffing is the same as lying, and they try “bluffing” every third hand (in fact, outright lying), and can’t figure why they getting stuck on this downbound train.

              It still counts as bluffing if the person making the bluff do so under the false belief that this or that variable is optimal when in fact it’s not, even though it’s one of those pieces of evidence to which he had full access (He just forgot or got delusional or stupid or somehow ended up believing that quatre was a thrid ace.). J?vlahestedummfolk.

  3. I dunno, lifetime blanket bans for convicted politicians seem right to me.

  4. Hurrah…?

    [I am afraid to cheer too hard for any victories…I fear the next ten posts will be nut punches galore]

  5. Yeah, but then they’re still living in Pennsylvania.

    1. Pennsylvanians as a rule are not happy to live in PA, we are just happy we are not living in any of the states that we share a border with.

      1. Especially not with those flatlanders.

  6. National Public Radio, which had been exploring the impact of these kinds of laws

    Uh-huh. A cursory bit of research show’s that PA’s Older Adults Protective Services Act has only been on the books since 1996. I’ll go out on a limb and say it was enacted as a response to outcry over the media stories about elderly folks being abused at rest homes that were all the rage back then. Something tells me that in another decade or two, when NPR and 60 minutes and so on need another bogeyman, they’ll start running stories about old folks being mistreated in rest homes and we’ll get to see this all play out again.

  7. And my record is like 32 years old, and I haven’t been in trouble since then.

    I would have fired him for using “like” as a filler. But then drug counseling is part of the drug war industrial complex…

    1. That’s just like the way people talk now, ya know? U can’t b hatin people 4 talkin that way.

      1. That’s just, like, your opinion, man.

  8. By a vote of 7 to 0, the court found the law violates the due process rights of otherwise law-abiding people who may have run afoul of the justice system decades earlier.

    How about blanket restrictions on convicted felons’ gun possession, an actual enumerated right?

    (not that this isn’t a correct decision in itself)

    1. Apparently they ascribe to the “I’m scared, ergo no one has any rights” school of “thinking”.

  9. FTR, this is why I find the “we should deprive pubsec employees convicted of crimes of their pensions” concept so troubling… it starts with pubsec employees and pensions and later becomes… this.

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