Criminal Justice

Obama Administration Doesn't Want Us to Hold Its Overzealous Prosecutions Against Its Targets

A week to try to help ex-prisoners return to communities follows years of relentlessly putting them away.

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Cell
Credit: Photographing Travis / photo on flickr

The same government that threw the book at a man and tossed him in federal prison for facilitating a comical alteration of a headline at a news site wants to tell us all how to treat him when he finally gets back out.

The Department of Justice (with the support and backing of the Obama administration) has been holding something called National Reentry Week this week. They've sponsored tons of resource fairs and events and presentations all designed to facilitate the return of the people the government has locked away (some for good reason; far too many for bad reasons) to the outside world.

On this last day of the reentry blitz the administration announced it wants to "Ban the Box" for many people seeking jobs with the federal government. The "Ban the Box" movement is a push to eliminate the checkbox in job applications that ask people if they've ever been convicted of a crime. The idea is not to eliminate the consideration of criminal background entirely in the employment process. Instead the goal is to push it to later in the process so that applicants aren't immediately screened out on the basis of a criminal background that never gets evaluated to determine whether it's relevant to the job duties.

According to BuzzFeed, if the federal government had the rule in the place, it would have affected about half of the federal government's 200,000 hires in 2015. The rule would not apply to jobs in intelligence, national security, and law enforcement, and additional exceptions could be requested.

Dozens of major corporations are also signing on to voluntarily shift the way they consider job applicants in a "Fair Chance Business Pledge," and good for them, as long as these are voluntary shifts and not government mandates. Businesses are best equipped to decide for themselves the circumstances by which they'll consider the risks involved in hiring ex-cons, not the government.

Unfortunately—and sadly typically—if the government  thinks something's a good idea there are going to be people who believe it should be mandated by laws or regulations. Obama adviser Valerie Jarrett even took note of this slightly ominous threat from the Labor Department when talking to reporters (via BuzzFeed):

Asked whether there was consideration of whether to take action to require federal contractors to "ban the box," Jarrett said, "The president has supported federal legislation that would ban the box for federal contractors. He thinks that's the best approach."

Jarrett also noted, however, that the Department of Labor in 2013 adopted earlier guidance from Equal Employment Opportunity Commission to, in her words, "recommend that contractors refrain from inquiring about convictions on job applications." That Labor Department directive, she added, also warned there are scenarios in which criminal records-based exclusions could violate civil rights protections.

How could it be a civil rights violation to exclude ex-convicts? The EEOC points to the "disparate impact" on racial minorities scenario, which turns this all a little strange. The EEOC points out in its guidance that African Americans and Latinos are arrested in numbers disproportionate to their percent of the population. It even notes that Latinos face federal drug charges at a rate three times higher than the rest of the population.

But this is all happening because of the behavior of the federal government itself, not the private job sector. It is not McDonald's or Target or Microsoft that is putting these people in jail. This disparate impact is a direct result of the behavior of the government, including the very Department of Justice that is now taking a week away from abusing conspiracy laws in order to throw people in prison to beg us to help those same folks back into society.

So what we have here is one federal agency threatening to punish private employers for the civil rights violations that are actually caused by another federal agency.

Here's a better idea: If the federal government wants employers to give less consideration to applicants' criminal records, stop finding so many awful reasons to try to throw people in federal prison in the first place. Then maybe they can go around lecturing private businesses about "disparate impacts."

NEXT: No Witnesses Coming Forward in Florida Police Shooting

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  1. Well at least you’re sticking together on the harmless prank thing.

    1. Maybe Scott is waiting to hear who was harmed and how.

      1. Since loss of money is apparently not harm, why are people always bitching about taxes?

        1. How much money did the LA Times lose?

          1. Depends on how much they pay their staff that had to clean up. Diverting staff from useful work to janitor duties does have a cost.

            1. Janitor duties are useful work. The LA Times web editors spend a regular amount of time every day correcting mistakes and updating stories on their site. So is there some more specific serious harm than “somebody had to do their job”?

              1. So you know that the LA Times pays someone to monitor their website and correct vandalism?

                1. I know that web editors are paid to fix errors and problems on their websites, yes. I also know that some honest errors go on much longer before being caught and fixed than the 40 minutes that this prank lasted.

                  1. And they probably also have a security team therefore they shouldn’t complain about an employee giving their credentials to an unpredictable outsider?

                    1. I’m not sure what you’re even talking about now. I’m talking about harm that the LA Times suffered.

                    2. The real complaint is that a former employee gave his credentials to Anonymous and someone from that group defaced the website. Reason’s bitch is that the employee who gave away his credentials had his ass nailed to the big government wall for taking part in a harmless prank.

                      Now, since in Reasonland (and apparently Hughland) vandalism is harmless the guy should have just gotten a talking to then left to go on his way.

                    3. Another real complaint is why didn’t they revoke the credentials of someone they fired. I’m not saying they’re necessarily in the wrong, but if you give someone keys to your house and don’t change the locks when you break up are you surprised when you come home from work one day and find ‘fuck you’ written on the mirror in lipstick?

                    4. Sure, it was completely stupid on their part to not kill the account the second the guy was out the door. But that doesn’t mean they deserved it (and I’m not saying that you said they did).

                    5. Who was harmed and how?

                    6. [insert link to top of thread here]

                    7. Gosh, it’s a shame the only two choices here appear to be doing absolutely nothing or a federal prison sentence.

                    8. If the prank truly is harmless, why would the punishment be something other than shaking your head and saying “oh, you”?

                      If there is harm, stop calling it harmless. Maybe even suggest what you might think is appropriate. These are opinion articles so you should be allowed to do that.

                    9. Tut tut, another foolish attack on one of the world’s finest criminal justice systems. Everyone knows that pranks are not “harmless,” despite the outrageous “First Amendment dissent” signed by a single, isolated, liberal judge in America’s leading criminal “satire” case, documented at:

                      http://raphaelgolbtrial.wordpress.com/

                      The real question is what to do with these Internet thugs after their well-deserved sentences are served. It’s important not to provoke them into repeating their criminal behavior, which would force us to spend more money housing them again in our excellent prisons.

                    10. If this were a civil case, how much in damages do you think the newspaper should be awarded?

  2. Here’s a better idea: If the federal government wants employers to give less consideration to applicants’ criminal records, stop finding so many awful reasons to try to throw people in federal prison in the first place.

    But, but, but legislators are law makers, not law repealers. They can’t go and start repealing laws so that there are fewer reasons to put people in prison. If they started doing that, then legislation that they write might be repealed in the future. Professional courtesy dictates that no laws shall be repealed.

    1. We should propose unelecting an anti-Congress to repeal laws as fast as Congress can make them. Or we could smash congress and anti-congress together and make pure energy.

    2. …and if they don’t put more and more people in prison, how are they going to justify that 12% increase at budget time. huh?

    3. +1 stare decisis

      This is (one of a zillion reasons) why we can’t have nice things.

  3. Obama Administration Doesn’t Want Us to Hold Its Overzealous Prosecutions Against Its Targets

    I’m pretty sure we are the targets of its overzealous prosecutions. Pour encourager les autres, and all that.

  4. By the way, what is the official libertarian solution to punishment when fines fail?

    1. Don’t listen to Tundra, $park?.

      Everybody knows it’s the boats.

      1. Sounds fair.

    2. Lately I’m leaning towards the opinion that if it’s not worth throwing somebody in jail over then it’s not a crime. I know it would be parking anarchy, roads filled with seatbeltless drivers rocketing along at top speed, in one word, Somalia.

      1. I don’t think I’ve ever seen anyone here provide an honest, reasonable answer about what to do with someone who should properly be fined but won’t pay the fine.

          1. Isn’t government the goons we hired together?

        1. I’m disagreeing with the propriety of fines in general.

          1. Got it. Would it be safe to assume you’re in favor of monetary recompense for harm done, like in civil suits?

            What I’m really curious about is what happens to people who can’t pay up.

        2. Other people would shun them; they would be outlaws in a sense. This is all voluntary, of course. friends and family would probably ignore outlaw status, but strangers, businesses, etc would probably either shun all outlaws or at least look into why they are outlaws.

          This also has nothing to do with criminals who are killed in self-defense while committing crimes.

          1. It also goes along with restitution being the only redress for crimes, including all associated costs — investigations, time off work, expenses.

            There’s a related problem — how does one investigate a crime without threat of force to execute subpoenas / warrants? I say that all parties to a case create and execute their own warrants, of course with whatever assistance they want (lawyers, police), but with the proviso that warrants must be related to the case and are judged on that merit along with appeals etc, and warrant execution must be in line with what was written. Any warrant executed out of line with what was written, rebound on the author / executor in like manner. So to do all warrants on behalf of the loser in a case. A warrant executed during appeals isn’t bad itself, but still have to be in line with what the appeals eventually determine, so there’s more risk of being excessive.

            For instance, if you think your neighbor stole something, you can make up and execute a search warrant by yourself, with your neiighbor being able to object only if it is excessive, such as wanting to search your sock drawer for a stolen car. If you search places not mentioned in the warrant, or leave a mess, or break things, that is excessive, and he gets to do the same to you, but would probably settle for cash. If you lose the case itself, he also gets to search your house in similar manner.

          2. Restitution is a tricky subject when it comes to assault and especially murder. Hospital bills, time off from work, etc may be calculatable, but pain and suffering isn’t, and death is pretty hard to account for. Still, insurance companies do similar things, and there can be standard amounts, one of the few things I think a government could still exist for. Besides, prison for the crook as now doesn’t do squat for restitution, in fact just the opposite since it costs a lot of tax money to lock people up.

            Then there are habitual irredeemable career criminals. The dangerous variety are likely to be outlaws so often and perhaps without interruption that they will relegate themselves to the trashiest neighborhoods and lifestyles, and that’s fine by me. They dangerous ones are also more likely to die while committing a crime.

            Another possibility for career criminals is that they run up such a large restitution outlaw debt that they basically have no redress available — anything they won would be sucked up by their previous victims. So kidnapping them and locking them up just to keep the public safe is always possible, in some ways.

    3. the official libertarian solution

      If you don’t know why that phrase is a multiple contradiction in terms, we can’t help you.

      If you ask me, the idea that criminal justice involves “punishment” gets you off to a bad start. The idea should be rehabilitation – teaching people who’ve obviously failed to learn why they should keep their hands to themselves – and reparations – making offenders pay for the harm they have caused others by not keeping their hands to themselves – or protecting society from people proven incapable of learning to keep their hands to themselves if the rehabilitation and the reparations have failed.

      Get rid of all the victimless crimes and you’re left with crimes where somebody has taken something from someone else without paying for it, they have acquired a debt, but the debt is not owed to society, it’s owed to the victim. If you go into Walmart they have price tags on the TVs to tell you how much it’s going to cost you if you want that TV. If you come into my house you’ll notice there’s no price tag on my TV, but that doesn’t mean the TV is free, it means the price of the TV is unknown. If you decide you’d like to have my TV without knowing what the price is you really have no right to complain when it turns out the price is higher and lumpier and ouchier than you’d like to pay.

      1. And I don’t think it’s a violation of the NAP for me to hire a large man with a baseball bat to go collect the debt you owe me, either. If a large man with a baseball bat can’t beat some sense into your head about why you should keep your hands to yourself, maybe you need to just go live somewhere with everybody else who can’t learn to keep their hands to themselves and away from all of us who learned that lesson when we were about six.

        1. So you’re clearly fine with using violence as reparations when no money is forthcoming as long as the violence is done by you, or a proxy, to the offender.

          So a follow up would be, how much violence is a TV worth? Can you just beat the guy to the point where his hospital bill will be roughly the value of your TV?

      2. rehabilitation – teaching people who’ve obviously failed to learn why they should keep their hands to themselves – and reparations – making offenders pay for the harm they have caused others by not keeping their hands to themselves – or protecting society from people proven incapable of learning to keep their hands to themselves

        Rehabilitation is largely bullshit. The only people being rehabilitated are the ones who don’t think that the reparations are worth committing the crime anymore. (IOW, the punishment is too much for them)

        Reparations only works in a civil context. I, as a victim of a crime, get nothing from the criminal by locking them in a cage (besides the peace of mind that society is protected from this person).

        Protecting society and punishment are the only rationales that make sense in a criminal context. Punishment is a long-term deterrent. Protecting society is all about making it hard for the person to commit more crimes, aka a short-term deterrent.

  5. Asked whether there was consideration of whether to take action to require federal contractors to “ban the box,” Jarrett said, “The president has supported federal legislation that would ban the box for federal contractors. He thinks that’s the best approach Hell, yes, the president’s signing the executive order as we speak.”

    FTFY

    1. Needs more ‘sugah’ or ‘honey child’.

  6. National Reentry Week

    I’m not sure if I want to be part of anything the administration calls “national reentry week”. I feel that after almost eight years I’ve had enough thank you.

    1. EVERY WEEK NATIONAL ENTRY WEEK FOR STEVE SMITH!

  7. Instead the goal is to push it to later in the process so that applicants aren’t immediately screened out on the basis of a criminal background that never gets evaluated to determine whether it’s relevant to the job duties.

    Sounds like the goal is, at best, to give ex-cons interview experience and, at worst, waste everyone’s fucking time.

    1. Oh, fuck this administration. They exempt their own ‘security sensitive’ jobs from the people they’ve fucked over then tell industry that they should let those same people get jobs without disclosing the fact that the state thinks they’re untrustworthy. Seriously, fuck. them.

      The best part? Who will be liable when a ‘real’ ex-con gets a job as a medical records clerk and walks off with some social security numbers? The government? Yeah, sure. They’ll fine and sue whatever business did this out of business so fast your head will spin.

      How does this jive with the fact the same government that made these people an official criminal, who’s telling you they aren’t a criminal now, also tells you that you can’t hire a former criminal for this or that job because it’s a ‘special circumstance’. Which, by the way, is essentially telling us these people can’t be trusted except for those unknown magical circumstances when they can be.

      This is such a circular clusterfuck of nonsense that it could only come from Obama himself.

      1. Oh, and this isn’t even considering the fact that the government already incentivizes business to hire these people. Are they talking about getting rid of that ‘box’? What? No? You still get a tax break for hiring an ex-felon, but they aren’t allowed to tell you up front that they are cheaper labor?

        *begins pulls his own hair out and laughing manically*

  8. Todays anti-nutpunch:

    An 80-year-old woman shot and killed a man who stabbed her husband after breaking into their Sultan home Thursday night, the Snohomish County Sheriff’s Office said.

    Medics airlifted the injured 75-year-old man to Harborview Medical Center in Seattle with stab wounds to the abdomen, according to a news release from sheriff’s spokeswoman Shari Ireton. The intruder, 25, was pronounced dead at the scene. He was from Gold Bar.

    http://www.seattletimes.com/se…..r-husband/

    1. OMG how can you be so callous about ANOTHER GUN-RELATED DEATH?

    2. He was turning his life around! Well, I mean, he was probably going to, right after he finished stabbing those people!

  9. The goal is to spread out the money that the government hands out. From that perspective, this is not only logical, it’s inevitable.
    More convictions — more money for police, prosecutors, defenders, jailers, courts, journalists.
    More appeals — more money for all the bureaucrats involved.
    More rules post-release — more money publicizing the initiative, lobbying for and against the initiative, paying people to meet regarding the initiative, journalist to report on it all, secretaries and office staff to create and manage the flow of paperwork, parole officers, ‘oversight staff’, etc., etc., etc.
    The list of beneficiaries from this is huge and keeps growing. Once in a while, an actual individual who has been convicted of violating one of the laws benefits from all this, but that is distinctly a side-effect. It’s theater, window-dressing. Because it is all about growing the bureaucracies, paying more and more people in more and more government jobs. To no end other than growing the government payrolls.

    1. Yes.

      Very well said.

      *bookmarks*

    2. Because it is all about growing the bureaucracies, paying more and more people in more and more government jobs.

      Yep. More punishments for everyone, and more state-counselors for the post-punisment industry, and more people to process records-keeping for the various punishment-status categories people are currently in. And here’s my receipt for your receipt.

      *re: that clip, its notable how those “super kitted-up police serving up a warrant at a peaceful home” was an absurdist joke 20 years ago…. when now, its a blas? reality

  10. “The rule would not apply to jobs in intelligence, national security, and law enforcement, and additional exceptions could be requested.”

    Naturally. A key qualification for those jobs is that you need to be smart enough not to get caught.

  11. But this is all happening because of the behavior of the federal government itself, not the private job sector. It is not McDonald’s or Target or Microsoft that is putting these people in jail.

    But it is them, like the government, who fail to critically analyze the currently sad state of criminal justice. That said, employers should be free to use whatever criteria they can to judge potential workers.

  12. The entire concept of disparate impact is absurd.

    1. Indeed. Men are disproportionately convicted of rape compared to women! Disparate impact!

    2. It really, really is. Im imagining trying to explain it to an alien, and I think it would probably just give up and destroy the earth, just to be safe.

  13. Politicians espousing #Banthebox infuriates me.

    1. War on Women!

      …is the kind of tasteless joke a bad person would tell.

      1. I laughed at this. Check out Dirty Eddie.

  14. The EEOC points out in its guidance that African Americans and Latinos are arrested in numbers disproportionate to their percent of the population.

    And all good people know that there is no other possible explanation for that other than racial discrimination. No other possible explanation! All cultures are perfectly equal… well, except for white American culture, which is racist, and causes non-whites to commit more than their share of crimes….

  15. Obama and his band of sowers of discord can’t go away fast enough.

  16. First off, good article Scott!

    I’m really not a fan of this part, though:

    But this is all happening because of the behavior of the federal government itself, not the private job sector. It is not McDonald’s or Target or Microsoft that is putting these people in jail. This disparate impact is a direct result of the behavior of the government, including the very Department of Justice that is now taking a week away from abusing conspiracy laws in order to throw people in prison to beg us to help those same folks back into society.

    I HATE HATE HATE the disparate impact analysis in the first place, but I double extra hate it when it’s decoupled from the “history of racial discrimination” requirement that it is paired with in the public accommodation context. Anything that furthers the “legitimacy” of disparate impact as a public policy consideration is an enemy to equality under the law.

    /rant

  17. Is it the same people on the Left who want to “Ban the Box” who also complain about Uber not doing *enough* background checks to block people with criminal backgrounds? Or is it at least different people?

  18. I look forward to future articles about how we have to do something about the prison to government pipeline.

  19. How about a better title:
    OBLAMA TRYING TO HAND OUT SOME GOODIES TO HIS PEOPLE, ON THE WAY OUT THE DOOR.
    Society be Damned.

  20. Hmm… so, let me get this straight.

    The Obama Administration, directly or by proxy:
    1) Puts people in jail as felons, often for non-violent, drug-related offenses.
    2) Does this more often to Blacks and Hispanics than Whites.
    3) Mixes everyone, violent and nonviolent, into a collection of criminals.
    4) Delegates its presumed (and perhaps unconstitutional) monopoly of force to government contractors, often to run those very same prisons.
    5) Gets flustered as the contractors, acting theoretically under its supervision, abuse people and violate the constitution.
    6) Blames capitalist greed for the contractors’ abuses.
    7) Requires that those contractors stop screening out potential job applicants from its motley collection of innocents and criminals, known as ex-cons.
    8) Does little or nothing to address the problems of over-legislation narcotics hypercriminalization that engendered the civil rights inequities (if not the full disparate impact) for minorities in the first place.
    9) Self-righteously requests Social Justice Points from the American people.

    Three cheers for Big Government!

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