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A Debt That Can Never Be Repaid?

After someone has committed a crime and is convicted, or pleads guilty, a punishment is determined. We often ask whether the punishment fits the crime. We assume the offender has taken something from society as a result of the offense and this must be repaid through punishment. This concept of retribution even invades the way we speak about punishment. For example, once a person completes a prison term we often say that they have “paid their debt to society.”

This debt-paying idea, however, does not really accurately describe the current state of affairs in the world of punishment. If I borrow money for a car and then pay the loan off in the agreed upon time frame with the agreed upon interest, then my debt is paid. The loan officer doesn’t show up two years down the road and ask for another payment. Three years after my debt has been paid the repo men don’t bring the tow truck to my house in the middle of the night. In punishment, additional hardships beyond the debt paid to society are called collateral consequences.

Collateral consequences can come in many forms such as restrictions on gun ownership, ability to serve on a jury, and loss of voting rights. Perhaps the most vexing collateral consequence of a conviction is related to employment. An ex-convict’s ability to gain and maintain a job may prevent a later return to criminal activity. However, many employers may not be willing to hire someone with a criminal conviction. These concerns can be legitimate. If I am a business owner, I don’t want to deal with an employee who may steal from me, injure co-workers or customers, deal drugs in my workplace, or show up intoxicated.

Here’s the thing though. When an ex-convict is not hired solely as a result of the conviction we throw the debt-paying concept out the window. This person will always be stuck with a debt they can never pay. Let’s toss an additional concept into the mix regarding retribution. Retribution requires the punishment to fit the crime. It would be unjust, according to retributive theory, to punish a murderer with one year of probation. But it would also be unjust to punish a shoplifter with the death penalty. Retribution requires proportionality. The collateral consequence of employment discrimination on the basis of a criminal conviction may knock the balance out of whack.

Massachusetts has attempted to address this issue by preventing employers from asking about the criminal history of applicants on job applications. According to the Boston Globe this “Ban the Box” law doesn’t prevent an employer from running a criminal history check on potential employees and the argument is that this law does not prevent employment discrimination based upon criminal history because these candidates are simply removed from consideration after the interview and records check.

Are we willing to prevent employers from considering criminal history when it is unrelated to the open position? Do we truly believe punishment should adhere to a debt-paying model?

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Todd Hiestand is an Associate Professor of Criminal Justice. All posts by Professor Hiestand should not be considered as advertisements for the solicitation of legal services nor should you consider any post or comment to be legal advice that you should rely upon in a specific legal matter.

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Guest Thursday, 24 April 2014

About This Blog

OhBehave is the outreach blog of the MNU Behavioral Sciences Department. In matters related to Psychology, Sociology, and Criminal Justice you will find information and updates geared to keep students and professionals abreast of the latest research, professional developments, and important trends in each field. As we seek a life of purpose, the material presented in this blog is meant to enhance and deepen our understanding of people and our world so that we may intentionally reflect the grace and peace of our creator.