Discrimination — Permitted and Required

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"Let the donut be cut in two, and each of the claimants be given…death. I’ll eat the donut." ~ Homer Simpson, speaking for the American criminal justice system

One of the more absurd activities the government has taken upon itself in the past few years is the criminalizing of discrimination. When we hear the term "discriminating art critic" we now wonder if it is a term of praise, or a line on an indictment. In informal surveys, I have found that most public school children I present the phrase to think it is a criticism. Such is the current zeitgeist. Discrimination, we are told, is bad. In many cases, it is used as the reason for criminal or civil charges — pretty terms for using brute force to compel one person to open their property to another.

What, then, do we make of discrimination which is not just allowed, but encouraged and even required by the government? Employers are subject to legal risks should they buck this trend and offer a job to a member of this permanent underclass. Furthermore, despite what the right wing will claim, one does not become a member of this class by choice, but rather by sheer luck of the draw in many cases. This is the class of criminal convicts.

In an ever-expanding range of fields, employers are required to subject potential new-hires to a criminal background check. If a person is hired with a known criminal background, the company faces increased liability should they commit a crime while employed — liability the company would not face if they weren’t aware of the past background. These facts combine to mean that companies have to have a damn good reason to hire a convict, even if he is the most qualified applicant for the job.

But, you may wonder why I claim that convicts don’t end up that way by choice, but rather by luck. Consider how easy it is to be arrested — all a person with a grudge has to do is swear out an accusation and most likely you will be arrested and jailed. Consider also that previous arrests, even if they resulted in a dismissal or acquittal, are known to law enforcement agencies and to prosecutors in future cases. The police are likely to view such a record and say "oh, he got away last time," thus cutting less slack in the new event. Prosecutors are liable to do the same. Innocent until proven guilty is no longer the law of the land in the United States.

On top of this, we have developed the plea bargain system, in which convictions are routinely gained from innocent people. In fact, if the accused claims to be innocent, and insists on going to trial, all parties involved will believe that he is "wasting the court’s time" and deal with him more stringently. The mind boggles at this phrase — isn’t this why we have courts? Besides, why should one be punished for exercising a constitutional right? Quaint, antiquated thinking, I know. So, many a rational accused person will accept a plea bargain — especially if the fine to be imposed is less than the cost of a trial. This person, through no fault of his own, is now tarred with the word "convict" for the rest of his life.

What’s more, even most people who are guilty of a crime have harmed no one and present no danger to employers. Most people convicted of crimes in this country are convicted to absurd crimes — drug use, tax evasion, prostitution, or other non-crimes. Just turn on Fox to see how one insidious crime is created — resisting arrest. The police will be called during a dispute, despite the lack of an actual crime. On arrival, the police will find the accused obviously angry — he was involved in a dispute, for one thing, and now realizes he faces arrest for no good reason. Despite being angry, he will not physically resist the police — but the officers will push him onto the ground, put a knee on his back, and state repeatedly "stop resisting" which then gives them a basis to claim the suspect was, in fact, resisting. Often in such cases, the person will be convicted of resisting arrest, but no charges will be filed in the initial complaint, meaning a criminal has literally been created out of thin air. For that matter, if self-defense is generally permitted, why is it a crime to resist armed men who, with no provocation, grab you, cuff you, and throw you into the back seat of their car — and then lock you up in a secure facility with no means of escape? Ought this really to be a crime?

Now this person who was unlucky enough to be convicted of a crime, or to have pled "no contest," finds that despite being well-qualified for positions, he doesn’t get one, because of the state-mandated criminal background check. Why take the risk, the employer asks, when another candidate who is almost as good exists? There used to be a time, I am told, when criminals paid their debt to society, whether through a fine, prison time, or probation — and then were free to return to society. This system wasn’t perfect, by a long shot — for one thing, no one can have a debt to society. Even then, most crimes were victimless, and when it comes to violent crime, the debt is to the victim, not to "society" — but it does seem that, when the state initiates violence against the citizens, it is somewhat preferable to minimize that damage.

In addition to employment woes, the convict faces significant other challenges in daily life. For example, a convict is frequently less able to defend himself against aggression — and in many cases, his convict status is printed in the local newspapers, thus alerting aggressors to this fact. After all, in many cases the convict will be forbidden from owning weapons, or denied the right to carry a concealed handgun, often for the rest of his life. Furthermore, even if he decides to defend himself in a hand-to-hand situation, he will often find himself in trouble. After all, imagine the situation once the police arrive and scan the ID of the two parties. Regardless of any statements, the individual with a criminal background will immediately be viewed as being at fault, and likely arrested. Thus, many convicts simply do not defend themselves, preferring to be robbed over being arrested. Certainly, a convict finds it difficult to call the monopoly provider of security services for help — how seriously will they take his claims of aggression? The answer is, not very. Police officers tend to divide the world into three categories — the good, the okay, and the bad. The good consists primarily of other police officers, and other people in similar jobs, such as EMTs and firefighters. The okay consists of just about everyone else in society — these people are liable at any moment to become the bad, but for now shouldn’t be beaten or jailed. If they earn more than police officers, they find they are closer to the bad. The bad includes, certainly, anyone with a criminal background, since the system is infallible. Thus, in any future encounter with the police, the convict finds that he is taken to be a bad person, and any attack he suffers is considered deserved.

So, we see that the state creates the permanent underclass of convicts, discriminates against them, and then compels others in society to discriminate against them as well. This activity, from the organization that considers itself profoundly good, and which lectures all others about the evils of discrimination on irrelevant characteristics, would be hard to understand if we didn’t already know that the state is, by definition, evil. However, we can, in a small way, fight this particular aspect of the state. How can we do this, you ask? When it makes sense for you and your company, hire a convict. Stop the practice of putting to the bottom of the stack any application with a "yes" to the first question, and start looking at the whole applicant. If it is a victimless crime, stop considering it at all, other than to express your sympathy for the way they have been treated. If it is a violent crime, find out the circumstances before coming to a decision. This practice, by the way, would also cut down on recidivism — the convict is far more likely to return to crime if he finds that the honest world rejects him without giving him a fair shake.

Joshua Katz, NREMT-P [send him mail], is Chief of EMS at the Town of Hempstead Department of Parks and Recreation. He has studied philosophy of mind, logic, and epistemology of economics from an Austrian perspective, and is a former graduate student in philosophy at Texas A&M, as well as holding a bachelor’s degree in mathematics. He enjoys a glass of port and a wedge of Brie, but has discontinued this practice on a regular basis, due to the sugar content of the port. He has recently been offered a faculty position at the Oxford Academy in Connecticut beginning September 2007.

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