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Point
Returning Citizens
by Tim Hurley |
Counterpoint
Ex-Felons
by Noël Gorden |
"Now what?" ...was the first question that came to mind after being released from the Gus Harrison Regional Facility in Adrian, Michigan. I’d just completed an 18-month sentence for acting like a felonious idiot as the result of not protecting my sobriety. To be clear, I’m no victim with an engrossed sense of entitlement. Having transgressed societal boundaries, I deserved to get locked up and was now grateful for it being over and getting on with my life. Landing at a ¾ house in Pontiac for “transitional housing” was the 1st Step. Actually, living there was like a deleted outtake from “Animal House.” In spite of some fellow residents seemingly hell-bent on getting violated and returning to the joint, I chose to set about the process of having my life rebuilt. My AA sponsor extended a warm welcome with this question; “What are you going to do different this time?” That seemed like a fair inquiry. After all, my plans did not work very well. There’s nothing passive about rehabilitation, redemption, restoration and the transition of parole. It’s an inside job that starts with an honest inventory. Without a searching and fearless appraisal of my culpability for the crimes committed and the harm inflicted on others, nothing of substantive value would ever take place. That’s the kind of stuff one can learn from a good sponsor/mentor. For me, that meant getting planted in a church community. It provided me with another layer of accountability as well as the means by which to get off the throne of my own heart, as I really don’t make a very good lord anyway.
Being chased around a tree by a bear makes one neither an expert on trees nor on bears. Therefore, I do not claim to hold the solution for fixing problems in the criminal justice system. However, it was my experience that approximately 70-80% of the guys in prison were there as the result of substance abuse. This has led me to believe that Michigan doesn’t really have a crime problem. We have a massive drug and alcohol problem of which I was a part. There’s no spontaneous remission for the disease of addiction. It’s a progressive illness that kills or maims everyone in its path. One can keep it in remission by proactively working at an intentional program of recovery. Real recovery is a process, not an event. We never graduate. Under the right circumstances, a cucumber can become a pickle, but a pickle will never become a cucumber. My life became pickled years ago and I was the last one to know it. That’s why it’s incumbent on this recovering Irishman to get my ass in the chairs of 12 Step fellowships and make it a part of life’s routine.
Despite stereotypes to the contrary, not all felons and parolees are unredeemed savages. The Prison Creative Arts Project (PCAP) at U-M calls us “returning citizens”. I chuckled when I first heard that term. It’s so PC. Alas, not many others in society view us that way. Through participation in PCAP, a venue was provided by which I could “pay it forward” and make amends. It’s a great outfit of fearless young folks that go right into the Belly Of The Beast to teach the incarcerated how to write and express themselves through the arts. Now equipped and armed with a network comprised of family, friends and fellow sojourners on the road less traveled--the time came to move out of the transitional nest and into an apartment. Due to poor health, I became disabled after a 25-year career as a Civil Servant. While never aspiring to becoming disabled and living on SSD, I’m very grateful for it. Most returning citizens don’t have that benefit. Taking responsibility for one’s actions and working hard are the cornerstones of successful transition.
For those that aren’t as fortunate as I, this transition has become nearly impossible. For those seeking work, having a felony record is not exactly a resume’ enhancer—especially in a poor economy. To that end, there’s a “Ban the Box” initiative sweeping across the country. Simply put, BTB is the removal of a question from employment applications inquiring as to whether or not the applicant has ever been convicted of a felony. Contrary to arguments raised by those opposed to it, it does not prohibit any employer asking about a felony record nor conducting a background check. BTB only makes provision for a convicted felon to get a foot in the door, explain what happened, and perhaps be given a shot at employment. So far, Hawaii, Massachusetts, Minnesota, New Mexico and Connecticut have banned the box statewide and five states are looking into their own ban. More than 20 cities have adopted the initiative. This is not about providing lawbreakers with a special status. There are approximately 1.3 million convicted felons in the State of Michigan. One out of every six adults in Michigan has a felony on his or her record. The vast majority of those incarcerated will one day be paroled. Unnecessary impediments to their employment serve no useful purpose. I encourage you to support the Ban The Box initiative. Doesn’t it make sense for “returning citizens” to become productive and contributing members of society?
‘Ban the Box’ advocates argue that public (and possibly private) employers should not be allowed to ask job applicants about prior criminal activity on initial employment applications. They insist that questions like “Have you ever been convicted of a crime?” put formerly incarcerated men and women at an unfair disadvantage because there is widespread social stigma against ex-offenders.
Widespread stigma against formerly incarcerated persons would only be unjust if it were somehow undeserved. ‘Ban the Box’ advocates appear to take this point for granted, arguing that prejudice toward ex-offenders does not square away with our commitment to rehabilitation. But what if the point of the criminal justice system is not to rehabilitate people, but to punish them? What if you thought the only reason we send people to prison is to make them realize they have done something society considers wholly unacceptable? Under this retributivist framework, expressing bias toward formerly incarcerated individuals would be justifiable given the fact that they have done something to deserve this societal condemnation in the first place. And insofar as that is true, it seems that any disadvantages they face as a result of this societal condemnation would be fair.
Although this argument may be a bit abstract, it is nowhere near counterintuitive. Consider the reason our country has laws governing criminal behavior. A criminal law, in its most basic form, is an agreement society has reached regarding what it is acceptable for us to do and what is not acceptable for us to do. We reach these agreements because, in doing so, we make it easier for people to peacefully co-exist. Therefore, to knowingly violate even one of these laws is to show some willful disregard for what society has considered it permissible to do. We punish people whenever they commit such transgressions because it is a way for us to express our collective moral outrage toward that individual or group. What all this suggests, then, is that formerly incarcerated persons are not unjustly stigmatized in our society because they are deserving of such treatment. The only question remaining, then, is whether the disadvantages they may face as a result are unfair.
If fairness is to be described as ‘getting what you deserve,’ then the disadvantages ex-offenders face as result of this societal stigma are fair. Had a formerly incarcerated person not committed a crime, then he or she would not be at such a huge disadvantage. This is not to say that ex-offenders should be subject to any type of treatment we wish to impose upon them, but it does suggest that formerly incarcerated persons are not entitled to have their interests considered in the same way non-offenders do because the two groups are differently situated in society. One group has been found to have violated the agreed upon rules of society; whereas, the other has not. This is an important distinction to make because it speaks to how committed a person is to upholding the agreed upon tenants of our society.
It is also important to note the risk that employers face by not receiving this vital piece of information about prospective job applicants. While ‘Ban the Box’ advocates might suggest that having a criminal record says nothing about the likelihood of relapse, nothing could be farther from the truth. But even if that were true, employers should have the right to gather this information as soon as possible given the fact that they ask everyone the same question. Employers distribute their brand and their resources to the applicants that they hire. Consumers designate their money, their time, and their business to the services they seek out. Therefore, a lot is at risk if the employees hired are not dependable or trustworthy. Employers require job applications from all potential employees specifically for this purpose—to distinguish between those who can fulfill their set criteria, and those who can’t. Indeed, the only thing prospective job applicants are entitled to with regard to hiring practices is that they are evaluated under the same criterion as everyone else.
‘Ban the Box’ supporters are noble in their quest to make life easier for formerly incarcerated individuals. But their rationale for eliminating ‘the box’ is misguided at best and flawed at worst. Ex-offenders are not put at an unfair disadvantage in society, because the stigma that comes with being a criminal is deserved and the disadvantages that result from that stigmatization are justifiable. This is not a popular argument, nor a particularly sympathetic one at that. However, it is one that takes into account what it means to live in a society with certain rules and expectations.
About the Issue
Point author: After a 25 year career as a civil servant and waging a life-long losing battle with alcoholism, Tim Hurley made some poor choices with severe consequences that resulted in his incarceration. During that low period of his life, he wrote a story that was accepted and published in a 2010 anthology of short stories by the University of Michigan’s, Prison Creative Arts Project (PCAP). Now clean & sober, he works one-day-at-a-time to “pay it forward” with his writing and better lifestyle choices--while attempting to carry the message of recovery to other sick & suffering addicts.
Counterpoint author: Noël Gordon is a Political Science major at the University of Michigan, also minoring in Moral and Political Philosophy. He’s involved in the Michigan Political Union, the Michigan Daily, and the Michigan Journal of Political Science.
Edited by: Lauren Opatowski and Michelle Lu
Cover by: Lucy Zhang
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7 Comments
Utilitarian costs of a retributive – i.e. vengeful – society aside, Noel Gordon’s argument has no accounting for the qualitative nuance of what a crime is: he puts Tim Hurley and Charles Manson in the same ‘box.’ Once a person crosses the ‘criminal’ threshold, we then have a seeming moral mandate to humiliate them as long and as thoroughly as we please, giving carte blanche to our now latent (but statistically proven) racist, class-ist, and cultural-ist impulses.
“Ban the box” advocates don’t want child molesters working at elementary schools, but they do want to discard with institutionalized, streamlined bigotry. In other words, they want more nuance and complexity, not less, and that is why I side with Mr. Hurley.
Noel, I think the missing piece of the puzzle is the impact on not only individuals who have been incarcerated, but also on society. Once a prisoner has served his/her sentence, would you still continue the punishment by making it difficult for him/her to self-support and/or support a family? For how long would you continue this punishment? Would it be lifelong? Would it be tempting for a former prisoner who could not feed himself to turn back to crime? And what does it do to society when such a large proportion of citizens cannot be self-supporting? It simply doesn’t make sense to make the employment issue part of an ongoing punishment for a crime, when a felon has already served the punishment society imposed for said crime.
Perhaps Noel might want to read more about Restorative Justice–which attempts to address the needs first of all of the victim, and secondly of the offender, and thirdly, of the community. THe idea is to “restore” the offender back into the community as a person redeemed by acknowledging the crime, asking forgiveness of the victim, and making any possible restitution. At that point, having served time as “punishment”–though we aren’t really sure what positive value that has for the offender or why we love it so much, or in Michigan love so much of it–the offender should be able, it seems, to re-enter society without any handicaps to his or her resuming life as a productive and involved citizen.
Thank you Noel for your perspective and insight into this very complicated and often emotionally charged case. I would like to respectively disagree, not necessarily with your conclusion, but with your analysis and provide you with some food for thought:
1. The question “what if the point of the criminal justice system is not to rehabilitate people, but to punish them?” demands a proper defense of why the system of justice *should* indeed be retributive. Definitions require justifications, interpretations, and rationalities, and are only helpful if they are defended. Terms such as “justice” and “punishment” are indicative of human stances and viewpoints, they are not pre-existing ideas divorced of human application. You argue justice is fairness and punishment is retribution. Why? Why should we accept punishment as retribution? What are the reasons for rejecting punishment as rehabilitation or deterrence? After one provides a conceptualization of punishment, one must defend by both justifying one’s stance and rejecting other stances.
2. “The only question remaining, then, is whether the disadvantages they may face as a result are unfair… If fairness is to be described as ‘getting what you deserve,’ then the disadvantages ex-offenders/ex-felons face as a result of this societal stigma are fair.” Why should we define fairness this way? More importantly, what do you mean by and how would you implement “getting what you deserve”? Would the felon who steals a bagel have a bagel stolen from him to get what he deserves? What about the person who commits insurance fraud? Should she be required to sell insurance to an individual who then subsequently lies on his application? I think your intuition would answer no, she shouldn’t. But wouldn’t that be getting what she deserves? We’ve developed a system of punitive justice to replace such seemingly unjust retribution with just acts of punishment. Eye for an eye is not ethical. But perhaps eye for prison time is. This leads me to my next point…
3. “We punish people whenever they commit such transgressions because it is a way for us to express our collective moral outrage toward that individual or group.” Perhaps. Or maybe it’s a way for the government to (a) protect society and/or (b) prevent society from expressing moral outrage in immoral ways. In the first case, prison time can often be defended as simply a means to protect society by separating a “dangerous” individual from its presence. In the second case, though society may feel a moral outrage, it may not actually be appropriate or desirable for society to express its moral outrage in any way it wants to. A felon or criminal is released from prison and reenters society supposedly when his or her punishment has ceased and he or she is no longer a threat to the public and has learned his or her lesson. You write, “It is also important to note the risk that employers face by not receiving this vital piece of information about prospective job applicants.” This goes against the logic of releasing an individual from prison on the basis of his/her perceived/predicted threat to society: he is released because he no longer poses a threat so it is inherently inconsistent for the employer to discriminate on this basis. Furthermore, and more importantly, as I mentioned, and now would like to explain, there are moral problems with society’s moral expressions of criticism.
4. This is the most crucial criticism of your argument: society is not the harbinger of justice and should not be. The government is the legitimate determiner and distributor of punishment in society and should never place the power of punishment in the hands of the populous: that is unjust and not the appropriate job of the government. Take for example the sex offender registry. Every sex offender released from prison must register his living address on Megan’s list. This way every individual knows if there is a sex offender living in his/her midst. Not only has this system proved an ineffective form of protection and deterrence (Prescott and Rockoff 2008), but the sex offender suffers from stigmatization and ostracism from the community. On several occasions led to murder and lynching of sex offenders by angry mobs. I do not wish to argue that we should harbor lots of sympathy for sex offenders. Rather, there are significant problems with pubic shaming as a source of punishment. So, here is where I adamently disagree: “Ex-offenders are not put at an unfair disadvantage in society, because the stigma that comes with being a criminal is deserved and the disadvantages that result from that stigmatization are justifiable.” You provide us with no framework for understanding just punishment. Why should someone who fails to pay taxes only receive a fine instead of life imprisonment? Why should a juvenile who robs a bank receive a lower prison sentence than an adult who robs a bank? Why don’t we execute people involved in Ponzi Schemes? We understand there are inappropriate punishments; there are unjust punishments; there are undeserved punishments. We understand that there are ethical limitations to punishments, such as “no cruel and unusual punishment”. Individuals are released from prison out for a reason, ex-cons go through a parole program for a reason: there are different levels of punishments depending on the crime, the person, and the societal circumstances. You offer us no framework for understanding why societal stigma and discrimination should be part of a system of justice, fairness, or punishment. Furthermore, you give us no reason for why justice should be served by the populous, a body of people who are uncontrollable and unpredictable, rather than the government, whose existence is exactly to prevent retributive and autonomous acts, and instead instill a uniform system of justice.
For the sake of full disclosure, I feel its appropriate to acknowledge that I am a friend of Mr. Hurley. I also have no opinion (as of this writing) on the particular piece of advocacy under consideration.
I think the Counterpoint offers a solid argument. I can appreciate his position, and understand its logic. To me, the Counterpoint argument isn’t so much abstract, as it is theoretical. I’m a parent of several young, rambunctious children. From time to time, one of them will violate the rules and expectations that we’ve created in the little society of our family. It might often involve the incarceration of a time-out, and perhaps other, additional, consequences. Again, I fully appreciate the aspect of retributive justice. Yet, isn’t there the hope, even the possibility, of redemption, of restoration, that they could try again? Reading and reflecting on the Counterpoint, I’m reminded of Inspector Javert in Les Miserables. To him, Jean Valjean was always 24601.
Noel – you make interesting arguments about why employers asking about past incarceration is okay. I think that why this issue is a problem in general is that there is a disconnect between prisoners/what happens in prison and the rest of society. I’m not against your stance, but I would argue for a different supporting perspective. I don’t think that because someone was a felon it means they’re more likely to steal than someone without that status. There’s a lot of inequality embedded in our criminal justice system that tends to punish social minorities at higher rates due to visibility, racism, classism, etc. … I would argue that understanding these social situations and the realities of prison are important for any employer and member of our society; these understandings could lead to a more nuanced view of what a checked box on a job application could mean.
I think that honesty and empathy are important foundations of a progressive social contract. The fear of the other, producing social stigma, and the fear of that stigma make it a slow and painful process for us to attempt to understand each other and the complexity of our society.