According to the National Institute of Justice, more than 75 percent of all prisoners are arrested within five years after release from prison. While there are hundreds of factors that play a role in this horrifying failure of our criminal justice system, there is one factor that is particularly worrying and which goes against the principles of due process of law. This problem essentially boils down to the fact that ex-convicts are being punished after they have finished serving their sentence, not by the state, but by individual citizens. These people, who take it into their own hands to punish prisoners beyond the amount deemed fair by the state, are the employers across the country who require job applicants to disclose their criminal record at the expense of both fairness and the safety of our country.
There is a principle in criminal justice that the sentence given by the state is the one you serve; that whether or not you think we punish our criminals too much or too little, that once a criminal has served their time, they should have finished paying the price for their actions and be safe to return to society. If either of these things were not the case as determined by an objective system (our courts), then the sentence would be longer, meaning that when an individual is released from prison, they will have finished making up for their crime and will not pose a threat to society—at least according to the government, which we trust enough to let take away the rights of our fellow citizens.
This implies that an employer denying a potential employee work because of their record is an unfair punishment, because it is taking someone who is considered to have paid for their actions and to have been rehabilitated and punishing them some more. This is not the fault of an employer, who may be acting in their own interest, but rather the state, which allows employers to use an individual’s criminal record in the first place. If we truly believed as a country that those who were found guilty of a crime are still dangerous in some way, then we should keep them locked up for longer and work on a prison system that does a better job with rehabilitation, not delegate the task of protecting society from criminals to employers.
What makes this practice particularly dangerous isn’t just the ethics of it, but rather the fact that what is beneficial for an employer can be extremely harmful for society as a whole. Failure to find work as an ex-con is cited as one of the major causes for recidivism, leading to two distinct harms: the first is that there is an increase in crime, because people without jobs will turn to harmful alternatives to make ends meet when given no other options; the second is the huge financial cost of housing and feeding millions of prisoners sucked into perpetual imprisonment.
The same logic can be applied to sex offender registries, which are a more dangerous version of the same thing. The logic behind these registries is that people might want to know, for their own safety or the safety of their children, who sex offenders are in their neighborhood. The clear issue here is that if a sex offender posed any significant risk of reoffending, it makes little to no sense that the state is releasing them into the public and telling people to worry about protecting themselves by means of this list of offenders. Knowing who the sex offenders are shouldn’t make you feel safer—it should make you feel substantially less safe because it implies that our government believes that the people it is choosing to release into society pose a threat to you.
“But wait!” you may shout, “Employers deserve the right to know who they’re hiring.” Fine, you may believe this, but just as you wouldn’t want your employer to be able to read every email you’ve ever sent, or to be able to tap your phone for a month to make sure you’re not doing any crime, you can agree that there is some limit to what an employer should be allowed to know. When their knowledge is costing society millions of dollars and increasing crime, all while violating the rights of criminals to due process, that line has certainly been crossed.