Sunday, November 28, 2004

Clean Slate

This sounds like a bad idea:
From midnight Sunday, hundreds of thousands of New Zealanders with a criminal past will be able to officially deny it.

That is when the so-called clean slate act comes into force. [...] To qualify offenders need to have stayed out of trouble for at least seven years, and it only applies if the offence did not result in a prison term.

There are exceptions to the law: police, prison officers, judges and childcare workers will still have to come clean. [...] Act MP Stephen Franks is opposed to the change. He says people are being instructed to lie, and that employers now fact a $10,000 fine if they try to find out about a person's criminal history.

Franks also thinks the law will promote discrimination.

"Young Maori are four times more likely to have an offence. An employer won't just accept that they're not allowed to ask, they'll use stereotypes."

But Green MP Nandor Tanczos says people feel inhibited by their previous convictions and have been actively discriminated against because of them.

Do we really want to use the word "discrimination" to describe judging others based on their own past actions? People might get the impression that discrimination isn't such a bad thing after all.

I have to agree with David Farrar:
I have some sympathy for the problems an old and minor conviction can cause people, but I think the vast majority of people and employers will look on old convictions in their context and judge accordingly. This law removes the right of people to be told the truth and encourages lying.

He goes on to suggest that someone could start up an internet database to circumvent this law. But if Franks is right that employers face a $10000 fine "if they try to find out about a person's criminal history", then presumably checking the database for a job applicant's name would count as an offence here. (Unless "find out" in that context is restricted to asking people directly; perhaps external research is permitted?)

I hope that most employers would be reasonable in their assessments of old convictions. But it is possible that they often are not, and that the stigma of a criminal record is unfairly impeding the lives of good people who made some minor mistakes many years ago. If that is indeed the case, would this new legislation be justified?

Even then, I'm not convinced. Call me old-fashioned, but I really don't like the idea of our government encouraging people to lie. Honesty should be recognised as an important civic virtue, and treated as such (i.e. encouraged) by our officials. There must be better answers to the 'stigma' problem.

One option would be to wipe those criminal records altogether. That would seem especially sensible for people with but a single conviction for some trivial offence in their distant past. If they deserve it, then give them a real "clean slate", don't tell them to lie about it. (And if they don't deserve it, then why shouldn't potential employers know about that?)

Alternatively, one could try to overcome the stigma by way of a public education campaign. (It's worked wonders for mental illness, after all. "Know me before you judge me," and all that.) Trot out ex-"criminals" made good, like that Shaw fellow mentioned in the article. If you highlight just how trivial some convictions are, then employers might become less likely to jump to conclusions when hearing that an applicant has a record. If you can show that even people with more serious criminal records can turn their lives around and become trustworthy citizens, then that'd help too.

Let employers make informed decisions. If you don't trust them to do that, then educate them so that they (more likely) will. But enforcing ignorance and encouraging deceit? Not in any society I want to live in, thankyou very much.

12 comments:

  1. "Do we really want to use the word "discrimination" to describe judging others based on their own past actions? People might get the impression that discrimination isn't such a bad thing after all."

    The answer is clearly yes if this information is as irrelevant as skin colour, ethnicity or sex. If it is officially recognised as discriminatory to use that information as the basis of employee selection, then yes, judging others on their past actions is discriminatory.

    "Let employers make informed decisions. If you don't trust them to do that, then educate them so that they (more likely) will. But enforcing ignorance and encouraging deceit? Not in any society I want to live in, thankyou very much. "

    I notice that your beliefs about it being considered in context come without any kind of statistical or from examples. That doesn't make you wrong, but it might be worth investigating that belief.

    I disagree. I am of the belief that discrimination will occur in the majority of cases.

    I think the examples of social vilification on the basis of (for example) child pornography show how great a scar a crime can leave.

    I would have thought it simplest to give people the right to withhold information about their criminal past (under appropriate circumstances) and to include a clause in the relevant anti-discrimination guidelines for employers.

    -T 

    Posted by Tennessee Leeuwenburg

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  2. I'm not sure that we need to describe this as 'encouraging people to lie'. This is a public policy, and people will know about it. So the question becomes, "have you been convicted of any crime in the past seven years?", and the honest answer is "no, I haven't." Even if it is asked as "have you ever been convicted of a crime?", I think that should be interpreted as shorthand for the former question -- especially since the literal latter question becomes illegal. 

    Posted by Jonathan

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  3. It is possible for a person to be almost as distinct from themselves in the past as they are from another totally individual person. Lets say in your past for example you used to drink a lot or took drugs and now you don't and have not for 7 years - you may not even have any recolection of that past and you may well be no more likely to commit another crime than anyone else in the world (all depending on the situation).

    Having said that I don't like systems that reward lying. But is there really an incentive for a criminal to place his convictions on his CV? surely he would lie (or er.. FORGET) and if he was found out he would lie again next time UNLESS he thought there was a very high probability of being hired anyway. about half of all people probably lie on their CV anyway - so not like he wil get procecuted.

    "If you highlight just how trivial some convictions are"

    Haha, way to destroy respect for the law, Richard - this campaign could be a social disaster if your not careful. But tales of turnaround would be good - infact I think they are good anyway wether or not htey have this specific aim. 

    Posted by geniusnz

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  4. Presumably Discrimination in common english is considered to only apply in regards to those who dont deserve it (are innocent) or when it is applied to a group where most dont deserve it (tainted by a minority).
    So a businessman might be making a technically correct decision to not hire maori (because of hte greater chance they are criminals that could harm him and his business) but is not allowed to do it because most of them are not.
    Forcing them to hire group they would logically discriminate agains is rather like a tax (of course if it is a group they would "illogically" discriminate against it is like an sort of forced subsidy)
    We may as well be clear exctly at what point discrimination becomes logical - because I am likely to discriminte against a man who just killed someone 5 minutes ago and almsot everyone would support me on that but I would probably not discriminate against someone who robbed a house 20 years ago and the majority might support me on that (or not) even though "people who never robbed houses" would probably make a slightly better employee pool.

    Do we say - discrimination is illegal as soon as the damage domne by the exclusion of that part of society is greater than the benefit to the oother group of that generalization?
    problem here is that may be a lower standard than we have now.... 

    Posted by geniusNZ

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  5. The key issue is whether people with sealed criminal records (under the act) are significantly more likely to be convicted of a (new) crime than people with no previous convictions. The Justice Department presumably has to "seal" the crimes when a person applies (or automatically?) and "unseal" them if that person is reconvicted. That should make it a doddle to collect statistics on convictions by persons with open, "sealed" or "genuinely clean" criminal records.  

    Posted by Greyshade

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  6. T, how is skin colour (for example) an "action"?

    Jonathan - that's a good point. If the question was widely understood as you have suggested, then we might be able to avoid the bad consequences of having the state perceived as encouraging lying. Whether that's realistic, I'm not sure. (The opposition parties are sure to try their best to frame it otherwise, as we can already see from Franks' comments.)

    And, deceit aside, it still leaves the question of whether enforcing ignorance here is appropriate. I guess it isn't so bad - without the deceit problem, I don't really have any strong objections here - but I think I'd still prefer an alternative solution (if those I sketched are at all practical). 

    Posted by Richard

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  7. I didn't say skin colour was an action, and I don't understand the relevance of the question. Why is it important that the basis for discrimination not be an action? Clearly there are many actions which form the bases for discrimination which are recognised by Australia's legal system, such as becoming pregnant, being an overseas migrant, choice of religious iconography, etc etc. Why do you feel that it is a strong argument to suggest that someone's past actions are somehow different from other aspects of their identity? What about tattoos, political stance, sexual choice? Should I be allowed to discriminate against gays because it is an 'action'? I don't think your argument is rational. What you need to do is argue for why criminal action is different from other kinds of action which are clearly allowed for in anti-discrimination laws.

    I don't see it, myself. 

    Posted by Tennessee Leeuwenburg

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  8. It is prima facie reasonable to judge people based on what they have done. We are responsible for our actions in a way that we are not for our skin colour.

    That's not to say that all actions are relevant in every context, as you rightly note.

    But it would be odd to say that Kerry-voters "discriminated" against George Bush because of his poor governing record. And the case of past criminal actions strikes me as having more in common with the Bush analogy than with having sexual relations that someone disapproves of.

    The point is, it is (generally) reasonable to judge people negatively for performing criminal actions. It's something they're responsible for, and it reflects badly on their character (and rightly so). This is not discrimination, it is respecting an individual's personal responsibility.

    It is not "discrimination" to refuse to hire a known thief or embezzler to a position requiring financial responsibility, it is simply prudent. To call this "discrimination" is the height of PC bullshit, and might cause people to think less seriously of cases where REAL (wrongful) discrimination takes place. That was the point I was trying to make.

    (It's not really central to my post though.) 

    Posted by Richard

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  9. Indeed - and to be "discriminating" used to be a positive attribute!

    What is boils down to is whether people's judgements of criminals is going to be reasonable or discriminatory. My intuition votes for "discriminatory". Yours votes for "reasonable".

    I don't think you can hold that judgements of people's past is necessarily non-discriminatory. I think you can discriminate on anything, which is what I was trying to say.

    There is also a possible conflict between best-for-employer and best-for-society. And the best-for-society camp wins if criminals don't have to reveal their past in certain circumstances. I think their human rights win over the vague benefits of full disclosure...

    I think that bias-against-criminals is similar in nature to bias-against-migrants, and not entirely dissimilar from bias-again-colour.

    In a kind of Objectivist world where self interest was properly enlightened under perfect information and rationality, you might be right, but I think the social justice issues take the foreground here.

    -T 

    Posted by Tennessee Leeuwenburg

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  10. T, I agree it's quite possible that employers might be unreasonable here. The question is: what is the best way to deal with this? I outlined a couple of alternatives in the main post - do you think they wouldn't work? I would only want to resort to institutional deceit as a last resort.

    Also, I still disagree with you on whether we should describe an unreasonably harsh judgement here as 'discrimination'. My initial thought was that I'd rather reserve the word for cases where individuality is being disrespected. Race or sex stereotypes are clear examples of this. They involve judging a person based on an arbitrary group membership, rather than things that they as an individual are responsible for.

    But you were right to point out that one can still discriminate over things that people are individually responsible for. You seem to be instead suggesting that the essense of discrimination is simply making an unreasonable judgement. But I think I'd rather say that discrimination is judging people on some basis that is irrelevant to the given context. It seems to me that past criminal actions are not entirely irrelevant here. So, I would say, to make an unreasonable judgement based on someone having a criminal record is not "discrimination", it's just harsh.

    My concern is that extending the word "discrimination" too far runs the risk of "watering down" the concept. (Rather like calling the opportunity to get a sex change a "human right". It just doesn't compare to torture or poverty.) I just don't think it's appropriate to describe a harsh reaction to criminality as "discrimination". I'd rather reserve that for more serious offences. But maybe that's just me.

    GeniusNZ - "Haha, way to destroy respect for the law, Richard"

    Oops. Guess I didn't think that one through too well! 

    Posted by Richard

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  11. "Also, I still disagree with you on whether we should describe an unreasonably harsh judgement here as 'discrimination'. "

    I would have said that is more of less the definition of discrimination - the 'unreasonable' part of 'unreasonably harsh'.

    However you might also say it's not discrimination, it's just unreasonable. But you are part of a class - the class of criminals. Just as migrants have poor English skills, which is not irrelevant to many jobs. And, just as exceptions are made for positions where language skills are part of the selection criteria, ditto clean slate doesn't apply to positions of responsibility.

    I can see how you want to say that something like skin colour is completely insane, whereas criminal past is only a faint irrationality.

    Let me assure you that regardless of our preferred philosophically rigorous definitions, under Australian law, workplace discrimination and harassment could already apply if someone with a criminal background were being singled out - in the right circumstances. (i.e. bullying, denial of promotion, not hiring them etc). My authority for this is the brief online training I had as part of my job in the public service.

    I assume it's also true of New Zealand.

    I am not a big fan of deceit, but to take an extreme example, I would certainly lie about my past to save my own life. (not talking about escaping justice here).

    I think the suggestion of the employers simply not being allowed to ask is a reasonable one. If they ask "were you a criminal within the last seven years" you can honestly say "no", and you can just withhold information otherwise. I think that's preferable...

    -T 

    Posted by Tennessee Leeuwenburg

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  12. "Call me old-fashioned, but I really don't like the idea of our government encouraging people to lie. Honesty should be recognised as an important civic virtue, and treated as such.."

    I Agree with jonathan, it is not a lie. A conviction is not tangable, it is a tool used by the government and represents what they decide. If they decide that you no longer hold a conviction, then you dont. Employers dont ask "have you ever committed a crime" they ask if you have a conviction. Even if you disagree with this point, you cannot disagree that every employer would know exactly what the question meant when they asked about convictions - they are simply asking for the past seven years. The answer they get is in no way a lie if the question asker and respondant both are aware of the true meaning behind the question, and the limitations of the answer. For example. When the census ethnicity question asks someone if they are pakeha, maori etc, and you answer Moari, are you lying? IS this the government encouraging institutional dihonesty because in truth you are only 25% full blood maori and 75% mix of others? Or even if you answer European NZer, are you lying you personally didnt come from Europe? but rather Te Awamutu? 

    Posted by Razamitaz

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