Sometimes the treatment we encounter in our interactions with society is clear cut. At other times the lines are blurred, which can make it difficult to distinguish whether we are being treated fairly or not. But how do you know if its fair treatment or disparate treatment? This article tells you how.
Fair treatment is when someone behaves towards you in an impartial and non-discriminatory manner. Disparate treatment singles out individuals on the basis of nationality, race, ethnicity, sex, gender identity, or sexual orientation.
When discriminatory policies affect a particular group of people, but are neutral on their face, this is known as disparate impact. If these policies are race-based (i.e., we only admit ______________) it may trigger both the disparate treatment and the disparate impact ground. When race-based policies are affirmed by institutions and systems this is called institutional racism.
Three tenants have a house pet: T1, T2 and T3. All three have a house pet for a different reason. T1 and T2 reside in Building A with their house pet. T3 resides in Building B with their house pet. T1 babysits their cousin’s house pet and usually brings them over to Building A. When T1 brings over their cousin’s house pet, they bark at T2’s house pet and, vice versa. The cousin’s house pet lives in Building C. Although T1 and the cousin’s house pet get along well now, in the past the cousin’s house pet barked at T1’s house pet, which led to a civil dispute in court.
All three owners have a condition that allows them to have a house pet. While the cousin’s house pet is entitled to visit T1 and their house pet, the cousin does not have a condition that it would allow them to claim ownership of space in Building A. One day, the landlord swaps T1 and T3. The move sparks outrage. T1 alleges the move was discriminatory on the following grounds:
T1 claims the landlord made the swap because it dislikes Poodles.
T1 claims that T3’s house pet is given preferential treatment because T3 breeds dogs for blood sport. In other words, T3 is a dog breeder. The landlord is also a dog breeder.
T1 claims T2’s T-Cup is not really a pet, and therefore, they should have been subjected to the swap instead of T1.
Was the Move Fair Treatment or Disparate Treatment?
While disparate treatment is normally used in the employment context, it is used by way of example. It cannot be denied that the dislike for Poodles may trigger a disparate treatment claim if the landlord expresses this to the Poodle owner. Even when there is evidence of disparate treatment, it is difficult to prove. T1 would need to persuade the landlord to admit that it said they disliked Poodles. In other words, the landlord must go on record saying “I moved you because the Poodle should have the space.” This almost never happens.
It may be the case that all three pet owners are members of a protected class by having a pet. It may also be the case that the landlord is aware of the reasons all have a pet, but not the other tenants.
By moving T1 to Building B with their pet, are they worse off?
T1 must prove they are worse off than T2 and T3 by being in Building B.
T1 must also point to other similarly situated individuals who were treated more favorably and not subject to the same treatment.
Here, T1 points to T2 and T3. Both the conditions of T2 and T3 for having a house pet is not immediately apparent to the general public, although it may be obvious to the landlord, and even some of the tenants. Did the landlord put T1 in a worse off position than they were before? Some examples of being worse off is being moved into a lobby area where there is no privacy for the owner and their house pet or, being forced to live on the streets with their house pet. Another potential example is telling T1 they cannot bring over their cousin’s house pet into Building A. Can T1 demonstrate either of three occurred in their situation?
T1 has not been placed in a lobby area, their house pet has not been ordered to remain in a kettle, nor are the two forced onto the streets. In Building B, T1 has all of what could be offered in Building A. Their cousin’s house pet can also visit Building B, as it did in Building A.
Without being privy to or understanding the reasons as to why T2 and T3 have a pet, it may be difficult for T1 to prove disparate treatment occurred.
What if T1 and T3’s house pets are friendly to one another, but both dislike T2 and their house pet? Both T1 and T3 have evidence that T2 moved from another location where pets engaged in blood sports. In fact, both T1 and T3 know T2 petitioned the Supreme Court of Pet Conduct regarding pet mistreatment, and is a strong advocate against blood sports.
If T1 and T3 conspires to use what they know about T2’s activism to make the environment hostile for T2, and to affect the removal of T2 themselves, is this fair treatment or disparate treatment? Would T2 have a constructive eviction claim?
An informative review of Angela Davis’ Are Prisons Obsolete.
This is a Review of Angela Davis’ Are Prisons Obsolete?
Angela Davis’ (2003) piece, Are Prisons Obsolete?, is not only an intriguing one but a grim reality of the U.S. prison system. In the piece, this system is referred to as the prison industrial complex given its surpluses of capital, land, labor and state capacity (Davis, 2003, p. 5). The U.S. prison system can be likened to Debra Satz’s ‘theaters of inequality’ theory. First, it is a public or semi-public interaction. It is conceded that many aspects of the prison system are not public. However, as Reed-Sandoval (2015) points out, “one can be an audience member for the theater without personally witnessing it. One need only absorb its damaging effects” (p. 204). Second, domination occurs between at least two “characters” (i.e., the U.S. government/prosecutor/prison official & the suspect/defendant/inmate). Third, as Satz recognizes, the “roles” of the “characters” are systematic (Reed-Sandoval, 2015, p. 205). Here, the incarcerated person is unquestionably dominated by the government and privatized prison officials. Fourth, the U.S. prison system has a history of injustice and bears a resemblance to status inequality (Reed-Sandoval, 2015, p. 205), like slavery, lynching, and segregation (Davis, 2003, p. 9). To be sure, Black people became the prime targets of a developing convict lease system, referred to by many as a reincarnation of slavery (Davis, 2003, p. 11). Last but not least, the prison industrial complex reinforces the very status inequality that brought about the theater of inequality. When viewed in its totality, it is quite clear that the U.S. prison system, in the words of Reed-Sandoval, “perpetuates a vicious cycle of injustice by systematically displaying one group as inferior to and dominated by another” (Reed-Sandoval, 2015, p. 205).
Canada, Q. (2021). Review of Angela Davis’ Are Prisons Obsolete? Philosophy 213. The University of Arizona.
Davis, A. (2003). Are Prisons Obsolete? New York: Seven Stories Press. Reed-Sandoval, A. (2015). Deportations as Theaters of Inequality. Public Affairs Quarterly, 29(2),
Black oppression still persists in America. Black people know it. White people know. Everyone knows it. This raises the question as to whether emigrating to the continent of Africa would offer the liberation Black Americans seek. In approaching this issue, it is important to define what I mean by liberate. In its simplest definition, liberation means “The action of freeing a region or its people from an oppressor or enemy force…”
An argument can be made that Black Americans are no longer enslaved, and therefore, liberation has been achieved. However, it is worth mentioning that there is limited evidence to suggest Black Americans are entirely liberated. It is generally agreed today that Black Americans remain the targets of racial profiling, police brutality, incarceration, oppression, and discrimination in the United States. While one can agree up to a certain point with the idea that Black Americans are no longer enslaved—in the sense of chattel slavery—it has been argued that slavery mutated into something more ominous: mass incarceration (Pereira, 2018). In the United States, Black Americans represent 13 percent of the total population, but they account for 40 percent of the total prison population (Carson, 2020). Pereira (2018) further contends the overrepresentation of minorities (e.g., Blacks) in the U.S. prison system is by design. She goes as far as to say mass incarceration did not replace slavery—it continued slavery under a new name. Thus far, it would seem, mass incarceration in the United States is equally relevant to the conversation on liberation.
The Enslavement of Blacks in the U.S. – Black Oppression Still Persists in America
One of the most striking features for a liberation argument is that many Africans were involuntarily dispersed to the United States from their original homeland. It is a well-known fact that between 1525 and 1866, 12.5 million blacks were kidnapped from Africa and sent to the Americas through the transatlantic slave trade (Solly, 2020), where slavery emerged in several colonies as a legal institution (Hornsby, 2005, p. 143). By 1916, it is estimated that 90 percent of Black Americans were still “held captive by the virtual slavery of sharecropping and debt peonage…” (Solly, 2020).
Despite enduring centuries of enslavement, exploitation and inequality, Black Americans in the United States still encounter racially charged physical violence. For example, during the end of Reconstruction and World War II, more than 4,400 blacks were lynched in the United States (Solly, 2020). One should, however, not forget that in 1908, a mob terrorized Black American neighborhoods across Springfield, Illinois, vandalizing black-owned businesses, setting fire to the homes of black residents, beating those unable to flee and lynching at least two people (Solly, 2020). Multiple massacres also broke out in response to false allegations that young Black men had raped or otherwise assaulted White women. Eerily similar allegations by the “Karen” archetype have teleported into the Common era and have risen to outstanding levels of notoriety, thanks to a flood of footage that has become increasingly more violent and disturbing (Lang, 2020; Shenk, 2020). When Amy Cooper called the authorities on Christian Cooper (no relation), it was not at all inconceivable that Mr. Cooper could have been killed by the police.
The racism, White entitlement, and unchecked White privilege are testaments of the daily Black American experience in the United States. All of which may support the idea of an intifada with the host society and a journey back to Africa.
The Use of Lethal Force Against Blacks in the United States
The historic forms of anti-Black violence not only magnify the racial discrimination felt by Africans in the United States, but also draws striking parallels to contemporary conversations on police brutality. Katie Nodjimbadem pointed out a late 1920s Chicago and Cook County, Illinois regional crime survey, which found that while Black Americans constituted just 5 percent of the area’s population, they made up 30 percent of the victims of police killings. The Orangeburg Massacre of 1968 is another telling example of the horrific violence Black Americans have suffered in the United States, in which law enforcement officers shot and killed three Black student activists at South Carolina State College (Solly, 2020). The probability that an unarmed Black American will be shot by the police is 3.49 times greater than the probability that an unarmed White person will be shot by the police in the United States (IACHR, 2018, p. 59). In a 2019 study, researchers found Black American men in the United States experience the highest levels of inequality in mortality risk. In other words, Black American men are about 2.5 times more likely to be killed by police over the course of their life than White men (Edwards, Lee, & Esposito, 2019, p. 3). The study also found Black American women were 1.4 times more likely to be killed by police than White women (Edwards, Lee, & Esposito, 2019, p. 3). In fact, it is predicted that 1 in 1,000 Black American men and boys will be killed by police over the course of their life in the United States. The last example highlights the fact that Black American men, between the ages of 25 and 29, are killed by police at a rate between 2.8 and 4.1 per 100,000 in the United States (Edwards, Lee, & Esposito, 2019, p. 6). The alarming rate of Black Americans killed, for the most part, by White police officers may demonstrate that the host society is not as safe for Blacks as government officials make it appear. It is yet another reason many Black Americans have strongly considered leaving the United States.
The United States’ Doctrine of Qualified Immunity. Black Oppression Still Persists in America.
The Fourteenth Amendment was drafted to redress—and prevent—the same police violence which Black Americans suffer this very day. That Amendment provides Congress with broad power to curb unjustified police use of force (Wydra, 2020). In 1871, the Reconstruction Congress passed Section 1983 to enforce the Fourteenth Amendment and to ensure that individuals, like Black Americans, could go to court to redress constitutional violations and obtain justice (Wydra, 2020). In the thousands of police-involved killings between 2005 and 2015, just 54 police officers were ever charged with a crime, and most were eventually cleared or acquitted (IACHR, 2018, p. 65). Even in cases where the incident had been documented on video, like those where victims had been shot in the back, or cases where allegations of a cover-up had been made, prosecutors are less likely to file charges against police officers than civilian suspects (IACHR, 2018, pp. 65, 136). This immunization from accountability is known as “qualified immunity,” which effectively bars the courthouse doors for Black Americans whose constitutional rights have been violated by police (Wydra, 2020). Numerous instances of police brutality have since been dismissed on qualified immunity claims, such as the case of Makaila Brooks, who was tased three times over a misunderstanding (Tyne, 2020). Wydra (2020) also believes that qualified immunity erodes the enforcement of constitutional rights, undermines the rule of law, and denies justice to those victimized by the police, allowing the cycle of police violence and brutality to repeat itself over and over again. In 2020, Black Americans account for 28 percent of those killed by police despite being only 13 percent of the population (Mapping Police Violence, 2020). This long line of police killings—George Floyd, Breonna Taylor, and Raymond Chaluisant among the most recent—is the result of a system that breeds police unaccountability in the United States (Wydra, 2020).
It is very clear from the observations above that government officials in the United States have not held police officers to the same legal standards as the very citizens they are supposed to protect. Slavery, police brutality and deadly use of force, racially biased policing practices, and the racial disparities that permeate virtually every part of the criminal justice system, are deeply entrenched in local, state, and federal institutions—are widespread—and represent a clear threat to the human rights of Black Americans (IACHR, 2018, p. 12). All of which may support an argument that Black Americans may gain a new sense of freedom by emigrating to the continent of Africa.
Is Moving to Africa the Answer or Should Black Americans Stay and Fight for Rights? Black Oppression Still Persists in America.
Tyne defines racism as a “prejudice, discrimination, or antagonism directed against someone of a different race based on the belief that one’s own race is superior” (Tyne, 2020). It has been argued that racism and race can only exist once societies accept a biological basis for difference and the supposed inferiority of outsiders (Hornsby, 2005, p. 101). Others, however, see the results of prejudice as more important than their ideological underpinnings (Hornsby, 2005, p. 101)—racism is a moral issue, a defect of human nature and a symptom of an even deeper cause. No matter how much the desire to and attempt to, no one can eradicate someone’s moral depravity merely through policies, laws, or demonstrations of force (Tyne, 2020). With racism, Black oppression still persists in America.
Tyne’s line of thinking, whether advertently or inadvertently, appears to echo Marcus Garvey’s argument that Black Americans’ quest for social equality in the United States is a delusion. Garvey believed Black Americans were fated to be a permanent minority who could never assimilate because White Americans would never let them. Black Americans, therefore, could not improve their condition or gain autonomy in the United States. Garvey also feared for Blacks living in countries where they were a minority. He believed that continual demands for equality by Black Americans would threaten Whites and would lead to increasingly violent racial conflicts (Bolaffi, Bracalenti, Braham, & Gindro, 2003, p. 28). According to Garvey, only in Africa was self-emancipation possible. This Back-to-Africa movement further urged Black people to be proud of their race and origins (Bolaffi, Bracalenti, Braham, & Gindro, 2003, p. 28). Even so, Garvey never envisioned a sudden mass emigration to Africa. He proposed only that a few thousand Black Americans move to Africa and establish an independent nation committed to fighting for the rights of Blacks everywhere (Lawler & Davenport, 2005, p. 54). A strong African nation, Garvey argues, might be able to force other countries to respect the rights of their Black citizens (Lawler & Davenport, 2005, p. 54).
In contrast to Garvey’s view that Black Americans would gain a new sense of freedom and strength by emigrating to the continent of Africa, Tariq Nasheed, the film producer who identified the lineage Foundational Black American asks: How could Black Americans go back to a place where they have never been? Other critics who oppose neo-Garveysim further contend Black Americans should not move to Africa because they would be strangers there. Thus, it would be better for them to concentrate on improving conditions in the United States (Lawler & Davenport, 2005, p. 54). In other words, Black Americans should remain in the United States and fight for their rights. Indeed, Du Bois insisted on making clear that Black Americans knew what their rights were, knew they were being unjustly denied equal citizenship, and that Black Americans would not rest until they had all the liberties and opportunities due them as equal members of the republic (Loury, et. al., 2008, p. 84).
Referring back to the 1800s, as it relates to the formation of the American Colonization Society (“ACS”), White Americans had begun trying to erase the Black presence in the young republic. Whereas Garvey sought a return to Africa in the hope of empowering blacks, the ACS wanted to isolate them in a land its members and supporters labeled as forsaken. The Society purchased a large tract of land in West Africa in 1821 and immediately began transporting freed slaves across the Atlantic Ocean. Eventually, an estimated 12,000 Black Americans arrived in what became the modern nation of Liberia (Ellison, 1970; Lawler & Davenport, 2005, p. 55). Today, approximately 54 percent of Liberia’s population lives below the poverty line. Only 16.9 percent of its people have access to improved sanitation facilities, and a mere 10 percent have access to electricity. Violence against women is a major concern in Liberia, like female genital mutilation. Marriage at a young age is also commonplace (Turner, 2018). Despite the fact that 12 percent of the population is Muslim, Black Muslims have had difficulties registering to vote. Moreover, the LGBT community has no rights (Turner, 2018).
On the other hand, Liberia has a variety of institutions working in the nation to improve the country’s human rights situation, including the Liberian Independent National Commission of Human Rights, the Ministry of Justice Human Rights Protection Division and various national committees that focus on specific issues such as child labor rights. The government has also cooperated with the U.N. Office of The High Commissioner for Human Rights to address human rights violations in Liberia (Turner, 2018). Liberia, while not a perfect country, is developing into a stronger republic. It is also strengthening the human rights of its people. Overall, its improved human rights situation makes it an attractive option for Black American relocation. Or, does it? Other evidence indicates Black oppression still persists in America, and elsewhere.
If Moving to Africa is the Answer, Why Are Africans Fleeing the Continent?
If moving to Africa is the answer to liberation, why are many Africans fleeing the continent and filing refugee claims in other continents? One cannot deny that Africa is one of the main refugee generating continents in the world, which comprises of four major refugee generating regions. The first is the Great Lakes region where the political and ethnic conflicts in Burundi, the Democratic Republic of Congo and Rwanda have generated millions of refugees over the past four decades (Rutinwa, 1999, p. 3). Most of these refugees have been hosted in the region, mainly in Tanzania, Uganda and Kenya, as well as in the refugee generating countries themselves. The second major refugee region is the Horn of Africa, where a succession of armed conflicts resulted in the flight of millions of people in search of safety. These have included the war between Ethiopia and Somalia for control of the Ogaden region in 1977-1978; the struggle for Eritrean independence from Ethiopia, which began in the 1950s and was finally achieved in 1993, and the conflict between government and rebel forces in southern Sudan. Most of these refugees found protection within the countries of the Horn itself, as well as in the neighboring states of Egypt and Kenya (Rutinwa, 1999, p. 3). While those from the Syrian Arab Republic were the most to file refugee claims in 2014, those from Somalia made up 1.11 million claims (UNHCR, 2014, p. 9). It cannot be denied that South Sudan is Africa’s largest source of refugees with 2.3 million people (McCarthy, 2019; Malim 2020). As a result of the prolonged warfare between states and people groups, many citizens are located in the midst of the conflict areas and in extreme danger. Since 2013, there have been continued violence, loss of access to resources, and consequential hunger because of the impact to the local economy (Malim, 2020).
All of this points to the conclusion that these countries may not be the safest in Africa for Black Americans to migrate to if they choose to depart the United States.
Can the United States Survive Without Black Americans?
If one weighs the pros and the cons of this debate, one soon realizes there is no easy answer to the question of whether Black Americans should move to Africa. For instance, in 1970, Ralph Ellison addressed the question of a new America without Blacks. Ellison expressed the opinion that, had there been no Blacks in the United States, certain creative tensions arising from the cross-purposes of Whites and Blacks would not have existed (Ellison, 1970). He further argues without Blacks, there would be no Stephen Crane, who found certain basic themes of his writing in the Civil War (Ellison, 1970). Ellison also believes there would have been no Hemingway, who took Crane as a source and guide. As explained by Ellison:
“[W]ithout the presence of Negro American style, our jokes, tall tales, even our sports would be lacking in the sudden turns, shocks and swift changes of pace (all jazz-shaped) that serve to remind us that the world is ever unexplored…[w]ithout the presence of blacks, our political history would have been otherwise. No slave economy, no Civil War, no violent destruction of the Reconstruction, no K.K.K. and no Jim Crow system. And without the disenfranchisement of Black Americans and the manipulation of racial fears and prejudices, the disproportionate impact of white Southern politicians upon our domestic and foreign policies would have been impossible…” (Ellison, 1970).
All of Ellison’s views points to the conclusion that the United States could not survive without the presence of Black Americans, to which he refers as “the irony implicit in the dynamics of American democracy” (Ellison, 1970). Black Americans in the United States, according to Ellison, symbolize the country’s most stringent test and the possibility of its greatest human freedom (Ellison, 1970). One cannot possibly accept Ellison’s view that without the existence of Black Americans, slavery would not have existed. If there were no Black Americans in the United States, it is well within the realm of possibility that others outside the continent would have been kidnapped from their homeland and sent to the Americas through the transatlantic slave trade. For instance, Franklin and Higginbotham (2011) found that indentured servants worked alongside African slaves and often received treatment that was just as harsh. Without Black Americans, it is conceivable that men of another “race” would experience the highest levels of inequality in mortality risk from police violence. Not only is it likely that the K.K.K. would target and harm the alternative race, but it is also conceivable that this race would suffer under Jim Crow laws and would face racial discrimination in the United States. Even though the United States may not be able to survive without Black Americans, Black oppression still persists in America.
This article journeyed through the enslavement of Africans and the use of lethal force against Black Americans in the United States. It examined the United States’ doctrine of qualified immunity which immunizes police officers from accountability and explored the idea of Black Americans moving to Africa, and whether such a move would bring liberation. This article also explored the idea of the United States surviving without the presence of Black Americans and, touched upon Africans fleeing the continent of Africa. On reflection, it seems more accurate to say that the answer to the question, whether Black Americans should move to the continent of Africa, is a subjective one. While this paper disagrees with some of Ellison’s views, it does not contest the idea that without Black Americans, something irrepressibly hopeful and creative would go out of the American spirit (Ellison, 1970). In the words of Ellison (1970), Black Americans have put pressure upon the United States to live up to its ideals. Lastly, Black oppression still persists in America today and has not changed. Perhaps by departing the United States, those ideals will be realized.
Bolaffi, G., Bracalenti, R., Braham, P., & Gindro, S. (2003). Black Africa. In G. Bolaffi, R. Bracalenti, P. Braham, & S. Gindro, Dictionary of Race, Ethnicity and Culture (p. 28). Thousand Oaks: Sage Publications.
Carson, A. (2020). Prisoners in 2018. Retrieved from Bureau of Justice Statistics: https://www.bjs.gov/content/pub/pdf/p18.pdf
Edwards, F., Lee, H., & Esposito, M. (2019). Risk of being killed by police use-of-force in the U.S. by age, race/ethnicity, and sex. Retrieved from Prisonpolicy.org: https://www.prisonpolicy.org/scans/police_mort_open.pdf
Ellison, R. (1970). What America Would Be Like Without Blacks. Retrieved from Teaching American History: https://teachingamericanhistory.org/library/document/what-america-would-be-like-without-blacks/
Franklin, J., & Higginbotham, E. (2011). Establishing North American Slavery. In J. Franklin, & E. Higginbotham, From Slavery to Freedom (pp. 51-63). New York: McGraw-Hill.
Hornsby, A. (2005). A Companion to African American History. Malden: Blackwell Publishing Ltd.
IACHR. (2018). Police Violence Against Afro-Descendants in the United States. Retrieved from Inter-American Commission on Human Rights: http://www.oas.org/en/iachr/reports/pdfs/PoliceUseOfForceAfrosUSA.pdf
Lang, C. (2020). How the ‘Karen Meme’ Confronts the Violent History of White Womanhood. Retrieved from Time: https://time.com/5857023/karen-meme-history-meaning/
Lawler, M., & Davenport, J. (2005). Marcus Garvey: Black Nationalist Leader (Black American Achievements Legacy Edition ed.). Philidelphia: Chelsea House Publishers. Lexico, O. (n.d.). Liberation.
Loury, G., (2008). Race, Incarceration, and American Values. Cambridge: Boston Review. pp. 3-84.
Malim, M. (2020). Top 3 Countries Producing Refugees. Retrieved from Epimonia: https://epimonia.com/blogs/news/top-3-countries-producing-refugees
Mapping Police Violence. (2020). Police have killed 897 people in 2020. Retrieved from Mapping Police Violence: https://mappingpoliceviolence.org/
McCarthy, N. (2019). The Top Origin Countries For Refugees In 2018. Retrieved from Forbes: infographic/?sh=37db04636cce
Pereira, S. (2018). Mass Incarceration: Slavery Renamed. Themis: Research Journal of Justice Studies and Forensic Science:, 6(3), 42-54.
Reid, K. (2020). Forced to flee: Top countries refugees are coming from. Retrieved from World Vision: https://www.worldvision.org/refugees-news-stories/forced-to-flee-top-countries-refugees-coming-from
Rutinwa, B. (1999). The end of asylum? The changing nature of refugee policies in Africa. Retrieved from Refworld: https://www.refworld.org/pdfid/4ff597752.pdf
Shenk, K. (2020). The evolution of the “Karen” meme. Retrieved from The Elm: https://blog.washcoll.edu/wordpress/theelm/2020/09/the-evolution-of-the-karen-meme/
Solly, M. (2020). 158 Resources To Understand Racism In America. Retrieved from Smithsonian Magazine: https://www.smithsonianmag.com/history/158-resources-understanding-systemic-racism-america-180975029/
Turner, L. (2018). Top 10 Facts About Human Rights In Liberia. Retrieved from The Borgen Project: https://borgenproject.org/facts-about-human-rights-in-liberia/Tyne, C. (2020). Racism and abuse of power. Retrieved from Fundación Civismo: https://civismo.org/en/racism-and-abuse-of-power/
UNHCR. (2014). UNHCR Statistical Yearbook 2014: The Top 20 Countries to Have Granted Protection to Refugees in the 21st Century. Retrieved from UNHCR: https://www.unhcr.org/56655f4e0.pdf
Wydra, E. B. (2020). Release: Qualified Immunity: The Only Way to Fix It Is to End It. Retrieved from Constitutional Accountability Center: https://www.theusconstitution.org/news/release-qualified-immunity-the-only-way-to-fix-it-is-to-end-it/
We all make mistakes. In fact, it was Catherine Pulsifer who said, “we all make them, the difference is what we do after we make the mistake, how we see the mistake – a learning experience or a failure.” Mistakes, failure, and the sheer stupidity of having been convicted can toy with an individual’s mental health and invoke feelings of embarrassment. It can also cause a person to doubt their worthiness and position in the world. If that’s you, this article will show you how to overshadow a criminal record in 6 super smart ways.
According to Kathryn Schulz, these “terrible feelings come from realizing wrongness, not the feeling of actually being wrong. Because often, people are wrong for a while before they realize it, and in that intervening time, being wrong feels eerily like being right.”[i] But what if after serving a sentence and acknowledging the wrong, the individual is limited by public opinion, harshly criticized by family members, and still encounter difficulties in the arena of gaining access to employment?
In approaching this issue, one should note that change can be daunting for the de-centered self, and even, most of society. Individuals who enter their moral career will face challenges from a fraction of members of the establishment, as they will seek to put a ‘glass ceiling’ between that individual and what they want to accomplish. This barrier can take the form of publishing the individuals’ past on the internet and blacklisting them from future employment opportunities. In view of this, it’s quite likely that individuals seeking a second chance may not know exactly how to overshadow their criminal record.
1. Sit With the Truth
First, sit with the truth. It is generally agreed today that previously incarcerated persons have accepted the wrong. While it may not be possible to make amends for the wrong in every case, I believe one of the smartest ways to overshadow a criminal record is to sit with the truth. This is often done within the confines of a prison cell or in isolation. According to Erving Goffman, this ‘mortifications of the self’ or sitting out period, makes it easier to eradicate the old self and create a new one.
2. Create the Best Ascription of Yourself is How to Overshadow a Criminal Record
Second, create the best ascription of you. An ascription gives, imputes, or attributes certain features to a person without justification. Let’s say an individual volunteers at a homeless shelter and uploads several photos of their action on social media. People may see them as being reliable, selfless, and passionate about social causes. Another way an individual can create the best ascription of themselves is to start their own business. For example, if an individual opens a barber shop and donates a percentage of the proceeds to a victim’s fund, people may associate that person with philanthropy and ‘giving back.’ As can be seen, these attributes are starkly different from terms such as inmate, offender, and criminal.
3. Ask Search Engines to Remove Negative Results
Third, ask webmasters to remove these negative results from their websites. For example, under the Right to Be Forgotten law in Ireland, people can request search engines to rectify or erase search engine results that are inaccurate, incomplete, outdated, or no longer relevant. This is arduous to accomplish in other jurisdictions outside of the EU, which will be discussed in another article. Be that it may, it is settled law that even individuals with criminal convictions have a right to privacy, and the right to be left alone.
4. Educate Others on Differential Association is How to Overshadow a Criminal Record
Fourth, individuals should educate those around them on what Edwin H. Sutherland refers to as differential association. While and individual may be wholly responsible for the commission of past criminal conduct, crime is often learnt by individuals in primary groups whose members were criminally inclined. It is often thought that previously incarcerated individuals become criminal by being socialized, in that, the weight of views favourable to crime exceeds those that encourage them to be law-abiding.[ii] At times, individuals are merely a product of their environment.
5. Understand the Hierarchy of Credibility
Fifth, understand the hierarchy of credibility. According to Howard S. Becker, those at the top (individuals without a criminal past) usually appear much more credible than those at the bottom.[iii] While Becker’s specifically mentioned those in an organization or society as being at the top, we cannot ignore the fact that previously incarcerated individuals are treated as an underclass. As a previously incarcerated person or underdog, the individual might be so completely discredited by a criminal record, as effectively to have no voice at all.[iv]
While some employers might sympathize with, for example, marijuana users, it is hard to imagine many employers feeling obliged to assist ‘thieves’ or ‘crack cocaine dealers’ in their search for work. When this happens, use vocabularies of motive. These are the verbalizations of motives and intentions a person uses, not just to describe their actions, but also to justify them to others. For example:
“I burglarized that home when I was 21-years-old because I lived in an environment where I had to fend for myself. I was wrong. But now, I have changed, and I have made amends to my victims….”
“You should hire me for the following reasons: first, as a previously incarcerated individual, my lived-experience placed me directly in environments to understand crime and its impacts on people of color and the community….”
“The truth of the matter is that the content you are seeing online about me is factually incorrect. While that content may be persuasive because it is contained on a government website, its important to know [explain]….”
I understand there will be circumstances where the opportunity to explain convictions will be foreclosed; however, an individual should not allow this to choke off the flow of their enthusiasm or their resolve to create the best ascription of themselves. Where possible, individuals should explain the nature of their convictions in their cover letter or insert it into the objective on their CV.
For example, if an individual is applying for a job in home security, an objective may be “I used to steal stuff for a living, but I left that game behind years ago. I seek to use my criminal skills to test the security devices of corporations and to use my criminal “know how” to help make security devices more effective.”
6. Own Your Rite of Passage is How to Overshadow a Criminal Record
The sixth and final way on how to overshadow a criminal record is to own your rite of passage by drawing public attention to the changes in your status and social identity. You may also want to document how you handle the strong emotions that may be involved in such a transition.[v] As a previously incarcerated individual, pupil in society will use you as a scapegoat for their ignorance, phobias, political ideology, biases, and frustrations. When employers are unable to identify the real source of their own problems—having identified the source—are unable to challenge it, they may turn on some convenient target—you.[vi] Indeed, evidence demonstrates previously incarcerated persons are disproportionately the victims of scapegoating. Thus, it has been argued that police should stop making mugshots public, as it only compounds the problem.
While this is not to be used as a ruse to justify prior criminal conduct, it is your right to change the course of your life. If English poet, John Marston, were alive today, he’d tell you, “Every man has a right to change, a chance of forgiveness.”
Overshadowing the past is the death of the subject. With these 6 super smart ways, I am confident these tools will be the demise of how perhaps your criminal record will be used as an unquestionable reference point, and how, employers may judge it in the future.
Misogyny. Self-Preservation. A Whirlwind Romance. What Asylum Advocates Refuse to Accept
Look at what she did! She is a big problem! Are you seeing this! Get her out! If you took a glance at Dominant Woman: The Effects of Masculine Energy on Male Romantic Partners, you might utter these statements too. One can only imagine what the asylum seekers at Kinsale Road Accommodation Centre, who appropriated this preliminary investigation from my computer, voiced to a legion of refugee advocate services and politicians in Ireland to fit their narrative. Most asylum advocates do not understand that there is an ugly truth behind my direct provision research paper. This paper tells you what. It also answers why.
Next, it is expected that my opponents will, either now, or sometime in the future, circulate images of my having a conversation with pro-Irish advocates a few weeks ago. They may even spin that conversation into a macabre encounter. However, much respect is given to the pro-Irish men who challenged me on my worldview, articulated their perspective, and did not make outlandish assumptions about who I really am (at least, not to my face), and vice versa.
Why Dominant Woman Happened – The Ugly Truth Behind My Direct Provision Research Paper
Dominant woman happened because there was abusive behaviour against women and LGBT asylum seekers when I arrived at the Balseskin Reception Centre (“BRC”). BRC, in the earlier stages, was like being inside the Big Brother house. It was coed and communal living, which is quite different from residing in a shelter or an apartment. Indeed, if one wink twice, direct provision could have been mistaken for a college dormitory. I had never lived on one. Thus, my intention was to remove the gravity and distress out of the experience by treating it as a dormitory. But this would change after I found myself constantly being mistreated for being too altruistic. Indeed, I was pathologically altruistic. This is not an indication that I am infallible, or that I have never made mistakes. Indeed, I uploaded a list of foolish things I have done in my life. Nonetheless, this is a true reflection of what I observed happening while living in that particular centre.
As I discuss in my research paper, asylum seekers in Direct Provision are thought to share a common immigrational and parallel experience. From this detail, it could be said that members of the LGBT community enter Direct Provision under the blind assumption that it is an environment where one can create an empirical bond with the community. Even more so for persecuted members of the community. It first appeared as if one could create an empirical bond there. For instance, male asylum seekers would approach me and asked me to teach them English. But I soon learned this was a code name for sex. It cannot be denied that the need for closeness and sexual intimacy is a naturalistic need of human existence. However, when men in direct provision feign to befriend you, feign to accept you, and feign to love women and LGBT persons in order to extort money, obtain a Refugee Declaration (which often happens), and gain absolute power, this undoubtedly led to the ugly truth behind my direct provision research paper.
My opponents will argue that I have a checkered past, never been honest about who ‘they believe I really am’, and that I have taken shortcuts in my personal life that go beyond what is unethical and immoral. Indeed, the same argument can be shifted back to them:
1. Many men in direct provision do not tell women or LGBT individuals they are married. While infidelity happens all the time (not pot calling the kettle black here), men cannot hide this vital detail and cry foul when others do the same.
3. Some, not all, cannot be identified because some come from third-world countries that do not have comprehensive database.
On reflection, it seems more accurate to say that no one in direct provision should point the finger at someone for unethical or immoral behaviour. The truth of the matter is that I tried to enter direct provision with an open mind and to see the good in everyone. However, it was clear most male asylum seekers did not. In reality, many still do not. For instance, those that I protect in my research were often called a Bit**! Slu*! Wh***!” I speak from first-hand knowledge. It happened to a Canadian female asylum seeker who had to post a sign on her door that instructed, “No S**! No Marriage!” The mistreatment became so uncomfortable that I donned a hijab just to gain some respect. A Palestinian woman, “Siba”, who tried to free herself from the hijab at Balseskin was coerced back into it after being called a b*t!h. Moreover, my Pakistani comrade, “Mithra,” also put their gender expression back on the top shelf out of the fear of being policed on moral grounds. What also brought me to the ground is when I watched, with my own eyes, my Nigerian friend, “Memory”, fall into a s** scam. Watched her fragment into pieces. An email is welcomed from any NGO, organisation or politician who thinks any of the victims mentioned here are a figment of the imagination. A discussion with all the victims at the table is also welcomed. I was too protective of Siba, Mithra, and Memory.
The most interesting thing about Out of the Miqlaatun into the Fire is not one person asked me why? They had every opportunity. For example, I posted a debate on the community board at Kinsale Road Accommodation Centre welcoming any asylum seeker to a respectful debate of their choosing. No one accepted the offer. Not once. Refugee advocate services and other organisations had space to ask why, but declined to, as they had already made up their mind. Look at what she did! She is a big problem! Are you seeing this! Get her out!
Not once did any of these organisations, including organisations of my own ethnicity ask the question: why? What is the reason behind your behaviour? The asylum seekers who stole the paper had a template in front of them. A critical view of the template clearly showed it was incomplete. So why didn’t anyone ask: why? Maybe these organisations felt they would have gotten a dishonest answer in return. Or, they didn’t want to hear the truth—what so many people have been saying for years. Hearing it come from me, someone who has been branded with the Scarlett letter sounded unbelievable. Or, it sounded too believable and was too real to consider. The answer to why is: a role of dominance had been thrusted upon us for so long by men in direct provision. The why was to feel safe again. The why, initially of course, was to wear the skin of men. The why was so that dominance would feel familiar to men. That is why. Bit*h, wh*re, sl*t was born out of submissiveness. Submission in direct provision could break you. It definitely broke me. To be sure, in 2019, The Journal published a story about Aisha, a woman living in direct provision, who was repeatedly harassed and propositioned by other asylum-seekers. So, why didn’t men in direct provision have to carry this baby to term? At least, for once?
Instead of asking why, authority figures condoned a community placing me on an island. It also condoned the taking of my personal property, the ostracism, the harassment, the uploading my personal information to the internet, the making me feel like the devil, the fake friendships, and the disingenuous relationships that would go to undermine my full potential. It was all condoned. I cannot help but wonder if it was being done to protect a Middle Eastern man at BRC, who seemed to gain nearly 1,000 protectors in the flesh. As he told me once before, most people will believe him over me because he comes from a war-torn country. Today, his words remain true.
The Middle Eastern man would eventually ask me for my number. My initial response was “no.” But I knew what my friends would say, “live a little! Don’t be too up tight! Have fun! You only live once!” You have one life. Just one life. So, I gave the Middle Eastern man my number. He was reserved and knew very little English. Our mode of communication was via Google translate. After he discovered MASI was donating computers to asylum seekers, I wrote a letter on his behalf so that he could communicate with his family.
During one of our conversations, he disclosed to me that he cheated on previous partners. Although he was inconsistent at times, enjoyed being first—always—played cat-and-mouse games, played hard-to-get, was non-committal, and had a superficial view towards women, I had a lot of respect for him. It was after he disclosed that he cheated on women to me. He showed me a glimpse of the truth through the sliver of his conceitedness. Most men wouldn’t have admitted to being a cheater. Here was some truth. It meant something to me, even if it meant little to anyone else. Over the weeks the Middle Eastern man created an environment of uncertainty. So, in return, I created an environment of uncertainty too. I had this grand idea of unfairly accusing him of having sexual intercourse, whether I had the evidence or not. Indeed, several of the men in direct provision, including him, had unfairly accused women of being who*es and sl*ts based on what they wore, whether they had the evidence or not. In hindsight, such an accusation would have given him an ego boost. It was a grant of power. So, I gave him power in the submissive phase. When he pulled back, I pulled back. I ignored him when I saw him in the courtyard on the withdrawal phase. Whether anyone wants to believe it or not, this is the ugly truth behind my direct provision research paper. This prompted a text with an apology, “and remember that you are the first friend.” He was negotiating his way around my firewalls. He was decoding me. He had torn down the barriers I had tried to build through the Dominant Woman. The fact that he saw me as a friend struck a chord. It was at this very moment I made the decision to disclose Dominant Woman to him. Then, I disclosed it to the others.
The Middle Eastern man and I would eventually transfer to different accommodation centres, which left me heartbroken. I did my best to avoid him on the day of transfer, so as to keep from crying. It was happening again, another separation. However, what the asylum seekers at Kinsale Road Accommodation Centre, and their powerful contacts continue to conceal is: I truly loved the Middle Eastern man. I had loved others before him. I even had love for a security guard, ‘Maurice O’Sullivan,’ at the Kinsale Road Accommodation Centre who I had little in common with but mindfulness. Nonetheless, I needed to remember to “Love yourself.” In order to end the pain, I must “love myself.” Indeed, a wise asylum seeker instructed me to “put all your love in yourself.” That was the most profound advice anyone has ever given me in my life. It cannot be denied that I lived a pretty questionable life. But when I love someone, I love them. Now, I had to love myself.
Referring back to the Middle Eastern man: I got a call in 2021. The Middle Eastern man said that he really missed me. He asked if I wanted to be his girlfriend and, if I wanted to move in with him. I didn’t hesitate. It was like a marriage proposal. “Yes!” I told him. In the background, logical people cautioned, “you’re moving too fast!” They also said, “shouldn’t you know more about him before you move in with him?” But, you only live once! I had always wanted to live a domesticated life and the Middle Eastern man was giving me that opportunity. Carpe diem!
The Middle Eastern man had attempted to move on his own to Dublin, but the International Protection Accommodation Service (“IPAS”) declined his transfer. He then asked if I could get us moved. He knew I had a bit of experience in technical writing, as it was my technical writing that resulted in his laptop. So, I corresponded with IPAS, on several occasions, until they relocated us. IPAS eventually moved us together.
After 30 days, we both petitioned IPAS to move to different centres due to serious irreconcilable differences in the home, what everyone knew would happen. The Middle Eastern man and I included. Maybe it was all part of their plan. At any rate, he and I both made some dumb mistakes. However, I am the only one with 1,000+ people planning my demise and seeing to it that I fail. We cannot deny that a why could have been the key that answered so many questions. However, I do not believe my actions warranted placing me on an island, gaslighting me, stealing my USB, stealing my personal post, engaging in continued harassment, the uploading my personal information to the internet, the making me feel like the devil, the fake friendships and relationships that evaporated in a sky of disingenuity, or the treating me like a non-human being by organisations that could not muster the word why. That’s the ugly truth behind my direct provision research paper.
In many states across the nation, pregnancy finds no explicit protection under federal law. For instance, companies in the U.S. are not required to adjust the duties of women when they are pregnant even when medical practitioners send letters urging a reprieve (Thomas, 2016). This raises the question as to whether protecting women’s reproductive health in a post-Roe era should be accomplished by (1) striking an appropriate balance between romantic paternalism and egalitarianism, and (2) ratifying the Convention on the Elimination of All Forms of Discrimination against Women(“CEDAW”).
First, protecting women’s reproductive health in a post-Roe era can be accomplished by striking an appropriate balance between romantic paternalism and egalitarianism. Companies depend on romantic paternalism because it limits women’s autonomy on the grounds that a discriminatory decision is for women’s own good. In United Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187 (1991), the Johnson Controls restricted the autonomy of fertile women on the basis that toxins in its factories, such as lead, posed a greater risk to pregnant women and their fetuses (Thomas, 2016). While the Seventh Circuit rule that a fetal protection policy satisfied the stringent BFOQ test, science showed men were just as vulnerable to lead exposure as women (Thomas, 2016). Indeed, the U.S. Supreme Court found the policy was discriminatory against women because it did not require men to demonstrate proof of medical sterility, despite the fact that lead exposure have proved hazardous to male reproductive systems (Oyez, n.d.).
It cannot be denied that women and their fetuses should be protected from lead exposure. For instance, Professor Judith McDaniel rightfully argues that Johnson could have cleaned up the assembly line so that no one was at risk. The Alabama prison done it, so why couldn’t Johnson? Wouldn’t this leave the decision in women’s hands? Indeed, protecting women’s reproductive health in a post-Roe era cannot be accomplished by excluding women from the workplace altogether. We see this in Young v. United Parcel Service, Inc., 575 U.S. 206 (2015), where UPS told a pregnant plaintiff that she could not continue to work at all with her lifting “restriction” in place. Although UPS had allowed for employees to be temporarily reassigned to “light duty” work or desk jobs, none of its exceptions applied to pregnancy-related circumstances (Thomas, 2016). A question raised before the U.S. Supreme Court was whether the Pregnancy Discrimination Act required UPS to provide the same work accommodations to pregnant women as to employees with similar, but non-pregnancy related work limitations. Shockingly, the U.S. Supreme Court said Congress did not intend the Act to grant pregnancy such an unconditional “most-favored-nation status” (Oyez, n.d.). At any rate, the U.S. Supreme Court did hold courts must evaluate the extent to which an employer’s policy treats pregnant workers less favorably than non-pregnant workers with similar inabilities to work (Oyez, n.d.).
The argument that pregnant women entering the workforce are irresponsible about their bodies and uncaring toward their potential children (Thomas, 2016) is a faulty generalization that sanctions an overly egalitarianistic view of how women should be treated in the workplace. To be sure, companies often use egalitarianistic policies to deny breaks to pregnant women, arguing that other employees are not afforded the same accommodations (Silver-Greenberg & Kitroeff, 2018). Companies also deny women who are employed in warehouses light-lifting accommodations. Not only have these overly egalitarianistic and harsh policies resulted in women miscarrying their fetuses, but they have also resulted in death.
Second, the U.S. government should protect women’s reproductive health by ratifying the CEDAW. It is clear from the observations above that the U.S. continues to disregard the complexities of working class pregnant women in America. Although lawmakers have proposed to upgrade the 1978 Pregnancy Discrimination Act, these proposals do not go far enough. For instance, evidence demonstrates that some employers fire expecting mothers before they can take maternity leave (Silver-Greenberg & Kitroeff, 2018). Moreover, most companies in the U.S. have not made appropriate accommodations for pregnant women that protects their reproductive health. Under Article 11 (2) of the CEDAW, State Parties must take appropriate measures: (a) to prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status, and (b) to introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances. Article 11 (2)(d) further mandates that State Parties must “provide special protection to women during pregnancy in types of work proved to be harmful to them.”
From these arguments, one must conclude the appropriate way for the U.S. government to protect women’s reproductive health is by striking an appropriate balance between romantic paternalism and egalitarianism, and ratifying the CEDAW.
In January 2022, I launched a campaign on Twitter Ireland against the abuse of power at the Kinsale Road Direct Provision Centre, to which garnered nearly 13.7 K in views. I later found thatConfidential Informant Techs had uploaded my mugshot and tagged it to the campaign video. It was a poor attempt to distract viewers from behavior employed to demean, wound, harm, and damage the International Protection claim of asylum-seekers. Little did they know, there is a specious case of criminal mugshot shaming in America.
My investigator and I studied the contamination strategy and discovered that it emanated from a ‘suspect close in vicinity,’ whose conscious effort was to spread misinformation about my background, arrests, and what led to my application for asylum. In their view, if they introduced the mugshots into an already existing consensus about ‘who is truly an asylum-seeker’ in a clandestine manner, I would retreat. I did not.
Exploitation Nation: The Specious Case of Criminal Mugshot Shaming in America
The number of Americans with a criminal history has risen sharply over the past three decades. Matthew Friedman, a writer for the Brennan Center for Justice, states “so many Americans have a criminal record that counting them all is nearly impossible.” Furthermore, Activists in America are commonly arrested for their political speech. In 2019, U.S. police arrested LGBT activists in front of the Supreme Court. In 2021, the U.S. targeted Black Lives Matter activists in a bid to disrupt the movement. You may be thinking, “that is activism. In your case, the U.S. implicated you in not one, but many crimes. The U.S. cannot be wrong, can it?” Yes, it can, and it often is wrong.
The World Prison Brief puts the U.S. at number one at incarcerating the most people in the world. Based on data from credible news sources, the countries with the most incarcerated are the U.S., China, Brazil, and Russia. Evidence further demonstrates these countries are likely to have the most innocent people convicted and imprisoned. On a list of 15, the U.S. came in at number one as the country with the most police brutality incidents and individuals wrongfully convicted. Indeed, a study found more than half of all wrongful criminal convictions are caused by U.S. government misconduct. With these findings, it should come as no surprise to learn the alleged owners of Mugshots.com, one of dozens of sites that publish booking photos in the U.S. and demand payment for their removal, were arrested on charges of extortion, money laundering and identity theft in 2016. However, the U.S. has allowed these websites to remain accessible online, along with dozens of others like it, despite mugshots not being considered public records at a federal level.
Not only are the publication of mugshots a danger, as Olivia Solon points out, they are also used as a character assassination tool, given the public associates the individual portrayed in the mugshot with some criminal act. Another key point is that the negative image is easily found when vetting a candidate for a job, and thus, damages a person’s professional relationship.While the publication of a mugshot is an unwarranted invasion of privacy, the respect of one’s private life finds no explicit direct protection in the U.S. Federal Constitution. One should note here that Americans are precluded from successfully claiming infringements of our private life against private media reportings, as it relates to our contemporary or past life. To be sure, the U.S. ridiculed the European Court of Justice’s recognition of the right to be forgotten in Google Spain, holding that it remains inapplicable in the State. Nevertheless, it is settled law that even individuals with criminal convictions have a right to privacy, and the right to be left alone.
As for the suspects close in vicinity, they disliked that I owned my rite of passage by drawing public attention to the changes I made in my status and social identity. It is abundantly clear they were using me as a scapegoat for their ignorance, phobias, political ideology, biases, and frustrations. Indeed, evidence demonstrates formerly incarcerated persons are disproportionately the victims of scapegoating.
Taking into consideration that shaming American citizens not only compounds the problem, along with the fact that the U.S. continues to make mugshots public, it is not surprising that countries have started to find the U.S. not to be safe for everyone. As far as rights goes in the U.S., what will the land of the most incarcerated do next?
Fresh Start for Incarcerated Americans? States Push to Give Americans with Criminal Records Fresh Start. The President Should Do the Same.
The World Prison Brief puts the U.S. at number one at incarcerating the most people in the world. With over 2 million Americans incarcerated in U.S. prisons and jails, approximately 70 million are left with criminal records, raising the question as to whether there is a fresh start for incarcerated Americans.
Vox’s Senior Policy Reporter, Rachel M. Cohen, expressed that job applicants with criminal records are half as likely as those without them to get a callback or job offer. Moreover, Sen. Maria Elena Durazo found “about 75 percent of formerly incarcerated individuals are still unemployed after a year of their release.” These views are consistent with Gabriel Chin’s research, who found that a conviction can restrict one’s ability to live in public housing, to obtain government licenses and permits, and to receive other benefits. The denial of employment and housing opportunities, and the deprivation of privileges and rights due to a past criminal conviction is often referred to as collateral consequences. That is to say, collateral consequences are legal disabilities imposed by law as a result of a criminal conviction, regardless of whether a convicted individual serves any time incarcerated.
“One of things I’ve never been accused of is not caring about people.”
While mugshots are not considered public records at a federal level, the government’s position has precluded Americans from successfully claiming infringements on their private life against private media reportings. To illustrate this point, one need only refer to the government’s statement in Google Spain, where it ridiculed the European Court of Justice’s recognition of the right to be forgotten, arguing that such right remains inapplicable in the nation. It is worth stating at this point that the judicial branch has held collateral consequences are not punishment. Therefore, collateral consequences do not come within the gambit of the Eighth Amendment prohibition on cruel and unusual punishments, or the Fifth Amendment prohibition against double jeopardy.
When previously incarcerated Americans (“PIAs”) cannot reintegrate into society, they are likely to recidivate to support themselves and their families. That is why, in my opinion, President Joe Biden should use his executive power to expand automatic sealing eligibility for PIAs. How would this look? An examination of Durazo’s bill, if passed, would give all ex-offenders, except registered sex offenders, the opportunity to have their convictions sealed. PIAs with violent, serious felony records would not be offered the automatic “clean slate.” However, they could petition to have their records sealed too.
It cannot be denied that the respect of one’s private life finds no explicit direct protection in the U.S. Constitution. Be that as it may, it is settled law amongst human rights courts that even individuals with criminal convictions have a right to privacy, and the right to be left alone. The state of California has created a template; the only action for the Biden administration to take is directing federal officials and administrative agencies to expand automatic sealing eligibility for PIAs.
If one weighs the pros and the cons, one soon realizes that collateral consequences and the shaming of American citizens by publicizing their mugshots only compounds the problem. It is for this reason that President Biden should alleviate the expenditure of energy used to help PIAs reintegrate by making use of his Executive power to seal their felony convictions. This executive action will show both, the U.S. and other nations, that the administration truly cares about its people.
Rowland v. Christian, 70 Cal. Rptr. 97, 69 Cal. 2d 108, 443 P. 2d 561 (1968)
FACTS: Christian invited Rowland into her apartment. While using Christian’s bathroom, Rowland’s tendons and nerves on his right hand were severed. He went to the hospital and incurred medical expenses.
ISSUE: Whether Rowland (Plaintiff) can sue Christian (Defendant) for damages for her failure to warn him of the dangerous bathroom fixtures.
RULE: Negligence requires a showing that defendant owed a duty of care to plaintiff, defendant breached duty of care, plaintiff was injured, and defendant’s negligence resulted in plaintiff’s injuries. Furthermore, every person is responsible…for an injury induced to another by their lack of ordinary care…in the management of their property…unless a person has brough an injury upon themself.
ANALYSIS: The Court found Defendant was aware of the conditions in her bathroom. Defendant knew those conditions were unsafe, and were liable to cause harm to others who come in contact with it. Defendant also knew if a person did come in contact with it, they would likely be injured. Given these points, the Court concluded the Defendant failed to warn Plaintiff of its conditions. The Court based its finding on Section 1714 of the Civil Code, which states, “every person is responsible…for an injury induced to another by their lack of ordinary care…in the management of their property…unless persons brings an injury upon themselves.”
CONCLUSION: Because the Defendant foresaw the harms of allowing individuals into her bathroom, and failed to warn Plaintiff that the conditions in the bathroom was unsafe, the Defendant is liable for damages. Reversed.
FACTS: The prosecution charged John Thompson with murder and the case proceeded to trial. A jury convicted Thompson, to which he spent 18 years in prison and 14 on death row. Before execution, Thompson’s investigator discovered the prosecution failed to disclose evidence that should have been turned over to the defense under Brady.The reviewing court determined that the evidence was exculpatory, and both of Thompson’s convictions were vacated.
PROCEDURAL HISTORY: Thompson (Respondent) sued D.A. Harry Connick (Petitioner), for damages under Rev. Stat. § 1979, 42 U.S.C. § 1983. The jury found in Respondent’s favor. The Fifth Circuit Appeals Court affirmed the jury’s decision. Petitioner filed certiorari with SCOTUS.
ISSUE: Whether a D.A.’s office may be held liable under § 1983 for deliberate indifference and failure to train based on a single Brady violation.
HOLDING OF THE COURT: The case did not fall within the narrow range of “single- incident” liability hypothesized in Canton as a possible exception to the pattern of violations necessary to prove deliberate indifference in § 1983 actions alleging failure to train.
RATIONALE: SCOTUS said in its review that deliberate indifference’ is a stringent standard of fault that requires proof that a municipal actor disregarded a known or obvious consequence of his action. SCOTUS understood that Louisiana courts overturned four of Petitioner’s convictions because of Brady violations. However, SCOTUS found those incidents dissimilar to the violation in the present case. Thus, they could not have put Petitioner on notice that specific training was necessary to avoid a constitutional violation. SCOTUS also found failure to train prosecutors in their Brady obligations does not fall within the narrow range of Canton’s hypothesized single- incident liability. In its opinion, § 1983 does not provide plaintiffs or courts carte blanche to micromanage local governments. In all, a mere showing that additional training would have been helpful in making difficult decisions does not establish municipal liability.
SEPARATE OPINION: (Ginsburg, Breyer,Sotomayor, & Kagan, dissenting). While the majority held the D.A. office could not be held liable in a civil rights action under 42 U.S.C. § 1983 for marginal Brady violations, the dissenters found the long-concealed prosecutorial transgressions in the case were neither isolated nor atypical. It further found the misperception and disregard of Brady’s disclosure requirements in Orleans Parish constituted deliberately indifferent conduct for which the D.A. office bears responsibility under § 1983. According to the dissenters, abundant evidence supported the jury’s finding that additional Brady training was obviously necessary to ensure that Brady violations would not occur. For instance, Petitioner misunderstood Brady. Other leaders were similarly uninformed about Brady and had not received training. Lastly, the office shirked its responsibility to keep prosecutors abreast of relevant legal developments concerning Brady requirements. All these factors point to the conclusion that prosecutors took Brady for granted, as to which undermined the integrity of Thompson’s trials.
SYNTHESIS: In Brady v. Maryland,SCOTUS reasoned that society wins not only when the guilty are convicted but when criminal trials are fair. Although it held due process requires the prosecution to turn over evidence favorable to the accused and material to his guilt or punishment, the present Court felt the lack of Brady training cannot support an inference of deliberate indifference to support a § 1983 claim. If so, any person could point to something the city ‘could have done’ to prevent the unfortunate incident, and bring a § 1983 claim.