
Government officials in Amherst, VA can now require employers to fire ex-cons - thaumasiotes
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/08/31/government-officials-in-amherst-county-virginia-can-now-require-employers-to-fire-any-ex-con/
======
tgflynn
There used to be the notion in this country that after a person was released
from prison they had "paid there debt to society" and should therefore be able
to go on with there life. How did we get to a place where no one seems to
believe this anymore ?

I would think that a punishment for a crime that includes forced destitution
for life independently of the nature of the crime would be considered cruel
and unusual. But the Bill of Rights doesn't seem to be taken seriously anymore
either.

~~~
imaginenore
And what's really crazy we force sex offenders (which includes the people who
got caught peeing in a public place) to announce themselves, not allow them to
live within X feet of schools, and there's a public database of them.

But we don't do the same with kidnappers or murderers.

How insane is that?

~~~
Frozenlock
Interesting...

This means I can prevent a school from being built near my house by peeing in
a public place... :-)

~~~
sitkack
I assume they would make you move, or have you fired, or both.

------
joshstrange
This makes me sick. I work in the corrections industry and regularly encounter
people that use the "they are criminals" justification for any/everything they
want to do. People don't seem to understand the whole "paid debt to society"
notion and it worries me because I was more or less brought up believing this
and I worry for the future as more and more people seem to think this way...

I work in part in reentry, these people are trying to get their lives back
together yet people want to treat them like bad behaving children instead of
the adults that they are. I'm not saying they are fully functioning adults,
most of them are just dumped out of the prison system and need a great deal of
help to get back on their feet (find somewhere to live, a job, etc) but
treating them as less-than... I can't think of a worse way to approach this
problem. Thankfully the company I work for is largely part of the solution and
not the problem or I couldn't bear to work in this industry.

~~~
the_ancient
Part of the problem is the "Debt to Society" crap. People who violate the law
do not owe a debt to society, they owe a debt to their victim(s) and no one
else.

This "debt to society" was invented in order to justify the creation of 1000's
of victimless "crimes"

It should be very simple... No Victim, No Crime.

~~~
Joky
To be sure I understand you: you mean we can't prevent people from bringing an
AK47 in school, as long as they don't shoot anyone? And one can drive as fast
a she wants as long as there is no accident? One can sell outdated food as
long as no client gets sick?

~~~
the_ancient
>>>you mean we can't prevent people from bringing an AK47 in school, as long
as they don't shoot anyone?

As a matter of General Law, no.

However if the property owner, in this case the school board, chooses on their
own to disallow guns on their property then a person violating that would be
guilty of criminal trespass.

This is true for a Starbucks, Walmart, your personal home or any other
property.

That being said the issue gets a little more tricky when it comes to
government run property, with government run property I tend to come down on
what I think is a reasonable position of if you are not required by law to be
there then the individual government agencies can restrict gun possession
provided there is not a superior law preventing that.. an example would be
many State governments preempt local parks depts from passing rules
prohibiting carry in a public park.

>>>And one can drive as fast a she wants as long as there is no accident?

Generally speaking I believe in enforcement of Reckless Driving Laws and less
on arbitrarily defined laws. For the most part speed limits are less about
safety and more about revenue generation for local government. Even under
todays law if you are driving the speed limit and a cops believes that is
unsafe for the road conditions you can be ticketed and even arrested.

>>>One can sell outdated food as long as no client gets sick?

[https://www.youtube.com/watch?v=i8xwLWb0lLY](https://www.youtube.com/watch?v=i8xwLWb0lLY)

Relevant Part at ~9:35

~~~
phkahler
>> However if the property owner, in this case the school board, chooses on
their own to disallow guns on their property then a person violating that
would be guilty of criminal trespass.

But who is the victim then? What was the damage? How does that compare to the
case where they didn't make that rule?

~~~
the_ancient
The property owner is the victim. Property owners have the right to deny
entry/use of their property for any reason or no reason at all.

They can say "No one wearing blue shirts", or "No entry after 5pm" or any
other rule they want to impose, if you violate that you have violated their
property rights.

------
gwright
> The County issues business licenses for the privilege of doing business …

Never mind the issue of ex-cons, the premise that freedom of contract and
association (i.e. gather a group of people to engage in commercial activity)
is a “privilege” granted by the government is arguably unconstitutional.

There are reasons to regulate but the default position should be that you have
a right to engage in commercial activities and that right should only be
restricted via due process (such as the levels of scruitiny employed by the
Supreme Court).

~~~
lutorm
Is the issue not that society agrees to limit your liability in exchange for
these businesses doing something beneficial for society? You can argue that
you have a right to engage in commercial activities, but I don't think you
have a right to escape personal liability for those activities.

~~~
ubernostrum
Yup.

A business license is what frees you from personal liability. I don't know of
any approach to contracts or personal freedom which suggests society
automatically _owes_ zero-personal-liability to everyone without conditions or
restrictions attached.

~~~
CamperBob2
Business licenses (in the US) have nothing to do with personal liability.
That's what LLCs and other structures are for. A 'business license' just gives
you the ability to run a business without being shut down for, well, running a
business without a license, as tautological as that sounds.

Presumably the idea behind business licensing at the local level is that
commercial entities require extra service from the government with regard to
code enforcement, city planning, fire/police protection, and so on, and the
license fees help pay for those services. Discriminating against anyone for
pretty much any reason would be grounds for a lawsuit against the municipality
or county.

------
dredmorbius
How does this not violate due process and equal protection?

 _Edit:_ Hell: add the Fifth amendment (double jeopardy, due process, just
compensation), Eighth (cruel and unusual punishment), Ninth (generally),
Thirteenth & Fourteenth (if one cannot work gainfully, what options remain,
equal protection), and Fifteenth (statistically given crime and conviction
statistics)?

~~~
simplicio
Well, they had due process, since that's how one becomes a felon in the first
place. But I suspect a blanket ban on being able to earn a living in a
particular region will be found cruel and unusual.

Plus as a purely practical matter, banning former criminals from making a
legal living seems like a pretty good way to ensure they continue to commit
crimes.

~~~
russell_h
Ironically, this would probably have been an unconstitutional violation of the
_business 's_ right to enter into a contract according to early 1900s doctrine
(see:
[https://en.wikipedia.org/wiki/Freedom_of_contract](https://en.wikipedia.org/wiki/Freedom_of_contract)).

That doctrine was reversed in the 1930s to permit states to set a minimum
wage, but granting states greater authority to regulate contracts cuts both
ways.

~~~
ubernostrum
Well, that "doctrine" was largely based on deciding that the 14th Amendment
had nothing to do with ensuring equal rights for former slaves and their
children, but rather was enacted to turn the US into libertarian paradise.

See Holmes' famous dissent in _Lochner_ in which he said "The Fourteenth
Amendment does not enact Mr. Herbert Spencer's Social Statics."

------
ichamo
As an ex-con, these kind of attitudes really concern me! Hoping when I
graduate university I can find a job somewhere that will be willing to
overlook my teenage years.

~~~
rdudek
I work for a major healthcare provider and we hired folks with not-so-clean
backgrounds as long as they're disclosed. If you do not disclose any issue and
it comes out that you did find something, you can either 1) appeal the
decision by reviewing the background check with our provider or 2) wait a full
year before reapplying again.

Background checks are not perfect, we know. That's why when you apply, you
have the right to get a full report for free. I always recommend checking that
box to get it when applying. That way, if something comes up, you can dispute
it with the background check agency, and it's very easy.

~~~
ichamo
What would you advise for smaller companies that don't background check? Or if
I don't fill out an application and get an interview? Do I still bring it up
and if so, when is it appropriate?

~~~
rdudek
If you know for sure that they don't do background checks, then don't include
any information that may hurt your chances. After all, you are a human
resource, not a friend of a company.

------
jeffmould
IANAL, but I highly doubt this would hold up in court by any means for several
reasons:

1\. Virginia is a "ban the box" state, meaning it is state law that the state
or government contractor cannot ask about a criminal background until a formal
offer of employment is on the table. Unless of course the job requires prior
to extending the offer (i.e. schools can't employ sex offenders, law
enforcement jobs don't want convicted felons, etc..).

2\. The Title VII of the Civil Rights Act of 1964 prohibits job discrimination
on a criminal background when it comes to race or nationality.

The law seems to have been written with a very broad pen. While I understand
there are certain businesses that should not be run by certain convicted
felons (i.e. you don't want a daycare center run by someone convicted of
molesting children), this law seems like it was written to solve a specific
problem and needed a very general approach. Comparably, many states/cities do
have restrictions on the types of licenses an individual can get based on
their background (commonly referred to a collateral consequences of a
conviction -
[http://www.abacollateralconsequences.org/](http://www.abacollateralconsequences.org/)).
For example, some states prohibit the issuing of a real estate license to
individuals convicted of fraud.

I don't know if it is a coincidence or not, but this ordinance came into
effect a month after the governor of Virginia signed the Ban the Box law.

~~~
leereeves
> it is state law that the state or government contractor cannot ask about a
> criminal background until a formal offer of employment is on the table.

What happens if the answer is "Yes, I've been convicted of a serious felony"
after a formal offer of employment is on the table?

~~~
jeffmould
It really depends on the job and position, but there has to be a justifiable
reason why the individual cannot be hired. In theory the jobs that this helps
felons get are the blue collar type work (for example, there is no reason a
felon should not be allowed to work on a state landscape crew or a state
construction team. Prior to ban the box, they may have been automatically
excluded. With ban the box, they are not automatically excluded.)

~~~
mnarayan01

      but there has to be a justifiable reason why the individual cannot be hired.
    

I feel like "we will lose our business license" is probably going to qualify.

------
crb002
IANAL

Hold them accountable under the Hobbs Act for obstructing interstate commerce
via extortion of business licenses? [http://extortion.uslegal.com/anti-
racketeering-act-hobbs-act...](http://extortion.uslegal.com/anti-racketeering-
act-hobbs-act/)

Not to mention a local "business license" is shady. It seems like a major
restraint on first amendment freedom of association.

~~~
jrockway
The First Amendment does not cover collecting money from other people. If you
want to associate with people or give away some sort of printed material, you
don't need a business license. If you want to collect money from people, you
need a business license.

------
dogma1138
While I'm perfectly fine with employers not hiring ex-con's under certain
conditions for example not to hiring sex offenders (actual ones not a guy that
was caught peeing in an ally) in schools, or some one who was convicted for
financial fraud in banks or an investment agencies.

But unless other wise mandated (mostly sexual offenders stuff) It's up to the
employer to make that decision, what right does a government has to force a
private employer to fire their employees on any count?

~~~
dredmorbius
_what right does a government has to force a private employer to fire their
employees_

I'm _perfectly_ fine with that _following due process for the specific matter
pertinent to the firing_ , or _as part of an issued sentence or punishment for
an original crime._

E.g., sexual predators (and no, not someone urinating in public) not working
in seclusion with children, or those convicted of business fraud and related
crimes not being officers of a company, losing accounting, actuary or similar
licenses, etc.

But "thou shalt not work" doesn't cut it.

~~~
seanflyon
> as part of an issued sentence or punishment for an original crime.

I think this is the key point. You have a fundamental right to work for anyone
who wants to hire you. The government can take away that right (and other
fundamental rights) as punishment for a crime when you are convicted. I don't
see how they can take away rights that are not a part of that sentence. That
would be like calling you back for another year of prison after your sentence
was completed.

~~~
dredmorbius
Hence my double jeopardy call in another comment.

------
dataker
Why would anyone support this?

If you're in the left and believe in equality, it's disgusting.

If you're in the right an believe in freedom, it's disgusting.

~~~
dragonwriter
> If you're in the left and believe in equality, it's disgusting.

While many on the left believe that the criminal justice system has structural
inequities that need to be addressed, few on the left would adhere to the
position that past conviction of a crime is categorically unacceptable basis
for discrimination (though they might agree that particular instances of it
exceed what is warranted.)

So, I don't think this works as a blanket statement.

> If you're in the right an believe in freedom, it's disgusting.

Most on the right would not, IME, support the position that freedom cannot be
restricted based on past conviction of a crime. So I don't think this works as
a blanket statement either.

~~~
anigbrowl
Well, I wouldn't say categorically unacceptable - if I had kids I wouldn't
want them to be supervised by a child molester even if the person had
completed parole, and that's far from the only troublesome corner case I can
think of.

but as someone on the left, a great deal of what is taken for granted in the
US penal system _is_ categorically unacceptable to me. In my country (Ireland)
and most other EU countries except the UK, people in prison are still allowed
to vote in elections, for example; we consider the ideal of political self-
determination so sacred that it is inalienable even if you lose your liberty.

Of course a cynical rejoinder to this is to point out the futility of voting
as a political determinant and I can't really answer that other than to stand
on principle. As a pragmatic matter I dunno how you expect people to
reintegrate into society by formally excluding them from the annual rituals of
civic participation but then most hardliners aren't interested in the
rehabilitation arguments anyway. As a foreigner living in the US I can't vote
anyway and I feel left out on election days; I think eliminating the franchise
for people with a felony conviction is an appalling psychic injury to inflict
on people (even if they never voted before going into prison) and it's one of
the least defensible features of UK and US culture.

~~~
dllthomas
_" I feel left out on election days"_

If you convince one person to change their vote from what you wouldn't have
voted to what you would have, you've done twice as much good as simply casting
a vote.

------
ascorbic
Is it common for jurisdictions in the U.S. to require licenses to do any kind
of business? Seems pretty crazy. In the UK there are very few businesses that
require licenses. Mainly ones involving alcohol or gambling.

~~~
tgflynn
I've been wondering about that too and I live in the US.

I've often seen various places asking for "business licenses" but as far as I
know there's no such thing where I live (New York State). There are licenses
for certain professions and types of business of course, but you don't need a
license to start a business in a field that isn't explicitly regulated.

~~~
duaneb
There are articles of incorporation, which are pretty necessary to avoid
liability.

~~~
dragonwriter
Articles of incorporation are necessary to establish a corporation; they are
separate from business licenses which are required, in many local
jurisdictions, for most businesses (though a business that is a corporation
will need both.)

------
sandworm101
Once upon a time "felony" meant the sort of crime that you could be executed
for. In that context nearly any restriction short of death seems reasonable.
But our society has pushed "felony" down to mean anything which might result
in custody of a year or more. That used to mean only those sent to prison
(jail != prison) would be called felons. But there again society has pushed
down the punishments to the point that most "felonies" don't even result in
jail time (ie drunk driving).

We can all hate lawyers and laws, but throwing around "felon" and "convict" so
loosely has brought us to this unsettling situation. I can understand giving a
commissioner power to have a "felon" fired or barred from certain employment,
but only under the old definition of the word (murders, rapists, arsonists
etc).

I'm not sure the law could be used to bar any and all employment. It may be
constitutional as a 'regulation' but a total ban on any form of work would be
a per se deprivation. It's akin to land use rules which can limit used but
cannot forbid any and all economic use. That constitutes a taking, as banning
someone from any and all work would constitute an unconstitutional exile
and/or an ex poste facto increase in punishment.

------
nostrademons
Curious if you could get around this by incorporating in a different state and
then employing yourself. With Clerky or any of the numerous online LLC
generators, incorporation is only a few hundred bucks. Then your employer
isn't subject to this clause because it's located in Delaware rather than
Amherst County, VA, and anyone who employs you contracts with the corporation,
so they aren't liable either.

A C corp (a la Clerky) would still be a bit of a pain because you're subject
to all the regulations & double taxation of a corporation, but I believe an
LLC gives you pass-through taxation with little administrative hassle.

~~~
chc
I don't know much about Virginia law, but based on the wording here, it sounds
like you probably need some kind of license to do business in Virginia even if
you're incorporated in another state.

~~~
jerephil
Yes, you do need a license. However, you shouldn't have to have a license in
Amherst county to sell your services there unless that's your primary place of
business. Much like any business owner on here shouldn't need a business
license from Amherst county to sell to customers in Amherst county.

If you incorporate as a single member LLC, then the IRS doesn't usually
consider you to be an employee either.

------
squozzer
Normally I whip out my Peter...Turchin and talk about how structural-
demographic theory could predict the increased marginalization of vulnerable
groups as societies reach their next crisis point.

The truth of this problem however is probably more prosaic. Someone in Amherst
has somehow gotten under the skin of the mayor or city council - probably
refused to contribute to a campaign or hire someone's dumbass relative so now
the target gets to enjoy the benefits of "civil society" or whatever half-
assed rationale finds its way to the local rag.

------
bcheung
Take away someone's means to legally provide for themselves and only illegal
means remain.

~~~
titfn
If you look at it from that perspective, this idea appears to have been
sponsored by for-profit prisons.

------
markbnj
>> So if you have a felony conviction, or a misdemeanor involving moral
turpitude — e.g., petty theft or making a false statement

Ironically, these are just the qualities that make you most suited to be a
municipal politician.

------
nevdka
The idea of needing a licence to run any business seems absurd to me. In
Australia, you need to register for an Australian Business Number, but that's
for tax purposes, and it's cheap and easy to do online. Even forming a
corporation costs less than $500 and a few days waiting. (literally - it's 2
days after the government receives the application form)

There are restrictions around certain trades (electricians, doctors, etc), but
they're the exception, not the rule.

~~~
dredmorbius
There are reasons for business licenses. From a current HN story:

"Behind Deadly Tianjin Blast, Shortcuts and Lax Rules"
[http://www.nytimes.com/2015/08/31/world/asia/behind-
tianjin-...](http://www.nytimes.com/2015/08/31/world/asia/behind-tianjin-
tragedy-a-company-that-flouted-regulations-and-reaped-profits.html)

 _One partner was the son of a local police chief, the other an executive at a
state-run chemicals firm. After meeting at a dinner party, they started a
company here to handle the export of the most dangerous chemicals made in
China, promising “outstanding service” and “good results.”_

------
Blackthorn
Some days, as a corrections industry volunteer (I teach computer science), I
feel like the battle isn't just uphill, it's up-mountain. Ugh.

------
api
Wow. So let's make absolutely sure that people who have made mistakes in the
past can't get their lives in order or do anything legitimate.

------
balabaster
...and the craziness that is U.S. Laws created in direct violation of the
constitution continues. Stories like this make me wonder how far down the road
we are from it being completely torn up and a police state being officially
imposed.

Some days I read the news and can scarcely believe what I'm reading. I
wouldn't believe it at all if it weren't under the Washington Post banner...

------
kylehotchkiss
Why would you want to live or work there? (I live 15 minutes away from
amherst.)

This is the same place conspiratists say Disney is building a theme park.
Nothing to see here, really.

------
hadeharian
Sounds highly discriminatory. I'd hate to live there. The commissioner sounds
like the biggest criminal in that town.

------
thaumasiotes
I'll cop to punching up the title of this. But I actually view it as highly
significant that the law at issue forbids ex-cons from employing themselves
just as it forbids other people from employing them. (Actually, it allows but
doesn't require the government to prevent them from doing any of those
things.) The only option left is subsistence farming. The original title is
missing that. Was my title misleading? :/

~~~
dredmorbius
The original ("Government officials in Amherst County, Virginia can now
require employers to fire any ex-con") at 93 characters wouldn't fit HN's
length limitation (80 chars).

~~~
dang
People shorten titles appropriately all the time.

~~~
dredmorbius
Yeah, that was my point.

------
geomark
Another example of the tyranny of petty bureaucrats.

------
mschuster91
Welcome to America, where the point of putting someone in jail is the vile
intention of pure revenge instead of resocialization.

------
x5n1
These sort of laws create the sort of circumstances you hear about in the
news. I wish them the best of luck with their lives, pushing these sort of
laws on felons who then have nothing to lose. Freedom for the win, amirite
guys?

------
sankyo
Point of clarification: there is no such thing as an "ex" con. The conviction
stays even if the person never breaks the law again.

~~~
dragonwriter
The phrase "ex-con" or "ex-convict" is well established to refer to a person
who has been convicted of a crime and who has completed any sentence
associated the crime of which they were convicted, distinguishing them from
both those who are still serving a sentence and from those who have never been
convicted of a crime.

(Its derived from the usage of the term "convict" to refer specifically to a
person who is currently serving a sentence for a conviction of a crime, i.e.,
a prisoner or inmate.)

If "convict", the noun, had a primary definition of anyone who has ever been
convicted rather than someone _serving a sentence_ for a conviction, then,
yes, you might be right that you couldn't be an "ex-convict". But that's not
what the word means.

------
mindslight
> _you could be stripped of your business license, so you can’t go into
> business for yourself_

The article of course means you can't _obtain government protection for your
business_. You can still privately transact as much as you'd like. If you've
been convicted criminally, the possibility of some direct civil liability
shouldn't scare you. For instance, put your savings in bitcoin or an offshore
trust and have a plan to get the fuck out of dodge to avoid debtors' prison.
Obviously this isn't an ideal way to live your life, but these are our times.

Of course if the government were functioning properly, keeping a business
license would be contingent upon _not_ firing "ex-cons", since having served
their time their punishment is complete. But we already know it's irreperably
broken.

~~~
PhasmaFelis
> _If you 've been convicted criminally, the possibility of some direct civil
> liability shouldn't scare you._

This makes no sense whatsoever.

~~~
mindslight
If you've been convicted of something, you've got a huge black mark in the
various tracking/surveillance databases such as the system discussed in this
article.

You're thus _already_ disqualified from relationships that require you to be a
squeaky clean perfect abstraction. Those databases showing a large debt /
bankruptcy / ongoing suit / etc will not harm you nearly as much as someone
who was clean, and even having to relocate to duck a judgment won't hurt you
as much since you're already not benefitting from touting your identity.

I'm not saying you should deliberately attract civil suits since losing one
would still be quite disruptive, but that spectre of a little-merit high-
payout suit destroying your perfect life is no longer so large since you're
already suffering half the damage.

~~~
PhasmaFelis
> _If you 've been convicted of something, you've got a huge black mark in the
> various tracking/surveillance databases such as the system discussed in this
> article._

Which obviously means that you have _even more_ to lose from further setbacks,
since your options were constrained to begin with.

~~~
mindslight
Not necessarily. It depends on the relative amount of opportunities that are
beholden to those databases vs aren't.

You're assuming that there are very few opportunities outside of those
databases, so a second event would wipe out a good part of your remaining
ones. If this is your worldview, then yes your best bet is to live as a second
class citizen within the system.

But I say that there are many opportunities in the world that don't require
assenting to being tracked. The first event has eliminated the highest quality
in-system options, so you've already been forced to look for opportunities
outside of the surveillance bubble.

