Recently I was asked at a public discussion of crime and punishment at which I was a speaker whether I thought it was right that the government (in Britain) had made it illegal for an employer to ask a prospective employee whether he had a criminal record and, if so, its nature and extent.
This is a question that I have turned over in my mind, or at least let bubble away in my subconscious, ever since, for it in turn raises several interesting and important questions.
Most of the people in the audience, I suspect, thought that the rule was right, for it is both just and merciful (rarely are the two qualities so neatly conjoined) to give criminals who have purged their legal punishment a second chance. The idea of redemption is perhaps a legacy of Christianity even among those who are themselves not Christians. And the notion of forgiveness is especially attractive to people who do not want to appear primitively vengeful. Working as I did in a prison for many years, I often tried to put myself (mentally) in the position of a prisoner leaving prison: where would he go, what would he do, how would he keep himself in a way that did not involve crime?
With regard to the latter question, a couple of statistics are instructive. The prison department in Britain once published the ages at which adult prisoners were received into prison: 97 per cent of those who had committed burglary, and 98 per cent of those who had committed robbery, were between the ages of 21 and 39. This meant, or suggested, that criminality, at least of these two types, ceased spontaneously at the age of 40: assuming, of course, that it did not mean that the burglars and robbers had simply become more adept at crime and therefore evaded detection.
Crime in general is a young man's game; but the fact is that if former criminals can keep themselves after the age of 40 by some legal means of other, they could have done so before the age of 40 also. In other words, their recidivism (for most of the criminals in prison are recidivists and not first-timers) is the result of a lack of will, not a lack of opportunity, even if, as has sometimes been suggested by those who want to ascribe crime to anything other than the decision of the criminal to commit it, the change in their conduct at the age of 40 is ascribable to falling levels of testosterone. In other words, no special efforts are necessary on behalf of prisoners leaving prison, even if nevertheless some such efforts ought to be made: eventually they will do everything for themselves.
But let us return to the questions of justice, mercy and forgiveness, tackling the latter first. The willingness and ability to forgive or overlook is essential to good human relations because we are none of us angels, we all do things we should not, and some of us even have habits irritating to those closest to us (in my case that of never passing a bookshop without buying a book, which my wife finds very irritating). If we did not have the capacity to forgive, every argument would end in divorce or murder, or at any rate in some very unpleasant consequence.
But it does not follow that what is necessary in some circumstances is necessary in all, any more than it follows that a medicine that is good for you in a certain dose must be twice as good for you in double the dose (though I have met patients in my medical career who did believe that, often with near-disastrous consequences).
Mercy is an implicit recognition of the imperfection and imperfectability of man, and that it is unreasonably rigorous to expect perfect behaviour of any featherless biped.
In order to have the locus standi to forgive, the harm that someone does must be done, at the very least in part, to oneself. If someone robs you in the street, I have no right to forgive him; only you have that right. Moreover, even if you do forgive the robber, your forgiveness, morally grand as it might be (though it might just as well be cowardly or pusillanimous), has no claim to determine the treatment of the robber by the law, any more than your vengeful feelings, if you had them, would have done. Revenge, said Bacon, is a kind of wild justice, which the more man's nature runs to, the more ought to weed it out; the same might be said of forgiveness, except perhaps that wild would not be the qualifying word to use of the justice that would result from it. The law is instituted precisely to supersede the effects of incontinent emotion, whether it is of the punitive or sentimental kind.
Forgiveness, then, unlike mercy, has no place in the law. A pardon is not forgiveness, it is an exceptional act which in no way lessens the guilt of the pardoned.
Mercy is an implicit recognition of the imperfection and imperfectability of man, and that it is unreasonably rigorous to expect perfect behaviour of any featherless biped. As Hamlet said, if we were all treated as we deserved none of us would escape a whipping; it does not do, then, to administer justice as if no other virtue or desideratum than justice existed.
Those who think that employers should not have the right to ask applicants for jobs whether they have a criminal record lose sight of these considerations, as well as others. They believe that ex-criminals would find it harder to find employment if employers knew about their past, and that an inability to find work is one of the reasons so many criminals return to crime. But this is to suppose that ex-criminals have superior rights to those of employers who, in order to protect those rights, must blindly accept risks that they might otherwise not be prepared to run.
As it happens, even those who think that employers should not have the right to ask about job applicants' criminal record do not believe this of every kind of crime. They do not believe that schools, for example, should not know anything of a prospective employee's record as a paedophile. However liberal a person may be, there is always one corner of his heart reserved for vengefulness towards at least one category of person.
But let us disregard this for a moment in order to conduct a small thought experiment. Let us suppose that you need (or at any rate want) a gardener. There are two applicants, equal as far as you can tell in their gardening abilities, and equal in charm, etc. The only difference between them that you can find is that one of them has a criminal record for stealing from his employers. Which of them do you choose?
Most people, I suppose, would choose the gardener with an unblemished record of honesty. But there are some generous souls who, anxious to do good, might choose the man with the criminal record. We shall not enquire further whether their generosity is moral exhibitionism, the desire of a moth to fly near to the candle, or obedience to an abstract Kantian categorical imperative. The fact is, however, that there are people who are willing to overlook a criminal record in order either to do some good to society or to feel well about themselves. This, incidentally, applies as much in the sphere of personal relations as in the field of employment. Murderers, especially the most notorious, seldom lack for offers of friendship or marriage from precisely the same kind of people as their victim or victims.
I remember, for example, the case of a woman in our hospital who had just had her jaw broken by her lover. According to her, he had once 'snapped' her forearm, giving her a fracture by gripping it in his hands and applying force. She had met him not long after he had been released from prison for having killed a former girlfriend.
I can take a risk myself that I have no right to demand that others take. It is typical of governments that they should not understand the distinction.
Leaving aside the question of whether he should ever have been released from prison, her choice of boyfriend seemed to me distinctly inadvisable. I did my best to persuade her of the dangers, and at first she seemed convinced. We closed the hospital ward to him, we found her a safe place to go where he would not be able to find her. But at the very last minute she decided that love was more important than safety, she relented and left the hospital with him, arm-in-arm, laughing and joking with him. No doubt they went straight to a pub where, once he had had a little to drink, he would accuse her of having been unfaithful to him.
The risk she ran was of her own choice: a foolish choice, no doubt, but a choice nonetheless. Now it seems to me that, by contrast, the state has no right to make people run risks which are easily knowable but unknown because it wants to achieve another goal, even a laudable one such as the reintegration of criminals into respectable society.
Let us consider the case of the woman above, under slightly different circumstances. Supposing she had had her jaw broken but did not know that the perpetrator was a convicted murderer recently released from prison, but that I did know this. Would it have been my duty to warn her?
Clearly it would even if, as a matter of statistics, it was far less likely that he would one day kill her than that he would never kill her (for most released murderers to not kill again, even if their murder rate is very high by comparison with those who have never murdered). I would think it was important that she should be in possession of the information in order to make a choice.
Now someone might say that, in order for her to make her choice in a truly informed way, she would not only have to know that the boyfriend was a killer, but what were the statistical chances of a man such as he killing again — otherwise, she might make her choice on the basis of a mere prejudice against murderers. And since prejudice is the basis of all discrimination, it would be better for her to know nothing of this man than to know only that he was a murderer. Murderers have their human rights too, and the avoidance of discrimination on the basis of prejudice is a goal of such overriding importance that allowing people to take unknown but knowable risks is a small price to pay for it.
Such an argument would be absurd, and for the state (as in Britain) to force private individuals or companies to bear risks that they could easily avoid is highly dictatorial.
In fact, no one is free unless he is free to act upon his own prejudices. If he does so act he might be a very unpleasant and bigoted person indeed, or he might be an exceptionally generous and warm-hearted one: it all depends upon what his prejudices actually are. But the idea that the government should determine what prejudices people must not act upon — for example that an extensive criminal record might make a prospective employee less than a safe bet — is totalitarian.
For myself, having worked in a prison for many years, I have a soft spot for criminals — or at least, for some criminals. I am among those who would be inclined personally (and within reason) to give them a chance, if I had jobs at my disposition. I would even be prepared to be disappointed, to find that the thief whom I had found charming and thought wanting to turn over a new leaf had actually stolen from me. I would pat myself on the back because I would think that I had performed a good and charitable act by employing him. But I would also think it the grossest act of tyranny to require my neighbour to behave in precisely the same way. I can take a risk myself that I have no right to demand that others take. It is typical of governments that they should not understand the distinction.
Theodore Dalrymple. "Forgiveness Is a Kind of Wild Justice." The New English Review (January, 2012).
Reprinted with permission of the author, Theodore Dalrymple.
Theodore Dalrymple is a former psychiatrist and prison doctor. He writes a column for the London Spectator, contributes frequently to the Daily Telegraph, and is a contributing editor of the Manhattan Institute's City Journal. He lives in France and is the author of The Proper Procedure and Other Stories, Out Into The Beautiful World, Admirable Evasions: How Psychology Undermines Morality, Spoilt Rotten: The Toxic Cult of Sentimentality, Farewell Fear, The New Vichy Syndrome: Why European Intellectuals Surrender to Barbarism, Not With a Bang But a Whimper: The Politics and Culture of Decline, In Praise of Prejudice: The Necessity of Preconceived Ideas, Our Culture, What's Left of It: The Mandarins and the Masses, Life at the Bottom: The Worldview That Makes the Underclass, and So Little Done.Copyright © 2012 The New English Review
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