We often hear from the left that our criminal justice system is broken. Part of what the left, including our Attorney General, means by this is that too many people are in jail, especially too many Blacks.
I take no position in this post about that claim. But in the case of Aaron Alexis — the Navy Yard mass murderer — it looks like the criminal justice system’s breakdown consists of its failure to incarcerate.
According to reports, Alexis was arrested in Seattle in 2004 for shooting out the tires of a parked car. Apparently, he did so in a rage because he felt two construction workers had disrespected him.
The Seattle police said today that it referred Alexis’ case to the Seattle Municipal Court for charges of property damage and discharge of a firearm. But there’s no indication that Alexis was ever prosecuted. And a spokesperson for the Seattle City Attorney’s Office claims that it never received the report from police and so did not review the matter for possible charges.
If Alexis had been prosecuted and convicted, I don’t know that he would have gone to jail. But in a healthy, properly functioning society, he would have served time. And he certainly wouldn’t have walked due to faulty paperwork.
But let’s take Alexis’ situation one step further. If Alexis been convicted of discharging a firearm in public, prospective employers who conduct background checks (including, presumably, the Navy) would likely have learned of the conviction. Given the obvious threat posed by someone who shoots guns at cars because he feels disrespected, rational employers would have refused to hire Alexis.
But the civil rights community and the EEOC are inclined to sue employers whose criminal background check policies exclude black applicants in disproportionate numbers, which most such policies do. As an African-American, Alexis could have been a plaintiff in a private suit or a claimant in a government suit.
To be sure, employers can defend these suits by proving (the burden is on the employer) that excluding the plaintiffs or claimants was justified by “business necessity.” And it’s possible that the EEOC might accept a business necessity defense in the case of someone who shot the tires out of a car because he was angry.
But in analyzing the business necessity defense, the EEOC takes into account (reasonably enough in the case of many crimes) how long ago the conviction occurred. Based on my experience litigating against the EEOC in this area, I doubt that the EEOC would accept a business necessity defense for the exclusion of Alexis based on a conviction for property damage and discharging a firearm that was nine years old.
Yet the ongoing risk of hiring someone who acted the way Alexis did in 2004 is clear today for all the world to see.
Standards may be inconvenient, but many of them exist for our protection. Unfortunately, it is often just these standards that the left attacks.
UPDATE: Am I saying that someone in Alexis’ position [i.e., with the criminal conviction he ought to have picked up in 2004] should never be employed for the rest of his life? No, not necessarily. I’m saying that employers should be permitted to assess the extent to which such an individual poses an undue risk, hire him or reject him accordingly, and not have to worry about being sued for race discrimination if they reject him due to his prior conviction.