Team Leniency is at it again

The Trump administration has proposed a new hiring rule under which federal job applicants would have to disclose whether they went through a criminal diversion program. Currently, applicants are asked about criminal convictions and periods of incarceration, but some criminals avoid prison and a criminal record through pretrial “diversion.” Under the proposed new rule, they would be asked about this.

The proposed rule is sensible. The federal government ought to know about past criminal conduct by job applicants even if they escaped punishment via diversion. It’s the conduct, not the punishment, that matters most to potential employers.

Disclosing participation in a criminal diversion program doesn’t mean automatic disqualification from employment. It’s just another potentially relevant piece of information the federal government can use in assessing the fitness of an applicant. If the crime wasn’t a serious and/or recent offense, and/or is not particularly relevant to the job in question, the government is unlikely to disqualify the applicant.

Nonetheless, the usual congressional suspects are crying foul. Sens. Charles Grassley, Mike Lee, Dick Durbin, and Cory Booker complain that the proposed policy is “flatly at odds” with the goals of the leniency for felons legislation they guided through Congress.

It may well be at odds with the goals of Grassley, Lee, Durbin, and Booker. However, executive action need not be consistent with the goals of particular legislators, or even with the general purposes of the legislation. It need only be consistent with what the legislation actually provides.

President Trump has issued many executive orders that are inconsistent with the goals of legislation passed by Congress. Regulations pertaining to Obamacare are the best example, but not the only one.

It’s true that Trump neither signed nor supported Obamacare, but did sign and support jailbreak legislation. However, this doesn’t mean he’s bound by the Grassley-Lee-Durbin-Booker vision of how to treat criminals who aren’t in jail. The legislation speaks only to the treatment of prisoners.

It may also be worth pointing out that the vastly oversold “evidence-based rehabilitation programs” that the jailbreak legislation relies on to justify letting felons out of jail early (despite their high recidivism rates) are available to those who have been sent to prison. Those who avoid prison thanks to diversion programs presumably receive some “rehabilitation,” but don’t necessarily participate in the same allegedly wonderful rehabilitation programs as those available to federal prisoners. Thus, the alleged tension between the proposed hiring rule and the leniency for federal felons legislation may be more imagined than real.

In any event, if Sens. Grassley, Lee, Durbin, and Booker wanted to prevent employers from learning about the criminal past of those who participate in criminal diversion programs, they should have included a provision in their leniency legislation that bars this practice. Mike Lee, in particular, should understand that it’s what’s in a piece of legislation, not the general aspirations of the legislators, that matters.

It’s questionable whether the proposed rule will be adopted, though. There’s a chance that Jared Kushner will intervene and block it.

I suspect Kushner and his wife want to know about any past criminality by candidates for jobs in their household and orbit, regardless of whether the candidates were punished or, instead, “diverted.” But they may not be averse to denying other employers such information — especially if Kushner’s pal Van Jones lobbies him.


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