Confidential Ex-Con Part II

Q. If I know that a job applicant has a criminal record, should I inform the proprietor?

A. The case of a former criminal can be related to on two levels. At one level, he is the same as any individual: He deserves protection from slander, but at the same time others deserve protection from any damage he may be likely to cause. This aspect of the question was discussed last week.

At another level, there is a public interest involved in this unique case. The public interest aspect is the topic of this column.

As we mentioned last week, we cannot discuss here the grave and complex considerations that apply if the applicant's past creates a concern that he may be actually dangerous to others. Here we will relate only to the concern that the person may be dishonest and cause a monetary loss.

PUBLIC CONSIDERATIONS

Even if the usual considerations of damaging speech would permit some level of disclosure, we should weigh the additional consideration that unconsidered application of these considerations might make rehabilitation of criminals almost impossible. What could easily result is a vicious circle: Many released criminals return to a life of crime; therefore no one is willing to hire them; therefore they have no recourse except a life of crime.

Once this vicious circle is ingrained, any person who warns an employer is within his rights. After all, this person's past does create a significant likelihood that he will cause damage. Yet this likelihood is in itself partially due to the spreading of the information. If people were more circumspect in revealing the past follies of others, it would be easier to overcome them. Perhaps the likelihood of backsliding could then itself be considerably reduced.

Many of the most accepted theories in the social sciences encourage a mechanistic view of human nature. According to these theories, by the time we are adults our tendencies are pretty well ingrained. Whether these tendencies are stamped by nature or by nurture, by the time we are grown up they are virtually impossible to change.

Jewish tradition, by contrast, strongly emphasizes our immense potential for change and growth. Our belief is that human beings are fundamentally good, that "God create man straight." The Hebrew word for "repentance" literally means "return" -- returning to our genuine, righteous selves, as we were created in God's image. So fundamental is the idea of "return" to our view of humanity that our sages say that repentance was created before the world! ⁽¹⁾ Human existence is basically predicated on our free will and our ability to transform ourselves for the better.

It is only natural that our tradition sought ways to encourage this vital process of self-transformation. In many places we find that our authorities amended certain laws and created special leniencies in order to make it easier for transgressors to repent. The expression we find is "Don't lock the door before repentance." For example, we sometimes accept repentance even if it is not completely sincere, so as not to discourage others who fear they will be similarly judged. ⁽²⁾ In some cases, we don't require a person to return money he acquired improperly, because we are worried that the resistance to giving up the money will be so great that the person will be unable to give up a life of crime. ⁽³⁾

So one reason for being more circumspect in the case of a former criminal is that we want to weigh the possible damage to society against the immense importance of encouraging the applicant to adopt a normal lifestyle.

A second, related reason is that to some extent reporting on the applicant doesn't necessarily protect society at all. Even if the applicant is a crook, reporting is likely to protect this employer to the detriment of some other employer, with society as a whole none the better.

A well-known Mishna bears a subtle yet profound message of solidarity -- that one person shouldn't seek to protect himself from danger at the expense of imposing the same danger on others. One basic principle of prayer is that we don't pray to change the past, and such a request is forbidden as a "vain prayer." The Mishna states:

One who requests about the past, that is a vain prayer. How so?... If he heard a cry arise from a city and prayed, "May it be Your will that those are not members of my household," that is a vain prayer. ⁽⁴⁾

This choice of example has a profound message of social responsibility. The Mishna could just have easily taken the example of one who prays, "May it be your will that no one is harmed." Instead, the Mishna gives examples of someone who wants to have misfortune fall on others instead of himself. The Mishna is hinting that this too is a kind of vanity.

The concern for our joint responsibility to encourage rehabilitation should come into play in borderline cases. If we have firm reason to believe that this applicant will cause loss to the employer, we should pass along our information to be responsibly used. And if our concern is based solely on hearsay and surmise, then we should in any case just keep quiet -- especially if the anticipated possible loss is not great.

But in borderline cases, we should try and give the former wrongdoer the benefit of the doubt, in order to do our bit to enable his rehabilitation and to encourage others to summon the inner strength needed to adopt a new, more enlightened path in life.

SOURCES: (1) Babylonian Talmud Pesachim 54a. (2) See Devarim Rabba on 4:25. (3) Babylonian Talmud Bava Kamma 94b. (4) Mishna Berakhot 9:3