This week, I read an article in AmLaw Daily that one of the “Jena 6” is going to law school. For those who might not remember, before there was Ferguson and Baltimore, Jena, Louisiana was thrown in the spotlight after racial tensions erupted in violence. In December 2006, six black Jena teenagers had been arrested and charged with attempted murder after an assault on a white teenager at the local high school. As with a lot of cases, witnesses’ accounts varied widely as to the cause of the assault but most reports had spoken about racial tensions beginning in August 2006. ESPN has a fairly comprehensive report of the incidents leading up to the assault.
In August at a school assembly, a black student asked if black students could sit under an oak tree popularly used as a gathering place by white students. When the principal said yes and three black students stood under the tree later that day, the next day three white students hung nooses from the tree. Tensions started to rise when many black families in the community said the three students involved in hanging the nooses were not expelled from school. Tensions continued through the fall with two fights occurring between black and white young men in town. In one, a black student, Robert Bailey, Jr., attempted to enter a party. According to Bailey, he was assaulted with a beer bottle by a white man, Justin Sloan. Sloan was charged with only simple assault, which outraged many in the black community.
On December 4, 2006, a fight broke out at the high school. At the end of the fight, Justin Barker, a white student lay unconscious on the ground. Witnesses said the fight started when Barker taunted Bailey about being assaulted a few days’ prior and allegedly used the N-word. Six black students were accused of being involved in the melee. When the District Attorney decided to charge the six students with attempted murder instead of aggravated battery, the racial tensions that had been bubbling below the surface erupted and thousands of protesters descended on the city and called for justice for the “Jena 6.”
Theodore Shaw was one of the Jena 6. Shaw has repeatedly maintained his innocence over the years, but that was not why his story of going to law school got me thinking. What got me thinking was Shaw’s actions since being arrested and his attitude about changing his circumstances. What started with him reading law books in jail and filing his own motions to reduce his $130,000 bail, turned into a desire on his part to help others. Since being released from jail, Shaw completed high school and enrolled in college. Shaw has interned at the Innocence Project New Orleans which provides services to free the wrongfully convicted. Shaw now works as a community advocate for the Southern Poverty Law Center. His graduation from law school would be a good final chapter in his redemption story.
Shaw’s story fits the narrative of many politicians and community organizers who have been lobbying for “Ban the Box” laws that restrict the use of criminal backgrounds in employment. In short, the argument is, people can learn from their mistakes and one criminal conviction does not a lifetime criminal make.
Employers on the other hand have to balance concerns about protecting the safety of their employees, customers, and property, which is what leads employers to consider criminal backgrounds in the first place. Some Ban the Box laws, like New Jersey’s, recognize this tension between trying to provide employment opportunities and allowing employers to protect their businesses. Others, such as Newark, New Jersey’s municipal ordinance which was pre-empted by the state law, made it very onerous for employers to review or consider criminal backgrounds when making hiring decisions.
For every Theodore Shaw out there, there are stories of individuals with long criminal histories who commit the same crimes repeatedly. Take for example, the story of a county worker in Albuquerque, New Mexico, who was arrested in 2014 for stealing a county car and his co-workers’ Social Security numbers. The first question asked by the media was how did this individual with a conviction for armed robbery get hired in the first place. However, under some states’ and municipalities laws as well as EEOC gudiance, not every conviction can be used to not hire someone. In Wisconsin and New York, for example, a conviction must be related to the job duties the employee is going to perform before it can be considered disqualifying.
I have nothing against giving people a second chance. I just think that lawmakers need to remember to balance the interests of employers, and the other employees they are trying to protect, when considering laws about the use of criminal background checks.