Friday, September 7, 2012

Might not solve the problem

I knew this was coming, based on the comments here on my blog and at the newspaper's web site over the past couple of weeks: the Lincoln Journal Star lead editorial in today's edition opines that the City should change the classification of convictions for violating Lincoln's emergency water restrictions from a misdemeanor to an infraction.

The reason for their position is outlined in this article, by Nancy Hicks, asserting that conviction of such a violation could effect someone's professional license or employment prospects. They are correct in noting that the improved availability of criminal history records has made access to these public records easier than ever. They may be correct in the assertion that some lazy employment offices are just setting aside applicants with any kind of conviction, rather than applying some judgement to make a decision whether the offense has any bearing on the position sought.  But if that is the problem, I'm not so sure a change in the classification will work.

Conviction of an infraction is a public record too, and there is no exception in the law that allows such a record to be redacted or withheld.  If you get yourself convicted here in Lincoln of possessing less than an ounce of marijuana  failing to pick up your dog poop, flicking a cigarette butt out the window, placing a "Lose 30 pounds in 30 days" sign in the public right of way, or allowing your unspayed cat to run at large (or any one of hundreds of other minor misdemeanors and infractions), this will appear on your public criminal history record when someone forks over a sawbuck to buy it from LPD.  Traffic infractions are also available online from the State Department of Motor Vehicles, and many employers use this service.

The editorial may have pinpointed an issue concerning practices of some organizations that try to substitute automated records checks for intelligent discernment by an employment official who uses some common sense.  The solution offered, however, might not solve the problem.

26 comments:

Steve said...

It's hard to fault employers for not taking the time to investigate a criminal record rather than simply tossing the application in the trash. With the job market today, nearly any job is likely to have hundreds of applicants, or even thousands. Employers have plenty of applicants with spotless records to choose from, so why waste time checking each one with any kind of criminal history?

I'm not really taking their side, but simply pointing out the logic behind their approach. In my own opinion, they would find better candidates with a more in depth check of each person's qualifications than having a computer read the applications and choosing based on superficial aspects such as the use of "key words" on a cover letter. I've noticed many jobs reposted after a few weeks, apparently because the first applicant they took didn't work out as hoped.

Even though many of the offenses you listed are quite minor, they still say something about a person. Perhaps they don't care all that much about respecting the law, or they are not well informed, or they are careless, all of which might affect someone's performance on the job.

Tom Casady said...

Steve,

These are the criteria I use as both an employer and one advising other employers, when considering the weight of misdemeanor and infraction offenses:

Recency
Frequency
Severity

Anonymous said...

Also most people don't know that if you are not fingerprinted for a crime it does not go into your "official" fingerprint based criminal history for state and federal criminal history checks. Not sure what all the fuss is about.
Don't commit the crime if you can't do the time!

JoelRT said...

Medical personnel also have their licenses reviewed on a annual basis and criminal records do affect that process. I know the boards that approve the licenses will most likely not discipline someone for this misdemeanor but it may delay their process and potentially delay them being able to work as we are unable to work if our license is not current.

Anonymous said...

"...this will appear on your public criminal history record when someone forks over a sawbuck to buy it from LPD."

Is forking over a sawbuck a misdemeanor or a felony?

Anonymous said...

If the teacher's union, specifically the NEA, takes the position that this should become an infraction, rather than a misdemeanor (due to misdemeanors - but not infractions - having to be reported to the district), the city administration will trip all over themselves, rushing to placate them. All they'd need to do is hint that they might endorse any challenger in the May local election.

Tom Casady said...

1:02,

I hereby bestow upon you the "comment of the week" award, and all the privileges, courtesies, and honors customarily accorded thereto.

JoelRT,

Quite true, and you are right: nobody seems to understand this. Unless a background investigation also discovers local records held by local criminal justice agencies, a misdemeanor arrest for which the defendant is not fingerprinted will not show up in a search of a State or Federal criminal record repository. These repositories are fingerprint-based. In Nebraska, at least, the great majority of people arrested for a misdemeanor are released with a citation and a court date, and never fingerprinted.

Tom Casady said...

By the way, I suddenly discovered that I covered the topic of criminal history information a couple years ago in an even more tediously-detailed post.

Anonymous said...

How about people just follow the guidelines that were implemented and suffer the consequences of their actions. It is a pretty simple solution.

Anonymous said...

"How about people just follow the guidelines that were implemented and suffer the consequences of their actions. It is a pretty simple solution. "

Yeah, how dare people not just do a meek sheep imitation. I suppose you'd have opposed the repeal of the fugitive slave act, since that was a guideline that had been implemented. Just turn them in or suffer the consequences of their actions, right? Fascists just love folks like you. Baa baa baa.

Steve said...

2:29

If I may take the liberty of speaking for the regulars here, we'd prefer the LJS trolls stay on the LJS website.

Legitimate points of view are welcomed without the need for name calling here.

Tom Casady said...

Something else to consider, which I was just reminded of by our City Attorney, Rod Confer, is Nebraska Revised Statute 29-2264 (sub 2). This statute provides a process by which someone convicted of a misdemeanor and sentenced to a fine only can petition the court to have a conviction set aside. There is nothing similar for an infraction. For someone who is concerned about a conviction appearing on his or her record for a emergency water restriction violation, this would remove the record entirely. If the violation is changed to an infraction, you would not have the same opportunity. Just something to think about.

Anonymous said...

How about Diversion?

Anonymous said...

So, in Lincoln, possessing 27 grams of marijuana is a less serious crime than watering your yard on a Monday.??? Doesn't make much sense.

Tom Casady said...

6:45,

How about it? Eligible, but
Rob ably as expensive and more of a hassle than paying the fine.

10:42,

Yes, and yes. The only infractions of any note other than traffic violations are possession of less than an ounce of marijuana, possession of drug paraphernalia, open alcohol container in a motor vehicle, and minor operating a motor vehicle with >.02% alcohol w/v in blood. Virtually everything else--hundreds of ordinances-- is a misdemeanor.

Tom Casady said...

Okay, here's my suggestion: how about we get these emergency water restriction violations out of the criminal justice system entirely? We know who pays the water bill at every single property not following the restrictions, and we know how much water they use. Don't you think we could come up with an administrative penalty that would just arrive on your water bill? This is essentially how we now deal with excess false alarms, abandoning criminal citations in favor of a fee system, and it has had a huge impact.

Anonymous said...

"how about we get these emergency water restriction violations out of the criminal justice system entirely?"

That's a pretty good idea, as long as the fees went to the same place fines do - the county school system - instead of the city government. You have to have that financial disconnect between those that assess the fee and those that receive it, or you might get ridiculously aggressive enforcement (revenue-collecting being the true motive).

Anonymous said...

Another thing: Don't fines levied by the courts go to the schools?
Gun Nut

Tom Casady said...

Gun Nut,

Yes, that's correct. It is a provision in the Nebraska Constitution. That's another reason a fee schedule for violators of an emergency water restriction might be a good idea. With a fee, you could recoup some of the expense of the enforcement; with a criminal citation and fine(whether its a misdemeanor or an infraction) you do not.

Steve said...

I like your idea, Tom, but how does anyone know, without sending an officer to investigate, how any one person's water was being used. I'm supposed to water my lawn on Tuesday, Thursday, and Saturday, but I could fill my bathtub a hundred times on Wednesday without violating any laws. The water company might know how much water I'm using on any given day, but how do they know where or how it is being used? Now, if you're suggesting we simply limit the quantity of water used on any day, that's a different story.

Tom Casady said...

Steve,

In the scenario I proposed, someone would still have to go out and verify the violation, probably with a digital photo and a very short report. This wouldn't have to be a police officer, though, and you wouldn't have to roust the resident--or in the case of a business, make one or more return trips to find the appropriate person during business hours. You could actually use a part-time and temporary work force (like retirees?) to do the field observation part.

There are other options, though. Instead of trying to control landscape irrigation by day, which has proven to be not nearly as easy as it might seem, maybe you could do something else entirely. As you mention, maybe you could monitor customer use and impose a penalty if it exceeds X% of normal daily use during a water emergency restriction. Maybe you could impose a special rate structure during a water emergency that keeps the tier one rate the same, increases the tier two rate slightly, and ramps the tier three rate way up, so that people who choose to ignore the recommended restrictions end up paying a much heftier price for the privilege--and are thus deterred. There are probably more options out there, but I really would like to explore whether we can get the police out of the water police business.

Anonymous said...

Do you have to give your name when you report your neighbor? Is there anyway the "guilty" person can find out who called them in?

Tom Casady said...

11:03,

No, you don't and no, there isn't.

Anonymous said...

11:03,

If they have a scanner, they might hear who you are, but then again, they might not. If you want contact with the disposition of the incident, make sure the dispatcher sends your name/number to the officer's MDT, rather than transmitting it over the radio.

Steve said...

A rate structure that discourages heavy water use is probably the most effective way of reducing water usage in a shortage. However, that solution favors those with lots of money, many of whom couldn't care less about their water bill and would continue to water lawns, fill pools, wash cars (and boats and motorhomes and driveways and airplanes and you get the idea). This would infuriate the rest of us who might barely be able to afford the little water we do use as a necessity. Perhaps some combination of rate structure and outright banning of some of the heavier and less necessary water usage (such as any outdoor watering during daylight hours or something of that nature) would be more fair. This could still necessitate some police actions, but probably far less than what we have now.

Anonymous said...

"This would infuriate the rest of us..."

Speak for yourself; I never joined the "eat the rich" club.