I realize that I am sometimes prone to overstatement, but I think readers will find the title of this entry justified. The subject is a post on Sentencing Law & Policy titled, "A Second Chance: Re-biography as Just Compensation." I will quote verbatim the opening paragraph of the tract it references:
Once upon a time, reinvention was an integral part of the myth of the American Dream. As the story went, one could leave the old country or old neighborhood, without looking back -- fashioning one's own second chance by stepping into a newer, better identity, crafting a redesigned life story out of whole cloth if necessary. As one legal historian noted, "American culture and law put enormous emphasis on second chances." For most of the 20th Century, this notion of the second chance was also alive and well in the American criminal justice system, as rehabilitation was considered its primary goal. My earlier article, "A Good Name: Applying Regulatory Takings Analysis to Reputational Damage Caused by Criminal History," couched the need for rebiography upon reentry in terms of the ongoing reputational damage suffered by the previously convicted. Then, regulatory takings analysis was applied to that reputational damage. In doing so, it analyzed the critical property-like characteristics of reputation, concluding that reputation is a form of "status property" and that such continued stigma attachment and reputational damage constitutes a "taking" without just compensation. Finally, it was argued that rebiography can serve as "just compensation" for this type of taking.
For those of you who believed the old line about the criminal's owing a debt to society, wake up. Society owes a debt -- and thus "just compensation" -- to the criminal (ummm, make that "previously convicted") for the indignity of having convicted him for his behavior.
I am tempted to just leave it at that, because the idea of compensating a thug for being found out and designated a thug is, or at least it should be, self-parody. But it might be worth a moment to point out some problems with this thinking (notwithstanding that the article appears on SSRN and was written by a Harvard Law School-educated law professor, Jamilia Jefferson-Jones).
Perhaps the best way to proceed is by bringing back my Dictionary for the Politically Incorrect and applying it to words and phrases as used in the article.
"Second chance" -- Hoodwinking your prospective employer into thinking you've led and honest, peaceful life. Even better, working for a law that requires the prospective employer to act hoodwinked even if he's not."Crafting a redesigned life story out of whole cloth if necessary" -- Amazingly, this requires no translation. I especially like the use of "out of whole cloth," since everyone understands this to mean "lying.""Rehabilitation" -- In the past this meant, "improving your behavior to conform to law." It now means, "pretending there was never any behavior that needed improving.""Rebiography" -- Fake biography."Reputational damage" -- The correct understanding that a once-convicted felon is somewhere from slightly to vastly more likely than the average person to do it again.
"Reputational damage [as] a 'taking'" -- Your selling the smack or robbing the store or mugging Grandma disappears, and in its place, the state is deemed to have been engaged in the "taking" of your (assumed prior) reputation as Mr. Nicey, and now owes you big time.
"Just compensation" -- The consequent requirement that the state lie about your behavior and cover up your past, instead of merely trying to lie about it all by yourself.
This is what passes for publishable legal thinking.
If I understand the taking analogy correctly, I can burn down my own house and then file a claim against the government in inverse condemnation. Is that correct?
No, but you are immune from any consequences from making a false insurance claim.