Sunday, March 13, 2022

Should the Character and Fitness Committee ask whether an applicant has ever been arrested?

In a recent report, a working group of the New York State Bar Association concluded that the New York Bar should not and perhaps legally may not ask applicants to the bar whether they have been arrested. (In New York, the question is known as "Question No. 26). The main reason appears to be the correlation between race and ethnicity, on the one hand, and interactions with the police, on the other. 

This is an interesting issue that I must confess I have not given enough thought to.  In contrast, over at Justicia, Joanna L. Grossman, the Ellen K. Solender Endowed Chair in Women and Law at SMU School of Law, has posted a thoughtful comment on this question.  She proposes a compromise:

Accordingly, if Question 26 is reconsidered, I would propose the following substitutes for eliminating altogether an inquiry into arrests: (a) exempt groups whose membership correlates with arrest rates and therefore are suggestive of bias, or (b) take arrests of African Americans and Indigenous people with a grain of salt in reviewing Question 26, or (c) keep the question but only for domestic violence and rape (and all of their synonyms), or (d) keep the question but investigate more deeply the cases involving perpetrators who know their victims. At a time when more and more seemingly ordinary people turn out to be dangerous and violent con artists, the New York Bar must do its part to screen malefactors out of the profession.

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