PRISON FELLOWSHIP'S POSITION
- Our Christian faith calls us to bring the Gospel’s message of redemption to men and women behind bars and to ensure a safe and meaningful second chance at life is available when they are released from prison.
- We believe removing barriers to second chances is a tangible expression of God’s message of redemption. This is a matter of justice as well as a pathway to reduced recidivism and increased public safety.
- Barriers to success based upon a criminal record should always be limited to what is necessary to protect the public. Many people with a low-level criminal record should not have any restrictions, including to a licensed occupation.
- Consideration of a criminal record in determining whether to grant someone an occupational license should be centered on a direct relationship between the crime in question and the specific license sought. Such evaluations should be based on a person’s demonstrated safety risk and mindful of their rehabilitative progress, including the time that has passed since they committed the offense.
- Each state legislature should be responsible for identifying where restrictions to a licensed occupation are necessary. In addition, the legislature should create a factoring test to guide an analysis of direct relationship between the offense committed and responsibilities of the occupation or proof of rehabilitation. This process should be informed by testimony from experts in the field, as well as by individuals who have been and will be impacted by the policy.
- Agencies should be empowered to adjust their own administrative rules to meet legislative guidance. Additionally, to create further transparency and accountability, agencies should report related metrics annually to the legislature and the public, including licenses sought, demographics of applicants, reasons for denial, and remedial action offered.
- The fees associated with licensure should be reasonable and subject to payment plans to avoid further hinderance to individuals otherwise qualified to participate in the field.
- Occupational licensing laws should contain clear evaluation guidelines and fair notification rules, including the opportunity to request information about fitness for a license before incurring the costs of education, training, or application.
THE SCOPE OF OCCUPATIONAL LICENSING
Gaining meaningful employment is one of the most significant known predictors of how likely an individual is to be involved in criminal activity in the future.[i] However, 90% of those who have been incarcerated struggle to find employment in the first year after release.[ii] Encumbering this process are more than 16,000 legal barriers to obtaining an occupational license for individuals with a criminal record.[iii]
KEY FACTS
- One in 4 jobs require an occupational license, and there are 16,000 legal barriers preventing a person with a criminal record from obtaining a license.
- Nearly 6,000 legal barriers to obtaining an occupational license are blanket bans, automatically prohibiting licensure of individuals with a criminal record.
- The other 10,000 barriers fall under “good moral character” clauses, which give licensing boards discretion to deny licensure based on criminal history, regardless of whether it was a serious offense or even an arrest that did not lead to a conviction.
Occupational licenses are intended to protect public health and safety, as well as support career development and professionalism.[iv] When appropriately crafted, licenses can fulfill those safety goals without partiality. However, unnecessary requirements, such as excessive fees, paperwork, and educational requirements, have reduced employment opportunities, particularly for certain populations, including those with a criminal record. The licensure requirements for a particular field can vary among states and do not always align with the goal of protecting public health and safety.[v]
Every jurisdiction in the U.S. has enacted some form of law prohibiting those with a criminal record from employment in certain industries. Outside of the barriers to employment generally, there are specific barriers to jobs that require an occupational license, which 1 in 4 jobs now require. Some of these prohibitions are logical, based on a nexus between the crime committed and the occupation prohibited—for example, the prevention of an individual with a drug offense from receiving a pharmacy license.[vi] Others simply prohibit someone from participating in an occupation due to the commission of any crime, regardless of its nature or the time that has passed since it occurred. An example of this would be banning someone from an interior design license because of any misdemeanor or felony on their record.[vii] Regardless of the connection between crime and occupation, licensing agencies should look for factors that demonstrate rehabilitation and impact safety when considering an individual’s criminal history.
The barriers facing individuals with a criminal record fall under either blanket bans or “good character” clauses. Nearly 6,000 of the 16,000 legal barriers to obtaining an occupational license are blanket bans, meaning that there is an automatic prohibition for individuals with a criminal record. Over half of those blanket bans are indefinite, meaning that the ban exists regardless of the amount of time that has passed since the offense that resulted in the ban.[viii] In some instances, these bans can vary based on offense, but are most often for offenses that are considered “serious” or “violent.”[ix] These bans are particularly frustrating and problematic when a person has been trained in a certain trade inside prison but then is unable to transfer those skills outside of prison due to a licensing ban. This issue often occurs with barber licenses; many people participate in this common training program in prison, only to be banned from ever receiving a license in most states.[x]
The other 10,000 barriers fall under “good moral character” clauses, which give licensing boards discretion to deny licensure.[xi] These clauses give boards a reason to deny an individual based on their criminal history, regardless of whether theirs was a serious offense or an arrest that did not lead to a conviction.[xii] This broad discretion can pose serious risks to fairness and due process.[xiii] In many fields, the character clause acts much like a blanket ban and prevents anyone with a criminal record from obtaining a license in that field of work regardless of a nexus between offense and occupation.[xiv] However, even the licensing regulations that require a connection have a vague definition of what qualifies as a “related conviction.”
Beyond the legal barriers an individual with a criminal record may face when trying to obtain an occupational license, there are also financial barriers. On average, an occupational license requires $267 in fees.[xv] The fees associated with a license, along with the training and education needed to obtain the license, can present significant challenges for individuals who have been formerly incarcerated—particularly people who have other court-ordered fines and fees that take a toll on their income.[xvi]
THE HISTORY OF OCCUPATIONAL LICENSING
Individuals with a criminal record may face financial barriers to obtaining an occupational license, but financial incentive was one of the bases on which these licenses were founded. In 1776, an economist first recognized that reducing the availability of individuals skilled to do a job could result in increased wages for such jobs.[xvii] Alongside the individual benefits, industries recognized that licensures could confer greater status and standards to their field of work.[xviii] Throughout the later part of the 19th century, occupational licensing began to take shape in statutes across the nation.[xix] States passed laws regarding the licensure of doctors, dentists, and other health care workers, as well as trade workers like plumbers, barbers, and electricians.[xx] In 1950, just 5% of jobs required a license, but now nearly a quarter of all jobs require licensure, including cosmetologist, school bus driver, florist, interior designer, etc.[xxi] The growth of occupational licensing has been attributed to public safety concerns, as well as consumer protection policies.[xxii]
NOTEWORTHY REFORMS
The impact of the increase in licensure from 1950 to the early 2000s was felt during the 2008 recession. Businesses in jurisdictions with numerous licensing restrictions experienced the burden of the recession more than jurisdictions with fewer restrictions.[xxiii] A few years later, occupational licensing reform began to take shape, with Michigan, North Carolina, and Texas among the first states to create commissions focused on reviewing occupational licensing regulations in their state. In 2015, a report from the White House regarding occupational licensing advised policymakers to “consider the merits of licensure and its effects on public health and safety, provider supply, administrative costs, and the price of goods and services.”[xxiv] Since then, most states have reformed their occupational licensing statutes to lessen the barriers individuals with a criminal record face when trying to obtain a license.[xxv]
One area of reform has been the consideration of whether the requirement demonstrates a clear correlation between criminal conviction and licensure. By focusing on establishing a clear nexus, many states have been able to remove unnecessary bans based solely on criminal record.[xxvi] Prison Fellowship® played a substantial role in developing and passing Texas’ H.B. 1342, which looks at that exact issue. Signed into law in 2019, H.B. 1342 ensures criminal history only be considered when the conviction “directly relates” to the license and that there is a clear explanation of how it relates to eliminate any vagueness.[xxvii] Some states have considered the time that has passed since an offense when reforming their occupational licensing laws. In these reforms, a criminal offense cannot be considered for the purposes of licensure after a certain period based on a presumption of rehabilitation, typically between five and 10 years.[xxviii] Rehabilitation is another factor states take into account when considering reforms. A few states have created a process in which individuals can submit proof of rehabilitation either on appeal or during a supplemental application for licensure.[xxix]
The removal of barriers typically comes during one of two periods of assessment. Sunrise reviews refer to a period before legislation is passed.[xxx] During this process, to create a licensure for an occupation, proponents must outline the impact, cost, and benefits of such a license for legislators to consider.[xxxi] A sunset review occurs after the law is already in place when a board or similar entity conducts periodical reviews of the licensure for relevance, effectiveness, and efficiency. [xxxii] The result of these reviews can lead to eliminating or modifying the requirements for the licensure.
Diminishing and removing barriers through review allows individuals with a criminal record a greater opportunity to find employment in licensed fields. Given the data regarding the relationship between employment and future criminal activity, governmental entities responsible for licensure should prioritize examining the barriers through the review processes mentioned above. Barriers to success based upon a criminal record should always be limited to what is necessary to protect the public.
RESOURCES
“Shattering Stigmas: The High Stakes of Licensing Bans for People With a Criminal Record” is a blog and video that explore how one woman was impacted by barriers to success.
Testimony submitted by Prison Fellowship to the House Committee on Small Business for October 2019 hearing on entrepreneurship opportunities for formerly incarcerated.
[i] John M. Nally, et al., Post-Release Recidivism and Employment among Different Types of Released Offenders: A 5-Year Follow-up Study in the United States, 9 Int’l J. of Crim. Just. Sci. 1, 16, 23 (2014); Le’Ann Duran, et al., Integrated Reentry and Employment Strategies: Reducing Recidivism and Promoting Job Readiness, The Council of State Governments Justice Center (2013), https://csgjusticecenter.org/wp-content/uploads/2013/09/Final.Reentry-and-Employment.pp_.pdf.
[ii] Id.
[iii] NICCC, National Inventory of Collateral Consequences of Conviction, National Reentry Resource Center (2022), https://niccc.nationalreentryresourcecenter.org/consequences.
[iv] NCSL, The State of Occupational Licensing: Research, State Policies, and Trends, National Conference of State Legislatures (2017), https://www.ncsl.org/Portals/1/Documents/employ/Licensing/State_Occupational_Licensing.pdf.
[v] Id.
[vi] NICCC, supra note 3.
[vii] Id.
[viii] NICCC, supra note 3. (3,431 occupational licensing barriers are automatic and indefinite.)
[ix] NCSL, The Evolving State of Occupational Licensing: Research, State Policies, and Trends, 2nd Ed., National Conference of State Legislatures (Nov. 2019), https://www.ncsl.org/Portals/1/Documents/employ/Occu-Licensing-2nd-Edition_v02_web.pdf
[x] NICCC, supra note 3; Ashley Nerbovig, License to Clip: A Movement to Let the Formerly Incarcerated Cut Hair & Drive Taxis is Gaining Ground, The Marshall Project (2018), https://www.themarshallproject.org/2018/07/10/license-to-clip.
[xi] NICCC, supra note 3.
[xii] NCSL, supra note 9.
[xiii] Dick Carpenter, et al., License to Work: A National Study of Burdens from Occupational Licensing, Institute for Justice (November 2017), https://ij.org/wp-content/themes/ijorg/images/ltw2/License_to_Work_2nd_Edition.pdf
[xiv] Id.
[xv] Id.
[xvi] NCSL, supra note 9.
[xvii] Carpenter, supra note 13.
[xviii] Id.
[xix] Lawrence Friedman, Freedom of Contract and Occupational Licensing 1890-1910: A Legal and Social Study, Berkeley Law (1965), https://lawcat.berkeley.edu/record/1109917?ln=en.
[xx] Id.
[xxi] NCSL, supra note 4.
[xxii] Id.
[xxiii] Thomas Snyder, et al., U.S. State Occupational Licensing: Measuring its Impact on Business Establishments During the Great Recession, International Journal of Business & Applied Sciences (2020), https://ijbas.com/wp-content/uploads/2021/01/Snyder-Mattson-Kanode-2020-93.pdf.
[xxiv] Iris Hentze, Improving Occupational Licensing with Sunrise and Sunset Reviews, National Conference of State Legislatures (2018), https://www.ncsl.org/research/labor-and-employment/improving-occupational-licensing-with-sunrise-and-sunset-reviews.aspx.
[xxv] IJ, Recent Licensing Reforms for Workers with Criminal Records, Institute for Justice (2016), https://ij.org/legislative-advocacy/state-occupational-licensing-reforms-for-people-with-criminal-records/.
[xxvi] NCSL, supra note 4.
[xxvii] Prison Fellowship, Prison to Proprietorship: Entrepreneurship Opportunities for the Formerly Incarcerated, Testimony before U.S. House Committee on Small Business on Oct. 23, 2019, https://www.prisonfellowship.org/wp-content/uploads/2020/12/Prison-Fellowship_Small-Business-Committee-Testimony_Oct-23-2019-002.pdf.
[xxviii] Margaret Love & David Schlussel, The Reintegration Agenda During Pandemic: Criminal Record Reforms in 2020, Collateral Consequences Resource Center (Jan. 2021), https://ccresourcecenter.org/wp-content/uploads/2021/01/CCRC_The-Reintegration-Agenda-During-Pandemic_2020-Reforms.pdf.
[xxix] Id.
[xxx] Hentze, supra note 25.
[xxxi] Id.
[xxxii] Id.
