Shackled by Freedom: How Workplace Licensing Holds Back Ex-Convicts

By Amanda Kieffer, RealClearInvestigations
March 25, 2024

After years of drug abuse and crime, Rudolph H. Carey III began to get his life back on track in 2007 when he checked himself into rehab and eventually drew on his experience to become a substance abuse counselor in Virginia.

Then it was all taken away from him. After his company was taken over, his new employer fired him in 2018 due to his 2004 conviction for assaulting an officer while trying to run away from a traffic stop. State law prohibits former offenders like him from working as substance abuse counselors.

Carey, 53, says he wept when he found out he could no longer pursue his vocation despite hundreds of hours of education and nearly five years working in the field while pursuing full certification. “It kind of crushed me,” he said. “I just knew this was what I was gonna do.”

Carey is one of the millions of Americans wrestling with the collateral consequences of criminal conviction. Put simply, an ex-convict may have paid his debt to society, but the hold of the regulatory state is difficult to shake. The rise of professional licensing is a little-noticed development as unionization has declined in the private American workforce, but it erects comparable obstacles to good jobs. Researchers and advocates point to occupational licensing regulations as a barrier making it both harder for ex-offenders to find steady employment and more likely that they will return to crime, costing the economy – consumers, businesses, and taxpayers alike – billions while making communities less safe.

Although felons’ loss of voting rights has received wide attention, economists and criminal justice advocates say state licensing has a far wider impact on those attempting to reintegrate into society after a period of incarceration.

The Heritage Foundation, a conservative think tank, reports that individuals with criminal records are subject to more than 46,000 state and federal collateral consequences of criminal convictions – the less obvious penalties beyond doing the time and paying the fine. These include losses of voting rights, Second Amendment rights, housing, and more. And estimates of separate local-level consequences range in the tens of thousands.

In Virginia, where Carey lives, a conviction for any of 176 different crimes – ranging from capital murder, kidnapping, and terrorism to pointing a laser at a law-enforcement officer – can prevent a former offender from working in what is called a direct care position, including substance abuse counseling. This despite Virginia being one of 37 states reporting shortages of mental health staff. 

In West Virginia, people with drug convictions can be barred from buying or renting a home. In Michigan, those with a felony involving physical injury can be ruled ineligible for the Michigan Nursing Scholarship. In New Hampshire, felons can be prevented from selling fireworks. In Hawaii, felons can be ineligible to serve on a jury. Alabama has 825 collateral consequences on the books including ineligibility to receive family assistance for dependent children if a person has been convicted of fraud, dishonesty, misrepresentation, or money laundering. 

Among the long list of collateral consequences, 60% to 70% are employment-related.

As the United States continues to house the highest number of prisoners in the world, concerns are growing over seemingly benign government regulations like occupational licensing, among both advocates of “decarceration” on the progressive left and crime-fighters on the right.

Licensing laws are common in the United States. In the 1950s, only 5% of workers in the United States needed a license to work. Now that number is nearly 22%. In recent years, these laws have been widely criticized by those who believe they are unfair exercises of state power that protect people already in certain professions and make it difficult for new entrants to build businesses and careers.

“Sometimes industries ask for regulations and encourage it, sometimes it is a form of regulatory capture, sometimes it’s warranted and earnest,” said Shoshana Weissmann, Fellow at R Street Institute, a free-market public policy research nonprofit. “Other times, you’ll see an incident where someone does a poor job of something, and then politicians license it. Other times there’s just the vibe — it feels like we should license this. It’s rarely, if ever, based on evidence of harm or data.” 

Opponents often point to expensive licensing fees and hours of additional education as a burden, particularly for those in lower-income professions.

Joshua Crawford, Director of Criminal Justice Initiatives for the Georgia Center for Opportunity, acknowledged that the formerly incarcerated are often an unsympathetic group. But he said growing evidence shows that occupational licensing laws fail to improve public safety and sometimes even make communities less safe and less prosperous. “It’s not about benefiting that person as much as leveling the playing field and the benefits to public safety and more productive members of society,” he said. 

The Prison Policy Initiative, a nonprofit, nonpartisan research organization, estimates that “formerly incarcerated people are unemployed at a rate of over 27% — higher than the total U.S. unemployment rate during any historical period, including the Great Depression.”

Research also shows that the formerly incarcerated who can’t find work are more likely to return to crime. This is more pronounced with stronger licensing laws.

A 2016 report from the Center for the Study of Economic Liberty at Arizona State University found that “government-imposed barriers to reintegration into the labor force — particularly occupational licensing requirements — can be among the most pernicious barriers faced by ex-prisoners seeking to enter the workforce.”

More Job Restrictions, Higher Recidivism

That report, by Steven Slivinski, now Deputy Director of Strategic Research for the Pacific Legal Foundation, also found that states with the heaviest occupational licensing burdens saw an average increase of over 9% in their recidivism rate, the percentage of ex-inmates re-offending within three years, while states with the lowest burdens saw an average decline in their recidivism rate of nearly 2.5%.

Additional studies show that working a steady job, rather than jumping to different jobs, also decreases an ex-convict’s likelihood of becoming a repeat offender. “The benefit to having fewer jobs and staying in one job longer,” Crawford said, is that “[d]eveloping relationships in a workplace is also important for reintegration and crime-reducing benefits.” 

Danny Murphy, the West Virginia and Virginia State Director for Right on Crime, a national initiative of the Texas Public Policy Foundation, agrees. 

“I cannot overstate the importance of meaningful employment as a means to reduce rates of criminal activity and to increase every aspect of social life,” Murphy said. 

To Carey, the link between work and recidivism is no mystery: “You want to feel self-sufficient,” he says. “How do you achieve that without work? You gotta have income to survive.”

Barring former offenders from work is expensive, according to the Brennan Center for Justice at NYU School of Law. It has calculated that preventing them from working costs the United States economy $55.2 billion each year in lost earnings. The number grows even larger when those convicted of a crime but never incarcerated are taken into account – to estimated annual lost earnings of $372.3 billion.

“The government should not be making it harder for people to get a job and live a law-abiding life,” says Lauren Krisai, Deputy Director of the Justice Action Network, the largest national bipartisan organization working on criminal justice issues at both the state and federal levels.

Momentum for Change

Despite hurdles to removing occupational licensing laws, including political inertia, there is growing momentum to do so in a number of states.

Since 2015, according to the Institute for Justice, 40 states have eased or eliminated licensing barriers for individuals with criminal records. In 20 states, licensing boards are generally barred from denying ex-offenders a license to work, unless the applicant’s criminal record is “directly related” to the license. Twenty-one states allow ex-offenders to petition a licensing board at any time, including before enrolling in any required training, to determine whether their criminal record would disqualify them from obtaining an occupational license. This petition process can save time and money spent on education and licensing applications that would only be denied due to a criminal record.

Last year, South Carolina passed a law preventing boards from denying licenses to ex-offenders unless their criminal record “directly relates to the duties, responsibilities, or fitness of the occupation or profession.” It also bans licensing boards from using ambiguous terms like “good moral character” and “moral turpitude” as grounds for denying applicants.

In 2019, West Virginia similarly banned licensing boards from restricting access to occupational licenses on the basis of convictions “unless that conviction is for a crime that bears a rational nexus to the occupation requiring licensure.” In 2020, those protections were extended.

The Cardinal Institute for West Virginia Policy, a state-based public policy research nonprofit, is hoping to see further reforms in coming years.

 “West Virginia has long suffered from a struggling economy and low labor force participation rates,” said Jessi Troyan, the Director of Policy & Research for the Cardinal Institute. “Part of that blame lies at the feet of burdensome regulations that make it difficult for residents to engage in work without a license. This is even more true when those residents have a criminal history.”

Carey’s story, at least, has a happy ending. On Sept. 7, he got a call from the secretary of the Governor’s Office, who told him Gov. Glenn Youngkin had granted him a pardon. 

Carey says the relief he felt was indescribable. “The weight and the cloud is gone,” he says. “A lot of thanks to my Lord & Savior, Jesus Christ.”

Carey found a new position at Mainspring Recovery in Dumfries, Virginia, in November 2023, and at the end of January 2024 he restarted the process of completing his supervision hours and preparing to take his Certified Substance Abuse Counselor (CSAC) exam. He says he feels “excited and nervous at the same time. I feel so behind. I have to catch up on the new theories and therapeutic approaches.”

But the Virginia law that prevented Carey from working as a substance abuse counselor is still on the books.