States Are Easing Arbitrary Licensing Barriers to Work for People With Criminal Records

This year, Mississippi and North Carolina both ditched a vague "good moral character" clause that kept occupational licensing out of reach for people with criminal records.

Among the multitude of reasons to oppose occupational licensing laws, often overlooked is the degree to which making people ask for government permission before they can work worsens the impact of this country's habit of arresting, convicting, and incarcerating its citizens in wholesale lots.

Licensing regimes often exclude people with criminal records, putting many legal job opportunities off-limits. So, it's good news that some state lawmakers are trying to limit the circumstances under which criminal convictions can be used to bar people from licensed jobs.

Roughly a quarter of all jobs in the United States are now licensed, meaning would-be workers must pay fees, undergo training, and often satisfy other requirements before winning government permission to legally work in a chosen field. Depending on specific rules, not everybody is even allowed to apply.

"Occupational licensing barriers often require higher levels of skill and educational attainment than many ex-prisoners have upon release," pointed out Arizona State University's Stephen Slivinski in a 2016 policy report. "Additionally, many states have 'good character' provisions that prohibit ex-prisoners from ever receiving an occupational license. Other states have very weak restrictions on whether a licensing board can reject at their discretion an applicant for a license based mainly on the existence of a criminal record."

Criminal records barring consideration for occupational licenses are pretty easy to come by in a country in which a growing proportion of adults—almost a quarter of those born between 1979 and 1988—are arrested before they turn 26 and which has the highest incarceration rate of any country that isn't an open-air prison, with over 2 million people currently behind bars. As a result, "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," notes Slivinski.

This led to a 9 percent rise in the criminal recidivism rate from 1997-2007 in the states with the toughest licensing barriers, according to Slivinski. States with the lowest such barriers enjoyed a decline of 2.5 percent in recidivism rates during those same years. Unsurprisingly, ex-cons with few options for paying the bills are more likely to return to crime than those who can find legitimate work.

In fact, occupational licensing requirements have had such a negative impact across the board that efforts to reform licensing are among the rare causes to win bipartisan support in our divided country. That's not to say that the desire for reform is universal—plenty of people still see big benefits in limiting competition to established license-holders and their generous political action committees—but rolling back licensing laws, or at least reducing the damage they do, wins backing from both Democrats and Republicans.

These efforts bore fruit this year in Mississippi and North Carolina, which both passed laws expanding work opportunities for people with criminal convictions. "Both states have now eliminated vague 'good moral character' criteria, and extended procedural protections that should make it substantially harder for boards to deny licenses based on criminal history," according to the Collateral Consequences Resource Center, which focuses on the add-on effects of arrest and conviction. "As a result of these bills, both states now prohibit disqualification from licensure unless a crime is 'directly related' to the license involved, both require written reasons in the event of denial, and both provide for a preliminary determination as to whether an individual will be favorably considered."

The laws have to be applied for a while before we can assess how well they work in practice, but the clear intent is to expand opportunities for people with criminal records who have paid the penalty and look to get on with their lives.

Officials in other states and at the federal level are also pushing to limit the damage done by licensing laws to people with criminal records. "Since 2016, 14 states—Arizona, Connecticut, Delaware, Georgia, Kentucky, Illinois, Indiana, Kansas, Louisiana, Maryland, Massachusetts, Nebraska, New Hampshire and Tennessee—have passed laws revising offender licensing restrictions or requiring boards to track how many people are rejected based on a past criminal conviction," the ABA Journal reported last year.

In their efforts, some of these officials are helped by model legislation prepared by the Institute for Justice (IJ)—the Mississippi and North Carolina laws explicitly draw on that organization's proposals. IJ's model specifies that licensing applicants should be able to find out ahead of time whether they'll be disqualified for consideration so that they don't waste time and money, disqualifications should be limited to convictions directly related to the license, and the government should bear the burden of proving that an applicant shouldn't be licensed.

Model legislation isn't the only tool IJ offers—the group also sues to overturn restrictive licensing barriers that bar people from work because of criminal records that have nothing to do with their chosen field. The model legislation is offered for lawmakers who want to be proactive instead of waiting for change to be forced on them.

Creating illegitimate barriers to employment for people with criminal records is only part of the harm done by occupational licensing requirements. Licensing also limits choices and raises prices for consumers, eliminates opportunities for poorer workers and would-be entrepreneurs, reduces mobility for those facing new requirements on the other side of a state border, and damages the economy. Frankly, the best criteria for picking who can provide a good or service would seem to be those established by employers and customers who are capable of deciding for themselves where and how to spend money. That's why so many, including IJ, oppose such restrictions across the board.

But one fight at a time. In country seemingly addicted to busting people and putting them behind bars for any number of crimes, real and imagined, it's only right that we ease their transition back to life once they've paid the penalty.