Note: This entry was updated on July 31, 2024 to reflect a proper citation for National Employment Law Project’s work in the important area of unfair occupational licensing laws.
Life in prison is difficult but almost all of those incarcerated will someday rejoin society. However, with that eventual freedom comes challenges of finding employment and reentering society to the fullest extent.
Currently, many states have “banned the box” that requires those with felony convictions from disclosing their background. JP Morgan, America’s largest bank, has hired thousands who have criminal records noting, “One in three Americans has a criminal record. Even after fulfilling their justice system obligations, they often face significant barriers to employment and economic opportunity, costing billions to the U.S. economy annually. Through policy advocacy and our own hiring practices, we’re helping to remove some of those barriers.” While there are many companies out there welcoming citizens back from prison, obstacles remain.
According to the National Inventory of Collateral Consequences of Conviction, there are more than 13,000 collateral consequences for people convicted of crimes, including restrictions on occupational licensing. These restrictions can prevent ex-offenders from earning a license, which can limit their career options and make it harder for them to provide for their families. Without a steady income, the risk of reoffending increases, which can make it more difficult for people to successfully reenter society.
It is understandable that some offense should make certain jobs out of reach for past offenders, such as a bank robber should not be able to be a security guard at a bank, or someone who is convicted of crimes involving minors should not work at a daycare center, etc. However, some who have licenses for professions, such as an accountant, physician or nurse, may have been convicted of a crime that has nothing to do with their ability to perform a certain service and the crime was unrelated to their work.
Having a criminal record can make it difficult, or even impossible, for an individual to work in a given field, especially one that requires an occupational license. Individuals with criminal records face many barriers to licensure at both the federal and state law.
Occupational licensing barriers and other employment barriers (like lower levels of education and reduced skills) faced by people with felony convictions have been associated with a reduction in the overall employment rate. The increase in licensing requirements and the lack of uniformity of these requirements can have significant costs to individuals with criminal records, society and the economy. These policies, some going back decades, are becoming a major barrier to employment for returning citizens. Maryland is one example where, despite legislation passed in 2019 to reduce such barriers, regulatory agencies have been reluctant to abide by the new law.
In 2019 the state of Maryland passed a new law with the intent of reducing barriers to employment for ex-offenders. The amendment to Maryland criminal code 1-209 prohibits the denial of an occupational license based on a previous non-violent conviction. Of course like any legislation the true impact is only felt when agencies conform to the intent of the law.
Many state licensing laws include some type of automatic or blanket disqualification that include prohibitions for people with criminal records—particularly for felony convictions that are deemed violent or serious offenses. This means that boards have no discretion to grant a license or forego imposing a license penalty if an individual has a disqualifying conviction.
For many state leaders, a statute that creates an automatic lifetime ban against anyone with a non violent felony for an occupational license may seem reasonable. However, even assuming one’s record is accurate, such categories and labels can be misleading if licensing boards do not use due diligence to examine the nature of the offense.
Furthermore, the financial cost of occupational licensing requirements is heightened for people who were formerly incarcerated. Individuals and their families experience loss of income during the incarceration period and are faced with a lack of income to support themselves upon release.
We have previously reported about the challenges individuals face when returning from a federal prison sentence due to the numerous shortcomings of the implementation of the First Step Act by the BOP. There are other collateral consequences that ex-offenders face when state agencies also failing to abide by laws intended to provide second chances for ex-offenders and reduce recidivism rates.
Ex-offenders must spend enormous amounts of money, money they usually do not have, in legal cost to challenge the agency in Court for failing to abide by the law. Of course with the recent Chevron Doctrine ruling the Supreme Court handed down last month, the hope is that agencies that gone rogue with their own interpretation of the law will be given less deference to the plain language of the law.
Sreedhar Potarazu, is a physician, who spent five years in a federal prison camp for convictions related to payroll tax, nothing related to his practice or his patients. Under Maryland health occupations code 14 404(b) a license must be revoked by the state if there is a crime of moral turpitude.
In 2019, Maryland passed an amendment to the criminal code 1-209 that prevents a previous conviction to be the reason for denial of a license which also applies to medical licenses. Importantly, in Potarazu’s case, he has completed his sentence and has satisfied all of the requirements within the statute to qualify for a license. Importantly the scope of the license he seeks has nothing to do with his conviction. States like Washington DC passed new laws taking reforms further whereby a previous crime of conviction cannot be considered for a license if it is not related to the scope of license requested.
The power for granting a license rests with agencies like the Maryland Board of Physicians that have been given autonomous power to dictate whether an individual can in fact be given a second chance. Essentially an individual could complete serving their sentence and the punishment for the crime they committed and be resentenced by an occupational licensing board even though the law states otherwise.
While there is an administrative process available to challenge the decisions, these avenues are not cheap and can cost tens of thousands of dollars. So essentially returning citizens can be subject to actions by occupational licensing agencies that do not themselves abide by the law and force individuals into a situation where they can no longer defend themselves and are denied an opportunity to rebuild their lives. This seems counter to the intent of proactive leaders like Governor West Moore in Maryland, who is reported to be a possible contender for the vice president position with Kamala Harris.
According to the National Employment Law project, criminal justice reform movements have increasingly called on state legislatures to recognize how criminal records create unfair exclusions from employment. Maryland is one of the only states with license denial data for ex-offenders. Under a 2018 law, Maryland’s licensing agencies were required to report how many applications they received and denied from ex-offenders between fiscal 2014 to 2018.
According to the Institute of Justice, the Division of Occupational and Professional Licensing, which oversees 21 boards, found “no record or indication…of anyone who was denied a license based solely on a criminal record.” However, out of the 613,034 license applications it received during that time, only 803 had a criminal record—barely 0.13%. By comparison, nearly 9,000 people were released from Maryland prisons in 2017 alone, while roughly 8% of the nation’s population has been convicted of a felony. This wide discrepancy suggests that many with criminal records feel deterred and never apply for licenses.
It may be time for legislators and governors, particularly Maryland, to take a closer look at the autonomous power of licensing agencies and there enormous power to act as courts in re-sentencing ex offenders when they have completed their retribution to society. These public officials should be held to the same standard of abiding by the law
Read the full article here
