Democracy Journal: A Mistake That Lasts a Lifetime

Nearly one in three U.S. adults has an arrest or conviction record. The unshakeable stigma and lifelong consequences that accompany a record often prove devastating.

In 2010, Sonja Blake, a grandmother, lost her livelihood because of a 30-year-old mistake. As a child-care provider, Ms. Blake is among the one in four U.S. workers whose occupations require a state license. But, after caring for children for almost a decade, a change in Wisconsin law required that her day-care owner certification, along with her license to work in caregiving facilities, be permanently revoked. Thirty years earlier, Ms. Blake had received a $294 overpayment of public assistance after mistakenly failing to report gifts from her boyfriend. That overpayment was merely docked from her benefits, but her minor error nevertheless resulted in a misdemeanor conviction with decades-long consequences.

Ms. Blake is not alone. Passing a criminal background check is a common state licensing requirement across the nation. The American Bar Association (ABA)’s online inventory of penalties resulting from a record includes 27,254 state occupational licensing restrictions. And because the criminal justice system disproportionately impacts people of color, these “collateral consequences”—penalties that accompany a conviction but weren’t imposed by the court—perpetuate significant race disparities in employment. Due to insufficient data collection, the number of applicants denied a license because of a record isn’t clear; nor is the number deterred from pursuing a licensed occupation for fear of denial. But existing information indicates that many of the 70 million Americans with a record are locked out of too many of the nation’s most desirable occupations because of their prior interaction with the criminal justice system.

State licensing schemes that mandate criminal background checks theoretically aim to protect health and safety. Inquiries into convictions that are directly related to the occupation—an elder-abuse conviction for long-term care professions, for example—can be reasonable. But, far too often, restrictions are unnecessarily expanded without any benefit to public safety and health. For instance, in Alabama, a land surveyor is stripped of his license if convicted of any felony, anywhere in the country, even if completely unrelated to the profession. Routine inquiries frequently sweep out anyone with any record. And licensing boards commonly respond to the stigma of a record by unnecessarily rejecting those with trivial, old, or unrelated conviction histories. (Analogous research on employer attitudes demonstrates how the stigma of a record erects a major barrier to work. One notable study found that, after submitting job applications, a man with a record is half as likely to receive a callback as one without a record—one-third as likely if the applicant is black.)

Policymakers across the political spectrum increasingly support “fair chance” and “ban the box” laws—policies that prohibit employers from asking, on job applications, whether applicants have a record. Delaying that question until after an interview or job offer prevents employers from immediately tossing applications with the box checked into the trash. State occupational licensing is another area ripe for reform. Irrational licensing restrictions for those with records, and their impact on individual families and the economy, have spurred calls for change from a multitude of diverse voices, ranging from the Center for American Progress to Koch Industries. Amid the general partisan rancor, reducing barriers to licensure for people with records represents a singular opportunity for bipartisan cooperation.

Because most occupational licensing is controlled by the states, state lawmakers may be best positioned to reduce barriers for potential licensees with records. Adopting a robust state law applicable to all occupational licenses may be the most effective approach. Although 39 states and the District of Columbia have already adopted some measure of reform, most are weak and none go far enough. The National Employment Law Project suggests ten reforms that policymakers in every state should consider. Implementing these changes would promote greater transparency and accountability and go a long way toward producing fairer, more consistently applied licensing laws.

1. Eliminate blanket bans that automatically disqualify workers with certain records. The ABA’s inventory, noted above, documents thousands of “mandatory” or “permanent” licensing disqualifications across the country—like the one that abruptly ended Ms. Blake’s career. (The Equal Employment Opportunity Commission (EEOC) instructs employers to avoid such bans, but the EEOC guidelines don’t extend to licensing boards.)
2. Limit the types of record information requested in a background check. The inclusion of less relevant information on a background report—such as offenses that are old, minor, or unrelated to the occupation—can color a reviewer’s opinion of the applicant. Even if licensing boards intend to consider only recent, occupation-related offenses, their opinions may be clouded by any negative, albeit less significant, information. Negative stereotypes make it especially hard to unring the bell.
3. Require licensing boards to assess candidates on a case-by-case basis, examining both whether a conviction is occupation-related and how much time has passed since the offense.
4. Mandate consideration of applicants’ rehabilitation and any mitigating circumstances. A person’s references and efforts to turn his life around can make a past record seem much less significant. Allowing an applicant to explain the circumstances of an offense may provide context that reveals the insignificance of a serious-sounding record.
5. Provide applicants with notice of potential disqualification and anopportunity to respond before the application is rejected. Background reports are regularly inaccurate. The applicant should be allowed to point out errors.
6. “Ban the box” by removing questions about criminal records from the application. And then go one step further: Don’t ask applicants to self-report their records at any time during the application process. Records are confusing—even to lawyers—and applicants frequently make inadvertent errors that reviewers misinterpret as dishonesty.
7. Remove “good moral character” requirements, restrictions against “moral turpitude” offenses, and other vague legal standards. The use of confusing jargon leaves applicants in the dark as to whether a past conviction will mean disqualification. Perhaps more important, when the law lacks clear limits on licensing board discretion, opaque statutory language affords cover to automatically reject applicants with virtually any record.
8. Evaluate existing state occupational licensing restrictions and mandate ongoing data collection by licensing boards so that lawmakers can better understand the extent of current barriers and ensure that any attempted reforms make headway toward addressing them.
9. Promote transparency by providing clear guidance to applicants regarding potential disqualifications for the occupation. Requirements and standards vary widely among states and occupations. Further complicating matters, the statutory language and procedures governing individual, or classes of, professions frequently differ from more general state licensing statutes.
10. Create more uniform standards by incorporating these recommendations into a broadly applicable state licensing law that expressly supersedes any criminal record restrictions contained in other laws governing specific professions. Adopting these reforms won’t achieve consistency or accountability if the law is riddled with exceptions.

Legislative reforms are badly needed. Courts provide little recourse for those with records who want to practice their chosen professions. Most people lack a lawyer as they attempt to navigate the maze of confusing state licensing laws and regulations. Sonja Blake was fortunate enough to find a lawyer at a local advocacy nonprofit, Legal Action of Wisconsin, to challenge the draconian law that ended her career. Nevertheless, the Wisconsin courts ruled against her. Ms. Blake is now petitioning the U.S. Supreme Court to invalidate the state law that created a lifetime ban based on a 30-year-old, $300 mistake, unrelated to her profession. Her situation illustrates how record-related licensing restrictions often stray from the purpose of ensuring safe, quality services and, instead, work to deny hardworking Americans means of self-support. The licensing reforms recommended here—and described in more detail in NELP’s report—will allow people with records to be evaluated on their merits, while also maintaining public safety and promoting a strong economy.