Licensing barriers keep people with criminal records from education and training
Jesse Wiese spent seven years in prison; when he left the Iowa facility in 2006, he thought his debt to society had been paid. While inside, Wiese had earned an undergraduate degree and puzzled over how he might do right in the world. He started studying for the law school admissions test, thinking he could become a lawyer and maybe, one day, a judge.
In 2008, Wiese moved to Virginia to attend Regent University School of Law. He loved it, and he did well. Three years and $150,000 in federal and private student loans later, he graduated and turned his attention to passing the bar exam. Like the majority of his classmates, he spent the summer forgoing gainful employment to study full-time for the two-day exam. Except, unlike his peers, passing the bar would not be Wiese's biggest hurdle to becoming a lawyer: He could pass the difficult exam and still be denied a license to practice law by the Virginia Board of Bar Examiners. Before it considers awarding a law license for any otherwise eligible candidate with a felony conviction, the board holds a character and fitness screening.
For Wiese, it was all a big, expensive gamble - and, in one form or another, is one that millions of people with criminal records take every year as they pursue education and workforce training on their way to jobs that require licensing. Yet, that effort might be wasted, thanks to the nearly 14,000 laws and regulations that can restrict individuals with arrest and conviction histories from becoming licensed in certain fields.
The rules that govern these barriers to entry are patchwork, scattered across federal, state and regulatory codes, and they can vary from field to field within a state. Advocates say these barriers keep people from good jobs, not only reducing their chances of staying out of prison but also robbing the nation of their productive labor.
"The focus should be on rehabilitation and putting people back out in the community so they can participate and be productive and thrive in their communities," said Caitlin Dawkins, a director for the National Reentry Resource Center at the American Institutes for Research.
Although licensing requirements vary from state to state, about 1 in 5 people in this country need occupational licenses to do their jobs - licenses they get only after completing a designated amount of training and education in their fields. In addition to lawyers, professional drivers must be licensed, along with health professionals, public accountants, teachers, electricians, firefighters, social workers, real estate agents and security guards.
According to a 2020 study by the Institute for Justice, a nonprofit law firm, 31 states allow licensing boards to deny applicants on the basis of their character alone for at least some occupations, leaving room for denials that are based on any criminal behavior, no matter how minor or how far in the past. Advocates for reforming the system say it is not uncommon for people to pursue training programs and submit their licensing applications without recognizing the risk. Just 21 states allow people with criminal records to ask licensing boards before enrolling in any required training whether their records will disqualify them from becoming licensed.
Yet, the case for education as a counter to recidivism is so convincing that the U.S. Department of Education announced a major expansion of Pell grants, effective July 1, for people pursuing higher education from behind bars. About 30,000 of these individuals are expected to get $130 million worth of the federal aid each year, a cost that researchers have found is far less than the expense of detaining reoffenders.
Higher educational attainment is directly correlated with a lower likelihood of being reincarcerated, as is stable employment. Both pieces of evidence have swayed policymakers nationwide. The Institute for Justice found that since 2015, 40 states had eased or eliminated some of their laws keeping people with criminal records from getting employment licenses. Yet, with every type of license bearing its own local, state or federal limitations, many thousands of collateral consequences remain.
Wiese, now 45, passed the bar on his first try and moved on to the character and fitness screening required because of his conviction.
"It was like a mini trial," Wiese said. He flew people in to serve as character witnesses in front of an initial committee, which ultimately recommended that he be licensed. "I was like, 'Awesome! This is amazing.' Then their decision was unanimously overturned."
The Virginia Board of Bar Examiners was not convinced that Wiese should be allowed to practice law, considering his criminal history. It told him to reapply in two years. He did, but the same thing happened - there was an initial committee recommendation for licensure followed by a state board denial.
"They said it may be impossible to prove rehabilitation," Wiese remembered. He appealed to the State Supreme Court of Virginia, but it ruled against him, too.
The Virginia Board of Bar Examiners did not comment on Wiese's case or how the agency considers applicants' criminal histories in its licensing decisions.
Many of the country's laws seem to dictate that the lives of people with criminal records are governed by two competing beliefs - that crimes are proof of character flaws that can never be outgrown and that a criminal sentence should be the full extent of any punishment.
The view that crime is proof of character that can never be reformed has received legal support for at least 125 years. The U.S. Supreme Court first affirmed the right to discriminate against people with criminal records in an 1898 decision in Hawker v. New York, in which the court held that "character is as important a qualification as knowledge."
Ronald Day came across this court decision while writing his dissertation as a doctoral candidate in philosophy at the City University of New York. Day has been involved in prisoner reentry work for about 15 years, since he finished his own sentence and found himself navigating life on the outside. He received a doctorate in 2019 and serves as vice president of programs for the Fortune Society, an education, service and advocacy organization focused on criminal justice and reentry.
Day's time in the archives introduced him to the ongoing legal dispute over the rights of those who are incarcerated, or who used to be incarcerated, taking him on a journey from the Supreme Court's views in 1898 to the fallout from a 2015 decision by U.S. District Judge John Gleeson in the Eastern District of New York. Gleeson ruled in favor of expunging the conviction of a woman who had committed health-care fraud and, after serving her sentence, found her record a constant barrier to getting and keeping jobs as a home health aide. In approving the expungement, Gleeson wrote, "I sentenced her to five years of probation supervision, not to a lifetime of unemployment." But even support from the federal judge who sentenced her was not enough. A federal court of appeals overruled Gleeson.
According to the Institute for Justice's study, in five states, including Arizona, Tennessee and Virginia, any licensing board can deny an applicant on the basis of a felony, even if it is completely unrelated to the license. In 30 states, an arrest alone can disqualify applicants. In seven states, there is no right to appeal after a license has been denied.
When the Virginia Board of Bar Examiners denied Wiese's license a second time, he was told that he could try again in two years but that he would have to retake the bar because so much time had passed. With the support of his wife, Wiese took time off to study and passed the test a second time. Once more, he applied for a license, jumped through the hoops at his hearing and was recommended for a license.
But for the third time, the state board denied his application.
Wiese appealed the decision of the state licensing board, again taking his case to the Virginia State Supreme Court. This time, it ruled in his favor. Ten years after graduating from law school, Wiese got his license to practice.
Looking back, it did not seem to be a triumph.
"In my younger days, I would say you can overcome anything. You can outwork it," Wiese said. He said he does not believe that anymore. "This is called the second prison. Literally, you walk out of one and you walk into another one."
Because the laws and regulations are so scattered, navigating them can be difficult for anyone, not just those exiting prison. Every field has its own state-level licensing board and related policies.
In some states, people serving time can fight fires as part of prison work crews but cannot get licenses to work as firefighters in local fire departments after their release. They can do landscaping on city property through a prison work crew, but - with a criminal record - cannot get a government job.
Cosmetology, in many states, is considered "second-chance friendly" and a good path for people coming out of prison. In Virginia, by contrast, applicants can be denied cosmetology licenses for having specific misdemeanor convictions or any felony.
A number of organizations across the country have stepped up to advocate for policy change and to support those with criminal records as they seek to rebuild their lives outside of prison. Jobs for the Future this year put out a framework titled "Normalizing Opportunity," calling on policymakers to remove barriers to employment for formerly incarcerated individuals.
"There's a multiplying effect there," said Brandi Mandato, a senior director at Jobs for the Future who helped write the framework. "If we don't have access to good jobs, we don't have access to health care, housing, all of these things that are important to launching a life and building community and keeping people safe."
At a time with very low unemployment and major demand for skilled employees, advocates say the business case for eliminating these barriers is as strong as the humanitarian one.
Wiese is now the vice president for research and innovation at Prison Fellowship, an organization that helps individuals and families affected by incarceration and which gave him his own sense of purpose and possibility while he was in prison. Early in his career with the organization, Wiese managed a caseload of about 70 men who were navigating reentry. Over and over again, he saw them stop chasing their dreams, confounded by barriers to stable employment. The message they got, he said, was, "Don't take the initiative."
"It really limits people's ability to make a difference and to contribute," Wiese said, "and we miss out."
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This report is a product of The Hechinger Report, a nonprofit, independent news organization focused on inequality and innovation in education.
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