The freedom to earn a living

By Aaron Rice
January 22, 2019

All too often, ex-offenders are released from prison and unable to land a job because of licensing restrictions.

A criminal justice bill that prioritizes employment opportunities for ex-offenders will achieve the right balance between protecting public safety, protecting law enforcement and protecting crime victims while also helping ex-offenders reintegrate into their families and communities. In particular, Gov. Phil Bryant’s Faith Advisory Council, of which I am vice chair, is focusing our efforts on an important right-to-work reform that will reduce costs and legal exposure for state occupational licensing boards, as well as help people pay taxes, stay out of prison, and stay off of welfare. This reform allows qualified ex-offenders to work in their chosen field unless they have committed a crime directly related to their licensed profession.

In recent years, thanks to the N.C. Dental Board U.S. Supreme Court case, states have been forced to rethink their approach to occupational licensing. In many ways, Mississippi has been a leader in this area, thanks, in part, to the governor’s leadership on the Occupational Licensing Review Commission. More work, however, remains to be done.

In particular, licensing boards should remove blanket bans that prevent ex-offenders from working. These bans are overly broad, facilitated by vague references to “good character” and “moral turpitude.

Now, I’m a big believer in good character. But one of the hallmarks of a good character is the ability to learn from your mistakes and start over. It’s also worth noting that some of these occupational licensing requirements are distantly rooted in racist policies aimed at preventing African-Americans from competing with white workers. In the absence of clear guidelines as to what constitutes “moral turpitude,” it’s easy to see how blanket bans for ex-offenders could be abused to keep the wrong kind of person from getting a license.

Instead of blanket bans, occupational licensing boards should consider the individual circumstances of each offender. As an example, let me share with you Beth’s story, told to me by the Mississippi Department of Corrections. Beth’s name has been changed to protect her identity, but the challenges she faces are very real.

Beth is a Mississippi woman who made mistakes, served her time, and then wanted a better life. Upon release, Beth entered school with the dream of becoming a dental hygienist. In order to be a dental hygienist in Mississippi you must earn an associate’s degree and pass at least two national exams. In other words, Beth invested thousands of dollars and years of her life to pursuing her dream of becoming a dental hygienist.

After completing her coursework with honors, Beth discovered she was barred from obtaining a license because of a “good moral character” requirement for dental hygienists.

I don’t know what happened to Beth. I would guess she got another job. After her journey, I doubt she re-entered the prison system. But Beth’s dreams were crushed by red tape. That’s very hard. If I were Beth, I would have left Mississippi. Mississippi refused to take a chance on Beth, it refused to recognize her right to work.

Let me tell you another story. This story is about a man named Richard Chunn. In 1981, Richard pled guilty to marijuana possession in Texas. After that, he stayed clean and stayed out of prison. He ended up in Mississippi where he obtained work as a licensed bail agent. In 2011, however, the Mississippi legislature passed a law prohibiting bail agents from getting a license if they have a felony conviction. Richard lost his license.

But Richard is a fighter. He wasn’t going to let Mississippi’s bureaucracy deprive him of his livelihood. Richard sued, arguing that this Mississippi law violated the Equal Protection Clause of the Fourteenth Amendment.

The state Supreme Court agreed with Richard, in a case decided in January 2015. Among other things, the Mississippi Supreme Court said:

“[The state’s] rationale utterly fails. The reasoning that supports the government's purpose—lack of trust—may apply to some felonies. For example, a conviction for embezzlement certainly calls into question the offender’s trustworthiness. But the statute’s broad reach includes many felonies that bear no relationship to trustworthiness.

Citing a similar case out of Connecticut, the Court observed that such laws fail “to consider probable and realistic circumstances in a felon’s life, including the likelihood of rehabilitation, age at the time of conviction, and other mitigating circumstances” with the result that “many qualified ex-felons are being deprived of employment.”

The Court also acknowledged that while “there is no doubt that the State could logically prohibit and refuse employment in certain positions where the felony conviction would directly reflect on the felon’s qualifications for the job. … A person’s God-given, constitutional liberty to engage in a profession should not so easily be extinguished by the government.”

The Court’s conclusion bears repeating: “A person’s God-given, constitutional liberty to engage in a profession should not so easily be extinguished by the government.”

Also worth reflecting on is this. While the scope of the Chunn decision is very limited – it only applies to bail bondsmen – the reasoning in the case is very clear. Under the Chunn case, the good character clauses imposed by many boards in Mississippi have a good chance of being challenged in court.

The fix is simple: pass legislation requiring occupational licensing boards to list specific criminal records that disqualify a person from receiving a license, but only where the offense is rationally, specifically and directly related to the duties and responsibilities of the licensed occupation.

Cleaning up our occupational licensing laws to let ex-offenders work is a win-win for state occupational licensing boards and for the people of Mississippi. As mentioned, it would reduce the legal exposure of the boards. In addition, it would remove barriers that keep ex-offenders from working.

According to a recent study published by Arizona State University, states with heavier occupational licensing restrictions have much higher 3-year recidivism rates. By making it easier for ex-offenders to work, Mississippi will see a reduction in crime and a reduction in prison costs.

Finally, according to the Miss. Supreme Court, the right to work – which includes the right to be free from irrational occupational licensing burdens – is protected by the Equal Protection Clause of the Fourteenth Amendment.

The freedom to work is a civil rights issue and encouraging people to work is good for families and communities. This would be a commonsense fix that follows the growing number of states in helping ex-offenders turn their lives around and supporting their families by finding work in a variety of diverse professions.


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