How occupational licensing laws harm public safety and the formerly incarcerated

Many occupational licensing laws condition employment on “good moral character,” but how exactly one demonstrates “good moral character” is entirely undefined.

Vague language affords boards extensive latitude in denying otherwise qualified people for reasons that may be entirely unrelated to the responsibilities of the job.

Not only do these practices fail to increase public safety, recent research has shown that they may make communities less safe by increasing the odds that a person will return to a life of crime.

Since the Supreme Court has ruled that nebulous laws violate citizens’ due process rights, vague statutory phrasing also invites constitutional concerns. Legal expert David Bernstein believes both liberal and conservative judges will begin to more closely scrutinize the constitutionality of licensing laws.

Vague language affords boards extensive latitude in denying otherwise qualified people for reasons that may be entirely unrelated to the responsibilities of the job.

A state could appreciably enrich occupational licensing and criminal justice reform policy by simply reporting data. Data around occupational licensing board decisions are virtually nonexistent. Simply having access to statistics on applications and rejections, the demographics of accepted and rejected applicants, and the justifications for rejections would represent a substantial improvement.

Each day, occupational licensing boards decide who can and cannot receive government permission slips to work. These boards are comprised of business owners and workers in a given field—from barbers to land surveyors, florists, cosmetologists and even butter graders—all of whom enjoy the backing of government to grant or deny licenses to job applicants. Critics across the political spectrum have objected to this practice, which legally allows incumbent businesses to decide how much competition they will face. The traditional argument against the proliferation of licensing regimes has been an economic one: namely, that they reduce the supply of goods and services, thereby raising prices for consumers without noticeable gains in safety or quality. However, a new argument is gaining momentum that instead emphasizes who these boards often reject, and more specifically, that they often categorically reject formerly incarcerated people.

Various state laws explicitly deny legal work to whole swaths of Americans by barring anyone who has ever committed a felony or misdemeanor from certain employment fields. These blanket bans raise obvious due process concerns and have been a focal point for reform advocates and legislation. But a particularly pernicious trend targets individuals with records in a much more subtle way. Many licensing laws condition employment on “good moral character” or on a history free of “crimes of moral turpitude.” How exactly one demonstrates “good moral character,” however, is entirely undefined.

Equally elusive is broad agreement about the kinds of past infractions that constitute crimes of moral turpitude. The ambiguity inherent in good moral character provisions (GMCs) therefore makes it difficult for applicants with any sort of criminal history to know if they will be disqualified before expending substantial time and energy on a licensing application. Vague language also affords boards extensive latitude to deny otherwise qualified people for reasons that may be entirely unrelated to the responsibilities of the job.

Not only do these practices fail to increase public safety, recent research has shown that they may make communities less safe by increasing the odds that a person will return to a life of crime. Further, since the Supreme Court has ruled that nebulous laws violate citizens’ due process rights, vague statutory phrasing also invites constitutional concerns. Most troubling, occupational licensing laws have exploded in recent years to cover a large number of benign career fields, and character provisions are common features. In popular commentary pieces, criminal justice writers and policy analysts often highlight and object to these laws, but very little policy or academic literature specifically addresses the issues related to GMCs.

Accordingly, the present study examines the statutory language of character provisions, their varying judicial definitions and treatments, prevalence in licensing laws, potential adjudication in federal courts and their ramifications for public safety. Ultimately, the paper concludes that such provisions violate the equal protection and due process clauses of the Fifth and Fourteenth amendments, that they harm public safety and that they unfairly exclude qualified citizens from earning a living. In light of this, policymakers should look to states that have successfully changed or removed GMC laws and implement similar reforms in their own states.