Policy Studies Competition Policy

How occupational licensing laws harm public safety and the formerly incarcerated

Key Points

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.
One analysis has estimated that Michigan has GMCs in about 75 percent of its licensing statutes. While this statistic seems staggering, other states may have a similarly high share of these provisions. 
Policymakers attempt to define “good moral character” through statute or through caselaw, but in most instances the term is woefully ill-defined, allowing boards to use the requirement as a de facto bar on a person with a criminal history.
Indiana recently signed a bill with such a rationale into law. It eliminates vague language such as “moral character” and “moral turpitude,” requires state and local governments to explicitly list disqualifying crimes and requires that licensing boards deny licenses only to those whose offenses directly relate to the nature of the job for which they are applying. Kansas and several other states are considering similar bills.
Policymakers should eliminate moral character requirements and replace them with individualized assessments, which allow boards to consider past offenses, but only if they relate to the nature of the job. Such assessments should also consider time elapsed since the offense occurred, mitigating circumstances and evidence of rehabilitation, and should also list potentially disqualifying crimes.
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.

Moral character laws are constitutionally dubious, damaging to public safety and serve as extrajudicial penalties on justice-involved persons that violate norms of fairness. Policymakers around the country should look to states that are reforming their licensing statutes and  removing good moral character requirements.
Image credit: Africa Studio

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