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Excerpted from: Alec C. Ewald, Barbers, Caregivers, and the “Disciplinary Subject”: Occupational Licensure for People with Criminal Justice Backgrounds in the United States, 46 Fordham Urban Law Journal 719 (June 2019)(472 Footnotes) (Full Document)


AlecEwaldThe last fifteen years have seen a great efflorescence of research and advocacy relating to the collateral consequences of criminal convictions in the United States. Seeking to understand the ways a criminal record “restructures the rights of citizenship,” scholars, reformers, and journalists have analyzed policies restricting voting, firearms ownership, jury service, receipt of public benefits, military service, access to housing, and more a web of state and national rules that together threaten to place Americans with convictions in a “state of legal nonfreedom.”

This Article sheds new light on the character of that state by examining one significant element of the collateral-consequences landscape: state occupational licensure restrictions facing people with criminal convictions. Given that hundreds of jobs across the income spectrum require governmental certification in the United States, these policies represent a major component of the legal regime controlling people with records. There is a consensus that state occupational-credential restrictions pose serious obstacles to employment, constitute “bars” and “barriers,” and typically impose “[b]lanket restrictions ... with no attention to individual circumstances or qualifications of the applicant in question.”

This Article examines policies and practices governing barbers and nurse's aides, two occupations that, for different reasons, hold particularly important places in the debate over employment credentials. Together with analysis of statutes, administrative rules, application forms, and other documents, this Article focuses on the officials most directly responsible for overseeing the certification process--the professional staff of state regulatory boards. More than seventy telephone interviews were conducted with staff at boards of nursing, departments of public health, and other bodies responsible for credentialing certified nurse's aides in twenty states, and more than thirty interviews were conducted with barber-board officials in twenty-five states.

Unexpectedly, in most states, barber-board staff explained that in their experience, substantial majorities of applicants with conviction backgrounds successfully won licensure--including, in many states, not only misdemeanants but also people with more serious records. “We license felons every day,” one Ohio barbering official said. Of course, staff estimates of approval rates are not conclusive evidence of outcomes. However, there is good reason to take these reports seriously, such as the fact that several states supplied data supporting interviewee accounts. Meanwhile, interviews and state data made clear that many people with criminal-justice backgrounds seek to work as certified nurse's assistants. “I can tell you that we have a dedicated staff of four that deal with just applicants with criminal convictions,” said a Florida official, describing an office that handles licensing for multiple health-related occupations. As with barber certification, in most states where officials were able to estimate approval rates for candidates with convictions, they reported that majorities of those able to navigate the application and review process were approved. This was true in states red and blue, large and small, and not only for common misdemeanor offenses such as first-time driving under the influence or drug possession, but often for felony-level convictions as well.

It would be a grave error, however, to read these results as suggesting that Americans with criminal-justice backgrounds enter the occupational-licensure setting restored to full civic status, cleansed of stigma, and unburdened by the “negative credential” of a criminal conviction. An equally important conclusion of this Article is that people with conviction histories seeking licensure are in a vulnerable and precarious state. Despite leaving the grasp of the criminal law, those with criminal convictions applying for civil credentials are under a pervasive “corrective penality.” Governed by a complex, deeply decentralized administrative apparatus, they are best described by a concept based in the work of Michel Foucault: they are “disciplinary subjects.”

The indeterminacy of state law can make it virtually impossible for a would-be caregiver or barber to evaluate their own eligibility. Not just state agencies, but also vocational schools, clinical-training sites, testing companies, and individual employers all play roles in policing potential licensees' eligibility, creating a true archipelago of governance. Well beyond the background check, licensure procedures resurrect and amplify the criminal record. Applicants are often required to describe their past, sometimes in vivid, first-person detail, and to supply documents they must retrieve from courthouses and correctional authorities. They are regularly directed to engage in specific kinds of performance--supplying written narratives or appearing in person before a licensing board--to demonstrate their contrition, rehabilitation, and governability.

Meanwhile, many jurisdictions make decisions on the basis of the applicant's “conduct” rather than conviction. This can mean that actions alleged by a policeman or prosecutor, rather than behavior confirmed by courts and correctional institutions, can determine whether a person receives a license to work. In many states, even convictions ultimately set aside or expunged may lead to denial, particularly for would-be Certified Nursing Assistants (CNAs). Throughout the licensure process, the combination of legal indeterminacy, procedural complexity, and individualized, character-based evaluations make the discretionary decisions of “street-level” agents critical. Despite these myriad challenges, each year many Americans with criminal histories navigate these procedures, win the approval of licensing authorities, and successfully become barbers and nursing assistants.

This picture of occupational-licensure practice significantly advances our understanding of the civic status of Americans with criminal-justice records, and the nature of “carceral citizenship.” Critical scholarship on collateral consequences usually emphasizes the degree to which having a conviction record brings about a sharp, durable shift in legal and social status. For example, struck by the range and severity of U.S. civil sanctions, many observers--including this author--have chosen metaphors of utter deprivation such as “civil death” to describe the degraded condition brought about by carrying a conviction. Potent terms such as “internal exile” suggest absolute exclusion from the rights and privileges of citizenship. Leading voices in the study of American punishment adopt the metaphor of “caste,” arguing that collateral sanctions lock people with convictions into a lifetime of subordination.

This Article demonstrates that while civil barriers may be more porous than absolute, they nonetheless enact a legal regime in which people with conviction backgrounds remain labeled, vulnerable, and diminished. Controlled by a murky blend of rules, individuals with conviction records are exposed to surveillance and judgment by private and public actors in a complex, contingent system that seems certain to bring about serious problems of misinformation, confusion, and differential treatment.

This is a time of significant reform in state occupational licensure law. Spurred by an emerging coalition of criminal justice reform groups and libertarian organizations, in the last three years about twenty states have changed their credentialing rules pertaining to people with conviction records. Indeed, some states discussed in this Article changed their laws during the time the study was conducted. New laws typically provide for preliminary eligibility determinations, prohibit license denial unless the applicant's conviction is directly related to the job in question, and require state agencies to report how many applicants with criminal records were denied, and why. The evidence accumulated in this Article certainly underscores the need for such reforms, but also demonstrates that the problems afflicting U.S.

licensure law are so deep and complex that statutory changes, while necessary, should be understood as a vital first step rather than a panacea.

The Article proceeds as follows: Part I reviews previous research related to occupational-licensure restrictions, and explains the study's theoretical approach and methodology.

Part II outlines states' rules for licensing those with conviction records as barbers and caregivers, and reports officials' estimates of applicant success.

Part III describes ways in which occupational licensure operates as an intensely disciplinary process, followed by a concluding discussion.

[. . .]

More than thirty years ago, Deborah L. Rhode argued that while the number of would-be lawyers denied admission to the bar by state “moral fitness” requirements was low, the policy was still harmful: it “excommunicated a diverse and changing community,” and “deterred, delayed, or harassed” far more people than it formally excluded. Those observations, it turns out, are likely true of licensure beyond the bar. At the same time, Rhode's comment reminds us just how much remains unknown about the workings of American occupational-credential practice, and how badly more research is needed. We need to know how many applications are denied because of an applicant's history, or approved despite it - and which types of convictions lead to each outcome. But we also need to know how many people do not apply at all, or start the process and drop out, because they believe, perhaps wrongly, that their backgrounds will prevent certification. American criminal and civil restrictions are so numerous and varied, scholars of “carceral citizenship” have noted, that it is often difficult for people convicted of crime “to fulfill the obligation to obey the laws to which they are subject, to know which laws they are in violation of or to anticipate what their conviction status means from time to time or place to place.” Given the complexities described in this Article, that difficulty is also present in occupational licensure.

Meanwhile, there is strong suggestive evidence that misinformation is a real problem among populations with criminal convictions. For example, some people who can vote under their state's laws think they are not eligible. Advocates studying college enrollment have identified high levels of “felony application attrition,” as many applicants indicating they have a criminal record drop out of the process. Indeed, the Center for Community Alternatives concludes that the stigmatizing effects of application questions, and the “daunting impact of supplemental procedures imposed on applicants,” have done more to close the doors of higher education than have explicitly exclusionary rules.

Most people with convictions will not be locked out entirely, should they pursue these occupational credentials. As Nikolas Rose has argued, contemporary control strategies do not all operate as “circuits of exclusion”; governments also “regulate conduct by enmeshing individuals within circuits of inclusion.” It is an apt description of American licensing procedures, given that even when they succeed, people with criminal records will often find themselves subject to inspection and judgment--reminded of their past, their diminished status, and their vulnerability before the state's authority.

Civil rules excluding people with criminal-justice histories from political, economic, and social activities have a moral dimension, but they also appear to illustrate the ways “logics of risk” have permeated modern punitive, civil-society, and private organizations. In one insightful essay, for example, Sandra G. Mayson contends that we should understand collateral consequences as “predictive risk regulation,” not as punishment. However, both in terms of formal rules and bureaucratic practices, there is great variation in state assumptions about which individuals with conviction records might pose a public danger, should they be certified to work in these occupations. Many states do employ broad-based prohibitions, disqualifying large numbers of offenders without regard to individual circumstance, but others do not.

Risk, as Pat O'Malley has argued, is “a contestable political rationality,” one which “does not in itself necessarily closes off any avenues toward optimistic risk-based programs of governance.” In the fragmented, decentralized disciplinary network of American licensure rules, risk appears to play very different roles in different jurisdictions. Restrictions in many states seem premised on the view that most types of criminal background do not foretell danger to the public, whether in the barbershop or the nursing home. That view may contribute to credentialing exclusions barring only those offenders whose infractions are directly connected to the occupation in question, for example. It might also play a role in laws prohibiting civil agents from denying someone a license unless they conclude, through individualized analysis, that doing so would pose a “threat,” as in California, or “unreasonable risk,” as in Maryland. This was the approach adopted by the Pennsylvania Commonwealth Court when it struck down that state's lifetime ban on nursing-home employment for people convicted of certain crimes in a 2015 decision. Facilities, the Pennsylvania court ruled, should be allowed to “perform individualized risk assessments and evaluate applicants with criminal records on a case-by-case basis.”

Occupational licensure restrictions are varied, complex, and contingent. For successful applicants, of course, and for many policy purposes, discretionary rules are superior--doors that sometimes open are better than walls, and a chance at restoration is better than permanent exclusion. But such systems can also produce endemic confusion and error, and make the challenge of living within the law onerous in a different way than that implied by the image of exile. Serious questions of basic fairness arise from the dramatic differences we see across jurisdictions (some doors open for some people), from the level of obscurity and non-transparency of many licensing processes, and from the kinds of interpretive burdens placed on civil servants. As Jessie Allen writes, much of law's constitutive power can be found “in the day-to-day textual interpretations of local officials who implement ... personal and prosaic legal text.” That is certainly true here, particularly where officials and board members make case-by-case eligibility determinations; many staff appear to make genuine good-faith efforts to help applicants with convictions navigate the credentialing process. But when texts are as complex as those comprising the criminal-civil licensure hybrid, interpretive variation and interpretive mistakes are inevitable.

Some errors will be random and idiosyncratic, but others may be patterned and systemic. “Discretion and discrimination travel together,” wrote the late William J. Stuntz. As Lipsky observed in his foundational treatment of street-level decision-making almost forty years ago,

A criminal offense in one setting might be overlooked in another. The social construction of the client ... is a significant process of social definition often unrelated to objective factors and therefore open to the influence of prejudice, stereotype, and ignorance as a basis for determinations.

Since Lipsky wrote these words, our understanding of the nature of human observation and cognition, as well as the effects of implicitbias anchored to age, gender, race, and language, has improved considerably, and only strengthen his hypothesis. Even when government agents mean well--particularly when they mean well--their actions can inadvertently perpetuate existing inequalities, damaging both individuals and communities.

This is a field of variation, and we need to learn much more about the nature and shape of that variation. Great value would come from ethnographic inquiry into the lived experiences of those who have navigated the licensure application sequence, successfully or otherwise. Case studies of individual state procedures, meanwhile, would offer a deeper understanding of the complexities of licensure and employment than has been possible here. Schools are particularly worthy of study as entry points into the system: what do instructors, class content, and application forms tell students about state eligibility rules for the end-goal credential? What information do they offer about the possibility of working in particular kinds of institutions? What do schools' contracts with clinical-training facilities specify, with regard to participants' backgrounds?

Deeper into the process, boards' in-person consideration of applicants with records merit attention, particularly with regard to how critical concepts such as rehabilitation, character, and risk are defined. Of course, employers are an essential piece of this puzzle, and research into hiring practices-- whether of hospitals, national nursing-home chains, small independent facilities, or home-health services--would be extremely valuable. This research may also be particularly challenging, because such organizations are extremely cautious about discussing these issues. This is not only because they risk reputational harm; facilities could also be in legal jeopardy if they hire ineligible individuals. States where licensure law is changing offer excellent opportunities for analysis of legislative purpose, as well as bureaucratic implementation. Experimental studies could shed light on the deterrent effects of overbroad application questions.

States themselves must play a role. As the Institute for Justice's Model Occupational Licensing Review Act suggests, all states should collect data regarding applicants with convictions and how they fare. This includes, in discretionary systems, what kinds of information demonstrate rehabilitation or the absence of a threat to the public. It is particularly important to learn more about how frequently, and for what reasons, states and employers reject candidates whose convictions have been modified or expunged. People often spend a great deal of money and effort seeking expungement, hoping to lift the stigma of a criminal record, to help them move on from their pasts, and to prevent minor transgressions from posing obstacles in their job searches. At least some judges awarding expungements, meanwhile, do so with the expectation that they are removing a barrier to employment. That both applicants and judges may be mistaken in their assumptions--at least when it comes to these occupational credentials, in some states--is troubling. We need to know how often this occurs, for these and other occupations.

Analyzing U.S. expungement and sealing laws, expert attorneys recently wrote, “there is remarkably little consistency among state record-closing schemes .... eligibility criteria are frequently so complex as to defeat the sharpest legal minds.” That is also a fair description of many elements of credentialing law. Legislative action bringing clarity and transparency would be welcome, but the bureaucracy need not wait. State agencies could improve their public-facing materials, such as webpages and application forms. Licensing authorities should publish, in plain language, their rules and procedures--including their standards of proof when considering evidence of alleged misconduct, such as arrest and charging documents. Civil-credentialing agencies need to protect the public, but must also strive to preserve the presumption of innocence.

To be a nursing aide, one must have enormous patience, physical stamina, and a working understanding of the body's functions and dysfunctions. Our application and credentialing processes, however, often require would-be aides to possess a different set of skills: the capacity to parse complex and counterintuitive legal terms and retrieve scattered government documents, for example, or the raw good luck to encounter a state official who can help overcome these hurdles. When they deter otherwise-qualified people from serving, occupational-certification practices may impose social costs well beyond the affected individuals themselves. Given the United States' acute need for caregivers, this is all the more reason for reform.

Without altering rules or diminishing agency authority, states could add to their on-line and print materials clear, prominent statements explaining--as a few already do--that many people with criminal convictions are eligible for a given state credential. States could require schools and private testing companies to disseminate that information as well, and agencies with the capacity for more outreach could communicate with probation officers, Offender Workforce Development Specialists, and others working in reentry. Doing so would help improve the life chances of people with criminal-justice backgrounds, and might also improve the quality of American society by providing its members with some excellent barbers and caregivers.

Alec Ewald is an Associate Professor in the Department of Political Science at the University of Vermont.