Around 1 in 3 American adults have been arrested before they reach 23 years of age and between 70 and 100 million Americans have a criminal record. Because a criminal record can include speeding tickets, it is no wonder this number is so high. However, a criminal record can still inhibit individuals from finding employment or being licensed in particular occupations. Occupational licensing regulations sometimes have a blanket prohibition on individuals with any criminal convictions, or “good moral character” clauses that allow a licensing board to deny a license for an arrest without conviction. This contributes to a large segment of the population being unable to work, even if their arrest or conviction occurred years prior to their application.
As the pandemic reveals greater challenges for individuals pursuing an occupational license, many states have changed regulations to lower barriers that make it more difficult for people to obtain licenses. Some of these moves include removing barriers to licensure for individuals with criminal records. For example, Vermont recently passed Senate Bill 233, which sets up a process for pre-qualification, or allowing individuals with criminal records to know if their criminal record would disqualify them from licensing before they begin the formal process of seeking a license. Without this pre-qualification process, many individuals must go through years of training and pay fees only to find that their criminal record excludes them from licensure.
However, the interest in modifying these polices was in place well before the pandemic. A majority of states have implemented at least one “fair chance” licensing practice that works toward removing barriers to licensure for individuals with criminal records. Four of the most common policy options include: a “direct” relationship standard, individualized consideration guided by specific factors, pre-qualification, and written reasons for denial. A resource developed by The Council of State Governments (CSG) Justice Center compares these policies across states.
“Direct” or “Substantial Relationship Standard”:
- These provisions prohibit denial of licensure based on convictions without a “direct” or “substantial” relationship to the duties of the occupation.
- Forty states have a standard that the convictions must have a direct or substantial relationship to the occupation.
- For example:
- Michigan Compiled Laws § 338.42 states that “[the individual] is permitted to rebut [if] the substance of the former offense is not reasonably related to the occupation or profession for which he or she is seeking a license.”
Individualized consideration guided by specific factors:
- Most states with “direct” or “substantial” relationship provisions also include requirements to consider each conviction with an individualized approach. This includes reviewing each conviction in question and considering factors such as the nature of the offense, the age of the applicant when the crime occurred, number of years since conviction, and other factors.
- Twenty-six states have such policies in place.
- For example:
- Colorado Revised Statutes § 24-5-101 obligates licensing boards to evaluate a list of four considerations before they can deny a license.
Pre-qualification (binding absent new criminal history):
- Sets up avenues for individuals with criminal records to petition a licensing board to determine whether that individual’s criminal history disqualifies them from licensure before they formally apply.
- Nineteen states have pre-determination avenues in place.
- Kansas and Nebraska have similar mechanisms, but the decision is not binding on the board, and Oklahoma’s statute is not clear on whether this provision is binding.
- For example:
- West Virginia Code § 30-1-24 states that “an individual with a criminal record who has not previously applied for licensure may petition the appropriate board at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a license.”
Written reasons for denial:
- Requires licensing board to provide a written response to an applicant on why their particular criminal history prohibits them from being licensed.
- Twenty-eight states require licensing boards to provide these responses.
- For example:
- Wisconsin Statute §111.335(4)(c)1 states that “[the licensing agency] shall explicitly state in writing the reasons for a decision which prohibits the person from engaging in the [trade or profession] if the decision is based in whole or in part on conviction of any crime.”
By modifying blanket bans or “good moral character” clauses, states can remove barriers to licensing that prevent justice-involved individuals from re-entering the workforce. And being able to assess the policy options implemented in other states foster modifications that bring more individuals into the workforce. A majority of states have included at least one provision in their licensing policies to lower barriers to licensure for individuals with criminal records. These provisions usually fall into one of the aforementioned four categories, with the details varying slightly and an emerging consensus on best practices. A chart of the states with these polices in their licensing process can be found below.
States implementing major fair chance licensing best practices
Source: Statutory review by CSG Justice Center, Dec. 2020
|State||Citation||“Direct” or “substantial” relationship standard||Individualized consideration guided by specific factors||Pre-qualification (binding absent new criminal history)||Written reasons for denial|
|Arizona||Ariz. Rev. Stat. § 41-1093.04||Yes||Yes||Yes|
|Arkansas||Ark. Code Ann. § 17-3-102||Yes||Yes||Yes|
|California 1||Cal. Bus. & Prof. Code §§ 480 & 4481||Yes||Yes|
|Connecticut||Conn. Gen. Stat. § 46a-80||Yes||Yes||Yes|
|Delaware||74 Del. Laws 262||Yes||Yes|
|DC||D.C. Code §§ 47-2853.17; 3-1205.03||Yes||Yes||Yes|
|Florida||Fla. Stat. § 112.011||Yes|
|Georgia||Ga. Code Ann § 43-1-19||Yes||Yes|
|Hawaii||Haw. Rev. Stat. § 831-3.1||Yes|
|Idaho||Idaho Code § 67–9411||Yes||Yes|
|Illinois||20 ILCS 2105/2105-131 (Pub. Act 100-0286)||Yes||Yes||Yes|
|Indiana||Ind. Code § 25-1-1.1-6||Yes||Yes||Yes||Yes|
|Kentucky||Ky. Rev. Stat. Ann. § 335B.020||Yes||Yes||Yes|
|Louisiana||La. Rev. Stat. Ann. § 37:2950||Yes||Yes|
|Maine||Me. Rev. Stat. Ann. tit. 5, § 5301||Yes||Yes|
|Maryland||Md. Crim. Proc. Code § 1-209; COMAR 09.01.10.02||Yes||Yes|
|Massachusetts||Mass. Gen. Laws ch. 6 § 172N||Yes|
|Michigan||Mich. Comp. Laws § 338.42||Yes|
|Minnesota||Minn. Stat. § 364.03||Yes||Yes||Yes|
|Missouri||Mo. Rev. Stat. § 324.012||Yes||Yes||Yes||Yes|
|Montana||Mont. Code Ann § 37-1-204||Yes||Yes|
|Nebraska||LB 299 (2018)||Yes||Yes|
|New Hampshire||N.H. Rev. Stat. Ann. § 332-G||Yes||Yes||Yes||Yes|
|New Jersey||N.J. Stat. Ann. §§ 2A:168A-1; 2A:168A-2||Yes||Yes|
|New Mexico||N.M. Stat. Ann. § 28-2-4||Yes||Yes|
|New York||N.Y. Correct. Law. §§ 752; 753||Yes||Yes||Yes|
|North Carolina||N.C. Gen. Stat. § 93B-8.1||Yes||Yes||Yes||Yes|
|North Dakota||N.D. Cent. Code § 12.1-33-02.1||Yes||Yes||Yes|
|Ohio||Ohio Rev. Code Ann. § 4743.06||Yes||Yes||Yes|
|Oklahoma 2||HB 1373 (2019)||Yes||Yes||Yes|
|Oregon||Or. Rev. Stat. § 670.280||Yes|
|Rhode Island||R.I. Gen. Laws § 28-5.1-14||Yes||Yes||Yes|
|Tennessee||2018 Tenn. Acts, ch. 793 (SB-2465)||Yes||Yes||Yes||Yes|
|Texas||Tex. Occupations Code Ann. §§ 53.021 to .023||Yes||Yes||Yes||Yes|
|Utah||Utah Code Ann. § 58-1-501; SB-201(2020)||Yes||Yes||Yes||Yes|
|Virginia||Va. Code Ann. § 54.1-204||Yes||Yes|
|Washington||Wash. Rev. Code § 9.96A.020||Yes|
|West Virginia||W. Va. Code § 30-1-24||Yes|
|Wisconsin||Wis. Stat. § 111.335||Yes||Yes||Yes||Yes|
|Wyoming||Wyo. Stat. § 33-1-304||Yes|
2 Statutory ambiguity about the extent to which pre-qualification determinations are binding.
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