State and federal laws restricting employment of ex-offenders are often based on stereotyped perceptions, not sound criminological evidence.
What do barbering, land surveying and operating an ice cream truck have in common?
They are among dozens of occupations around the country that can be off-limits to those with a criminal conviction—depending on where they live.
State and federal laws barring certain types of employment and occupational licenses to those with a criminal record aim, of course, to protect public safety. Many of these restrictions are logical.
Sex-offenders are generally barred from work in schools. Ex-felons cannot generally work in law enforcement, and a record of violent offense often prohibits one from employment in hospitals.
Yet many others are the product of biases, cultural stereotypes or just hazy thinking, which end up landing many ex-offenders in a vicious cycle. Unable to find legitimate employment, they may turn back to their old ways.
The objection to barbers, for instance, seems to stem from the fear of what a former criminal legally empowered to use a sharp razor (think Sweeney Todd) might do to customers. Whether or not the former felon had a history of violence is irrelevant.
Many of the measures are not backed up by research into recidivism, or even by psychological studies. Employment has consistently been shown to significantly reduce recidivism rates. Widespread employment bans can therefore do more harm than good, complicating the path back to society for thousands who are otherwise considered to have repaid their debt to society.
Lack of Consistency
The lack of consistency across the country underlines the problem. The same occupation may be deemed acceptable for ex-felons in one state, while it is off-limits in another state. Politics, or the strength of lobbying interests in individual legislatures, often competes with sound criminological practice.
The glut of laws, which vary by state, can also make enforcement by regulators and licensing boards difficult, and spotty.
In Los Angeles, for example, a woman was recently denied a cosmetology license because of a forgery conviction when she was 20 years old, while hundreds of lawyers in Wisconsin are able to keep their licenses to practice law despite criminal convictions.
“Policies were adopted piecemeal over many years, many legislative sessions,” explains Nicole Porter, state advocacy coordinator with The Sentencing Project, an advocacy group that tracks laws related to post-conviction employment.
“Once the door was open to restrict people from certain jobs, that approach really snowballed.”
Striking the balance between public safety and employment for ex-offenders is no small matter. About 7.2 million people were in prison, jail, on probation, or on parole at the end of 2009, according to the most recent statistics from the Department of Justice.
The National Employment Law Project estimates one in four Americans has a criminal record that would show up on a background check. For them, finding work can be a sisyphean task.
Ban the Box
Politicians such as former Florida Gov. Jeb Bush and Massachusetts Gov. Deval Patrick have taken the lead in trying to address the issue. Efforts are underway by liberals and conservatives to help ex-prisoners get a fair deal in the current punishing job market by making it easier to expunge certain kinds of criminal convictions.
A movement has grown up to prohibit questions about previous criminal records on applications for state employment—the so-called “ban the box” campaign, named for the check-box on employment applications related to arrest and criminal histories. Ditching the box wouldn't entirely preclude a prospective employer from asking about previous convictions, but it would prevent ex-offenders from being automatically disqualified regardless of their abilities.
Public sentiment—especially at a time of high unemployment—can make efforts to widen job prospects for ex-offenders even harder. Media can add to the fray. One incident often becomes the basis for widespread policy.
A horrific bus accident in the Bronx, New York is a case in point. The crash earlier this month left 15 people returning from a night at the casino dead, and many more injured. The driver claimed he was forced off the road by a truck; others suggested he fell asleep at the wheel.
Spurred by disaster, regulators kicked into action. They found widespread issues in the discount bus industry, including evidence that drivers may work with little sleep, and on badly maintained buses. Yet it was driver Ophadell Williams' criminal record—he has a 1990s conviction for manslaughter, and may have been using a suspended license—that led the news.
Lax enforcement seems to have as much to do with the accident as the history of the driver. But the story may well shift opinion on granting commercial licenses to those with a criminal record.
Most states don't bother looking across the state border to check for consistency when it comes to occupational bans. But it's only when the patchwork of approaches is compared state-by-state or across the country that an obvious conclusion emerges.
Some of the employment prohibitions make sense. Many others don't.
Here is a bird's eye view of some of the notable examples, at both the state and federal levels.
- ALABAMA (and FLORIDA) Those pursuing a career security alarm installation will have trouble in Alabama if their criminal conviction is less than seven years old. Ditto in Florida, if the conviction is less than three years old.
- DELAWARE , a felony conviction can mean sanctions or denial of a license for those who hope to be an accountant, chiropractor or architect.
- FLORIDA (and NORTH CAROLINA) have explicit laws allowing licensing boards to deny an electrolysis license if “any element of the crime” relates to electrolysis.
- ILLINOIS At least 57 professional and occupational statutes contain restrictions which may bar ex-offenders from getting a license. These include: roofers, barbers, nail technicians, boiler repairers, interior designers, boxers and farm labor contractors.
- MASSACHUSETTS As of August 2010, sex offenders cannot drive ice cream trucks.
- MICHIGAN a prior criminal history can be enough to be denied a license to barber.
- MISSISSIPPI Massage therapy licenses are denied to ex-offenders if the crime for which they were convicted bears “direct relation” to the work.
- NEVADA Conviction for a crime related to “dishonesty” can bar someone from the “practice of engineering or land surveying.”
- NEW YORK Applicants to the New York City Police Department are disqualified if they have been convicted of a felony, a crime related to domestic violence, or petite larceny. Misdemeanors, however, don't automatically disqualify one from sporting NYPD blue.
- PENNSYLVANIA Anyone convicted of a felony within the last five years, or a gambling conviction in the last decade, will be denied a license to be a “salesperson of games of chance.”
- A criminal record can hinder—but does not disqualify—someone from getting a license from the federal government to export arms.
- If you have a felony or two misdemeanors, federal law says you cannot hold a position that involves regular contact with, or control over, Native American children.
- Despite widespread restrictions on ex-felons working in the health care industry, a recent report from the U.S. Department of Health and Human Services found more than 90 percent of the nation's nursing homes employ someone with a criminal conviction. Most fill low-wage positions such as housekeepers, nursing assistants and dietary workers.
- A felony conviction can hinder one from obtaining a broadcasting license from the Federal Communications Commission.
Lisa Riordan Seville is a freelance reporter living in Brooklyn. Her work has been published on Salon.com, The Daily Beast, New York Press and The Crime Report, among others.