California has joined the growing list of states that are making it easier for those with a criminal record to obtain a professional license. With the new AB-2138 law, the state has enacted major licensing reform that makes it easier for their 8 million residents with a criminal record to obtain professional licenses to work, starting July 1, 2020.
“AB 2138 was crafted to help reduce recidivism by making it easier for people with a criminal record to find high quality jobs. Being able to earn an honest living has been proven to be one of the most successful ways to keep people with a criminal record from re-offending,” according to Tsion Chudnovsky, the founder of Chudnovsky Law, a California professional license and criminal defense law firm.
“Since occupations requiring a professional license make up a large percentage of the high paying careers available in the job market, licensure reform is a crucial component of criminal justice reform.”
Nurses, Physicians, Dentists and Over 1,700 Occupations Affected
The changes apply to approximately 1,773 different occupations ranging from medical doctors, nurses, pharmacists, dentists and psychologists to engineers, contractors, hair stylists, real estate appraisers and auto mechanics.
California estimates that around 30% of all jobs in the state require licensure, certification, or clearance from an affected Department of Consumer Affairs oversight agency or board.
According to a database developed by the American Bar Association, states across the U.S. have over 10,000 regulations in place that restrict people with criminal records from obtaining professional and occupational licenses. States defend the regulations as a way to protect the public. But Chudnovsky and others point out that the rules are often arbitrary and these collateral consequences do more harm to society than good.
What Are the Changes in AB-2138?
California’s Assembly Bill 2138 was passed with the goal of providing more job opportunities to those with a criminal record. Legislators also focused on improving the predictability and transparency of board licensure decisions. Given the substantial investment required to become qualified to apply for a license, predictability is key.
AB-2138 restricts the discretion and practices of California licensing agencies in several ways, starting July 1, 2020:
- Licensing boards may no longer use prior acts involving fraud, dishonesty, or deceit as a reason to deny a license application unless the act ended in criminal conviction or formal discipline.
- Agencies may no longer deny a license application due to a criminal conviction more than seven years old, except for certain serious felonies, convictions requiring sex offender registration and some crimes that are directly and adversely related to certain occupations.
- If an agency wants to deny a license application because of a formal disciplinary record, the disciplined misconduct must be “substantially related to the qualifications, functions, or duties of the business or profession for which the present application is made.”
- Criminal convictions have to be substantially related to the duties or qualifications required by the occupational or professional license in order to be the basis for revoking, denying or suspending a professional license.
- Licensure applicants will no longer be required to self-report prior criminal convictions as long as their license type requires fingerprint background checks.
- California licensing agencies are now required to consider evidence of rehabilitation when evaluating any prior criminal conviction. License applications may not be denied if the applicant demonstrates rehabilitation, is granted a pardon or clemency, or if the conviction is subsequently dismissed or expunged.
The changes apply to 37 out of the 40 licensing boards under the jurisdiction of the California Department of Consumer Affairs. Only three licensing agencies were excluded from the reforms: The Bureau for Private Postsecondary Education, The California Horse Racing Board and The State Athletic Commission.
What is a “Substantially Related” Criminal Conviction?
“AB-2138 does not define a single standard of ‘substantially related.’ Each licensing agency is required to create criteria that is relevant to their profession,” says professional license defense attorney Robert Weinberg.
“Each agency must establish criteria that includes the nature and duties of their profession, the number of years elapsed since the conviction, and the gravity and nature of the conviction. We anticipate that by requiring that the criteria be formally developed, there will be more transparency and predictability to agency licensure denials, suspension and revocation decision making.”
When licensure decisions are opaque or inconsistently made, it can be very difficult to decide whether to invest the time and resources needed for the education and other investments needed to qualify to apply for a license.
Benefits of Easing Licensure Barriers
Licensure restrictions are one of many obstacles that exist when trying to reintegrate back into society after a criminal conviction. Obtaining a stable, high quality job that helps establish a firm economic footing is a crucial element of any criminal justice reform that seeks to reduce recidivism.
“The three years following release from prison is the window in which ex-prisoners are mostly likely to re-offend. Successful entry into the labor force has been shown to greatly increase the chances that a prisoner will not recidivate,” says Stephen Slivinski, an economist at the Center for the Study of Economic Liberty.
A study by Slivinski has shown that U.S. states with more fair, transparent and consistent licensure practices have much lower recidivism rates than those with strict licensing barriers. States with vague “good character” provisions and poorly defined discretionary authority allows officials to reject licensure applications based merely on the existence of a criminal record, regardless of it’s relevancy to the job.
Relaxing licensure restrictions helps boost the economy by easing employee shortages, increasing competition for jobs and reducing the labor costs for many types of workers and services. Breaking the cycle of re-offending also helps lower the costs borne by society for incarceration, supporting broken families and policing and prosecuting criminal activity.
Restoring Rights and Status After Criminal Arrest or Conviction
There is growing consensus on the need to advance criminal justice reforms as the current incarceration trends are unsustainable. According to the Equal Justice Initiative, the United States has 25 percent of the world’s incarcerated prisoners even though we have only 5 percent of the world population. Since 1972, the number of incarcerated people in the United States has surged eleven fold from 200,000 to over 2.2 million people today.
Easing occupational licensing barriers is an important part of the criminal justice reform needed to reverse America’s incarceration trends. Professional licensing laws are controlled and implemented by state legislators. A 50-state comparison reveals the wide variation in how each state implements their employment licensing
According to Institute of Justice research, California is ranked as the most burdensome state in the United States for occupational licensing requirements. When combined with the state’s large population footprint, California’s new reforms have the potential to positively affect many lives.
The changes are a step forward in restoring rights and status to those with a criminal record. Hopefully they will also contribute to reversing our troubling incarceration trends.