AuthorEwald, Alec C.

TABLE OF CONTENTS Introduction 721 I. Literature, Theoretical Framework, and Methodology 728 A. Criminal Records, Employment, and Licensure 728 B. Collateral Sanctions, Civic Status, and the "Disciplinary Subject" 737 C. Methodology 740 D. A Note on Language 743 II. Results: Application and Approval Estimates 744 A. "We License Felons Every Day": Certifying Barbers 744 B. Licensing Caregivers 758 III. Results: Disciplinary Elements of Licensure 767 A. The Application-Question Problem 768 B. "Conduct" and Conviction 772 C. The Licensure Archipelago 783 1. The Licensure Archipelago as Exemplifying the Entanglement of Civil and Criminal Law 791 D. Resurrecting and Amplifying the Criminal Record 795 1. "Please Explain Why You Committed This Crime": Performing Governability 795 2. "He Was Now a Good Man Living a Legal Life": Performing Character 801 INTRODUCTION

The 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," (1) scholars, reformers, and journalists have analyzed policies restricting voting, (2) firearms ownership, (3) jury service, (4) receipt of public benefits, (5) military service, (6) access to housing, (7) and more (8)--a web of state and national rules that together threaten to place Americans with convictions in a "state of legal nonfreedom." (9)

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," (10) and typically impose "[b]lanket restrictions...with no attention to individual circumstances or qualifications of the applicant in question." (11)

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. (12) 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. (13) Of course, staff estimates of approval rates are not conclusive evidence of outcomes. (14) However, there is good reason to take these reports seriously, such as the fact that several states supplied data supporting interviewee accounts. (15) 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. (16) 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" (17) 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." (18) Governed by a complex, deeply decentralized administrative apparatus, (19) they are best described by a concept based in the work of Michel Foucault: they are "disciplinary subjects." (20)

The indeterminacy of state law can make it virtually impossible for a would-be caregiver or barber to evaluate their own eligibility. (21) 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. (22) 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. (23) 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. (24)

Meanwhile, many jurisdictions make decisions on the basis of the applicant's "conduct" rather than conviction. (25) 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. (26) In many states, even convictions ultimately set aside or expunged may lead to denial, particularly for would-be Certified Nursing Assistants (CNAs). (27) Throughout the licensure process, the combination of legal indeterminacy, procedural complexity, and individualized, character-based evaluations make the discretionary decisions of "street-level" (28) 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." (29) 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" (30) to describe the degraded condition brought about by carrying a conviction. Potent terms such as "internal exile" (31) 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. (32)

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. (33) 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. (34) 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.


    1. Criminal Records, Employment, and Licensure

      The employment challenges that persons with criminal...

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