How States Punish Ex-Cons Long After They’ve Paid Their Debt to Society

In the American justice system, we are supposed to follow the maxim, “the punishment must fit the crime.” And yet, for those with a criminal record, their punishments often continue long after their sentences have been served.

In some states, like Pennsylvania for example, strict occupational licensing laws prohibit those with criminal records from gaining meaningful employment by denying them the permits required in order to work. And by making it making it harder for former offenders to find work, these types of licensing laws actually contribute to our country’s skyrocketing recidivism rates.

Two Women’s Stories

Amanda Spillane is a waitress living in Philadelphia with her cat, Sophie. Since she was a teenager, she has struggled with bipolar disorder, depression, and anxiety. Mental health challenges can take a tremendous toll on a person, and for Amanda, drugs became a way to self-medicate and escape all the unpleasant emotions. Unfortunately, it didn’t take long for that coping mechanism to turn into a habit.

When she was released, she was able to stay out of trouble and support herself by working at McDonald’s.

Over the course of six years, as she battled with addiction, Amanda was found guilty of driving under the influence, drug possession, and theft. In order to sustain her drug habit, she committed several burglaries, for which she later ended up serving two years behind bars.

Amanda used the time she spent incarcerated to work on herself and heal from her past traumas. She spent her time in intensive therapy and taking classes about overcoming domestic abuse. When she was finally released, she was able to stay out of trouble and support herself by working at McDonald’s. For five years, she got up before the sun came up and went to work at 4:45 a.m. Her supervisors always gave glowing reviews about her performance.

Seven years after going to prison, her life looks a lot different. She is working at a steakhouse, on speaking terms with her family again, and using healthy, productive methods to manage her mental health. She doesn’t blame anyone else for what happened to her; instead, she has taken personal responsibility for her former actions and has done a remarkable job putting her life back together.

Courtney Haveman also lives in Pennsylvania, along with her husband and baby son. Like each of us, she hasn’t always been perfect and has dealt with her fair share of challenges. In fact, only five years ago, she had several run-ins with the law.

Amanda and Courtney are both model examples of what reentry and rehabilitation should look like.

Courtney used to suffer from a severe drinking problem, which resulted in her pleading guilty to several misdemeanors between the years of 2011 and 2013. In addition to driving while intoxicated and getting cited for drug paraphernalia possession, she was also arrested for hitting a security guard while resisting arrest at a casino. It was the last incident that really made Courtney realize she needed to seek help for her alcohol problem.

For over five years now, she has remained sober. While she was in recovery, she met her future husband, and two years later, she gave birth to their son.

Amanda and Courtney are both model examples of what reentry and rehabilitation should look like. Unfortunately, even though both women worked diligently to get their lives back together, the state of Pennsylvania is refusing to let them leave their pasts behind.

Criminal Record? No Work for You

After getting their lives back together, both women respectively decided to pursue esthetician school, a field of cosmetology that focuses specifically on skincare. Amanda attended for a year, while Courtney attended for six months, but both paid over $6,000 to participate in their programs. Unfortunately, none of this would matter since the state cosmetology board decided to deny them the licenses they needed in order to practice their trade within the state.

The state board has the legal authority to deny someone a license if they have demonstrated “a lack of character” in their personal or professional lives.

Pennsylvania requires a license before someone can receive compensation for practicing any form of cosmetology. And the state board has the legal authority to deny someone a license if they have demonstrated “a lack of character” in their personal or professional lives. Since Courtney has a criminal record, the board used that as evidence of her character and denied her application for a license.

Amanda’s application was also denied, but she tried to fight the board’s decision. After appealing the ruling, she was once again denied. Amanda asked her parents to drive her the long distance to Harrisburg, Pennsylvania, in order to beg the board to reconsider her application in person. When she arrived, she was told that her recovery was not enough. In order to get another chance at a license, she would have to demonstrate that she had done enough good deeds to balance out the time she spent behind bars. She was once again denied a license to work.

The cosmetology board does not exist to delve out karmic points to applicants for good deeds. And there is no reason for these women to be denied their right to work—no reason except protectionism.

Licensing Racket

Occupational licenses exist as a means of regulating who is allowed to enter certain career fields. By requiring costly entrance fees and hours of schooling for tasks like shampooing hair in a salon, powerful boards, usually comprised of those personally invested in the sector, shut out competition within the field, thus “protecting” it from outside competition.

This protectionist mindset is ruining human lives and prolonging the sentences of many formerly incarcerated people.

We saw this happen when the taxi cartels lobbied for stricter regulations on ridesharing after Uber and Lyft began disrupting the industry. The cab companies pretended the laws they were advocating were created out of concern for consumer safety, but that had nothing to do with it; they were worried about losing business. The same thing is true with these occupational licensing boards. Unfortunately, this protectionist mindset is ruining human lives and prolonging the sentences of many formerly incarcerated people.

Both Courtney and Amanda have made restitution for their crimes. Yet, the Pennsylvania licensing board is extending their sentences by continuing to punish these women long after they have turned their lives around. To make matters worse, these women’s stories are not isolated instances, highlighting the seriousness of the problem.

In Texas, the Department of Public Safety denied Krystal Turner’s application for a state vehicle inspector’s certificate because of an incident that occurred five years earlier. Turner had snuck into an abandoned house and was caught, leading to her earning a criminal record. After working in an auto garage for years, she wanted higher pay and more opportunities. Unfortunately, the state board decided that one mistake should cost her the ability to better her life.

Detroit has a similar “good character” requirement, and occupational licensing laws are more numerous there than anywhere else within Michigan. It’s no surprise, then, that as the recidivism rates have also gotten higher as the number of occupations that require licenses has increased.

Research conducted at the Center for the Study of Economic Liberty at Arizona State University found that states with more occupational licensing had higher rates of recidivism:

Between 1997 and 2007 the states with the heaviest occupational licensing burdens saw an average increase in the three-year, recidivism rate of more than 9 percent. Conversely, the states that had the lowest burdens and no character provisions saw an average decline in recidivism of nearly 2.5.

The findings make sense. Studies show that recidivism rates rise if employment isn’t obtained quickly upon being released from incarceration. As of 2018, it is estimated that 68 percent of those released are rearrested within the first three years. Within the first six years of being released, that number increases to 79 percent. And within nine years, 83 percent are rearrested.

Believe it or not, these licensing laws affect millions of people. It is estimated that 77 million Americans, or 1 in 3 adults, possess a criminal record. According to the National Conference of State Legislators (NCSL), barriers to employment faced by those with a criminal record, including occupational licensing hurdles and other challenges like education, resulted in the loss of at least 1.7 million workers from the American workforce in 2014 alone. Additionally, the National Inventory of Collateral Consequences of Conviction (NICCC) has identified over 15,000 laws in both statute and regulatory codes that prevent those with a criminal history from receiving occupational licenses.

“It seems crazy that we have guys who want to be roofers, but they have a drug charge that prevents them from doing the work when that should be the employer’s decision,” said Jarret Skorup, director of marketing and communications at the Mackinac Center for Public Policy.

Fighting for the Right to Work

In general, occupational licensing laws prevent people from earning a living, creating unnecessary barriers to employment by forcing individuals to ask the government for permission before they can work. Former offenders, however, are hit even harder by these laws. Since most are reentering society without much of anything to their name monetarily speaking, asking these individuals to then pay licensing fees is absurd.

Most formerly incarcerated people aren’t just eager for a second chance; they’re desperate for one.

We should be encouraging employment at every turn, not making it harder for those who need it most. This problem also becomes more severe when in addition to entrance fees, licensing boards have the right to tell you that you can’t work because of your past, as in the cases of Amanda and Courtney. Most formerly incarcerated people aren’t just eager for a second chance; they’re desperate for one. They want to make their lives better, and they know they need a job in order to make that happen. Unfortunately, states like Pennsylvania are keeping them locked behind a different set of bars.

Luckily, Courtney and Amanda aren’t taking the board’s decisions lying down. With the help of the Institute for Justice (IJ), the two have sued the state of Pennsylvania. IJ is arguing that the cosmetology board’s actions are unconstitutional since, under state law, the government is only allowed to bar people from working if they pose an actual threat to the public.

These women are not hardened or violent criminals. Like you and I, they are fallible beings who made mistakes for which they should not spend the rest of their lives paying. They have served their time, and the punishments have been completed. There is no reason for this nonsense. Hopefully, IJ is successful in litigating these cases.

Respect People’s Capacity for Transformation

Too many formerly incarcerated people find that their criminal records prevent them from securing employment, which is absolutely necessary for rehabilitation and successful reentry into society. While our Constitution does not explicitly say that punishments must be proportional to the crime committed, the Eighth Amendment does protect against cruel and unusual forms of punishment.

For us to truly respect a human’s capacity for transformation, we need to give formerly incarcerated individuals a real shot at redemption.

In both Amanda and Courtney’s cases, the time had been served, and their sentences should have been complete. But by keeping people locked out of careers that will help them better their lives, the state of Pennsylvania is extending their sentences, sometimes indefinitely. For us to truly respect a human’s capacity for transformation, we need to encourage laws that give formerly incarcerated individuals a real shot at redemption.

When a person is unable to escape their past transgressions and start over, even after all debts have been paid, we cannot really claim to be a country that protects against “cruel and unusual punishment.”