The following post was written by Ian C. Stephens about his recently published article, Careers After Prison: Preventing Recidivism by Reforming Restrictive Licensing Regimes. Stephens is a graduate of the Texas A&M University School of Law and Norwich University, and a law clerk on the United States District Court for the Eastern District of Texas. He is from Plano, Texas, and lives in Fort Worth, Texas, with his wife and daughter. He’s on Instagram @ian.cst and X and Bluesky @iancst.
Last year, I came across an opinion by an Administrative Law Judge in Texas. The case was only an obscure corner of the edifice of the law—relegated to a small, pale room, not a grand mahogany dais. But to me, it encapsulated much of the problem I had been obsessing over. Kyle McCracken was a plumber. He had been for years. But he’d also struggled with drugs and alcohol, and a couple of years earlier they’d caught up to him. He’d taken his mother’s car, drunk, to drive to a friend’s house, and when he saw the blue lights behind him, he took off down (and off) the road. When he got out of jail eight months later, he enrolled himself in an addiction treatment program and began going to a 12-step program and church. As he sat, watching to the court reporter set up her stenotype, the buzz of fluorescent lights cutting the silence, he’d been sober for two years.
While McCracken was in treatment, he met another plumber who offered him work. But with his license revoked, the plumber wasn’t able to follow through. Soon later he began working for yet another plumber, but without a license there wasn’t much he could do. So, in front of him he had letters from both of these plumbers, writing to say that he was hardworking and motivated, that he’d learned from his mistakes, and that they wanted to hire him. McCracken prayed they’d have the chance. But sitting six feet away from him a lawyer from the Texas Board of Plumbing Examiners was prepared to tell the judge otherwise: that his convictions, unauthorized use of a vehicle, evading arrest, and possession, were directly related to the profession of plumbing and made McCracken a danger to the community. When McCracken stepped out into the Austin sun that afternoon, Texas remained short a plumber, two small businesses still had roles they needed to fill, and McCracken had to figure out where he’d go from here.
Many states, including McCracken’s own Texas, have statutes that permit their licensing boards to deny applicants a professional license if they have been convicted of a crime that “directly relates” to the profession. In my article, Careers After Prison: Preventing Recidivism by Reforming Restrictive Licensing Regimes, in the Texas A&M Law Review, I point out that in many cases, licensing boards have interpreted those statutes so broadly that they undermine the very public safety goals they hope to achieve. In Texas, for instance, McCracken’s plumbing license was denied under a statute that permitted the Board of Plumbing Examiners to deny a license to anyone convicted of “an offense that directly relates to the duties and responsibilities of the licensed occupation.” But as with many professions in many states, the definition of a crime directly related to plumbing in Texas has been interpreted so broadly that it includes the vast majority of anyone convicted of a crime in the State.
This overbreadth directly undermines the State’s public policy goals by dislodging the balance between protecting public safety and rehabilitating former prisoners. Uncareful regulation of employment is especially prone to upset this balance because employment is so closely linked to recidivism. The economic precarity caused by unemployment is a foxtrot of bad incentives: With its first step, it increases exposure to “social toxins” that contribute to psychological indicators for crime. With its second, it creates economic incentives toward income-generating crime. With its third, the integration of income-generating crime into the economy, necessitates resort to alternative means of dispute resolution. Indeed, several studies have found employment to be more closely linked to recidivism than any other factor.
With employment so closely linked to recidivism, barriers to employment for formerly incarcerated people become liable to tip the balance between public safety and rehabilitation. They both make rehabilitation more unlikely by burdening reintegration into society and undermine public safety by increasing the risk of crime. In the context of professional licensing, this problem is exacerbated because, paying more, less skeptical of criminal histories, and not requiring a college education, professional trades present some of the best opportunities for people to find gainful employment after prison and reintegrate into society.
With such a large detrimental impact on recidivism, there should be a correspondingly large benefit to public safety if licensing restrictions are to be viable. That’s the balance that the “directly related to” standard tries (and fails) to strike. If a person’s criminal history is intimately related to a profession such that they would present an unacceptable danger as a member of that profession in particular, it makes sense to exclude them from that profession. But in reality, the phrase “directly related to” leaves too much up to the licensing board’s discretion, allowing boards to sweep broad categories of disparate offenses into the directly-related-to pile. In many cases, this results in licensing restrictions so loosely connected to the profession in question that they can be justified only with platitudes like, as in McCracken’s case, that tradespeople must be “trustworthy and follow [ ] laws and regulations.”
So, if the current regime of licensing people with criminal histories as tradespeople is too broad, what would strike that delicate balance between public safety and rehabilitation? Well, perhaps criminal law and tort law would benefit walking hand in hand again. In my article, I propose a new standard derived from common law negligent hiring principles. That field of law, designed to ensure that employers are adequately discerning to protect their customers and employees without imposing an undue burden, calls for a closer connection between the job at issue and a person’s criminal history before it will impose liability.
First, negligent hiring liability attaches only if the harm at issue is job-related and not too attenuated from the tortfeasor’s employment. Applying this principle to licensing, we might say that licensure should be restricted only where a person’s criminal history has some connection to their profession other than broad statements of morality. Second, to be liable for negligent hiring, employers must have been able to foresee the harm that befell. Likewise, licensing restrictions should take hold only when boards can articulate some foreseeable harm that could come from licensing. Finally, many jurisdictions attach a duty to employers only when the risk of hiring an employee outweighs the burdens and social consequences inherent in attaching liability. This principle would call for licensing boards to undergo the protective-rehabilitative balancing that has thus far been so misaligned.
This new standard, which in my article I deem the “nexus standard” (after negligent hiring’s requirement of a nexus between job, conviction, and harm), would rebalance the rehabilitative and protective goals of licensure. Those who pose a clear and present danger—like a drug dealing pharmacist or a nurse who preys on the vulnerable—would not be presented the opportunity to reoffend. But those whose history is attenuated from their jobs would not be presented the incentive to reoffend.
While this standard would solve one of the discreet problems in the broader scheme of professional licensing, it would leave many more still to be addressed. In her new book, The Licensing Racket, Professor Rebecca Haw Allensworth explores many more of the problems incumbent to this system. Her work, pointing out incongruous levels of pre-licensing exclusion and post-licensing discipline, offers new perspective for the directly-related-to and nexus standards. This perspective, we’ll explore in a subsequent post.
– Ian C. Stephens
Thanks to Mr. Stephens for his article and post, and stay tuned for Part Two. – SEH