The following post—the second in a series of two—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.

In my last post, I discussed the points made in my recent article, Careers After Prison: Preventing Recidivism by Reforming Restrictive Licensing Regimes. That article points out how many states have gone too far in excluding people with criminal histories from professional licensure. With broad standards that sweep in the vast majority of such people, these regimes undermine the very goals they were meant to promote.

Soon after that article was printed in the Texas A&M Law Review, I discovered that I had been working parallel to the end of Professor Rebecca Haw Allensworth’s research. Less than two months later her book, The Licensing Racket, came out, delving broadly into the spectrum the board system of licensing’s failures and proposing solutions to the same. I think that her work gives context to my own and lends more support to the need for licensing reform.

In my article, I note that licensed trades present a particularly great opportunity for formerly incarcerated people to reintegrate into society, in part, because they present better economic opportunities than many other available jobs. Allensworth greatly expands on this idea. It’s not just that licensed professions pay more because of the skill necessary to work in a trade. By creating scarcity and controlling the supply of certain types of labor the fact that a profession is licensed itself raises wages. Even controlling for education and experience, licensed professions enjoy a wage premium as high as the premium offered by unions (about 10% higher wages).

In fact, Allensworth points out that licensing doesn’t just mirror unions by offering similar wage premiums. As the prevalence of unions has gone down over time, the prevalence of licensed professions has gone up in equal degree. In the 1950’s about 30% of workers were unionized and 5% licensed. Today the inverse, about 10% of workers are unionized and 30% licensed. This could prompt the conclusion that licensing has just replaced collective bargaining as a mechanism to increase labor power. But that conclusion misses the point. Because while unionization and licensure might offer some equivalent benefits, they do not offer equivalent access.

Take Kyle McCracken’s case, discussed in my last post. McCracken was a plumber who was trying to get his license back after he was convicted on charges related to a drunk driving incident. He came forward with two letters from employers clamoring to hire him. Those employers, clearly, were content to take him on despite his criminal history. This is not unusual. Studies have suggested that employers in professional trades are often more willing to overlook an employee’s criminal history than employers in the retail and service industry. Had either of McCracken’s prospective employers been unionized and he had been hired, there’s little reason to think he would have had trouble joining their union. Alas, the plumbing board’s refusal to give McCracken a license made that impossible.

Not everyone can join a pre-existing union. You have to be hired by a unionized employer. But those employers make decisions on an individualized basis with intimate knowledge of their needs and the potential dangers of hiring into a role. Under the current licensing regimes discussed in my article, licensing boards make their decisions based on broad generalizations. So, if licensure replaces unionization, that in fact exacerbates the problems posed in my article. While people are locked out of licensed professions, their other chances at stable, gainful employment are falling away. This only puts people with criminal histories into a more precarious situation and makes them more likely to reoffend.

Allensworth goes on to explore the artificial scarcity behind these higher wages in more depth through a mechanism she calls “the ratchet.” The ratchet is the gradual tightening of control over admission into a profession that turns only in one direction—always stricter. Under the board system of licensing, she explains, professions are managed by members of that profession. Doctors by doctors, plumbers by plumbers, cosmetologists by cosmetologists. So the bodies charged with controlling admission into a profession benefit personally when fewer people are in that profession.

As this incentive takes hold, Allensworth argues that public safety concerns are overlooked in favor of what’s good for the profession. This could help explain the overbreadth that I point out in restrictions on people with criminal histories. Over time licensing bodies come to accept that this crime or that crime warrants exclusion until the meaning of “directly related to” is stretched to its limit. A seems far from Q, but Q seems close to P, which seemed close to O, which seemed close to N, and so on. As the licensors lose their place in that progression, they have no incentive to look back and consider whether they really should have made the leap from G to H.

But on the other side of the line, these incentives work the other way. It’s hard to get into a licensed profession, but Allensworth points out that it’s equally hard to get out. Focusing on the failure of medical boards to respond adequately to the opioid crisis, Allensworth narrates at length how licensing boards address bad acts of those already in the profession. With examples like a doctor whose pill mill wrote 164 opioid prescriptions a day, she demonstrates the laxity with which these boards dole out discipline. Take Dr. Thomas Ballard, who appeared before the Tennessee Medical Board for using his license to deal opioids and running a sex-for-drugs scheme with his patients. Federal prosecutors would later accuse him of moving 4.2 million pills. When he appeared before the Board, it found that his behavior was “unprofessional, dishonorable, and unethical.” Then it let him keep his license and full prescribing authority.

Admittedly, this is not a phenomenon I observed in my research. Texas, the State I chiefly focused on, incorporates Administrative Law Judges into decisions about the trade licenses that were the subject of my article. Perhaps that practice alleviates the concerns Allensworth raises about the lack of adjudicatory expertise on many licensing boards (but notably, Allensworth does include the story of one Dallas doctor who evaded discipline for years). Nonetheless, pointing out this phenomenon highlights the failure of the current licensing regime to protect public safety.

Combined with my work, Allensworth’s observations paint a licensing system that is broadly failing to protect public safety. At the admission stage, in the name of protecting the public licensing boards systematically exclude large swaths of the population based on their criminal histories. Far from protecting the public as the boards claim, such broad exclusions in fact increases the risk of crime while doing little to protect from rouge plumbers and electricians. Then at the discipline stage, when licensing boards are most directly able to protect from harms emanating from their professions, they fail to do so.

This discordance undermines any standing the boards have as guardians of the public. Perhaps, this discordance demonstrates the effect of the ratchet, always strengthening the positions of those inside while weakening the positions of everyone else. Whether or not that’s the case, Allensworth and I come to the same conclusion: It’s time for legislatures to step in to build a safer, saner system of professional licensing.

– Ian C. Stephens

Thanks to Mr. Stephens for his article and two posts. We appreciate and celebrate his good work, and wish him the best as he begins his career. – SEH