Tag: Wolf

Pennsylvania expands access to 255 licensed occupations for people with a record

On July 1, Pennsylvania Governor Tom Wolf signed into law an expansive new regulation of the state’s occupational licensing process, giving the agencies that control access to 255 occupations detailed new standards for considering criminal records in the licensing process.  Pennsylvania has not addressed these issues on a state-wide basis since the 1970’s, and with proper implementation the new law promises a path to the middle class for skilled individuals whose career prospects might otherwise be limited. While Pennsylvania’s law is by far the most ambitious one of its kind passed this year, five other states have also passed laws since the beginning of 2020 regulating consideration of criminal record in occupational licensing.  Two were states that previously had no general law governing this issue (Idaho and Missouri) and three were states that extended laws passed in recent years (Iowa, Utah and West Virginia). Pennsylvania’s new law is analyzed in detail below.  The provisions of the other five states’ new licensing laws are summarized briefly at the end of the post, and the laws of all six states are written up in greater detail in the relevant state profiles in the Restoration of Rights Project. Pennsylvania’s new occupational licensing law Pennsylvania’s new law (SB637) is very strong substantively.  To summarize, it supersedes provisions in existing law that provide for “good moral character” criteria for certain licenses, as well as laws that mandate disqualification, including 10-year bars that apply in numerous health-related licensing schemes.  It requires each licensing agency to identify offenses that may be disqualifying as “directly related” to the occupation, pursuant to a notice-and-comment rule-making process.  If an offense is not considered “directly related,” the new law mandates an individualized assessment of each applicant pursuant to detailed criteria that emphasize public safety.  It gives individuals recently released from prison a chance to demonstrate their abilities through offering “restricted” licenses to those who cannot immediately demonstrate fitness under the law’s new standards.  Finally, it expands the category of records that may not be considered to include convictions that are subject to an order of “limited access.”  At the same time, unlike recent licensing reforms in some other states, it does not rule out consideration of dated or minor convictions. The new law is not as strong from a procedural standpoint as some other recent licensing reforms, and its due process provisions are not well-developed.  For example, it does not require licensing agencies to defend record-related denials with written reasons, nor does it provide for an administrative appeal, so that applicants who have been denied a license must seek redress in the courts through the state’s administrative procedure act.  In this respect, disappointed applicants seeking to  challenge an agency decision are in no better position under this 2020 law than disappointed applicants for employment under Pennsylvania’s 1980 law, which also has strong standards but no enforcement mechanism. It is possible that the legislature decided to wait to see how licensing agencies perform under the new substantive criteria before imposing new procedural requirements.  As an interim accountability measure, the new law includes a requirement that each agency make detailed statistical reports to the legislature after two years.  If the agencies proceed with good will to implement the new criteria, many individuals previously excluded should benefit. As background, in 2017 Governor Tom Wolf directed the Bureau of Professional and Occupational Affairs (BPOA) in the Department of State to study several licensing-related issues in Pennsylvania, including how licensees are disciplined, how licenses from other jurisdictions are considered, and how a criminal record operates to deny many licenses either by operation of law or because of unaccountable discretionary decisions.  The resulting report (Review of State Occupational and Professional Licensure Board Requirements) found a number of flaws in how people with criminal records are treated in the licensing process: Criminal history bans also vary from board to board, with significant bans set in statute for most healthcare-related occupations. Lastly, the requirement to demonstrate “good moral character” is loosely defined and while this administration has provided guidance through policy statements regarding the use and review of criminal histories there is the potential for it to be applied unevenly across boards. The governor and administration officials should examine the impact of criminal history bans and “good moral character” requirements on ensuring Pennsylvania residents are able to engage in the workforce without unnecessary barriers. The report found that, particularly with respect to health-related licenses, “[a]mong the regional comparison group, Pennsylvania is an outlier in applying an automatic criminal history licensure ban.”  See report at p. 25, also listing professions that have a 10-year bar.  The report made a number of recommendations which provided new organization for the 29 agencies and commissions that regulate 255 licensure types, a single disciplinary structure, and licensure by endorsement for people with out-of-state licenses.  Most importantly for our purposes, the report made a number of recommendations related to criminal records that two years later have now made their way into SB637. The new law applies to the 29 licensing agencies under BPOA jurisdiction, and includes architects, pharmacists, veterinarians, podiatrists, psychologists, physicians, nurses, barbers and cosmetologists, occupational therapists, nail technicians, and engineers.  Building trades requiring a license, teachers, and lawyers are not covered. Under preexisting law, licensing agencies “may consider convictions of the applicant of crimes but the convictions shall not preclude the issuance of a license, certificate, registration or permit.” 18 Pa. Cons. Stat. § 9124(a).  Licensing agencies may not consider records of arrest if there was no conviction of a crime based on the arrest; convictions which have been annulled or expunged; convictions of a summary offense; convictions for which the individual had received a pardon from the Governor; or “convictions which do not relate to the applicant’s suitability for the license, certificate, registration or permit.”  § 9124(b)(2).  Agencies are free to suspend or revoke a license because of a felony conviction, or where the applicant was convicted of “a misdemeanor which relates to the trade, occupation or profession for which the license, certificate, registration or permit is sought.”  § 9124(c). SB637 established in Title 63 of the Pennsylvania statutes a new Chapter 31 to establish standards for consideration of criminal record in licensing.  The new law amends existing § 9124(a) to add to records that may not be considered any that have been made subject to limited access, including by the state’s automated “clean slate” process.  It also specifically supersedes any other provision of law that disqualifies an individual for a license or provides for “good moral character” findings.  § 3113(a).  It then establishes in §§ 3113(b) and (c) an elaborate two-stage inquiry to determine qualification for licensure: First, the agency must determine, considering a list of potentially disqualifying crimes developed through a notice-and-comment process under § 3117, whether there is a “direct relationship” between the applicant’s criminal record and the profession. (“Direct relationship is defined in § 3102 as having “a direct bearing on the fitness or bearing on the fitness or ability to perform one or more of the duties of responsibility necessarily related to the profession trade or occupation”).  § 3113(b) Second, if there is not such a direct relationship, the agency must make an “individualized assessment” as to whether licensing the individual would pose a public safety risk, as determined under a long list of specified factors.  § 3113(c). Section 3113(d) makes clear that those convicted of sexual offenses may not qualify for health-related licenses, and § 3113(e) establishes a separate test for offenses involving violence. Additional features of the new law: § 3114 prohibits consideration of juvenile adjudications (this is in addition to the various exclusions in § 9124(a) above for non-conviction records, and records of convictions that have been expunged or sealed); § 3112 authorizes restricted licenses for applicants who cannot immediately demonstrate fitness due to a criminal conviction, §§ 3112 (barbers and cosmetologists) and 3112.1 (all other occupations), with various standards for demonstrating “fitness” that relate to conduct in prison and supervision, and “a commitment to living a law-abiding life,” §§ 3112(B) and 3112.1(B); § 3115 provides for a “preliminary determination” for applicants considering undergoing training for a license, which is binding unless the crime is one on the list of crimes “directly related,” in which case it may be subject to further inquiry when a formal application is filed; § 3116 provides for issuance of a best practices guide; § 3117 provides for a process (involving the business community as well as the boards) for identifying crimes that will be presumptively considered “directly related” for each profession, and for publishing them for public comment. Section 3118 provides for a report to the legislature within two years by the Secretary of the Commonwealth on the implementation of each section of the act, and statistical report on applications received, granted and denied under each section of the act.  Effective date: Sections 3112 through 3115 are effective at end of 2020, the rest are effective immediately. Other new occupational licensing laws enacted in 2020 Idaho: As of 2020, licensing agencies must determine whether a person’s criminal record is “currently relevant to the applicant’s fitness” to engage in the occupation, using a multi-factor test; vague terms like “moral character” are prohibited.  Individuals may apply for a non-binding preliminary determination. SB1351 Iowa: A 2020 general licensing law enacted a direct relationship standard, defined rehabilitation broadly (and presumed it after 5 years for most crimes), provided for a preliminary determination, and provided for strong due process protections.   HF2627.  Previously, the only licenses for which consideration of criminal records was limited were in trades taught in the state’s prisons (e.g., electrician, plumber, mechanical, contractor, and barbering licenses). Missouri: The 2020 Fresh Start Act requires licensing agencies to apply a “direct relationship” standard, and provides that they may not deny a license “solely” because an applicant has a felony conviction.  Licensing agencies may consider a conviction “some evidence of an absence of good moral character,” but they must also consider the nature and date of the crime, as well as conduct after the conviction.  A license may not be denied “primarily” because of a conviction that was pardoned, and expunged records may be grounds for denial of some licenses involving sensitive employment.  HB2046. Utah: An occupational licensing agency may not disqualify based on conviction unless it is “substantially related” to the occupation, and applicants must be given individualized consideration pursuant to a multi-factor test, with an appeal in the event of denial.  Non-convictions, and most convictions after seven conviction-free years may not be considered.  Potential applicants may apply for a preliminary determination as to whether their criminal history will be disqualifying.  SB201. West Virginia: Licensing agencies may not disqualify an applicant because of a conviction unless it has a “rational nexus” to the desired occupation, determined by specified standards including seriousness of crime, passage of time, and evidence of rehabilitation.  Agencies are not required to give reasons for denial, but they are authorized to give potential candidates a preliminary determination respecting likely disqualification.  An applicant who is denied licensure may reapply after 5 years (with violent and sexual crimes subject to a longer period). HR4352, HR4353. Read more

Report card on licensing laws finds progress, but still a way to go

The Institute for Justice, a leader in advocacy for reforming occupational licensing laws, has just issued a major new report grading the states on the opportunities they give to people with a criminal record.  The press release and links are below.  We are not at all surprised that Indiana got the best grade—or that so many states “tied for dead last.” Coincidentally, the legislatures in Iowa, Missouri, and Pennsylvania have in recent days sent broad new occupational licensing reform measures to their governors’ desks, so at least three states seem poised to climb out of IJ’s basement.     Stay tuned for an update of our own survey of employment and licensing laws nationwide, which will be part of the revised Forgiving and Forgetting report that we expect to issue in a few weeks.  In the meantime, many congratulations to IJ for its pioneering law reform work on behalf of people with a record. IJ press release: Barred from Working: People with Criminal Records Are Unfairly Denied Licenses to Work New Nationwide Report Offers the Most Comprehensive Look at the Occupational Licensing Barriers Facing Ex-Offenders Arlington, Va.—Even as states debate opening the economy back up, millions of Americans with criminal records are still locked out of the job market. Today, nearly one in five workers needs a license to work, while one in three Americans has a criminal record of some kind. Providing the most in-depth and up-to-date look at this intersection between occupational licensing and the criminal-justice system, a new report from the Institute for Justice (IJ), Barred from Working, analyzes and grades the legal protections offered to ex-offenders who apply for licenses to work. Many state laws fail to make the grade: just nine states received a B- or better. Indiana ranked as the best state in the nation, earning the report’s only A grade. Meanwhile, six states—Alabama, Alaska, Nevada, Rhode Island, South Dakota, and Vermont—all tied for dead last due to their utter lack of protections for former felons seeking licenses. “An honest living is one of the best ways to prevent re-offending. But strict occupational licensing requirements make it harder for ex-offenders to find work,” said IJ Legislative Analyst Nick Sibilla, who authored the report. “Undoubtedly, some license restrictions make sense: No one wants child molesters working in daycare centers or school bus drivers with DUIs. But as this report shows, many licensing barriers have little basis in common sense or public safety and unfairly deny a fresh start to countless Americans.” Grading all 50 states and the District of Columbia across 10 different criteria, Barred from Working identifies numerous methods that states use to block licenses to otherwise qualified individuals: Nine states let boards disqualify applicants on the basis of any felony, even if it’s completely unrelated to the job at hand. In 21 states, boards are free to deny licenses without ever considering whether an applicant has been rehabilitated. In more than 30 states, applicants with criminal convictions can be denied licenses based on their perceived “good moral character” or “moral turpitude,” vague terms that let boards act capriciously. For instance, IJ is currently challenging a Pennsylvania law that requires “good moral character” for licensed cosmetologists, but not for licensed barbers. Boards in 34 states can disqualify applicants for past arrests that didn’t result in a conviction, a practice that subverts the presumption of innocence. Ex-offenders also face a staggering lack of due process during the application process. In 12 states, applicants have no guaranteed right to appeal a board’s decision, nor are boards required to issue their decisions in writing. And just two states—Indiana and Mississippi—expressly require licensing boards to bear the burden of proof when considering if an applicant’s criminal record is “directly related” to the license at hand. Barred from Working is the latest salvo in IJ’s fight for second chances. On Friday, IJ filed a lawsuit on behalf of Dario Gurrola, who first fought fires at a juvenile-detention fire camp in California, but can’t work as a full-time firefighter because of his criminal record.  Last month, IJ submitted comments to the Small Business Administration, urging that it drop criteria that unfairly excluded many entrepreneurs with criminal records from Covid-19 loan relief; some of those rules have since been loosened. IJ has also developed model legislation to eliminate licensing barriers for people with a record and helped secure recent reforms in Arizona, Nebraska, New Hampshire, North Carolina, Idaho, and Utah. Nationwide, 30 states have enacted reforms since 2015, with further reforms pending in six states. Read more

PA’s new pardon chief was just pardoned himself

Freed from prison nine years ago, Brandon Flood is new secretary of Pa.’s pardon board Philadelphia Inquirer, April 7, 2019 by Will Bunch This column will probably come as something of a shock to all the people in Harrisburg who only know Brandon Flood – a bow-tied, bespectacled policy wonk with sartorial flair – as the persona that he laughingly calls “Urkel Brandon,” in a homage to one of TV’s most famous nerds. Flood, now 36, readily admits most folks who know him from nearly a decade as a legislative aide or lobbyist will be shocked to learn of his past that includes boot camp for juvenile offenders, a physical scuffle with Harrisburg’s then-police chief, and finally felony convictions and two lengthy prison stints for dealing crack cocaine and carrying an unlicensed gun. But starting last week, Flood’s turnaround saga has become a talking point and a mission statement for his new job as secretary of the five-member Pennsylvania Board of Pardons – anchoring one leg of a broader push in Harrisburg for criminal justice reform, aimed at giving more convicted felons a chance for clemency or to wipe their slate clean with a pardon. What makes Flood’s appointment even more remarkable is that – to steal a phrase from TV infomercial lore – he’s not just Pennsylvania’s new top pardons administrator, he’s also a client. Gov. Wolf signed off on Flood’s own board-approved pardon, erasing his past convictions, just a few weeks before Flood stepped in as secretary. Taking a break last Monday during his first day on the job for a sit-down interview, the soft-spoken Flood said a number of new initiatives – to not only call attention to Pennsylvania’s pardon process but also to make it easier to apply for one – will hopefully show former inmates that the state is more focused on rewarding good post-prison behavior. “If they see this [a pardon] as a viable option, they will continue to be productive citizens,” Flood said, who plans to use his own story as a powerful example of that. “They will see there’s a light at the end of the tunnel.” Flood’s hiring was the brainchild of Pennsylvania’s new lieutenant governor, John Fetterman. Policy-oriented, progressive and looking for areas where he can make a difference in the oft-neglected No. 2 slot, the burly, black-shirted Braddock ex-mayor has honed in on his designated role as chairman of the Board of Pardons. Fetterman told me that Flood is “a singularly unique person to have in order help remake the process … which is only the only remedy for anyone in Pennsylvania who wants to move forward with their lives in this way.” Flood’s arrival helps mark the beginning of one era in Pennsylvania criminal justice and arguably the end of another. It was exactly 25 years ago that a convicted murderer named Reginald McFadden was granted his freedom by a Board of Pardons led by then-Democratic Lt. Gov. Mark Singel, who was also running for governor that year. McFadden almost immediately killed two people and raped a third, and the case, with its overtones of the infamous Willie Horton affair, was cited by experts as a reason for Singel’s defeat that fall. The political fallout dramatically changed Pennsylvania’s pardon math. Critics (including the man Fetterman ousted in a 2018 primary, ex-Lt. Gov. Mike Stack) came to say that the state’s pardon system was “broken” in an era of skyrocketing mass incarceration. Commutations of life sentences ground to a virtual halt, post-McFadden, while pardons for lesser crimes slowed as long backlogs and a confusing process discouraged applicants. Brandon Flood doesn’t need any schooling on the era of harsh justice in Pennsylvania. He was on the front lines. Growing up in Harrisburg, Flood said he and some buddies started selling marijuana as a way to make a quick buck or two when he was just 13, and within a couple of years he’d moved on to dealing crack cocaine when the highly addictive rock was at its peak. His story crushes many of the cliches about young urban crime – especially the one about absent fathers. Flood’s father (who died in 2010) was an ex-military man and college-educated government accountant raising him and two sisters as a single dad. A self-described “iconoclast,” Flood thinks he turned to the street to rebel against his straight-arrow upbringing. “I was trying to take the easy route,” he said of his youthful forays into drug dealing, although his first arrest at age 15 had nothing to do with dope. Police were making a habit of stopping by Harrisburg’s John Harris High School – even the then-chief Charles Kellar. Flood says Kellar demanded that the then-teen remove his coat, but he refused and ended up in a tussle with the lawman, taken to the police station and booked. Flood’s problems with the law accelerated. He did the state’s four-month boot camp and ultimately earned his high school degree at the Abraxas youth-detention program in Marienville, Pa. He was arrested for dealing drugs at 18, turned down a plea deal and sent away for four years – only to get arrested again at 22 for the unlicensed firearm as well for selling crack again. It was just as hard to reconcile the mild-mannered accountant’s son with the street life then as it is now. “When I was involved in criminal activity, even some of the addicts – in the throes of their addiction – would say to me, ‘Why are you out here?’” Flood recalled. Nonetheless, with his two adult felony convictions by the age of 22, his mindset as he ended up an inmate at the state correctional facility in Chester was that he’d chosen his life’s career: Criminal. Instead, Flood credits the atmosphere at the Chester site — with college-level courses and a spirit of reform advocacy — with helping the “iconoclast” to pull a complete 180-degree turn during his final five years of incarceration, Once shy, he found a voice moderating events on criminal-justice issues and editing the prison newsletter. He said he gained special inspiration from reading The Autobiography of Malcolm X. Flood explained that the book’s power wasn’t so much spiritual as “just understanding how systems work and understanding where the true levers of power are located.” That meant returning to Harrisburg after his freedom and looking toward a career in politics. Like for so many returning prisoners, it wasn’t easy at first. He said the Pennsylvania Higher Education Assistance Agency (PHEAA) interviewed him three times before getting cold feet over the gun charge on his record. But he was able to get work as a legislative aide with help from two Philadelphia then-lawmakers, Frank Oliver Sr. and Vanessa Lowery Brown, who eventually helped make Flood legislative director of the Pennsylvania Legislature Black Caucus. He later did lobbying work for the SEIU labor union and the NAACP, making friends all over the capitol. One was former pardons secretary Mavis Nimoh — who badgered Flood to apply for one himself. Like other Pennsylvanians, Flood – despite his newfound insider status – found the pardon process hard to navigate. He said he screwed up the application the first time. Ultimately, the process – including the public review by the full board last fall – took about three years until it was approved and signed by Wolf in early March. By then, Flood was already talking to the new lieutenant governor Fetterman about taking over as secretary, which means overseeing the pardon board’s day-to-day operations and its small staff of five people. Flood — today a father with two sons of his own — is making $89,000 a year in the position. For Fetterman, who hails his close working relationship with Wolf on criminal justice reform, Flood’s hiring is symbolic of both down-to-earth pardon reforms — a $63 application fee was eliminated last month, and the board is looking to digitize the application process and possibly open satellite offices in Philadelphia and Pittsburgh and eventually elsewhere — and a bold new attitude. In December, Wolf granted board-recommended clemency to three life-sentenced inmates — after only signing two in his first 47 months in office. Fetterman, who’s currently on an all-67-county tour to discuss the possibility of legalizing marijuana, also said he wants a task force to look at granting widespread pardons for past pot-related convictions. “These are simple charges that are damning people’s career possibilities,” he said. What the lieutenant governor and Flood are suggesting is not so much a complete reversal from the post-McFadden clampdown as creating more chances and more incentives for more Pennsylvanians to seek state-sanctioned redemption. “People shouldn’t look at this as opening the floodgate, no pun intended,” Flood said. He cited his good working relationship with Pennsylvania’s victim advocate, Jennifer Storm. But Flood also expressed his hope that a more accessible pardon process could help Pennsylvania show the rest of the nation a pathway toward creating more comeback stories like his own. “We need to be smarter on crime – on what works as opposed to what makes for a better soundbite,” he said. “The climate is certainly ripe for that.” Read more