January 28, 2022

Utah's Barriers to Work for Those with Criminal Records

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Utah House Business and Labor Committee

Chair Ferry, Vice Chair Brooks, and distinguished members of the Utah House Business and Labor Committee:

My name is Matthew Mitchell. I am an economist at the Mercatus Center at George Mason University. For several years now, my colleagues and I have been studying occupational licensure and its effects on consumer prices, public health and safety, and the employment prospects of particular populations. As part of that project, my colleague Liya Palagashvili and I recently published a policy brief titled “Economic Freedom in the Period of Invisible Punishment: Occupational and Business Licensing Barriers That Restrict Access to Work for Those with Criminal Records.” I thought the brief might be useful to you as you debate the merits of easing occupational licensure restrictions for those with criminal records, and I have appended it to my testimony.

In addition, I would like to highlight a few salient facts:

  1. At 629 incarcerated persons per 100,000 residents, the United States locks up more of its citizens than any other country that faithfully reports its data (China, Eritrea, North Korea, and Somalia do not faithfully report their data). The US incarceration rate is higher than that of Rwanda (580 per 100,000), Turkmenistan (576), El Salvador (564), and Cuba (510); and it dwarfs the incarceration rates of other Western nations such as the United Kingdom (133), Canada (104), Greece (103), and Germany (71).
  2. The US incarceration rate dramatically understates the consequences of the US approach to criminal justice. Once an American steps outside of jail, he or she enters a period of “invisible punishment” in which governments deny him or her basic civil and economic liberties.
  3. Of particular concern for those hoping to reenter the workforce is that those with prior convictions or even arrests without conviction can be denied a license to work in the profession of their choosing or denied a license to start a business in the field of their choosing, even when the underlying offense is unrelated to the profession.
  4. In Utah state law, there are 305 limitations on “occupational and professional licensure and certification” and another 194 limitations on “business licensure and participation” for those with prior offenses. For example, any misdemeanor conviction is sufficient grounds for a Utah board to deny, suspend, or revoke a license to be a professional surveyor, and a controlled substances offense is sufficient grounds for a Utah board to deny someone a barber’s license. And—of note given today’s topic—any felony or misdemeanor is sufficient to allow a board to indefinitely deny, suspend, or revoke a license to be a social worker, a marriage and family therapist, a clinical mental health counselor, or a substance use disorder counselor.
  5. This problem is compounded by the fact that, although a small minority of Americans are currently incarcerated at any particular time, large numbers of Americans have had contact with the criminal justice system. About 66 million Americans have criminal records. Extrapolating to Utah, this means that some 650 thousand Utahns have a criminal record and may potentially be denied a license to work or to start a business in the state.
  6. These limitations on economic freedom explain, in part, the considerable evidence that the mark of a criminal record reduces employment prospects.
  7. Beyond the staggering personal costs for those with criminal records, occupational and business licensing barriers can have negative consequences for states at large because obtaining a job is one of the most important ways that formerly incarcerated individuals can get their lives back in order and avoid returning to prison.
  8. In the policy brief, we explain that there are several simple reforms that states can pursue to address this problem. For example, they could
    1. prohibit agencies from considering arrest records,
    2. prohibit agencies from considering old convictions or expunged records, or
    3. prevent agencies from using vague standards such as good moral character or moral turpitude.
  9. We also detail more ambitious reforms that will address the broader problem, including
    1. enactment of clean slate, expungement, or rehabilitation certificate laws;
    2. reform of negligent hiring laws; and
    3. passage of broader criminal justice reforms.

I hope that this information is helpful. Please know that I would be happy to answer any questions you might have about the research or about the experiences of other states.

Attachment

Economic Freedom in the Period of Invisible Punishment: Occupational and Business Licensing Barriers That Restrict Access to Work for Those with Criminal Records” (Mercatus Policy Brief)