People who have overcome drug or alcohol addiction often want to help others overcome addiction, too. Their firsthand experience can make them particularly well-suited to guide others through recovery.
Melissa Brown is one of those people. After struggling with drug addiction and run-ins with the law, Melissa got sober and turned her life around. Then she dedicated herself to helping others battle the same demons she’d beaten. She took hundreds of hours in coursework in addiction recovery, completed thousands of hours of supervised practice, then secured a job as a substance abuse counselor at a Virginia treatment facility.
Unbeknownst to Melissa, her career was illegal.
That’s because a Virginia law bans people with convictions for any of 176 “barrier crimes” from being employed in a “direct care” position, which includes substance abuse counselors. Generally, this permanent punishment applies no matter how old the conviction, how unrelated it is to substance abuse counseling, or how little it reflects the person’s fitness today. As a result, old mistakes still prevent many people who have overcome addiction themselves from counseling the people they are uniquely fit to help.
For Melissa, the ban meant that after half a decade of excellent work, Virginia sent her employer a letter saying that she was banned from working as a counselor—forever. Not because she wasn’t qualified: In fact, a different Virginia agency had granted Melissa a substance abuse counseling certification, and her work was so top-notch that her employer had just promoted her to lead counselor. Rather, Melisssa is banned because of an old criminal conviction: In 2001, she stole a purse to fund her addiction. The resulting robbery charge is what prompted her to get sober. In other words, Virginia is judging who Melissa was over two decades ago, instead of who she is today.
The U.S. Constitution protects Americans’ right to earn an honest living free from irrational government interference. Banning Melissa from working isn’t rational—it just deprives people battling addiction of a qualified, sympathetic counselor. That’s why Melissa teamed up with the Institute for Justice in a federal lawsuit challenging Virginia’s lifetime ban. A victory will vindicate a simple truth: No one should be denied the right to work because of irrelevant criminal convictions.
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The life Melissa overcame
Melissa’s childhood was traumatic and dysfunctional. Her run-ins with the legal system started early. As a teenager, she ran away from home with some of her parents’ cash. Her parents called the police in a bid to scare her straight, but things got worse before they got better. She got married at 17, and both she and her husband began abusing drugs. Melissa got sober while pregnant with her two children, but when she and her husband separated a few years later, her problems came back with a vengeance.
Soon, she began stealing to fund her addiction. In 2001, at age 27, she hit bottom. She stole cash from a grocery store to fund a drug binge. Days later, she stole a woman’s pocketbook and, again, seeking drug money, used the credit cards inside. When the dust settled, she pleaded guilty to larceny (for the grocery store theft), robbery (for stealing the purse), and possession of a controlled substance. She would serve just over eight years in prison.
Melissa turns her life around, then helps others do the same
That was, Melissa says, “another person” in “another life.” In March 2002—before she was sentenced—she vowed to get sober, and she’s maintained her sobriety ever since. Then she set herself on the right path while in prison. She applied herself in the various courses offered, she tutored other inmates studying for the GED, and she began her own college level studies in psychology. She maintained a clean disciplinary record, and her criminal record has been clean for over two decades.
After Melissa’s release in 2010, her children moved back in, and she went back to school. She completed a bachelor’s degree in psychology at the University of Mary Washington, graduating cum laude.
Melissa wanted to use her experience and education to help others overcome what she overcame. So she set out for a career as a substance abuse counselor. To get certified by the Virginia Board of Counseling, she completed over 200 more hours of coursework in addiction recovery, then worked through 2,000 hours of supervised substance abuse counseling practice. The Board of Counseling could have denied her certification based on her felony record, but it deemed her fit.
Virginia’s “barrier crime” law denies Melissa—and many others like her—the fresh starts they deserve
The Board was right. In October 2014, Melissa secured a substance abuse counseling job with a rehab center, helping people struggling with heroin. She had no idea Virginia banned people with criminal records like hers from being hired as substance abuse counselors. And—by sheer luck—the treatment facility that hired her didn’t understand the extent of the ban either. Melissa’s bosses knew about her record but mistakenly thought they could still hire her if she was classified as an independent contractor.
For the next four years, Melissa thrived. By 2018, she was promoted to supervisor of the center’s other counselors. But later that year, new management took over. After taking a closer look at the barrier law, they confirmed Melissa was banned from counseling even as a contractor. Because of her then-sixteen-year-old robbery conviction, they were forced to transfer Melissa to a non-“direct care” position.
Melissa is still dedicated to helping people struggling with addiction. Today, she works as Vice President of Marketing and Operations at another treatment facility in Dumfries, Va. And she still manages to help people informally by volunteering with a nonprofit in her spare time—which is not prohibited by the barrier law. But she sorely misses her career helping people directly every day, and her employer would gladly transfer her to a supervisory counseling position. But the barrier law prohibits that for the rest of Melissa’s life.
Yet Melissa’s services are sorely needed. Virginia’s Department of Health declared opioid addiction a public health emergency in 2016. Virginia’s governor has repeatedly described Virginia’s behavioral health system as in “crisis,” and his administration has a stated “objective[]” to “grow the Behavioral Health workforce pipeline” and “reduce administrative burdens that hinder care.” For its part, the agency tasked with enforcing the ban admits that people like Melissa can help solve the problem. In a public presentation, the agency’s Chief Human Resources Officer admitted that the ban excludes people “who can provide valuable services,” and that it worsens the “challenge[]” of meeting “growing behavioral health/development services workforce needs.”
Unfortunately, the problem goes far beyond Melissa. The ban blocks hundreds of people from working each year. One such person was former Institute for Justice client Rudy Carey. In 2021, Rudy teamed up with IJ to, like Melissa, challenge the ban in federal court. Before his case reached the merits, though, Governor Youngkin pardoned Rudy for the 2004 assault conviction that criminalized his counseling career. That removed the ban for Rudy, but it left the barrier law untouched for everyone else. As for Melissa, the barrier law is so draconian that even if her 2002 robbery conviction were pardoned, she would still be banned. That’s why she’s working with IJ to renew the challenge to Virginia’s barrier law in federal court.
Legal claims
The barrier crime ban violates Melissa’s constitutional rights in two ways.
First, the Equal Protection Clause prevents the government from irrationally treating similarly situated people differently. Melissa is one of many qualified would-be counselors, but the ban irrationally discriminates against her because of her decades-old conviction. Second, the Due Process Clause guards against government-imposed limits on the right to earn a living that are not rationally related to fitness to practice the occupation.
The barrier crime ban here is anything but rational. It includes crimes like carelessly damaging property by fire and misusing laser pointers that have nothing to do with counseling. It lumps people together without allowing for consideration of individual circumstances or rehabilitation. In almost all cases, it irrationally ignores the research showing that the chance of reoffending decreases over time after a conviction. And it ignores that the state has separate authority to deny certification whenever it thinks an applicant’s criminal record is inappropriate. That’s unconstitutional.
Case team
Melissa is represented by IJ Attorneys Andrew Ward and Mike Greenberg.
IJ’s fight for a fresh start
This case is part of IJ’s fight against laws that keep people with convictions from earning an honest living. One in three Americans has a criminal record, and they need to support themselves. Yet, nationwide, there are tens of thousands of laws that make it harder for people with criminal histories to take their first steps on the economic ladder. Thankfully, there is a growing consensus across the political spectrum that harsh restrictions like this aren’t working. Permanent punishment shouldn’t be the default. People change, and when they do, they deserve a fresh start.
Still, far too many of these permanent punishment laws remain on the books. IJ—a nonprofit, public-interest law firm—is the national law firm for liberty, and it has been protecting the right to work from unreasonable government restrictions for three decades. As part of that mission, IJ is leading the charge against permanent punishment laws on multiple fronts. In Pennsylvania, IJ won its challenge to a law requiring would-be cosmetologists to prove they had “good moral character” to work in skincare. In Tennessee, IJ stopped the FCC from revoking the broadcast license of Knoxville’s only black-owned radio station because of the owner’s misstatement on his personal tax papers a decade earlier. And in Maryland, IJ halted a USDA regulation banning retail store owners with convictions related to alcohol, drugs, or firearms from accepting SNAP payments.
Beyond litigation, IJ’s legislative team has released the most up-to-date survey of occupational licensing barriers for people with criminal histories; developed a model “Collateral Consequences in Occupational Licensing Act”; and helped pass reforms in Minnesota, Ohio, South Carolina, and other states.
