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Aspiring Addiction Counselor Sues to End Virginia’s Past-Conviction Discrimination

People who have overcome drug or alcohol addiction often want to help others overcome addiction, too. Their first-hand experience can make them particularly well-suited to guide others through recovery.

Rudy Carey is one of those people. After a long battle with drug and alcohol addiction, in 2007, Rudy completed rehab and turned his life around. Then he got married, completed hundreds of hours of coursework and training in substance-abuse counseling, and started a career as a counselor at a Fredericksburg, Virginia treatment facility.

Unbeknownst to Rudy, his career was illegal.

That’s because Virginia bans people with convictions for any of 176 “barrier crimes” from being employed in a “direct care” position, which includes substance-abuse counselors. Generally, the ban 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 Rudy, the ban meant that after five years of excellent work, Virginia sent his employer a letter saying that he was banned from working as a substance-abuse counselor there—or anywhere else in the commonwealth—forever. Not because he wasn’t qualified: Rudy’s clients loved his work. Rather, Virginia banned Rudy from counseling because of a single assault conviction from 2004—well before he turned his life around. In other words, Virginia is judging who Rudy was nearly two decades ago. It should be judging who he is today.

The U.S. Constitution protects Americans’ right to earn an honest living free from irrational government interference. Banning Rudy from working isn’t rational—it just deprives people battling addiction of a qualified, sympathetic counselor. That’s why Rudy has teamed up with the Institute for Justice to file a federal lawsuit challenging Virginia’s lifetime ban. A victory will vindicate a simple truth: that no one should be denied the right to work because of irrelevant criminal convictions.

Virginia Fresh Start

Date Filed

September 28, 2021

Original Court

U.S. District Court for the Eastern District of Virginia

Current Court

U.S. District Court for the Eastern District of Virginia

Case Status

Open

Attorneys

Media Contact

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Case Team

Timeline and Case Documents

The life Rudy overcame

Rudy had a rough early adulthood. Just after he turned 18, his father—who raised him alone—was in a car accident, and Rudy had to make the gut-wrenching decision to take him off life support.

Largely because of that difficult experience, Rudy developed a dependence on drugs and alcohol. From 1991 through 2007, Rudy’s life consisted of abusing drugs and trying to fund his habits. He was convicted of theft and driving on a suspended license several times during those years, and he served time in prison.

The “barrier crime” happened in August 2004. While driving to buy drugs, Rudy was pulled over for a broken taillight. As an officer wrote him a ticket, Rudy gave a fake name and social security number. The officer moved to arrest him for forging a public record, and Rudy, desperate for drugs, tried to run away. In doing so, he struck the officer who was trying to handcuff him.

When the dust settled, Rudy was convicted of driving on a suspended license, forging a public record, and assault and battery on an official. He was sentenced to prison again, this time for three years. He didn’t know then that his three-year sentence would ultimately last him a lifetime.

Rudy turns his life around, then helps others do the same

Rudy left prison in 2007, and he knew he wouldn’t go back. With help from his probation officer, he entered an inpatient rehab program. Thanks to support from his counselors and other patients, he completed the program a few months later. He’s been sober ever since.

After getting sober, Rudy thrived. He met the woman who would soon become his wife. He reconnected with his children, and three of them moved in with him. He worked hard hours in fast food and quickly became a manager at McDonald’s.

Having reformed himself, Rudy wanted to dedicate his life to helping others going through hard times. He started by finding work as a case manager at a homeless shelter. Then he began running a church service in jail twice a week and speaking to teenagers in juvenile detention. He became a leader at his local twelve-step group and beyond; he was even invited to speak at drug courts and at twelve-step meetings all over the country. Those experiences inspired Rudy to make substance-abuse counseling his career. He then completed more than 200 college credit-hours in counseling and rehabilitation and sought a job at a treatment facility.

Virginia’s “barrier crime” statute denies Rudy—and many others like him—the fresh start they deserve

Rudy didn’t know that Virginia law banned people with criminal records like his from working as substance-abuse counselors. And—by sheer luck—the treatment facility that wanted to hire him didn’t understand the extent of the ban either. Rudy’s bosses knew about his record but mistakenly thought they could still hire Rudy as an independent contractor. So they brought Rudy on as a counselor.

For the next four-plus years, Rudy shined. At times, he had caseloads as high as 60 clients, and he won the facility’s “counselor of the year” award. But then new management took over, and they confirmed that Rudy could not work even as a contractor. Because of the 2004 assault conviction, the facility reluctantly let Rudy go.

Today, Rudy’s former supervisor said she would hire him again “in a heartbeat” if she could. But rather than use his valuable experience to help others overcome addiction, Rudy had to change careers to support his family.

Rudy now works long days away from home as a truck driver. He still manages to help others by serving as a pastor at his church on the weekends. But he misses his career in counseling.

And Rudy is hardly alone. The ban blocks hundreds of people from working each year. The Chief Human Resources Officer for the state agency charged with enforcing it has publicly admitted that it excludes people “who can provide valuable services,” and that it worsens the “challenge[]” of meeting “growing behavioral health/development services workforce needs.” There are many qualified people eager to provide those services, and Virginia has even certified some of them as qualified. But because of the “barrier crime” law, they are still banned for life from actually working as counselors. Nothing they have done, or ever will do, can change that.

That’s why Rudy sued.

Legal claims

The barrier-crime ban violates the constitutional rights of aspiring substance-abuse counselors like Rudy in two ways.

First, the Equal Protection Clause prevents the government from irrationally treating similarly situated people differently. Rudy is one of many qualified would-be counselors, but the ban irrationally discriminates against him based on criminal history. 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 irrationally includes crimes like reckless boat driving and misusing laser pointers that have nothing to do with counseling. It irrationally 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 irrationally ignores that has the state has separate authority to deny certification whenever it thinks an applicant’s criminal record is inappropriate. That’s unconstitutional.

The case team

Rudy is represented by IJ Attorney Andrew Ward and IJ Law and Liberty Fellow Mike Greenberg.

IJ’s fight for a fresh start

This case is part of the Institute for Justice’s fight against laws that keep re-entering citizens from earning an honest living. One in three Americans has a criminal record, and they need to be able 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 2020, IJ won its challenge to a Pennsylvania law that required would-be cosmetologists to prove they had “good moral character” to work in skincare. IJ is also challenging a California regulation barring people with felony convictions from working as fulltime firefighters—even though California teaches and uses those same people to fight wildfires while they are incarcerated.

IJ’s legislative team has also released the most up-to-date survey of occupational licensing barriers for people with criminal histories. Using ten criteria, the report grades all 50 states and the District of Columbia on their legal protections for people with criminal records seeking occupational licensure.

IJ’s legislative team has also developed a model “Collateral Consequences in Occupational Licensing Act” that:

  • Ensures government can deny licenses and certifications only when convictions are directly related to the occupation;
  • Places the burden on the government to explain why a person with a criminal conviction should be unable to work; and
  • Allows potential licensees to ask the government at any time—including before investing in training—whether they will be disqualified because of their criminal records.

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