Victory In Virginia! Court Holds Lifetime Ban Unconstitutional In IJ’s Fifth Win For Fresh Starts

In a training at the end of September, I told a group of new IJ lawyers that there’s perhaps nothing more fulfilling than our economic liberty work. That’s because even though we litigate these cases under the hardest standard in constitutional law, we win anyway, allowing our clients a chance to do the work that makes their lives meaningful. A chance the government had no business taking away.

Six days later, on September 30, I learned we’d climbed that mountain again. Regular Liberty & Law readers know about IJ’s “Fresh Start” cases, which challenge laws that stop people from working because of irrelevant criminal convictions. We’ve saved a beloved radio station in Tennessee, stopped a draconian regime for estheticians in Pennsylvania, and more. This time we challenged Virginia’s “barrier law,” which bans people with any of 176 convictions from working as substance abuse counselors—usually for life.

But as the state itself admits, that makes drug abuse worse. 

Take our client, Melissa Brown. Seeking money for drugs, she snatched a stranger’s purse and was convicted of robbery. Twenty-four years ago. Since then, she’s turned her life around and dedicated herself to helping others overcome the same struggles she had. She trained for thousands of hours. Virginia even certified her as fit to be a substance abuse counselor. But the state still permanently banned her from working in that role because of a nonviolent robbery committed early in the second Bush administration. Even while admitting that there’s a “huge” shortage of counselors and that the law is keeping out people with “invaluable” experience.

So IJ sued. We won a first-round victory in June of last year, when the court denied Virginia’s request to dismiss because the test governing economic liberty cases “must mean something beyond absolute deference to the legislature.” After that, the evidence against the law came rushing in. We learned that even though Melissa was banned forever because of a robbery, the state was allowing people with identical stories to work despite convictions for burglary. We found a state presentation admitting that “everyone” wanted things to change. We even got an official to admit that enforcing the ban against Melissa was “crazy.”

And now a federal court has agreed. It granted judgment in our favor, ruling that “there can be no harm in providing [Melissa] with an individualized screening assessment, especially given the ‘huge workforce shortage’ and urgent need.” That’s the same screening the state allows for people convicted of burglary, and we have no doubt that Melissa will pass: A state screener appeared in the case as a witness for us.

IJ’s Fresh Start record now stands at 5-1. And we’re not going to stop. We’re defending Melissa’s victory against an appeal recently filed by the government. Meanwhile, Melissa’s second chance is still a first step. The judgment applies only to her, so the law still bars hundreds of qualified people every year because of decades-old crimes. Maybe Melissa’s case can finally convince Virginia that things do need to change. If not, armed with this great new precedent, we’ll be back in court.

Andrew Ward is an IJ senior attorney.