J. Justin Wilson
J. Justin Wilson · September 29, 2021

By all accounts, Rudy Carey had a hard childhood. When he was 18, his father—who raised him alone—was in a car accident. Rudy was forced to make the gut-wrenching decision to take him off life support. Like so many others faced with trauma, Carey turned to drugs and alcohol, which, in turn, led to a few stints in prison. That was decades ago.

But now, nearly 15 years later, Rudy’s past indiscretions continue to haunt him. After getting out of prison, getting married, and turning his life around, Rudy decided to dedicate his life to helping others going through the same struggles he’d overcome himself. He started working as a case manager at a homeless shelter, and then, after completing 200 credit-hours, Rudy became a substance-abuse counselor. For five years he worked as a counselor, helping others struggling with the addictions he’d kicked many years ago.

But his new-found career fell apart in 2018, when the facility was sold and the state sent a letter saying that he was banned from working as a substance-abuse counselor there—or anywhere else in the commonwealth—forever. Against his managers’ wishes, they had to let him go. Today he works as a long-haul truck driver.

But Rudy hasn’t given up on his calling. Today, he partnered with the Institute for Justice (IJ)—a nonprofit public interest law firm—to sue the state for his right to work. Rudy’s lawsuit seeks to put an end to Virginia’s unconstitutional “permanent punishment” law that prevents Virginians from working in a long list of professions because of irrelevant past criminal convictions.

“People change—Rudy’s changed,” said Andrew Ward, an attorney at the Institute for Justice, which represents Rudy. “And yet, Virginia is punishing him for what he once was, not what he’s become. People like Rudy are often the best suited to help others struggling with addiction, and yet, Virginia permanently bars them from trying to help others change their lives.”

Rudy is a victim of Virginia’s so-called “barrier crime laws,” which ban people with convictions for any of 176 “barrier crimes” from being employed in a “direct care” position, which includes substance-abuse counselors. In Rudy’s case, he was convicted of hitting a police officer in 2004. During a traffic stop, a scuffle ensued and he inadvertently struck the officer. In Rudy’s case, as is the case 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, like Rudy’s, still prevent many people who have overcome addiction themselves from counseling the people they are uniquely fit to help.

“This lawsuit isn’t about me,” said Rudy Carey. “I filed this lawsuit to help everyone like me who wants to give back to the community that helped them turn their life around. I just don’t understand why Virginia punishes the people that are best equipped to help one another.”

Even the Virginia Department of Behavioral Health and Development Services, the agency tasked with enforcing the law, agrees that it is shortsighted, writing that the state’s barrier crime law makes hiring qualified individuals “challenging,” and that “many have lived experience, or first-hand experience with mental health or substance use challenges, which can be an invaluable in the provision of services and essential to the growth of peer services.”

“Banning Rudy from working doesn’t protect the public,” said IJ Attorney Michael Greenberg. “It deprives people battling addiction of a qualified counselor, and deprives those counselors of earning an honest living doing something they love. Virginia’s permanent punishment policy isn’t just irrational, its unconstitutional.”

The federal lawsuit challenges Virginia’s ban, as applied to substance-abuse counselors, under the Fourteenth Amendment of the U.S. Constitution. Under both the Equal Protection clause and the Due Process clause, laws preventing people from working must be related to fitness to practice the occupation. Virginia’s lifetime ban, the lawsuit argues, is simply too broad to pass muster.

The Institute for Justice is a nonprofit, public interest law firm that stands up for Americans’ right to earn an honest living. One in three Americans has a criminal record, and they have a right 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 to prosperity.

IJ is leading the charge against permanent punishment laws across the country. 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.