Andrew Wimer
Andrew Wimer · August 2, 2022

ARLINGTON, Va.—How long must Rudy Carey wait before a court will hear his challenge to a law that unconstitutionally keeps him from working as a drug counselor? According to a recent ruling: indefinitely. Last fall, working with the Institute for Justice (IJ), Rudy sued to put an end to an unconstitutional “permanent punishment” law that prevents Virginians from working as substance-abuse counselors because of old criminal convictions. Rudy will appeal the dismissal of his case since no one should have to wait forever to vindicate their rights.

“The court said Rudy isn’t injured enough to sue because there’s some theoretical chance of a pardon,” said IJ Attorney Andrew Ward. “That’s wrong. Rudy is barred from working today because of an 18-year-old conviction that has nothing to do with counseling. He deserves his day in court.”

More than three years ago, Rudy sought a pardon from Virginia for an assault he committed nearly two decades ago while he was addicted to drugs and alcohol. Though Rudy trained to become a drug counselor, that conviction permanently prevents him from working in Virginia. U.S. District Court Judge Liam O’Grady decided that the possibility of a pardon prevents him from challenging the law, even though the governor of Virginia has not committed to ruling on his application any time soon.

“My lawsuit was never just about me. It was always about the many people prevented from giving back to their community,” said Rudy. “I hope that my appeal can receive closer consideration and get this case moving again.”

Rudy completed a 200-credit hour course in counseling and managed to work as a counselor for five years, helping others struggling with the addictions he’d kicked many years ago. But his newfound career fell apart in 2018, when the facility was sold and the government 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, the facility had to let him go. Today he works as a long-haul truck driver.

Rudy is a victim of Virginia’s so-called “barrier crime law,” which bans people with convictions for any of 176 “barrier crimes” from being employed in a “direct care” position, which includes substance-abuse counseling. 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. For nearly all offenses on the barrier crime list, including Rudy’s, the ban applies no matter how old the conviction, how unrelated it is to substance-abuse counseling, and 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.