Methodology

Methodology

This report grades all 50 states and the District of Columbia on 10 separate criteria. The criteria were derived from the Institute for Justice’s Collateral Consequences in Occupational Licensing Act, model legislation that details best practices for ensuring economic opportunity for ex-offenders without jeopardizing public safety. States were graded based on their relevant statutes and regulatory code.

For this report, the 10 criteria were divided and weighted across three main categories: Exclusion, Relevance, and Due Process. In this report, each state is given an individualized breakdown for how they performed on each of the 10 criteria. States are praised if they have any notably strong provisions compared to the rest of the country and are given suggestions for reform that would improve their grades. Since many states have multiple licensing restrictions (typically depending on the crime committed or license sought), when applicable, the state page analyzes how these licensing barriers differ from the state’s main law that provides protections for ex-offenders seeking licenses.

Exclusion

Accounting for 35% of a state’s final grade, Exclusion consists of the limitations a state places on boards that block them from considering a person’s criminal record. This category consists of four criteria:

Overarching ban on blanket bans.

States receive 100% if they expressly ban boards from denying a license based solely or in part on a criminal record. However, states get docked 25% for each of the following fields they exclude: healthcare, security, education, or white-collar professions. (A state’s grade is not affected for excluding attorneys, law enforcement, or corrections positions.) This accounts for 40% of a state’s Exclusion grade.

Express ban on considering non-conviction records.

States receive 50% for blocking arrest records (aside from active cases) and 50% for barring records that have been sealed, expunged, annulled, erased, or undergone some other post-conviction remedy. This accounts for 20% of a state’s Exclusion grade.

Time limit.

Research suggests that a person’s likelihood of reoffending drops after three years. To account for this lower risk of recidivism and greater chance of desistance, states receive 100% if they block boards from considering a criminal record (other than sexual or violent felonies) older than three years, 75% for five years, 50% for seven years, and 25% for 10 years. This accounts for 20% of a state’s Exclusion grade.

Wyoming, which imposes a 20-year time limit, receives 5%.

Ban on vague, discretionary character standards.

States receive 100% if they have an explicit, overarching ban on boards using vague, ambiguous terms like “good moral character” or “moral turpitude” to disqualify applicants. This accounts for 20% of a state’s Exclusion grade.

States earn 75% if they have repealed multiple moral character requirements in their licensing laws but have not enacted an overarching ban.

Relevance

The most heavily weighted category, Relevance accounts for 40% of a state’s final grade and evaluates states for how they determine the relationship of an applicant’s criminal record to the license sought. This category consists of two criteria that each account for 50% of the Relevance grade:

The relationship between a criminal conviction and the license sought.

More points are awarded to states that impose a more stringent standard:

• States that disqualify based on “directly” related crimes receive full marks.
• States that require crimes be “substantially” related earn 75%.
• States that require a “rational” relationship or can deny based on an “unreasonable risk” receive 50%.
• States that merely require a crime be “related” or “relevant” or can disqualify an applicant deemed “unfit” or “unsuited” for, or “inconsistent” with a license receive 25%.
• No relationship merits no marks.
• States are docked 25% if they exempt violent crimes from their relatedness test.

Factors for consideration.

Factors for consideration. Applicants must be evaluated fairly and given individualized consideration. Factors are weighted in accordance with their importance. States receive 50% for requiring boards to consider evidence of rehabilitation, 20% for time elapsed since the offense, and 10% for each of the following factors: the applicant’s age, employment history, and any testimonials or personal references.

Due Process

Petition process.

States earn 100% if they offer a process that allows applicants to petition boards to determine whether their criminal record would be disqualifying, including before they begin any costly training. Non-binding petitions receive no credit. This criterion contributes 40% to a state’s Due Process grade.

States earn 50% if applicants can request a hearing before a board decides to disqualify.

Burden of proof.

This consists of two parts: States receive 50% for explicitly placing the burden of proof on the government, while states earn another 50% for using the clear and convincing evidence standard. States that have a “rebuttable presumption” for select felonies receive just 25%. States that either explicitly place the burden on applicants or are otherwise unclear or unspecified receive no credit. This contributes 30% to a state’s Due Process grade.

Right to appeal.

This grade is binary, and states receive full marks only if they expressly guarantee the right to appeal a board’s decision. This contributes 20% to a state’s Due Process grade.

Written notice requirement.

This grade is binary, with top marks awarded only to states that require boards to notify applicants of their decisions in writing. This contributes 10% to a state’s Due Process grade.