Virginia’s decades-old barrier crime laws facing challenge in federal courts



Virginia lawmakers spent years failing to reform restrictive barrier crime laws. Now the state is being sued for them.

At issue are decades-old laws that prohibit many providers – primarily those licensed by the Department of Health, Department of Social Services, and Department of Behavioral Health and Developmental Services – from hiring applicants with some criminal history. Some of the same laws are shared by other states and the federal government, which prohibits sex offenders, for example, when working with children.

But there is a broad consensus, including among relevant agencies, that Virginia is going above and beyond in the length and restriction of its barrier crime laws. The DDHDS, for example, lists 176 convictions that bar a candidate from working in behavioral health, including unrelated crimes like pointing a laser pointer at a law enforcement officer or set fire to a field.

So-called barrier crimes also include a long list of drug-related offenses. In practice, laws prevent many Virginians with past convictions from working in addiction recovery and related fields, even though they have served prison time and spent years recovering on their own.

“Departments admit that this law excludes candidates with valuable experience,” said Andrew Ward, a trial attorney for the Institute of Justice, an Arlington-based not-for-profit law firm. “So it’s not protecting the public. It just deprives people who are going through very difficult times of having a qualified and sympathetic counselor.

The firm represents Rudy Carey, a resident of Stafford County, who filed the trial against barrier crime laws affecting services licensed by the Virginia Department of Behavioral Health and Developmental Services. According to the complaint, Carey was addicted to drugs and alcohol in 2004, when a police officer arrested him for a broken tail light. Carey was high and gave a false name to the officer, who attempted to arrest him for tampering with a public record.

When Carey tried to escape the handcuffs, he punched the officer and eventually served nearly three years in prison for convictions, including assault and battery on an official. Since his release in 2007, Carey has been recovering and has completed over 200 hours of substance abuse counseling classes and earned a separate bachelor’s degree.

“I came back from prison and decided to make some changes in my life,” Carey said at a press conference Wednesday. He started working as an addiction counselor in 2013 for a Fredericksburg treatment center that believed it could get around Virginia barrier crime laws by hiring Carey as an independent contractor. Carey worked there for five years – at one point winning the Advisor of the Year award – until another company, Pinnacle Treatment Centers, bought the center.

When Pinnacle consulted with DHDS, the agency sent an ineligibility letter reiterating that Carey was prohibited from working directly with patients in any capacity. The establishment was then forced to fire Carey in 2018, according to his complaint.

“That day was a very painful day for me,” he said on Wednesday. “It was very painful to walk away from a time that I gave my life to.”

To support his family, Carey said he had to find work as a truck driver. The Institute for Justice was referred to him as a potential test case, Ward said, when the nonprofit decided to challenge the constitutionality of the law. under the equal protection clause of the 14th Amendment.

Ward said the article requires the government to have a legitimate reason for treating certain groups of people differently under the law. But Virginia’s barrier crimes laws are not rational, he added, given the wide range of offenses and the lack of evidence that many convictions make an applicant less qualified to work in the services. recovery and types of direct care.

“We’re saying this law makes an irrational distinction between people with these barrier beliefs and people without them,” Ward said. “Because there is simply no reason for it – drug counseling does not present special opportunities for crimes.”

The Institute for Justice, which takes a libertarian approach to law (in the ‘little’ l ‘sense, Ward said – the cabinet is not affiliated with the Libertarian Party), has a long history of challenging state laws it ‘he considers unconstitutional. The association brought 10 cases to the Supreme Court and won seven, including cases involving the confiscation of civilian assets, a prominent area and allowing public funding to go towards tuition fees for private schools.

The association is not the only one to criticize the law. Senator John Edwards, D-Roanoke, said they had been strengthened during an era of “tough on crime”Drug sentence and originally intended to protect vulnerable Virginians. But in the years since, he said they often created insane barriers to entry. In the past three years, approximately 1,100 people have been found ineligible to work in DHDDS-approved establishments due to previous convictions for barrier felony.

Edwards is on a legislative task force examining potential reforms, and many relevant agencies have also advocated for the change. “It’s really hard when you’re trying to help someone get education and training and these laws don’t allow employers to hire them,” said Gena Boyle Berger, deputy chief commissioner of the human resources department. Virginia Social Services at the Mercury in June. .

But efforts to amend the laws have repeatedly failed in the General Assembly over the past decade. Ward and Carey said this forced them to find other ways to overturn the statutes.

“I certainly hope Virginia will do the right thing, but individual lawmakers have tried to reform this law since at least 2012 and it hasn’t happened,” Ward said. “And the legislative process doesn’t tend to involve those most affected by it.”

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