Virginia’s decades-old barrier crime laws are facing a federal court challenge

State statutes currently ban many former offenders from working in fields like substance abuse recovery

By: - September 29, 2021 12:00 pm

Suffolk County resident Rudy Carey is challenging Virginia’s barrier crime laws in federal court. He says the statutes forbid him from working as a substance abuse counselor for life, even though he was released from prison more than a decade ago. (Kate Masters/Virginia Mercury)

Virginia legislators have spent years failing to reform restrictive barrier crime laws. Now, the state is being sued over them.

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

But there’s broad consensus, including among the agencies affected, that Virginia goes above and beyond in the length and restrictiveness of its barrier crimes laws. DBHDS, for example, lists 176 convictions that disqualify an applicant from working in behavioral health — including unrelated crimes like pointing a laser pointer at a law enforcement officer or setting a field on fire.

So-called barrier crimes also include a long list of drug-related offenses. In practice, the laws prevent many Virginians with past convictions from ever working in substance abuse recovery and related fields — even if they’ve served time in prison and spent years in recovery themselves.

“The departments admit that this law is keeping out applicants with valuable experience,” said Andrew Ward, an attorney handling the lawsuit for the Institute of Justice, a nonprofit law firm based in Arlington. “So it’s not protecting the public. It’s just depriving people going through really hard times from having a qualified and sympathetic counselor.” 

The firm is representing Stafford County resident Rudy Carey, who filed the lawsuit against barrier crime statutes 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 pulled him over for a broken taillight. Carey was high and gave a fake name to the police officer, who tried to arrest him for forging a public record.

When Carey tried to escape being handcuffed, he hit the officer, and ultimately served nearly three years in prison for convictions including assault and battery on an official. Since his release in 2007, though, Carey has been in recovery, and earned both a bachelor’s degree and certification as a substance abuse counselor in Virginia.

“I came home from prison and I decided to make some changes in my life,” Carey said at a news conference on Wednesday. He began working as a substance abuse counselor in 2013 for a Fredericksburg treatment facility that believed it could get around Virginia’s barrier crime laws by hiring Carey as an independent contractor. Carey worked there for five years — at one point winning a counselor of the year award — until another company, Pinnacle Treatment Centers, purchased the center. 

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

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

To support his family, Carey said he had to find work as a truck driver, even though Virginia had allowed him to become certified as a substance abuse counselor. 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 section requires the government to have a legitimate reason for treating some groups of people differently under law. But Virginia’s barrier crime laws aren’t rational, he added, given the large range of offenses and lack of evidence that many of the convictions make an applicant less qualified to work in recovery services and types of direct care.

“We’re saying that this law is irrationally distinguishing between people with these barrier convictions and people without them,” Ward said. “Because there’s just no reason for it — substance abuse counseling does not present particular opportunities for crimes.”

The Institute for Justice, which takes a libertarian approach to law (in the “small ‘l’” sense, Ward said — the firm is not affiliated with the Libertarian Party), has a long history of contesting state laws it believes are unconstitutional. The nonprofit has taken 10 cases to the Supreme Court and won seven, including cases involving civil asset forfeiture, eminent domain and allowing public funding to go toward private school tuition. 

The nonprofit isn’t alone in criticizing the statute. Sen. John Edwards, D-Roanoke, said they were strengthened during an era of “tough on crime” drug sentencing and originally intended to protect vulnerable Virginians. But in the years since, he said they’ve often created nonsensical barriers to entry. Over the last three years, approximately 1,100 people have been deemed ineligible to work for DBHDS-licensed facilities due to past barrier crime convictions.

Edwards is part of a legislative task force examining potential reforms, and many of the affected agencies have also advocated for change. “It’s really difficult when you’re trying to help someone get education and training and then these statutes don’t allow employers to hire them,” Gena Boyle Berger, chief deputy commissioner for the Virginia Department of Social Services, told the Mercury in June.

But efforts to amend the laws have failed multiple times in the General Assembly over the last decade. Ward and Carey said it’s forced them to find other ways to overturn the statutes.

“I certainly hope Virginia does the right thing, but individual legislators have been trying to reform this law since at least 2012 and it hasn’t happened,” Ward said. “And the lawmaking process doesn’t tend to involve the people who are most affected by this.”

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Kate Masters
Kate Masters

Kate grew up in Northern Virginia before moving to the Midwest, earning her degree in journalism from the University of Missouri. She spent a year covering gun violence and public health for The Trace in Boston before joining The Frederick News-Post in Frederick County, Md. Before joining the Mercury in 2020, she covered state and county politics for the Bethesda Beat in Montgomery County, Md. She was named Virginia's outstanding young journalist for 2021 by the Virginia Press Association.