‘I love what I do, I want to do it again:’ Man sues over Virginia’s barrier crimes law, lawmakers say changes are happening

RICHMOND, Va. (WWBT) – A Virginia man is looking for a chance to have a new start and an opportunity to help others after years of struggling with drug addiction. Rudy Carey has filed a federal lawsuit challenging the Barrier Crimes that exist in the Commonwealth.

“You can’t look at me today; if I had never told you my story, you wouldn’t have ever known,” said Rudy Carey. “You can’t keep holding this black cloud over us. We are not those people anymore. We have met the credentials and mandates you set down. We have completed the courses, gone to school; we are active in the community; we are doing everything we need to do – why are you taking this from us?”

Carey was in and out of trouble from 1996 to 2007, struggling with drug addiction. He faced petty theft and driving violations that led to a felony. In 2004, he was pulled over while trying to get drugs before a concert in Henrico. Police were going to arrest him for forging a public record.

“All I know is that in the back of my mind, I wanted more drugs – I was right there at the place I usually go score, so I gave them this fake name, “ he said. “I tried to resist the arrest, and in the process, I struck the officer, and that has been the black eye, the black cloud over my life since then.”

Carey was charged and convicted of assault on a law enforcement officer. He served almost three years and got out in 2007. After a relapse, he decided to change his life completely.

“When you begin to use drugs and where I was at in my life – everything is nonexistent. My children, nonexistent. My future, nonexistent, and I just didn’t want to die,” Carey explained.

Carey got into treatment, got married, started volunteering in the community, spoke to inmates, completed more than 200 college credit hours in counseling and rehabilitation. He eventually started working at a Virginia treatment facility with a caseload of clients.

“For that door to shut in my life, I didn’t know how to say goodbye to something I loved to do. My life had to change, and it is still changing, but I love what I do, and I want to do it again,” he said.

The facility Carey was working for had hired him as he was studying to become a certified substance abuse counselor. Just months before taking the exam, he was informed that the facility should not have hired him in the first place. His 2004 assault charge and conviction falls under 176 barrier crimes that prevent him from working in a direct care position as a counselor in Virginia.

“What you have just done is rob the community of the opportunity to see face to face, someone who has been where they have been and change their lives,” Carey explains.

In Virginia, the barrier crimes law prevents facilities, such as those licensed by the Department of Health, Department of Social Services and Department of Behavioral Health and Developmental Services, from hiring people with certain criminal histories. In Carey’s case, the assault charge is considered a barrier to future employment, even though he served the time more than a decade ago.

He is now working with The Institute for Justice, filing a lawsuit against the Virginia Department of Behavioral Health and Developmental Services. They call the law banning Carey from being able to work as a counselor irrational.

“Ultimately, the US Constitution protects the right to earn an honest living. Laws that stop people from working have to at least be rational. Banning people like Rudy for what they did 17 years ago is not rational,” said Attorney Andrew Ward. “It is an artifact of the tough-on-crime stance from the 1990s. It was thought maybe this could protect vulnerable populations, but it doesn’t apply in substance abuse counseling.”

The following is written in the lawsuit:

“Plaintiff Rudy Carey underscores this irrationality. Rudy won a battle with drug and alcohol addiction more than a decade ago. Then, after achieving sobriety himself, Rudy dedicated himself to helping others overcome addiction. He became a leader in a twelve-step program, he completed more than 200 hours of college coursework in counseling and rehabilitation, and he secured a job as a substance-abuse counselor at a treatment facility. He successfully worked there for five years. He won a counselor of the year award. But eventually his employer took another look at the prohibition. And because Rudy has a barrier crime on his record—he struck a police officer during an arrest in 2004—his employer was forced to fire him. Rudy is banned from working as a counselor for the rest of his life. That is unconstitutional. Under the Fourteenth Amendment, laws must, at a minimum, be rational. It is irrational for the Commonwealth to categorically prohibit every person with a wide range of convictions from working as a substance-abuse counselor, regardless of individual circumstances. This severe restriction does nothing to protect the public. It just deprives struggling people of qualified and passionate counselors. Rudy thus seeks a judgment declaring Virginia’s ban unconstitutional, enjoining its application, and allowing him the chance to resume work as a substance-abuse counselor.”

The Virginia Department of Behavioral Health and Developmental Services tells NBC12 it is policy not to comment on pending litigation.

“I said, ‘OK, God. I didn’t ask for this. I didn’t ask for the attorneys to come talk to me. I wasn’t thinking about this, but you brought this in my path, so wherever you guide me, I will go,’ so that is why I am here,” said Carey. “It hasn’t just impacted me; it has a residual damage on everyone around me. I can’t be the outreach pastor at my church like I used to be; I can’t be volunteering like I used to because I am away from my area.”

Carey is now working as a truck driver to support his family but hopes a judge will make a decision that will lead to him becoming a counselor.

“If I could stop working today and be OK to take care of my family financially, I would sit down for two weeks, diligently, and study and take the exam. I am 95% sure I would pass,” he explained. “I know there is a change that needs to be made, it doesn’t have to be my life, but it could be someone else’s life.”

While the lawsuit remains in the hands of federal court, lawmakers say the Virginia General Assembly is working to study and make changes to the rules surrounding barrier crimes.

“Today, there is no way to get the legal barrier to employment lifted, even if the governor pardons you; that is not a basis for which you can go get that job,” explained Senator Scott Surovell. “We have people, who, for example, are former drug users, who want to be license counselors; they are not allowed to be employed in that profession because of their prior conviction, which is crazy.”

Surovell is a member of the Barrier Crimes and Criminal History Records Checks, Joint Subcommittee, along with other members of the house and senate.

“We are trying to create a relief process, where if somebody has a conviction, especially an old one, they can apply with a particular agency to get a waiver so they can get employed in a certain profession,” said Surovell.

The Barrier Crimes Joint Subcommittee describes their work as:

Study of the Commonwealth’s laws related to barrier crimes and criminal history records checks and development of recommendations related to (i) whether statutory provisions related to criminal history records checks, barrier crimes, and barrier crime exceptions should be reorganized and consolidated into a central location in the Code of Virginia; (ii) whether certain crimes should be removed from the list of barrier crimes; (iii) whether barrier crime exceptions and waiver processes should be broadened; (iv) whether the required amount of time that must lapse after conviction of certain barrier crimes should be shortened; and (v) other changes that could be made to criminal history records check and barrier crimes requirements that would improve the organization, effectiveness, and fairness of such provisions.

While more legislation will be proposed during the 2022 session, Surovell says the work to lift barriers to employment has been going on since the 2021 session.

“We created a separate process for barrier crimes in the 2021 session, which no one really talks about. I don’t think a lot of people realize. [It] created a process of sealing misdemeanor and some minor felony convictions if a judge grants that sealing petition, it lifts barriers to employment,” he explained.

“Establishes a process for the sealing of police and court records, defined in the bill, of criminal records for certain convictions, deferred dispositions, and acquittals and for offenses that have been nolle prossed or otherwise dismissed. The bill also allows a person to petition for the expungement of the police and court records relating to convictions of marijuana possession, underage alcohol or tobacco possession, and using a false ID to obtain alcohol and for deferred disposition dismissals for possession of controlled substances or marijuana, underage alcohol or tobacco possession, and using a false ID to obtain alcohol.”

SB 1339 also creates a special fund to help people who can’t afford to pay for the process of expungement. All collected expungement fees fund its.

Surovell says he is hopeful now that the 2021 Senate Bill has been adopted into law but says it would not go into effect until 2025. He calls the process of preparing for it “unringing a bell.”

“I am frustrated that it takes so long to implement it. We have a lot of different computer systems that have to be able to talk to each other,” he said.

In a statement, the Virginia Legislative Black Caucus says reform is long overdue. It is working through the Barrier Crimes and Criminal History Records Checks Joint Subcommittee to get things done.

“The issue of barrier crimes is an aspect of our criminal justice system that absolutely needs to be addressed. The most effective way of addressing this issue is through legislation,’ VLBC explained in a statement. “While litigation is an important tool in criminal justice reform, we believe that changing the law is the most expedient way to make reforms clear, comprehensive, and stable.

As an attorney, Surovell has seen people like Rudy Carey turn their lives around and says they deserve a chance to have barriers lifted.

“I think it is important that our system have the flexibility to accommodate the changes people can make especially once they have paid their time and show they can be a good citizen,” explained Surovell.

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