Types of Evidence of Rehabilitation, Mitigation, and Good Character
Different types of evidence of rehabilitation, mitigation, and character can go a long way towards impacting license discipline decisions.
All California licensing agencies are mandated by law to develop and use criteria for examining the licensee’s rehabilitation, mitigation, and character in light of the allegations of misconduct warranting license discipline. Specifically, Business and Professions Code section 482 is the statute mandating its use. The actual list of relevant types of evidence can be found within the statutes or regulations that govern the underlying practice of the particular profession.
License discipline, in some respects, touches upon all of the same reasons for imposing a prison sentence for someone who commits a crime: retribution, incapacitation, deterrence, and rehabilitation. Thus, the rationale behind using evidence of rehabilitation, mitigation, and character as a factor is that it is the sort of evidence that objectively addresses what the licensing agency is trying to accomplish. And if the licensee has already taken the appropriate steps to repair the wrong, to remove themselves from a position where they can impose more harm, and to educate themselves as to the error of their ways, it minimizes the need for the licensing agency to do the same. In addition, it also demonstrates to the licensing agency that regardless of whether or not what was alleged to have occurred that was the underlying misconduct, that the licensees has taken steps to ensure that he or she will never find his or herself in the same situation ever again.
Here is a list of the types of evidence that are typically used by a licensing agency in rendering a decision regarding a license – whether granted, discipline, or modifying the discipline:
Length of time the licensee has been licensed.
Absence of prior convictions, license discipline.
Absence of post-conviction misconduct or further/different misconduct after the underlying misconduct allegedly occurred.
Passage of time since the misconduct (i.e. typically, two years or more need to be considered) or out of control of judicial oversight.
Restitution to the person who suffered monetary damages or loss – if any.
Expungement, Certificate of Rehabilitation, or Pardon for underlying criminal conduct.
Licensee’s employment record (i.e. stability, even newly found, and in good standing).
Licensee’s reputation in the profession (i.e. corroborated by industry awards, recognition, responsibilities, testimonials from patients/customers, testimonials from colleagues, etc.).
Mitigating circumstances that led to the alleged misconduct (i.e. was it a new found practice area, was the licensee suffering as the result of a personal loss [e.g. death in the family, etc.]).
Correction of the underlying business practice that was responsible for the underlying misconduct.
Honesty concerning the alleged misconduct during the course of the hearing.
Efforts made to ensure that the alleged misconduct never occurs again.
New and different business relationships than from those which existed at the time (i.e. this means, are you still running with same crowd of individuals which may have caused you to engage in the bad act or have you broken away).
Completion of or sustained enrollment within formal educational or training courses (i.e. this would be any type of course that relates to the underlying misconduct).
Involvement in the community, church, or programs designed to provide social benefits.
Change in attitude, evidenced by own testimony and supplemented by testimony of family, friends, co-workers, neighbors, enforcement officials, and mental health professionals.
Character evidence (e.g. truth, honesty, financial responsibility, humility, dedication to the community, etc.) from individuals who know the licensee and who are aware of the alleged misconduct.
If possible, the licensee will also want to also touch upon the lack of aggravating factors and circumstances surrounding the misconduct. Aggravating factors and circumstances are “anti-evidence” of rehabilitation, mitigation, and character. The licensing agency can – and undoubtedly will – put on evidence at hearing showing the administrative law judge that the licensee not only has not only failed to compiled the above evidence, but has engaged in other types of activity that make the discipline sought even more appropriate.
Aggravating factors – beyond the opposite of the above list – would include:
The nature and gravity of the alleged misconduct is of such that the agency cannot safely permit the licensee to engage the public.
The gravity of the injury suffered by the public as a result of the alleged misconduct.
Prior warnings given to the licensee to stop engaging in the alleged misconduct.
Likelihood of reoccurrence of the bad acts by the licensee.
A pattern of misconduct or a pattern of behavior demonstrating a disregard for the rules or authority of the licensing agency.
Lack of remorse.
Thus, if these aggravating factors do not exist, the licensee should make sure to address their absence in their presentation of evidence of rehabilitation, mitigation, and character.
Well, before the evidence can be gathered and woven into a narrative regarding rehabilitation of the licensee-client, the licensee-client needs to actually engage in the above-described actions. First and foremost, they need to complete terms of their criminal sentencing, pay fines, pay restitution, and complete work projects. In addition, they need to take requisite continuing education courses, of particular importance would be any course relevant to how the underlying offense related back to their profession (i.e. ethics, professional responsibilities, etc.).
Then, they need to change business practices or business associations that may had led them down the wrong path in the first place.
In addition, they need to volunteer, get involved in their community, and contribute to improving society. Of particular importance, again, would be any community or volunteer service that relates back to their underlying offense. Finally, mental and spiritual health counseling. Even though you may not believe it is needed, experimenting and going through the process is worthwhile to demonstrating effort.
The goal is to change your trajectory and, in part, make you into a different person than the one who engaged in the underlying conduct in the first place. Thus, you need to take the steps to demonstrate that change.