The Right to Housing for the Formerly Incarcerated: Offering a Fair Chance and a Fresh Start

 

by By JoAnn Kamuf Ward, Lecturer-in-Law, Columbia Law School & Associate
Director of the Human Rights in the U.S. Project at the Law School's Human Rights Institute
    

Approximately one in every three U.S. adults has a criminal record – roughly the same number of people that hold a four year college degree. The impacts are staggering.  The ongoing punitive effects of a criminal record permeate almost every aspect of life, and severely hinder the efforts of individuals who have “served their time” to make a fresh start.

Upwards of 600,000 individuals will be released from prison this year, only to face a complex web of restrictions on their ability to access housing.  Under federal law registered sex offenders and individuals convicted of manufacturing methamphetamine are prohibited from living in federally funded housing.  In addition to these two categorical bans, federal law leaves broad discretion to property owners and managers to screen potential tenants.  An array of state and local laws and policies also govern access to municipal housing, and can include both vague and broad standards for reviewing applicants.  The net result is that individuals with criminal records are often excluded from consideration for reasons untethered to legitimate safety concerns or their ability to pay the rent.  Depending on where you live, there may be categorical bans related to misdemeanors, bans on accepting tenants until they have been out of incarceration for over a year, and prohibitions on accepting tenants who engaged in “immoral conduct.”  Additionally, in many jurisdictions, arrest records have served as the basis for denying housing to individuals and as grounds for evictions, despite the fact that an arrest is not a reliable indicator of criminal conduct.  The practice was so widespread that HUD released guidance last year to underscore that reliance on arrest records is out of step with the Fair Housing Act.   

A criminal record, and even an arrest record, can serve as a kind of scarlet letter, and has consequences well beyond housing.  Felon disenfranchisement is one example from the political sphere.  Criminal records can also impede access to education.  Barriers to employment, too, are well-documented.  Taken together existing obstacles make re-entry and reintegration an uphill battle.

Yet, there are signs that change is on the horizon as Michelle Alexander, the author of The New Jim Crow, stated in a great interview this weekend.  This hope emanates from the work of the communities who have faced barriers to achievement and inclusion for decades and are fighting to remove them.  As Alexander reported: 

Formerly incarcerated people are organizing for their basic human rights — the right to work, the right to shelter, the right to health care and drug treatment — basic human rights that we should be able to take for granted in a nation as wealthy as ours, and a nation that advertises ourselves to the rest of the world as the land of the free and a place of opportunity, equality, and inclusion.

This organizing has had tangible results.  Just last week, Virginia Governor Terry McAuliffe took executive action to restore voting rights for convicted felons in the state, reflecting a broader trend to ease restrictions on political participation for people with criminal records.  The national movement to “ban the box” has led public and private sector employers to limit the use of criminal records in hiring, as detailed in a past blog.  As a result of the momentum around these efforts, “ban the box” has become synonymous with the employment context, but the housing arena has seen progress as well.

A number of cities are on the forefront of banning the box in housing.  Newark, New Jersey was a first mover.  The city’s 2012 ordinance places limits on when a landlord can inquire about criminal record, and lays out the factors that should govern the individualized assessment of potential tenants, including evidence of rehabilitation.  In 2014, San Francisco followed suit, with a law that applies to city-subsidized affordable housing.  Legislation has been introduced in Los Angeles, and Washington, D.C.

The federal government has also taken intentional steps to improve access to housing for formerly incarcerated individuals and their families. In November of last year, the President announced a series of measures to ease the burden of re-entry.  Key components on the housing front are new funding to support permanent housing, and the guidance on arrest records noted above.

This month, HUD went a step further and issued new guidance on the ways that the Fair Housing Act (FHA) protects individuals with criminal records from discrimination:

While having a criminal record is not a protected characteristic under the Fair Housing Act, criminal history-based restrictions on housing opportunities violate the Act if, without justification, their burden falls more often on renters or other housing market participants of one race or national origin over another (i.e., discriminatory effects liability.  Additionally, intentional discrimination in violation of the Act occurs if a housing provider treats individuals with comparable criminal history differently because of their race, national origin or other protected characteristic (i.e., disparate treatment liability).

The guidance makes clear that blanket bans on tenants with a criminal background violates the FHA, and reiterates that arrest records alone are not proper basis for rejecting a housing applicant.  This 2016 guidance also lays out the type of balancing test that landlords should apply to assess whether an applicant with a criminal record can be justifiably excluded from tenancy.  It calls on landlords to evaluate a range of factors on a case-by-case basis:  the nature and severity of the underlying crime, the time lapsed since the crime, and what the applicant has done since the conviction.  It also places the onus on landlords to prove that a decision to exclude an applicant is justified under the circumstances (i.e. “necessary to achieve its substantial, legitimate, nondiscriminatory interest”) if the decision is challenged. 

It is well documented that adequate and affordable housing is integral to economic viability for individuals and communities.  It is time to remove legal impediments to basic economic, social and political rights.  Developing policies that foster inclusion for those that have already “done their time” is a step in the right direction.  Impacted communities are leading the charge for reform.  Policymakers need to take action.