In the last fifteen years, criminal justice reform has become a major focus for policymakers in the United States. Reflecting the broad recognition that previous policy choices have led to unjust and unsustainable levels of mass incarceration—marred by blatant racial disparities—Congress has passed major pieces of federal legislation, including the First Step Act (2018), the Fair Sentencing Act (2010), and the Second Chance Act (2007). Most recently, the bipartisan First Step Act reduced the length and rigidity of sentencing guidelines, retroactively reduced sentences to reflect current policies, and invested in recidivism reduction programs. While the criminal legal system in the United States still has many glaring flaws, these recent accomplishments—along with other reforms at the state and local level—reflect important progress in the arena of criminal justice.
Unfortunately, however, little attention has been paid to the many complementary reforms that will be needed to ensure this attempt at improving the criminal legal system is ultimately successful. Specifically, given the interdisciplinary nature of criminal justice, reforms are also needed in the areas of health, education, housing, and other domains to ensure the well-intentioned policies described above have their intended impact. Housing especially stands out as a particularly impactful policy area for complementary reform; given the profound importance of stable housing to employment, safety, and physical and mental well-being, housing policy is a critical piece of ongoing criminal justice reform efforts.
HUD Takes Action
In an encouraging development, the Biden Administration has explicitly recognized the importance of housing policy to the success of criminal justice reform efforts. In April 2022, HUD Secretary Marcia Fudge released a memo entitled “Eliminating Barriers That May Unnecessarily Prevent Individuals with Criminal Histories from Participating in HUD Programs.” Invoking the concurrent celebrations of Fair Housing Month and Second Chance Month, Secretary Fudge identified many barriers that too often prevent individuals with criminal histories from securing safe and affordable housing. The memo argues that individuals with records are often unjustly screened out and evicted under the guise of public safety, with ruinous consequences for these individuals, their families, and their communities.
Fudge then announced an agency-wide effort to review and update programs and policies with a focus on inclusivity regarding individuals with criminal histories. Fudge directed all HUD program offices to identify “all existing HUD regulations, guidance documents and other policies and sub-regulatory documents that may pose barriers to housing for persons with criminal histories or their families and propose updates and amendments consistent with this directive” within six months. Policy updates should be both “legally permissible and practically feasible,” as determined by the best available data. The resulting policy changes are expected primarily to impact HUD’s two largest programs: Public Housing and Housing Choice Vouchers.
The April memo from HUD is just the latest example of the Biden Administration’s push for policies that reflect the goal of greater racial equity. In his first week in office, Biden released a memo announcing “a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.” HUD’s review of policies related to inclusivity of individuals with records reflects the “systematic approach to embedding fairness in decision-making processes, executive departments and agencies” that Biden called for.
A Lack of Justice in Federal Housing Policy
The history of mass incarceration in the United States is a dark one. The number of people held in jails and prisons in the US increased sevenfold from 1970 to 2007. Despite having only 4% of the world’s population, the US is home to 16% of the world’s incarcerated population—roughly two million people at any given time. In 2019, states spent nearly $60 billion on corrections, despite a clear lack of evidence about the connection between an increase in incarceration and meaningful crime reduction.
Throughout this period, federal housing policy has often been complicit in the harm done to individuals (as well as to their families and communities) affected by the criminal legal system. In particular, given the precarity facing individuals as they attempt to reenter society following a period of incarceration, affordable housing is a crucial component of successful reintegration. Given the high cost of housing in the United States, federal programs, such as public housing or housing choice vouchers, often represent some of the only housing available to these individuals after their release. However, punitive federal guidelines have often prevented this access, contributing to housing insecurity and recidivism.
Dating back to the 1970s, federal policy has directed Public Housing Authorities (PHAs) to consider the criminal history of applicants for public housing units for relevant infractions relating to violent crime and/or other activity that would affect the “health, safety or welfare of other tenants.” In the late 1980s and 1990s, when drug use and violent crime became major priorities for policymakers–including a specific focus on criminal activity in public housing–congressional legislation introduced a series of ‘no tolerance’ directives related to criminal records and public housing. The Anti Drug Abuse Act of 1988, for example, included a provision mandating eviction in the event of a drug violation and/or other conviction threatening the safety of other PHA residents. The Cranston Gonzalez National Affordable Housing Act of 1990 included a mandatory three year ban for readmission of those convicted of drug related criminal activity.
The federal government’s punitive approach continued in the late 1990s. Most significantly, the Housing Opportunity Program Extension Act of 1996 codified a ‘one strike and you’re out’ policy, increasing the powers of PHAs to screen out and evict individuals with criminal records, including the ability to request criminal background reports. In the six months following its passage, PHAs rejected almost twice as many applicants with criminal backgrounds as it had during the previous six months and the number of drug-related evictions increased by 40%.
Further Inequities in the Housing Market
While these federal policies deserve particular scrutiny because federal programs provide a large portion of funding for affordable housing for the lowest income households and individuals, they are not the only examples of overly punitive approaches in the housing market for justice-involved individuals. In fact, many state and local governments, as well as private actors such as landlords, employ similarly harsh tactics with deeply damaging consequences.
State and local governments are involved in the implementation of federal housing programs and policies, but they also codify and carry out their own policies and regulations at the intersection of the criminal legal system and housing, often in unnecessarily punitive ways. For example, many municipal governments employ ‘crime-free’ housing ordinances, which mandate that landlords take specific action regarding tenants’ (and potential tenants’) past and present behavior related to the criminal legal system, such as requiring background checks prior to leasing a unit and mandating eviction if any criminal activity takes place on their property. Similarly, as discussed in Matthew Desmond’s landmark work on low-income housing, Evicted: Poverty and Profit in the American City, cities and states routinely have so-called ‘nuisance ordinances’ on the books. According to the ACLU, ‘nuisance-free’ ordinances “punish residents who call 911 or who simply live in properties where criminal activities occur, regardless of whether the tenant is at fault.”
Both crime-free and nuisance-free ordinances have been shown to be unproductive and unjust in both design and implementation. A 2013 report by the Shriver Center identifies numerous issues with such policies, including a reduction in the supply of affordable rental housing, misuse of arrest records during background checks, the use of inappropriate enforcement mechanisms, costly administrative errors such as mistaken identities, and the harming of innocent parties, including the victims of criminal behavior the ordinances are ostensibly designed to protect. In Evicted, for example, Desmond shows that ‘nuisance ordinances’ often result in eviction for the victims of domestic abuse rather than their abusers (Desmond, 2016). Importantly, observers have noted that a key issue with both types of ordinances is their one-size-fits-all approach and its accompanying lack of nuance. As a result, government actors and landlords end up reflexively imposing punishments, regardless of the situation or context, often with hugely damaging consequences.
Punitive, blanket approaches are also prevalent in the private housing market. Private landlords routinely use criminal background checks to screen out individuals with criminal records (80% report doing so), often without considering the severity or recency of a given offense. This practice has increased dramatically with the proliferation of electronic records in recent decades (Shriver Center Webinar, 2015). Nor is being denied housing based on one’s criminal record a temporary barrier to housing that fades over time; in the private market, research suggests that a criminal record undermines individuals’ ability to secure housing in the long term (Leasure & Martin, 2017). To make matters worse, the records obtained by many of these screening companies are often incomplete and/or inaccurate, including many documented cases of mistaken identities.
A Devastating – and Disproportionate – Cycle of Harm
Like the ‘tough on crime’ policies passed by congress in the 1990s, the punitive approaches taken by the federal government, municipal governments, and private actors in the housing market have led to tremendously damaging consequences. While ostensibly introduced to promote public safety, these ‘no tolerance’ policies have been a destabilizing force for those seeking reentry after incarceration with substantial follow-on effects for their communities.
The result is a devastating cycle of housing insecurity, homelessness, and recidivism. Nearly eighty percent of returning citizens reported being denied housing due to their criminal history (Ella Baker Center, 2015). This systematic discrimination has predictable effects; formerly incarcerated individuals are nearly ten times more likely to be homeless than the general public, with even higher disproportionality for those released recently (Couloute, 2018). An even larger number of formerly incarcerated individuals live in rooming houses, hotels, or motels, continuously on the brink of ending up without shelter for the night.
This level of housing insecurity undermines the ability of individuals to successfully reenter their communities, preventing access to stable employment, healthcare, and social services. Research bears out this connection: among individuals that secure release, a lack of stable housing doubles the rate of recidivism; each move a recently released individual makes increases the likelihood of rearrest by 25% (Center For Supportive Housing). In many cases, a lack of stable housing can result in a parole violation and re-incarceration for technical reasons, such as a missed appointment or drug test. In fact, the majority of those on parole or probation who return to jail or prison do so as a result of such technicalities rather than new criminal offenses.
On the other hand, stable housing is correlated with successful reentry (Burrowes, 2019). Safe, affordable housing becomes a ‘platform for opportunity’ for those exiting jail or prison, increasing economic self-sufficiency, personal well-being, public safety, and family stability (Council for Supportive Housing, 2017). Additionally, programs that provide supportive housing, which includes access to affordable housing and corresponding wrap-around supports, for recently incarcerated individuals have shown substantial reductions in recidivism (Urban Institute, 2013). Unfortunately, individuals seeking reentry often do not qualify for services for those facing housing insecurity, like supportive housing, because they often do not meet the HUD-provided definition of homelessness.
To make matters worse, the harm done by these policies is not apportioned evenly. Because federal, state and local governments, as well as landlords, base their policies on consequences doled out by the criminal legal system, decisions made by police, prosecutors, and judges end up impacting the housing market. In this way, the racial disparities created by overpolicing and mass incarceration are baked into the supposedly racially ‘neutral’ actions in the housing market. This hidden bias has also emerged in algorithms used in the housing market that claim to remove human error and implement screening mechanisms impartially (ACLU Washington, 2022).
Racial disparities are significant and embedded at every level and process of the criminal legal system. African Americans represent roughly 13 percent of the total U.S. population but account for roughly 27 percent of all arrests, 22 percent of fatal police shootings, 47 percent of wrongful conviction exonerations, and 35 percent of individuals executed by the death penalty (NAACP, 2020). Black men are incarcerated at 5.7 times the rate of White non-Hispanic males and Black females are incarcerated at 1.7 times the rate of White non-Hispanic females (Nellis, 2021). Smaller, but still significant disparities exist for individuals from Hispanic backgrounds as well, and individuals with disabilities are also disproportionately impacted by the criminal legal system (Prison Policy Initiative, 2017).
Crucially, research clearly demonstrates that these disparities are the product of systemic biases in the criminal legal system. As the linked article demonstrates, these biases extend from school discipline, to overpolicing, to pretrial detention, to plea bargains, to death penalty pardons. At every stage of the criminal legal system, Black Americans are subjected to greater levels of surveillance, harsher punishments for the same behavior, and fewer opportunities for discretion and leniency. Put simply, the criminal legal system introduces and reinforces racial disparities in all facets of its work. No fair reading of the evidence can credibly suggest otherwise. Thus, when actors in the housing market draw upon information and data generated within the criminal legal system, the results will be necessarily tainted with these biases, even with processes that are fair and impartial at first glance.
The Current Status of Federal Policy
Given the severity of the problems with the criminal legal system, criminal justice reform became a major priority for the executive branch under the Obama administration. This emphasis resulted in several important actions and directives, including from the Department of Housing and Urban Development (HUD). In 2011, HUD secretary Shaun Donovan sent a letter to PHAs that explicitly addressed the importance of addressing these disparities involving formerly incarcerated individuals. Specifically, he encouraged PHAs to allow individuals with records to live with their families with active leases in public housing upon release. He also asked that screening processes consider all relevant information when screening applicants including mitigating circumstances around the time elapsed since an offense took place, the severity of the offense, and actions taken towards rehabilitation.
In 2015, HUD issued a memo emphasizing the importance of distinguishing between arrests and convictions when conducting criminal background checks, as the former is not proof of wrongdoing and thus is an illegitimate criteria for screening processes. Later, in 2016, HUD issued guidance noting that, due to racial disparities in the criminal legal system, blanket bans based on criminal records could violate the Fair Housing Act under the disparate impact standard established by the Supreme Court in Inclusive Communities (2012). The disparate impact standard holds that actions or policies that result in disproportionate denial of access for protected groups constitutes discrimination irrespective of intent and thus represents a violation of the FHA. A few months later, at the urging of twenty-nine Senators, HUD issued similar guidance regarding nuisance and crime-free ordinances, which may also violate the Fair Housing Act due to their disproportionate impact on victims of domestic violence or other criminal activity. HUD also tied this guidance to community development block grant funding, resulting in the repeal of many of these municipal policies nationally.
In addition to these memorandums, Secretary Donovan (and later, Secretary Julian Castro) also instituted several other tangible programmatic efforts to improve housing outcomes for individuals with records: establishing the Pay for Success demonstration program, aimed at reducing recidivism and homelessness, and the Juvenile Reentry Assistance Program, designed to improve access to housing, education, and employment opportunities for justice-involved youth. Both pilots aimed to identify promising practices that can prevent and interrupt the devastating cycle of legal system involvement and housing insecurity.
Following these efforts, there remain only a limited number of HUD mandates related to the criminal records of tenants in federally assisted housing. Specifically, PHAs must bar anyone who has been evicted from federally assisted housing in the previous three years for drug-related criminal activity, as well as anyone who is a known user of illegal drugs, anyone subject to a lifelong sex offender registration and anyone that has ever been convicted for manufacturing methamphetamines in federally subsidized housing. Outside of these policies, PHAs have high levels of discretion when it comes to screening based on involvement with the criminal legal system.
Issues at the Local Level
The Obama-era reforms are representative of a push within the federal government to move away from overly punitive, zero tolerance approaches to screening and eviction. However, there are limits to these efforts, and criminal justice reform advocates note that progress in this area has not yet taken root at the level of local PHAs. Given that PHAs are the public-facing organizations that actually administer federal housing programs, this failure to translate is hugely problematic.
The reason behind this slow progress is that HUD’s directives on criminal justice issues have generally taken the form of guidance, rather than mandates. This guidance–often lacking in support for implementation and introduced with little oversight and accountability-–trickles down to PHA policies with little urgency and uniformity. For example, the 2015 guidance around arrest records was found to have had little effect on local PHA’s actual provisions related to the use of arrest records during screening. Furthermore, HUD does not have a data tracking system in place that would allow for a better understanding of disparities that arise within its protocols (Cronkite Center, 2022).
The end result is the PHAs use their ample discretion to implement much more punitive policies than HUD guidance suggests (Curtis et al 2013, Shriver Center 2015). For example, a PHA may still reject an applicant for any criminal activity that would ‘threaten the health, safety or right to peaceful enjoyment of the premises’ by other residents, local housing agency staff or contractors. They also have ample discretion in determining the interpretation of what infractions constitute a threat to health and safety of others. In 2018, a Government Accountability Office report found that HUD failed to monitor PHAs’ compliance with criminal history directives. The report thus recommended that HUD take a more active role in establishing oversight and accountability.
Experts suggest that four primary issues characterize ongoing discriminatory behavior by PHAs against individuals with criminal records. These include: the continued use of arrests–rather than convictions–as criteria for denial or eviction; unreasonable lookback periods, through which PHAs discriminate against those with records outside of the suggested three-year window, despite an absence of infractions in the interim; the use of broad categories of criminal activity for screening and eviction criteria, thereby incorporating activities that do not accurately reflect a threat to the safety of others; and the underuse of knowledge about mitigating circumstances during screening processes, including the passage of time since conviction, the severity of the offense, and actions taken toward rehabilitation in the interim. Moreover, many of these issues arise because PHAs often take a one-size-fits-all, blanket approach to screening and eviction procedures, despite HUD’s insistence that an individualized approach is permissible and often preferable.
Recommendations for HUD and Congress
The good news is that the review of HUD’s policies and procedures with an eye towards inclusivity for individuals with records has the potential to improve outcomes at the local level through improved PHA policies and procedures. Advocates hope this review and other reform efforts will result in a set of ‘Reasonable Admissions Standards,’ which would directly address the four issues outlined above. These include: a ban on the use of arrests as a criteria for review; a clear limit on lookback periods (three years maximum); a default procedure of individualized review, rather than a one-size-fits-all approach (with accompanying training for staff); a requirement to consider mitigating circumstances; the establishment of clear limitations on the nature of criminal activity PHAs may consider during screening; a set of minimum standards for the quality and nature of criminal background information; and an increase in data collection efforts on applicant screening practices nationally. Importantly, these standards would be accompanied by legitimate HUD oversight–something that has also been called for in other areas of housing policy important to racial equity advocates, such fair housing.
In addition to improving screening and eviction criteria, advocates with expertise in both housing and the criminal legal system suggest expanding linkages from incarceration to the community, such as advance discharge planning, an expansion of dedicated supportive housing programming for individuals immediately after release, and sustained landlord outreach to expand the limited private market options available (Shriver Center, 2015). Indeed, promising practices have already been piloted and implemented in many communities across the United States–thanks in several cases to federal grants and demonstration initiatives. These include the Denver Supportive Housing Social Impact Bond Initiative; the New York City Frequent Users Service Enhancement (FUSE II): the Returning Home – Ohio (RHO); the Burlington Offender Re-Entry Housing Program; and the Family Reentry Pilot Program (FRPP):
Housing Access for People with Criminal Records – National Low Income Housing Coalition (2018)
Removing Barriers to Opportunity for Parents With Criminal Records and Their Children – Center for American Progress (2015)
When Discretion Means Denial – Sargent Shriver Center for Poverty Law (2015)
A Place to Call Home – John Jay College et al (2017)
Helping Moms, Dads, & Kids to Come Home – Legal Action Center (2016)
Arizona housing authorities’ strict criminal background checks often bar people who need a second chance – Howard Center for Investigative Journalism (2022)