Reducing Housing Discrimination against Criminal Records under the Context of Mass Incarceration

Accessible housing is arguably the most significant factor for a successful reentry in America. Numerous studies have shown that stable housing plays a crucial role in lowering the risk of recidivism in formerly incarcerated people (Leasure 2019). However, newly released prisoners face numerous challenges in securing housing today, one of those being the discrimination they encounter in housing application. Both public and private housing providers have been using policies with criminal record restrictions to bar applicants with criminal histories off (Legal Action Center 2); these housing policies often disregard the type or age of the conviction or how relevant it is to their ability to perform economic responsibilities as tenants (Corinne qtd. in Schneider 431).

What makes this problem of reentry-housing, or more specifically, the problem of the discrimination against formerly incarcerated individuals in housing policies so important today is the nation’s recent diversion from mass incarceration. Forty years ago, the federal government started to adopt “tough on crime” policies and declared a “war on drugs”, resulting in thousands of people with minor crimes who posed little threat to public safety going to prison; those with convictions as small as stealing 14 dollars were sentenced to life (Guardian News and Media). This era created the current world’s biggest prison population, which is disproportionately composed of people from minority communities (Keith). Within the past decade, the U.S. finally began to shift toward decarceration due to the increasing economic stress of prison housing (Eisenberg qtd. in Schneider 429). Thousands of prisoners are returning to society after 20 to 40 years of imprisonment; they are in their middle or even old age but possess little work experience or savings.

Therefore, it is unreasonable that these individuals, who have served time way longer than necessary in prison, should be denied a second-chance into the society solely due to their conviction histories. While some might say that existing laws such as the Certificate of Rehabilitation mechanism or the U.S. Department of Housing and Urban Development’s 2016 legal guidance on the Fair Housing Act are already sufficient to break down the barrier of discrimination in housing, these laws, due to excessive time requirements or inconvenient challenging processes in reality, fail to empower the individuals released from the mass incarceration era who need the support and the equity in housing the most. Therefore, the government should make these legal tools effective and reachable to these people by, for example, shortening the waiting time for the Certificate of Rehabilitation and conducting periodic investigations on housing policies that violate the FHA.

Discrimination against individuals with criminal records in housing traces back to several reasons, which are all related to the potential risk of re-offense. Most of the criminal record-based housing policies, especially those of public housing agencies, came from the law enforcements of the “tough on crime” era. In 1988, the newest Anti-Drug Abuse Act with associated regulations started to mandate the policy that “tenants who engage in any drug-related criminal activity may be subject to eviction” in public housing, famously known as the “one-strike policy” (Schneider 435). Specifically, housing managers were allowed to end a tenancy if a member of a tenant’s household or a guest is suspected of engaging in criminal activity on or near public housing sites. Under this policy, tenants were defenseless against the decisions of housing authorities; a simple accusation of criminal activity could cause the eviction of a whole family. Other “one-strike rules” include policies regarding housing applications such as giving automatic denial to any applicant with criminal histories (Corinne qtd. in Schneider 431). Only during recent years, these punitive policies began to be replaced by more reasonable ones (Legal Action Center 2).

Another significant reason for property owners to discriminate against people with conviction records is economic benefits, which came from the change in landlords’ responsibilities and liabilities of landlords happened in the last century. Traditionally, landlords were not responsible for any crimes committed by tenants; as legislation shifted, they now gain duties to protect tenants from the criminal activities of other tenants (Oyama). Consequently, accepting a potential offender creates the risk of liability for property owners. In order to avoid the liabilities, landlords utilized more criminal record-based policies and started to find ways to investigate the criminal history information of housing applicants.

Relying on housing policies that discriminate against individuals with criminal histories is a damaging practice to the society as a whole not only because such stigmatization is often unreasonable, but also because these policies will bring foreseeable consequences on public safety. Recent research demonstrates that the likelihood of re-offending for those with criminal histories tends to decrease over time and eventually intersect the likelihood for those without a record; the specific value of this time varies with the type of conviction and the offender’s age at the time (Blumstein). In other words, policies that set long-time or even lifetime bans to people with conviction histories such as the “one-strike rules” do not practically increase public safety in any way, since ex-prisoners with relatively minor or significantly old offenses have very likely already “recovered” in terms of risk of recidivism. Such ex-offenders are common as more than 600,000 prisoners are being released each year under the federal mandated shrinking of the prison population in the past decade, many of them being incarcerated during the “tough on crime” era (Incarceration & Reentry). Moreover, mass rejections of formerly incarcerated people to stable housing will damage public safety. As more and more newly released individuals fail to secure housing, they are forced to move frequently and eventually become homeless. Compared with those with conviction records who are able to acquire stable housing, those who are unable to do so have a significantly higher risk of being rearrested (Oyama). This evidence indicates that unstable housing is a critical factor that puts ex-prisoners back into the criminal justice system. Society will not become safer if the need for stable housing of these reentering individuals cannot be fulfilled.

Taking the discrimination into consideration, researchers have been trying to identify factors that lead to success in finding housing for formerly incarcerated individuals. For example, in Leasure’s “Securing Private Housing with a Criminal Record”, through analysis of data collected from a 2017 field experiment, the author shows that the type of conviction, age of conviction, and number of convictions, and several extra positive factors such as work and credit history make a difference in the outcome. In the same author’s “Criminal records and housing: An experimental study”, a field study indicates that an ex-offender holding evidence of rehabilitation such as a Certificate of Rehabilitation in California was substantially more likely to be given consideration for housing than an ex-offender without such evidence, though such certificates were originally designed to improve the employment of formerly incarcerated individuals.

Although studies have shown that government-issued certificates of rehabilitation can help formerly incarcerated people overcome discrimination in housing application, the current implementation of this mechanism has shortcomings that greatly limit its power. For example, in California, formerly incarcerated individuals with any crime convicted are eligible to apply for a Certificate of Rehabilitation after at least 7 years; for those with serious convictions such as sex-related crimes, this rehabilitation period is longer and becomes at most 10 years (M.). While this rule seems logical since the risk of recidivism of an ex-offender usually falls back to the normal level over years, it might cause the certificate to fail in helping the most vulnerable ones among today’s formerly incarcerated people — those incarcerated for minor crimes during the “tough on crime” era.

Since this ex-prisoner population often posed little threat to public safety from the start and have served times that are way longer than needed in the prison, the 7-year mandatory rehabilitation period can only hinder their steps to reintegration. For the innumerable people who come out in their middle or even old age after decades of imprisonment, if they cannot get publicly subsidized housing or go into transitional housing programs, which is more than common, their low savings and disadvantages in the job market due to the lack of employment experience will make their range of options of affordable housing even narrower. If they can obtain a Certificate of Rehabilitation shortly after release, it will be much easier for them to secure housing and reenter society.

In order to allow those incarcerated for minor convictions to enjoy the benefits of the Certificate of Rehabilitation, the California state government can improve the implementation by adjusting the certificate’s time eligibility requirements. For example, for individuals who went to prison because of minor misdemeanors such as shoplifting, trespassing, or drug possession, the required rehabilitation period to get the certificate should be reduced to 1 to 2 years. For those originally sentenced to life but are released early under new legislation, the court should immediately investigate the severity of their convictions and assign appropriate lengths of waiting period for the certificate; if an ex-prisoner was given life sentence for small crimes such as petty theft, the court should allow the individual to obtain the Certificate of Rehabilitation immediately upon release or within several months. The length of the waiting period might also be adjusted according to the age of the person when imprisoned. Such changes could make the Certificate of Rehabilitation more accessible to formerly incarcerated individuals from the mass incarceration era.

While the certificate mechanism might help ex-prisoners through raising the success rate of housing applications, people remain powerless when facing denials that are solely due to housing providers’ discrimination against criminal records. In order to give formerly incarcerated individuals the legal tool to defend their rights in such situations, the U.S. Department of Housing and Urban Development publicized a legal guidance in 2016 on how the Fair Housing Act standards should be applied to public housing providers’ use of criminal history with the intention to reduce the discriminatory effects of such policies. Since the Fair Housing Act only bans discrimination based on certain factors such as race, color, sex, or country of origin in the rental and sale of housing, the 2016 guidance utilized the theory of disparate impact to rule criminal history-based housing policies illegal if, without good reason, they disproportionately affect tenants or other housing market participants of a certain protected characteristic such as racial minorities (U.S. Department of HUD). The actual proposed procedure works as follows: in order to prove that a housing policy produces disparate impact and therefore should be removed, a plaintiff must initiate a case to the court, which includes a three-step test that requires both the plaintiff and the housing provider being sued to provide evidence on whether the policy in question creates discriminatory effects and is sufficiently justified. As the complicated process suggests, challenging a discriminating housing policy requires abundant time and energy from all parties involved including the formerly incarcerated applicant, who likely have little of these resources. It is worth mentioning that public safety, the most common motivation for housing providers to reject applicants with criminal histories, does not count as a sufficient justification solely by itself (Goldstein). That being said, the 2016 guidance addresses the problem of discrimination from the perspective of potential disparate impact, and the Fair Housing Act does not “formally” protects individuals from discrimination based on criminal records, which could result in weak effects on the current design of public housing policies.

Moreover, since HUD issued the guidance without notice-and-comment rulemaking, the guidance can hardly be enforced in reality and thus has very limited capability to help formerly incarcerated people. Notice-and-comment rulemaking is a process that government agencies must exercise before publicizing a new rule to guarantee that the rule is recognized as “legislative” under the Administrative Procedure Act (Goldstein). In other words, the fact that HUD did not publicize the 2016 guidance after the notice-and-comment process creates the possibility for its regulations to be ruled as non-legislative on the court. When HUD attempts to enforce the rules on housing providers who are determined to protect their interests, they will likely exhaust all legal options to contest the rule’s legality on the grounds that HUD cannot implement regulations that were issued without notice-and-comment rulemaking, which makes the guidance practically unenforceable (Goldstein). This unpredictability of enforcement adding onto the potentially long period of time required by the three-step procedure makes it unrealistic for formerly incarcerated individuals to challenge a denial in housing due to discrimination. They often do not have the time and money so that it is more practical to go look for housing elsewhere; or it is possible that by the time they successfully challenged a discriminatory housing policy, the housing unit has already been promised to other candidates (Schneider 429). The current legal solution to the problem of criminal record-based discrimination in housing involve too much uncertainty.

For the Fair Housing Act to effectively reduce such discriminating housing policies and support formerly incarcerated individuals, the first step HUD needs to take is to make the rules in the 2016 guidance formal and legislative. Specifically, as Goldstein argues in “HUD’s Legal Guidance: an Administrative Dilemma”, HUD should issue a new legislative guidance with notice-and-comment rulemaking that essentially implements the same set of standards as the previous guidance. However, I argue that the federal government should take a step further and actively enforce these principles by conducting periodical investigations on public housing policies. For example, HUD might allocate employees to review the policies of every public housing authority every other year; if a violation of the FHA is suspected and the officials do find evidence of disparate impact, they could initiate a three-step procedure with the housing provider to challenge the policy in question. Since public housing providers receive the majority of their funding from the government, it is reasonable for them to strictly abide by federal laws. By shifting the burden to report and challenge discriminatory housing policies from the customers to government officials, the new standards of the FHA are more likely to benefit formerly incarcerated individuals because they likely no longer have to take the time loss and risk involved in the challenging process themselves.

Forty years of mass incarceration have produced irreversible damage to American society and especially to the minority communities. The striking facts that one-ninth of African American men in their twenties or thirties are currently incarcerated, and one-third of African American men will spend time in jail or prison at some point in their lives show that racial minorities are systematically being uprooted from their communities and criminalized (Eisenberg qtd. in Schneider 425). This process not only brings destruction to the life of these individuals but also indirectly to their home communities because high imprisonment rates have been found to slowly dismantle the social pressure to prevent crime (Roberts qtd. in Schneider 428). America needs to find ways to make amends for the damage done. One crucial aspect of change should be to stop society’s punitive treatments toward ex-prisoners such as barriers in the employment market and discrimination in housing. The government must eliminate the obstacles barring re-entry individuals in need from affordable housing by implementing laws that help them overcome the discrimination and also defend their legal rights, so that they can break the cycle of imprisonment and homelessness and rejoin as a normal member of society.

Works Cited

BLUMSTEIN, ALFRED, and KIMINORI NAKAMURA. “REDEMPTION IN THE PRESENCE OF WIDESPREAD CRIMINAL BACKGROUND CHECKS.” Criminology, vol. 47, no. 2, 2009, pp. 327–59, https://doi.org/10.1111/j.1745-9125.2009.00155.x.

Goldstein, Matthew D. “HUD’S 2016 LEGAL GUIDANCE: AN ADMINISTRATIVE DILEMMA.” Administrative Law Review, vol. 69, no. 4, fall 2017, pp. 951+. Gale OneFile: LegalTrac, link.gale.com/apps/doc/A712386392/LT?u=usocal_main&sid=bookmark-LT&xid=31204ab4. Accessed 28 Nov. 2022.

Guardian News and Media. (2022, November 2). Sentenced to life for stealing $14: ‘I needed help, but was given jail’. The Guardian. Retrieved December 3, 2022, from https://www.theguardian.com/us-news/2022/nov/02/sentenced-to-life-for-stealing-14-i-needed-help-but-was-given-jail?CMP=Share_AndroidApp_Other

Incarceration & reentry. ASPE. (n.d.). Retrieved November 28, 2022, from https://aspe.hhs.gov/topics/human-services/incarceration-reentry-0

Keith, D., & Eisen, L.-B. (2022, November 17). The history of mass incarceration. Brennan Center for Justice. Retrieved December 3, 2022, from https://www.brennancenter.org/our-work/analysis-opinion/history-mass-incarceration

Leasure, Peter. “Securing Private Housing with a Criminal Record.” Journal of Offender Rehabilitation, vol. 58, no. 1, 2019, pp. 30–49. ProQuest, http://libproxy.usc.edu/login?url=https://www.proquest.com/scholarly-journals/securing-private-housing-with-criminal-record/docview/2205413651/se-2, doi:https://doi.org/10.1080/10509674.2018.1549182.

Leasure, Peter, and Tara Martin. “Criminal Records and Housing: An Experimental Study.” Journal of Experimental Criminology, vol. 13, no. 4, 2017, pp. 527–535. ProQuest, http://libproxy.usc.edu/login?url=https://www-proquest-com.libproxy1.usc.edu/scholarly-journals/criminal-records-housing-experimental-study/docview/2110534156/se-2, doi:https://doi-org.libproxy1.usc.edu/10.1007/s11292-017-9289-z.

Legal Action Center. (2016). Helping moms, dads, and kids to come home: Eliminating barriers to housing for people with criminal records. https://indd.adobe.com/view/04243d7e-5a9a-4bd8-9d97-1bb1ce77b9c5

M., D. (2022, August 6). Certificate of rehabilitation in California — a step-by-step guide. Shouse Law Group. Retrieved November 28, 2022, from https://www.shouselaw.com/ca/defense/post-conviction/certificate-of-rehabilitation/

Oyama, Rebecca. “DO NOT (RE)ENTER: THE RISE OF CRIMINAL BACKGROUND TENANT SCREENING AS A VIOLATION OF THE FAIR HOUSING ACT.” Michigan Journal of Race & Law, vol. 15, no. 1, 2010, pp. 181–222. ProQuest, http://libproxy.usc.edu/login?url=https://www.proquest.com/scholarly-journals/do-not-re-enter-rise-criminal-background-tenant/docview/194672177/se-2.

Schneider, Valerie. “The Prison to Homelessness Pipeline: Criminal Record Checks, Race, and Disparate Impact.” Indiana Law Journal (Bloomington), vol. 93, no. 2, 2018, pp. 421–55.

U.S. Department of Housing and Urban Development Washington, DC 20410–0500. (n.d.). Retrieved November 28, 2022, from https://www.hud.gov/sites/documents/HUD_OGCGUIDAPPFHASTANDCR.PDF