WP4 Rough Draft

Accessible housing is arguably the most important factor for a successful reentry in America. Numerous studies have shown the crucial role that stable housing plays in lowering the risk of recidivism in formerly incarcerated people (Lutze). However, barriers to housing continue to exist, putting a great proportion of the newly released population into a state of homelessness, which often leads to reentering the criminal justice system as homeless people are more likely to commit crimes for survival. One of such barriers comes from the criminal record-based housing policies used by public and private housing providers. These housing managers or landlords often use applicants’ criminal histories to bar them off, regardless of the type or age of the conviction or how relevant it is to their ability to perform economic responsibilities as tenants. Additionally, due to the high imprisonment rates of individuals of color, racial minorities are disproportionately influenced by criminal record regulations. While some might say that existing laws such as the certificate of rehabilitation mechanism and the U.S. Department of Housing and Urban Development’s 2016 legal guidance are sufficient to break down the barrier of discrimination in the housing market, they fail to empower formerly incarcerated people who need the help often because these legal tool are made inaccessible by the excessive time requirement or the inconvenient challenging process. Therefore, the government should improve the implementation of these laws to make them more effective and reachable.

Public or private housing providers usually discriminate against individuals with a criminal record due to several reasons, which are all directly or indirectly related to the potential risk of crime. One of the motivations might be to increase public safety of their communities, which seems to justify the denial of applicants with a criminal history. Another possible reason that is often ignored is that there is sometimes an “economic incentive” for property owners to discriminate against people with a conviction record. In the U.S., landlords have a responsibility to protect other tenants if some tenants engage in criminal activities. This means that accepting a potential offender creates the risk of liability for property owners. Taking into consideration the fact that there are almost always more applicants than housing resources available in states like California, many landlords simply reject applicants with a criminal record to avoid this liability.

But where do housing providers find all these criminal records? In the past twenty years, criminal records have been more freely available due to advancements in information technology, and as a result, they are being exploited for purposes other than law enforcement such as housing screening more than ever before. To meet the need from housing providers for criminal background information, a whole industry has developed. For instance, a major company’s brochure promises that it provides data “for over 200 million convictions associated with more than 62 million unique individuals, to which it adds approximately 22,000 new records daily.” (Oyama). Technological advancements in screening now enable results to be pulled from numerous databases in almost real-time, which makes the stigmatization of people with criminal records nowadays unparalleled, especially in the housing market.

Relying on housing policies that discriminate against individuals with criminal histories is a damaging practice to the society 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 reoffending for those with criminal histories tends to converge over time toward the likelihood for those without a record, and the specific value of this time varies with the type of conviction and the offender’s age at the time (Blumstein). In other words, setting lifetime bans to people with conviction histories does not practically benefit public safety, as people with a significantly old conviction record and normal people are equally likely to commit crimes. 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 issue becomes worse as more than 600,000 individuals with criminal records are released each year under the federal mandated shrinking of the prison population in the past decade (additional source). 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. In recent years, a growing body of literature examines the factors that influence a reentry individual’s success in securing housing. 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. Some state governments have created “certificates of rehabilitation”, often issued by the court, in order to alleviate the “collateral consequences” of incarceration. In the same author’s “Criminal records and housing: An experimental study”, a field study indicates that an ex-offender holding such evidence of rehabilitation 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 implementations of this mechanism have shortcomings that could 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 crimes, this rehabilitation period is longer and at most 10 years (additional source). This rule seems reasonable as the risk of recidivism of an ex-offender usually decreases with time, but it might cause the certificate to fail in helping the most vulnerable ones among today’s formerly incarcerated people. Many prisoners released in the past decade were those incarcerated during the period of “mass incarceration”, which was from the 1970s to the end of the 2000s. Starting in the 1970s, the federal government declared a “war on drugs” and adopted “tough on crime” policies, resulting in long incarceration periods being sentenced to thousands of people with minor convictions and very often from communities of color. Now, these people are reentering after 20 or 30 years of imprisonment and in their middle age; in the Francisco Homes, which is a transitional reintegration housing service organization I have partnered with this semester, I even met a 70-year-old man who was released recently. Since this group of former prisoners 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 rehabilitation period can only hinder their steps to reintegration. For those who come out in their old age, their disadvantage in the employment market will make their range 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 the society.

In order to allow ex-prisoners who are qualified and needed to enjoy the benefits of the Certificate of Rehabilitation, the California state government can improve its implementation by adjusting its eligibility requirements. For example, for individuals sentenced into prison with relatively minor convictions during the mass incarceration era, the rehabilitation period could be set to less than 7 years. The length of the waiting period might also change depending on the time the person was imprisoned. Such changes could make the Certificate of Rehabilitation more accessible to formerly incarcerated individuals who need it.

In addition to the certificate of rehabilitation system, 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 housing providers’ use of criminal history with the intention to reduce the discriminatory effects of such policies. 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 claim that criminal history based housing policies are illegal if, without good reason, they disproportionately affect tenants or other housing market participants of a certain protected characteristic such as race (HUD). 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 or is justified. It is worth mentioning that public safety, the most common motivation for housing providers to reject applicants with criminal histories, does not count by itself as a sufficient justification for a policy (Goldstein). That being said, the Fair Housing Act does not “formally” protects individuals from discrimination based on criminal records.

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 some housing providers, considering the interests involved, 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. This unpredictability of enforcement adding onto the potentially long period of time required by questioning a housing policy with the three-step test 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). There is too much uncertainty in using the current laws to protect their rights.

For the Fair Housing Act to effectively reduce criminal record based housing policies and help formerly incarcerated individuals, the first step HUD needs to take is to make the rules in the 2016 guidance unquestionably 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 sets the same standards as the previous guidance. However, I argue that the federal government should take a step further and actively enforce the principles of the FHA by conducting periodical investigations of public housing providers’ policies. Since public housing providers receive the majority of their funding from the government, they have responsibility to abide by federal laws. By shifting the burden to report and challenge discriminatory housing policies from the customers to government officials, the standards of the FHA are more likely to benefit formerly incarcerated individuals in the housing market.

Works Cited

Lutze, Faith E., et al. “Homelessness and Reentry: A Multisite Outcome Evaluation of Washington State’s Reentry Housing Program for High Risk Offenders.” Criminal Justice and Behavior, vol. 41, no. 4, 2014, pp. 471–91, https://doi.org/10.1177/0093854813510164.

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.

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.

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.

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.

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.

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

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/

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