No Second Chances When It Comes to Housing

Advocates are organizing against what they say is an overlooked civil rights issue: the exclusion of ex-offenders, overwhelmingly people of color, from public and subsidized housing. Many subsidized housing providers employ lifetime bans against people with criminal records, despite a stated commitment to “second chances” by the Department of Housing and Urban Development (HUD).

After nearly a decade of homelessness, Carter Anderson thought his break had finally come in October 2014, when the City of Vacaville Housing Authority told him that he had been granted a housing choice voucher. Anderson, 30, works a part-time job, but isn’t offered enough hours to make ends meet. He hoped that the voucher, entitling him to rental assistance through the Department of Housing and Urban Development’s (HUD) Section 8 program, would change that.

Anderson had already spent six years on the housing authority’s waiting list, but that wasn’t the last barrier he would face: He soon found his application rejected by a string of landlords on the basis of a conviction for drug possession he’d received as a teenager. Under HUD’s regulations, he had just 120 days to find a suitable apartment and sign a lease within the city of Vacaville, California, where he says affordable housing is in short supply to begin with. Ultimately, the voucher expired in February as Anderson scrambled to find an apartment that would accept him, leaving him crushed and back to square one.

“That was 10 years ago,” Anderson said of the conviction that prevented him from securing subsidized housing. “I don’t see why that should count against me. I can’t wait another six years; I can’t even see another six years from now.”

A new report from the Sargent Shriver National Center on Poverty Law says that experiences like Anderson’s amount to an overlooked civil rights issue: Ex-offenders, who are disproportionately people of color, often face insurmountable barriers in accessing housing. While one out of 17 white men is expected to go to prison at some point during his lifetime, the rate climbs to one in six for Hispanic men, and one in three for Black men.

While HUD has a stated commitment to “second chances” for people with criminal records, many HUD-subsidized housing providers are employing lifetime bans on applicants who have been incarcerated for nonviolent crimes, according to the Shriver Center. One Texas housing authority explained its policy this way: “We do not allow people convicted of felonies to live here.”

While federal law requires public housing authorities and project owners to ban applicants who have been convicted of drug manufacturing and certain violent offenses, more prohibitive criteria are imposed at housing providers’ discretion. The report, “When Discretion Means Denial: A National Perspective on Criminal Records Barriers to Federally Subsidized Housing,” calls on HUD to do more to ensure that subsidized housing providers stop perpetuating the cycle of incarceration and homelessness.

In a nationwide review of the admission policies of public housing, housing choice voucher and Section 8 programs, the Shriver Center found a range of problematic policies. In addition to placing lengthy bans on ex-offenders, some housing providers deny potential tenants on the basis of prior arrests, even if they never led to a conviction, or fail to consider factors such as whether an applicant’s arrest record was related to their status as a domestic violence survivor, or other mitigating circumstances. Still others disqualify tenants based on vague or subjective categories of crime. In Norfolk, Virginia, applicants can be rejected from public housing if they have been convicted in the past 10 years of “immoral conduct of any type.”

As the United States prepares for a review of its human rights record by the UN this year, housing advocates are making the case that the exclusion of millions of poor people of color from public and subsidized housing constitutes a human rights crisis.

Breaking the Cycle

At least 70 million people in the United States have some sort of a criminal record, and a bevy of studies show that ex-offenders are more likely to end up homeless, and vice versa. About 20 percent of single adults experiencing homelessness have been incarcerated previously, and of those being released from prison, about one in 10 will experience homelessness in the future. At that point, according to a 2010 study from the Center for Housing Policy, ex-offenders who are unable to find adequate housing upon their release are more than twice as likely to reoffend as those with stable housing.

The case of Keith Landers, an African-American man denied for public housing in Chicago in 2008 as the result of previous arrests, epitomizes this cycle. During 13 years spent on the Chicago Housing Authority’s (CHA) waiting list, Landers was frequently homeless, and racked up a series of arrests for what housing advocates call “acts of living” – charges stemming from sleeping, bathing or asking for money in public spaces. When his housing application finally came up for review, the CHA denied Landers on the basis of these arrests, even though none had resulted in convictions.

“The most perverse thing about these policies is that they’re all part of this continuum,” said Eric Tars, a senior attorney at the National Law Center on Homelessness and Poverty. “There are so many laws out there that essentially criminalize being homeless, and if you get arrested, that erects a further barrier to you getting housing. You could be charged as a sex offender for urinating outside, then for the rest of your life you’re ineligible for most types of housing.” In a 2010 review of its human rights record, the United States received a rebuke from the UN Human Rights Council for the barriers to housing placed in front of people with criminal records.

With the help of a local housing law group, Landers filed suit in 2010 to challenge the denial of his application by CHA. An appellate court ruled in his favor, holding that past arrests were not conclusive proof of criminal activity, and could not be used as the sole basis for rejecting applicants.

The case was an important victory, but Marie Claire Tran-Leung, author of the Shriver Center report, says that progress in overturning practices like the CHA’s has nonetheless been slow. She takes heart from the progress made in the employment realm, where a movement to “ban the box” has successfully prohibited certain employers from asking job applicants about their criminal histories in 13 states and 90 cities and counties.

EEOC Blanket Ban Outlaw

“In the employment sector, we’re seeing more conversations about the harmful effects of screening out people with criminal records,” Tran-Leung said. “In the housing sector, we need to do some catch-up.”

A Civil Rights Violation?

Ex-offenders and housing advocates are fighting exclusive policies on several fronts, pushing to expand programs that assist ex-offenders in securing housing and to clarify federal law dealing with the use of criminal background checks in subsidized housing.

Fundamentally, some advocates believe, the policies must be challenged as a civil rights violation: Because people of color are disproportionately represented in the US criminal justice system, admission policies that automatically bar people with criminal records or arrests constitute racial discrimination.

Two recent lawsuits could provide a breakthrough in these areas and spur further organizing.

In January, a Texas county court entered a partial summary judgment in favor of Ana Baez (a pseudonym), a disabled woman who was denied from two separate rent-subsidized complexes. The complexes are managed by the Apartment Management and Investment Company (Aimco), one of the largest providers of subsidized housing in the United States. The problem of restrictive criminal background checks is compounded by the fact that a large number of subsidized housing complexes are operated by a handful of management companies – when ubiquitous landlords employ the same set of prohibitive policies everywhere they rent, people like Carter Anderson may find themselves shut out of most of the affordable housing in their area.

Baez’s applications were rejected as a result of a charge of failure to identify to law enforcement – the act of refusing to provide one’s name or other identifying information to police officers during a lawful stop or arrest, or providing false information – that she had received three years previously. The charge was a misdemeanor, and she had pled no contest to it, but under Aimco’s tenant selection criteria, she was nevertheless barred for life as a result.

The company’s criteria, learned Fred Fuchs, an attorney at Texas RioGrande Legal Aid who represented Baez, consisted of a one-page matrix listing several categories of crimes and a resulting action. All felonies, and most misdemeanors, result in denial. “The misdemeanors that they do allow you to have are strange ones that you almost never see,” Fuchs said. “I have never had a client who’s come in with a past conviction related to a barking dog, or fishing without a license.”

While some areas of federal law do deal with the tenant selection criteria that can be used by housing providers who receive federal subsidies, the law is “convoluted” in the way that it’s written, says Fuchs. A section of US code pertaining to federally subsidized housing providers mandates that their tenant selection criteria must employ criminal history look-back periods that are “reasonable” in duration. But the code neither defines what constitutes a “reasonable” period, nor gives applicants a clear right to contest “unreasonable” policies. The result, Fuchs explains, is that “people have really struggled to figure out how to challenge these policies.”

But in a landmark decision, the Bexar County Court ruled that a lifetime ban on applicants with criminal backgrounds was unreasonable however defined, and ordered the defendants to reconsider Baez’s application and revise their rental selection guidelines.

Aimco has indicated that it may appeal the decision, and told Truthout in a statement: “Aimco conducts criminal background screens on all applicants at both affordable and market rate properties across the country. We believe our system is fair and reasonable and serves the larger purpose of maintaining safe and peaceful homes for our residents. We will continue to educate the court about our process and file appeals where necessary.”

Because Aimco operates nationwide, housing advocates believe the case could strike a blow against large providers that reap profits from subsidized housing while locking out people with criminal backgrounds. In addition to preventing the company from employing blanket bans against tenants with criminal records in Texas, the ruling, if upheld, could leave Aimco’s tenant selection criteria vulnerable to legal challenges in other states, and provide a framework for further challenges against other subsidized providers.

Meanwhile, a pending case in New York takes the issue of racial discrimination head on. In October, the Fortune Society, a nonprofit organization that supports ex-offenders in reintegration, filed suit against the owners and management of a multi-unit apartment building in Queens that repeatedly refused to admit its clients. The suit alleges that the blanket ban on renting to people with criminal records is a civil rights violation under the Fair Housing Act – legislation passed as part of the 1968 Civil Rights Act that prohibits discrimination in the sale or rental of housing – because such a ban disproportionately impacts African-Americans and Hispanics.

While most legal challenges against tenant selection policies have been leveled at publicly subsidized housing providers and hinged on legal technicalities, the Fortune Society suit is one of the first to directly challenge a blanket ban on housing imposed by a private landlord as racial discrimination.

“If you have no place to live when you leave prison, what chance do you have to make it?” said JoAnn Page, president and CEO of the Fortune Society. “From housing to employment, and from unfair policing policies to education, men and women who return home from prison face unthinkable obstacles at almost every turn in the road. With this lawsuit, we have an opportunity to remove one of the biggest obstacles, and to make it clear that blanket bans on housing for the formerly incarcerated are illegal and will not be tolerated.”

“HUD Needs to Step Up”

Ultimately, fair housing advocates hope to challenge racial discrimination in both the private and public housing markets. The two are related, said Kate Walz, the director of housing justice at the Shriver Center, “because the private market tends to take their guidance from what HUD is doing” in the realms of both criminal background checks and harsh “one-strike” eviction policies. “There’s this perception that [private landlords] need to enact the same type of policies as HUD, because otherwise they’re going to get ‘all those people who are rejected from subsidized housing.'”

HUD has a legal duty not only to refrain from discriminating, but to “affirmatively further fair housing,” Walz said. “They are obligated to assess whether policies they’ve advanced, enacted or permitted have a disparate impact on some groups compared to others. We submit that this assessment has not been done when it comes to criminal background screening. This is where it’s up to HUD to step up.”

In 2011, then-HUD Secretary Shaun Donovan issued a letter to public housing authorities reiterating the importance of “second chances” for people with criminal records and a commitment to “helping ex-offenders gain access to one of the most fundamental building blocks of a stable life – a place to live.”

“The Department is engaged in several initiatives that seek a balance between allowing ex-offenders to reunite with families that live in HUD subsidized housing, and ensuring the safety of all residents in the programs,” Donovan’s letter reads. “To that end, we would like to remind you of the discretion given to public housing agencies when considering housing people leaving the criminal justice system. The Department encourages you to allow ex-offenders to rejoin their families in the Public Housing or Housing Choice Voucher programs, when appropriate.”

But housing activists say this “encouragement” prompted little change on the part of public housing authorities. “They essentially took [the letter], put it in their pocket and continued to deny people,” Walz said.

In response to inquiries from Truthout about follow-up to the 2011 letter, HUD pointed to a pilot program launched by the Housing Authority of the City of Los Angeles in 2013 allowing some individuals who were released from prison or jail within the last year to join the household of family members currently residing in subsidized housing. When asked if the department was planning to issue any further guidance to public housing authorities on the issue of criminal background screening, however, a HUD spokesperson told Truthout that the 2011 letter is “the ultimate decision of the housing authority as to how they deal with criminal background screening.”

While programs allowing ex-offenders to live with family members in subsidized housing “have shown some success in getting people with records into housing,” said attorney Eric Tars, “they would need to be expanded dramatically.” Such programs, moreover, do little to address the needs of those people in prison who don’t have family members to live with, or whose family members have similarly been unable to access subsidized housing.

As the United States prepares for its second review by the UN Human Rights Council in March, the National Center on Homelessness and Poverty Law plans to highlight the lack of progress made on increasing access to housing for ex-offenders, as well as in reducing homelessness overall.

“Only a quarter of people who are income-eligible for subsidized housing actually get it,” Tars said. “The consequences of being convicted continue to last long after your jail term is actually over – the penalties far outweigh the crime, if there even was one. Instead of looking to bring people into housing, we’re looking for ways to get them out.”