Skip to content Skip to footer

HUD Targets Public Housing Discrimination Against Formerly Incarcerated People

For decades, tenants with criminal records have been restricted from accessing public housing. This may soon change.

People walk through the Jacob Riis Houses, public housing units in New York City, on September 14, 2022.

Each year, approximately 600,000 people are released from state and federal prisons, immigration jails and juvenile detention facilities, but their release, while joyous, can also be fraught.

The challenges faced by those who are released include finding a source of income and reestablishing contact with family and friends, but the fulcrum of successful reentry typically involves finding a safe and affordable residence. According to the Vera Institute of Justice, “Housing instability leads to increased interactions with police, increases the likelihood of arrest and contributes to the revolving doors between homelessness and incarceration.”

John Bae, director of Vera’s Opening Doors to Housing Initiative, told Truthout that when people leave prison, “housing is a way to reconnect. Without that stability, everything in life becomes more difficult.”

This, he explained, is because being unhoused can lead to arrest and jail time for violating laws against sleeping or resting in public parks, camping on sidewalks, or bedding down under bridges or in doorways. The resulting incarceration, the National Low Income Housing Coalition reports, puts the unhoused in a particularly vulnerable position since discriminatory rental policies, coupled with affordable housing shortages, make finding shelter close to impossible for many people with criminal records.

But headway in changing restrictive rental policies may be in the offing.

The state of New Jersey and a small number of cities have passed Fair Chance for Housing laws to limit what landlords can ask prospective tenants and restrict how far back they can go in someone’s personal history. In addition, the federal Department of Housing and Urban Development (HUD) has proposed regulations for public and HUD-supported housing and to protect those at risk of eviction following the arrest and conviction of a household member.

The HUD proposal will not apply to the private housing market. Nonetheless, housing justice activists see the change as a step in the right direction.

Under the proposed rules, applicants for public or HUD-assisted housing will no longer be categorically denied apartments because of criminal convictions. Instead, applicants will be “individually assessed” and all 3,300 U.S. Public Housing Authorities (PHAs) will be required to weigh mitigating factors and peruse multiple sources of information to minimize “unnecessary exclusions.”

“We found that if you leave it to the Public Housing Authorities’ discretion, they often deny people housing.”

The goal, HUD reports, is to ensure the maintenance of housing that protects the “health, safety and peaceful enjoyment of their residents, their staffs and their communities.” At the same time, the shift recognizes that the nearly 50-year-old policy of excluding people with criminal histories has disproportionately harmed Black and Brown people, Native Americans, people with disabilities, and low-income and underserved communities.

Some history: Beginning in 1975, federal regulations instructed public housing authorities to consider the criminal histories of tenants and housing applicants, but it was not until 1996, at the height of the push for federal and state tough-on-crime legislation, that HUD issued its “one-strike, and you’re out” policy. This led to the eviction of entire families — even when only one household member was convicted of a crime. Worse, it made still-housed families afraid that allowing a newly released person to live with them would jeopardize their continued tenancy. Advocates charge that these policies not only increased the ranks of the unhoused but also elevated prison recidivism rates.

Softening HUD’s One-Strike Policy Has Proved Ineffective

Marie Claire Tran Leung, director of the National Housing Law Project’s Eviction Initiative, told Truthout that HUD now understands the negative impact of the one-strike policy and has periodically attempted to soften its impact. For example, in 2011, then-HUD Secretary Shaun Donovan sent a letter to every PHA in the country suggesting that they use discretion and give people with criminal histories a second chance. In the subsequent 13 years, additional memos have repeated the suggestion, but the result has been uneven.

“We found that if you leave it to the Public Housing Authorities’ discretion, they often deny people housing,” says Tran Leung. “Many continue to allow blanket bans for criminal convictions and rely on arrest records even though arrests are not the same as convictions. Other PHAs have devised broad categories to deny housing to people. In Houston, a conviction for civil disobedience or shoplifting can result in a rejection for public housing. Of course, these convictions don’t speak to whether a person can fulfill their responsibilities as a tenant. Brazen look-back periods, going back 25 or 30 years, also make clear that someone with a past criminal conviction will never be free from the conviction in some cities and towns.”

Such discriminatory practices are why Tran Leung supports HUD’s newly proposed regulatory mandate. Requiring PHAs to consider mitigating circumstances and evaluate why the conviction happened, when it happened, and what has happened since, she says, will open up the housing access process and make it fairer and more equitable. These changes, she adds, will give tenants stronger ground to stand on. What’s more, she and other advocates know that fair housing protections work.

“In Cook County, Illinois, thanks to sustained community organizing and advocacy, the local housing authority recently changed the look-back period from 10 years to three,” Tran Leung told Truthout. “In New Orleans, advocates have reduced the types of convictions that trigger automatic rejections and have instituted a panel that evaluates applicants who have records that would previously have disqualified them from consideration. Crime has not spiked as a result, despite fears that the changes would have horrible consequences.”

More recently, New York City passed a Fair Chance for Housing law that will take effect on January 1, 2025; it applies to both public and private multi-dwellings that are not owner-occupied. Lily Shapiro, policy counsel at the David Rothenberg Center for Public Policy at The Fortune Society, was part of the coalition behind the bill. “It took five years of intense advocacy to get it passed,” Shapiro told Truthout. A wide array of advocates and housing activists, she explains, repeatedly testified before the city council, educating lawmakers about the impact of the bans; they also organized rallies in support of the measure. It paid off.

Under the new ordinance, landlords can’t conduct criminal background checks until a housing offer is made. They can then look back three years for misdemeanors and five years on felonies. Although owners can rescind an apartment offer based on their findings, the prospective tenant has to be given a chance to respond, see the report the rejection is based on, and contest the decision.

“The key to having a law like this is robust enforcement. That requires resources,” Shapiro said. “The city’s human rights commission will be responsible for ensuring that the law is obeyed, but they need resources to do outreach and education so that renters understand their rights and both renters and owners understand their responsibilities. Until now, fear has trumped fact, but we’re hopeful that vigilant enforcement will undo the blanket exclusions that have left people unhoused.”

Other Barriers to Public Housing Access

But even with limited use of criminal background checks, Kim Johnson, policy manager at the National Low Income Housing Coalition, told Truthout that other barriers to public housing continue to impede access. “Credit reports and histories and eviction records can be a detriment to getting housing for low-income people and people with criminal convictions,” she said. “Even if an eviction is not carried out, it can be difficult to remove the filing from someone’s record. That’s why we’re working to prevent evictions from being filed at all.”

“People should have a fair chance, a fair shot, at getting a place to live. No one should be judged only by what it says on a piece of paper.”

In addition, she said that tenant screening companies — the largest are Experian and TransUnion — are often used by landlords and PHAs to get a potential renter’s credit history. “These companies tend to do a sloppy job of collecting information,” Johnson tells Truthout. “The companies sometimes mix up people with the same or similar names or include records that should have been expunged. The proposed HUD rule would limit landlord discretion in who they can screen out and restrict the use of these reports. The individualized assessment mandate will help, but enforcement is the eternal issue, especially since Congress has underfunded HUD and fair housing programs for years.”

Like other advocates, Dolfinette Martin, housing specialist at Operation Restoration in New Orleans, told Truthout that while the HUD “proposal does not solve everything,” she supports it. At the same time, like Johnson, she is aware of its limitations. Among other things, she said, it does not apply to private landlords who may be considering someone with a Section 8 voucher as a potential tenant. Moreover, it continues to permanently bar people with convictions for making methamphetamines in federal housing and those on the lifetime sex offender registry from all HUD-supported housing.

But an even bigger problem, she said, is the shortage of available and affordable public housing in Nola. Prior to Hurricane Katrina, she reports that the Housing Authority of New Orleans (HANO) managed 7,379 units of public housing; 19 years later, HANO manages just 2,000.

Not surprisingly, this has had a devastating impact on people trying to find affordable housing upon their release from prison, but it is particularly difficult for newly released mothers.

Elizabeth Hendren, advocacy counsel at the Seattle, Washington-based Sexual Violence Law Center, told Truthout that, “Mothers exiting prison were typically the primary caregivers of their children before they were jailed. When they get convicted, their children typically end up in foster care. The biggest barrier to family reunification is the lack of housing. Many of these mothers are recovering from childhood and adult trauma and getting housing is a critical first piece. They flourish when they’re given housing. Women who’ve experienced interpersonal violence were usually under their abusers’ control. When these women get an apartment of their own, they take pride in it. It helps their self-esteem and allows them to get their lives back.”

HUD is encouraging the public to weigh in on the proposed rule; they have until June 10 to do so. After that, staff will review the comments. The agency is expected to write the final rule before year’s end.

To date, the preponderance of reactions to the proposal have been positive. “A criminal record has no bearing on tenancy outcomes, and there is no evidence that shows excluding people with conviction histories makes our communities safer,” Emma Maleko, a staff member at the Vera Institute wrote. “Without safe, affordable housing it is incredibly difficult for most individuals released from incarceration to make it. I didn’t realize the tremendous harm our cities, counties, states and nation do to individuals, families and communities until I ended up in jail for 136 days,” a man identified only as Doug Dunbar, wrote.

Tenants and advocates know that the HUD regs, as proposed, are only a small step toward housing justice, which will also require massive outlays of money for the construction or renovation of units that are truly affordable to low- and moderate-income people. At the same time, they know that even tiny changes can help.

“For years, fearmongering and racism have kept people leaving prison out of public and HUD-supported housing,” the Vera Institute’s Bae told Truthout. “People should have a fair chance, a fair shot, at getting a place to live. No one should be judged only by what it says on a piece of paper. Trying to predict future behavior by looking at the past is ridiculous. It’s also flawed.”

A critical message, before you scroll away

You may not know that Truthout’s journalism is funded overwhelmingly by individual supporters. Readers just like you ensure that unique stories like the one above make it to print – all from an uncompromised, independent perspective.

At this very moment, we’re conducting a fundraiser with a goal to raise $34,000 in the next 4 days. So, if you’ve found value in what you read today, please consider a tax-deductible donation in any size to ensure this work continues. We thank you kindly for your support.