The emerging consensus that our country’s punitive and costly experiment with mass incarceration has failed is one of the most important developments for racial justice advocates in recent decades.  However, as efforts to reduce prison populations take root, formerly incarcerated people face significant barriers and obstacles in their efforts to successfully reintegrate into their communities upon release.

While some recent attention has been placed upon lifting employment barriers, as seen with President Obama’s Fair Chance Hiring initiative launched this week and a burgeoning movement to “Ban the Box” has gained traction across the country, little attention has been placed on the housing barriers faced by people with criminal histories. That’s why the U.S. Department of Housing and Urban Development’s (HUD) recent issuance of federal guidance that makes clear that automatic bans on people with any criminal history may violate the Fair Housing Act is an important development in the fight against mass incarceration.

Policies that deny housing to people with any criminal record and their families are particularly pernicious.  The United States has the highest prison rate among any country in the world with nearly 100 million adults bearing a criminal record in some form, according to the Bureau of Justice Statistics.  This crisis of mass incarceration has disproportionately impacted African Americans who make up 37.7 percent of the prison population though only 12 percent of the population overall, based on Federal Bureau of Prisons statistics. Without the ability to find shelter, formerly incarcerated individuals face homelessness and a greater risk of recidivism.

While research shows that stable housing is a pivotal factor for those re-entering society from prison, automatic disqualification of people with criminal records is standard operating procedure for many landlords. The proliferation of criminal background screening technology,  including websites that publicize mug-shots of people who have faced arrest, has made these practices easier and less expensive for landlords. As a result, sometimes even those who have been arrested but not convicted, face serious obstacles in finding housing.



By blocking the path to safe and stable housing, these bans block the path to social and economic stability for many otherwise qualified and deserving people without regard to factors such as the nature and age of the past crime, the age of the individual at the time of the offense and any evidence of rehabilitation.

However, bans imposed by landlords and housing providers may violate the Fair Housing Act which prohibits discrimination in housing on the basis of race, color, religion, sex, familial status, national origin, and disability. As the U.S. Supreme Court made clear last June in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, housing policies and practices that have an unjustified discriminatory effect on minority groups may run afoul of the Act.

In light of profound racial disparities in the criminal justice system where the U.S. Department of Justice projects that one in three African American men and one in six Latino men will go to prison over the course of their lifetimes, policies that flatly ban people with a criminal record from accessing housing have the type of discriminatory effect that should sound an alarm.

Landlords justify such policies on the basis of concerns about the safety of other tenants and neighbors, without engaging in an individualized assessment of prospective tenants with criminal records to determine whether or not past criminal conduct actually shows that a prospective tenant would pose a risk to others. If someone has been arrested but not convicted, convicted of a minor and non-violent offense that has no relation their ability to be a good tenant or committed an offense that occurred many years ago, that person likely poses a minimal risk to other tenants.  Simply put, reliance on a criminal record alone without a more searching and individualized inquiry is not a valid basis for denying someone access to housing. If a person who committed a relevant offense more recently can demonstrate evidence of rehabilitation and show that they have turned their life around, then housing providers — both public and private — should not deny that person the fair chance they may deserve.

More resources are needed in the fight against landlords who deny housing opportunities to people with a criminal history to help promote inclusive policies that afford people with criminal records a second chance. Without that second chance, people leaving jails and prisons are denied the opportunity to get back on their feet and successfully reintegrate into their communities. Thus, any meaningful effort to end mass incarceration must address the most critical and first-level barrier faced by people with criminal records – access to housing.

Kristen Clarke is president and executive director of the Lawyers’ Committee for Civil Rights Under Law.  Follow her on Twitter @votingrights.



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