Over the holidays, President Obama commuted the prison sentences of 95 men and women, giving most of them an April 2016 release in place of indefinite imprisonment. To each person, he wrote that the president’s clemency power “embodies the basic belief in our democracy that people deserve a second chance after having made a mistake in their lives that led to a conviction under our laws."
Upon their release, however, these men and women may find that the rental housing market does not always offer the same second chance to the formerly incarcerated. To give them the best opportunity to move beyond their past mistakes, the Obama Administration will need to open more than the doors leading out of prison. It must also open the doors leading into housing. Otherwise, these men and women will be left with a false hope of redemption.
Citing the importance of stable housing to the successful reintegration of the formerly incarcerated, HUD (the federal agency that directs U.S. housing policy) issued a notice in November 2015 on the use of criminal records in federally subsidized housing. Although the notice touched upon important topics, such as the improper use of arrest records to prove criminal activity, it glossed over a number of issues that are critical to addressing housing barriers for people with criminal records.
To bring attention to those issues, the Shriver Center, with the assistance of the Housing Justice Network and over 50 other organizations, sent a letter to HUD with detailed recommendations for closing the gaps that its notice left behind.
Two critical issues call for urgent attention. First is the need for guidance on developing screening criteria in compliance with the Fair Housing Act (FHA). As explained previously, this guidance will help to curtail the unjustified, disparate racial impact of criminal records screening resulting from the racial disparities that pervade the criminal justice system. Such guidance is also long overdue, especially considering that the Equal Employment Opportunity Commission issued its policy on the use of criminal records under Title VII (the employment counterpart to the FHA) back in 2012.
Second, HUD guidance is also needed to outline a housing provider’s duty to limit its inquiry to a “reasonable time” before admission and to refrain from imposing blanket bans.
The letter to HUD discusses additional areas affecting people with criminal records that merit HUD’s attention. It asks specifically that HUD take the following actions:
- use more affirmative language to emphasize that “one strike policies” are inconsistent with HUD’s stated commitment to expanding housing opportunities for people with criminal records;
- require, rather than simply encourage, the consideration of mitigating circumstances across all the federally subsidized housing programs to put an end to automatic admission denials, subsidy terminations, and evictions on the basis of criminal records;
- confirm that non-criminal citations, such as traffic and municipal violations, should not result in adverse housing decisions;
- ensure that applicants and residents receive copies of criminal reports used against them, whether the reports come from the police or a tenant screening company;
- clarify that public housing authorities can add people with criminal records onto current leases, such as with their family members, and that they receive the same rights as other household members;
- eliminate rescreening requirements for participants who have already been previously screened for criminal activity, such as those trying to port their Housing Choice Vouchers, return to redeveloped public housing, or obtain special vouchers, such as Tenant Protection Vouchers and Enhanced Voucher; and
- stress that civil rights requirements apply across all the federally subsidized housing programs, including Moving-to-Work jurisdictions and Rental Assistance Demonstration (RAD) conversions.
Given President Obama’s focus on criminal justice reform in the last year of his administration, the time is now for HUD to act upon these recommendations and fulfill the promise of second chances made to those who were granted clemency and to everyone like them beginning their lives again after incarceration.
On December 28, 2015, HUD sent a letter in response to the letter from the Shriver Center and other legal aid, policy, and civil rights organizations. A copy of the letter may be found here.