How Arrest Record Screening Fails to Fight Crime and Impedes Fair Housing

HandcuffsLandlords and local housing authorities should stop using arrest records to screen tenants. Bans on tenants with past arrests simply do more harm than good. They give people a false sense of security against crime, and they deprive disproportionately more racial minorities of needed rental housing for nothing more than an unproven accusation. An end to this practice will require the help of the U.S. Department of Housing and Urban Development (HUD) and the Civil Rights Division of the U.S. Department of Justice (DOJ).

Housing does not become safer just because people with arrest records are banned. Reducing crime requires something that predicts future criminal activity. But arrest records do not work because, as courts have long recognized, they can’t even indicate past criminal activity reliably. 

According to the U.S. Supreme Court, “[t]he mere fact that a man has been arrested has very little, if any, probative value in showing that he engaged in any misconduct,” even outside the context of a criminal trial. Another federal court has referred to arrest records simply as “gutter rumors when measured against any standards of constitutional fairness to an individual.”

The Illinois Appellate Court recently took a similar position against the use of arrest records, this time in the housing context. Landers v. Chicago Housing Authority involved Keith Landers, an African-American man who was placed on the waiting list for public housing in 1995. In the 13 years it took for Mr. Landers to reach the top of the waiting list, he went through long periods of homelessness and found himself arrested several times, though he was never convicted. Despite the instability that often comes with homelessness, Mr. Landers managed to jump through all the administrative hoops necessary to stay on the waiting list until his name finally came up at the end of 2008.

Because of his prior arrests, however, the Chicago Housing Authority denied Mr. Landers’ application. It was unwilling to consider the fact that none of the arrests led to a conviction or that he denied committing the underlying offenses, most of which were minor and stemmed from having to live out in the open. After reviewing these factors, the Illinois Appellate Court could find “no evidence whatsoever that [Mr. Landers] engaged in criminal activity where the outcome of his arrests was the consistent dismissal of the charges.” The court, therefore, refused to equate his past arrests with proof that Mr. Landers was a threat to the health, safety, and welfare of the public housing community.

The problem with these policies is not just they do not fight crime very well; it’s that they also disparately impact racial minorities in the name of fighting crime. Arrested at disproportionately higher rates, racial minorities are more likely to be denied housing if arrest records are used as tenant screening criteria. African-Americans, for example, accounted for nearly 27% of the arrestees nationwide in 2004, but only about 12% of the population. This unjustified racial disparity has led the Equal Employment Opportunity Commission (EEOC) to declare the use of arrest records in employment decisions as suspect under Title VII, the federal civil rights law that prohibits employment discrimination. It is time for HUD to make a similar declaration under the Fair Housing Act and to work with DOJ to ensure that this practice ends. 

Currently, HUD offers no guidance on the use of arrest records for private landlords. Similar guidance is lacking for local public housing authorities, even though these recipients of federal funding are obligated not only to refrain from discriminating, but also to affirmatively promote the right of fair housing. Without direction from HUD or DOJ, arrest records will continue to be a significant barrier for many of the people who need rental and public housing the most, putting many, like Mr. Landers, at risk of homelessness.

To prevent this outcome, HUD should bar housing authorities and private owners participating in HUD programs from using arrests to screen applicants. In addition, DOJ and HUD should work together to use the Fair Housing Act to challenge housing policies that ban people with arrest records. For examples of what happens when these bans are lifted, they can look to the housing authorities of New York City, Baltimore, and Los Angeles--all of whom have stopped screening applicants for arrests as a matter of policy. This refusal to consider arrests has not compromised the safety of their public housing communities either. Indeed, they report “combat[ting] crime just as effectively with their policies as PHAs with far harsher ones,” thus confirming the need for an end to the ineffective, racially disparate use of arrest records as a screening device.

Marie Claire Tran-Leung is a staff attorney and Soros Justice Fellow. Her project focuses on using the Fair Housing Act to reduce housing barriers for people with criminal records. The Legal Assistance Foundation of Metropolitan Chicago represented Mr. Landers, and an amicus brief in support of Mr. Landers was filed by the Shriver Center, the Mandel Legal Aid Clinic, Uptown People’s Law Center, Chicago Area Fair Housing Alliance, Chicago Coalition for the Homeless, Legal Action Center, and National Center on Homelessness and Poverty.


The U.S. Census, Arrest Records, and Employment Discrimination

The U.S. Census rejected 69-year-old Evelyn Hauser from a job because of her past arrest, even though she was never formally convicted and even though she hasn’t had any interactions with the criminal justice system in the nearly three decades since. The federal government didn’t have a problem with her criminal record when it hired her for the 1990 Census, so a class action lawsuit is asking: “What’s the problem now?”

Ms. Hauser is one of the named plaintiffs in Johnson v. Locke, a federal class action lawsuit challenging the Census’ screening practices for applicants with arrest records. The purpose of this lawsuit is to effect “simple changes to the Census’ hiring process that not only reduce its discriminatory effects, but will promote the public interest by expanding [its] hiring base in historically under-counted communities, thereby helping to achieve [the federal government’s] mandated goal of counting all who live in the United States.”  

The screening process goes like this: for every person who applies for one of these over one million temporary but well-paying positions, the Census runs an FBI criminal background check. If an arrest turns up, the applicant is ineligible for employment unless she can, within thirty days, produce a court document describing the disposition, i.e., outcome of the case.   

There are several problems with this screening system. First, the FBI database is notoriously incomplete. Half of all arrest records in the database are missing dispositions, which means that a significant number of applicants with arrests will have to track down these court documents. The 30-day requirement is especially burdensome for Ms. Hauser and other people whose cases predate the computerization of court files. 

Second, without having a complete picture of an applicant’s criminal history, the Census risks basing its hiring decisions on arrests and thus violating Title VII of the Civil Rights Act of 1964. Title VII prohibits employment policies that unjustifiably and disparately impact racial minorities. Indeed, the Equal Employment Opportunity Commission – the federal agency charged with enforcing Title VII – advises employers that bans on people with arrest records discriminate against racial minorities. Not only do racial minorities experience higher arrest rates, but arrests also have limited value in screening applicants since they are not reliable indicators of criminal activity.

As a result of this screening process, the complaint notes, “All applicants, whether or not they will work with the public, who have an arrest record at any point in their lives – no matter how trivial or disconnected from the requirements of the job – face an arbitrary barrier to employment.”  All Ms. Hauser wants, though, is to “continue contributing to her community.”

For more information on this case, visit the Census Worker Class Action Website.