The Unfair Roadblock: More than 600,000 people will be released from prison this year. An even greater number will be released from local jails. Individuals returning home will face many challenges. Often, their most immediate need will be securing safe and affordable housing, which for many people is the key to successful integration. While the lack of affordable housing is frequently a problem for people who lack financial resources, this problem is compounded for people with conviction records. They often find that a conviction record is the main stumbling block in obtaining housing, whether in the private sector or in public and Section 8 supported housing.

Many of the policies that housing authorities or private landlords use to exclude people with conviction records are overly restrictive, effectively denying housing to people who pose no threat to the public, tenants or property. Oftentimes the policies are based on a misunderstanding of federal law, or on the landlord placing a premium on ease of administration, believing that it’s easier to “just say no” to all people with conviction records than to perform individualized analyses of their applications. These polices should be changed. With greater education and targeted advocacy, these policies can, be changed. (See the Legal Action Center’s report, After Prison: Roadblocks to Reentry, at www.lac.org/lac.)

How to Remove the Roadblock: Public housing authorities and private landlords should adopt policies that, rather than barring any applicants who have criminal records, instead individually assess each applicant based on:

• the seriousness and nature of his or her conviction,
  
• the relevance of that conviction to the tenancy,
  
• the length of time that has passed since the conviction, and
  
• evidence of rehabilitation.

Neither public agencies nor private landlords should base a decision on an arrest that never led to conviction. People who are black or Latino who are denied housing based on a criminal record that is unrelated to their ability to be a good tenant may be able to bring a claim of racial discrimination under federal and state laws. States should create Certificates of Rehabilitation that public agencies and private landlords must consider when evaluating the application of an individual with a criminal record.

All these approaches are discussed in this kit, which is designed for those of you who work to increase housing opportunities for people with conviction records. Some of you may have great expertise in working with this population, but may know little about housing law and policies. Others of you may be seasoned housing advocates, but have little experience working with the specific issues surrounding housing for people who have criminal records. You do not need to be, or hire, a lawyer in order to use this kit.

In this kit, which is intended to be a practical guide, you will find background information on housing laws, model housing policies and model legislation, and a number of tools that you can use to help increase housing opportunities for people with criminal records. You will also find background material that you can use to make a claim of racial discrimination in cases where a landlord’s blanket policy of excluding people with arrest or conviction records effectively works to exclude people who are black or Latino. You will also find helpful information on the use of certificates of rehabilitation in the housing context. We hope that the materials we have provided will support the particular type of advocacy suitable to your organization, and perhaps some that will open new avenues of advocacy for you.

Package One: Model Policies for Housing Authorities.
This portion of the kit provides model policies for your use as you work with local housing authorities. While federal law does mandate certain specific provisions about public housing for individuals with criminal records, housing authorities have a great deal of discretion to decide whom to admit to their housing. These model policies take into account both the valid public safety concerns of housing authorities, and the need for those with criminal records to obtain stable homes.

Package Two: Model Laws Prohibiting Housing Discrimination Against People with Conviction Records, and Advocacy Strategies for These Laws.
This package of material includes model legislation for advocates seeking to prohibit housing discrimination against people with criminal records. This model legislation takes into account both the valid public safety concerns of legislators and landlords and the need for those with conviction records to obtain stable homes.

Package Three: Use of Certificates of Rehabilitation.
This package includes model policies governing the creation and use of certificates of rehabilitation. These certificates are currently used primarily in the employment context; these model policies broaden their use to create a presumption of rehabilitation in the housing context.

Package Four: Advocacy Tips.
This package contains advocacy tips to help convince PHAs to create reasonable standards regarding applicants with criminal records. It includes persuasive points of information and resources on creative approaches for improving access to housing for individuals with criminal records.

Package Five: Making a Claim of Racial Discrimination Under the Fair Housing Act.
This package includes explanatory and research material for a potential claim that policies excluding individuals with arrest or conviction records from housing constitute illegal racial discrimination.

The Legal Action has also put together another housing kit, entitled, “How to Get Section 8 or Public Housing Even With a Criminal Record,” to help people with criminal records who are applying for public housing marshal their best evidence of rehabilitation. Among other topics, it includes step-by-step suggestions for gathering this evidence, and includes sample letters of reference – the type people really need to convince housing authorities of their rehabilitation. Though the manual focuses on New York City Housing Authority policies, its chapter on How Can You Win Your Hearing? can help people applying to other local housing authorities marshal their best evidence of rehabilitation. Click here, to see this kit.

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Conclusion

Local housing authorities are permitted by federal law to use their discretion in crafting policies regarding the admission of people with criminal records to public housing. Some have used this discretion to implement policies which permanently ban people with criminal records from public housing. Because people who are black or Latino are arrested and convicted at rates far higher than white people, these policies have the effect of excluding more people who are black or Latino than white people from public housing. Thus, these policies are ripe for challenge as having a discriminatory effect and therefore being illegal under the Fair Housing Act.

Advocates seeking to bring this sort of challenge will need to marshal solid statistical evidence to prove that the housing authority’s policy operates to exclude more people who are black or Latino than white people from housing, and to prove that these policies do not actually serve any legitimate goal offered by the housing authority. Advocates should also be prepared to present an alternative method of screening applicants that would ensure safety in housing developments while minimizing discriminatory effects. The model housing policy contained in Package One of this toolkit is a good starting place for developing these alternatives.

We are grateful to the Butler Family Fund and JEHT Foundation for making it possible for the Legal Action Center to develop this toolkit.