Landlords and property owners who exclude people with criminal records from renting or buying may be violating the law, according to new guidance released by the U.S. Department of Housing and Urban Development.
While people with criminal records are not a protected class, the guidance released Monday from HUD's general counsel Helen R. Kanovsky notes, landlords and home owners who deny housing to an ex-offender solely based on their criminal record could be viewed as discriminatory -- even if they don't intend to discriminate -- because of systemic disparities in the United States criminal justice system that disproportionately affect African Americans and Hispanics.
"While the Act does not prohibit housing providers from appropriately considering criminal history information when making housing decisions, arbitrary and overbroad criminal history-related bans are likely to lack a legally sufficient justification," the guidance reads. "Thus, a discriminatory effect resulting from a policy or practice that denies housing to anyone with a prior arrest or any kind of criminal conviction cannot be justified, and therefore such a practice would violate the Fair Housing Act."
The guidance says that landlords and property owners must distinguish between arrests and convictions, and not ban an applicant solely based on an arrest, given that an arrest doesn't indicate an individual was necessarily guilty of any crime. When an applicant does have a record of conviction, property owners must take into account the "nature and severity" of the crime before excluding an applicant. The only exception is individuals convicted of manufacturing or distributing drugs, whom landlords can continue to exclude broadly, the guidance notes.
People who have been incarcerated, or have a record of conviction, can face significant obstacles in finding a job and a home. And research has shown that stable housing is one of the keys to reducing recidivism. But HUD Secretary Julian Castro says individuals with criminal records are routinely blocked from housing.
"Right now, many landlords use the fact of a conviction — any conviction, regardless of what it was for or how long ago it happened — to indefinitely bar folks from housing opportunities," Castro said in a statement Monday. "When someone has been convicted of a crime and has paid their debt to society, then they ought to have an effective second chance in life. The ability to find housing is an indispensable part of that second chance."
The U.S. is home to nearly 25 percent of the world’s prisoners, despite having less than 5 percent of of the global population, and about a third of American adults have some sort of criminal record. Moreover, because blacks and Latinos are arrested, convicted and incarcerated at disproportionate rates in relation to their percentage of the general population, barring housing based on criminal records is "likely to have a disproportionate impact" on minorities seeking housing, the guidance says.
The guidance follows the "disparate impact" legal principle established by the U.S. Supreme Court last year when it ruled that housing policies and practices with discriminatory outcomes can be challenged under the Fair Housing Act, even if there was no intent to discriminate. Though the FHA protects against many forms of discrimination, disparate impact is seen by fair housing advocates as a particularly vital tool for fighting racial inequality, as it permits lawsuits to be brought against policies that disproportionately affect people of color, even when no overt racial motive can be proven.
Advocates for fairer housing policies applauded Castro for the move.
"[H]aving even a minor criminal record can present lifelong barriers to the basic building blocks of economic security and mobility — including housing, as four in five landlords use criminal background checks on potential tenants," Carmel Martin, executive vice president for the policy at the Center for American Progress, said in a statement. "By ensuring that American families have a fair shot at securing housing, this measure has the potential to address housing discrimination, keep families together, and save taxpayer dollars in the form of reduced incarceration costs -- all while increasing public safety."