The United States holds 2.2 million people in its prisons, and every year, some 650,000 of them are released. If they are to re-enter society as productive, law-abiding citizens, they often need mental health or drug treatment, education, training, health care, jobs — and, of course, they all need housing. Those without a decent roof over their heads are obviously less likely to make a successful transition. Yet affordable housing is often scarce, and a past criminal conviction is often a serious barrier to a skeptical landlord.
Mindful of that, the U.S. Department of Housing and Urban Development issued new guidelines on Monday, restricting landlords' ability to take into account criminal records when considering tenants for housing. No longer may a landlord simply adopt a blanket policy of denying housing to anyone with a record of conviction or arrest. That kind of policy may appear to treat every prospective tenant, regardless of race or gender, the same, but, in practice, HUD said, it has a disparate impact on racial and ethnic minorities, because they have high rates of arrest and incarceration. That violates the Fair Housing Act, the agency says.
That doesn't mean an individual's criminal record can't be taken into account by a landlord, or that a potentially dangerous tenant can't be turned away. But under HUD's new guidance, the landlord must consider the severity of the crime, the length of time since it was committed and must be able to "prove through reliable evidence" that the criminal history makes housing the person a risk to other tenants or the landlord's property. Merely having an arrest record without a conviction won't pass muster at all.
The agency is absolutely right to be working on the important issue of re-entry. It is reasonable to expect landlords to consider criminal records on a case by case basis.
But HUD's guidance to housing providers is distressingly vague and in some ways arbitrary. What "evidence" will show whether a person with a record is a risk? Can a repeat arsonist only be turned away after a landlord researches studies on recidivism among convicted arsonists? How long does a person with a conviction for marijuana possession need to be out of prison before a landlord must rent to him or her? Is it the same number of years for a murderer? Isn't it a bit odd that HUD is making landlords consider violent criminals on a case-by-case basis — even though in the Fair Housing Act, Congress specifically allowed landlords to turn away people convicted of manufacturing or distributing a controlled substance?
It's a tricky balance: While it is imperative — for practical as well as moral reasons — that people with criminal pasts be helped to re-enter society, landlords certainly have both a right and an obligation to protect their tenants and their property. HUD officials say they're not trying to force landlords to make decisions that would jeopardize the security of their tenants. But the guidelines may leave landlords with more questions than answers.