No Second Chance: People with Criminal Records Denied Access to Public Housing: X. Arbitrary Denials and Discrimination

Arbitrary Exclusions

Public safety and the housing rights of others are legitimate grounds for restricting certain applicants from public housing. However, current exclusionary policies rely on such broad-brush criteria that they are only tenuously, if at all, connected to the goal of public safety. The result: many wind up unreasonably deprived of their best chance for housing, as well as for realizing the many other rights that flow from having a stable address.

The requirement in international human rights law that restrictions on rights be justified in light of specific interests “in a democratic society” entails that such limitations be strictly necessary, proportional, of limited duration, and subject to review.²⁵² Legislative mandatory lifetime denial of public housing is neither necessary nor the least restrictive means to protect the safety of other public housing tenants. Where exclusion from public housing results in homelessness or permanent separation from one’s family, the case can be made that the actual damage to individuals or society is disproportional to any speculative gain in public safety. Furthermore, lifetime denials of housing are plainly not limited in duration.

It is likely that, in establishing the exclusionary policies discussed in this report, Congress was far more interested in sending a message of disapproval about specific crimes than in establishing reasonable protections for tenant safety. In any event, Congress provided no public safety justification for imposing lifetime exclusions, rather than permitting a case-by-case consideration of the risks potentially posed by any individual applicant.

Many PHA policies fail to establish a reasonable basis for excluding applicants. As discussed above, many PHA policies utilize exclusionary criteria that bear no discernible relationship to tenant safety and that establish unduly lengthy periods of time between the offense and eligibility. For example, Austin’s seven-year exclusion for everyone convicted of drug sales is not reasonable by virtue of the fact that an argument can be made that one person who sold drugs seven years ago might be a danger today to tenants.

Our review of PHA policies suggests that PHAs have made little effort to ensure housing applicants are not needlessly rejected. Rather, the policies seem to reflect, at best, a scant regard for the housing rights of applicants, and at worst, a purely punitive approach to people with criminal records.

Discrimination

International human rights law unequivocally affirms the equality of all persons before the law and prohibits governments from discriminating in policy or practice “on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”²⁵³

Not all distinctions made by governments, however, constitute impermissible discrimination. The Human Rights Committee has observed that “not every differentiation in treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.”²⁵⁴

Housing laws and policies that have a racially disparate impact, but are not reasonably designed to achieve a legitimate state purpose, violate the international human right to be free from discrimination. The laws need not reflect a racially discriminatory purpose.

Under state and federal constitutional law, racial disparities that arise from public housing policies are constitutional as long as they are not undertaken with discriminatory intent or purpose.²⁵⁵ But unlike U.S. law, international human rights law does not require discriminatory intent. The International Convention on the Elimination of All Forms of Racial Discrimination (CERD or “the Convention”), to which the United States is a party, prohibits laws or policies which have “an unjustifiable disparate impact” on racial and ethnic minorities.²⁵⁶ The Convention specifically requires states parties to eliminate unjustifiable laws or practices that may be facially race-neutral, but that have the “purpose or effect” of restricting rights on the basis of race.²⁵⁷ It proscribes race-neutral practices curtailing fundamental rights that unnecessarily create statistically significant racial disparities even in the absence of racial animus.²⁵⁸

Data on the racial composition of people denied because of criminal records are not available.²⁵⁹ Nevertheless it is likely that criminal record exclusions from public housing have a significant racially disparate impact.²⁶⁰

Racial and ethnic minorities are disproportionately represented among the impoverished of the United States: in 2002, 24.1 percent of blacks and 21.8 percent of Hispanics were below the poverty line.²⁶¹ As a result, minorities are more likely than whites to need housing assistance and, indeed, racial and ethnic minorities constitute 70 percent of those who currently reside in conventional public housing.²⁶²

As illustrated below, African Americans are also disproportionately represented among those who have criminal records, and as such are much more likely to be rejected for public housing on this basis. As noted above, criminal record exclusionary criteria used by PHAs are in and of themselves overbroad and therefore unreasonable as a means of promoting public safety. If exclusionary policies have a significant racially disparate impact, and such an impact cannot be justified on public safety grounds, then the policies would contravene the provisions of CERD.

Racial Disparities in the Criminal Justice System

Racial disparities among those arrested, sentenced, and incarcerated for criminal offenses in the United States are immense:

According to the Federal Bureau of Investigation, nearly 27 percent of all those who were arrested in the U.S. were African American, despite the fact that they constitute approximately 12 percent of the U.S. population.²⁶³

African Americans constituted roughly 44 percent of those convicted of felonies by state courts.²⁶⁴

African Americans and Hispanics constitute nearly 63 percent of all those incarcerated in local jails and state and federal prisons.²⁶⁵

African Americans constitute 23 percent of those serving state probationary sentences,²⁶⁶ and 41 percent of those on federal or state parole.²⁶⁷ Of federal offenders under supervision, half were racial and ethnic minorities.²⁶⁸

By the end of 2001, of the nearly 5.6 million people who had ever served time in prison, nearly as many were black as were white, and an estimated 17.7 percent were Hispanics.²⁶⁹

Racial and ethnic minorities account for fully two-thirds of those returning each year from prisons and jails.²⁷⁰

Data from individual states is even more striking:

Only 7 percent of the state’s population, African Americans account for 20 percent of all felony arrest and 31 percent of the prison population in California.²⁷¹

Over 90 percent of those serving time for a drug offense in New York are African American or Latino.²⁷²

Although only one-quarter of the state’s residents, African Americans make up 77 percent of Maryland’s state prisoners. Since 1990, nine out of every ten inmates entering state facilities has been African American.²⁷³

African Americans in New Jersey are thirteen times more likely to be incarcerated than whites, giving the state the dubious distinction of leading the nation in racially disparate incarcerations. Eighty-one percent of all people in New Jersey prisons are black or Latino; they comprise only 27 percent of the general population.²⁷⁴