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III. Background

The exclusion of people with certain criminal records from public housing and the massive impact of that exclusion reflects the intersection of two discrete public policies in the U.S.—public housing policy and criminal justice policy. In concert they operate to exclude those with criminal records from housing designed to meet the needs of those unable to afford housing on their own.  Ineligibility for public housing is just one of many “collateral consequences” or forms of “invisible punishment” that continue to affect people with criminal records long after they have completed any sentence they received for their offense.

Mass Incarceration Policies

The number of people potentially affected by criminal record exclusions from public housing is enormous.  Since the 1970s, harsh sentencing laws and stepped-up law enforcement for even minor nonviolent offenses have led to a stunning and historically unprecedented increase in the number of U.S. residents who have been arrested, prosecuted, and incarcerated.

According to Federal Bureau of Investigations (FBI) statistics, 13.7 million people were arrested in 2002 for criminal infractions.³  Nearly 925,000 Americans were convicted of felony offenses in the nation’s courts in the most recent year for which data is available, and some 600,000 were incarcerated as a result.⁴  Nearly 6.9 million adult men and women were either incarcerated or on probation or parole by the end of 2003.⁵

With over thirteen million ex-felons—6.5 percent of the entire adult population⁶— “America has become a nation of ex-cons.”⁷  The federal Bureau of Justice Statistics (BJS) predicts that “[i]f rates of first incarceration and mortality in 2001 remain unchanged, nearly 1 in 15 persons born in 2001 will go to State or Federal prison during their lifetimes.”⁸

These stunning numbers are less a reflection of rates of serious crime in the United States than they are of “tough on crime” sentencing policies that have emphasized harsh punitive policies—mandatory prison sentencing and three strikes policies, for example—for even low level and nonviolent crimes.⁹  Arrest rates also reflect the U.S. “war on drugs” which results in over 1.5 million arrests per year, over 80 percent for simple possession.¹⁰

Arrests, convictions, and incarceration differ sharply among socio-economic sectors and racial groups in the United States.  The vast majority of those in the criminal justice system were either impoverished or among the working poor at the time of their arrest.¹¹  And racial and ethnic minorities are disproportionately represented among those arrested, convicted, and incarcerated.  (See the box entitled “Racial Disparities in the Criminal Justice System” under the “Discrimination” section of Chapter X.)

Lack of Affordable Housing

The United States has long recognized the importance of housing to the standard of living of its people.  The United States Housing Act of 1937 affirmed as national policy:

the goal of providing decent and affordable housing for all citizens through the efforts and encouragement of Federal, State and local government, and by the independent and collective actions of private citizens, organizations, and the private sector.¹²

The U.S. Congress reiterated this commitment to housing in the 1990 Cranston-Gonzalez National Affordable Housing Act which states, “The objective of national housing policy shall be to reaffirm the long-established national commitment to decent, safe, and sanitary housing for every American.”¹³

Today the United States provides a wide variety of housing programs from loans to first-time homebuyers and subsidies and tax credits for homeowners and housing developers, to supportive housing for the elderly and disabled and direct provision of housing to Americans unable to compete for housing in the private market.¹⁴  It administers a vast system of public housing¹⁵ for Americans with the lowest incomes that is supported by over $34 billion in federal funds¹⁶ and managed by over four thousand local public housing authorities (PHAs).¹⁷  PHAs provide nearly 2.7 million units of affordable housing to over 6.5 million Americans.¹⁸ 

Nevertheless, the United States has failed to ensure that the supply of affordable housing is sufficient to meet the demand.  Indeed, the U.S. currently faces an affordable housing crisis.  A growing number of Americans, including many who work full-time, are unable to rent—much less own—their own homes in the private market.  At the same time, the federal administration has made deep cuts in conventional public housing programs, and PHAs are struggling to retain the number of housing vouchers and units that they currently administer.¹⁹  Requests for federally-assisted housing continue to increase,²⁰ while the absolute number of public housing units has declined.²¹

A recent report on American hunger and homelessness by the U.S. Conference of Mayors estimates that only one-third of eligible low-income households are being served by current housing programs.²²  Waiting lists maintained by individual PHAs show hundreds of thousands of people seeking housing assistance.²³  According to HUD, applicants wait an average of one to two years, and often much longer, for access to conventional public housing and the voucher program.²⁴  Despite its commitment to “End Homelessness in 10 Years” and its subsequent call for increased appropriations for homeless services (which include such things as nightly shelter beds and social services), the federal government has not met increases in homelessness and poverty with an increase in the development of new units of subsidized housing.²⁵ 

The latest census figures show that 35.9 million people, or 12.5 percent of the American population, live at or below the official poverty level.²⁶  According to a 2003 National Low Income Housing Coalition (NLIHC) report, families with extremely low incomes are unable to afford housing at fair market rates in almost every U.S. jurisdiction.²⁷  But it is not just the impoverished who cannot afford housing in the private market; even the working poor are unable to pay for adequate housing on their own. As one analyst has noted, “the working poor have been left practically helpless, unable to get into the market and unserved by underfunded federal and state housing programs.”²⁸

As the authors of the NLIHC report conclude:

Millions of American families [are] unable to afford safe and decent rental housing. Wages have failed to keep pace with rental costs, rental costs have increased faster than costs of other basic needs, affordable rental housing is being lost to homeownership and market-rate rentals, and little or no new affordable housing is being built. As a result, these families are living in substandard conditions, are homeless, or are making choices each day to spend money on housing and do without health care, child care, or other basic necessities.  As sobering as this is . . . this is not the beginning of the crisis, and . . . it has only gotten worse in recent years.  . . . Our nation strives to be a standard-bearer for the world in fairness, compassion and quality of life, yet overlooks this problem year after year at the cost of the safety, health and security of millions of its citizens.²⁹

HUD reported to the United Nations in 2001 that 4.9 million Americans have “worst-case housing needs,” that is, they spend more than 50 percent of their income on housing, or they live in substandard housing.³⁰  The agency also reported that the number of rental housing units affordable for very low income families declined by 1.1 million, a loss of 7 percent, from 1997 to 1999. 

In its report, HUD estimated that six hundred thousand individuals may be homeless on any given night.  A recent report by the National Law Center on Homelessness and Poverty estimates that between 2.5 and 3.5 million people over the course of a year will experience homelessness; seven million will experience homelessness over the course of five years.³¹  One survey showed that 12.5 million, or 6.5 percent of the U.S. resident population, has been homeless at some point during the course of their lives.³²

Barriers to Reentry and Housing

This year, some 600,000 inmates will be released from prison back into society. We know from long experience that if they can't find work, or a home, or help, they are much more likely to commit more crimes and return to prison. So tonight, I propose a four-year, 300 million dollar Prisoner Re-Entry Initiative to expand job training and placement services, to provide transitional housing, and to help newly released prisoners get mentoring, including from faith-based groups. America is the land of the second chance—and when the gates of the prison open, the path ahead should lead to a better life.³³
—President George W. Bush

Over six-hundred-fifty thousand people per year are expected to return home from America’s prisons and jails in the coming years.³⁴  The consequence of America’s overreliance on incarceration during the past two decades, these numbers have shocked the country into paying increased attention to ensuring that the return from prison to the free world—a process now known as reentry—is successful. 

Politicians have for decades enhanced their “tough on crime” credentials by creating laws and policies that impose adverse collateral consequences on many categories of those with criminal records.³⁵  According to the New York-based Legal Action Center “people with criminal records seeking reentry [now] face a daunting array of counterproductive, debilitating and unreasonable roadblocks in almost every important aspect of life.”³⁶  These include restrictions on voting rights, housing, employment, and government welfare assistance.  No matter how exemplary their subsequent lives, people who have a criminal record bear a modern-age “scarlet letter,” or a new civil identity that they cannot shed.³⁷  On every application they will constantly confront questions about their criminal records—from applications for welfare or for a job at a fast food restaurant, to a volunteer dog-catcher position at the SPCA (Society for the Prevention of Cruelty to Animals), and even a box on the application to join a Parent-Teacher Association.³⁸

Some attention is appropriately and finally being paid to the needs of many returning prisoners for supportive, transitional services.  But there has been relatively little attention so far to the many “collateral consequences” of imprisonment or having a criminal record that erect often insurmountable barriers to successful reentry.  Many of these barriers are the result of public laws and directly restrict the rights and opportunities of those with criminal records.

Exclusionary housing policies constitute one of the most significant barriers to reentry.  People leaving prison and jail are typically among Americans with the most dire housing needs.  For them, publicly supported housing is the only realistic option for safe and stable places to live.  Excluded from public housing, they often end up swelling the ranks of the homeless, become inhabitants of grimy and unsafe transient hotels and motels, or crowd into the homes of relatives and friends.  None of these options is conducive to the development of stable, productive lives for former prisoners or their children.

HUD’s current exclusionary policies and those of local PHAs ignore the changing landscape of the poor in the U.S.  As the number of people with criminal records continues to soar, so their proportion among the impoverished in the United States grows.  Policies that exclude them from housing thus have the effect of excluding an ever growing number of those in need. As one tenant advocate in Pittsburgh, Pennsylvania told us:

No one’s in more need than ex-offenders.  That’s what this housing is for.  I understand that originally it was for women and children and vets, but as times change, our federal programs need to recognize who’s needy in our society.³⁹

Another housing advocate in Austin, Texas said:

They have a responsibility for tenants, but also the responsibility to be the housing of last resort.  They receive large sums of federal money to be the bottom-line safety net of housing for folks out there.  The Housing Authority is that safety net.  That’s why they can get all those grants. If it wasn’t the intention to make sure that the safety net is there, why give them all that money?  . . . If all they want to do is cream the population and take the best, why are they getting all that money? . . . Housing authorities used to be the ones that would give people a second chance.⁴⁰

President Bush called attention to certain barriers to reentry, including the need for transitional housing, in his 2004 State of the Union address.⁴¹  Members of Congress responded with bipartisan bill introduced in mid-2004.  The Second Chance Act of 2004 (“house bill”), pending in the United States House of Representatives, found that “from 15 percent to 27 percent of prisoners expect to go to homeless shelters upon release from prison,” and calls for: 

structured post-release housing and transitional housing, including group homes for recovering substance abusers, through which offenders are provided supervision and services immediately following reentry into the community [and] assisting offenders in securing permanent housing upon release or following a stay in transitional housing.⁴² 

The house bill would provide states with a small amount of money to develop a system of reentry services, including transitional housing, and calls only for a study of existing barriers to accessing housing.

The Senate followed with two of its own versions of the Second Chance Act.  The first mirrors the provisions of the house bill with which it shares a name.⁴³  The second, the Enhanced Second Chance Act, contains many of the same provisions, but among its chief differences is a call to strengthen HUD rules to require PHAs to conduct individualized determinations of housing applications from those with criminal records.⁴⁴  At this writing, all three bills were still pending in Congress.

Human Rights Watch recognizes the importance of increasing the supply of transitional housing.  But transitional housing is by definition temporary.  It is not a solution to the need for permanent housing.  Thus far, there has been inadequate federal recognition of the basic reality articulated by Nan Roman of the National Alliance to End Homelessness: "Effective reentry will require expanding the supply of affordable housing.”⁴⁵ 

To date, no federal reentry initiative has proposed to increase the supply of public housing.  And the Enhanced Second Chance Act is the only legislation thus far that would address the barriers to successful reentry that are embedded in existing housing policies.  Finally, there is no designated federal funding for alternative facilities to house those currently excluded from existing public housing because of their criminal records. 

The impact of federal and local exclusionary policies is not limited to public housing.  Increasingly, private landlords are following the lead of public housing and screening people for criminal histories.⁴⁶  Federal law allows “owners” of private housing to decline to rent to those who have been deemed eligible and awarded a voucher by a PHA.⁴⁷  But housing advocates told Human Rights Watch that landlords are also refusing to rent to prospective tenants in the private market because of their criminal records.  “Once the housing authority did it, everybody started to do it,” one reentry advocate told Human Rights Watch.  “Any housing complex, any apartment, if you have an ‘x,’ they’ll deny you.”⁴⁸

“Deserving” Tenants

Exclusions based on criminal records are usually justified in terms of promoting the safety of public housing tenants.  But the choice of criminal records as an exclusionary factor cannot be understood solely in terms of the goal of tenant safety.

Given the enormous gap between the supply of public housing and the demand for it, public authorities have been forced to adopt a form of triage to determine who will receive it.  Language in HUD’s guidance on the “one strike” policy explicitly addresses the zero-sum nature of public housing choices:

In deciding whether to admit applicants who are borderline in the PHA’s evaluation process, the PHA should recognize that for every marginal applicant it admits, it is not admitting another applicant who clearly meets the PHA’s evaluation standards.⁴⁹ 

Criminal record exclusions have the important effect of helping reduce the pressure on a limited public resource. From the perspective of public housing authorities trying to ration a scarce resource, the exclusion is also an easy one to sell publicly.  The public views people with criminal records with suspicion, fear, hate and anger. It is not going to protest the exclusion of “bad” people from public housing.

HUD guidelines, echoed in the polices of individual PHAs, suggest that only those who “play by the rules” should be housed:

Because of the extraordinary demand for affordable rental housing, public and assisted housing should be awarded to responsible individuals. . . . At a time when the shrinking supply of affordable housing is not keeping pace with the number of Americans who need it, it is reasonable to allocate scarce resources to those who play by the rules. There are many eligible, law-abiding families who are waiting to live in public and assisted housing and who would readily replace evicted tenants. By refusing to evict or screen out problem tenants, we are unjustly denying responsible and deserving low-income families access to housing and are jeopardizing the community and safety of existing residents who abide by the terms of their lease.⁵⁰

To some extent, HUD is merely indicating that it makes sense to exclude those who will be problem tenants.  But the language is also moralistic.  Embedded in the exclusion is an implicit moral calculus: not everyone deserves public housing, regardless of whether they would pose any risk to tenants.  Access to public housing should be restricted to those who have never broken the law, those who are “responsible and deserving.”

The needs of those with criminal records—and, indeed, their right to housing—are left out of the equation.  Where, or how, they will live is of scant public concern.

HUD’s argument of an essentially zero-sum game between deserving and undeserving families in housing allocation also ignores the fact that  many of those who seek access to public housing want to join families who are already public housing tenants.⁵¹  Permitting people with criminal records to join their families would not reduce the overall number of available housing units.

The safety of tenants is obviously an important consideration in making decisions about public housing applicants.  As this report will make clear, the existing criteria invite arbitrary rejection of applicants without any careful assessment of any real safety risks they might pose.  It is hard to avoid the suspicion that moral judgments, public prejudices and fears, and political opportunism play a role in the selection of those criteria.  It is hard to find any other convincing explanation, for example, for federal legislation that would deny a sixty-year-old access to public housing because of a single sex offense committed decades earlier.

Restricting public benefits for the virtuous has obvious public appeal. But human rights are not a privilege of the deserving.