In the 1990s, high crime rates in public housing – especially the infamous “projects” – led many cities to adopt a one-strike policy that banned anyone with a felony conviction from public housing. Now, with declining crime rates and the demolition of many massive housing projects, some cities are re-evaluating the ban with an eye toward reducing recidivism.

Although no studies have been conducted comparing recidivism rates before and after cities enacted public housing bans, a correlation between homelessness and recidivism is believed to exist. Accordingly, some advocates are calling for a repeal of policies that bar former prisoners from public housing. The urgency of this task is spurred by the high rate of homelessness among ex-offenders – 22% for New York prisoners, according to state prison officials – and the high rate of recidivism – about 68% of prisoners are rearrested within three years of release, according to a federal study that tracked 405,000 prisoners in 30 states.

New Orleans already has a policy stating that a prior conviction will not automatically disqualify a person from public housing. New York City and Los Angeles are testing programs that allow some former prisoners to move in with family members who reside in public housing. Chicago has a similar program planned. However, cities cannot override federal rules prohibiting sex offenders and people convicted of manufacturing methamphetamine from living in federally-subsidized public housing.

Initiatives to relax housing bans for former felons are not unopposed. To ease the concerns of existing public housing residents, Chicago agreed to start small, allowing only 50 prisoners with specific criminal backgrounds into its test program. Los Angeles County was forced to abandon a proposed initiative for housing former prisoners due to public safety concerns. New Orleans is also experiencing pushback; some developers are worried about the impact on housing programs that have both market-rate and subsidized units.

“People might refuse to live in your place, and you lose your market-rate renters, and you concentrate the poor again,” stated Pres Kabacoff, co-founder of the real estate development company HRI Properties.

Yet for the overall good of our communities, former prisoners should be allowed to live in public housing; the alternative is to accept higher rates of homelessness and recidivism, which result in more crime and higher societal costs. Around 640,000 prisoners are released from state and federal prisons annually, and reintegrating into society after years behind bars is challenging enough without additional housing restrictions.

“If he can’t stay with me, he’ll be homeless,” said Najia Jacques, a resident in a New Orleans housing authority development, while awaiting her son’s release from prison. “You have to pick up your life all over again. First you have to find somewhere to stay.”

The Fortune Society, a non-profit social service provider for recently-released prisoners in New York City, filed a lawsuit in October 2014 against Sand Castle, a company enrolled in the city’s affordable housing program. In its suit, the organization alleges that Sand Castle’s ban against former prisoners not only violates state and federal laws but also discriminates against black and Hispanic males.

“You’re creating a racial caste system and driving this population back to prison,” Fortune Society attorney John P. Relman told the New York Times. The lawsuit recommends that the existing blanket ban be replaced with an “individualized review” of each prospective tenant, factoring in more than criminal records when assessing applications.

Beyond public housing, there are also efforts to relax restrictions on ex-prisoners in the private housing market.

In a June 25, 2015 ruling, the U.S. Supreme Court upheld a wider interpretation of the federal Fair Housing Act, allowing plaintiffs to challenge housing policies that either had a discriminatory “intent” or effect on a particular group. According to Justice Anthony Kennedy, “the history of the law and of the civil rights movement” supports this broader interpretation of the federal housing statute, though the case did not involve people with criminal records. See: Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, 135 S.Ct. 2507 (2015).

Further, in April 2016 the U.S. Department of Housing and Urban Development (HUD) released guidance directed at private landlords and home sellers, cautioning that blanket bans on ex-felons are illegal, and that rejecting applicants based solely on their criminal history is a violation of the Fair Housing Act. Landlords are still allowed to exercise their own judgment provided they “distinguish between arrests and convictions,” and have properly considered the “nature and severity of the crime” when screening applicants.

Failing to consider whether a housing applicant was found guilty of a crime, or when the crime was allegedly committed, has a “disparate impact” on certain groups – particularly minorities. It is estimated that 30% of the adult population in the U.S. has a criminal record of some kind, according to news reports, and data from the U.S. Department of Justice indicates a disproportionately high number of black and Latino men are arrested and incarcerated compared to their white counterparts.

“The agency in charge of interpreting the Fair Housing Act agrees with us, and that will have a lot of weight,” said Relman, the attorney representing The Fortune Society. The lawsuit against Sand Castle over its blanket ban on ex-felons in New York City remains pending. See: Fortune Society v. Sandcastle Towers Housing Development Fund, U.S.D.C. (E.D. NY), Case No. 1:14-cv-06410-VMS.

Sources: www.wsj.com, New York Times, www.npr.org, https://portal.hud.gov

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