The fight for fair-chance housing ordinances

When Willette Benford was released from prison earlier this year, she knew that finding housing in Chicago would be a struggle. She didn’t have a steady job and was staying on a temporary basis at a homeless shelter—and friends who’d been released from prison in the past told her that no landlord would rent to someone with a felony conviction on their record.

It didn’t matter, Benford says, that the conviction had been the result of a domestic violence dispute that occurred more than two decades earlier, or that Benford was given an immediate release from prison when Illinois updated its domestic violence laws. Too many landlords in the city, especially those who rented affordable housing, had “blanket ban” policies that would cause them to deny her outright.

“People don’t know the whole story,” she says. “They just look at the paper, and they’re immediately afraid. They don’t know the details, and they just make the assumption that everyone’s still guilty. Then they deny you housing, which is just a basic necessity—and then where else are you supposed to go?”

In late April, Benford was one of several formerly incarcerated people who stood before the Cook County Board of Commissioners and told her story. She was testifying in support of a law that would prohibit most landlords from denying people housing on the basis of a criminal conviction. After years of pressure by activists with the Chicago Area Fair Housing Alliance, the ordinance finally passed, 15 votes to two.

The victory in Cook County, the second-most-populous county in the United States, is the latest in a burgeoning nationwide movement to ensure housing for returning citizens. Following the success of “ban-the-box” initiatives that prohibit employees from asking about criminal records, activists in nearly a dozen major cities are now campaigning for the passage of “fair-chance housing ordinances” that would prohibit landlords from denying applicants with prior convictions. In doing so, these advocates are also fighting to change the public’s perception of formerly incarcerated people.

Criminal-justice reformers have stressed the intersection of housing justice and mass incarceration for decades. Recently released or paroled individuals are far more likely to experience homelessness, often because their criminal records prevent them from getting approved for an apartment, and those who do experience homelessness are far more likely to be incarcerated again. In this way, a conviction from decades past can cast a shadow over a returning citizen’s safety and stability, as well as the safety and stability of their family members.

Research has shown that many formerly incarcerated people experience discrimination when applying for apartments. A report from the Ella Baker Center found that 80 percent of such people said they had experienced difficulty accessing housing. It didn’t matter what their conviction was for, or how long ago it had occurred—many of them said they were denied housing outright because of “blanket ban” policies maintained by many private landlords and public housing authorities. And if formerly incarcerated people return to live with their family members in housing where there is such a ban, they put those families at risk of losing their housing.

African Americans with criminal convictions face this discrimination especially acutely, according to a report from the Greater New Orleans Fair Housing Action Center. An audit of several dozen landlords across the city found that landlords applied conviction policies inconsistently across races more than half the time, discriminating more harshly against black renters than non-black renters.

It’s hard to measure the precise scope of the problem, but recent statistics show that more than 600,000 people are released from confinement each year, and the majority of them return to cities, where renting is easier and more common than purchasing a home. In New York state alone, more than two-thirds of the 600,000 prisoners released since 1985 have gone on to reside in New York City, and more than half of those released were African American.

Despite the pervasiveness of this discrimination, local laws to prevent it are a relatively recent phenomenon. Activists found success in the early 2010s with ban-the-box initiatives. Deep-seated stigmas against people with criminal records made it difficult to push for fair-chance housing policies in all but a few liberal cities, including Washington, D.C., and New Orleans. Seattle, too, made waves in 2016 when it passed the strongest, most comprehensive ordinance to date.

But in 2016, when the Obama administration’s Department of Housing and Urban Development took a formal stance on the issue, it set off a “sea change” at the local level, says Marie Claire Tran-Leung, a lawyer at the Shriver Center on Poverty Law. HUD declared in a policy memo that it was illegal for property owners to deny housing on the basis of a criminal conviction. The memo argued that the 1968 Fair Housing Act, which prohibits landlords from discriminating in ways that result in a “disparate impact,” applies to criminal records as well as protected classes like race, gender, and sexual orientation.

The guidance isn’t itself a law, Tran-Leung says, but rather an interpretation of the Fair Housing Act that could influence federal court decisions about the issue. Nevertheless, it inspired activists around the country to make a push to pass more easily enforceable local laws along the same lines. Five years ago, there were no more than four major cities in the United States that had such laws on the books; by the end of 2019, there could be more than a dozen. San Francisco; Detroit; Newark, New Jersey; and Kansas City, Missouri have passed ordinances in the last few years, she says, and other cities, including Portland, Oregon, and Berkeley, California, are pushing to pass them now.

“It’s definitely gaining traction,” says Tran-Leung. “You’re seeing efforts underway in a lot of different jurisdictions. The [HUD] guidance helped, too, because it really helped make the point that people who are coming back home are subject to a lot of stigma and need strong protections against discrimination.”

Take Richmond, California. With a population of about 100,000, the Bay Area city is bordered to the north by a medium-security prison and to the west by the notorious San Quentin state prison across the San Francisco Bay. As a result, the city becomes a de facto first stop after release for many incarcerated people in the Bay Area.

One such person was Tamisha Walker, who founded the Safe Return Project to advocate for the rights of the formerly incarcerated after she served her sentence. She and her fellow activists surveyed hundreds of returning citizens in the area about their needs and found that housing was at the top of the list.

“To my mind, housing is the first guarantee against recidivism,” Walker says. “Of course the argument in California is always, ‘Oh, it’s a challenge for everyone,’ but we interviewed people who had a job, a steady income, everything they needed, and the only thing stopping them from getting housing was a conviction. To us, that was discrimination.”

Safe Return focused its energy on persuading the Richmond City Council to pass an ordinance like Seattle’s, which prevents any rental landlord from considering criminal convictions. Despite the Bay Area’s reputation for leading on progressive policy, Walker says at first it was hard for the activists to get any oxygen: the city had just passed new rent control laws, and as a result, “landlords were extra defensive—they really didn’t want any more regulation.”

Tran-Leung says the same was true for campaigns in Cook County and Seattle. Realtors’ associations and groups representing landlords appeared at hearings in both cities to testify against the law, she says, as did representatives from companies that offer background check services to landlords. In Cook County, for instance, speakers from the National Credit Reporting Association told the commissioners that background checks were necessary for “mitigating financial and property risk” and “protecting other residents from physical harm”; the speakers warned of “unintended consequences that could harm the very citizens we are trying to protect” should the ordinance pass.

In Richmond, after long negotiations between activists, landlords, and city politicians, all the parties involved agreed in December of 2017 to support an ordinance that would only prohibit discrimination by landlords who receive affordable housing subsidies. It’s a weaker law than Seattle’s, which prohibits all landlords from considering an applicant’s criminal background, but one that nevertheless has the potential to change thousands of people’s lives.

The victory in Richmond set off a ripple effect in the Bay Area, inspiring organizers in the East Bay to make a push for similar ordinances. John Jones III, another formerly incarcerated activist who lives in Oakland, started connecting other criminal-justice activists around the city and in surrounding Alameda County when he saw Richmond’s bill move forward. After spending months identifying potential supporters in Berkeley, Jones helped draft a bill that was introduced in the Berkeley City Council last week; his organization, Just Cities, hopes to introduce similar bills in other East Bay cities later this year.

But the fight doesn’t end once an ordinance passes. From there, activists, lawmakers, and city attorneys have to hash out how the ordinance will be implemented and enforced, a process that in Richmond took more than a year and concluded only a few weeks ago. And in Seattle, a conservative legal group called the Pacific Legal Foundation has launched a lawsuit against the city’s ordinance, arguing that it impinges on freedom of speech; the suit will go before the state supreme court this month. Jones says he fully expects a similar legal challenge to the East Bay ordinances if they pass.

“One of the biggest barriers to passing these laws is taking on the question of who is and isn’t deserving of housing,” says Deborah Thrope, a lawyer with the National Housing Law Program who worked on the ordinances in San Francisco and Richmond. “We really have to get people to think through the stigma and ask why we even categorize people by their conviction.”

If cities in even the bluest states are fighting an uphill battle against real estate lobbyists as well as a wary public, activists in red states face even steeper odds. Madison, Wisconsin, for instance, had one of the first fair-chance housing ordinances, but the state’s Republican-dominated legislature effectively overturned it a few years ago by passing a law that prevents local antidiscrimination legislation from going any further than the state’s civil rights law. Texas’s state senate adopted a similar law in April to prevent Austin from implementing a ban-the-box initiative that would have prohibited hiring discrimination.

Thrope says activists are still figuring out how to circumnavigate these preemption laws, but over time she believes such laws may contribute to further segmentation between conservative and liberal states.

Under the Trump administration, it’s unlikely HUD’s 2016 guidance will be codified into a formal policy; indeed, says Thrope, there’s some concern among activists and legal experts that the administration will rescind the guidance the way it has rolled back Obama-era rules on housing desegregation and civil rights enforcement (though at a recent hearing, HUD Secretary Ben Carson said he supported Alexandria Ocasio-Cortez’s suggestion to end the department’s “one-strike you’re out” policy for removing criminal offenders from public housing, which dates from the tough-on-crime 1990s).

In the absence of such federal gains, says Thrope, formerly incarcerated people in red states and rural areas may find themselves denied the right to housing that is on the books in a growing number of liberal enclaves.

“There’s been some progress on the federal level,” Thrope says, “but the real progress has been local. We have these extremely harsh policies that have worsened recidivism, torn families apart, and policymakers are just now starting to say, ‘Okay, this isn’t working, let’s reverse these.’”

Still, the speed with which the fair-chance housing movement has spread from city to city is an encouraging sign for activists who want to push for criminal-justice reform beyond a mere reduction of prison populations. The long-term consequences of a criminal conviction, these activists insist, don’t end when a prisoner is released or paroled, and cities can’t truly say they’ve ended mass incarceration until they tackle the stigmas that prevent returning citizens from fully reintegrating into their communities. And the first and perhaps the most fundamental step to reintegrating, Jones says, is finding a safe place to stay.

“Sometimes we don’t even try, because we’ve already internalized that there’s a barrier there and no one will give us a chance,” he says. “Or then you apply once or twice and you’re told no on the basis of your conviction, and then you just give up.

“At the risk of sounding overdramatic, it’s absolutely a violent experience, trying to get housing,” he adds. “Especially if you have a desire to do good, if you have to provide for your family, there’s a sense not only of desperation, but of being dehumanized—being told that you’re not entitled to the most basic human right.”

Jake Bittle is a reporter and researcher who lives in Brooklyn. You can find him on Twitter.