Tenant Screening as a Barrier to Housing
Tenant screening is one of the more harmful connections between the criminal justice system and housing, for federally assisted housing and private market housing.
An extensive study conducted in 1997 by Seattle University’s Professor Jacqueline Hafgott found landlords often would reject outright applicants with criminal convictions.
The Obama administration worked to combat this problem in 2015 when HUD released a rule (PIH 2015-19) to ensure PHAs and project owners do not automatically bar people with criminal records from federally subsidized housing. The administration also released a “disparate impact rule,” which states that under the Fair Housing Act when a housing provider’s screening policy has a disparate impact on a person of a protected class that policy is unlawful, and the applicant is allowed to sue. Outside of HUD’s mandatory screening requirements and the disparate impact rule, however, the agency provides vague guidance to PHAs, allowing them wide discretion in approving applicants for subsidized housing. Moreover, when people are approved for a voucher or project-based Section 8 housing assistance, they are at the mercy of private landlords or management companies who often use more stringent and discriminatory background checks.
While PHAs seek to provide housing to those that need it most, they are also evaluated on their ability to lower levels of crime in their housing. Private landlords and management companies will do all they can to protect their investments, even at the expense of those who need housing the most.
Third Party Tenant Screening
One of the reasons private housing providers’ background checks are more problematic is because they often use private screening companies. These companies pull potentially incomplete or misleading criminal records, sometimes with outdated information that may not consider that a record has been expunged or sealed from public databases. Screening companies also often mix up people with the same names. These companies then provide a “yes” or “no” answer to the private housing providers, who accept or deny applicants based on that determination. Further, while federal law grants applicants the right to see their background reports, many renters do not know this, and some housing providers will not comply with requests for copies of tenant-screening reports.
Long Lookback Periods
Lookback periods are limits on how far back a landlord can consider criminal history. Some offenses are so old, they do not carry information about the character and conduct of the renter applying for housing. HUD has suggested limits on lookback periods for certain crimes in their properties, but private housing providers often look as far back as 20 years. Often, landlords will not even examine what triggers a denial screening, so they treat something like trespassing or shoplifting the same as a violent crime because they do not bother to research the actual infraction.
Paul Solomon runs Sponsors, Inc., a nonprofit in Oregon dedicated to assisting formerly justice-involved people in their searches. He describes how these
lookback periods ignore research showing that people “desist” from criminal behavior five years after they reenter society.
Sex offenders, Mr. Solomon says, are a group of formerly convicted people least likely to re-offend. He therefore questions the sense in permanently banning anyone from HUD subsidized housing who has ever registered as a sex offender. Sponsors, Inc. aims to combat the racial injustice of long lookback periods, arguing that while 8% of the adult population has a felony conviction, a disproportionate 33% of the Black population carries the stigma.
Tenant Screening for Federally Assisted Housing: Different Screening Standards for Different PHAs
Different PHAs have different screening standards. HUD has its own policies PHAs must follow, but PHAs can add their own screening policies in addition to HUD’s. As a result, it can be difficult for a household that receives housing assistance from one PHA to move to an area in another PHA’s jurisdiction. Just because a household passes the screening process at the first PHA does not mean they will pass the screening process at the PHA where they are moving.
The Unfair Closed-Mindedness of “One-Strike” Eviction Policies
When Congress passed the “Anti-Drug Abuse Act of 1988,” they instituted strict lease-enforcement and eviction of renters who benefit from federal housing subsidies if they have been involved in criminal activity. The Act included a requirement that PHAs and private landlords who receive federal housing subsidies evict tenants if they, their household members, or guests engaged in criminal activity on or near federally subsidized housing premises.
The eviction rules created by the Act were later known as “one-strike” policies. These policies were later expanded in 1996 to include language calling on the National Crime Information Center and local police departments to provide criminal conviction records to operators of federally subsidized housing so they could screen applicants, enforce the lease, and evict tenants.
After the expansion of “one-strike” policies in 1996, HUD created regulations for the enforcement of these policies that encouraged operators of federally subsidized housing to use strict screening and eviction procedures. Operators’ funding and ratings were connected to whether they adopted and implemented effective applicant-screening.
The passage of the “Second Chance Act of 2007,” which was designed to improve the reentry process, required HUD to loosen its “one-strike” policies. HUD’s November 2015 guidance states that PHAs and other owners of subsidized properties should not use arrest records as the sole basis for denying admission, ending assistance, or evicting tenants. It also states that HUD does not require PHAs and owners to adopt “one-strike” policies, and owners and PHAs have the obligation to safeguard the due-process rights of applicants and tenants.
Since the release of the 2015 HUD guidance, PHAs and owners have struggled to revise their “one-strike” policies and procedures. Although policy update suggestions have been offered in HUD notices and by national nonprofits, many PHAs and owners are still uncertain on how best to provide “second chances” for returning citizens while maintaining the safety and security of their residents.
"Since the release of the 2015 HUD guidance, PHAs and owners have struggled to revise their “one strike” policies and procedures."
Nuisance Abatement Ordinances: Destabilizing Renters and Making Neighborhoods Unsafe
“Nuisance abatement” can be a misleading term. While its literal definition suggests a local government taking steps to improve neighborhoods by responding to nuisances at properties, in practice the approach often criminalizes marginalized individuals. These ordinances often punish the victim of a crime, not the perpetrator, because it is the lease-holding renter who is held accountable, even if they are attacked. In most versions of these ordinances, renters are evicted after a certain number of police calls to their address. Many low-income people, therefore, fear contacting the police in dangerous situations, leaving them less likely to be protected. Knowing that the police are unlikely to be called, criminals often feel emboldened, and neighborhoods and renters become less safe. Too often, local governments require landlords to evict victims of domestic abuse if the police are called to an apartment, as the police activity creates a “nuisance” for the community. In 2015, the American Civil Liberties Union (ACLU) studied the results of two nuisance-abatement ordinances in upstate New York and found that domestic violence calls were by far the most common type of police interactions leading to eviction, with drugs and theft accounting for less than 10%. These ordinances deny emergency assistance to people who badly need it, and they do not reduce crime.
Nuisance-abatement ordinances also take away a landlord’s opportunity to make their own decisions about what happened and if an eviction is warranted. Landlords could lose their property if they do not proceed with an eviction under such ordinances. Most appalling is that the evictions often proceed even when there are no arrests or convictions. In most cases, the standard for a nuisance is simply calling the police, regardless of whether a crime is investigated or prosecuted.
Several states have taken action to limit such ordinances. In 2015, Illinois passed a law preventing local governments from enacting or enforcing ordinances that punish tenants for calling 911 in response to domestic or sexual violence, or for crimes committed against them, or on behalf of an individual with a disability. Minnesota passed a similar law in 2019.