Access to Housing

At the state and federal level, there are more than 1,300 legal barriers to housing and residency related to a criminal record.^[5] These barriers include criminal background checks for rental and mortgage applications, denial of federal fair housing law protections, housing forfeiture, and eviction.^[6] Given that people of color are overrepresented in the criminal justice system, these barriers can also disproportionately limit housing options for non-white Americans.^[7]

Federal law places several mandatory and discretionary restrictions on people with criminal records who wish to live in government-subsidized housing.^[8] For example, if an applicant has engaged in drug-related, violent, or other criminal activity that would impact other residents’ health, safety, or peaceful enjoyment, a housing authority may deny the application for a “reasonable time” period following the offense or conviction.^[9] People convicted of criminal sexual misconduct or manufacturing methamphetamine face a mandatory lifetime ban from subsidized housing.^[10]

Although federal law provides strict guidance, local policies vary due to the discretion of the U.S. Department of Housing and Urban Development (HUD). These differences raise four key issues: 1) unreasonable look back periods, as a “reasonable time” is defined by the housing authority and sometimes extends indefinitely after a criminal offense; 2) equating arrests with evidence of criminal activity when screening applicants; 3) overbroad categories of criminal activity, such as blanket bans on felony convictions; and 4) underuse of the applicant’s opportunity to present evidence of mitigating circumstances or appeal a denial of their application.^[11]

In addition to facing legal barriers, people with a criminal record often encounter financial barriers to safe housing. There is a widespread lack of affordable housing across the U.S., particularly in urban areas.^[12] This is particularly acute for people who leave prison without jobs or appreciable income.^[13] In a 2020 survey of currently incarcerated people, access to affordable housing and living wages were among the top answers when respondents were asked what could have kept them out of prison.^[14] Another study found that 72% of respondents cited the lack of affordable housing as one of the most significant barriers to securing housing post-release.^[15]

An estimated four out of five private landlords use background checks.^[16] Private landlords are also often unwilling to rent to people who have a criminal record. The screening criteria for background checks are ambiguous and the companies that conduct them are unregulated, placing applicants at risk of discriminatory practices.^[17] One study documented that more than 4,600 housing units in the Washington, D.C., area were unavailable to people with criminal histories because of blanket bans on felony convictions by private landlords.^[18] Many landlords also ask for credit checks, which can compound barriers for people who could not establish a stable credit history prior to, during, or after incarceration.^[19] Further, many communities lack a sufficient infrastructure of available services for substance abuse, behavioral health, and reentry, making landlords and housing authorities wary of accepting formerly incarcerated prospective tenants who lack sufficient reentry support.

Many of the barriers faced while trying to rent a home also impact people with a criminal record when they try to buy a home. Some mortgage lenders may conduct a criminal background check during the application phase.^[20] However, even with no background check, some lenders require a credit history which can pose the same issues as it does for a renter. A formerly incarcerated person could make it past the application phase for a mortgage but then face higher interest rates.^[21] There are few legal protections that prevent a lender from charging a higher rate or denying a loan application if a person has a criminal background.^[22]

This overall policy landscape significantly hinders a formerly incarcerated person’s ability to obtain adequate housing. One study found that 8 in 10 formerly incarcerated people were either ineligible for or denied housing because of their own criminal record or a loved one’s.^[23] As a result, many people rely on family members for housing support. The same study found that 58% of respondents lived with their families, but 1 in 10 participants reported being evicted after their loved one with a criminal record moved in.^[24]

For these reasons, people with a criminal record face a high risk of housing insecurity, mental health issues, relapse, and homelessness.^[25] A study found that men who had been previously incarcerated were twice as likely to become homeless as men without a history of incarceration.^[26] For returning citizens with children, the inability to obtain adequate housing can prevent them from regaining custody.^[27] Such instability can lead to higher rates of recidivism.^[28] Studies have found that people without stable housing post-release are twice as likely to recidivate.^[29]