Published April 2025

“I sent them my expungement records, but I kept getting denied. It makes you feel bad about yourself. Just give me a chance.”

-Marckus Williams, who was denied housing due to inaccurate conviction records and is plaintiff in two fair housing lawsuits ¹

In November 2022, Marckus Williams, a Black man and business owner, was searching for a home in Indiana, and applied for rental properties that were owned by two large private equity-backed landlord companies, Tricon Residential and Progress Residential.² Both companies charged Mr. Williams a non-refundable application fee and then conducted a tenant screening process using a report from a third-party screening service.³ The results of both screenings stated that Mr. Williams had three prior criminal convictions for drug possession.⁴ Both landlord companies had a policy of categorically denying rentals to anyone with any felony conviction within a given lookback periodⁱ (seven years for Tricon Residential and ten years for Progress Residential). As a result, they both denied Mr. Williams housing.⁵ Although two of the three convictions that appeared in this report had in fact been expunged and one was inaccurate, neither company gave Mr. Williams an opportunity to dispute the information in the tenant screening report. He was also denied the opportunity to share evidence of changed circumstances, including the fact that he had built a successful business and had been a responsible tenant for several years.⁶ Even if Mr. Williams’ conviction records had been legitimate, showing mitigating information like that would have demonstrated that an old drug offense conviction did not reflect his recent circumstances. As a result of the blanket bans of these large landlord companies, as well as a shortage of affordable housing opportunities, Mr. Williams was unable to find a place to live and was forced to live out of his car for an entire month, including during Christmas.⁷

Like Mr. Williams, millions of Americans have faced the oft-insurmountable challenge of securing housing with a criminal record because of the massive scope of the U.S. criminal legal system and how common it is to have a criminal record. The United States is unique globally in its overreliance on the criminal legal system, resulting in the highest incarceration rate in the world, a phenomenon known as mass incarceration.⁸ Nearly 2,000,000 people in the United States are incarcerated at any given time.⁹ Law enforcement agencies make more than 10,000,000 arrests each year.¹⁰ This means that millions of Americans have some kind of recorded criminal legal contact (an arrest or a conviction). Even an arrest record alone without a conviction can be grounds for denial of housing.

The overbroad reach of the criminal legal system is not experienced equally by all Americans. Rather, a defining feature of the criminal legal system is the presence of stark racialized inequities where Black people face harsher criminalization and punishment at every stage of the system, including police stops, arrests, charges, convictions, and sentences.¹¹

Moreover, the consequences of contact with the criminal legal system do not end after a case has concluded. Instead, the collateral consequences of an arrest or a conviction can follow someone over the course of their lifetime. People with prior criminal legal contact, a disproportionate number of whom are Black due to racism within the criminal legal system, can be denied the right to vote, can be forced to leave the country through deportation, may be excluded from juries, and can be blocked from employment, education, public benefits, and housing opportunities. This creates a racial caste system that bears similarities to Jim Crow segregation.¹²

BARRED FROM WORK:
The Discriminatory Impact of Criminal Background Checks in Employment</span

Barred from Housing is a companion piece to a previously published brief, Barred from Work, that examines the impact of criminal background checks in employment. Through criminal background check policies, racial discrimination in the criminal legal system is compounded and imported into the employment sphere.

Read the Brief

This Brief focuses on the denial of housing opportunities to people with prior criminal legal contact and the racially discriminatory impact that follows. The United States not only stands out due to the scale of mass incarceration, but also in the widespread use of bans by public and private housing providers to deprive people of housing based on prior criminal legal contact (an arrest or a conviction record).¹³ Every year, more than 700,000 people are released from incarceration and seek housing.¹⁴ Without housing, many people struggle to find and retain a job, to reunite with family, to take care of their physical and mental health needs, and to otherwise lead successful lives after arrest and incarceration.¹⁵ Securing safe, stable housing is a necessary step toward successful reentry into the community. However, discriminatory rental policies that bar people with prior criminal legal contact from obtaining housing, along with a shortage of affordable housing, combine to make finding a home nearly impossible for people with prior criminal legal contact.¹⁶ Exclusionary housing policies can also tear families apart, forcing them to choose between excluding a family member with a criminal record or losing their home.

When people with prior criminal legal contact are systematically barred from housing, the racial discrimination embedded in the criminal legal system gets infused into the housing market—a sector that is already rife with racial discrimination. (In Fiscal Year 2023, more than 2,000 race-based fair housing complaints were filed with the federal government).¹⁷ In this way, exclusionary tenant screening policies serve as a magnifier of discrimination, with devastating consequences for formerly incarcerated individuals, their families, and our society writ large.

This Brief proceeds in four parts. Part 1 provides an overview of the state of criminal history restrictions in both public and private housing and discusses the legal framework for determining when a tenant screening policy is racially discriminatory. Part 2 presents the existing evidence concerning whether criminal history restrictions in housing have unjustified discriminatory effects for Black prospective tenants. Part 3 describes the consequences of criminal history restrictions in housing on individuals, families, and communities. Finally, Part 4 discusses strategies to address the problem, including best practices for non-discriminatory tenant screening.

ⁱA lookback period is the time frame considered when checking whether someone has a criminal record for purposes of making a decision about housing, employment, or other eligibility.

Part 1 The state of criminal history restrictions in housing:
The Growth of Criminal Background Restrictions in Public and Private Housing

“If you break the law, you no longer have a home in public housing, ‘one strike and you’re out.’ That should be the law everywhere in America.”

– President Bill Clinton during the State of the Union address in 1996¹⁸

During the broader nationwide “tough-on-crime” movement and the War on Drugs, the federal government enacted the Housing Opportunity Extension Act of 1996, which included the infamous “One Strike and You’re Out” policy for public and federally assisted housing.¹⁹

The One Strike policy required local Public Housing Authorities (PHAs) to evict existing tenant households and exclude new applicants if a member of the household displayed evidence of certain criminal activity, with a focus on drug-related activity.²⁰Under the new policy, a criminal conviction or even an arrest record was not required to trigger an eviction or to deny admission—anyone believed to be using drugs could be excluded.²¹ Households could be evicted even if a guest used drugs on the property.²² The policy also gave PHAs new authority to restrict housing access for people with other, non-drug-related types of criminal legal contact, leaving PHAs with significant discretion over evicting existing tenants and excluding new applicants.

The result of the policy was that most PHAs adopted blanket screening policies that either categorically denied housing eligibility to all applicants with any arrest or conviction history or adopted overly restrictive policies that denied eligibility to nearly all applicants with any criminal history. In the fall of 1996, following the passage of the One Strike policy, the U.S. Department of Housing and Urban Development (HUD) distributed a survey to all PHAs and found that nearly twice as many applicants were denied housing in the six months after the policy was enacted compared with the number denied during the six months prior.²³ The Sargent Shriver National Center on Poverty Law conducted a study of 300 PHA admissions policies in 2015 and found that many policies were extremely restrictive beyond even what was required by federal law. Overly restrictive policies often included the following features:

Unreasonably long lookback periods for criminal history searches.

The federal government expects PHAs to set a “reasonable time” for lookback periods.²⁴ However, fifty-four of the three hundred admissions policies reviewed had no specified time limit on using a person’s criminal history for admissions decisions.²⁵ Another thirty-two policies included a lifetime ban for certain types of criminal activity and forty-four policies had unreasonably long lookback periods of seven or more years for certain types of criminal activity.²⁶

Use of arrest records alone instead of conviction records as evidence of excludable criminal activity.

An arrest alone provides no evidence of criminal activity—it only means that police have a suspicion of criminal activity. Many arrests do not ultimately result in convictions.²⁷ Equating arrest records with criminal activity can have a disproportionate impact on Black prospective tenants because Black people are more likely to live in neighborhoods that are heavily policed and are more likely to be stopped by police. This fact remains clear even when controlling for neighborhood-level variation and race-specific estimates of crime participation.²⁸ The Sargent Shriver National Center on Poverty Law found that it was very common for PHAs to take arrests as evidence of criminal activity.

Overbroad categories of relevant criminal activity.

While federal law focuses on excluding tenants who engaged in specific criminal activity (i.e., drug-related activity and violent criminal activity), many local PHA admissions policies excluded tenants with any type of criminal history regardless of its relevance to public safety. For example, one housing authority denied public housing applicants with a history of “civil disobedience” within the past ten years. Many policies had permanent felony bans including for non-violent felonies.²⁹

Lack of consideration of mitigating circumstances.

Consideration of mitigating circumstances such as evidence of rehabilitation can give applicants an opportunity to demonstrate that they do not pose a risk to the housing program. It would also allow housing authorities to offer a more nuanced screening. However, applicants are often unaware of their right to present such evidence. Even when applicants do present evidence of mitigating circumstances, housing authorities may refuse to consider it.³⁰

The policies outlined above have significantly restricted housing access for people with prior criminal legal contact. Formerly incarcerated people are among the most economically disadvantaged groups in the United States, and therefore stand to substantially benefit from subsidized housing opportunities such as public housing and federally assisted housing.³¹ However, many formerly incarcerated people and other people with criminal legal contact have long been excluded from subsidized housing because of this history of overly restrictive admissions policies. Even when a person with prior criminal legal contact is eligible for subsidized housing, they may not apply due to misconceptions about eligibility or an expectation that they will be rejected.³² As a result, the hundreds of thousands of people who are released from incarceration each year are generally forced to try their luck finding affordable housing in the private housing market, move in with a friend or relative, or face homelessness.³³

While private housing providers were not mandated to adopt restrictive screening policies following the passage of the One Strike policy, many private landlords also followed the trend of excluding all potential tenants with prior criminal legal contact.³⁴ Additionally, beginning in 1988, prior to the One Strike policy, private landlords were granted the authority to deny housing for life to anyone with any drug distribution conviction under the Fair Housing Amendments Act or “Thurmond Amendment.”³⁵ Thus, the private housing market also has a long history of denying housing based on criminal legal contact. A 1997 survey of private landlords found that 67% inquired about criminal history and 43% were inclined to reject an applicant with a criminal conviction.³⁶ A 2007 survey found that 66% of private landlords did not accept rental applications from people with criminal historiesⁱⁱ.³⁷

The Fair Housing Act

The Fair Housing Act, passed in 1968, is the federal law that prohibits discrimination in the sale, rental, and financing of housing.³⁸ One of the primary objectives of the law was to end race-based discrimination in housing given the more than century-long history of state-sanctioned anti-Black discriminatory housing practices and policies in the United States.³⁹ HUD and the U.S. Department of Justice (DOJ) are responsible for jointly enforcing the Fair Housing Act. HUD has also historically provided guidance to public and private housing providers on how to comply with the law.

As the U.S. Supreme Court made clear in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., the Fair Housing Act prohibits intentionally discriminatory practices and actions with an unjustified discriminatory effect.⁴⁰ This means that a housing policy can violate the Fair Housing Act without proof that the policy was designed to discriminate. First, there must be evidence that the policy results in disproportionate harm, also known as “disparate impact,” for a protected class of people such as Black prospective tenants. Second, there must be evidence that the discriminatory effect is “unjustified,” meaning either 1) the policy is not necessary to achieve a substantial, legitimate, non-discriminatory interest or 2) such an interest can be served by a less discriminatory alternative.⁴¹

DISPARATE IMPACT refers to the effects of policies or practices that may seem neutral or may have been enacted without the explicit intention to discriminate, but in practice have discriminatory effects on a protected group.

Photo: A woman walks by the Farragut Houses, a public housing project in Brooklyn, NY on Mar. 16, 2017. The 2018 budget blueprint President Donald Trump released the week prior called for cutting billions of dollars of HUD funding. (Photo by Spencer Platt via Getty Images)

Formerly incarcerated people are not a protected class under the Fair Housing Act. However, an exclusionary tenant screening policy that restricts housing access to people with prior criminal legal contact and that has no legitimate non-discriminatory interest may have an unjustified discriminatory effect on Black people because the criminal legal system disproportionately targets Black people.

Current landscape of criminal history restrictions in housing

In the decades since the passage of the One Strike policy, during the Obama administration and the Biden administration, HUD shifted its position on restrictive tenant screening policies.⁴² This shift had been largely in response to advocates who raised concerns that excluding tenants with prior criminal legal contact had a discriminatory impact on Black and other marginalized communities and led to increased homelessness and recidivism.⁴³

In 2011, HUD sent a letter to all PHAs emphasizing the importance of offering “second chances” to people with criminal histories and encouraging PHAs to exercise their discretion in setting less restrictive admissions policies.⁴⁴ Then, in 2015, HUD issued guidance to clarify that: 1) PHAs may not use arrest records to deny housing admission, 2) HUD does not require PHAs to adopt one-strike policies that categorically deny applicants with any criminal convictions, and 3) admissions policies must comply with the Fair Housing Act.⁴⁵ In 2016, HUD issued additional guidance to both public and private housing providers regarding how the Fair Housing Act applies to the use of criminal histories in tenant screening. The guidance explicitly stated that blanket bans on people with criminal records violate the Fair Housing Act based on the discriminatory legal standard described above.⁴⁶ Most recently, in 2022, HUD issued additional guidance that emphasized the importance of making sure its 2016 guidance for housing providers be inclusive of people with prior criminal legal contact and that shared additional best practices for compliance with the Fair Housing Act.⁴⁷

While HUD has made clear that blanket bans violate the Fair Housing Act, public and private housing providers continue to use overly restrictive policies to screen out tenants with criminal histories. Most PHAs maintain policies that are more exclusionary than what is required by federal regulations.⁴⁸ Experimental tests of landlord decision-making show that people with criminal records face a high risk of being rejected for housing.⁴⁹ For example, testing of landlords across New York State showed that prospective tenants without a criminal record got permission from 96% of landlords to view a property compared with just 43% of prospective tenants with a criminal record who were otherwise similar to the other prospective tenants.⁵⁰ In a recent Massachusetts Institute of Technology (MIT) behavioral experiment with landlords and simulated tenant screening reports, landlords often conflated the existence of an arrest record with a conviction.⁵¹ Additionally, an estimated 2,000 municipalities in the United States have crime-free housing ordinances that require landlords to exclude or evict tenants with certain criminal legal contact.⁵²

FAIR HOUSING TESTING is a practice that was introduced by Dr. Martin Luther King and other civil rights advocates during the Civil Rights Movement to uncover discrimination in housing.⁵³

It involves testers posing as prospective tenants to observe whether they receive differential responses based on race or another protected characteristic.

CRIME-FREE HOUSING ORDINANCES are local laws that encourage or require private landlords to evict existing tenants or to deny prospective tenants who have had a certain level of contact with the criminal legal system.

Crime-free ordinances were born out of the law enforcement community and are often sponsored and supported by local police departments.⁵⁴ These ordinances may authorize police to cite or criminally charge landlords if they are frequently called to a residence. Not only do these ordinances contribute to denial of housing for people with prior criminal legal contact, but they also threaten housing security and safety for victims of crime. For example, if someone experiencing intimate partner violence calls 911 for help, they may be penalized under crime-free housing ordinances and face eviction.⁵⁵

Mayor Antonio Villaraigosa speaks to residents of the Jordan Downs housing project in Watts, CA about installing surveillance cameras to assist police in enforcing gang injunctions. (Photo via Getty Images)

There is no comprehensive estimate of the number of people who are rejected from housing due to prior criminal legal contact, and there is no way of knowing the number of people with criminal histories who do not apply for housing because they assume that they will be rejected. Still, research demonstrates that more than 100,000,000 people in the U.S. (about one in three adults) have some kind of criminal record that could impact their ability to secure housing (e.g., an arrest or a conviction record).⁵⁶ Additionally, national estimates of people experiencing homelessness have reached an all-time high since HUD reporting began in 2007 (see Figure 1).ⁱⁱⁱ

A study from the Vera Institute of Justice estimated the number of people who were potentially excluded from public housing due to criminal histories in two states that had recently passed laws to remove barriers for people with criminal records: Michigan and Oklahoma.⁵⁷ The researchers found that more than 3.5% of all adult Michiganders and 7.6% of all adult Oklahomans face potential exclusion from public housing.⁵⁸ In Michigan, if all PHAs restricted their lookback period to two years, at least 139,000 Michiganders would regain eligibility for public housing. If PHAs restricted the lookback period to six months, at least 230,000 Michiganders would regain eligibility.⁵⁹ Similarly, in Oklahoma, a lookback period of two years would result in at least 125,000 Oklahomans regaining public housing eligibility and a lookback period of six months would result in at least 160,000 regaining eligibility.⁶⁰

Michigan

Michiganders would regain eligibility for public housing if PHAs restricted the lookback period to two years.

would regain eligibility if PHAs restricted the lookback period to six months.

Oklahoma

Oklahomans would regain eligibility for public housing if PHAs restricted the lookback period to two years.

would regain eligibility if PHAs restricted the lookback period to six months.

The role of tenant screening companies and artificial intelligence

The landscape of tenant screening continues to evolve, in large part due to the growing tenant screening industry. Both public and private housing providers often use tenant screening services to review potential applications and make decisions about who to admit into housing. Recent estimates suggest that there are more than 2,000 companies that offer tenant screening services, constituting a one-billion-dollar industry.⁶¹ As evidenced by the story of Marckus Williams, criminal record information used by tenant screening companies is notoriously inaccurate. Some of the ways criminal record information can be inaccurate include records matched to the wrong people, inclusion of cases that should be sealed or expunged, and inclusion of arrest information without information about the outcome of the case.⁶²

A major development in the evolution of tenant screening services is the increased use of artificial intelligence (AI). The use of AI enables tenant screening companies to include much more information (of questionable accuracy) than was previously feasible.⁶³ Tenant screening companies also often use algorithms to produce summary risk scores and/or a recommendation based on criminal records, eviction records, and credit scores.⁶⁴ Survey data demonstrates that housing providers, both private and public, frequently use the risk score to inform decision-making without reviewing the underlying information and individual records in the tenant screening report.⁶⁵ The MIT experiment with landlords found that landlords had higher odds of rejecting tenants with only misdemeanor offenses when they were shown risk scores compared to when they were shown a prospective tenant with the same conviction history, with no risk score provided.⁶⁶ Additionally, the use of AI in tenant screening reduces transparency regarding the type and quality of information that informs the algorithms, which restricts potential tenants’ already limited ability to refute inaccurate information.

Tenant screening companies are increasingly using algorithmically generated eligibility assessments that can take the form of numerical scores, risk predictions, or recommendations about whether a landlord should accept or reject a tenant.

Many companies do not disclose what data is used to generate eligibility assessments or how the scores are calculated, though they often rely on factors that reflect structural bias and are highly correlated with race, such as arrest records, conviction records, eviction records, and credit scores. As a result, algorithmically generated eligibility assessments can lead to the disproportionate exclusion of Black prospective tenants from housing opportunities because of underlying discrimination in the criminal legal system, housing sector, and financial sector.

In January 2023, DOJ and HUD filed a Statement of Interest in a lawsuit that challenged the use of an algorithm-based tenant screening scoring system on the basis that it discriminates against Black and Latinx rental applicants.⁶⁷ The lawsuit resulted in a settlement for tenants who were discriminated against and were denied housing.⁶⁸ In April 2024, HUD issued guidance on how tenant screening processes must be implemented in compliance with the Fair Housing Act and raised concerns about the increased use of AI and other advanced technologies in the tenant screening industry.⁶⁹ Specifically, HUD raised concerns over the lack of transparency, the use of inaccurate or irrelevant information, and the risk of discriminatory impact for Black and other prospective tenants as a result of the use of tenant screening algorithms.⁷⁰ Still, the federal government has taken few proactive steps to regulate tenant screening algorithms.

ⁱⁱThe survey did not define “criminal history,” so it is unclear if respondents interpreted criminal history as arrest record or conviction record.

ⁱⁱⁱHUD’s national Point-in-Time estimate of homelessness is the best available national estimate, but housing advocates generally consider it to be an undercount of the true scope of homelessness in the U.S. See Darrell Stanley, DON’T COUNT ON IT: How the HUD Point-in-Time Count Underestimates the Homelessness Crisis in America, Nat’l L. Ctr. on Homelessness & Poverty, (2017), https://homelesslaw.org/wp-content/uploads/2018/10/HUD-PIT-report2017.pdf.

Part 2 Evidence of unjustiﬁed discriminatory effects of criminal history restrictions

Evidence of discriminatory effects

The first step in establishing that a housing policy has an unjustified discriminatory effect and violates the Fair Housing Act is identifying evidence that the policy produces a discriminatory effect.⁷¹ This section reviews the research evidence that documents how criminal history restrictions produce discriminatory effects for Black prospective tenants because of racial discrimination in the criminal legal system. It also describes how the racial discrimination in the criminal legal system is further compounded by discrimination in the housing sector.

Racial discrimination in the criminal legal system

Historians and social scientists have traced the history of the modern U.S. criminal legal system to racist systems and structures that date back to slavery and the Reconstruction era with the underlying goal of controlling and criminalizing the movement and activities of Black people.⁷² For example, following the abolition of slavery, Southern states enacted vagrancy laws that enabled police to arrest newly freed Black people if they could not show proof that they had a white employer.⁷³ Newly freed Black people who were arrested were often incarcerated and forced into a system of unpaid prison labor known as convict leasing, essentially equivalent to slavery.⁷⁴

Convict leasing has since been abolished, yet the modern day criminal legal system continues to disproportionately target, surveil, and criminalize Black people.⁷⁵ Today, Black people are significantly more likely to be stopped and arrested by police than white people in the United States.⁷⁶ The disproportionate policing of Black people contributes to subsequent racialized disparities in incarceration and sentencing. Black people comprise 14% of the U.S. population and comprise 32% of the U.S. correctional population (i.e., people held in jails and prisons or under community supervision through probation or parole).⁷⁷ Put another way, Black people are about six times as likely to be incarcerated in prison as white people.⁷⁸ For a comprehensive review of racial discrimination in the criminal legal system, please see TMI’s Barred from Work companion brief.

Research demonstrates that these racialized disparities in policing and incarceration persist even after accounting for differences in the type or severity of criminal activity.⁷⁹ Racialized disparities in the criminal legal system therefore cannot be explained away by racial differences in who commits crimes and are better explained by racism embedded within the system, as noted by HUD in its 2024 guidance on tenant screening.⁸⁰

Overbroad use of criminal records to determine whether people have access to housing transports the racial discrimination within the criminal legal system to housing, a sector already rife with historic and ongoing racial discrimination.⁸¹ Given the racialized disparities among people arrested and incarcerated, a disproportionate share of the about 100,000,000 people with any criminal record are estimated to be Black, though the exact number is unknown.⁸² Regarding felony records, it is estimated that about 23% of Black adults have a felony record compared with about 8% of all U.S. adults.⁸³ As a result, policies that categorically exclude people with felony records or other criminal records will have a discriminatory effect on Black prospective tenants.

Racially discriminatory applications of criminal history restrictions in housing

In addition to the fact that racial discrimination from the criminal legal system is transported into the housing sector, criminal history restrictions in tenant screening also compound racial discrimination against Black tenants through bias and discrimination in the housing sector. As a result of decades of racial discrimination in housing, the United States has a large racial homeownership gap. Black households are twice as likely to be renters compared with white households. Since Black people are more likely to be renters, they are more likely to be subject to criminal history restrictions when trying to access housing.⁸⁴

Additionally, fair housing testing experiments have demonstrated that Black prospective tenants with criminal records may face harsher penalties and reduced likelihood of accessing housing compared with white prospective tenants with criminal records.⁸⁵ In 2015, two local fair housing organizations, one in New Orleans, L.A., and one in Washington, D.C., conducted testing experiments to determine whether criminal history policies in tenant screening were being applied in a discriminatory way that differentially impacted Black prospective tenants with criminal records.⁸⁶ The Seattle Office for Civil Rights conducted a similar testing experiment in Seattle, W.A. in 2018.⁸⁷

In the three experiments, testers were paired up such that their profiles were similar in terms of backgrounds and conviction histories, with tenant race as the only difference. In New Orleans and Seattle, all tests were conducted in person.⁸⁸ In Washington, D.C., two-thirds of tests were conducted in person and one-third were conducted over the phone.⁸⁹ The Washington, D.C. experiment was focused on women tenants only.⁹⁰ The results from all three experiments showed that Black prospective tenants faced negative differential treatment compared to the matched white prospective tenants.⁹¹ In New Orleans and Washington, D.C., better treatment for white prospective tenants occurred about 50% of the time; in Seattle, it occurred 38% of the time. Examples of negative differential treatment included landlords quoting more lenient policies to white prospective tenants, providing higher quality customer service to white prospective tenants, encouraging white prospective tenants to apply despite having a criminal history, while discouraging Black prospective tenants from applying, and making exceptions for white prospective tenants but not Black ones.

In two subsequent studies, researchers took a different approach to test housing outcomes by race and criminal history. One study, published in 2018, used phone calls to test housing providers across the Midwest,⁹² and the other, published in 2023, used email outreach to test housing providers in Ohio.⁹³ Because those tests were not conducted in person, researchers aimed to convey tester race through name (and voice in the case of phone calls). Rather than matching testers on all factors besides race, researchers used statistical regression methods to control for various factors to isolate the effect of race, gender, or criminal history. They also included an “interaction term” in the regression models between race and criminal history. Interaction terms are used to determine if a relationship between two variables changes depending on a third variable. In this case, the researchers were assessing whether the effect of criminal history on housing outcomes changed based on tester race.

Additionally, rather than documenting and describing various types of differential treatment, as was done in the three prior experiments, the researchers considered a binary measure of positive vs. negative response from the landlord. Responses that indicated that the landlord was willing to rent to the tester were considered positive responses.⁹⁴

Both studies found that criminal history had a strong negative effect on the likelihood of receiving a positive landlord response.⁹⁵ In the 2023 Ohio email study, Black testers also had significantly lower odds of receiving a positive landlord response than white testers, while in the 2018 phone call study, the effect of race was not statistically significant.

In both studies, the interaction between race and criminal history was not statistically significant. This suggests that the effect of criminal history is not significantly different for Black prospective tenants compared with white prospective tenants. It is important to note that this finding does not mean that Black prospective tenants with criminal records received the same treatment as white prospective tenants with criminal records. In fact, in the 2023 Ohio email study, Black prospective tenants with criminal records received worse landlord responses than white prospective tenants with criminal records. That is, Black prospective tenants with a criminal history face the harmful effects of racial discrimination plus the harmful effects of having a criminal record, but the non-significant interaction terms suggest that there is no significant additional penalty over and above the addition of those two effects.⁹⁶ Figure 2 illustrates this by showing the descriptive landlord response rates from the 2023 email study by race and gender. This finding may be due to several factors including a lack of in-person interaction between landlords and testers to clearly convey tester race as well as a lack of measurement of more nuanced differences in treatment that were not captured by the binary measurement of positive vs. negative landlord responses.

Still, the findings from the 2023 Ohio email study are consistent with the existing research that shows that Black prospective tenants with a criminal record face lower access to housing compared with white prospective tenants with a criminal record because of the compounded effects of race and criminal history. Additionally, the researchers in this study found that the negative impact of criminal history was significantly stronger in gentrifying neighborhoods and neighborhoods with a shrinking Black resident population.⁹⁷ According to the researchers, this suggests that criminal history restrictions “may be a ‘race-neutral’ tool for facilitating neighborhood change” in favor of wealthier white residents.⁹⁸

Overall, this body of research demonstrates how criminal history restrictions are often applied in a racially discriminatory way despite being race-neutral at face value.

Evidence that the discriminatory effects are unjustified

The final step in establishing that a housing policy that has discriminatory effects violates the Fair Housing Act is to demonstrate that the observed discriminatory effects are unjustified.⁹⁹ This means that either the policy is not necessary to achieve a legitimate and non-discriminatory interest or there is a less discriminatory alternative. This section reviews existing research evidence that suggests that the discriminatory effects of criminal history restrictions are often unjustified.

Inaccuracy of criminal records

It has been widely established that criminal record information is highly inaccurate, whether that data comes from public government sources or private databases.¹⁰⁰ Common errors in criminal record data include outdated information (e.g., showing criminal charges that have since been dropped or expunged), mismatched records due to similar names, and missing outcome or disposition data.¹⁰¹ A study of criminal records in New York found that 87% of records contained at least one error.¹⁰² There is some variability by state in terms of what percentage of arrest records are missing the outcome or disposition of the case, however, on average, 69% of arrest records are missing outcome data.¹⁰³ In Iowa, the state with the highest rate of missing outcome date, the rate is 98%.¹⁰⁴ This lack of outcome data causes unjustified harm to prospective tenants because about one-third of felony arrests do not result in conviction and many that do result in conviction are reduced to misdemeanors.¹⁰⁵

Private databases—including databases used by tenant screening algorithms—often rely on automatic web scraping technologies to pull criminal record information from a variety of sources; these can introduce even more inaccuracy to a report by patching together outdated information or by mismatching information to the wrong people.¹⁰⁶ An analysis of private criminal record information found that 96-100% of study participants had at least one error in their background check. About 75% of participants had a false positive: a private-sector background check reported a criminal record that did not appear in an official government record.¹⁰⁷

Notably, evidence suggests that inaccuracies in criminal records may disproportionately impact Black people. For example, in 2020, the U.S. Department of Labor funded a study to estimate the accuracy of criminal records among members of a class action lawsuit who were denied employment because of a criminal background check.¹⁰⁸ The study found that 33% of Black study participants had at least one inaccuracy in their criminal record compared with just 18% of white participants, meaning Black participants were almost twice as likely to have an inaccurate record.¹⁰⁹

Overall, given the high rate at which criminal record information is inaccurate and incomplete, relying on that information to make housing decisions may not be justified.

Criminal history does not predict the likelihood of being a good tenant

A policy that excludes tenants with prior criminal legal contact may be considered justified if it effectively screens out problematic tenants who are unlikely to abide by the terms of their lease or pay rent on time. However, existing research on housing outcomes among people with criminal histories suggests that prior criminal legal contact does not predict whether someone will be a good tenant.

Between 2009 and 2013, three studies were conducted to evaluate whether criminal history was a predictor of housing success among people who had faced homelessness and substance use challenges and who were living in supportive housing.¹¹⁰ Housing success was defined as a person maintaining their housing in the program or moving to another appropriate living situation. In all three of the studies, the researchers found that criminal history was not a predictor of housing success.

More recently, in 2019, economist Cael Warren conducted a study of 10,500 households in Minnesota and Wisconsin.¹¹¹ Warren assessed the association between fifteen different criminal offense categories and housing success. He found that eleven of the fifteen offense categories had no significant effect on housing outcomes.¹¹² The remaining four criminal offense categories increased the risk of a negative housing outcome (e.g., lease violation, leaving without notice, non-payment of rent) by a small amount (three to nine percentage points). Warren also found that any effect that a prior criminal offense had on housing outcomes declined over time and became insignificant after two years for misdemeanors and after five years for felonies.¹¹³

A criminal record may also reflect information that is irrelevant to whether someone will be a good tenant. The risks of using outdated information and incomplete information (e.g., records of arrests that did not result in conviction) have already been discussed. In addition, housing providers may use a new arrest or criminal charge as grounds to evict existing tenants who are abiding by the terms of their lease.¹¹⁴ In these cases, a tenant’s past behavior as a good tenant should be considered a stronger predictor of their housing success than a new criminal record. Furthermore, the circumstances of criminal charges should be considered when determining whether they have any relevance to housing success. For example, survivors of intimate partner violence (IPV) may be criminalized as a result of the violence and abuse that they are experiencing.¹¹⁵ IPV survivors may be coerced into criminalized activity by an abusive partner or may be charged with criminal offenses for acts of self-defense.¹¹⁶ Though such criminal charges are irrelevant to a person’s success as a tenant, they may be used as grounds to deny them housing.^ivThere are many other examples of arrests or convictions that are unrelated to a person’s tenancy, including criminalized activities that occur at a location other than where the tenant lives.

Overbroad criminal history restrictions are not necessary for the safety of other tenants

Criminal history restrictions may be considered justified if they are necessary to protect the health and safety of other tenants or housing staff. Indeed, the apparent goal of the federal One Strike policy was to reduce drug crime in public housing developments.¹¹⁷ However, there is no evidence that policies that restrict housing access for people with criminal records improve residence safety. On the contrary, evidence suggests that denying housing access to formerly incarcerated people is associated with increased recidivism (likelihood of being rearrested or reconvicted).¹¹⁸ So, exclusionary policies may have the opposite impact from what is intended, resulting in threats to neighborhood safety.

Most people who are released from prison do not return to prison in the five years post-release.¹¹⁹ Still, the criminal legal system is not known to have a rehabilitative effect, and in many cases can have a criminogenic effect, increasing a person’s likelihood of future criminal legal contact. This effect can occur because incarceration and the consequences of having a criminal record can exacerbate social, health, and financial stressors, which may create a context of desperation.¹²⁰ Nevertheless, a new arrest or a new criminal charge may not have any implications for the health and safety of other residents.

Additionally, when someone is released from incarceration, they are typically heavily surveilled by the criminal legal system through community supervision (probation or parole), which increases their risk of rearrest, including for technical violations that do not constitute a new crime. Formerly incarcerated people can be rearrested and reincarcerated for technical violations of probation or parole such as missing an appointment or drinking alcohol, activities that otherwise would not be considered criminal. As a result, rates of rearrest and recidivism are generally not reflections of threats to neighborhood safety. For all of these reasons, restrictive housing policies that exclude people with any prior criminal legal contact regardless of the nature, severity, or location of the criminalized activity should not be considered necessary to protect other tenants.

^ivNote, under the Violence Against Women Act (VAWA), it is illegal for an IPV survivor to be denied admission into or be evicted from HUD-assisted housing because of the violence committed against them. However, in practice, survivors are often denied housing because of criminal histories. For example, in a 2016 survey, 58% of sex trafficking survivors reported difficulty finding housing because of a criminal history. See Goodmark, Imperfect Victims, supra note 115 at 140.

Part 3 Consequences of criminal history restrictions

Criminal history restrictions in tenant screening may not only have unjustified racially discriminatory effects on prospective Black tenants seeking housing, but they are also associated with wide-ranging, long-term adverse consequences for individuals, families, and society writ large.

Photo: A man relaxes after work at the Jordan Downs housing projects on Oct. 21, 2024 in Watts, CA. (Michael Blackshire / Los Angeles Times via Getty Images)

Costs to individuals and families

Increased housing insecurity and homelessness

Needless to say, denying housing opportunities to people with prior criminal legal contact results in an increased risk of housing insecurity and homelessness for them and for their families.¹²¹ Formerly incarcerated people are nearly ten times as likely to be homeless compared with the general public.¹²² Criminal history restrictions in housing likely contribute to the stark racial disparities in homelessness: Black people compose only 14% of the U.S. population, but account for 37% of people experiencing homelessness.¹²³ They also account for more than 50% of homeless families with children.¹²⁴ Furthermore, Black people who were formerly incarcerated are about 1.6 times as likely to be homeless compared with white people who were formerly incarcerated.¹²⁵

Housing insecurity and homelessness are associated with serious physical health, mental health, economic, and safety consequences. People experiencing homelessness have higher rates of physical illness, mental illness, and substance use disorders.¹²⁶ Housing insecurity and homelessness can also make it more difficult for formerly incarcerated people to secure and maintain work or educational opportunities.¹²⁷ Additionally, because of laws that criminalize homelessness and poverty (e.g., vagrancy laws, trespassing laws, etc.), housing insecurity increases the risk that someone will be rearrested for quality-of-life offenses and face future criminal legal contact, fueling a cycle of criminalization and housing insecurity.¹²⁸ People who are homeless are eleven times more likely to be arrested than people who are housed.¹²⁹

Threats to Family Reunification

Criminal history restrictions in tenant screening pose serious threats to family reunification and child custody. Families may be forced to choose between excluding a family member with a criminal record to retain housing vs. staying together and risking losing their home.¹³⁰ Additionally, child welfare agencies may temporarily or permanently remove children from families that are facing housing instability.¹³¹ Transient living can lead to disruptions in a child’s education and emotional development and can negatively impact their sense of well-being.¹³² In this way, children have been described as the “unseen victims” of exclusionary housing policies.¹³³

Safety threats to survivors of violence

As previously described, survivors of IPV are often criminalized for acts that are tied to survival and self-defense.¹³⁴ Criminal history restrictions in housing mean that IPV survivors with criminal records may be denied safe independent housing opportunities. Exclusionary housing policies can force survivors to choose between living with an abusive partner or homelessness.¹³⁵ Under exclusionary housing policies, a survivor of IPV may also be evicted from their home due to criminalized behavior that their abusive partner commits.¹³⁶ Survivors may also be disincentivized from reaching out for help due to fear that they may be evicted.

Societal costs

Community Safety

The ostensible goal of criminal history exclusions is to improve safety under the assumption that excluding people with prior criminal legal contact will improve the safety of other building residents and neighbors. However, in practice, restrictive tenant screening policies may have the opposite effect. Instead, they promote instability within a community because housing is a critical component of community reentry and neighborhood stability. There is a substantial body of research documenting that a person without stable housing is significantly more likely to face future criminal charges than a person with stable housing.¹³⁷ Therefore, policies that exclude people with criminal histories from housing may have the perverse effect of increasing the risk of criminalized behavior and threatening local public safety. On the other hand, policies that expand access to housing for formerly incarcerated people have shown great success in reducing recidivism. Table 1 presents a summary of reentry programs that operate in partnership with local PHAs and that have demonstrated successful public safety and recidivism outcomes, compiled by Dr. Calvin Johnson, HUD Deputy Assistant Secretary for the Office of Research, Evaluation, and Monitoring.¹³⁸

Additionally, denying housing for people with prior criminal legal contact exacerbates the housing and homelessness crisis, which has detrimental consequences for community safety and stability. For example, research shows that the destabilizing effects of eviction are associated with increased neighborhood crime rates, including higher rates of robbery, burglary, drug offenses, homicide, and other violent crime.¹³⁹

Table 1. Summary of Select Reentry Programs with Public Housing Authority Participation

Description

Offers permanent housing and supportive services to “front end” or frequent users of criminal justice and emergency medical services. Participants are typically homeless and struggle with substance abuse and mental health problems.

Outcome

Results from a randomized evaluation show that compared to a control group, Denver SIB participants experienced: 1) a 40% reduction in shelter stays, 2) a 34% reduction in police contacts, 3) a 40% reduction in arrests, 4) a 30% reduction in unique jail stays, 5) a 27% reduction in total jail days and 6) a 65% reduction in detoxification services.

Description

Individuals experiencing homelessness who had four jail stays and four shelter stays in the past five years were offered permanent supportive housing. Participating tenants were linked to comprehensive mental health and medical services and other support services.

Outcome

Results from quasi-experimental evaluation show that relative to individuals from a comparison group (44%), FUSE II participants (88%) were more likely to be in permanent housing after 24 months. FUSE II participants had a 70% reduction in shelter episodes and a 40 percent reduction in jail days. Additionally, FUSE II participants had lower rates of recent use of hard drugs and alcohol, scored lower on psychological stress measures, and had higher levels of family and social support. FUSE II participants had fewer ambulance runs and fewer days of hospitalization for psychiatric reasons.

Description

Offers permanent housing and supportive services to returning citizens with unmet medical needs and who are at risk of becoming homeless.

Outcome

Despite having higher security level classifications in prison, RHO participants were 40% less likely to be rearrested and 61% less likely to return to prison within one year of release than members of a comparison group.

Description

Provides housing choice vouchers (HCVs) and support services to parolees who meet requirements for housing assistance. Upon completion of community supervision, program eligible participants can continue HCV program participation.

Outcome

93% of program participants completed parole (three-year follow-up).

Description

Allows people released from jail/prison to move into public housing with their family members. After completion of a required two-year program, these individuals may be added to the lease.

Outcome

As of May 2017, 108 people enrolled; 20 completed FRPP; 88 are progressing; fewer than 5 have been re-convicted.

Adapted from Calvin Johnson, Why Housing Matters for Successful Reentry and Public Safety, HUD Office of Policy Development and Research, 19 April, 2022. https://www.huduser.gov/portal/pdredge/pdr-edge-frm-asst-sec-041922.html.

Racial Segregation

U.S. neighborhoods have been defined by a long history of racial residential segregation. This segregation was actively produced and sustained through state-sanctioned discriminatory policies and practices, along with individual acts of discrimination and incidences of mob violence.¹⁴⁰ Exclusionary housing policies and crime-free ordinances are among the kinds of policies that play an active role in fueling racial residential segregation.¹⁴¹ Public and private housing providers can use criminal history restrictions to exclude formerly incarcerated people, who are disproportionately Black, from low-poverty, high-resource neighborhoods.¹⁴² There is evidence from some jurisdictions that crime-free housing ordinances have been adopted in response to increasing racial diversity, not increasing crime rates.¹⁴³ For example, the Los Angeles Times conducted an analysis of crime-free housing ordinances in California and found that of the twenty cities with the largest increases in Black residents since 1990, 85% had enacted crime-free housing laws.¹⁴⁴ The analysis also found that Black residents living in cities that have crime-free housing ordinances faced higher rates of eviction than white residents.¹⁴⁵ In this way, laws that appear to be race-neutral, like exclusionary housing policies, can have racially discriminatory effects and produce all-white neighborhoods. This hearkens back to the “sundown towns” of the Jim Crow South, which categorically excluded Black people from living there and even from being present after sundown.¹⁴⁶ HUD has explicitly stated that an exclusionary housing policy can violate the Fair Housing Act if it “creates, perpetuates, increases, or reinforces segregation.”¹⁴⁷ Eliminating policies like crime-free housing ordinances can help jurisdictions affirmatively further fair housing as required by the Fair Housing Act.

Part 4 Strategies to Address the Problem

There are several steps that can be taken at the local, state, and federal levels to strengthen enforcement of the Fair Housing Act and protect Black tenants with prior criminal legal contact from housing discrimination.

Existing enforcement and protection mechanisms

Federal

As stated previously, HUD and DOJ are responsibly for jointly enforcing the Fair Housing Act and HUD historically provided guidance to housing providers about how to comply with the law. In April 2024, HUD proposed a new rule to change how criminal records may be considered by PHAs when they determine whether someone is eligible for HUD-assisted housing.¹⁴⁸ Under the proposed rule, PHAs would be required to conduct individualized assessments of prospective tenants that would take into consideration any mitigating circumstances around criminal records. HUD also proposed that PHAs should not consider old criminal records to inform housing decisions, arguing that a lookback period of more than three years is unreasonable under most circumstances. This proposed rule was a step in the right direction to help housing providers avoid discriminatory housing denials and comply with the Fair Housing Act. However, this rule was proposed during the end of the Biden Administration, and on January 16, 2025, HUD withdrew the rule in anticipation of the start of the Trump Administration on January 20.¹⁴⁹ In its first two months, the new Trump Administration has begun gutting fair housing enforcement, taking steps such as terminating the federal rule that guides fair housing enforcement, proposing drastic cuts to HUD staffing including to the Office of Fair Housing and Equal Opportunity, and slashing federal funding for fair housing organizations that enforce anti-discrimination laws.¹⁵⁰ As a result, state and local governments have a greater responsibility to prevent housing discrimination and enact policies that require housing providers to use non-discriminatory housing policies.

State and Local

Some state and local governments have taken the proactive step of passing legislation to regulate the extent to which criminal records can be considered in housing decisions, if at all. In 2017, Seattle, Washington, became the first major U.S. city to pass Fair Chance Housing legislation that barred consideration of most criminal history information at all stages of the housing rental process.¹⁵¹ Under this law, landlords were prohibited from either inquiring about or requiring disclosure of criminal history or denying prospective tenants based on criminal history.¹⁵² After this law was passed, landlords brought a constitutional challenge against it. The United States Court of Appeals for the Ninth Circuit ruled that barring landlords from inquiring about criminal history violated their First Amendment right to free speech.¹⁵³ However, the other provisions of the law were found to be constitutional and remained intact: Seattle landlords can inquire about criminal history, but they cannot use that information to exclude a prospective tenant.¹⁵⁴ In 2024, New York City passed the Fair Chance for Housing Act. This law aims to prohibit housing discrimination on the basis of criminal history, with limited exceptions.¹⁵⁵ Similar legislation has recently been introduced in other cities and states across the country where legislators are aiming to ward against the discriminatory effects of criminal history exclusions.

Best practices for tenant screening

Local laws and policies to regulate the use of criminal history in tenant screening vary in their specifics. Below is a list of some best practices that policymakers, housing providers, and tenant screening companies should consider when seeking to comply with the Fair Housing Act and avoid discriminatory housing denials:

Housing providers should provide written notices of eligibility requirements to prospective tenants before accepting application fees.

Housing providers should adhere to strictly limited, evidence-based lookback periods so that older criminal history information does not influence housing decisions. Research clearly shows that a prior arrest or conviction has little to no predictive value for housing outcomes, especially as time passes. There is no evidence that broad criminal history restrictions with no specific lookback period advance a legitimate business interest.

Housing providers should never deny housing based on arrest records with no conviction information or that show convictions that have been sealed or expunged, and tenant screening companies should not provide that information to housing providers.

Housing providers should strictly limit the types of convictions that they consider to only those charges that indicate that the prospective tenant is a risk to the health and safety of other tenants or staff or where exclusions are required by law.

Housing providers should consider mitigating circumstances, such as evidence of treatment program participation for prospective tenants with substance use charges, and information about the severity or relevance of charges.

Prospective tenants should be given opportunities to contextualize, respond to, or dispute information prior to housing decisions being made.

Prospective tenants should be notified of denials, the reason for the denial, and the information that was used to inform the denial.

Tenant screening companies should stop providing an algorithmically-generated risk score or eligibility determination.

Federal, state, and local governments should regulate the use of algorithms in tenant screening to increase transparency and accountability, including requiring that companies test algorithms to identify bias and identify less discriminatory alternatives.

The tenant screening practices outlined above can complement other strategies to address the discriminatory impacts of criminal history restrictions. Other helpful strategies include passing automatic record expungement laws, creating access to high-quality re-entry services, instating policies to eliminate technical violations of probation and parole for failure to maintain housing, and most importantly, working on efforts to shrink the reach of the criminal legal system. The surest way to reduce the harms of mass incarceration and its collateral consequences is to reduce the number of people who are criminalized and incarcerated.

Conclusion

Millions of people have been denied access to housing because of prior criminal legal contact. Black people have been disproportionately impacted by the negative consequences of criminal history restrictions because of the structural racism embedded within the criminal legal system. Not only do exclusionary housing policies harm formerly incarcerated people’s chances at successful reentry to their communities and threaten the health and safety of their families, but they also threaten community safety more broadly by exacerbating the homelessness crisis and residential segregation. This Brief highlights the unjustified discriminatory effects of exclusionary housing policies and what we stand to gain by adopting a less punitive and restrictive approach to housing. Less restrictive and non-discriminatory housing policies have the potential to reduce homelessness, improve public safety, reunify families, and combat racial residential segregation. In the current political landscape, it is especially incumbent upon state and local governments as well as private landlords to enact non-discriminatory policies that increase access to housing for deserving tenants, including those who have come into contact with the criminal legal system.

Endnotes

Gretchen Morgenson, Private equity landlords’ screening process discriminated against renters, lawsuits contend, NBC News (Nov. 21, 2024), https://www.nbcnews.com/news/us-news/private-equity-landlords-screening-process-discriminated-renters-lawsu-rcna180707.
Id.
Class Action Compl., Williams v. Progress Residential, LLC, No. 1:24-cv-02050-JRS-CSW (S.D. Ind. Nov. 20, 2024), ECF No. 1, https://www.relmanlaw.com/assets/htmldocuments/1%20Complaint%20Progress.pdf; Class Action Compl. Seeking Nationwide Declaratory Relief & Damages; Jury Demand, Williams v. Tricon Residential, Inc., 8:24-cv-02534 (C.D. Cal. Nov. 20, 2024), ECF No. 1, https://www.relmanlaw.com/assets/htmldocuments/1%20complaint%20Tricon%201.pdf.”
Case Profiles: Marckus Williams and the Fair Housing Center of Central Indiana v. Tricon Residential, Inc., Relman Colfax (Nov. 21, 2024), https://www.relmanlaw.com/cases-672 (hereinafter “Case Profiles: Williams v. Tricon”).
Id.; sources cited supra note 3.
Case Profiles: Williams v. Tricon, supra note 4.
Gretchen Morgenson, supra note 1.
United States profile, Prison Pol’y Initiative, https://www.prisonpolicy.org/profiles/US.html.
https://www.prisonpolicy.org/reports/pie2024.html (last visited Mar. 11, 2025) (See “Incarceration Rates” Table under “Global comparison” section).
Crime in the United States, Uniform Crime Report (2019), https://ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-2019/topic-pages/persons-arrested.pdf.
E.g., Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2020), https://thenewpress.com/books/new-jim-crow; Rachel Kleinman & Sandhya Kajeepeta, Barred from Work: The Discriminatory Impacts of Criminal Background Checks in Employment, LDF | T. Marshall Inst. (Apr. 2023), https://tminstituteldf.org/wp-content/uploads/2023/07/Barred-from-Work.pdf ; Sentencing Project, Report of The Sentencing Project to the United Nations Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia, and Related Intolerance: Regarding Racial Disparities in the United States Criminal Justice System (Mar. 2018), Racial and ethnic disparities: Research and statistics on racial and ethnic disparities in the criminal legal system, https://www.sentencingproject.org/app/uploads/2022/08/UN-Report-on-Racial-Disparities.pdf; Racial and ethnic disparities: Research and statistics on racial and ethnic disparities in the criminal legal system, Prison, Pol’y Initiative, https://www.prisonpolicy.org/research/race_and_ethnicity/ (last updated Mar. 4, 2025); Elizabeth Hinton et al., An Unjust Burden: The Disparate Treatment of Black Americans in the Criminal Justice System, Vera Inst. of J. (May 2018), https://vera-institute.files.svdcdn.com/production/downloads/publications/for-the-record-unjust-burden-racial-disparities.pdf.
Jesse Kropf, Keeping “Them” Out: Criminal Record Screening, Public Housing, and the Fight Against Racial Caste, 4 Geo. J.L. & Mod. Critical Race Persp. 75 (2012).
Corinne Carey, NO SECOND CHANCE: People with Criminal Records Denied Access to Public Housing, Human Rts. Watch. (2004), https://www.hrw.org/sites/default/files/reports/usa1104.pdf.
U.S. Atty’s Off., U.S. Dep’t of Just., Reentry Fact Sheet (Dec. 2014), https://www.justice.gov/sites/default/files/usao-ndga/legacy/2014/12/12/Reentry%20Fact%20Sheet%20_FINAL.pdf.
Beverly Reece & Tanja Link, There’s No Place Like Home: Importance of Housing Stability for Reentry, 48 A. J. Crim. Just. 1008, 1023 (2023), https://doi.org/10.1007/s12103-023-09734-8.
Eleanor J. Bader, HUD Targets Public Housing Discrimination Against Formerly Incarcerated People, Truthout (May 18, 2024), https://truthout.org/articles/proposed-hud-rules-would-protect-convicted-tenants-from-public-housing-eviction/; Finding housing is hard—but for people leaving prison and jail, it’s almost impossible, Vera Inst. (Aug 30, 2018), https://www.vera.org/news/finding-housing-is-hard-but-for-people-leaving-prison-and-jail-its-almost-impossible.
U.S. Dep’t of Hous. & Urb. Dev., Fair Hous. & Equal Opportunity, 2023 Fiscal Year, State of Fair Housing: Annual Report To Congress 15 (2023), https://www.hud.gov/sites/dfiles/SFH/documents/FHEO_Annual_Report_FY_2023.pdf.
William J. Clinton, Remarks Announcing the “One Strike and You’re Out” Initiative, in Public Housing, Gerhard Peters & John T. Woolley, Am. Presidency Project (Mar. 28, 1996), https://www.presidency.ucsb.edu/node/222840.
U.S. Dep’t of Hous. & Urban Dev., Meeting the Challenge: Public housing authorities respond to the “One Strike and You’re Out” initiative, (photo.reprt.) (Sept. 1997), https://www.ojp.gov/pdffiles1/Photocopy/183952NCJRS.pdf (hereinafter “US HUD 1997 One Strike Report”).
Carey, supra note 13, at 28–34; Jason Dzubow, Fear-Free Public Housing: An Evaluation of HUD’s One Strike and You’re out Housing Policy, 6 Temp. Pol. & C. R. L. Rev. 55, 56–57 (1996).
US HUD 1997 One Strike Report, supra note 19, at 57.
Rebecca J. Waltera, Jill Viglione & Marie Skubak Tillyer, One Strike to Second Chances: Using Criminal Backgrounds in Admission Decisions for Assisted Housing, Hous. Pol’y Debate 4 (2017), http://dx.doi.org/10.1080/10511482.2017.1309557.
Id. at 4.
Marie Claire Tran-Leung, When Discretion Means Denial: A National Perspective on Criminal Records Barriers to Federally Subsidized Housing, Sargent Shriver Nat’l Ctr. on Poverty L. 11 (Feb. 2015), https://www.povertylaw.org/wp-content/uploads/2019/09/WDMD-final.pdf.
Id. at 51–54. (Table showing PHAs with “No Express Lookback” policies).
Id. at 55–60.
Kleinman & Kajeepeta, supra note 11, at 8.
E.g., Andrew Gelman, Jeffrey Fagan & Alex Kiss, An Analysis of the New York City Police Department’s“Stop-and-Frisk” Policy in the Context of Claims of Racial Bias, 102 J. Am. Stat. Ass’n 813–23 (2007), https://doi.org/10.1198/016214506000001040; Emma Pierson et. al., A large-scale analysis of racial disparities in police stops across the United States, 4 Nat. Hum. Behav. 736–45 (2020), https://doi.org/10.1038/s41562-020-0858-1.
Tran-Leung, supra note 24, at 22.
Id. at 29.
Generally Danya E. Keene et. al., Navigating Limited and Uncertain Access to Subsidized Housing After Prison, 28 Hous Pol’y Debate 199–214 (2018) (author manuscript), https://doi.org/10.1080/10511482.2017.1336638; Selena Muñoz-Jones & Emily Widra, How your local public housing authority can reduce barriers for people with criminal records, Prison Pol’y Initiative (Feb. 15, 2023), https://www.prisonpolicy.org/blog/2023/02/15/publichousing/.
Keene et. al., supra note 31, at 2, 9–12.
Waltera et. al., supra note 22, at 2, 3.
See, e.g., Wonyoung So, Which Information Matters? Measuring Landlord Assessment of Tenant Screening Reports, 33 Hous. Pol’y Debate 1484–1510 (2023), https://doi.org/10.1080/10511482.2022.2113815.
H.R. 1158, Pub. L. 100–430, §§5–6,102 Stat 1619 (1988).
Lynn M. Clark, Landlord Attitudes Toward Renting to Released Offenders, 71 Fed. Prob. 20–30 (2007), https://www.uscourts.gov/sites/default/files/71_1_4_0.pdf; Jacqueline Helfgoti, Ex-offender Needs versus Community Opportunity in Seattle, Washington, 61 Fed. Prob. 12, 20 (1997).
Clark, supra note 36, at 23, 23 tbl. 5.
Fair Housing Act of 1968 (Title VIII of 1968 Civil Right Act), Pub. L. No. 90-284, 82 Stat. 81 (codified as amended at 42 U.S.C. §§ 3601–3619, 3631).
See The Fair Housing Act, U.S. Dep’t of Just., Civ. Rts. Div., https://www.justice.gov/crt/fair-housing-act-1 (last updated June 22, 2023).
Texas Dep’t of Hous. & Cmty. Affs. v. Inclusive Communities Project, Inc., 576 U.S. 519 (2015); 42 U.S. C. §§ 3604–3606.
HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard, 85 Fed. Reg. 60,288 (Sept. 24, 2020) (to be codififed at 24 C.F.R. pt 100), https://www.federalregister.gov/documents/2020/09/24/2020-19887/huds-implementation-of-the-fair-housing-acts-disparate-impact-standard.
Waltera et. al., supra note 22, at 4–5.
Id.; Bader, supra note 16.
Letter from Shaun Donovan et al., Sec’y, U. S. Dep’t. Hous. & Urb. Dev., to PHA Exec. Dir. (June 17, 2011), https://www.reentry.net/ny/library/attachment.255738.
U.S. Dep’t of Hous. & Urb. Dev., Off. of Pub. & Indian Hous., Guidance for Public Housing Agencies (PHAs) and Owners of Federally-Assisted Housing on Excluding the Use of Arrest Records in Housing Decisions (Notice PIH 2015-19) (Nov. 2015), https://www.hud.gov/sites/documents/pih2015-19.pdf ; U.S. Dep’t of Just., Off. of Just. Programs, Bureau of Just. Assistance, OPENING DOORS, RETURNING HOME: How Public Housing Authorities Across the Country Are Expanding Access for People with Conviction Histories 2 (Feb. 2002), https://www.vera.org/downloads/publications/opening-doors-returning-home.pdf; see also Waltera et. al., supra note 22, at 3.
U.S. Dep’t of Hous. & Urb. Dev., Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions (Apr. 2016), https://www.hud.gov/sites/documents/hud_ogcguidappfhastandcr.pdf.
Memorandum from Demetria L. McCain, Principal Deputy Asst. Sec’y for Fair Hous. & Equal Opportunity, to Off. of Fair Hous. & Equal Opportunity Fair Hous. Assistance Program Agencies & Fair Hous. Initiatives Program Grantees (June 10, 2022), hereinafter (“June 2022 Memo”), https://www.hud.gov/sites/dfiles/FHEO/documents/Implementation%20of%20OGC%20Guidance%20on%20Application%20of%20FHA%20Standards%20to%20the%20Use%20of%20Criminal%20Records%20-%20June%2010%202022.pdf.
Muñoz-Jones & Widra, supra note 31.
So, supra note 34, at 1487–88; Douglas N. Evans & Jeremy Reed Porter, Criminal history and landlord rental decisions: a New York quasi-experimental study, 11 J. Experimental Criminology 21, 25 (2015), https://doi.org/10.1007/s11292-014-9217-4; Peter Leasure & Tara Martin, Criminal records and housing: an experimental study,.13 J. Experimental Criminology, 527–35 (2017), https://doi.org/10.1007/s11292-017-9289-z.
Evans & Porter, supra note 49, at 30–33.
So, supra note , at 1491.
Deborah N. Archer, The New Housing Segregation: The Jim Crow Effects of Crime-Free Housing Ordinances, 118 Mich. L. Rev. 173, 175–76 (2019), https://doi.org/10.36644/mlr.118.2.new.
Aastha Uprety, Martin Luther King, Jr.’s Fair Housing Legacy: How Testing Played a Role in the Civil Rights Movement, Equal Rts. Ctr. (Jan. 21, 2019), https://equalrightscenter.org/martin-luther-king-fair-housing/.
Deborah N. Archer, ‘Crime-Free’ Housing Ordinances, Explained, The Appeal (Feb. 17, 2021), https://theappeal.org/the-lab/explainers/crime-free-housing-ordinances-explained/.
The Impact of Nuisance and Crime Free Ordinances on Domestic Abuse Survivors, Nat’l Low Income Hous. Coal. (Oct. 23, 2018), https://nlihc.org/resource/impact-nuisance-and-crime-free-ordinances-domestic-abuse-survivors.
Kleinman & Kajeepeta, supra note 11, at 8; Niloufer Taber, Jacqueline Altamirano Marin, & John Bae, Public Housing Eligibility for People with Conviction Histories, Vera Inst. of Just., 25 Cityscape 73, 74 (2023) https://www.huduser.gov/portal/periodicals/cityscape/vol25num2/ch4.pdf; The Sentencing Project, Poverty and Opportunity Profile: Americans with Criminal Records 1 (Aug. 2022), https://www.sentencingproject.org/app/uploads/2022/08/Americans-with-Criminal-Records-Poverty-and-Opportunity-Profile.pdf.
Taber et. al., supra note 56.
Id. at 84.
Id.
Id.
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Wells & Cornwell, supra note 108.
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Id.
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Sandhya Kajeepeta, PhD

Published April 2025

“I sent them my expungement records, but I kept getting denied. It makes you feel bad about yourself. Just give me a chance.”

-Marckus Williams, who was denied housing due to inaccurate conviction records and is plaintiff in two fair housing lawsuits 1

BARRED FROM WORK: The Discriminatory Impact of Criminal Background Checks in Employment</span

iA lookback period is the time frame considered when checking whether someone has a criminal record for purposes of making a decision about housing, employment, or other eligibility.

Part 1

The state of criminal history restrictions in housing: The Growth of Criminal Background Restrictions in Public and Private Housing

“If you break the law, you no longer have a home in public housing, ‘one strike and you’re out.’ That should be the law everywhere in America.”

– President Bill Clinton during the State of the Union address in 199618

Unreasonably long lookback periods for criminal history searches.

Use of arrest records alone instead of conviction records as evidence of excludable criminal activity.

Overbroad categories of relevant criminal activity.

Lack of consideration of mitigating circumstances.

The Fair Housing Act

DISPARATE IMPACT refers to the effects of policies or practices that may seem neutral or may have been enacted without the explicit intention to discriminate, but in practice have discriminatory effects on a protected group.

Current landscape of criminal history restrictions in housing

CRIME-FREE HOUSING ORDINANCES are local laws that encourage or require private landlords to evict existing tenants or to deny prospective tenants who have had a certain level of contact with the criminal legal system.

Michigan

Michiganders would regain eligibility for public housing if PHAs restricted the lookback period to two years.

would regain eligibility if PHAs restricted the lookback period to six months.

Oklahoma

Oklahomans would regain eligibility for public housing if PHAs restricted the lookback period to two years.

would regain eligibility if PHAs restricted the lookback period to six months.

The role of tenant screening companies and artificial intelligence

Tenant screening companies are increasingly using algorithmically generated eligibility assessments that can take the form of numerical scores, risk predictions, or recommendations about whether a landlord should accept or reject a tenant.

iiThe survey did not define “criminal history,” so it is unclear if respondents interpreted criminal history as arrest record or conviction record.

Part 2

Evidence of unjustiﬁed discriminatory effects of criminal history restrictions

Evidence of discriminatory effects

Racial discrimination in the criminal legal system

Racially discriminatory applications of criminal history restrictions in housing

Evidence that the discriminatory effects are unjustified

Inaccuracy of criminal records

Criminal history does not predict the likelihood of being a good tenant

Overbroad criminal history restrictions are not necessary for the safety of other tenants

Part 3

Consequences of criminal history restrictions

Criminal history restrictions in tenant screening may not only have unjustified racially discriminatory effects on prospective Black tenants seeking housing, but they are also associated with wide-ranging, long-term adverse consequences for individuals, families, and society writ large.

Costs to individuals and families

Increased housing insecurity and homelessness

Threats to Family Reunification

Safety threats to survivors of violence

Societal costs

Community Safety

Table 1. Summary of Select Reentry Programs with Public Housing Authority Participation

Description

Outcome

Description

Outcome

Description

Outcome

Description

Outcome

Description

Outcome

Racial Segregation

Part 4

Strategies to Address the Problem

There are several steps that can be taken at the local, state, and federal levels to strengthen enforcement of the Fair Housing Act and protect Black tenants with prior criminal legal contact from housing discrimination.

Existing enforcement and protection mechanisms

Federal

State and Local

Best practices for tenant screening

Conclusion

-Marckus Williams, who was denied housing due to inaccurate conviction records and is plaintiff in two fair housing lawsuits ¹

BARRED FROM WORK:
The Discriminatory Impact of Criminal Background Checks in Employment</span

ⁱA lookback period is the time frame considered when checking whether someone has a criminal record for purposes of making a decision about housing, employment, or other eligibility.

The state of criminal history restrictions in housing:
The Growth of Criminal Background Restrictions in Public and Private Housing

– President Bill Clinton during the State of the Union address in 1996¹⁸

ⁱⁱThe survey did not define “criminal history,” so it is unclear if respondents interpreted criminal history as arrest record or conviction record.