It's not that being convicted of a crime is a protected category under the Fair Housing Act. The law prevents housing discrimination based on race, color, religion, sex, or national origin. But because the criminal justice system punishes disproportionate numbers of black and Hispanic individuals, such blanket policies amount to "de facto discrimination," HUD’s general council argues.
Black men are incarcerated at about six times the rate of white men, according to Justice Department statistics, and Hispanic men are imprisoned at about twice the rate.
"When landlords refuse to rent to anyone who has an arrest record, they effectively bar the door to millions of folks of color for no good reason," HUD Secretary Julián Castro told NPR.
This move aligns HUD with a larger government effort to lessen the burden of reentry on individuals entangled in the criminal justice system. Right now it is exceptionally difficult for ex-cons to find housing, even though research shows that stable housing situations reduce recidivism.
It also applies a legal standard affirmed in Texas Department of Housing and Community Affairs v. The inclusive Communities Project, last year’s Supreme Court decision that ruled tenants can challenge housing practices with a discriminatory impact without having to prove discriminatory intent.
About one in three American adults possess a criminal record of some kind, barring a huge swath of the population from obtaining housing. Those records include individuals who were arrested but never convicted of a crime, as well as others who were convicted of petty crimes decades ago.
The new guidance does still permit landlords to legally turn away tenants on a case-by-case basis because of their particular criminal histories. But even if landlords don’t intend to discriminate against black and Hispanic applicants, HUD says, banning applicants with any kind of record has the same effect.
In order to continue rejecting applicants with criminal histories, landlords must now demonstrate that doing so would meaningfully protect safety or property. So rejecting all applicants based on past arrests is no longer permissible, as arrests don’t indicate guilt. Even if landlords only look at convictions, rejecting any applicant guilty of any crime — "no matter when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then" – is no longer considered defensible, since not all ex-cons pose a risk to property or safety.
And landlords should not use criminal histories as a cover for race-based discrimination, HUD warns. If landlords reject nonwhite applicants ostensibly because of their criminal histories and accept white applicants with similar records, they can be found in violation of the Fair Housing Act.
Instead, HUD advises landlords – both those who own private properties and those who operate public housing units – to create holistic policies that take into account what crime the applicant committed and when, along with other factors, to reduce their discriminatory impact.
A previous version of this post contained passages that were not properly credited to a source. It's been updated to correct the error.