Page 45 - Impact: Collected Essays on the Threat of Economic Inequality

certain types of offenses .44 In many instances, authorities also exclude individuals based on arrests alone .45
Individuals with criminal records do not fare better in the private housing market, as landlords often refuse to rent apartments to individuals with criminal records .46 Thus, “the experience of incarceration and the stigmatizing effect of a criminal record erect formidable barriers to accessing safe, affordable housing .”47
As Blacks and Latinos are arrested, convicted, and otherwise accumulate criminal records disproportionately, they must overcome particular hurdles to access private housing .48 This is especially so because technological advances have made criminal records more accessible than ever, often available on the Internet as well as through commercial data brokers that provide consumer-related data, including criminal history information, to decision makers, such as landlords and employers, who use the information to decide whether or not to rent to or hire the person to whom the data belongs .49 As a result, landlords often rely upon criminal records with vigor to exclude individuals from their properties .
II. Employment and Economic Mobility
President Johnson’s Special Message to the Congress on Crime and Law Enforcement in 1966 focused on the impact of crime on individuals and families throughout the United States . He discussed the financial and psychological costs of crime, as well as the need for “Congress and the nation” to join in the fight against crime, and to “weld[] together the efforts of local, state and federal governments to do so .”50
44 See marie claire Tran-leung, sargenT shriver naTional cenTer on poverTy law, when discreTion means denial: a naTional perspecTive on criminal records Barriers To federally suBsidized housing ix (2015), available at http:// povertylaw.org/sites/default/files/images//publications/WDMD-final.pdf (blanket prohibitions “against applicants with past felony charges and convictions. . .can be found all over the country”).
45 See reBecca vallas & sharon dieTrich, one sTrike and you’re ouT: how we can eliminaTe Barriers To economic securiTy and moBiliTy for people wiTh criminal records 16 (2014), available at https://cdn.americanprogress.org/wp-content/ uploads/2014/12/VallasCriminalRecordsReport.pdf (“[M]any local housing authorities will evict or deny housing to an individual or even to an entire household if one household member has an arrest without conviction or pending criminal charges.”).
46 See id. at 19 (“Many landlords refuse to rent to individuals with criminal records based on concerns about public safety or the perception that tenants with criminal histories are less likely to meet rental obligations.”).
47 Merf Ehman & Anna Reosti, Tenant Screening in an Era of Mass Incarceration: A Criminal Record is No Crystal Ball, n.y.u. J. legis. & puB. pol’y quorum 1-2 (Mar. 3, 2015), http://www.nyujlpp.org/wp-content/uploads/2013/03/ Ehman-Reosti-2015-nyujlpp-quorum-1.pdf.
48 As a result, landlord policies or practices that ban individuals with criminal records wholesale potentially violate the Fair Housing Act, given the disparate impact on Black and Latino applicants. As of this writing, The Fortune Society, an organization that provides a range of services for and advocates on behalf of individuals with criminal records has filed a lawsuit challenging a landlord’s rental ban. Mireya Navarro, Lawsuit Says Rental Complex in Queens Excludes Ex-Offenders, N.Y. Times, Oct. 30, 2014. Also at the time of this writing, the United States Supreme Court has yet to decide Texas Department of Housing and Community Affairs et al. v. The Inclusive Communities Project Inc., argued on January 21, 2015, which involves the question of whether disparate impact claims are cognizable under the Fair Housing Act.
49 For a detailed discussion about private companies that sell criminal background check information to landlords, employers, and other industries, see James B. JacoBs, The eTernal criminal record 70-90 (2015). See also Robin Steinberg, Heeding Gideon’s Call in the Twenty-First Century: Holistic Defense and the New Public Defense Paradigm, 70 wash. & lee l. rev. 961, 970 (2013) (“The automation and availability of criminal record data have made it easier for landlords and employers to conduct criminal background checks.”).
50 Special Message, supra note 3.
Criminal Justice Reform
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