The mark of a criminal record, paired with other policies and practices that contribute to a long history of systemic racial discrimination, contributes to poverty for communities of color across generations. Ending this cycle will require robust investments in communities and actions that reduce the impact of involvement with the criminal legal system. Necessary policies include those that:
- End hypercriminalization and overpolicing
- Invest in affordable housing and the social safety net
- Automate criminal record clearing and expungement
- Eliminate the collateral consequences of criminal records
One in three people in the United States have a criminal record, meaning they are subjected to more than 44,000 associated legal sanctions. A criminal conviction can be a lifelong barrier to accessing services, employment, voting and civic engagement, and education and housing, as well as overall financial security for individuals and their families. The criminal legal system disproportionately affects communities of color, and Black people in particular, through more stops by police, arrests, and convictions, as well as higher rates of incarceration and longer sentences.
Why criminal convictions lead to housing insecurity
As of 2021, the National Inventory of Collateral Consequences of Conviction identifies more than 1,300 criminal record-related barriers to housing and residency across state, county, and city jurisdictions, and 26 barriers at the federal level. These barriers range from background checks as part of rental and public housing applications, denial of constitutional fair housing law protections, eviction and housing forfeiture, and denial of rental or sale. These barriers affect a range of housing types, including rental housing, student campus housing, federal and public housing under Department of Housing and Urban Development (HUD) programs, temporary housing at motels and hotels, and some congregate sheltered housing. They also contribute to increased experiences with housing insecurity and homelessness and to the separation of families, as family members may not be able to dwell in the same unit. Finally, the barriers exacerbate the disparate impacts of racial bias and discrimination faced by millions of members of U.S. communities.
According to the Point-in-Time count HUD conducted in January 2020, prior to the COVID-19 pandemic in the United States, 580,000 people in the United States experienced homelessness on a given night, with rates of homelessness, especially chronic homelessness, on the rise. In a 2020 Marshall Project survey of currently incarcerated people across the country, when respondents were asked what could have kept them out of prison, among the top answers were access to affordable housing and living wages. Another study of community members across 14 states found that 79 percent of formerly incarcerated people and their families surveyed reported being denied housing due to a criminal conviction, and formerly incarcerated people are 10 times to 13 times more likely to experience homelessness than people who have not been incarcerated. In a 2011 survey of men experiencing homelessness in Charlotte, North Carolina, 60 percent of respondents reported “having a criminal record” and 78 percent reported “having been arrested at least once.” Moreover, many cities have adopted nuisance and crime-free housing ordinances, which allow landlords to evict tenants if law enforcement is called to the residence for any reason, something that can lead to racial and gender discrimination, as women, especially Black women, face higher rates of eviction.
These patterns illustrate the cycle of housing insecurity and the criminalization of people living in poverty—and they have been exacerbated by the COVID-19 pandemic. COVID-19 has affected every person in some way, but certain groups, such as people of color, have experienced higher rates of infection and death due to racial disparities in access to health care and prevention long before the pandemic and disproportionate rates of workers of color whose jobs do not allow telework from home, as well as more economic hardship. In addition, 1 in 5 incarcerated people in state and federal prisons have tested positive for COVID-19, a number estimated to be a vast undercount due to living conditions and inadequate responses to the spread of the virus within facilitates.
During the COVID-19 pandemic, initiatives across the country have aimed to secure early release for some incarcerated people. Some facilities and local governments have worked with reentry advocates to provide a path to housing and employment for previously incarcerated people and people set to be granted early release, though initial reports highlight how challenges to reentry and community integration have been exacerbated during the pandemic. More than 10 percent of formerly incarcerated people have reported experiencing homelessness within months of reentry, and 18 out of 22 formerly incarcerated people have reported that their housing situation declined after reentry, with only 9 percent of respondents reporting being stably housed. Some research estimates that as many as half of all community members on probation or parole lost a job in the past year, affecting their household income and financial stability. Overall, it is difficult to ascertain how many people have attained long-term housing after gaining early release under pandemic-related efforts. Housing reentry supports during COVID-19 are essential to reducing the risk of spreading the virus and to ensuring positive and more equitable health outcomes at all times.
Whether people with criminal records have been previously incarcerated or not, they are likely to experience discriminatory practices when looking to obtain rental housing. For example, 9 out of 10 landlords conduct automated background checks when reviewing the applications of potential tenants, and the companies that conduct these checks are often unregulated and not required to register with a government agency. Within the common and flawed practice of background checks, screening criteria are ambiguous and checks for criminal records are also unregulated. These varied practices leave people vulnerable to discriminatory housing practices, which have been historically justified because they disproportionately hurt people of color.
A path forward
Along with barriers to affordable, safe, accessible, and stable housing, people with criminal convictions confront barriers to accessing education, health care, family unity, employment, and safety net programs and public assistance. Local, state, and federal efforts to develop and implement policies and programs to assist people with criminal records must include those community members most affected in order to ensure a positive path forward. Ultimately, equity-focused solutions need to be diverse, comprehensive, and targeted to reach as many individuals as possible.
End hypercriminalization and overpolicing
There has been a tremendous increase in criminalization and mass incarceration over recent decades. If not for the rapid increase in mass incarceration, poverty rates in the United States would have dropped by 20 percent from 1980 to 2009. Beyond incarceration, more people are being arrested and served with longer sentences of probation and parole. Each of these things present barriers for community members involved. At the root of the issue, moving away from hypercriminalization will reduce the number of arrests and convictions and, ultimately, the number of community members affected by the collateral consequences of having a criminal record. Grassroots organizations, and some states and localities, across the country have taken transformative actions to reduce the impacts of the criminal legal system, repealing targeted laws and policies such as anti-homeless legislation; directing community care and health services to agencies outside law enforcement; and investing in basic needs, such as housing, nutrition, child care, and income guarantees.
Invest in affordable housing and the social safety net to prevent engagement with criminal legal systems
Currently incarcerated people say that having access to affordable housing and living wages could have prevented them from receiving a criminal conviction. Investing in preventive measures such as Housing First and a National Homes Guarantee are strong interventions that interrupt the cycle of poverty and criminalization. Permanent supportive housing programs successfully place people experiencing homelessness in apartment housing, improve health outcomes, strengthen parenting, reduce poverty for adults and children, and promote community integration and sense of belonging. Overall, they relate to reduced criminalization and incarceration. These programs should be prioritized and funded as entitlement programs, such as voucher guarantees, that do not expire in order to serve all the people who need them. Funding should also be provided to alleviate the affordable housing shortage of more than 7 million units so that housing stock is robust enough to meet the increasing demand.
Automate record clearing through clean slate laws
Though alleviating the issue of housing insecurity for all should be approached with preventive methods, record-clearing is essential for community members who have been criminalized and carry their convictions with them. Grassroots organizations and some jurisdictions have developed free record-clearing clinics that assist people in notarizing documents, filing expungement petitions, and identifying paths to eliminate owed fines and fees that prevent expungement eligibility. However, there are obstacles to engaging with record-clearing methods, such as attorney and other fees, transportation, child care, and immigration status. A recent study on access to criminal record expungement found that only 7 percent of people had their record cleared within five years of eligibility. Automated record-clearing would eliminate many of these barriers and quicken these processes.
Clean slate measures enable automated sealing of certain qualifying records. In 2018, Pennsylvania became the first state to pass a Clean Slate law, with more than 46 million cases sealed as of March 2021. Utah and Michigan have passed versions of clean slate laws, and California and New Jersey have passed similar but less expansive laws. Delaware, New York, Texas, Connecticut, and Louisiana are looking to follow suit in the coming years. Automated record-clearing can quickly and systematically help remove some of the more than 44,000 collateral consequences of having a criminal record.
Eliminate barriers for people with criminal records
As discussed above, the more than 1,300 barriers that strategically exclude people with criminal records from qualifying for housing programs and rental housing further racial and economic inequality. For example, the use of criminal record checks in rental housing applications provides the opportunity for racial discrimination. A study spanning Texas, Louisiana, and Mississippi finds that landlords apply conviction policiesinconsistently by race.
Restoring the disparate impact rule under the Fair Housing Act, which would prohibit landlords from discriminating due to criminal conviction, and strengthening renter protections would help combat the homelessness-to-prison cycle as well as racial inequality in housing security. In April 2021, HUD moved to review both the disparate impact and Affirmatively Furthering Fair Housing rules for review, creating a path for the reinstatement of both. Additionally, federal and state policymakers should work to remove barriers to safety net programs and public assistance, such as the permanent lifetime ban that people with some convictions face in qualifying for Temporary Assistance for Needy Families (TANF) and student financial aid. These barriers exist only because of a criminal conviction and keep many people, as well as their children, in poverty. Removing them and making robust investments in helping communities recover from decades of criminalization would help create a less rocky path to stability and wellness for individuals, their families, and their communities more broadly.
Housing is more than just a building—it is access to health, safety, opportunity, and well-being each and every day. State and federal policymakers must not delay in taking long-overdue actions to undo intentionally harmful and discriminatory housing policies. Policymakers need to make permanent changes to the role of policing in communities, invest in communities through affordable housing and safety net programs, and alleviate the collateral consequences of having a criminal record in order to undo past harm, mitigate current hardship, and prevent future inequality.