Our office recently served a Black man who was convicted in 1976 and 1982 for the charge “assault with intent to do great bodily harm less than murder” and on felony firearms charges. Since being discharged from prison in 1986, he has lived an exemplary life. He obtained a B.A. degree in criminal justice from Wayne State University in 1990. Thereafter, he worked for the State of Michigan, Wayne State University, Karmanos Cancer Institute, and several other employers. In 2019, at 67 years of age, he applied to become a shareholder in a cooperative housing property. He was denied, due to his criminal record dating back to 1982 – 37 years after his last conviction and 33 years after his prison release. Unfortunately, this happens on an all-too-frequent basis to seniors.
Many formerly incarcerated individuals encounter significant barriers to securing housing, due to their criminal history. Formerly incarcerated persons are nearly 10 times as likely as the general population to experience homelessness or housing insecurity. One in five people who leave prison becomes homeless shortly thereafter. Even individuals who were arrested but not convicted face difficulty in securing housing. People without stable housing are significantly more likely to return to criminal behavior. One study estimated that people lacking stable housing were up to seven times more likely to reoffend.
What is the result of strict criminal record policies in housing?
Approximately 90% of housing providers conduct criminal record checks of applicants. Overly strict criminal record requirements will disproportionately impact Black and Hispanic people because they are disproportionately arrested, convicted, and incarcerated.
Black people comprise approximately 13% of the total U.S. population but approximately 27% of all arrests. As of 2019, incarceration rates for Black males and females were 5.7 times and 1.7 times that of white non-Hispanic males and females, respectively. Hispanic people are incarcerated in state prisons at 1.3 times the rate of white non-Hispanic people. Current data shows that individuals with disabilities are also disproportionately impacted by the criminal justice system.
Is it permissible for a landlord to consider criminal records?
Yes, provided the landlord’s policy accurately distinguishes between criminal conduct that indicates a demonstrable risk to resident safety and/or property and criminal conduct that does not. The policy must take into consideration actual convictions, not merely arrests. Policies that exclude all persons with a prior conviction, a “blanket ban,” may be challenged as a fair housing violation because such policies will likely result in an adverse impact against Black or Hispanic applicants.
On the other hand, applicants with a conviction for the manufacture or distribution of a controlled substance do not receive fair housing protection. Additional requirements may be found in local “fair chance” policies, such as the one in the city of Detroit.
Can a criminal record policy be discriminatory?
Some housing providers who do not want to rent to non-white applicants seek to conceal their discriminatory intent under a facially neutral "policy" of refusing to rent to tenants with criminal histories. Also, while other housing providers that do not rent to tenants with a criminal record might not have a discriminatory intent, their policies disproportionately exclude Black and Hispanic applicants from housing, in violation of fair housing requirements.
The Fair Housing Center is available free of charge to answer questions and receive complaints about housing providers and their criminal record policies. The Center also answers questions and provides information on other housing-related matters.
Steve Tomkowiak, J.D., is executive director of the Fair Housing Center of Metropolitan Detroit. He speaks and trains on fair housing and fair lending to housing providers, management companies, realtors, lending institutions, private, municipal, and legal services attorneys, municipalities, homeowners, and tenants. He can be contacted at: Fair Housing Center of Metropolitan Detroit, 5555 Conner St., Suite 2244, Detroit, Mich. 48213, 313.579.3247, or stomkowiak@fairhousingdetroit.org.