How Criminal Background Checks Can Prevent People with Disabilities from Finding Stable Housing

By Aastha Uprety
September 19, 2019

The U.S. criminal legal system is an omnipresent force that touches millions of lives in this country. Individuals who have been arrested, convicted, or incarcerated face various obstacles to living a normal life and re-integrating into society, including difficulty finding employment and experiencing social stigma. When someone has a criminal record, even finding a place to live can be a seemingly impossible feat. Many housing providers implement background check policies that make it difficult for people with criminal records to find a safe and stable home. When these policies are overly broad, they can create obstacles for many people already disadvantaged in the housing market – including people with disabilities.

In 2016, the Department of Housing and Urban Development (HUD) issued guidance stating that overly-broad criminal records screening policies, such as those that institute blanket bans on individuals with criminal histories, disproportionately impact people of color and thus likely violate the Fair Housing Act (FHA). “Because of widespread racial and ethnic disparities in the U.S. criminal justice system,” the guidance states, “criminal history-based restrictions on access to housing are likely disproportionately to burden African-Americans and Hispanics.” Race, however, is not the only protected class that criminal background checks might disproportionately impact. Race, criminal history, and disability all play a role in the homelessness crisis that people with disabilities face – and overly broad criminal records screening policies are one barrier preventing many people with disabilities from securing stable housing.

Interconnected: People with Disabilities, Housing Instability, and the Criminal Legal System

People with disabilities struggle with homelessness and housing instability due to a complex web of reasons including unaffordability, discrimination, and the collateral consequences of having a criminal record. According to HUD data from 2015, an estimated 78 percent of people in homeless shelters across the country have a disability. Nearly 25 percent of non-institutionalized Americans with disabilities live in poverty, and less than 20 percent of people with disabilities are employed. Many people with disabilities rely on government assistance such as Supplemental Security Income (SSI), which is rarely enough to afford rent and other basic expenses. In addition to economic disadvantages, housing discrimination against people with disabilities is all too common – in fact, according to the National Fair Housing Alliance, 57 percent of all housing discrimination complaints filed to private fair housing organizations and government agencies in 2017 were on the basis of disability.

Additionally, according to the Prison Policy Institute, people with disabilities are overrepresented in every aspect of the criminal legal system, from policing to incarceration. Police officers often fail to interact appropriately with people with disabilities, especially people of color with disabilities. Often, certain actions that may be perfectly normal for a person with a disability seem atypical, threatening, or disorderly to police officers. Police also commonly end up serving in the role of social workers, responding to mental health crises, due to the lack of accessible and affordable mental healthcare services in most communities. As a result, prisons and jails end up serving as the largest mental health hospitals in the country. Indeed, according to the Center for American Progress, people in federal and state jails and prisons are three times more likely to have at least one disability than the non-incarcerated population. Once formal involvement in the criminal legal system ends, many people with disabilities are left to grapple with its collateral consequences.

Furthermore, once a person becomes homeless, it becomes much more likely that they may become entangled in the criminal legal system. Homelessness itself is criminalized, as law enforcement often arrests individuals experiencing homelessness for offenses such as panhandling, sleeping in public spaces, or urinating in public. Additionally, formerly incarcerated people are nearly 10 times more likely than others to be homeless. Housing instability, homelessness, and the criminalization of homelessness can also make recidivism more likely, perpetuating an endless cycle.

One key to improving housing outcomes and reducing recidivism for people with disabilities: trashing overly broad criminal records screening policies

While the overrepresentation of people with disabilities in the criminal legal system is a problem that spans beyond the reach of fair housing alone, there are solutions at hand to address the problem from a housing related angle. This includes trashing overly broad criminal records screening policies that prevent people with criminal records from securing safe and stable housing, along with ensuring that housing providers comply with Fair Housing Act protections for people with disabilities.

When a housing provider’s background check policy is overly broad, it can exclude protected groups of people from even having a chance at obtaining stable housing. For example, in 2018, the ERC resolved a race discrimination lawsuit against the nation’s largest private housing provider, Mid-America Apartments (MAA). Prior to the lawsuit, MAA had an online application system that required applicants to answer whether or not they had ever been convicted of a felony, and applicants that answered yes were unable to even submit an application for review. This policy was up to 12 times as likely to bar African American and Latinx individuals from applying to live at the properties as white prospective applicants. Given the data available about people with disabilities and involvement with the criminal legal system, such a policy likely also had a disparate impact on people with disabilities as well.

The ERC resolved its case against MAA when the company agreed to adopt a new criminal records screening policy—one that was rooted in the concept of conducting individualized reviews. Individualized reviews are a much more humane and less discriminatory way of screening applicants. An individualized review system takes into account context and the circumstances of a crime, the age of the individual at the time of the offense and the span of time since then, and evidence of rehabilitation. Criminal records screening policies that rely on an individualized review should allow people with disabilities and a criminal record a fairer chance to secure a stable home.

Reasonable accommodations and criminal records screening

It can also be the case that an individual’s criminal record is directly related to their disability. A person with a mental illness who is off their medicine may incur a criminal record for something like indecent exposure. Once the person is back in treatment for their condition, there is little likelihood that such behavior will recur. Under the FHA, people with disabilities have the right to request reasonable accommodations, or changes to rules, policies, and practices to ensure that a person with a disability has an equal opportunity to enjoy their home. Since people sometimes acquire criminal records due to disability-related issues, housing providers may consider disregarding aspects of a person’s criminal record as a reasonable accommodation for an applicant who has a disability-related criminal history, provided the applicant is not a threat to the health and safety of others.

Housing providers that adopt criminal record screening policies such as individualized reviews and that comply with disability related protections under the Fair Housing Act can  help us all to make strides in weakening the concerning connections between housing discrimination, homelessness, and mass incarceration for people with disabilities.

FURTHER RESOURCES:

For resources on navigating housing with a criminal record, refer to the ERC’s criminal records toolkit.

For resources on how to submit a reasonable accommodation request, refer to the ERC’s Making Home Accessible toolkit.

For more information on various impacts of criminal records screening policies in housing, read the ERC’s blog about the impact of background checks on survivors of domestic violence.

If you believe you may have experienced discrimination in housing, you can contact the Equal Rights Center. To report your experience, please call 202-234-3062 or email info@equalrightscenter.org.

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