Safety First: Nationwide Criminal Screening Legislative Update
According to reentry advocates, “Fair Chance Housing” means that people with criminal records should not have to experience additional barriers to accessing housing because of their record, and every person deserves a safe, affordable place to live. True to their mission, reentry advocates are pushing advocacy campaigns at all levels of government to reform criminal screening laws, namely requiring rental housing providers to engage in an individualized assessment of each applicant and/or heavy restrictions on evaluating past criminal history (and in some cases other parts of the applicant’s background) with very limited exceptions. These restrictions on screening interfere with housing providers’ ability to protect apartment residents, employees and their communities. Additionally, these laws and applicable regulations leave housing providers vulnerable to potential legal liability under tort laws and disparate impact theory. Laws and regulations that limit the use of criminal background checks in the housing context appear in a variety of forms at the federal, state and local levels of government. Housing providers must remain vigilant, as over 30 proposals have been introduced so far in 2019.
At the federal level, NAA is monitoring three bills; of note are HR 3685/S 2076 and HR 1585. Senator Kamala Harris (D-CA) and Representative Alexandria Ocasio-Cortez (D-NY-14) joined forces to introduce HR 3685/S 2076, also known as “The Fair Chance at Housing Act,” which aims to reform the criminal screening and eviction policies for properties that receive federal housing assistance, by banning blanket “1-strike” policies and “no-fault” policies. The U.S. Department of Housing and Urban Development (HUD) defines “1-strike” policies as denying tenancy to any applicant with a criminal record; while “no-fault” policies are considered terminating a lease without “good cause”. Additionally, NAA and NMHC are working with stakeholders to address provisions in HR 1585, the Violence Against Women Reauthorization Act of 2019, which would have significant adverse effects on rental housing providers that operate affordable units and be consequential in debates about housing protections for domestic violence victims that would apply to the industry more broadly at the state and local level. HR 1585, introduced by Representative Karen Bass (D-CA-37), requires a housing provider to conduct an individualized review of the totality of the circumstances regarding criminal activity, prior to denying assistance, tenancy or occupancy rights to housing that is assisted under a covered housing program. If this legislation passes the Senate, as written, housing providers must consider, during the individualized review, the nature and severity of the crime; the time elapsed since the criminal activity; if the crime has occurred more than once; if the criminal activity was related to a symptom of a disability; as well as if a victim of domestic violence was coerced to commit a crime by the perpetrator.
In state legislatures, 21 criminal screening-related bills have been introduced in 14 states so far in 2019. NAA remains concerned about proposals in New Jersey, Pennsylvania, and Colorado and how they might be replicated in other jurisdictions. Much like the bill introduced in Congress, the New Jersey legislature is now considering A-5711/S-4040, the “Fair Chance in Housing Act”, which would restrict a housing provider from inquiring about an applicant’s criminal history prior to the provision of a conditional offer. According to NJ A-5711/S-4040, after a housing provider issues a conditional offer, the provider may only consider a criminal record of an applicant that has occurred within the last 10 years or consists of pending criminal accusations or any non-expungable criminal conviction. To conclude the process, the bill restricts housing providers operations by only permitting a provider to withdraw a conditional offer based on an applicant’s criminal record, if it is determined that the withdrawal achieves a substantial, legitimate, nondiscriminatory interest.
In addition to the considered restrictions in New Jersey, NAA is following proposals like Pennsylvania’s “Clean Slate Act”, which passed in 2018, went into effect on June 28. This law will allow the sealing of approximately 30 million criminal records, limiting a housing providers’ ability to protect apartment residents and their communities and changing the way that providers develop their screening criteria. Unlike long-established expungement laws, Pennsylvania’s clean slate law creates a mechanism to seal certain types of crimes without legal action by the offender. Records related to charges that did not result in a conviction, pre-trial judgments, nonviolent crimes committed a decade or more ago and recent minor misdemeanor offenses that resulted in less that two years in prison will automatically be sealed from public view, if all fines have been paid.
As part of the debate to give greater access to housing to vulnerable populations, some jurisdictions are taking issue with all of the factors applied in the screening process, not just criminal records. On April 25, the Colorado Governor, Jared Polis, signed House Bill 19-1106 into law which restricts a housing providers ability to properly screen an applicant’s criminal, rental, and credit history, limiting the lookback period for rental and credit history to seven years from the date of application. Specific to criminal screening, the new law states that a housing provider may not consider an arrest record of an applicant from any time or any conviction that occurred more than five years before the date of application. There are, however, exceptions in the law for judgements that relate to methamphetamine, sex, and homicide-related convictions.
Unsurprisingly, city and county councils have been a hotbed for adverse screening legislation in 2019. Five proposals have been introduced in 2019, with three of these becoming law in Detroit, Michigan; Cook County, Illinois; and Portland, Oregon. Similar to proposals at the federal and state level, the Detroit City Council recently approved the “Fair Chance Ordinance” on February 12, which is set to take effect in August. NAA’s affiliates and members should remain cautious that a national advocacy campaign may be at play given that similar “Fair Chance Housing” legislation has been introduced at all levels of government. Detroit’s ordinance prohibits housing providers from inquiring about an applicant’s criminal history, until the provider has determined that the applicant is qualified under all other phases of application process. Then, housing providers are permitted to screen qualified applicant’s criminal history and allowed to deny an applicant based only on the following factors: violent crimes, lifetime sex offender registry, arson or felonies committed within the past 10 years or resulting in imprisonment within the past five years from the date of application.
The Cook County commissioners followed suit and voted to approve the Just Housing Amendment to the Cook County Human Rights Ordinance on April 24, which requires housing providers to conduct an individualized assessment, to consider all factors relevant to an applicant’s conviction history and whether that history negatively impacts the applicant’s ability to fulfill the responsibilities of tenancy. While the specific guidelines are currently under negotiation, the “Just Housing” ordinance does provide exceptions for housing providers: allowing the denial of application or the continuance of occupancy if the individual is currently registered as a sex offender; a current child sex offender registry restriction; or if the individual’s criminal conviction is a demonstrable risk to personal safety or property of others.
Portland, Oregon is the latest to adopt criminal screening restrictions, on June 19. The Portland City Council passed its “Fair Access In Renting” ordinance, which goes into effect in March 2020. The new law states that applicants cannot be denied housing based on the following: a conviction of a crime that is no longer illegal in Oregon; convictions in the juvenile system; misdemeanor convictions older than three years; felony convictions older than seven years; or a rental history judgement that was entered three or more years prior to application. Similar to other proposals that NAA is actively monitoring, affiliates and members should be aware that Portland’s ordinance allows a housing provider to opt out of adopting the above criteria, if the housing provider will conduct an individualized assessment and commit to a lengthy list of requirements.
NAA continues to work with its affiliates to oppose efforts to prohibit housing providers from evaluating a prospective resident's criminal history as part of the overall screening process. To better assist the affiliate network in their advocacy efforts, NAA has created an issue backgrounder, talking points and a 50-state statutory chart with a local supplement on criminal screening policy and other issues related to resident screening should legislation be considered in your area. If this becomes an issue in your area or for more information on NAA’s resources, contact NAA’s resident screening policy expert, Jodie Applewhite.