Will limiting background checks make housing fairer?

Why some cities are restricting landlords’ reviews of criminal history.

Every year, more than 600,000 people leave US state and federal prisons. Then they need to find a place to live.

Researchers have found that formerly incarcerated individuals are far more likely to be homeless than the general public. Many landlords simply reject renting to applicants who’ve been to jail or prison — and given that one in three US adults has a criminal record, this creates a significant housing crisis.

But those released with stable housing are more likely to reintegrate into their communities and less likely to end up back in prison than their formerly incarcerated peers in more precarious housing situations.

Enter “fair chance” laws: legislation that limits how landlords can use criminal records when screening prospective tenants. While the ordinances vary from place to place — some cover all rental housing while others just apply to subsidized housing — the goal is to limit how criminal histories can be used and ensure due process for prospective tenants when applying.

Think of it as a “ban-the-box” policy, which prohibits employers from asking about criminal records, but for landlords. The movement has picked up steam in liberal localities over the last decade, first in cities like Oakland, Berkeley, Seattle, and Portland. In Richmond, California, landlords who accept Section 8 vouchers are barred from rejecting applicants based on criminal history alone. Minneapolis restricts the use of background checks, eviction history, and credit history in rental applications, and New Jersey restricts how far back in time a specific crime can be considered.

Early research suggests fair chance ordinances may have some unintended consequences: One study found landlords in Minneapolis became more likely to discriminate by race after the policy took effect. But by and large, there hasn’t been much research into how fair chance laws are working, as proponents have been focused on raising awareness about the new protections and implementing them.

“It’s been just two years since New Jersey’s passage, and in full transparency, a bill like this does take time,” said James Williams, the director of racial justice policy at the New Jersey-based Fair Share Housing Center. “There’s a tremendous amount of education required and the education piece is still something that’s being actively done.”

For now, most advocates have their eye on a pending legal battle in Seattle, which in 2017 passed the most progressive fair chance ordinance in the country, prohibiting landlords from asking about “any arrest record, conviction record or criminal history” or refusing to rent to them because of that history. Landlords sued in 2018, arguing the statute violated their free speech and due process rights, and this past March a panel of the Ninth Circuit Court of Appeals decided the part of the law banning landlords from asking about criminal histories was unconstitutional. The Court upheld other aspects of the law, though, and both sides have filed for an appeal.

“I think the results from that case will have far-reaching implications,” said Marie Claire Tran-Leung, a senior attorney at the National Housing Law Project, which has promoted fair chance ordinances around the country.

What we know about fair chance ordinances in practice

For now, the only rigorous study on fair chance housing ordinances comes from the Minneapolis Federal Reserve, where two economists looked at the effects of a law the Minneapolis city council passed in 2019.

The local law caps security deposits at one month’s rent, bans the use of credit scores in rental applications, and restricts landlords’ ability to reject people based on evictions that occurred more than three years prior. For criminal records, landlords can no longer reject applicants due to misdemeanors older than three years, felonies older than seven years, and certain more serious convictions older than 10 years.

The economists submitted fake email inquiries to publicly listed rental ads using names chosen to sound like Black, white, and Somali people. (Minnesota has the largest Somali population in the US.)

The researchers found that after Minneapolis’s fair chance ordinance took effect, discrimination against Black and Somali applicants increased by over 10 percentage points for both groups, relative to those in neighboring St. Paul, which did not have such a law. Differences were largest for emails sent from Black and Somali male-sounding names, for apartments that were at least two bedrooms, and for units in historically Black neighborhoods. (The researchers couldn’t identify individual companies that discriminated, but could observe discrimination based on overall contact rates to randomized emails sent to large groups of properties.)

Marina Mileo Gorzig, one of the economists, told Vox that their study helps show causal impact of the fair chance ordinance, though it’s impossible to tell which aspect of the law — be it limiting eviction history, credit history, or criminal records — might be causing the effect.

Similar unintended consequences have been found for ban-the-box policies in the employment context. Research published in 2016 found employers were actually more likely to discriminate based on race following the passage of ban-the-box, thus increasing racial disparities in job interviews. More recent studies suggest the policies seem to have done little to increase employment for ex-offenders in the private sector.

Deborah Rho, the other economist to study Minneapolis’s fair chance ordinance, suggested outcomes might have been different if Minneapolis had a greater supply of housing, or if the city removed certain barriers to new housing development. “Economic theory would tell us landlords would have less room to discriminate if they were competing with more landlords,” she said.

Jeremiah Ellison, the Minneapolis council member who led the push for the city’s law, largely dismissed the conclusion that a tight housing market might be a factor. “That’s a free market solution, like saying the free market will solve racism,” he said.

Ellison told Vox he was reviewing the study and planned to meet with the researchers to ask questions, but felt their findings didn’t detract from the policy’s necessity. “From my vantage point, I don’t think they analyzed how the policy works at all,” he said. “And it’s a relatively young policy ... it could take many, many years until tenants learn their rights.”

Meanwhile, in Seattle, city officials have been arguing that researchers find no empirical basis for the claim that a criminal record might indicate a future problematic tenancy or threat. Landlords, for their part, tend to argue such relationships exist and that they need to screen tenants’ criminal backgrounds.

Seattle points to two large-scale, rigorous studies that evaluated the efficacy of supportive housing programs that helped people at risk of homelessness, including tenants with criminal histories. One study found no significant difference between those formerly incarcerated and those never incarcerated in terms of supportive housing program outcomes. Another found a criminal record was not statistically predictive of failure in supportive housing. The researcher looked at detailed data like a program participant’s specific criminal history, time elapsed since their last conviction, number of prior offenses, and the seriousness of their past offenses, and found none were statistically predictive.

Coupled with the research showing how crucial stable housing is for successful re-entry, advocates have argued these studies “raise important questions about the validity of standards of risk estimation, screening practices and admissions policies related to criminal records in the general rental housing context.”

But lawyers representing landlords say the fact that Seattle can only point to relevant studies in the supportive housing context matters. “This is at the heart of our appeal,” Brian Hodges, an attorney with the Pacific Legal Foundation, said. “Seattle is not relying on studies that look at the private rental market, they’re looking at public supportive housing, which are either government-run or NGO housing that provides not just affordable housing but also drug and occupational counseling.”

Some Seattle landlords argue their experience dramatically changed following the passage of the fair chance law, and that denying them the ability to screen applicants makes it impossible to protect other residents and the property itself.

In one amicus brief, owners of a federally assisted building said following the law taking effect, conditions rapidly declined. The number of 911 calls more than doubled, more fights broke out in the lobby, used needles, trash, and feces were left in stairways, and fire alarms were repeatedly set off at night. They cited increased negative reviews online and average occupancy declines.

When one tenant stabbed his guest in the chest during an argument in November 2019, it was only after they were arrested that managers learned they had several outstanding arrest warrants.

New Jersey has a model that landlords say is reasonable

In 2021, New Jersey passed a statewide fair chance housing law with bipartisan support, and with backing from landlord groups. It doesn’t go as far as Seattle’s ordinance in restricting how criminal histories can ultimately be used, but it comes with a strong enforcement mechanism.

The New Jersey Apartment Association, an industry group that represents landlords and housing managers, originally opposed the bill, but eventually endorsed it following a series of amendments. The original version, for example, proposed fines up to $25,000 for a first offense, and the final version landed on $10,000.

David Brogan, the group’s executive director, told Vox that since the law was passed, the real estate industry has had to train staff, reprogram systems, and update old paperwork, materials, and online data. “It’s a process,” he said, “but I have been impressed by how quickly the industry has moved to comply.”

With the exception of convictions related to producing methamphetamine and being listed on a sex offender registry, landlords can never ask about an applicant’s criminal history in the first round of applications, and they can only evaluate a criminal record after a conditional housing offer has been made. If a landlord finds a serious crime committed relatively recently, they can withdraw the offer, explaining to the applicant in detail why, and the applicant has the right to appeal it or file a complaint with the state. A housing provider can never rely on arrests that didn’t result in convictions to reject an applicant.

Brogan said his members think the bill is “reasonable” and “balanced” because people should not be punished for the rest of their lives for something they did years ago, but at the same time, landlords have an obligation to provide safe housing. The balance, he said, was struck by providing liability protection, creating reasonable penalties, and “banning the box” from an initial renter application but allowing it in later inquiries.

“Some fair chance in housing acts in other areas of the country don’t acknowledge the severity of the crime [and] simply ban background checks altogether,” Brogan said. “We felt that was unfair and unsafe.”

Williams, of the Fair Share Housing Center, said they’re most proud of the fact that the law puts responsibility for enforcing the rules within the state attorney general’s office, bringing more serious investigative powers than other states and cities had thus far embraced. He thinks his state’s law would be less likely to face the kind of constitutional challenge Seattle is dealing with because they don’t abolish the practice of landlords reviewing criminal records entirely, they just move those reviews to the back end of the process.

“There’s no bulletproof piece of legislation, but if it gets challenged, we’re ready,” he said.

Hodges, from the Pacific Legal Foundation, said the Seattle landlords he represents are willing to rent to people with criminal records, so long as they’re not violent, cooking meth, or past sex offenders. He suggested the government should provide housing for them, and excluding those kinds of applicants is not discrimination but a “business and property” decision.

“Being a criminal is not an inherent characteristic, this is not like race and religion or gender, it’s not a protected class,” he argued, and pointed to past court decisions that established landlords’ duty to other tenants to screen for violent crimes. Yet without more ample public supportive options, people with those kinds of backgrounds have nowhere to live.

As for potential unintended consequences, national advocates think that the existence of a housing shortage is not a reason to avoid pursuing more fair chance laws around the country and that the broader fight against racism will need to continue.

“Taking away what many landlords are using as a proxy for race helps reveal the underlying race discrimination,” said Tran-Leung, of the National Housing Law Project. “But I don’t think there’s any notion that taking away problematic screening criteria is going to cure it.”