Adult Prison Population Summary

MINNESOTA DEPARTMENT OF CORRECTIONS ADULT PRISON POPULATION SUMMARY

AS OF 01/01/2019 (unless noted)

Section Contents

Section 1. Adult Prison Population Summary as of 01-01-2019 ...... Pages 1 to 3

Section 2. Admissions and Releases for CY18 (01/01/2018 to 12/31/2018) ...... Page 4

Minnesota Department of Corrections 1450 Energy Park Drive, Suite 200 St. Paul, MN 55108-5219 (651) 361-7200 TTY (800) 627-3529

January 1, 2019

Section 1. Adult Prison Population Summary as of 01/01/2019

POPULATION: Males 8,830 93.2% Females 649 6.9% Total 9,479

OFFENSES (top six total 6,847): Drugs 1,691 17.8% Criminal Sexual Conduct 1,631 17.2% Homicide 1,451 15.3% Assault 824 8.7% Weapons 720 7.6% Robbery 530 5.6% Note: Percentages are based on the total population of 9,479.

TYPE OF OFFENSES: Person 5,131 54.1% Drug 1,691 17.8% Property 919 9.7% Weapons 720 7.6% Other 498 5.3% DWI 491 5.2% PSI Holds 29 0.3% Total 9,479

NUMBER OF LIFERS: 610 (644 including Non-Minnesota) Note: Of the 610 Minnesota lifers:  140 have a sentence of life without parole; and  86 were not incarcerated in a Minnesota correctional facility.

AVERAGE AGE (in years): 37.9

CURRENT INMATES AGE 50 OR OLDER: 1,478

CURRENT INMATES UNDER AGE 18: 5

AVERAGE POPULATION CY2018: 9,687

INMATES CERTIFIED AS ADULTS AT SENTENCING: 256

MINNCOR INDUSTRY – INMATES EMPLOYED: 1,633

Page 1 of 4 Section 1. Adult Prison Population Summary as of 01/01/2019

RACE: White 4,892 51.6% Black 3,459 34.5% American Indian 854 9.0% Asian 265 2.8% Unknown/Other 9 0.1% Total 9,479 Note: 545 (5.8%) of the above are of Hispanic ethnicity.

EDUCATIONAL LEVEL: Grades 0 – 8 331 3.5% Grades 9 – 11 2,145 22.6% High School Graduate 2,675 28.2% GED 2,466 26.0% College and Up 1,751 18.5% Other/unknown 111 1.2% Total 9,479

MARITAL STATUS: Single 6,932 73.1% Married 1,124 11.9% Divorced/Separated 1,059 11.2% Other/Unknown 364 3.8% Total 9,479

RELIGION: Unknown/No Preference 3,049 32.2% Other Christian 2,803 29.6% Catholic 953 10.1% Other Religions 739 7.8% Lutheran 533 5.6% Native American Religions 526 5.6% Muslim 480 5.1% Baptist 396 4.2% Total 9,479

COUNTY OF COMMITMENT (top six total 5,369): Hennepin 2,592 27.3% Ramsey 1,144 12.1% Dakota 454 4.8% St. Louis 438 4.6% Stearns 388 4.1% Anoka 353 3.7% Note: Percentages are based on total population of 9,479.

Page 2 of 4 Section 1. Adult Prison Population Summary as of 01/01/2019

POPULATION BY FACILITY/LOCATION:

Faribault 1,984 20.9% Stillwater 1,536 16.2% Lino Lakes 1,281 13.5% Moose Lake 1,052 11.1% St. Cloud 1,023 10.8% Rush City 1,001 10.6% Shakopee 599 6.3% Oak Park Heights 373 3.9% Willow River 140 1.5% Togo 64 0.7% Red Wing 45 0.5% County Jail/Federal Prison (Contract) 127 1.3% Work Release 192 2.0% Institution Community Work Crews 25 0.3% Non-DOC Correctional Facility (Short Term) 37 0.4% Total 9,479

Page 3 of 4 Section 2. Admissions and Releases For Period 01/01/2018 to 12/31/2018

Section 2. Admissions and Releases for CY2018

ADMISSIONS (CY2018): New Commitments 4,417 59.8% Release Return Without New Sentence 2,591 35.1% Release Return With New Sentence 381 5.2% Total 7,389

Note: The above includes admissions of all offenders committed to the commissioner of corrections. Because offenders can be admitted more than once in a given year, the above measures the total number of prison admissions, not the total number of individual offenders admitted to prison.

COMMITMENTS CY2017 CY2018 Change January-June 2,696 2,488 -7.7% July-December 2,518 2,310 -8.3% Total 5,214 4,798 -8.0% Note: Includes new commitments and release return with new sentence by calendar year.

RELEASES (CY2018): Supervised Release/Parole 6,359 77.1% Community Programs 1,063 12.9% Discharge 783 9.5% Other 47 0.6% Total 8,252

Note: The above includes releases from prison as well as releases from community programs (i.e., work release) to supervised release. Because offenders can be released from either prison or a community program more than once in a given year, the above measures the total number of transitions to a release status, not the total number of individual offenders who exit a prison facility.

Page 4 of 4 poverty and opportunity profile Americans with Criminal Records

The United States is the global leader in incarceration. Today, more than 1.5 million Americans are incarcerated in state and federal prisons, a figure that has quintupled since 1980. Adding in jails, the number of Americans who are behind bars rises to 2.2 million. One in three U.S. adults has been arrested by age 23. Communities of color; lesbian, gay, bisexual, and transgender individuals; and people with histories of abuse or mental illness are disproportionately affected. As a result, between 70 million and 100 million—or as many as one in three Americans—have some type of criminal record. Having even a minor criminal record, such as a misdemeanor or even an arrest without conviction, can create an array of lifelong barriers that stand in the way of successful re-entry. This has broad implications for individuals’ and families’ economic security, as well as for our national economy. Mass incarceration and hyper-criminalization serve as major drivers of poverty; having a criminal record can present obstacles to employment, housing, public assistance, education, family reunification, building good credit, and more.

a Rise of mass incarceration b Disproportionate impact The number of Americans incarcerated in federal and state on communities of color prisons has quintupled over the past three decades Black men are six times more likely to be incarcerated 1,600,000 than white men, and Hispanic men are 2.5 times 1,400,000 more likely to be incarcerated than white men 1,200,000 2013 1,000,000 1,574,700 800,000 600,000 400,000 200,000 0 1925 1950 1975 2000 Sources: Analysis of Bureau of Justice Statistics Data by The Sentencing Project, “Trends in U.S. Source: Analysis of Bureau of Justice Statistics data by The Sentencing Project, “Trends in U.S. Corrections” (2013), available at http://sentencingproject.org/doc/publications/inc_Trends_in_ Corrections” (2013), available at http://sentencingproject.org/doc/publications/inc_Trends_in_ Corrections_Fact_sheet.pdf; E. Anne Carson and Daniela Golinelli, “Prisoners in 2012” (Washington: Corrections_Fact_sheet.pdf. Bureau of Justice Statistics, 2013), available at http://www.bjs.gov/content/pub/pdf/p12tar9112.pdf.

c Effect on families d The back end of mass incarceration As of 2007, more than half of Americans in state and hyper-criminalization and federal prisons were parents of minor children As many as one in three Americans have criminal records

As many as 100 million Americans have criminal records

Source: Bureau of Justice Statistics, Parents in Prison and Their Minor Children (U.S. Department of Source: Bureau of Justice Statistics, Survey of State Criminal History Information Systems, 2012 (U.S. Justice, 2008), available at http://www.bjs.gov/content/pub/pdf/pptmc.pdf. Department of Justice, 2014), available at https://www.ncjrs.gov/pdffiles1/bjs/grants/244563.pdf.

1 half in ten | americans with criminal records e f Rising costs and a net loss Barriers to employment Correctional expenditures have quadrupled since 1982 With 87 percent of employers conducting background checks, a State and federal expenditures (in billions of dollars) criminal record can be a major barrier to employment 60 More than 60 percent 50 those who do of formerly incarcerated ﬁnd jobs take 40 1982 individuals are unem- $15.86 home 40 GDP loss 2012 ployed one year after 30 State percent less annually: $48.44 being released; $65 billion* pay annually 20 2012 1982 Federal $6.64 10 $1.02 0

* Employment losses due to criminal records resulted in as much as $65 billion in lost gross domestic product output in 2008. Sources: Author’s calculations are based on Bureau of the Census, Annual Survey of State Government Sources: Society for Human Resource Management, “Background Checking—The Use of Criminal Finances (U.S. Department of Commerce, 1982–2012), available at https://www.census.gov/govs/state/ Background Checks in Hiring Decisions” (2012), available at http://www.shrm.org/research/ historical_data.html; Tracey Kyckelhahn, “State Corrections Expenditures, FY 1982-2010” (Washington: surveyfindings/articles/pages/criminalbackgroundcheck.aspx; Bruce Western, “Collateral Costs” Bureau of Justice Statistics, 2014), available at http://www.bjs.gov/content/pub/pdf/scefy8210.pdf; (Washington: The Pew Charitable Trusts, 2010), available at http://www.pewtrusts.org/~/media/ Nathan James, “The Bureau of Prisons (BOP): Operations and Budget” (Washington: Congressional legacy/uploadedfiles/pcs_assets/2010/CollateralCosts1pdf.pdf?la=en. Research Service, 2014), available at http://fas.org/sgp/crs/misc/R42486.pdf. John Schmitt and Kris Warner, “Ex-offenders and the Labor Market” (Washington: Center for Economic and Policy Research, 2010), available at http://www.cepr.net/documents/publications/ex-offenders-2010-11.pdf.

g h Barriers to public assistance Mass incarceration is hurt women and children a major driver of poverty In many states, people with felony drug convictions are Without mass incarceration, 5 million fewer Americans would banned for life from receiving certain types of assistance have been poor between 1980 and 2014

180,000 women The U.S. poverty rate would have are subject to the dropped by 20 percent lifetime ban on if not for the trend of mass incarceration Temporary Assistance over the past several decades for Needy Families

*Figure represents an estimate of the number of women who may now be subject to the TANF ban in the 12 states with the most punitive policies

Source: The Sentencing Project, “A Lifetime of Punishment: The Impact of the Felony Drug Ban Source: Robert H. DeFina and Lance Hannon, “The Impact of Mass Incarceration on Poverty,” on Welfare Benefits” (2011), available at www.sentencingproject.org/doc/publications/cc_A%20 Crime and Delinquency 59 (4) (2013): 562–586, available at http://papers.ssrn.com/sol3/papers. Lifetime%20of%20Punishment.pdf. cfm?abstract_id=1348049.

We cannot be a nation of “one strike and you’re out.” Understanding that a criminal record can be a lifelong barrier to economic security and mobility—with adverse effects on families, communities, and our entire economy—we must craft policies to ensure that Americans with criminal records have a fair shot at a decent life. We must remove barriers to employment, housing, public assistance, education, and building good credit. In a recent and welcome development, bipartisan momentum appears to be building in support of criminal justice reform, in part due to the skyrocketing costs of mass incarceration, as well as an increased focus on evidence-based approaches to public safety. Failure to address the obstacles associated with criminal records as part of a larger anti-poverty agenda risks missing a major piece of the puzzle in the effort to truly enable shared prosperity for all Americans. Moving forward, we must continue to break down these barriers to economic security and ensure that second chances are within reach for Americans with criminal records.

For full source information, see Rebecca Vallas and Sharon Dietrich, “One Strike and You’re Out: How We Can Eliminate Barriers to Economic Security and Mobility for People with Criminal Records” (Washington: Center for American Progress, 2014).

2 half in ten | americans with criminal records Prisoners in 2017

Bureau of Justice Statistics Summary | NCJ 252156 | April 2019

he United States prison population declined Imprisonment rates of sentenced prisoners under the from 1,508,129 at the end of 2016 to 1,489,363 jurisdiction of state or federal correctional authorities, at the end of 2017, a decrease of 1.2%. During per 100,000 U.S. residents, 1978–2017 Tthe same period, the number of prisoners under the jurisdiction of federal correctional authorities Rate per 100‚000 U.S. residents decreased by 6,100 (down 3%), and the number of 700 prisoners under the jurisdiction of state correctional 600 Age 18 or older authorities fell by 12,600 (down 1%). 500 400 All ages Imprisonment rates 300 200 The imprisonment rate for sentenced prisoners under state or federal jurisdiction decreased 2.1% from 2016 100 to 2017 (from 450 to 440 sentenced prisoners per 0 ’78’80 ’85 ’90 ’95 ’00 ’05 ’10 ’15’17 100,000 U.S. residents) and 13% from 2007 to 2017 (from 506 to 440 per 100,000). The imprisonment rate Note: Jurisdiction refers to the legal authority of state or federal correctional officials over a prisoner, regardless of where the prisoner for sentenced prisoners was the lowest since 1997. is held. Counts are based on prisoners with a sentence of more than (Counts of sentenced prisoners include those who have one year. received a sentence of more than one year.) Source: Bureau of Justice Statistics, National Prisoner Statistics, 1978–2017; and U.S. Census Bureau, post-censal resident population estimates for January 1 of the following calendar year. At year-end 2017, more than twice as many white females (49,100 prisoners) were in state and federal imprisonment rate of sentenced black adults declined prisons as black (19,600) or Hispanic (19,400) females. by 4% from 2016 to 2017 and by 31% from 2007 to However, the rate for black females in prison per 2017. However, at year-end 2017, the imprisonment 100,000 black females in the population was almost rate for sentenced black males (2,336 per 100,000 double that for white females (92 per 100,000 black black male U.S. residents) was almost six times that of female U.S. residents compared to 49 per 100,000 white sentenced white males (397 per 100,000 white male female U.S. residents). The imprisonment rate was U.S. residents). 66 per 100,000 Hispanic females.

Prisoners in local jails, private and Offense and offender characteristics military facilities Non-citizens made up roughly the same portion At year-end 2017, a total of 80,900 prisoners were held of the U.S. prison population (7.6%) as of the total in the custody of local jails. The U.S. military held U.S. population (7.0%, per the U.S. Census Bureau). 1,000 persons sentenced to more than one year under Nearly half of federal prisoners were serving a sentence its correctional authority. At year-end 2017, 8% of state for a drug-trafficking offense at the end of fiscal year and federal prisoners were held in privately operated 2017. Among state prisoners sentenced to more than facilities that were under the jurisdiction of 27 states or one year, more than half (55%) were serving sentences the Bureau of Prisons. The number of federal prisoners for violent offenses at year-end 2016, the most recent held in private facilities decreased by 6,600 from 2016 year for which data are available. to 2017. At the end of 2016, an estimated 60% of Hispanics and blacks in state prison had been sentenced for a violent The full report (Prisoners in 2017, NCJ 252156), related documents, and additional information about the Bureau of Justice Statistics offense, compared to 48% of white prisoners. The can be found at www.bjs.gov.

BUREAU OF JUSTICE STATISTICS | Office of Justice Programs | U.S. Department of Justice U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics

April 2019, NCJ 252156 Prisoners in 2017 Bulletin Jennifer Bronson, Ph.D., and E. Ann Carson, Ph.D., BJS Statisticians

he United States prison population FIGURE 1 declined from 1,508,129 at the end of Imprisonment rates of sentenced prisoners 2016 to 1,489,363 at the end of 2017, a under the jurisdiction of state or federal Tdecrease of 1.2%. During the same period, the correctional authorities, per 100,000 number of prisoners under the jurisdiction of U.S. residents, 1978–2017 federal correctional authorities decreased by 6,100 (down 3%), and the number of prisoners Rate per 100‚000 U.S. residents 700 under the jurisdiction of state correctional authorities fell by 12,600 (down 1%). Te 600 Age 18 or older imprisonment rate for sentenced prisoners was 500 the lowest since 1997, at 440 prisoners per 100,000 400 All ages U.S. residents of all ages and 568 per 100,000 300 U.S. residents age 18 or older (fgure 1). (Counts 200 of sentenced prisoners include those who have 100 received a sentence of more than one year.) 0 Findings in this report are based on the ’78 ’80 ’85 ’90 ’95 ’00 ’05 ’10 ’15 ’17 National Prisoner Statistics (NPS) program, Note: Jurisdiction refers to the legal authority of state or federal correctional ofcials over a prisoner, regardless of where the administered by the Bureau of Justice Statistics prisoner is held. Counts are based on prisoners with a sentence of (BJS). Te program collects annual data from more than one year. See appendix table 1 for imprisonment rates. state departments of corrections (DOCs) and Source: Bureau of Justice Statistics, National Prisoner Statistics, 1978–2017; and U.S. Census Bureau, post-censal resident the Federal Bureau of Prisons (BOP) on prison population estimates for January 1 of the following calendar year.

HIGHLIGHTS

The imprisonment rate for sentenced prisoners Non-citizens made up roughly the same portion under state or federal jurisdiction decreased 2.1% of the U.S. prison population (7.6%) as of the total from 2016 to 2017 (from 450 to 440 sentenced U.S. population (7.0%, per the U.S. Census Bureau). prisoners per 100,000 U.S. residents) and 13% The imprisonment rate of sentenced black adults from 2007 to 2017 (from 506 to 440 per 100,000). declined by 4% from 2016 to 2017 and by 31% The number of prisoners under state or federal from 2007 to 2017. jurisdiction decreased by 18,700 (down 1.2%), Nearly half of federal prisoners were serving a from 1,508,100 at year-end 2016 to 1,489,400 at sentence for a drug-trafcking ofense at fscal year-end 2017. year-end 2017. The federal prison population decreased by At year-end 2017, the imprisonment rate for 6 100 prisoners from year-end 2016 to year-end , sentenced black males (2,336 per 100,000 black 2017 (down 3%), accounting for one-third of the male U.S. residents) was almost six times that of overall change in the U.S. prison population. sentenced white males (397 per 100,000 white More than half (55%) of state prisoners were male U.S. residents). serving sentences for violent ofenses at year-end At year-end 2016, an estimated 60% of Hispanics 2016, the most recent year for which data and blacks sentenced to serve more than one are available. year in state prison had been convicted of and The number of state or federal prisoners held in sentenced for a violent ofense, compared to private facilities decreased 5% from 2016 to 2017. 48% of white prisoners. Terms and defnitions Adult imprisonment rate—The number of prisoners have a sentence of one year or less. Alaska, Connecticut, sentenced to more than one year under state or federal Delaware, Hawaii, Rhode Island, and Vermont operate jurisdiction per 100,000 U.S. residents age 18 or older. integrated systems that combine prisons and jails. Capacity, design—The number of inmates a facility can Jurisdiction—The legal authority of state or federal hold set by the architect or planner. correctional ofcials over a prisoner, regardless of where the prisoner is held. Prisoners under jurisdiction of state Capacity, highest—The maximum number of beds across or federal correctional ofcials can be held in publicly the three capacity measures: design, operational, and rated capacity. or privately operated secure or non-secure facilities, including boot camps, halfway houses, treatment Capacity lowest—The minimum number of beds across , facilities, hospitals, local jails, or another state’s facilities. the three capacity measures: design, operational, and rated capacity. New court commitments—Admissions into prison of ofenders convicted and sentenced by a court, usually to a Capacity operational—The number of inmates a facility , term of more than one year, including probation violators can hold based on stafng and services. and persons with a split sentence of incarceration Capacity, rated—The number of inmates or beds a facility followed by court-ordered probation or parole. can hold set by a rating ofcial. Parole violators—Persons released from prison Conditional releases—Includes discretionary parole, on discretionary or mandatory parole who were mandatory parole, post-custody probation, and other subsequently imprisoned either for violating conditions of unspecifed conditional releases. release or for new crimes. Conditional-release violators—Persons who returned to Prison—A long-term confnement facility that is run by a prison after having been released to discretionary parole, state or the federal government and typically holds felons mandatory parole, or post-custody probation, or after and ofenders with sentences of more than one year. having been granted unspecifed conditional release. Sentence length may vary by state. Alaska, Connecticut, Custody—Prisoners held in the physical custody of state Delaware, Hawaii, Rhode Island, and Vermont operate integrated systems that combine prisons and jails. or federal prisons, regardless of sentence length or the authority with jurisdiction over the prisoner. Prisoner—An individual confned in a state or federal Federal prison system—Includes persons held under correctional facility, or in a private facility under state or the jurisdiction of the Federal Bureau of Prisons in secure federal jurisdiction. federal and private prison facilities; persons held in Probation violators—Persons on probation, sometimes non-secure, privately operated community corrections following release from prison, who were subsequently facilities; and juveniles in contract facilities. imprisoned either for violating conditions of their Imprisonment rate—The number of prisoners sentenced probation or for new crimes. to more than one year under state or federal jurisdiction Sentenced prisoner—A prisoner sentenced to more than per 100,000 U.S. residents. one year. Jail—A confnement facility that is usually administered Supervised mandatory releases—Conditional releases by a local law enforcement agency and is intended for with post-custody supervision (generally occurring in adults but sometimes holds juveniles for confnement jurisdictions using determinate sentencing statutes). before or after adjudication. Such facilities include Unconditional releases—Expirations of sentences, jails and city or county correctional centers special jail ; commutations, and other unspecifed releases that are facilities such as medical treatment or release centers , ; not followed by probation, parole, or other supervision. halfway houses; work farms; and temporary holding Year-end—As of December 31 of the calendar year. or lockup facilities that are part of the jail’s combined function. Prisoners sentenced to jail facilities usually

PRISONERS IN 2017 | APRIL 2019 2 capacity and prisoner counts, characteristics, admissions, States held 1,306,300 prisoners at year-end 2017, and releases. Tis report is the ninety-second in a series which was down 1% (12,600) from year-end 2016. A that began in 1926. Forty-eight states and the BOP total of 29 states showed decreases in year-end prison reported NPS data for 2017, while data for New Mexico populations from 2016 to 2017 (table 2). Te states and North Dakota were obtained from other sources or with the largest declines in prisoners were Illinois were imputed (see Methodology). (down 2,200), Louisiana (down 1,900), and Oklahoma (down 1,800). Of the 20 states that showed increases Total prison population in prison populations from 2016, the states with the largest increases were California (up 960), Tennessee Te number of prisoners under state or federal (up 780), and North Carolina (up 697). Maine had the jurisdiction at year-end 2017 (1,489,400) decreased same number of prisoners (2,404) at year-end 2016 as at 8% (down 126,100 prisoners) from 2009, when the year-end 2017. U.S. prison population peaked at 1,615,500 (table 1). Federal prisoners made up 12% of the total U.S. prison Females made up 7% of the total prison population at population at year-end 2017 and accounted for 33% year-end 2017. Te female population decreased by of the decline in the total prison population. Te almost 470 prisoners from year-end 2016 (down 0.4%), number of federal prisoners decreased from 189,200 while the male population decreased by almost 18,300 at year-end 2016 to 183,100 at year-end 2017. Tis was (down 1.3%). Twenty-fve states and the BOP showed the ffh consecutive year of population decline among decreases in their female prison populations at year-end federal prisoners. 2017, with the largest decreases occurring in Texas (down almost 380 female prisoners) and Illinois (down 330). Te number of female prisoners increased from 2016 to 2017 in 25 states, with the largest increases occurring in Tennessee (up 290) and Indiana (up 210).

TABLE 1 Prisoners under jurisdiction of state or federal correctional authorities, by jurisdiction and sex, 2007–2017 Year Total Federala State Male Female 2007 1,596,835 199,618 1,397,217 1,482,524 114,311 2008 1,608,282 201,280 1,407,002 1,493,670 114,612 2009 1,615,487 208,118 1,407,369 1,502,002 113,485 2010 1,613,803 209,771 1,404,032 1,500,936 112,867 2011 1,598,968 216,362 1,382,606 1,487,561 111,407 2012 1,570,397 217,815 1,352,582 1,461,625 108,772 2013 1,576,950 215,866 1,361,084 1,465,592 111,358 2014 1,562,319 210,567 1,351,752 1,449,291 113,028 2015 1,526,603 196,455 1,330,148 1,415,112 111,491 2016b 1,508,129 189,192 1,318,937 1,396,296 111,833 2017c 1,489,363 183,058 1,306,305 1,378,003 111,360 Percent change 2007–2017 -6.7% -8.3% -6.5% -7.1% -2.6% 2016–2017 -1.2 -3.2 -1.0 -1.3 -0.4 Note: Jurisdiction refers to the legal authority of state or federal correctional ofcials over a prisoner, regardless of where the prisoner is held. Counts are for December 31 of each year. aIncludes prisoners held in non-secure, privately operated community corrections facilities and juveniles held in contract facilities. bCounts from 2016 have been revised based on updated numbers and may difer from numbers in past reports. Total and state estimates include imputed counts for North Dakota, which did not submit 2016 National Prisoner Statistics (NPS) data. See Methodology. cTotal and state estimates for 2017 include imputed counts for New Mexico and North Dakota, which did not submit 2017 NPS data. See Methodology. Source: Bureau of Justice Statistics, National Prisoner Statistics, 2007–2017.

PRISONERS IN 2017 | APRIL 2019 3 TABLE 2 Prisoners under jurisdiction of state or federal correctional authorities, by jurisdiction and sex, 2016 and 2017 2016 2017 Percent change, 2016–2017 Jurisdiction Total Male Female Total Male Female Total Male Female U.S. total 1,508,129 1,396,296 111,833 1,489,363 1,378,003 111,360 -1.2% -1.3% -0.4% Federala 189,192 176,495 12,697 183,058 170,525 12,533 -3.2% -3.4% -1.3% Stateb 1,318,937 1,219,801 99,136 1,306,305 1,207,478 98,827 -1.0% -1.0% -0.3% Alabamac 28,883 26,506 2,377 27,608 25,135 2,473 : : : Alaskad 4,434 4,024 410 4,399 4,011 388 -0.8 -0.3 -5.4 Arizona 42,320 38,323 3,997 42,030 37,971 4,059 -0.7 -0.9 1.6 Arkansas 17,537 16,161 1,376 18,070 16,651 1,419 3.0 3.0 3.1 Californiae 130,084 124,198 5,886 131,039 125,180 5,859 0.7 0.8 -0.5 Colorado 19,981 18,078 1,903 19,946 18,044 1,902 -0.2 -0.2 -0.1 Connecticutd 14,957 13,892 1,065 14,040 13,069 971 -6.1 -5.9 -8.8 Delawared 6,585 6,047 538 6,443 5,931 512 -2.2 -1.9 -4.8 Florida 99,974 93,111 6,863 98,504 91,779 6,725 -1.5 -1.4 -2.0 Georgia 53,627 49,839 3,788 53,667 49,839 3,828 0.1 0.0 1.1 Hawaiid 5,602 4,934 668 5,630 5,006 624 0.5 1.5 -6.6 Idaho 8,252 7,239 1,013 8,579 7,534 1,045 4.0 4.1 3.2 Illinois 43,657 41,044 2,613 41,471 39,190 2,281 -5.0 -4.5 -12.7 Indiana 25,546 23,341 2,205 26,024 23,608 2,416 1.9 1.1 9.6 Iowa 9,031 8,210 821 9,024 8,218 806 -0.1 0.1 -1.8 Kansas 9,920 9,051 869 9,971 9,069 902 0.5 0.2 3.8 Kentucky 23,022 20,080 2,942 23,543 20,522 3,021 2.3 2.2 2.7 Louisiana 35,682 33,701 1,981 33,739 31,782 1,957 -5.4 -5.7 -1.2 Maine 2,404 2,169 235 2,404 2,177 227 0.0 0.4 -3.4 Maryland 19,994 19,172 822 19,367 18,519 848 -3.1 -3.4 3.2 Massachusetts 9,403 8,820 583 9,133 8,602 531 -2.9 -2.5 -8.9 Michigan 41,122 38,880 2,242 39,666 37,515 2,151 -3.5 -3.5 -4.1 Minnesota 10,592 9,818 774 10,708 9,974 734 1.1 1.6 -5.2 Mississippi 19,192 17,823 1,369 19,103 17,688 1,415 -0.5 -0.8 3.4 Missouri 32,461 29,124 3,337 32,601 29,205 3,396 0.4 0.3 1.8 Montana 3,814 3,405 409 3,698 3,282 416 -3.0 -3.6 1.7 Nebraska 5,302 4,878 424 5,313 4,884 429 0.2 0.1 1.2 Nevada 13,757 12,490 1,267 13,671 12,405 1,266 -0.6 -0.7 -0.1 New Hampshire 2,818 2,591 227 2,750 2,524 226 -2.4 -2.6 -0.4 New Jersey 19,786 18,952 834 19,585 18,811 774 -1.0 -0.7 -7.2 New Mexicof 7,055 6,344 711 7,276 6,492 784 : : : New York 50,716 48,442 2,274 49,461 47,184 2,277 -2.5 -2.6 0.1 North Carolina 35,697 32,985 2,712 36,394 33,553 2,841 2.0 1.7 4.8 North Dakotaf,g 1,791 1,578 213 1,723 1,524 199 : : : Ohio 52,175 47,581 4,594 51,478 47,052 4,426 -1.3 -1.1 -3.7 Oklahomae,h 29,916 26,452 3,464 28,143 24,952 3,191 -5.9 -5.7 -7.9 Oregone 15,166 13,862 1,304 15,218 13,891 1,327 0.3 0.2 1.8 Pennsylvania 49,244 46,381 2,863 48,333 45,482 2,851 -1.8 -1.9 -0.4 Rhode Islandd 3,103 2,927 176 2,861 2,690 171 -7.8 -8.1 -2.8 South Carolina 20,858 19,384 1,474 19,906 18,514 1,392 -4.6 -4.5 -5.6 South Dakota 3,831 3,333 498 3,970 3,430 540 3.6 2.9 8.4 Tennessee 28,203 25,481 2,722 28,980 25,969 3,011 2.8 1.9 10.6 Texas 163,703 149,368 14,335 162,523 148,565 13,958 -0.7 -0.5 -2.6 Utahe 6,175 5,769 406 6,443 5,951 492 4.3 3.2 21.2 Vermontd 1,735 1,600 135 1,546 1,406 140 -10.9 -12.1 3.7 Virginia 37,813 34,704 3,109 37,158 34,004 3,154 -1.7 -2.0 1.4

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PRISONERS IN 2017 | APRIL 2019 4 TABLE 2 (continued) Prisoners under jurisdiction of state or federal correctional authorities, by jurisdiction and sex, 2016 and 2017 2016 2017 Percent change, 2016–2017 Jurisdiction Total Male Female Total Male Female Total Male Female Washington 19,104 17,446 1,658 19,656 17,914 1,742 2.9 2.7 5.1 West Virginia 7,162 6,286 876 7,092 6,274 818 -1.0 -0.2 -6.6 Wisconsin 23,377 21,889 1,488 23,945 22,325 1,620 2.4 2.0 8.9 Wyoming 2,374 2,088 286 2,473 2,181 292 4.2 4.5 2.1 Note: Jurisdiction refers to the legal authority of state or federal correctional ofcials over a prisoner, regardless of where the prisoner is held. Counts are for December 31 of each year. :Not calculated. aIncludes prisoners held in non-secure, privately operated community corrections facilities and juveniles held in contract facilities. bTotal and state estimates include imputed counts for New Mexico and North Dakota, which did not submit 2017 National Prisoner Statistics (NPS) data. See Methodology. cData from 2017 include ofenders with Class D felonies and parole revocations and should not be compared to 2016 data. dPrisons and jails form one integrated system. Data include total jail and prison populations. eState submitted updated 2016 population counts. fState did not submit 2017 NPS data. Counts were imputed for 2017 and should not be compared to 2016 counts. See Methodology. gState did not submit 2016 NPS data. Counts were imputed for 2016 and should not be compared to 2017 counts. See Methodology. hIncludes persons who were waiting in county jails to be moved to state prison. Source: Bureau of Justice Statistics, National Prisoner Statistics, 2016 and 2017.

Counting prisoners In this report, counts of prisoners may vary depending on Non-U.S. citizens data are provided by jurisdictions the type of population. and include the number of non-U.S. citizens in both state-operated and privately operated facilities. Unless Most totals and trends are based on jurisdiction counts, which include all prisoners under the authority of state otherwise noted, counts exclude non-U.S. citizens held in the custody of local jails or facilities of other or federal correctional ofcials, regardless of where the prisoner is held. jurisdictions. Prior to the collection of 2017 National Prisoner Statistics (NPS) data, the counts of non-U.S. Imprisonment rates are based on sentenced citizens excluded state prisoners held in private prisons, prisoners which include persons who have received a , local jails, and facilities of other jurisdictions. As such, court-ordered term of imprisonment of more than one NPS data from 2017 should not be compared to year. (In all, 97% of prisoners are sentenced prisoners.) previously published statistics on non-U.S. citizens. Admissions and releases are based on prisoners sentenced to more than one year, except where noted. Prisoners age 17 or younger are based on physical custody populations and exclude those held in private prisons, local jails, or facilities of other jurisdictions.

PRISONERS IN 2017 | APRIL 2019 5 Sentenced prison population 2016 (down more than 1%). At year-end 2017, federal prisons had 166,200 prisoners sentenced to more than Prisoners sentenced to more than one year made one year, or 5,300 fewer than at year-end 2016 (down up 97% of the total prison population at year-end 2017. 3%). Te decrease in prisoners under federal jurisdiction (See Terms and defnitions.) Te remaining proportion accounted for 26% of the total decline in sentenced had not been sentenced for an ofense or had received a prisoners from 2016 to 2017. sentence of one year or less. From year-end 2016 to year-end 2017, the number of Number of prisoners sentenced to more than one year prisoners sentenced to more than one year declined declined for the fourth consecutive year in 29 states and in the federal prison system (table 4). Tree jurisdictions decreased their counts of sentenced From December 31, 2016, to December 31, 2017, the prisoners by at least 2,000 in 2017: the federal system number of state and federal prisoners who had been (down 5,280 prisoners), Alabama (down 4,080), and sentenced to more than one year declined by 20,100 Illinois (down 2,230). Five other jurisdictions decreased (down more than 1%) (table 3). Tis was the fourth their counts of sentenced prisoners by more than 1,000 consecutive year that the population of prisoners with a in 2017: Louisiana (down 1,940 prisoners), Oklahoma sentence of more than one year in prison declined. Te (down 1,800), Florida (down 1,470), Michigan (down number of prisoners awaiting sentence or sentenced to 1,460), and New York (down 1,260). California one year or less at year-end 2017 was 49,600, an increase (up 840 prisoners), Tennessee (up 780), and North from 48,200 in 2016. Carolina (up 690) had the largest increases in sentenced prisoners between year-end 2016 and year-end 2017. On December 31, 2017, state prisons held 1,273,600 prisoners sentenced to more than one year, which was 14,900 fewer sentenced prisoners than at year-end

TABLE 3 Sentenced prisoners under jurisdiction of state or federal correctional authorities, by jurisdiction, sex, race, and Hispanic origin, 2007–2017 Year Total Federala State Male Female Whiteb,c Blackb,c Hispanicc 2007 1,532,851 179,204 1,353,647 1,427,088 105,763 499,800 592,900 330,400 2008 1,547,742 182,333 1,365,409 1,441,384 106,358 499,900 592,800 329,800 2009 1,553,574 187,886 1,365,688 1,448,239 105,335 490,000 584,800 341,200 2010 1,552,669 190,641 1,362,028 1,447,766 104,903 484,400 572,700 345,800 2011 1,538,847 197,050 1,341,797 1,435,141 103,706 474,300 557,100 347,800 2012 1,512,430 196,574 1,315,856 1,411,076 101,354 466,600 537,800 340,300 2013 1,520,403 195,098 1,325,305 1,416,102 104,301 463,900 529,900 341,200 2014 1,507,781 191,374 1,316,407 1,401,685 106,096 461,500 518,700 338,900 2015 1,476,847 178,688 1,298,159 1,371,879 104,968 450,200 499,400 333,200 2016d 1,459,948 171,482 1,288,466 1,354,109 105,839 440,200 487,300 339,600 2017e 1,439,808 166,203 1,273,605 1,334,775 105,033 436,500 475,900 336,500 Percent change 2007–2017 -6.1% -7.3% -5.9% -6.5% -0.7% -12.7% -19.7% 1.9% 2016–2017 -1.4 -3.1 -1.2 -1.4 -0.8 -0.8 -2.3 -0.9 Note: Jurisdiction refers to the legal authority of state or federal correctional ofcials over a prisoner, regardless of where the prisoner is held. Counts are for December 31 of each year and are based on prisoners with a sentence of more than one year. Data for 2016 have been updated with population-count changes for several states. aIncludes prisoners held in non-secure, privately operated community corrections facilities and juveniles held in contract facilities. bExcludes persons of Hispanic/Latino origin (e.g., white refers to non-Hispanic white; black refers to non-Hispanic black). See Methodology. cEstimates are rounded to the nearest 100. dEstimates include imputed counts for North Dakota, which did not submit 2016 National Prisoner Statistics data. See Methodology. eEstimates include imputed counts for New Mexico and North Dakota, which did not submit 2017 National Prisoner Statistics data. See Methodology. Source: Bureau of Justice Statistics, National Prisoner Statistics, 2007–2017; Federal Justice Statistics Program, 2017 (preliminary); National Corrections Reporting Program, 2016; and Survey of Prison Inmates, 2016.

PRISONERS IN 2017 | APRIL 2019 6 TABLE 4 Sentenced prisoners under the jurisdiction of state or federal correctional authorities, by sex, 2016 and 2017 2016 2017 Percent change, 2016–2017 Jurisdiction Total Male Female Total Male Female Total Male Female U.S. total 1,459,948 1,354,109 105,839 1,439,808 1,334,775 105,033 -1.4% -1.4% -0.8% Federala 171,482 160,090 11,392 166,203 154,931 11,272 -3.1% -3.2% -1.1% Stateb 1,288,466 1,194,019 94,447 1,273,605 1,179,844 93,761 -1.2% -1.2% -0.7% Alabama 27,799 25,593 2,206 23,724 21,968 1,756 -14.7 -14.2 -20.4 Alaskac 2,089 1,982 107 1,905 1,828 77 -8.8 -7.8 -28.0 Arizona 40,849 37,131 3,718 40,263 36,543 3,720 -1.4 -1.6 0.1 Arkansas 17,476 16,111 1,365 18,028 16,617 1,411 3.2 3.1 3.4 Californiad 129,080 123,261 5,819 129,920 124,127 5,793 0.7 0.7 -0.4 Colorado 19,862 17,963 1,899 19,824 17,925 1,899 -0.2 -0.2 0.0 Connecticutc 10,365 9,804 561 9,626 9,142 484 -7.1 -6.8 -13.7 Delawarec 4,090 3,889 201 4,066 3,882 184 -0.6 -0.2 -8.5 Florida 99,974 93,111 6,863 98,504 91,779 6,725 -1.5 -1.4 -2.0 Georgia 53,064 49,324 3,740 53,094 49,315 3,779 0.1 0.0 1.0 Hawaiic 3,629 3,271 358 3,425 3,154 271 -5.6 -3.6 -24.3 Idaho 7,376 6,416 960 7,752 6,761 991 5.1 5.4 3.2 Illinois 43,657 41,044 2,613 41,427 39,148 2,279 -5.1 -4.6 -12.8 Indiana 25,530 23,325 2,205 26,001 23,587 2,414 1.8 1.1 9.5 Iowa 8,998 8,181 817 8,999 8,197 802 0.0 0.2 -1.8 Kansas 9,628 8,831 797 9,687 8,846 841 0.6 0.2 5.5 Kentucky 23,018 20,077 2,941 23,539 20,518 3,021 2.3 2.2 2.7 Louisiana 35,646 33,665 1,981 33,706 31,749 1,957 -5.4 -5.7 -1.2 Maine 1,828 1,675 153 1,795 1,643 152 -1.8 -1.9 -0.7 Maryland 19,821 19,010 811 19,232 18,399 833 -3.0 -3.2 2.7 Massachusetts 8,494 8,140 354 8,286 7,976 310 -2.4 -2.0 -12.4 Michigan 41,122 38,880 2,242 39,666 37,515 2,151 -3.5 -3.5 -4.1 Minnesota 10,592 9,818 774 10,708 9,974 734 1.1 1.6 -5.2 Mississippi 18,666 17,397 1,269 18,471 17,184 1,287 -1.0 -1.2 1.4 Missouri 32,461 29,124 3,337 32,592 29,197 3,395 0.4 0.3 1.7 Montana 3,814 3,405 409 3,698 3,282 416 -3.0 -3.6 1.7 Nebraska 5,235 4,825 410 5,257 4,837 420 0.4 0.2 2.4 Nevada 13,637 12,403 1,234 13,671 12,405 1,266 0.2 0.0 2.6 New Hampshire 2,818 2,591 227 2,750 2,524 226 -2.4 -2.6 -0.4 New Jersey 19,786 18,952 834 19,585 18,811 774 -1.0 -0.7 -7.2 New Mexicoe 6,972 6,276 696 7,189 6,422 767 : : : New York 50,620 48,356 2,264 49,360 47,103 2,257 -2.5 -2.6 -0.3 North Carolina 34,596 32,085 2,511 35,283 32,649 2,634 2.0 1.8 4.9 North Dakotae,f 1,779 1,568 211 1,711 1,514 197 : : : Ohio 52,175 47,581 4,594 51,478 47,052 4,426 -1.3 -1.1 -3.7 Oklahomad 29,531 26,145 3,386 27,729 24,615 3,114 -6.1 -5.9 -8.0 Oregond 15,150 13,846 1,304 15,200 13,877 1,323 0.3 0.2 1.5 Pennsylvania 49,000 46,188 2,812 48,074 45,281 2,793 -1.9 -2.0 -0.7 Rhode Islandc 2,030 1,962 68 1,808 1,739 69 -10.9 -11.4 1.5 South Carolina 20,371 18,981 1,390 19,541 18,233 1,308 -4.1 -3.9 -5.9 South Dakota 3,820 3,323 497 3,959 3,424 535 3.6 3.0 7.6 Tennessee 28,203 25,481 2,722 28,980 25,969 3,011 2.8 1.9 10.6 Texas 157,903 144,928 12,975 157,584 144,750 12,834 -0.2 -0.1 -1.1 Utahd 6,171 5,765 406 6,437 5,945 492 4.3 3.1 21.2 Vermontc 1,229 1,146 83 1,126 1,021 105 -8.4 -10.9 26.5

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PRISONERS IN 2017 | APRIL 2019 7 TABLE 4 (continued) Sentenced prisoners under the jurisdiction of state or federal correctional authorities, by sex, 2016 and 2017 2016 2017 Percent change, 2016–2017 Jurisdiction Total Male Female Total Male Female Total Male Female Virginia 37,813 34,704 3,109 37,158 34,004 3,154 -1.7 -2.0 1.4 Washington 19,019 17,377 1,642 19,540 17,811 1,729 2.7 2.5 5.3 West Virginia 7,162 6,286 876 7,092 6,274 818 -1.0 -0.2 -6.6 Wisconsin 22,144 20,734 1,410 22,682 21,147 1,535 2.4 2.0 8.9 Wyoming 2,374 2,088 286 2,473 2,181 292 4.2 4.5 2.1 Note: Jurisdiction refers to the legal authority of state or federal correctional ofcials over a prisoner, regardless of where the prisoner is held. Counts are for December 31 of each year and are based on prisoners with a sentence of more than one year. :Not calculated. aIncludes prisoners held in non-secure, privately operated community corrections facilities and juveniles held in contract facilities. bTotal and state estimates for 2016 include imputed counts for North Dakota, which did not submit 2016 National Prisoner Statistics (NPS) data. Total and state estimates for 2017 include imputed counts for New Mexico and North Dakota, which did not submit 2017 NPS data. See Methodology. cPrisons and jails form one integrated system. Data include total jail and prison populations. dState submitted updated 2016 sentenced population counts. eState did not submit 2017 NPS data. Counts were imputed for 2017 and should not be compared to 2016 counts. See Methodology. fState did not submit 2016 NPS data. Counts were imputed for 2016 and should not be compared to 2017 counts. See Methodology. Source: Bureau of Justice Statistics, National Prisoner Statistics, 2016 and 2017.

PRISONERS IN 2017 | APRIL 2019 8 Te number of female prisoners sentenced to more number of black sentenced prisoners decreased by 20%, than one year decreased by 810 prisoners in 2017 the number of white sentenced prisoners decreased by (down 0.8%), while the number of male prisoners 13%, and the number of Hispanic sentenced prisoners decreased by 19,330 inmates (down 1.4%). Te number increased by 2%. of male prisoners sentenced to more than one year decreased in 29 states, while the number of females Imprisonment rates sentenced to more than one year decreased in 25 states. Large percentage changes in the number of sentenced 440 persons per 100,000 U.S. residents of all ages were female prisoners from year-end 2016 to year-end 2017 imprisoned at year-end 2017 occurred in states with small female prison populations, including Alaska (down 28%), Hawaii (down 24%), Tere were 440 prisoners sentenced to more than Vermont (up 27%), and Utah (up 21%). one year in state or federal prison per 100,000 U.S. residents on December 31, 2017, the lowest rate Number of prisoners of all races and Hispanic since 1997 (444 per 100,000) (table 5; see fgure 1). origin sentenced to more than one year declined Among U.S. residents age 18 or older, 568 in 100,000 at year-end 2017 were imprisoned on a sentence of more than one year at year-end 2017. At that time, 1.1% of adult males Te number of black prisoners sentenced to more than living in the United States (1,082 in 100,000) were one year decreased by almost 2% (down 11,400) from serving a sentence of more than one year, representing year-end 2016 to year-end 2017 (see table 3). During a 2% decrease from year-end 2016 (1,108 in 100,000). that period, the number of white sentenced prisoners Te imprisonment rate for females also declined during declined by almost 1% (down 3,700) and the number that period, from 64 to 63 per 100,000 female U.S. of Hispanic sentenced prisoners decreased nearly 1% residents of all ages and from 82 to 81 per 100,000 female (down 3,100). Across a decade (2007 to 2017), the U.S. residents age 18 or older.

TABLE 5 Imprisonment rates of sentenced prisoners under jurisdiction of state or federal correctional authorities, by jurisdiction and demographic characteristics, 2007–2017 Per 100,000 U.S. residents of all ages Per 100,000 U.S. residents age 18 or older Year Total Federala State Male Female Total Male Female Whiteb Blackb Hispanic 2007 506 59 447 955 69 670 1,282 90 317 2,233 1,094 2008 506 60 447 956 69 669 1,279 90 316 2,196 1,057 2009 504 61 443 952 67 665 1,271 88 308 2,134 1,060 2010 500 61 439 948 66 656 1,260 86 307 2,059 1,014 2011 492 63 429 932 65 644 1,236 84 299 1,973 990 2012 480 62 417 910 63 626 1,201 82 293 1,873 949 2013 479 61 417 906 65 623 1,193 83 291 1,817 923 2014 471 60 411 890 65 612 1,169 84 289 1,754 893 2015 458 55 403 865 64 594 1,133 82 281 1,670 862 2016c 450 53 397 847 64 582 1,108 82 274 1,606 852 2017d 440 51 390 829 63 568 1,082 81 272 1,549 823 Percent change 2007–2017 -12.9% -14.0% -12.8% -13.2% -8.0% -15.2% -15.6% -10.3% -14.4% -30.7% -24.8% 2016–2017 -2.1 -3.8 -1.9 -2.1 -1.4 -2.3 -2.4 -1.6 -1.0 -3.6 -3.4 Note: Jurisdiction refers to the legal authority of state or federal correctional ofcials over a prisoner, regardless of where the prisoner is held. Counts are for December 31 of each year and are based on prisoners with a sentence of more than one year. aIncludes prisoners held in non-secure, privately operated community corrections facilities and juveniles held in contract facilities. bExcludes persons of Hispanic/Latino origin (e.g., white refers to non-Hispanic white; black refers to non-Hispanic black). See Methodology. cTotal and state estimates for 2016 include imputed counts for North Dakota, which did not submit 2016 National Prisoner Statistics data. See Methodology. dTotal and state estimates include imputed counts for New Mexico and North Dakota, which did not submit 2017 National Prisoner Statistics data. See Methodology. Source: Bureau of Justice Statistics, National Prisoner Statistics, 2007–2017; Federal Justice Statistics Program, 2017 (preliminary); National Corrections Reporting Program, 2016; Survey of Inmates in State and Federal Correctional Facilities, 2004; Survey of Prison Inmates, 2016; and U.S. Census Bureau, post-censal resident population estimates for January 1 of the following calendar year.

PRISONERS IN 2017 | APRIL 2019 9 Broken down by state and federal rates, the FIGURE 2 imprisonment rate for sentenced prisoners per Imprisonment rates of sentenced prisoners under the 100,000 U.S. residents was 390 under state jurisdiction jurisdiction of state or federal correctional authorities, and 51 under federal jurisdiction. At year-end 2017, a per 100,000 U.S. residents age 18 or older, by race and total of 22 states had imprisonment rates that were higher Hispanic origin, 2007–2017 than the nationwide average for all states. Louisiana Rate per 100 000 residents age 18 or older had the highest rate (719 per 100,000 state residents), , 2 500 followed by Oklahoma (704 per 100,000) and Mississippi , (619 per 100,000) (table 6). Black 2,000 Te imprisonment rate for females was highest in 1 500 Oklahoma (157 per 100,000 female state residents), , followed by Kentucky (133 per 100,000), South Dakota Hispanic 1,000 (124 per 100,000), and Idaho (114 per 100,000). More than 1% of all male residents in six states were in prison 500 White on December 31, 2017: Louisiana (1,387 per 100,000 male state residents), Oklahoma (1,262 per 100,000), 0 Mississippi (1,189 per 100,000), Arkansas (1,122 per 2007 2010 2015 2017 100,000), Arizona (1,039 per 100,000), and Texas Note: Jurisdiction refers to the legal authority of state or federal correctional (1,022 per 100,000). ofcials over a prisoner, regardless of where the prisoner is held. Counts are for December 31 of each year and are based on prisoners with a sentence of more than one year. Imprisonment rate is per 100,000 U.S. residents age Imprisonment rates decreased more for black adults 18 or older. See table 5 for imprisonment rates. See Methodology for the than for white or Hispanic adults calculation of race or Hispanic origin imprisonment rates. Source: Bureau of Justice Statistics, National Prisoner Statistics, 2007–2017; Federal Justice Statistics Program, 2017; National Corrections Reporting Te rate of imprisonment of black adults declined 4%, Programs, 2016; Survey of Inmates in State Correctional Facilities, 2004; from 1,606 per 100,000 black adult U.S. residents at Survey of Prison Inmates, 2016; and U.S. Census Bureau, post-censal resident population estimates for January 1 of the following calendar year. year-end 2016 to 1,549 per 100,000 at year-end 2017 (fgure 2). Over 10 years, the rate of imprisonment of black adults declined 31%, from 2,233 per 100,000 at year-end 2007. Te rate for white adults decreased almost 1%, from 274 per 100,000 white adult U.S. residents in 2016 to 272 per 100,000 in 2017. Te decline over the past decade was 14%, from 317 per 100,000 in 2007. Te imprisonment rate for Hispanic adults decreased 3%, from 852 per 100,000 in 2016 to 823 per 100,000 in 2017. Te decline over the past decade was 25%, from 1,094 per 100,000 in 2007.

PRISONERS IN 2017 | APRIL 2019 10 TABLE 6 Imprisonment rates of sentenced prisoners under jurisdiction of state or federal correctional authorities per 100,000 U.S. residents, by jurisdiction and sex, 2016 and 2017 2016 2017 Jurisdiction Total Male Female Total adulta Total Male Female Total adulta U.S. totalb 450 847 64 582 440 829 63 568 Federalc 53 100 7 68 51 96 7 66 Stateb 397 747 57 513 390 733 57 503 Alabama 571 1,085 88 737 486 930 70 626 Alaskad 282 511 30 376 258 473 22 343 Arizona 587 1,072 106 766 569 1,039 105 740 Arkansas 583 1,094 90 763 598 1,122 92 781 Californiae 327 629 29 425 328 630 29 424 Colorado 357 641 69 461 351 630 68 452 Connecticutd 289 560 31 365 268 522 26 338 Delawared 427 839 41 543 420 830 37 533 Florida 480 914 64 601 466 887 62 582 Georgia 511 977 70 675 506 966 70 666 Hawaiid 254 456 50 323 240 441 38 305 Idaho 434 754 113 586 447 777 114 601 Illinois 340 651 40 441 324 623 35 418 Indiana 384 711 65 503 389 716 71 509 Iowa 287 524 52 374 285 522 51 372 Kansas 331 609 55 438 332 608 57 439 Kentucky 518 917 130 670 527 933 133 682 Louisiana 761 1,469 83 997 719 1,387 82 942 Maine 137 256 22 169 134 250 22 165 Maryland 328 649 26 422 317 625 27 407 Massachusetts 156 307 13 195 120 239 9 150 Michigan 413 794 44 529 397 763 42 508 Minnesota 191 355 28 249 191 357 26 249 Mississippi 625 1,202 82 823 619 1,189 84 812 Missouri 532 972 107 688 532 970 109 687 Montana 365 647 79 467 350 617 79 447 Nebraska 273 505 43 364 273 503 44 362 Nevada 459 832 83 596 451 817 84 584 New Hampshire 210 391 34 261 204 378 33 253 New Jersey 220 432 18 282 217 427 17 278 New Mexicof 334 607 66 437 344 620 73 448 New York 255 502 22 323 249 488 22 314 North Carolina 339 645 48 437 341 649 50 439 North Dakotaf,g 235 404 57 307 226 391 53 295 Ohio 448 834 77 578 441 822 74 567 Oklahomae 752 1,344 171 996 704 1,262 157 931 Oregone 368 679 63 467 364 671 63 461 Pennsylvania 383 737 43 484 375 721 43 473 Rhode Islandd 192 381 12 239 170 337 13 212 South Carolina 408 783 54 523 386 743 50 494 South Dakota 441 761 116 586 453 776 124 601 Tennessee 422 782 79 545 429 789 87 553 Texas 562 1,038 92 760 553 1,022 89 746 Utahe 201 373 27 287 206 377 32 292 Vermontd 197 372 26 243 180 331 33 222

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PRISONERS IN 20 1 7 | APRIL 20 1 9 11 TABLE 6 (continued) Imprisonment rates of sentenced prisoners under jurisdiction of state or federal correctional authorities per 100,000 U.S. residents, by jurisdiction and sex, 2016 and 2017 2016 2017 Jurisdiction Total Male Female Total adulta Total Male Female Total adulta Virginia 448 835 72 575 437 813 73 560 Washington 259 473 45 333 262 477 46 336 West Virginia 393 697 95 494 392 700 89 492 Wisconsin 383 721 48 492 391 732 53 501 Wyoming 408 703 100 534 429 742 103 560 Note: Jurisdiction refers to the legal authority of state or federal correctional ofcials over a prisoner, regardless of where the prisoner is held. Counts are for December 31 of each year and are based on prisoners with a sentence of more than one year. aImprisonment rate per 100,000 U.S. residents age 18 or older. bTotal and state estimates for 2016 include imputed counts for North Dakota, which did not submit 2016 National Prisoner Statistics (NPS) data. Total and state estimates for 2017 include imputed counts for New Mexico and North Dakota, which did not submit 2017 NPS data. See Methodology. cIncludes prisoners held in non-secure, privately operated community corrections facilities and juveniles held in contract facilities. dPrisons and jails form one integrated system. Data include total jail and prison populations. eState submitted updated 2016 population counts. fState did not submit 2017 NPS data. Counts were imputed for the calculation of 2017 rates and should not be compared to 2016 rates. gState did not submit 2016 NPS data. Counts were imputed for the calculation of 2016 rates and should not be compared to 2017 rates. Source: Bureau of Justice Statistics, National Prisoner Statistics, 2016 and 2017; and U.S. Census Bureau, post-censal resident population estimates for January 1 of the following calendar year.

Prison admissions and releases Correctional authorities released 3,600 fewer prisoners from state and federal prisons in 2017 than in 2016 The number of admissions to state and federal prisons was largely unchanged from 2016 to 2017 Te total number of prisoners released by state and federal correctional authorities decreased 1% Federal and state correctional authorities admitted a (down 3,600 releases), from 626,000 in 2016 to 622,400 total of 606,600 prisoners sentenced to more than one in 2017. Te BOP accounted for almost three-quarters year in 2017, including 418,600 new court commitments (71%) of the total change in that time, releasing 2,600 (table 7). (See Terms and defnitions.) Te 606,600 fewer prisoners in 2017. Indiana (down 2,900 releases), admissions in 2017 were similar to the number of Arkansas (down 1,900), Illinois (down 1,800), and prison admissions in 2016 (606,000). Te BOP admitted Delaware (down 1,300) had the largest declines in almost the same number of prisoners in 2017 as in the number of released prisoners from 2016 to 2017. 2016 (44,700). However, large decreases were observed Kentucky (up 2,000 releases), California (up 1,700), in admissions to state prisons from 2016 to 2017 in Louisiana (up 1,600), and South Dakota (up 1,000) had Tennessee (down 1,400 admissions), Illinois (down the largest increases in the number of persons released 1,200), Ohio (down 1,200), and Pennsylvania (down from their state prison facilities in 2017. 1,000) while large increases occurred in North Carolina (up 2,200), Oklahoma (up 1,500), Alabama (up 1,400), Four states that reported the type of prison release to and California (up 1,300). BJS in 2017 discharged more than half of their prisoners unconditionally. Post-custody community supervision Sixty-seven percent of state prisoners and 90% of federal was not required for the majority of released prisoners prisoners admitted in 2017 entered prison on new in Massachusetts (76% of releases were unconditional), court commitments. Tirty percent of state and 10% Rhode Island (70%), Florida (61%), and New Jersey (57%). of federal prisoners were admitted for post-custody supervision violations. States that admitted more than Most releases from the federal prison system were half of their prisoners for violations of conditions of reported as unconditional. Te federal parole system probation or parole in 2017 were Washington (71%), was eliminated under the Sentencing Reform Act of Idaho (71%), Vermont (65%), Utah (55%), Maine (53%), 1984, but federal courts were allowed to impose a term New Hampshire (50%), and Pennsylvania (50%). of supervised release afer imprisonment as part of a sentence. Because this supervised release term was not implemented under the jurisdiction of the federal prison system, the BOP reports prison releases as unconditional even though released prisoners may serve post-custody community supervision. PRISONERS IN 2017 | APRIL 2019 12 TABLE 7 Admissions and releases of sentenced prisoners under jurisdiction of state or federal correctional authorities, 2016 and 2017 Admissionsa Releasesb Percent 2017 conditional Percent 2016 2017 change, 2017 new court supervision 2016 2017 change, 2017 2017 Jurisdiction total total 2016–2017 commitments violationsc total total 2016–2017 unconditionald,e conditionale,f U.S. totalg 606,000 606,571 0.1% 418,579 174,210 626,019 622,377 -0.6% 160,596 446,785 Federale 44,682 44,708 0.1% 40,180 4,527 52,035 49,461 -4.9% 48,457 318 Stateg 561,318 561,863 0.1% 378,399 169,683 573,984 572,916 -0.2% 112,139 446,467 Alabama 10,749 12,170 13.2 8,045 1,624 12,711 13,624 7.2 3,130 8,808 Alaskah 1,804 1,580 -12.4 1,446 134 2,159 1,941 -10.1 460 1,476 Arizona 13,663 13,423 -1.8 10,787 2,557 13,857 14,075 1.6 2,332 11,610 Arkansas 9,911 8,971 -9.5 4,623 4,348 10,370 8,443 -18.6 752 7,610 Californiai 35,730 37,077 3.8 32,396 4,644 34,528 36,203 4.9 98 35,576 Colorado 8,707 9,638 10.7 6,038 3,600 8,934 9,669 8.2 1,116 8,419 Connecticuth 4,747 4,401 -7.3 3,658 606 5,618 5,169 -8.0 2,451 2,707 Delawareh,j 3,096 2,897 -6.4 2,237 646 4,041 2,736 -32.3 310 2,272 Floridak 29,038 28,189 -2.9 27,423 85 31,166 30,467 -2.2 18,703 11,313 Georgia 17,585 16,699 -5.0 14,567 2,124 15,053 15,210 1.0 6,713 8,320 Hawaiih 1,538 1,528 -0.7 876 652 1,666 1,834 10.1 345 781 Idaho 5,766 5,747 -0.3 1,671 4,076 5,479 5,395 -1.5 400 4,926 Illinois 25,661 24,468 -4.6 16,401 8,062 28,615 26,850 -6.2 3,982 22,763 Indiana 12,600 12,249 -2.8 9,240 2,888 14,561 11,708 -19.6 910 10,730 Iowa 5,541 5,619 1.4 3,790 1,773 5,305 5,632 6.2 1,182 4,378 Kansas 6,442 6,453 0.2 3,865 1,276 6,394 6,406 0.2 1,690 4,685 Kentucky 20,111 21,239 5.6 12,366 8,605 18,552 20,555 10.8 4,572 15,371 Louisiana 15,877 16,337 2.9 10,662 5,674 16,308 17,868 9.6 1,142 16,584 Maine 657 960 46.1 455 505 647 684 5.7 320 354 Marylandl 8,843 8,243 : 5,823 2,415 9,459 8,850 : 2,871 5,919 Massachusetts 2,059 2,141 4.0 1,909 223 2,458 2,309 -6.1 1,745 533 Michigan 12,573 12,013 -4.5 6,670 2,720 14,081 13,470 -4.3 557 10,486 Minnesota 8,027 8,195 2.1 4,804 3,391 8,254 8,092 -2.0 956 7,125 Mississippi 7,510 7,553 0.6 5,488 2,049 7,080 7,748 9.4 444 6,963 Missouri 18,426 18,551 0.7 9,816 8,729 18,410 18,431 0.1 1,528 16,779 Montana 2,666 2,644 -0.8 1,961 683 2,546 2,770 8.8 261 2,492 Nebraska 2,310 2,436 5.5 1,979 445 2,366 2,387 0.9 654 1,710 Nevadam 6,059 5,862 -3.3 4,990 794 5,778 6,548 13.3 2,401 4,100 New Hampshire 1,538 1,338 -13.0 668 670 1,601 1,409 -12.0 82 1,320 New Jersey 8,837 8,611 -2.6 6,189 2,422 9,685 8,959 -7.5 5,072 3,683 New Mexicon 3,615 3,848 : 2,461 1,387 3,631 3,631 : 989 2,626 New York 21,081 20,421 -3.1 12,594 7,727 22,047 21,667 -1.7 2,330 19,042 North Carolina 16,009 18,242 13.9 13,873 4,366 16,677 17,244 3.4 2,685 14,463 North Dakotao 1,590 1,570 : 904 665 1,583 1,627 : 216 1,407 Ohiop 22,792 21,602 -5.2 16,554 4,401 22,850 22,299 -2.4 8,889 13,246 Oklahoma 8,778 10,228 16.5 7,658 2,570 10,404 9,682 -6.9 2,973 6,623 Oregonq 5,020 5,566 : 3,707 1,717 4,712 5,428 : 35 5,185 Pennsylvania 20,326 19,297 -5.1 9,116 9,128 20,418 19,673 -3.6 3,151 16,321 Rhode Islandh 767 572 -25.4 482 90 939 875 -6.8 610 257 South Carolina 6,688 6,017 -10.0 4,922 1,087 6,709 6,847 2.1 2,239 4,494 South Dakota 2,891 3,896 34.8 1,507 499 2,832 3,859 36.3 311 2,467 Tennessee 12,898 11,541 -10.5 6,877 4,664 13,508 13,307 -1.5 5,080 8,136 Texas 77,385 76,877 -0.7 47,697 27,474 76,733 77,196 0.6 9,977 64,519 Utah 3,293 4,047 22.9 1,814 2,233 3,611 3,781 4.7 674 3,085

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PRISONERS IN 20 1 7 | APRIL 20 1 9 13 TABLE 7 (continued) Admissions and releases of sentenced prisoners under jurisdiction of state or federal correctional authorities, 2016 and 2017 Admissionsa Releasesb Percent 2017 conditional Percent 2016 2017 change, 2017 new court supervision 2016 2017 change, 2017 2017 Jurisdiction total total 2016–2017 commitments violationsc total total 2016–2017 unconditionald,e conditionale,f Vermonth,o 1,715 1,737 1.3 607 1,130 1,733 1,795 3.6 284 1,504 Virginiar 12,163 12,163 0.0 12,030 133 12,648 12,698 0.4 1,054 11,537 Washingtonp 25,055 25,483 1.7 7,385 18,089 24,940 25,658 2.9 2,217 23,393 West Virginia 3,584 3,590 0.2 1,991 1,372 3,543 3,652 3.1 849 2,275 Wisconsin 6,600 6,865 4.0 4,557 2,282 5,743 5,592 -2.6 212 5,324 Wyoming 997 1,069 7.2 820 249 1,041 963 -7.5 185 770 Note: Jurisdiction refers to the legal authority of state or federal correctional ofcials over a prisoner, regardless of where the prisoner is held. Counts cover January 1 through December 31 for each year and are based on prisoners admitted to or released from state or federal correctional authorities with a sentence of more than one year. :Not calculated. /Not reported. aExcludes transfers, escapes, and those absent without leave. Includes other conditional-release violators, returns from appeal or bond, and other admissions. See Methodology. bExcludes transfers, escapes, and those absent without leave. Includes deaths, releases to appeal or bond, and other releases. See Methodology. cIncludes all conditional-release violators returned to prison from post-custody community supervision, including parole and probation, either for violations of conditions of release or for new crimes. dIncludes expirations of sentence, commutations, and other unconditional releases. eIncludes prisoners held in non-secure, privately operated community corrections facilities and juveniles held in contract facilities. The Federal Bureau of Prisons reports prison releases as unconditional even though prisoners may serve post-custody community supervision. The 318 conditional releases are persons who were sentenced before the 1984 Sentencing Reform Act that eliminated federal parole. fIncludes releases to probation, supervised mandatory releases, and other unspecifed conditional releases. gU.S. total and state estimates for 2016 include imputed counts for North Dakota and Oregon, which did not submit 2016 National Prisoner Statistics (NPS) data on admissions or releases. U.S. total and state estimates for 2017 include imputed counts for New Mexico and North Dakota, which did not submit 2017 NPS data on admissions and releases. See Methodology. hPrisons and jails form one integrated system. Data include total jail and prison populations. iCalifornia reported that 16,887 prisoners were released as transfers in 2016. These prisoners were released from state jurisdiction to post-custody supervision by county authorities. BJS counted these as conditional releases. jReleases include ofenders who received a combined sentence of prison and probation of more than one year. kFlorida does not report prison admissions for technical violations. All admissions represent new sentences, with the 85 supervision-violation admissions representing persons who committed new crimes while on post-custody community supervision. lDue to implementation concerns with a new information system, Maryland’s counts of admissions and releases for 2017 are estimates and should not be compared to earlier years. mAdmissions include local jail inmates admitted to the Nevada Department of Corrections due to medical, behavioral, protective, or local stafng issues and persons ordered by judges to serve 6 months or less in prison prior to actual sentencing for felonies. nState did not submit 2017 NPS data on admissions or releases. Total and detailed types of admissions and releases were imputed from counts reported in 2016 and included in U.S. and state totals. All admissions and releases were included in the reported 2016 data, regardless of sentence length. Estimates of admissions and releases in 2017 are not comparable to previous years’ data. See Methodology and Jurisdiction notes. oState did not submit 2016 or 2017 NPS data on admissions or releases. Total and detailed types of admissions and releases were imputed and included in U.S. and state totals. See Methodology and Jurisdiction notes. pIncludes all admissions and releases from state prison, regardless of sentence length. See Jurisdiction notes. qState did not submit 2016 NPS data on admissions or releases. Total and detailed types of admissions and releases were imputed and included in U.S. and state totals. Estimates of admissions and releases in 2016 are not comparable to reported 2017 data. See Methodology and Jurisdiction notes. rAdmission and release counts are preliminary estimates for fscal year 2017. Counts for 2016 have been updated. Source: Bureau of Justice Statistics, National Prisoner Statistics, 2016 and 2017.

PRISONERS IN 2017 | APRIL 2019 14 Other selected fndings Non-U.S. citizens

Te remainder of this report presents characteristics of In 2017, jurisdictions reported non-U.S. citizens held prisoner demographics, ofenses, facilities, and other in both publicly and privately operated facilities. institutional correctional systems. Tese statistics are Counts of non-U.S. citizens from 2017 are not presented in a series of tables, with bulleted highlights. comparable to previously published counts (table 10).

Non-citizens made up roughly the same portion of the Demographic characteristics among sentenced prison population (7.6%) as of the general population prisoners in the U.S. (7.0% per the Census Bureau, not shown).

More than a tenth (12%) of prisoners sentenced Twenty percent of federal prisoners (35,900 of to more than one year in state or federal prison at 183,100) at year-end 2017 were non-U.S. citizens year-end 2017 were age 55 or older (table 8). (excluding persons detained by the U.S. Department of At year-end 2017, an estimated 7% of white males in Homeland Security). state and federal prison were ages 18 to 24, compared Data from 45 states show that an estimated 69,300 to 12% of black and 11% of Hispanic males. non-U.S. citizens were held in public and private state Sixteen percent of white male prisoners were age prison facilities at year-end 2017. 55 or older, compared to 11% of black and 8% of Twenty-seven percent of sentenced non-U.S. citizens Hispanic male prisoners. in state or federal prison were females. Seven percent of white female prisoners were ages Prisoners age 17 or younger 18 to 24, compared to 11% each of black and Hispanic female prisoners. On December 31, 2017, states held fewer than More than twice as many white females (49,100 900 prisoners age 17 or younger in adult facilities prisoners) as black (19,600) or Hispanic (19,400) (table 11). females were in state and federal prisons at Te BOP held 42 prisoners age 17 or younger in year-end 2017. private contract facilities at year-end 2017. More than 2% of black male U.S. residents were in state Ofense characteristics of state prisoners or federal prison on December 31, 2017 (2,336 per 100,000 black residents) (table 9). More than half (55%, or 710,900) of all state prisoners Black males ages 18 to 19 were about 12 times more sentenced to more than one year were serving a likely to be imprisoned than white males of the same sentence for a violent ofense on their current term age. Tis age group had the highest black-to-white of imprisonment at year-end 2016 (the most recent racial disparity in 2017. year for which state prison ofense-data are available) (tables 12 and 13). Black males age 65 or older were 4.5 times more likely to be imprisoned than white males age 65 or older. At year-end 2016, an estimated 14% of sentenced Tis age group had the lowest black-to-white racial prisoners (182,400) were serving time in state prison disparity in 2017. for murder or non-negligent manslaughter, and an additional 13% of state prisoners (164,800) had been Te imprisonment rate for black females (92 per sentenced for rape or sexual assault. 100,000 black female residents) was almost double that for white females (49 per 100,000 white Among sentenced prisoners under the jurisdiction of female residents). state correctional authorities on December 31, 2016, about 15% (190,100 prisoners) had been convicted of a Among females ages 18 to 19, black females were drug ofense as their most serious crime. 4.4 times more likely than white females and 1.8 times more likely than Hispanic females to be imprisoned At year-end 2016, an estimated 60% of Hispanics and in 2017. blacks serving more than one year in state prison had been sentenced for a violent ofense, compared to 48% of white prisoners.

A quarter (25%) of females serving time in state prison on December 31, 2016, had been convicted of a drug ofense, compared to 14% of males. PRISONERS IN 2017 | APRIL 2019 15 Ofense characteristics of federal prisoners Twenty-one states that reported data to the NPS did not hold prisoners in privately operated facilities at Almost half of sentenced federal prisoners on year-end 2017. September 30, 2017 (the most recent date for which federal ofense data are available) were serving time for Five states housed at least 20% of their prison drug trafcking (tables 14 and 15). population in privately operated facilities at year-end 2017: Montana (38%), Hawaii (28%), Tennessee (26%), More than a third (38%, or 64,300) of federal prisoners Oklahoma (26%), and Arizona (20%). were imprisoned for a public-order ofense, including 17% (28,300) for a weapons ofense and 7% (11,100) Prisoners held in local jails for an adjudicated immigration ofense. At year-end 2017, a total of 80,900 prisoners (5% of the More than half of female federal prisoners were state and federal prisoner population) were held in the serving a sentence for drug trafcking, compared to custody of local jails for 34 states or the BOP. less than half of males. Te number of prisoners held in local jails decreased A larger proportion of white ofenders in federal by 3% at year-end 2017 (down 2,700 prisoners), from prison (46%) were serving time for a public-order 83,700 prisoners at year-end 2016. ofense than black (36%) or Hispanic (36%) ofenders. Six states held at least 20% of their state prisoners in More than half of Hispanic federal prisoners in 2017 local jail facilities at year-end 2017: Louisiana (55%), were serving time for drug trafcking, and 20% were Kentucky (49%), Mississippi (27%), Tennessee (24%), imprisoned for an adjudicated immigration ofense. Utah (22%), and Virginia (20%).

Prison capacity U.S. military and territories

At year-end 2017, a total of 13 states and the BOP At year-end 2017, the U.S. military held 1,000 persons met or exceeded the maximum capacity of their sentenced to more than one year under its correctional prison facilities, and 24 states and the BOP had a authority (table 18). total number of prisoners in their custody that met or exceeded their minimum number of beds (table 16). Almost half (45%) of ofenders under military correctional authority had served in the U.S. Army Jurisdictions with more prisoners in custody than the before imprisonment. maximum number of beds that their facilities were designed, rated, or operationally intended to have Te U.S. Army had custody of 66% of all military included Nebraska (127%), Iowa (115%), the BOP personnel sentenced to more than one year on (114%), Delaware (110%), Colorado (108%), and December 31, 2017, and the U.S. Navy held 27%. Virginia (102%). Of military personnel whose ofense was known and who had been sentenced to any term of imprisonment Private prisons under military jurisdiction, 61% had committed At year-end 2017, 8% of state and federal prisoners violent ofenses, including 46% incarcerated for violent were held in privately operated facilities that were sexual ofenses, 7% for murder, and 7% for assault under the jurisdiction of 27 states or the BOP (table 19). (table 17). Almost three-quarters (71%) of the total military Federal prisoners held in private prisons decreased by prison population were serving time for committing 6,600 prisoners (down 19%) from year-end 2016 to violent or non-violent sex ofenses, including sexual year-end 2017. misconduct. Private prison facilities, including non-secure Te fve U.S. territories or commonwealths held a community corrections centers and home total of 9,500 persons in the custody of correctional confnement, held 15% of the federal prison authorities at year-end 2017 (table 20). population on December 31, 2017.

PRISONERS IN 2017 | APRIL 2019 16 TABLE 8 Percent of sentenced prisoners under jurisdiction of state or federal correctional authorities, by sex, race, Hispanic origin, and age, December 31, 2017 Male Female Age group Total All male Whitea Blacka Hispanic Othera,b All female Whitea Blacka Hispanic Othera,b Totalc 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 18–19 0.8 0.8 0.4 1.1 0.8 0.7 0.5 0.2 1.0 0.5 0.6 20–24 9.4 9.5 6.4 11.1 10.5 9.9 8.2 6.5 10.2 10.3 9.4 25–29 15.8 15.7 13.1 16.8 17.1 16.2 17.8 17.3 17.3 19.6 17.6 30–34 16.1 15.8 15.2 15.4 17.6 17.5 19.2 19.3 16.8 20.6 20.6 35–39 15.5 15.4 15.1 15.0 16.9 15.8 17.0 17.5 15.3 18.0 18.2 40–44 11.8 11.8 11.7 11.7 12.7 12.6 11.9 12.2 11.2 11.3 11.8 45–49 10.2 10.2 11.4 9.9 9.4 9.8 10.1 10.6 10.2 8.8 9.4 50–54 8.4 8.5 10.1 8.3 6.7 7.5 7.5 7.7 8.7 5.7 6.5 55–59 5.9 6.0 7.6 5.8 4.2 4.9 4.4 4.7 5.1 3.1 4.1 60–64 3.2 3.3 4.3 3.0 2.3 2.5 2.0 2.0 2.0 1.5 1.8 65 or older 2.8 2.9 4.6 1.9 1.9 2.4 1.4 1.6 1.0 1.0 1.2 Number of sentenced prisonersd 1,439,800 1,334,800 387,400 456,300 317,100 173,900 105,000 49,100 19,600 19,400 17,000 Note: Jurisdiction refers to the legal authority of state or federal correctional ofcials over a prisoner, regardless of where the prisoner is held. Counts are based on prisoners with a sentence of more than one year under the jurisdiction of state or federal correctional ofcials. Federal data include prisoners held in non-secure, privately operated community corrections facilities and juveniles held in contract facilities. Totals include imputed counts for New Mexico and North Dakota, which did not submit 2017 National Prisoner Statistics data. Details may not sum to totals. See Methodology. aExcludes persons of Hispanic/Latino origin (e.g., white refers to non-Hispanic white; black refers to non-Hispanic black). See Methodology. bIncludes Asians, Native Hawaiians, and Other Pacifc Islanders; American Indians and Alaska Natives; and persons of two or more races. cIncludes persons of all ages. dEstimates are rounded to the nearest 100. Source: Bureau of Justice Statistics, National Prisoner Statistics, 2017; Federal Justice Statistics Program, 2017 (preliminary); National Corrections Reporting Program, 2016; and Survey of Prison Inmates, 2016.

TABLE 9 Imprisonment rates of sentenced state and federal prisoners per 100,000 U.S. residents of corresponding sex, race, Hispanic origin, and age groups, December 31, 2017 Male Female Age group Total All male Whitea Blacka Hispanic Othera,b All female Whitea Blacka Hispanic Othera,b Totalc 440 829 397 2,336 1,054 1,257 63 49 92 66 114 18–19 126 235 69 808 248 294 11 6 26 14 16 20–24 614 1,120 410 3,153 1,326 1,572 80 57 129 85 144 25–29 969 1,746 774 4,444 2,129 2,388 162 135 200 163 250 30–34 1,051 1,899 943 5,007 2,330 2,820 185 156 224 187 300 35–39 1,040 1,912 958 5,212 2,312 2,769 167 143 208 161 276 40–44 866 1,615 808 4,552 1,929 2,436 126 107 171 108 197 45–49 704 1,320 695 3,688 1,572 1,962 100 82 148 91 158 50–54 574 1,091 575 3,101 1,314 1,727 74 56 121 68 126 55–59 386 751 394 2,182 1,005 1,221 41 29 70 41 84 60–64 229 458 236 1,336 731 715 20 13 35 26 37 65 or older 78 168 100 449 316 318 5 4 9 7 9 Number of sentenced prisonersd 1,439,800 1,334,800 387,400 456,300 317,100 173,900 105,000 49,100 19,600 19,400 17,000 Note: Counts based on prisoners with a sentence of more than one year under the jurisdiction of state or federal correctional ofcials. Imprisonment rate is the number of prisoners under state or federal jurisdiction with a sentence of more than one year per 100,000 U.S. residents of corresponding sex, race/Hispanic origin, and age. Resident population estimates are from the U.S. Census Bureau for January 1, 2018. Totals include imputed counts for New Mexico and North Dakota, which did not submit 2017 National Prisoner Statistics data. See Methodology. aExcludes persons of Hispanic/Latino origin (e.g., white refers to non-Hispanic white; black refers to non-Hispanic black). See Methodology. bIncludes Asians, Native Hawaiians, and Other Pacifc Islanders; American Indians and Alaska Natives; and persons of two or more races. cIncludes persons of all ages. dRace/Hispanic origin totals are rounded to the nearest 100 to refect estimation of sentenced prisoners. Source: Bureau of Justice Statistics, National Prisoner Statistics, 2017; Federal Justice Statistics Program, 2017 (preliminary); National Corrections Reporting Program, 2016; Survey of Prison Inmates, 2016; and U.S. Census Bureau, post-censal resident population estimates for January 1, 2018.

PRISONERS IN 2017 | APRIL 2019 17 TABLE 10 Non-U.S. citizen prisoners in the custody of publicly or privately operated federal or state prisons, not including jails, by sex, December 31, 2017 Non-U.S. citizen prisonersa,b Non-U.S. citizen prisoners sentenced to more than 1 yeara Percent of prison Percent of sentenced Jurisdiction Total Malec Femalec populationd Total Malec Femalec populationd U.S. totale 105,129 77,993 2,959 7.6% 99,855 72,943 2,735 7.5% Federalf,g 35,857 34,314 1,543 19.7% 31,339 29,964 1,375 18.6% Statee 69,272 43,679 1,416 5.8% 68,516 42,979 1,360 5.8% Alabama 817 730 87 3.7 784 697 87 3.9 Alaskah 119 113 6 2.7 56 53 3 3.0 Arizonag 4,018 3,889 129 9.6 3,930 3,806 124 9.7 Arkansas 264 256 8 1.7 264 256 8 1.7 Californiai 24,177 / / 18.8 24,177 / / 18.9 Coloradog 1,525 1,464 61 7.8 1,525 1,464 61 7.8 Connecticuth 387 371 16 2.8 268 260 8 2.9 Delawareh 266 249 17 4.3 183 182 1 4.6 Floridag 5,776 5,613 163 6.0 5,776 5,613 163 6.0 Georgiag 2,552 2,431 121 5.2 2,550 2,429 121 5.3 Hawaiih 128 122 6 2.5 83 80 3 2.6 Idaho 340 331 9 4.5 294 285 9 4.3 Illinois 1,555 1,517 38 3.8 1,555 1,517 38 3.8 Indianag 560 546 14 2.2 560 546 14 2.2 Iowag 190 180 10 2.1 190 180 10 2.1 Kansasg 314 303 11 3.2 306 296 10 3.3 Kentucky 173 170 3 1.4 173 170 3 1.4 Louisiana 120 119 1 0.8 120 119 1 0.8 Maine 38 38 0 1.6 31 31 0 1.8 Maryland 637 624 13 3.2 634 621 13 3.4 Massachusetts 691 665 26 7.9 615 603 12 7.7 Michigang 555 540 15 1.4 555 540 15 1.4 Minnesotag 425 413 12 4.7 425 413 12 4.5 Mississippi 21 21 0 0.2 19 19 0 0.1 Missourij 239 233 6 0.7 239 233 6 0.7 Montanag 16 15 1 0.5 16 15 1 0.5 Nebraskag 208 206 2 4.1 208 206 2 4.1 Nevadag 1,210 1,166 44 9.1 1,202 1,159 43 8.8 New Hampshire / / / : / / / : New Jerseyg 1,280 1,254 26 6.6 1,280 1,254 26 6.6 New Mexicok / / / : / / / : New Yorkg 4,330 4,192 138 8.7 4,330 4,192 138 8.8 North Carolina 1,248 1,213 35 3.4 1,241 1,206 35 3.5 North Dakotak / / / : / / / : Ohiog,l 477 458 19 0.9 477 458 19 0.9 Oklahomam 159 156 3 0.6 151 148 3 0.6 Oregonn 1,473 / / 10.0% / / / : Pennsylvania 2,038 1,997 41 4.3 1,985 1,944 41 4.2 Rhode Islandh / / / : / / / : South Carolinag 445 428 17 2.3 441 425 16 2.3 South Dakotag 86 78 8 2.2 86 78 8 2.2 Tennessee 368 356 12 1.7 368 356 12 1.7 Texasg 8,826 8,595 231 5.9 8,746 8,518 228 6.0 Utahj 356 350 6 7.1 356 350 6 7.2

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PRISONERS IN 2017 | APRIL 2019 18 TABLE 10 (continued) Non-U.S. citizen prisoners in the custody of publicly or privately operated federal or state prisons, not including jails, by sex, December 31, 2017 Non-U.S. citizen prisonersa,b Non-U.S. citizen prisoners sentenced to more than 1 yeara Percent of prison Percent of sentenced Jurisdiction Total Malec Femalec populationd Total Malec Femalec populationd Vermonth 8 7 1 0.6 3 2 1 0.3 Virginia 865 844 21 2.9 865 844 21 2.9 Washington 746 725 21 4.2 745 724 21 4.2 West Virginia 24 23 1 0.4 24 23 1 0.4 Wisconsin 476 463 13 2.0 463 451 12 2.1 Wyomingg 53 52 1 2.2 53 52 1 2.2 Note: Defnition of non-U.S. citizen varies across jurisdictions. Use caution when interpreting these statistics. Unless otherwise noted, citizenship status is based on self-report of the prisoner upon admission to prison. Some jurisdictions use a prisoner’s reported country of birth to determine current citizenship. BJS changed the way it measured citizenship for the 2017 reference year, requesting that National Prisoner Statistics (NPS) respondents include all non-U.S. citizens in the physical custody of state and federal correctional authorities and those held in private prisons, while excluding prisoners held in local jails and in the custody of other jurisdictions. Data collected in the 2017 NPS should not be compared to previous years’ data. See Methodology. :Not calculated. /Not reported. aUnless otherwise noted, citizenship status is based on self-reporting by prisoners at time of admission. bIncludes unsentenced prisoners and those of all sentence lengths. cU.S. and state totals for non-U.S. citizens by sex exclude California and Oregon, which did not report citizenship counts by sex. dPrison population count is the sum of persons held in the custody of state and federally operated facilities and each jurisdiction’s private prison facilities. In 2017, the total custody population in publicly and privately operated state and federal correctional facilities was 1,379,579 (1,197,432 state and 182,147 federal), and the sentenced custody population in those same facilities was 1,339,729 (1,171,372 state and 168,357 federal). These counts exclude custody populations for non-reporting states (New Hampshire, New Mexico, North Dakota, and Rhode Island). eTotal U.S. and state counts of non-U.S. citizen prisoners for 2017, and male and female totals, are an undercount due to the exclusion of data from several states that were unable to report this information. The 92.4% of prisoners who are not counted as non-citizens are not necessarily all U.S. citizens, as some may be of unknown citizenship status. fCitizenship data from the 2017 Federal Bureau of Prisons (BOP) should not be compared to previous years’ data. Federal counts are based on country of current citizenship as recorded in the BOP data system and exclude persons detained by U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement (ICE), or U.S. Customs and Border Protection. In previous years, BOP has provided counts of non-citizens to NPS that were based on a prisoner’s country of birth. gCitizenship data were subject to verifcation by an external data source. hPrisons and jails form one integrated system. Data include total jail and prison populations. iCitizenship data were extracted from a state report (https://sites.cdcr.ca.gov/research/wp-content/uploads/sites/9/2018/07/Ofender-Data-Points-as-of- December-31-2017-1.pdf ) and represented the country of birth as reported by prisoners. jEstimate not based on self-reported citizenship status but on the number of ofenders with ICE detainers. kState did not provide 2017 NPS data. Counts of non-U.S. citizens were imputed based on previous years’ data and included in the state and U.S. totals. See Methodology. lCounts of non-U.S. citizens exclude those held in privately operated halfway houses. mCitizenship based on prisoner-reported country of birth. nCitizenship data were extracted from a state report (https://www.oregon.gov/doc/OC/docs/pdf/IB-54-ICE Criminal Aliens.pdf ) and was unavailable by sex. Source: Bureau of Justice Statistics, National Prisoner Statistics, 2017.

PRISONERS IN 2017 | APRIL 2019 19 TABLE 11 Prisoners age 17 or younger in the custody of publicly or privately operated federal or state prisons, not including jails, by sex, December 31, 2017 Prisoners age 17 or younger Prisoners age 17 or younger Jurisdiction Total Male Female Jurisdiction Total Male Female U.S. total 935 893 42 Mississippi 18 18 0 Federala 42 36 6 Missouri 11 9 2 State 893 857 36 Montana 0 0 0 Alabama 25 24 1 Nebraska 5 5 0 Alaskab 13 12 1 Nevada 22 22 0 Arizona 54 53 1 New Hampshire 0 0 0 Arkansas 24 23 1 New Jersey 0 0 0 California / / / New Mexicoc / / / Colorado 8 8 0 New York 67 65 2 Connecticutb 55 53 2 North Carolina 76 72 4 Delawareb 11 11 0 North Dakotac / / / Florida 133 131 2 Ohio 32 31 1 Georgia 62 61 1 Oklahoma 12 10 2 Hawaiib 0 0 0 Oregon 0 0 0 Idaho 0 0 0 Pennsylvania 27 26 1 Illinois 0 0 0 Rhode Island 0 0 0 Indiana 24 24 0 South Carolina 35 33 2 Iowa 10 10 0 South Dakota 0 0 0 Kansas 0 0 0 Tennessee 7 7 0 Kentucky 0 0 0 Texas 42 34 8 Louisiana 21 18 3 Utah 1 1 0 Maine 0 0 0 Vermontb 2 2 0 Maryland 13 13 0 Virginia 12 12 0 Massachusetts 0 0 0 Washington 0 0 0 Michigan 40 39 1 West Virginia 0 0 0 Minnesota 8 8 0 Wisconsin 22 21 1 Wyoming 1 1 0 Note: In 2017, BJS began requesting that National Prisoner Statistics (NPS) respondents include all persons age 17 or younger in the physical custody of state and federal correctional authorities and those held in private prisons, while excluding prisoners held in local jails and in the custody of other jurisdictions. Data collected in the 2017 NPS should not be compared to previous years’ data. See Methodology. /Not reported. aThe Federal Bureau of Prisons holds prisoners age 17 or younger in private contract facilities; 42 such prisoners were housed in contract facilities in 2017. bPrisons and jails form one integrated system. Data include total jail and prison populations. cState did not provide any 2017 NPS data. See Methodology. Source: Bureau of Justice Statistics, National Prisoner Statistics, 2017.

PRISONERS IN 2017 | APRIL 2019 20 TABLE 12 Sentenced prisoners under jurisdiction of state correctional authorities, percentages by most serious ofense, sex, race, and Hispanic origin, December 31, 2016 Most serious ofense All prisonersa Male Female Whiteb Blackb Hispanic Total 100% 100% 100% 100% 100% 100% Violent 55.2% 56.5% 37.5% 47.6% 60.1% 60.4% Murderc 14.2 14.3 12.0 10.5 16.3 15.5 Negligent manslaughter 1.3 1.3 2.5 1.3 0.8 1.0 Rape/sexual assault 12.8 13.6 2.4 16.4 8.3 14.0 Robbery 13.1 13.5 8.0 7.2 19.3 12.7 Aggravated/simple assault 10.5 10.6 8.8 9.1 11.8 13.3 Other 3.3 3.2 3.8 3.1 3.7 3.8 Property 17.5% 16.9% 26.4% 23.8% 14.5% 12.3% Burglary 9.4 9.6 7.1 11.5 8.7 7.1 Larceny-theft 3.4 3.0 8.4 5.4 3.0 2.1 Motor vehicle theft 0.7 0.7 0.8 1.0 0.6 0.9 Fraud 2.0 1.6 7.1 2.9 1.2 1.0 Other 2.0 1.9 2.9 2.9 1.0 1.1 Drug 14.8% 14.0% 24.8% 15.4% 13.8% 13.9% Drug possession 3.5 3.2 7.3 4.1 3.2 3.2 Otherd 11.2 10.7 17.6 11.3 10.6 10.7 Public order 11.9% 12.0% 10.2% 12.4% 11.2% 13.1% Weapons 4.2 4.4 1.7 2.6 5.4 5.3 DUI 1.9 1.9 2.6 2.7 0.7 2.6 Othere 5.8 5.7 5.8 7.1 5.0 5.1 Other/unspecifedf 0.6% 0.6% 1.1% 0.8% 0.4% 0.4% Total number of sentenced prisonersg 1,288,500 1,194,000 94,400 401,100 419,700 278,400 Note: Jurisdiction refers to the legal authority of state or federal correctional ofcials over a prisoner, regardless of where the prisoner is held. Estimates are based on state prisoners with a sentence of more than one year. Details may not sum to totals due to rounding and missing ofense data. See Methodology. aAlso includes Asians, Native Hawaiians, and Other Pacifc Islanders; American Indians and Alaska Natives; and persons of two or more races. bExcludes persons of Hispanic/Latino origin (e.g., white refers to non-Hispanic white; black refers to non-Hispanic black). See Methodology. cIncludes non-negligent manslaughter. dIncludes trafcking and other drug ofenses. eIncludes court ofenses; commercialized vice, morals, and decency ofenses; liquor-law violations; probation and parole violations; and other public-order ofenses. fIncludes juvenile ofenses and other unspecifed ofense categories. gEstimates are rounded to the nearest 100. Source: Bureau of Justice Statistics, National Prisoner Statistics, 2016; National Corrections Reporting Program, 2016; and Survey of Prison Inmates, 2016.

PRISONERS IN 2017 | APRIL 2019 21 TABLE 13 Number of sentenced prisoners under jurisdiction of state correctional authorities, by most serious ofense, sex, race, and Hispanic origin, December 31, 2016 Most serious ofense All prisonersa Male Female Whiteb Blackb Hispanic Total 1,288,466 1,194,000 94,400 401,100 419,700 278,400 Violent 710,900 675,200 35,400 190,900 252,400 168,100 Murderc 182,400 171,100 11,300 41,900 68,600 43,200 Negligent manslaughter 17,300 15,000 2,300 5,300 3,200 2,800 Rape/sexual assault 164,800 162,400 2,300 65,600 34,600 39,000 Robbery 168,800 161,200 7,600 28,900 81,100 35,300 Aggravated/simple assault 135,400 127,100 8,300 36,500 49,500 37,200 Other 42,100 38,600 3,600 12,600 15,300 10,700 Property 226,100 201,300 24,900 95,400 61,000 34,200 Burglary 121,300 114,500 6,700 46,000 36,400 19,900 Larceny-theft 44,000 36,200 8,000 21,800 12,700 5,900 Motor vehicle theft 9,600 8,900 800 4,000 2,400 2,600 Fraud 25,900 19,300 6,700 11,800 5,000 2,700 Other 25,200 22,500 2,800 11,800 4,400 3,100 Drug 190,100 166,800 23,500 61,600 57,900 38,600 Drug possession 45,300 38,500 6,900 16,300 13,300 8,800 Otherd 144,800 128,300 16,600 45,300 44,500 29,800 Public order 153,100 143,500 9,600 49,900 46,900 36,400 Weapons 54,400 52,700 1,600 10,500 22,700 14,800 DUI 24,600 22,100 2,500 11,000 3,100 7,300 Othere 74,100 68,600 5,500 28,300 21,100 14,300 Other/unspecifedf 8,200 7,200 1,000 3,300 1,500 1,100 Note: Jurisdiction refers to the legal authority of state or federal correctional ofcials over a prisoner, regardless of where the prisoner is held. Estimates are based on state prisoners with a sentence of more than one year. Estimates are rounded to the nearest 100. Details may not sum to totals due to rounding and missing ofense data. See Methodology. aAlso includes Asians, Native Hawaiians, and Other Pacifc Islanders; American Indians and Alaska Natives; and persons of two or more races. bExcludes persons of Hispanic/Latino origin (e.g., white refers to non-Hispanic white; black refers to non-Hispanic black). See Methodology. cIncludes non-negligent manslaughter. dIncludes trafcking and other drug ofenses. eIncludes court ofenses; commercialized vice, morals, and decency ofenses; liquor-law violations; probation and parole violations; and other public-order ofenses. fIncludes juvenile ofenses and other unspecifed ofense categories. Source: Bureau of Justice Statistics, National Prisoner Statistics, 2016; National Corrections Reporting Program, 2016; and Survey of Prison Inmates, 2016.

PRISONERS IN 2017 | APRIL 2019 22 TABLE 14 Prisoners who received a sentence of any length in the custody of publicly or privately operated federal correctional facilities, percentages by most serious ofense, sex, race, and Hispanic origin, September 30, 2017 Most serious ofense All prisonersa Male Female Whiteb,c Blackb,c Hispanicc Total 100% 100% 100% 100% 100% 100% Violent 7.9% 8.1% 4.8% 7.0% 10.6% 2.4% Homicided 1.6 1.7 1.3 0.7 2.6 0.4 Robbery 3.8 4.0 1.8 4.5 5.8 1.0 Other 2.4 2.5 1.7 1.8 2.1 1.0 Property 5.9% 5.1% 17.4% 8.5% 6.3% 2.8% Burglary 0.2 0.2 0.1 0.1 0.4 0.0 Fraud 4.6 3.9 14.8 6.7 4.9 2.4 Other 1.0 1.0 2.4 1.7 1.0 0.4 Druge 47.3% 46.6% 56.8% 37.5% 46.9% 58.2% Public order 38.5% 39.8% 20.4% 46.2% 36.0% 36.2% Immigrationf 6.7 6.9 3.2 0.6 0.3 19.9 Weapons 17.0 17.9 4.2 14.3 26.7 8.5 Otherg 14.9 15.0 13.0 31.3 8.9 7.8 Other/unspecifedh 0.4% 0.4% 0.6% 0.8% 0.3% 0.3% Total number of sentenced prisonersi 166,800 155,700 11,100 46,100 61,800 53,200 Note: Counts are based on prisoners who were convicted and sentenced to any length of time, including those sentenced to one year or less, in the custody of publicly or privately operated federal correctional facilities on September 30, 2017. Details may not sum to totals due to rounding. See Methodology. aAlso includes Asians, Native Hawaiians, and Other Pacifc Islanders; American Indians and Alaska Natives; and persons of two or more races. bExcludes persons of Hispanic/Latino origin (e.g., white refers to non-Hispanic white; black refers to non-Hispanic black). See Methodology. cRace/Hispanic origin data are based on administrative data and self-reports from BJS surveys. dIncludes murder and negligent and non-negligent manslaughter. eIncludes trafcking, possession, and other drug ofenses. More than 99% of federal drug ofenders were sentenced for trafcking. fIncludes illegal entry, smuggling and importing non-citizens, and holds for immigration ofcials. gIncludes court ofenses; commercialized vice, morals, and decency ofenses; liquor-law violations; probation and parole violations; and other public-order ofenses. hIncludes ofenses not classifed. iEstimates are rounded to the nearest 100. Source: Bureau of Justice Statistics, Federal Justice Statistics Program, 2017 (preliminary).

PRISONERS IN 2017 | APRIL 2019 23 TABLE 15 Prisoners who received a sentence of any length in the custody of publicly or privately operated federal correctional facilities, numbers by most serious ofense, sex, race, and Hispanic origin, September 30, 2017 Most serious ofense All prisonersa Male Female Whiteb,c Blackb,c Hispanicc Totald 166,776 155,679 11,097 46,100 61,800 53,200 Violent 13,100 12,600 500 3,200 6,500 1,300 Homicidee 2,700 2,600 100 300 1,600 200 Robbery 6,400 6,200 200 2,100 3,600 600 Other 4,000 3,900 200 800 1,300 500 Property 9,800 7,900 1,900 3,900 3,900 1,500 Burglary 400 400 10 100 300 20 Fraud 7,700 6,100 1,600 3,100 3,000 1,300 Other 1,800 1,500 300 800 600 200 Drugf 78,800 72,500 6,300 17,300 29,000 31,000 Public order 64,300 62,000 2,300 21,300 22,200 19,300 Immigrationg 11,100 10,700 400 300 200 10,600 Weapons 28,300 27,900 500 6,600 16,500 4,500 Other 24,800 23,400 1,400 14,400 5,500 4,100 Other/unspecifedh 700 700 100 400 200 200 Note: Counts are based on prisoners who were convicted and sentenced to any length of time, including those sentenced to one year or less, in the custody of publicly or privately operated federal correctional facilities on September 30, 2017. Details may not sum to totals due to rounding. See Methodology. aAlso includes Asians, Native Hawaiians, and Other Pacifc Islanders; American Indians and Alaska Natives; and persons of two or more races. bExcludes persons of Hispanic/Latino origin (e.g., white refers to non-Hispanic white; black refers to non-Hispanic black). See Methodology. cRace/Hispanic origin data are not adjusted to self-reported data. dRace/Hispanic origin totals are rounded to the nearest 100 to accommodate diferences in data collection techniques between jurisdictions. eIncludes murder and negligent and non-negligent manslaughter. fIncludes trafcking, possession, and other drug ofenses. More than 99% of federal drug ofenders were sentenced for trafcking. gIncludes illegal entry, smuggling and importing non-citizens, and holds for immigration ofcials. hIncludes ofenses not classifed. Source: Bureau of Justice Statistics, Federal Justice Statistics Program, 2017 (preliminary).

PRISONERS IN 2017 | APRIL 2019 24 TABLE 16 Prison facility capacity, custody population, and percent capacity, December 31, 2017 Type of capacity measure Custody Custody population as a percent of— Jurisdiction Rated Operational Design population Lowest capacity Highest capacity Federala 135,792 … … 155,006 114.1% 114.1% State Alabamab … 25,784 12,852 21,570 167.8 83.7 Alaskac 4,838 … 4,664 4,378 93.9 90.5 Arizonad 38,098 44,003 38,098 41,964 110.1 95.4 Arkansas 16,505 16,544 15,721 15,879 101.0 96.0 California … 121,426 89,763 118,058 131.5 97.2 Colorado … 14,706 13,125 15,900 121.1 108.1 Connecticut / / / 13,649 / / Delawareb 5,514 5,566 4,092 6,140 150.0 110.3 Florida … 88,384 … 84,929 96.1 96.1 Georgiad 59,481 53,861 … 53,514 99.4 90.0 Hawaiie … 3,527 3,527 3,536 100.3 100.3 Idahod … 7,615 … 7,637 100.3 100.3 Illinoisf 54,543 54,543 … 41,065 75.3 75.3 Indianag … 28,866 … 25,773 89.3 89.3 Iowa 7,200 7,200 7,200 8,290 115.1 115.1 Kansas 10,435 10,435 10,435 9,701 93.0 93.0 Kentucky 11,971 11,971 12,226 12,008 100.3 98.2 Louisiana 17,956 16,344 … 15,152 92.7 84.4 Maine 2,421 2,602 2,602 2,354 97.2 90.5 Marylandh … 21,256 … 19,919 93.7 93.7 Massachusetts … 10,208 7,492 8,859 118.2 86.8 Michigan 42,044 41,039 … 39,666 96.7 94.3 Minnesota … 9,504 … 9,547 100.5 100.5 Mississippii … 17,909 … 15,559 86.9 86.9 Missourib … 32,536 … 32,564 100.1 100.1 Montana … 1,689 … 1,769 104.7 104.7 Nebraskab … 4,094 3,375 5,198 154.0 127.0 Nevada 14,092 11,886 … 13,243 111.4 94.0 New Hampshire 2,760 2,760 1,810 2,533 139.9 91.8 New Jersey 16,590 17,439 23,337 16,597 100.0 71.1 New Mexicoj … 7,055 7,055 4,048 57.4 57.4 New York 51,409 51,603 50,892 49,514 97.3 96.0 North Carolina … 38,159 32,684 36,663 112.2 96.1 North Dakotaj … 1,353 1,353 1,335 98.7 98.7 Ohio / / / 44,257 / / Oklahoma 17,730 19,809 17,730 19,931 112.4 100.6 Oregon 14,712 15,612 14,712 14,660 99.6 93.9 Pennsylvaniad 48,644 48,644 48,644 47,236 97.1 97.1 Rhode Island 3,989 3,774 3,975 2,683 71.1 67.3 South Carolina … 21,404 … 19,409 90.7 90.7 South Dakotab,d … 4,444 … 3,890 87.5 87.5 Tennessee 16,006 15,488 … 14,391 92.9 89.9

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PRISONERS IN 2017 | APRIL 2019 25 TABLE 16 (continued) Prison facility capacity, custody population, and percent capacity, December 31, 2017 Type of capacity measure Custody Custody population as a percent of— Jurisdiction Rated Operational Design population Lowest capacity Highest capacity Texasb 157,528 151,431 157,528 137,926 91.1 87.6 Utah … 6,771 7,127 4,982 73.6 69.9 Vermont 1,602 1,602 1,668 1,333 83.2 79.9 Virginia … 29,306 … 29,836 101.8 101.8 Washington … 16,775 … 17,674 105.4 105.4 West Virginia 5,922 5,976 5,922 5,922 100.0 99.1 Wisconsin … 23,056 17,031 23,513 138.1 102.0 Wyoming 2,298 2,298 2,417 2,182 95.0 90.3 Note: Excludes inmates held in local jails, other states, or private facilities, unless otherwise stated. Rated capacity is the number of inmates or beds a facility can hold set by a rating ofcial; operational capacity is the number of inmates a facility can hold based on stafng and services; and design capacity is the number of inmates a facility can hold set by the architect or planner. Lowest capacity represents the minimum capacity estimate submitted by the jurisdiction, while highest capacity represents the maximum capacity estimate. When a jurisdiction could provide only a single capacity estimate, it was used as both lowest and highest capacity. …Not available. Specifc type of capacity is not measured by state. /Not reported. aDue to diferences in the dates when data were extracted, the federal custody count reported for the calculation of capacity difers slightly from the year-end custody count reported in the National Prisoner Statistics (NPS). It includes prisoners of all sentence lengths. bState defnes capacity diferently than BJS does. See Jurisdiction notes. cAlaska’s capacity excludes non-traditional confnement such as halfway houses or electronic monitoring. dPrivate facilities included in capacity and custody counts. eHawaii’s custody count excludes 248 ofenders who were relocated out-of-state while an in-state facility was being repaired. fIllinois’s rated capacity is under revision, and these numbers are the ceiling operational capacity. Numbers are not comparable to prior reports. gIndiana’s capacity includes facilities owned by the state but stafed with employees of a private correctional company. hMaryland’s capacity may include some pre-trial detainees excluded from the custody count. iLocal facilities are included in Mississippi’s capacity and custody counts. jState did not submit 2017 NPS data on custody or capacity. Custody count was imputed, and capacities were assumed to have not changed from the most recent year the state submitted NPS data. See Methodology. Source: Bureau of Justice Statistics, National Prisoner Statistics, 2017.

PRISONERS IN 2017 | APRIL 2019 26 TABLE 17 Prisoners under the jurisdiction of state or federal correctional authorities and held in the custody of private prisons and local jails, 2016 and 2017 Prisoners held in private prisonsa Prisoners held in local jails Percent change, Percent of total Percent change, Percent of total Jurisdiction 2016 2017 2016–2017 jurisdiction, 2017 2016 2017 2016–2017 jurisdiction, 2017 U.S. total 128,323 121,420 -5.4% 8.2% 83,679 80,917 -3.3% 5.4% Federalb 34,159 27,569 -19.3% 15.1% 832 869 4.4% 0.5% State 94,164 93,851 -0.3% 7.2% 82,847 80,048 -3.4% 6.1% Alabama 348 264 -24.1 1.0 1,445 2,021 39.9 7.3 Alaskac 551 248 -55.0 5.6 40 39 -2.5 0.9 Arizona 8,285 8,283 0.0 19.7 0 0 ~ ~ Arkansas 0 0 ~ ~ 1,369 1,837 34.2 10.2 California 7,005 6,359 -9.2 4.9 1,651 1,762 6.7 1.3 Colorado 3,564 3,760 5.5 18.9 376 164 -56.4 0.8 Connecticutc 508 515 1.4 3.7 ~ ~ ~ ~ Delawarec 0 0 ~ ~ ~ ~ ~ ~ Florida 12,176 11,676 -4.1 11.9 1,161 1,119 -3.6 1.1 Georgia 7,973 7,880 -1.2 14.7 5,066 4,752 -6.2 8.9 Hawaiic 1,405 1,602 14.0 28.5 ~ ~ ~ ~ Idaho 420 432 2.9 5.0 791 680 -14.0 7.9 Illinois 0 362 100.0 0.9 0 0 ~ ~ Indianad 3,927 4,061 3.4 15.6 403 251 -37.7 1.0 Iowa 0 0 ~ ~ 0 0 ~ ~ Kansas 0 0 ~ ~ 78 97 24.4 1.0 Kentucky 0 0 ~ ~ 11,151 11,531 3.4 49.0 Louisiana 0 0 ~ ~ 20,623 18,587 -9.9 55.1 Maine 0 0 ~ ~ 11 17 54.5 0.7 Maryland 25 32 28.0 0.2 94 58 -38.3 0.3 Massachusetts 0 0 ~ ~ 363 261 -28.1 2.9 Michigan 0 0 ~ ~ 0 0 ~ ~ Minnesota 0 0 ~ ~ 1,023 1,007 -1.6 9.4 Mississippi 3,078 3,121 1.4 16.3 5,040 5,133 1.8 26.9 Missouri 0 0 ~ ~ 0 0 ~ ~ Montana 1,481 1,409 -4.9 38.1 589 503 -14.6 13.6 Nebraska 0 0 ~ ~ 149 151 1.3 2.8 Nevada 0 575 100.0 4.2 120 173 44.2 1.3 New Hampshire 0 0 ~ ~ 44 51 15.9 1.9 New Jersey 2,720 2,659 -2.2 13.6 83 87 4.8 0.4 New Mexicoe 3,040 / : : 0 / : : New York 0 0 ~ ~ 13 2 -84.6 0.0 North Carolina 30 30 0.0 0.1 0 0 ~ ~ North Dakotae / / : : / / : : Ohio 6,259 7,224 15.4 14.0 0 0 ~ ~ Oklahoma 7,149 7,353 2.9 26.1 316 13 -95.9 0.0 Oregonf 0 0 ~ ~ 0 22 : 0.1 Pennsylvania 680 407 -40.1 0.8 526 382 -27.4 0.8 Rhode Islandc 0 0 ~ ~ ~ ~ ~ ~ South Carolina 12 24 100.0 0.1 344 341 -0.9 1.7 South Dakota 34 34 0.0 0.9 0 0 ~ ~ Tennessee 7,433 7,608 2.4 26.3 6,725 7,038 4.7 24.3 Texas 13,692 12,728 -7.0 7.8 12,051 11,549 -4.2 7.1 Utah 0 0 ~ ~ 1,618 1,405 -13.2 21.8

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PRISONERS IN 2017 | APRIL 2019 27 TABLE 17 (continued) Prisoners under the jurisdiction of state or federal correctional authorities and held in the custody of private prisons and local jails, 2016 and 2017 Prisoners held in private prisonsa Prisoners held in local jails Percent change, Percent of total Percent change, Percent of total Jurisdiction 2016 2017 2016–2017 jurisdiction, 2017 2016 2017 2016–2017 jurisdiction, 2017 Vermontc,d 264 0 -100.0 0.0 ~ ~ ~ ~ Virginia 1,576 1,553 -1.5 4.2 7,931 7,370 -7.1 19.8 Washington 0 0 ~ ~ 178 42 -76.4 0.2 West Virginia 0 0 ~ ~ 1,263 1,170 -7.4 16.5 Wisconsin 0 0 ~ ~ 187 412 120.3 1.7 Wyoming 269 237 -11.9 9.6 7 21 200.0 0.8 Note: Counts are for December 31 of each year. :Not calculated. ~Not applicable. /Not reported. aIncludes prisoners held in private facilities in the jurisdiction and another state. bIncludes federal prisoners held in non-secure, privately operated facilities (9,497) and on home confnement (2,475). Excludes persons held in immigration detention facilities pending adjudication. cPrisons and jails form one integrated system. Data include total jail and prison populations. dIncludes prisoners in facilities owned by the state but stafed by employees of a private correctional company. eTotals for 2016 include imputed counts for North Dakota, which did not submit 2016 National Prisoner Statistics (NPS) data. Totals for 2017 include imputed counts for New Mexico and North Dakota, which did not submit 2017 NPS data. BJS estimated counts of prisoners held in local jails and private facilities and included these estimates in the state and U.S. totals. See Methodology. fState submitted updated 2016 sentenced population counts. Source: Bureau of Justice Statistics, National Prisoner Statistics, 2016 and 2017.

TABLE 18 Prisoners under military jurisdiction, by branch of service, 2016 and 2017 Total populationa Sentenced populationb Percent change Percent change Jurisdiction 2016 2017 2016–2017 2016 2017 2016–2017 Total number of prisoners 1,338 1,258 -6.0% 1,084 996 -8.1% Military branch of service Air Force 236 227 -3.8% 192 184 -4.2% Army 646 570 -11.8 577 502 -13.0 Marine Corps 245 234 -4.5 153 151 -1.3 Navy 191 212 11.0 145 146 0.7 Coast Guard 20 15 -25.0 17 13 -23.5 In custody of— Air Force 27 30 11.1% 5 4 -20.0% Army 781 730 -6.5 713 659 -7.6 Marine Corps 109 132 21.1 27 62 129.6 Navy 421 366 -13.1 339 271 -20.1 Note: Counts are for December 31 of each year. aIncludes all prisoners under military jurisdiction, regardless of conviction status or sentence length. bIncludes prisoners sentenced to more than one year under military jurisdiction. Source: Bureau of Justice Statistics, based on data from the Ofce of the Under Secretary of Defense for Personnel and Readiness, Department of Defense, 2016 and 2017.

PRISONERS IN 2017 | APRIL 2019 28 TABLE 19 Prisoners under jurisdiction of military correctional authority, with a sentence of any length, percentages by most serious ofense and branch of service, December 31, 2017 Most serious ofense Totala Air Force Army Marine Corps Navy Total 100% 100% 100% 100% 100% Violent ofenses 61.3% 53.3% 71.5% 54.7% 47.8% Non-violent ofenses 38.7% 46.7% 28.5% 45.3% 52.2% Total 100% 100% 100% 100% 100% Sexual 70.5% 71.0% 72.1% 64.6% 70.6% Violent 46.3 41.1 53.7 40.9 35.6 Non-violentb 24.2 29.9 18.3 23.8 35.0 Other violent 15.0% 12.1% 17.8% 13.8% 12.2% Murderc 6.8 6.1 9.1 4.4 3.9 Negligent manslaughter 0.4 0.5 0.0 0.6 1.1 Robbery 0.3 0.0 0.5 0.0 0.0 Aggravated/simple assault 6.7 5.6 6.7 8.3 6.7 Other 0.9 0.0 1.5 0.6 0.6 Property 3.1% 2.8% 2.4% 5.0% 3.9% Burglary 0.4 0.0 0.2 1.1 1.1 Larceny-theft 2.2 0.9 2.2 3.9 2.2 Motor vehicle theft 0.0 0.0 0.0 0.0 0.0 Fraud 0.4 1.4 0.0 0.0 0.6 Other 0.1 0.5 0.0 0.0 0.0 Drugd 6.3% 12.6% 1.6% 11.6% 7.8% Public order 0.1% 0.0% 0.2% 0.0% 0.0% Military 3.2% 0.9% 2.9% 3.9% 5.0% Other/unspecifed 1.8% 0.5% 3.1% 1.1% 0.6% Total number of prisoners 1,140 214 551 181 180 Note: Counts are based on prisoners sentenced to any length of time under military correctional authority. Excludes pre-trial detainees. Coast Guard ofense distribution not shown due to too few cases. aIncludes prisoners who served in the Coast Guard. bIncludes sexual harassment, indecent exposure, prostitution, stalking, and other non-violent sexual misconduct. cIncludes non-negligent manslaughter. dIncludes possession, use, trafcking, and other drug crimes. Source: Bureau of Justice Statistics, based on data from the Ofce of the Under Secretary of Defense for Personnel and Readiness, Department of Defense, 2017.

PRISONERS IN 2017 | APRIL 2019 29 TABLE 20 Prisoners under jurisdiction or in custody of correctional authorities in U.S. territories and commonwealths, by prison facility capacity, December 31, 2017 Jurisdiction population Sentenced to Total custody Capacity Jurisdiction Totala more than 1 yeara population Rated Operational Design Total 9,488 8,614 10,960 / / / American Samoab / / 185 / / / Guam 682 366 628 753 18 260 Commonwealth of the Northern Mariana Islandsc 262 169 262 559 272 559 Commonwealth of Puerto Rico 7,875 7,701 9,493 14,364 14,632 14,632 U.S. Virgin Islandsd 669 378 577 468 355 550 Note: Jurisdiction refers to the legal authority of state or federal correctional ofcials over a prisoner, regardless of where the prisoner is held. Custody refers to the physical location where the prisoner is held. Rated capacity is the number of inmates or beds a facility can hold set by a rating ofcial; operational capacity is the number of inmates a facility can hold based on stafng and services; and design capacity is the number of inmates a facility can hold set by the architect or planner. /Not reported. aExcludes American Samoa. bAmerican Samoa has not submitted National Prisoner Statistics (NPS) data since 2011. Custody data were located in the American Samoa Statistical Yearbook 2016 (http://doc.as.gov/wp-content/uploads/2011/06/American-Samoa-Statistical-Yearbook-2016.pdf ) and represent the number of persons in custody as of December 2016. cThe Commonwealth of the Northern Mariana Islands did not submit 2017 NPS data. Data used had been reported in 2016. dThe U.S. Virgin Islands did not submit NPS data from 2014 to 2017 and had inconsistent 2013 data. Data are from 2012. Source: Bureau of Justice Statistics, National Prisoner Statistics, 2017.

PRISONERS IN 2017 | APRIL 2019 30 Methodology Releases include unconditional releases (e.g., expirations of sentence or commutations), conditional releases Te National Prisoner Statistics (NPS) program started (e.g., probations, supervised mandatory releases, or in 1926. Te Bureau of Justice Statistics (BJS) sponsors discretionary paroles), deaths, AWOLs, escapes from the survey, and Abt Associates, Inc., currently serves confnement, transfers to other jurisdictions, releases as the data collection agent. BJS depends on voluntary to appeal or bond, and other releases. For reporting participation by state departments of corrections (DOCs) purposes, BJS release counts exclude AWOLs, escapes, and the Federal Bureau of Prisons (BOP) for NPS data. and transfers to other jurisdictions, because they have not ofcially lef the jurisdiction. Te NPS distinguishes between prisoners in custody and prisoners under jurisdiction. To have custody of a Te NPS has historically included counts of prisoners prisoner, a state or the BOP must hold the prisoner in in the combined jail and prison systems of Alaska, one of its facilities. To have jurisdiction over a prisoner, Connecticut, Delaware, Hawaii, Rhode Island, and the state or BOP must have legal authority over that Vermont. Te District of Columbia has not operated a prisoner, regardless of where the prisoner is incarcerated prison system since year-end 2001. Felons sentenced or supervised. Some states were unable to provide counts under the District of Columbia criminal code are that distinguished between custody and jurisdiction. housed in federal facilities. Jail inmates in the District (See Jurisdiction notes to determine which states did not of Columbia are included in the Annual Survey of Jails. distinguish between custody and jurisdiction counts.) Some previously published prisoner counts include jail inmates in the District of Columbia for 2001, the last Te NPS jurisdiction counts include persons held in year of collection. Additional information about the prisons, penitentiaries, correctional facilities, halfway NPS is available on the BJS website, including the data houses, boot camps, farms, training or treatment collection instrument. centers, and hospitals. Counts also include prisoners who were temporarily absent (fewer than 30 days), in Non-reporting states court, or on work release; housed in privately operated facilities, local jails, or other state or federal facilities; Te New Mexico and North Dakota DOCs did not or serving concurrent sentences for more than one respond to the 2017 NPS survey. BJS imputed 2017 correctional authority. fgures for North Dakota’s custody, jurisdiction, admission, and release counts using the state’s online Te NPS custody counts include all prisoners held report (https://docr.nd.gov/sites/www/fles/documents/ within a respondent’s facility, including prisoners statistics/factsheets/2017%2012%2031%20FACT%20 housed for other correctional authorities. Te custody SHEET.pdf). BJS assumed that the sentence-length counts exclude prisoners held in local jails and distributions of the custody and jurisdiction populations, other jurisdictions. With a few exceptions, the NPS race-and-Hispanic-origin distribution of the prison custody counts exclude prisoners held in privately population, and types of admissions and releases in 2017 operated facilities. were the same as those reported by the North Dakota Respondents to NPS surveys are permitted to update DOC in 2015, the last year it submitted data. In addition, prior counts of prisoners held in custody and under BJS assumed that the state’s prison capacity was the same jurisdiction. Some statistics on jurisdiction and as in 2015. sentenced prison populations for prior years have been Te jurisdiction sentence length and custody counts for updated in this report. All tables showing data based on New Mexico were imputed from the total jurisdiction jurisdiction counts, including tables of imprisonment number based on the distributions reported by rates, were based on the updated and most recently New Mexico DOC to the 2016 NPS. BJS also made available data that respondents provided. the assumption that the race and Hispanic origin Admissions in this report include new court distribution had not changed from 2016, and that the commitments; returned prisoners for parole, probation, percentage of prisoners held in local jails and private or other conditional release violations; returned prisons remained the same. Te number of releases was prisoners from appeal or bond; and other admissions. held at its 2016 level, and admissions were calculated Tey exclude transfers from other jurisdictions, to explain the diference between the 2016 and 2017 returned prisoners who were absent without leave, and jurisdiction counts. BJS assumed that the capacity of returned escapees, because they have not ofcially lef New Mexico prisons did not change in 2017. the jurisdiction. PRISONERS IN 2017 | APRIL 2019 31 Oregon did not submit data in 2016 but updated some 2016 SPI. BJS then weighted the ratios to refect the of the jurisdiction counts for that year on the 2017 NPS number of years between the survey and estimate year. data collection form. Details regarding the imputation of Te ratios calculated using SISCF data received higher 2016 Oregon data are summarized in Prisoners in 2016 weights for years closer to 2004, while those calculated (NCJ 251149, BJS web, January 2018). using SPI data had higher weights for years closer to 2016. BJS then used the average of these weighted ratios. Estimating year-end counts of prison population by sex, race, Hispanic origin, and age For federal estimates, the adjusted NPS data were multiplied by the ratio of the age category count within National-level estimates of the number of persons the sex and race combination in the Federal Justice by race under the jurisdiction of state prisons on Statistics Program (FJSP) to the FJSP total count within December 31, 2017, were based on an adjustment of the sex and race combination (e.g., FJSP white males NPS counts to comply with the Ofce of Management ages 18 to 19 divided by FJSP white males). Te resulting and Budget (OMB) defnitions of race and Hispanic product yielded FJSP-adjusted NPS counts for each sex origin. OMB defnes persons of Hispanic or Latino origin and race combination by age group (e.g., white male as a separate category, and racial categories are defned prisoners ages 18 to 19 in the federal prison system). exclusive of Hispanic origin. OMB adopted guidelines for State prison age distributions for the NPS use a similar collecting these data in 1997. sex and race ratio adjustment based on individual-level data from the National Corrections Reporting Program Not all NPS providers’ information systems categorize (NCRP). State and federal estimates were added race and Hispanic origin in this way. BJS adjusted together to obtain national estimates for year-end reported NPS race and Hispanic origin data, separating prison populations. for state and federal prisoners. For state prisoners, BJS calculated the ratio of the distribution of state prisoners BJS provides the unadjusted jurisdiction-level counts by race and Hispanic origin in self-reported prisoner of prisoners by race and Hispanic origin (see appendix surveys, which use OMB categories for race, to the table 2). Historical adjusted counts of prisoners by race distribution of prisoners by race and Hispanic origin in are archived through the National Archive of Criminal NPS data for the year closest to the felding of the survey. Justice Data (http://www.icpsr.umich.edu/icpsrweb/ BJS then multiplied this ratio by the distribution of state NACJD/studies/36281). prisoners’ race and Hispanic origin using the current year’s NPS. Te percentage of persons self-reporting to Estimating imprisonment rates by sex, race, Hispanic the NPS as non-Hispanic and two or more races was origin, and age assumed to be equal to that of the self-reported prisoner survey. Te fnal percentage distribution of race and BJS calculated age-specifc imprisonment rates for each Hispanic origin was multiplied by the total of sentenced sex, adjusted racial and Hispanic origin group, and state prisoners to obtain counts for each category. age by dividing the estimated number of sentenced prisoners within each age group under jurisdiction Te distribution of race and Hispanic origin for federal on December 31, 2017, by the estimated number of prisoners used the same adjustment methodology but U.S. residents in each age group on January 1, 2018. limited self-reported prisoner survey data to federal BJS multiplied the result by 100,000 and rounded to the prisoners. BJS summed state and federal estimates for nearest whole number. Totals by sex include all prisoners race and Hispanic origin to get the total counts published and U.S. residents, regardless of race or Hispanic origin. in table 3 and for detailed counts of prisoners by sex, age, and ofense. Non-U.S. citizen prisoners

Prior to the Prisoners in 2016 report, BJS used the race Te BOP and some DOCs reported the number of and Hispanic origin from the 2004 Survey of Inmates in non-U.S. citizens under their jurisdiction or in their State Correctional Facilities (SISCF) to calculate the ratio custody on December 31, 2017. While the intention is for the adjusted state distribution. Starting in 2016, BJS for jurisdictions to report based on prisoners’ current conducted the Survey of Prison Inmates (SPI), which citizenship status, some jurisdictions may have instead allowed for adjustments to be updated with more recent reported country of birth to NPS. Statistics from 2017 data. To obtain 10-year estimates of race and Hispanic mark the frst time that states were asked to include the origin, BJS calculated ratio adjustments for each year citizenship status of prisoners held in private facilities, twice, once using the 2004 SISCF and once using the so 2017 counts are more complete than in prior years.

PRISONERS IN 2017 | APRIL 2019 32 In 2017, the BOP provided counts of non-citizens based Reported race and Hispanic origin on country of current citizenship. Tis is a change from previous years, when BOP counts were based on country State DOCs and the BOP reported the race and of birth. Non-U.S. citizens held in local jails under the Hispanic origin distribution of their prison jurisdiction of state correctional authorities are excluded populations (see appendix table 2). from totals, unless otherwise noted. Four states did not Tese data are administrative in nature and may report prisoners’ citizenship status, the largest of which not refect prisoners’ self-identifcation of race or was New Mexico. Hispanic origin.

Estimating ofense distribution in the state and Prison capacities federal prison populations by sex, race, Hispanic origin, and age State and federal correctional authorities provide three measures of their facilities’ capacity: design, operational, BJS employed a ratio adjustment method to weight the and rated capacity. Prison population estimates as a individual-level ofense data from the NCRP to the state percentage of capacity are based on a state or federal prison control totals for sex and the estimated race or custody population. In general, state capacity and Hispanic origin from the NPS, which yielded a national custody counts exclude prisoners held in private ofense distribution for state prisoners. Prisoners missing facilities, although six states include prisoners held in ofense data were excluded from the analysis prior to private or local facilities as part of the capacity of their the weighting. Because data submission for the NCRP prison systems: Arizona, Georgia, Idaho, Mississippi, typically lags behind that of the NPS, state ofense Pennsylvania, and South Dakota. For these states, prison distribution estimates are published for the previous population as a percentage of capacity includes prisoners calendar year. held in the states’ private facilities or local facilities.

Data presented in tables 14 and 15 are obtained from Military correctional data the FJSP, and counts are based on prisoners who were convicted and sentenced to any length of time, including BJS obtains an annual aggregate count of service those sentenced to one year or less, and were under personnel held under military jurisdiction, as well as federal jurisdiction on September 30, 2017. Data are limited demographic and ofense data from the Ofce limited to prisoners sentenced on U.S. district court of the Under Secretary of Defense for Personnel and commitments or District of Columbia superior court Readiness. Te Department of Defense disaggregates commitments and to prisoners returned to federal these data by the branch in which prisoners served, the custody following violations of probation (both federal branch having physical custody of the prisoner, and and District of Columbia), parole, supervised release, or whether the prisoner was an ofcer or enlisted. mandatory release. Estimates in tables 14 and 15 difer from previously published federal ofense distributions U.S. territories presented in the FJSP web tool (https://www.bjs.gov/ fsrc/) or Federal Justice Statistics bulletins and statistical Data on prisoners under the jurisdiction of tables on the BJS website because these publications U.S. territorial correctional authorities are collected exclude District of Columbia prisoners. Because FJSP is separately from state and federal NPS data, and a custody collection, the total count of prisoners in tables U.S. totals in this report exclude territorial counts. Tree 14 and 15 difers from the jurisdiction count of prisoners territories (American Samoa, the Commonwealth of the reported to the NPS. Te race and Hispanic origin Northern Mariana Islands, and the U.S. Virgin Islands) distribution for tables 14 and 15 have not been adjusted did not provide 2017 NPS data. Data from prior years to self-report distributions because the adjustment to and alternate sources are shown in table 20. the total population made in earlier tables is based on prisoners sentenced to more than one year.

PRISONERS IN 2017 | APRIL 2019 33 National Prisoner Statistics program jurisdiction notes Tese notes are provided to the Bureau of Justice California’s Public Safety Realignment law (A.B. 109). Statistics (BJS) by state departments of corrections Citizenship data were extracted from a report published (DOC) and the Federal Bureau of Prisons (BOP) as part by the California Department of Corrections and of the National Prisoner Statistics (NPS) data collection. Rehabilitation’s Ofce of Research (https://sites.cdcr. Notes are presented mostly verbatim and were generally ca.gov/research/wp-content/uploads/sites/9/2018/07/ edited only for misspellings and to order comments Ofender-Data-Points-as-of-December-31-2017-1. per questions. Not all jurisdictions comment on every pdf) and represented the country of birth as reported question. Respondents are encouraged to describe other by prisoners. Per California, this does not refect types of admissions and releases specifc to their system, documentation of current citizenship status. and these are summarized in these jurisdiction notes and included in the totals in table 7. Colorado—Jurisdiction and custody counts included a small, undetermined number of prisoners with a Alabama—Other admissions included reopened cases. maximum sentence of one year or less, and 205 males Prisons were not recently rated for ofcial capacity. Te and fve females who were part of the Youthful Ofender majority of Alabama prisons were overcrowded. As of System. Prisoners reported as housed in privately 2017, a total of 25,784 beds were in operation, which operated correctional facilities were under Federal represented the physical capacity for prisoners but Transfer and Interstate Compact programs and were not was not based on stafng, programs, and services. Te reported in the department’s population and capacity operating capacity difered from BJS’s defnition. counts. Jurisdiction population counts included a small number of prisoners from other states admitted Alaska—Other conditional releases included ofenders under the interstate compact agreement. Release released due to suspended sentences. Te Alaska DOC counts excluded prisoners who were absent without does not have capacity levels by gender. Te design leave (AWOL) or had escaped. Other releases included capacity is 4,664. Te rated capacity is 4,838. Te rated discharges from youthful ofender systems. Prison design population capacity does not include non-traditional capacity is based on data from the Colorado DOC’s confnement such as halfway houses or electronic annual statistical report. Previous years’ design capacity monitoring. fgures were set equal to operational capacity. Arizona—Jurisdiction counts were based on custody Connecticut—Prisons and jails formed one integrated data and prisoners in contracted beds. Tese counts system. All NPS data included jail and prison excluded prisoners held in other jurisdictions because populations. New court commitment admissions Arizona receives an equal number of prisoners to house included prisoners who were admitted on accused from other jurisdictions. Arizona abolished parole in status but received a sentence later in the year. Other 1994, so only prisoners released prior to 1994 were on admissions included persons returned to prison without parole. Because community supervision prisoners were prejudice. Counts of other types of admissions and supervised as parolees, both parolees and community releases included persons with legitimate types of prison supervision violators were included in admissions as entries and exits that did not match BJS categories. parole violators. Other admissions included persons Legislation in July 1995 abolished the capacity law, returned from deportation. Other unconditional making a facility’s capacity a fuid number based on releases included prisoners released by the court. the needs of the department. Te needs were dictated Other conditional releases included those on to other by security issues, populations, court decrees, legal community supervision programs. Prison capacities mandates, stafng, and physical plant areas of facilities included the capacity of private prisons in Arizona. that served other purposes or had been decommissioned. Arkansas—No notes. Te actual capacity of a facility was subject to change. California—Custody counts included out-of-state Delaware—Prisons and jails formed one integrated correctional facility contracted beds, community system. All NPS data included jail and prison correctional facility private contract beds, and private populations. Capacity counts included the halfway work furlough prisoners. Other conditional releases houses under the Delaware DOC. Releases included included boarders from county correctional facilities. ofenders who received a combined sentence (prison and Other releases included prisoners released under parole) of more than one year.

PRISONERS IN 2017 | APRIL 2019 34 Federal Bureau of Prisons (BOP)—Data refected releases, program supervision, mandatory conditional prisoners under BOP jurisdiction on December 30, 2017, releases, conditional pardons, and parole reinstatements. except for tables 14 and 15, which cover September 30. Te number of deaths included three male executions. Jurisdiction counts included prisoners housed in secure Reported operational capacity included the capacity of private facilities where the BOP had a direct contract contracted institutions (8,696 males and 1,250 females), with a private operator and prisoners housed in secure contracted drug facilities (225 males), and contracted facilities where there was a subcontract with a private work release facilities (1,684 males and 317 females), provider at a local government facility. Jurisdiction although BJS was able to remove these facilities from counts also included prisoners housed in jail or the calculations of percentage capacity. Contracted short-term detention and others held in state-operated capacities are current as of December 31, 2017. Florida’s or other non-federal secure facilities. BOP prisoners DOC revised the variables used to determine citizenship housed in state facilities are counted as being held in of prisoners in 2015. Terefore, estimates of non-U.S. local or county-operated facilities. Counts included citizens from afer 2014 were not comparable to 7,022 prisoners (6,081 males and 941 females) held in previous years. non-secure, privately operated community corrections centers or halfway houses and 2,475 ofenders on home Georgia—Data refect the prison population during confnement (2,144 males and 331 females). A total the last week of December 2017. Custody populations of 42 juveniles (36 males and 6 females) were held in included both state prisons and county correctional contract facilities. Tese juvenile prisoners were included institutions. Subtotals of gender, race, and sentence in the jurisdiction and custody totals but excluded from length, as well as custody counts, were adjusted using the counts of privately or locally operated facilities. interpolation to match the overall totals. Counts of Some of these juveniles were under the jurisdiction admissions and releases were adjusted using interpolation of U.S. probation but housed in the custody of the to balance the jurisdictional populations on January 1, BOP in contract facilities. Due to information system 2017, and December 31, 2017. Females were not housed confguration, Asians, Native Hawaiians, and Other in privately operated correctional facilities in Georgia. Pacifc Islanders were combined, and prisoners of Capacity counts included state, county, and private Hispanic origin were included in the racial categories. prisons. Overall population was slightly lower again this On December 31, 2017, the BOP held 55,946 male year because Georgia’s criminal justice reform initiatives and 4,040 female prisoners of Hispanic origin. Parole have impacted both the commitments and admissions of violation counts included those with and without a new ofenders into the prison system. sentence. Other admissions included hospitalizations Hawaii—Prisons and jails formed one integrated system. and treatment. Expirations of sentence included good All NPS data included jail and prison populations. conduct releases that usually had a separate and distinct In custody and jurisdiction counts, sentenced felon term of supervision and releases from the residential probationers and probation violators were included drug abuse treatment program. Other releases included with the counts of prisoners with a total maximum clemencies, compassionate releases, hospitalizations and sentence of one year or less. Custody population counts treatment completed, and releases based on the amount for 2016 and 2017 were diferent because 248 sentenced of time served. On December 31, 2017, the BOP custody felons and parole violators from Halawa Correctional population was 155,006 prisoners (excluding contracted Facility were transferred to Arizona while repairs were and private facilities) and the rated capacity was 135,792. being done. Other unconditional releases included one Citizenship is being provided as it is recorded in the dismissal. Other releases included prisoners released due BOP data system, and is subject to verifcation by to status change. Hawaii did not have a rated capacity U.S. Immigration and Customs Enforcement (ICE). for its integrated prison and jail system. Information on Florida—Data on race and Hispanic origin from 2016 foreign nationals held in correctional facilities was based and 2017 were not comparable to previous years’ data due on self-reported data by prisoners. to a change in reporting methods. Florida reported only Idaho—Counts were estimates based on live data admissions for prisoners with new sentences and did not with some changing variability over time due to the report admissions of prisoners on technical violations. movement and processing of ofenders. Other admissions included program supervision violations. Other unconditional releases included Illinois—Jurisdiction, custody population, admission, vacated sentences. Other conditional releases included and release counts for prisoners with maximum provisional release supervision, conditional medical sentences of more than one year included an

PRISONERS IN 2017 | APRIL 2019 35 undetermined number of prisoners with a one-year on self-reported data by prisoners, but an ICE agent is sentence. All Illinois DOC prisoners have a minimum present when a facility’s reception and diagnostic unit sentence of one year. However, some prisoners are in interviews a prisoner, and the agent informs the Kansas custody for less than one year due to pre-trial time DOC if the prisoner is a confrmed non-U.S. citizen. spent in local jail custody. Illinois DOC contracts with an outside vendor for two adult transition facilities Kentucky—Other types of admissions included special (i.e., work release). Te department considers these admissions, returns from active release, and returns from ofenders in its custody and includes them in the daily shock probation with additional sentence. Other types population counts. Prisoners in other state or federal of unconditional releases included pardons. Other types custody are tracked separately. Counts of admissions and of conditional prison releases included exits to home releases included escapes from adult transition centers, incarceration. Other releases included releases from jail where prisoners leave and return for work assignments. and active releases. All escapees counted were from adult transition centers, Louisiana—Jurisdiction and capacity counts were and all returning escapees had escaped from these correct as of December 27, 2017. Other types of centers. Te Illinois DOC applied the term AWOL returns unconditional releases included court orders and releases only to parolees who committed a subsequent technical for good time with no supervision. Other types of violation or new ofense. Tese returns were included conditional release included reinstatements to probation. under parole violation admissions. Electronic detention Other types of release included compassionate releases. prisoners were not included in the population total. Other unconditional releases included court orders. Te Maine—No notes. Illinois DOC method for determining rated capacity was under revision. Te department provided the ceiling Maryland—Te number of prisoners with a maximum operational capacity and defned this as the total number sentence of more than one year for the jurisdiction and of beds in a facility. custody measures was estimated by taking the percentage of prisoners with a maximum sentence of more than Indiana—Custody, jurisdiction, admissions, release, one year from the automated data and applying the and capacity counts included prisoners in two facilities percentage to the manual headcounts for the measure of owned by the state of Indiana but stafed by employees of a interest (December 31 jurisdiction population, December private correctional company. Other types of admissions 31 custody population). Any sentenced prisoners housed included prisoners on active supervision or admitted as at the Baltimore City Detention Center or the Baltimore “safekeepers.” Central Booking and Intake Center were included in the jurisdiction and custody counts. Pre-trial prisoners at Iowa—In 2009, the Iowa DOC began including ofenders these facilities were excluded. Te unsentenced prisoners on work release in the operating-while-intoxicated in Maryland’s custody on December 31, 2017, were all population. Iowa prisoners housed in out-of-state federal prisoners housed contractually at the Chesapeake prisons were also included in the department’s Detention Facility. Te reported prisoners under jurisdiction counts. Iowa data included in BJS reports Maryland’s jurisdiction who were housed in facilities prior to 2009 were custody counts only. Te number operated by a county or local authority were sentenced of sentenced prisoners under Iowa jurisdiction who to state prison by local jurisdictions and waiting to be were transferred from other jurisdictions between transferred to Maryland DOC custody. Hispanic or January 1, 2017, and December 31, 2017, included Latino origin may have been underreported because ofenders transferring from other jurisdictions with records for existing prisoners were still being updated an Iowa sentence. Counts of AWOL admissions and in the new information system. Due to implementation releases were of the work release (644 ofenders) and issues with a new information system, admissions and operating-while-intoxicated (96 ofenders) populations. releases for 2017 were estimates. Te total number of Other conditional releases included persons released to new court commitments may have included a small, special sentence supervision. undetermined number of returns from appeal or bond. Kansas—Kansas does not house prisoners in privately Mandatory release violators were included with parole operated facilities. Other admissions included sanctions violators. Maryland did not distinguish between AWOLs from probation. Other unconditional releases included and escapees. Other unconditional releases included court appearance releases. Other conditional releases court ordered releases. Operational capacities included included supervised parole. Information on foreign beds used for some Maryland pre-trial prisoners that were nationals held in state correctional facilities was based not counted in year-end counts (32 males). BJS removed these 32 individuals from the reported capacity fgures. PRISONERS IN 2017 | APRIL 2019 36 Massachusetts—By law, ofenders in Massachusetts Missouri—Other types of unconditional releases may be sentenced to terms of up to 2.5 years in locally included those afer erroneous commitments, reversals, operated jails and correctional institutions. Tis discharges from remand, and court-ordered discharges. population was excluded from the state count but was Other types of conditional releases included parole board included in published population counts and rates for holdover returns. Other releases included revocations local jails and correctional institutions. Jurisdiction or remands of convictions. Te Missouri DOC did not counts excluded approximately 2,133 prisoners have design capacity data for its older prisons or update (2,057 males and 76 females) in the county system design capacity for prison extensions or improvements. (local jails and houses of correction) who were serving a Missouri did not use a rated capacity. Te state defned sentence of more than one year, but these prisoners were operational capacity as the number of beds available, included in imprisonment rate calculations at the request including those temporarily ofine. Non-U.S. citizen of the Massachusetts DOC. Jurisdiction and custody data were based on the number of ofenders with ICE counts may have included a small but undetermined detainers. Previously, the Missouri DOC had reported number of prisoners who were remanded to court or the number of foreign-born ofenders. transferred to the custody of another state, federal, or locally operated system and subsequently released. Montana—Te Montana DOC did not record In 2017 there was a transition at Bridgewater State Hispanic origin. Hospital of patient care from the Massachusetts DOC Nebraska—Other unconditional releases included to an outside contractor, although the Massachusetts vacated sentences. Nebraska defned operational capacity DOC did not report these as private prisoners. Tere as its stress capacity, which was 125% of design capacity was a continued increase in prisoners transferred to for designated facilities. Te total design and operational local jails prior to their release from prison as part of a capacities for institutions that house females included step-down initiative for re-entry. One juvenile under the one female multi-custody facility. Te Nebraska DOC jurisdiction of the Massachusetts DOC and housed in operated two co-ed facilities, which represented a design a Massachusetts Department of Youth Services facility capacity of 290 and was included in the male design was included in the count of prisoners housed in other and operational capacities. A 100-bed housing unit was arrangements. Other admissions included returns added to one of the Nebraska DOC’s facilities in 2017. from court-ordered release, and other unconditional releases included those ordered by courts. Due to the Nevada—Other admissions included persons committed closing of facilities in 2017, the design capacity for the to the Nevada DOC through the Intermediate Sanction Massachusetts DOC decreased by 236 beds (from 7,728 Probation; Safe Keeper-Boot Camp; Safe Keeper-pre-trial to 7,492). detainees, which include local jail inmates admitted to the Nevada DOC due to medical, behavioral, protective, Michigan—Data recorded for Hispanics were treated or local stafng issues; persons ordered by judges to serve as an ethnicity rather than a race, and reporting was 6 months or less in prison prior to actual sentencing for optional. Terefore, the numbers for Hispanics were felonies; and prisoners serving consecutive sentences signifcantly underreported. Rather than reporting an in Nevada and another state but not physically in incorrect number, the Michigan DOC included the the custody of Nevada. Other unconditional releases relatively small number of cases recorded as Hispanic included those made to the committing authority. in the “white” category. New Hampshire—Due to a change in its data-coding Minnesota—Minnesota measured only system, the New Hampshire DOC has been unable to operational capacity. report to the NPS the number of non-U.S. citizens in Mississippi—Jurisdiction counts of local facilities custody afer 2015. included both local county jails and county regional New Jersey—Population counts for prisoners with a facilities. Other types of admission and release to state maximum sentence of more than one year included prisons included data corrections because of a lag in prisoners with sentences of one year. Te New Jersey processing. Other conditional releases included earned DOC had no jurisdiction over prisoners with sentences release supervision, house arrests, and medical releases. of less than one year or unsentenced prisoners. Other Total operational capacity on December 31, 2017, was types of unconditional releases included vacated 17,909. Tis capacity included county jails and county and amended sentences and court-ordered releases. regional facilities. Reporting of other conditional releases included

PRISONERS IN 2017 | APRIL 2019 37 ofenders in intensive supervision programs. New Jersey of sentence length. Returns and conditional releases data for escapes did not diferentiate between prisoners involving transitional control prisoners were reported who disappeared from confned walls or disappeared afer movement from confnement to a terminal release while out of institutions. Other releases included status occurred. Admissions of parole violators without prisoners transferred early from county jails into the state a new sentence included only formally revoked violators. prison system before being released back to county jails, Other admission types include judicial release technical and other transfers. returns, previously included as conditional release violators without a new sentence. Escapes included New Mexico—State did not submit 2017 NPS data. BJS non-confnement escapes. Other unconditional releases used the ofender population count reported on the New included vacated sentences and other court discharges. Mexico DOC’s website on January 3, 2018 (http://cd.nm. Other releases included administrative releases. Counts gov/index.html) as the total number of prisoners under of non-U.S. citizens and prisoners age 17 or younger state jurisdiction. See Methodology for the imputation excluded prisoners housed in privately operated strategy for non-reporting states. halfway houses. New York—Other admissions included persons Oklahoma—Most prisoners with sentences of one year who returned to prison afer they were erroneously or less were part of the Oklahoma Delayed Sentencing discharged. Program for Young Adults. On December 31, 2017, North Carolina—As of December 1, 2011, North the number of prisoners under the Oklahoma DOC Carolina prisons no longer housed misdemeanor jurisdiction’s with a maximum sentence of more than ofenders with sentences of fewer than 180 days. one year included 1,086 males and 76 females who were Captured escapees were not considered a prison waiting in county jails to be moved to state prisons. Te admission type in North Carolina, and escape was not Oklahoma DOC did not include these in its reported considered a type of prison release. Other admission jurisdiction counts, but per NPS defnitions, BJS added types included direct receipt of ofenders through an these individuals into the sentenced jurisdiction and interstate compact. Other types of unconditional releases total jurisdiction counts. Prisoners held by Oklahoma for included court orders and interstate compact releases. other states were excluded from all jurisdiction counts. Supervised mandatory releases were post-release Jurisdiction counts included ofenders in Oklahoma’s ofenders. Post-release supervision was defned as a DOC county jail program. Numbers reported in “escapes reintegration program for serious ofenders who served from confnement” represented escapes from state-run extensive prison terms. Tis form of supervision was prisons and walkaways from halfway houses and created by the state’s Structured Sentencing Act of 1993. community corrections or work centers. Only Oklahoma Rated capacity was not available. Reported operational DOC facilities were included in the capacity counts. capacity included the capacity at a private facility Non-U.S. citizen status was based on self-reported data that houses the female ofenders (30) included in the by country of birth. private state facilities, and BJS removed these from the Oregon—State did not submit 2016 NPS data but calculations of percentage capacity. updated 2016 population data on the 2017 NPS form. North Dakota—State did not submit 2016 or 2017 NPS See Methodology for the imputation strategy for data. BJS imputed 2016 responses for North Dakota’s non-reporting states. custody, jurisdiction, admission, and release fgures from Pennsylvania—Other admissions included those from the state’s online reports for 2016 (https://docr.nd.gov/ the state hospital and parole detainees. Other types of sites/www/fles/documents/statistics/factsheets/2016_ unconditional releases included vacated sentences and FACT_SHEET.pdf) and 2017 (https://docr.nd.gov/sites/ convictions. Other releases included transfers to other www/fles/documents/statistics/factsheets/2017%20 states and unknown other releases. Capacity counts 12%2031%20FACT%20SHEET.pdf). See Methodology for included state correctional institutions, community the imputation strategy for non-reporting states. corrections centers, community contract facilities, and Ohio—Population counts for prisoners with a contracted county jails. Community contract facilities maximum sentence of more than one year included were contracted out by the Pennsylvania DOC to private an undetermined number of prisoners with a sentence service providers, and it maintained contracted housing of one year or less. Admissions and releases reported services with certain Pennsylvania county jails. by the Ohio DOC included all ofenders regardless

PRISONERS IN 2017 | APRIL 2019 38 Rhode Island—Prisons and jails formed one integrated and Pardon Services paroled 1,009 non-YOA ofenders. system. All NPS data included jail and prison Te state utilizes the operational capacity concept in its populations. Te Rhode Island data system recorded management reports and other requested surveys. Hispanic origin as a race rather than an ethnicity and did not capture Native Hawaiians, Other Pacifc Islanders, or South Dakota—Custody and jurisdiction counts of persons of two or more races, including those who may prisoners serving a maximum sentence of one year or have identifed themselves as Hispanic second to another less included those under a probation sentence who, as race. Prison admissions classifed as escape returns a condition of probation, must serve up to 180 days in included ofenders serving out of state. Te Rhode Island state prison. Te reporting system for the South Dakota DOC’s data system could not diferentiate between parole DOC did not have a category for prisoners of two or violation admissions with and without new sentences, more races. Tese prisoners were labeled as “other race.” which were all counted as new sentences. Other types Other admissions included parole or supervised release of unconditional releases consisted of discharges at detainees. South Dakota did not separate discretionary court, court-ordered discharges, and discharges out of and presumptive parole releases. Parole detainees state. Conditional releases included persons paroled to were included in counts of other release types. Te immigration or paroled out of state. Conditional releases operational capacity reported was planned capacity and of transfers to another jurisdiction included only persons included some ofenders housed in contractual beds at serving a sentence out of state. Other types of conditional halfway houses. releases included discharges to the state’s Institute for Tennessee—Other conditional releases included Mental Health. Prison system capacity fgures were ofenders who were released to community corrections. valid as of December 31, 2017. Te Rhode Island DOC Te reported rated capacity of the Tennessee DOC no longer asks questions relating to citizenship at included the rated capacity of four private prisons prison admission, but in previous years, the data were (8,091), which BJS removed from the calculations of self-reported. percentage capacity. Te reported operational capacity South Carolina—Te December 31, 2017, custody count included the operational capacity of four private prisons of unsentenced prisoners included fve unsentenced (7,742), which BJS removed from the calculations of males: one on observation status under the state’s percentage capacity. Youthful Ofender Act (YOA) and four “safekeepers.” Texas—Ofenders in custody were all those serving As of July 1, 2003, the South Carolina DOC began time in a facility owned and operated by the Texas releasing prisoners due for release and housed in the Department of Criminal Justice at the time of data department’s institutions on the frst day of every collection. Jurisdiction counts included ofenders in month. Since January 1, 2018, was a holiday, prisoners custody and those held in privately operated prisons, eligible for release on January 1 were released on intermediate-sanction facilities, punishment facilities December 31, 2017, causing the prisoner count to be at for substance-abuse felonies, and halfway houses; its lowest point for the month on December 31, 2017. temporarily released to a county for less than 30 days; All 24 prisoners (19 males and 5 females) housed in and awaiting paperwork for transfer to state-funded private facilities in South Carolina were in privately custody. Capacities excluded county jail beds because operated medical facilities. Prisoners (341 to 322 males those correctional facilities did not have a minimum and 19 females) reported as housed in local facilities or maximum number of beds available for paper-ready for the South Carolina DOC were housed in designated and bench-warrant prisoners. Admissions and releases facilities or considered absent with leave to local or included ofenders received into an intermediate sanction county facilities. South Carolina did not have a specifc facility, which was a sanction in lieu of revocation. race code to designate persons identifying as two or more Tese ofenders were counted in the parole violator races. Tese individuals were included in other specifc category, although these were not revocations. Other race groups or labeled as “other race.” Other types of conditional releases included discretionary mandatory admissions included prisoners who were resentenced. releases. Executions were included in releases due to Other types of unconditional releases consisted of death. Other admissions and other release types included remands. Other release types included persons who were transfers between divisions. Te methodology for foreign resentenced. Tere were two paroling authorities within ofenders was changed to include private facilities, the adult correctional system in South Carolina: the as instructed by BJS. In prior years, this number was Intensive Supervision Administrative Release Authority calculated using the custody population which excluded paroled 705 ofenders under the YOA in 2017, while private facilities. the South Carolina Department of Probation, Parole, PRISONERS IN 2017 | APRIL 2019 39 Utah—Other types of unconditional release included West Virginia—Other types of admissions and releases court-ordered releases and discharges of cases or included those to and from the Anthony Center prisoner holds. for Young Adults and Diagnostics. Other types of unconditional releases included court-ordered releases. Vermont—Prisons and jails formed one integrated system. All NPS data included jail and prison Wisconsin—Consistent with the method used to populations. Te Vermont DOC did not report data generate population estimates in 2016, the Wisconsin on admissions and releases in 2015, 2016, or 2017. DOC used the time between a prisoner’s admission date BJS assumed that the number of admissions in 2017 and maximum discharge date to determine sentence was equal to the number in 2016 and that the decrease length for year-end counts. If a maximum discharge in the jurisdiction population was due solely to an date was not recorded, the mandatory release date was increase in releases in 2016. Admission and release type used. If the mandatory release date was not recorded, distributions were assumed to be the same in 2017 as the prisoner’s release date was used. Terefore, this may in 2016. not accurately refect whether the prisoner was initially sentenced to one year or less or to more than one year. Virginia—Jurisdiction counts were for Custody measures included prisoners without Wisconsin December 31, 2017. As of September 1, 1998, the sentences who were physically housed in a Wisconsin state was responsible for prisoners with a sentence of prison. Jurisdiction measures included prisoners with more than one year or a sentence of 12 months plus Wisconsin sentences, regardless of where the prisoners one day. Prior to September 1, 1998, the state had been were physically located. Unsentenced prisoners included responsible for a sentence of more than one year, while those who had not yet had data entered refecting their local authorities were responsible for a sentence of mandatory release date and maximum discharge date 12 months or less. Jurisdiction, custody, and race and and some ofenders temporarily held in the Milwaukee Hispanic origin counts for 2017 were preliminary and facility. An ofender on a temporary hold who was on will change. Native Hawaiians and Other Pacifc Islanders probation did not have a mandatory release date or were included in the Asian racial category. Counts of maximum discharge date. admissions and releases were preliminary fscal-year 2017 fgures. Other conditional releases included persons Te same time intervals used to determine sentence released conditionally as sexually violent predators and length for year-end counts were used to determine persons released on conditional pardons or clemency. sentence length for admissions totals, while the time Te Virginia DOC revised its method of reporting prison between a prisoner’s admission date and release date capacity in 2014 to match BJS defnitions. As a result, was used to determine sentence length for the releases comparisons should not be made to estimates before total. Terefore, admissions and releases totals may 2014. Te counts excluded beds assigned to institutional not accurately refect whether a prisoner was initially hospitals that may not be designated as male or female sentenced to one year or less or to more than one only and detention and diversion centers. year. Other conditional releases included alternatives to revocation. Other types of releases included those Washington—Admission and release counts for released afer erroneous admission. conditional releases included ofenders who did not receive a sentence of more than one year. Admission Wyoming—Other unconditional releases included those and release counts of conditional release violators that were court-ordered or mandated. included ofenders who received probation sentences and were sent to county jails for a term of less than 30 days for violating their probation conditions. Other unconditional releases included vacated sentences.

PRISONERS IN 2017 | APRIL 2019 40 APPENDIX TABLE 1 Imprisonment rates of sentenced prisoners under the jurisdiction of state or federal correctional authorities, per 100,000 U.S. residents, 1978–2017 Year All ages Age 18 or older 1978 131 183 1979 133 185 1980 138 191 1981 153 211 1982 170 232 1983 179 243 1984 187 254 1985 201 272 1986 216 293 1987 230 311 1988 246 331 1989 274 369 1990 295 398 1991 311 420 1992 330 446 1993 360 486 1994 389 526 1995 411 556 1996 427 577 1997 444 599 1998 463 623 1999 476 640 2000 470 632 2001 470 630 2002 477 639 2003 483 645 2004 487 649 2005 492 655 2006 501 666 2007 506 670 2008 506 669 2009 504 665 2010 500 656 2011 492 644 2012 479 626 2013 479 623 2014 471 611 2015 459 595 2016 450 582 2017 440 568 Source: Bureau of Justice Statistics, National Prisoner Statistics, 1978–2017; and U.S. Census Bureau, post-censal resident population estimates for January 1 of the following calendar year.

PRISONERS IN 2017 | APRIL 2019 41 APPENDIX TABLE 2 Prisoners under jurisdiction of state or federal correctional authorities, by race and Hispanic origin, December 31, 2017 Native American Hawaiian/ Indian/ Other Pacifc Two or Did not Jurisdiction Total Whitea Blacka Hispanic Alaska Nativea Asiana Islandera more racesa Othera Unknown report Federalb,c 183,058 50,595 67,818 58,446 3,730 2,469 / ~ ~ / 0 State Alabama 27,608 12,600 14,857 0 2 3 0 0 0 146 0 Alaska 4,399 1,928 486 131 1,611 140 71 ~ ~ 32 0 Arizona 42,030 16,365 5,930 16,503 2,281 198 0 0 670 17 66 Arkansas 18,070 9,942 7,387 587 58 70 8 0 16 2 0 California 131,039 27,811 37,336 57,032 1,476 1,415 355 0 5,614 0 0 Colorado 19,946 9,175 3,493 6,264 666 223 / / / 3 122 Connecticut 14,040 4,411 5,765 3,749 45 68 0 0 / 2 0 Delaware 6,443 2,399 3,722 312 1 5 0 0 0 4 0 Floridad 98,504 39,443 46,493 12,207 85 21 11 0 239 5 0 Georgia 53,667 19,160 32,243 1,985 24 180 1 61 ~ 13 0 Hawaii 5,630 1,414 230 137 25 946 2,332 188 ~ 358 0 Idaho 8,579 6,374 242 1,389 331 38 2 / 92 111 0 Illinois 41,471 12,456 23,365 5,341 61 149 0 39 / 16 44 Indiana 26,024 15,910 8,826 1,067 47 64 12 83 ~ 15 0 Iowa 9,024 5,993 2,183 617 155 76 0 0 0 0 0 Kansas 9,971 5,684 2,761 1,223 201 90 0 0 1 11 0 Kentucky 23,543 17,858 5,017 328 14 0 0 264 32 26 4 Louisiana 33,739 11,109 22,477 36 24 40 51 0 2 ~ 0 Maine 2,404 1,943 216 118 71 12 0 17 0 27 0 Marylande 19,367 4,879 13,427 679 103 46 13 / 191 29 0 Massachusetts 9,133 3,956 2,485 2,398 56 126 0 0 112 0 0 Michigane 39,666 17,476 21,060 276 424 106 21 0 0 303 0 Minnesota 10,708 4,978 3,654 734 1,046 275 / / / 21 0 Mississippi 19,103 6,910 11,936 177 27 45 0 0 ~ 8 0 Missouri 32,601 20,787 10,973 594 114 77 / / / 56 0 Montanaf 3,698 2,774 91 ~ 817 16 0 0 0 0 0 Nebraska 5,313 2,788 1,515 708 218 39 4 / 33 8 0 Nevada 13,671 5,931 4,196 2,802 242 334 74 80 0 12 0 New Hampshire 2,750 2,408 130 92 3 19 0 ~ 24 74 0 New Jersey 19,585 4,185 11,997 3,126 11 123 0 / 0 143 0 New Mexicog 7,276 1,798 512 4,269 500 20 15 0 0 162 0 New York 49,461 12,016 23,820 12,027 406 245 / / 704 243 0 North Carolina 36,394 14,248 19,042 1,904 946 100 22 / ~ 132 0 North Dakotag 1,723 1,133 136 98 342 8 0 6 0 0 0 Ohio 51,478 26,454 23,216 1,365 84 68 / / 291 / 0 Oklahoma 28,143 14,529 7,096 2,055 3,133 79 31 ~ 58 0 1,162 Oregon 15,218 11,303 1,385 1,857 433 227 7 ~ ~ 6 0 Pennsylvania 48,333 20,577 22,591 4,802 45 125 ~ 0 0 193 0 Rhode Islandc 2,861 1,243 823 700 22 43 / / 29 1 0 South Carolina 19,906 7,266 12,001 459 25 22 1 / 132 0 0 South Dakota 3,970 2,196 307 140 1,301 19 2 0 5 0 0 Tennessee 28,980 16,214 12,071 576 36 83 / / / 0 0 Texas 162,523 53,771 53,467 54,373 129 557 0 0 226 0 0 Utah 6,443 4,120 441 1,262 310 73 130 0 0 107 0 Vermont 1,546 1,355 173 12 5 0 1 0 ~ 0 0 Virginiac 37,158 14,291 19,659 897 29 147 ~ ~ ~ 2,135 0

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PRISONERS IN 2017 | APRIL 2019 42 APPENDIX TABLE 2 (continued) Prisoners under jurisdiction of state or federal correctional authorities, by race and Hispanic origin, December 31, 2017 Native American Hawaiian/ Indian/ Other Pacifc Two or Did not Jurisdiction Total Whitea Blacka Hispanic Alaska Nativea Asiana Islandera more racesa Othera Unknown report Washington 19,656 11,734 3,461 2,552 934 774 / / 53 148 0 West Virginia 7,092 6,115 863 42 8 7 2 55 0 0 0 Wisconsin 23,945 10,922 9,852 1,992 900 266 ~ / / 13 0 Wyoming 2,473 1,877 124 311 144 5 9 0 3 0 0 Note: Jurisdiction refers to the legal authority of state or federal correctional ofcials over a prisoner, regardless of where the prisoner is held. Federal data include prisoners held in non-secure, privately operated community corrections facilities and juveniles held in contract facilities. Estimates were provided by state and federal departments of corrections’ administrative record systems and may not refect prisoners’ self-identifcation of race/Hispanic origin. State, federal, and national totals by race/Hispanic origin difer from other tables in this report due to adjustments made by BJS in other tables to correct for diferences between administrative records and prisoner self-reported data of race/Hispanic origin. ~Not applicable. State does not track this race/Hispanic origin. /Not reported. aExcludes persons of Hispanic/Latino origin (e.g., white refers to non-Hispanic white; black refers to non-Hispanic black). See Methodology. bThe Federal Bureau of Prisons does not separate out persons of Hispanic origin from the individual racial categories when reporting to the National Prisoner Statistics (NPS). To do so, BJS used data from the 2017 Federal Justice Statistics Program (preliminary). cAsians, Native Hawaiians, and Other Pacifc Islanders were combined in a single category and reported as Asian. dFlorida counts from 2017 are not comparable to counts from years before 2016 due to a change in reporting methodology in 2016. See Jurisdiction notes. ePersons of Hispanic origin may be undercounted due to ongoing changes in information systems. fPrisoners of Hispanic origin are included in Montana’s individual racial categories. gState did not submit 2017 NPS data on race/Hispanic origin. Counts were imputed. See Methodology. Source: Bureau of Justice Statistics, National Prisoner Statistics, 2017; and Federal Justice Statistics Program, 2017 (preliminary).

PRISONERS IN 2017 | APRIL 2019 43 Te Bureau of Justice Statistics of the U.S. Department of Justice is the principal federal agency responsible for measuring crime, criminal victimization, criminal ofenders, victims of crime, correlates of crime, and the operation of criminal and civil justice systems at the federal, state, tribal, and local levels. BJS collects, analyzes, and disseminates reliable statistics on crime and justice systems in the United States, supports improvements to state and local criminal justice information systems, and participates with national and international organizations to develop and recommend national standards for justice statistics. Jefrey H. Anderson is the director. Tis report was written by Jennifer Bronson and E. Ann Carson. Zhen Zeng and Stephanie Mueller verifed the report. Edrienne Su and Jill Tomas edited the report. Tina Dorsey produced the report. April 2019, NCJ 252156

Ofce of Justice Programs Building Solutions • Supporting Communities • Advancing Justice www.ojp.gov Michigan Journal of Race and Law

Volume 15 | Issue 1

2009 Do Not (Re)Enter: The Rise of Criminal Background Tenant Screening as a Violation of the Fair Housing Act Rebecca Oyama University of Michigan Law School

Follow this and additional works at: https://repository.law.umich.edu/mjrl Part of the Civil Rights and Discrimination Commons, Fourteenth Amendment Commons, Housing Law Commons, Law and Race Commons, and the Legislation Commons

Recommended Citation Rebecca Oyama, Do Not (Re)Enter: The Rise of Criminal Background Tenant Screening as a Violation of the Fair Housing Act, 15 Mich. J. Race & L. 181 (2009). Available at: https://repository.law.umich.edu/mjrl/vol15/iss1/5

This Note is brought to you for free and open access by the Journals at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of Race and Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. DO NOT (RE)ENTER: THE RISE OF CRIMINAL BACKGROUND TENANT SCREENING AS A VIOLATION OF THE FAIR HOUSING ACT

Rebecca Oyama*

Increased landlord discrimination against housing applicants with criminal histories has made locating housing in the private market more challenging than ever for individuals with criminal records. Specifically, the increased use of widely available background information in the application process by private housing providers and high error rates in criminal record databases pose particularly difficult obstacles to securing housing. Furthermore, criminal record screening policies disproportionately affect people of color due to high incarcerationrates and housing discrimination.

This Note examines whether the policies and practices of private housing providers that reject applicants because of their prior criminal records have an unlawful, disparate impact on racial minorities by denying such individuals the benefits of housing in violation of the federal FairHousing Act, 42 U.S.C. 5 3600, et. seq. The author compares existing enforcement guidance under Title VII employment discrimination law and suggests solutions for balancing the concerns of private housing providers and strong policy reasons behind increasing access to private housingfor individuals with criminal records.

IN TR O D U C T IO N ...... 182 I. THE RISE IN CRIMINAL BACKGROUND SEARCHES AND ITS EFFECT ON THE PRIVATE HOUSING MARKET ...... 184 A. Higher Incarceration Rates Have Increased the Population of Racial Minorities Living with Criminal Records ...... 184 B. The Burgeoning Use and High ErrorRates of Public and Commercial Criminal Background Services ...... 187 C. Private Housing Provider Screening Policies and Practices..... 190 D. Private Housing Providers and Federal Funding: Housing Choice Voucher Program...... 192 II. THE COMPOUNDED EFFECTS OF EXCLUSIONARY POLICIES ON R ACIAL M INORITIES ...... 194 A. Effects on the Individual...... 195 B. Effects on Communities...... 197 III. DISPARATE IMPACT TREATMENT OF CRIMINAL BACKGROUND SEARCHES UNDER TITLES VII AND VIII ...... 199

* J.D. Candidate, 2009, University of Michigan Law School. I am deeply grateful to Professor Judith Levy for her inspirational guidance, Christopher Brancart for his helpful feedback, and the members of the Michigan Journal of Race & Law for their hard work while editing this Note. I would also like to thank my family for their endless support. MichiganJournal of Race & Law [VOL. 15:181

A. The Sister Acts: Title VII and Title VIII ...... 199 B. Existing Discrepancy Between Title VII and Title VIII Enforcement M easures ...... 200 C. DisparateImpact Theory in Application Under Title VIII ..... 203 D. DisparateImpact Claims Addressing Criminal Record Screening: El v. Septa ...... 207 a. "R isk-relatedness" ...... 209 b. Unanswered Relevance of Older Convictions ...... 211 c. Unanswered Relevance of Nature of Crime ...... 211 d. Individual Plaintiff...... 212 IV. CURRENT PRIVATE HOUSING PROVIDER POLICIES AS A VIOLATION OF TITLE V III ...... 212 A. Blanket Bans on Criminal Histories as Overly Broad ...... 212 B . D efendant' R ebuttal...... 215 C. Plaintiff's Response: Existence of Less Discriminatory A lternative Policies ...... 217 V ENFORCEMENT CHALLENGES ...... 220 C O N C LU SIO N ...... 221

INTRODUCTION

"Conduct that has the necessary andforeseeable consequence of perpetu- ating segregation can be as deleterious as purposefully discriminatory conduct in frustrating the national commitment to replace the ghettos 'by truly integrated and balanced living patterns.'" -Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 368 (1972) (citing Senate floor testimony of Senator Mondale, co-sponsor of the Fair Housing Act of 1968)

Over the last five to ten years, the enormous challenges facing incarcerated individuals upon reentry to the community has become the focus of national attention. Prisoner reentry initiatives have stirred debate among policy makers, legislators, and legal advocates, and have even prompted federal legislation.' The recent U.S. economic downturn has illuminated further the need to support prisoner reentry initiatives as budget-strapped state governments facing high incarceration costs grant early release to thousands of low-level offenders. Notwithstanding the early release cases, in a typical year, about 725,000 people are released into

1. See, e.g., Second Chance Act of 2007, Pub. L. 110-199, 122 Stat. 657 (2008); President George W Bush, Address Before a Joint Session of the Congress on the State of the Union, (Jan. 20, 2004), in 150 CONG. REC. H20 (2004). 2. See, e.g.,Jennifer Steinhaur, To Trim Costs, States Relax Hard Line on Prison, N.Y. TIMES, Mar. 25, 2009 at Al. FALL 2009] Do Not (Re)enter

the nation's communities from state and federal prisons-a figure that has steadily increased alongside incarceration rates.3 For newly released prisoners entering the long reentry process, finding stable housing presents an early obstacle, one that is so critical it has been referred to as the "linchpin that holds the reintegration process together."4 Individuals who do not find stable housing are more prone to recidivism than those who do; one study determined that each move after release from prison increased a person's likelihood of re-arrest by 25%. 5 The private housing market makes up 97% of the total U.S. housing stock.6 For many individuals with criminal records, both the recent growth in tenant screening practices and high expense make renting in the private market extremely difficult. Although privately-owned housing is often too costly for prisoners returning to the community,7 the private rental market is often the only option for these individuals, either because they are ineligible for governmentally subsidized housing through the U.S. Department of Housing and Urban Development (HUD) or because owning property is not economically feasible." For most individuals bearing a criminal record (recent or dated), increased landlord discrimination against applicants with criminal histories has made the private housing market less hospitable than ever. Not only are landlords more likely to rely on widely available background information in their application process, but also the powerful organizing tools of the Internet allow neighborhood associations and community groups to garner opposition

3. See HEATHER C. WEST & WILLIAM J. SABOL, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, PRISONERS IN 2007 3, available at http://www.ojp.usdoj.gov/bjs/pub/ pdf/p07.pdf (last visited Sept. 6, 2009). 4. JEREMY TRAVIS, BUT THEY ALL COME BACK: FACING CHALLENGES OF PRISONER REENTRY 219 (2005). 5. PEENTRY POLICY COUNCIL, COUNCIL ON STATE GOVERNMENTS, PUBLIC HOUSING AUTHORITIES AND PRISONER RE-ErNtRY 1, (July 28, 2006), available at http:// www.reentry.net/library/item. 110320-PublicHousingAuthorities and_PrisonerIReentry. 6. JOAN PETERSILIA, WHEN PRISONERS COME HOME: PAROLE AND PRISONER REENTRY 121 (2003). 7. This is due to a general lack of affordable housing in many cities and communities nationwide. See id. Affordable housing is generally defined as housing in which the household pays no more than 30% of its annual income on housing costs. 8. Substantial literature has been written on the discriminatory effect of HUD public housing regulations governing eligibility and evictions that result in a ban or eviction from public housing facilities for many individuals. See, e.g., CORINNE CAREY, HUMAN RIGHTS WATCH, No SECOND CHANCE: PEOPLE WITH CRIMINAL R.ECORDS DENIED ACCESS TO PUBLIC HOUSING (2004) [hereinafter HUMAN RIGHTS WATCH]; Corinne A. Carey, No Second Chance: People With Criminal Records Denied Access To Public Housing, 36 U. TOL. L. REV. 545 (2005); Lauren E. Burke, Comment, "One Strike" Evictions in Public Housing and the Disparate Inpact on Black Public Housing Tenants in Washington, D.C., 52 How. LJ. 167 (2008). This Note will focus on the private rental market, an area that according to one expert, has been "virtually ignored in discussions about reentry." ANTHONY C. THOMPSON, RELEASING PRISONERS, REDEEMING COMMUNITIES: REENTRY, RACE, AND POLITICS 83 (2008). MichiganJournal of Race & Law (VOL. 15:181 to other special housing arrangements, such as transitional homes, more effectively.9 The lack of housing choice is a social force that both impedes individuals' successful reentry and insulates high populations of individuals with criminal records. Without wide access to affordable and secure housing choices, avoiding a transitory lifestyle in homelessness becomes a primary preoccupation for many individuals, especially recent parolees. This challenge diverts attention from other essential reentry goals, such as finding employment and repairing social bonds with friends and family. Communities also suffer when supporting large reentry populations. This Note will examine whether the policies and practices of private housing providers that reject applicants because of their prior criminal records have an unlawful, disparate impact on racial minorities by denying such individuals the benefits of housing in violation of the federal Fair Housing Act, 42 U.S.C. § 3600, et. seq. (also referred to as Title VIII). Part I will present a statistical examination of the increased use of criminal background searches in the privately-owned housing market. Part II will briefly discuss the compounded impact of exclusionary criminal record policies and racial discrimination in housing for racial minorities. Part III will describe both the courts' treatment of the Title VIII disparate impact claims of racial discrimination modeled after employment discrimination laws in Title VII of the Civil Rights Act of 1964 and an enforcement disparity that exists with respect to criminal record policies. Part IV will evaluate current private criminal-history screening practices as a violation of Section 3604 of the Fair Housing Act (FHA) under a disparate impact theory. Part IV will discuss potential challenges and limitations of securing additional protections for persons with criminal records.

I.THE RISE IN CRIMINAL BACKGROUND SEARCHES AND ITS EFFECT ON THE PRIVATE HOUSING MARKET

A. Higher IncarcerationRates Have Increased the Population of Racial Minorities Living with Criminal Records

Incarceration rates have been on the rise in the United States over the past four decades. From 1970 (two years after the FHA became law) to 2007, the number of inmates in state and federal prisons has increased nearly seven-fold, "' and by 2008, roughly 1.6 million men and women were

9. See Tl~vis, supra note 4, at 224. 10. Press release, U.S. Dep't of Justice Bureau of Justice Stat., "Prison Inmates at Midyear 2008-Statistical Tables and Jail Inmates at Midyear-Statistical Tables," Mar. 31, 2009, available at http://www.ojp.usdoj.gov/bjs/pub/press/pimjimO8stpr.htm (last visited Sept. 6, 2009); THE SENTENCING PROJECT, FACTS ABOUT PRISONS AND PRISONERs (2006), FALL 2009] Do Not (Re)enter under state or federal detention, while 7.3 million men and women were "under correctional supervision," which includes those on probation or parole." The latter number represents 3.2% of the U.S. adult population or one in every thirty-one adults.' 2 A recent report from the Department of Justice concludes that if current incarceration rates remain unchanged, about one in 3every fifteen Americans will serve time in prison during their lifetime.1 People of color are disproportionately affected by high incarceration rates and their collateral consequences. While African Americans make up only 12.3% of the overall population, 4 more than six in ten inmates in federal and state jails are racial or ethnic minorities. Black males have 6.5 times the imprisonment rate of White males and 2.5 times that of His- panic males. 16 Current incarceration rates indicate that an estimated 32% of Black males will enter state or federal prisons during their lifetime, compared with 5.9% of White males. In recognition of this disproportionate impact on minority individuals, protections against discrimination on the basis of a criminal record have begun to emerge, albeit slowly, in other civil rights arenas, such as employment. Similar protections, however have not materialized thus far in housing." The disproportionately high number of individuals of color with criminal backgrounds has many root causes, several of which are economic. However, studies have found that racial discrimination, which occurs at various points in the criminal justice system, including policing, arrest, conviction, and sentencing, also contributes to higher rates of convictions for people of color than non-minorities.'9 For example, although household surveys show that the vast majority of drug users are White,- available at http://www.sentencingproject.org/detail/publication.cfm?publication-id=83 (last visited Sept. 6, 2009). 11. LAUREN E. GLAZE & THOMAS P. BONCZAR, BUREAU OF JUSTICE STATISTICS, PROBA- TION AND PAROLE IN THE UNITED STATES 2007, 2007 STATISTICAL TABLES 1, available at http://www.ojp.usdoj.gov/bjs/abstract/ppus07st.htm (last visited Sept. 6, 2009). 12. Id. 13. BUREAU OF JUSTICE STATISTICS, U.S. DEPT OF JUSTICE, CRIMINAL OFFENDER STATISTICS: PREVALENCE OF IMPRISONMENT IN THE UNITED STATES (1974-2001), http:// www.ojp.usdoj.gov/bjs/crimoff.htm#data. 14. U.S. CENSUS BUREAU, UNITED STATES CENSUS 2000, available at http:// www.census.gov/main/www/cen2000.htnl. 15. CRIMINAL OFFENDER STATISTICS, supra note 13. 16. PRISON INMATES AT MIDYEAR 2008, sipra note 10, at 4. 17. CRIMINAL OFFENDER STATISTICS, supra note 13. 18. See infra Part III.B. 19. TODD CLEAR, IMPRISONING COMMUNITIES: How MASS INCARCERATION MAKES DISADVANTAGED NEIGHBORHOODS WORSE 64 (2007) ("Some studies seem to show that small racial biases at successive stages in the criminal justice process may result in substantial racial differences at the end of the process."); see also DEVAI PAGER, MARKED: RACE, CRIME, AND FINDING WORK IN AN ERA OF MASS INCARCERATION 20,170 n.44 (2007). 20. PAGER, supra note 19, at 20. MichiganJournal of Race & Law [VOL. 15:181

Blacks are five times more likely than Whites to be arrested for drug offenses, and they receive three quarters of the prison sentences for drug • 21 possession. The total population of people whose criminal histories may affect their access to housing is unknown; however, a few calculations suggest its enormous scale. There are several million ex-felons in the U.S.12 One estimate calculates that about five million are barred from public housing for having a federal conviction within five years.23 Far more individuals have a criminal history record on file with state authorities-one recent count totaled 59 million individual offenders, or 29% of the U.S. adult population. Other estimates conclude that about 25% of the U.S. population lives with a criminal record at some point in their lives.2 That figure suggests that under current law, private landlords at some point in their lives may be permitted to deny housing to as much as one quarter of the U.S. population, the majority of whom are people of color, due to a past criminal record. Along with the increased size of the segment of society under incarceration, the profile of those who leave prisons has also shifted. Compared with the early 1980s, today's released prisoners are older and more likely to be first-time offenders. 6 Such statistical changes lessen the absolute need for a private landlord to turn away all applicants with some form of

21. Letter from Theodore M. Shaw, President and Director-Counsel of the NAACP to Richard A. Herlting, Deputy Assistant Attorney General, Office of Legal Policy, "Re: Civil Rights Implication of Criminal Background Checks in the Employment Context" 2 (Aug. 2, 2005), available at http://www.usdoj.gov/olp/pdf/naacpldfcomentsa.pdf, see also PETERSILIA, supra note 6, at 28. 22. See, e.g., Devah Pager, The Mark of a Criminal Record, 108 AM. J. Soc. 937, 938 (2003) (quoting an estimate of 12 million); see also ERIKA WOOD & RACHEL BLOOM, BRENNAN CTR. FOR JUSTICE AND ACLU VOTING RIGHTS PROJECT, DE FACTO DISENFRANCHISEMENT 1 (2008) (estimating that four million former felons are still affected by felon-disenfranchisement laws), available at http://wwwbrennancenter.org/content/ resource/defactodisenfranchisement (last visited Sept. 9, 2009). 23. HUMAN RIGHTS WATCH, supra note 8, at 34 (averaging the number of felons convicted each year and multiplying by 5). 24. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, USE AND MANAGEMENT OF CRIMINAL HISTORY RECORD INFORMATION: A COMPREHENSIVE REPORT, 2001 UPDATE 30 (2001) (quoting a survey that found more than 59 million individual offenders were in the criminal history files of the State central repositories as of December 31, 1999). The same report states that the FBI also maintains about 43 million entries in its master name index, though it is unclear how many of these entries overlap with state records. Id. at 6. 25. Debbie A. Mukamal &Paul N. Samuels, Statutory Limitations on Civil Rights of People with Criminal Records, 30 FoRDrHAM URB. L.J. 1501, 1502 (2003). 26. For example, since 1994, serious violent crime levels, violent crime rates and property crime rates continue to decline. Meanwhile, the estimated number of arrests for drug violations for adults continued to increase, from 322,300 in 1970 to 1,693,100 in 2005. BUREAU OFJUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, KEY CRIME & JUSTICE FACTS AT A GLANCE, available at http://www.ojp.usdoj.gov/bjs/glance.htm; see also PAGER, supra note 19, at 38. FALL 2009] Do Not (Re)enter criminal record because these records may have little bearing on their success as a tenant. In light of the vast expansion of the community of individuals with criminal records and the racial consequences of discriminating against individuals with criminal convictions, the policy reasons for courts and legislatures to ensure that these individuals are afforded equal opportunity to find stable and affordable housing are more compelling than ever.

B. The Burgeoning Use and High ErrorRates of Public and Commercial Criminal Background Services

Lifelong stigmatization of released prisoners has not always been a part of the U.S. tradition.27 But over the last 10 years, criminal records have become more widely available and, as a result, are being used for non-law enforcement purposes more than ever.28 Advances in technology now allow for near-instant results drawn from multiple databases. With these technical breakthroughs in screening, today's individuals with crirni- nal records face unprecedented stigmatization.9 By 2003, 94% of the criminal history records maintained by the state criminal history repositories were automated (71 million records).30 Post-9/11 screening requirements have contributed to an "explosion" in the demand for criminal background checks in employment and tenant placement.3' The growth of this practice is evidenced by a giant commercial sale industry that has emerged to fulfill this demand.32 For example, the brochure of a leading company boasts in its brochure that its

27. In fact, in certain early colonies, such as Georgia, many early settlers were formerly incarcerated individuals who had been released from English prisoners and were given full, unrestricted status as citizens upon arrival in the U.S. Nora V. Demleitner, Pre- venting Internal Exile: The Need for Restrictions on Collateral Sentencing Consequences, 11 STAN. L. & POL'Y REV. 153, 153 (1999). Before computer records were easily accessible, most criminal records were obtained by calling the courts in an individual's local jurisdiction to request his or her file be pulled and examined. 28. SHARON M. DIETRiCH, EXPANDED USE OF CRIMINAL RIECORDS AND ITS IMPACT ON RE-ENTRY, PRESENTED TO THE AMERICAN BAR ASSOCIATION COMMISSION ON EFFECTIVE CRIMINAL SANCTIONS (March 3, 2006), available at http://meetings.abanet.org/ webupload/commupload/CR209800/sitesofinterest files/Dietrichpaper.pdf 29. PETERSILIA, supra note 6, at 106-08. 30. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SURVEY OF STATE CRIMINAL HISTORY INFORMATION SYSTEMS (2003). 31. DirRICH, supra note 28, at 3. 32. BUREAU OF JUSTICE STATISTICS SEARCH, REPORT OF THE NATIONAL TASK FORCE ON THE COMMERCIAL SALE OF CRIMINAL JUSTICE RECORD INFORMATION 7 (2005), available at www.search.org/files/pdf/RNTFCSCJRI.pdf It is estimated that there are hundreds, maybe even thousands, of regional and local companies, in addition to several large industry players who provide these services. Some examples of the major companies include: First Advantage, http://www.fadvsaferent.com; LexisNexis Resident Data/ChoicePoint, https://www.residentdata.com; LeasingDesk, http://ww.realpage.com/leasingdesk. MichiganJournal of Race & Law [VOL. 15:181

"Resident Data" screening service combines criminal, proprietary, and credit data for over 200 million convictions associated with more than 62 million unique individuals, 33 to which it adds approximately 22,000 new records daily. Private housing providers have embraced the boom in available background data. While aiming to maintain safety on their property is reasonable, the widespread adoption of tenant-screening practices based on criminal convictions is problematic for several reasons. A major concern that arises with this increased dependence on criminal history information is the degree of accuracy. Commercial criminal record databases and services, especially name-based searches, have been found to be rife with error 5 and may report irrelevant arrest records or outdated convictions that have been expunged36 from an individual's history.37 Poor data integrity may result in the attribution of an offense to the wrong individual (also referred to as a "false positive"), a listing of the wrong offense, an offense listed more than once, and reports in which the disposition of arrests has not been entered long after charges were dropped. 38 Furthermore, declines in funding have led to even less oversight and clean-up of the federal

33. ChoicePoint "Resident Data" Brochure, http://www.choicepoint.com/ business/tenantfamily-screening.htn- (click on "Brochure") (last visited Sept. 9, 2009). 34. For example, a report from National Association of Professional Background Screeners stated that "serious problems remain in the process to link dispositional information to the proper case and charge." CRAIG N. WINSTON, THE NATIONAL CRIME INFORMATION CENTER: A REVIEW AND EVALUATION 6 (2005) (stating further that only 45% of 174 million arrest cycles have dispositions reported), available at http:// www.reentry.net/search/itein.88782. 35. Id.; see also, OFFIcE OF THE ATTORNEY GEN., U.S. DEP'T OF JUSTICE, THE ATTORNEY GENERAL'S REPORT ON CRIMINAL HISTORY BACKGROUND CHECKS 40, 53-55, (June 2006), www.usdoj.gov/olp/ag-bgchecks-report.pdf. 36. Forty states allow arrests to be expunged/sealed if they did not lead to conviction. Debbie A. Mukamel & Paul N. Samuels, Statutory Limitations on Civil Rights of People with Criminal Records, 30 FORDHAM URBAN L.J. 1501,1509 (2003). 37. A leading commercial service admitted that the initially perceived value from the "very low price" associated with static databases or online court indexes may be offiet by the relevance and accuracy of the information. SEARCH, supra note 32, at 12 n.61 (quoting ChoicePoint, "[c]lients who retrieve records through direct vendor access are usually provided raw data or record information ... [which] requires additional effort by the client to validate the accuracy of the record and its connection with the subject"). 38. While fingerprint searches are known to be far more precise and thus accurate, many repositories operate on name-matching criteria. KELLY R. BUCK , DEP'T OF DE. PERSONNEL SECURITY RESEARCH CTR., GUIDELINES FOR IMPROVED AUTOMATED CRIMINAL HISTORY RECORD SYSTEMS FOR EFFECTIVE SCREENING OP PERSONNEL 3 (2002), available at http://www.siacinc.org/documents.aspx ("Fingerprint-based checks, as opposed to name- based checks, maximize the likelihood that criminal conduct is associated with the actual person who committed the crimes and that all crimes committed by an individual are identified"); see also SEARCH, supra note 32, at 9; DIETRICH, supra note 28, at 8. FALL 2009] Do Not (Re)enter records databases.39 If a false positive shows up, an applicant may not be aware of the mistake nor have the opportunity to prove that the public record is incorrect. Criminal record searches differ from credit reports in this respect.4" Furthermore, especially with regard to private landlords who are not knowledgeable about predictors of future criminal behavior, the easy availability"1 of such a report makes it a tempting but misunderstood method of tenant selection. Criminal records are technically complex and often use abbreviations known only to the law enforcement field. Inexpe- rienced recipients of criminal background reports may be unsure of and unwilling to analyze the relevancy of the information supplied. In fact, many commercial screening services are designed precisely so that

39. As the usage of criminal background data increases, the costs of maintaining its integrity would expectedly go up. However, from 2000 to 2007, the amount of federal spending by the Department of Justice's Bureau ofJustice Statistics (BJS) through its Na- tional Criminal History Improvement Program (NCHIP) grants-aimed at maintaining an accurate and complete criminal records system-considerably declined, from 47 states receiving 40 million dollars in 2000 to 27 states receiving less than 10 million in 2007. U.S. Gov'T AccouNTABILITY OFFIcE, BUREAU OF JUSTICE STATISTICS FUNDING TO STATES TO IMPROVE CRIMINAL RECORDS 6 (2008), www.gao.gov/new.items/d08898r.pdf. 40. It is unclear what legal remedies are available to individuals whose information may be inaccurate and related sanctions exist for commercial agencies that report bad criminal history information. Other areas of the law provide redress for inaccuracies disseminated by consumer reporting agencies. See Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681v (2009). The FCRA requires that employers taking adverse action against employees based on information obtained in a credit report provide the consumer with a copy of the report and a written description of the consumer's rights. These rights include the right to: (1) be told if credit report information is used against them; (2) see the information in the agency's file; (3) dispute information in their file; (4) correct or delete inaccurate information if it cannot be verified; (5) delete outdated information; (6) refuse to consent to an employer's request for their report; (7) exclude the individual's name from the list the agency provides to unsolicited credit and insurance providers; and (8) seek damages from those violating the FCRA. 15 U.S.C. 5 1681(m). Additionally, the Fourth Circuit has held that under the FCRA, a credit reporting agency may have violated federal law when it erroneously stated that a prospective employee was a felon, and the prospective employee's conditional offer of employment was revoked. See Dalton v. Capital Associated Indus., Inc., 257 F3d 409 (4th Cir. 2001). 41. In most states, criminal record information is available through online databanks that can be checked by the public for free or at a low cost. Some state and local governmental agencies have discovered the profitability in offering the service at a price. For example, the Indianapolis Police Department makes criminal histories available at $15 per search on their web site, http://www.civicnet.net/allservices.html; the South Carolina Law Enforcement Division charges $25 per name to perform a statewide criminal check on a name, http://www.sled.sc.gov/CATCHHome.aspx?MenulD=CATCH. 42. For example, a ten-year-old non-violent conviction may have little to no reliable indication of future criminal conduct. See Megan C. Kurlychek, Robert Brame, & Shawn D. Bushway, Enduring Risk? Old CriminalRecords and Short-Tern, Predictions of Crimi- nal Involvement, 53 CRIME & DELINQ. 64, 84 (2007) (concluding that "if a person remains crime-free for a period of about 7 years, his/her risk of a new offense is similar to that of a person without any criminal record"). MichiganJournal of Race & Law [VOL. 15:181 landlords do not have to spend time considering the individual's specific criminal history.43 Federal guidance for how these automatic determinations are to be administered may ensure fairer results and avoid landlords' fears of liability. Housing providers may set unreasonably stringent screening policies because they are uninformed about the relevant risk factor associated with various criminal records.45 Furthermore, uniform federal guidance could answer basic questions such as "What counts as a criminal record?" that have yet to be answered by any one source.46

C. Private Housing Provider Screening Policies and Practices

Researchers see the growth in tenant background checks as the result of several changes in the expectations of landlord duties and corresponding liabilities over time.47 The first shift-liability standards- followed the 1970 case Kline v. 1500 Massachusetts Avenue Apartment Corp., in which a tenant prevailed in a suit against her landlord after being

43. Whether such automated processes screen out only those applicants with substantially related criminal convictions or overly broad convictions is an important question that may determine their legality. For example, the product description for one service ("Registry CrimSAFET M") offered by First Advantage SafeRent claims it is "designed for clients who want First Advantage SafeRent to analyze criminal reports and provide a clear accept/decline leasing decision to their staff based on the client's own predetermined criteria. CrimSAFE ensures consistent decisions, improves Fair Housing compliance, and frees your staff from interpreting criminal reports." Registry CrimSAFE Product Brief (on file with author). 44. Comprehensive and exact restrictions will allow for clearer analysis in the courtroom, which may dispel employers' fears of liability. See Ford v. Gildin, 613 N.YS.2d 139, 141-142 (N.Y App. Div. 1994) (dismissing a negligent hiring claim when an employee with a nine-year-old manslaughter conviction sexually abused a minor living in the residential building where he worked, since it was not directly related to the employee's position as a porter in a residential building and doing so would result in subjecting the employer to "potentially catastrophic liability for any crime committed by that employee which was even minimally connected to the place of his employment"); see also Smith v. Howard, 489 So. 2d 1037, 1038 (La. Ct. App. 1986) (dismissing tenant civil complaint against landlord after being shot by another tenant) (relying on the "well settled law" that unless a special relationship exists "there is no duty to control the actions of a third person and thereby prevent him from causing harm to another"). 45. See discussion infra Part IVA. 46. No single definition exists to differentiate between the many complex dispositions that can result from an initial charge. For example, a Department of Labor training manual informs employers that they may legally consider convictions in making hiring decisions, but can only look at arrest records if there is a business justification for doing so. DEBBIE MuKAMAL,U.S. DEP'T or LABOR, FROM HARD TIME TO FULL TIME: STRATEGIES TO HELP MovE Ex-OFFENDERS FROM WELFARE TO WORK (2001). 47. See, e.g., David Thacher, The Rise of Criminal Background Screening in Rental Hous- ing 33 LAW & Soc. INQUIRY 5 (2008). FALL 2009] Do Not (Re)enter

48 robbed and assaulted in her building's hallway. That case represented a shift from the traditional view, that the landlord was protected from any wrongdoing of tenants, to the modern position, which places a public policing responsibility with landlords. 49 As localities began to erect various nuisance penalties for property owners, "how-to" landlord guides and training programs emerged to instruct landlords on methods they can use to investigate criminal history information and legally consider criminal history information for prospective tenants.'s The second key development that has driven the expanded use of criminal records is the professionalization of the real estate industry and the increasing use of property management firms to handle daily on-site logistics. As one author puts it, the real estate market has become "increasingly concentrated in the hands of people who view landlording as a full- time job, and it is increasingly supported by a network and an industry of supportive services and expertise."' ' This has created the infrastructure necessary to disseminate detailed guidance about the use of tenant screening. Additionally, it has: 1) allowed the costs of such screening methods to be borne collectively, 2) given the managers political capital with local and national legislatures, and 3) provided for the development of legal education materials to advise managers on screening 2 practices that pur- portedly do not expose landlords to civil liability.5 As has been the trend in the employment field, private landlords are taking advantage of greater access to criminal record data in their screening procedures. This is particularly true among larger national rental companies.5 3 In a study conducted by the National Multi-Housing

48. 439 F2d 477 (D.C. Cir. 1970). 49. See Thacher, supra note 47, at 15. State and local governments adopted these changes by passing public nuisance laws and using civil sanctions (e.g., building code enforcement) to pressure landlords to control crime. Today, most states allow government or private parties to bring nuisance claims against the owner of an apartment building for high levels of criminal activity. 50. See, e.g., Rosales v. Stewart, 169 Cal. Rptr. 660 (Ct. App. 1980) (holding in case where a young girl was shot through the window by neighbor that landlord's knowledge of the acts of the tenant and of the danger he posed was not in itself sufficient to impose liability, but also that plaintiffs might have been successful if the landlord had the opportunity and the ability to eliminate the dangerous condition being created by the tenant). But see Anaya v. Turk, 199 Cal. Rptr. 187 (Ct. App. 1984) (holding that the mere fact that the tenants knew that a guest third party had been in federal prison was an insufficient basis to support a finding that the third party's dangerous propensities and his shooting the guest were foreseeable to the tenants). 51. Thacher, supra note 47, at 20. 52. Id. at 22-23. For example, advising landlords to question all distributing sample forms for notifying rejected applicants why they were rejected, as required by the Fair Credit Reporting Act. 53. See, e.g., Choicepoint supra, note 33. ChoicePoint's Resident Data, performs the background screening for more than one million rental units in thousands of communities. MichiganJournal of Race & Law [VOL. 15:181

Council (NMHC)-an organization of large apartment companies-of their members' crime-prevention practices, 80% reported that they screen prospective tenants for criminal histories. 4 Those that conduct background searches often publicize this information for marketing purposes.55 Some cities now fully encourage landlords to participate in police- run certification programs for "crime-free" housing programs, which often include daylong training sessions on how to screen tenants based on background information. 6 Local groups may add pressure to complete such programs by publishing the names of those who do not participate or by charging higher licensing fees for those that do not enroll.S7 The growth of these programs suggests this trend will continue.

D. Private Housing Providers and Federal Funding: Housing Choice Voucher Program

While not generally considered a matter of private housing, the convictions prohibitions found in the regulations of HUD's Housing Choice Voucher (HCV) program (formerly known as "Section 8") involves an intersection of private rental companies and public funding support."' The HCV program provides approximately 2 million low- income families with subsidized housing."5 Because the federal government funds HCV programs, the HUD disqualifications based on criminal records apply to HCV participants. The federal funding scheme usually

54. Thacher, supra note 47, at 12. 55. For example, Choice Point®, a leading provider of such services, states that its client, JMG Realty, has a policy of conducting background checks on "each of the nearly 25,000 applicants seeking to rent or renew leases on over 20,000 apartment units it owns or manages across seven states." Choice Point Customer Feedback Testimonial, http://www.choicepoint.com/business/tenant family-screening.html. "Technology has enhanced the accuracy of resident screening far beyond the simple credit checks and employment histories of the past, stopgap measures that were porous enough to allow convicted criminals and child abusers to pass unnoticed and put innocent and unsuspect- ing residents in thousands of communities at risk." Id. 56. Thacher, supra note 47, at 18. For example, Portland's "landlord training programs" became a national model to be replicated by 400 other cities, and Mesa, Arizona's "Crime-Free Multi-Housing Program" (CFMH) has conducted trainings for 2,000 cities in the U.S., Canada, and abroad. A recent survey conducted by the National Multi- Housing Council found that 77% of its apartment owner members participated in some kind of "crime prevention/safety awareness program" with local police, and 40% participated in CFMH alone. Id.; see also International Crime-Free Association, Crime Free Rental Housing, available at http://www.crime-free-association.org/rental-housing.htm (last visited,Nov. 15, 2009). 57. Id. 58. See 42 U.S.C. % 13661-64 (2008). 59. U.S. DEP'T OF Hous. & URBAN DEV., FIscAL YEAR 2009 BUDGET SUMMARY, available at http://www.hud.gov/about/budget/fy09/fyO9budget.pdf (last visited Dec. 20, 2008). FALL 2009] Do Not (Re)enter provides for local public housing authorities to administer the distribution of the housing vouchers. In considering applications for housing vouchers, these local authorities are allowed to expand upon federal prohibitions to include more types of convictions if so desired.' Once an HCV program applicant has survived HUD's required criminal record disqualifications, and his or her eligibility for the program has been established based on income and other factors, the recipient typically is put on a waiting list. 61When a voucher becomes available, he or she is then responsible for finding a landlord who is willing to enter into the voucher arrangement with the tenant.62 Because the housing search takes place outside the monitoring of the local public housing authority, PHA, it is likely that private landlords who choose to discriminate against regular (non-voucher) renters based on past convictions would apply a similar disqualification criterion to HCV program participants. 63 Thus, though the public housing authorities are ostensibly under certain federal guidelines for the use of criminal convictions, private landlords may discriminate against certain federal housing voucher program participants through their own screening practices. The impact of private providers' screening practices on recipients of federal housing assistance may grow as the national model for public housing continues to shift from concentrated high-rise developments to HCV programs and "mixed-use" private developments.64

60. See HUMAN RIGHTS WATCH, supra note 8, at 3. No consistent national data is available on how many people are rejected from eligibility due to their convictions, but around four-fifths of public housing agencies participating in the HCVP (Section 8) surveyed by the HUD reported that they have or were about to adopt a process for disqualifying applicants based on criminal background. DEBORAH J. DEVINE ET AL., U.S. DEP'T OF Hous. & URBAN DEV., THE USES OF DISCRETIONARY AuTHORITY IN THE TENANT- BASED SECTION 8 PROGRAM 15 (2000), available at http://www.huduser.org/publications/ pdf/sec8da.pdf. However, these numbers do not accurately reflect the number of ex-prisoners affected because those coming out of prison are often informed of their in- eligibility and chose not to apply. 61. U.S. DEP"T OF Hous. & URBAN DEV., HOUSING CHOICE VOUCHERS FACT SHEET, http://www.hud.gov/offices/pih/programs/hcv/about/factsheet.cfmn. 62. Id. According to HUD's literature, "[w]hen the voucher holder finds a unit that it wishes to occupy and reaches an agreement with the landlord over the lease terms, the PHA must inspect the dwelling and determine that the rent requested is reasonable." Id. 63. The practice of purposeful nonparticipation in the housing search process might be construed as a Title VI violation (by maintaining a federally funded system of housing in a manner that has an unlawful disparate impact on the basis of race, color, or national origin); however, the avenue for a private right of action on a disparate impact theory was cut off by the Supreme Court in 2001 in Alexander v. Sandoval, 532 U.S. 275, 293 (2001). For that reason, the FHA remains the only appropriate federal statute under which to challenge widespread landlord practices on a disparate impact theory. 64. See generally Judith Brown-Dianis & Anita Sinha, Exiling the Poor: The Clash of Redevelopment and Fair Housing Post-Katrina, 51 How. L.J. 481 (2008). Screening practices also affect victims of federal disaster emergencies who have lost their housing, some of whom rely on government vouchers to relocate. See Eloisa C. Rodriguez-Dod & Olympia Michiganjournal of Race & Law [VOL. 15:181

II.THE COMPOUNDED EFFECTS OF EXCLUSIONARY POLICIES ON RACIAL MINORITIES

The predictable consequence of this increased availability of criminal history information is a greater likelihood that an individual will be removed from the consideration process due to a past record.6' Under federal law, private landlords are generally at liberty to reject individual66 applicants from housing eligibility on account of a criminal record. Landlords typically request such a disclosure in an application form,67 which presents potential renters with criminal histories with a "prisoner's 69 dilemma" of sorts:6 telling the truth will result in immediate rejection and lying may result in constant vulnerability for eviction based on the earlier cover-up. While fair housing advocacy has led to some standardized practices that prevent such policies from being carried out in a discriminatory manner-for example, requiring landlords to conduct background searches of all applicants instead of only certain individualsT7 -few alternatives exist for those turned away from private housing solely due to a blanket rule against leasing to individuals with criminal records. State and local legislative bodies have taken steps to begin to reduce the many barriers to reentry. In states such as New York, Wisconsin, and Hawaii, individuals with criminal records are afforded extra protection from discrimination in employment, where statutory safeguards liken their status to that of other protected categories under Title VII (such as

Duhart, Evaluating Katrina: A Snapshot Of Renters' Rights Following Disasters, 31 NOVA L. REV. 467, 477-84 (2007). 65. See e.g., PETERSILIA, supra note 6. While little testing has been published on housing search, studies in the employment area have shown that most employers, if provided with information that an applicant had a criminal record would not hire that person, regardless of the particular crime committed and its relation to employability. One study showed individuals with criminal records were only one-third as likely to be employed as equally qualified individuals without a record. PAGER, supra note 19, at 5. 66. See 42 U.S.C. 3601. However, the amount and extent of criminal justice record information that can be relied upon by the rental housing industry can vary by local housing nondiscrimination laws, which can affect the extent to which a landlord can refuse to rent to someone merely because of a criminal record. SEARCH, supra note 32. 67. However, tenant screening may also be conducted informally, on an individual face-to-face basis, which makes detection of discriminatory application of the screening policy harder to detect. 68. See Tivis, supra note 4, at 223. 69. J. Helfgott, Ex-Offender Needs Versus Community Opportunity in Seattle, Washington, 61 FED. PROBATION 12, 20 (1997) (finding in a survey of 196 landlords in Seattle, 43% said they would be inclined to reject an applicant with a criminal conviction). 70. General industry knowledge advises that landlords should be consistent in screening practices and have a written policy on file that details the reasons they would reject an applicant including criminal history to avoid a discrimination suit. However, this type of suit differs from the disparate impact claim explored in this note. See discussion infra Part IVA. FALL 2009] Do Not (Re)enter racial minorities and women).7 The California Supreme Court has interpreted the state's Unruh Act to "protect all persons from any arbitrary discrimination by a business establishment," regardless of membership in a protected 72 class. In a few localities, ordinances specifically prohibit against73 discriminating on the basis of criminal convictions in tenant screening.

A. Effects on the Individual

The mark of a criminal record, unlike that of a prestigious degree or license, creates a "negative credential" of a stigmatized social status that resultsother in • limited . .74 opportunity and access in social, economic, political, and other activities. Furthermore, the compound effect of being both a racial minority, particularly an African American, and an individual with a criminal record may result in a "double strike. 7 At least one controlled study has found a statistically significant difference in employment between being a White individual with a criminal record and being a Black individual with a criminal record, finding that Black individuals with a

71. See HAW. REV. STAT. 378-2.5 (2009); N.Y EXECUTIVE LAW § 296 (McKinney 2009); N.Y CoRREcT. LAW § 750 (McKinney 2009); Wis. STAT. ANN. § 111.321 (West 2009). 72. Marina Point, Ltd. v. Wolfson, 640 P.2d 115, 120 (Cal. 1982) (noting that the state's Unruh Act, Cal. Civ. Code § 51 (2007) has been held to apply with full force to the business of renting housing accommodations). 73. For example in Madison, Wisconsin, the local ordinance code prohibits discrimination in housing to persons with arrest/conviction records older than two years or not involving offenses such as drug-related criminal activity, disturbance of neighbors, destruction of property or criminal activity involving violence to persons or property. MADISON, Wis. GENERAL ORDINANCES 5 39.03 (2007). Dane County, Wisconsin, only allows consideration of a conviction record in housing based on a reasonableness standard: "where the nature of the offense is such given the nature of the housing, so as to cause a reasonable person to have justifiable fear for the safety of residents or employees." DANE CouNTY,WIs.FAIR HOUSING ORDINANCE § 31.11 (2007). 74. For this reason, many cities and some states, such as Boston, Chicago, Minnea- polis, San Francisco and the state of Hawaii have joined the "Ban the Box" campaign, which aims to remove the criminal conviction question on job applications for prospective employees. Other models aim to delay the question until a later stage in the hiring process, so that a job offer can be made contingent on a criminal background check. The EEOC is currently considering recommendations to implement this provision in new employment discrimination enforcement guidance. See Transcript, Commission Meeting of November 20, 2008 on Employment Discrimination Faced by Individuals with Arrest and Conviction Records (January 29, 2009), http://www.eeoc.gov/abouteeoc/ meetings/11-20-08/transcript.html. The presumptive benefit of the later introduction of criminal record information is that, after selecting the individual for a conditional offer, the employer may be more willing to overlook the conviction or at least try to balance the relevance of the record in light of the job position. See Recent Legislation Establishing Standards for Hiring People with Criminal Records, http://www.saferfoundation.org/ docs/HiringStandardsMatrix Final_(2).pdf 75. PAGER, supra note 19, at 69-71. Michigan.Journalof Race & Law [VOL. 15:181

criminal record received only 5% job callbacks compared with 17% of White individuals with the same record.7 6 The same study also demonstrated that the Black individuals fared particularly poorly in suburban job searches: White testers fared 2:1 to Black testers for callbacks in the cities, but 5:1 in the suburbs. Finding housing in the initial months up to the first three years out of prison is critical to an individual's successful reintegration to society.7 Many experts say that lack of housing alone operates as a predictor for recidivism.1 An unsuccessful housing search will have a profoundly negative effect upon the quality and safety of the housing that these individuals are able to secure.7OThe inability to locate his or her own accommodations often may lead a recently released prisoner right back into crime. 8° Forcing them to stay with family can also negatively impact their families in both legal ways (threatening their own housing stability if in public housing) and non-legal ways (in the case of detrimental relationships). The individual may also suffer mentally because living with

family may hurt his or her81 chances of having a new sense of responsibility and positive self-esteem. Homelessness-immediate or eventual-among parolees and ex- offenders is a serious problem nationwide. 2 Housing assistance is not typically provided in pre-release process and the vast majority of released prisoners are left to find their own housing and employment upon re-

76. Id. at 110. 77. THOMPSON, supra note 8, at 86. 78. Id. 79. For example, a study conducted in New York City of recently released men and women found that due to high rents, subjects were often unable to rent private housing in their old neighborhoods. Instead they were forced to find housing in areas where they had no support network and through less traditional search methods, such as word of mouth, room rentals, unprofessional advertisements, and online classifieds, which in many cases are particularly ripe for fraud and if not fraudulent, were found to be of substandard quality and safety. See POLICY WORK GROUP OF THE HARLEM COMMUNITY AND ACADEMIC PART- NERSHIP, HOUSING AND REINTEGRATION IN EAST AND CENTRAL HARLEM: COMING HOME AND No PLACE TO LIVE 15-16 (2007), http://www.reentry.net/ny/library/item.160511 (last visited Sept. 6,2009). 80. See id. 81. SeeCLEAR, supra note 19, at 136. 82, See THOMPSON supra note 8, at 68. A study of Los Angeles and San Francisco found between 30% and 50% of parolees in those cities are homeless. Furthermore, shelters and homeless areas require parolees to quickly break a condition of parole: that they are not to associate with others with criminal backgrounds. Id. One national study found that 49% of homeless individuals interviewed had spent five or more days during their lifetime in a city or county jail and 18% had been in state or federal prison. Martha R. Burt et al., HOMELESSNESS: PROGRAMS AND THE PEOPLE THEY SERVE 25 (1999), available at http://www.urban.org/publications/310291.html (last visited Sept. 9, 2009). FALL 2009] Do Not (Re)enter lease.8 3 In many urban areas, service providers will not consider recently released individuals "homeless" until they have lived on the streets for8 421 days, thus barring them from access to homeless programs and services. Great attention has been brought to the difficulties of finding housing for sex offenders, who are often subject to registration and notification laws,8 which make them ineligible for public housing and subject to immediate exclusion. 6 While this Note encompasses a population broader than the sex-offender community, it should be noted that communities go to great lengths to keep sex offenders out and force the offender to find housing elsewhere.87 Data suggest this has contributed to growing populations of homeless sex offenders forced into destructive living arrangements.8

B. Effects on Communities

Pushing a high number of formerly incarcerated individuals into whatever housing they can find-often low-income, urban areas-results in "imprisoned communities" of color that lack the grounding social forces that typically bond communities together.89 Often the burden of the reentry process is absorbed by the communities that take them in, which may already be struggling with other social problems, such as unemployment, limited opportunities, lack of good health care, and homelessness.90 When formerly incarcerated individuals are spatially concentrated, particularly in low-income communities, this burden may become too much to carry.9'

83. CATERINA Gouvis ROMAN & JEREMY TRAvis, THE URBAN INSTITUTE, TAKING STOCK: HOUSING, HOMELESSNESS, AND PRISONER REENTRY 6 (2004), available at http:// www.urban.org/UploadedPDF/411096 taking-stock.pdf (last visited Nov. 15, 2009). 84. See POLICY WORK GROUP, supra note 79, at 16. 85. There is little research on how notification laws reduce re-arrest and recidivism rates. HUMAN RIGHTS WATCH, No EASY ANSWERS: SEX OFFENDER LAWS IN THE U.S. 58-59 (2007), available at http://www.hrw.org/en/reports/2007/09/1 1/no-easy-answers (last visited Sept. 9, 2009). 86. TRAviS, supra note 4, at 224. 87. One study showed that 83% of sex-offenders interviewed who were subject to notification laws were rejected from specific residences. Id. at 225. 88. See e.g., id. at 226 (describing homeless population of Pioneer Square in Seattle). The threat of homelessness may even lead a released sex-offender to revoke his or her parole. See ASSOCIATED PEss, Homeless, Jobless Sex Offender Decides to Revoke Parole, Returns to Prison, May 14, 2003. 89. See generally CLEAR supra note 19. 90. See, e.g., PAGER, supra note 19, at 25. 91. To illustrate the high costs that are associated with highly concentrated communities of ex-offenders, the Justice Mapping Center is a Columbia University-based group that examines patterns of incarceration costs using spatial map technology. Their project "Million Dollar Blocks," shows that a disproportionate number of the more than 2 million people in prisons or jails across the nation come from a small number of neighborhoods in MichiganJournal of Race & Law [VOL. 15:181

The effects of dense ex-offender populations on both the individual and community can be described in social, emotional, political, and economic terms. Theories of "concentrated disadvantage" and "coercive mobility" (Which argues that after a certain point, high incarceration rates concentrated in impoverished communities will cause crime to increase)9 2 describe the host of ways in which life becomes harder for those including the impact on political power,93 who live in these communities, 94 95 96 9 community interactions,94 affluence and access to jobs, health,96 stigma,97 peer influence and education,98 children and family stability,99 marriage and relationships,0 and victimization rates.0 These additional problems" big cities. The Center found that in 2003, it would cost over $35 million to incarcerate people from 35 blocks in Brooklyn, New York. Most of the incarcerated returned to the same concentrated areas after release. See Jennifer Gonnerman, Million-Dollar Blocks: The Neighborhood Costs of America's Prison Boom, VILLAGE VOICE, Nov. 9, 2004; see also Gary Fields, Hidden Costs: Communities Pay Price Of High Prison Rate-Phoenix Neighborhoods Missing Men, WALL ST.J.,July 10, 2008 at Al. 92. See CLEAR supra note 19, at 149. 93. As of 1998, an estimated 3.9 million Americans were permanently unable to vote because they had been convicted of a felony. Of these, 1.4 million were African American men-13% of all Black men. PETERSILIA, supra note 6, at 1. 94. Studies show that involvement with the criminal justice system leads to distrust and disrespect for government systems, and may erode residents' commitment to their community and willingness to participate in community activities. Id. at 30. Another basic presumption is that communities are better equipped to thwart off a threat when they have a developed network of political and social institutions prior to its occurrence. In this light, incarceration affects "collective efficacy," the ability to act on the behalf of the common good through community solidarity. See CLEAR supra note 19, at 115-16. 95. Incarceration impacts lifelong earning potential. High incarceration rates directly affects the market for goods and services and property values erode labor market opportunities for the whole community (resulting in fewer adults as role models and higher likelihood of illegal markets). Additionally, job discrimination against those with criminal records may lower employment too. CLEA supra note 19, at 94-120. 96. Nicholas Freudenberg et al., Coming Home From Jail: The Social and Health Conse- quences of Community Reentryfor Women, Male Adolescents, and Their Families and Communities, 95 AMER. J. oF PUB. HEALTH 1725, 1734 (2005) (showing that individuals leaving jail may contribute to health inequities in the low-income communities to which they return). 97. High concentrations of offenders affects property values and encourages stereotypes, especially with respect to law enforcement officials, who may draw inferences from a person's address alone, or businesses that might not want to open there. CLEAR supra note 19, at 94-120. 98. Young people are especially influenced by shared anti-social behavior such as indifference to education, interpersonal violence, etc. Id. 99. Children learn about social interaction from their parents, and are most impacted by their parents' ability to garner social resources and interact with community- level agencies. Id. 100. Over 90% of inmates are men-removing them leaves an imbalanced ratio of women to men. Id. 101. Living where there is a greater chance of being victimized can cause higher stress levels, and trauma in the case of actual victimization. Id. FALL 2009] Do Not (Re)enter are damaging not only to the other members of the community, but also to the recovering individual, whose stability and rehabilitation goals may be affected by living in a stigmatized, economically depressed, or politi- cally crippled community.

III. DISPARATE IMPACT TREATMENT OF CRIMINAL BACKGROUND SEARCHES UNDER TITLESVII ANDVIII

As previously demonstrated in Parts I and II, the vast majority of those with conviction records are people of racial and ethnic minority groups, particularly African Americans. Racial and ethnic minorities suffer disproportionately from exclusionary policies in private housing because of their overrepresentation among those who experience arrest and prosecution, seek public housing, and live in poverty.

A. The Sister Acts: Title VII and Title VIII

The Fair Housing Act, also referred to as Title VIII of the Civil Rights Act of 1968,05 was passed only four years after its closely related predecessor, Title VII of the Civil Rights Act of 1964.103 Both acts were intended to combat societal discrimination in public and private domains (Title VII in employment, Title VIII in housing). Because of the statutes' similar aims and construction, courts frequently borrow the legal precedent and enforcement standards of Title VII principles for guidance in applying Title VIII, and vice versa. °4 The Su- preme Court demonstrated the appropriateness of such a practice in Trafficante v. Metropolitan Life Insurance Co., where it relied on evidence of congressional intent in the passage of Title VII to find a similar congressional intent under Title VIII.""0 Following Trafficante, courts

102. 42 U.S.C. § 3601 et seq. (2009). 103. 42 U.S.C. § 2000e et seq. (2009). 104. See, e.g., Trafficante v Metro. Life Ins. Co., 409 U.S. 205, 209 (1972); Bellwood v. Dwivedi, 895 E2d 1521, 1529 (7th Cir. 1990) (stating "[t]he mental element required in a [Title VIII racial] steering case is the same as that required in employment discrimination cases challenged ... under Title VII of the Civil Rights Act of 1964 ... on a theory of disparate treatment"); Huntington Branch, NAACP v. Town of Huntington, 844 F2d 926, 934-35 (2d Cir. 1988), aff'd, 488 U.S. 15 (1988) (asserting that Title VII analysis is persuasive in interpreting Title VIII); Metro. Hous. Dev. Corp. v. Vill. of Arlington Heights, 558 F.2d 1283, 1288-89 (7th Cir. 1977) (reasoning by analogy to a Title VII case); see also Kyles v.J.K. Guardian Sec. Servs., 222 F3d 289, 295 (7th Cir. 2000) (stating that "courts have recognized that Title VIII is the functional equivalent of Title VII"). But see Curtis v. Loether, 415 U.S. 189 (1974) (finding that Title VII jurisprudence is inappropriate when the language cited in the two statutes differs). 105. See Trafficante, 409 U.S. at 209 (finding Congress' Title VII intent "to define standing as broadly as is permitted by Article III of the Constitution" also applies to Title VIII). MichiganJournal of Race & Law [VOL. 15:181 confronted with a challenging legal question under one of the two acts will regularly borrow from the jurisprudence of the other.0 6 Countless examples of this joint jurisprudence can be found in prior cases deciding discrimination on the basis of race,1°7 sexual orientation,0 religion,'09 familial status,"0 and national origin.'

B. Existing Discrepancy Between Title VII and Title VIII Enforcement Measures

Despite the routinely similar treatment given to discrimination claims under Title VII and Title VIII, a striking disparity currently exists between the enforcement of the acts with respect to discriminatory policies dealing with criminal history information. Twenty years ago, the federal agency responsible for enforcing Title VII, the Equal Employment

106. See cases cited supra note 104. In addition to case precedent, courts deciding FHA claims have referenced EEOC regulations and guidance in their decisions-the importance of which will become clear in Part III.B. See, e.g., Kyles v. J.K. Guardian Sec. Servs., 222 F3d 289, 299 (7th Cir. 2000) (citing EEOC policy guidance on tester standing) ("The EEOC's analysis, of course, does not bind us. But as the agency charged with enforcing Title VII, the Commission has experience and familiarity in this field which bestow upon its judgment an added persuasive force. The Commission's view that testers have standing to pursue Title VII claims both informs and supports our holding today.") (citation omitted); Washington v. Krahn, 467 F Supp. 2d 899, 904 (E.D. Wis. 2006); Hirschmann v. Hassapoyannes, 811 N.Y.S.2d 870,876 (N.Y. Sup. Ct. 2005). 107. See Stewart v. Hannon, 675 E2d 846, 849 (7th Cir. 1982) (citing Trafflicante definition of Title Vili standing and stating that "similar analysis of standing should hold true under Title VII which, like Title VIII, has the purpose of outlawing discrimination based on race, religion, national origin, and sex"). 108. See, e.g., Williams v. Poretsky Mgmt., 955 F Supp. 490,495 (D. Md. 1996) (finding that sexual harassment should be actionable under Title VIII "[b]ecause Title VII and Title VIII share the same purpose-to end bias and prejudice"); Abrams v. Merlino, 694 E Supp. 1101, 1104 (S.D.N.Y. 1988) (same as previous; reasoning that "Tide VII cases are relevant to Title VIII cases on recognition of the fact the two statutes are part of a coordi- nated scheme of federal civil rights laws enacted to end discrimination" (citation omitted)). 109. See Hack v. President & Fellows of Yale Coll., 237 E3d 81, 90 (2d Cir. 2000) (applying Title VII disparate impact analysis to Title VIII), abrogated on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). 110. See Pfaffv. U. S. Dep't of Hous. & Urban Dev., 88 F3d 739,744 (9th Cir. 1996) (relying on Title VII age discrimination jurisprudence in deciding Title VIII familial status discrimination claim); Mountain Side Mobile Estates P'ship v. Sec'y of Hous. & Urban Dev., 56 E3d 1243, 1250-51 (10th Cir. 1995) (looking to Title VII disparate impact claim for guidance with regard to Title VIII familial status discrimination claim). 111. See Espinoza v. Hillwood Square Mut. Assoc., 522 E Supp. 559, 567-68 (E.D. Va. 1981) (holding that a Title VII ruling on national origin applies to the Fair Housing Act because "the analogy between the discrimination provisions of Titles VII and VIII is extremely close"). FALL 2009] Do Not (Re)enter

Opportunity Commission (EEOC),' 2 promulgated enforcement guid- ance1 13 that prohibited both private and public employers from forming employment decisions on the basis of a criminal record absent a relation between the job and the conviction or "business necessity."" However, the same safeguards do not exist under Title VIII, and private landlords may freely use a prior conviction or arrest record as the sole basis for denying an application for housing."5 Among the possible explanations for this divergence is the long tradition of the "right to exclude" in the U.S.'6 7 and landlords' concerns about tenant safety." The EEOC'S position is that an employer's policy or practice of denying employment on account of a criminal record can have an adverse impact on Blacks and Hispanics." This view is based on the well-known type of discrimination claim called disparate impact, or discriminatory effect." 9 Instead of focusing on the defendant's intent, the disparate impact

112. Created in 1964 with the enactment of Title VII, the EEOC's jurisdiction currently extends over all of the federal statutes that prohibit employment discrimination, including Title VII, the Age Discrimination in Employment Act of 1967 (ADEA), and Title I of the Americans with Disabilities Act of 1990 (ADA). See EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, LAWS ENFORCED BY EEOC, available at http:// www.eeoc.gov/laws/statutes/index.cfn (last visited Nov. 15, 2009). 113. The EEOC's enforcement and policy guidances, compliance manuals, and the like are not promulgated through a formal notice and comment process, and typically are not treated as controlling authority. See, e.g., Melissa Hart, Skepticism and Expertise: the Supreme Court and the E.E.O.C., 74 FORDHAm L. REV. 1937 (arguing that the Court has consistently refused to define what level of deference the agency's regulations are owed, preferring to retain a broad and undefined discretion to accept or reject agency analysis). Nonetheless, Courts do routinely refer to the Commission's interpretations for guidance. See SEPTA discussion, infra Part IlI.D. 114. See infra notes 121-126. 115. The Fair Housing Act does prohibit an overtly discriminatory application of such a policy (i.e., exclusively applying the criminal history screening to minority applicants). 116. The "right to exclude" is protected by the Fair Housing Act "Mrs. Murphy" exception, which exempts dwellings intended to be occupied by four or fewer families from Section 3604 coverage (other than 3604(C)) if the owner lives in one of the units. This exception is grounded in the landlord's First Amendment right not to associate. See Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234 (1977) (recognizing the First Amend- ment right to refuse to associate); see also remarks by Senator Mondale, 114 Cong. Rec. 2495 (1968). For a detailed background on the history of the "Mrs. Murphy" exception, see generally James D. Walsh, Note, Reaching Mrs. Murphy: A Callfor Repeal of the Mrs. Murphy Exemption to the Fair Housing Act, 34 HARv.C.R.-C.L. L. REV. 605 (1999). 117. See discussion Part I.B on alleviating landlord liability. 118. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, POLICY STATEMENT ON THE ISSUE Or CONVICTION RECORDS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED, 42 U.S.C. § 2000e et seq. (Feb. 4,1987) [hereinafter "Conviction Records"]. 119. See EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, EEOC Compliance Man- ual Section 15: Race and Color Discrimination 20 (2006), available at http:// www.eeoc.gov/policy/docs/race-color.html (last visited Nov. 15, 2009). MichiganJournal of Race & Law [VOL. 15:181 theory looks to the effect of120 a challenged policy on a protected group as evidence of discrimination. The first policy statement the EEOC issued on the topic of criminal histories explicitly recognized that a disparate impact should be presumed in certain cases: "[A]n employer's policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on [African American and Latino workers] in light of statistics showing that they are convicted at a disproportionately higher rate than their representation in the population.' 21 Following the release of that initial statement, the EEOC has issued two additional guidelines notifying employers that wholesale restrictions against individuals22 with criminal convictions will render them liable to TitleVII claims.' The EEOC compliance manual offers further instruction, stating that an employer whose criminal record policy rejects minority applicants disproportionately must show their rejection policy considers the following three factors: (1) the nature and gravity of the offense(s); (2) the time that has passed since the conviction and/or completion of the sentence; and (3) the nature of the job sought or held. 23 Further, it states: "a blanket exclusion of persons convicted of any crime2 4 thus would not be job- related and consistent with business necessity."' The EEOC treats exclusion on the basis of an arrest record differently and requires even greater justification for such practices, as an arrest record does not establish that a person actually engaged in alleged misconduct.1 2 Thus, an employer whose policy or practice of considering arrest records results in a disparate impact on a protected class must show

120. After the 1988 Amendments to the law, plaintiffs may bring claims of housing discrimination under three legal theories: (1) disparate treatment (purposefid discrimination) claims, (2) disparate impact claims, and (3) reasonable accommodation claims, which argue that a person has not been afforded an equal opportunity to use and enjoy a dwelling as a result of his or her handicap. It is generally more difficult to prevail against a defendant on a showing of discriminatory impact than a showing of discriminatory treatment. 121. CONVICTION RECORDS, supra note 118. 122. See id.; see also EEOC, POLICY STATEMENT ON THE USE OF STATISTICS IN CHARGES INVOLVING THE EXCLUSION OF INDIVIDUALS WITH CONVICTION RECORDS FROM EMPLOY- MENT, (July 29, 1987). 123. See EEOC COMPLIANCE MANUAL, supra note 119, at 29-30. 124. Id. at 30. 125. See id. at n.101; Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Sept. 7, 1990); see also Gregory v. Litton Sys. Inc., 316 F Supp. 401, 402-03 (C.D. Cal. 1970) (finding that there is no evidence to support a claim that persons who have suffered no criminal convictions but have been arrested on a number of occasions can be expected, when employed, to perform less efficiently or less honestly than other employees). FALL 2009] Do Not (Re)enter that the arrest was not only related to the 21job6 at issue, but that the applicant "actually engaged in the misconduct.,

C. Disparate Impact Theory in Application Under Title VIII

While the Supreme Court has never directly decided whether the FHA welcomes disparate impact claims, 2 7 every federal circuit has agreed that it does. 12 However, courts have relied on different lines of reasoning in reaching the general agreement that discriminatory effect should suf- fice under Title VIII. As a result, Title VIII disparate impact jurisprudence has become "an increasingly incoherent body of case law" and courts and commentators alike struggle to form a uniform standard as to when land- 129 lords will be liable. One of the first courts to apply a disparate impact standard under Title VIII was the Seventh Circuit in Metropolitan Housing Development 13 Corp. v. Village of Arlington Heights (Arlington Heights 11). 0 In reaching its determination that a plaintiff need not show proof of discriminatory intent under Title VIII, the Arlington II court scrutinized Title VIII language, specifically the statute's language prohibiting a person "to refuse to

126. See EEOC COMPLIANCE MANuAL, supra note 119, at 30. Such an inquiry may require the employer to provide the applicant with an opportunity to explain the arrest record and perform any follow-up necessary to verify the truth of the account given. 127. However, the Court has affirmed a Title VIII case that applied disparate impact. See Huntington Branch, 488 U.S. 15 at 18 (1988) (stating that the Court would not decide whether the disparate-impact test is the appropriate one, since appellants conceded the applicability of that test). 128. See Mountain Side Mobile Estates P'ship v. Sec'y of Hous. & Urban Dev., 56 F3d 1243, 1250-51 (10th Cir. 1995); Jackson v. Okaloosa County, 21 E3d 1531, 1543 (11th Cir. 1994); Casa Marie, Inc. v. Superior Court, 988 F2d 252, 269 n.20 (1st Cir. 1993); Huntington Branch, NAACP v. Town of Huntington, 844 F2d 926, 933-34 (2d Cir. 1988); Keith v. Volpe, 858 F.2d 467, 482-84 (9th Cir. 1988); Arthur v. City of Toledo, 782 F2d 565, 574-75 (6th Cir. 1986); Betsey v. Turtle Creek Assocs., 736 F2d 983 (4th Cir. 1984); United States v. Mitchell 580 E2d 789 (5th Cir. 1978); Resident Advisory Bd. v. Rizzo, 564 F2d 126 (3rd Cir. 1977), cert. denied 435 U.S. 908; Metro. Hous. Dev. Corp. v. Vill. of Arlington Heights, 558 F.2d 1283, 1290 (7th Cir. 1977); United States v. City of Blackjack, 508 E2d 1179 (8th Cir. 1974); Nat'l Fair Hous. Alliance, Inc. v. Prudential Ins. Co. of Am., 208 F Supp. 2d 46, 79 (D.D.C. 2002); see also Langlois v. Abington Hous. Auth., 207 F3d 43, 49 (1st Cir. 2000) (noting consensus among the circuit courts that the FlA provides a cause of action for disparate impact). 129. See Villas West II of Willowridge Homeowners Ass'n, Inc. v. McGlothin, 885 N.E.2d 1274, 1280 (Ind. 2008) ("There is wide agreement in the federal circuit courts that the FHA allows disparate impact claims, but no consensus about the proper framework for analyzing such a claim.") (citing John E. Theuman, Annotation, Evidence of Discriminatory Effect Alone as Sufficient to Prove, or to Establish Prima Facie Case of,Violation of Fair Housing Act, 100 A.L.R. Fed. 97, 5 3 (1990)); C.H.R.O. v.Ackley, No. CV99550633, 2001 WL 951374, at *3 (Conn. Super. Ct. July 20, 2001) (citing the Theuman annotation and concluding that "a cursory reading of that article and many of the cases cited set forth ...a morass of differing opinions in the federal cases on fundamental issues). 130. 558 F2d 1283 (7th Cir. 1977) (upon remand). MichiganJournal of Race & Law [VOL. 15:181 sell or rent ... or to otherwise make unavailable or deny, a dwelling to any person because of race." This language closely mimicked the critical language in Title VII that makes it illegal for employers to fail or refuse to hire or discharge a person "because of" membership in a particular protected group. 31 The Arlington II court interpreted the Fair Housing Act's "because of race" language broadly, relying heavily on the Title VII decision, Griggs v. Duke Power, which was the first case to recognize the disparate impact standard in employment discrimination.1 32 In following Griggs, the court adopted the view that an act is discriminatory "whenever the natural and foreseeable consequence133 of that act is to discriminate between races, instead of 0 intent." The Arlington II court applied a four-factor test in finding a disparate impact violation of the FHA.13 4 Although one of the factors included intent, the court concluded that it was the least important, noting that "[a] strict focus on intent permits racial discrimination to go unpunished in the ab- 13 sence of evidence of overt bigotry." ' Following Arlington II, most circuits have abandoned the Arlington II factors and instead follow a version of the Second Circuit's disparate impact test in Huntington Branch, NAACP v. Town of Huntington,136 which rejects any consideration of intent.137

131. 42 U.S.C. 2000e(2)(a)(1). 132. Arlington II, 558 E2d at 1289 n.6 (citing Griggs v. Duke Power, 401 U.S. 424, 436 (1971)) ("The important point to be derived from Griggs is that the Court did not find the "because of race" language to be an obstacle to its ultimate holding that intent was not required under Title VII. It looked to the broad purposes underlying the Act rather than attempting to discern the meaning from its plain language."). 133. Id. at 1288. 134. The four prongs were: (1) the strength of the plaintiff's showing of discriminatory effect; (2) whether any evidence indicates discriminatory intent; (3) the defendant's interest in taking the challenged action; and (4) whether the plaintiff seeks to compel the defendant to affirmatively provide housing to a protected class or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing. Id. at 1290. 135. Id. at 1289. 136. Huntington Branch, 844 F2d at 934 (2d Cir. 1988) (stating that a plaintiff establishes a prima facie case of disparate impact by showing that the "challenged practice of the defendant actually or predictably results in racial discrimination" and that the "plaintiff need not show that the decision complained of was made with discriminatory intent") (citations omitted)); see, e.g., Charleston Hous. Auth. v. U.S. Dept. of Agric., 419 F3d 729, 740-41 (8th Cir. 2005); Tsombanidis v. W Haven Fire Dep't, 352 E3d 565, 575 (2d Cir. 2003); Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment, 284 F3d 442, 466 (3d Cir. 2002); Langlois v. Abington Hous. Auth., 207 E3d 43, 51 (1st Cir. 2000) ("True, one circuit court decision did refer to balancing, but the few later circuit court decisions on point come closer to a simple justification test, and we think this is by far the better approach.") (citations omitted); Salute v. Stratford Greens Garden Apartments, 136 F.3d 293, 302 (2d Cir. 1998); Mountain Side Mobile Estates P'ship v. Sec'y of Hous. & Urban Dev., 56 E3d 1243, 1252 (10th Cir. 1995); Arthur v. City of Toledo, 782 E2d 565, 575 (6th Cir. 1986). At least one circuit has continued to balance the Arlington II factors. See Reinhart v. Lincoln County, 482 F.3d 1225, 1229 (10th Cir. 2007). 137. Huntington Branch, 844 F2d at 934. FALL 2009] Do Not (Re)enter

Lower courts have generally recognized two types of discriminatory effect claims under Title VIII.' 3 The first involves a municipal regulation or decision, such as exclusionary zoning, that is claimed to perpetuate existing housing segregation in the region. The other type of claim argues a particular practice has a greater adverse impact on a protected group and is modeled after the Title VII disparate impact case established 14 in Griggs. 0 Both types of claims are usually reviewed under a burden-shifting analysis, in which a plaintiff first establishes a prima facie case of discrimination by showing that an outwardly neutral practice has a significantly adverse or disproportionate impact on minorities or perpetuates segregation. A prima facie case merely raises an inference that the facts alleged are true, so only a minimal showing is necessary to establish the prima 142 facie case. Discriminatory effect, in both the fair housing and employment discrimination contexts, is typically established with demographic statistics. This statistical inquiry is crucial to prevailing in a discriminatory effect case, because it supplies the foundation for a court's finding of discriminatory conduct. Courts usually apply a form of proportional comparison of the minority population adversely affected by the policy and either a regional population or narrowly drawn subsection of the region.'4 3 For example, a plaintiff may present "applicant flow data," which compares the racial composition of persons qualified for selection with those actually selected by the defendant. Another method of proof presents population statistics from the region44 to show that the policy has a discriminatory effect in a particular area.

138. Betsey v.Turtle Creek Assocs., 736 F2d 983, 987 n.3 (4th Cir. 1984). 139. See, e.g. Fair Hous. in Huntington Comm. v. Town of Huntington, 316 F3d 357, 366 (2d Cir. 2003). 140. E.g., Charleston Hous. Auth. v. U.S. Dep't of Agric., 419 F3d 729,741 (8th Cir. 2005); see Villas West II of Willowridge Homeowners Ass'n v. McGlothin, 885 N.E.2d 1274, 1281-82 (Sup. Ct. Ind. 2008) (providing a recent history of disparate impact Title VIII tests used in the federal court system). 141. See Huntington Branch, 844 F2d at 935-36. 142. See United States v. City of Black Jack, 508 F2d 1179, 1184 (8th Cir. 1974). It has been shown that the Swierkiewicz standard, which describes the Title VII pleading requirements, should apply in Title VIII cases. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 122 (2002) (stating that "a short and plain statement of the claim showing that the pleader is entitled to relief" is all that is needed under section 8(a) ofTiteVII). 143. See Huntington Branch, 844 F.2d at 937-38; Salute v. Stratford Greens Garden Apartments, 136 F3d 293, 302 (2d Cir. 1998) (applying Huntington to private defendant). 144. The court in Arlington II found liability for housing discrimination under a type of statistical comparison that examined the general population of minority members and whether a zoning policy had a greater adverse impact, in absolute numbers, on one racial group than another. 558 F2d at 1286. Clearly such a showing will be near impossible if the members of the affected protected group constitute a minority in the affected area. Michigan Journal of Race & Law [VOL. 15:181

If the plaintiff has established a prima facie case of discriminatory effect, the burden then shifts to the defendant to demonstrate that its actions furthered a justified purpose. In the employment context, this standard is called "business necessity," and the employer must show that the challenged policy has a "manifest relation" to the specific job performance. In Title VIII disparate impact cases, private and public defendants are subject to differing burdens of proof. In cases involving a private defendant, such as a landlord or developer, most courts use a construction similar to the Title VII business necessity standard. 45 This has been described as an inquiry into "whether a compelling business neces-1 46 sity exists, sufficient to overcome the showing of disparate impact. Other courts have avoided using business necessity language and simply require a "bona fide and legitimate justificationf for [the defendant's] action.'' 147 For example, in Pfaff v. US. Department of Housing & Urban Development the court found that a housing provider's occupancy limitation for a particular property may be "reasonable," despite a potentially discriminatory effect based on familial status-barring families with several children-if its purpose is to preserve the value of the property.'48 In cases involving public defendants, the business necessity inquiry is point- less, and courts have used a variety of language describing the type of reasonable governmental interest that will justify a challenged policy or decision. 149 Finally, if the defendant is able to show some non-discriminatory purpose or business necessity, some courts will shift the burden back to the plaintiff to show that an alternate policy or selection process could achieve the same objective without the same discriminatory effect.'50

145. See Betsey, 736 E2d at 989 (4th Cir. 1984) ("we have 'frequently cited and applied' the business necessity formulation in employment discrimination cases arising under Title VII") (citing Wright v. Olin Corp., 697 E2d 1172, 1188 (4th Cir. 1982); Robinson v. Lorillard, 444 E2d 791,798 (4th Cir. 1971)). 146. Id. at 988. 147. Huntington Branch, 844 F.2d at 939. See also Mountain Side, 56 E3d at 1254 (to satisfy the 'business necessity' test [defendant] must demonstrate only that its challenged practice has a 'manifest relationship to the housing in question'). 148. 88 F.3d 739, 749 (9th Cir. 1996) ("It is certainly reasonable to seek to preserve the value of one's property, as [defendants] sought to do, and a numerical limitation on occupancy here advances this legitimate business purpose"). 149. See Arlington II, 558 F.2d at 1293 (introducing the lenient rule that, "if a governmental body is acting within the ambit of legitimately derived authority, [the court] will less readily find [a violation]" . . . a factor which "weakens plaintiffs' case for relief"); Langlois v. Abington Hous. Auth., 207 F3d 43, 51 (1st Cir. 2000) (holding that there the challenged policy must be "a legitimate and substantial goal"); Huntington Branch, 844 F2d at 936 (requiring a "legitimate, bona fide governmental interest and that no alternative would serve that interest with less discriminatory effect"). 150. E.g., Darst-Webbe Tenant Ass'n Bd. v. St. Louis Hous. Auth., 417 F3d 898,902- 03 (8th Cir. 2005); Mountain Side Mobile Estates P'ship v. Sec'y of Hous. & Urban Dev., 56 F3d 1243, 1254 (10th Cir. 1995). FALL 2009] Do Not (Re)enter

Due to the similar treatment of Title VII and Title VIII precedent, a recent development in Title VII disparate impact theory has set off debate surrounding the appropriate corresponding Title VIII standard. In 1991, in reaction to the Court's increasing hostility to disparate impact claims, Congress amended Title VII to preserve these claims under Title VII and "codify the concepts of 'business necessity' and 'job related' disparate impact standard in Griggs v. Duke Power Co."-"1 Subsequently, in the case Smith v. City ofJackson, Mississippi, the Su- preme Court upheld the availability of disparate impact claims under the Age Discrimination in Employment Act of 1967 (ADEA).' 2 The decision cited the absence of Congressional amendment like that of Title VII, and conducted an inquiry into whether disparate effects are actionable under the ADEA. Some have interpreted the Smith case to mean that other civil right statutes that do not contain specific "effects" language, such as Title VIII, should not include disparate impact claims. This theory has not been supported by any courts presented with it.' 4 In finding a disparate effects test under the ADEA, the Smith Court considered several factors: the legislative history of the ADEA, the purpose of the ADEA compared to that of Title VII, deference to regulating authorities' interpretation and enforcement of the statute, unique provisions of the ADEA, the nature of the discrimination the ADEA regulates (age-based), and unanimous circuit court treatment of the ADEA that allowed disparate impact claims. As several courts and commentators have noted, while statutory text is a consideration for courts' interpretations, courts must also consider the legislative history, agency interpretation, and previous courts' interpretation of the statute-and previous courts that have inquired into these factors unanimously6 have held that disparate impact claims are available under Title VIII.1

D. Disparate Impact Claims Addressing Criminal Record Screening: El v. Septa

As described above, the EEOC has advised that an employer likely violates Title VII when it denies a job opportunity solely on the basis of a

151. Civil Rights Act of 1991, PL 102-166, 105 Stat 1071 (1991). Specifically, Con- gress was reacting to the Court's decision in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), which heightened the disparate impact standard and made it virtually impossible for a plaintiff to prevail. 152. 544 U.S. 228,243 (2005). 153. See Michael Aleo & Pablo Svirsky, Foreclosure Fallout: the Banking Industry's Attack on Disparate Impact Race Discrimination Claims Under the Fair Housing Act and the Equal Credit Opportunity Act, 18 B.U. Pub. Int. L.J. 1,41-44 (2008). 154. See Relman, HDISPRMAN § 2:26 (2009). 155. 544 U.S. at 232-67; Aleo, supra note 153, at 44. 156. Relman, supra note 154. MichiganJournal of Race & Law [VOL. 15:181 criminal record without any nexus to the job position. Whether a plaintiff would prevail on a Title VIII disparate impact case under a Title VII theory would ultimately depend on a statistical showing that a landlord or secondary leasing agent has discriminated against him or her on the basis of his or her criminal record and reasonability ofjustification for doing so. Scant Title VII precedent exists with respect to appropriate relatedness of employer criminal record screening selection criteria, but a handful of cases are instructive. The relatively recent decision by the Third Circuit in El v. SEPTA provides the most up-to-date guidance on the parameters that might apply to a claim of discrimination on the basis of criminal record.57 The appellate court upheld summary judgment against a plaintiff who claimed that his employer wrongfully discharged him from his position as a paratransit driver on the basis of a 40-year old conviction for second-degree murder. 11The employer's hiring policy disqualified applicants with various types of convictions, some of which were disqualifying only within specified time limits. ' In comparing the hiring policy to the job requirements of a paratransit driver, the court found that a reasonable juror would necessarily find that the employer's policy was consistent with business necessity. 160Although the court recognized the EEOC's guidance policies, it granted these policies a "Skidmore" deference,' 61 which takes into account the thoroughness of its research and persuasiveness of its 62rea- soning, and found them too "terse" to provide anything of substance.' Several lessons from El, however, leave open the possibility that a landlord's policy of disqualification on the basis of any criminal record could be found to violate Title VIII,just as courts have found overly broad

157. See 479 F3d 232 (3rd Cir. 2007). 158. Id. at 235. Although the EEOC had found the complaint in the plaintiff's favor under a disparate impact on race theory, he eventually filed a class action in district court when the commission was unable to resolve the dispute. Id. at 237. 159. Id. at 236. The policy disqualified an applicant for any of the following: a record of driving under [the] influence (DUI) of alcohol or drugs; any felony or misdemeanor conviction for any crime of moral turpitude or of violence against any person(s); a conviction within the last seven (7) years for any other felony or any other misdemeanor in certain listed categories, and currently serving a sentence of probation or parole for the any crimes, no matter how long ago the conviction for such crime. 160. Id. at 247-48. 161. Id. at 244 (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)) (finding that courts and litigants may properly resort to non-controlling rulings, interpretations and opinions for guidance and that "the weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control") (superseded by statute on unrelated grounds). 162. Id. at 248 ("The E.E.O.C. determination is terse and simply asserts the relevance of El's youth and the remoteness of his conviction without explanation, analysis, or authority. It provides nothing of substance ... "). FALL 2009] Do Not (Re)enter employer screening policies to violate Title VII. The court, in revisiting the business necessity defense, found "particularly noteworthy" the Supreme Court's. position in the Title VII case Dothard v. Rawlinson. 63 It stated that the "[Dothard] lesson is that employers cannot rely on rough- cut measures of employment-related qualities; rather they must tailor their criteria to measure those qualities accurately and directly for each applicant. ' 164 It also reiterated that a simple preference-based reasoning would not justify an overly discriminatory policy; "rather, the employer must present real evidence that the challenged criteria 'measure the person for the job and not the person in the abstract.' ,16 The court's guidance on business necessity, while helpful, may not have contributed to its ultimate ruling. The court next observed that past business necessity cases are not exactly on point, since an employer's policy regarding criminal convictions-unlike standard qualification standards that measure ability to perform a job-are focused on the potential harm to other employees. It then applied the standard from two other disparate impact cases, Lanning v. SEPTA (I and II), that involved female transit workers who were disqualified from consideration for transit officer patrol jobs based on an aerobic test that revealed the risk of failing to perform the duties expected of a transit officer. 66 Since the question in both employer contexts is one measuring "risk," the court stated that the applicable standard in a criminal conviction policy is that such "discriminatory hiring policies [must] accurately but not perfectly distinguish between applicants' ability to perform successfully the job in question." In applying the Lanning "risk"-focused test, the El court made several observations:

a. "Risk-relatedness"

The El court emphasized the importance of the public safety concern surrounding a paratransit driver position, in which the driver would be left alone with "vulnerable members of society." The court then appeared to apply a business necessity closely tailoring the requirement to the Lanning risk test, distinguishing the paratransit driver position from "an office job at a corporate headquarters" denied on the basis of "an extremely broad exclusionary policy that fails to offer any empirical

163. 433 U.S. 321 (1977) (finding that hiring criteria for prison guard position that specified height and weight requirements violated Tide VII). 164. Id. at 240. 165. Id. (citing Dothard, 433 U.S. at 332 (quoting Griggs, 401 U.S. at 436)). 166. Lanning v. SEPTA, 181 F.3d 478 (1999) (explaining that the purpose of the 1.5 mile run was to screen out applicants who would pose a risk to public safety by not being able to perform the duties of a transit officer). Michigan.Journalof Race & Law [VOL. 15:181 justification for [its job relatedness]."'6 7 In its reference to a "corporate office job," the El court was referring to the sole reported appellate case visiting the disparate impact of exclusionary criminal record screening in employment decisions, Green v. Missouri Pacific Railroad Co.'68 In that case, the plaintiff prevailed on the Title VII disparate impact claim that his sheet metal employer's "standard policy"-denying employment to any applicant who has been convicted of a crime other than a minor traffic offense-illegally discriminated against him and other applicants. The court found the employer's policy unlawful, stating that "a sweeping disqualification, resting solely on past behavior can violate Title VII where that ... practice has a disproportionate racial impact and rests upon a tenuous or unsubstantial basis."' 16"Applied to a rental apartment, one might consider physical boundaries of a rental unit more analogous to a corporate office than the interior of a special needs transportation vehicle. Similarly, in Gregory v. Litton Systems, a California district court found the employer's policy of "not hiring applicants who have been arrested on a number of occasions other than minor traffic offences" in violation of Title VII.' The Gregory court found that the plaintiff provided "overwhelming and utterly convincing" arrest statistics in proving his case that African Americans were disproportionately arrested compared with Caucasians, resulting in a "substantial and disproportionally large number of [African American applicants]" to be excluded from the defendant's employment opportunities. 17' The court further remarked that the hiring policy failed a business necessity inquiry, since there was "no evidence to support a claim that persons who have suffered no criminal convictions but have been arrested on a number of occasions can be expected, when employed, to perform less efficiently or less honestly than 7 2 other employees."' Other district court decisions have similarly spoken of a correlation between the criminal conviction and the risk allegedly posed. 7 3 In one (non-disparate impact) disability claim brought under Title VII, a court found a local public housing authority had the discretion to bar an individual with a criminal history based on the policy view that individuals

167. El, 479 F.3d at 243 (citing Green v. Mo. Pac. R.R. Co., 523 F2d 1290 (8th Cir. 1975)). 168. 523 F2d 1290 (8th Cir.1975). 169. Id. at 1296. 170. 316 F Supp. 401,402 (C.D. Cal. 1970). During litigation, the employer stipulated to the fact that it had rescinded an offer of employment solely based on previous arrest information the plaintiff had disclosed on an application form. 171. Id. at 403. 172. Id. at 402. 173. See id. at 401 (finding that defendant employer's policy of excluding from employment persons with arrests but no convictions unlawfully discriminates against Black applicants). FALL 2009] Do Not (Re)enter

"with a history of convictions 7for4 property and [assault] crimes would be a direct threat to other tenants."'

b. Unanswered Relevance of Older Convictions

Equally important in El was the Court's apparent willingness to visit the relevancy of older convictions. The court noted weaknesses in the testimony of the defendant's three expert witnesses offered on the rele- 7 vancy of old criminal convictions to future recidivism.' 5 Noting the plaintiff's failure to present expert testimony to rebut the defendant's as- sertions as "fatal:' the court went so far as to express examples of testimony it would have been receptive to hearing from a witness for the plaintiff. It ultimately took the defendant's unrebutted testimony at face value, as required upon consideration of a motion for summary judgment. 176

c. Unanswered Relevance of Nature of Crime

The El court rejected the plaintiff's argument that recidivism cannot be predicted exactly, "because it is also impossible to predict which non- criminal will commit a crime." "What matters is the risk that the individual presents, taking into account whatever aspects of the person's criminal history are relevant." Thus, the court commented, "if screening out applicants with very old violent criminal convictions accurately distinguishes between those who present an unacceptable risk, then reliance on this factor is

174. Talley v. Lane, 13 F.3d 1031, 1034 (7th Cir. 1994) (emphasis added) ("The Fair Housing Act does not require that a dwelling be rented to an individual who would constitute a direct threat to the health and safety of other individuals or whose tenancy would result in substantial physical damage to the property of others."). But see Evans v. UDR Inc., No. 7:07-CV-136-FL, 2009 U.S. Dist. LEXIS 31844, at *24-25 (E.D.N.C. Mar. 24, 2009) (finding that accommodating an applicant's criminal history is not equivalent to accommodating a mental disability and that a disability-related conviction was not found to require a "reasonable accommodation" under Title VIII to require in a departure from a criminal conviction tenant screening policy). 175. El, 479 F3d at 246 ("All three rely heavily on data from the Department of Justice that tracked recidivism of prisoners within three years of their release from prison. Indeed, those data show relatively high rates of recidivism in those first three years. But what about someone who has been released from prison and violence-free for 40 years? The DOJ statistics do not demonstrate that someone in this position-or anything like it-is likely to recidivate."). 176. Id. at 247 ("Had El produced evidence rebutting SEPTA's experts, this would be a different case. Had he, for example, hired an expert who testified that there is time at which a former criminal is no longer any more likely to recidivate than the average person, then there would be a factual question for the jury to resolve. Similarly, had El deposed SEPTA's experts and thereby produced legitimate reasons to doubt their credibil- ity, there would be a factual question for the jury to resolve. Here, however, he did neither, and he suffers pre-trial judgment for it."). MichiganJournal of Race & Law [VOL. 15:181 appropriate; if the criterion is inaccurate or overbroad in the case of very old convictions, then it is inappropriate for Title VII purposes." Consider- ing the impact of the drug wars of the 1980s and the disparate impact of sentencing disparities on minority groups,1 77 differentiation regarding the type of crime could potentially allow many non-violent offenders access to better living opportunities.17

d. Individual Plaintiff

The court noted that El was an individual plaintiff and not litigating the claim as part of a class, and that it would review only the narrow policy his subcontractor employer used against him and not the other hiring policies of other SEPTA subcontractors.1 79 As such, the legality of less narrow and more exclusionary hiring policies remains unknown.

IV CURRENT PRIVATE HOUSING PROVIDER POLICIES AS AVIOLATION OF TITLE VIII

A. Blanket Bans on Criminal Histories as Overly Broad

The growing practice of private landlord and third party realty ser- vices80 to reject applicants on the basis of arrest and conviction records, discussed in Part II of this Note, violates Title VIII. Such practices erect a barrier to desirable living conditions so wide that they cannot justify the disparate impact that they impose on members of certain protected classes. Many private housing screening policies allow for little to no indi- vidualization when considering the threat posed by the applicant's record to the desired housing. Such generalization is at odds with other areas of discrimination law, especially those protections designed for individuals

177. For example, the drug laws enacted between 1980 and 1991 created a ten-fold increase in those crimes. In 2005, drug offenses were responsible for the highest number of those incarcerated, at 3x more than the next category, burglary. Western, 2005 table 2.3 (cited in TRAvis, supra note 4). 178. For example, in 2002, 1 in 4 jail inmates was in jail for a drug offense, compared to 1 in 10 in 1983; drug offenders constituted 20% of state prison inmates and 55% of federal prison inmates in 2001.76% of those sentenced to state prisons in 2002 were convicted of non-violent crimes, including 31% for drug offenses, and 29% for property offenses. THE SENTENCING PROJECT, supra note 10. 179. El v. SEPTA, 479 E3d 232, n.3 (3rd Cir. 2007). 180. For more on third party realty services that may be held accountable under a "third party interference liability" standard applied in the Title VII context to parties who "are not direct employers of complainants, but control access to employment by reference to invidious criteria," see Caston v. Methodist Med. Ctr. of Ill., 215 F Supp. 2d 1002, 1006 (C.D. I1l., 2002). FALL 2009] Do Not (Re)enter whose past behavior similarly stigmatizes them---such as recovering drug addicts and alcoholics. 8' Failure to consider the circumstances surrounding a prior record also contradicts courts' practices under the sentencing schemes, which, in considering a defendant's criminal record score, tend to look at factors such as age at the time of the offense.'82 Criminological research widely suggests that after a certain number of years, an older criminal record is no longer a reliable indicator of future risk of crime.'83 Many federal and state agencies recognize this decline in the relevance of a past conviction or arrest and thus, tailor hiring and licensing policies to apply only within certain windows of time, typically three to seven years after conviction or release, after which the past record may no longer be used as a basis for rejection.'84 A number of other factors have been shown to be relevant to reducing the risk of recidivism,

181. For example, the Supreme Court has described the Americans with Disabilities Act as carefully structured "to replace such reflexive reactions to actual or perceived handicaps with actions based on reasoned and medically sound judgments." See Sch. Bd. of Nassau County v. Arline, 480 U.S. 273, 285 (1987) ("Congress ...understood the danger of improper discrimination against [addicts and alcoholics] ...and [excluded] only those alcoholics and drug abusers 'whose current use ...prevents such an individual from per- forming the duties of the job in question or whose employment ...would constitute a direct threat to property or the safety of others). 182. See, e.g. U.S. v. Wilkerson, 183 E Supp. 2d 373 (D. Mass. 2002) (departing downward for overrepresentation of seriousness in the criminal history score of a defendant whose previous crimes had been nonviolent and committed when he was very young). The U.S. Sentencing Commission has recognized overrepresentation of seriousness as one of the inadequacies of the criminal history scoring system. Id. at 379-80. But see State v. Barber, 760 N.W2d 183, 183 (Wis. Ct. App. 2008) (finding that inaccurate prior criminal history information did not warrant a sentencing modification because the inaccurate information was not highly relevant to the sentence imposed nor did it frustrate the purpose of the original sentence). 183. In some cases the risk deferential is very high-up to ten times higher- immediately after arrest/contact with the criminal justice system. Time since release from prison, as opposed to time since conviction, may be the most reliable time factor for those that have served time. Assoc. Professor Shawn D. Bushway, Univ. of Albany (SUNY) School of of Criminal Justice, Statement at the U.S. Equal Employment Opportunity Commission's Employment Discrimination Faced by Individuals with Arrest and Convic- tion Records Meeting (Nov. 20, 2008). 184. Phase-out periods for criminal records already exist in other areas of federal law, including eligibility for sensitive Transportation Security Card issued by the Transportation Security Administration. See Maritime Transportation Security Act of 2002, 46 U.S.C. § 70105(c) (2009) (imposing reasonable time limits on disqualifying offenses to seven years since the conviction or five years from the release, whichever is more recent, for most offenses). Time limits are also recommended by the American Bar Association. See ABA Resolutions on Criminal Justice, Kennedy Commission Report (2004), http:// www.abanet.org/crimjust/policy/cjpol.html. MichiganJournal of Race & Law [VOL. 15:181 including age, sex, the number of prior offenses, marital status, stable employment, and abstinence from drugs or alcohol.' 8 Current private housing providers fail to provide safeguards against erroneous reporting that many employers, licensing bureaus, and financial institutions use when checking criminal history information. 186 Applicants should be given notice of an adverse decision 7 and an opportunity to dispute and rectify inaccurate criminal records, as they do under other areas of the law, such as credit report errors. 88 With estimates of error in the FBI database hovering at around 40%, reasonable consideration of this information must allow the applicant an opportunity to prove the mistake. However, private housing provider policies rarely engage in a dialogue with an applicant and instead, they seem to reject the applicant immediately,19 or, as at least one case demonstrated, permit exclusive opportunities to refute the record on a discriminatory basis.'5 0 Similarly, there is little justification for denying applicants with prior criminal histories the opportunity to provide proof of rehabilitation.' 9' Researchers have questioned the logic of using general recidivism rates as a rationale for disqualifying applicants with criminal records when the opportunity sought, i.e., employment, housing, etc., has been shown as a 19 factor in reducing recidivism itself. 2 When other more reliable information is available, such as a court- or parole board- issued certificate of

185. See Statement of Shawn D. Bushway, supra note 183. It should be noted that some of these factors may violate state and federal fair housing protections if used as criteria for qualification. 186. See Fair Credit Reporting Act, 15 U.S.C. 5§ 1681-1681v (2009). 187. Some state laws provide such a notice requirement. See, e.g., N.Y. CORRECT. LAW § 754 (McKinney 2009) (granting an individual denied employment or a license as a result of a criminal conviction the right to request a written statement setting forth the reasons for the denial). 188. See Fair Credit Reporting Act, 15 U.S.C. 9§ 1681-1681v (2009). 189. See Jackson v. Thompson, No. 2:05-cv-00823, 2006 U.S. Dist. LEXIS 41023, at *7 n.3 (S.D. Ohio Jun. 20, 2006) (dismissing FHA discrimination claim of applicant whose credit rating and income qualified him to rent a unit but was rejected on the basis of three criminal record results for the same name-none of which turned out to be his. The court dismissed for the failure to state a claim.) 190. See Allen v. Muriello, 217 F3d 517 (7th Cir. 2000) (finding African American plaintiff established a prima facie case of racial discrimination when a public housing authority treated him differently than other similarly situated White individuals by denying him the same opportunity to "clear his name" and prove the alleged disqualifying criminal records were not his). 191. See supra note 181, discussing anti-discrimination policies that protect recovered drug addicts and alcoholics. Public housing regulations do allow for individuals who are drug addicts and alcoholics to be admitted or remain if they can show proof of rehabilitation. 192. See, e.g., Darryl K. Brown, Cost-Benefit Analysis in Criminal Law, 92 CAL. L. REV. 323, 346 (2004) (stating that diminished opportunities to reintegrate may increase the odds of recidivism). FALL 20091 Do Not (Re)enter rehabilitation, the private housing provider should be obligated to con- 9 3 sider it before reaching such a crucial determination. Lastly, current practices undercut the spirit of the FHA to prohibit baseless stereotyping and discriminatory animus, especially against those already stigmatized by society, such as recovering addicts.'94 In particular, during the passage of the 1988 Amendments-which added provisions to cover disability discrimination-several members of Congress articulated objectives that arguably spoke broadly of fair housing goals and the need to recognize the differences that exist among individuals. A member of the House Judiciary Committee pronounced that the 1988 Amendments "repudiaten the use of stereotypes and ignorance, and mandates that persons with handicaps be considered as individuals [and g]eneralized perceptions about disabilities and unfounded speculations about threats to safety are specifically rejected as grounds to justify exclusion.' 9 This language could easily be extended to apply to those who have had prior contact with the criminal justice system and whose potential threat to society is unclear.

B. Defendant's Rebuttal

As described earlier, once the plaintiff establishes a prima facie claim of discrimination, the defendant has the opportunity to rebut with a non- discriminatory justification for its policy. Most private housing providers cite the safety of other tenants and their property as the paramount concern behind tenant criminal history screening policies. 96 Courts recognize

193. Several states provide methods to obtain certificates of rehabilitation from parole boards or courts. See, e.g., N.Y. CORRECT. LAW § 703(a-b) (McKinney 2009). New York State law further requires potential employers to consider a job applicant's evidence of rehabilitation and states that a certificate of good conduct shall create a presumption of rehabilitation." N.Y CoRREcT. LAW 5 753 (1)(g), (2) (McKinney 2009). 194. Recovering drug addicts and alcoholics are protected under the disability protections of the FHA. See Lakeside Resort Enters., LP v. Bd. of Supervisors of Palmyra Twp., 455 E3d 154, 156 n.5 (3d Cir. 2006) (noting cases holding that "recovering alcoholics and drug addicts are handicapped, so long as they are not currently using illegal drugs" under the Fair Housing Act); see also Schwarz v. City of Treasure Island, 544 F3d 1201, 1212 (11th Cir. 2008); Tsombanidis v. West Haven Fire Dep't, 352 E3d 565, 574 (2d Cir. 2003); Campbell v. Minneapolis Pub. Hous. Auth. ex rel. Minneapolis, 168 E3d 1069, 1072 n.1 (8th Cir. 1999); Samaritan Inns, Inc. v. District of Columbia, 114 E3d 1227, 1231 n.5 (D.C. Cir. 1997); City of Edmonds v. Wash. State Bldg. Code Council, 18 F3d 802, 804 (9th Cir. 1994), aff'd, 514 U.S. 725 (1995); U.S. v. S.Mgmt. Corp., 955 F2d 914, 919-23 (4th Cir. 1992). 195. H.R. Rep. No. 100-711, at 18 (1988). 196. See, e.g., Evans v. UDR Inc., No. 7:07-CV-136-FL, 2009 U.S. Dist. LEXIS 31844, at *26 (E.D.N.C. Mar. 24, 2009) ("[The policy against renting to individuals with criminal histories is] based primarily on the concern that individuals with criminal histories are more likely than others to commit crimes on the property than those without MichiganJournal of Race & Law [VOL. 15:t81

residential safety as a legitimate objective. 9 7 In rebutting a prima facie case on a disparate impact claim, the onus is often on the defendant to show that the particular policy in question actually assists the housing provider in reaching that aim.' 98 Such a showing may be difficult for a provider that practices a blanket prohibition against any and all criminal histories, as there is inconclusive data on whether all of these individuals are more likely to recidivate.'99 Nevertheless, courts often defer to the policies of private actors with leniency, and thus, may not scrutinize such a justification. Another common method of a defendant's rebuttal of a disparate impact claim is a showing that the exercise of an individual policy is not statistically discriminatory in application. A defendant may present regional or actual data that demonstrates that the impact of the policy would not result in a greater adverse impact against a protected group. Such a defense might succeed in a regional area in which the arrest and 2 conviction rates are not racially skewed. 00 Similarly, if a housing provider were able to show through its applicant records that the policy did not actually result in denying a disproportionate number of racial minorities,

such backgrounds ...[and] is thus based [on] concerns for the safety of other residents of the apartment complex and their property."). 197. See, e.g., Talley v. Lane, 13 F3d 1031, 1034 (7th Cir. 1994) ("[lIt is within the [Chicago Housing Authority]'s discretion to find that individuals with a history of convictions for property and assaultive crimes would be a direct threat to other tenants and deny their applications"). 198. See also A.B. & S. Auto Serv. Inc. v. S. Shore Bank, 962 E Supp. 1056, 1061 (N.D. I11.1997) (discussing a disparate impact claim against a defendant lending institution that disqualified applicants with certain criminal backgrounds and stating that "the defendant- lender must demonstrate that any policy, procedure, or practice has a manifest relationship to the creditworthiness of the applicant"). 199. Under the burden-shifting model, this lack of conclusive data would not damage the plaintiff's claim in the same way, provided that a prima facie claim of disparate impact has been met. The court would not require that the plaintiff prove his or her own lack of dangerousness though evidence of rehabilitation may bolster a claim. A prima facie case alone would trigger the defendant's burden to demonstrate objective evidence of the risk that the prohibitive policy serves to prevent. 200. Courts have generally been less willing to accept general statistics in disparate impact cases involving criminal histories. See Matthews v. Runyon, 860 F Supp. 1347, 1356-57 (E.D. Wis. 1994) (finding that general statistical evidence of higher arrest rates among Blacks than Whites in the Milwaukee area did not prove that the USPS' practice has a disproportionate impact on employment opportunities for Blacks because it failed to provide the requisite causal link between the challenged practice and the disparate impact); Hill v. U.S. Postal Service, 522 E Supp. 1283 (S.D.N.Y 1981); see also Equal Employment Opportunity Comm'n v. Carolina Freight Carriers Corp., 723 F Supp. 734, 750-51 (S.D. Fla. 1989) (finding that general population statistics showing that Hispanics were convicted at disproportionally higher rates than non-Hispanics did not make out a prima facie case against an employer that disqualifies applicants with prior convictions because there was no evidence that any specific number of Hispanic applicants were disqualified for employment). FALL 2009] Do Not (Re)enter it would not be found to be in violation of the FHA. Lastly, a defendant that is able to present criminological evidence that its screening policy does indeed eliminate only those applicants that pose a direct threat to other tenants would likely pass muster under Title VIII.

C. Plaintiff's Response: Existence of Less DiscriminatoryAlternative Policies

Federal guidelines for the consideration of arrest and conviction in housing screening policies are overdue. 20' While the criteria mentioned in the El decision-risk-relatedness to the housing sought, age of conviction, nature of crime-have been recognized by federal agencies, courts, and Congress as variables influencing rate of recidivism, private housing providers need further guidance in order to consider such information effectively. Landlords and realty service companies are in need of reliable studies and federal guidance to properly inform them of which crime- related information is relevant as a basis for screening applicants and ensuring tenant safety. More comprehensive and exact restrictions would allow for clearer analysis in the courtroom and help dispel a landlord's fear of unknown liability.2 2 Without further guidance in these areas, private actors will continue to apply overly broad exclusionary policies due to fear of exposure to liability. Nevertheless, even in the absence of such federal policies, various alternative practices currently exist that allow for a more individualized consideration of criminal history information as less- discriminatory alternatives. As discussed in part Ill-B, the EEOC already has established three basic factors to be considered by a decision maker when disqualifying an individual from consideration on the basis of an arrest or conviction

201. Exactly which regulatory body might produce this guidance is unclear, but HUD is the most likely source. In the role of fair housing enforcement entities, HUD and the DOJ traditionally have been less active in publishing guidance to the industry than the EEOC has been in publishing compliance guidance in employment discrimination enforcement. Legislative action would be best and while the ex-offender community traditionally has little political capital in Washington, the growing attention that reentry and rehabilitation has recently received from Congress, see e.g., Second Chance Act, supra note 1, suggests that increased housing protections for individuals with criminal records are not unachievable. 202. For example, in Ford v. Gildin, the court found that a nine-year-old manslaughter conviction was not directly related to the employee's position as a porter in a residential building, following an unfortunate incident where the employee sexually abused a minor living in the building. 613 N.Y.S.2d 139, 142 (N.Y App. Div. 1994). The court did not hold the employer liable for negligent hiring, since "[s]uch precedent would effectively compel any employer to deny employment to anyone who was ever convicted of a violent crime ... [because] the employer would upon hiring face potentially catastrophic liability for any crime committed by that employee which was even minimally connected to the place of his employment." Id. MichiganJournal of Race & Law [VOL. 15:181 record. These guidelines have served to prevent individuals from being denied employment opportunities whose qualifications bear little relation to the specific criminal record.2 3 They also protect those whose outdated convictions are not deemed evidence of a threat.0 4 Courts should base Title VIII decisions on the same reasoning used in the Title VII context, as they already have done with standards of proof. Many practitioners in the reentry and employment discrimination legal fields consider the EEOC framework inadequate and in need of reform. Both Congress and the EEOC have heard from proponents of more robust measures to inform both decision makers and applicants of the relevance of certain convictions.2°s Following the theory that those with criminal convictions may require specific protections, 206 several possible models for the consideration of disabilities could be adapted to consideration of prior records. A long line of "group-home" cases brought under FHA often by those seeking a permit to build a group home in a proposed location have established baseline protections against stereotype on the basis of threat to the community. Defendants against such claims are required to show a "direct threat to public safety" posed by the proposed project.27 This provision applies equally to individual applicants for housing. Thus, a landlord may reject an applicant under this provision only "[i]f the landlord determines,

203. See Jessie Warner, Fighting for The Employment Rights of Workers with Crimi- nal Records, National Employment Law Project (2008), available at http://lsnc.net/equity/ category/employment; see also EEOC Dec. No. 79-61A (May 8, 1979) (a hit and run conviction is not job-related to a position as a kitchen worker); EEOC Dec. No. 80-18 (August 18, 1980) (delivery of marijuana is not job-related to the position of utility worker in a factory); EEOC Dec. No. 80-10 (Aug. 1, 1980) (unlawful possession of a fire- arm is not job-related to a factory worker position). 204. See EEOC Dec. No. 80-16 (Aug. 8, 1980) (conviction for forgery isjob-related to a position requiring the handling of money payments, however, because the conviction occurred six years before applying for the position, rejection of the job application was not justified); EEOC Dec. No. 81-15 (Jan. 9, 1981) (a conviction for retail theft is related to a job with access to cash and merchandise, however, because the offense is "not of a serious nature" and almost four years had elapsed between the conviction and the date of the termination, the termination was not justified)). 205. See Transcript of EEOC Meeting, "Employment Discrimination Faced by Indi- viduals with Arrest and Conviction Records" (Nov. 20, 2008), available at http:// archive.eeoc.gov/abouteeoc/meetings/11-20-08/index.html; Employer Access to Criminal Background Checks: The Need for Efficiency and Accuracy: Hearing on H.R. 1908 Before the H. Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 110th Cong. (2007), available at http://judiciary.house.gov/hearings/hear042607.html. 206. See, e.g., Miriam J. Aukerman, The Somewhat Suspect Class: Towards a Constitutional Framework for Evaluating OccupationalRestrictions Affecting People with Criminal Records, 7 J.L. Soc'y 21 (2005). 207. The Fair Housing Act specifically does not protect people "whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others." 42 U.S.C.A. § 3604(0(9) (2009). FALL 2009] Do Not (Re)enter by objective evidence that is sufficiently recent as to be credible, and not from unsubstantiated inferences, that the applicant would pose" a 3604(0(9) risk. Perhaps one of the more robust models for "fair screening" in existing federal law is under the Americans with Disabilities Act of 1990 (ADA), which recognizes that the disclosure of certain information may injure an otherwise competitive candidate's employment opportunities and, as such, establishes protective measures to encourage fair employment practices. Under the EEOC's ADA enforcement guidance, an employer is not only barred from asking any disability-related questions20 9 until the final stage of the application process, but it is also restricted in the circumstances under which it may consider disability information for the purposes of determining suitability for a particular position.10 State and local laws that support tougher protections for individuals with criminal records who seek employment may also be models for nationwide guidance on the use of criminal records.1 One model that is gaining support among U.S. cities through the nationwide "ban the box" campaign, discussed earlier in this Note, is the "delayed question"

208. Robert Schwemm, HOUSING DISCRIMINATION LAW, § 11D(3) (2009). 209. Under the ADA a "disability-related question" is a question that is likely to elicit information about a disability, such as asking employees whether they have or ever had a disability, the kinds of medications they may be taking, and, the results of any medical tests they have had. 210. EEOC Enforcement Guidance on Preemployment Disability-Related Ques- tions and Medical Examinations, (1995), available at http://www.eeoc.gov/policy/docs/ preemp.htm1. In the first stage of employment consideration, before an offer is made, the ADA prohibits all disability-related inquiries and medical examinations, even those that may be related to the job. During the second stage, which begins after an applicant is offered a conditional job offer), the employer may make disability-related inquiries and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category. However, any decision to reject the applicant on the basis of information provided must be job-related and consistent with business necessity, meaning: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition. EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) (2000), available at http://www.eeoc.gov/policy/docs/guidance-inquiries.html. Lastly, in the third stage, after the applicant has been hired, the employer may only ask disability-related question or require medical examination when he or she reasonably believes that it is "job-related and consistent with business necessity" and must base this belief on objective evidence. Id. 211. Several states have job discrimination laws that contain some form of arrest or conviction record prohibition. See examples supra note 71. Although state and national congressional bodies may be able to achieve similar protections independently, the disparate impact precedent under Title VII may also require courts to find claims of discrimination under such a theory with or without legislative action. MichiganJournal of Race & Law [VOL. 15:181 approach. 212 Similar to the ADA model, this policy mandates that public and private employers delay a criminal background inquiry until a conditional job offer is made, after which any criminal-record-based rejection must be justified by business necessity. The rationale for this policy-that employers will begin to see the individual for his or other qualifications and thus be more likely to overlook a past conviction-applies similarly to private housing providers.

V. ENFORCEMENT CHALLENGES

The more exacting screening policies that this Note proposes are not a quick fix for the multitude of housing challenges currently facing ex-offenders in the U.S. Whether such change were to come in the form of enhanced HUD regulations governing private housing provider screening practices, or legislation passed at the state, city, and local level, it is likely that enforcement will be a significant challenge. Even those actions that are currently considered illegal under the FHA are a challenge to monitor. For example, private housing providers are not allowed to treat different applicants' criminal histories discriinatorily, but are required to screen all applicants and apply any disqualifications against all applicants without respect to their backgrounds. Yet, advocacy groups and ex-offender studies provide ample examples of the subjective application of disqualifying characteristics, where a criminal record has operated as a proxy for race.213 Even when armed with the most blatant evidence of a violation of equal treatment under these policies, ex- offenders of color often may not have the financial or legal resources to litigate, either individually, or as a class. t 4 Thus, without widespread education and enforcement programs and greater access to legal services, increased protections for ex-offenders will not automatically result in greater housing opportunities. One possible means for encouraging more individualized consideration of legitimate factors affecting tenant safety on a wide scale level is through the voluntary educational programs offered by local law enforcement agencies mentioned in Part I. These landlord training programs, which may be partially responsible for the recent upsurge in tenant screening practices, offer wide access to private housing providers

212. See discussion supra note 74; see also Report-Letter, EEOC Compliance Manual No. 188, Jan. 29, 2009, "Group urges ban on early inquiries into criminal background of applicants." 213. This may also be true of private housing providers who, based on past allegations of discriminatory practices under the FHA, have agreed to adhere to a consent agreement. In the wake of a new consent agreement, it is not unusual for the provider to erect a criminal record policy, which under current regulations, can operate as a perfectly legal proxy for race. 214. See THOMPSON, supra note 8, at 85. FALL 2009] Do Not (Re)enter

and could act as a powerful force in discouraging over-inclusive disqualification policies. This would be a remarkable shift from current practices, however, because the impetus for these programs focuses on overall neighborhood criminal activity, and not racial integration. Such change may very well have to come from a state or federal authority because local municipalities may be more concerned with keeping ex- offenders out of their community than the problems of homelessness and growing ex-offender communities of color forming elsewhere. Another possibility is the use of mediation programs funded by HUD grants to local PHAs, which could assist parties in reaching a negotiated resolution that is able to accommodate both the private landlord's safety concerns and the applicant's housing needs.21 Such programs would act as a form of alternative dispute resolution, and serve to educate private housing providers about policies that may violate Title 216 VIII. Finally, in order to quash any remaining uncertainty as to whether disparate impact claims are actionable under Title VIII, housing and re- entry advocates should lobby Congress to amend the act to include specific "effects" language, as it did in 1991 to Title VII.

CONCLUSION

In recent years, as hundreds of thousands of individuals are released back into society from prison, the importance of improved prisoner re- entry and rehabilitation programs has become apparent. As America's prisons have grown, so has electronic access to and use of criminal background checks in providing employment, extensions of credit, and, critically, housing. This Note has attempted to show the link between race and crime and the resulting impact of housing choices for those with criminal conviction. Up to now, most of the discussion has failed to explore the possible reasons for a race/crime correlation. If the high percentage of racial minorities in prison is caused by environmental factors and structural barriers in communities of color, such as poor quality of education, access to capital, job networking, and unequal treatment in the criminal justice system-as many believe it is-then the consequences of housing choice are enormous. Absent new legal protections to ensure the "fair screening" of criminal records by private housing providers, the vast number of individuals of color who currently have some form of crimi-

215. See U.S. Dep't of Hous. & Urban Dev., Fair Housing Initiatives Program (FHIP), http://www.hud.gov/offices/flheo/partners/FHIP/flip.cfin. 216. Given the immediacy of many individuals' housing needs, such a mediation program must be capable of providing a speedy resolution or it would offer little value to a rejected applicant. 222 MichiganJournal of Race & Law [VOL. 15:181 nal record-and thus are barred from a certain quality of living-will continue to heavily undermine the desired goal of fair housing: equal access to decent housing.

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REDEMPTION IN THE PRESENCE OF WIDESPREAD CRIMINAL BACKGROUND CHECKS*

ALFRED BLUMSTEIN KIMINORI NAKAMURA The H. John Heinz III College Carnegie Mellon University

KEYWORDS: redemption, criminal background checks, criminal-history records, employment

Criminal background checks have now become ubiquitous because of advances in information technology and growing concerns about employer liability. Also, a large number of individual criminal records have accumulated and have been computerized in state repositories and commercial databases. As a result, many ex-offenders seeking employment could be haunted by a stale record. Recidivism probability declines with time “clean,” so some point in time is reached when a person with a criminal record, who remained free of further contact with the criminal justice system, is of no greater risk than a counterpart of the same age—an indication of redemption from the mark of crime. Very little information exists on this measure of time until redemption and on how its value varies with the crime type and the offender’s age at the time of the earlier event. Using data from a state criminal-history repository, we estimate the declining hazard of rearrest with time clean. We first estimate a point of redemption as the time when the hazard intersects the age–crime curve, which represents the arrest risk for the general population of the same age. We also estimate another similar

* The authors are most appreciative of the support of David J. van Alstyne of New York’s Division of Criminal Justice Services for providing considerable help in accessing the data. Partial funding for this work has been provided by the National Institute of Justice under Grant 2007-IJ-CX-0041. We also thank Daniel Nagin, Melvin Stephens, James Jacobs, and three anonymous reviewers for their helpful comments and suggestions. A previous version of this article was presented at the 2007 annual meeting of the American Society of Criminology (Atlanta, Georgia). Direct correspondence to Alfred Blumstein, the H. John Heinz III College, Carnegie Mellon University, Pittsburgh, PA 15213 (email: [email protected]).

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redemption point when the declining hazard comes “sufficiently close” to the hazard of those who have never been arrested. We estimate both measures of redemption as a function of the age and the crime type of the earlier arrest. These findings aid in the development of guidelines for the users of background checking and in developing regulations to enhance employment opportunities for ex-offenders.

For 30 years I’ve lived a good life—so why should I have to tell a potential employer about my past? (Scanlon, 2000: 10)

THE BASIC PROBLEM OF REDEMPTION People like Scanlon quoted above are not rare. Many people have made mistakes in their youthful past but have since turned themselves around and now live a respectful life. We define redemption, which is a term rooted in the religious concept that refers to forgiveness of past sins, as the process of “going straight” and being released from bearing the mark of crime. Until recently, society had a natural redemption process at work in the sense that a person who committed a crime could prove to be redeemed by leading a life as a productive member of society. In recent years, the opportunity for redemption has been in serious question. The following two important trends make the problem of redemption a growing public concern: 1) there has been an increasing demand for background checks for a wide variety of purposes, most importantly for employment assessment, and 2) a growing number of individual criminal records have accumulated and are becoming easily accessible electronically. With the rapid advancement in information technology, individuals with a criminal record are haunted not only by the question about their criminal background on job applications but also are faced with computerized criminal background checks, which are increasingly relied on by employers.1 Criminal background checks reveal the individual’s old criminal record and highlight that fact, which overshadows a law-abiding life led since. Computerized criminal records can have long memories, and this article is intended to provide guidance for imposing some limits to that memory. Employers conduct background checks on job applicants for several different reasons. One reason may be to verify their moral character. Another reason, which is more directly related to the context of criminal- history background checks, may be the desire to assess their risk of committing crimes that could cause physical, financial, and reputational damage to the organization. We focus on this risk of reoffending by those

1. The concern has been raised at least since the 1970s (Maltz, 1976; Westin and Baker, 1972). \\server05\productn\C\CRY\47-2\CRY210.txt unknown Seq: 3 1-MAY-09 10:08

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individuals who have prior criminal records. Considerable evidence exists that, after an initial period, the probability of recidivism declines monotonically with time free and clear of further contact with the criminal justice system. The current article addresses the following questions: How long does it take for an individual with a prior criminal record and no subsequent criminal involvement to be of no greater risk than persons of the same age in the general population?2 How does an individual with a prior record compare with individuals with no prior record? How do those risks vary with the characteristics of the prior record, such as the crime type and age at the prior arrest?

PREVALENCE OF CRIMINAL BACKGROUND CHECKING

With the advancement in information technology and the Internet, individuals’ criminal records have never been more easily accessible. The background-check industry is burgeoning. Numerous companies exist that acquire and compile criminal justice information obtained from the police and the courts and assemble a database for commercial purposes (Barada, 1998; Munro, 2002). SEARCH (the National Consortium for Justice Infor- mation and Statistics) reports that, “in addition to a few large industry players, there are hundreds, perhaps even thousands, of regional and local companies” that compile and/or sell criminal justice information to the end users (SEARCH, 2005: 7). They provide background-check services to private employers at their convenience in a timely manner at decreasing costs (SEARCH, 2005). A recent survey of firms from multiple cities in the United States reveals that about 50 percent check the criminal background of job applicants (Holzer, Raphael, and Stoll, 2004). Another survey finds that 80 percent of the large employers in the United States now run criminal background checks on their prospective employees (Society for Human Resources Management, 2004). Some employers may conduct criminal background checks on job applicants voluntarily to identify those individuals who may commit criminal acts in the workplace to minimize loss and legal liability of negligent hiring that could result from such acts (Bushway, 1998). For some job positions that involve vulnerable populations, such as children and the elderly, laws require employers to conduct such background checks (Hahn, 1991). In addition, employers may use criminal history records to assess character flaws, such as lack of honesty and trustworthiness (Kurlychek, Brame, and

2. We know that recidivism risk declines with age, and so it is important to make the comparison with age-comparable individuals. \\server05\productn\C\CRY\47-2\CRY210.txt unknown Seq: 4 1-MAY-09 10:08

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Bushway, 2007; Pager, 2007). Also, occupational licensing laws could disqualify many individuals based on the requirement of “good moral character” (Harris and Keller, 2005; May, 1995).3 As the use of criminal background checks by employers has become widespread, criminal records could have lingering effects on employment prospects as “invisible punishment” or collateral consequences of contact with the criminal justice system (Travis, 2002).4 Many employers show considerable reluctance to hire individuals with criminal records (Holzer, Raphael, and Stoll, 2003; Pager, 2003; Schwartz and Skolnick, 1962; Holzer, Raphael, and Stoll, 2004;5 others have shown the relationship between criminal records and poorer employment prospects (Bushway, 1998; Grogger, 1995; Nagin and Waldfogel, 1995; Western, Kling, and Weiman, 2001).

PREVALENCE OF CRIMINAL RECORDS In 2007, according to the Uniform Crime Report, law-enforcement agencies across the United States made over 14 million arrests (Federal Bureau of Investigation, 2008). On December 31, 2003, over 71 million criminal-history records were in the state criminal-history repositories (Bureau of Justice Statistics, 2006).6 The increasing automation of criminal history records in the repositories has increased the number of records that are electronically accessible. At the end of 2003, about 90 percent of the records were automated, and the level of automation increased 57 percent from 1995 (Bureau of Justice Statistics, 2006). Prior research suggests that the general public’s chance of being arrested in their lifetime is high. Over 40 years ago, it was estimated that 50 percent of the U.S. male population would be arrested for a nontraffic offense in their lifetime (Christensen, 1967). Among those who have an

3. We do not elaborate more on employers’ concern over whether a criminal record signals a lack of good character. The investigation of such considerations and its relationship with time clean warrant future research on employer judgments. 4. Collateral consequences of contact with the criminal justice system occur mostly outside the public view and affect ex-offenders beyond the imposed sentences (Travis, 2002: 16). They include restrictions on professional and occupational licensing, which are possibly important means for ex-offenders to increase their employment opportunities. The occupations that are affected by the restrictions range from health care, nursing, and education, to plumbing and barbering. Col- lateral consequences could also include denial of governmental benefits, such as welfare and public housing, termination of parental rights, and revocation or suspension of driver’s licenses (Kethineni and Falcone, 2007; May, 1995; Petersilia, 2003; Samuels and Mukamal, 2004; Wheelock, 2005). 5. Some evidence suggests that the negative effect of criminal background checks on the hiring of ex-offenders is strongest for employers who are legally required to conduct such background checks (Stoll and Bushway, 2008). 6. An individual offender may have had records in multiple states. \\server05\productn\C\CRY\47-2\CRY210.txt unknown Seq: 5 1-MAY-09 10:08

CRIMINAL BACKGROUND CHECKS 331 arrest record, some have an isolated record that was acquired years ago and have maintained a clean record since then, but the evidence of contact with the criminal justice system, even if it was in the distant past, could remain in the repositories forever.

RELEVANCE OF CRIMINAL HISTORY

One rationale behind the practice of checking the criminal background of job applicants is that the employers recognize the strong positive relationship between past and future criminal offending. The continuity in criminal behavior has been validated by many studies (Blumstein, Farring- ton, and Moitra, 1985; Brame, Bushway, and Paternoster, 2003; Farring- ton, 1987; Piquero, Farrington, and Blumstein, 2003). Although these studies lend support to employers who would avoid any potential employees with a criminal-history record, these employers would also be well advised by some interlinked lines of research in criminology, which present equally strong evidence of desistance from crime in a subpopulation of those with past offenses. One line of research argues that changes in the life course of offenders affect their risk of future involvement in crime. For example, it is well established that a stable marriage and employment are powerful predictors of such desistance (Sampson and Laub, 1993; Samp- son, Laub, and Wimer, 2006; Uggen, 1999; Wallman and Blumstein, 2006; Warr, 1998). Also, in another line of research, the age–crime curve demonstrates a steady decline in criminal activity after a peak in the late teens and young-adult period, and aging is one of the most powerful explanations of desistance (Farrington, 1986; Hirschi and Gottfredson, 1983; Sampson and Laub, 1993, 2003). Most importantly for the current study, time clean since the last offense strongly affects the relationship between past and future offending behavior. Studies on recidivism consistently demonstrate that those who have offended in the past will have the highest probability of reoffending within several years, and the probability will decline steadily afterward (Maltz, 1984; Schmidt and Witte, 1988; Visher, Lattimore, and Linster, 1991). Two studies that tracked released U.S. prisoners show that of all those who were rearrested in the first 3 years, approximately two thirds were arrested in the first year, which indicates the declining recidivism rate over time (Beck and Shipley, 1997; Langan and Levin, 2002). Another study examined the effects of sentences on 962 felons convicted between 1976 and 1977 in Essex County, New Jersey, by following their recidivism (measured by rearrest) for over 20 years (Gottfredson, 1999). This study shows that although half of those rearrested were arrested within 2.2 years, 30 percent of the offenders remained arrest-free after the original sentence. The calculation based on the Essex data reveals that among those felons \\server05\productn\C\CRY\47-2\CRY210.txt unknown Seq: 6 1-MAY-09 10:08

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who stayed free of crime for 10 years after the original conviction, only 3.3 percent were reconvicted within the next 10 years (Community Legal Ser- vices, Inc., 2005). Numerous other studies have shown that recidivism occurs relatively quickly. However, little attention has been paid to the smaller population of ex-offenders who stay crime free for an extended period of time. Recent papers by Kurlychek and her colleagues have shed some light on the population characterized by long-time avoidance of crime (Kurlychek, Brame, and Bushway, 2006, 2007). Examining the hazard rate, they show that the risk of offending for those with criminal records converges toward the risk for those without a record as substantial time passes. Kurlychek, Brame, and Bushway (2006) used the longitudinal data from the Second Philadelphia Birth Cohort Study (Tracy, Wolfgang, and Figlio, 1990). The major advantage of such longitudinal samples is that they have a representative population of nonoffenders, which makes it possible to compare the hazard of those with records to those without. However, longitudinal samples are often limited in size, and the follow-up may not be as complete as one desires.

MEASURES OF REDEMPTION Although past wrongdoings are a useful sign of future trouble, this information has decreasing value over time because the risk of recidivism decreases monotonically with time clean. Thus, there can be a point at which we can be confident that redemption has occurred, where the risk of reoffending has subsided to the level of a reasonable comparison group. The problem here is that little empirical information exists that can help to establish that point. The absence of reliable empirical guidelines leaves employers no choice but to set their own arbitrarily selected cutoff points based on some intuitive sense of how long is long enough—inevitably with a conservative bias.7 Given the importance of this issue, particularly for those individuals with other employment vulnerabilities, it becomes

7. For example, the Transportation Security Administration requires maritime workers to obtain a Transportation Worker Identification Credential (TWIC) to access secure areas of port facilities. Individuals are disqualified from getting a TWIC if they have been convicted for certain disqualifying criminal offenses within 7 years of the TWIC application (Transportation Security Administration, n.d.). To the best of our knowledge, the choice of the cutoff points is arbitrary and not based on any empirical analysis. Although 7 years seems to be a common restorative period, perhaps based on a view that 5 years is too short and 10 years is too long, some evidence exists that the cutoff points set by users of criminal records could be much larger or could be “indefinite” (Carey, 2004: 50). The Fair Credit Reporting Act states that a vendor of criminal history records may not report arrest information that is older than 7 years (Hinton, 2004). \\server05\productn\C\CRY\47-2\CRY210.txt unknown Seq: 7 1-MAY-09 10:08

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important to develop empirical estimates of a reasonable point of redemption. One such point, which we denote as T*, is where the recidivism risk declines and crosses the level of the general population of the same age, and so it can serve as a point of redemption. These data can help an employer who has selected a job applicant for a position and wants to compare that individual’s risk of arrest with someone of the same age from the general population. The crossover occurs because the general population includes people who have no criminal records as well as people who have multiple arrests. Now, suppose an employer has multiple job applicants for a position, and a background check is run on all applicants. Those with no prior record (whom we designate as the “never arrested”) are inherently less risky than those with a prior record, but that difference can diminish with the amount of time the individual with a prior arrest stays clean. This provides another point of redemption, when the recidivism risk of an individual with a criminal record is “sufficiently close” to one without, and we designate that point as T**. T** should be larger than T* because the comparison group (the never arrested) are less risky than the general population. It is reasonable to expect that T* and T** will vary with the crime type of the earlier arrest, which is denoted as C1. Recidivism studies have shown that the crime type for which state prisoners were released was related to recidivism rates (Beck and Shipley, 1997; Langan and Levin, 2002). Prisoners who were released for “crimes for money,” such as burglary, robbery, larceny, and motor vehicle theft, had the highest recidivism rates in both studies. T* and T** could also vary with the age of the prior

arrest, which is denoted as A1, and criminological research consistently indicates that an earlier onset age is a good predictor of a serious criminal career, which is characterized by a larger number of offenses and a longer career duration (Blumstein et al., 1986; Farrington et al., 1990; Farrington et al., 2003; Piquero, Farrington, and Blumstein, 2007). Because a prior record of violence, especially at younger ages, predicts more serious and chronic offending (Elliott, 1994; Farrington, 1991; Piquero, Farrington, and Blumstein, 2007), recidivism risk is expected to be higher for those whose early arrest was for violence (Piper, 1985). Age and crime type of the prior arrest also should be taken into account in estimating T* and T** because the information about these factors usually appears in the criminal background reports that employers obtain, and so the information is available to be used in the hiring decision. We are interested in developing estimates of T* and T** as a function of these characteristics of the earlier record. This approach is related to the more familiar approach of estimating recidivism probability. It is more \\server05\productn\C\CRY\47-2\CRY210.txt unknown Seq: 8 1-MAY-09 10:08

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complicated, however, because one must examine the record over an appreciably longer period of time. In recidivism studies, it is usually sufficient to track individuals for as short as 5 years, because the large majority of individuals who will recidivate will do so within the first several years (e.g., Beck and Shipley, 1997; Langan and Levin, 2002). However, the esti-

mation of T* and T**, particularly as a function of A1 and C1, requires observation over a much longer interval, long enough for the recidivism probability to become small enough. This process requires larger initial samples than those used in past studies (Kurlychek, Brame, and Bushway, 2006, 2007) so that we can estimate the recidivism probability with sufficient precision after most of any initial cohort has already recidivated.

RESEARCH APPROACHES AND RESULTS

This section first introduces the data used in the analysis to estimate hazard. It then describes the hazard estimation procedure. Next, an approach to comparing redemption candidates with the general population and the resulting estimates of T* are discussed. Then, an approach to comparing redemption candidates with those who have never been arrested and the resulting estimates of T** are discussed.

DATA

Our research approach requires starting with criminal-history records initiated long enough ago that we can be confident that after having been free and clean of arrests, the individuals with those records have a low residual risk of recidivism. On the other hand, we would like records from a time when the computerization of rap-sheet information was sufficiently advanced so that the computer records would provide an appropriate sample. Thus, we contacted the criminal-history repository in New York State asking for a sample of individuals arrested for the first time as adults in 1980. This information provided an interval of 27 years to follow the individuals and assess their recidivism probabilities. It also provided a large enough population to disaggregate into a reasonable number of interesting crime types and age at first arrest and still have an adequate number of individuals who have remained clean of crime 10, 20, and even 25 years later. \\server05\productn\C\CRY\47-2\CRY210.txt unknown Seq: 9 1-MAY-09 10:08

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Over 88,000 individuals were recorded as experiencing their first arrest in 1980 in New York State.8 From this total population, we focus on individuals whose age at first arrest was 16, 18, and 20 years.9 The crime types we focus on here have to be sufficiently numerous, reasonably serious [e.g., we avoid driving under the influence (DUI)], and less than permanently damaging (e.g., murder). Our analysis of T* focuses on three offenses: robbery, burglary, and aggravated assault. This selection of offenses is based on their prevalence in arrest records and on the fact that a first adult arrest for one of them is relatively unlikely to lead to incarceration, and especially to a long period of incarceration, which would com- plicate our analysis.10 The analysis of T** uses two broader categories of

C1, violent and property, to have the larger sample sizes that are needed to generate the desired precision in estimating hazard as t becomes large. Table 1 provides the distribution of the sample by age and crime type at first arrest.

ESTIMATION MODELS OF REARREST RISK We model time to recidivism using survival analysis, which is a statistical method developed to study the occurrence and the timing of events. Because the methods are flexible and generic, they have been used for studying a wide variety of events, such as deaths, marriages, cancer cures, unemployment, militarized disputes, earthquakes, equipment failures, and so on. Criminologists have long used the methods to study recidivism (e.g., Maltz, 1984; Schmidt and Witte, 1988; for review, see Chung, Schmidt, and Witte, 1991). Our analysis uses hazard (or hazard rate) to examine the

8. The data received include all individuals with an arrest recorded in the New York State Division of Criminal Justice Services repository of criminal-history records. There are other individuals with one or more arrests that were sealed but with no unsealed arrests; these individuals were not included in the files we examined. In a background check, these individuals would presumably appear as never arrested. It is also possible that individuals with an initial arrest in 1980 that was sealed before they had an opportunity for a second arrest after 1980, and then appeared at a later time with an arrest that was not sealed; in that case, their second arrest would have been recorded with a different ID number and would not have been included in our 1980 sample. We were unable to link the two components of such an individual’s records. This selection process dropped people whose arrest frequency (l) may have been relatively low from our sample; thus, our hazard estimates may be somewhat higher than if they were included, and that would also have made our T* and T** estimates somewhat higher. 9. In contrast to most other jurisdictions, New York considers 16-year-olds to be “adults.” 10. Incarceration after the first arrest is very unlikely for our three crime types except for robbery. About 10 percent of those who were arrested for robbery in 1980 went to prison. Excluding them does not change our findings in any important way. \\server05\productn\C\CRY\47-2\CRY210.txt unknown Seq: 10 1-MAY-09 10:08

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Table 1. Initial Sample Size, n by First Offense (C1) and Age at First Arrest (A1) Age at First Arrest First Offense 16 18 20 Robbery 937 382 197 Burglary 1,956 763 387 Aggravated assault 230 205 169 Violent 1,861 1,151 794 Property 5,238 2,986 1,833

timing of redemption and how it varies with offense type and age at first arrest. Let T be the time until a new arrest. Hazard, h(t), is the conditional probability of a new arrest given surviving without an arrest up to time t, which can be written as follows: # of the 1980 sample who have a new arrest time period t h(t)=Pr(T=tT ≥ t) = (1) # of the 1980 sample who have not had a new arrest before t This measure is precisely the quantity employers and others would use to evaluate the offending risk of a person who has been revealed by the background check to have committed a crime t years ago and none since (Kur- lychek, Brame, and Bushway, 2006). In calculating h(t), we count a new arrest (after their initial arrest in 1980) for any offense type except DUI.11 Thus, for example, a new arrest is marked when a person whose first arrest in 1980 was for burglary is rearrested for burglary or for any nonburglary offense, other than DUI. We estimate the hazard, given conditions at first arrest, namely the age

A1 and the crime type C1 of the first arrest. Figure 1a displays h(t) for A1 of 12 16, 18, and 20 years for C1 of burglary. Figure 1b shows h(t) for A1 = 18 years for C1 = robbery, burglary, and aggravated assault. As expected, h(t) varies with A1 and C1. The hazard curves differ primarily in the first 10 years, with robbery tending to have the highest conditional rearrest probability, whereas burglary and aggravated assault follow a similar,

11. In some cases, we find that an arrest is followed quickly by another arrest. We are concerned that what seems to be a new “arrest” might be related to the same crime event as the prior arrest (e.g., transfer to a different jurisdiction), so we count an arrest as a new arrest only if it occurs at least 30 days after the prior arrest. 12. To reduce random fluctuations, all hazard curves (h(t)) for t = 2 in figures 1 to 4 are smoothed using five-point smoothing, which is also known as a running mean or a moving average with a window width of five (i.e., h’(t) = [h(t-2) + h(t-1) + h(t) + h(t+1) + h(t+2)] / 5), and the horizontal axis begins at t = 2. \\server05\productn\C\CRY\47-2\CRY210.txt unknown Seq: 11 1-MAY-09 10:08

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Figure 1a. Hazard Rate h(t): Age 16, 18, 20 Burglary

.25

.20

.15 Age 16 Burglary .10 Age 18 Burglary Age 20 Burglary .05 Probability of Rearrest Probability

.00 2 4 6 8 10 12 14 16 18 20 Years Since First Arrest

Figure 1b. Hazard Rate h(t): Age 18 Robbery, Burglary, and Aggravated Assault

.25

.20

.15 Age 18 Robbery .10 Age 18 Burglary Age 18 Aggravated .05

Probability of Rearrest Probability Assault

.00 2 4 6 8 10 12 14 16 18 Years Since First Arrest

lower trend. Also, a younger A1 is associated with a higher hazard. These patterns have important implications in estimating T*, to which we turn next.

COMPARISON WITH THE GENERAL POPULATION

APPROACH We are interested in finding T*, which is the value of t where the risk of a new arrest matches the risk of arrest for the general population of the same age. We estimate the risk of arrest for the general population by the age–crime curve whose horizontal axis is age (A) and whose vertical axis is the age-specific arrest rate of people of age A, which is the ratio of the number of arrests of age A to the population of age A from a particular \\server05\productn\C\CRY\47-2\CRY210.txt unknown Seq: 12 1-MAY-09 10:08

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year. Instead of using the conventional age–crime curve, we construct a progressive age–crime curve, in which the age-specific arrest probability

for those who were of age A1 in 1980 is calculated from the number of arrests and the population of age A1 in 1980, the number of arrests and the population of age (A1 + 1) in 1981, those of age (A1 + 2) in 1982, and so on.13 As a result of the way this progressive age–crime curve is constructed, it takes into account the period effect, which is not observed in the traditional age–crime curve.14 Here, we count arrests for any offense except DUI, suspicion, and “other” offenses so that the range of offenses for which an arrest is made is comparable with the range of offenses considered for a new arrest for redemption candidates. The two curves, the hazard and the age–crime curve, are expected to cross at T* years for two reasons. First, the age–crime curve includes, among the larger population, those who were never arrested as well as those who recently offended and thus have a reasonably high risk of reoffending. In contrast, the redemption candidates have been arrest free for T* years, during which time the risk, or hazard rate, should have fallen substantially.

RESULTS

Table 2 shows the values of T* by offense type at first arrest (C1) and 15 age at first arrest (A1). In general, reasonable differences in values of T* are observed across offense types and ages at first arrest. Overall, those who were arrested for robbery take the longest time, about 9 years for 16- year-olds, about 8 years for 18-year-olds, and about 4 years for 20-year- olds, to be similar to their age cohorts from the general population in

13. More generally, the value of the age–crime curve in year t after the first arrest of

persons of A1 in 1980 is given by the number of arrests of people of age (A1 + t) in year (1980 + t) divided by the population of that age in that year. The sample cohort is from New York, so the age–crime curve as a comparison is also from New York. The number of arrests by age in New York is from the Uniform Crime Reports (Federal Bureau of Investigation, 1981–2001; National Consortium on Violence Research, April 10, 2008), and the population of New York State is from the census (U.S. Census Bureau, 1996, 2000, 2007). Similar to how the hazard curves are smoothed, the age–crime curve is smoothed using three-point smoothing. 14. The period effect could be of special importance in estimating T* for the redemption candidates, who were first arrested in 1980 and were followed thereafter. The late 1980s through the early 1990s witnessed a significant increase in the violent crime rate (Blumstein and Wallman, 2006). Because the redemption candidates arrested in 1980 were experiencing an anomalously high crime period, their progressive age–crime curve incorporates the period effect, which accounts for the nonmonotonic decline with age. 15. The values of T* are calculated as the intersection of the smoothed age–crime curve and the smoothed hazard by linear interpolation. \\server05\productn\C\CRY\47-2\CRY210.txt unknown Seq: 13 1-MAY-09 10:08

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terms of the probability of an arrest. Interestingly, the probability of a new arrest at T* is relatively consistent across different ages at first arrest and offense types, being close to .10.

Table 2. Values of T* by C1 and A1 (Arrest Probability at T* in Brackets)

Age at First Arrest First Offense 16 18 20 Robbery 8.5 (.103) 7.7 (.096) 4.4 (.086) Burglary 4.9 (.105) 3.8 (.097) 3.2 (.086) Aggravated assault 4.9 (.105) 4.3 (.098) 3.3 (.086)

Across each of the crime types, the youngest A1 is associated with the largest value of T*. This result is consistent with general findings in criminology that younger starters persist longer in their criminal careers (Piquero, Farrington, and Blumstein, 2007). Also, the magnitude of T* is consistently largest for robbery but varies with A1 for burglary and aggravated assault. For illustrative purposes, figures 2a and 2b show hazard curves for three conditions: (figure 2a: C1 = Robbery, A1 = 18) and (figure 2b: Burglary, 16) and the corresponding progressive age–crime curves (i.e., for the t years after the first arrest) and the resulting intersection, T*.

Figure 2a. Comparison with Age–Crime Curve: Age 18 Robbery

T* = 7.7, h(T*) = .096 .25

.20

.15

Age 18 Robbery .10 General Population (Age 18 in 1980) .05 Probability of Rearrest Probability

.00 2 4 6 8 10 12 14 16 18 Years Since First Arrest \\server05\productn\C\CRY\47-2\CRY210.txt unknown Seq: 14 1-MAY-09 10:08

340 BLUMSTEIN & NAKAMURA

Figure 2b. Comparison with Age–Crime Curve: Age 16 Burglary T* = 4.9, h(T*) = .105 .25

.20

.15

Age 16 Burglary .10 General Population (Age 16 in 1980) .05 Probability of Rearrest Probability

.00 2 4 6 8 10 12 14 16 18 20 Years Since First Arrest

COMPARISON WITH THE “NEVER ARRESTED” Our previous analysis estimated T* as a point of redemption by comparing people with a prior record who have stayed clean with members of the general population of the same age. In contrast to T*, which can be calculated as an intersection of two curves, a comparison with the never arrested inherently involves more complex choices. Because the risk of rearrest for a redemption candidate might be expected to approach, but not cross, the risk of arrest for the never arrested, it becomes a matter of having to assess when the two curves are “close enough.”

APPROACH Approximating the hazard of the never arrested. Information about the never arrested is not directly available in any repository-based data set that contains records of only those who have been arrested.16 One approach to estimating the hazard of the never arrested involves using the 1980 age distribution of New York and the age distribution of 1980 first- time arrestees. Assuming stationarity as in estimation of life tables, we can approximate the population of the never arrested at age A (Pna(A)) as follows:17

Pna(A) = Population of NY of age A in 1980 – S (first-time arrestees in 1980 for all A1 < A).

16. Kurlychek, Brame, and Bushway (2006, 2007) pursued this issue using cohort data sets, but such data sets are often too limited for estimating hazard rates for the small fraction of individuals with a prior arrest who remain clean for a reasonable time.

17. We only consider arrests at adult ages in NY (A1 = 16). \\server05\productn\C\CRY\47-2\CRY210.txt unknown Seq: 15 1-MAY-09 10:08

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As a result, the hazard of the never arrested at age A, (hna(A)), is calculated as follows:18

Number of first-time arrestees for A1 = A hna(A) = (2) Pna(A)

Figure 3 displays our estimate of hna(A). It is evident that the younger ages are associated with higher risk of arrest, but even at age 16, the hazard is less than .03, which is clearly much lower than the risk of rearrest of those with a prior arrest. We can now compare the hazard of redemption candidates whose first arrest occurs at age A1, h(t), with the hazard of the never arrested, hna(t=A−A1).

Figure 3. Hazard of the Never Arrested, hna(A)

.035

.030

.025

.020

.015

.010 Probability of Arrest of Probability .005

.000 16 18 20 22 24 26 28 30 32 34 36 38 Age

Determining “close enough.” We designate as T** the point when the hazard of an individual with a criminal record h(t) is sufficiently close to that of one without. Figure 4 shows h(t) for A1 = 18 for C1 = property 19 crimes and violent crimes, as well as hna(t). We first note that h(t) declines considerably faster than hna(t). However, aside from random fluctuations, h(t) comes very close to hna(t) but remains above it, even at t >

18. For the same reason as discussed in footnote 8, hna(A) may be higher if the individuals who have one or more arrests that were sealed but with no unsealed arrests were included. 19. The comparison with the risk of the never arrested is particularly sensitive to the

diminished sample size, so we use two broad categories of C1, violent and property crimes. Here, violent crimes are designated to include robbery, aggravated assault, forcible rape, and simple assault. Murder and non-negligent manslaugh-

ter are not included as C1 because special conditions are likely to apply to their redemption. Property crimes are designated to include burglary, larceny, motor vehicle theft, stolen property, fraud, forgery, and embezzlement. \\server05\productn\C\CRY\47-2\CRY210.txt unknown Seq: 16 1-MAY-09 10:08

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20. Given these observations, our question is when the redemption candidate’s risk is deemed “close enough” to that of the never arrested. Our approach invokes the use of confidence intervals. Using the estimated risk of the never arrested hna(t), we estimate T** as the lowest value of t such that the upper bound of the confidence interval of h(t) becomes smaller than or equal to (hna(t)+δ), where δ represents a risk difference that an employer is willing to tolerate.20, 21

20. This approach of estimating T** is equivalent to carrying out a hypothesis test

where the null hypothesis states that the difference between h(t) and hna(t) is greater than δ. The alternative hypothesis is that the difference is less than or equal to δ. Thus, it is of the following form:

H0:h(t)>d+hna(t) versus H1:h(t)≤d+hna(t). We would reject the null hypothesis at t = T**, where the upper bound of the

confidence interval of h(t) first intersects (hna(t) + δ). This approach is motivated by the literature on (bio)equivalence tests where the studies want to show that the effectiveness of new treatments (drugs, vaccines, diagnoses, etc.) is no worse than the standard, existing treatment by a specified margin (e.g., Barker et al., 2001; Westlake, 1976). Our approach is different from the more familiar approach of determining

whether h(t) is “close enough” to hna(t) by carrying out a hypothesis test with the null hypothesis stating h(t) is equal to hna(t) and concluding that h(t) is “statistically indistinguishable” from hna(t) when we fail to reject the null hypothesis. This corresponds to constructing confidence intervals around h(t) and denoting T** as

the intersection of the lower bound of the confidence interval of h(t) with hna(t). However, smaller sample sizes inevitably make confidence intervals wider, which reflects the larger uncertainty of the estimates. If T** were estimated using the lower bound of the confidence interval of h(t), then wider confidence intervals would lead inappropriately to smaller values of T**, possibly producing unreasonable values of T** less than T*. By introducing δ and using the upper bound of the confidence interval, our approach circumvents this shortcoming. The conventional standard error of h(t) can be calculated by the formula [( h (t ) ∗ (1 − h (t )] / n (t ) . However, this formula relies on the asymptotic normal- ity of the estimate of h(t). Because the sample sizes defining h(t) become small when t is large, the standard errors calculated by the formula above are questionable. Moreover, in this case, the symmetric confidence intervals can include negative lower endpoints, which are a problem of “overshoot” (Newcombe, 1998); because we are trying to estimate the proportion of those who are rearrested at t, those estimates have to be bounded between 0 and 1, and so cannot go negative. The standard confidence interval of a proportion (often referred to as the Wald interval) is also known to show erratic behaviors in terms of the coverage probability, regardless of sample sizes and the values of h(t) (Brown, Cai, and DasGupta, 2001). Given the limitations of the Wald interval for h(t), we use the statistical method of “bootstrap.” The bootstrap provides a reliable method to estimate the uncertainty of an estimator via resampling, without relying on the asymptotic properties of the estimator. We used the bias-corrected and acceler- ated (BCa) bootstrap intervals for h(t), with the number of bootstrap samples, B = 2001 (Efron, 1987; Efron and Tibshirani, 1993; Wu, 1989). Confidence intervals can be constructed using methods other than the bootstrap (Brown, Cai, and DasGupta, 2001; Newcombe, 1998). \\server05\productn\C\CRY\47-2\CRY210.txt unknown Seq: 17 1-MAY-09 10:08

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Figure 4. Comparison with the Never Arrested (Age 18 Violent, Property)

RESULTS Suppose that an employer can accept δ = .05, whereby a redemption candidate’s hazard can be as much as .05 higher than the hazard of a never arrested person of the same age. Then we estimate T** = 4.8 for C1 = property and T** = 8.0 for C1 = violent (both for A1 = 18) using the 95 percent confidence interval. The more tolerant an employer is (larger value of δ), the shorter the redemption time (smaller value of T**). Figure 5 shows this tradeoff between δ and T** for three different conditions of the first arrest. Violent offenders have consistently higher values of T** than property offenders, indicating that violent offenders need to stay clean longer for the same risk-tolerance difference. It also demonstrates

that a younger A1 is associated with a longer time necessary for property offenders to be comparable with the never arrested of the same age at a given tolerance level δ.22 For the employer who is more accepting of risk and willing to focus on

the intersection of the two hazard curves (h(t) and hna(t)), the values of

21. Alternatively, an employer can formulate the risk tolerance as a risk ratio (or a

relative risk) of h(t) to hna(t). 22. Another approach to comparing redemption candidates with the never arrested is to recognize that the comparison need not be of two candidates of the same age. Because the hazard declines with age, younger never arrested individuals may exist whose hazard is no less than that of an older individual with a prior arrest but who has stayed clean for a long period. It could also be the case that, based on some existing base rates for workplace deviant behaviors (e.g., Bach- man, 1994; Slora, 1989), some employers might have a specific risk level, g, below which the risk is tolerable or acceptable for the purpose at hand (e.g., a particular job position in a particular industry). \\server05\productn\C\CRY\47-2\CRY210.txt unknown Seq: 18 1-MAY-09 10:08

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T** at the same value of δ (.05) and A1 (18) would be 4.2 years for property and 7.0 years for violence compared with 4.8 years for property and 8.0 years for violent using the above approach that employs the upper bound of the confidence interval. The values of T** based on the intersection of the hazards are lower than those for the conservative employer who wants high confidence that the candidate represents a low risk.

Figure 5. Tradeoff between δ and T** (Based on the Upper Bound of the Confidence Interval of h(t))

ISSUES STILL TO BE ADDRESSED We believe that our results represent a significant step forward in an area where so little is known empirically about the redemption process. As usual, however, some important efforts remain. We have identified T* as the minimum duration of time clean in New York State for the recidivism probability to drop below the norm for New Yorkers of the same age. We have also identified approaches to estimating T**, when the recidivism probability falls below any specified level compared with people never arrested. It is possible, however, that an individual who stayed clean in New York was arrested in another state. Thus, our estimates are lower bounds on T* (and T**) and the associated recidivism probability. One study on the recidivism of prisoners estimated that 7.6 percent of the released prisoners were rearrested out of state (Langan and Levin, 2002). Another finds that, among the prisoners who were released from 11 state prisons in 1983, roughly 10 percent of them have out-of-state arrests within 3 years of their release (Orsagh, 1992). To address this concern about mobility, we have approached the Federal Bureau of Investigation, which maintains a national index of rap-sheet records in the Interstate Identifica- tion Index. We can present them with identification information of the \\server05\productn\C\CRY\47-2\CRY210.txt unknown Seq: 19 1-MAY-09 10:08

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individuals who have stayed clean in New York and should be able to obtain information on their arrests elsewhere in the nation. That method will raise the h(t) curve somewhat and so increase the value of T* and T**. The correction could be reasonably large for a state like New York, where the large fraction of offenders from New York City could easily commit other offenses in a neighboring state.23 We would anticipate that the correction would be appreciably less in a state like California, where the major metropolitan areas are much more remote from neighboring states. A second issue that warrants additional analysis is the distinction between arrest information and conviction information. In many settings, it is considered either inappropriate or illegal to ask about an arrest record in the absence of a following conviction.24 We intend to pursue this analysis using only conviction information. Of course, the initial sample will become smaller because many of our arrests were not followed by convictions. But of those convicted, we would anticipate that T* and T** would be larger, because people who were convicted (“true” offenders) would be more likely to have subsequent arrests than those who were acquitted or whose cases were dismissed (“ambiguous” offenders). Another small correction should be made for time in custody. The estimation of hazard assumes that the entire initial sample of arrestees is at risk of an additional arrest shortly after their prior arrest. However, those who are incarcerated as a result of the first arrest are at risk of a new arrest only after their release from incarceration. Thus, the estimation needs to be adjusted for the incarceration time. Unfortunately, identifying correction information from rap sheets is not easy. However, considering that the 1980 arrest is the first arrest for the sample of arrestees, it is not likely that any lengthy period of incarceration follows that first arrest. It is possible that conditions in New York are distinctively different from other states or that offenders first arrested in 1980 were different from those arrested more recently, so it is important that we generate robustness tests of the findings presented here. That approach will include collecting data from multiple states to examine how patterns of redemption vary across the states. This analysis will provide an opportunity to look across the states to determine whether their offending patterns or their arrest patterns differ. We also intend to take subsequent draws of people whose first arrest occurred in 1985, 1990, and 1995. These samples will have a shorter observation period, especially for the 1995 sample, but we

23. We anticipate that the younger arrestees we focus on are less mobile than older counterparts and thus are less likely to have out-of-state records. 24. According to the guidelines published by the Equal Employment Opportunity Commission (EEOC), employers may not deny employment based on arrests that did not lead to convictions unless there is a business justification (EEOC, 1990). \\server05\productn\C\CRY\47-2\CRY210.txt unknown Seq: 20 1-MAY-09 10:08

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anticipate that what we lose in observation time will be more than com- pensated with the richer quality of the records as we move into more contemporary computerization of records. Since the National Criminal History Information Program was initiated in 1995 to improve the quality of criminal-history records in state repositories, it is expected that we will observe increased accuracy and completeness in the criminal history of the 1995 or even the 1990 sample. Also, if our estimates of T* roughly persist, then a 10-year observation interval should be adequate.25 Examining multiple cohorts of arrestees will also allow us to generate information on time trends in arrest patterns and in recidivism patterns as well as information on any period effect.

POLICY IMPLICATIONS The information and approaches we have generated here should be of considerable value in enhancing redemption opportunities and consequent employment opportunities for individuals who made a mistake in the past but have since lived a lawful life. The knowledge of T* and T** could be used in many ways by various pertinent parties to facilitate the redemption process.

USERS OF CRIMINAL RECORDS

EMPLOYERS Employers who run background checks on job applicants could be given a brief document informing them of the diminished value of records older than T* or T** years for risk assessment purposes.26 Because employers have a strong concern about liability suits, a statute could protect them from such due-diligence vulnerability in case they hire someone whose last arrest was longer ago than T* or T**.27 This would be a relief for employers who are otherwise willing to hire individuals with criminal records, and it would add to the existing incentives such as Work Opportunity Tax Credit (WOTC) and Federal Bonding Program (FBP).28

25. Depending on the approach to estimating T** and the choice of δ and g, the values of T** could be as large as 25 years. Thus, the desired estimation of T** might not be possible from a 1990 sample, especially from a 1995 sample. 26. Users of background checks should base their decision not only on the information about criminal history but also on information about other important factors (such as employment history, marriage, and educational attainment). 27. Although such legal protections would most likely be welcomed by employers, their concern over possible damage to the organization’s reputation would not be eliminated (Fahey, Roberts, and Engel, 2006). 28. For more details about WOTC, see http://www.doleta.gov/business/incentives/ opptax/. More details about FBP are available at http://www.bonds4jobs.com/ index.html. \\server05\productn\C\CRY\47-2\CRY210.txt unknown Seq: 21 1-MAY-09 10:08

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Such liability-protection statutes could also be applicable to employers that ask applicants about their criminal background, but it would limit their inquiries to criminal involvements that occur within the last T* or T** years. This statute would be relevant to the concerns of the “ban the box” movement.29

PARDON BOARDS The governor of each state is empowered to grant a pardon as an act of clemency and forgiveness. Most typically, a pardon board reviews relevant information about the individual seeking clemency and makes a recommendation to the governor. Although the length of the law-abiding period is considered one of the most important factors in pardon applications, it is not clear whether pardon boards have reliable guidelines as to how long a law-abiding period should be for the individual to be deemed appropriate for pardon.30 Although pardons are hard to obtain, especially for the poor, pardons have a significant restorative effect that signals that the pardoned individual is rehabilitated (Love, 2003).

DISTRIBUTORS OF CRIMINAL RECORDS

REPOSITORIES State record repositories could adopt a policy not to disseminate criminal record information older than T* or T** years. This regulation could apply specifically to the states that make their criminal-history information publicly available on the Internet.31 States are clearly moving in the direction of making individual criminal records more publicly accessible (Jacobs, 2006). However, given the lasting consequence of disseminated records on a large number of individuals, finding means to limit the dis- semination would be a realistic approach to the problem.32 The state could

29. The “box” refers to a question on job applications that asks prospective employee whether they have ever been convicted of a crime. So far, the move- ments to “ban the box” have been largely limited to employment for city governments (Henry and Jacobs, 2007; National Employment Law Project, 2008). 30. For example, in Pennsylvania, the Board of Pardons (2005: 1) publicly states that the length of time free of crime after the offense is one of the best indicators of rehabilitation that the applicant can demonstrate. 31. In 2001, 13 states (of the 38 that responded to the survey) provide public access to criminal history records through the Internet (SEARCH, 2001). [Samuels and Mukamal (2004) report that 28 states allow Internet access to criminal records.] 32. Some employers might “statistically discriminate” based on correlating individual characteristics of a job applicant with generic covariates of criminal activity such as race and ethnicity. As a result, limiting employers’ access to criminal records could possibly have an adverse consequence for those without criminal records (Bushway, 2004; Finlay, in press; Freeman, 2008; Holzer, Raphael, and Stoll, 2006; Pager, 2003; Raphael, 2006). \\server05\productn\C\CRY\47-2\CRY210.txt unknown Seq: 22 1-MAY-09 10:08

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adopt a policy to seal repository records of events older than T* or T** years in response to a request from a non-criminal justice agency. Such sealed records could still be accessible for criminal justice purposes. A more aggressive approach would be to expunge records older than T* or T** years. Even though these judicial procedures tend to be more accessible and reliable than pardon, the popularity of sealing and expungement peaked in the 1970s and has severely declined since then in most jurisdictions (Love, 2003, 2006). Moreover, Love (2003, 2006) reports that no one standard exists in terms of what it means to have a record sealed, expunged, set aside, vacated, or annulled. A record being expunged does not necessarily mean that the record is literally destroyed; rather, the expunged records “almost always remain available for use by law enforcement agencies and the courts, and in some states they may be accessible to other public agencies and even to private investigative services hired to perform criminal background checks for employers” (Love, 2003: 121). Furthermore, critics of sealing and expungement argue that the concealment of records and the denying of past wrongdoing are institutionalized deception and are not compatible with the pursuit of truth, the foundation of a legal system (Franklin and Johnsen, 1981; Kogon and Loughery, 1970). Despite these criticisms, concealment and denial of criminal records after some “rehabilitation period” are common in many countries. For instance, in the United Kingdom, according to the Rehabilitation of Offenders Act 1974, those who are convicted of certain crimes, after specified rehabilitation periods, are treated as though the crime never hap- pened, and are not obligated to reveal the record when asked at employment settings.33, 34

COMMERCIAL VENDORS Because many employers rely on background-check services provided by commercial vendors of criminal records, if states seal or expunge records older than T* or T** years, this policy should be accompanied by a process of requiring those old records also to be erased from commercial databases.35

33. The Rehabilitation of Offenders Act of 1974 followed a report called Living It Down: The Problem of Old Convictions, which is a report of a committee chaired by Lord Gardiner (1972). The report shows that the longer a convicted person remains crime free, the less likely that the person will commit another crime. 34. For more on the sealing and expungement of criminal records in the European Union, see Loucks, Lyner, and Sullivan (1998). 35. Given the discrepancy between the records from official sources (state repositories) and the records from commercial databases (Bushway et al., 2007), it is important that any update (i.e., sealing or expungement) that takes place on the \\server05\productn\C\CRY\47-2\CRY210.txt unknown Seq: 23 1-MAY-09 10:08

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CERTIFICATES OF REHABILITATION The main criticisms of sealing and expungement include the compromise of governmental transparency as well as the possible adverse effect on nonoffenders because of statistical discrimination.36 Certificates of rehabilitation and other similar means can circumvent the problem. Certif- icates of rehabilitation are designed to remove certain collateral consequences for eligible ex-offenders and can potentially enhance their employment prospects.37 The certificates reward good behavior of ex- offenders by explicitly acknowledging them as being rehabilitated rather than erasing the record of their contact with the criminal justice system. Thus, these certificates are similar to pardons in spirit but are relatively more accessible than pardons. Currently, only a handful of states issue such certificates (Love and Frazier, 2006; Samuels and Mukamal, 2004), but they could be used more widely by taking advantage of the empirical evidence of T* and T**.38

SUMMARY As background checking has become a routine practice for many employers, and an increasing number of criminal records have become electronically accessible, those who made a mistake many years ago but have since lived a law-abiding life face hardships in finding employment. The risk of recidivism declines with time clean, so we know that a person who has stayed clean for an extended period of time must be of low risk. The question is the extent to which the risk drops over time, and at what point in time the risk is deemed low enough. This article addresses these questions by examining the hazard of those who were first arrested in 1980

official records is reflected on the records in the commercial sources. Jacobs and Crepet (2008) highlight the difficulty in forcing vendors to make such changes because their right to access the criminal records would be protected by the First Amendment of the Constitution. 36. See footnote 32. 37. Criminal history records are regarded as “negative credentials” that signify “social stigma and generalized assumptions of untrustworthiness or undesirabil- ity” (Pager, 2007: 33; see also Jacobs, 2006 and Jacobs and Crepet, 2008), whereas certificates of rehabilitation attempt to emphasize the progress made by the ex- offender. Regarding more fair representation of riskiness by taking into account the positive factors, Bushway et al. (2007) mention that it is conceivable for the government to devise some score (like a credit score) that indicates the risk of offending, which can be affected by positive factors such as the length of crime- free time, completion of a drug treatment program, and vocational training, as well as negative factors such as committing another crime (for a similar approach, see Freeman, 2008). 38. Bushway and Sweeten (2007) discuss policy implications regarding the diminished value of old criminal records in the context of collateral consequences. \\server05\productn\C\CRY\47-2\CRY210.txt unknown Seq: 24 1-MAY-09 10:08

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and by estimating a point of redemption by comparing the hazard of redemption candidates with 1) the risk of an arrest for individuals of the same age in the general population and 2) with the risk of an arrest for those who have never been arrested. The results indicate that the risk indeed declines monotonically over time and, after some point T*, becomes lower than the risk of arrest of someone of the same age in the general public represented by the age–crime curve. The article also produced reasonable approaches to estimating another measure of redemption, T**, which is the number of years that those who have a prior arrest need to stay clean to be considered “close enough” to those who have never been arrested. The results also demonstrate that T* and T** vary with age and crime type of the earlier arrest. Younger starting age generally points to a longer time necessary to become comparable with a person of the same age from the general population. We find that violent offenders have to wait longer than property offenders to meet the same criterion of redemption. Because the information about age and crime type of the earlier arrest is usually available on criminal background reports that employers and other users of criminal records obtain, it is important that T* and T** are estimated as a function of these two factors. The findings have several important policy implications; they are helpful in informing two broad categories of entities as follows: those who are in a position to disseminate criminal-history information (i.e., state repositories and commercial vendors of criminal records) and those who are responsible for determining the relevance of criminal records (i.e., judges, pardon boards, and employers). All of the policy approaches discussed could be considered by the respective entities, but using any of them requires information and judgment about the relevant values of T* or T**. As we outlined in the section on future research plans, this research is clearly ongoing. Because currently no empirical basis exists for knowing about the variability of T* and T** across states or across time, we will be conducting similar analyses on data from other states and on data from other arrest cohorts. This approach will allow us to be in a better position to provide more complete and robust information about T* and T**. In the meantime, even the preliminary estimates in this article should be helpful in moving the policy process forward.

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Alfred Blumstein is the J. Erik Jonsson University Professor of Urban Systems and Operations Research and former dean at the Heinz College of Carnegie Mellon University. He is a Fellow of the American Society of Criminology, was the 1987 recipient of the Society’s Sutherland Award for “contributions to research,” and was the president of the Society in 1991–1992. He was awarded the Stockholm Prize in Criminology in 2007. His research has covered many aspects of criminal-justice phenomena and policy, which includes crime measurement, criminal careers, sentencing, deterrence and incapacitation, prison populations, demographic trends, juvenile violence, as well as drug-enforcement policy. Kiminori Nakamura is a doctoral student at the Heinz College, Car- negie Mellon University. His research interests include the dimensions of a criminal career, life-course/developmental criminology, recidivism, collateral consequences of criminal-history records, and quantitative methods, including social network analysis. He received his MA in demographic & social analysis in 2005 and his BA in criminology, law & society in 2004 both from the University of California, Irvine. One Strike and You’re Out How We Can Eliminate Barriers to Economic Security and Mobility for People with Criminal Records

By Rebecca Vallas and Sharon Dietrich December 2014

WWW.AMERICANPROGRESS.ORG One Strike and You’re Out How We Can Eliminate Barriers to Economic Security and Mobility for People with Criminal Records

By Rebecca Vallas and Sharon Dietrich December 2014 Contents 1 Introduction and summary

4 Background

9 Barriers to employment

16 Barriers to housing

22 Barriers to public assistance

26 Barriers to education and training

29 Barriers to economic security and financial empowerment

34 Recommendations

49 Conclusion

51 Appendix A

65 Appendix B

67 About the authors & acknowledgments

68 Endnotes Introduction and summary

Between 70 million and 100 million Americans—or as many as one in three— have a criminal record.1 Many have only minor offenses, such as misdemeanors and nonserious infractions; others have only arrests without conviction. Nonetheless, because of the rise of technology and the ease of accessing data via the Internet— in conjunction with federal and state policy decisions—having even a minor criminal history now carries lifelong barriers that can block successful re-entry and participation in society. This has broad implications—not only for the millions of individuals who are prevented from moving on with their lives and becoming productive citizens but also for their families, communities, and the national economy.

Today, a criminal record serves as both a direct cause and consequence of poverty. It is a cause because having a criminal record can present obstacles to employment, housing, public assistance, education, family reunification, and more; convictions can result in monetary debts as well. It is a consequence due to the growing criminalization of poverty and homelessness. One recent study finds that our nation’s poverty rate would have dropped by 20 percent between 1980 and 2004 if not for mass incarceration and the subsequent criminal records that haunt people for years after they have paid their debt to society.2 Failure to address this link as part of a larger anti-poverty agenda risks missing a major piece of the puzzle.

It is important to note that communities of color—and particularly men of color— are disproportionately affected, and high-poverty, disadvantaged communities generate a disproportionate share of Americans behind bars. As Michelle Alexander argues in her book The New Jim Crow, mass incarceration and its direct and collateral consequences have effectively replaced intentional racism as a form of 21st century structural racism.3 Indeed, research shows that mass incarceration and its effects have been significant drivers of racial inequality in the United States, particularly during the past three to four decades.4

1 Center for American Progress | One Strike and You’re Out Moreover, the challenges associated with having a criminal record come at great cost to the U.S. economy. Estimates put the cost of employment losses among people with criminal records at as much as $65 billion per year in terms of gross domestic product.5 That’s in addition to our nation’s skyrocketing expenditures for mass incarceration, which today total more than $80 billion annually.6

The lifelong consequences of having a criminal record—and the stigma that accompanies one—stand in stark contrast to research on “redemption” that documents that once an individual with a prior nonviolent conviction has stayed crime free for three to four years, that person’s risk of recidivism is no different from the risk of arrest for the general population.7 Put differently, people are treated as criminals long after they pose any significant risk of committing further crimes— making it difficult for many to move on with their lives and achieve basic economic security, let alone have a shot at upward mobility.

The United States must therefore craft policies to ensure that Americans with criminal records have a fair shot at making a decent living, providing for their families, and joining the middle class. This will benefit not only the tens of millions of individuals who face closed doors due to a criminal record but also their families, their communities, and the economy as a whole.

President Barack Obama’s administration has been a leader on this important issue. For example, the Bureau of Justice Administration’s Justice Reinvestment Initiative has assisted states and cities across the country in reducing correctional spending and reinvesting the savings in strategies to support re-entry and reduce recidivism.8 The Federal Interagency Reentry Council, established in 2011 by Attorney General Eric Holder, has brought 20 federal agencies together to coordinate and advance effective re-entry policies.9 And the president’s My Brother’s Keeper initiative has charged communities across the country with implementing strategies to close opportunity gaps for boys and young men of color and to ensure that “all young people … can reach their full potential, regardless of who are they are, where they come from, or the circumstances into which they are born.”10 Additionally, states and cities across the country have enacted policies to alleviate the barriers associated with having a criminal history.

While these are positive steps, further action is needed at all levels of government. This report offers a road map for the administration and federal agencies, Congress, states and localities, employers, and colleges and universities to ensure that a criminal record no longer presents an intractable barrier to economic security and mobility.

2 Center for American Progress | One Strike and You’re Out Bipartisan momentum for criminal justice reform is growing, due in part to the enormous costs of mass incarceration, as well as an increased focus on evidence- based approaches to public safety. Policymakers and opinion leaders of all political stripes are calling for sentencing and prison reform, as well as policies that give people a second chance. Now is the time to find common ground and enact meaningful solutions to ensure that a criminal record does not consign an individual to a life of poverty.

3 Center for American Progress | One Strike and You’re Out Background

The past four decades have seen an explosion in our nation’s prison population. Today, the United States incarcerates more of its citizens than any other country in the world.11

The rise of mass incarceration and hyper-criminalization

Currently, more than 1.5 million Americans are incarcerated in state and federal prisons, a figure that has quintupled since 1980.12 Adding in jails, the number of Americans who are behind bars rises to 2.2 million. The U.S. incarceration rate is more than six times the Organisation for Economic Co-Operation and Development average.13

FIGURE 1 Rise of mass incarceration The number of Americans behind bars in federal and state prisons has quintupled since 1980

1,600,000 1,400,000 1,200,000 2013 1,000,000 1,574,700 800,000 600,000 400,000 200,000 0 1925 1950 1975 2000 Source: Source: Analysis of Bureau of Justice Statistics data by The Sentencing Project, “Trends in U.S. Corrections” (2013), available at http://sentencingproject.org/doc/publications/inc_Trends_in_Corrections_Fact_sheet.pdf.

4 Center for American Progress | One Strike and You’re Out In addition to leading the world in incarceration, the United States is also the global leader in arrests.14 Between 25 percent and 40 percent of American adults have been arrested by age 23.15 Men—and particularly men of color—are at particular risk: 49 percent of black men and 44 percent of Hispanic men have been arrested by age 23.16 And the Federal Bureau of Investigation, or FBI, estimates that U.S. law enforcement has made more than one-quarter of a billion arrests in the past 20 years.17 Many arrests never lead to conviction; for example, just half—and in some years, fewer than half—of adult misdemeanor arrests made in New York City from 2009 to 2013 resulted in conviction.18

Thus, a more apt phrase might be hyper-criminalization—given that many individuals who come into contact with the criminal justice system end up with criminal records without doing any time in prison, either through arrest without conviction or sentences for probation or other forms of community supervision.

Changes in sentencing laws and policy, not crime rates, drove this rise in mass incarceration and hyper-criminalization. Federal policies such as the Sentencing Reform Act of 1984 and state policies such as three-strikes laws were significant drivers. Sentencing policies with their roots in the War on Drugs—such as harsh, mandatory minimum sentences—also played a major role.19

The impact on communities of color is particularly staggering. People of color make up more than 60 percent of the population behind bars.20 Black men are incarcerated at a rate six times higher than that of white men, and Latino men at a rate 2.5 times higher than that of white men.21 A black man in his 20s or 30s is more likely to be in jail or prison than employed; on any given day, 10 percent of black men in their 30s are incarcerated.22

Lesbian, gay, bisexual, and transgender, or LGBT, individuals and people living with HIV are also disproportionately affected by mass incarceration and hyper- criminalization. According to recent survey data, 5 percent report having been incarcerated, and 73 percent report having come into face-to-face contact with the police during the previous five years.23

Mass incarceration and hyper-criminalization have come at tremendous cost to the American taxpayer. Total expenditures on corrections at the federal, state, and local levels exceeded $80 billion in 2010—a 350 percent increase over the past 30 years in real terms.24 When combined with other crime-related expenditures— such as policing, legal, and judicial services—total spending rises to more than $260 billion annually.25 The lion’s share of these expenditures falls at the state and local levels, placing great fiscal burdens on states.

5 Center for American Progress | One Strike and You’re Out FIGURE 2 Rising costs and a net loss Correctional expenditures have quadrupled over the past three decades

State and federal expenditures (in billions of dollars) 60

40 1982 GDP loss 30 $15.86 State 2012 annually: $48.44 $65 billion* 20 Federal 2012 1982 $6.64 10 $1.02 0 1990 2000 2010

* Employment losses due to criminal records resulted in as much as $65 billion in lost gross domestic product output in 2008. Sources: Author’s calculations are based on Bureau of the Census, Annual Survey of State Government Finances (U.S. Department of Commerce, 1982–2012), available at https://www.census.gov/govs/state/historical_data.html; Tracey Kyckelhahn, “State Corrections Expenditures, FY 1982-2010” (Washington: Bureau of Justice Statistics, 2014), available at http://www.bjs.gov/content/pub/pdf/sce- fy8210.pdf; Nathan James, “The Bureau of Prisons (BOP): Operations and Budget” (Washington: Congressional Research Service, 2014), available at http://fas.org/sgp/crs/misc/R42486.pdf. John Schmitt and Kris Warner, “Ex-o enders and the Labor Market” (Washington: Center for Economic and Policy Research, 2010), available at http://www.cepr.net/documents/publications/ex-o enders-2010-11.pdf.

These trends have profound implications for families and society as well—so much so that in 2013, “Sesame Street” added a character with an incarcerated father.26 More than half of adult inmates are parents of minor children: 2.6 million, or 1 in 25 American children, had a parent in prison in 2012, up from 350,000 in 1980.27 And more than one in four African American children born in 1990 have had a parent incarcerated during their childhood.28

6 Center for American Progress | One Strike and You’re Out Many U.S. cities criminalize poverty and homelessness

Despite the fact that many U.S. cities have inadequate affordable housing and shelter beds, a growing array choose to criminalize basic survival behaviors. According to a 2014 survey of 187 cities conducted by the National Law Center on Homelessness & Poverty:29

• 24 percent have city-wide bans on begging, and 74 percent prohibit begging in particular public places

• 33 percent have city-wide bans on loitering and vagrancy, and 65 percent prohibit such activities in particular public places

• 53 percent prohibit sitting or lying down in particular public places

• 43 percent prohibit sleeping in vehicles

These policies are not only unduly punitive; they are also a poor use of law enforcement resources. For example, a 2013 study commissioned by the Utah Division of Housing and Community Development found that the average annual cost of jail and emergency room visits for a homeless person was $16,670, compared with $11,000 to provide them with housing and a social worker for a year.30

What’s more, such policies can set up a vicious cycle. If an individual convicted of one of these status offenses is unable to pay fines and fees levied as punishment, he can wind up back in jail for nonpayment. And he ends up with a criminal record, which can make it even harder for him to obtain housing and employment and to get back on his feet. As a result, more than half of the homeless population has a history of incarceration.31

Criminal records: The back end of mass incarceration and hyper- criminalization

More than 95 percent of individuals in state prisons are expected to return to their communities at some point.32 More than 600,000 Americans are released from federal and state prisons each year.33 Nearly 12 million cycle in and out of local jails each year,34 and still more end up with a criminal record without any period of incarceration. More than 4.7 million people are currently being “supervised” in the community, with 3.9 million of these people on probation and 850,000 of them on parole.35

7 Center for American Progress | One Strike and You’re Out Estimates put the number of Americans with criminal records between 70 million and 100 million.36 Most convictions are for misdemeanors and nonserious infractions. And many Americans have only arrests without convictions. Yet, as described in the following sections of this report, having even a minor criminal record can lead to an array of significant and often lifelong barriers to employment, housing, education, public assistance, and the ability to build good credit, making it difficult if not impossible for individuals to achieve economic security.

Definitions of key terms

Criminal history or criminal record: Law enforcement agencies Parole: Provisional release of an incarcerated person, prior to the and courts maintain records of arrests and subsequent dispositions of completion of his or her maximum sentence and subject to certain criminal cases. These records are made available to third parties in a court-mandated conditions. Violation of these conditions can result variety of ways, including through court records and websites, in reincarceration. state-level criminal record repositories, and commercial vendors. Probation: A period of supervision that carries certain court- Expungement: A process, typically administered by courts, for mandated conditions and that commonly serves as an alternative eliminating public access to criminal records; it is also commonly called to incarceration. Violation of the court’s conditions can result “sealing.” It usually requires the filing of a petition and an individualized in incarceration. determination; in rare cases, it may be automatic. Law enforcement agencies typically retain access to criminal records after expungement. Re-entry: The return to society after a period of incarceration or Rules vary across states. following a criminal history.

Felony: A more serious criminal offense that is typically punishable Nonserious infraction: A criminal offense so minor that it is by incarceration of more than one year. generally prosecutable without a trial; it is also sometimes called a “summary offense.” Nonserious offenses are commonly punishable by Misdemeanor: A minor criminal offense that is typically punishable a fine instead of incarceration. Common examples are disorderly by incarceration of one year or less. conduct, vagrancy, and loitering.

Source: Henry Campbell Black, Black’s Law Dictionary: Second Edition (Clark, NJ: The Lawbook Exchange, Nonconviction record: Any court or law enforcement record that Ltd., 1995). pertains to an arrest that did not result in a conviction, such as prosecution or court dismissal of charges, acquittal, or reversal upon appeal.

8 Center for American Progress | One Strike and You’re Out Barriers to employment

A generation ago, access to the criminal record information of job applicants was unusual. Today, however, background checks are ubiquitous: An estimated 87 percent of employers conduct criminal background checks on their applicants.37 As a result, criminal records have become an intractable barrier to employment for tens of millions of Americans.

“Since the time of my conviction, I have come to realize that one wrong decision can cause a lifetime of pain. I realize that society is not as forgiving and that because of my actions, I am not able to utilize the educational knowledge that I have gained … I have applied for and been offered many prominent job opportunities. However, when my criminal background comes back, I lose the chance and nothing I can say will make any difference.” —Ronald Lewis, Philadelphia, Pennsylvania38

Employer rejections of people with criminal records cause deep and widespread joblessness and poverty

A recent study by the National Institute of Justice confirmed that a criminal record is a powerful hiring disincentive.39 Job seekers currently on probation or parole or who have ever been incarcerated are most likely to be refused consideration for a position.40 And a majority of employers surveyed were unwilling to hire applicants who had served prison time.41 Most alarmingly, the study found that having any arrest during one’s life decreases employment opportunities more than any other employment-related stigma, such as long-term unemployment, receipt of public assistance, or having a GED instead of a high school diploma.42 No criminal record is too old or too inconsequential to serve as a barrier to employment, including minor offenses graded below the level of misdemeanors and arrests without conviction.43

9 Center for American Progress | One Strike and You’re Out As a result, some 60 percent of formerly incarcerated individuals remain unemployed one year after their release.44 And for those who do find steady employment, a history of incarceration is associated with a substantial reduction in earnings. Formerly incarcerated men work nine fewer weeks per year and take home 40 percent less pay annually, resulting in an average earnings loss of nearly $179,000 by age 48.45

Men of color are hit especially hard. Studies find that white male and female job seekers with records have better employment chances than black or Hispanic applicants with records.46 But regardless of race, a person who has been incarcerated has a lesser chance of getting an interview than does a job seeker with identical qualifications but no record.47

Job seekers with records and their families are not the only ones who suffer. Paradoxically, employers are losing countless qualified and motivated workers as a result of applying overly broad criminal record exclusion policies. In addition, the significant public safety consequences that stem from the widespread unemployment of people with criminal records cannot be ignored, as postincarceration employment has powerful anti-recidivism effects.48

Moreover, the impact on the national economy is substantial. Analysis by the Center for Economic Policy Research estimates that in 2008, the United States lost as many as 1.7 million workers due to employment barriers for people with criminal records—resulting in a staggering 0.9 percentage-point reduction in the nation’s employment rate.49 Its analysis estimates the resulting loss in gross domestic product to be as much as $65 billion per year.

On the flip side, research indicates that removing barriers to employment for job seekers with criminal records would yield tremendous economic benefits through increased earnings, higher taxpayer revenues from employment, and avoided costs in reduced recidivism.50

10 Center for American Progress | One Strike and You’re Out “When I was released, the jail told me to get a 40 hour a week job. I am trying hard to get a 20 hour a week job. When I went in I had a job, but I had to start all over.”

“It’s a challenge everywhere. When you come home from jail … [a] job can’t complete. 10-20 hour jobs. There are no 600 dollar apartments anymore. When you come home you aren’t an asset to your family, you are a liability. Food costs increase, housing, your kids, clothes. Odds are if you don’t find a job, you’ll go back to doing what you know. It’s easier to get a gun and drugs than a job.”

– Comments shared during focus groups convened by Neighborhood Legal Services, Inc., Washington, D.C., November 201351

Existing hiring protections must be improved

While no federal law is targeted specifically to employer hiring policies based on criminal records, Title VII of the Civil Rights Act—the federal law that prohibits race discrimination in employment—plays an important role. It bars employer practices that have a racially disparate impact, unless those practices are job related and justified as a business necessity.52 Given that blacks and Hispanics are more likely than whites to be involved in the criminal justice system, legal precedent going back to the 1970s holds that employer rejections based on criminal records can violate Title VII.53

The Equal Employment Opportunity Commission, or EEOC, which enforces Title VII, has released guidance on employer consideration of criminal records, going back to the 1980s, when U.S. Supreme Court Justice Clarence Thomas was the EEOC chair.54 These guidelines were updated and expanded in a bipartisan revision released in 2012.55 The 2012 guidance lays out important standards, including that arrests not leading to convictions generally cannot be considered; employer demands for clean records—meaning employer requirements that job candidates have no record as a condition of hire—are illegal; and that certain factors must be considered, such as the seriousness of the crime, the time that has elapsed since the conviction, and the nature of the job.56 The 2012 guidance also encourages individualized assessments of factors such as employment history, rehabilitation, and age at the time of conviction.57 The U.S. Department of Labor has issued similar guidance for federal contractors58 and the public workforce system.59

11 Center for American Progress | One Strike and You’re Out The EEOC’s 2012 guidance has been a crucial step forward in protecting workers with criminal records from unjust rejections. It has also sharpened employer awareness of the legal limitations on their use of background screening. However, enforcement can be a challenge because racially disparate impact must be proven in litigation.

In a positive trend, several states, such as New York60 and Pennsylvania,61 have enacted “colorblind” laws that prohibit employer rejection based on a criminal record unless there is a nexus between the job seeker’s criminal record and the job being sought.62 The EEOC’s guidelines could and should be codified to apply to all job seekers regardless of race. In the meantime, increased education—for both employers and job seekers—about the EEOC’s guidance is essential.63

Fair-chance hiring policies increase employment of people with criminal records

In its 90-day progress report to the president, the My Brother’s Keeper • Prohibiting questions about arrests that did not lead to convictions Task Force lays out a comprehensive strategy to reduce opportunity gaps faced by boys and young men of color and to make sure that all • Permitting applicants to review their background checks for accuracy young people have the chance to succeed.64 The report highlights the importance of fair-chance hiring to economic opportunity, stating: • Allowing applicants to provide evidence of rehabilitation

Our youth and communities suffer when hiring practices • Providing balancing criteria for employer consideration of criminal unnecessarily disqualify candidates based on past mistakes. records We should implement reforms to promote successful reentry, including encouraging hiring practices, such as Early results of such policies have been promising. For instance, after “Ban the Box,” which give[s] applicants a fair chance and adopting a fair-chance hiring policy, the city of Durham, North Carolina, allows employers the opportunity to judge individual job has increased its percentage of new hires with criminal records from candidates on their merits as they reenter the workforce. less than 2.5 percent in 2011 to 15.5 percent in 2014.67 Minneapolis, Minnesota, has seen similarly positive results: Banning the box on job To date, 13 states and 70 municipalities have enacted fair-chance applications resulted in more than half of job seekers with criminal hiring laws that incorporate a variety of practices that help level the records being hired.68 And in Atlanta, Georgia, a fair-chance hiring playing field for people with criminal records.65 Six of these states and policy led to people with criminal records making up fully 10 percent several major cities apply these policies to private and public of all city hires between March and October 2013.69 employers.66 Common elements include: Additionally, some private employers—such as Target Corporation, • Banning the box on job applications that asks about criminal one of the nation’s largest employers—have removed criminal history records and postponing the background check until after an questions from their job applications.70 applicant is being seriously considered for hire

12 Center for American Progress | One Strike and You’re Out Cleaning up a criminal record removes barriers to employment

Cleaning up a criminal record—often called expungement or sealing—generally addresses most of the barriers discussed in this report, though elimination of employment barriers is the most frequently cited reason for record clearing.

States vary widely as to which types of offenses may be expunged or sealed— and even as to the nomenclature used. While the vast majority of states permit nonconviction records and juvenile adjudications to be expunged, fewer states permit misdemeanor or lower convictions to be expunged, and fewer still permit felony convictions from being cleared.71 Generally, an individual seeking expungement must serve a waiting period without reoffending.72 The waiting period varies by state but tends to be longer the more serious the offense.73

Expungements and similar remedies are seldom automatic. Typically, a person seeking to clear a record must file a petition and appear in court. Having a lawyer can be essential, yet the need far exceeds available resources,74 leaving many in need unable to clear their records due to lack of representation.

In a positive trend, according to a 2014 Vera Institute of Justice review of states’ laws, 23 states—ranging from Arkansas to Mississippi to California—broadened their expungement laws between 2009 and 2014.75 Reforms included extending eligibility to additional classes of offenses, reducing waiting periods, clarifying the effect of the expungement or sealing, and altering the burden of proof to facilitate expungement.76

However, despite the exponential increase in federal criminal prosecutions that resulted from the War on Drugs, there is no general judicial mechanism to expunge federal cases. Not even federal nonconviction records, including acquittals, may be expunged.77 A presidential pardon process exists, but in recent years it has rarely been used and has been subject to criticism.78 Federal law thus lags far behind the states in this regard.

13 Center for American Progress | One Strike and You’re Out Accuracy of criminal record information provided to employers must be improved

Understandably, employers and other users of background checks rely upon the information presented there. Often, however, that information is not accurate or up to date.

In 2012, the Federal Bureau of Investigation released approximately 17 million background checks for employment purposes, a sixfold increase from the decade before.79 These reports are notoriously inaccurate: An estimated 600,000 job seekers received an inaccurate FBI check in 2012.80 Notably, FBI background checks frequently fail to provide the outcome of cases. The states have a role in causing this problem, as they often fail to provide case outcomes to the FBI, despite being required by law to do so within 120 days.81 Given that many cases do not result in convictions or are resolved on lesser charges, having a criminal record that has not been updated to reflect the outcome of charges can be highly prejudicial.

Other public sources of criminal record information, such as state criminal record repositories and court records of criminal cases, often also contain inaccuracies. One particularly egregious type of inaccuracy is commonly referred to as criminal identity theft, in which a person is saddled with the criminal record of another person who has falsely used his or her name and other identifiers when arrested. Many states do not provide a mechanism to correct this problem, causing a lifetime of misery for the estimated 400,000 Americans per year who encounter this obstacle.82

The commercial screening industry produces far more background checks than the FBI. One recent report found that three of the largest screeners alone produced 56 million reports in a 12-month period.83 Commercial screeners’ background checks are frequently inaccurate or misleading, particularly when they simply report data from a computer run and do not review or verify it.84 Common errors include reporting mismatches of cases belonging to someone else, reporting expunged cases, and failure to report outcomes of old arrests.85

The Fair Credit Reporting Act, or FCRA, governs background checks produced by commercial screeners. The FCRA’s legal standards can be read to prohibit the common errors of the commercial screeners. But the statute was enacted in 1970,86 primarily to govern the generation and use of credit reports—and long before the rise of the industry that now sells background checks. Promulgating FCRA regulations that specifically govern criminal background checks would establish clear standards, which would enable both compliance by commercial screeners and enforcement through private litigation.

14 Center for American Progress | One Strike and You’re Out Sarah’s story

Sarah, 28 years old, is desperate to find a job to provide adequately for her daughter and herself. But her arrest record stands in the way of employment.

In 2011, Sarah had moved out of the apartment that she shared with her boyfriend and friends. One day, her former boyfriend came to visit their daughter. Federal agents burst in to arrest her boyfriend for theft of information from credit cards, a federal offense. Sarah had no idea prior to that day that her boyfriend was involved in any such thing. The four people who had lived in the apartment were all arrested and charged, including Sarah and two other people she did not know; they had apparently worked with her former boyfriend in the scheme.

The case finally went to trial in February 2012. Even before the trial ended, the judge entered an order of acquittal for Sarah because of the lack of evidence against her. The other defendants were convicted.

That should have been the end of Sarah’s extremely bad luck. But it is not. Even though she was found not guilty, her arrest record has left her unable to find a job. She remains without the means to provide for herself and her daughter.87

15 Center for American Progress | One Strike and You’re Out Barriers to housing

Safe, decent, and affordable housing is foundational to the economic security of individuals and families. It also has powerful anti-recidivism effects for people with criminal histories. Yet many individuals are released from incarceration with no plans of where they will live, and close to one-third expect to go to homeless shelters upon release.88 And a minor criminal record—including even an arrest without conviction—can serve as an absolute obstacle to housing. Lack of stable housing can make every step of rebuilding one’s life—and, particularly, securing gainful employment—that much more difficult. What’s more, “one strike and you’re out” housing policies can stand in the way of family reunification.

Barriers to public housing: One strike and you’re out

Our nation’s two major housing assistance programs are the Section 8 Housing Choice Voucher Program and public housing. While both are federally funded and governed by federal law and policies, they are administered by local public housing authorities, or PHAs, which enjoy broad discretion in setting policy and screening prospective tenants for eligibility.

Federal housing law includes a narrow, mandatory ban on access to public housing for people with certain types of convictions.89 But it also grants local housing authorities broad discretion to deny or evict on the basis of any type of “criminal activity.” Thus, federal law effectively provides a floor, which many PHAs opt to exceed by taking their discretionary authority to the extreme. For example, many local housing authorities will evict or deny housing to an individual or even to an entire household if one household member has an arrest without conviction or pending criminal charges.

16 Center for American Progress | One Strike and You’re Out Federal law requires local PHAs to implement a lifetime ban on public housing for individuals who: 90

1. Have been convicted of producing methamphetamine at a public housing property

2. Are subject to a lifetime sex offender registry

PHAs are also required to deny an application for public housing when any member of the household has been evicted from public housing due to “drug-related criminal activity” within the past three years.91

Additionally, federal law gives PHAs discretion to evict or deny housing if any member of the household is or has been engaged in within “reasonable time” of application: 92

1. Drug-related activity

2. Violent criminal activity

3. “Other criminal activity which may threaten the health, safety, or right to peaceful enjoyment of the premises by other residents or persons residing in the immediate vicinity” or that of the owner or employees on public housing premises

Many local PHAs construe “other criminal activity” extremely broadly, barring individuals from housing even based on an arrest without conviction. Furthermore, there is tremendous variation in local PHAs’ interpretation of reasonable time.

As a consequence, public housing is out of reach for many people with criminal records. Additionally, many PHAs’ restrictive interpretation of the “one-strike” policy can also present a serious barrier to family reunification when a parent or family member returns home from incarceration. It can also lead to homelessness for entire families: When a family living in public housing permits a family member with a criminal record to stay with them, the entire family can end up being evicted.

17 Center for American Progress | One Strike and You’re Out Local efforts to remove barriers to public housing for people with criminal records

In a 2011 letter to PHAs, former Housing and Urban Development, or HUD, Secretary Shaun Donovan and former Assistant Secretary for Public and Indian Housing Sandra Henriquez encouraged authorities to reform overly restrictive policies and grant admission to people with criminal records “when appropriate.”93 They reiterated the importance of housing to re-entry:

As President Obama recently made clear, this is an Administration that believes in the importance of second chances—that people who have paid their debt to society deserve the opportunity to become productive citizens and caring parents, to set the past aside and embrace the future. Part of that support means helping ex-offenders gain access to one of the most fundamental building blocks of a stable life—a place to live.94

Some PHAs are beginning to reform their policies accordingly. For instance, in 2013, New Orleans’ housing authority reformed its policy to reduce discrimination on the basis of a criminal record. Under the new policy, the housing authority will consider each applicant’s case on an individual basis and assess the nature and gravity of the offense, as well as the time that has elapsed since, among other factors. In announcing the reforms, the housing authority stated:

Other than the two federally required categories, no [housing] applicant will be automatically barred from receiving housing assistance because of his or her criminal background. … We are taking the necessary steps to … make sure that those with criminal activity in their past who now seek productive lifestyles have a shot at a new beginning.95

Additionally, in 2013, New York City announced a pilot program to permit 150 returning citizens to enter public housing with their families or to rejoin their families in public housing, while working with social service providers to seek employment, participate in needed mental health and substance abuse counseling, and take other steps to rebuild their lives.96 While New York’s initiative is modest in size, it nonetheless constitutes a positive step forward.

18 Center for American Progress | One Strike and You’re Out Similar to Title VII, discussed previously in the employment context, the federal Fair Housing Act—enacted as Title VIII of the Civil Rights Act—prohibits housing discrimination on the basis of race, including practices that have a racially disparate impact. HUD, which enforces the Fair Housing Act, should issue guidance similar to the previously discussed EEOC guidance on employer consideration of criminal records, laying out clear standards for how and when PHAs and private landlords may consider a housing applicant or tenant’s criminal record. Mirroring the EEOC guidance, HUD guidance should include the stipulations that:

1. Arrests not leading to convictions generally cannot be considered

2. Landlords cannot require that tenants have no criminal history as a condition of housing

3. Certain factors relevant to desistance from crime must be considered, such as the nature and seriousness of the crime, the time that has elapsed since the conviction, evidence of rehabilitation, letters of recommendation, and the person’s history as a tenant elsewhere

Private housing is out of reach for many people with records

A criminal record can serve as a major barrier to private housing as well. An estimated four out of five landlords employ background checks to screen out prospective tenants with criminal records.97 Many landlords utilize credit checks as well, presenting an additional barrier to housing for many people with criminal records.98

Many landlords refuse to rent to individuals with criminal records based on concerns about public safety or the perception that tenants with criminal histories are less likely to meet rental obligations.99 Many tenant-screening websites fan the flames through fear-inducing warnings about landlords opening themselves up to potential lawsuits by renting to a tenant with a criminal history who may later harm another tenant.100

However, a growing body of research finds that these concerns are misplaced. An array of studies finds that criminal history is not predictive of successful tenancy.101 And as previously discussed, the likelihood of recidivism declines sharply over time. Additionally, concerns about potential “negligent renting” liability are overblown: In no state are landlords required to screen tenants for criminal history, and only one state appellate court has found potential liability for a landlord who rented to a tenant with a criminal history who subsequently caused harm to another tenant.102 Moreover, stable housing is associated with reduced likelihood of recidivism.

19 Center for American Progress | One Strike and You’re Out As noted above, the Fair Housing Act provides limits on overly broad bans on people with criminal records because of the racially disparate impact. Unfortunately, application of the Fair Housing Act in the context of housing discrimination against people with criminal records lags well behind the application of Title VII in the employment context, discussed previously. In the absence of HUD guidance on landlord consideration of criminal records, enforcement has been virtually nonexistent.

But in a positive step, some states have recently taken action to prohibit housing discrimination on the basis of a criminal record by enacting laws that do not require proof of racial discrimination and that establish specific rights. A recently enacted Oregon law provides a model. Under a statute that went into effect in January 2014, a landlord may not refuse to rent to a tenant on the basis of an arrest record or certain types of criminal convictions.103 Oregon’s law further provides that prospective tenants refused housing must be given a notice of adverse action stating the reason or reasons why they were denied housing. Additionally, the cities of San Francisco, California, and Newark, New Jersey, have also passed fair-chance housing policies.104

20 Center for American Progress | One Strike and You’re Out Blanket ban on housing for people with criminal records disrupts re-entry

In October 2014, the first prominent lawsuit under the Fair Housing Act that alleged racially disparate impact based on a landlord’s policy of excluding people with criminal convictions from renting an apartment was filed by The Fortune Society, a New York City re-entry program, against the Sand Castle, a multibuilding apartment complex with more than 900 units.105 The lawsuit alleges that the Sand Castle refused to provide housing for The Fortune Society’s clients because of a policy of automatically excluding any person with a conviction from living in its apartments.

The Fortune Society provides comprehensive re-entry services to 5,000 clients per year. One of its primary tasks is to provide housing to its clients and their families. It operates a housing pipeline, in which re-entering people move from emergency housing to temporary housing and, finally, to permanent housing. The organization works with more than 100 landlords throughout the city and is constantly looking to develop more housing sites for its clients, a challenge in light of the cost and scarcity of housing in New York City.

In May 2013, The Fortune Society negotiated leases for 25 of its clients to live in the Sand Castle. The complex was seen as a desirable placement because the rent was affordable, the neighborhood was safe and diverse, and public transportation was accessible. The 25 people lived in the complex without incident.

However, the Sand Castle’s management had apparently been unaware that The Fortune Society was a service provider for re-entering people when it entered into the 25 leases. The lawsuit alleges that when the Sand Castle’s management company learned that The Fortune Society tenants had criminal records, it stated that the complex does not rent to people with criminal records and refused to provide any further apartments. Subsequent attempts by The Fortune Society to rent additional units for its clients were rebuffed for the same stated reason, even though there were vacancies.

Because the Sand Castle refused to rent any further apartments to The Fortune Society’s clients, the program’s entire housing pipeline was disrupted. People could not move from temporary housing into permanent housing, nor could they move from emergency housing into temporary housing. Those who would have been able to move into emergency units were left homeless.

The Fortune Society notes that the Sand Castle’s blanket ban on renting to people with criminal records would have affected some of the organization’s most successful former clients, including its senior vice president and a Manhattan Housing Court judge.

This lawsuit will be closely watched. Depending on its outcome, it could pave the way for many more lawsuits alleging housing discrimination against people with criminal records in the future.

21 Center for American Progress | One Strike and You’re Out Barriers to public assistance

When individuals are released from correctional facilities, they commonly are sent back into the community with a few dollars, a bus ticket, and a few days’ worth of needed medications.106 Many returning citizens have no housing to return to— and, as discussed previously, would risk family members’ eviction from public housing if they went to live with them. Given the great challenge of securing employment with a criminal record, finding a job is unlikely to happen overnight. Thus, many need to turn to public assistance in order to survive while seeking to transition to self-sufficiency.

Lifetime ban on receiving public assistance leads to deprivation, hunger, and hardship and impedes re-entry

In many U.S. states, even meager public assistance is out of reach for people with certain types of criminal records. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, or PRWORA, includes a lifetime ban on receiving federal public assistance for individuals with felony drug convictions.107 Under this provision, individuals who are otherwise eligible for Temporary Assistance for Needy Families, or TANF, or the Supplemental Nutrition Assistance Program, or SNAP—formerly known as food stamps—are disqualified from receiving these types of assistance for life if they were convicted of a felony drug offense. The law gives states the option to modify or waive the bans, and by 2001, eight states and the District of Columbia had opted out of the bans altogether, and another 20 had modified them.108 Several more have followed suit in the decade since. Yet the majority of states continue to enforce the lifetime ban in whole or in part for TANF, SNAP, or both.

This outdated and harsh policy has serious consequences for individuals and families. It deprives struggling families of nutrition assistance and pushes them even deeper into poverty at precisely the moment when they are seeking to regain their footing. According to a recent study of people recently released from incarceration in

22 Center for American Progress | One Strike and You’re Out Texas, California, and Connecticut, levels of food insecurity among recently released individuals “mirror the magnitude of food insecurity in developing countries.”109

Moreover, when people cannot meet their basic needs, they are more likely to turn to risky and illegal activities to survive. Researchers at the Yale School of Medicine found that women denied nutrition assistance due to the felony drug ban are at higher risk not only of food insecurity but also of turning to prostitution and other risky behaviors in order to obtain money for food.110

Women are especially hard hit by the felony drug ban: Drug offenses accounted for half of the increase in the state female prison population between the mid-1980s and mid-1990s, compared with just one-third of the increase for men over the same period.111 According to The Sentencing Project, an estimated 180,000 women were subject to the TANF ban in 2013 in the 12 states with the most punitive policies.112 Women of color are effectively at double jeopardy, as racial disparities in enforcement of drug laws put people of color at much greater risk of having a drug conviction.

In addition to causing hunger and hardship, denying SNAP and TANF can prevent individuals from obtaining needed mental health and substance abuse treatment. Mental health and substance abuse programs, particularly residential treatment programs, often rely on funding from public assistance to pay individuals’ room and board.113 Without these funds, programs may be forced to turn people away, reduce services, or even close altogether. People returning from incarceration are especially likely to need these services: More than half of inmates in prisons and jails have mental health disorders, three-quarters of those returning from prison have a history of substance abuse, and nearly half of female inmates report a history of being physically or sexually abused.114 A growing body of evidence indicates that connecting returning citizens who have mental health and substance abuse disorders with needed treatment can lower recidivism.115

23 Center for American Progress | One Strike and You’re Out California and Missouri mitigate harsh lifetime bans on basic assistance

California and Missouri are the two most recent states to join the ranks of those that have modified or opted out of the harsh felony drug bans on TANF and SNAP. In June 2014, the California Legislature passed S.B. 1029, removing the lifetime ban on CALWORKs and CALFresh. The new policy will go into effect on April 1, 2015. Also in June 2014, Missouri Gov. Jay Nixon (R) signed S.B. 680 into law, modifying the state’s implementation of the federal lifetime ban on SNAP to permit people with felony drug convictions to qualify for SNAP while they participate in or after they complete an approved drug treatment program.116 Individuals determined not to need treatment must be in compliance with or have already completed the terms of their sentence. They must also pay for and pass a drug test.117

Connecting returning citizens with needed supports facilitates successful re-entry and reduces recidivism

One way to ensure that returning citizens are able to access the supports and services they need is through “prerelease” application procedures, which enable federal and state agencies to connect incarcerated individuals with needed benefits such as Medicaid and SNAP in the months prior to release. Prerelease efforts typically involve collaboration by several state agencies—corrections agencies, mental health and substance abuse agencies, and the agencies that administer Medicaid and/or SNAP—as well as localities that operate jails. The prerelease model mitigates the problem of returning citizens re-entering their communities without the basics they need for successful re-entry—such as health insurance so they can obtain needed medications, mental health and substance abuse treatment, and nutrition assistance so they have the means to put food on the table.118

A related but separate solution is how states treat individuals’ Medicaid coverage in the event of incarceration. As noted in a 2004 letter from the Department of Health and Human Services’ Centers for Medicare and Medicaid Services to state Medicaid directors, states do not have to terminate an individual’s Medicaid coverage upon incarceration; rather, they can suspend eligibility when an individual is incarcerated and reactivate it upon release, sparing the need for reapplication.119 This practice is a win-win for both state budgets and individuals, as it allows states to save money associated with the churn of termination and new applications,

24 Center for American Progress | One Strike and You’re Out while ensuring that incarcerated individuals have access to needed health coverage upon release. This approach holds promise for reducing the number of inmates who return to prison or jail by ensuring that they have necessary medical care and other crucial supportive services they need for successful re-entry, thus reducing state costs. At least 12 states currently have policies in place to suspend rather than terminate Medicaid coverage for inmates.120

25 Center for American Progress | One Strike and You’re Out Barriers to education and training

Roughly two out of five prison and jail inmates lack a high school diploma or GED.121 Among those who have a high school diploma or GED, an additional 46 percent lack postsecondary education.122 A 2003 study found that about 16 percent are below basic literacy levels, and 3 percent are completely illiterate in English.123 Low levels of education and literacy make it difficult to compete in the labor market, even without a criminal record. Among non-Hispanic white and African American males, the employment rate fell from 96 percent in 1970 to 75 percent in 2011; during the same period, earnings for these groups dropped by more than 50 percent.124 The difference in median earnings between an individual with a high school diploma and someone with a bachelor’s degree is more than $23,000 per year, a 70 percent increase.125

Prison education and training programs increase employment and reduce recidivism

A recent study by the RAND Corporation—the largest-ever analysis of correctional education—offers strong evidence that prison education and training programs reduce recidivism, increase employment, and yield cost savings126 The study found that inmates who participated in correctional education were 43 percent less likely to return to prison than those who did not.127 Employment rates after release were 13 percent higher for inmates who participated in academic or vocational education programs and 28 percent higher for those who participated in vocational training. Furthermore, these programs were found to be highly cost effective: Every dollar spent on prison education was found to save $4 to $5 in incarceration costs during the next three years, when recidivism is most likely.

Despite their cost effectiveness, prison education and training programs are relatively scarce. According to a recent report from the Government Accountability Office, the number of federal inmates on waiting lists to participate in basic literacy programs nearly equals the number participating in such programs.128 And in 1995, Congress removed access to Pell Grants for inmates—causing the number of postsecondary prison education programs to drop by more than 90 percent by 2005.129

26 Center for American Progress | One Strike and You’re Out Barriers to financial aid put higher education and training out of reach

As noted above, since 1995, currently incarcerated individuals have been ineligible for Pell Grants, putting prison education and training out of reach for many inmates who wish to increase their employability and chances of successful re-entry. Additionally, formerly incarcerated individuals—and even those with criminal records who have never been incarcerated—can face barriers to education and training.

In 1998, the Higher Education Act was amended to prohibit anyone with a misdemeanor or felony drug conviction from receiving federal financial aid.130 Between 1998 and 2006, an estimated 200,000 students were denied financial aid under this provision.131 In a positive step, the ban was modified in 2006 to prohibit receipt of federal aid only when a drug offense occurs while the student is receiving aid.132 And more recently, the Free Application for Federal Student Aid, or FAFSA, has been amended to no longer ask about criminal convictions.133

Federal law also includes a lifetime ban for individuals with felony drug convictions from receiving the American Opportunity Tax Credit, or AOTC. The AOTC serves as a complement to Pell Grants, providing qualifying students and families with a partially refundable tax credit of up to $2,500 per academic year to offset some of their educational expenses.134

Given the rising cost of college tuition, a denial of federal financial aid can put college out of reach for many students. Research indicates that students denied federal financial aid due to drug convictions are significantly less likely to enroll in and less likely to graduate from college. Those who do enroll in college typically face a two-year or longer gap between high school graduation and college matriculation.135

Due to disparities in arrests and sentencing—and, particularly, in enforcement of drug laws—students of color are disproportionately affected. In every year between 1980 and 2007, African American adults were arrested for drug charges at rates between 2.8 and 5.5 times higher than that of white adults.136

27 Center for American Progress | One Strike and You’re Out Pathways from prison to postsecondary education

Led by the Vera Institute of Justice and with support from several leading philanthropies, the Pathways Project is a five-year effort currently underway to provide three states with incentive funding and technical support to boost access to prison education. It also, through a prison-to-community continuum model, increases access to higher education and supportive re-entry services for individuals who have recently been released from incarceration. Education and training programs are designed to align with local labor-market trends. The participating states are Michigan, New Jersey, and North Carolina. The project is a partnership between colleges, prisons, parole and probation officials, local employers, and community leaders. The initiative is being evaluated by the RAND Corporation and the Vera Institute’s cost-benefit analysis unit, with the goal of building an “evidence-based case that creates momentum for systems change and spurs national replication and long-term public investment.”137

College application process presents barriers to admission and enrollment

In addition to barriers to financial aid, the college application process itself may serve as a barrier. A 2009 survey found that 66 percent of colleges ask about criminal history or conduct criminal background checks during the application process.138 While not all colleges that collect this information consider it in the admissions process, less than half report having written policies in place for how to handle the criminal background information that is collected, and only 40 percent train admissions staff in how to interpret this information. For those that do consider it in admissions, a wide array of criminal records can be viewed negatively despite having little if any relevance to public safety, such as arrests that did not lead to conviction, drug and alcohol offenses, and low-level misdemeanor convictions.

In recognition of the barriers that this can present to higher education, several New York colleges recently announced that under an agreement with the state Attorney General’s Office, they would be removing overly broad criminal history questions from their applications. Announcing the change, New York State Attorney General Eric Schneiderman stated that, “An arrest or police stop that did not result in a conviction, or a criminal record that was sealed or expunged, should not— indeed must not—be a standard question on a college application. Such a question can serve only to discourage New Yorkers from seeking a higher education.”139 Under the agreement, a criminal conviction will be considered only if it “indicates that the individual poses a threat to public safety or property, or if the convictions are relevant to some aspect of the academic program or student responsibilities.”140

28 Center for American Progress | One Strike and You’re Out Barriers to economic security and financial empowerment

Building savings, reducing debt, and having decent credit are vital to financial stability and upward economic mobility. Yet criminal justice fines and fees, as well as crushing child support arrearages, can hobble individuals’ chances at re-entry at precisely the moment when they are seeking to get back on their feet.

Criminal justice debt keeps returning citizens from getting back on their feet

In a growing nationwide trend, states and localities have increasingly shifted to a system of “offender-funded justice”—funding their law enforcement and court systems through fines and fees levied on individuals involved with the criminal justice system.141 In an example that has received significant recent attention, the city of Ferguson, Missouri, relied on rising municipal court fines to make up a whopping 20 percent of its $12.75 million budget in 2013.142

Examples include various types of “user fees” that get tacked onto a conviction, public defender fees for defendants who exercise their right to counsel, and “pay-to-stay” fees to offset the costs of incarceration, among many, many others. Many states and localities assess late-payment fees, steep collection fees, and even fees for entering an installment payment plan. Total criminal justice debts can rise into the hundreds, thousands, and even tens of thousands of dollars.143

These criminal justice debts act to compound the collateral consequences of a criminal record and transform punishment from a temporary experience into a long-term, even lifelong status. In many states, individuals are not eligible to clean up their criminal records until they have paid off all criminal debts.144 Outstanding criminal debt can also stand in the way of public assistance, housing, employment, and access to credit.145 Moreover, while debtor’s prison was long ago declared unconstitutional, missing a payment can be a path back to jail in many states.146

29 Center for American Progress | One Strike and You’re Out Unlike consumer debt, criminal debt is unlikely to be dischargeable in bankruptcy147 and is frequently not subject to statutes of limitations.148 Inability to pay can result in late fees, interest fees, payment-plan fees, and steep collection fees, and criminal debt can be subject to collection tactics such as wage garnishment.149

While these fees may seem a tempting source of revenue to states and localities seeking to close budget gaps, they are being levied on a population that is by and large unable to pay. Between 80 percent and 90 percent of criminal defendants in the United States are poor enough to qualify for a public defender, and between 15 percent and 27 percent of people released from prison expect to go to a homeless shelter upon release.150 As noted previously, as many as 60 percent of formerly incarcerated individuals remain unemployed a year after release.151 A study of court clerks in Florida revealed that just 9 percent of criminal debts were expected to be collected.152 And a study in Washington state found that formerly incarcerated men face criminal debts that equal 36 percent to 60 percent of their annual incomes; even if they paid $100 per month—constituting 11 percent to 15 percent of their monthly earnings—they would remain significantly indebted 10 years later.153

30 Center for American Progress | One Strike and You’re Out State and local best practices to alleviate crushing criminal justice debts

Massachusetts: Impact analysis Washington state: Waivers of interest Massachusetts’ recent use of impact analysis prior to instituting a new In Washington state, interest on criminal debts accrues at the rate of jail fee demonstrates how a thorough analysis of a proposed criminal 12 percent per year even during incarceration.158 Criminal debts and fee can be a win-win for state budgets, as well as for individuals who crushing interest rates can place serious burdens on formerly would face criminal debts. In 2010, the Massachusetts Legislature incarcerated people: For example, one Washington state resident created a special commission to study the impact of a proposed jail fee. entered prison with $35,000 in debt and upon release found his debt The commission considered factors such as expected revenue had risen to more than $100,000. After observing these costly generation, the cost of administering the fees, the impact of the fees on impacts, Columbia Legal Services partnered with the American Civil inmates and on prisoner work programs, and waiver of the fees for Liberties Union and the Washington Defender Association to indigent individuals. The commission ultimately concluded that such a advocate successfully for legislation to permit the waiver of interest fee would create a “host of negative and unintended consequences,” accrued during incarceration. As a result of this legislation, formerly such as increased financial burdens on inmates and their families and incarcerated Washingtonians can now petition for a waiver of the additional obstacles to successful re-entry. Following the commission’s interest accrued on their nonrestitution criminal debts during their recommendation, the legislature decided not to impose the new fee.154 period of incarceration.159

Philadelphia: Write-off of uncollectible debt The Clapham Set: An alternative workforce-development model In 2010, the Philadelphia courts announced a city-wide effort to The Clapham Set, a pilot project operated in Suffolk County, Massa- collect criminal justice debts back to the early 1970s, despite a long chusetts, from 2008 to 2011, provides a model of a voluntary and widely known history of poor record keeping. One in five of the workforce-development program that supports successful re-entry city’s residents were assessed as owing these debts, some of which and allows individuals to have their criminal debts lessened as a were in the hundreds of thousands of dollars. According to city reward for completing the program. Founded by a former prosecu- officials, 70 percent of those facing collections were low income, tor—in partnership with the local courts and nonprofit re-entry unemployed, elderly, disabled, and/or receiving public assistance155— service providers—the program helped young court-involved men and the city was described by advocates and the media as trying to develop resumes, complete job training, participate in job interviews, get “blood from a stone.”156 After four years of widely criticized and attend mental health or substance abuse treatment. Participants collection efforts, city and court officials ultimately announced in who successfully completed the program received credit toward their mid-2014 the cancellation of certain types of debts older than 2010.157 outstanding criminal debts.160

31 Center for American Progress | One Strike and You’re Out Child support enforcement can impede re-entry and weaken family ties

Child support represents an important contribution to the well-being of children who no longer reside with both parents. However, unaffordable child support obligations can also serve as a major driver of postincarceration debt. More than half of incarcerated Americans are parents of minor children.161 Many enter with child support orders in place. While policies vary from state to state, incarceration is not a permissible basis for tolling child support orders in 21 states, meaning that a parent who is behind bars will accumulate sizable arrears—and interest—despite having little to no income with which to make payments while incarcerated.162

Upon release, child support debts can be in the tens of thousands of dollars. For example, a Massachusetts study found that in 2004, the average parent entered prison with, on average, $10,543 in child support arrears. If those individuals remained incarcerated until their expected release date, each would accumulate, on average, an additional $20,461 in child support debt.163 Interest and penalty charges would add about $9,400 more, bringing total child support debt upon release to more than $40,000 for the average inmate. A study of Colorado inmates yielded similar findings and estimated that the average inmate would experience a 63 percent increase in arrears while incarcerated.164 Incarcerated parents are likely to end up with similarly crushing debts in the other 19 states that do not toll child support orders for incarceration.

Moreover, as noted previously, many inmates leaving prison have poor employment and earnings prospects and little to no savings, making it difficult if not impossible to ever dig out of the hole. In one example, according to the Urban Institute, two- thirds of Maryland inmates reported owing child support debt, and one-quarter reported that their average payments upon release exceeded their entire income.165

Failure to secure a job—or one that pays well enough to afford to meet child support obligations—can lead to growing debt, more late-payment penalties, and the possibility of reincarceration for failure to pay.166 Thus, it comes as little surprise that states report that 30 percent to 40 percent of their hard-to-collect cases consist of noncustodial parents with criminal records and/or histories of incarceration.167

States’ collection efforts can create great hardship and a lasting barrier to financial stability, let alone upward mobility, for the individuals being chased for debts. Additionally, in a perverse and unintended consequence, child support enforcement

32 Center for American Progress | One Strike and You’re Out efforts can take a toll on family bonds and impede family reunification after release.168 Importantly, a sizable share of child support debts is owed not to custodial parents but to state agencies as repayment for Temporary Assistance for Needy Families benefits or foster care services.169

In recognition of the challenges that child support arrearages can pose to re-entry, the Department of Health and Human Services’ Office of Child Support Enforcement has released extensive guidance to states with best practices for alleviating the burden of child support arrearages.170

State innovation to boost child support payments and upward mobility for children and families

Some states have recently created innovative programs to boost child support payments and help families save for their children’s future educational expenses. These efforts build on research that shows that even a small amount of college savings greatly increases the likelihood of college attendance, particularly among children from low-income families.171

In 2012, Texas began an 18-month pilot program to use child support arrears payments—which are often received by the custodial parent in the form of a large lump sum—as an opportunity to both promote college savings and provide financial coaching for families.172 Through Texas’ Child Support for College program, or CS4C, parents who used a portion of the arrears payment to open a college savings account could receive a matching contribution from the state, as well as services from a professional financial planner.173 Kansas recently implemented a similar program called the Child Support Savings Initiative, or CSSI.174 For every dollar invested in the child’s CSSI account, the parent’s debt obligation to the state will be reduced by $2.

In Virginia, a pilot program that began in four courts in 2008 has since expanded to 31 courts around the state.175 The program targets noncustodial parents facing jail for nonpayment of child support and, instead of jail, connects them with employment services and case management and ensures that their monthly child support order is adjusted to an affordable amount.176 According to the state, of the 2,736 noncustodial parents who participated in the program as of July 2014, 1,000 graduated, and the average monthly child support payment per graduate more than doubled.177 Recently added into the mix is Club Reinvent, a weekly support group that provides job hunting and other guidance; 85 of the approximately 150 men who have participated in Club Reinvent are reported to have found work.178

33 Center for American Progress | One Strike and You’re Out Recommendations

Understanding that a criminal record can be a lifelong barrier to economic security and mobility—with adverse effects on families, communities, and our entire economy—we must craft policies to ensure that Americans with criminal records have a fair shot at a decent life for themselves and their families.

A comprehensive solution: Provide a truly clean slate

Enabling Americans with criminal records to obtain a clean slate upon rehabilitation would permit them to redeem themselves and move on with their lives after they pay their debt to society. Providing a clean slate also presents a strong incentive against recidivism, which is likely to reduce crime in our communities. To that end, a comprehensive solution that would address many of the barriers discussed in this report is the automatic sealing of minor records after rehabilitation has been demonstrated. Congress and the states should enact legislation to automatically seal low-level, nonviolent convictions after an individual has demonstrated his or her rehabilitation—meaning if he or she has not been rearrested within 10 years of conviction. Nonconviction records should be automatically sealed or expunged, at no charge to the individual and without their needing to apply or petition the court. Absent such legislation, state courts should follow New York’s lead and no longer disclose criminal history information for individuals who meet the criteria described above.179 Providing a clean slate is the single most powerful tool to resolve the obstacles documented in this report.

Recommendations to increase employment opportunities for people with criminal records

The following steps would go a long way toward improving the employment prospects of people with criminal records and giving them a fair shot to earn a decent living, support their families, and avoid recidivism.

34 Center for American Progress | One Strike and You’re Out Enact hiring protections that incorporate the Equal Employment Opportunity Commission’s standards for consideration of criminal records

A fair hiring law should be enacted at the federal level. In the meantime, states and localities should follow the lead of New York, Pennsylvania, and other states that have enacted fair hiring laws that apply to all job seekers regardless of race. They should strive to incorporate the principles of the EEOC criminal record guidance: no consideration of arrest; no across-the-board exclusions of people with criminal records; evaluation of the time since conviction, the nature and gravity of the offense, and the nature of the job; and individualized assessment of each job seeker’s qualifications.

Government should be a model employer

Taken together, federal, state, and local government is by far the largest employer in the United States. In 2012, 22 million people were employed in all sectors of government, with more than 2.8 million in the federal government.180 The U.S. Postal Service alone is the second-largest civilian employer in the country, with more than half a million jobs dispersed throughout virtually every community.181 The government should set out to be a model employer at every level. The federal government should take the lead by issuing a fair-chance hiring executive order that requires federal contractors to delay asking about criminal records until after a contingent offer has been made and to only consider job-related convictions,182 as well as a presidential memorandum to ensure that people who have records and have been rehabilitated get a fair shot at federal jobs.183 Additionally, the EEOC should issue guidance to federal agencies on how best to communicate with federal job applicants about equal opportunity procedures, such as the 45-day deadline to file a discrimination complaint.184 And all levels of government should implement fair-chance hiring criteria and require fair hiring by government contractors, training staff with hiring responsibilities and analyzing their hiring procedures for criminal record barriers. The sheer size of the public sector would permit a significant bang for the buck if these barriers were eliminated.

35 Center for American Progress | One Strike and You’re Out Create subsidized jobs for people with criminal records

Finding employment is particularly difficult for people who have been recently convicted or who are re-entering the community from incarceration. Employers’ reluctance to hire these people is understandable, given that recidivism rates are highest for previously convicted people immediately after their return to the community, after which the probability of reoffending steadily declines. But employment is a strong antidote to recidivism and the best pathway out of poverty. Subsidized jobs thus offer a strategy to help people with criminal records reattach to the labor force and boost their earnings, reduce recidivism, and address unmet public service needs in carefully designed programs. The administration should release guidance that encourages state and local workforce development and criminal justice partners to create subsidized jobs programs and identifies which federal funds can be used for that purpose. States should leverage available funding sources such as Temporary Assistance for Needy Families and Workforce Innovation and Opportunity Act funds to create subsidized jobs programs and target people with criminal records as a priority population for job placement.

Reform overly broad laws that restrict employment

Federal law—and to a much larger extent, state laws—prohibit many qualified people with criminal records from working in a broad range of jobs. Some such laws prevent licensure, often after applicants have invested a great deal of time and money in training for a particular occupation. Others prohibit certain types of employers from hiring people with records. Such laws should be reviewed and tailored to exclude only those individuals who present heightened risk. A strong model is the statutory scheme adopted for Transportation Security Administration, or TSA, port workers, whose jobs raise national security implications. Replicable components of the policy include the provisions that only felony convictions within the last seven years are disqualifying, job seekers have the opportunity to seek a waiver of the disqualifying offense by providing evidence of rehabilitation, and job seekers have the opportunity to appeal the decision if TSA’s records are inaccurate.185

Create a federal expungement mechanism

Bipartisan legislation championed by Sens. Cory Booker (D-NJ) and Rand Paul (R-KY) would create a sealing mechanism for arrests and convictions of federal nonviolent offenses.186 This proposal marks a long overdue and common-sense step. However, all federal arrests that do not lead to conviction should be eligible for sealing.

36 Center for American Progress | One Strike and You’re Out Expand opportunities for record clearing at the state and local levels

This strategy has a multipronged approach, which includes both changes to the legal rules for when records can be cleared and more accessible procedures.

• Expand the legal bases for record clearing. A clean slate—or at least a lesser one—is the surest way toward a better employment future. States that limit expungement or sealing to nonconvictions and juvenile adjudications should make convictions subject to clearing as well. States that do allow some convictions to be cleared should look to expand their list of offenses for which expungement can be sought, bearing in mind that periods of desistance from crime show rehabilitation from a criminal past. Indiana’s record-clearing statute, enacted in 2013, is perhaps the broadest model currently in use: Nonconvictions are eligible for expungement after one year, and misdemeanors and less serious felonies are eligible after five years.187

• Leverage diversion programs to permit record avoidance or clearing upon satisfaction of the conditions of sentencing. Diversion programs—for example, drug courts, mental health courts, veterans’ courts, and domestic violence courts—often target particular populations and are typically established at the state and local levels by either legislatures or courts. They can prevent a defendant from being convicted by deferring adjudication until completion of the terms of the sentence and thus typically allow individuals who comply with all necessary conditions to avoid a criminal record.188

• Expand access to record-clearing remedies. Making expungement automatic where possible will ensure that people are not deprived of expungement simply because they cannot master the legal process or get legal representation. Connecticut law provides a model, permitting nonconvictions to be automatically erased.189 Alternatively, presumptions in favor of expungement could be implemented for nonconvictions and minor offenses.190 Resources for legal representation, such as funding for legal aid and expungement clinics, should also be increased so that expungement is not blocked solely because people cannot access the process or afford a lawyer.

37 Center for American Progress | One Strike and You’re Out Require accuracy of background checks

Several recently introduced bills—such as those sponsored by Rep. Robert C. Scott (D-VA), Rep. Keith Ellison (D-MN), Sen. Booker, and Sen. Paul—would require the Federal Bureau of Investigation to track down missing dispositions of cases, as it does for gun checks under the Brady Handgun Violence Prevention Act.191 Enactment of such legislation is long overdue. Moreover, the FBI should invest in making its reports more decipherable, something that many state databases have been able to do. The states must also do their part by complying with their regulatory obligation to provide outcomes of cases on a timely basis. Helping the FBI provide correct and up-to-date background checks by giving them the proper case outcomes should be seen as an initiative that promotes re-entry and is comparable to expanding expungements.

Additionally, the Consumer Financial Protection Bureau, or CFPB, should promulgate Fair Credit Reporting Act regulations that govern commercial background screeners. The CFPB has statutory authority to issue regulations under the FCRA. It should do so to bring visible and consistent standards to the uneven and generally unregulated product of the commercial screening industry. In the meantime, the CFPB should issue clarifying guidance on the most common background checking errors in this industry.

Recommendations to remove barriers to housing for people with criminal records

The following steps would ensure that a criminal record is not a lifelong barrier to housing and that barriers to housing do not impede family reunification.

End the ‘one-strike’ policy in public housing

This overly broad and harsh policy should be repealed and replaced with a policy requiring individualized assessments, which would address safety concerns while removing the barriers that people with records face to accessing public housing, promoting family reunification, and preventing the family homelessness that can result from a family member with a record joining the household after returning home from incarceration.

38 Center for American Progress | One Strike and You’re Out The Department of Housing and Urban Development should release guidance limiting landlord consideration of criminal history

HUD should release guidance192 similar to the EEOC guidance on employer consideration of criminal records, laying out clear standards for how and when public housing authorities and private landlords should consider housing applicants’ or tenants’ criminal history and requiring a notice of adverse action to prospective tenants denied housing. HUD should also release a model policy for PHAs.

Local PHAs should reform overly broad admission and eviction policies

Even absent reform to the one-strike policy or additional guidance from HUD, local PHAs need not and should not exceed the narrow mandatory bans they are required to implement. They should follow the lead of New Orleans and other localities that have heeded HUD’s repeated calls to reform their overly broad admission and eviction policies. As New York City has shown, pilot programs offer an opportunity for states and localities to explore strategies for removing barriers to housing for individuals with criminal records and their families.

States and localities should adopt fair housing policies that prohibit landlords from discriminating on the basis of criminal history

States and cities should follow Oregon’s lead by limiting the use of criminal history by private landlords, requiring individualized assessment in place of zero tolerance, and requiring that tenants denied housing be provided a notice of adverse action that states the reason or reasons for the denial. While policies that lay out specific rights are optimal, states may be able to issue regulations that construe their own fair-housing laws to limit discriminatory denials of housing without the need for legislation.

Recommendations to remove barriers to public assistance

The following recommendations would remove barriers to basic supports for people with criminal records and boost access to needed mental health and substance abuse treatment, which can play a key role in supporting successful re-entry.

39 Center for American Progress | One Strike and You’re Out End the felony drug ban for income and nutrition assistance

Congress should repeal this harmful and outdated policy so that returning citizens and their families are able to meet their basic survival needs while they work to get back on their feet. In the meantime, states that have not already exercised their authority to opt out of or modify the bans should do so.

Leverage prerelease application procedures to connect soon-to-be-released inmates with health insurance and other needed supports

States that do not already have prerelease procedures in place should leverage this model to connect inmates with needed supports upon release to boost their chances at successful re-entry. Second Chance Act grants offer a funding source to support planning, capacity building, and other activities to get such programs up and running.

Suspend Medicaid coverage instead of terminating it

States should suspend Medicaid coverage, instead of terminating it, upon inmates’ incarceration to ensure that individuals have access to needed health coverage upon release, while reducing state costs associated with the churn of termination and reapplication.

Strengthen the Earned Income Tax Credit, or EITC, for childless workers

The benefits of the EITC largely miss workers without qualifying children. Strengthening the EITC for childless workers and noncustodial parents would be of tremendous benefit to workers with criminal records, who are more likely to work in low-wage jobs and to be noncustodial parents.

Recommendations to remove barriers to education and training

The following steps would boost access and remove barriers to education and training for people with criminal records, increasing their future employment and earnings.

40 Center for American Progress | One Strike and You’re Out Remove barriers to federal financial aid and tax credits

The ban on federal financial aid for students with drug convictions can interrupt and even bring an end to students’ college attendance, jeopardizing their chances of securing a decent job and paving a path to economic security down the road. Similarly, the harsh lifetime ban on the American Opportunity Tax Credit for individuals with felony drug convictions puts a vital source of financial aid out of reach for current and prospective students who might not otherwise be able to afford to pursue higher education or training. Removing these bans would boost students’ chances of completing higher education and ensure that a bad decision at a young age does not stand in the way of economic security later in life.

Invest in prison education and training

Given strong evidence that prison education and training programs reduce recidivism, increase employment, and yield tremendous cost savings through reductions in reincarceration, increased investment in these programs for federal and state inmates would be a win-win for formerly incarcerated individuals and federal and state budgets. The Obama administration should propose increased investment for expansion of these types of programs at the federal and state levels. Additionally, states should explore and leverage Second Chance Act funds; the Byrne Memorial Justice Assistance Grant, or JAG, program; and other criminal justice grants as potential sources of funding to establish and expand prison education and training programs.

Test Pell Grants for incarcerated individuals

Prison education and training increase inmates’ employment rates upon release, substantially decrease recidivism, and yield tremendous cost savings in reduced incarceration. To test the effects of restoring Pell Grants for inmates, the Department of Education should exercise its experimental authority and implement pilots to explore the potential benefits of changing this policy.

41 Center for American Progress | One Strike and You’re Out Colleges and universities should limit consideration of criminal history

Higher-educational institutions should review their admissions policies and practices to evaluate whether they are overly broad or exclusionary. Colleges and universities should remove criminal history questions from their applications and not ask about criminal history until after a conditional admission has been made. At that point, higher-educational institutions should follow New York’s lead by not considering arrests that did not lead to conviction and youthful infractions and only considering convictions if they indicate that the student poses a threat to public safety—or if the convictions have bearing on some aspect of the academic program or student responsibilities. Schools should develop clear policies on consideration of criminal records and train admissions staff in how to consider them. Students who are denied admission due to their criminal records should be informed of the reason and offered an opportunity to explain and provide further information.

Recommendations to reform criminal justice debt policies

The following recommendations would alleviate criminal justice debts as a barrier to re-entry and economic security.

Issue guidance to states and localities on best practices for levying and collecting criminal justice debt

Despite the emergence of several best practices, many states and localities persist in criminal justice debt policies that present serious barriers to re-entry. In collaboration with the CFPB, the Department of Justice, or DOJ, should release guidance that encourages states and localities to adopt best practices in levying and collecting criminal justice debt.

In the meantime, the following are steps states and localities can take to reform their criminal justice debt policies. It is important to note that criminal justice fines and fees can and should be addressed separately from victim restitution.

42 Center for American Progress | One Strike and You’re Out Conduct impact analysis before adopting new fees

States and localities should follow Massachusetts’ lead and conduct impact analysis to examine whether the costs and harms associated with implementing a new fee outweigh the benefits of revenue generation.

Consider ability to pay

At present, fees are often levied without regard for an individual’s ability to pay. States and localities should consider ability to pay both at the time fees are levied— to avoid assessing fees that will later be uncollectible—and when payments begin, which is typically the date of release from incarceration. Permitting individuals to pay in affordable installments will increase the likelihood of payment and also avoid great hardship to individuals and families, who often must choose between paying the gas bill and making a payment on criminal debt. States and localities should also allow debts to be placed on hold in circumstances of extreme hardship, such as job loss and illness.

Implement statutes of limitation and write off uncollectible debt

States should adopt statutes of limitation on criminal justice debts to prevent situations similar to what occurred in Philadelphia between 2011 and 2014 and should follow Philadelphia’s lead in writing off debt that is old and uncollectible and that causes great hardship to former defendants.

Permit waiver of fees upon completion of re-entry programs

The Clapham Set provides a model of a program that supports successful re-entry and allows individuals to have their criminal debts lessened as a reward for completing the program. States and localities should consider testing similar models for supporting re-entry.

43 Center for American Progress | One Strike and You’re Out Recommendations to reform child support policies

States should take the following steps to reform their child support policies to boost collections and improve outcomes for formerly incarcerated parents and families.

Prevent crushing debts from accruing during incarceration

States that do not already should include incarceration as a permissible ground for tolling child support payments. They should also create easily accessible processes for incarcerated parents to modify their child support orders upon entry into a correctional facility. States should also suspend interest and penalties while a parent is incarcerated. Short of establishing incarceration as a basis for halting child support payments, Minnesota’s law provides a middle-ground option to allow courts to modify support orders retroactively based on incarceration.193 Additionally, corrections officials should identify incarcerated parents who have child support orders, and criminal justice agencies should provide informational presentations to parents—such as on how to modify an order—as part of prerelease programs.

Keep child support orders affordable

Child support enforcement agencies should strive to ensure that support orders are established and modified as needed so that they are affordable based on the parent’s actual current income. Orders that are unrealistic or beyond the parent’s ability to pay are not in the best interests of either the child or the parent. Currently 22 states and the District of Columbia operate programs designed to ensure that orders reflect the parent’s current earnings and are modified when earnings change.194 States that do not already have such policies or programs in place should follow suit.

Increase pass-through to custodial parents

States should pass through a greater share of child support payments to custodial parents, rather than withholding most or all to offset TANF and child care assistance, to ensure that payments benefit the child. States should also forgive debts owed to the state for TANF and foster care payments as an incentive for the payment of ongoing support.195

44 Center for American Progress | One Strike and You’re Out Provide re-entry and employment supports to noncustodial parents

States should follow Virginia’s lead by providing re-entry services and employment assistance for parents returning to their families and communities. Boosting employment and supporting family ties will result in higher child support payments, lower recidivism rates, and improved family outcomes. Additionally, states should leverage child support enforcement as an opportunity to help families build savings for their children’s education, as Kansas and Texas have done.

Other recommendations

The following are additional steps to remove barriers to economic mobility for people with criminal records.

Implement smart-on-crime reforms to reduce incarceration

Reducing incarceration at the federal level The Fair Sentencing Act of 2010 and the federal drug sentencing reforms adopted earlier this year by the U.S. Sentencing Commission serve as steps in the right direction. Congress should build upon these reforms by taking common-sense steps to reduce the number of low-level, nonviolent offenders in our federal prisons. Examples that have gained recent attention include:

• Reviewing federal mandatory minimum penalties to ensure that they are not excessively severe and apply only to those offenders who warrant such punishment

• Expanding the “safety valve” provision to give judges more flexibility to depart from federal mandatory minimum sentences

• Expanding the use of alternatives to incarceration, such as community supervision and residential re-entry centers196

• Expanding early release measures, such as reinstating parole for federal inmates, expanding good-time credit—early release for good behavior—and allowing courts to reduce sentences where appropriate, such as for elderly and terminally ill inmates197

45 Center for American Progress | One Strike and You’re Out Such reforms are likely to produce substantial cost savings; for instance, the Congressional Budget Office estimates that the bipartisan Smarter Sentencing Act sponsored by Sens. Mike Lee (R-UT) and Richard Durbin (D-IL) would save more than $4 billion over 10 years.198

Reducing incarceration at the state level States should take steps to reduce their prison populations as well. While some states have seen reductions in incarceration in recent years, most states’ prison populations remain at historic heights after decades of exponential growth. Sentencing reform and other smart-on-crime steps to reduce incarceration offer an opportunity for states to realize significant cost savings, while maintaining and even enhancing public safety and improving the future outlook for their residents. States should consider options such as:

• Reducing the length of sentences through reforms to three-strikes laws, mandatory minimums, and other overly harsh policies

• Reclassifying low-level felonies as misdemeanors, as California’s recently passed Proposition 47 does

• Expanding the use of alternatives to incarceration for certain populations through drug and mental health courts, veterans’ courts, and other specialized diversion programs designed to connect low-level offenders with treatment and supportive services instead of prison199 and, in some cases, to avoid conviction altogether

• Reviewing and reforming laws that target or disproportionately impact homeless people

• Limiting the use of reincarceration as a penalty for technical violations of parole or probation when no new crime has been committed

Additionally, all states should participate in the National Incident-Based Reporting System, or NIBRS, which provides comprehensive data that law enforcement and service providers can use for accountability and self-assessment.200 States should reinvest the savings from reduced incarceration into more productive investments such as mental health services, drug treatment, re-entry services and supports, and diversion programs.201

46 Center for American Progress | One Strike and You’re Out Leverage federal grants to move state and local incentives away from mass incarceration and toward successful re-entry

All federal grants should be reviewed for opportunities to reorient state and local incentives. One notable example is the Byrne Memorial Justice Assistance Grant, or JAG program, which serves as the leading source of federal funding for state and local criminal justice activities. Congress should review and revise the program’s solicitation and performance measures to provide incentives to reduce incarceration and support re-entry. In the meantime, DOJ should exercise its authority to modify the program’s performance measures and replace them with measures tailored to reduce incarceration while improving public safety. Other federal grants should be reviewed for similar opportunities to reorient incentives and support re-entry.

Reauthorize the Second Chance Act and fully fund DOJ’s Smart on Crime initiative

Enacted in 2008, the Second Chance Act authorizes DOJ to award federal grants to government agencies and nonprofit organizations to provide services designed to reduce recidivism. Grants support activities and programs such as mentoring, substance abuse and mental health treatment, and demonstration programs, as well as re-entry courts specially designed to support reintegration after sentencing and technology career-training programs to train inmates for technology-based jobs before their release.

President Obama’s fiscal year 2015 budget proposed $173 million for criminal justice reform, including targeted funding to support the Smart on Crime initiative— a package of reforms that promotes diversion programs—such as drug courts, mental health courts, and veterans’ courts—and other alternatives to incarceration for low-level drug offenders, as well as encourages increased investment in programs to support re-entry and reduce recidivism.202 Increased funding for Second Chance Act grants is a key part of the administration’s Smart on Crime initiative. Congress should fully fund this initiative, including boosting funding for Second Chance Act grants.

47 Center for American Progress | One Strike and You’re Out Increase federal funding for civil legal aid, and make legal aid a preferential partner in federal re-entry grants

The administration should propose increased funding for civil legal aid in federal re-entry grants. Additionally, relevant agencies should give preference to applications that include civil legal aid as a partner in federal re-entry grants and should develop performance measures that assess whether primary contractors actually utilize their services to address the myriad problems people with criminal records face.

Consider collateral consequences before issuing new federal policies

In 2011, Attorney General Holder directed DOJ to consider whether any proposed policy would exacerbate the collateral consequences of a criminal record; if so, the policy must be justified and tailored as narrowly as possible.203 Other federal agencies should follow DOJ’s lead by adopting similar policies.

Create inventories of collateral consequences

In recent years, states across the country—such as Maryland, Ohio, New York, and California—as well as legal organizations such as the American Bar Association, have undertaken efforts to compile and inventory collateral consequences. Their goal is to ensure that defendants are appropriately notified of relevant collateral consequences at all stages of the criminal process and to review and alleviate those consequences to support successful re-entry.204 States that have not yet done so should undertake such efforts and utilize the information compiled to inform a thorough review of their laws and policies to avoid unnecessary obstacles to re-entry.

48 Center for American Progress | One Strike and You’re Out Conclusion

Bipartisan momentum is building in support of criminal justice reform, due in part to the enormous costs of mass incarceration, as well as increasing interest in evidence- based approaches to public safety. Policymakers and opinion leaders of all political stripes have called for sentencing and prison reform, as well as policies to put second chances within reach.205 Former President Bill Clinton—who signed into law the Violent Crime Control and Law Enforcement Act of 1994—recently told a group of mayors and law enforcement officials that some criminal justice policies have gone too far and predicted that criminal justice reform would be a central issue in the 2016 presidential campaign.206 Now is the time for the federal government, Congress, and states and cities to work together to reform public policies to ensure Americans with criminal records have a fair shot at a second chance.

49 Center for American Progress | One Strike and You’re Out Growing bipartisan support for criminal justice reform

“There is an urgent need to address the astronomical growth in the prison population, with its huge costs in dollars and lost human potential. … The criminal justice system is broken, and conservatives must lead the way in fixing it.” –Newt Gingrich, former speaker of the U.S. House of Representatives207

“Today, a vicious cycle of poverty, criminality, and incarceration traps too many Americans and weakens too many communities. And many aspects of our criminal justice system may actually exacerbate these problems, rather than alleviate them. … As a society, we pay much too high a price whenever our system fails to deliver outcomes that deter and punish crime, keep us safe, and ensure that those who have paid their debts have the chance to become productive citizens.” – Eric Holder, attorney general208

“The biggest impediment to civil rights and employment in our country is a criminal record. Our current system is broken and has trapped tens of thousands of young men and women in a cycle of poverty and incarceration. Many of these young people could escape this trap if criminal justice were reformed, if records were expunged after time served, and if nonviolent crimes did not become a permanent blot preventing employment. ” – Sen. Rand Paul (R-KY)209

“Today’s criminal justice system is big government on steroids, and the responsibility for taming its excesses falls to those committed to smaller government: conservatives.” — Grover Norquist, president of Americans for Tax Reform210

“We basically took a shotgun to a problem that needed a .22 ... We took a shotgun to it and just sent everybody to jail for too long.” – Former President Bill Clinton211

“We know from long experience that if [former prisoners] can’t find work, or a home, or help, they are much more likely to commit more crimes and return to prison. … America is the land of the second chance, and when the gates of the prison open, the path ahead should lead to a better life.” – Former President George W. Bush212

“[T]here’s a big chunk of that prison population that is involved in nonviolent crimes. And it is having a disabling effect on communities. You have entire populations that are rendered incapable of getting a legitimate job because of a prison record. And it boggles up a huge amount of resources. If you look at state budgets, part of the reason that tuition has been rising in public universities across the country is because more and more resources were going into paying for prisons, and that left less money to provide to colleges and universities. I think we have to figure out what are we doing right to make sure that that downward trend in violence continues, but also are there millions of lives out there that are being destroyed or distorted because we haven’t fully thought through our process?” – President Barack Obama213

“The idea that we lock people up, throw them away, never give them a chance at redemption, is not what America is about. Being able to give someone a second chance is very important.” – Gov. Rick Perry (R-TX)214

50 Center for American Progress | One Strike and You’re Out Appendix A

What the administration and federal agencies can do

The federal government should be a model employer

The Obama administration should issue a fair-chance hiring executive order that requires federal contractors to delay asking about criminal records until after a contingent offer has been made and to consider only job-related convictions. The administration should also offer a presidential memorandum to ensure that people with records who have been rehabilitated have a fair shot at federal jobs.215 Additionally, the Equal Employment Opportunity Commission should issue guidance to federal agencies on how best to communicate with federal job applicants about equal opportunity procedures, such as the 45-day deadline to file a discrimination complaint. Federal agencies should train staff with hiring responsibilities and analyze their hiring procedures for criminal record barriers.

Leverage federal grants to move state and local incentives away from mass incarceration and toward successful re-entry

All federal grants should be reviewed for opportunities to reorient state and local incentives. One notable example is the Byrne Memorial Justice Assistance Grant program, which serves as the leading source of federal funding for state and local criminal justice activities. The Department of Justice should exercise its authority to modify the program’s performance measures and replace them with measures tailored to reduce incarceration while improving public safety. Other federal grants should be reviewed for similar opportunities to reorient incentives and support re-entry.

51 Center for American Progress | One Strike and You’re Out Support subsidized jobs for people with criminal records

The Obama administration should release guidance that encourages state and local workforce development and criminal justice partners to create subsidized jobs programs, identifies which federal funds can be used for that purpose, and encourages people with criminal records to be targeted as a priority population.

Increase federal funding for civil legal aid, and make legal aid a preferential partner in federal re-entry grants

The Obama administration should propose increased funding for civil legal aid in federal re-entry grants. Additionally, relevant agencies should give preference to applications that include civil legal aid as a partner in federal re-entry grants and should develop performance measures that assess whether primary contractors actually utilize their services to address the myriad problems that people with criminal records face.

The Consumer Financial Protection Bureau should issue regulations under the Fair Credit Reporting Act that govern background check companies

The CFPB should promulgate FCRA regulations that govern commercial background screeners to bring visible and consistent standards to the uneven and generally unregulated product of the commercial screening industry. In the meantime, the CFPB should issue clarifying guidance on the most common background checking errors in this industry.

The Department of Housing and Urban Development should release guidance that limits landlord consideration of criminal history

HUD should release guidance similar to the EEOC guidance on employer consideration of criminal records, laying out clear standards for how and when public housing authorities and private landlords should consider housing applicants’ or tenants’ criminal history and requiring a notice of adverse action to prospective tenants denied housing. HUD should also release a model policy for PHAs.

52 Center for American Progress | One Strike and You’re Out Expand prison education and training

The Department of Education should test restoration of Pell Grants for incarcerated students

Prison education and training increase inmates’ employment rates upon release, substantially decrease recidivism, and save significant costs through reduced incarceration. The Department of Education should exercise its experimental authority and implement pilots to explore the potential effects of restoring Pell Grants for inmates.

DOJ should issue guidance to states and localities on best practices for levying and collecting criminal justice debt

Despite the emergence of several best practices, many states and localities persist in criminal justice debt policies that present serious barriers to re-entry. In collaboration with the CFPB, The Department of Justice should issue guidance to states and localities to adopt best practices in levying and collecting criminal justice debt.

Federal agencies should consider collateral consequences before issuing new policies

In 2011, Attorney General Holder directed DOJ to consider whether any proposed policy would exacerbate the collateral consequences of a criminal record; if so, the policy must be justified and tailored as narrowly as possible. Other federal agencies should follow DOJ’s lead by adopting similar policies.

53 Center for American Progress | One Strike and You’re Out What Congress can do

Enact smart-on-crime reforms to reduce incarceration

The Fair Sentencing Act and the federal drug sentencing reforms adopted earlier this year by the U.S. Sentencing Commission serve as steps in the right direction. Congress should build upon these reforms by taking common-sense steps to reduce the number of low-level nonviolent offenders in our federal prisons— reforms that are likely to produce substantial savings.

Examples that have gained recent attention include:

• Reviewing federal mandatory minimum penalties to ensure that they are not excessively severe and apply only to those offenders who warrant such punishment; expanding the safety valve provision to give judges more flexibility to depart from federal mandatory minimum sentences

• Expanding the use of alternatives to incarceration, such as community supervision and residential re-entry centers

• Expanding early-release measures, such as reinstating parole for federal inmates, expanding good-time credit—early release for good behavior—and allowing courts to reduce sentences where appropriate, such as for elderly and terminally ill inmates

Reauthorize the Second Chance Act and fully fund the administration’s Smart on Crime initiative

Congress should reauthorize the Second Chance Act, which authorizes DOJ to award federal grants to government agencies and nonprofit organizations to provide services designed to support re-entry and reduce recidivism. In addition, Congress should fully fund the administration’s Smart on Crime initiative—a package of reforms that promotes diversion programs—such as drug courts, mental health courts, and veterans’ courts—and other alternatives to incarceration for low-level drug offenders, as well as encourages increased investment in programs to support re-entry and reduce recidivism.

54 Center for American Progress | One Strike and You’re Out Leverage federal grants to move state and local incentives away from mass incarceration and toward successful re-entry

All federal grants should be reviewed for opportunities to reorient state and local incentives. One notable example is the JAG program, which serves as the leading source of federal funding for state and local criminal justice activities. Congress should review and revise JAG’s and other federal grants’ solicitation and performance measures to provide incentives to reduce incarceration.

Enact a federal fair-chance hiring law

Congress should enact a fair-chance hiring law that includes features such as banning the box on job applications that asks about criminal records and delaying background checks until after a job seeker is being seriously considered for hire. The law should also incorporate the principles of the 2012 EEOC guidance on employer consideration of criminal records. Additionally, it should be designed to apply to all job seekers regardless of race, in order to protect all individuals with criminal records.

Create a federal expungement mechanism

Bipartisan legislation championed by Sens. Booker and Paul would create a sealing mechanism for arrests and convictions of federal nonviolent offenses. This proposal marks a long overdue and common-sense step. However, all federal arrests that do not lead to conviction should be eligible for sealing.

Require accuracy of Federal Bureau of Investigation background checks

Several recently introduced bills—such as those sponsored by Rep. Scott, Rep. Ellison, Sen. Booker, and Sen. Paul—would require the FBI to track down missing dispositions of cases, as it does for gun checks under the Brady Handgun Violence Prevention Act. Enactment of such legislation is long overdue. Moreover, the FBI should invest in making its reports more decipherable, something that many state databases have been able to do.

55 Center for American Progress | One Strike and You’re Out Reform overly broad laws that restrict employment

The statutory scheme in the Transportation Security Administration’s port-worker program provides a strong model, including provisions that only felony convictions within the past seven years are disqualifying, job seekers have the opportunity to seek a waiver of the disqualifying offense by providing evidence of rehabilitation, and job seekers have the opportunity to appeal the decision if TSA’s records are inaccurate.

End the ‘one-strike’ policy in public housing

This overly broad and harsh policy should be repealed and replaced with a policy that requires individualized assessments, which would address safety concerns while removing the barriers that people with records face in accessing public housing, promoting family reunification, and preventing the family homelessness that can result from a family member with a record joining the household after returning home from incarceration.

End the felony drug ban for income and nutrition assistance

Congress should repeal this harmful and outdated policy so that returning citizens and their families are able to meet their basic survival needs while they work to get back on their feet.

Remove barriers to federal financial aid and tax credits

The ban on federal financial aid for students with drug convictions, and the lifetime ban on the American Opportunity Tax Credit for individuals with felony drug convictions, can put financial aid out of reach for students who might otherwise not be able to afford to pursue higher education or training. Removing these bans would boost students’ chances of completing higher education and ensure that a bad decision at a young age does not stand in the way of economic security later in life.

56 Center for American Progress | One Strike and You’re Out Strengthen the Earned Income Tax Credit for childless workers

What states and localities can do

Implement smart-on-crime reforms to reduce incarceration

Sentencing reform and other smart-on-crime steps to reduce incarceration offer an opportunity for states to realize significant cost savings, while maintaining and even enhancing public safety and improving the future outlook for their residents. States should consider options such as:

• Reducing the length of sentences through reforms to three-strikes laws, mandatory minimums, and other overly harsh policies

• Reclassifying low-level felonies as misdemeanors, as California’s recently passed Proposition 47 does

• Expanding the use of alternatives to incarceration for certain populations through diversion programs designed to connect low-level offenders with treatment and supportive services instead of prison and, in some cases, to avoid conviction altogether

• Reviewing and reforming laws that target or disproportionately impact homeless people

• Limiting the use of reincarceration as a penalty for technical violations of parole or probation when no new crime has been committed

Additionally, all states should participate in the National Incident-Based Reporting System, which provides comprehensive data that law enforcement and service providers can use for accountability and self-assessment. States should reinvest the savings from reduced incarceration into more-productive investments such as mental health services, drug treatment, re-entry services and supports, and diversion programs.

57 Center for American Progress | One Strike and You’re Out Create inventories of collateral consequences

In recent years, states across the country, as well as legal organizations such as the American Bar Association, have undertaken efforts to compile and inventory collateral consequences for the purpose of ensuring that defendants are appropriately notified of relevant collateral consequences at all stages of the criminal process and to review and alleviate those consequences to support successful re-entry. States that have not yet done so should undertake such efforts and utilize the information compiled to inform a thorough review of their laws and policies to avoid unnecessary obstacles to re-entry.

Implement fair-chance hiring policies

States and localities should adopt fair-chance hiring laws that include such features as banning the box to delay background checks until a job seeker is being seriously considered for hire, as well as the principles of the 2012 EEOC guidance on employer consideration of criminal records. Colorblind fair-chance hiring laws have the broadest impact by helping all job seekers with criminal records regardless of race. Fair-chance hiring policies can be constructed to reach both private and public employers.

Leverage subsidized jobs for people with criminal records

Subsidized jobs offer a strategy to help people with criminal records reattach to the labor force, boost earnings for themselves and their families, reduce recidivism, and address unmet public service needs in carefully designed programs. States should leverage available funding sources such as Temporary Assistance for Needy Families and the Workforce Innovation and Opportunity Act to create subsidized jobs programs and target people with criminal records as a priority population for job placement.

58 Center for American Progress | One Strike and You’re Out Reform overly broad state laws that restrict employment of people with criminal records

The statutory scheme in the TSA port-worker program provides a strong model, including the provisions that only felony convictions within the last seven years are disqualifying, job seekers have the opportunity to seek a waiver of the disqualifying offense by providing evidence of rehabilitation, and job seekers have the opportunity to appeal the decision if TSA’s records are inaccurate.

Expand access to record clearing

States that limit expungement or sealing to nonconviction records and juvenile adjudications should join the majority of states that make at least some convictions subject to clearing as well. States that do allow some convictions to be cleared should look to expand their list of offenses for which expungement can be sought, bearing in mind that periods of desistance from crime show rehabilitation from a criminal past. States should strive to make record clearing automatic where possible to ensure that people are not deprived of expungement simply because they cannot master the legal process or get legal representation. Alternatively, presumptions in favor of expungement could be implemented for nonconvictions and minor offenses.

Provide timely information on dispositions of arrests to the FBI

While the FBI ultimately has responsibility to provide correct and up-to-date reports from its database, its results can only be as good as the data that the states provide to it. States are required by law to provide outcomes of all arrests to the FBI within 120 days, but very few comply with this obligation. States should come into compliance, recognizing that improving the accuracy of FBI records is an important re-entry goal.

Reform overly broad public housing admission and eviction policies

Even absent reform to the one-strike policy or additional guidance from HUD, local public housing authorities need not and should not exceed the mandatory ban they are required to implement in certain narrow circumstances. They should

59 Center for American Progress | One Strike and You’re Out heed HUD’s repeated calls to reform overly broad admission and eviction policies. As a middle ground, pilot programs offer an opportunity for states and localities to explore strategies for removing barriers to housing for individuals with criminal records and their families.

Adopt fair housing policies that prohibit landlords from discriminating on the basis of criminal history

States and cities should enact policies that limit the use of criminal history by private landlords, requiring individualized assessment in place of zero tolerance and requiring that tenants denied housing be provided a notice of adverse action stating the reason or reasons for the denial. While policies laying out specific rights are optimal, states may be able to issue regulations that construe their own fair-housing laws to limit discriminatory denials of housing without the need for legislation.

Opt out of felony drug bans on public assistance

While federal law imposes a harsh lifetime ban on TANF and the Supplemental Nutrition Assistance Program for people with felony drug convictions, states have the authority to modify or opt out of the ban entirely. States that have not already exercised this authority should eliminate or modify the bans to enable returning citizens and their families to access basic assistance while they get back on their feet.

Leverage prerelease procedures to connect individuals with needed health insurance and public assistance upon release

Suspend Medicaid coverage instead of terminating it

States that do not do so already should opt to suspend Medicaid coverage, not terminate it, upon inmates’ incarceration to ensure that individuals have access to needed health coverage upon release, while reducing state costs associated with the churn of termination and reapplication.

60 Center for American Progress | One Strike and You’re Out Invest in prison education and training

Implement best practices in levying and collecting criminal debt

• Conduct impact analysis before adopting new fees. States should conduct impact analysis to examine whether the costs and harms associated with implementing a new fee outweigh the benefit from revenue generation.

• Consider ability to pay. At present, fees are typically levied without regard for an individual’s ability to pay. States and localities should consider ability to pay both at the time fees are levied—to avoid assessing fees that will later be uncollectible—and when payments begin, which is typically the date of release from incarceration. Permitting individuals to pay in affordable installments will increase the likelihood of payment and also avoid great hardship to individuals and families. States and localities should also allow debts to be placed on hold in circumstances of extreme hardship, such as job loss and illness.

• Implement statutes of limitation and write off uncollectible debt. States should adopt statutes of limitation on criminal debts and write off debt that is old and uncollectible and causing great hardship to former defendants.

• Permit waiver of fees upon completion of re-entry programs. States and localities should consider testing models to support re-entry that allow participants to have their criminal debts lessened as a reward for completing the program.

61 Center for American Progress | One Strike and You’re Out Adopt best practices in child support enforcement

• Prevent crushing debts from accruing during incarceration. States that do not already should include incarceration as a permissible ground for tolling child support payments and create easily accessible processes for incarcerated parents to modify their child support orders upon entry into a correctional facility. States should also suspend interest and penalties while a parent is incarcerated. Short of establishing incarceration as a basis for halting child support payments, a middle-ground option is to allow courts to modify support orders retroactively based on incarceration. Additionally, corrections officials should identify incarcerated parents who have child support orders, and criminal justice agencies should provide informational presentations to parents—such as on how to modify an order—as part of prerelease programs.

• Keep child support orders affordable. Child support enforcement agencies should strive to ensure that support orders are established and modified as needed so that they are affordable based on the parent’s actual current income. Orders that are unrealistic or beyond the parent’s ability to pay are not in the best interests of either the child or the parent. States that do not already should establish programs designed to ensure that orders reflect current earnings and are modified when earnings change.

• Increase pass-through to custodial parents. States should pass through a greater share of child support payments to custodial parents rather than withholding large portions to offset TANF and child care assistance to ensure that payments benefit the child. States should also forgive debts owed to the state for TANF and foster care payments as an incentive for payment of ongoing support.

• Provide re-entry and employment supports to noncustodial parents. States should incorporate re-entry services and employment assistance into child support enforcement efforts. Boosting employment and supporting family ties will result in higher child support payments, lower recidivism rates, and improved family outcomes. Additionally, states should explore options to leverage child support enforcement as an opportunity to help families build savings for their children’s education.

62 Center for American Progress | One Strike and You’re Out What employers can do

Eliminating people with criminal records from the hiring pool will disqualify some of the most qualified candidates. Moreover, background checks can be costly and inaccurate. The following are steps employers can take to be model employers and give job candidates with criminal records a fair shot.

• Review background screening policies for conformance with the EEOC’s 2012 guidance on employer consideration of criminal records

• Ensure that hiring criteria are tailored to the risk actually presented by candidates with criminal records

• Adopt best practices identified by the EEOC’s guidance, such as considering individual circumstances that have bearing on a job applicant’s suitability and adopting a ban-the-box approach that postpones consideration of a criminal record until later in the hiring process

• Contract with commercial screeners that have procedures that ensure reliable results

63 Center for American Progress | One Strike and You’re Out What colleges and universities can do

Higher-education institutions should review their admissions policies and practices to evaluate whether they are overly broad or exclusionary. The following steps would go a long way toward removing barriers to higher education for students with criminal records:

• Remove criminal history questions from applications and delay asking about criminal history until after a conditional admission has been made.

• Follow New York’s lead by not considering arrests that did not lead to conviction and youthful infractions and only considering convictions if they indicate that the student poses a threat to public safety or if they have bearing on some aspect of the academic program or student responsibilities.

• Develop clear policies on consideration of criminal records and train admissions staff in how to consider them.

• Inform students who are denied admission due to their criminal records of the reason or reasons and offer them an opportunity to explain and provide further information.

64 Center for American Progress | One Strike and You’re Out Appendix B

The following list includes several resources related to the barriers to economic security and mobility that people with criminal records face.

General Margaret Colgate Love, Jenny Roberts, and Cecelia Klingele, Collateral Consequences of Criminal Convictions: Law, Policy and Practice, Michelle Alexander, The New Jim Crow: Mass 2012-2013 ed. Incarceration in the Age of Colorblindness. Report to the President, available at http://www. Marc Mauer and Meda Chesney-Lind, eds., whitehouse.gov/sites/default/files/ Invisible Punishment: The Collateral Conse- docs/053014_mbk_report.pdf. quences of Mass Imprisonment “National Inventory of the Collateral Consequences of “Collateral Damage: America’s Failure to Conviction,” available at http://www. Forgive or Forget in the War on Crime,” abacollateralconsequences.org/. available at http://www.nacdl.org/ restoration/roadmapreport/. “Extension of Current Estimates of Redemp- tion Times: Robustness Testing, Out-of-State “Fulfilling the Promise of My Brother’s Keeper,” Arrests, and Racial Differences,” available at available at http://www.piconetwork.org/ https://www.ncjrs.gov/app/publications/ tools-resources/my-brothers-keeper-report. abstract.aspx?ID=262174. Reentry Net, available at http://www.reentry.net/. Collateral Consequences Resource Center, available at http://ccresourcecenter.org/. “Trends in Corrections,” available at http:// sentencingproject.org/doc/publications/ “Reentry Council Snapshots and Additional inc_Trends_in_Corrections_Fact_sheet.pdf. Resources,” available at http://csgjusticecenter.org/nrrc/projects/firc/snapshots/.

“Reentry Mythbusters,” available at http:// Employment csgjusticecenter.org/nrrc/projects/ mythbusters/. “Criminal Stigma, Race, Gender, and Employ- Letter to state attorneys general, available at ment: An Expanded Assessment of the http://csgjusticecenter.org/wp-content/ Consequences of Imprisonment for uploads/2014/02/Reentry_Council_AG_ Employment,” available at http://nicic.gov/ Letter.pdf. library/028063.

“What Works in Reentry Clearinghouse,” available at http://whatworks.csgjusticecenter.org.

65 Center for American Progress | One Strike and You’re Out “Enforcement Guidance on the Consideration available at http://sentencingproject.org/ of Arrest and Conviction Records in doc/publications/cc_A Lifetime of Employment Decisions Under Title VII of Punishment.pdf. the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.,” available at http:// www.eeoc.gov/laws/guidance/arrest_con- viction.cfm. Education

“What Job Applicants and Employees Should Know,” available at http://www.eeoc.gov/ “The Use of Criminal History Records in eeoc/publications/background_checks_em- College Admissions Reconsidered,” available ployees.cfm. at http://www.communityalternatives.org/ pdf/Reconsidered-criminal-hist-recs-in- “Background Checks: What Employers Need to college-admissions.pdf. Know,” available at http://www.eeoc.gov/ eeoc/publications/background_checks_em- Education from the Inside Out Coalition, available ployers.cfm. at http://www.eiocoalition.org/#home.

“Ban the Box: A Fair Chance for a Stronger Economy,” available at http://www.nelp.org/ page/content/banthebox/. Debt

“Best Practices Standards: The Proper Use of “Courts Are Not Revenue Centers,” available at Criminal Records in Hiring,” available at http://cosca.ncsc.org/~/media/Microsites/ http://www.lac.org/doc_library/lac/ Files/COSCA/Policy%20Papers/CourtsAre- publications/Best_Practices_Standards_-_ NotRevenueCenters-Final.ashx. The_Proper_Use_of_Criminal_Records_ in_Hiring.pdf. “Your Money, Your Goals,” available at http:// www.consumerfinance.gov/your-money- your-goals/. Housing “Criminal Justice Debt: A Barrier to Reentry,” available at http://www.brennancenter.org/ Letter to public housing authorities, available at publication/criminal-justice-debt-barrier- http://csgjusticecenter.org/documents/0000/ reentry. 1130/HUD_letter.pdf. “The Debt Penalty: Exposing the Financial Barriers to Offender Reintegration,” available at http://justicefellowship.org/sites/default/ Public assistance files/The%20Debt%20Penalty_John%20 Jay_August%202014.pdf. “‘Some Days Are Harder Than Hard’: Welfare Reform and Women With Drug Convictions “Building Debt While Doing Time: Child in Pennsylvania,” available at http://www. Support and Incarceration,” available at clasp.org/resources-and-publications/ https://peerta.acf.hhs.gov/uploadedFiles/ files/0167.pdf. BuildingDebt.pdf.

“Advocacy Toolkit: Opting Out of Federal Ban on “Child Support Toolkit & Training,” available at Food Stamps and TANF,” available at http:// http://www.acf.hhs.gov/programs/css/ www.lac.org/toolkits/TANF/TANF.htm. toolkit-training.

“A Lifetime of Punishment: The Impact of the Felony Drug Ban on Welfare Benefits,”

66 Center for American Progress | One Strike and You’re Out About the authors

Rebecca Vallas is the Associate Director of the Poverty to Prosperity Program at the Center for American Progress, where she plays a leading role in anti-poverty policy development and analysis, with a particular focus on strengthening our nation’s income security programs. Previously, she worked as the deputy director for government affairs at the National Organization of Social Security Claimants’ Representatives and as an attorney and policy advocate at Community Legal Services in Philadelphia, Pennsylvania.

Sharon Dietrich is the litigation director at Community Legal Services in Philadelphia, Pennsylvania, where she has represented low-income people individually and systemically in employment matters since 1987. Her work focuses on removing employment barriers, especially criminal records; preserving jobs; and helping workers access employment-related benefits. She is nationally known for work on unemployment insurance, criminal records as a barrier to employment, and anti-poverty strategies.

Acknowledgments

The authors wish to thank Greg Berman, Merf Elman, Maurice Emsellem, Jeremy Haile, Amy Hirsch, Christine Leonard, Marc Mauer, Amy Solomon, and Ram Subramanian. Additionally, the authors are enormously grateful to Tyler Cherry and Rachel West for their invaluable research support, as well as to Meghan Miller, Anne Paisley, and Lauren Vicary for their extremely helpful and patient editing.

67 Center for American Progress | One Strike and You’re Out Endnotes

1 The Department of Justice reports that 100.5 million Reinvestment State Assessment Report (Washington: Americans have state criminal history records on file. Urban Institute, January 2014), available at http://www. Some organizations, such as the National Employment urban.org/publications/412994.html. For more Law Project, or NELP, have contended that this figure information on the initiative, see Bureau of Justice may overestimate the number of people with criminal Administration, “What is JRI?”, available at https://www. records, as individuals may have records in multiple bja.gov/programs/justicereinvestment/what_is_jri.html states. NELP thus suggests reducing the DOJ figure by (last accessed November 2014). 30 percent, which with 2012 data yields an estimate of 70.3 million individuals with criminal records. However, 9 For more information on the Federal Interagency NELP concedes that this figure is almost certainly an Reentry Council, see Council of State Governments underestimation. For the DOJ data, see Bureau of Justice Center, “Federal Interagency Reentry Council,” Justice Statistics, Survey of State Criminal History available at http://csgjusticecenter.org/nrrc/projects/ Information Systems, 2012 (U.S. Department of Justice, firc/ (last accessed November 2014). 2014), available at https://www.ncjrs.gov/pdffiles1/bjs/ grants/244563.pdf. For a discussion of NELP’s 10 For more information on My Brother’s Keeper, see The methodology that yields a more conservative estimate White House, “My Brother’s Keeper,” available at http:// using 2008 data, see Michelle Natividad Rodriguez and www.whitehouse.gov/my-brothers-keeper (last Maurice Emsellem, “65 Million ‘Need Not Apply’: The accessed November 2014). Case For Reforming Criminal Background Checks For Employment” (New York: National Employment Law 11 The Sentencing Project, “Trends in U.S. Corrections” Project, 2011), available at http://www.nelp.org/page/-/ (2013), available at http://sentencingproject.org/doc/ SCLP/2011/65_Million_Need_Not_Apply.pdf?nocdn=1. publications/inc_Trends_in_Corrections_Fact_sheet.pdf.

2 Robert H. DeFina and Lance Hannon, “The Impact of 12 Ibid. Mass Incarceration on Poverty,” Crime and Delinquency 59 (4) (2013): 562–586, available at http://papers.ssrn. 13 Kearney and Harris, “Ten Facts About Crime and com/sol3/papers.cfm?abstract_id=1348049. Incarceration in the United States.”

3 Michelle Alexander, The New Jim Crow: Mass 14 Eisha Jain, “Arrests as Regulation,” Stanford Law Review Incarceration in the Age of Colorblindness (New York: The (forthcoming). See also Michael Pinard, “Collateral New Press: 2010). Consequences of Criminal Convictions: Confronting Issues of Race and Dignity,” New York University Law 4 Bruce Western, “The Impact of Incarceration on Wage Review 85 (2010): 457. Mobility and Inequality,” American Sociological Review 67 (2012): 526–546, available at http://scholar.harvard. 15 Robert Brame and others, “Cumulative Prevalence of edu/brucewestern/files/western_asr.pdf. Arrest From Ages 8 to 23,”Pediatrics 129 (1) (2012): 21–27, available at http://pediatrics.aappublications.org/ 5 John Schmitt and Kris Warner, “Ex-offenders and the content/early/2011/12/14/peds.2010-3710.abstract. Labor Market” (Washington: Center for Economic and Policy Research, 2010), available at http://www.cepr. 16 Robert Brame and others, “Demographic Patterns of net/documents/publications/ex-offenders-2010-11.pdf. Cumulative Arrest Prevalence by Ages 18 and 23,” Crime & Delinquency 60 (3) (2014): 471–486, available at 6 Melissa Kearney and Benjamin Harris, “Ten Facts About http://cad.sagepub.com/content/early/2013/12/18/ Crime and Incarceration in the United States” 0011128713514801.abstract. (Washington: The Hamilton Project, 2014), available at http://www.hamiltonproject.org/papers/ten_econom- 17 Gary Fields and John R. Emshwiller, “As Arrest Records ic_facts_about_crime_and_incarceration_in_the_unit- Rise, Americans Find Consequences Can Last a ed_states/. Lifetime,” The Wall Street Journal, August 18, 2014, available at http://online.wsj.com/articles/as-arrest- 7 Alfred Blumstein and Kiminori Nakamura find that the records-rise-americans-find-consequences-can-last-a- risk of recidivism drops sharply over time. Specifically, lifetime-1408415402. they find that the risk of recidivism for individuals who have a prior conviction for a property offense drops to 18 New York State Division of Criminal Justice Services, no different than the risk of arrest in the general “2009-2013 Dispositions of Adult Arrests, New York City population three to four years after the individual has Tables, Misdemeanors,” available at http://www. remained crime free. Likewise, they find that the risk of criminaljustice.ny.gov/crimnet/ojsa/dispos/nyc.pdf (last recidivism for individuals with a drug conviction is no accessed November 2014). different than that of the general population after four years. For people with multiple convictions, they 19 Steven Raphael and Michael A. Stoll, “Why Are So Many suggest a more conservative estimate of 10 years. See Americans in Prison?” In Raphael and Stoll, eds., Do Alfred Blumstein and Kiminori Nakamura, “Redemption Prisons Make Us Safer? The Benefits and Costs of the in the Presence of Widespread Criminal Background Prison Boom (New York: Russell Sage Foundation, 2009). Checks,” Criminology 47 (2) (2009): 331. 20 The Sentencing Project, “Trends in U.S. Corrections.” 8 The Justice Reinvestment Initiative is a public-private partnership between the Bureau of Justice Administration 21 Ibid. and The Pew Charitable Trusts. It provides technical assistance to participating states and localities in 22 Ibid. evaluating the drivers of mass incarceration and identifying and implementing changes to reduce their 23 Catherine Hanssens and others, “A Roadmap for prison populations while increasing public safety. Change” (New York: Center for Gender & Sexuality Law According to the Urban Institute, changes implement- at Columbia Law School, 2014), available at http://web. ed in 17 states as part of the Justice Reinvestment law.columbia.edu/sites/default/files/microsites/gender- Initiative could yield as much as $4.7 billion in savings sexuality/files/roadmap_for_change_full_report.pdf. over 10 years. Nancy G. LaVigne and others, Justice

68 Center for American Progress | One Strike and You’re Out 24 Kearney and Harris, “Ten Facts About Crime and Justice Statistics, Survey of State Criminal History Incarceration in the United States.” Information Systems, 2012. For a discussion of NELP’s methodology that yields a more conservative estimate 25 Ibid. using 2008 data, see Rodriguez and Emsellem, “65 Million ‘Need Not Apply’.” 26 Erik Ortiz, “Sesame Street introduces first-ever muppet with a parent in prison,” New York Daily News, June 19, 37 Society for Human Resource Management, 2013, available at http://www.nydailynews.com/ “Background Checking—The Use of Criminal entertainment/tv-movies/sesame-street-introduces- Background Checks in Hiring Decisions” (2012), p. 2, muppet-dad-jail-article-1.1376845. Sesame Workshop available at http://www.shrm.org/research/ also published a guide for families. See Sesame Street, surveyfindings/articles/pages/criminalbackground- “Little Children Big Challenges: Incarceration: A Guide check.aspx. Employers indicate that they conduct to Support Parents and Caregivers” (2013), available at background checks in hiring to avoid negligent hiring http://www.sesamestreet.org/cms_services/services?ac- claims, to enhance workplace safety, and to reduce tion=download&uid=784d4f44-425b-445a-842b- workplace theft, among other reasons. However, many 86b5088cbcc5. may use background screening simply to make quick and rough judgments in their applicant pools. See 27 Bryan Sykes and Becky Pettit, “Mass Incarceration, Scott H. Decker and others, “Criminal Stigma, Race, Family Complexity, and the Reproduction of Childhood Gender, and Employment: An Expanded Assessment of Disadvantage,” Annals of the American Academy of the Consequences of Imprisonment for Employment” Political and Social Science 654 (1) (2014): 127–149, (Washington: National Institute of Corrections, 2014), p. available at http://ann.sagepub.com/con- 52, available at http://nicic.gov/library/028063. tent/654/1/127.abstract. 38 Ronald Lewis, interview with author, Philadelphia, 28 Christopher Wildeman and Bruce Western, “Incarcera- Pennsylvania, November 24, 2014. tion in Fragile Families,” The Future of Children 20 (2) (2010): 157–177, available at http://prisonstudiespro- 39 Decker and others, “Criminal Stigma, Race, Gender, and ject.org/wp-content/uploads/2011/07/west_wild_in- Employment.” carcfragfam2010.pdf. 40 Ibid. 29 National Law Center on Homelessness and Poverty, “No Safe Place: The Criminalization of Homelessness in U.S. 41 Ibid., p. 54. Cities” (2014), available at http://www.nlchp.org/ documents/No_Safe_Place. 42 Ibid.

30 Ibid. 43 Sharon M. Dietrich, “EEOC’s Criminal Record Guidance One Year Later: Lessons from the Community” 31 Greg A. Greenberg and Robert A. Rosenheck, “Jail (Washington: National Institute of Corrections, 2013), Incarceration, Homelessness, and Mental Health: A available at http://nicic.gov/library/027679. See also National Study,” Psychiatric Services 59 (2) (2008): Decker and others, “Criminal Stigma, Race, Gender, and 170–177, available at http://pathprogram.samhsa.gov/ Employment,” p. 52; Fields and Emshwiller, “As Arrest ResourceFiles/Greenberg.pdf. Records Rise, Americans Find Consequences Can Last a Lifetime.” 32 Timothy Hughes and Doris James Wilson, “Reentry Trends in the United States” (Washington: Bureau of 44 Joan Petersilia, “When Prisoners Return to the Justice Statistics, 2002), available at bjs.ojp.usdoj.gov/ Community: Political, Economic and Social content/pub/pdf/reentry.pdf. Consequences,” Sentencing & Corrections (9) (2000): 3, available at https://www.ncjrs.gov/pdffiles1/nij/184253. 33 Paul Guerino, Paige M. Harrison, and William J. Sabol, pdf. “Prisoners in 2010” (Washington: Bureau of Justice Statistics, 2011), available at http://www.bjs.gov/ 45 Western, “Collateral Costs.” content/pub/pdf/p10.pdf; E. Ann Carson and Daniela Golinelli, “Prisoners in 2012: Trends in Admissions and 46 Ibid., p. 40, 48. Releases, 1991–2012” (Washington: Bureau of Justice Statistics, 2013), p. 4, Table 2, available at http://www. 47 Ibid., p. 56. bjs.gov/content/pub/pdf/p12tar9112.pdf. 48 Blumstein and Nakamura, “Redemption in the Presence 34 Todd D. Minton, “Jail Inmates at Midyear 2012 of Widespread Criminal Background Checks,” p. 331. - Statistical Tables” (Washington: Bureau of Justice Statistics, 2013), available at http://www.bjs.gov/ 49 Schmitt and Warner, “Ex-offenders and the Labor content/pub/pdf/jim12st.pdf. Market.”

35 Laura M. Maruschak and Thomas P. Bonczar, “Probation 50 See, for example, Economy League of Greater and Parole in the United States, 2012,” Bureau of Justice Philadelphia, “Economic Benefits of Employing Statistics (Revised April 2014), available at http://www. Formerly Incarcerated Individuals in Philadelphia” bjs.gov/content/pub/pdf/ppus12.pdf (2010), available at http://economyleague.org/files/ ExOffenders_-_Full_Report_FINAL_revised.pdf. 36 The Department of Justice reports that 100.5 million Americans have state criminal history records on file. 51 Focus group conducted in November 2013 by Program Some organizations, such as the National Employment of the District of Columbia for city-wide, community Law Project, or NELP, have contended that this figure listening study. Transcript on file with authors. may overestimate the number of people with criminal records, as individuals may have records in multiple 52 42 U.S.C. §2000e-2(k). states. NELP thus suggests reducing the DOJ figure by 30 percent, which with 2012 data yields an estimate of 53 See, for example, Green v. Missouri Pacific Railroad Co., 70.3 million individuals with criminal records. However, 523 F.2d 1290 (8th Cir. 1975), on appeal after remand, NELP concedes that this figure is almost certainly an 549 F.2d 1158 (8th Cir. 1977). underestimation. For the DOJ data, see Bureau of

69 Center for American Progress | One Strike and You’re Out 54 Equal Employment Opportunity Commission, “EEOC 71 Love and others, Collateral Consequences of Criminal Policy Statement on the Issue of Conviction Records Convictions. Under Title VII of the Civil Rights Act of 1964,” available at http://www.eeoc.gov/policy/docs/convict1.html (last 72 Ibid. “Reoffending” usually means a new conviction, but accessed November 2014). sometimes even an arrest will be disqualifying.

55 Equal Employment Opportunity Commission, 73 Ibid. “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions 74 The need for civil legal aid generally far outstrips Under Title VII of the Civil Rights Act of 1964, as amended, available resources. See Legal Services Corporation, 42 U.S.C. § 2000e et seq.” (2012), available at http:// “Documenting the Justice Gap in America: The Current www.eeoc.gov/laws/guidance/arrest_conviction.cfm. Unmet Civil Legal Needs of Low-income Americans” (2009), available at http://www.lsc.gov/sites/default/ 56 Ibid., p. 15. files/LSC/pdfs/documenting_the_justice_gap_in_ america_2009.pdf. Demand for expungements is no 57 Ibid., p. 18. exception. See, for example, Meyli Chapin and others, A Cost-Benefit Analysis of Expungements in Santa Clara 58 Office of Federal Contract Compliance Programs, County (Stanford, CA: Stanford Public Policy Program, “Directive 2013-02,” available at http://www.dol.gov/ 2013), p. 12, available at https://publicpolicy.stanford. ofccp/regs/compliance/directives/dir306.htm (last edu/publications/cost-benefit-analysis-criminal-record- accessed November, 2014). expungement-santa-clara-county. This source discusses a shortage of resources for expungements. 59 Employment and Training Administration, “Training and Employment Guidance Letter No. 31-11,” available 75 Ram Subramanian and Rebecka Moreno, “Relief in at http://wdr.doleta.gov/directives/corr_doc. Sight?: States Rethink the Collateral Consequences of cfm?DOCN=9230 (last accessed November 2014). Criminal Conviction, 2009-2014” (New York: Vera Institute of Justice, forthcoming), p. 13. 60 N.Y. Correct. Law §752. 76 Ibid. 61 18 P.S. §9125(a). 77 Love and others, Collateral Consequences of Criminal 62 These policies are colorblind because they do not Convictions. require a showing of disparate racial impact. See Margaret Love, Jenny Roberts, and Cecelia Klingele, 78 Ibid. Collateral Consequences of Criminal Convictions: Law, Policy and Practice, 2012-2013 ed. (Eagan, MN: Thomson 79 Madeline Neighly and Maurice Emsellem, “Wanted: West, 2013), p. §6:14. Accurate FBI Background Checks for Employment” (New York: National Employment Law Project, 2013), p. 63 Far too many employers continue to turn away job 8, available at http://www.nelp.org/page/-/SCLP/2013/ seekers with even the most minimal or distant Report-Wanted-Accurate-FBI-Background-Checks- connections to the criminal justice system. People with Employment.pdf?nocdn=1. criminal records, as well as employers, need to know that there are limits on employer discretion and 80 Ibid., pp. 9–10. remedies for violations. 81 Ibid., pp. 11–13. 64 My Brother’s Keeper Task Force, Report to the President (Executive Office of the President, 2014), available at 82 Bureau of Justice Statistics/SEARCH National Focus http://www.whitehouse.gov/sites/default/files/ Group, “Report of the BJS/SEARCH National Focus docs/053014_mbk_report.pdf. Group on Identity Theft Victimization and Criminal Record Repository Operations” (2005), available at 65 National Employment Law Project, “‘Ban the Box’ Is a http://www.search.org/files/pdf/NatFocusGrpIDTheft- Fair Chance for Workers with Records” (2014), available Vic.pdf. at http://www.nelp.org/page/-/SCLP/2014/ NELP-Fair-Chance-Factsheet-0914.pdf?nocdn=1. 83 The three companies referenced here are First Advantage, SterlingBackcheck, and HireRight. See Max 66 National Employment Law Project, “Seizing the ‘Ban the Mihelich, “Special Report: More ‘Background’ Noise,” Box’ Momentum to Advance a New Generation of Fair Workforce, September 11, 2014, available at http:// Chance Hiring Reforms” (2014), p. 4, available at http:// www.workforce.com/articles/20728-special-report- www.nelp.org/page/-/SCLP/2014/Seizing-Ban-the-Box- more-background-noise. Momentum-Advance-New-Generation-Fair-Chance- Hiring-Reforms.pdf?nocdn=1. 84 Persis S. Yu and Sharon M. Dietrich, “Broken Records: How Errors by Criminal Background Checking 67 Southern Coalition for Social Justice, “The Benefits of Companies Harm Workers and Businesses” (Washing- Ban the Box: A Case Study of Durham, NC” (2014), ton: National Consumer Law Center, 2012), pp. 15–29, available at http://www.southerncoalition.org/ available at https://www.nclc.org/issues/broken- wp-content/uploads/2014/10/BantheBox_WhitePa- records.html. per-2.pdf; National Employment Law Project, “Seizing the ‘Ban the Box’ Momentum to Advance a New 85 Ibid. Generation of Fair Chance Hiring Reforms.” 86 15 USC § 1681 et seq. 68 National Employment Law Project, “Seizing the ‘Ban the Box’ Momentum to Advance a New Generation of Fair 87 Name has been changed to protect privacy and Chance Hiring Reforms.” confidentiality. Interview with author, Philadelphia, Pennsylvania, November 12, 2014. 69 Ibid. 88 For congressional findings that support the Second 70 Brent Staples, “Target Bans the Box,” Taking Note, Chance Act, see 42 U.S.C. 17501 (b)(14). October 29, 2013, available at http://takingnote.blogs. nytimes.com/2013/10/29/target-bans-the-box/?_ php=true&_type=blogs&_r=1.

70 Center for American Progress | One Strike and You’re Out 89 Office of Public and Indian Housing, “‘One-Strike And 101 Elman and Reosti, “No Crystal Ball.” See also Marna You’re Out’ Screening and Eviction Guidelines for Public Miller and Irene Ngugi, “Impacts of Housing Supports: Housing Authorities (HAs),” Memorandum to state and Persons with Mental Illness and Ex-Offenders” (Olympia, area coordinators, public housing directors, and public WA: Washington State Institute for Public Policy, 2009). housing agencies, April 12, 1996, available at http://bit. ly/HUD_one_strike. 102 Elman and Reosti, “No Crystal Ball.”

90 119 U.S.C. 13663 & 1437n. 103 Oregon S.B. 91 was passed by the Oregon Legislature and signed into law by Gov. John Kitzhaber (D) in June 91 24 C.F.R. 960.204(a). 2013 and took effect on January 1, 2014. Oregon State Legislature, Oregon Legislative Information, 2013 92 24 C.F.R. 982.553. Regular Session, “S.B. 91,” available at https://olis.leg. state.or.us/liz/2013R1/Measures/Overview/SB91. 93 Shaun Donovan and Sandra B. Henriquez, Letter to PHA executive directors, June 17, 2011, available at http:// 104 San Francisco Police Code, Article 49, Sections csgjusticecenter.org/documents/0000/1130/HUD_let- 4901-4920 (enacted February 2014). ter.pdf. 105 The Fortune Society, Inc. v. Sandcastle Towers Housing 94 Ibid. Development Fund Corp. et. al., No. 1:14-cv-6410 (E.D.N.Y. filed October 2014); Mireya Navarro, “Lawsuit Says 95 David Baker, “HANO Adopts New Criminal Background Rental Complex in Queens Excludes Ex-Offenders,”The Policy,” Louisiana Weekly, May 28, 2013, available at New York Times, October 30, 2014, available at http:// http://www.louisianaweekly.com/hano-adopts-new- www.nytimes.com/2014/10/31/nyregion/lawsuit-says- criminal-background-policy/; Richard A. Webster, rental-complex-in-queens-excludes-ex-offenders.html. “HANO hires VERA to implement new criminal background check policy,” The Times-Picayune, April 17, 106 Some states provide inmates with a small sum of 2013, available at http://www.nola.com/politics/index. money—sometimes referred to as “release ssf/2013/04/hano_hires_vera_to_implement_n.html. funds”—upon their release from prison. A review of state policies found that, on average, release funds 96 Mireya Navarro, “Ban on Former Inmates in Public amount to just $53, which is not enough to cover a full Housing Is Eased,” The New York Times, November 14, day of living expenses if the individual needs 2013, available at http://www.nytimes. temporary lodging. See Douglas Evans, “The Debt com/2013/11/15/nyregion/ban-on-former-inmates-in- Penalty: Exposing the Financial Barriers to Offender public-housing-is-eased.html?_r=0. Reintegration” (New York: John Jay College of Criminal Justice, 2014). 97 David Thacher, “The Rise of Criminal Background Screening in Rental Housing,” Law & Social Inquiry 33 (1) 107 Personal Responsibility and Work Opportunity (2008): 5, 12. Single-family rental firms also commonly Reconciliation Act of 1996, H.R. 3734, 104th Cong. 2d screen tenants based on criminal history, and, in some sess. (Library of Congress Thomas, 1996), available at cases, applicants can be turned away based on a http://thomas.loc.gov/cgi-bin/query/z?c104:H.R.3734. criminal conviction. See, for example, Invitation Homes ENR:. Rentals, “Resident Selection Criteria,” available at http:// invitationhomesrentals.com/Chicagorentalcrite- 108 The Sentencing Project, “A Lifetime of Punishment.” ria11.2012.pdf/ (last accessed November 2014). 109 Ibid. 98 McGregor Smyth, “What’s a Civil Lawyer to Do? Cross-Sector Collaboration in Re-entry: Building an 110 Ibid. Infrastructure for Change,” Clearinghouse Review 41 (2007): 245–253, available at http://www.reentry.net/ 111 Marc Mauer, Cathy Potler, and Richard Wolf, “Gender ny/search/item.158662; Rebekah Diller, Alicia Bannon, and Justice: Women, Drugs, and Sentencing Policy” and Mitali Nagrecha, “Criminal Justice Debt: A Barrier to (Washington: The Sentencing Project, 1999), available Reentry” (New York: Brennan Center for Justice, 2010), at http://www.sentencingproject.org/doc/publications/ available at http://www.brennancenter.org/ dp_genderandjustice.pdf. publication/criminal-justice-debt-barrier-reentry. 112 The Sentencing Project, “A Lifetime of Punishment.” 99 Merf Elman and Anna Reosti, “No Crystal Ball – The Lack of Predictive Value of a Criminal Record in Residential 113 Ibid. Tenant Screening and What It Means for Premises Liability in Washington” (forthcoming); Thacher, “The 114 Ibid.; Doris J. James and Lauren E. Glaze, “Mental Health Rise of Criminal Background Screening in Rental Problems of Prison and Jail Inmates” (Washington: Housing.” Bureau of Justice Statistics, 2006), available at http:// www.bjs.gov/content/pub/pdf/mhppji.pdf; Jennifer C. 100 Elman and Reosti, “No Crystal Ball.” One website reads, Karberg and Doris J. James, “Substance Dependence, “Jury awards and litigation settlements for crimes such Abuse, and Treatment of Jail Inmates, 2002” as assault and rape inside of a rental property can cost (Washington: Bureau of Justice Statistics, 2005), landlords hundreds of thousands of dollars, if not available at http://www.bjs.gov/content/pub/pdf/ millions.” See FindLaw, “FAQ -- Landlord Responsibilities: sdatji02.pdf; Caroline Wolf Harlow, “Prior Abuse Criminal Activities,” available at http://realestate.findlaw. Reported by Inmates and Probationers” (Washington: com/landlord-tenant-law/faq-landlord-responsibili- Bureau of Justice Statistics, 1999), available at http:// ties-criminal-activities.html#sthash.7TjI8rVM.E43VBxgM. www.bjs.gov/content/pub/pdf/parip.pdf. dpuf (last accessed November 2014). Another site suggests that landlords can reduce their liability for 115 See Judy Solomon, “The Truth About Health Reform’s criminal attacks by “carefully screening possible tenants.” Medicaid Expansion and Inmates Leaving Jail” See LegalMatch, “Landlord Liability for Criminal Acts,” (Washington: Center on Budget and Policy Priorities, available at http://www.legalmatch.com/law-library/ 2014), available at http://www.cbpp.org/files/6-25- article/landlord-liability-for-criminal-activity.html (last 14health.pdf. accessed November 2014). See also Heidi Lee Cain, “Housing Our Criminals: Finding Housing for the Ex-Offender in the Twenty-First Century,”Golden Gate Law Review 33 (131) (2003): 149–150.

71 Center for American Progress | One Strike and You’re Out 116 Individuals with felony drug convictions remain subject 127 Ibid. to the ban if they are convicted of a subsequent misdemeanor or felony drug offense within one year of 128 Government Accountability Office, “Bureau of Prisons: their conviction or if they are convicted of two Growing Inmate Crowding Negatively Affects Inmates, subsequent felony drug offenses. See Missouri S.B. 680, Staff, and Infrastructure,” GAO-12-743, Report to Section 208.247 (Regular Session, 2014); Arthur Congressional Requesters, September 2012, available Delaney, “States Undo Food Stamp Felon Bans,” at http://www.gao.gov/assets/650/648123.pdf. HuffPost Politics, June 23, 2014, available at http:// www.huffingtonpost.com/2014/06/23/food- 129 Sarah Rosenberg, “Restoring Pell Grants to Prisoners: stamps_n_5515159.html. Great Policy, Bad Politics,” The Quick & the Ed, November 5, 2012, available at http://www. 117 Missouri S.B. 680. quickanded.com/2012/11/restoring-pell-grants-to- prisoners-great-policy-bad-politics.html/. 118 For a detailed discussion of the rollout of prerelease Medicaid application procedures in Oregon, see 130 The 1998 amendments provided that students convicted Kamala Mallik-Kane and others, “Prison Inmates’ of possession of a controlled substance would be Prerelease Application for Medicaid: Take-up Rates in ineligible for federal financial aid for one year following Oregon” (Washington: Urban Institute, 2014), available their first offense, for two years following their second at http://www.urban.org/UploadedPDF/413199-prison- offense, and indefinitely following their third offense. inmates-prerelease.pdf. Students convicted of sale of a controlled substance would be ineligible for two years following their first 119 For the letter to state Medicaid directors, see Glenn offense and indefinitely following their second offense. A Stanton, Letter to state Medicaid directors, May 25, student whose aid was suspended under this policy 2004, available at http://www.medicaid.gov/ could regain eligibility for aid by completing an Medicaid-CHIP-Program-Information/By-Topics/ approved drug treatment program and passing two Long-Term-Services-and-Supports/Community-Living/ unannounced drug tests. See 1998 Amendments to the Downloads/Ending-Chronic-Homelessness-SMD-Letter. Higher Education Act of 1965, Public Law 105-244, 105th pdf. For more information on how states can leverage Cong. 2d sess. available at http://www2.ed.gov/policy/ suspension of Medicaid for inmates, see Council of highered/leg/hea98/sec483.html 105th Congress, 2nd State Governments Justice Center, “Medicaid and Session, 1998/ (Government Printing Office: 1998), Financing Health Care for Individuals Involved with the available at http://www.gpo.gov/fdsys/pkg/ Criminal Justice System” (2013), available at http:// PLAW-105publ244/pdf/PLAW-105publ244.pdf. csgjusticecenter.org/wp-content/uploads/2013/12/ ACA-Medicaid-Expansion-Policy-Brief.pdf. 131 Students for Sensible Drug Policy, “Harmful Drug Law Hits Home: How Many College Students In Each State Lost 120 Council of State Governments Justice Center, “Medicaid Financial Aid Due to Drug Convictions?” (2006), available and Financing Health Care for Individuals Involved with at http://ssdp.org/assets/2013/05/State-By-State-Impact- the Criminal Justice System.” of-the-Aid-Elimination-Penalty.pdf.

121 Caroline Wolf Harlow, “Education and Correctional 132 Section 8021(c) of Public Law 109-171 amended the Populations” (Washington: Bureau of Justice Statistics, Higher Education Act to ban only students convicted of 2003), available at http://www.bjs.gov/content/pub/ drug offenses while receiving aid. Under current law, pdf/ecp.pdf. students are ineligible for federal financial aid for one year following their first offense, for two years following 122 Ibid. their second offense, and indefinitely following their third offense. Students convicted of sale of a controlled 123 Elizabeth Greenberg, Eric Dunleavy, and Mark Kutner, substance are ineligible for two years following their “Literacy Behind Bars: Results From the 2003 National first offense and indefinitely following their second Assessment of Adult Literacy Prison Survey” offense. A student whose aid is suspended under this (Washington: National Center for Education Statistics, policy may regain eligibility for aid by completing an 2007), available at http://nces.ed.gov/ approved drug treatment program and passing two pubs2007/2007473_1.pdf. unannounced drug tests. See Office of National Drug Control Policy, FAFSA Facts (U.S. Department of 124 Rebecca Vallas, Melissa Boteach, and Shawn Fremstad, Education), available at http://www.whitehouse.gov/ “Time for a 21st Century Social Contract,” Center for sites/default/files/ondcp/recovery/fafsa.pdf (last American Progress, August 11, 2014, available at accessed November 2014); Center for Community https://www.americanprogress.org/issues/poverty/ Alternatives, “A Guide for Attorneys Representing news/2014/08/11/95391/time-for-a-21st-century- College Applicants and Students During and After social-contract-3/; Adam Looney and Michael Criminal Proceedings” (2013), available at http://www. Greenstone, “What Is Happening to America’s communityalternatives.org/pdf/publications/ Less-Skilled Workers? The Importance of Education and Criminal-History-Screening-in-College-Admissions- Training in Today’s Economy” (Washington: The AttorneyGuide-CCA-1-2013.pdf. Hamilton Project, 2011), available at http://www. hamiltonproject.org/papers/what_is_happening_to_ 133 Students may still be asked about criminal history if they americas_less-skilled_workers_the_importance_of_e/. filled out a FAFSA in the past and answered “yes” to the criminal history questions. Amy Solomon, interview with 125 In 2013, weekly earnings for the median high school author, Washington, D.C., September 25, 2014. graduate were $651, compared with median earnings of $1,108 for a college graduate. See Bureau of Labor 134 Internal Revenue Service, “American Opportunity Tax Statistics, “Earnings and unemployment rates by Credit: Questions and Answers,” available at http:// educational attainment,” available at http://www.bls.gov/ www.irs.gov/uac/American-Opportunity-Tax-Credit:- emp/ep_table_001.htm (last accessed November 2014). Questions-and-Answers (last accessed November 2014); Rebecca Vallas, Melissa Boteach, and Rachel 126 Lois M. Davis and others, “Evaluating the Effectiveness West, “Harnessing the EITC and Other Tax Credits to of Correctional Education” (Santa Monica, CA: RAND Boost Financial Stability and Economic Mobility” Corporation, 2013), available at https://www.bja.gov/ (Washington: Center for American Progress, 2014), Publications/RAND_Correctional-Education-Meta- available at http://cdn.americanprogress.org/ Analysis.pdf. wp-content/uploads/2014/10/EITC-report10.8.pdf.

72 Center for American Progress | One Strike and You’re Out 135 Michael F. Lovenheim and Emily G. Owens, “Does 153 Alexes Harris, Heather Evans, and Katherine Beckett, Federal Financial Aid Affect College Enrollment?” “Drawing Blood from Stones: Legal Debt and Social (Ithaca, NY: Cornell University, 2012), available at http:// Inequality in the Contemporary United States,” www.human.cornell.edu/pam/people/upload/ American Journal of Sociology 115 (6) (2010): 1753–1799, Finaid-2-22-2012.pdf. available at http://faculty.washington.edu/kbeckett/ articles/AJS.pdf. 136 Human Rights Watch, “Decades of Disparity: Drug Arrests and Race in the United States” (2009), available 154 Special Commission to Study the Feasibility of at http://www.hrw.org/en/node/81110/. Establishing Inmate Fees, “Inmate Fees as a Source of Revenue: Review of Challenges” (2011), available at 137 Vera Institute of Justice, “Pathways from Prison to http://www.mass.gov/eopss/docs/eops/inmate-fee- Postsecondary Education Project” (2014), available at final-7-1-11.pdf;.Vallas and Patel, “Sentenced to a Life of http://www.vera.org/sites/default/files/overview- Criminal Debt.” pathways-v3.pdf. 155 Supreme Court of Pennsylvania, “The Reform Initiative: 138 Center for Community Alternatives, “The Use of First Judicial District Criminal Courts, Commonwealth Criminal History Records in College Admissions of Pennsylvania, Interim Report” (2011), available at Reconsidered.” http://www.courts.phila.gov/pdf/report/ri/ The-Reform-Initiative-Interim-Report.pdf. 139 Ariel Kaminer, “3 New York Colleges to Drop Crime Queries for Applicants,” The New York Times, October 26, 156 Sharon Dietrich and Rebecca Vallas, “First Judicial 2014, available at http://www.nytimes.com/2014/10/ District’s Collection of Legal Financial Obligations Has 27/nyregion/three-new-york-colleges-will-omit-crimi- Caused Suffering and Hardship Among Philadelphia’s nal-record-question-for-applicants.html. Poorest Residents” (Philadelphia, PA: Community Legal Services, 2011), available at http://clsphila.org/ 140 Ibid. learn-about-issues/first-judicial-district’s-collection- legal-financial-obligations-has-caused. 141 Carl Reynolds and Jeff Hall, “Courts Are Not Revenue Centers” (Williamsburg, VA: Conference of State Court 157 Daniel Denvir, “Philly Courts Rein In Debt-Collection Administrators, 2012), available at http://cosca.ncsc. Campaign,” Philadelphia CityPaper, October 9, 2014, org/~/media/Microsites/Files/COSCA/Policy%20Papers/ available at http://citypaper.net/news/philly-courts- CourtsAreNotRevenueCenters-Final.ashx. reign-in-debt-collection-campaign/.

142 Mike Maciag, “Skyrocketing Court Fines Are Major 158 Wash. Rev. Code 10.82.090, 4.56.110(4), 19.52.020 Revenue Generator for Ferguson,” Governing, August (2011); Vallas and Patel, “Sentenced to a Life of Criminal 22, 2014, available at http://www.governing.com/ Debt.” topics/public-justice-safety/gov-ferguson-missouri- court-fines-budget.html. 159 Vallas and Patel, “Sentenced to a Life of Criminal Debt.”

143 Diller, Bannon, and Nagrecha, “Criminal Justice Debt”; 160 Ibid. See also Tina Rosenberg, “Paying for Their Crimes, Rebecca Vallas and Roopal Patel, “Sentenced to a Life of Again,” Opinionator, June 6, 2011, available at http:// Criminal Debt: A Barrier to Reentry and Climbing out of opinionator.blogs.nytimes.com/2011/06/06/ Pover ty,” Clearinghouse Review 46 (3–4) (2012): 131–141, paying-for-their-crimes-again/?_r=0. available at http://povertylaw.org/sites/default/files/ files/webinars/criminaldebt/chr_vallas.pdf. 161 Lauren Glaze and Laura Maruschak, “Parents in Prison and Their Minor Children” (Washington: Bureau of 144 For example, in Pennsylvania, the courts frequently Justice Statistics, 2008), available at http://www.bjs. refuse to perform the final steps of an expungement— gov/content/pub/pdf/pptmc.pdf. the actual removal of the notations from an individual’s criminal history—if there is any money owed on 162 Jessica Pearson, “Building Debt While Doing Time: Child criminal debts, even for cases other than the one for Support and Incarceration,” Judges Journal 43 (1) (2004): which expungement is being sought. 5–12, available at https://peerta.acf.hhs.gov/ uploadedFiles/BuildingDebt.pdf. 145 Diller, Bannon, and Nagrecha, “Criminal Justice Debt”; Vallas and Patel, “Sentenced to a Life of Criminal Debt.” 163 Ibid.

146 See American Civil Liberties Union, “In for a Penny: The 164 Ibid. Rise of America’s New Debtor’s Prisons” (2010), available at https://www.aclu.org/prisoners-rights-racial-justice/ 165 Jeremy Travis, Elizabeth Cincotta McBride, and Amy penny-rise-americas-new-debtors-prisons. Solomon, “Families Left Behind: The Hidden Costs of Incarceration and Reentry” (Washington: Urban 147 U.S.C. §§ 523(a)(19)(B)(iii). Institute, 2003), available at http://www.urban.org/ UploadedPDF/310882_families_left_behind.pdf. 148 See, for example, 42 PA Cons. Stat. 9728 (2012). 166 For more information on how failure to pay child 149 Diller, Bannon, and Nagrecha, “Criminal Justice Debt”; support can result in incarceration, see Office of Child Vallas and Patel, “Sentenced to a Life of Criminal Debt.” Support Enforcement, Turner v. Rogers Guidance (U.S. Department of Health and Human Services, 2012), 150 Diller, Bannon, and Nagrecha, “Criminal Justice Debt.” available at http://www.acf.hhs.gov/programs/css/ resource/turner-v-rogers-guidance. 151 Ibid. 167 Administration for Children and Families, Section 1115 152 Rebekah Diller, “The Hidden Costs of Florida’s Criminal Demonstration Grants--Projects in Support of the Prisoner Justice Fees” (New York: Brennan Center for Justice, Reentry Initiative (U.S. Department of Health and 2010), available at http://www.brennancenter.org/sites/ Human Services, 2009), available at http://www. default/files/legacy/Justice/FloridaF&F.pdf. indianahelpers.com/Newsletters_Flyers/HHS- 2009-ACF-OCSE-FD-0013.pdf.

73 Center for American Progress | One Strike and You’re Out 168 Travis, McBride, and Solomon, “Families Left Behind.” 184 The Equal Employment Opportunity Commission has issued guidance of this sort for federal employees but 169 See Amy E. Hirsch and others, “Every Door Closed: not federal job applicants. Equal Employment Barriers Facing Parents With Criminal Records” Opportunity Commission, “Preserving Access to the (Washington and Philadelphia, PA: Center for Law and Legal System: A Practical Guide to Providing Employees Social Policy and Community Legal Services, 2002), with Adequate Information about Their Rights under available at http://www.clasp.org/resources-and-publi- Federal Equal Employment Opportunity (EEO) Laws cations/files/every_door_closed.pdf. and Regulations” (2014), available at http://www.eeoc. gov/federal/preserving_access.cfm. 170 See, for example, Office of Child Support Enforcement, Managing Child Support Arrears (U.S. Department of 185 See National Employment Law Project, A Scorecard on Health and Human Services, 2013), available at http:// the Post-9/11 Port Worker Background Checks: Model www.acf.hhs.gov/programs/css/resource/managing- Worker Protections Provide a Lifeline for People of Color, child-support-arrears. While Major TSA Delays Leave Thousands Jobless During the Recession (New York: July 2009), available at http:// 171 See, for example, William Elliott, Hyun-a Song, and www.nelp.org/page/-/SCLP/PortWorkerBackground- Ilsung Nam, “Small-dollar children’s savings accounts Checks.pdf?nocdn=1 and children’s college outcomes by income level,” Children and Youth Services Review 35 (3) (2013): 186 The REDEEM Act, introduced by Sen. Cory Booker (D-NJ) 572–585; William Elliott and Sondra Beverly, “Staying on and Sen. Rand Paul (R-KY), would, among other things, Course: The Effects of Savings and Assets on the create a federal expungement mechanism. S. 2567, College Progress of Young Adults,” American Journal of 113th Congress, 2d. Sess. (2014), available at https:// Education 117 (3) (2011): 343–374; William Elliott and www.congress.gov/bill/113th-congress/senate- Sondra Beverly, “The Role of Savings and Wealth in bill/2567. Reducing ‘Wilt’ between Expectations and College Attendance,” Journal of Children and Poverty 17 (2) 187 Ind. Code 35-38-9-1 et seq. (2011): 165–185. 188 For more information on problem-solving courts and 172 Raise Texas, “Child Support for College (CS4C),” available other diversionary models, see Greg Berman and John at http://raisetexas.org/childsupportforcollegeinitia- Feinblatt, Good Courts: The Case for Problem Solving tive/ (last accessed November 2014). Justice (New York: The New Press, 2013). See also Greg Berman, Reducing Crime, Reducing Incarceration (New 173 Ibid. Orleans, LA: Quid Pro Quo Books, 2014).

174 Kansas Department of Children and Families, “Child 189 Connecticut General Statutes § 54-142a. Support Savings Initiative Program Description” (2014), available at http://www.dcf.ks.gov/services/CSS/ 190 Arkansas provides a model here, requiring expunge- Documents/CSSIProgramDescription.pdf. ments of misdemeanors to be approved in the absence of “clear and convincing” evidence in opposition by the 175 Tina Griego, “Locking up parents for not paying child prosecution. Subramanian and Moreno, “Relief in support can be a modern-day ‘debtor’s prison,’” Sight?” at 18. Storylines, September 26, 2014, available at http:// www.washingtonpost.com/news/storyline/ 191 Rep. Robert Scott introduced the Fairness and Accuracy wp/2014/09/26/locking-up-parents-for-not-paying- in Employment Background Checks Act of 2013, H.R. child-support-can-be-a-modern-day-debtors-prison/. 2865, 113th Congress, 1st Sess.; Rep. Keith Ellison introduced the Accurate Background Check Act of 176 Ibid. 2013, H.R. 2999, 113th Congress, 1st Sess.; Sen. Cory Booker and Sen. Rand Paul introduced the REDEEM Act, 177 Ibid. S.B. 2567.

178 Ibid. 192 The Federal Reentry Agency Housing “Reentry Mythbuster” on public housing is extremely helpful and 179 Robert Gavin, “Lippman: Expunge non-violent clarifies public housing authorities’ obligations under convictions,” Times Union, February 11, 2014, available federal law. HUD’s letter to PHAs that urges them to at http://www.timesunion.com/local/article/ reform their overly restrictive admissions and eviction Lippman-Expunge-non-violent-convictions-5223958. policies regarding criminal records is similarly helpful. php. However, formal HUD guidance that sets forth clear standards governing landlord consideration of criminal 180 Lisa Jessie and Mary Tarleton, 2012 Census of history, as well as a model policy for PHAs, is needed. Governments: Employment Summary Report For the Reentry Mythbuster, see Council of State (Washington: U.S. Bureau of the Census, 2014), Governments Justice Center, “Reentry Mythbuster!”, available at http://www2.census.gov/govs/apes/2012_ available at http://csgjusticecenter.org/wp-content/ summary_report.pdf uploads/2012/12/Reentry_Council_Mythbuster_Hous- ing.pdf (last accessed November 2014). For the letter, 181 Devin Leonard, “The U.S. Postal Service Nears Collapse,” see Donovan and Henriquez, Letter to PHA executive Bloomberg Businessweek Magazine, May 26, 2011, directors. available at http://www.businessweek.com/magazine/ content/11_23/b4231060885070.htm 193 Another approach, taken by California, North Carolina and Oregon, for example, is to waive support payments 182 See PICO National Network, “Fulfilling the Promise of during the time a parent is incarcerated and then to My Brother’s Keeper” (2014), available at http://www. restore support payments to the pre-incarceration level piconetwork.org/tools-resources/document/ 60 days after release. These options are not optimal as My-Brothers-Keeper-Report-1.pdf; National they allow large debts to accumulate and require Employment Law Project, “Memorandum to the judicial action post-release to waive debts that accrued Domestic Policy Council” (2014). On file with authors. during the period of incarceration; however, they are preferable to no relief at all Pearson, “Building Debt 183 See National Employment Law Project, “Memorandum While Doing Time.” to the Domestic Policy Council.”

74 Center for American Progress | One Strike and You’re Out 194 Office of Child Support Enforcement, “State Child Support 202 See Department of Justice, Smart on Crime: Reforming Agencies with Programs to Ensure That Child Support the Criminal Justice System for the 21st Century (2013), Orders Reflect Current Earnings,” (2012), available at http:// available at http://www.justice.gov/sites/default/files/ www.acf.hhs.gov/programs/css/resource/state-child- ag/legacy/2013/08/12/smart-on-crime.pdf. support-agencies-with-programs-to-ensure-that-child- support (last accessed November 2014). 203 See Eric Holder, Letter to state attorneys general, April 18, 2011, available at http://csgjusticecenter.org/ 195 State policies vary tremendously, but many states do wp-content/uploads/2014/02/Reentry_Council_AG_ offer “debt compromise” under certain circumstances. A Letter.pdf. listing of states and their policies can be found at Office of Child Support Enforcement, “State Child Support 204 In 2009, the National Conference of Commissioners on Agencies with Debt Compromise Policies” (2012) http:// Uniform State Laws authorized the Uniform Collateral www.acf.hhs.gov/programs/css/resource/state-child- Consequences of Conviction Act, which urges states to support-agencies-with-debt-compromise-policies (last compile and inventory collateral consequences into a accessed November 2014). single document and to mitigate them where possible to support re-entry. See Subramanian and Moreno, 196 Residential re-entry centers, or RRCs—also known as “Relief in Sight.” “halfway houses”—offer a model for helping incarcerated individuals transition from prison to 205 Prominent examples include President Obama, Sen. re-entry. Prerelease inmates can serve out the final Patrick Leahy (D-VT), Rep. John Conyers Jr. (D-MI), Rep. months of their sentences at an RRC, while receiving Robert Scott (D-VA), Sen. Cory Booker (D-NJ), Rep. Paul employment services, substance abuse and mental Ryan (R-WI), Sen. John Cornyn (R-TX), Gov. Rick Perry health treatment if needed, and assistance in locating (R-TX), former Speaker of the House Newt Gingrich (R), housing to which they can move upon release from the and Americans for Tax Reform President Grover RRC. See Federal Bureau of Prisons, “About Our Facilities: Norquist. Completing the transition,” available at http://www.bop. gov/about/facilities/residential_reentry_management_ 206 Kasie Hunt, “Bill Clinton: Prison sentences to take center centers.jsp (last accessed November 2014). stage in 2016,” MSNBC, October 8, 2014, available at http://www.msnbc.com/msnbc/bill-clinton-prison- 197 Through good-time credit—also referred to as “sentenc- sentences-take-center-stage-2016. ing credits” or “good-conduct time”—federal inmates are able to earn up to 47 days off their sentences each 207 Newt Gingrich and Pat Nolan, “Prison reform: A smart year as a reward for good behavior. This policy way for states to save money and lives,” The Washington encourages rehabilitation, shortens sentences, and Post, January 7, 2011, available at http://www. saves taxpayer dollars. Good-time credit is especially washingtonpost.com/wp-dyn/content/arti- important because federal inmates are not eligible for cle/2011/01/06/AR2011010604386.html. parole. For more information on good-time credit, see Families Against Mandatory Minimums, “‘Good Time 208 Eric Holder, Remarks to the American Bar Association, Credit’ for Federal Prisoners,” available at http://famm. August 12, 2013, available at http://www.justice.gov/ org/projects/federal/us-congress/good-time-credit-for- opa/speech/attorney-general-eric-holder-delivers- federal-prisoners (last accessed November 2014). remarks-annual-meeting-american-bar-associations.

198 Office of Sen. Mike Lee, “Release: Lee and Durbin: 209 Amanda Terkel, “Cory Booker and Rand Paul Team Up On According to CBO, Smarter Sentencing Bill Would Criminal Justice Reform,” HuffPost Politics, July 8, 2014, Reduce Prison Costs by More than $4 Billion,” Press available at http://www.huffingtonpost.com/2014/07/08/ release, September 15, 2014, available at http://www. cory-booker-rand-paul_n_5566800.html. lee.senate.gov/public/index.cfm/press- releases?ID=73491e5d-ff48-45bf-b820-bc6711fc8e4e. 210 Grover Norquist, “Conservatives must police bottom line on criminal justice,” Orange County Register, 199 For more information on problem-solving courts and February 18, 2011, available at http://www.ocregister. other diversionary models, see Greg Berman and John com/articles/prison-288870-government-criminal.html. Feinblatt, Good Courts: The Case for Problem Solving Justice (New York: The New Press, 2013). See also Greg 211 Hunt, “Bill Clinton: Prison sentences to take center stage Berman, Reducing Crime, Reducing Incarceration (New in 2016.” Orleans, LA: Quid Pro Quo Books, 2014). 212 The White House, “The 2004 State of the Union Address: 200 For more information on NIBRS, see Federal Bureau of Complete Transcript of President Bush’s Speech to Investigation, “National Incident-Based Reporting Congress and the Nation,” Press release, January 20, System,” available at http://www.fbi.gov/about-us/cjis/ 2004, available at http://whitehouse.georgewbush.org/ ucr/nibrs (last accessed November 2014). news/2004/012004-SOTU.asp.

201 A ballot measure approved by California’s voters, 213 Michael Schrerer, “2012 Person of the Year: Barack Proposition 47, offers a model for how states can Obama, the President,” Time, December 19, 2012, dedicate the savings from criminal justice reforms to available at http://poy.time.com/2012/12/19/ other specific purposes. For a detailed discussion of person-of-the-year-barack-obama/5/. how Proposition 47 will accomplish this—and, more generally, how states can reinvest savings from reduced 214 Alex Seitz-Wald and Elahe Izadi, “Criminal Justice incarceration into more-productive investments—see Reform, Brought to You by CPAC,” National Journal, Michael Mitchell and Michael Leachman, “Changing March 7, 2014, available at http://www.nationaljournal. Priorities: State Criminal Justice Reforms and com/domesticpolicy/criminal-justice-reform-brought- Investments in Education” (Washington: Center on to-you-by-cpac-20140307. Budget and Policy Priorities, 2014), available at http:// www.cbpp.org/cms/?fa=view&id=4220. 215 National Employment Law Project, “Memorandum to the Domestic Policy Council.”

75 Center for American Progress | One Strike and You’re Out The Center for American Progress is a nonpartisan research and educational institute dedicated to promoting a strong, just, and free America that ensures opportunity for all. We believe that Americans are bound together by a common commitment to these values and we aspire to ensure that our national policies reflect these values. We work to find progressive and pragmatic solutions to significant domestic and international problems and develop policy proposals that foster a government that is “of the people, by the people, and for the people.”

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Success in Housing: How Much Does Criminal Background Matter?

A Research Project Initiated by Aeon, Beacon Interfaith Housing Collaborative, CommonBond Communities, and Project for Pride in Living (the Research Collaborative), Conducted in Partnership with Wilder Research

This study was made possible by the generous support of NeighborWorks America and the Otto Bremer Trust.

Author: Cael Warren

JANUARY 2019

Criminal Background and Wilder Research, January 2019 Housing Outcomes

Contents

Introduction ...... 1 Research collaborative ...... 2 Study population ...... 4 Housing outcomes ...... 10 Criminal background ...... 12 Caveats and limitations ...... 21 Conclusions and issues to consider ...... 23 Further research ...... 25 Appendix ...... 26 References ...... 37

Figures

1. Study population by housing provider ...... 4 2. Household demographics by criminal background ...... 7 3. Rental details and property characteristics by criminal background ...... 9 4. Housing outcomes ...... 11 5. Households with criminal convictions by type of offense ...... 12 6. Criminal convictions and counts by offense class and timeline ...... 14 7. Household characteristics significantly affect the likelihood of a negative housing outcome ...... 16 8. Most types of criminal background do not significantly increase the likelihood of negative housing outcomes...... 19 9. The impact of criminal background on housing outcomes fades over time...... 20

Criminal Background and Wilder Research, January 2019 Housing Outcomes

Introduction

The cycle of homelessness and incarceration is well-known in the affordable housing field and well-documented in the literature (Cusack & Montgomery, 2017). With the increased likelihood of criminal justice system involvement among people experiencing homelessness, and housing and employment systems that put ex-offenders at a disadvantage, disrupting this cycle requires stepping away from the norm in at least one of these systems.

Looking for an opportunity to disrupt this cycle, four of Minnesota’s nonprofit affordable housing developers came together under a shared goal: to clarify the understanding of how residents’ criminal backgrounds contribute to housing outcomes, and to share this understanding across their organizations and with the housing field as a whole. Staff at these organizations questioned the assumption among many property owners and managers that an applicant with a criminal background presents too great a risk or is unlikely to be successful in their housing. They wondered about potential bias held within standard housing application restrictions, and if a more data-driven approach to making decisions on restrictions pertaining to criminal backgrounds would create more opportunities for people to find suitable housing.

Knowing that housing stability is beneficial for individuals and communities, the four organizations joined forces (and data files) to support a quantitative analysis of the relationship between criminal history and success in housing. This summary report presents the key findings of the study.

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Research collaborative

In 2016, four nonprofit multifamily affordable housing providers in the Twin Cities area – Aeon, Beacon Interfaith Housing Collaborative, CommonBond Communities, and Project for Pride in Living – created a collaborative to engage in cross-agency research. Together, these four organizations own and manage more than 10,000 affordable apartment homes in the metropolitan area and western Wisconsin. The focus of the group was to examine the relationship between residents’ criminal histories and housing outcomes.

The Research Collaborative organizations began examining their resident selection criteria to ensure it was inclusive, data-driven, and did not perpetuate implicit biases found in community systems. To make informed adjustments to their criminal history selection criteria, they reviewed the existing literature and consulted with attorneys, aiming to understand the connection (if any) between an applicant’s criminal history and their potential housing success. After a largely unsuccessful search for existing literature, the organizations saw an opportunity to initiate and engage in this research to inform the affordable housing community and other stakeholders.

This research is important because a disproportionately high level of disadvantaged populations have criminal histories. Furthermore, research has found that individuals who have been incarcerated are at a significantly higher risk of becoming homeless, and individuals who are homeless are at a significantly higher risk of becoming incarcerated (National Health Care for the Homeless Council, 2013). The members of the collaborative recognize this disparity and hope this research will lead to increased accessibility to affordable apartment homes for those with the greatest barriers to housing stability.

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Aeon believes everyone deserves a home. Home is at the center of everything. With a home, people succeed, families thrive, and our region remains strong. At Aeon, we act boldly to create and preserve quality, affordable homes for those who need them most. Today nearly 8,500 residents have an affordable home with Aeon. Home changes everything. Learn more at aeon.org.

The vision of Beacon Interfaith Housing Collaborative is that all people have a home. We are a powerful collaborative of

congregations united in action to create homes and advance equitable housing. By leveraging our collective power, we develop affordable homes, shelter families, and work to impact housing policy. Our focus is on people who make less than $25,000 a year and those who are experiencing homelessness. Learn more at beaconinterfaith.org/.

At CommonBond Communities, we believe home is the foundation for everything in life. By integrating housing and services, we offer more than just a quality place to live—we’ve been providing homes and support services for those most in need since 1971. Our model has always been about supporting people in achieving their goals and building their best lives. Nearly five decades later, we serve more than 12,000 people every year. We’re a nonprofit developer, owner, and manager of affordable apartments and townhomes throughout 60 cities in Minnesota, Wisconsin and Iowa. Through high-quality housing and life-changing support services, we’re building stable homes, strong futures, and vibrant communities. Learn more at commonbond.org.

Project for Pride in Living (PPL) is a results-driven housing and job readiness organization. At PPL, we focus on two core drivers of poverty – unemployment and homelessness – and insist that every one of our programs deliver superior results. Last year alone, nearly 14,000 people moved into affordable housing, earned higher incomes, improved their academic skills, and gained economic independence with the help of PPL. Learn more at ppl-inc.org/.

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Study population

HIGHLIGHTS

 The study includes de-identified data from more than 10,500 households, including 15,000 individuals, who resided in one of the properties owned by the partner organizations sometime between March 2010 and June 2017.

 Nearly 3 in 10 households (28%) contain at least one adult with a prior criminal conviction. These households tend to be younger, with lower incomes and lower rent (but a slightly higher rent subsidy).

The study includes the de-identified records of more than 10,500 households, with over half of these households residing in properties owned by CommonBond Communities, nearly one-third in Aeon properties, and smaller subsets residing in Project for Pride in Living and Beacon Interfaith Housing Collaborative properties (Figure 1).

1. Study population by housing provider

3,070 Aeon 4,648

211 Beacon Households 223 Individuals 6,151 CommonBond 8,177

Project for 1,077 Pride in Living 2,096

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To be included in the study, a household had to meet all of the following criteria:

 Resided in properties owned by one of these four organizations at some point between March 2010 and June 20171

 Moved out during the study period (between March 2010 and June 2017), or remained housed with one of the four organizations as of June 2017 2

 Had complete data needed for the study, including demographics, criminal background, property information, and a move-out reason (if they moved out)

In this study, households with criminal backgrounds tend to have lower incomes and younger adults than households without criminal backgrounds.

Figure 2 presents a comparison of demographics and What is a criminal background? property characteristics between households with and without criminal backgrounds in this study. This For the purpose of this study, having a criminal background means having comparison illustrates the importance of controlling at least one criminal conviction (felony for other observable factors when analyzing the or non-traffic misdemeanor) on record impact of criminal background on housing outcomes, when the resident applied for housing. because the two populations differ in a number of What is a “household with a ways. While both groups are comprised largely of criminal background”? single-adult households, the adults in households The unit of analysis for this study is with criminal backgrounds tend to be significantly the household. Therefore, for this younger. For example, nearly three-quarters (73%) study, if any adult in a household of households with criminal backgrounds are single- has a criminal background, the adult households under the age of 65, and only 4 household is considered a household percent are single-adult households age 65+. In with a criminal background. contrast, among households without criminal backgrounds, 56 percent of households are single- Nearly 3 in 10 households adult households under age 65, while 16 percent are (28%) have a criminal single-adult households age 65+. Households without background. criminal backgrounds are also more likely to contain two or more adults (21%), compared to households with criminal backgrounds (16%).

1 Note that the requirement that study participants must have resided with one of the housing providers implies that the study population has already been narrowed to those households who were considered to be low enough risk for the housing providers to accept. The criteria for acceptance varies across providers, however, and the study represents a wide range of backgrounds. See Caveats and Limitations section for more detail. 2 The study includes all households that moved out during the study period, regardless of their length of stay. The study also includes households that remained housed with the housing provider at the end of the study period (June 2017), as long as they had resided with the housing provider for at least six months at that time.

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In addition, in households with criminal backgrounds, the gender balance is even (49% female, 51% male), while households without criminal backgrounds have a greater proportion of women (62% female, 38% male). Compared to the racial composition of residents without criminal backgrounds (33% white and 59% black), residents in households with criminal backgrounds are more likely to be white (42%) and less likely to be black (51%).

Households with no criminal backgrounds have an average annual household income of about $16,800, nearly $3,000 higher than the annual household income of households with criminal backgrounds.3

These differences indicate that we cannot determine the impact of criminal background on housing outcomes by simply comparing the probability of negative housing outcomes between households with and without criminal backgrounds. Instead, this study uses regression analysis, described in detail later in this report, to control for these population differences in order to isolate the impact of criminal background on housing outcomes.

3 It is important to note that these patterns represent associations, not causal relationships, and they do not imply that demographics affect the likelihood of criminal activity or convictions (this study does not analyze the determinants of criminal convictions).

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2. Household demographics by criminal background Households Households with criminal without criminal All background background households (N=2,969) (N=7,540) (N=10,509) Household size*** 1.4 1.5 1.4 Annual household income per person*** $11,091 $13,296 $12,673 Total household income*** $13,808 $16,805 $15,958 Household structure Single adult under 65, no children *** 73% 56% 61% Single adult age 65+, no children *** 4% 16% 13% 2+ adults, no children*** 13% 16% 16% Single adult with children 7% 7% 7% 2+ adults with children*** 3% 5% 4% Members of Members of households households with criminal without criminal Members of background background all households Characteristics of household members (N=4,009) (N=11,135) (N=15,144) Age Children age 0-17*** 12% 15% 14% Adults age 18-24*** 19% 22% 21% Adults age 25-54*** 53% 39% 43% Adults age 55-64 10% 9% 9% Adults age 65+*** 4% 14% 11% Average adult age*** 39 42 41 Race Black/African American*** 51% 59% 57% White*** 42% 33% 35% Asian/Pacific Islander*** 2% 4% 3% American Indian*** 3% 1% 2% Other** 2% 3% 3% Multiracial*** 1% 0.5% 1% Ethnicity Hispanic/Latino 4% 3% 3% Gender Female*** 49% 62% 59% Male*** 51% 38% 41% Note. Chi-square significance tests were conducted. Differences are significant at *p< 0.1, **p< .05, ***p< .01.

Criminal Background and 7 Wilder Research, January 2019 Housing Outcomes

Households with criminal backgrounds pay lower rent, receive higher subsidies, and don’t stay as long.

Figure 3 presents some details of the rental Statistical Significance transaction, along with the characteristics of the In this report, we draw particular attention properties and neighborhoods where study to findings that are statistically significant, participants reside. Households with criminal which refers to a difference that is backgrounds pay an average of $445 per month determined by statistical analysis to be “real” and more than likely not due to in rent (out of pocket), about $39 less than chance. P values are a statistical measure households without criminal backgrounds. that indicate the likelihood that a difference Households with criminal backgrounds receive an could be observed due to chance. For average of $345 per month in a rental subsidy, example, as shown in Figure 2, about $15 per month more than households without households with criminal backgrounds have significantly lower incomes than criminal backgrounds. However, the two groups those without criminal backgrounds, with are equally likely to receive a subsidy. p<0.01. This means there is less than a 1 percent chance that we would observe In addition to rental subsidies, many properties this pattern if there was no true difference in this study also have services available to help between these populations. residents maintain stable housing. The level of While statistical significance is informative, services available in a property ranges from 0 (no there is a difference between statistical services) to 3 (full supportive housing services). significance and practical significance. The average level of available services is very Note, for example, that households with criminal backgrounds have a significantly similar for households with and without criminal smaller average household size: 1.4 backgrounds; the average household from both people, compared to 1.5 in households groups lives in a property with a service level of 2.4 without criminal backgrounds (Figure 2). Though statistically significant, this small difference is arguably of little practical significance. In interpreting the results of this study, we encourage the reader to consider both the statistical and the practical significance of the findings.

4 In both groups, approximately half of the population resides in properties with level 3 services, which generally include staff on-site for several days per week, in-depth case management services, and programming in areas such as employment services, health and wellness, youth development, etc. About one-quarter of households live in properties with level 2 services, which include fewer days of staff on-site and more limited programming. Level 1 services are lighter-touch and focused on eviction prevention. About 15 percent of households in the study live in properties with level 1 services available.

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Households with criminal backgrounds tend to have shorter periods of residency (2.2 years compared to 3.2 years), and to live in smaller properties on average. Their homes tend to be located in neighborhoods with slightly higher poverty rates, higher mobility rates, and higher percentages of residents receiving SNAP food support.5

3. Rental details and property characteristics by criminal background

Households Households with criminal without criminal All background background households (N=2,969) (N=7,540) (N=10,509) Length of stay (years, average)a,*** 2.2 3.2 2.9 Monthly rent (average)b,*** $445 $484 $473 Monthly subsidy (average)b,** $345 $330 $334 Percent receiving any subsidyb 62% 62% 62% Property and neighborhood characteristics Available service level in propertyc 2.1 2.1 2.1 Number of units in property*** 76 123 110 Percent receiving SNAP 20% 18% 19% (neighborhood)d,*** Percent below poverty level 22% 20% 20% (neighborhood)d,*** Percent residing in same house now as 78% 80% 79% one year ago (neighborhood)d,*** a Length of stay refers to either the length of time between move-in and move-out (for households that moved out between March 2010 and June 2017) or to the length of time between move-in and June 2017 (the end of the study period). b Rent and subsidy data refer to the latest rent or subsidy amount on file (either the value at move-out or, for current residents, the value as of June 2017 when the study period ended). c The available service level is measured on a 4-point scale, ranging from 0 (no services) to 3 (full supportive housing services). d Based on 2012-2016 American Community Survey data for the zip code in which the property is located. Chi-square significance tests were conducted. Differences are significant at *p< 0.1, **p< .05, ***p< .01

5 Note that these differences are quite small, even though they are statistically significant. The reasons for these neighborhood-level differences are not certain, but given that residents generally choose the property to which they apply for housing, they are likely to result from self-selection. For example, higher-poverty neighborhoods likely contain lower-rent properties, which are more accessible for the lower incomes of households with criminal backgrounds. There is no indication that the housing providers play any deliberate role in this pattern.

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Housing outcomes

HIGHLIGHTS

 Fifty-one percent of households in the study had positive housing outcomes (including 39 percent who remained housed with the housing provider at the end of the study period).

 About 14 percent of housing outcomes are negative. These mostly result from lease violations (8%), leaving without notice (3%), and non-payment of rent (2%).

Table 4 shows the most common resident Housing Outcomes outcomes. Fifty-one percent of households in In this study, the nature of the housing the study had positive outcomes (including 39 outcome is defined based on the percent who remained housed with the housing resident’s reason for move-out. From the provider and had lived there for more than one resident’s perspective, a housing outcome may fall into three categories: year as of the end of the study period), while about 14 percent of households had negative - Positive: maintaining housing stability outcomes. Most observed negative outcomes were - Negative: losing or risking housing either lease violations for behavior (8%), leaving stability without notice (3%), and non-payment of rent - Neutral: move-out reason is (2%), three outcomes with clear negative inconclusive about housing stability implications for the housing provider as well as The Research Collaborative members the resident. Finally, 35 percent of move-outs have mission-driven motivation to were considered to be “neutral” because it is reduce negative outcomes for residents. This analysis focuses on negative not clear from the move-out reason (e.g., housing outcomes (as opposed to “relocation”) whether the resident maintained positive outcomes), however, because their housing stability upon move-out.6 the negative implications tend to apply to both the resident and the housing provider, allowing the study results to be more broadly applicable to the entire housing field and not only mission- driven organizations.

6 A neutral outcome indicates that the household’s move-out reason is inconclusive about housing stability. This does not include households without move-out reasons on file; households with missing move-out reasons were excluded from the study.

Criminal Background and 10 Wilder Research, January 2019 Housing Outcomes

4. Housing outcomes

N % Total negative (resident does not maintain housing stability) 1,444 14% Lease violation for behavior 850 8% Leave without notice 293 3% Non-payment of rent 217 2% Other negative move-out reason 84 <1% Total positive (resident maintains housing stability)a 5,355 51% Total neutral (move-out reason is inconclusive about housing stability)b 3,710 35% All outcomes 10,509 100% Note. A complete list of outcomes/move-out reasons can be found in the Appendix. a The most common positive outcomes are continuing successful residency of more than one year (39%) and moving for desired amenities (7%). b The most common uncertain outcomes are “relocation” (18%), health and wellness (6%), and continuing (short-term) successful residency between six months and one year (6%) (This is categorized "neutral" because the period of residency is considered too brief to indicate housing stability).

Criminal Background and 11 Wilder Research, January 2019 Housing Outcomes

Criminal background

HIGHLIGHTS

 One-quarter of households have at least one adult with one or more misdemeanor convictions on record. Six percent of households have at least one adult with a felony conviction.

 In households with criminal backgrounds, the most common convictions prior to move-in are property offenses, such as theft and burglary (37% of households) and crimes against public order, such as loitering and trespassing (36%).

The most common criminal offenses in residents’ backgrounds are property offenses such as theft and burglary (found in the records of 10 percent of households overall and in 37 percent of households that have at least one criminal conviction) and minor public order offenses often described as crimes of homelessness, such as trespassing, loitering, and spitting on the sidewalk (10 percent and 36 percent, respectively) (Figure 5).

Note that, because some types of offenses are standard disqualifiers for housing in most properties included in the study, and because others were too rarely represented in the available data, we were unable to analyze the impact of some offenses on housing outcomes. The following offenses are not included in this study: arson, major sex crimes, organized crime, extortion, racketeering, and blackmail.

5. Households with criminal convictions by type of offense % households with 1+ convictions Mean # convictions in Households category per adult with criminal Overall study (among households background population with 1+ convictions in (N=2,969) (N=10,509) the applicable category) Property offenses (e.g., theft, burglary) 36.9% 10.4% 2.5 Minor public order offenses (e.g., loitering, 36.0% 10.2% 2.1 trespassing) DUI/DWI or reckless driving 27.0% 7.6% 1.8 Serious traffic offenses (other than DUI) 26.6% 7.5% 2.1 Disorderly conduct 23.3% 6.6% 1.6 Alcohol-related offenses (other than DUI) 18.4% 5.2% 1.4 Fraud 17.4% 4.9% 1.9 Minor drug-related offenses 13.1% 3.7% 2.3 Assault 9.5% 2.7% 1.8

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5. Households with criminal convictions by type of offense (continued) % households with 1+ convictions Mean # convictions in Households category per adult with criminal Overall study (among households background population with 1+ convictions in (N=2,969) (N=10,509) the applicable category) Domestic violence 9.1% 2.6% 1.6 Other minor violence-related offenses 7.9% 2.2% 1.7 Other violent offenses 5.8% 1.6% 1.7 Marijuana possession 3.3% 0.9% 1.1 Prostitution 2.7% 0.8% 2.7 Major drug-related offenses 2.6% 0.7% 1.6 Any conviction 100.0% 28.3% 3.8

Also common are DUI/DWI/reckless driving (8 percent and 27 percent, respectively), other serious traffic offenses like driving with a suspended or revoked license (8 percent and 27 percent, respectively), and disorderly conduct (7 percent and 23 percent, respectively).

Households with convictions in prostitution, property offenses, and minor drug crimes tend to average more than two convictions (in that category) per adult, while the per-adult conviction counts are lower for marijuana possession and non-DUI alcohol-related offenses.

One-quarter of households in the study population (25%) have at least one misdemeanor conviction (non-traffic) on their record, while 6 percent of study households have at least one felony conviction (Figure 6). Because screening criteria are more accepting of convictions that occurred longer ago, rates of felony convictions are higher in the more distant past, with 4 percent of households having a felony on record more than 10 years prior to move-in, compared to only 1 percent with a felony on record in the 2 years prior to move-in. Rates of misdemeanor convictions are more consistent over time, though they, too, are highest in the most distant past.

Households with at least one conviction on record average about 3.5 convictions per adult per class (for example, households with at least one misdemeanor conviction will have an average of 3.5 misdemeanor convictions per adult).

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6. Criminal convictions and counts by offense class and timeline % households with 1+ convictions Mean # convictions Households in category per adult with criminal (among households background All households with 1+ convictions in (N=2,969) (N=10,509) the applicable category) Any conviction (non-traffic) 100% 28% 3.8 Felony <2 years prior to move-in 3% 1% 1.4 Felony 2-5 years prior to move-in 7% 2% 1.6 Felony 5-7 years prior to move-in 4% 1% 1.4 Felony 7-10 years prior to move-in 4% 1% 1.4 Felony 10+ years prior to move-in 15% 4% 2.7 Any felony 24% 7% 1.4 Misdemeanor <2 years prior to move-in 32% 9% 1.9 Misdemeanor 2-5 years prior to move-in 21% 6% 1.7 Misdemeanor 5-7 years prior to move-in 21% 6% 1.7 Misdemeanor 7-10 years prior to move-in 48% 14% 3.2 Misdemeanor 10+ years prior to move-in 22% 6% 3.4 Any misdemeanor (non-traffic) 86% 24% 3.5

For the purpose of this study, traffic misdemeanors are considered non-criminal. Unless otherwise specified, references to misdemeanors do not include traffic offenses.

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Factors determining housing outcomes: How much does criminal background matter?

HIGHLIGHTS

 Of 15 categories of criminal offenses, 11 show no evidence of a significant link to negative housing outcomes.  Our analysis suggests that the following criminal offenses may contribute to negative housing outcomes: property offenses, major drug offenses, fraud, and assault. The study’s data limitations (described in the Caveats and Limitations section) lead us to question the size and significance of their impact, but having convictions in these categories increases the probability of a negative housing outcome by 3 to 9 percentage points at most.  Criminal offenses that occurred more than 5 years prior to move-in have no significant effect on housing outcomes.  The effect of a criminal offense on a resident’s housing outcome declines rapidly over time; the impact of a misdemeanor becomes insignificant after 2 years, while felonies become insignificant after 5 years.  Household structure (number of adults and children) generally has a larger effect on housing outcomes than the household’s criminal history.

Household characteristics matter

In examining the role of criminal backgrounds in determining a household’s housing outcomes, recall that the populations with and without criminal backgrounds are not otherwise identical. As shown in Figure 2, households with criminal backgrounds tend to be younger, with lower incomes and fewer children than their neighbors with no records of criminal convictions. We also know that these populations differ in ways we cannot observe in our data; for example, rates of substance abuse conditions have been shown to be higher among those with criminal backgrounds (see Caveats and Limitations section below). Criminal backgrounds present barriers to employment as well. The goal of this study is to control for these confounding factors to the greatest extent possible, in order to isolate and identify any effect of one’s criminal history on their housing outcome. To accomplish this goal, we use regression analysis.

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Figure 7 illustrates the importance of What is regression analysis? Regression analysis is a statistical tool. We household factors (other than criminal input data on the relevant factors contributing history) in determining the likelihood of a to a household’s housing outcome and the negative housing outcome. Compared to statistical software exports a set of parameters one-adult households, the probability of a that tell us how much each factor contributes negative housing outcome is 8 percentage to the outcome when we hold all of the other factors constant. The regression output points lower for households with two or quantifies the relative contributions of a variety more adults (and no children), 15 of factors, including demographics, property percentage points lower for one-adult and neighborhood characteristics, services households with children, and 23 and supports, and details of one’s criminal percentage points lower for households background. The results show, for example, that when a household’s rent subsidy with two or more adults who have increases by $100, their likelihood of a negative children. move-out falls by 1 percentage point.

7. Household characteristics significantly affect the likelihood of a negative housing outcome Compared to single adults (under age 65) with no children, the likelihood of a negative housing outcome is reduced by:

In households with… 9 percentage points 2+ adults and no children 16 percentage points 1 adult and at least one child 24 percentage points 2+ adults and at least one child

The likelihood of a negative housing outcome is also reduced by:

1 percentage point for every $100 increase in monthly rental subsidy 1 percentage point for every $500 increase in monthly per-capita income Note. All differences shown are statistically significant at p< .01. The likelihood of a negative housing outcome is also reduced in older-single-adult households (age 65+) by 8 percentage points, compared to single-adult households under age 65.

The household’s financial circumstances also contribute significantly to their likelihood of a negative housing outcome. For every $100 increase in the monthly rental subsidy, the household’s probability of a negative housing outcome falls by 1 percentage point. The probability also falls by about 1 percentage point with every $500 increase in monthly per-capita income.

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The regression model also controlled for the household racial and gender composition. These were not statistically significant determinants of housing outcomes.

Most criminal offenses have little to no impact on housing outcomes.

When we examine each category of prior conviction based on a simple measure of whether or not it was How we compute the “base rate” present in a resident’s history, the regression results of negative housing outcomes Households with criminal show few categories of offenses that had a significant backgrounds are different in several effect on the housing outcome after controlling for important characteristics from those other factors.7 Most categories had no significant without. For example, they are, on impact on housing outcomes, including minor public average, younger and have lower order offenses, prostitution, alcohol-related offenses, incomes. To estimate how their prior offenses affect their likelihood of DUI/DWI, and a number of other categories. negative housing outcomes, it is important to compare them to Of the 15 categories of offenses considered, only 4 demographically comparable significantly increased the likelihood of negative households with no criminal housing outcomes. Figure 8 presents estimated rates histories. To do this, we computed of a negative housing outcome for households with the rate of negative outcomes for a population with their same at least one offense in each offense category. These demographic characteristics, minus rates are presented alongside a “base rate” of 17 the criminal conviction(s). For such a percent, which is the expected percentage of population, the rate of negative comparable households that would have a negative housing outcomes is 17 percent. housing outcome if they did not have a criminal history (see box on right).

7 Although this document presents only one set of regression results, we have carefully examined numerous alternate specifications to thoroughly confirm the null findings for most categories of criminal offenses.

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In households with at least one major drug-related Interpreting the results conviction, the probability of a negative housing Consider the following example to outcome is 9 percentage points higher than those illustrate the meaning of the estimated effects in Figures 8 and without a major drug-related conviction.8 Adding 9 9. Suppose a housing provider percentage points to the base rate of 17 percent, we find accepts 100 households that each that 26 percent of households with at least one major have at least one major drug-related drug conviction are expected to have a negative conviction on record. We would housing outcome. expect 74 of these households to have positive or neutral housing Similarly, we see a 6 percentage point increase in outcomes, while 26 would have negative housing outcomes. the probability of a negative housing outcome in Seventeen of the households would households with a history of property convictions, a 5 have negative housing outcomes percentage point increase in households with a history even if they had no criminal of assault, and a 4 percentage point increase in background (this is the “base rate” described above), while nine households with a history of fraud. households would have negative housing outcomes that are Please note that the observed impact of these criminal statistically linked to their history of offenses would be weakened if data were available to major drug-related convictions. include more factors in the regression analysis. Some critical factors, such as the resident’s housing history and any mental health or substance abuse conditions, could not be captured in the model. Because these factors tend to be correlated with both criminal backgrounds and negative housing outcomes, the regression model tends to “blame” the effects of these omitted factors on the criminal background instead. (See “Caveats and Limitations” section for more detail.) Our estimates therefore err on the side of over-estimating the impact of criminal background, and as a result, we can be most confident in results that suggest no significant effect of a given type of criminal history on a household’s housing outcome. The statistically significant results, on the other hand, may be driven in large part by the bias noted above, so we are less confident in those results.

8 Note that, as shown in Figure 5, major drug offenses were among the least common offenses in the study population. The estimated effect is therefore based on a relatively small set of households, suggesting that this result should be interpreted with some degree of caution. Relatedly, this estimated effect is statistically significant only at the level of p<0.1, a level sometimes considered to fall short of significance.

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8. Most types of criminal background do not significantly increase the likelihood of negative housing outcomes.

Base rate 17% Total risk

a b Major drug-related offenses +9% 27% c Property offenses (e.g., theft, burglary) +6% 23% b Assault +5% 22% d Fraud +4% 21% e Other violent offenses 4% 21%

Domestic violence 2% 20%

Prostitution 2% 20%

Disorderly conduct 2% 20%

Minor drug-related offenses 2% 19% Offenses that have no significant effect Other minor violence-related offenses 1% 18% on housing outcomes DUI/DWI or reckless driving 1% 18%

Minor public order offenses 0.5% 18%

Serious traffic offenses (other than DUI) 0.1% 17%

Alcohol-related offenses (other than DUI) -2% 16% Marijuana possession -4% 13%

Significantly increased risk Insignificantly increased risk Insignificantly decreased risk

Note. The Appendix contains details of the criminal offenses contained in each of the categories shown above. Impacts shown are the effect of the household containing at least one adult that has at least one conviction in the category. For example, a household with at least one adult with at least one assault conviction is 5 percentage points more likely to experience a negative housing outcome than an otherwise comparable household with no assault convictions. a Major drug crimes include drug trafficking and the sale, smuggling, manufacture, or distribution of any controlled substance other than marijuana. This includes unspecified controlled substances. It also includes all 1st or 2nd degree controlled substance offenses. b The estimated effects of major drug-related offenses and assault are statistically significant only at the level of p<0.1, a level sometimes considered to fall short of statistical significance. c Property offenses include theft, burglary, vandalism, and criminal damage to property. When we drilled down into the results to examine whether any particular type of crime was particularly influential, theft and shoplifting appeared to drive most of the effect of property offenses. d The “fraud” category includes identify theft, use of stolen checks, writing bad checks (when charged and convicted for this), counterfeiting, forgery, etc. There was no noticeable difference in impact among these different subgroups of offenses within the “fraud” category. e Although the magnitude of impact of Other Violent Offenses is similar to that of Fraud, its impact is not statistically significant because it is less common (so the statistical program is less confident in the significance of the impact).

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The increased probability of negative housing outcomes for those with criminal convictions fades over time. As shown in Figure 9, rates of negative housing outcomes are significantly higher among households with one or more felony or (non-traffic) misdemeanor conviction in the two years prior to move-in, compared to those with no criminal convictions during that time period. The link is strongest for recent felony convictions (associated with a 10 percentage point increase in probability of negative housing outcomes), whereas the probability increases by only 5-6 percentage points in households with a misdemeanor conviction in the two years prior to move-in or a felony conviction two to five years prior to move-in. Misdemeanors more than two years prior to move-in and felonies more than five years prior to move-in were not found to be significantly associated with greater likelihood of a negative housing outcomes.

9. The impact of criminal background on housing outcomes fades over time.

Base rate 17% Total risk

Within 2 years prior to move-in +5% 22% At least one 2-5 years prior to move-in 1% 18% misdemeanor 5-7 years prior to move-in 2% 20% 7+ years prior to move-in 0.4% 18% Offenses that have no significant effect Within 2 years prior to move-in +10% 27% on housing At least outcomes 2-5 years prior to move-in +6% 24% one felony 5-7 years prior to move-in 2% 19% 7+ years prior to move-in 2% 15%

Significantly increased risk Insignificantly increased risk Insignificantly decreased risk Note. Impacts shown are the effect of the household containing at least one adult that has at least one conviction in the time range. For example, a household with at least one adult with at least one misdemeanor conviction in the 2 years prior to move-in is 5 percentage points more likely to experience a negative housing outcome than an otherwise comparable household with no misdemeanor convictions during that time frame. In earlier iterations of this analysis, the “7+ years” groups were subdivided into 7-10 years, 10-15 years, and 15+ years. The three were combined after they were found to consistently show the same patterns of estimated magnitudes and statistical significance.

As noted above, these results refer to the impact of the household having at least one conviction in a given category, a very simple approach to examining a very complex issue. We also explored how the impact of criminal history varied based on the number of convictions in a given category, but the results of that analysis were difficult to generalize. For the most part, where we observed significant impacts in Figures 8 and 9 above, we see the strongest impact in the first conviction in a category or time frame, and a declining effect for each additional conviction in that category or time frame.

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Caveats and limitations

While these study results may be very valuable in informing criminal background screening criteria, it is important to recognize the limitations in the study data and the impacts of those limitations on what we observe in our results. These study limitations include the following:

 Although we attempt to control for all of the factors that contribute to success in housing in order to present an unobstructed view of the impact of one’s criminal background, our study results are limited by a handful of important omissions. We are unable to control for the resident’s employment status, education background, disability status, mental health or substance abuse diagnoses, or housing history before entering the housing managed by members of the collaborative. We are also unable to control for individualized factors related to the willingness of building management to take action or not take action related to infractions (i.e., tolerance or inequity in individual decision-making of building management). These factors have theoretical or empirically observed links to both criminal background and housing success (Malone 2009, Tsai & Rosenheck 2013).

– Impact of this limitation: Omitting these factors from the model tends to bias our results toward overstating the significance and magnitude of the negative impact of criminal background on housing success. Given this bias, we encourage caution in use of findings that identify a significant detrimental impact of criminal backgrounds. We are more confident in results that show little or no impact of criminal backgrounds on housing success, because these backgrounds have been consistently insignificant determinants of housing success despite the model’s bias toward greater significance.

 The study is, by definition, limited to residents who were accepted into housing. Given the subjectivity of the housing application process, we might expect that the accepted residents would be more likely to succeed. Those who are screened out will tend to be more severe offenders and/or residents with fewer resources. On the other hand, some programs may focus on residents with the greatest challenges, which would (at least partially) counteract the aforementioned selection effect.

– Impact of this limitation: For any type of offense that may be used as grounds for screening out, this study may represent the strongest tenants and exclude the ones with lowest likelihood of success. Targeted programs may reverse this effect to some extent, however, leading to uncertainty in the magnitude of the impact of this limitation.

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 Because some types of offenses are non-negotiable disqualifiers for housing in most or all properties included in the study, we cannot analyze the impact of these offenses on housing outcomes. Other offenses simply occur too rarely in the study population.

– Impact of this limitation: The following types of offenses are not represented in this study: arson, major sex crimes, organized crime, extortion, racketeering, and blackmail.

The caveats above are those with the greatest expected impact on the validity or applicability of the results. Additional caveats and limitations are listed in the Appendix.

Of the caveats considered, the first item (omitted variables) is expected to hold the most significant implications for the interpretation of the study findings. The second item may reduce the magnitude of this bias somewhat, but we conclude that the study results overall tend to overstate the magnitude and significance of the impact of criminal background on housing outcomes.

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Conclusions and issues to consider

The most meaningful and conclusive findings include:

 Most types of criminal offenses do not significantly increase a household’s likelihood of a negative housing outcome when other observable factors are held constant.

– Of 15 categories of criminal offenses, 11 showed no evidence of a significant impact on the likelihood of a negative housing outcome.

– Categories that show no evidence of a link to housing outcomes include: marijuana possession, other minor drug offenses, alcohol-related offenses (e.g., public consumption/open bottle), prostitution, and minor public order offenses, among others.

 The effect of a prior criminal offense on a resident’s housing outcome declines over time. The impact of a misdemeanor becomes insignificant after two years, while felonies become insignificant after five years.

In addition to the findings above, there were four types of criminal backgrounds that had a statistically significant effect on housing outcomes. Due to the study’s data limitations and their impact on the results (as described in the Caveats and Limitations above), we are less confident in these findings. However, they suggest that particular types of criminal backgrounds may increase the probability of a negative housing outcome by 10 percentage points at most (for a felony within two years prior to move-in). The other statistically significant effects are smaller, ranging from 3 to 9 percentage points.

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Consider the following example to illustrate the general implications of the statistically significant findings:

Suppose we have 200 households applying for housing, including 100 with no criminal background and 100 with at least one adult with a felony conviction within two years prior to move-in (the background with the largest observed effect). Aside from this one difference in criminal history, the two groups are otherwise identical in all of the ways we can measure. They share the demographic profile of the population used to compute the “base risk” discussed above. Of the 100 households with no criminal background, 17 households will experience a negative housing outcome. Of the 100 households with a history of at least one felony conviction in the two years prior to move-in, 27 will experience a negative housing outcome. For both groups, we are unable to determine which of the households will experience the negative housing outcomes.9 Because the housing provider accepts this relatively small additional risk of a negative housing outcome for these 100 households, 73 of these households will experience a positive or neutral housing outcome, and will remain housed with that housing provider for an average of 2.5 years. The other 27 households will be housed for an average of 1.5 years before experiencing a negative housing outcome. And all 100 households are given an opportunity to break the cycle of homelessness and incarceration.

It is possible, though not conclusive, that a housing provider may incur additional risk of negative housing outcomes by accepting applicants with certain types of criminal backgrounds. Even if these findings were conclusive, they would imply only a relatively small increase in risk to the housing provider, a risk that is arguably outweighed by the societal value of providing a home to these households for 1.5 to 2.5 years.

Most importantly, the study’s conclusive findings show that most types of criminal backgrounds do not significantly increase a tenant’s risk of experiencing a negative housing outcome. These results illustrate that a wide variety of factors contribute to housing outcomes, and they challenge some common misperceptions about the importance of criminal background in determining the probability of a negative housing outcome.

9 We have identified some factors that are associated with higher or lower risk, but these are generalizations; we cannot definitively pinpoint the households that will experience negative housing outcomes.

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Further research

The results of this study are quite informative, and they point to several opportunities for further research. If possible, future research should aim to incorporate data on the critical factors not available for this analysis (especially housing history, substance abuse and mental health conditions, and employment). Including these factors would allow us to understand to what extent criminal background acts as a proxy for other more influential factors. In addition, future research could further explore how the impact of one’s criminal background changes as the number of convictions increases (within a category or overall). Furthermore, as the study’s housing providers have been reviewing and amending their screening criteria in recent years, future research could explore the impact of these changes on the outcomes of interest, such as the rate of negative housing outcomes or the housing providers’ costs.

Finally, in order to better understand the opportunities for changes in screening criteria, it would be quite valuable to develop our knowledge of the outcomes of households that were not accepted into housing (those that could not be represented in this study). How many of these households find housing elsewhere, and how many are successful in that housing? What happens to households that are unable to find housing elsewhere? What costs does society incur to support these households as they experience homelessness, and how do those costs compare to the cost of the additional risk of negative housing outcomes if they were accepted into rental housing? Although such a study would be difficult to execute, it could bring a great deal more clarity around the costs and benefits (to society and to individual organizations) of different approaches to criminal background screening.

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Appendix

Methods

Study design

Wilder Research staff participated in several meetings with the Research Collaborative to understand the central goals of the study and identify the best use of available resources to meet these goals. The Research Collaborative met regularly throughout the study to provide input on each stage of the process.

Data gathering

Wilder Research staff worked with the members of the Research Collaborative to review the commonalities of available data across the four organizations. Together, we developed the specifications for the requested data from each organization, and the database administrators at each organization assembled data files containing records for past and current tenants that had resided in one of their properties at any point from March 2010 through June 2017.

The data files included the following:

 Demographics and rental information

 Criminal background data for each individual in the household

 Information about the property in which the resident lived Details of data-gathering for each type of data are covered below.

In order to maintain the anonymity of the residents included in the study, all resident records were de-identified by the housing providers’ staff prior to transferring data to Wilder. These files contained no identifying information; individuals were identified only by a unique ID to match records across files. Wilder staff provided technical assistance as needed to facilitate the merge of data. All data were transferred via Wilder’s encryption service and stored in a secure location on Wilder’s server, with access granted only to staff working on the project.

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Demographics and rental information

The study included a number of demographic characteristics, including race, gender, age, income, and household structure. It also included details of the resident’s rental relationship with the organization, including move-in and move-out dates, move-out reason, rent amount, and subsidy amount. As with the other data supplied by the housing providers for the study, the demographics and rental information data file was de-identified prior to being transferred to Wilder Research.

Criminal background data

Wilder and the Research Collaborative have worked together to develop detailed specifications for the data file to be requested from each of the organizations’ background check providers. After the organizations received their data files from the background check providers, the criminal background data files underwent an additional process to reduce the level of detail in the residents’ records. There was some concern that, given the lack of standardized text for the descriptions of criminal offenses, one could potentially search for and identify an individual based on the specific way that their offense is described (e.g. “cntrl sbs poss.. x3,” using the unique spelling and punctuation of a manually-entered offense description). We therefore developed the following procedure to code the offenses into categories prior to transferring the records to Wilder Research.

1. Each organization provided Wilder with a list of all criminal offense descriptions present in their criminal background data files. The file contained only one column (the offense descriptions), with no other information about the individual who committed the offense, the class or disposition of the charge, or the date the offense was committed.

2. Wilder coded these offense descriptions into approximately 120 sets of offenses.

3. Wilder developed a syntax file in R (an open-source statistics and data management software package) for the Research Collaborative members to use to open a criminal background data file, add in the offense code for each offense description, and remove the detailed offense description from the file. The syntax also removed the specific date of the offense (leaving only the month and year) and exported a criminal background data file that could be shared with Wilder Research without any risk of potential identifiability of the records contained within it.

4. Wilder provided this syntax file and detailed instructions to the housing providers, who had only to enter the file path for their criminal background file into the syntax, run the file, and verify that the details were indeed removed before sending the de- identified criminal background file to Wilder.

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While two of the three background check providers were able to supply records extending back to the beginning of their relationship with the organization, one background check provider only retains background check records for seven years. As a result, their background check file was limited to those who had lived in the organization’s properties for under 7 years, excluding the longest-term residents. To reduce the biasing effect of this issue, the organization’s staff retrieved the background check reports from the paper file for a sample of current residents whose background checks were run prior to 2010 and manually entered those records into the background data file.

Property information

In consultation with the Research Collaborative, Wilder developed a property information worksheet to be filled out by each organization, detailing various characteristics of each organization’s properties. These characteristics include the building’s age (or length of time in possession of the organization), zip code, number of units, and any program criteria for the building or units within the building. Each organization provided information about the service level available at each property, with service levels ranging from 0 (no services at all) to 3 (a very intensive level of services). Using this information, the model was able to represent the availability of these services, even though we were not able to fully analyze the impact of receiving these services.

Data merge and cleaning

In preparation for analysis, the data files from the four organizations were cleaned and merged. Because the partner organizations organize their files differently and store their data in different formats (e.g., some may record gender as “Female” while others may record it as “F”), the research team unified the variable formats across organizations to enable analysis across all participating organizations.

Because the outcome of interest (the housing outcome) is observed at the household level, all data were aggregated to the household level for analysis. Data cleaning, merging, aggregation, and analysis were completed using R, SPSS, and STATA.

Analysis

The details of the analysis are described in the “Full Regression Results” section below.

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Move-out reasons

A1. Full list of move-out reasons Blank N % Negative move-out reasons Lease violation(s) 850 8.1% Leave without notice 293 2.8% Non-payment of rent 217 2.1% Lack of affordability 59 0.6% Other negative 25 0.2% Total negative 1,444 13.7% Positive move-out reasons Continuing successful resident (>1yr)a 4,129 39.3% Desired amenities 780 7.4% Purchase of home 172 1.6% Moved to project-based housing or received tenant-based subsidy 154 1.5% No longer needs subsidy/services 56 0.5% Other positive 64 0.6% Total positive 5,355 51.0% Neutral move-out reasons Relocation 1,850 17.6% Health and Wellness 667 6.3% Short-term resident (180 to 364 days)b 666 6.3% Death 335 3.2% Change in household composition 117 1.1% Funding non-compliance 72 0.7% Other uncertain 3 0.0% Total neutral 3,710 35.3% Total 10,509 100.0% a resident that has remained housed for between six and 12 months is included in the study but their outcome is coded as neutral because the period of residency is considered too brief to indicate housing stability. Residents who have been housed for fewer than six months were excluded from the study unless they moved out (and therefore had a move-out reason on file).

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A2. Descriptions of criminal offense categories Category Examples of contents Property offenses Theft, burglary, larceny, criminal damage, vandalism, tampering, receiving stolen property, wrongfully obtaining public assistance Minor public order offenses Loitering, panhandling, public urination, littering, failure to pay transit fare, disobeying a police officer, obstruction of justice, giving false identification to police DUI/DWI or reckless driving DUI, DWI, careless driving, reckless driving Serious traffic offenses (other than DUI) Driving with revoked or suspended license, hit and run Disorderly conduct Disorderly conduct, affray (public fighting), fighting, menacing/threatening, reckless endangerment, terroristic threats, disorderly conduct, intimidation, intent to cause pain or injury Alcohol-related offenses Consume liquor/beer in public, open bottle (including open bottle in vehicle), (other than DUI) public intoxication, underage drinking Fraud Credit card abuse/fraud, identity theft, insurance fraud, obtain by false pretenses, embezzlement, financial exploitation of vulnerable adult, counterfeiting, computer-related crimes Minor drug-related offenses Possession of any drug other than marijuana, sale of marijuana (but not other drugs), 3rd-5th degree drug charge, or other drug charge where possession/sale is unspecified Domestic violence Domestic battery/assault, abuse, abandonment, child neglect, endangering a child, injury to child or elderly, malicious punishment of a child Other minor violence- Weapon possession/permits, harassment, vehicular injury; other offenses related offenses where threat is expressed or accident occurs but the offense description includes no deliberate act of physical violence) Other violent offenses Violent crimes other than assault: homicide, robbery, kidnapping, DUI causing injury, animal abuse, any crime committed with a weapon, any other non-sexual act of physical violence not listed elsewhere Assault Assault Marijuana possession Marijuana possession Prostitution Prostitution Major drug-related offenses Sale or manufacture of drugs other than marijuana, or 1st-2nd degree drug charge

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Full regression results

Table A3 presents details of the regression results discussed in the body of the report. These results are based on an Ordinary Least Squares regression (using robust standard errors). The dependent variable is a binary indicator equal to one if the household experienced a negative housing outcome and zero otherwise. This is one of several empirical specifications that were analyzed for this study (including logit models and several alternative approaches to represent the categories, classes, timing, and quantities of criminal convictions in a household’s background). The estimated effects were quite similar across specifications. We have presented the linear probability model results (rather than the logit) due to the greater ease of interpretation of the estimates.

The estimated effects shown in Table A3 can be interpreted as the change in outcome (probability of a negative housing outcome) that results from a one-unit change in the explanatory variable. For example, the criminal background variables take values of zero (no convictions in the given category) or one (at least one conviction in the category), so a one-unit change represents the impact of having at least one conviction in the category, compared to households with no convictions in the category. The estimated effect of a major drug-related offense is 0.09, meaning that the probability of a negative move-out increases by 0.09 (9 percentage points) in households with at least one major drug-related conviction. Note that the explanatory variables’ units of measure are critical to the interpretation of the estimated effects. See the notes below Table A3 for more information.

The body of the report describes the most policy-relevant results contained in Table A3, including the importance of the observable household characteristics in determining the probability of negative housing outcomes. In addition to the notable findings discussed in the body of the report, the regression results below include two other estimated effects that merit additional explanation:

 Housing history screening level, a measure of the length and nature of housing history than an applicant must demonstrate in order to qualify for housing, is unsurprisingly found to be significantly linked to a household’s probability of a negative housing outcome. This property-level variable ranges from 1 (where applicants must be homeless in order to qualify for housing in the property) to 4 (where applicants must have a demonstrated positive recent rental history, including no evictions in the last three years). Because a resident’s housing history is expected to be a critical determinant of housing outcomes but was not available in the individual-level data, this property-level measure was developed to control for housing history to the greatest extent possible. The regression results indicate that a household in a property with level-four screening (the strictest in this study) would be about 3.9 percentage points less likely to experience a

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negative housing outcome (after controlling for other factors) compared to a household in a property for residents who were known to have previously experienced homelessness.10 Although a property-level measure is a blunt instrument for this purpose, the size and statistical significance of the criminal background variables declined when the housing history screening level was added to the regression model, a likely indication that the correlation between housing history and criminal background was (and may still be) causing an upward bias in the estimated effects of the criminal background variables.

 The level of housing barriers, on average, among a property’s residents is a property- level measure that is based on the level of services available to residents. It ranges from 0 (low-barrier residents in properties with no services) to 3 (residents with greater barriers, living in properties with full supportive housing services). Although this variable was initially intended to measure the impact of the level of services available to residents, it is more appropriately described as a reflection of the residents’ level of need, as residents with greater barriers tend to be housed in properties with more services available.11 In practice, due to our lack of data on several barriers to housing stability (as described in the Caveats and Limitations section), we are unable to distinguish the effect of available services from the effects of the barriers that led residents to live in properties with those services. What we observe is the combination of these effects.12 This measure has somewhat limited value in interpretation, but it adds value to the model in helping to control for some of the otherwise-unobserved barriers to housing stability.

10 We arrive at 3.9 percentage points by multiplying the estimated effect (1.3 points) by the 3-unit change between level 1 and level 4. 11 To illustrate, note that the mean per-capita annual income of households in properties with the highest level of services is about $10,500, compared to $19,100 among households in properties with no services. 12 Consider this example. Suppose we know that people with barrier A are 10 percentage points more likely to experience a negative housing outcome compared to those without barrier A, and that people receiving service level Z are 8 percentage points less likely to experience a negative housing outcome compared to those who don’t receive service level Z (controlling for other factors, in both cases). Suppose we examine housing outcomes for residents in a property that offers service level Z to a group of residents with barrier A. With our limited data, we will only see the combination of the effects of barrier A and service level Z, which is a 2 percentage point increase in probability of a negative housing outcome. The services may significantly reduce the probability of a negative housing outcome, but we can only observe the combined effect of the services and the barriers that drive a resident to seek out the services.

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A3. Full regression results: determinants of negative housing outcomes Explanatory variable Estimated effect Standard error Offense category Major drug-related offenses 0.09214* 0.052 Property offenses (e.g., theft, burglary) 0.05607*** 0.016 Assault 0.04897* 0.027 Fraud 0.04016** 0.02 Other violent offenses 0.03977 0.037 Domestic violence 0.02307 0.026 Prostitution 0.02282 0.049 Disorderly conduct 0.02253 0.018 Minor drug-related offenses 0.01985 0.027 Other minor violence-related offenses 0.00730 0.03 DUI/DWI or reckless driving 0.00058 0.016 Minor public order offenses (e.g., loitering, trespassing) 0.00489 0.016 Serious traffic offenses (other than DUI) 0.01038 0.014 Alcohol-related offenses (other than DUI) -0.01653 0.018 Marijuana possession -0.04020 0.043 Offense class and timing Felony <2 years prior to move-in 0.09558** 0.047 Felony 2-5 years prior to move-in 0.06170* 0.035 Felony 5-7 years prior to move-in 0.01944 0.04 Felony 7+ years prior to move-in -0.02410 0.027 Misdemeanor <2 years prior to move-in 0.04580*** 0.018 Misdemeanor 2-5 years prior to move-in 0.00596 0.016 Misdemeanor 5-7 years prior to move-in 0.02433 0.02 Misdemeanor 7+ years prior to move-in 0.00449 0.015 Household typea Single adult age 65+, no children -0.08039*** 0.015 2+ adults, no children -0.09488*** 0.008 Single adult with children -0.15668*** 0.015 2+ adults with children -0.24070*** 0.015 Note. The dependent variable is a binary indicator of a negative housing outcome. All variables representing criminal background are also binary indicator variables, equal to one if any adult in the household had at least one conviction of the variety described in the variable name. The model also included the following variables that are not shown in the table above: - Indicator variables for each housing provider - Household racial composition, measured as the proportions of household members who identify as: Black or African American, White, Asian or Pacific Islander, American Indian, Multiracial, and Other. These variables were not found to be statistically significant determinants of housing outcomes. a “Household type” variables are binary indicatory variables, and the estimated effects are relative to the omitted category (single adult under age 65), e.g., a household of 2+ adults and children is 24 percentage points less likely than a single adult under age 65 to experience a negative housing outcome (after controlling for other observable factors). Estimated coefficients are statistically significant at *p< 0.1, **p< .05, ***p< .01

Criminal Background and 33 Wilder Research, January 2019 Housing Outcomes

A3. Full regression results: determinants of negative housing outcomes (continued)

Explanatory variable Estimated effect Standard error Household compositionb Average age of adults -0.00090** 0.011 Adults age 18-24 0.03121*** 0.014 Adults age 55-64 -0.04567*** 0.023 Adults age 65+ 0.05814** 0.000 Female -0.00360 0.007 Finances Annual household income per person (thousands of dollars) -0.00155*** 0.000 Monthly rent (average)(hundreds of dollars) -0.00269* 0.001 Monthly subsidy (average)(hundreds of dollars) -0.00882*** 0.001 Property and neighborhood characteristics Average level of housing barriers among property’s residentsc 0.02171*** 0.003 Housing history screening leveld -0.01295 0.008 Number of units in property -0.00014*** 0.000 Percent of neighborhood population receiving SNAP 0.13030*** 0.026 Constant 0.53619*** 0.09 R-squared 0.271 Note. The dependent variable is a binary indicator of a negative housing outcome. All variables representing criminal background are also binary indicator variables, equal to one if any adult in the household had at least one conviction of the variety described in the variable name. The model also included the following variables that are not shown in the table above: - Indicator variables for each housing provider - Household racial composition, measured as the proportions of household members who identify as: Black or African American, White, Asian or Pacific Islander, American Indian, Multiracial, and Other. These variables were not found to be statistically significant determinants of housing outcomes. b The mid-range age category (25-54) was excluded from the regression due to collinearity. Household composition variables (other than “average age of adults”) are measured as the proportion of household members who fit the description of the variable. For example, a household with a 60-year-old female and a 70-year-old male would have a value of 0.5 for “adults age 55-64,” 0.5 for “adults age 65+,” and 0.5 for “female.” The regression coefficients for these variables can thus be interpreted as the effect of a household being entirely comprised of that group, e.g., a household entirely comprised of adults age 55-64 would have a 4.5 percentage point reduction in likelihood of negative housing outcome. c The average level of housing barriers ranges from 0 (residents of properties with no services) to 3 (residents in properties with full supportive housing services available), with levels 1 and 2 representing residents of properties with low and medium levels of available services, respectively. d Housing history screening level is a property-level measure of the housing history required for applicants to be accepted. It ranges from 1 (housing intended for people experiencing homelessness) to 4 (requiring a positive rental history including no evictions in the last three years). Estimated coefficients are statistically significant at *p< 0.1, **p< .05, ***p< .01

Criminal Background and 34 Wilder Research, January 2019 Housing Outcomes

Additional caveats and limitations

The most critical caveats and limitations are discussed in the body of the report above. Below are some additional issues that are worthy of note, though they are thought to have relatively minimal impacts on the implications or applicability of this study.

 Criminal background data are inconsistent and often lacking in important details. The same crime can be called by any number of different names. The same crime may be a misdemeanor in one state and a felony in another. The inconsistent and limited nature of criminal background data is clear in the observed rates of marijuana possession; we would expect the rate to be higher than the observed 1% of households with marijuana convictions, and the likely cause is the fact that so many offenses are listed only as “controlled substance” offenses. – Impact of this limitation: With these data limitations, the precision of our estimates is reduced, and the lines between categories of offenses are somewhat blurred.

 Compared to their white neighbors, people of color are more likely to be arrested, charged, and convicted of crimes (Clemons 2014, Burch 2015). – Impact of this limitation: The regression model controls for race and ethnicity (which are not statistically significant determinants of housing outcomes when all other factors are controlled for). While we know the impact of this bias on society is substantial, its impact on this study is relatively minimal.

 The data requirements for a household to be included in this study were quite extensive. In particular, a household was excluded if their historical background check data could not be found by the background check providers and linked to their current records in the housing providers’ data systems. Name changes alone may have proved to be a significant limiting factor for this purpose, though we have no way of knowing how large an impact that may have had.13 A household must also have had a move-out reason on file (if they had moved out). Nearly 3,000 past residents had otherwise complete data but no move-out reason, and were therefore excluded from the study. – Impact of the limitation: We see no reason to suspect that the households with missing data are meaningfully different from the households with complete data.

13 In addition, one of the background check providers only retained records for seven years, resulting in the omission of most of the longest-term residents (those who had moved in more than seven years ago) for that housing provider. The housing provider manually entered the criminal background data (using old paper files) for a sample of these longest-term residents in order to reduce the impact of this limitation.

Criminal Background and 35 Wilder Research, January 2019 Housing Outcomes

 Housing outcomes are measured based on the recorded move-out reason. In addition to the limitations resulting from missing data, we also cannot know to what extent the move-out reason reflects future housing stability. – Impact of the limitation: Strictly speaking, the study results represent the impact of criminal background on the probability of a negative move-out reason, which this study equates to a negative housing outcome. The degree of alignment between a tenant’s short-run move-out reason and their long-run housing outcome is unknown.

A final note about the relationship between criminal background and housing outcomes

The central goal of this study has been to understand the impact of criminal background on housing outcomes. For this purpose, we have relied on regression analysis to hold other observable factors constant, in order to isolate the impact of criminal background from other correlated factors like income and other household characteristics. In focusing our attention on this complex and multifaceted question, we have set aside a simpler question that the reader may wonder about: how much does criminal background predict housing outcomes, by serving as a proxy for these other factors?

The depth of analysis in this study is not necessary to answer this simpler question; most housing providers could examine their own data to quantify the difference in rates of negative housing outcomes between households with and without criminal backgrounds. In the population included in this study, the rate of negative housing outcomes is indeed higher among households with criminal backgrounds, compared to those without criminal backgrounds. Among households without criminal backgrounds, who generally have higher incomes, older adults, and more children, about 9 percent of housing outcomes are negative. In households with criminal backgrounds, most of the 25 percent rate of negative housing outcomes is explained by household characteristics like those listed above, including their lower incomes and their greater likelihood of being single-adult households under age 65.

The focus of this study has been to disentangle the interrelated factors that contribute to housing outcomes in order to understand what truly drives them. In doing so, we have shown that other household characteristics are at least as important as a household’s criminal background in determining their housing outcome. Furthermore, we have shown that the impact of a household’s criminal background on their housing outcomes depends critically on the specific contents of that criminal background; to apply “criminal background” as a blanket screening device would likely mean unnecessarily weeding out many tenants who could be successful in housing. The results of this study therefore offer greater insights into the importance of these details in criminal background screening.

Criminal Background and 36 Wilder Research, January 2019 Housing Outcomes

References

Blackwelder, William C. 1982. “‘Proving the Null Hypothesis’ in Clinical Trials.” Controlled Clinical Trials 3 (4): 345–53. https://doi.org/10.1016/0197- 2456(82)90024-1. Blumstein Alfred, and Nakamura Kiminori. 2009. “Redemption in the Presence of Widespread Criminal Background Checks*.” Criminology 47 (2): 327–59. https://doi.org/10.1111/j.1745-9125.2009.00155.x. Bradley, Katharine H., R. B. Oliver, Noel C. Richardson, and Elspeth M. Slayter. 2001. “No Place like Home: Housing and the Ex-Prisoner.” Issue Brief. Boston, MA: Community Resources for Justice. Burch, Traci. 2015. “Skin Color and the Criminal Justice System: Beyond Black-White Disparities in Sentencing.” Journal of Empirical Legal Studies 12 (3): 395–420. https://doi.org/10.1111/jels.12077. Clemons, John Tyler. 2014. “Blind Injustice: The Supreme Court, Implicit Racial Bias, and the Racial Disparity in the Criminal Justice System Notes.” American Criminal Law Review 51: 689–714. Cusack, Meagan, and Ann Elizabeth Montgomery. 2017. “Examining the Bidirectional Association between Veteran Homelessness and Incarceration within the Context of Permanent Supportive Housing.” Psychological Services 14 (2): 250. Gallistel, C. R. 2009. “The Importance of Proving the Null.” Psychological Review 116 (2): 439. Greenberg, Deena, Carl Gershenson, and Matthew Desmond. n.d. “Discrimination in Evictions: Empirical Evidence and Legal Challenges.” Harvard Civil Rights 51: 45. Greenberg, Greg A., and Robert A. Rosenheck. 2008. “Jail Incarceration, Homelessness, and Mental Health: A National Study.” Psychiatric Services 59 (2): 170–77. https://doi.org/10.1176/ps.2008.59.2.170. Greenspan, Owen. 2014. “Survey of State Criminal History Information Systems, 2012.” Criminal Justice Information Policy. Bureau of Justice Statistics. Kushel, Margot B., Judith A. Hahn, Jennifer L. Evans, David R. Bangsberg, and Andrew R. Moss. 2005. “Revolving Doors: Imprisonment Among the Homeless and Marginally Housed Population.” American Journal of Public Health 95 (10): 1747– 52. https://doi.org/10.2105/AJPH.2005.065094. LeBel Thomas P. 2017. “Housing as the Tip of the Iceberg in Successfully Navigating Prisoner Reentry.” Criminology & Public Policy 16 (3): 891–908. https://doi.org/10.1111/1745-9133.12313. Lutze, Faith E., Jeffrey W. Rosky, and Zachary K. Hamilton. 2014a. “Homelessness and Reentry: A Multisite Outcome Evaluation of Washington State’s Reentry Housing Program for High Risk Offenders.” Criminal Justice and Behavior 41 (4): 471–91. https://doi.org/10.1177/0093854813510164.

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Malone, Daniel K. 2009. “Assessing Criminal History as a Predictor of Future Housing Success for Homeless Adults With Behavioral Health Disorders.” Psychiatric Services 60 (2): 224–30. https://doi.org/10.1176/ps.2009.60.2.224. National Health Care for the Homeless Council. 2013. “Incarceration & Homelessness: A Revolving Door of Risk.” In Focus: A Quarterly Research Review of the National HCH Council, 2:2. [Author: Sarah Knopf - Amelung, Research Associate] Nashville, TN: Available at: https://www.nhchc.org/. Oyama, Rebecca. 2009. “Do Not (Re)Enter: The Rise of Criminal Background Tenant Screening as a Violation of the Fair Housing Act.” Michigan Journal of Race & Law 15: 181. Saddichha, Sahoo, Joelle M Fliers, Jim Frankish, Julian Somers, Christian G Schuetz, and Michael R Krausz. 2014. “Homeless and Incarcerated: An Epidemiological Study from Canada.” International Journal of Social Psychiatry 60 (8): 795–800. https://doi.org/10.1177/0020764014522776. Siegel, Carole E., Judith Samuels, Dei-In Tang, Ilyssa Berg, Kristine Jones, and Kim Hopper. 2006. “Tenant Outcomes in Supported Housing and Community Residences in New York City.” Psychiatric Services 57 (7): 982–91. https://doi.org/10.1176/ps.2006.57.7.982. Spellman, Brooke, Jill Khadduri, Brian Sokol, and Josh Leopold (Abt Associates Inc.). 2010. “Costs Associated with First-Time Homelessness for Families and Individuals.” U.S. Department of Housing and Urban Development. https://www.huduser.gov/publications/pdf/costs_homeless.pdf. Tejani, N., R. Rosenheck, J. Tsai, W. Kasprow, and J. F. McGuire. 2014. “Incarceration Histories of Homeless Veterans and Progression Through a National Supported Housing Program.” Community Mental Health Journal 50 (5): 514–19. https://doi.org/10.1007/s10597-013-9611-9. Thacher, David. 2008. “The Rise of Criminal Background Screening in Rental Housing.” Law & Social Inquiry 33 (1): 5–30. https://doi.org/10.1111/j.1747- 4469.2008.00092.x. Tsai, Jack, and Robert A. Rosenheck MD. 2012. “Incarceration Among Chronically Homeless Adults: Clinical Correlates and Outcomes.” Journal of Forensic Psychology Practice 12 (4): 307–24. https://doi.org/10.1080/15228932.2012.695653. Tsai, Jack, and Robert A. Rosenheck. 2013. “Homeless Veterans in Supported Housing: Exploring the Impact of Criminal History.” Psychological Services 10 (4): 452–58. https://doi.org/10.1037/a0032775. Walter, Rebecca J., Jill Viglione, and Marie Skubak Tillyer. 2017. “One Strike to Second Chances: Using Criminal Backgrounds in Admission Decisions for Assisted Housing.” Housing Policy Debate 27 (5): 734–50. https://doi.org/10.1080/10511482.2017.1309557.

Criminal Background and 38 Wilder Research, January 2019 Housing Outcomes

Acknowledgements Wilder Research, a division of Amherst H. Wilder Foundation, is a nationally respected nonprofit This study was made possible by generous research and evaluation group. For more than support from Neighborworks America and the 100 years, Wilder Research has gathered and Otto Bremer Trust. interpreted facts and trends to help families and communities thrive, get at the core of community Wilder would like to thank the Research concerns, and uncover issues that are overlooked Collaborative for the enormous amount of or poorly understood. effort, resources, and time that they have dedicated to conceptualizing and designing the 451 Lexington Parkway North study, securing funding, gathering the data, Saint Paul, Minnesota 55104 exploring the intricate details of the study findings, and thoughtfully considering the 651-280-2700 | www.wilderresearch.org potential implications of this research for their organizations and the housing field. This study would not have been possible without their energy, insights, and dedication to the populations they serve.

We would also like to thank Clare Housing for contributing their data to the study through their partnership with Project for Pride in Living. Research Collaborative

For more information about this study, contact: Aeon Cael Warren Beacon Interfaith Housing Collaborative [email protected] (651) 280-2066 CommonBond Communities Project for Pride in Living Michelle Decker Gerrard [email protected] (651) 280-2695

N.Y.U. Journal of Legislation and Public Policy Quorum

MERF EHMAN & ANNA REOSTI

TENANT SCREENING IN AN ERA OF MASS INCARCERATION: A CRIMINAL RECORD IS NO CRYSTAL BALL

March 3, 2015

Abstract: This article focuses on Washington landlord liability in the tenant screening context and increasing housing access for rental applicants with criminal records. Part I examines the concept of foreseeability as it pertains to potential landlord liability for renting to an applicant with a criminal record whose actions harm another tenant. Part II surveys the relevant sociological research on the relationship between a criminal record and the ability to meet the obligations of tenancy. Based upon this review, we conclude that there is no empirical evidence establishing a relationship between a criminal record and an unsuccessful tenancy. Part III posits that since research demonstrates that a criminal record is not a reliable indicator for future tenant behavior, it should not serve as a proxy to determine future tenant dangerousness. Washington landlords should not be liable for future harm to tenants based solely upon renting to an applicant with a criminal record. Refusing to hold landlords liable in this way, would increase housing opportunities for this population which in turn will reduce recidivism thereby increasing public safety and promoting the rehabilitation of people with a criminal history.

Author: Merf Ehman is a Staff Attorney in the Institutions Project at Columbia Legal Services. Anna Reosti is a sociology graduate student at the University of Washington.

N.Y.U. JOURNAL OF LEGISLATION & PUBLIC POLICY QUORUM EHMAN & REOSTI

TENANT SCREENING IN AN ERA OF MASS INCARCERATION: A CRIMINAL RECORD IS NO CRYSTAL BALL

Merf Ehman & Anna Reosti

INTRODUCTION

ere in prison I understand that my name comes with a number and I H am paying for my poor choices, but at the end of my time am I not paid in full? I lose the number and gain a box marked felon. I leave here in a year and I am told unless I know a private landlord who’s willing to rent to me that it will be next to impossible to rent.1

The writer is not alone; her fear is real.2 Every year the Washington De- partment of Corrections releases seven to eight thousand prisoners and even more cycle through county jails.3 Estimates are that one in four, or approximately 65 million, people in the United States have a criminal record.4 Upon release, many cannot obtain rental housing because of the stigma of a criminal record.5 The ex-

1 Letter from prisoner at Wash. Corr. Ctr. for Women to author (June 4, 2013) (on file with author). 2 See Journey v. State, 895 P.2d 955, 959 (1995) (“Courts, commentators, and legislatures have recognized that a person with a criminal record is often burdened by social stigma, subjected to additional investigation, prejudiced in future criminal proceedings, and discriminated against by prospective employers.”) (footnotes omitted). 3 WASH. DEP’T OF CORRS., NUMBER OF PRISON RELEASES BY COUNTY OF RELEASE (2013), http://www.doc.wa.gov/aboutdoc/docs/msPrisonReleases.pdf. 4 MICHELLE NATIVIDAD RODRIGUEZ & MAURICE EMSELLEM, NAT’L EMP’T LAW PROJECT, 65 MILLION “NEED NOT APPLY”: THE CASE FOR REFORMING CRIMINAL BACKGROUND CHECKS FOR EMPLOYMENT 3 (2011), available at http://www.nelp.org/page/-/SCLP/2011/65_Million_Need_ Not_Apply.pdf?nocdn=1. 5 HOUS. LINK, TENANT SCREENING AGENCIES IN THE TWIN CITIES: AN OVERVIEW OF TENANT SCREENING PRACTICES AND THEIR IMPACT ON RENTERS 40 (2004), available at http://www.housinglink.org/Files/Tenant_Screening.pdf (“[T]he increasingly popular use of tenant screening reports has resulted in a new class of people who are unable to access rental housing be-

1 N.Y.U. JOURNAL OF LEGISLATION & PUBLIC POLICY QUORUM EHMAN & REOSTI

2 QUORUM 2015 perience of incarceration and the stigmatizing effect of a criminal record erect formidable barriers to accessing safe, affordable housing.6 Many landlords routinely refuse to rent to applicants with a criminal record based upon a belief that a criminal record is a reliable indicator of a tenant’s inability to meet rental obligations.7 Tenant screening websites reinforce this belief through dire warnings about potential lawsuits and damage awards against landlords who rent to an applicant with a criminal record who may later harm another tenant.8

As detailed in this article, the notion that individuals with criminal conviction histories pose a future threat to people or property may seem superficially persuasive, but past criminal history is not predictive of future criminal activity. Moreover, landlord policies that ban admittance to applicants with a criminal history may violate fair housing law by negatively and disproportionately impacting

cause of past credit problems, evictions, poor rental histories or criminal backgrounds.”); John Wil- dermuth, Ex-offenders Compete for Low-Income Housing, S.F. GATE (Feb. 17, 2013, 9:01 PM), http://www.sfgate.com/bayarea/article/Ex-offenders-compete-for-low-income-housing-4286606.php (reporting that nearly fifty percent of San Francisco prisoners who recently have been released under a statewide prison realignment effort are without permanent housing). 6 See MARTA NELSON ET AL., VERA INST., THE FIRST MONTH OUT: POST-INCARCERATION EXPERIENCES IN NEW YORK CITY (1999); CATERINA GOUVIS ROMAN & JEREMY TRAVIS, URBAN INST., TAKING STOCK: HOUSING, HOMELESSNESS, AND PRISONER REENTRY 31 (2004), available at http://www.urban.org/UploadedPDF/411096_taking_stock.pdf; Amanda Geller & Marah A. Curtis, A Sort of Homecoming: Incarceration and the Housing Security of Urban Men, 40 SOC. SCI. RES. 1196, 1198 (2011); cf. KATHARINE BRADLEY ET AL., CMTY. RES. FOR JUSTICE, NO PLACE LIKE HOME: HOUSING AND THE EX-PRISONER 9 (2001), available at http://b.3cdn.net/crjustice/a5b5d8fa98ed957505_hqm6b5qp2.pdf (describing the difficulties that convicted criminals face finding housing following release from prison). 7 See Marie Claire Tran-Leung, Beyond Fear and Myth: Using the Disparate Impact Theory Under the Fair Housing Act to Challenge Housing Barriers Against People with Criminal Records, 45 CLEARINGHOUSE REV. 4, 6 (2011) (citing David Thacher, The Rise of Criminal Background Screening in Rental Housing, 33 L. & SOC. INQUIRY 5, 12 (2008)) (“In 2005 four out of five members of the National Multi-Housing Council engaged in criminal records screening.”). 8 See Heidi Lee Cain, Housing Our Criminals: Finding Housing for the Ex-Offender in the Twenty-First Century, 33 GOLDEN GATE U. L. REV. 131, 149–50 (2003) (citing Shelley Ross Saxer, Am I My Brother's Keeper?: Requiring Landowner Disclosure of the Presence of Sex Offenders and Other Criminal Activity, 80 NEB. L. REV. 522, 561–69 (2001)) (observing that a private landlord may be fearful of the possibility that he might be held liable for criminal acts committed by his tenants); FAQ – Landlord Responsibilities: Criminal Activities, FINDLAW, http://realestate.findlaw.com/landlord-tenant-law/faq-landlord-responsibilities-criminal-activities.html (“In increasing numbers, landlords are being brought to court by tenants that have been injured by criminals while in their rental properties. Settlements from these cases often reach into the millions of dollars, especially when a similar assault or crime occurred on the same rental property in the past.”); Paul Prudente, Background Check Quality & Landlord Liability, MY SCREENING REPORT BLOG (Nov. 4, 2011, 1:28 PM), http://www.myscreeningreport.com/blog/archive/2011/11/04/negligent-leasing- theory-tenant-screening.aspx (“[A]n injured party (employee, another resident or others) may bring an action against a landlord arguing that the landlord failed to exercise sufficient care in conducting background checks on prospective tenants.”). N.Y.U. JOURNAL OF LEGISLATION & PUBLIC POLICY QUORUM EHMAN & REOSTI

2015 QUORUM 3 black or Latino men.9 These restrictive policies “create a racial caste system”10 with no evidence that they achieve any safety goals.11 In fact, sociological research suggests that criminal history does not provide reliable information about the potential for housing success.12 Similarly, research shows that stable housing reduces the incidence of future criminal activity.13 This research should inform the way courts consider negligence claims against landlords based upon harm caused by a tenant who had a criminal record. Under current negligence standards, an actor is only responsible for harm he could reasonably have foreseen and prevented. Based upon social science research, a criminal record cannot reliably indicate the risk of future problematic tenant behavior.14 Therefore, the presence of a criminal record does not equal foreseeability of harm and should not by itself lead to liability.

Washington needs a rational research-based tort law standard that clearly sets out the boundaries of landlord liability for the criminal acts of third parties that harm tenants. A landlord should be liable only if he or she fails to maintain a habitable and secure premises that results in reasonably foreseeable harm to tenants by third-party criminal acts. A criminal record should not be considered evidence of a foreseeable risk of dangerousness or harm that creates landlord liability. We propose that future harm to tenants by an applicant with a criminal record should be unforeseeable as a matter of law. As shown in detail below, a landlord should not be held liable solely upon renting to an applicant with a criminal record. The need for tenant safety and the societal goals of reduced recidivism, public safety and fairness can be met by adopting this standard.

This article focuses on Washington tort law and landlord liability. Part I examines the concept of foreseeability as it pertains to potential landlord liability for renting to an applicant with a criminal record whose actions harm another tenant. Part II surveys the relevant sociological research on the relationship between a criminal record and the ability to meet the obligations of tenancy. Based upon this review, we conclude that there is no empirical evidence establishing a relationship between a criminal record and an unsuccessful tenancy. Part III posits that since research demonstrates that a criminal record is not a reliable indicator for future tenant behavior, it should not serve as a proxy to determine future

9 See Mireya Navarro, Lawsuit Says Rental Complex in Queens Excludes Ex-Offenders, N.Y. TIMES, Oct. 30, 2014, at A25, available at http://www.nytimes.com/2014/10/31/nyregion/lawsuit- says-rental-complex-in-queens-excludes-ex-offenders.html?_r=0 (describing a lawsuit alleging that a landlord’s policy of rejecting applicants with criminal histories violates fair housing laws due to the policy’s disproportionate impact on black and Latino men); infra note 145. 10 Id. 11 See infra Part II. 12 Id. 13 Id. 14 Id. N.Y.U. JOURNAL OF LEGISLATION & PUBLIC POLICY QUORUM EHMAN & REOSTI

4 QUORUM 2015 tenant dangerousness. Washington landlords should not be liable for future harm to tenants based solely upon renting to an applicant with a criminal record. Re- fusing to hold landlords liable in this way would increase housing opportunities for this population. Once housed, it is likely that the person’s chances for recidivism will decrease, thereby increasing public safety and promoting the rehabilitation of people with a criminal history.15

I. CURRENT STATE OF THE LAW: NO LANDLORD LIABILITY FOR CRIMINAL ACTS OF THIRD PARTIES WITHOUT FORESEEABILITY

One morning while showering, Ms. Griffin heard a loud noise in her apartment. She found dirt and debris on her floor near the closet and in it. She saw that the board covering the crawl space above was askew. She immediately went to her property manager’s office to report her observations. The property manager sent out two maintenance men who then screwed a two-by- four across the much larger opening of the crawl space. Two weeks later, she was attacked by her next door neighbor after he entered her apartment through that same crawl space. She filed suit against her landlord and the assailant. The jury found the landlord’s attempted repair negligent, but awarded Ms. Griffin no monetary damages from the landlord.16

These facts are from the only Washington case that has analyzed liability for the criminal acts of third parties in the landlord-tenant context. This Section first reviews current negligence law to understand whether the above landlord should be liable for the injuries the tenant sustained in the attack and then considers whether negligence liability should attach if her attacker had a criminal record that her landlord knew about when she rented him the apartment.

A. A landlord is not the insurer of a tenant’s safety, but might have a duty to protect tenants from foreseeable harm To establish negligence under Washington law, “the plaintiff must prove duty, breach, causation, and damages.”17 The legal analysis of a tenant’s negligence claim for harm resulting from the criminal act of a third party centers on whether a landlord has a duty to protect tenants and the scope of that duty.18 Prior

15 Id. 16 See Griffin v. W. RS, Inc., 984 P.2d 1070, 1072 (Wash. Ct. App. 1999), rev’d, 18 P.3d 558 (Wash. 2001). 17 See Nivens v. 7-11 Hoagy’s Corner, 943 P.2d 286, 289 (Wash. 1997). 18 Griffin, 984 P.2d at 1073 (noting that, as a threshold matter, the court had to determine whether landlords owe heightened duties of care to their tenants in order to resolve the case at bar). N.Y.U. JOURNAL OF LEGISLATION & PUBLIC POLICY QUORUM EHMAN & REOSTI

2015 QUORUM 5 to 1970, the above tenant’s claim would fail, as historically a landlord had no duty to protect tenants from injuries caused by the criminal acts of third parties.19 However, this principle began to erode as the nature of the landlord-tenant relationship evolved from simply leasing a piece of land to renting a dwelling unit with complicated infrastructures such as heating, lighting, and plumbing that could only be maintained by the landlord.20 By the 1970s, many states, including Washington, required landlords to adequately maintain these systems and keep the rental premises fit for human habitation.21

Once this duty to maintain the rental premises was established, courts began to hold landlords liable for the criminal acts of third parties in cases where landlords failed to maintain the physical premises and that failure facilitated the commission of a crime that injured a tenant.22 For example, in a New Jersey case, a landlord failed to provide adequate locks on the front door to the building which resulted in a mugger entering the building and attacking a tenant.23 The court found that the landlord breached his duty by failing to secure the building’s front entrance.24 The court held the landlord liable for the tenant’s injuries be-

19 See Nivens, 943 P.2d at 290 n.3, 292 (noting that landowners who invited others onto premises had a duty to protect these persons from foreseeable criminal acts of third persons based on a special relationship, but observing that this duty had been applied narrowly because courts had found only rarely that criminal acts were foreseeable); 17 WILLIAM STOEBUCK & JOHN WEAVER, WASH. PRACTICE, REAL ESTATE: PROPERTY LAW § 6.36 (2d ed. 2004) (Washington landlord was traditionally not liable to a tenant for injuries due to defective conditions on the premises); Corey Mostafa, Note, The Implied Warranty of Habitability, Foreseeability, and Landlord Liability For Third-Party Criminal Acts Against Tenants, 54 UCLA L. REV. 971, 974–75 (2007). However, all courts have rejected claims of strict liability in this and similar contexts. See Peterson v. Superior Court, 899 P.2d 905, 909–911 (Cal. 1995) (overturning previous ruling that landlords were strictly liable based upon the rule, adopted in the majority of other states to have considered the issue, that landlords are not strictly liable for to tenants caused by defective conditions of premises); Lincoln v. Farnkoff, 613 P.2d 1212, 1213 (Wash. Ct. App. 1980), abrogated on other grounds by Dex- heimer v. CDS, Inc., 17 P.3d 641 (Wash. Ct. App. 2001) (concluding landlord not strictly liable for harm caused by a defect on his premises). 20 See Kline v. 1500 Mass. Ave. Apt. Corp., 439 F.2d 477 (D.C. Cir. 1970); Mostafa, supra note 19, at 975. 21 See Foisy v. Wyman, 515 P.2d 160, 164 (Wash. 1973) (en banc) (“[I]n all contracts for the renting of premises, oral or written, there is an implied warranty of habitability . . . .”). The term “warranty of habitability” means that “the tenant's promise to pay rent is in exchange for the landlord's promise to provide a livable dwelling.” Id. at 164; WASH. REV. CODE ANN. § 59.18.060 (LexisNexis 2014) (landlord must maintain building’s structural components and common areas and make repairs). 22 See, e.g., Kline, 439 F.2d at 481; Rosenbaum v. Sec. Pac. Corp., 50 Cal. Rptr. 2d 917, 921 (Cal. Ct. App. 1996) (“[A] landlord’s duty to take reasonable steps to secure common areas of the premises against foreseeable criminal acts of third parties has become well established law in Cali- fornia.”); Trentacost v. Brussel, 412 A.2d 436, 440 (N.J. 1980). See also 17 STOEBUCK & WEAVER, supra note 19, § 6.36. 23 See Trentacost, 412 A.2d at 443 (holding that landlord had breached implied warranty of habitability by not securing front entrance in any way, which led to tenants’ injuries by permitting access to the “criminal element.”) 24 Id. N.Y.U. JOURNAL OF LEGISLATION & PUBLIC POLICY QUORUM EHMAN & REOSTI

6 QUORUM 2015 cause there was ample evidence that criminal activity affecting the premises was reasonably foreseeable.25

Another court ruled that although the landlord is not an “insurer” of the tenant’s safety, he has a duty to minimize the risk of harm to tenants from third party criminal attacks. Specifically, where:

[T]he landlord has notice of repeated criminal assaults and rob- beries, has notice that these crimes occurred in the portion of the premises exclusively within his control, has every reason to expect like crimes to happen again, and has the exclusive power to take preventive action, it does not seem unfair to place upon the landlord a duty to take those steps which are within his power to minimize the predictable risk to his tenants.26

A landlord does not have an absolute duty to ensure a tenant’s safety, but may be liable where a criminal attack is the reasonably foreseeable result of the landlord’s failure to properly maintain the rental premises. Although no Wash- ington court considering landlord liability for the criminal acts of third parties has based its holding on a violation of a landlord’s duty to maintain the premises,27 other states’ courts have done so.28 Most courts based these decisions on the theory that if a landlord violates his duty to maintain or secure the premises and that failure facilitates the commission of a crime that injures the tenant, then he is liable for those injuries.29

25 Id. 26 Kline, 439 F.2d at 481. 27 See Griffin v. W. RS, Inc., 984 P.2d 1070 (Wash. Ct. App. 1999) (basing landlord’s potential liability for tenant’s injury on the special relationship between landlord and tenant in a residential setting). 28 See, e.g., Duncavage v. Allen, 497 N.E.2d 433 (Ill. App. Ct.1986) (holding that a landlord could be liable where he breached duty to maintain areas of the building including lighting and weeds that could hide an intruder); Brichacek v. Hiskey, 401 N.W.2d 44 (Iowa 1987); Ward v. In- ishmaan Assocs., 931 A.2d 1235, 1238 (N.H. 2007) (quoting Walls v. Oxford Mgmt. Co., 633 A.2d 103, 106 (N.H. 1993)) (“[A] duty may arise ‘when a landlord has created, or is responsible for, a known defective condition on a premises that foreseeably enhance[s] the risk of criminal attack.’”); Trentacost, 41 A.2d at 443 (holding that landlord breached implied warranty of habitability by not securing front entrance in any way, thus permitting access to the “criminal element”). 29 See, e.g., Duncavage, 497 N.E.2d at 438 (“Illinois law also supports finding that defendant had a duty under the circumstances of this case to protect decedent from criminal acts of third persons.”); Brichacek, 401 N.W.2d at 48 (holding that landlords can be held liable for criminal attacks on their tenants under some circumstances); Ward, 931 A.2d at 1238 (recognizing “four possible exceptions to the general rule that landlords have no duty to protect tenants from criminal attack”); Trentacost, 41 A.2d at 443 (“Under modern living conditions, an apartment is clearly not habitable unless it provides a reasonable measure of security from the risk of criminal intrusion.”). See also 17 STOEBUCK & WEAVER, supra note 19, at 346. N.Y.U. JOURNAL OF LEGISLATION & PUBLIC POLICY QUORUM EHMAN & REOSTI

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Courts will hold landlords liable if the facilitation of a criminal act was the foreseeable result of the landlord’s unreasonable failure to perform his duty.30 Whether the harm to the tenant was reasonably foreseeable is a primary factor in determining liability.31

Foreseeability is the frame setting the boundaries of a landlord’s liability for the criminal acts of third parties. 32 Many courts will not find a defendant negligent unless the plaintiff establishes foreseeable risk.33 Courts that impose a duty on landlords to protect tenants from harm limit the scope of that duty to foreseeable harm.34 Harm is foreseeable only if there is “some probability or likelihood, not a mere possibility, of harm sufficiently serious that ordinary men would take precautions to avoid it.”35 Criminal conduct can be foreseeable where “the result of the [criminal act] is within the ambit of the hazards covered by the duty imposed upon [the] defendant.”36

But, whether a landlord has a duty to protect tenants from the criminal conduct of third parties and when that criminal conduct is foreseeable is in flux in Washington. The Washington Supreme Court has recognized that business own-

30 17 STOEBUCK & WEAVER, supra note 19, at 347 (noting that “no post-1970 decision has been found in which the landlord has not been held to be liable for foreseeable criminal injuries caused by an unreasonable failure to perform that duty”). 31 See RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL & EMOTIONAL HARM § 3 (2010) (“A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.”). There is disagreement among tort law scholars about whether foreseeability analysis should be a question of duty, breach, or causation. See W. Jonathan Cardi, Purging Foreseeabil- ity, 58 VAND. L. REV. 739 (2005). For purposes of this article, we focus on foreseeability as a part of the analysis of the duty element. 32 See David G. Owen, Figuring Foreseeability, 44 WAKE FOREST L. REV. 1277, 1307 (2009) (“No one should doubt that foreseeability is an explicit, central consideration in evaluating whether a person's conduct should be blamed . . . .”). 33 See Browning v. Browning, 890 S.W.2d 273 (Ark. 1995); Cunis v. Brennan, 308 N.E.2d 617 (Ill. 1974); Mitchell v. Hadl, 816 S.W.2d 183 (Ky. 1991); Colvin v. A R Cable Servs.-ME, Inc., 697 A.2d 1289 (Me. 1997); Mang v. Eliasson, 458 P.2d 777 (Mont. 1969); Poelstra v. Basin Elec. Power Coop., 545 N.W.2d 823 (S.D. 1996). See generally RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL & EMOTIONAL HARM § 3 cmt. g (2010). 34 See McKown v. Simon Prop. Grp., 689 F.3d 1086, 1092 (9th Cir. 2012) (discussing the Washington Supreme Court’s conclusion that there is a duty between a business owner and invitees to protect them from reasonably foreseeable criminal conduct by third person); Gurren v. Casper- son, 265 P. 472 (Wash. 1928) (holding the innkeeper liable for attack of one guest on another where owner knew of possibility of assault); Griffin v. W. RS, Inc., 984 P.2d 1070, 1077 (Wash. Ct. App. 1999) (recognizing that a residential landlord has a duty to protect its tenant against foreseeable criminal acts of third parties). 35 Thomas v. Hous., 426 P.2d 836, 839 (Wash. 1967) (citing Hammontree v. Edison Bros. Stores, Inc., 270 S.W.2d 117, 126 (Mo. Ct. App. 1954)). 36 McKown, 689 F.3d at 1092. N.Y.U. JOURNAL OF LEGISLATION & PUBLIC POLICY QUORUM EHMAN & REOSTI

8 QUORUM 2015 ers, but not specifically landlords, owe a duty to invitees to protect them from reasonably foreseeable criminal conduct by third persons.37 However, the scope of that duty is unclear.38 Four lower courts have limited this duty to circumstances where there is evidence that prior similar criminal conduct39 occurred on the premises.40 Under this analysis, third party criminal conduct is not reasonably foreseeable as a matter of law without proof of prior similar acts.41 The business owner must know or have reason to know from “past experience” or the “place or character of his business” that he should “reasonably anticipate . . . criminal conduct on the part of third persons.”42 In McKown, a Washington federal district court found that prior acts were not similar enough because they occurred outside a mall rather than inside it.43 The acts were “too dissimilar in location” to meet the Washington’s “prior similar acts on the premises test.”44 Whether knowledge of prior similar acts off the premises would be sufficient to impose liability on an owner is unclear in Washington. The Ninth Circuit certified this question to the Washington Supreme Court, but, that Court has not yet affirmed or rejected this standard.45

Although, the Washington Supreme Court has not analyzed whether a landlord has a duty to protect tenants from the criminal acts of third parties in the

37 Id. 38 Id. 39 Past criminal conduct can constitute a prior similar act when it is of the same nature as current act. For example, in McKown, the court gave McKown an opportunity to present evidence acts similar to the shooting that took place in that case. The court received eighty-six pages of information such as news articles, police reports, and courts records that demonstrated six shootings in the eight years prior. Id. at 1089–90. There was also evidence of three incidents involving guns at the mall. Id. at 1090. The district court ruled that these incidents were not evidence of prior similar acts because they were too remote in time (five years prior), occurred outside rather than inside the mall, and too dissimilar because the violent acts were directed at a specific person rather than at random people. Id. at 1090–91. 40 Id. at 1093 (citing Wilbert v. Metro Park Dist., 950 P.2d 522 (Wash. Ct. App. 1998)). 41 Id. 42 Id. at 1092 (citing RESTATEMENT (SECOND) OF TORTS § 344 cmt. f (1965)). 43 Id. at 1091. 44 Id. at 1089–91. 45 Id. The Washington Supreme Court accepted a certified question from the Ninth Circuit in McKown on whether prior similar acts are a necessary element to establish the foreseeability of third- party criminal conduct, and heard oral argument on February 21, 2013. See Supreme Court Docket, Winter 2013, WASHINGTON COURTS, available at http://www.courts.wa.gov/appellate_trial_courts/ supreme/calendar/?fa=atc_supreme_calendar.display&year=2013&file=docwin13#A12 (last visited Feb. 17, 2015). As of February 9, 2015, the court has not issued an opinion. The Second Restate- ment’s standard is: “A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.” RESTATEMENT (SECOND) OF TORTS § 344 (1965). N.Y.U. JOURNAL OF LEGISLATION & PUBLIC POLICY QUORUM EHMAN & REOSTI

2015 QUORUM 9 landlord-tenant context, one Washington court of appeals has done so.46 The next section takes an in-depth look at the seminal Washington case on this issue regarding a landlord’s duty—Griffin v. West.

B. No definitive tort standard established for Washington landlord liability for criminal acts of third parties There is a movement in many courts around the country to erode the common law edict that a landlord owed no duty to protect tenants from the foreseeable criminal acts of third parties. It remains to be seen whether Washington courts will follow this trend. Thus far, no Washington court has definitively determined a landlord’s duty in this context. However, Griffin and Faulkner give some indication that if a duty to protect tenants from the criminal acts of third parties exists in Washington, the scope of that duty—as in other states that have addressed the issue47—would be limited to only foreseeable criminal acts arising from a failure to secure or maintain the physical premises.48 A discussion of the case law demonstrating the lack of a current tort law standard on this issue is set out below.

In Griffin v. West, a Washington jury held a landlord liable for the criminal acts of a third party based on the facts set out at the beginning of this Section. These facts are egregious—Ms. Griffin immediately reported to her landlord her suspicions regarding a possible intruder, the landlord failed to properly secure the crawl space entrance, and she was injured shortly thereafter by an attacker entering through that space.49 The jury found that the corporation that owned Ms. Griffin’s building failed in its duty to properly repair the premises and was negligent.50 Yet, the jury decided that the landlord owed Ms. Griffin no damages because the attacker, rather than the landlord’s failed repair, ultimately caused her injuries.51

Ms. Griffin appealed, arguing that the trial court gave the jury an incorrect instruction regarding a landlord’s duty in these circumstances.52 She requested this instruction: “[The landlord] had a duty to take reasonable steps to protect Christie Griffin from foreseeable criminal conduct of a third party.” 53 Instead, the trial court gave its own instruction: “A landlord may be negligent if it under-

46 See Faulkner v. Racquetwood Vill. Condo. Ass’n, 23 P.3d 1135, 1137 (Wash. Ct. App. 2001); Griffin v. W. RS, Inc., 984 P.2d 1070, 1077 (Wash. Ct. App. 1999). 47 See Faulkner, 23 P.3d at 1137; Griffin, 984 P.2d at 1077. 48 See Griffin, 984 P.2d at 1077. 49 Id. at 1072. 50 Id. at 1073. 51 Id. at 1072. 52 Id. at 1073. 53 Id. N.Y.U. JOURNAL OF LEGISLATION & PUBLIC POLICY QUORUM EHMAN & REOSTI

10 QUORUM 2015 takes to protect a tenant against a danger of which it knows or in the exercise of ordinary care ought to know, and fails to exercise ordinary care in its efforts, and if the tenant reasonably relied upon the landlord's actions and therefore refrained from taking actions to protect herself.”54

The appeals court agreed with Ms. Griffin that the trial court’s instruction was incorrect. It held that Washington landlords have an affirmative duty to protect tenants from the foreseeable criminal acts of third parties where the landlords failed to properly repair or maintain the property.55 The court said this was the same duty as that set out by the Washington Supreme Court for a business owner to its invitee since the invitee, like a tenant, “entrusts himself or herself to the control of the business owner over the premises.”56 The court reasoned that although the landlord “is not the insurer of the tenant’s safety on the premises,”57 the tenant “entrusts to the landlord the responsibility to deal with issues that arise from the landlord’s control of the common areas of the premises.”58 As a result, the landlord, like a business owner, had a duty to protect Ms. Griffin from “foreseeable criminal conduct of third persons on the premises.”59 Thus, the trial court’s instruction gave the jury the wrong standard regarding the duty the landlord owed to the tenant.60 Moreover, the court reasoned that because duty and causation are intertwined, it could not be sure that the jury properly determined causation because it was incorrectly instructed on duty.61

On review, the Washington Supreme Court upheld the jury’s verdict.62 It refused to address the issue of whether a landlord has a duty to protect tenants from the criminal acts of third parties – not even in dicta.63 Instead, the Court focused on causation.64 The Court stated that the determination of causation is the same regardless of the type of duty imposed on the landlord.65 Thus, the scope of the landlord’s duty to the tenant was irrelevant given the jury’s factual finding that the criminal conduct of the third party caused the tenant’s injury rather than

54 Id. 55 Id. at 1076. 56 Id. 57 Id. 58 Id. at 1077. 59 Id. 60 Id. 61 Id. 62 Griffin v. W. RS, Inc., 18 P.3d 558, 558 (Wash. 2001). 63 Id. 64 Id. at 562. 65 Id. N.Y.U. JOURNAL OF LEGISLATION & PUBLIC POLICY QUORUM EHMAN & REOSTI

2015 QUORUM 11 the landlord’s negligent repair.66 As a result, the negligent landlord was not held liable for the criminal acts of a third party that attacked a tenant on its premises.67

Since Griffin, the Washington Supreme Court has only addressed the issue of a landlord’s duty to protect tenants from third-party criminal acts in dicta. In a 2001 criminal case regarding a public housing landlord’s right to exclude certain guests, the Court noted that the common law rule that a landlord had no duty to protect tenants from the criminal acts of third parties had eroded, but the Court had “never squarely addressed the issue.”68 The Court then posed, but did not answer, the question, “[s]hould a landlord be held liable for the foreseeable criminal acts of third parties causing injury to the landlord's tenant?”69 The Court of Appeals has not found itself bound by any Supreme Court dicta. In a later case, it reiterated its holding in Griffin that a landlord may have a duty to protect the tenant from foreseeable criminal conduct but only in areas where the landlord exerts control over that area.70 The appeals court imposed no liability in that case because the attack was in an area outside the landlord’s control.71 The Supreme Court refused review.72

Washington courts seem poised to adopt a tort law standard that would impose a duty on landlords to protect tenants from reasonably foreseeable criminal acts of third parties. The question remains as to the scope of that duty. Of interest for this article is whether such a duty would encompass requiring landlords to screen tenants for possible future dangerousness. The next Section explores the case law on this issue in the housing context. Due to the dearth of case law in this area, we look to tenant screening decisions in other states and negligent hiring

66 Id. 67 Ms. Griffin likely sued her landlord for money damages as well as her attacker because landlords likely have access to more funds than someone accused of a crime. See Ron Nixon, Public Defenders Are Tightening Belts Because of Steep Federal Budget Cuts, N.Y. TIMES (Aug. 23, 2013), http://www.nytimes.com/2013/08/24/us/public-defenders-are-tightening-belts-because-of-steep- federal-budget-cuts.html?pagewanted=all&_r=0 (reporting that about ninety percent of federal criminal defendants qualify for a public defender); CAROLINE WOLF HARLOW, BUREAU OF JUSTICE STATISTICS, DEFENSE COUNSEL IN CRIMINAL CASES (Nov. 2000) available at http://www.bjs.gov/index.cfm?ty=pbdetail&iid=772 (stating that approximately eighty-two percent of felony defendants in large counties that were accused of a violent crime were represented by a public defender). 68 City of Bremerton v. Widell, 51 P.3d 733, 738 (Wash. 2001) (citing W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 63, at 442–43 (5th ed. 1984)). See also Tracey A. Bate- man & Susan Thomas, Annotation, Landlord's Liability for Failure to Protect Tenant from Criminal Acts of Third Person, 43 A.L.R. 5th 207, 257 (1996) (addressing cases in which courts have held that a landlord has a duty to protect tenants against reasonably foreseeable criminal acts of third parties). 69 Widell, 51 P.3d at 739. In Widell, the court considered the appropriateness of criminal trespass convictions for guests invited onto the property by tenants. 70 Faulkner v. Racquetwood Vill. Condo. Ass’n, 23 P.3d 1135, 1136 (Wash. Ct. App. 2001). 71 Id. 72 See Faulkner v. Racquetwood Vill. Condo. Ass’n, 37 P.3d 291 (Wash. 2001). N.Y.U. JOURNAL OF LEGISLATION & PUBLIC POLICY QUORUM EHMAN & REOSTI

12 QUORUM 2015 cases to better understand how courts may analyze criminal records and foreseeability in the housing context.

C. Tenant screening process—likely no landlord duty to screen tenants

1. Tenant Screening

Washington landlords have no statutory obligation to screen tenants for possible violent behavior.73 There is also no Washington case law regarding a landlord’s liability for negligent selection of tenants. This section considers the few cases from other states that consider a claim of negligent tenant screening.

Courts outside of Washington have not imposed a duty on landlords to affirmatively conduct tenant screening. In a Louisiana case, a court determined that a landlord owed no duty to protect the tenant from harm by conducting background investigations on prospective tenants.74 The same court later considered whether a landowner could be liable for injuries to occupants when he allowed a person he knew or should have known had dangerous propensities to occupy the property.75 The court determined that there was no liability for the landowner because it was not the occupant’s mere presence on the property that caused the harm, but the person’s unforeseeable act of shooting the tenant.76 The California Supreme Court considered whether a landlord should be required to obtain criminal backgrounds on possible gang members.77 The court rejected this argument because the landlord could not screen particular applicants without facing allegations of discrimination.78 Ultimately, the landlord would be required to obtain full background checks on all applicants.79 The court said that refusal to rent to those with arrests or convictions for any crime that could have involved a gang constituted – a “burden-

73 Under the state Residential Landlord-Tenant Act, landlords are not required to screen tenants, but if they do then they must follow specific protocols. WASH. REV. CODE ANN. 59.18.257 (LexisNexis 2014) (stating that a landlord is required to provide prospective tenants information about the type of information reviewed, criteria considered and the name and address of the consumer reporting agency used, if any; and also providing that if the applicant is denied, the landlord must state in writing the reasons for the decision). Of course, landlords must comply with local, state, and federal fair housing laws. The lack of regulation and enforcement on tenant screening issues has created a myriad of problems. See Eric Dunn & Marina Grabchuk, Background Checks and Social Effects: Contemporary Residential-Tenant Screening Problems in Washington State, 9 SEATTLE J. FOR SOC. JUST. 319, 327–38 (2010) (discussing the problems caused by modern tenant screening practices such as errors and misleading information in tenant screening reports and unfair admission practices by landlords). 74 See Robicheaux v. Roy, 352 So. 2d 766, 768 (La. Ct. App. 1977). 75 See Dore v. Cunningham, 376 So. 2d 360, 362 (La. Ct. App. 1979). 76 Id. 77 See Castaneda v. Olsher, 162 P.3d 610, 618 (Cal. 2007). 78 Id. 79 Id. N.Y.U. JOURNAL OF LEGISLATION & PUBLIC POLICY QUORUM EHMAN & REOSTI

2015 QUORUM 13 some, dubiously effective and socially questionable obligation on landlords, at least absent circumstance making gang violence extraordinarily foreseeable.”80

Only one state appellate court, in Georgia, found possible liability for a landlord who rented to an applicant with a criminal record who later harmed another tenant.81 In Stephens v. Greensboro Properties, the court did not impose an affirmative duty on the landlord to screen tenants, but ruled that the landlord could be potentially liable for the shooting death of another tenant where it rented to and employed the perpetrator who had an extensive criminal record.82 The management company “authorized him to engage in security-related activities which might reasonably result in altercations with co-tenants, notwithstanding knowledge of his long history of convictions and arrests for numerous violent crimes.”83 Under Georgia law, a prior similar criminal act is generally required to impose liability in these circumstances, but if the danger is “so obvious” then that act might be foreseeable even without a prior act.84 Pursuant to this standard, the court permitted the case to go to the jury to determine if the harm to the tenant was foreseeable under these circumstances.85

No courts have imposed a duty on landlords to conduct background checks. Imposing this duty to protect other tenants would not “further the goals of the criminal rehabilitation system for ‘ex-criminals’ to be denied housing as they attempt to assimilate back into society.”86 Moreover, assessing whether a tenant might be violent in the future is challenging for even well-trained mental health experts let alone a landlord using a criminal background check.87 Such a requirement may thwart fair housing laws by adversely impacting those with mental health issues, chemical dependency or racial minorities.88 Only the Ste- phens court has allowed a jury to consider whether the tenant’s harm was foreseeable given the specific facts in that case, which included employing and em- powering the person with a criminal record.89 There, foreseeability was the key

80 Id. 81 See Stephens v. Greensboro Props., Ltd., 544 S.E.2d 464 (Ga. Ct. App. 2001). 82 Id. 83 Id. 84 Id. at 468. 85 Id. 86 See Saxer, supra note 8, at 565. 87 See id. at 564–65. 88 See id. at 564; see also infra Part III.B. 89 See Saxer, supra note 8, at 567–68 (discussing Stephens v. Greensboro Props., Ltd., 544 S.E.2d 464 (Ga. Ct. App. 2001)). N.Y.U. JOURNAL OF LEGISLATION & PUBLIC POLICY QUORUM EHMAN & REOSTI

14 QUORUM 2015 issue in determining liability.90 At this time, no appellate court has imposed liability for negligent renting.91

2. Employment Screening

Unlike landlords, employers have historically had a duty to foreseeable victims “to prevent the tasks, premises, or instrumentalities entrusted to an employee from endangering others.”92 This duty flows from the traditional “master- servant” relationship.93 Most negligent hiring cases focus on duty and foreseeability.94 However, there is little agreement among courts as to what constitutes a foreseeable act.95 Courts usually employ either a totality of the circumstances, a prior similar incidents test, or a balancing test.96 The totality of the circumstances test scrutinizes past criminal acts, the nature of the business and the condition of the premises.97 In contrast, the prior similar incidents test only looks to “the prox- imity, time, number, and types of prior violent incidents” to determine foreseeability.98 The balancing test examines the type of employment to determine if a more thorough background check is warranted.99 Courts have not imposed this type of duty and resultant test for foreseeability on landlords, although at least one scholar argued they should do so in the late 1970s.100

90 Id. 91 We could only find one trial court in the country that has imposed liability on a landlord in this context, where the landlord did not follow its own screening policies. See Jury rules city liable in murder of public housing resident, WCNC.COM (Feb. 15, 2010), http://www.wcnc.com/story/news/ local/2014/06/19/10946859/; Jury issues verdict in wrongful death lawsuit, WBTV.COM (updated Mar. 8, 2010, 2:07 PM), http://www.wbtv.com/story/11958156/jury-issues-verdict-in-wrongful-death- lawsuit (both sources describing case in which plaintiff argued that public housing authority failed to conduct a background check when renting to an applicant with a criminal record, and jury returned an award against PHA for $132,000 of the $10.4 million sought). 92 See Niece v. Elmview Grp. Home, 929 P.2d 420, 426 (Wash. 1996). 93 See Davis v. Clark Cnty., 966 F. Supp. 2d 1106, 1141 (W.D. Wash. 2013) (quoting Niece, 929 P.2d at 426). 94 See Stephen J. Beaver, Comment, Beyond the Exclusivity Rule: Employer’s Liability for Workplace Violence, 81 MARQ. L. REV. 103, 110 (1997). 95 Id. (few guidelines exist to help employers define employee fitness or determine how sufficient a background check should be). 96 Id. at 109. 97 Id. 98 Id. 99 See Carlsen v. Wackenhut Corp., 868 P.2d 882, 887 (Wash. Ct. App. 1994) (“Past Wash- ington decisions tend to employ a type of balancing test to determine if the given employment warrants the extra burden of a thorough background check.”). 100 See Charles W. Cunningham, Note, The Duty of a Landlord to Exercise Reasonable Care in the Selection and Retention of Tenants, 30 STAN. L. REV. 725 (1978) (arguing that landlords should be required to exclude foreseeably dangerous individuals from the premises). This proposed duty has not taken hold in the courts, as most have not found an affirmative duty for landlords to screen tenants. See supra Part I.B. N.Y.U. JOURNAL OF LEGISLATION & PUBLIC POLICY QUORUM EHMAN & REOSTI

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Washington courts generally use the balancing test.101 With no duty on employers to conduct specific background checks, courts focus on all the information from the background check process, such as references, resumes, criminal history and interviews rather than on the specific questions asked.102 If the job involves “a serious risk of great harm” to third parties, then an employer’s responsibility to thoroughly investigate a future employee increases.103 When an employer discovers inconsistencies on an employment application and a lack of information provided by an applicant, the next step is to make additional inquiries if the position requires interaction with the public.104

Scholars considering the issue of negligent hiring find that in most cases, an employer’s knowledge of a criminal record alone will not impose negligent hiring liability.105 “The mere fact that a person has a criminal record, even a conviction for a crime of violence, does not in itself establish the fact that that person has a violent or vicious nature so that an employer would be negligent in hiring him to meet the public.”106

This same lack of foreseeability analysis should be applied to reject attempts to impose liability on landlords for merely renting to a person with a criminal record who harms another tenant. Employment law can help frame the standard in the landlord context. Just like a landlord, an employer reviews information about an applicant to determine if that applicant has the necessary qualifications for a particular job. Similarly, landlords obtain information from rental applicants to see if they have the qualifications necessary to meet tenant obligations. These inquiries include a criminal background check, but also include reference checks with prior landlords and usually an interview with the applicant.

101 But see Niece v. Elmview Grp. Home, 929 P.2d 420, 427 (Wash. 1996) (employing a totality-of-the-circumstances test to find foreseeability of sexual assaults in an employer liability setting by considering prior sexual assaults, a policy against unsupervised contact with residents, and legislative recognition that sexual abuse is a problem in residential care facilities). 102 See Rucshner v. ADT Sec. Sys., Inc., 204 P.3d 271, 279 (Wash. Ct. App. 2009) (citing La Lone v. Smith, 234 P.2d 893, 896 (Wash. 1951)) (holding that employer can assume person offering to perform simple work is qualified, but there can be a contractual obligation to do so). 103 See Rucshner, 204 P.3d at 279. 104 See Carlsen, 868 P.2d at 886. 105 See Timothy L. Creed, Negligent Hiring and Criminal Rehabilitation: Employing Ex- Convicts, Yet Avoiding Liability, 20 ST. THOMAS L. REV. 183, 193–94 (2008); Jennifer Leavitt, Note, Walking a Tightrope: Balancing Competing Public Interests in the Employment of Criminal Offenders, 34 CONN. L. REV. 1281, 1286–87 (2002). 106 Hersh v. Kentfield Builders, Inc., 189 N.W.2d 286, 289 (1971). See also Pruitt v. Pavelin, 685 P.2d 1347, 1354–55 (Ariz. Ct. App. 1984) (holding employer liable for the fraudulent actions of a real estate broker because it knew the employee had been convicted of passing bad checks and forging a signature on a document, and had lied to officers of the company about obtaining a real estate license); Betty Y. v. Al-Hellou, 988 P.2d 1031 (Wash. Ct. App. 1999) (holding employer not liable under negligent hiring theory where it knew of employee’s conviction for third-degree child rape, but position was working on vacant apartments and contact with others was incidental). N.Y.U. JOURNAL OF LEGISLATION & PUBLIC POLICY QUORUM EHMAN & REOSTI

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Even though landlords have less control over the day-to-day behavior of tenants (they are not directly supervising tenant behavior and do not interact with a tenant several hours a day in the way an employer may), landlords still have control over who they do and do not accept as tenants. Given this, landlords should be subject to a similar tort standard as that imposed on employers.

II. SOCIAL SCIENCE RESEARCH: CRIMINAL RECORD NOT PREDICTIVE OF UNSUCCESSFUL TENANCY

Some courts have evaluated evidence intended to demonstrate an empirical link between a criminal history and propensity for dangerousness. In one such case, a city tried to argue that it was justified in refusing to issue a permit to an agency that facilitated the reentry of federal offenders into society because occupants of that residence were more likely to commit crimes than a person who had never been convicted of a crime.107 The expert in that case was unable to provide conclusive research evidence to support this contention.108 A later case considered whether the denial of a special zoning exception for a drug and alcohol treatment facility that accepted referrals from local prisons was constitutionally permissible.109 The city based the denial in part on safety and security concerns.110 The treatment provider appealed.111 The court found that there was no evidence that the incidents presented to demonstrate a safety threat were “greater in number and intensity than incidents linked to similarly situated uses, such as dormitories, fraternities, or sororities.”112According to the court “any safety concern related to the men being recovering addicts is therefore based upon unfounded fear, speculation, and prejudice.”113 This section reviews the recent social science research which supports the proposition that a criminal record is not predictive of a future threat.

The ostensible relationship between criminal history and an increased likelihood of a problematic tenancy is often cited by rental housing providers in defense of restrictive screening procedures and admissions policies.114 Yet, there has been little discussion on the predictive value of a criminal record in the hous-

107 See Bannum Inc., v. City of Louisville, 958 F.2d 1354, 1360–61 (6th Cir. 1992) (noting that city was unable to show that occupants who had been incarcerated more likely to commit crimes than those community residents without a criminal record). 108 Id. 109 See Open Homes Fellowship v. Orange Cnty, 325 F. Supp. 2d 1349, 1361 (M.D. Fla. 2004). 110 Id. at 1354. 111 Id. 112 Id. at 1361. 113 Id. 114 See HOUSING LINK, supra note 5. N.Y.U. JOURNAL OF LEGISLATION & PUBLIC POLICY QUORUM EHMAN & REOSTI

2015 QUORUM 17 ing context.115 A review of relevant scholarly research reveals there is no empirical basis for the assertion that a criminal record indicates a future problematic tenancy or a dangerous tenant.

This review describes the findings from academic studies in two areas: evaluations of supportive housing programs116 and research on the relationship between housing status, incarceration and recidivism. Evaluations of supportive housing programs offer unique lessons regarding the predictive power of a criminal record in the housing context as they investigate how residents with criminal histories fare in those programs. Meanwhile, findings from studies exploring the impact of housing status on recidivism underscore the social imperative to expand housing access for the formerly incarcerated or those with criminal records.

A number of studies have evaluated the efficacy of supportive housing program serving populations at risk of homelessness.117 More recently, some scholars have utilized evaluation data from such programs to investigate whether a criminal record or history of incarceration predicts program success.118 Our broad survey of the relevant academic literature returned two large-scale, methodologically rigorous studies that compare program participants with and without criminal histories.119

115 See Corinne Carey, No Second Chance: People With Criminal Records Denied Access to Public Housing, 36 U. TOL. L. REV. 545, 563 (2005) (“Curiously, there has been relatively little discussion among federal or local housing officials as to what, in fact, predicts a good tenant, much less the predictive value of a criminal record.”). 116 Supportive housing programs typically provide populations at risk of chronic homelessness with a variety of health and social services, including some form of subsidized housing. Those populations include those struggling with substance dependence and mental and physical health issues. Be- cause these issues are relatively common among those that have had contact with the criminal justice system, supportive housing clients often include the formerly incarcerated or individuals with criminal conviction records. See generally Seena Fazel et al., Substance Abuse and Dependence in Prisoners: A Systematic Review, 101 ADDICTION 181 (2006) (discussing substance dependence among those who have been incarcerated); Michael Massoglia, Incarceration, Health, and Racial Disparities in Health, 42 LAW & SOC’Y REV. 275 (2008) (discussing the impact of criminal justice system contact on mental and physical health outcomes). Supportive housing programs are thus a relevant setting for research around the link between criminal history and tenant behavior. Nonetheless, findings from supportive housing programs may not be completely generalizable to other housing contexts on account of the unique resources and social services made available to residents. 117 See H. Stephen Leff et al., Does One Size Fit All? What We Can and Can't Learn from a Meta-Analysis of Housing Models for Persons with Mental Illness 60 PSYCHIATRIC SERVS. 473 (2009); Debra J. Rog, The Evidence on Supported Housing, 27 PSYCHIATRIC REHAB. J. 334 (2004). 118 See Edward S. Casper & Doris Clark, Service Utilization, Incidents and Hospitalizations Among People with Mental Illnesses and Incarceration Histories in a Supportive Housing Program, 28 PSYCHIATRIC REHAB. J. 181 (2004); Daniel K. Malone, Assessing Criminal History as a Predictor of Future Housing Success for Homeless Adults with Behavioral Health Disorders, 60 PSYCHIATRIC SERVS. 224 (2009); Jack Tsai & Robert A. Rosenheck, Incarceration Among Chronically Homeless Adults: Clinical Correlates and Outcomes, 12 J. FORENSIC PSYCHOL. PRAC. 307 (2012). . 119 See Malone, supra note 118; Tsai & Rosenheck, supra note 118. While Casper and Clark also addressed this question, the generalizability of the study’s findings are very limited in light of the small

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One study explored the impact of criminal history status on a wide range of outcomes among participants in a multi-city supportive housing program.120 The researchers drew on a sample of 751 clients divided into three groups: those with no history of incarceration, those who had been incarcerated for one year or less and those who had been incarcerated for over one year.121 Upon entering the program, the formerly incarcerated clients were markedly distinct from their never incarcerated counterparts; reporting higher levels of drug and alcohol dependence, longer histories of homelessness and lower levels of education.122After controlling for these baseline differences, researchers found that there were no statistically significant differences between the formerly incarcerated and never incarcerated study groups in program outcomes.123 In light of their findings, the authors suggest that chronically homeless adults with incarceration histories can benefit as much from supportive housing as those without incarceration histories.124

In another study of the relevance of criminal history for successful supportive housing participation, Malone analyzed data collected from a Seattle housing program for homeless adults with behavioral health disorders.125 The study drew on data from 347 housing clients, slightly more than half of whom sample size and potential selection effects stemming from the fact that the formerly incarcerated participants were recruited as part of a jail-diversion program, in contrast to the voluntary recruitment of the never incarcerated participant group. Casper & Clark, supra note 118. For a review of statistical standards for generalizability, see JASON W. OSBORNE, BEST PRACTICES FOR QUANTITATIVE METHODS (2007). 120 Tsai & Rosenheck, supra note 118, at 310 (examining community adjustment, substance abuse, employment, health status and utilization of health services for clients enrolled in a multisite supportive housing program implemented in eleven cities: Chattanooga, Tennessee; Chicago, Illi- nois; Columbus, Ohio; Denver, Colorado; Fort Lauderdale, Florida; Los Angeles, California; Mar- tinez, California; New York, New York; Philadelphia, Pennsylvania; Portland, Oregon; and San Francisco, California). 121 Id. 122 Id. at 314–15 tbl.1 (showing baseline differences between participants with different incarceration histories). 123 Id. at 316 (with the exception that clients who had been incarcerated longer than one year reported poorer physical health). 124 Id. at 319 (citing Malone, supra note 118) (“The overall finding of no group difference in outcomes runs in contrast to our hypothesis, although it is similar to at least one previous study (Malone, 2009) and suggests chronically homeless adults with incarceration histories can benefit as much from supported housing as those with no incarceration histories. This finding may have particular implications for housing providers and policy makers who support practices that exclude those with criminal histories from applying for public housing.”). 125 Malone, supra note 118. The study defined success as the continuous retention of housing for two years. Id. at 224. The author focused on program success rather than recidivism in light of the research suggesting that much of the reoffending on the part of the formerly incarcerated— particularly those with mental illness—stems from low-level, nonviolent offenses. Id. at 225 (refer- encing R.A. Desai & Robert A. Rosenheck, Childhood Risk Factors for Criminal Justice Involve- ment in a Sample of Homeless People with Serious Mental Illness, 188 J. NERVOUS & MENTAL DISEASE 324 (2000)). Consequently, recidivism data may not be a justifiable basis on which supportive housing providers screen out prospective clients with criminal histories out of concern for the safety of other clients. N.Y.U. JOURNAL OF LEGISLATION & PUBLIC POLICY QUORUM EHMAN & REOSTI

2015 QUORUM 19 had a criminal record.126 That analysis revealed that a criminal record was not statistically predictive of program failure.127 When other characteristics that could potentially affect tenant behavior were taken into account, age was the only statistically significant determinant of housing success, where younger clients were less likely to retain housing.128 In contrast to other similar evaluations of supportive housing programs, Malone’s study was able to draw on detailed data on the nature of clients’ criminal history, including the time elapsed since last conviction, the number of prior offenses, and the seriousness of past offenses.129 None of these dimensions were statistically predictive of program success.130

These studies provide evidence that, at least within the supportive housing context, criminal history is not predictive of problematic tenancy.131 As such, they 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. With respect to the potential broader policy implications of his study for screening and admissions policies in other residential settings, Malone notes that:

The finding that criminal history does not provide good predictive information about the potential for housing success is additionally important because it at least partially contradicts the expectations of housing operators and others. It certainly runs counter to common beliefs that housing needs to be free of offenders in order to be safe for the other residents.132

126 Id. at 224. 127 Id. (“Data were available for 347 participants. Most (51%) had a criminal record, and 72% achieved housing success. The presence of a criminal background did not predict housing failure. Younger age at move-in, presence of a substance abuse problem, and higher numbers of drug crimes and property crimes were separately associated with more housing failure; however, when they were adjusted for each of the other variables, only move-in age remained associated with the outcome.”). 128 Id. 129 Id. at 228. 130 Id. at 227–28 (“Criminal history appears to be largely unrelated to the ability of homeless persons with behavioral health disorders to succeed in supportive housing, suggesting that policies and practices that keep homeless people with criminal records out of housing may be unnecessarily restrictive. People with a more extensive criminal history succeeded at rates equivalent to those of others, as did people with more recent criminal activity, people with more serious criminal offenses, and people who began criminal activity at an earlier age. In other words, the criminal history of those who succeeded in housing was nearly indistinguishable from that of those who failed in housing.”). 131 Id. at 229. On account of the unique features of supportive housing programs, Malone cautions that his results are not necessarily generalizable to all housing contexts: “Because the study present here involved individuals with specific characteristics (lengthy homelessness and behavioral health disorders) who received a particular intervention (supportive housing), generalizing the results of our study to other situations may not be valid.” Id. 132 Id. at 228. N.Y.U. JOURNAL OF LEGISLATION & PUBLIC POLICY QUORUM EHMAN & REOSTI

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The notion that excluding those with criminal histories from housing en- hances public safety is also undermined by a larger body of research that has established the strong empirical association between housing insecurity and recidivism. A number of studies have investigated the impact of former prisoners’ post-release housing circumstances upon recidivism by utilizing statistical models that control for a number of individual level characteristics thought to potentially affect recidivism.133 For example, researchers analyzed the case management records of 6,327 parolees in Georgia and found that, controlling for all other relevant factors, housing instability was significantly associated with recidivism (here defined as arrest for a new offense while under parole supervision).134 Each change of address while on parole was associated with a twenty-five percent increase in the likelihood of re-arrest.135 Their findings underscore the importance of access to stable, affordable housing for the formerly incarcerated.

Two Washington studies examined post-release outcomes as they related to housing stability. One study assessed the impacts of a pilot re-entry housing program in Washington by contrasting the re-entry outcomes of participants with a comparison group composed of non-participants who were released from corrections facilities at the same time.136 Across every measure of recidivism and reintegration, the stably housed portion of the comparison group fared better than their unstably housed or homeless counterparts.137 These findings offer strong support for the notion that housing stability significantly reduces recidivism and improves reintegration of the formerly incarcerated. This finding holds even after controlling for various individual-level background characteristics potentially shaping housing circumstances.138

133 See, e.g., FAITH E. LUTZE ET AL., WASHINGTON STATE’S REENTRY HOUSING PILOT PROGRAM EVALUATION: YEAR 3 FINAL REPORT (2011), available at http://www.co.whatcom.wa.us/ health/wchac/pdf/rhpp_year3_report_june_2011.pdf; TAMMY MEREDITH ET AL., APPLIED RESEARCH SERVS., INC., ENHANCING PAROLE DECISION-MAKING THROUGH THE AUTOMATION OF RISK ASSESSMENT, (2003); MELISSA SHAH ET AL., WASH. STATE DEP’T OF SOC. & HEALTH SERVS., ACHIEVING SUCCESSFUL COMMUNITY RE-ENTRY UPON RELEASE FROM PRISON (2013), available at https://www.dshs.wa.gov/sites/default/files/SESA/rda/documents/research-11-193.pdf. 134 See MEREDITH, supra note 133, at 15. 135 Id. (“Finally, there is a 25% increase in the likelihood of arrest each time a parolee changes address. That translates into doubling the odds of arrest by simply moving three times while on parole (having four residences).”). 136 See LUTZE ET AL., supra note 133. 137 Id. at 15–16. Those dependent or outcome measures included new convictions, revocation of community supervision, readmission to prison, and the “time to failure” or the length of time between an individual’s release date and the first instance of recidivism. See also id. at 36 (“Although this study was focused on RHPP/HGAP [the two pilot programs under study] performance, it is important to note the reentry experience of those who were released to unstable housing. These offenders tended to perform poorly across all counties on each of the outcome measures.”). 138 Id. at 14–18 (including age, gender, incarceration history, criminal conviction history and exposure to rehabilitative programming in prison). N.Y.U. JOURNAL OF LEGISLATION & PUBLIC POLICY QUORUM EHMAN & REOSTI

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In the second study, Washington researchers investigated the impact of post-release housing circumstances on various dimensions of prisoner reentry including recidivism, employment, earnings, medical care and substance abuse.139 The researchers followed a sample of approximately 12,000 individuals released from a Washington State Department of Corrections (DOC) facility for one year.140 Among study participants, those that received housing assistance and eventually secured permanent housing fared the best across multiple measures of reintegration; this group had the lowest rates of recidivism and the highest rates of employment, medical coverage and substance abuse treatment.141

Despite the importance of housing stability for successful reentry, a large body of research literature has unfortunately found that the formerly incarcerated experience high rates of homelessness and housing instability relative to the general population.142 One such study drew on longitudinal survey data to compare the housing circumstances of formerly incarcerated men and of a group of men who share similar demographic characteristics but have never been incarcerated.143 After controlling for an array of background characteristics (i.e. race, age, education, employment history, behavioral characteristics, etc.) and housing circumstances prior to incarceration, the authors found that the formerly incarcerated men were nearly twice as likely to have been homeless during the study period than their never-incarcerated counterparts.144

Of all the studies reviewed on the topic for this article, not one indicated a positive correlation between a criminal record and a future problematic tenancy. Rather, the studies indicated no correlation between the two. Based upon this

139 See SHAH ET AL., supra note 133, at 1. 140 Id. 141 Id. at 1 (“Homeless ex-offenders who received housing assistance and transitioned to permanent housing had lower rates of criminal recidivism and higher rates of employment, Medi- caid coverage, and substance abuse treatment, compared to other homeless ex-offenders.”). 142 See, e.g., Stephen Metraux & Dennis P. Culhane, Homeless Shelter Use and Reincarcer- ation Following Prison Release, 3 CRIMINOLOGY & PUB. POL’Y 139 (2004); BRADLEY, supra note 6; Geller & Curtis, supra note 6, at 1196; NELSON, supra note 6; Roman, supra note 6. 143 See Geller & Curtis, supra note 6, at 1197. 144 Id. at 1206 (“[F]ormerly incarcerated men face more than twice the odds of homelessness as men who have not been incarcerated.”). Another notable finding to emerge from that study is that formerly incarcerated men were not significantly more likely to have been evicted or to have skipped mortgage payments relative to their never-incarcerated study counterparts when relevant covariates are controlled for. Id. at 1203 (“Namely, differences in frequent moves and ‘‘living with others without paying rent’’ are consistently statistically significant, while differences in skipping a mortgage payment, eviction, and doubling up lose significance as additional covariates are controlled.”). Their research is the first to compare the tenant behavior of formerly incarcerated and never-incarcerated individuals in the general rental housing context. As such, these findings provide early but important evidence challenging the assumption that a criminal history is an effective predictor of at least some forms of “bad” tenant behavior that result in eviction. N.Y.U. JOURNAL OF LEGISLATION & PUBLIC POLICY QUORUM EHMAN & REOSTI

22 QUORUM 2015 research, future harm resulting from renting to an applicant with a criminal record is not reasonably foreseeable.

III. BECAUSE CRIMINAL RECORDS DO NOT CREATE A FORESEEABLE RISK OF FUTURE HARM, TORT LIABILITY SHOULD NOT ATTACH TO RENTING TO A PERSON WITH A CRIMINAL RECORD

A tort standard that would not impose landlord liability on the sole basis of renting to an applicant with a criminal record supports societal goals of fair housing, habitable premises, public safety and rehabilitation.

A. Fair Housing

Imposing liability upon landlords for negligent screening also conflicts with the goals, policies, and language of laws that prohibit discrimination in housing. Reducing or eliminating liability on landlords who rent to tenants with a criminal record furthers fair housing goals. A specific goal of the Fair Housing Act is to “[e]nsure the removal of artificial, arbitrary, and unnecessary barriers when the barriers operate invidiously to discriminate on the basis of impermissible characteristics.”145 However, restrictive tenant screening practices with respect to criminal history could undermine that goal and facilitate discriminatory treatment.146 If a landlord refuses to rent to a person with a criminal history, she could be liable for violating the Fair Housing Act.147

The U.S. Department of Housing and Urban Development (HUD) has issued no guidance regarding fair housing and criminal records screening.148 How- ever, over twenty years ago, the EEOC recognized that “an employer’s policy or practice of excluding individuals from employment on the basis of their convic-

145 See Llanos v. Estate of Coehlo, 24 F. Supp. 2d 1052, 1056 (E.D. Cal. 1998) (discussing goal of Federal Housing Act, 42 U.S.C. § 3601). See also United States v. City of Black Jack, 508 F.2d 1179, 1184 (8th Cir. 1974). 146 See Rebecca Oyama, Do Not (Re)Enter: The Rise of Criminal Background Tenant Screening as a Violation of the Fair Housing Act, 15 MICH. J. RACE & L. 181, 212–13 (2009). 147 Id.; see also Gamble v. City of Escondido, 104 F.3d 300, 304–05 (9th Cir. 1997) (describing the burden-shifting scheme for disparate treatment claims under the Fair Housing Act). 148 HUD has issued regulations regarding disparate impact liability that set out a three- step burden-shifting analysis. 24 C.F.R. § 100.500(c) (2013). A recent law review article provides an in-depth discussion of this rule and its implications for future court decisions. See Mi- chael G. Allen et al., Assessing HUD's Disparate Impact Rule: A Practitioner's Perspective, 49 HARV. C.R.-C.L. L. REV. 155 (2014). See also, e.g., Inclusive Cmtys. Project, Inc. v. Texas Dep’t of Hous. & Cmty. Affairs, 747 F.3d 275, 282–83 (5th Cir. 2014) (applying the disparate impact test set out in the HUD regulations). The U.S. Supreme Court heard oral arguments in this case on January 21, 2015 to determine whether the Fair Housing Act prohibits housing policies that have a disparate impact on protected classes. Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmty. Project, Inc., No. 13-1371 (U.S. argued Jan. 21, 2015). N.Y.U. JOURNAL OF LEGISLATION & PUBLIC POLICY QUORUM EHMAN & REOSTI

2015 QUORUM 23 tion records has an adverse impact on [African American and Latino workers] in light of statistics showing that they are convicted at a disproportionately higher rate than their representation in the population.”149

Washington State corrections statistics demonstrate that African Ameri- cans are disproportionately represented in the corrections system. Washington State’s 2013 estimated Census population estimate was 6,971,406.150 Of that number, 81.2% were White, 11.9% Hispanic or Latino, 1.9% Native American and 4.0% were African American.151 The Washington State Department of Cor- rections (DOC) collects data on the race of all offenders admitted to its facilities.152 Of the 18,059 prisoners as of September 2014, 18.1% were African Amer- ican, a rate almost five times the rate of African Americans in the general population.153 For Native Americans, the incarceration rate was more than double their share of the state population at 4.4%.154

As a result of this disproportionate representation of protected classes in the criminal justice system, housing policies that eliminate applicants for consideration based upon a criminal record create a discriminatory effect. A tort law standard that reduces negligence liability for renting to an applicant with a criminal record could increase access to housing for historically marginalized groups. Landlords would have less fear of a negligence lawsuit, thereby removing one possible business justification for restrictive background screening policies. The proposed tort law standard supports the important public policy objective of removing unnecessary and impermissible barriers to housing for protected classes.

149 See U.S. EQUAL EMP’T OPPORTUNITY COMM’N, EEOC POLICY STATEMENT ON THE ISSUE OF CONVICTION RECORDS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED, 42 U.S.C. §

2000 ET SEQ. (1982) (Feb. 4, 1987), available at http://www.eeoc.gov/policy/docs/convict1.html. The EEOC issued guidance in 1990 for consideration of arrest records. U.S. EQUAL EMP’T OPPORTUNITY COMM’N, EEOC POLICY STATEMENT ON CONSIDERATION OF ARREST RECORDS IN EMPLOYMENT DECISIONS UUNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED, 42 U.S.C. § 2000 ET SEQ. (1982) (Sept. 7, 1990), available at http://www.eeoc.gov/policy/docs/arrest_records.html. In 2012, the EEOC updated this guidance. See U.S. EQUAL EMP’T OPPORTUNITY COMM’N, ENFORCEMENT GUIDANCE ON THE CONSIDERATION OF ARREST AND CONVICTION RECORDS IN EMPLOYMENT DECISIONS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 (Apr. 25, 2012), available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. The 2012 guidance consolidates the 1987 and 1990 guidance, updates the research, and discusses disparate treatment and disparate impact analysis for employer criminal record policies under Title VII with an in-depth analysis and specific examples. 150 U.S. CENSUS BUREAU, STATE & COUNTY QUICKFACTS FOR WASHINGTON, available at http://quickfacts.census.gov/qfd/states/53000.html (last revised Feb. 5, 2015). 151 Id. 152 Fact Card, DEP’T OF CORRS. (Sept. 30, 2014), available at http://www.doc.wa.gov/aboutdoc/docs/msFactCard_002.pdf. 153 Id. 154 Id. N.Y.U. JOURNAL OF LEGISLATION & PUBLIC POLICY QUORUM EHMAN & REOSTI

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B. Habitable and Safe Premises

Landlords should be liable if they fail to maintain or secure the property resulting in harm to a tenant by another tenant’s or third party’s criminal act.155 The few courts that have heard negligent tenant screening claims have not expanded liability to the future criminal acts of tenants who have a criminal record.156 But, no uniform standard has been established.157 We posit that a clear tort law standard should be established that reflects the relevant social science and psychological research regarding foreseeability and risk as well as the public policy goals of safety, rehabilitation, and fair housing.

Courts and legislatures have not and should not expand liability for the criminal acts of third parties to the tenant screening context. Rather than using a criminal record to reject an applicant for fear of future harm to other tenants or property, landlords should instead be incentivized to be responsible property managers and owners.158 They should be encouraged to do what is already required—comply with applicable common law and statutory habitability and security requirements or face liability if their failure to do so results in reasonably foreseeable harm from the criminal acts of a third party.159

Prior case law and good public policy require that Washington courts hold a landlord liable for tenant injuries caused by a defective condition on the premises that could foreseeably cause harm to a tenant from third party criminal activity if:

•the condition is dangerous •the landlord was aware of it or should have been •the landlord failed to properly repair it; and •the condition violated the warranty of habitability.160

155 See Griffin v. West RS, Inc., 984 P.2d 1070, 1076 (Wash. Ct. App. 1999). 156 See discussion supra Part I.C. 157 Id. 158 See B.A. Glesner, Landlords as Cops: Tort, Nuisance & Forfeiture Standards Imposing Liability on Landlords for Crime on the Premises, 42 CASE W. RES. L. REV. 679, 791 (1992). 159 See Degel v. Majestic Mobile Manor, 914 P.2d 728, 731 (Wash. 1996) (en banc) (holding that landlord has affirmative duty to maintain common areas in safe manner). 160 See Pinckney v. Smith, 484 F. Supp. 2d. 1177, 1182 (W.D. Wash. 2007) (citing WASH. REV. CODE ANN. § 59.18.060(1) (2004) for the proposition that a dangerous condition is one that substantially “impairs the health or safety of the tenant”); Lian v. Stalick, 62 P.3d 933, 936 (Wash. Ct. App. 2003). Both cases cite to the RESTATEMENT (SECOND) OF PROP.: LANDLORD & TENANT § 17.6 (1977). (“A landlord is subject to liability for physical harm caused to the tenant and others upon the leased property with the consent of the tenant or his subtenant by a dangerous condition existing before or arising after the tenant has taken possession, if he has failed to exercise reasonable care to repair the condition and the existence of the condition is in violation of: (1) an implied warranty of habitability; or (2) a duty created by statute or administrative regulation.”). N.Y.U. JOURNAL OF LEGISLATION & PUBLIC POLICY QUORUM EHMAN & REOSTI

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To incur liability, the landlord must have control over the part of the property where the defect occurred.161

In cases where the issue is an allegation of inadequate security, courts or the state legislature should define the factors that render criminal conduct reasonably foreseeable. These should include factors that actually relate to foreseeability:

1) whether criminal conduct previously occurred on or near the property at issue; 2) how recently the prior criminal conduct occurred; 3) how often the prior criminal conduct occurred; 4) how similar the prior criminal conduct was to the conduct that occurred on the property; and 5) what publicity was given to the prior criminal conduct that would indicate that the land owner knew or should have known about the potential for crime.162

This tort standard also recognizes that landlord behavior related to premises maintenance, adequate security, and appropriate management are more relevant factors in increasing tenant safety, and that these, rather than a past criminal history, should be the focus of liability. Research on criminal activity on or around rental property highlights the importance of factors unrelated to the potential for criminal behavior among tenants with a criminal record. For example, one study investigated the link between residential rental property ownership characteristics and crime.163 In that study, rates of crime and disturbances were significantly higher in rental properties where property managers lived off-site, lending credence to anecdotal suspicions that absentee landlords or property managers are less effective when it comes to maintaining safety.164

C. Public Safety and Rehabilitation

The Washington legislature has declared that the criminal justice system should protect the public, reduce the risk of offenders reoffending in the community, and encourage the rehabilitation of felons through employment.165 It has al-

161 See Faulkner v. Racquetwood Vill. Condo. Ass’n, 23 P.3d 1135, 1137 (Wash. Ct. App. 2001) (finding no duty to protect tenant from harm suffered in an area outside landlord’s control). 162 See Stan Perry & Paul Heyburn, Premises Liability for Criminal Conduct: When is Foreseeability Established?, THE HOUSTON LAWYER (Oct. 1998) at 21–22 (citing Timberwalk Apts., Partners, Inc. v. Cain, 972 S.W.2d 749, 757 (1998)). 163 See Terance Rephann, Rental Housing and Crime: The Role of Property Ownership and Management, 43 ANNALS REGIONAL SCI. 435 (2009). 164 Id. 165 See WASH. REV. CODE ANN. § 9.94A.010 (West 2014); WASH. REV. CODE ANN. § 9.96A.010 (West 2014). N.Y.U. JOURNAL OF LEGISLATION & PUBLIC POLICY QUORUM EHMAN & REOSTI

26 QUORUM 2015 so recognized that housing increases the likelihood of success in the community for previously incarcerated individuals.166

The social science studies discussed in the previous section establish a link between reduced recidivism and stable housing.167 While landlords purport to screen out tenants with a criminal history as a safety precaution,168 this behavior may actually decrease overall community safety. Courts considering negligent renting claims have recognized the competing interests in landlords protecting tenants and staff and the need for people with conviction histories to find housing. One court turned down a tenant’s claim that a landlord was obligated to reasonably screen potential tenants.169 In rejecting this claim, the court raised concerns about a landlord being expected to predict possible future threats based up- upon a criminal record. According to the court, this type of liability would:

induce landlords to decline housing to those with a criminal record in the absence of evidence of an actual threat to cotenants or individual tenants. That would only export the ‘problem’ somewhere else. The resulting unstable living conditions or homelessness may increase the chances of recidivism to the detriment of public safety170

Similar to courts considering negligent renting liability, courts considering negligent hiring cases recognize the competing interests in employers protecting customers and employees and the need for ex-offenders to find jobs. One New York court noted that people with criminal records are “free to walk the streets, visit the playgrounds, and live and work in a society without being branded or seg- regated – the opportunity for gainful employment may spell the difference between recidivism and rehabilitation.”171 The Supreme Court of Michigan expressed its understanding of the difficulties people with criminal records face in finding employment: “We share … concern for those persons who, having been convicted of a crime, have served the sentence imposed and so are said to have paid their debt to society and yet find difficulty in obtaining employment.”172 One Florida court addressed the tort liability and criminal records issue head on:

[T]o say an employer can never hire a person with a criminal record at the risk of being held liable for the employee’s tortious

166 See WASH. REV. CODE ANN. § 35.82.340 (West 2014). 167 See supra Part II. 168 See Oyama, supra note 146, at 187–88. 169 See Davenport v. D.M. Rental Props., Inc., 718 S.E.2d 188, 191 (N.C. Ct. App. 2011) (citing Anderson v. 124 Green St., LLC, 2011 WL 341709, at *5, (Mass. Super. Jan. 18, 2011), aff’d, 974 N.E.2d 1167 (2012)). 170 Id. 171 See Haddock v. City of New York, 553 N.E.2d 987, 992 (N.Y. 1990). 172 See Hersh v. Kentfield Builders, Inc., 189 N.W.2d 286, 289 (1971). N.Y.U. JOURNAL OF LEGISLATION & PUBLIC POLICY QUORUM EHMAN & REOSTI

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assault, ‘flies in the face of the premise that society must make a reasonable effort to rehabilitate those who have gone astray.’173

Establishing a tort law standard that eliminates negligent renting claims based upon a landlord’s decision to accept an applicant for a criminal record ef- fectuates the public policy goals of safety and rehabilitation. Such a standard would provide strong public policy support for a legal rule that such behavior is not foreseeable as a matter of law rather than leaving the question of foreseeability in these cases for the fact finder.174

CONCLUSION

An applicant’s criminal record should be absent from the analysis of whether a future crime was foreseeable by a landlord because the mere presence of a record does not implicate foreseeability.175 Washington courts should not send this question to the jury as the Georgia appeals court did. Rather, Washing- ton courts should examine the relevant research set out above to find that there is no reasonably foreseeable likelihood that a rental applicant is a future threat based solely on a criminal record. A local or state legislature should also adopt this standard to ensure clarity regarding liability for landlords when making these rental decisions and to further the public policy goals outlined above. A reasonable standard would require landlords to meet their common law and statutory duties to maintain safe and habitable premises while removing barriers to housing for qualified applicants with criminal records.

The assumption that a criminal record is accurately predictive of a future problematic tenancy is not supported by current social science research. Tort law should not rely on assumptions about future threats based on a past criminal record when empirical evidence suggests that the risk is not inherent or predictable. Washington needs a rational uniform tort law standard that protects tenants and incorporates the public policy goals of public safety, rehabilitation and fair housing. The standard we suggest—that an applicant’s future criminal behavior is not foreseeable solely based on a past criminal record as a matter of law—meets these criteria.

173 See Garcia v. Duffy, 492 So.2d 435, 441 (Fla. Dist. Ct. App. 1986) (quoting Williams v. Feather Sound, Inc., 386 So.2d 1238, 1241 (Fla. Dist. Ct. App. 1980)). 174 See Schooley v. Pinch’s Deli Mkt., Inc., 951 P.2d 749, 754 (Wash. 1998) (noting that foreseeability is generally an issue of fact for the jury). 175 There is no method that completely and accurately measures recidivism. See Robert Weisberg, Meanings and Measurements of Recidivism, 87 S. CAL. L. REV. 785 (2014). There are also methods of attempting to predict dangerousness, but there is no agreed-upon method or simple way to make this determination. See supra notes 107–113.