Former inmates face housing discrimination during the pandemic

Prisons and jails around the country have become COVID-19 hot spots. In an effort to decompress correctional facilities, many state and local governments are allowing early release of some inmates. Those being released face the same problems finding housing as anyone else leaving the criminal justice system. However, they can also face discrimination because landlords fear exposure to the coronavirus.

With so many inmates in small areas, it is impossible to practice safe social distancing in America’s overcrowded prisons and jails. Regular handwashing is also hard to do. Most prison facilities do not allow hand sanitizer because of its alcohol content. Many do not provide soap unless inmates can afford to buy it through the commissary. In these conditions, the coronavirus can spread like wildfire. Some of America’s largest prisons and jails have seen outbreaks, with hundreds of inmates and staff infected at places like Rikers Island in New York City and Cook County Jail in Chicago.

Groups at high risk for complications from COVID-19 are also a large part of the prison population. Older inmates and those with underlying health conditions are especially vulnerable. Prisons and jails have limited ability to quarantine sick inmates. They often must rely on nearby hospitals to treat sick inmates. Many prisons and jails are located in rural areas. An outbreak at the prison could overwhelm a small hospital serving a rural community.

Prisons and jails not only make great incubators for the coronavirus, they can also promote its spread. Although most facilities have suspended family visitation, people cycle in and out of prisons every day. Guards and other prison staff go home to their families. Lawyers visit clients. Deliveries are made. There is even more traffic going in and out of jails, where a large portion of inmates are serving short sentences or waiting a few days for trial.

State and local officials have started releasing some prisoners to relieve crowded conditions and provide less stress to local healthcare systems. Most of these orders have focused on releasing nonviolent offenders and inmates in at-risk groups. Many are also releasing prisoners with less than 30 days left on their sentences.

California has been the most ambitious so far, planning the release of 3,500 nonviolent offenders from March through May. New York City has released 900 nonviolent offenders from Rikers Island. This brings its jail population to the lowest level since World War II. Many state, county and local jails are taking similar steps to protect the prison population and surrounding communities.

Attorney General Barr instructed the federal Bureau of Prisons to evaluate prisoners. Nonviolent offenders at high risk of COVID-19, and who would not pose a risk of repeat offenses, will be selected for release to home detention. There have been some controversial releases, including figures close to President Trump. Michael Cohen, Trump’s former lawyer and “fixer,” and Paul Manafort, Trump’s 2016 campaign manager, were released from federal prison to home detention because of coronavirus concerns.

The coronavirus pandemic has made it harder for everyone to find affordable housing, but former inmates have their own additional challenges. Many landlords and Public Housing Agencies (PHAs) run criminal background checks on prospective tenants. As reports grow about COVID-19 outbreaks in prisons, many landlords may choose not to rent to people leaving the corrections system, even if they are nonviolent offenders or have served most of their sentences.

HUD fair housing guidance to PHAs and other owners of federally assisted housing says that a large proportion of inmates are from groups protected by the Fair Housing Act (including racial, ethnic, and religious minority groups). Landlords around the country have historically used criminal records as a justification for racial discrimination. HUD’s guidance said that landlords had to provide more housing opportunities for people leaving the prison system. 

HUD recognized the importance of criminal background checks to keep all residents safe. But it has also said that landlords cannot use arrest records to justify banning an applicant. Only convictions can be used to justify denying an applicant or evicting a tenant. This is because someone may be arrested by later having the charges dropped or be found not guilty at trial. HUD’s guidance also said that landlords should look carefully at the full criminal record. Were the offenses nonviolent? Did they happen a long time ago? Is there evidence of rehabilitation while jailed?

People leaving prisons and jails often ask families to put them up for a while. If a landlord objects, the family may risk eviction. Landlords can ask guests to leave if they will be staying longer than the amount of time allowed on the lease. Many leases also ban overcrowding, and landlords can ask people to leave if there are too many people staying in the unit.

Marie Claire Tran-Leung of the Shriver Center on Poverty Law spoke on a May 11 webinar sponsored by the National Low-Income Housing Coalition (NLIHC). Tran-Leung said three things get in the way of people finding a place to live upon their release from prison: Earnings barriers, tight rental markets, and discrimination. She shared three requests for PHAs that would help inmates returning to family in federally assisted housing during the coronavirus pandemic. 

First, PHAs should extend the length of time guests can stay during the pandemic. This will allow former inmates to shelter safely with family for the duration of the crisis. The CARES Act provided a moratorium on evictions in all federally assisted housing. However, having an unlawful guest is a lease violation that is not covered by the CARES Act. If PHAs do not adjust their guest policies, families could risk eviction.

Second, PHAs and other owners of federally assisted housing should be flexible in their use of criminal background checks. The people being released from prisons and jails because of the pandemic are low-risk offenders or those who have served most of their sentences. Landlords certainly have a right to screen for tenants that may pose a danger to other residents. But with the threat of homelessness during the pandemic, landlords should be flexible when looking at criminal records.

Third, Tran-Leung said that PHAs and landlords should waive the standard apartment occupancy limits. This will allow loved ones to stay without fear of eviction for an overcrowding violation. Having too many people staying in a unit is also a lease violation that is not covered by the CARES Act.

Prisons and jails are potential hotbeds for the incubation and spread of the coronavirus. People trying to reintegrate into the community face challenges finding affordable housing in the best of times. During this pandemic, former inmates find themselves at even greater risk of homelessness. Flexibility by Public Housing Agencies and private landlords alike will allow former inmates to self-quarantine, keep their families together, and slow the spread of the coronavirus in our communities.