10/20/2010 05:16 pm ET Updated May 25, 2011

How Arrest Record Screening Fails to Fight Crime and Impedes Fair Housing

Landlords and local housing
authorities should stop using arrest records to screen tenants. Bans
on tenants with past arrests simply do more harm than good. They give
people a false sense of security against crime, and they deprive disproportionately
more racial minorities of needed rental housing for nothing more than
an unproven accusation. An end to this practice will require the help
of the U.S. Department of Housing and Urban Development (HUD) and the
Civil Rights Division of the U.S. Department of Justice (DOJ).

Housing does not become safer
just because people with arrest records are banned. Reducing crime requires
something that predicts future criminal activity. But arrest records
do not work because, as courts have long recognized, they can't even
indicate past criminal activity reliably.

According to the U.S. Supreme
mere fact that a man has been arrested has very little, if any, probative
value in showing that he engaged in any misconduct,"
even outside the context of a criminal
trial. Another federal court has referred to arrest records simply as
"gutter rumors
when measured against any standards of constitutional fairness to an

The Illinois Appellate Court
recently took a similar position against the use of arrest records,
this time in the housing context.
v. Chicago Housing Authority

involved Keith Landers, an African-American man who was placed on the
waiting list for public housing in 1995. In the 13 years it took for
Mr. Landers to reach the top of the waiting list, he went through long
periods of homelessness and found himself arrested several times, though
he was never convicted. Despite the instability that often comes with
homelessness, Mr. Landers managed to jump through all the administrative
hoops necessary to stay on the waiting list until his name finally came
up at the end of 2008.

Because of his prior arrests,
however, the Chicago Housing Authority denied Mr. Landers' application.
It was unwilling to consider the fact that none of the arrests led to
a conviction or that he denied committing the underlying offenses, most
of which were minor and stemmed from having to live out in the open. After
reviewing these factors, the Illinois Appellate Court could find
"no evidence whatsoever
that [Mr. Landers] engaged in criminal activity where the outcome of
his arrests was the consistent dismissal of the charges."
The court, therefore, refused to equate
his past arrests with proof that Mr. Landers was a threat to the health,
safety, and welfare of the public housing community.

The problem with these policies
is not just they do not fight crime very well; it's that they also
disparately impact racial minorities in the name of fighting crime. Arrested
at disproportionately higher rates, racial minorities are more likely
to be denied housing if arrest records are used as tenant screening
criteria. African-Americans, for example, accounted for nearly 27% of
the arrestees nationwide in 2004, but only about 12% of the population. This
unjustified racial disparity has led the Equal Employment Opportunity
Commission (EEOC) to declare
use of arrest records in employment decisions as suspect
under Title VII, the federal civil
rights law that prohibits employment discrimination. It is time for HUD
to make a similar declaration under the Fair Housing Act and to work
with DOJ to ensure that this practice ends.

Currently, HUD offers no guidance
on the use of arrest records for private landlords. Similar guidance
is lacking for local public housing authorities, even though these recipients
of federal funding are obligated not only to refrain from discriminating,
but also to affirmatively promote the right of fair housing. Without
direction from HUD or DOJ, arrest records will continue to be a significant
barrier for many of the people who need rental and public housing the
most, putting many, like Mr. Landers, at risk of homelessness.

To prevent this outcome, HUD
should bar housing authorities and private owners participating in HUD
programs from using arrests to screen applicants. In addition, DOJ and
HUD should work together to use the Fair Housing Act to challenge housing
policies that ban people with arrest records. For examples of what happens
when these bans are lifted, they can look to the housing authorities
of New York City, Baltimore, and Los Angeles--all of whom have stopped
screening applicants for arrests as a matter of policy. This refusal
to consider arrests has not compromised the safety of their public housing
communities either. Indeed, they report
crime just as effectively with their policies as PHAs with far harsher
thus confirming
the need for an end to the ineffective, racially disparate use of arrest
records as a screening device.

The Legal Assistance Foundation
of Metropolitan Chicago represented Mr. Landers, and an amicus brief
in support of Mr. Landers was filed by the Shriver Center, the Mandel
Legal Aid Clinic, Uptown People's Law Center, Chicago Area Fair Housing
Alliance, Chicago Coalition for the Homeless, Legal Action Center, and
National Center on Homelessness and Poverty.

Crossposted from the Shriver Brief.