Proposed Rule Aimed at Reducing Housing Barriers for People With Prior Criminal Histories

Comment Letter

TRENTON – Attorney General Matthew J. Platkin and the Division on Civil Rights (DCR) joined with the Attorneys General of Maryland, Massachusetts, and Pennsylvania to co-lead a multistate comment letter supporting the U.S. Department of Housing and Urban Development’s (HUD) proposed rule to improve access to safe and affordable housing.

The Proposed Rule, titled Reducing Barriers to HUD-Assisted Housing, is aimed at reducing criminal history-based barriers to public housing. As the letter explains, many public housing authorities use a wide range of restrictive policies and practices to exclude individuals with criminal records from their programs. These policies are often contrary to federal guidance and established caselaw. Additionally, these barriers disproportionately impact Black people and other people of color.

In the letter, the Attorneys General argue that the Proposed Rule will not only improve access to housing, but will also reduce the harm to minority home seekers from restrictive barriers to housing while at the same time promoting public safety. In the letter, the Attorneys General also offer suggestions to further enhance protections against housing discrimination and discriminatory practices, which are intertwined with long-standing racial inequities in the criminal legal system. 

“Housing instability increases the chance of someone reoffending, but finding safe, decent, and affordable housing is still a difficult and sometimes impossible task for those who may have had a prior interaction with the criminal legal system, no matter how long ago, or how minor, the infraction may have been,” said Attorney General Platkin. “New Jersey has been a leader in attempting to break this vicious cycle, with the 2021 passage of the Fair Chance in Housing Act, which I am proud to enforce. With this letter, I and other Attorneys General who are leading the way in this area are asking HUD to standardize a fair and balanced approach to this issue across the country.” 

“New Jersey has led the country in combating housing discrimination based on prior criminal history. Our experience with the Fair Chance in Housing Act shows that restricting criminal history discrimination can expand housing access and promote public safety,” said Sundeep Iyer, Director of the Division on Civil Rights. “HUD’s proposed rule is an important step towards expanding housing access, and we urge HUD to continue taking steps to ensure that all prospective tenants looking for a safe place to live are evaluated on an individualized basis and do not face discriminatory barriers to housing.”

The letter co-led by Attorney General Platkin explains that the Proposed Rule serves several important purposes. It helps HUD follow its legal mandate to implement the federal Fair Housing Act (FHA); it aligns with states’ efforts to advance fair housing and combat housing discrimination; and it ensures HUD’s regulations address longstanding racial injustice and housing insecurity to improve equitable access to fair housing.

As the letter explains, many public housing authorities (PHAs) and HUD-assisted housing owners continue to use a wide range of restrictive policies and practices to exclude individuals with prior criminal histories. However, mounting evidence shows that these exclusions do little to further legitimate interests such as public safety. In fact, these exclusions are counterproductive to public safety, since increasing access to fair housing builds strong communities and reduces the chance of recidivism.

Based on their own experiences, the states offer several suggestions to further HUD’s efforts to expand fair and equitable housing, including:

• Establishing and standardizing a reasonable lookback period to achieve fairness, transparency, and consistency in the tenant screening process. A “lookback period” is a restriction on how far back a housing provider can look for an individual tenant’s criminal history. Unnecessarily long lookback periods disproportionately affect Black, Brown, and Native communities, whose members are more likely to be impacted by the criminal legal system.
• Restricting the use of arrest and related records. An arrest merely signifies that there was suspicion of wrongdoing, not that any crime was committed. Arrests do not always lead to charges or convictions.
• Requiring individualized assessments in housing eligibility and termination decisions, since current practices allow PHAs and owners of HUD-assisted housing too much discretion in setting admission and eviction policies. These policies perpetuate systemic discrimination and fail to account for mitigating circumstances that demonstrate an individual’s rehabilitation and suitability for housing. Prohibiting denials based solely on non-disclosure of prior history with the criminal legal system. Individuals with a criminal record may not disclose their past for various reasons, such as the record being sealed, not understanding the question on a housing application, or disagreements about whether a prior disposition was a “conviction.”

The comment letter also notes that there are only three statutory exclusions that must be enforced when considering renting and eviction decisions: convictions for methamphetamine production in public housing, evictions for drug-related criminal activity, and lifetime registration on a state sex offender registry. All other offenses fall within HUD’s rulemaking authority, allowing for flexibility and discretion in the development of housing policies.

Attorney General Platkin, Maryland Attorney General Anthony Brown, Massachusetts Attorney General Andrea Campbell, and Pennsylvania Attorney General Michelle Henry were joined by the Attorneys General of Colorado, Delaware, District of Columbia, Illinois, Maine, Minnesota, Nevada, New York, Oregon, and Vermont.

This matter was handled by Assistant Section Chief Andrew Yang and Deputy Attorney General Ashleigh B. Shelton, under the supervision of Section Chief Jessica Palmer, of the Special Litigation Section within the Division of Law’s Affirmative Civil Enforcement Practice Group.

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The New Jersey Division on Civil Rights enforces the New Jersey Law Against Discrimination, the New Jersey Family Leave Act, and the Fair Chance in Housing Act, and works to prevent, eliminate, and remedy discrimination and bias-based harassment in employment, housing, and places of public accommodation throughout New Jersey.

To find out more information, go to www.njcivilrights.gov.

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