February 18, 2020

Crime-Free Ordinances Perpetuate Racial Segregation in Housing

Deborah Archer Associate Professor of Clinical Law at NYU School of Law

At a time when America has become more racially diverse, extreme residential segregation on the basis of race nonetheless persists. The cumulative effects of this segregation on people of color are profound. Residential segregation impacts access to quality education, employment opportunities, government services, and social capital. Facially discriminatory housing laws are illegal. Yet, exclusionary government housing policies continue to sustain racial segregation. In a growing number of communities around the country, housing policy combines with mass criminalization to lock people of color out of housing in predominantly white communities, further producing and entrenching racial segregation. Crime-free housing ordinances and programs (“crime-free housing ordinances”) are some of the most salient examples of this phenomenon. Crime-free housing ordinances are local laws that either encourage or require private landlords to evict or exclude tenants who have had varying levels of contact with the criminal legal system. They are part of the expanding web of zero tolerance policies adopted by private landlords and public housing authorities. Though formally race neutral, these laws facilitate racial segregation in a number of significant ways and their impact on racial segregation is a matter of great public concern.

Under the authority of crime-free housing ordinances, landlords are instructed or encouraged to refuse to rent to perspective tenants with a criminal history, including a history of arrests without conviction, regardless of whether that record suggests a present risk to the safety of other tenants. In some municipalities, landlords are also encouraged to deny rental applications from individuals who were previously evicted because of suspicions that they engaged in criminal activity. The core components of crime-free housing ordinances are lease addendums that allow or require landlords to evict tenants who they believe have engaged in or facilitated criminal behavior. Under the most common version of this addendum, a tenant risks eviction if he or she is alleged to have engaged in or facilitated any criminal activity. Significantly, a resident usually does not have to be convicted in order to be evicted. This creates the possibility that a mere arrest—or even a stop that results in neither arrest nor conviction—might be sufficient to evict someone from their home.

While seeking to maintain the safety of rental properties is a laudable goal, by using contact with the criminal legal system as a tool for exclusion, documented racial biases in policing and the criminal legal system are imported into the private housing market. Through crime-free ordinances, the criminal legal system becomes wrapped around the entire housing process, forcing individuals with criminal legal system contacts to find housing elsewhere. A housing system based on whether a person has involvement with the criminal legal system effectively functions as a racialized system. This is because there are racial disparities at every stage of the criminal legal process. Rejection of a housing application or eviction based on almost any type of criminal legal system exposure will further systemic racial exclusion because of the racial disparities in who has a criminal record.

By relying on criteria destined to exclude people of color at disproportionate rates, crime-free ordinances will perpetuate and increase segregation in the communities that adopt them. And, just as bastions of affluence in certain communities concentrate disadvantage elsewhere, concentrating whiteness in a community will make other communities more segregated. Accordingly, the ordinances will predictably reinforce and perpetuate segregation in surrounding communities by exiling people of color, forcing them to seek housing in already segregated communities, and recreating conditions in those communities that are among the drivers of systemic segregation.

Learn more: Read Deborah Archer's Issue Brief Racial Exclusion Through Crime-Free Housing Ordinances.

A significant part of the danger of crime-free housing ordinances is the broad and over-inclusive definition of criminal activity common in those ordinances. This allows the system to ensnare people who have not engaged in activities that meet traditional notions of “crime” and who have not had any meaningful contact with the criminal legal system. This problem is exacerbated because it occurs against a backdrop of mass criminalization in the United States. The entanglement of crime-free housing ordinances and mass criminalization is pushing already marginalized people further to the edges of society. The problem gets worse the more we criminalize relatively innocuous behavior, thus swelling the numbers of people subject to the web of housing restrictions.

Although many policy makers point to reducing crime as a primary motivation behind the proliferation of these policies, the problem is not actual crime but the myth of criminality. Crime-free housing ordinances indulge many of the dark prejudices at the heart of American history, including a desire to exclude anyone perceived to be a threat. The prevalence of housing exclusions based on any level of contact with the criminal legal system is consistent with America’s broader embrace of exile in response to perceived threats. In so many ways, the history of Black people in America is the history of control and exclusion. Central to that history are the legal and social limitations on how and where Black and other marginalized people can live; exclusions which have outlived both chattel slavery and legally-countenanced Jim Crow. Crime-free housing ordinances are only the newest tool that American communities have developed to define the boundaries of who is allowed to live and thrive within their borders, and thus who can shape and be shaped by living in these communities.

Communities across the United States are beginning to acknowledge the racially disparate impact and far-reaching harms caused by exclusions based on criminal legal system contacts. As a result, there has been progressive movement towards inclusion in areas including employment and political participation. But, for the most part, we have not paid sufficient attention to the ways in which contact with the criminal legal system impacts people’s access to housing. Ensuring the safety of all communities is critically important and should be a priority. Everyone has a right to feel safe in his or her home or community. However, crime-free housing ordinances will not make communities safer. They will continue to divide, further entrenching racial bias and segregation.

Criminal Justice, Disparate Impact, Economic Inequality, Equality and Liberty, Fair Housing, Mass Incarceration, Policing, Race and Criminal Justice, Racial Justice