The Case for a Fair Chance Housing Act: From A Brother’s Perspective
By Zachariah Oquenda, Root & Rebound California Policy Attorney
Shelter is a fundamental need for every human being. People with criminal records are no exception. And if housing is a human right, then it must be a right afforded to all, including those who have been arrested and convicted of crimes.
Benefits of Stable Housing
Housing access and stability provides multitudes of benefits beyond simply protecting us from the elements. According to the US Interagency Council on Homelessness, stable housing improves people’s outcomes in employment and income, family unity and well-being, mental and physical health, and education success. Most of us take stable housing and its benefits for granted. Basic needs like food storage, hygiene, and sleep can be far harder, if not impossible, without stable housing. People convicted of a crime deserve access to housing and its benefits, but they remain the most likely to be denied them.
For formerly incarcerated people who are reentering society, housing stability is also an essential platform for starting fresh, building confidence, and moving forward with their lives. Not only does housing instability disrupt or halt this progress, but also, housing instability increases the odds of recidivism by at least 70% for each time the person moves. Our society locks people up, and when they do their time and reenter society, we fail them by providing them too little support and imposing extraordinarily high barriers to housing.
The Barrier is Discrimination
Even formerly incarcerated people who are “doing everything right” still may end up homeless or back in jail for reasons simply beyond their control. That’s why, according to reports from PolicyLink and the Prison Policy Initiative, formerly incarcerated people are roughly 10 times more likely to be homeless and 27 times more likely to be unstably housed than the general public.
Unlike with housing discrimination based on race or disability, which is prohibited under federal and state laws, housing discrimination based on someone’s criminal record is legal. For example, California law currently allows landlords to deny someone housing based solely on their criminal record. However, the California Department of Fair Employment and Housing (DFEH) passed regulations that prohibit landlords from using certain screening practices. Just a few examples of prohibited practices include using blanket bans that deny broad categories of people, like all people with felony convictions; considering an arrest that did not lead to a conviction; or denying housing for convictions that have been sealed or expunged. The regulations also provide guidelines to prevent discrimination, like giving a rental applicant the chance to provide evidence of rehabilitation, but landlords still have the discretion to deny someone for their record even if they provide evidence they have rehabilitated. While helpful for some, these regulations fail to meaningfully increase access to housing for too many formerly incarcerated people. People in reentry and their families require much more support.
A Proxy for Racial Exclusion
On November 19, 2020, the LA Times reported on the proliferation of Crime Free Multi-Housing Programs (“Programs”) and the disparate impact of these Programs on Black and Brown renters in California. Crime Free Multi-Housing Programs emerged as a tool for landlords and property owners to maintain so-called “crime free” neighborhoods.
Under the Programs, law enforcement provides free training and resources to help property owners and managers create tools to exclude or remove people deemed a nuisance, dangerous, or threatening.
Some of the tools are fairly innocuous including training on premise liability and fire safety. However, these Programs tend to center practices for screening applicants and requiring “Nuisance Eviction Provisions” and “Crime-Free Lease Addendums,” which grant landlords unchecked discretion to exclude and evict people at will for any perceived nuisance or criminal activity whether on or off the premises. That’s a lot of power — too much power.
The LA Times found that in communities across California, Black and Brown tenants were far more likely than White tenants to be excluded or evicted from housing due to these so-called “crime free” housing programs. The core reasons for the racial disparity are twofold. First, these Programs tend to be concentrated in neighborhoods where more people of color live, leading to more enforcement in those areas against the very people the provisions claim to protect. This private enforcement just adds to the momentum of gentrification and displacement. Second, the history of racist policies that drive mass incarceration and have disproportionately criminalized people of color make those same people the targets for exclusion and eviction by landlords. Policies to increase access to housing for, and prevent discrimination against, the people most impacted by mass incarceration will promote racial equity.
The Personal is Political
The impact of a criminal record on access to stable housing is personal.
My younger brother, Noah Oquenda, 22, has experienced several of the systemic barriers that stem from his arrest and conviction history beginning when he was first incarcerated in a juvenile detention facility for drug possession and burglary at the age of 13. Since then he’s run up against barriers getting a job, accessing financial aid for education, securing housing, paying off court-ordered debt, fulfilling his duties as a young father, getting public benefits support, and even getting his driver’s license.
In late 2018, Noah was facing felony drug charges in Illinois. He’d already been locked up for over a month during pre-trial (while his case was pending) because he could not afford bail. Even if he was released on bail, he didn’t have a place to go. I flew from California to Illinois to support my brother and make a direct appeal to the judge to recommend a sentence of probation. The goal was to avoid further trauma of incarceration and allow us to apply to transfer Noah’s probation to be served out in California, where he could move in with my wife and me. Noah knew having a stable place for him would help his chances of successfully completing his probation. Afterall, we had both seen the impact of our father’s incarceration on our family, and his struggles facing the barriers of reentry.
Family support and relationships can be critical to successful reentry. A report by Human Impact Partners and the Ella Baker Center for Human Rights found that 70% of people released from prison believe family is what kept them out, and 82% of people leaving prison or jail expect to live with or get help from their families. What can get lost here, however, is that many families aren’t necessarily equipped to support their loved one. It has been well documented that many people in reentry rely heavily on loved ones to navigate all the barriers of reentry, and more resources should be provided to empower families who want to support. But even someone like me who is trained in the law found it overwhelming to navigate the many complex systems of barriers my brother faced.
It only took a few months to realize that I simply could not provide the support Noah needed in his reentry and recovery, and social services support from the county probation department was lacking (to put it mildly). Noah decided he wanted a go at independence, and he made the decision to try to take on more responsibility for himself. I was worried, but I also wanted him to feel supported and empowered to do what he felt he needed.
While he had been denied a job in San Francisco because of his record, he did find work sorting plastics at Tri-Ced Community Recycling, which is one of the few employers in the area that proactively hires young people with records to help them gain work experience. He saved money and moved in with his girlfriend (now fiancee), Dache (pronounced Day-sha). It definitely helped that he wasn’t required to pass a background check. He seemed to do all right for the next few months before deciding that he did need more structured support to stay on track.
That’s when he was lucky enough that a bed became available in a 90-day rehabilitation program called Second Chance — a program aimed at supporting formerly incarcerated people who struggle with addiction and need housing. Waitlists and demand for supportive housing programs typically make the enrollment process lengthy and unpredictable.
With the support of a case manager, Noah got a better paying job as a lift operator at Living Spaces in Newark, and continued saving money for a rental deposit and first month’s rent on an apartment. He had no room to store his stuff at the group house, so he rented a storage unit for less than $100 per month and began gathering some furniture to prepare for his transition to permanent housing. This is exactly the kind of rehabilitative and self-reflective preparation we hope people in reentry and recovery focus on. Noah was trying to do everything right, everything expected of him.
In 90-days, Noah successfully completed the program, kept his job, maintained his sobriety, and even developed an exit plan. He was ready to test his independence again. Two weeks before Noah was to complete his program, Noah and Dache found a place they liked (and could afford) and visited to tour and to meet the property owner. Thinking it better than waiting for rejection after a background check, Noah decided to be upfront about his criminal record and his upcoming completion of the Second Chance program. To his surprise, everything seemed to go smoothly, and the property owner told them they could move in. Things just seemed to be falling into place.
The day before the move, Dache rented a car to take her stuff to Noah’s storage unit in Newark near Second Chance. On a tight budget, they decided to forgo a hotel and to stay for the night in the storage unit, which was outfitted with a bed and some furniture they’d acquired for their move. What they expected to be one night, would turn out to be three months.
That night, my brother messaged the owner to confirm the time he could come pick up the keys, and the owner replied that Noah couldn’t move in the next day. My brother shared that he and Dache had already moved their stuff to a storage unit and that’s where they were living because his spot in the program was being given to someone else.
“We felt confused and panicked. We didn’t have a fall back plan.” Noah told me. He had no written lease, and he’d not paid a deposit yet, so there was no record of the agreement.
He asked the owner for the reason, and the owner replied that they needed to do some construction on the laundry room of the unit. Noah and Dache explained they wouldn’t mind still moving in and could use the laundromat until the renovation was complete. The property owner expressed that she didn’t think that would work. The owner told them the work would likely take a couple weeks, so they should look for another place. But it was hard enough to find that place, which checked all the boxes for what they needed. Noah and Dache needed to be close to public transit to get to work without a car. Not to mention, each rental application costs money, which they need to save to be able to afford a deposit and rent.
Feeling like they didn’t have any good options, and deciding that a couple weeks wouldn’t be so bad, they offered to wait if the owner would agree to let them move in when the renovation was done. The owner agreed.
“It felt shady, what she [the owner] was doing, but we felt like we really didn’t have a choice. There wasn’t a lot of housing available that we could afford.” Noah said.
At the end of those two weeks, Noah and Dache checked in again with the property owner, who said that the work hadn’t been started and that Noah and Dache should find another place.
When I asked Noah what it felt like, he shared, “I think the landlord just didn’t want to rent to us because of my credit or my record, but she felt bad because of our situation. Honestly, I felt like she was stringing us along. I would have preferred she just told me that she didn’t want us to live there — whatever the reason, whether for my record, or whatever. But the bit about the construction just didn’t make any sense to us.”
Setting questions of contract law or tenant’s rights violations aside, even if the landlord did discriminate against Noah based on his record and recovery efforts, nothing in California law requires her to disclose that. Actually, property owners don’t have to disclose any reason for their decision to deny a rental application.
Noah and Dache were left in limbo, biding their time living in the storage unit to save money on a hotel, but ultimately they became discouraged and frustrated.
“We tried to make the best of it.” Dache said. “We bought some additional things like a wifi hotspot, a dresser, a mini-fridge, and even a stove top. It wasn’t so bad for the first week. But after a couple weeks, I began feeling like I was sitting in a metal prison cell — especially when I was there alone. I couldn’t get comfortable worrying about safety and other people living in other units with no security around. We were also worried about getting caught because we didn’t want to end up on the street.”
After the first two weeks, it became clear that the owner was never going to let them stay, and they continued looking for other places. During the search Noah and Dache were constantly denied or deterred altogether from applying. Housing ads on craigslist and other sources often explicitly ban anyone with a felony from applying — known in reentry advocacy as “blanket bans.” As mentioned above, these are illegal in California, but they are prolific.
The California Department of Fair Employment and Housing (DFEH) is still just beginning to target illegal rental screening practices. Just this May, the DFEH took its first step in this effort when it launched a new public complaint portal aimed to combat discriminatory advertisements like blanket bans.
Seeing ads like those and getting questions from landlords about credit history and his felony conviction history, Noah often felt dejected and began accepting the idea that he was stuck and wasn’t getting out. Worse, he doubted himself and questioned if he even deserved decent, stable housing.
Noah recounted, “I thought to myself, maybe it’s better that we just stay in the storage unit and save money and buy a van to renovate to live in. Honestly, I just started getting used to it.”
And he’s not alone in feeling that. There’s a reason why studies estimate that between 25%-50% of people who experience chronic homelessness have a criminal record. Hint: it’s not because they want to survive on the street or in a car.
Like my brother, many people in reentry can feel boxed in with an array of bad options. It’s not hard to understand how they can internalize the message society is sending: you don’t belong and your life doesn’t matter. And when you begin to believe that about yourself, it can be hard to envision your life or circumstances being different. Even when I reached out to offer Noah more help, he didn’t feel comfortable accepting it.
So they stayed in the storage unit. A little over three months of searching, and in February 2020, Noah and Dache found a room for rent and a landlord who was willing to give them a fair chance. I rented a U-haul and drove to help them move. It would seem their move came just in time because while the Covid-19 pandemic ramped up in mid-March, they learned Dache was pregnant with their son, Seidon. My nephew was born in late Fall of 2020. And over the last year, Noah has maintained his sobriety, remained stably housed, and, as of May 2021, completed his probation term.
“I did it, bro!” He messaged me the day he got off probation. “I’m in awe. I finally made it. I’ve dreamed about this day, to be truly free to focus on my future. My son would not be here if it wasn’t for that experience or the trials we had to go through, and I wouldn’t trade my family for anything.”
I love my brother. He’ll always be my little brother. He’s stronghearted, optimistic, and resilient. He’s also a survivor. He has so much to offer the world, if he is only given a fair chance. He and his family deserve more than clinging to survival; they deserve the opportunity to thrive.
No one should have to pass trials to access a basic need like housing. My brother deserves not to be judged for the worst moments of his life. My brother deserves a fair chance to live a full life. My brother deserves housing — like everyone else impacted by the criminal legal system — but not because he has served his time and paid his debt to society. He deserves housing because he is human.
A Fair Chance to Access Housing
The laws, institutions, and attitudes that generate housing barriers and discrimination do not need to exist. We’ve made these laws and institutions; we can change them. And we must support formerly incarcerated people in leading the way.
Actually, formerly incarcerated people have already begun leading the way to policy solutions to eliminate housing barriers and discrimination. The first solution is funding long-term supportive housing for people who are released from prison. The second solution is passing Fair Chance Housing laws that eliminate background checks in rental housing advertising, applications, or decision making.
Fully Fund Reentry Housing and Holistic Support Services
Like many of us in California, formerly incarcerated people also face an affordable housing shortage. However, unlike many of us, formerly incarcerated people also carry the stigma of their criminal record, which leads to fewer job opportunities, lower income, and higher rates of housing discrimination. According to the Prison Policy Initiative, people released from prison face the highest risk of homelessness in the first two years of reentry. This means, the first two years of reentry are a critical period to ensure people in reentry have all the right support systems in place to help them succeed.
Unfortunately, reentry support and services, including stable housing, are extremely under-resourced. In California, when people are released from prison, they receive “gate money,” which is limited to a $200 debit card. When only 15% of incarcerated people get picked up by family upon their release, this $200 is often all that people have to pay for a bus ticket, clothing, housing, food, and other essentials. Even though California is one of the most generous states that offer gate money, $200 is hardly enough to live on for a single day with our high cost of living.
Without new investment now, the gaps in services and funding in the reentry system are only going to get worse. In 2011 the US Supreme Court found California’s prisons were so overcrowded that the conditions violated the constitutional rights of the people inside. Since that decision, California has been slowly reducing its prison population by tens of thousands. In May, Governor Newsom announced that 76,000 incarcerated people, a majority of the prison population, may be eligible for an early release date. All these people and their families will need holistic support, including to secure, stable housing and jobs. This means investing in our reentry infrastructure.
We have the resources to do this. The Legislative Analyst’s Office (LAO), which provides expert nonpartisan fiscal and policy analysis on the budget, concluded that projected declines in prison population will lead to five prison closures and savings of $1.5 billion by 2025. The California Department of Corrections and Rehabilitation (CDCR) recently announced plans to close two prisons by July 2022, with projected savings of hundreds of millions of dollars per year.
Root & Rebound, in coalition with dozens of housing and reentry advocacy organizations, is supporting two leading reforms. The first is Senate Bill 1304 (Kamlager), which increases the gate money allowance from the 1973 amount of $200 to an amount equal to the Massachusetts Institute of Technology living wage calculator’s average for one month of living across California: $2,589. This money will help people make a safer transition, meeting the essential needs they have immediately upon their release, so they don’t end up on the street or back in prison or jail. While we believe more money may be required in certain parts of the state, this is a good start.
The second essential reform to building reentry infrastructure is Assembly Bill 1816 (Bryan), which reinvests savings from prison closures ($200 million over 5 years) into a Reentry Housing and Workforce Development Program that will be run through the California Department of Housing and Community Development. The program will include, among other things, long-term rental assistance, permanent affordable housing, and comprehensive workforce development.
For investments in reentry housing to have maximum impact, the housing and workforce development opportunities need to be open to all people in reentry. Reentry housing and support services will tend to be most critical for formerly incarcerated people without families to return to, especially during the first two years. However, even the best laid plans can fall through.
When Noah was released from jail, he had a place to live with me. Then plans changed, and when he decided he needed more support, he turned to Second Chance’s rehabilitation center to help him stay on track.
Successful reentry requires people to adapt to the challenges that arise. Reentry housing and support services need to be able to meet people where they are and adapt with them. By investing in these programs, we are investing in people. Anytime we invest in people we make it more likely they invest in themselves to grow and succeed. In that world, we are all better off.
Challenge the Stigma and Eliminate Discrimination in Housing
Nevertheless, investing in reentry housing and support services is not enough on its own. As Noah’s experience shows, even when he successfully completed his 90-day rehabilitation program, he wasn’t given a fair chance to show he can be a good tenant because of the stigma associated with his record and recovery. He was pre-judged as undeserving of housing because of his past, rather than being seen for who he was in the present — let alone being seen as the young man he was working so hard to become.
So what does it mean to give someone a “fair chance” to access housing?
According to Just Cities, one of our partner advocacy organizations who led the effort to pass local fair chance housing laws in Berkeley and Oakland, “Fair Chance Housing legislation removes structural barriers to housing and enables landlords to consider the merits of individual housing applications — providing people with a fair chance.”
To put it differently, giving a fair chance means recognizing that each of our identities cannot be reduced down to the worst thing we’ve ever done. We all deserve to be treated with dignity and respect, which means the chance to have access to the same resources and opportunities to thrive.
While a growing number of jurisdictions across the country have passed Fair Chance Housing laws, they can differ in important ways. However, best practices in any Fair Chance Housing legislation will prohibit housing providers from screening criminal history of rental applicants in advertisements or during the application, selection, or eviction processes. And for the limited offenses which some fair chance housing laws permit landlords to still screen for, those landlords are required to disclose the background check information and all reasons for denying a rental application when considering criminal history information.
A fair chance housing law that includes these components is the best path forward to eliminating stigma and discrimination against people with criminal records. It is also the best path for promoting transparency and accountability. For someone like my brother, the security of a fair chance housing law would mean less concern about discriminatory advertisements targeting him for his record, no more boxes to check on the application about his felony record, and increased certainty about being assessed on his merits as a good tenant.
At their core, policies to invest in reentry support services and to create fair chance access to housing in California would advance racial equity, family unity, and public safety.
By passing a statewide Fair Chance Housing Act in California, we would eliminate so-called “crime-free’’ housing laws and programs across the state — reversing the trend of increasing segregation, displacement, and racial exclusion. By increasing reentry support services and fair chance housing access, we would provide formerly incarcerated people and their families access to safe, stable, affordable housing they need to reclaim their lives and re-integrate in the community. Finally, by providing access to stable housing and strengthening family support systems, we would reduce the likelihood that people in reentry will recidivate or return to prison, while increasing the likelihood that they will invest in themselves, their families, and their communities — our communities.
About the author: Zachariah Oquenda is a California Policy Attorney at Root & Rebound. His dedication to serve the community most harmed by mass incarceration is rooted in his experience supporting loved ones directly impacted by the criminal legal system. Over the years he has provided advocacy for and legal services to low-income people concerning housing access, employment, and criminal justice.