A hearing July 13, 2017 hearing on Fair Chance Housing legislation drew many supporters and more than a few critics. Photo by Alex Bergstrom/Columbia Legal Services

Should Landlords Be Allowed to Discriminate Against Former Prisoners?

A Seattle bill would prohibit blanket-exclusions of former prisoners, and may prohibit criminal background checks by landlords on prospective tenants.

“Former prisoners need not apply.” Should this kind of discrimination be allowed in Seattle’s housing market?

That is the question posed by a new piece of legislation that’s beginning to work its way through Seattle City Council. Sponsored by Mayor Ed Murray and the product of one his ubiquitous task forces, the Fair Chance Housing bill would prohibit landlords from automatically rejecting anyone with a criminal record in advertisements. Also, when screening applications, landlords could only look at convictions on an applicant’s record in the past two years. The bill follows the trajectory set by a 2013 ordinance which similarly prohibits discrimination against former prisoners applying for employment.

“The legislation was developed with input from a stakeholder committee comprised of tenant advocates, landlord associations, affordable housing providers, organizations working on re-entry issues, and people experiencing barriers to housing because of their criminal history,” wrote Murray in a letter accompanying the bill.

The goal of the bill is to mitigate the “New Jim Crow,” as Professor Michelle Alexander christened America’s caste system in her 2010 book of the same name. In the wake of the Supreme Court striking down “Jim Crow” racial segregation laws in the 1950s, Alexander demonstrates with historical evidence, a de facto caste system that uses a criminal record as a proxy for race and/or poverty. Discrimination against former prisoners is widespread across the country, particularly against job or housing applicants.

At a meeting of the Seattle City Council’s Civil Rights, Utilities, Economic Development and Arts (CRUEDA) committee last Thursday, Augustine Cita of the Urban League described his own difficulty searching for housing with a record figuratively hanging around his neck. “I’m really sick and tired of being compared to this monster, boogeyman scary-type criminal when looking for housing,” he said. “In 2016, I was looking for a place to live for my family and I. At that point my conviction was over 10 years old. All I kept hearing was ‘No.’” Several commenters told similar stories.

“Why should we have a law that allows landlords to extrajudiciously punish somebody?” said Councilmember Lisa Herbold. “That’s what our criminal justice system is for, so why should somebody be able to withhold housing from somebody, to continue their sentence, when the courts have determined that their sentence has already been served and they’ve paid the price of their crime?”

Federal law already prohibits automatically rejecting former prisoners from tenant applications, but enforcement is spotty and some fear that the Trump administration will repeal it. “A lot of this bill is very similar to existing federal law, under which a landlord cannot just have a blanket on people with records,” said attorney Nick Straley of Columbia Legal Services. “They have to do an individualized assessment.” But with Trump, the GOP and Jeff Sessions in power, he said, “we can anticipate that there are going to be attacks on that federal law. So it’s crucial that the City of Seattle implement protections here to ensure that we don’t create a new problem of mass incarceration.”

Some commenters at the hearing voiced support for strengthening the bill by removing the two-year lookback period—meaning landlords are allowed to consider criminal records within the last two years. Herbold, who is shepherding the bill, admits the lookback was a “political compromise,” and said she is open to removing it entirely.

However, a significant minority of attendees, mostly landlords, pushed back. The most specific concern: that if a landlord rents to a former prisoner who goes on to commit a serious crime against another tenant, the landlord could be held liable in court for allowing the former prisoner in the first place. If the city prohibits landlords from checking potential tenants’ criminal records, even for the most recent two years, then landlords are being compelled to break the law by recklessly renting to dangerous criminals, the argument goes.

“My concerns about being able to look at a criminal record aren’t my concerns; they’re the neighborhood’s concerns,” said Lizabeth Coler. “I as a landlord do not want to be held responsible for a registered sex offender who lies to me and lies to the neighborhood and offends.”

That’s not how state law works, according Straley. “The only duty you have as a landlord is to provide a safe and secure premises,” he said, which means “good locks and good lighting…If you do that you will be fine, because the state of Washington doesn’t recognize any kind of a tort that is negligent tenant screening.”

In fact, Straley argued, the absence of a lookback period would actually mitigate landlord liability. In criminal record reports, he said, there’s a disclaimer saying that the report hasn’t been fact-checked and could be completely wrong. If landlords rely on such unreliable reports, he said, it could open them to accusations of violating the aforementioned federal rules that require an individualized assessment of each tenant. “The reality is that under current law, landlords have liability,” he said. “Doing away with the lookback removes the liability entirely. From the landlord’s perspective, it actually makes more sense to do away with the criminal record lookback and simply say ‘We’re not going to allow criminal records to be used in making housing decisions.’”

On the question of landlord liability, Herbold says “it’s something I want to look into, but what I heard tonight from people who have experience practicing law in this area is that landlords cannot be held liable for crimes that their tenants do either in the building or in the neighborhood. That is not something they can be legally held liable for.” Herbold said that if it turns out that landlords truly do face such liability, she’s open to adding language in the bill to protect them from it.

Sean Martin of the Washington Rental Housing Association opposed the bill, saying it will drive up rent. “You are not preserving affordable housing by forcing small landlords to sell out of the market” by forcing more and more regulations onto them, he said. “I get emails weekly [from landlords saying] ‘I’m selling my Seattle properties and getting out because I cannot manage this stuff any longer. I’m not a professional property manager…I’m done.’”

Susan Mason of the FARE coalition was also a speaker at the hearing. “I went to prison for fifteen months,” she said. “That was the penalty. [A] private citizen has no right to penalize me, to judge me, and to deny me something that, by being a human being, I need to survive,” she said, referring to housing.

The Fair Chance Housing bill is scheduled for further discussion on July 25 and August 8 at 9:30 a.m. in the CRUEDA Committee.

cjaywork@seattleweekly.com

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