As a result of their convictions, ex-offenders face many collateral consequences, including lack of access to housing. Landlords increasingly rely on background screens of prospective tenants to identify criminal history.1 Sex offenders may have an even harder time obtaining housing. Those on a sex offender registry for life are barred from federally assisted housing,2 and sex offenders may also be subject to residency restrictions3 and community notification requirements.4 Recently, Seattle adopted the Fair Chance Housing Ordinance,5 which prohibits housing providers from making rental decisions on the basis of an individual’s criminal history, except for sex offenses committed as an adult for which the individual is on a registry.6 Seattle’s ordinance will likely protect many ex-offenders in their search for housing. But its exception for registered sex offenders is inconsistent with the ordinance’s goals.
Seattle’s sweeping law follows the efforts of several jurisdictions to prevent or reduce housing discrimination against ex-offenders. These range from a complete ban on considering criminal history in Urbana, Illinois,7 enacted in 1979,8 to the more recent and limited laws in Newark, New Jersey; Washington, D.C.; Champaign, Illinois; Richmond, California; and San Francisco, California, which restrict what criminal history a landlord can consider and require the landlord to perform an individualized assessment.9 Not all developments have been in favor of ex-offenders, though: similar ordinances in Wisconsin were preempted in 2011 when the state legislature prohibited localities from placing these restrictions on landlords.10 On the federal level, the Department of Housing and Urban Development (HUD) issued a 2016 guidance noting that, because African Americans and Hispanics face “disproportionately high [conviction] rates,”11 they are likely “disparate[ly] impact[ed]” by tenant criminal screenings,12 which violates the Fair Housing Act13 unless the screenings are justified by a “substantial, legitimate, nondiscriminatory” reason.14 The HUD guidance stated that “[a] housing provider must . . . be able to prove through reliable evidence that its policy or practice of making housing decisions based on criminal history actually assists in protecting resident safety and/or property.”15
The Seattle Fair Chance Housing Ordinance is a comprehensive restriction on landlords’ ability to consider criminal history.16 Its goals include reducing discrimination, reducing recidivism, and promoting reintegration through access to housing.17 First, the ordinance prohibits landlords from automatically rejecting tenants because of their criminal history, and from “[a]dvertis[ing or] publiciz[ing]” that they will not accept tenants with criminal histories.18 Second, the ordinance prohibits housing providers from asking about or “requir[ing the] disclosure” of criminal history.19 Third, the ordinance prohibits landlords from carrying out any “adverse action” based on nearly all criminal history, except for sex offenses that were committed as an adult and are listed on a registry.20 Adverse actions include “[d]enying tenancy,” falsely “[r]epresenting that . . . property is not available,” “[t]erminating a lease,” and “refusing to add a household member to an existing lease.”21
Housing providers can consider sex offenses that the tenant, prospective tenant, or household member committed as an adult22 when the provider obtained knowledge of the offenses “solely . . . from a county, statewide or national sex offender registry.”23 Before taking an adverse action based on such information, the landlord must show a “legitimate business reason” — that the action is “necessary to achieve a substantial, legitimate, nondiscriminatory interest.”24 To meet this burden, the landlord “must demonstrate, through reliable evidence, a nexus between the policy or practice and resident safety and/or protecting property” while considering six factors.25 This individualized assessment is similar to the standard set out by HUD in its guidance on the consideration of criminal records under the Fair Housing Act.26 If the landlord does take an adverse action based on an individual’s sex offense, then she must notify the individual of the registry information “that was the basis for the adverse action.”27 In accordance with federal requirements, providers of federally assisted housing can deny tenants who have been convicted of making methamphetamine on public housing property or who are on a sex offender registry for life.28
The Seattle Office for Civil Rights can issue guidelines and rules29 and investigate complaints30 related to the ordinance. The Office can also attempt conciliation if it finds “reasonable cause . . . to believe a violation has occurred.”31 If no conciliation is reached, the City Attorney can file a charge, which will be decided by a Hearing Examiner and can be appealed to Superior Court.32 The Hearing Examiner may grant compensatory and injunctive relief33 and may assess civil penalties up to $11,000 for a single violation and up to $55,000 for multiple recent violations.34
A draft of the ordinance originally allowed landlords to consider criminal convictions issued within the previous two years (referred to as the two-year lookback), with the same requirement of having a “legitimate business reason” for taking an adverse action based on such records.35 This two-year lookback was removed for several reasons: First, getting rid of the lookback would help to decrease recidivism rates in the first two years because individuals newly released from prison would have greater access to housing.36 Second, there was no evidence of a relationship between having a criminal record and being a bad tenant.37 And third, before the ready availability of criminal records, there had never been “an outcry” that housing “was severely compromised” — this problem never “existed.”38
The legislative history is mostly silent as to why there is an exception for registered sex offenders, although statements by Seattle Mayor Ed Murray when introducing the proposed legislation suggest it was a compromise to placate landlords. Mayor Murray noted that the legislation was “balanced,” giving the sex offender exception as an example.39 Also, the ordinance lists the low recidivism rates of juvenile sex offenders as a reason for not allowing consideration of those sex offenses,40 implying that the (perceived41) high recidivism rates of adult sex offenders prompted their exclusion from the ordinance’s complete ban.
Seattle’s ordinance might be “the most progressive housing policy passed by any major U.S. city to date.”42 It will likely do much to help ex-offenders find affordable housing. But the exception for adult sex offenders is inconsistent with the ordinance’s stated goals of reducing discrimination, reducing recidivism, and encouraging reintegration into society.43 The exception calls for an individualized assessment that might lead to arbitrary or discriminatory outcomes. Denying housing to sex offenders may also increase their likelihood of reoffending. Additionally, lack of access to housing for sex offenders frustrates their reentry into society by reducing their feelings of dignity and their stability. Proponents of the exception might argue that sex offenders are particularly dangerous offenders. But that is likely not true, and evidence suggests that allowing sex offenders to live in rental housing would not lead to an increase in sex crimes.
The application of the legitimate business reason test might lead to discriminatory results because minorities are disproportionately represented on sex offender registries and the test’s subjectivity leaves room for bias. The racial disparity in criminal convictions that the City Council aimed to address also exists in sex offender registrations: a recent study found that “black sex offender registration rates were at least three times as high as white rates” in three states, including Washington,44 so even nondiscriminatory application of the test will likely disproportionately impact African Americans. The test is also subjective: although a landlord will need to show that her screening policies “accurately distinguish between applicants that pose an unacceptable level of risk and those that do not,”45 this standard leaves a lot of discretion to the landlord, such as in assessing the “nature and severity” of the crime or the extent of the prospective tenant’s rehabilitation.46 Fair housing testing in Seattle has revealed that landlords already screen tenants differently based on race.47 This discrimination, coupled with the difficulty of risk assessments,48 may lead to racial bias in the application of the legitimate business reason test.
Denying housing to registered sex offenders might also increase sex offenders’ recidivism rates, making Seattle less safe. Given the correlation between access to stable housing and reduced risk of reoffending,49 providing full access to housing for sex offenders would likely reduce recidivism rates.50 Indeed, this was the logic that, in part, led to the City Council getting rid of the two-year lookback. There are fewer studies on the effect of housing on the recidivism rates of sex offenders specifically,51 but a New Zealand study found that access to housing was correlated with nonrecidivism among sex offenders.52 Additionally, lack of housing may make life outside of prison less appealing, and therefore make any potential return to prison less costly.53 This conception helps to explain why lack of access to housing — as well as other collateral consequences — makes it more likely an individual will recidivate.
The exception is also inconsistent with the ordinance’s goal of promoting reintegration. First, the legitimate business reason test will likely work to deny a large percentage of sex offenders housing, given the fear of housing those on the registry, in part because of beliefs in high rates of recidivism.54 Given its consideration of factors such as time since conviction and good rental history, the test will also serve to deny those who are likely most in need of housing, such as those recently out of prison or those without a history of stable housing.55 Second, denials of housing to sex offenders may force them to live away from their support systems.56 Third, lack of access to stable housing also makes it harder to get a job,57 so sex offenders who are denied housing may have increased difficulties earning money and making connections with society.
One logical reason to single out a group of offenders is if they are more dangerous, as sex offenders are perceived to be.58 Such fears are understandable given the prevalence of sexual violence.59 But two points caution against this argument. First, a large majority of sex offenders do not reoffend, and their recidivism rates are the same as or lower than other violent offenders.60 Second, research on residency restrictions, laws that restrict how close sex offenders can live to places where children congregate, is telling.61 Studies suggest that these restrictions are largely ineffective, in part because child molesters often abuse children with whom they have preexisting social relationships, rather than those whom they are near.62 Similarly, perpetrators of sexual violence against adults are also more likely to have preexisting social relationships with the victim.63 Although residency restrictions are in many ways different from the individualized denials of rental housing at issue in the ordinance, the failure of residency restrictions at least shows that what seem like commonsense policies aimed at reducing sex crimes may not work as intended (and, given the relationship between stable housing and recidivism, may even make communities less safe).
Seattle recognized that released offenders need housing and passed an ordinance to address that. The city even prohibited the consideration of juvenile sex offenses in housing decisions but for some reason stopped short of excluding all sex offenses. Sex offenders who have served their time need a place to live. Seattle’s ordinance will likely help many ex-offenders; it is worth considering, though, why it could not help all.