Housing Bans on the Justice-Involved ‘Violate American Values’: Paper

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The criminal justice system should have no role in determining housing policy, argues a paper from the Harvard Civil Rights-Civil Liberties Law Review.

The paper, entitled “Exile from Main Street,” written by Deborah N. Archer of the New York University School of Law, contends that laws restricting where formerly incarcerated individuals can live have a disproportionate effect on people of color—and actually lead to more crime.

“These laws indulge the dark prejudices at the heart of American history – a desire to exclude anyone perceived [as] a threat,” Archer wrote. “These laws are deeply American, even as they violate the central values of American society.”

Archer outlined the history of laws that exclude those with any sort of criminal history from both public and private housing, demonstrating that these laws have become more extreme.

A number of municipal statutes now exclude from public housing anyone who falls under the open-ended definition of engaging in “criminal activity.”  

“A significant number of public housing authorities adopted policies that reach far beyond the mandates of the legislation and any reasonable definition of ‘criminal activity’ that would impact the health, safety, and enjoyment of other tenants,” Archer wrote.

She said “crimes” that could trigger housing bans have included jaywalking, civil disobedience and violations that occurred over 20 years ago.

Individuals don’t even have to be convicted of a crime to be denied housing or evicted; an arrest is enough to take away one’s right to live where he or she wants, according to Archer.

Many individuals are left homeless because of such policies.

“These policies essentially allow police officers to pick and choose who may live in their community simply by making the practically unreviewable assertion that an applicant or tenant engaged in illegal activity,” Archer said.

These policies primarily hurt African Americans and allow for a type of discrimination that would otherwise be illegal, Archer wrote, citing the example of Thelma Jones, a black mother of two children who was evicted because her white neighbors called the police on her repeatedly for activities such as hosting birthday parties and barbeques.

The merging of policing and housing policy has allowed for the over-policing and “exile” of communities of color, Archer said.

“The most commonplace activities—which would go unnoticed and un-criminalized in other communities—expose residents to police encounters, arrests, and criminal prosecutions,” the paper said.

“The combination of expanding policing-based housing policies and the increase in police officers responding to complaints about Black people living their lives in white spaces together increase the likelihood that Black people will experience exile and that white residential spaces will be preserved.”

Policing-based housing policies are impacted by—and are part of—a larger problem of “mass criminalization”—the increased criminalization of activities that are not traditional crimes, the paper said.

“The criminal legal system continues to expand its reach beyond criminalization by redefining crime and criminals,” Archer said. “The problem of mass criminalization is particularly impactful in the housing context, where “criminality” often takes on the broadest possible definition.”

Mass criminalization is guided by “criminalizing narratives,” about people who commit crimes and instilling fear about these people having access to our communities. This narrative has served to criminalize the behavior children, communities of color, and resistance movements, the paper found.

Effectively, she argued, restrictive housing policies amount to the “weaponization of the fear of criminals,” placing a burden on some of society’s most vulnerable people.

Read her full paper here.

This summary was prepared by TCR intern Maria Trovato. Readers’ comments are welcome.

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