The ability to obtain safe, decent, and affordable housing is critical to the successful reentry and reintegration of formerly imprisoned individuals back into society. Yet many convicted individuals face significant barriers to securing housing, both in the private and the public market. One barrier includes the so-called “invisible punishments”—that is, the legal and regulatory sanctions beyond the criminal sentence imposed in court. For instance, certain classes of felons may be automatically and even permanently banned from receiving public housing benefits or vouchers. A second related barrier is the stigma of a criminal record. Easy access to criminal records makes it easy and efficient for landlords and other real estate professionals to access criminal history information about a prospective tenant or buyer. In fact, because of the vast racial and ethnic disproportionality in the criminal justice system, the use of criminal records in housing decisions has civil rights implications in accordance with the Fair Housing Act. A third barrier is a lack of income in combination with a dearth of affordable housing in the U.S. The employment prospects of the average convicted individual are already dismal, and an ever-growing body of research demonstrates that job prospects and wages are further undermined by criminal conviction. Without stable income, one’s housing prospects are sorely curtailed. This chapter will review what is known about the housing experiences of formerly incarcerated individuals as well as the consequences of these barriers to stable housing.
At this very moment, about one in every 37 U.S. adults—almost 7 million individuals—is in prison, jail, or under some form of community supervision (Kaebel & Glaze, 2016). An additional 5 million people previously served time in prison and 20 million people in the U.S. have a felony conviction (Shannon et al., 2017; see also Muller & Wildeman, 2016). For a variety of reasons related to not only the stigma of a criminal record, but also the loss of human and social capital, formerly incarcerated persons and, more broadly, individuals with a criminal record face daunting challenges to securing stable housing. This is problematic because stable housing is the foundation of rehabilitation and reintegration.
In this chapter, I take stock of what is known about the collateral consequences of contact with the criminal justice system with respect to housing barriers. The American Bar Association (ABA) defines “collateral consequences of conviction” as “legal and regulatory sanctions and restrictions that limit or prohibit people with criminal records from accessing employment, occupational licensing, housing, voting, education, and other opportunities” (ABA, 2013). To this definition it is important to add that the consequences of punishment do not just accrue to the convicted individual, but also to families and communities.
To proceed, I first provide an overview of the common barriers to housing for persons with criminal records. As part of this overview, I provide a contrast between the United States and the United Kingdom in terms of approaches to the privacy of criminal records as well as differences in the provision of government-funded housing assistance. I then describe what is known empirically about the collateral consequences of contact with the criminal justice system for housing opportunities and housing instability. Thereafter I highlight enduring challenges to advancing the collateral consequences literature, particularly data challenges and selection bias.
Formerly imprisoned and convicted individuals face many barriers to securing safe and stable housing, including a lack of income, reluctance or discrimination by private landlords, and a lack of access to public housing and housing vouchers.
Perhaps the most basic hurdle to finding secure housing is a lack of income, which is obviously related to the generally dismal employment prospects of formerly imprisoned individuals, but also to restrictions on benefits to convicted individuals including food stamps, Temporary Assistance for Needy Families (TANF), and Supplemental Security Income (SSI) (Geller & Curtis, 2011; Harding, Wyse, Dobson, & Morenoff, 2014; Herbert, Morenoff, & Harding, 2015). It has been well documented that the employment histories of convicted individuals before even entering prison tend to be low paying and unstable (see Western, 2006). In turn, a criminal record and a stint of incarceration have a negative impact on the likelihood of employment and reduces wages and wage-growth among those individuals who do manage to find employment post-release (Apel & Ramakers, 2018; Apel & Sweeten, 2010; Pager, 2003; Western & Pettit, 2005). Some research finds that income and employment are more important considerations in landlords’ housing decisions than criminal records (Clark, 2007; Evans, 2016; Roman & Travis, 2004), although certainly there is at least an indirect link between criminal records and housing decisions through income and employment.
In combination with the lack of income and unstable employment, access to housing for persons with criminal records is hindered by the dearth of affordable housing in the U.S. Households are regarded as “cost-burdened” if they spend 30 percent or more of their income on housing, and “severely” cost-burdened if housing costs exceed 50 percent of income. The Joint Center for Housing Studies of Harvard University (2016) reports that the number of cost-burdened households in the U.S. increased from 17.7 million in 2008 to 21.3 million in 2014. Moreover, there are 11.4 million households in the U.S. paying more than 50 percent of income for housing.
This increase in the number of cost-burdened households is influenced by a variety of factors, including the fact that wages have not kept pace with the growth in housing costs over the last several decades (Herbert et al., 2015). Rental vacancy rates plunged to a three-decade low in 2015, down from double-digits to 7.1 percent (Joint Center for Housing Studies, 2016). In turn, low vacancy rates have contributed to an increase in median rents, with rents increasing by 3.6 percent just between 2015 and 2016. When vacancy rates are low, landlords and property owners may have the luxury of being very selective when considering stigmatizing characteristics of prospective renters such as a criminal record. When vacancies are abundant, then landlords and property owners may be more inclined to accept individuals with criminal backgrounds as well as questionable employment, credit, and rental histories.
Discrimination against individuals with a criminal record likely renders many housing units off-limits even if a formerly imprisoned individual could afford it. A traditional method used to test such assertions about housing discrimination is called a paired-tester study. With this method, otherwise equal individuals apply for the same housing, with the individuals differing only on the characteristics of suspected discrimination. Whereas numerous studies have used this method to examine discrimination by applicant race and ethnicity, few researchers have applied the method to examine the stigmatizing effect of a criminal record on housing. One exception is a recent study by Evans and Porter (2015), who find that prospective tenants admitting to having a criminal record were only invited to see the rental property 43 percent of the time. In contrast, paired individuals without a criminal record were invited to see the dwellings in almost every instance (see also Evans, 2016). Evans and Porter (2015) also find substantial variation across offense type as to whether self-disclosed offenders were able to get an appointment to view a dwelling: Almost half of the time, drug traffickers and individuals convicted of statutory rape were able to schedule a showing, whereas individuals disclosing they had been convicted of child molestation only received an appointment to view the dwelling one-third of the time. Prospective male tenants appeared to be penalized to a greater extent by a criminal record than females.
It is important to note that the Fair Housing Act prohibits discrimination in the sale, rental, or financing of housing on the basis of race, color, religion, sex, disability, familial status, or national origin. Criminal background information may still be used when making housing decisions, but it depends upon how it is used. Specifically, a set of U.S. Department of Housing and Urban Development (2016, p. 2) guidelines for public and private housing providers explains, “A housing provider violates the Fair Housing Act when the provider’s policy or practice has an unjustified discriminatory effect, even when the provider had no intent to discriminate. Under this standard, a facially-neutral policy or practice that has a discriminatory effect violates the Act if it is not supported by a legally sufficient justification” (see also HUD, 2015). The guidance goes on to clarify the definition of “legally sufficient justification,” explaining “A housing provider must, however, 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” (HUD, 2016, p. 5). A recent U.S. Supreme Court ruling in Texas Department of Housing & Community Affairs v. The Inclusive Communities Project, Inc. upheld the use of disparate impact claims under the Fair Housing Act. Yet, whereas there may be legal bases to bring lawsuits against housing providers engaging in discriminatory practices against the formerly incarcerated, threat of lawsuits over the improper use of criminal records in tenant screening will not resolve the shortage of housing for persons with criminal records because of the aforementioned challenges related to income, under-employment, and low vacancy rates.
Because of the combination of lack of income, high rents, and lack of affordable housing in the private market, it seems that much of the discussion of housing for formerly imprisoned individuals centers on the issue of public and government-assisted housing. Yet it is important to understand that the vast majority of low-income residents in the U.S. do not live in public housing or receive any kind of housing assistance (Desmond, 2016; Schwartz, 2015). Based on analysis of the 2013 American Housing Survey, the Center on Budget and Policy Priorities (Fischer & Sard, 2017; see also Joint Center for Housing Studies, 2016) reports that only one-quarter of families eligible for federal rental assistance actually receive it. Government data reveal that the availability of subsidized housing (including public housing, housing vouchers, and private, project-based housing programs) has remained flat over the past two decades, at roughly 5 million subsidized units, despite the fact that the population size of the U.S. has increased 20 percent during this time period from 270 million to 325 million (U.S. Department of Housing and Urban Development, n.d.). Nevertheless, a discussion of opportunities for, and barriers to, assisted housing is pertinent to the theme of collateral consequences of incarceration.
In the U.S, there are three main rental assistance programs for low-income residents: public housing, “Section 8” vouchers, and project-based rental assistance. However, there is much misunderstanding among convicted individuals, their families, and even public housing authorities (PHAs) about the extent to which people with criminal records are legally barred from public housing and other assistance programs (versus denied admission via discretionary mechanisms). In fact, the Obama Administration took considerable steps to dispel the myth that convicted criminals are necessarily banned from public housing. As of this writing, there are only two circumstances under federal law that legally preclude eligibility for public housing assistance: (1) if an individual is a lifetime registered sex offender and (2) if an individual has been convicted of manufacturing methamphetamine on the premises of federally assisted housing (Federal Interagency Reentry Council, 2011).
The myths about blanket housing bans by HUD and PHAs are surely the product of housing policies enacted during the height of the War on Drugs to deter and punish individuals convicted of drug offenses and their associates. In 1988, Congress enacted the Anti-Drug Abuse Act, which enabled PHAs to evict tenants for drug activity on the premises (Carey, 2005). In 1996, President Clinton enacted the infamous “one strike and you’re out” public housing policy; families could be denied admission or evicted from public housing for the alleged criminal behavior of an occupant or a guest, even if the criminal behavior had not been prosecuted (U.S. Department of Housing and Urban Development, 1997).
Under the Obama presidency, HUD reversed course and took considerable steps toward removing barriers to assisted housing for individuals with criminal records. For instance, then-HUD secretary Shaun Donovan, in a letter to PHAs in June of 2011, reminded them that except for the two aforementioned lifetime bans, they have much discretion when considering whether to provide housing for individuals with criminal records. He went on to encourage PHAs to allow formerly imprisoned individuals to reunite with their family members residing in public housing or making use of housing vouchers.
Some PHAs have been experimenting with family reunification programs that allow formerly imprisoned individuals the opportunity to move back in with family members. It is unknown how many formerly imprisoned individuals are unofficially living in public housing without the PHA’s knowledge of it, but it does occur and puts the actual leaseholder at risk of losing her or his dwelling (Venkatesh, 2002). Family reunification programs provide a legal, authorized mechanism for the formerly imprisoned to move back in with families in public housing. A recent Vera Institute evaluation of a family reunification pilot program in New York revealed some reluctance among formerly imprisoned individuals about moving into cramped public housing spaces with their families as well as much suspicion about the intentions of the New York City Housing Authority (Bae, diZerega, Kang-Brown, Shanahan, & Subramanian, 2016). Hence, even programs designed with good intentions to lower the barriers to housing for people with criminal records are not without challenges.
While HUD showed considerable leadership during the Obama presidency in regards to fostering second chances for individuals with criminal records, necessarily this emphasis and motivation must trickle down to the local PHAs, many of which still have admissions policies (as documented in their admissions and continued occupancy policies [ACOPs]) reflective of the punitiveness of Clinton’s one-strike policy and earlier eras. In fact, in a review of more than 300 criminal background screening policies used by federally subsidized housing developments in the U.S., the Sargent Shriver National Center on Poverty Law (Tran-Leung, 2015) identified four major barriers to admission to federal housing assistance for people with criminal records: (1) unreasonably lengthy criminal history look-back periods, (2) failure to consider mitigating circumstances surrounding criminal activity, (3) use of arrest records in admissions decisions, and (4) overly broad categories of criminal activity. Hence, despite the push by the Obama Administration to provide second chances to formerly incarcerated individuals, barriers to obtaining federally assisted housing are entrenched in many locations, and those PHAs experimenting with innovative solutions to lower barriers to housing for convicted individuals are confronted with the challenge of overcoming public suspicion about their practices. Moreover, a skeptic may conclude that progress by HUD and PHAs toward providing second chances for convicted individuals will stagnate under the renewed punitive rhetoric of the current presidential administration.
Beyond the personal circumstances influencing housing barriers as well as the housing market-related reasons, there are also barriers to housing put in place by the criminal justice system. One issue is a lack of reentry preparation for formerly incarcerated individuals, which is a problem examined extensively elsewhere (see, e.g., Petersilia, 2003; Roman & Travis, 2004).
A second barrier related to housing is the requirement by some state prison systems that individuals released onto parole must have housing lined up prior to release. In Washington State, a consequence of this practice was that prisoners were sometimes held past their earned release date because they did not have a place to reside if released. In response, the Washington State Department of Corrections developed a particularly innovative housing voucher program that paid for three months of rental housing for former prisoners following release (Hamilton, Kigerl, & Hays, 2015). The rationale underlying the program is that paying for housing for the formerly incarcerated is cheaper than incarcerating an individual in prison. Moreover, assistance with housing helps the formerly incarcerated reintegrate back into society.
A third barrier concerns legal restrictions on where individuals can reside (Beckett & Herbert, 2010). Conditions of parole may stipulate who an individual can reside with and even where she or he can reside (Steiner, Makarios, & Travis, 2015). Similarly, stay away orders and off-limits orders stipulate areas where convicted individuals are prohibited from going. Beckett and Herbert (2010) provide a penetrating analysis of the deleterious consequences and limited effectiveness of such compulsory laws and practices. That being said, in prior work I found substantial reductions in rates of reincarceration among formerly imprisoned individuals who moved away from their prior city of residence (Kirk, 2009, 2012, Forthcoming). In this work, I used the neighborhood destruction in New Orleans, Louisiana, following Hurricane Katrina in 2005 as a natural experiment to investigate the effects of residential change on recidivism. Compared to an otherwise similar cohort of individuals released from prison prior to Hurricane Katrina and who returned to their home cities, individuals released from prison post-Katrina who moved to different cities were 15 percentage points less likely to be reincarcerated. Hence, in some cases legal restrictions barring individuals from returning to former neighborhoods may lower the likelihood of recidivism. That being said, providing opportunities and incentives for staying away from certain criminogenic locations may be a more just and humane approach than making it illegal for individuals to visit or reside in certain locations.
For the sake of comparison and for understanding American exceptionalism in the barriers to housing, I’ll briefly touch upon policies and practices surrounding the use of criminal records in the UK as well as the provision of housing benefits for low-income residents. The criminal background check industry is a $4 billion industry in the U.S. (see Jacobs, 2015 for an extensive review of policies, practices, and their implications). In continental Europe, in contrast, criminal records are largely considered private and are not disclosed widely. A basic premise underlying policies on dissemination of criminal records in Europe is the recognition that the public disclosure of criminal records undermines a person’s ability and right to rehabilitation (Jacobs, 2015), whereas a similar right to rehabilitation is not a prime consideration in the approach to criminal records in the U.S. Indeed, U.S. policies and practices such as sex offender registration and notification severely stigmatize individuals convicted of sex offenses, reduce housing opportunities, and arguably undermine the prospects of desistance in the process, yet a purported reason for the disclosure of such records is so the general public has information on the whereabouts of would-be predators.
Policies about sealing and expungement of criminal records vary considerably across U.S. jurisdictions, but very rarely is sealing or expungement of records automatic even in those instances when cases are eligible. The costly and confusing legal process to seal or expunge a record means that most eligible individuals will not bother, especially given that their criminal records are just one Google search away even if their official records are sealed or expunged. In contrast, the UK Rehabilitation of Offenders Act of 1974 was enacted for the purposes of lowering the barriers to reintegration back into society among rehabilitated individuals. Under the Act, if a formerly incarcerated individual has avoided reconviction, then after a reasonable look-back period—from two to seven years depending upon the criminal sentence—the individual is deemed rehabilitated and the prior conviction is considered “spent.” In this case, the conviction no longer needs to be disclosed by the individual on employment applications or housing applications.
Another important distinction between the UK and the U.S. is the former’s relatively greater provision of housing assistance to low-income populations, including those with criminal records. 1 Private market tenants in the UK can receive a local housing allowance to be put towards their rent, with the allowance equivalent to the 30th percentile level for rents in the market rental area. For instance, the local housing allowance in central Manchester for a one-bedroom apartment is £443/month and in central London it is £1,133/month (UK Valuation Office Agency, 2017). Importantly, a criminal record does not disqualify individuals from obtaining housing funds.
To qualify for the housing benefit, individuals must be low-income with minimal savings, and actively paying rent. A suspected offender in custody while on trial in the UK can keep her or his housing benefit for up to 52 weeks. Sentenced prisoners can keep their housing benefit, as long as their sentence is fewer than 13 weeks in duration. For those individuals with longer sentences, upon release from prison they are immediately eligible to re-establish their housing benefit.
For released individuals who are sent back to prison on a parole or probation revocation, they can still keep their housing benefit as long as they are not reincarcerated for longer than 13 weeks. This practice enables individuals to retain their housing. In contrast, a series of recent studies by David Harding, Claire Herbert, and Jeff Morenoff (Harding, Morenoff, & Herbert, 2013; Herbert et al., 2015) drawing upon a U.S. sample of formerly imprisoned individuals in Michigan reveals that revocations and intermediate sanctions that temporarily remove individuals from their homes significantly elevate the likelihood of housing loss and residential instability, which is then predictive of recidivism. In the U.S., when individuals have their parole or probation revoked, they risk losing their dwellings since they are unlikely to have any kind of housing assistance in the first place and would not likely keep that benefit once incarcerated even if they did have such a benefit.
In summary, formerly incarcerated individuals in the UK arguably have fewer barriers to housing than former prisoners in the U.S. because: (1) criminal records are generally regarded as more private in the UK than in the U.S., and a conviction does not need to be disclosed if sufficient time has passed since the last conviction, and (2) the provision of housing assistance is in many regards more supportive than in the U.S. In practice, though, there are still many challenges to finding housing in the UK. For instance, because the local housing allowance is equivalent to just the 30th percentile of the area rent, most dwellings are out of reach financially. Moreover, the benefit is generally distributed at the end of a given month, but most landlords want payment of rent for the month in advance. This is hard to do when exiting prisoners may only have the £46 in gate/discharge money to their name.
Having reviewed and described the most common barriers to securing stable housing among formerly convicted and imprisoned individuals, in this section I assess the empirical literature on collateral consequences of conviction and incarceration for housing.
I earlier described the implications of the Fair Housing Act for criminal record screening in housing decisions, noting that background screening is potentially allowable if there is “legally sufficient justification” for excluding certain convicted individuals from a given housing situation. A common justification offered by landlords is the pursuit of safety for residents and protection of property. An implicit assumption then is that people with criminal records are more dangerous than other tenants and are more likely to damage the property. However, there is virtually no rigorous research examining whether, for example, apartment residents who have a criminal record are any more dangerous or abusive to the property compared to otherwise similar tenants without a criminal record.
Of the limited research that attempts to answer related questions, Malone (2009) sampled homeless adults with behavioral health disorders who participated in a supportive housing intervention to determine if those participants with a criminal record were any more or less likely to successfully complete the program and remain in the housing than individuals without a criminal record. Ultimately Malone found that a criminal background did not predict housing failure. Clifasefi, Malone, and Collins (2012) and Tsai and Rosenheck (2012) similarly find in samples of homeless individuals that a criminal record does not bear upon whether an individual successfully completes a homeless housing intervention or not.
Even if there is little existing evidence about the would-be threat of individuals with criminal records to the safety of property and other residents, governments can take steps to alleviate landlord concern about the safety of residents and property, and the potential liability for renting to individuals with criminals records. For instance, during the 2015 Texas Legislature, House Bill 1510 was passed providing some liability protection to landlords for renting dwellings to individuals with criminal records (Smith, 2015). 2
The limited research to date suggests little predictive value of criminal history information in judging housing success and failure, at least among samples of homeless individuals. There has been no rigorous research on whether individuals with criminal records are more likely to victimize fellow residents or damage property than non-offenders. Yet, it is important to consider the downside of not asking about criminal history. Here I draw upon lessons from research on employment and “ban-the-box” initiatives.
Holzer and colleagues (2006) have argued that criminal background screening of job applicants may actually be beneficial to the employment prospects of black individuals, at least those without a criminal record. Absent information about criminal history, prospective employers may statistically discriminate against blacks, assuming that they have a criminal record and should not be hired in the absence of information to counter that assumption. The same form of implicit bias may surface in housing decisions in the absence of criminal history information.
On many employment applications, there is a check-box asking applicants whether they have been arrested or convicted of a crime. “Ban the box” refers to the practice of removing those questions about a criminal record from job applications, thereby eliminating or at least delaying any criminal background check until after the applicant’s qualifications for the job in question have actually been assessed. In a field experiment of the efficacy of ban-the-box policies, Agan and Starr (2018) submitted roughly 15,000 fictitious online job applications to employers in New Jersey and New York City, both before and after these jurisdictions enacted ban-the-box policies. They find that before the policy went into effect, there was a 7 percent race gap in favor of whites in the likelihood of an applicant receiving a call-back about a job. After ban-the-box went into effect, the gap grew to 43 percent. These results suggest that absent criminal history information, statistical discrimination is likely to take place. While their research focused on the employment context, it is not a stretch to assume that the same scenario would follow in housing decisions. In sum, criminal background checks as a method for assessing risk may ultimately reduce the likelihood of statistical discrimination against racial and ethnic minorities. Yet in the discussion of risk and background checks, it is important to understand that the risk of recidivism is not the same as the risk of being a bad tenant, but oftentimes criminal records are used as a proxy for assessing the risk of being a problematic renter.
Numerous studies have found that housing and residential instability are common among formerly imprisoned individuals, with some research also implicating a history of incarceration as a prime reason for the instability. In the initial period out of prison, it is typical for individuals to stay with family members. For instance, in a sample of formerly imprisoned individuals living in Chicago, La Vigne and colleagues (2004) found that 62 percent stayed with a family member their first night out of prison. In a Boston sample, Western and colleagues (2015) found that 40 to 50 percent of newly released individuals resided with family in the first week out of prison, yet the proportion living with family members quickly declined with time, with formerly incarcerated individuals increasingly turning to peers for a place to live.
In terms of the frequency of moves, Makarios, Steiner, and Travis (2010) find that, on average, sampled Ohio parolees lived in two different residences in the first year post-release and 30 percent lived in three or more places. In a sample of individuals imprisoned prior to the modern era of mass incarceration, Rossi and colleagues (1980) found that formerly imprisoned individuals in Georgia and Texas resided, on average, in 1.5 residences in the first three months after release and approximately 16 percent of releasees resided in three or more places.
Geller and Curtis (2011), using data from the Fragile Families study, found that 31 percent of sampled urban fathers with incarceration histories experienced housing instability of some form (e.g., eviction, skipping a mortgage payment, or moving into a shelter) versus 14 percent of otherwise similar fathers without an incarceration record. They find that the effect of incarceration on subsequent eviction is present only for men who were living in, or who had partners living in, public housing prior to their incarceration. They take these findings as evidence of the impact of the one-strike policies enacted during the Clinton presidency to exclude individuals with a recent conviction from residence in public housing.
Harding et al. (2013) find that parolees in Michigan move frequently—an estimated 2.6 times per year for the median parolee. Herbert et al. (2015) prospectively tracked the residential circumstances of Michigan parolees, finding that most periods of residence for the parolees lasted just a few months, with 50 percent of the residential periods lasting eight weeks or less. Moreover, they find that one-third of residential episodes—i.e., continuous periods of time living in the same place, excluding correctional settings—were interrupted by some form of intermediate sanction by the criminal justice system (e.g., for a parole violation).
In terms of racial-ethnic variation, Warner (2015) finds that blacks tend to have more residential instability post-prison relative to their pre-prison experience, but incarceration does not appear to increase residential mobility among whites and Latinos. He also finds that the effect of incarceration on residential instability decays with time, once again reaffirming that the period right after release from prison is marked by extreme challenges for formerly incarcerated individuals and an elevated risk of recidivism. Finally, Warner’s findings suggest that residential instability is more likely the result of the stigma of a criminal record than the detachment induced by a lengthy prison sentence.
A growing body of research has found that residential instability increases the likelihood of recidivism (Makarios et al., 2010; Meredith, Speir, & Johnson, 2007; Steiner et al., 2015), as do periods of homelessness (Metraux & Culhane, 2004; Steiner et al., 2015). There is also evidence that providing housing assistance, particularly soon after release from prison for individuals at high risk of re-offending, can lower the likelihood of recidivism (Hamilton et al., 2015; Kirk, Forthcoming; Kirk, Barnes, Hyatt, & Kearley, Forthcoming; Lutze, Rosky, & Hamilton, 2013). As noted, Herbert and colleagues (2015) found that by increasing residential instability, the use of intermediate sanctions at least indirectly increases the likelihood of future recidivism. In other words, by attempting to curb misbehavior through intermediate sanctions, the criminal justice system may be contributing to a self-fulfilling prophesy by inducing residential instability and therefore a heightened risk of recidivism.
While it is clear that residential instability is common among the newly released, it is also important to consider if a record of incarceration penalizes individuals in terms of post-prison neighborhood quality. The Returning Home studies produced by the Urban Institute yielded some of the earliest findings about the characteristics of neighborhoods in which formerly imprisoned individuals return. La Vigne, Mamalian, and colleagues (2003) found that the geographic distribution of formerly imprisoned individuals is highly concentrated in a relatively small number of neighborhoods within metropolitan areas. For instance, more than one-half of individuals released from Illinois prisons in 2001 returned to the City of Chicago; among these, one-third were concentrated in just six of 77 community areas. These six communities are among the most economically and socially disadvantaged in the city. La Vigne, Kachnowski, and colleagues (2003) found a similar pattern in Baltimore.
There are also important racial dimensions to the patterns of neighborhood attainment. Hipp and colleagues (2010; see also Lee, Harding, & Morenoff, 2017) observe that African American parolees tend to move to neighborhoods with more concentrated disadvantage, residential instability, and racial/ethnic heterogeneity than white parolees. While that may be the case, it is a separate question to examine whether or not the same person moved to a more disadvantaged and disorganized neighborhood post-release relative to her or his pre-prison neighborhood. That is the question that Massoglia, Firebaugh, and Warner (2013) sought to answer. They find that whites tend to live in more socioeconomically disadvantaged neighborhoods upon release from prison relative to where they lived pre-prison, but blacks and Latinos do not face such a penalty. In other words, there appears to be a collateral consequence of incarceration on neighborhood attainment for whites but not for blacks and Latinos (but see Simes, 2017 for contrary evidence).
Lee et al. (2017) observe that whereas there is considerable residential mobility among their sample of Michigan parolees, parolees tend to move to similar types of neighborhoods relative to the neighborhoods they left, as measured by socioeconomic disadvantage and other sociodemographic characteristics. In other words, when parolees have unstable residential patterns, it does not mean they are moving to worse neighborhoods, or moving out of bad neighborhoods to reside in more advantaged neighborhoods. They are often just moving from one disadvantaged neighborhood to another.
Another key collateral consequence to examine is the effect of incarceration on the risk of homelessness. Metraux and Culhane (2004) found that 11.4 percent of a sample of formerly incarcerated individuals returning to New York City entered a homeless shelter within two years of prison release, with most of these admissions occurring within the first month of release. They also found that the likelihood of shelter use among the formerly incarcerated was inversely related to the severity of the offense that led to the incarceration.
Geller and Curtis (2011), based on data from the Fragile Families study, find that recently incarcerated men face odds of homelessness that are more than double that of otherwise similar men without a recent incarceration. They also compared individuals with an incarceration at some point in their lives to otherwise similar individuals who had never been incarcerated, finding that the formerly incarcerated face odds of homelessness that are almost 4 times greater than the never incarcerated.
In contrast, Herbert, Morenoff, and Harding (2015) find that periods of homelessness were infrequent in their sample of Michigan parolees, and that just 9 percent of the sample had any period of homelessness from 2003 to 2009.
Perhaps the most obvious and severe form of collateral consequence in the realm of housing comes in the form of sex offender registration, notification, and residency laws. The empirical literature described thus far was not generally specific to a certain type of offender, but I conclude the discussion of empirical findings by specifically examining work on the collateral consequences associated with sex offender policies.
Briefly, registration provides information on the whereabouts of individuals convicted of sex offenses, and notification ensures that this information is made available to not only criminal justice officials but also the public. Registration and notification produce collateral consequences by further stigmatizing and ostracizing individuals convicted of sex offenses. Residency laws go a step further and restrict where such individuals can reside, typically mandating a buffer around locations with vulnerable populations such as schools, day care centers, and playgrounds. A common argument is that these restrictions increase the likelihood of housing insecurity and homelessness among targeted individuals, decrease access to jobs and the possibility of employment, undermine familial relations and social capital, and thereby increase the likelihood of recidivism (Zgoba, Levenson, & McKee, 2009).
Zgoba et al. (2009) investigate a vital question: What proportion of individuals convicted of sex offenses would be affected by the implementation of residency restrictions? The context was Camden County, New Jersey, a jurisdiction attempting to enact residency restrictions on sex offenders, but which ran into legal challenges in the process. Using data on the 211 county residents registered in the state sex offender registry as of March 2007, Zgoba and colleagues found that the proportion of individuals convicted of a sex offense residing within 2,500 feet of a school, day care center, church, or park equaled 88 percent. Seventy-one percent of registered individuals lived within 2,500 feet of a school specifically, and 80 percent lived within the same distance from a day care center. In this sense, the residential situation for the vast majority of registered individuals would be affected by implementation of residency restrictions against sex offenders. Accordingly, when such laws are put into place, individuals convicted of sex offenses may be severely constrained in finding legal places to reside, with some pushed to the shadows because they cannot find a place to live.
Hipp, Turner, and Jannetta (2010) examine the consequences of sex offender residency restrictions in California, which stipulated that registered sex offenders could not reside within 2,000 feet of a school, day care center, or other place where children congregate. They find that relative to other types of parolees, individuals convicted of sex offenses are more likely to move to socially disorganized neighborhoods, as measured by higher levels of concentrated disadvantage and residential instability (see also Mustaine & Tewksbury, 2011; Mustaine, Tewksbury, & Stengel, 2006; Tewksbury, Mustaine, & Rolfe, 2016). The effect is particularly pronounced among whites and Latinos. Moreover, with each subsequent move, on average individuals convicted of sex offenses find themselves moving to areas with even more disadvantage and residential instability.
Prescott and Rockoff (2011) find both an upside and downside to sex offender notification laws. On the upside, there appears to be a general deterrent effect of such laws, reducing the incidence of sex offenses against known victims (i.e., offenses where the victim is known to the perpetrator). However, in terms of the downside, notification laws appear to increase the likelihood of recidivism among individuals convicted of prior sex offenses, which is consistent with the idea that notification yields collateral consequences such as stigmatization.
Conversely, Huebner and colleagues (2014) examine residential patterns and recidivism among individuals convicted of sex offenses in Michigan and Missouri, both before and after registration laws went into effect. After geocoding the first post-release addresses of a sample of formerly incarcerated individuals in each state, they find that in both states, individuals imprisoned for sex offenses in the period after residency restrictions were enacted were no more or less likely to be living in a restricted area when compared with prerestriction sex offender addresses. They also find that residency restrictions had little influence on recidivism rates among individuals convicted of sex offenses, although with some variation across the two states.
In summary, sex offender registration, notification, and residency laws appear to have a detrimental influence on the housing opportunities of registered sex offenders and increase the likelihood of residing in a socioeconomically disadvantaged area. Findings about whether residency restrictions and other similar laws influence recidivism are mixed.
Described so far have been the various barriers to housing for individuals with criminal records, and the consequences for residential instability, homelessness, and neighborhood attainment. In the remainder of the chapter, I highlight major challenges to advancing research on the collateral consequences of convictions and incarceration.
Does incarceration causally increase the likelihood of homelessness, housing instability, and residence in disadvantaged neighborhoods, or is incarceration merely one of many deleterious outcomes associated with antecedent factors such as low self-control, drug addiction, and mental health problems? To examine the consequences of incarceration for housing outcomes, it is imperative to account for how people “select” into prison—i.e., researchers must account for very large differences between people who select into prison versus those individuals who have not been incarcerated. Failing to do so may lead to erroneous conclusions about whether incarceration has collateral consequences.
One strategy besides using the non-incarcerated as a counterfactual comparison is to use convicted individuals, but ones who were not sentenced to prison (e.g., probation). Yet comparing ex-prisoners to ex-probationers in order to assess the collateral consequences of incarceration is not without challenges. Pre-trial detention is extremely common in the U.S., in part because of bail systems in many jurisdictions that arguably infringe upon individuals’ Eighth Amendment protections against excessive bail. Sixty percent of the jail population in the U.S. consists of individuals waiting for trial (i.e., not even convicted) (Minton & Zeng, 2016), and more than 40 percent of defendants are detained in jail from arrest until their cases are disposed, most often because the defendant could not afford bail (Cohen & Reaves, 2007).
Because of the lengthy amount of pre-trial detention by many defendants, the proportion of probationers who serve significant time in jail prior to sentencing (or others measured as “never incarcerated”) is non-trivial (Dobbie, Goldin, & Yang, 2016). Accordingly, probationers are not necessarily a clear-cut counterfactual for examining the collateral consequences of incarceration because even probationers spend a lot of time incarcerated (in this case, pre-trial). That is all to say that it seems generally better to compare the incarcerated against some other convicted individual in order to assess the specific consequences of being incarcerated (rather than comparing the incarcerated to a non-sanctioned individual), but even these comparisons have complexities that make unbiased estimates of collateral consequences hard to achieve.
There are several other common strategies besides incarcerated vs. probationer comparisons used in the incarceration effects literature to try to minimize selection bias. These strategies include comparisons between the incarcerated and individuals who will later be incarcerated (Porter & King, 2015), sample restrictions to compare recent and multiple incarcerations (Wakefield & Wildeman, 2013), placebo regressions (Wakefield & Wildeman, 2013), random assignment of judges to criminal cases (Kling, 2006; Loeffler, 2013), and research using policy shocks such as the California Public Safety Realignment Act (Petersilia, 2014). While rare in this domain, experimental research employing random assignment is the most rigorous design for making causal inferences about the effects of incarceration (see, e.g., Gaes & Camp, 2009; Pager, 2003; Schwartz & Skolnick, 1962).
While there are many good strategies for attempting to minimize selection bias, often they are data intensive and the study of crime and punishment is routinely challenged by data inadequacies. Yet careful attention to the issue of selection is necessary in order to advance work on collateral consequences. Care must be taken when evaluating extant research on collateral consequences to consider whether the research is actually comparing “apples to apples” or “apples to oranges.”
As noted, the data challenges for advancing research on collateral consequences are many. These challenges have been discussed in length elsewhere, including my own review of the wider collateral consequences literature (Kirk & Wakefield, 2018) and the landmark National Research Council (2014) report on the causes and consequences of mass incarceration. Both of these reviews call for collection of data on the conditions of confinement, thereby allowing for research on how and why the actual experience of incarceration may have collateral consequences post-release. These reviews also call for greater attention in longitudinal surveys to data collection about the various stages of criminal case processing. Surveys often used in the collateral consequences literature, such as the National Longitudinal Study of Adolescent to Adult Health (Add Health), the National Longitudinal Survey of Youth, and Fragile Families, generally lack information about whether incarcerations occurred in a local jail, state prison, or federal facility. They also tend to lack precise information about non-custodial sentences, time served, the number of spells of incarceration, and whether a suspected individual was detained pre-trial.
As for research specific to the collateral consequences for housing, the most extensive data collections on this subject over the past two decades are arguably the Urban Institute’s Returning Home study 3 and The Michigan Study of Life After Prison. 4 Throughout this chapter, I have drawn extensively upon the research from both efforts. Both studies collected vast amounts of information about the locations of residence post-release, employing data collection strategies such as repeated surveys and systematic review of paper parole files. These are extremely costly and time-consuming methods of data collection, but these studies have certainly enriched our understanding of the housing situations of formerly imprisoned individuals.
There are other possibilities for collecting longitudinal information about place of residence among the formerly incarcerated. For instance, the population register data in some Western European and Nordic countries provide considerable opportunities for examining the collateral consequences of conviction and incarceration (see Lyngstad & Skardhamar, 2011 for a thorough review about Nordic register data). Residents are assigned a personal identification number like a social security number in the U.S., and this number provides a link between an individual’s records across a variety of government databases. As former U.S. Census Director Kenneth Prewitt notes (2010, p. 12),
European populations understand and cooperate with national registration systems that track such key variables as birth, schooling, changes in residence, employment, marriage and divorce, parenting, retirement, and death. The U.S. has administrative data on all of these population variables … But of course this is fragmented and decentralized record keeping. There is no national registration system to integrate it.
European populations understand and cooperate with national registration systems that track such key variables as birth, schooling, changes in residence, employment, marriage and divorce, parenting, retirement, and death. The U.S. has administrative data on all of these population variables … But of course this is fragmented and decentralized record keeping. There is no national registration system to integrate it.
Related to housing, for example, one could use the personal identifier common across government databases to link data from the Prison and Probation Service on all people who were formerly incarcerated with housing register data that provide information on places where someone has lived as well as the timing of residential moves. Rather than having to scour parole files, as Harding and colleagues (2013) have so meticulously done, one could assess residential mobility and housing insecurity with the register data. These register data could also be used to determine who else is residing in the same dwelling. Moreover, register data are not just a snapshot in time; rather, it is an ongoing record of events in one’s life (residential moves, arrests, birth of a child) and interactions with government data systems.
In sum, empirical criminology is challenged by a lack of adequate and complete data. To advance research on the collateral consequences of incarceration, investment in data infrastructure is crucial. Merging administrative records with longitudinal surveys is one good idea, as is the inclusion of more detailed questions about criminal case processing and conditions of confinement in surveys used in the collateral consequences literature. I drew attention to European register data to illustrate data resources perhaps not widely known or accessed outside of the European research community. These data are a valuable resource for furthering research on the collateral consequences of conviction and incarceration.
The academic research literature has coalesced around a general agreement that the era of mass incarceration has produced dramatic social costs, in terms of not only housing barriers, but also unemployment, ill health, disintegration of families, civic death, and more. The collateral consequences of mass incarceration have come with limited crime control benefit. Estimates suggest that mass incarceration contributed to a decrease in the violent crime rate of roughly 10 to 25 percent, but with diminishing returns over time (Johnson & Raphael, 2012; Sampson, 2011; Western, 2006). There are more cost-beneficial and effective ways to reduce crime.
In this chapter I have reviewed the specific collateral consequences of conviction and incarceration in the realm of housing. The breadth of mass incarceration in combination with declining investment by the federal government in assisted housing as well as the disturbing lack of progress in the development of affordable housing in the U.S. has created and perpetuated a massive housing crisis for individuals with criminal records. Dismantling that crisis will require far more than just altering sentencing practices for low-level drug offenses. It will require a fundamental rethinking of incarceration, sentencing, and housing policy.
This research draws influence from collaborative work with Sara Wakefield on the collateral consequences of punishment, as well as work with the Austin/Travis County Reentry Roundtable on removing the barriers to stable housing for the formerly incarcerated.
Some U.S. cities do provide “shelter allowances” to individuals receiving public assistance (Cortes & Rogers, 2010).