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February 24 2020

Oakland, California, Bans Criminal Background Checks on Renters

California's affordable housing nightmare is well known: More than 40% of residents are now classified as housing cost-burdened, the highest proportion of any state. In many cities in the San Francisco Bay Area, the nation's tightest housing market, the median rent for a one-bedroom apartment now exceeds $2,500, a figure that contributes to a growing homelessness problem, exacerbates gentrification and pinches ostensibly middle-class professionals like teachers and police officers as well as those even higher up the income ladder.

For one demographic the crisis is amplified. "I was born and raised in Oakland," Lee "Taqwaa" Bonner, a former felon turned advocate, said at a recent news conference. "I am employed in Oakland. … However, I cannot live in Oakland based solely on my criminal record, which happened 30 years ago." Excluded from the rental market, Bonner has often resorted to living in his car. Others have fared worse, spiraling into permanent homelessness, drug addiction and even death.

On Feb. 4, Oakland's City Council passed a new ordinance designed as a remedy, prohibiting public and private landlords from inquiring about potential tenants' criminal histories. The new law, called the Oakland Fair Chance Housing Ordinance, is the most expansive of its kind in California and among the first for major American cities. Decades after the start of the "ban the box" movement, which aims to stop employers from discriminating against the formerly incarcerated, proponents hope it will also act as a new catalyst in the battle to secure equal opportunity for the more than 70 million Americans burdened by criminal records.

"With more and more people returning home from the criminal justice system, housing is really the most basic need that people [have] in order to get back on their feet," says Council member Nikki Fortunato Bas, a co-sponsor. "It's really going to help create more opportunity and sort of level the playing field."

For decades criminal justice experts have highlighted the rampant stigma and discrimination that stifles former prisoners as they attempt to re-enter society – a phenomenon accelerated by the recent ubiquity of online background checks, an invesitgative tool critics point out is often incomplete or seriously flawed. And while the criminal justice system disproportionately impacts black men, it's also black men who, after their release, are often excluded from jobs, apartments, public benefits, and even vocational licensing on the basis of a conviction they've already served time for. "The real punishments begin," as one African American man who spent 17 years behind bars told The Washington Post, "when we are released from prison."

In 1998, Hawaii became the first state in the United States to pass legislation aimed at easing the burden, with a "ban the box" law that restricted both public and private employers from considering a prospective employee's criminal history until after a job offer was made. Since then, 35 states and more than 150 cities and counties have adopted similar "ban the box" employment discrimination laws. (Most apply only to public employers, although 13 states and 18 cities and counties have extended the legislation to the private sector. Some laws also apply to public contractors.)

Laws aimed at easing housing discrimination have come only recently, despite an overwhelming need: In one national survey of people affected by incarceration, nearly 80% of former inmates reported being denied housing because of prior convictions. In some cases whole families were evicted because a formerly incarcerated family member returned to the home; other respondents told of being forced to settle for substandard conditions.

"All of the places that I wanted to live – that were nice and where I could raise kids told me 'no,'" one study participant from Kansas told researchers from the California-based Ella Baker Center for Human Rights and elsewhere. "So I ended where I am now, in a rundown four-plex that's a slum with moldy walls."

Oakland's new law has various predecessors. In 2017, Seattle passed what advocates hailed as the country's most progressive "ban the box" housing law, an ordinance that prohibited most private landlords from considering applicants' criminal histories at all. The new law was promptly challenged by the city's real estate industry, which argued that it compromised safety and violated landlords' exercise of free speech. Critics also suggested council members had the wrong target. "If the city of Seattle is serious about reforming the criminal justice system, it should focus on reforming the criminal justice system," William Shadbolt, board president of the Rental Housing Association of Washington, said at a news conference. (In November, a Washington state Supreme Court judge ruled favorably toward the law, although a federal decision remains pending.)

Other cities, including Detroit, Chicago and Minneapolis, have also recently passed similar but less sweeping measures, stipulating that landlords cannot perform background checks until the end of the application process or that they can only consider more recent convictions. Two Bay Area cities, Richmond and San Francisco, have passed ordinances that apply only to affordable or municipally-subsidized housing.

But Oakland's new law, which became effective immediately, represents the state's first to apply more broadly to nearly all city rentals, allowing exceptions only for landlord-occupied units. Landlords also do not have to accept tenants on the federal lifetime sex offender list; affordable housing rentals are also permitted to exclude tenants with prior convictions related to manufacturing meth. Proponents argue the new law will help reduce recidivism and ease the area's homelessness crisis, as well as set off a new wave of municipal protections: Nearby Berkeley is expected to vote on a similar measure within weeks.

"Those of us who worked on this legislation are hoping that this is sort of the next frontier of this particular movement," says Bas, who previously worked on various "ban the box" employment policies.

Yet even supporters concede that the legislation amounts to a kind of Band-Aid for a far larger problem. America's structural racism continues to disadvantage people of color in virtually every segment of society, with the very need for "ban the box" laws serving as further evidence of the rampant overcriminalization and segregation of black men, says Andre Perry, a fellow in the Metropolitan Policy Program at The Brookings Institution, a Washington, D.C.-based think tank. In some cases the laws can even prove counterproductive, as employers or landlords simply find other, more generalized ways to discriminate against former prisoners and people of color, like excluding applicants with long gaps in their resumes or names that people associate with African Americans, he adds.

"I'm for banning the box, but it's insufficient as a tool when you're dealing with disrcimination," he says, where the real change needed is an adjustment in the underlying culture. "And that requires leadership. It requires investment in black communities. It requires hiring people."

Bas agrees. But with an already overcrowded local shelter system and increasing numbers of formerly incarcerated residents returning to a city where they can't find housing, Oakland is already facing an urgent crisis. "And if we don't address that," she says, "people's lives will be lost."