Loopholes Hobble Hochul’s Proposal on Conviction-Based Housing Discrimination, Critics Charge

Formerly incarcerated people in the United States are almost 10 times more likely to be homeless than the general public. That’s partially driven by the fact that, in many states — like New York — property owners are allowed to reject potential tenants based solely on their criminal records.

To remedy this, Governor Kathy Hochul has included a provision in her proposed budget legislation for next fiscal year that she says would prohibit landlords from “automatically” denying housing to people with criminal convictions.

Her proposal, however, contains large loopholes that would allow landlords and real estate brokers to continue to reject potential tenants because they were convicted of any of a vast array of crimes.

Hochul’s proposed law would make it illegal to deny someone housing because they have a criminal conviction — but with two exceptions: if any of the offenses “involved physical danger or violence to persons or property,” or if they “had an adverse effect on the health, safety and welfare of other people or property.”

The loopholes are so sweeping that advocates who have been organizing for similar laws are urging Hochul to kill the provision altogether, which they say took them by surprise. By their reading, it’s harder to come up with criminal convictions that don’t fall under the proposal’s exceptions than those that do. While people with convictions for drug possession — which landlord groups have claimed aren’t a significant source of housing discrimination — could arguably fall under the measure’s protections, landlords would be able to contend that other crimes as minor as shoplifting, for instance, “had an adverse effect” on people or property.

“These exceptions would preclude most, if not all, of our clients who experience conviction-based housing discrimination,” said Alexandra Dougherty, senior attorney and policy counsel with the Brooklyn Defenders Service’s civil justice practice. She asserted that the caveats render the proposed legislation “virtually meaningless.”

“The problem with Hochul’s proposal is that it purports to do something that it doesn’t do because the exceptions are so broad,” said Alison Wilkey, a coordinator for the Fair Chance for Housing coalition, which has been advocating for a law by the same name in New York City that, like Hochul’s provision, seeks to prevent housing discrimination based on prospective tenants’ criminal records, but doesn't include Hochul's carveouts.

Unlike Hochul’s proposal, the coalition’s legislation would also prohibit landlords from running criminal background checks or otherwise inquiring about someone’s criminal history, with exceptions for those seeking roommates and inquiries about someone’s status on the sex offense registry.

According to Wilkey, Hochul’s office never contacted the Fair Chance for Housing coalition “to take advantage of our expertise on this issue” before issuing her proposed budget. On March 11, 16 coalition organizations signed onto a letter to the governor, the lieutenant governor, the Senate majority leader, and the Assembly speaker asking for the withdrawal of the governor’s budget provision “so we can work together to address the issue comprehensively.”

In the letter, the coalition argued that the open-endedness of the provision’s caveats is bad for everyone — including real estate interests — as it could “lead to landlords, brokers, and others defending against endless individual lawsuits.”

Securing stable housing is one of the largest — and most consequential — life obstacles that people face after serving jail or prison time, as landlords often deny rental applications from people with criminal convictions. In New York City alone, some 750,000 people — nearly 11 percent of the adult population — have at least one criminal conviction.

“Housing is … the most stabilizing factor in a person’s life upon their release from prison,” said Andre Ward of the Fortune Society, which provides reentry services to people leaving incarceration. “The practice of discriminating against people with conviction histories becomes one of the major conditions that exacerbates people’s experience of release.”

Several other states and municipalities across the country, including New Jersey, San Francisco, and Seattle, have enacted fair chance for housing legislation. Not all offer the same levels of protection, however. Washington, DC’s Fair Criminal Record Screening for Housing Act, for instance, includes exceptions that give landlords the opportunity to ask about and consider certain aspects of one’s criminal history at certain points in the rental application process.

“That complicates everything,” said Kate Scott, executive director of the Equal Rights Center in DC. “And the more complicated the law is, the more difficult it is for somebody to make sure that their rights are being protected.” As an added result, enforcement of DC’s law has been a major issue, according to Scott, as already backlogged district agencies have seen more, and more complicated, discrimination claims.

In 2020, after several years of organizing, the Fair Chance for Housing coalition got a bill introduced in the New York City Council, but with real estate lobbying against the measure, it didn’t come to a vote before the legislative session ended this past December. This year, Hochul is trying to take the issue up to the state level; she mentioned improving housing access “for renters with justice involvement” in her State of the State speech in January.

In response to questions about the provision’s loopholes and its status in ongoing budget negotiations, Avi Small, a spokesperson for the governor, emailed a generic statement that the governor’s office has sent to several other news outlets inquiring about other topics, referring to Hochul’s “bold initiatives to embrace this once-in-a-generation opportunity to invest in our future.”

The provision’s inclusion in the final state budget is far from set in stone, as neither the Assembly nor the Senate included it in their proposed legislation, which was released over the weekend. Nor did either chamber include any other type of housing discrimination-specific legislation. Spokespeople for the Assembly speaker and the Senate majority leader did not respond to requests for comment.

One provision in the governor’s and Senate’s budget proposals, if it makes it into the final budget, could indirectly help mitigate conviction-based housing discrimination: the Clean Slate Act, which would seal convictions from the public after a set amount of time. But Clean Slate wouldn’t help anyone who was recently released, as the Senate version only seals records three to seven years after one completes their sentence, and the governor’s version only seals records three to seven years after their maximum sentence, even if they weren’t required to serve it in full. Wilkey also adds that Clean Slate doesn’t solve the issue of errors in background check systems, another concern that fair chance for housing legislation addresses.

According to Ward, fair chance for housing advocates will use Hochul’s introduction of the issue to “engage her and those in her administration,” with the hopes of passing more robust city- and state-level legislation in the near future. The coalition is gearing up for a revamped campaign to get its legislation passed in New York City, he said, and hopes to rope Hochul and state-level lawmakers in on that policy push. “This is an opportunity to learn and to educate,” he said.

But for now, as budget negotiations focus on other provisions to expand housing access — like housing vouchers for people experiencing homelessness, which the Senate and the Assembly, but not the governor, have proposed funding this year — fair chance for housing advocates are left hoping that their efforts aren’t undermined by what they see as a toothless measure.

“Other [housing policy] efforts aren’t going to have an impact if people are still barred from housing because of background checks,” said Wilkey. “If we really want to reduce the number of people in shelters and give people access to affordable housing, we have to reduce the barriers to them actually getting that housing.”