Criminal Histories in Public Housing

23 Pages Posted: 2 May 2016 Last revised: 6 May 2016

See all articles by Lahny R. Silva

Lahny R. Silva

Indiana University Robert H. McKinney School of Law

Date Written: 2015


As America attempts to remedy the harsh sentencing policies enacted during the “War on Drugs” in the 1980s and 1990s, hundreds of thousands of ex-offenders are being released from jails and prisons annually. Upon release, these individuals will confront legal obstacles in their quest to reenter society. Based solely on the fact of prior criminal conviction, new releasees will inevitably confront statutory “civil” penalties severely limiting their most basic opportunities for employment, education, and housing. Known as “collateral consequences,” these penalties relegate ex-offenders to the status of second-class citizens by systematically depriving them of individual rights and privileges. Professor Gabriel “Jack” Chin has classified this socioeconomic phenomenon as the “New Civil Death.” This Article focuses on one cluster of collateral consequences that deprive those who have paid their debt to society of a basic necessity — affordable housing.

Collateral consequences are sanctions specifically targeted at individuals with criminal convictions. They operate outside the normal criminal process and are not considered in criminal sentencing determinations. They are characterized as “civil” in nature and thus exempt from most of the constitutional protections that are triggered by the criminal process. The basic principle underlying these penalties can be stated simply: individuals who do not play by the rules do not get to play the game. Thus, those with criminal histories are less deserving of socioeconomic opportunity, as they have demonstrated that they will not play by the rules. In the past 20 years, reentry scholars and advocates have encouraged the review and reform of a number of collateral consequences. For example, Christopher Uggen and Jeff Manza’s 2000 study demonstrated the way in which felon disenfranchisement could affect election outcomes. Today, most states reenfranchise upon completion of a criminal sentence. More recent scholarship that focused on immigration likely influenced the United States Supreme Court’s decision in Padilla v. Kentucky. Moreover, for the past decade, not for profit agencies, as well as governmental bodies such as the Equal Employment Opportunity Commission (EEOC), have worked on implementing fairness standards in both the public and private employment markets. Housing consequences, while not ignored, must also be critically reexamined and reformed.

This Article adds to the existing reentry scholarship and advocacy by identifying and examining issues in the administration of federal public housing policy and inequities inherent in the current system. More specifically, this Article explores federal public housing policies regarding the use of criminal history information in determining the eligibility of applicants seeking admission to federal public housing programming. This criminal history information includes not only criminal convictions but also arrests and prior drug use. I argue that in light of recent federal reentry initiatives, federal housing law must be substantially reformed.

Keywords: Reentry, collateral consequences of conviction, public housing, criminal history, civil death

Suggested Citation

Silva, Lahny R, Criminal Histories in Public Housing (2015). Wisconsin Law Review, Vol. 5, No. 4, 2015, Available at SSRN: or

Lahny R Silva (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States

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