Housing the Decarcerated

45 Pages Posted: 23 Apr 2021

Date Written: February 21, 2021


The coronavirus pandemic exposed an issue at the intersection of the public health, carceral and housing crises – the lack of housing for the recently decarcerated. Early in the pandemic calls came to release incarcerated persons and cease arrests in light of the risks posed by failing to be able to socially distance while incarcerated. At the same time, the pandemic forced a national conversation about the sheer number of unhoused persons in our country. The pandemic created an emergent argument for both broad scale decarceration and publicly funded housing. The practical process of securing housing for the recently decarcerated, however, is fraught because of what is described in this article as the “culture of exclusion” that has long pervaded subsidized housing policy, enabled by a patchwork of federal laws, including the Anti-Drug Abuse Act (ADA) of 1988 and the Supreme Court case, HUD v. Rucker. The culture of exclusion is arbitrated by local housing authorities and works on three levels – eligibility, enforcement and set asides. As a result, formerly incarcerated persons are often rejected outright during the application process. In addition, persons who live in subsidized housing and are alleged to be engaged in or associated with anyone who is alleged to have participated in criminal conduct can be evicted making subsidized housing itself a pipeline into the prison industrial complex. This Article seeks to motivate a pathway towards housing the decarcerated by ending the culture of exclusion. In Part I, the article briefly updates the status of the prison abolition and right to housing movements. Part II builds on the idea that stable housing for formerly incarcerated persons is essential to the prison abolition movement’s success by reviewing summary results from pilot programs in New York, Washington and Michigan. Part III suggests that “one strike” policies, have created a broader “culture of exclusion,” which the Supreme Court validated in Rucker, further burdening the process of reentry for the recently decarcerated. Finally, Part IV, prescribes policy changes that are essential to housing the decarcerated even beyond repealing the ADA and overturning Rucker, including transcending the narrative of innocence, directing PHA discretion to admit not deny and utilizing civil rights laws to equalize voucher holders.

Keywords: housing, abolition, discrimination

Suggested Citation

Brown Hayat, Norrinda, Housing the Decarcerated (February 21, 2021). California Law Review, Vol. 110, 2022, Rutgers Law School Research Paper , Available at SSRN: https://ssrn.com/abstract=3832232 or http://dx.doi.org/10.2139/ssrn.3832232

Norrinda Brown Hayat (Contact Author)

Rutgers Law School - Newark ( email )

Newark, NJ
United States
2676712973 (Phone)
07102-3026 (Fax)

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