As part of the Biden administration’s governmentwide initiative to give criminals a second chance a federal agency plans to eliminate restrictions that prevent convicted felons from conducting investigations that often lead the Department of Justice (DOJ) to take legal action. It involves fair housing testers who help federal authorities gather evidence of bias and discrimination by going undercover in housing transactions that can expose wrongdoing. Technically, housing testers play a key role in government housing probes, and they are supposed to be carefully vetted.
Now the Department of Housing and Urban Development (HUD) wants to remove existing criminal conviction regulations for fair housing testers to make its “programs as inclusive as possible for people with criminal records.” In a notice published in the Federal Register, the agency proposes eliminating the restrictions for Fair Housing Initiatives Program (FHIP) grantees and Fair Housing Assistance Program (FHAP) agencies that forbid FHIP and FHAP recipients from using fair housing testers with prior felony convictions or convictions of crimes involving fraud or perjury. Besides making HUD programs as inclusive as possible for criminals, the agency writes that the proposed rule will ensure that it can “fully investigate criminal background screening policies that are potentially discriminatory under federal civil rights laws by using testers with actual criminal backgrounds.”
In a press release announcing the plan, HUD Secretary Marcia L. Fudge says “we trust fair housing testers to identify bias and discrimination in housing so we can fulfill our mission to root it out.” She continues: “Through this new rule, we can ensure people with criminal records who want to participate in this important work aren’t facing unnecessary barriers. People reentering society, and those with criminal records, deserve a fair shot at a second chance. This rule helps us get there.” The announcement also provides a link to a 2022 memorandum issued by Fudge titled “Eliminating Barriers That May Unnecessarily Prevent Individuals with Criminal Histories from Participating in HUD Programs.” In the memo housing secretary points out that we cannot ignore the fact that persons who have been involved with the justice system are disproportionately racial minorities, accounting for “discriminatory impact exclusions based on criminal history.”
Even those who agree with second chances may reasonably question if convicted felons should participate in federal investigations. The DOJ’s Civil Rights Division uses information gathered by fair housing testers to enforce the Fair Housing Act, which prohibits discrimination based on race, color, religion, national origin, sexual orientation and gender identity, disability and familial status. In cases where investigations yield evidence of a pattern or practice of illegal housing discrimination, federal prosecutors file lawsuits. Since 1992 the DOJ has resolved 111 cases with evidence directly generated from the Fair Housing Testing Program, according to government data. It has led to the recovery of more than $15.3 million, including over $2.3 million in civil penalties and north of $13 million in other damages. “The vast majority of testing cases filed to date are based on testing evidence that involved allegations of agents misrepresenting the availability of rental units or offering different terms and conditions based on race, and/or national origin, and/or familial status,” according to the DOJ. Combating race discrimination has been a central focus of the program, the agency confirms.
Allowing convicted criminals to participate in federal housing investigations are part of a broader push by the Biden administration to “help people who were formerly incarcerated reenter society.” In a 2022 Proclamation on Second Chance, the president reminds the nation and all government agencies that millions of Americans have a criminal record that creates significant barriers to employment, economic stability, and successful reentry into society. “Thousands of legal and regulatory restrictions prevent these individuals from accessing employment, housing, voting, education, business licensing, and other basic opportunities,” the president writes in his proclamation. “Because of these barriers, nearly 75 percent of people who were formerly incarcerated are still unemployed a year after being released.” In the document the commander in chief stresses the “racial inequities that lead to disproportionate numbers of incarcerated people of color and other underserved groups.”