Montgomery County could “ban the box” for rental housing applications

Montgomery County Council is considering a bill that would prohibit landlords from considering some types of criminal records in rental applications. The bill is meant to curb discrimination that disproportionately affects renters of color.

“Housing is a basic right,” said Councilman Evan Glass, a lead sponsor of the bill along with Councilman Sidney Katz, in a December 8 legislative session. “And we know that those who were formerly homeless and those who’ve served time need housing, just like anybody else.”

The bill would prohibit landlords in Montgomery County from conducting criminal background checks on potential renters until making a conditional offer. After that initial offer, landlords could look into tenants’ backgrounds, but it would then ban them from considering certain arrests and misdemeanors, including:

• Arrests that didn’t result in a conviction
• Trespassing, misdemeanor theft, indecent exposure, public urination, and open container violations
• Misdemeanor possession of marijuana
• Other misdemeanors if two years have passed since the date of conviction and the end of incarceration

The bill, which is similar to the county’s 2014 “ban the box” legislation meant to combat workplace discrimination, would help ensure returning citizens and those who have experienced homelessness find a place to live, proponents say.

“Nobody should be denied housing because they couldn’t afford to pay a traffic ticket while they were experiencing homelessness,” Glass said.

Glass said the bill had been endorsed by the Montgomery County chapter of the NAACP because of its potential to eliminate a challenge that falls disproportionately on Black people and other people of color.

People of color are more likely to have interactions with the criminal justice system on all levels — from arrests and traffic stops to convictions and sentencing. An Office of Legislative Oversight report in July found that although only 18% of the county’s population is Black, 44% of Montgomery County police arrests in 2017 were of Black people.

Formerly incarcerated people are more than 10 times as likely as the general population to become homeless, according to a 2018 report by the Prison Policy Initiative. The DC Fiscal Policy Institute found that three in five people experiencing homelessness in DC were previously incarcerated, and many of those people connect their homelessness to previous incarceration.

DC passed “ban the box” legislation for landlords in 2016. Landlords in the District are required to make a conditional offer before looking into an applicant’s criminal background. There are then multiple restrictions on which convictions they can consider. Landlords can only consider convictions from more than seven years ago if they fall under a certain list of serious crimes; and crimes landlords are allowed to consider must be weighed according to a series of reasonableness standards.

The US Department of Housing and Urban Development released guidance in 2016 cautioning landlords that using criminal history to deny rental applications could result in discriminatory outcomes that could violate the Fair Housing Act.

“While the Act does not prohibit housing providers from appropriately considering criminal history information when making housing decisions, arbitrary and overbroad criminal history-related bans are likely to lack a legally sufficient justification,” the HUD guidance says. “Thus, a discriminatory effect resulting from a policy or practice that denies housing to anyone with a prior arrest or any kind of criminal conviction cannot be justified, and therefore such a practice would violate the Fair Housing Act.”

A public hearing on Montgomery County’s bill is scheduled for January 12.