Criminalizing Despair: The Intersections of Pretrial Incarceration and Housing Insecurity
Housing; enter it as a quick google search and your newsfeed will be populated by articles describing affordable housing shortages, mortgage rate hikes, and local real estate developments. Take a cursory look at some of these stories, and it’s clear that safe and affordable housing represents a fundamental human need. Throughout Illinois and the country at large, obtaining and maintaining affordable and safe housing is often a difficult and chaotic experience. Nationwide, about half of Americans (49%) consider housing a major problem where they live. And while changing economic conditions and institutional barriers can make finding an adequate living situation a challenge for people of various ages and walks of life, this challenge is magnified for those harmed by our pretrial systems.
Housing is a crucial component in ensuring stability and promotes healthy living, financial prosperity, quality education, access to civil rights, and more. While many people in our country understand that making sure everyone has a safe, decent, and affordable place to live should be a national priority, our approach to dealing with housing insecurity and homelessness is frequently punitive and inhumane.
Criminalizing Despair
While there is no widely accepted definition of housing insecurity, most researchers agree that it describes a state of unstable and inadequate living arrangements, typically as a result of eviction risk and unsafe or poor living conditions. “Housing insecurity” can be thought of as a spectrum, inclusive of those struggling to pay rent and forced to frequently relocate, or in its most severe form, those experiencing homelessness. Homelessness, or the state of being unhoused, typically applies to those living in shelters, those living unsheltered, and individuals doubling up with family or friends or staying in some other temporary living arrangement (hotels, motels, etc.).
Those experiencing some form of housing insecurity are often involved with the criminal legal system; it is estimated that over 54% of individuals receiving unhoused services have a record of past incarceration.
The desperation brought on by housing insecurity, particularly in its most severe form, is routinely criminalized. Nationally, researchers have found that someone in jail is between 7.5 and 11.3 times more likely to have been unhoused than someone with no history of jail incarceration. Being unhoused often leads people to partake in minor criminalized behaviors to survive; but minor drug and theft charges or property violations, such as trespassing, committed by unhoused individuals are often not recognized as what they are: the consequences of depriving people of a vital human need. Instead, these crimes often lead to jail, an inappropriate and wholly ineffective venue to handle an underlying crisis in housing.
Certain laws actually seem to criminalize the very state of being unhoused. These offenses, called “nuisance crimes,” violate city ordinances that disallow people from doing things such as sleeping on benches or in doorways or public urination. Alarmingly, an examination of the municipal codes of 187 cities found that 53% prohibit sitting or lying down in certain public places, 43% prohibit sleeping in vehicles, and 18% prohibit sleeping in public. Ironically, while the problematic enforcement and enactment of these inhumane laws and ordinances is supposedly motivated by an effort to remove unhoused people from public spaces, they ultimately worsen the issue of housing insecurity and place affordable and quality housing further out of reach for countless individuals and families.
Pretrial Practices Worsen an Existing Problem
People and families of color face disproportionate barriers to affordable, stable housing due to historical discrimination from federal policies, local predatory practices in lending and renting, and fewer protections from enforcement of fair-housing laws. But these pressures are amplified for people of color who have also had previous contact with the criminal legal system. In Illinois, people of color are overrepresented in both our jailed and unhoused populations. Additionally, in 2020, about 44% of Black and Latine renters reported trouble paying rent and faced an increased risk of eviction.
In practice, this means that criminal penalties and pretrial practices targeting housing insecurity have an outsized impact on Black and Latine residents, placing many of them in a vicious and ongoing cycle of economic and social devastation.
Risk Assessment Tools (RATs) play an active role in perpetuating this cycle. RATs are designed to provide information used by judges to inform decisions to either release or detain individuals pretrial. These tools consider a range of factors that ultimately produce a “score” meant to illustrate how likely a person is to be rearrested pending trial – the higher the score, the more likely the court is to consider that person for pretrial incarceration. Although these tools and the criteria they rely on vary by jurisdiction, many do consider housing an important variable, in which renting and frequently changing addresses are both viewed to imply dangerousness and a likelihood of rearrest.
In fact, in several of the most common RATs, housing is placed at an equal or higher risk bracket than criminal history. And while there is minimal publicly-available information regarding the full scope of RATs used by every jurisdiction in Illinois, we do know that the VPRAI (Virginia Pretrial Risk Assessment Instrument) is in active use in both DuPage and Macon counties. Per this tool, 1 point is assigned to the question, “has the defendant lived at his/her residence for less than 1 year?” As a result, factors that merely speak to an individual’s socioeconomic status in either county are used as evidence of criminality to justify the assignment of unaffordable money bonds and pretrial incarceration.
Upon being denied access to pretrial release, the harms to an individuals’ housing prospects only expand. Even short bouts of incarceration typically result in losses of employment, housing, and more. Under the current money bond system, even if families or outside support systems are able to raise enough money to purchase their loved ones’ freedom, doing so can come at the cost of personal assets including homes, cars, and other properties.
A Vicious Cycle
Stable housing is the foundation of successful reentry to society from prison or jail, but unfortunately, time spent in carceral settings makes it difficult for people to find stable places to live. The lack of accessible, affordable housing combined with discrimination from public housing authorities and private property owners fuels the exclusion of recently incarcerated people from the housing market. Screening requirements implemented by public housing authorities and property owners determine whether features of an applicant’s background (criminal history) even merit housing – punishing people with additional economic hardship for criminal histories that, in many cases, originated with economic hardship. The continued use of credit checks, large security deposits, and other housing application requirements – including professional reference checks – can also act as systemic barriers for people who have spent extended periods of time away from the community and out of the labor market.
Decriminalizing Despair
In sum, what we have is a housing crisis occurring nationally and statewide that is made more difficult to resolve by the criminalization of poverty and our existing pretrial practices. By punishing people for their precarious housing situations, we’re not only withholding access to a basic human right (recognized by the United Nations), we’re also harming their ability to access healthcare services and mental health and substance use treatment, curtailing their chances of finding a job and diminishing their ability to access educational programming.
Fortunately, here in Illinois we have some ways to begin shifting our response to housing insecurity from a criminal legal lens.
The comprehensive reforms made to our state’s pretrial system by the recently passed Pretrial Fairness Act prevent our courts from commodifying peoples’ freedom through the elimination of money bond and make lower-level charges ineligible for jail when someone is initially arrested.
No longer will people facing high degrees of economic uncertainty be forced to languish in jail often for minor charges meant to support their survival, nor will their loved ones be driven toward economic devastation and housing insecurity in an effort to bail them out. Furthermore, the new law also diminishes the role risk assessment tools play both in criminalizing housing insecurity. The law diminishes the role they play in determining whether someone goes free pending trial while also minimizing the variability of these tools between jurisdictions.
As litigation in the case of Rowe vs. Raoul draws to a close and we await a ruling from the Illinois Supreme Court, it’s important to consider how the changes made by the Pretrial Fairness Act don’t only portend lower jail and prison populations, but will also reduce economic harm to communities spread throughout Illinois.
Beyond waiting for the Pretrial Fairness Act to take effect in Illinois, we have to move away from commodifying access to the basic human need of shelter—especially for those experiencing homelessness or those returning from jails and prisons. States like Utah have implemented successful permanent housing programs that have dramatically reduced the number of people experiencing chronic homelessness by 91%. The success of this program and others like it demonstrate two things: (1) We have the financial means to prioritize housing to significantly curb housing-related hardship; (2) Housing-first programs are not only a necessary prerequisite to ensuring a higher quality of life but they have the potential to minimize future legal system involvement.
Learn more about how wealth-based jailing harms communities here. Visit endmoneybond.org for information about the Pretrial Fairness Act.