[Excerpt on fair housing in book on restorative justice to be
published Summer 2015]
Restorative Justice:
A Community-Based Approach to
Resolving Antisocial Behavior
Sheila M. Murphy
Michael P. Seng
Editors
1
Table of Contents
A Message from Archbishop Tutu
Archbishop Desmond Tutu................................................................................................................. 8
Foreword
Sean Fox ............................................................................................................................................ 9
St. Ignatius of Loyola: Patron Saint of Restorative Justice
Ellen Tully ........................................................................................................................................ 10
Introduction
Judge Sheila M. Murphy (Ret.) and Michael P. Seng) .................................................................... 15
The Practice of Restorative Justice ........................................................................................................... 17
Introduction to the Practice of Restorative Justice ........................................................................................ 18
The Tools of Restorative Justice
Judge Sheila M. Murphy (Ret.), Michael P. Seng, and Crystal Stewart .......................................... 19
Why Restorative Justice? And, Less Straightforward, How Did I Get There?
Judge Martha Mills (Ret.) ................................................................................................................ 25
The Shock of True Forgiveness
Jeanne Bishop .................................................................................................................................. 35
Planting Seeds for the Future: New Life in the Midst of Concrete
Mary Harkenrider and Jen Cullerton Johnson ................................................................................ 41
The Wisdom of Athena: Greek Tragedy and Restorative Justice
Siobhan Kattago .............................................................................................................................. 49
A Retired Judge’s Story
Judge Sheila M. Murphy (Ret.) ........................................................................................................ 53
Restorative Justice in the Courts ............................................................................................................... 59
Introduction to Restorative Justice in the Courts .......................................................................................... 60
Rethinking the War on Drugs: What Insights Does Restorative Justice Offer?
Judge Joan Gottschall and Molly Armour)...................................................................................... 62
Telling Their Stories: Whose Lives Would Restorative Justice Restore?
Carol A. Brook ................................................................................................................................. 71
Verneal Jimerson: To Death Row and Back
Mark R. Ter Molen..………………………………………………………………………………82
2
The View from the Bench in Juvenile Court
Judge Colleen Sheehan) .................................................................................................................. .92
An Historical Perspective on the Juvenile Court Movement in Chicago and its Impact and Continuing
Social and Legal Implications
Thomas A. Jaconetty and Nicole A. Jaconetty …………………. .. …..…………………………………96
The Children’s Room in the Sixth District Court Located at 16501 S. Kedzie Ave.
Mary Donohoe Haugh ................................................................................................................... 108
Expungement of Records as a Tool of Restorative Justice
Christie Fischer ............................................................................................................................... 111
Leroy’s Story .............................................................................................................................................. 124
Restorative Justice in the Law School ..................................................................................................... 127
Introduction to Restorative Justice in the Law School................................................................................ 128
Restorative Justice and the Law School Curriculum
Michael P. Seng ............................................................................................................................. 129
Restorative Justice: A Law Student’s Guide
Andrew Lofthouse .......................................................................................................................... 136
Helping to Build Restorative Economies in Low- and Moderate-Income Communities: A
Collaborative Model to Provide Business and Transactional Legal Services
Michael Schlesinger ....................................................................................................................... 141
A Law Professor’s Story: Accessing Restorative Justice by Teaching Elder Law
Barry Kozak ................................................................................................................................... 156
Restorative Justice in the Community and Beyond ............................................................................... 162
Introduction to Restorative Justice in the Community and Beyond ........................................................... 163
Restoring Connections: Hawaiian Values and the EPIC ‘Ohana, Inc. Programs that Serve the
Children and Families in Hawaii’s Foster Care System
Wilma Friesema ............................................................................................................................. 164
Restorative Justice and Housing Discrimination
Michael P. Seng ............................................................................................................................. 177
Nutrition and Restorative Justice
Emily Koziarski .............................................................................................................................. 190
Torture and Restorative Justice
Kim D. Chanbonpin ....................................................................................................................... 195
3
Restorative Justice: The Interplay Between Immigration Law, Criminal Law, and Restorative
Justice
Royal F. Berg ................................................................................................................................. 201
Diversity: The Struggle and the Celebration
Judge William J. Haddad (Ret.) ..................................................................................................... 210
Restorative Justice and the Christian Church
Pastor Olivia Johnson.................................................................................................................... 215
Forward to the Chapter, Clergy Sexual Abuse in the Roman Catholic Church and the Perspective of a
Family Physician Who Is Also a Victim of Clergy Sexual Abuse
Michael P. Seng) ……… ............................................................................................. …………..218
Clergy Sexual Abuse in the Roman Catholic Church and the Perspective of a Family Physician Who Is
Also a Victim of Clergy Sexual Abuse
Dr. Rosemary Eileen McHugh … ................................................... ……………………………...220
Reflections on War and Restorative Justice
Michael P. Seng ............................................................................................................................. 238
Marcia’s Story
Marcia Lizzo Doane....................................................................................................................... 244
Restorative Justice and Self-Healing ....................................................................................................... 247
Introduction to Restorative Justice and Self-Healing.................................................................................. 248
Introduction to “Spirituality and the Serenity Prayer” by Dr. Michael Smith
Judge Sheila Murphy (Ret.) ........................................................................................................... 249
Spirituality and the Serenity Prayer
Dr. Michael Smith .......................................................................................................................... 251
Yoga as a Practice of Restorative Justice
Christa Brown ................................................................................................................................ 256
Yoga and Work: Taking Care of Yourself So You Can Take Care of Others
Ruth Yacona ................................................................................................................................... 266
A Story of Recovery
CJ Muller ....................................................................................................................................... 268
The “Moment of Truth”
Brian Murphy..………………………………………………………………...…..………………………270
4
Restorative Justice and Housing Discrimination
Michael P. Seng
The restorative justice triangle stresses three different constituencies: the offender (or
perpetrator), the victim (or survivor), and the community. All three are essential to the proper functioning
of restorative justice. Restorative justice seeks a peaceful resolution of disputes. Ideally, offenders accept
responsibility for their actions and seek reconciliation with their victims and the community, and then all
live happily ever after. However, this is too much like a fairy tale. Who actually is the offender who must
make amends? Who is the victim and why does the victim command our special sympathy? What is the
role of the community? Is the community simply the chief beneficiary of the peace established when the
offender and victim are reconciled?
In actuality, it is difficult to differentiate the offender from the victim. Offenders are often
themselves victims. Victims are not always without fault. The community is not a passive player in the
drama. The community bears responsibility for anti-social conduct. The community provides the
environmental context where anti-social action occurs. On closer examination, all too often, the
restorative triangle manifests a cycle of injustices that must be addressed and transformed for any positive
change to occur.
This is well illustrated by the South African Truth and Reconciliation Commission proceedings.
The community-produced apartheid made victims of blacks. Because there was no source of official
redress, many blacks became angry and committed crimes against whites and against each other. This
created an escalating cycle of violence and intimidation. In such a situation, who is the perpetrator and
who is the victim? The community came to grips with the problem by abolishing apartheid and
establishing the Commission. Both whites and blacks who committed criminal and anti-social acts
appeared before the Commission and accepted responsibility for their conduct. Perpetrators, victims, and
the community all sought truth and reconciliation through the process of restorative justice. However, the
Truth and Reconciliation Commission only went so far. It did not and could not redress the societal
imbalances that apartheid produced. Serious economic and social disparities still exist today despite the
enshrinement of political, social and economic rights in the South African Constitution.
The United States can learn from South Africa. We can constitute commissions and form circles
and mediate between victims and offenders, but until the social and economic conditions that produce
anti-social conduct are addressed, restorative justice itself will be an empty shell. Anti-social acts are
frequently the result of pent-up frustrations by individuals who lash out at other individuals simply
because they are there. Our reaction is to punish the offender and assume that punishment will set things
right. This is not irrational, but we have visible evidence that it does not work. We incarcerate felons; we
fine misdemeanants; we suspend unruly students. But the problems only become worse. Retribution does
not set things right. Ideally, restorative justice requires offenders to take responsibility for their anti-social
behavior and make amends to their victims. We assume that the community will be thereby restored.
But it is the community that creates the environment where anti-social acts occur, and these antisocial acts will recur if the community environment itself is not transformed. Critics today rightly
5
acknowledge that our criminal justice system is broken.1 The war on drugs has been transformed into a
war on race.2 Mass incarceration in the United States is at unprecedented levels, and we do not feel any
safer. The whole criminal justice and corrections system is a drain on the economy. We must go further.
Can restorative justice do any better than retributive justice if it does not evolve into transformative
justice and transform the community that both causes and is affected by anti-social behavior?
It is the position of this paper that neither retributive nor restorative justice will work without also
focusing on transforming society itself. Peace circles, restorative chats, mediation, peer juries, and other
forms of alternative dispute resolution are important and must be implemented. But we must not forget
that the society that produces anti-social conduct is itself broken, or at least is not meeting its full
potential. Consequently, the struggle for restorative justice must go hand in hand with the struggle for
transformative justice.
This struggle is best illustrated by our nation’s housing problems. The lack of safe, sanitary, and
decent housing impacts neighborhoods and affects the lives of everyone who lives in the neighborhood. In
the United States, the challenge to house our citizens is exasperated by racism and other forms of
prejudice. As a result, many of our cities are segregated by race as well as by class and income.
Segregation breeds feelings of hopelessness and despair. Crime, drugs, and other anti-social behavior are
the result.
We will examine these concerns in the context of restorative justice. We will use the City of
Chicago as an example. In this paper, we will primarily focus on race, but any of the other protected
classes covered by the Fair Housing Act may be equally analogous. Indeed, housing discrimination is
related not only to color and national origin, but also to discrimination based on sex, religion, familial
status and handicap. Our communities do a poor job of ensuring that those with physical disabilities have
accessible housing. Our communities do a deplorable job when it comes to housing persons with mental
disabilities. Now with the Supreme Court’s decision in Olmstead v. L.C.,3 states are required to
deinstitutionalize many persons with disabilities. It will be a challenge to see that they are not herded into
segregated environments or, even worse, that they do not join the ranks of the homeless, many of whom
themselves are persons with disabilities.
Chicago – A Case Study
According to every study, Chicago is among the top five or six most segregated cities in the
United States.4 Chicago experienced the great migration of African Americans to the North in the first
1
William J. Stuntz, The Collapse of American Criminal Justice (Harvard U. Press 2011); Dan Simon, In Doubt:
The Psychology of the Criminal Justice Process (Harvard U. Press 2012).
2
Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New Press 2010).
3
527 U.S. 581 (1999).
4
Much of this chapter is based on a recent study undertaken by The John Marshall Law School Fair Housing
Legal Support Center. See John Marshall L. Sch. Fair Hous. Leg. Support Ctr., Segregation in the Chicago
Metropolitan Area – Some Immediate Measures to Reverse this Impediment to Fair Housing (May 1, 2013)
(available at http://www.jmls.edu/fairhousing/pdf/2013-chicago-segregation-study.pdf).
6
half of the 20th century.5 African Americans found defined boundaries where they could live. Some of
these boundaries were set through official action, such as through policies followed by the Chicago
Housing Authority,6 and others were set privately, especially through the use of restrictive covenants.7
Segregation defined Chicago’s neighborhoods, and it carried over into commercial life, job opportunities,
schools, and political representation.
Chicago’s neighborhoods were further defined by religion and ethnicity. Nicknames given to
communities that reflect their ethnicity still carry over today even though the religion or ethnicity of the
neighborhood has changed. When neighborhood boundaries were breached this was met with resistance
and sometimes by violence. Because of market restrictions, African Americans were subject to fraud and
exploitation.8 Lending and insurance practices, policies followed by the Federal Housing Administration,
and the actions of brokers, appraisers, and homeowner’s associations all combined to keep Chicago
segregated and African Americans confined to deteriorating areas.
Segregation was made possible by the legal system. We are often reminded that we cannot
understand segregation without understanding slavery. That segregation goes deeper than slavery is
evidenced by the Supreme Court’s focus in Dred Scott v. Sanford.9 Justice Taney astutely recognized that
it was not just slavery that took away the rights of African Americans; it was race. Slavery was based on
race, and all African Americans, not just slaves, were without rights under the Constitution. You could
abolish slavery, as many Northern states had done, but that did not change the status of black freedmen
under federal law. Taney’s proclamation that racism is central to federal law rings true through the ages:
[Black persons] had for more than a century before [the Constitution was
framed and adopted] been regarded as beings of an inferior order, and
altogether unfit to associate with the white race, either in social or
political relations; and so far inferior, that they had no rights which the
white man was bound to respect; and that the negro might justly and
lawfully be reduced to slavery for his benefit. He was bought and sold,
and treated as an ordinary article of merchandise and traffic, whenever a
profit could be made by it. This opinion was at that time fixed and
universal in the civilized white race. It was regarded as an axiom in
morals as well as in politics, which no one thought of disputing, or
supposed to be open to dispute; and men in every grade and position in
society daily and habitually acted upon it in their private pursuits, as well
5
Allan H. Spear, Black Chicago: The Making of a Negro Ghetto (U. Chicago Press 1967); Nicholas Lemann,
The Promised Land (Vintage Books 1991); Joe Allen, People Wasn’t Made to Burn (Haymarket Books 2011).
6
See Gautreaux v. Chicago Housing Authority, 501 F.2d 324 (7th Cir. 1974).
7
See Beryl Satter, Family Properties: Race, Real Estate, and the Exploitation of Black Urban America
(Metropolitan Books 2009); Richard R. Brooks & Carol M. Rose, Saving the Neighborhood (Harvard U. Press
2013).
8
Id.; Clark v. Universal Builders, 501 F.2d 324 (7th Cir. 1974) (the “contract buyers” case).
9
60 U.S. 393 (1856).
7
as in matters of public concern, without doubting for a moment the
correctness of this opinion.10
This meant that African Americans had no privileges or immunities protected by federal law,
including the right to travel, the right to own property, and the right to sue in the federal courts. States
could confer those rights, but the states could not compel federal authorizes to recognize them, and, of
course, states could and did deny these rights. Even Congress was powerless to confer rights on African
Americans. After Dred Scott, the problem was not just slavery; the Supreme Court had broadened the
argument beyond slavery and made the whole question of rights turn on one’s race. This lesson was not
lost on future judges and lawmakers.
After the Civil War, Congress tried to change course. The Thirteenth Amendment abolished
slavery and specifically allowed Congress to enforce the amendment by appropriate legislation. Pursuant
to this grant of power, Congress passed the Civil Rights Act of 1866 over a presidential veto. That Act,
among other things, give all citizens the right to own and lease property the same as white citizens.11 To
ensure the constitutionality of the Civil Rights Act of 1866, the Fourteenth Amendment was adopted in
1868. It provided that no State could deny any citizen the privileges and immunities of United States
citizenship or any person due process of law or the equal protection of the laws. Again, the Amendment
provided that Congress could enforce it by appropriate legislation.
However, the Supreme Court narrowly read the term “privileges and immunities” and, thereby,
effectively excluded the right to own or lease property from that clause.12 Later in 1883, the Court held
that the Thirteenth Amendment did not give Congress the power to legislate against racism and that the
Fourteenth Amendment did not prohibit discrimination practiced by private individuals where there was
no state action.13 Although in 1917 the Supreme Court refused to extend its “separate but equal”
jurisprudence to municipal zoning decisions,14 it left the federal government, the states, and private
individuals free to implement practices that effectively segregated neighborhoods (so long as zoning was
not overtly racist). The Court did declare in 1948 that judicial enforcement of restrictive covenants that
excluded persons from owning property was illegal state action under the Fourteenth Amendment, but
that decision did not prevent the private enforcement of such agreements.15
It was not until 1968 that federal law made housing discrimination illegal. The Supreme Court
relooked at the Civil Rights Act of 1866 and held that Congress meant what it said. The Court held that
all persons had the right to own or lease real property free of racial discrimination and that the Thirteenth
Amendment was the source of Congress’ power. For the first time, the Court recognized that racial
10
Id. at 407.
11
This provision is codified today in 42 USC §1982.
12
Slaugher-House Cases, 83 U.S. 36 (1872).
13
The Civil Rights Cases, 109 U.S. 3 (1883).
14
Buchanan v. Warley, 245 U.S. 60 (1917).
15
Shelley v. Kraemer, 334 U.S. 1 (1948); Brooks & Rose, supra n. 7. Cf., Reitman v. Mulkey, 387 U.S. 369
(1967) (holding that the California Constitution could not give property owners a state constitutional right to
discriminate in the sale or leasing of property).
8
discrimination was a “badge or incident of slavery” for which Congress could provide a remedy under
Section 2 of the Thirteenth Amendment.16
Also in 1968, Congress passed the Fair Housing Act that broadly prohibited many, but not all,
discriminatory housing practices based on race, color, religion, and national origin. Later Congress
amended the Act to add sex and, in 1988, familial status (defined as families with children under the age
of 18) and handicap (or disability) as protected classes.17 The Fair Housing Act reached private
discrimination as well as discrimination through governmental action. The lower federal courts have
interpreted the statute to prohibit policies and practices that have a discriminatory impact,18 and the
Department of Housing and Urban Development has adopted a regulation to that effect.19 To date, the
United States Supreme Court has not ruled on the issue.
Chicago and Illinois played an important role in bringing about the passage of the Fair Housing
Act. A report by the National Advisory Commission on Civil Disorders that was appointed by President
Johnson and headed by Illinois Governor Otto Kerner described America as moving toward two separate
and distinct societies divided by race. Also, Congress passed the Fair Housing Act as a memorial to Dr.
Martin Luther King following his assassination in April 1968. It was through Chicago that Dr. King
became an advocate for fair housing. In 1966, Dr. King led an open housing campaign in Chicago. It was
his first civil rights initiative outside the South. He met with both official and private resistance. He
allegedly remarked that he had never experienced such manifest racial hatred as he saw in Chicago.20
However, the passage of civil rights laws did not reverse the legacy of segregation in Chicago.
The city remains segregated today. Neighborhood patterns once established are not easily uprooted.
Under the 2000 Census, black residents account for about 35.4 percent of the total population and Latinos
account for 28.1 percent. Forty percent of the 77 community areas in Chicago are more than 50 percent
white, and 14 of these areas are over 90 percent white. Thirty-one community areas are predominately
black, and 21 of these have concentrations of blacks exceeding 90 percent. Fourteen of the 31
predominately black communities are over 98 percent black. Latinos are somewhat less concentrated.
They predominate in five communities, but none of these exceed a Latino concentration of 90 percent.
The statistics on poverty are striking when broken down. Twenty-seven communities are
considered to be “high poverty”: 21 of these are predominately black; two are Latino; and one is white.
There is a shortage of affordable rental housing, a shortage of larger units to accommodate larger families,
and a shortage of accessible housing for persons with disabilities. The number of affordable units has
16
Jones v. Alfred H. Meyer Co., 392 U.S. 409 (1968).
17
42 U.S.C. § 3600 et seq.
18
See e.g. Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d 1283 (7th Cir.
1977), cert. denied, 434 U.S. 1025 (1978); Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926 (2d
Cir. 1988), aff’d, per curiam, 488 U.S. 15 (1988).
19
Implementation of the Fair Housing Act’s Discriminatory Effects Standard, 78 Fed. Reg. 11460-01 (Feb. 15,
2013).
20
David Garrow, Bearing the Cross (William Morrow 1986); Alan B. Anderson & George W. Pickering,
Confronting the Color Line: The Broken Promise of the Civil Rights Movement in Chicago (U. Georgia Press 1986);
James R. Ralph, Jr., Northern Protest (Harvard U. Press 1993); Taylor Branch, At Canaan’s Edge: America in the
King Years, 1965-68 (Simon & Schuster 2006).
9
been dropping steadily, and many of the affordable units are either substandard or not the proper size for a
large family. Many public housing units have been demolished, and the preferred program for poor
persons seeking housing is the Section 8 voucher program, which has a waiting list of up to ten years.
The foreclosure crisis has only exasperated the problem. Because many African Americans—
even African Americans who were qualified—were shut out of the prime lending market and steered to
subprime loans, the foreclosure crisis hit them particularly hard.21 When the housing market crashed,
foreclosures affected minority communities on a larger scale than white communities. In African
American and Latino communities in 2009, there was an average of almost 60 bank-owned properties per
square mile. This was triple the number in majority white areas.
Additionally, many renters in Chicago are minorities, and many have been displaced because the
properties they rented went into foreclosure. This contributes to the cycle of diminishing the supply of
housing available to minority residents, who often are forced to live with family members or in shelters.
The foreclosure crisis has effectively stripped the wealth from minority communities.22
Housing Discrimination’s Link to Restorative Justice
Segregated housing is perhaps the most basic civil rights violation. It affects all other rights. 23
Housing patterns affect voting and political representation; they affect jobs and employment; they affect
city services. Most importantly for restorative justice advocacy, housing patterns affect education, health
care, and crime. Disparities in housing and in neighborhoods place a stamp of inferiority that has
consequences at least as deep as the stamp of inferiority that Chief Justice Earl Warren found affected
segregated schools in Brown v. Board of Education.24
There have been widespread changes since Congress passed the Fair Housing Act in 1968. The
kind of overt discrimination that existed in Chicago and other cities is rare today, although it still
occasionally occurs. Chicago has elected an African American mayor, and the United States has elected
an African American president. But there is an even deeper gulf between those persons who have made it
21
See Christine Vidmar, Seven Ways Foreclosures Impact Communities (NeighborWorks America 2008)
(available
at
http://www.nw.org/network/neighborworksprogs/foreclosuresolutions/reports/
documents/7ForeclosureImpacts.pdf); Lawyers’ Committee for Better Housing, Three Year Impact Assessment:
Apartment Building Foreclosures and the Depletion of Rental Housing in Chicago – Fact Sheet, http://lcbh.org/wpcontent/uploads/2012/07/LCBH-Three-Year-Impact-Assessment-Apartment-Building-Foreclosures-and-theDepletion-of-Rental-Housing-in-Chicago_Fact-Sheet.pdf (accessed Aug. 7, 2014).
22
James H. Carr & Katrin B. Anacker, White Paper: Long Term Social Impacts and Financial Costs of
Foreclosure on Families and Communities of Color (Nat’l Cmty. Reinvestment Coalition 2012) (available at
http://www.ncrc.org/images/stories/pdf/research/wp_aecf_final10312012.pdf).
23
William Julius Wilson, The Truly Disadvantaged: The Inner City, the Underclass and Public Policy (U.
Chicago Press 1987); Alex Kotlowitz, There Are No Children Here (Nan A. Talese 1991); Douglas S. Massey &
Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass (Harvard U. Press 1993);
John Yinger, Closed Doors, Opportunities Lost: The Continuing Costs of Housing Discrimination (Russell Sage
Found. 1995); William Julius Wilson, When Work Disappears (Alfred A. Knopf 1996); Mary Pattillo, Black on the
Block: The Politics of Race and Class in the City (reprint ed., U. Chicago Press 2007); Robert J. Sampson, Great
American City: Chicago and the Enduring Neighborhood Effect (U. Chicago Press 2012).
24
347 U.S. 483 (1954).
10
and those who have not. The political will to attack and solve the fundamental problems of racism and
poverty is not present today.25 The Supreme Court is no longer receptive to broad civil rights arguments.26
Many policies that perpetuate segregation are intentional. Under the fair housing laws, intentional
discrimination can be proven through overt acts and statements. Today, overt acts of discrimination are
rare. But intentional discrimination can also be proved through circumstantial evidence. The context of
the decision and the sequence of events can be powerful indicia of intentional discrimination. Zoning
decisions and land use decisions are frequently challenged because they were intended to exclude or
segregate classes protected by the fair housing laws. Violations are almost always established through
circumstantial evidence.
Segregation may also be perpetuated by policies that have a disparate impact. Disparate impact
cases are not easy to win. Municipalities can rebut a statistical showing of impact by establishing that the
practice or policy has a “legally sufficient justification.”27 The U.S. Department of Housing and Urban
Development (HUD) regulation states that a “legally sufficient justification” exists “where the challenged
practice: (i) is necessary to achieve one or more substantial, legitimate, non-discriminatory interests of the
respondent … and (ii) those interests could not be served by another practice that has a less
discriminatory effect.” It further provides that the “legally sufficient justification must be supported by
evidence and not be hypothetical or speculative.”28 Judges are generally uncomfortable invalidating a
municipal law without some evidence of discriminatory intent.
Perhaps the most visible example of a policy that impacts persons on the basis of race in a way
that directly implicates restorative justice is restrictions on the rights of persons with arrest or conviction
records to rent housing. Whether such policies are illegal is yet to be decided.
The John Marshall Law School summarized the problem in its recent study titled “Segregation in
the Chicago Metropolitan Area – Some Immediate Measures to Reverse this Impediment to Fair
Housing.”29 It cited findings that showed that the number of people being released from incarceration in
Illinois has multiplied six times since the 1970s and currently holds steady at about 30,000 to 40,000
inmates each year.30 In 2004 alone, Illinois released 39,293 state prisoners, a number that was not only the
fourth highest volume in the United States, but one that represented almost a 34 percent increase from
25
See Chester Hartman & Gregory D. Squires, The Integration Debate: Competing Futures for American Cities
(Routledge 2010); Sheryll Cashin, The Failures of Integration: How Race and Class Are Undermining the American
Dream (PublicAffairs 2004).
26
This is evidenced by such recent opinions as Parents Involved in Community Schools v. Seattle School
District, 551 U.S. 701 (2007) (desegregation of public schools); Shelby County v. Holder, 133 S. Ct. 2612 (2013)
(voting rights).
27
Implementation of the Fair Housing Act’s Discriminatory Effects Standard, 78 Fed. Reg. 11460-01 (Feb. 15,
2013).
28
Id.
29
John Marshall L. Sch. Fair Hous. Leg. Support Ctr., Segregation in the Chicago Metropolitan Area – Some
Immediate Measures to Reverse this Impediment to Fair Housing (May 1, 2013) (available at
http://www.jmls.edu/fairhousing/pdf/2013-chicago-segregation-study.pdf).
30
Meribah Knight & Kalyn Belsha, No Place to Go: Lack of Housing Options Leaves Ex-Offenders in Limbo,
http://news.medill.northwestern.edu/chicago/news.aspx?id=115239 (Feb. 11, 2009).
11
2000.31 Anthony Lowery, who works for the “Safer Foundation,” estimated that 33,000 people were
released from prison in 2012. He further estimated that of those 33,000 former inmates, 50 percent (or
16,500) came to Chicago. Another source estimates that more than 60 percent of the 39,293 state
prisoners released in 2004 returned to Chicago.32 Based on Anthony Lowery’s estimates, 317 prisoners
per week return.
The John Marshall report commented that while these numbers are high, they still do not convey
the totality of people who are excluded from housing because of their classification as “ex-offender.” For
instance, the Housing Authority of Cook County (HACC) excludes entire families based on the criminal
activity of a single household member (any household member who currently engages in, or has within
the past ten years engaged in, certain criminal activities, or, if convicted, was released within the past ten
years, may disqualify his or her entire family from housing). HACC will also consider drug use or
possession as grounds for exclusion if it took place within the past five years.
The Chicago Housing Authority has similar restrictions that affect households. Many
municipalities are enacting crime-free ordinances that require landlords to be licensed and that will revoke
a license if a landlord rents to offenders and their families. The ordinances differ in the recency and types
of crimes covered. Increasingly, private landlords are, on their own initiative, screening applicants
through criminal background checks. The databases relied upon by landlords are unreliable and may
contain outdated information.
These rental restrictions have a severe impact on the families of offenders. Families may be
excluded from housing solely because of the anti-social activities of another family member. As a result,
many offenders separate from their families. One study shows that up to about 45 percent of men return to
different communities than the one they left prior to incarceration due to fear of recidivism or
disqualifying his or her family from the ability to receive public housing.33
Michele Alexander has documented the effect that these policies have on racial segregation and
how our criminal justice system is creating a new caste system in the United States.34 She comments that
housing discrimination against former felons (as well as suspected
“criminals”) is perfectly legal. During Jim Crow, it was legal to deny
housing on the basis of race, through restrictive covenants and other
exclusionary practices. Today, discrimination against felons, criminal
suspects, and their families is routine among public and private landlords
31
Paige M. Harrison & Allen J. Beck, Prison and Jail Inmates at Midyear 2005 (Bureau of Justice Statistics
2006) (available at http://www.bjs.gov/content/pub/pdf/pjim05.pdf).
32
Chicago Metropolis 2020, 2006 Crime and Justice Index 37, http://www.metropolisstrategies.org/
documents/2006CrimeandJusticeIndex.pdf (Oct. 2006).
Nancy G. LaVigne, Christy Visher & Jennifer Castro, Chicago Prisoners’ Experience Returning Home
(Urban Inst. 2004) (available at http://www.urban.org/uploadedpdf/311115_chicagoprisoners.pdf).
33
34
Alexander, supra n. 2.
12
alike. Rather than racially restrictive covenants, we have restrictive lease
agreements, barring the new “undesirables.”35
Testing in Milwaukee showed the disparate impact of incarceration on the ability of young men
to secure employment.36 The impact of public perceptions on the correlation between race and crime was
also noted in the study where it was shown that even applicants “with no criminal background fared
worse [in the tests] than a white applicant with a criminal conviction.”37 It would be surprising if the same
impact did not exist in the housing market.
While the exact number of ex-offenders affected by policies and practices excluding them from
housing is elusive, it is unmistakably large. In Illinois, the composition of the prison population in 2011
was 56.7 percent black, 13.3 percent Hispanic, and 94.1 percent male.38 The Chicago communities that
receive the “highest impact” of reentry by recently released prisoners are concentrated on the south and
west side neighborhoods of Auburn Gresham, Austin, Englewood, North Lawndale, Roseland, and
Humboldt Park, which are low-income and predominately minority.39 The problem is compounded when
public and private housing providers exclude family members of those offenders.
Not finding housing leads to a host of other problems including recidivism. There is a high rate of
recidivism among ex-offenders who end up homeless or inadequately housed, and this only perpetuates
social problems in those communities, which are already segregated, willing to take a chance on housing
them. The rate of recidivism among ex-offenders that do not find adequate housing is 66 percent
compared to the 50-percent rate typical of all ex-offenders.40 Clustering ex-offenders is a credible cause
of violence in our cities.41
The John Marshall Law School Fair Housing Legal Support Center and Clinic identified other
policies and practices that have the impact of segregating persons on the basis of race or some other
protected basis and producing neighborhoods that are a breeding-ground for anti-social behavior and
violence. Wealth discrimination is not directly illegal under the Fair Housing Act; nonetheless, wealth
cannot be separated from race. Centuries of racial discrimination have obviously resulted in significant
35
Id. at 141-2.
36
Devan Pager, Marked (U. Chicago Press 2007).
37
Id. at 146.
38
Ill. Dept. of Corrections, Annual Report FY2011: Framework for the Future
http://www2.illinois.gov/idoc/reportsandstatistics/Documents/FY2011%20Annual%20Report.pdf (Oct. 2012).
20,
39
J. Frankel & M. Schwarz, Reentry Mapping Network: Chicago (Metro Chicago Information Center, The
Urban Institute, April 2008).
40
Community Safety & Reentry Working Group, Inside Out: A Plan to Reduce Recidivism and Improve Public
Safety (Cmty. Safety & Reentry Commn. 2008).
41
Robert J. Sampson, Great American City: Chicago and the Enduring Neighborhood Effect 248 (U. Chicago
Press 2012).
13
differences in the wealth held by African Americans and others. Wealth obviously impacts on the ability
of African Americans to obtain decent housing in an integrated environment.42
Today the primary means for low-income individuals to secure housing is through the housing
voucher program, funded by the federal government and administered locally.43 In Chicago, African
Americans constitute the highest percentage of the program’s participants.44 While the housing voucher
program is federally funded, federal law does not prohibit landlords from refusing to rent to voucher
holders. Theoretically, housing voucher holders who are excluded can argue that the refusal is based on
race or some other protected status under the Fair Housing Act, but they bear a heavy burden of proof in
doing so.45 Some municipalities and local governments have enacted “source of income” ordinances that
prohibit discrimination against housing voucher holders, but many renters do not know their rights or
choose not to complain.46 In cities like Chicago, where large tracts of public housing have been
demolished and the residents are given a voucher to go out and rent in the private market, discrimination
against voucher holders has the effect of perpetuating segregation.
Other practices that contribute to segregation that are not facially illegal are discriminatory
housing policies against immigrants and persons who are not proficient in English. The United States has
a history of anti-immigrant bias and many groups of immigrants have suffered discrimination when they
first entered the United States. The problem persists today. Thus new immigrants and especially those
who are not proficient in English are relegated to housing in low-income neighborhoods and experience
many of the same problems as African Americans. Because of their limited proficiency in English, they
are subject to exploitation and often are very reluctant to complain when they have been victimized.
Federal housing laws provide for their exclusion from public housing. Local ordinances, particularly
those regulating occupancy, affect the ability of immigrant families to find decent housing. Their lack of
familiarity with American housing laws and policies make them easy targets for discriminatory and
exploitive practices.
These and other practices contribute to the creation and perpetuation of segregated communities
that experience greater social problems and yet receive lower levels of public services than other more
politically powerful or affluent areas. Bringing restorative justice into these communities is essential, but
how do you restore something that does not work and has never worked? How do you go into a school
and preach restorative justice when gang battles are waging on the streets in front of the school and the
students go home at night and do not have a quiet place to study or a nourishing meal to sustain them?
This is the challenge that housing segregation poses for advocates of restorative justice.
42
Id.; George Lipsitz, How Racism Takes Place (Temple U. Press 2011); Richard Fry & Paul Taylor, The Rise
of Residential Segregation by Income, http://www.pewsocialtrends.org/2012/08/01/the-rise-of-residentialsegregation-by-income/ (Aug. 1, 2012).
43
U.S.
Dept.
Hous.
&
Urban.
Dev.,
Housing
Choice
Vouchers
Fact
Sheet,
http://portal.hud.gov/hudportal/HUD?src=/program_offices/public_indian_housing/programs/hcv/about/fact_sheet
(accessed Aug. 7, 2014).
44
See Chicago Housing Authority, http://www.thecha.org.
45
Compare Salute v. Stratford Greens Gardens Apartments, 136 F.3d 293 (2d Cir. 1998) with Graoch
Associates #33, L.P. v. Louisville/Jefferson County Metro Human Rel. Comm’n, 508 F.3d 366 (6th Cir. 2007).
46
See e.g. Godinez v. Sullivan-Lackey, 815 N.E.2d 822 (Ill. App. 2003).
14
The Affirmative Duty to Further Fair Housing
The Fair Housing Act has been enforced primarily through private litigation.47 Congress relied on
private attorneys general to bring suits under the Fair Housing Act as it was originally enacted in 1968. 48
In 1988, Congress amended the Act to enhance enforcement.49 It expanded private remedies50 and also the
role of the United States Department of Justice to bring pattern and practice suits.51 It also provided a new
administrative remedy through the Department of Housing and Urban Development.52 Fair housing
remedies are among the broadest in the federal civil rights statutes. As Senator Mondale emphasized
when the law was first passed in 1968, the goal of fair housing was “to replace the ghettos ‘by truly
integrated and balanced living patterns.’”53 A half century later, that aspiration is still unfulfilled.
What makes the Fair Housing Act unique among federal civil rights acts is the direction given to
the Secretary of the Department of Housing and Urban Development “to administer the programs and
activities relating to housing and urban development in a manner affirmatively to further [fair housing].”54
Furthermore, “all executive departments and agencies shall administer their programs and activities
relating to housing and urban development (including any Federal agency having regulatory or
supervisory authority over financial institutions) in a manner to affirmatively further [fair housing]. 55 This
requirement has been extended to all recipients of federal moneys.56 The Department of Housing and
Urban Development has an obligation to assess the activities of grantees that would negatively limit or
positively increase the supply of open housing.57 The requirement means that recipients of federal funds
must not only remedy discrimination, they must take positive steps to promote stable and integrated
communities.
The Secretary’s affirmative duty to further fair housing can be challenged by private citizens
through an action for administrative review when the government does not cut off funds to recipients that
fail to affirmatively further fair housing.58 More recently, a successful challenge has been brought under
47
Michael P. Seng & F. Willis Caruso, Achieving Integration Through Private Litigation, in The Integration
Debate: Competing Futures for American Cities (Chester Hartman & Gregory D. Squires eds., Routledge 2010).
48
The role of private attorneys general in enforcing federal law was recognized by the United States Supreme
Court in Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 211 (1972), the first Supreme Court decision to
interpret the Act.
49
Fair Housing Act, 42 U.S.C. § 3601 et seq.
50
42 U.S.C. § 3613.
51
42 U.S.C. § 3614(a).
52
42 U.S.C. § 3610.
53
114 Cong. Rec. 3422 (quoted in Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 211 (1972).
54
42 U.S.C. § 3608(e)(5).
55
42 U.S.C. § 3608(d).
Otero v. New York City Hous. Auth., 354 F.Supp. 941 (S.D.N.Y. 1973), aff’d in part and rev’d in part, 484
F.2d 1122 (2d Cir. 1973).
56
Darst-Webbe Tenant Ass’n Bd.. v. St. Louis Hous. Auth., 339 F.3d 702, 713 (8th Cir. 2003); NAACP v. Sec. of
Hous. & Urb. Dev., 817 F.2d 149 (1st Cir. 1987).
57
58
Id. Money damages are not recoverable under the Administrative Review Act.
15
the Federal Corrupt Practices Act59 against a local government for falsely certifying that it affirmatively
furthers fair housing. 60 The duty affirmatively to further fair housing has not been rigorously enforced
either at the federal or the local levels of government; this is particularly shown by the current financial
meltdown where regulators seem to be oblivious about ensuring equal access to financial services.61
There have been some signs of life, however. In 1994, President Clinton issued Executive Order
No. 12,892, which specifically defines what programs are covered by the requirement to affirmatively
further fair housing:
[P]rograms and activities operated, administered, or undertaken by the
Federal Government; grants; loans; contracts; insurance; guarantees; and
Federal supervision or exercise of regulatory responsibility (including
regulatory or supervisory authority over financial institutions).62
The Order set up a Fair Housing Council consisting of the Secretaries of various executive
departments and agencies to “review the design and delivery of Federal programs and activities to ensure
that they support a coordinated strategy to affirmative further fair housing.”63 The effects of this executive
order have not been notable.
Under President Obama, the Department of Housing and Urban Development has proposed a rule
to affirmatively further fair housing.64 The stated purpose of the rule is to “provide direction, guidance,
and procedures” for program participants to promote fair housing choice. This activity at the federal level
indicates that the duty to affirmatively further fair housing is being taken seriously and is not just an
aspiration to be cited every April during Fair Housing Month.
A Call to Action
We can bring restorative justice to corrections institutions. We can bring restorative justice to the
courts. We can bring restorative justice to our schools. But our efforts will ring hollow if we do not
transform our communities. Our communities are not passive receptacles for restorative justice. We
cannot just work with the offenders and the victims. The community must be a positive factor. We cannot
release offenders from incarceration to communities where there is no housing—communities that breed
the same anti-social conduct that contributed to the perpetrator’s misbehavior in the first instance. We
cannot bring restorative justice to our schools and then release the students to homes and neighborhoods
where their very lives are in danger. We must confront the injustices in our communities and the lack of
59
31 U.S.C. § 3729 et seq.
60
U.S. ex rel. Anti-Discrimination Ctr. of Metro New York, Inc. v. Westchester County, New York, 495 F. Supp.
2d 375 (S.D.N.Y. 2007); U.S. ex rel. Anti-Discrimination Ctr. of Metro New York, Inc. v. Westchester County, New
York, 668 F. Supp. 2d 548 (S.D.N.Y. 2009).
61
Carr & Anacker, supra n. 22.
62
Leadership and Coordination of Fair Housing in Federal Programs: Affirmatively Furthering Fair Housing,
Exec. Or. 12892, 59 Fed. Reg. 2939 (Jan. 17, 1994).
63
Id.
64
Affirmatively Furthering Fair Housing, 78 Fed. Reg. 43710-01 (July 19, 2013), 24 C.F.R. pts. 5, 91, 92, 570,
574, 576, 903.
16
safe, decent, and sanitary housing available to all without regard to race, wealth, or other artificial
barriers.
Restorative justice goes hand-in-hand with fair housing. When we do a restorative chat and
outline a plan to correct an offense, we must consider the community. What can we do to ensure that the
community is a positive force and not a negative force in accomplishing the restorative justice plan we
develop?
When we do a peace circle, one question we must always confront is the community’s
responsibility and how the community impediment to justice can be removed. Part of the plan might be
for both the victim and the perpetrator to work either in tandem or separately, depending upon the
situation, to improve the community. It might be as simple as the perpetrator cleaning up trash to make
the community look better. The victim may be healed by assisting other victims in facing their loss and
grief. Community members can band together to help other youth who need to be diverted, or to intervene
when anti-social conduct is threatened, rather than to sit passively and accept injustice. Often political
action will be necessary to bring the injustice to the attention of authorities, whether the police, or an
alderman, the mayor, or a state or federal official or legislator. If nothing else is available, the community
can come together to prosecute a civil rights action to ensure that equal resources are available to persons
in disadvantaged communities.
Restorative justice is the handmaid of civil rights, and one of the most basic civil rights is the
right to fair housing. The problem with the South African Truth and Reconciliation Commission is that it
ended. It needed to be followed by other measures to transform society and to ensure that justice remained
ongoing. Advocates of restorative justice in the United States must look at the big picture. Sometimes
looking at the big picture can be dangerous; the problem may look too big. We can never help a student
stay in school if we wait until the community around him is transformed into a safe and nurturing
environment. However, by helping the student stay in school, we are transforming the community. We
must be aware and not sell our solutions short. We must assess how we are helping the individual and
what affect this help has on the community. In return, we should not be fearful to ask the community for
its support, and if the community needs to transform itself, we should assist it in doing so.
17