by Casey Semple, Associate Member, University of Cincinnati Law Review Vol. 94

I. Introduction

Once an individual is released from incarceration, their transition back into society is not always smooth. These individuals are often placed into situations that make the transition difficult and frequently results in recidivism.[1] Recidivism is the tendency of individuals to encounter the criminal justice system once again after concluding prior terms of prison or probation.[2] Factors that can contribute to recidivism are a lack of adequate jobs or housing.[3] People who are released from incarceration and experience homelessness, live in a high-crime neighborhood, or live in unstable housing tend to recidivate.[4] Therefore, policies that make stable housing more accessible to formerly incarcerated individuals will likely decrease recidivism rates.[5] One such tool available to legislatures is a Certificate of Qualification for Housing (“CQH”) which helps formerly incarcerated individuals find housing to rent.[6] The Ohio Legislature, recognizing this opportunity, passed legislation to establish CQHs for Ohioans.[7]

Part II dives into how an individual’s criminal record can affect their ability to find housing and how CQHs can be used to mitigate the effects of a criminal record by increasing the likelihood of someone with a criminal record being able to find stable housing. Part III examines how a CQH may be used beyond its prescribed purpose of assisting individuals with a criminal record to rent housing by possibly also aiding these individuals with a criminal record to purchase a house. Finally, Part IV discusses some of the shortcomings of the CQH and how they could be addressed.

II. Background

Approximately 1 in every 3 adults in the United States have a criminal record.[8] Whether the criminal record stems from an arrest record, criminal charges, or a conviction, the record can follow an individual and create collateral consequences for the rest of their lives.[9] These formalized barriers, created by the state, limit opportunities for people who have had contact with the criminal legal system, and impede on an individual’s access to employment, licensing, housing, education, community service, public office, international travel, owning a firearm, insurance, driver’s licenses and other forms of identification.[10] While these collateral consequences may not be included in sentencing, the consequences result in long-term, far-reaching effects for these individuals.[11]

A. A Criminal Record While Seeking Employment

A criminal record decreases a job applicant’s likelihood of gaining employment.[12] While the employers cannot discriminate based on race, color, religion, sex, and national origin, there is no such enshrined protection for those with a criminal record,[13] and, therefore, employers often discriminate against those with a criminal record.[14] Formerly incarcerated people are nearly 5 times more likely to be unemployed,[15] and having a criminal record lowers the chance of being called back for employment by 50 percent.[16] Employers’ discrimination against those with a criminal record grows the population of unemployed and underemployed people with criminal records.[17] Every year, more than 600,000 people are released from prison, but a year after release over seventy-five percent of these released individuals remain jobless.[18]

Recognizing that these long-term effects are detrimental to reintegrating formerly incarcerated individuals back into society,[19] the Ohio Legislature amended the Ohio Revised Code to create the Certificate of Qualification for Employment (“CQE”) in 2012.[20] The CQE is a certificate for which an individual with a prior criminal conviction may obtain an order of limited relief from a common pleas court.[21] After voluntarily going through a rigorous review process by Ohio rehabilitation officials, a judge, and a probation department, a CQE may be granted to provide relief from certain bars to employment or licensing in the State of Ohio by lifting the collateral sanctions that bar them from being considered for employment in a particular field.[22] By reducing one of the largest barriers to reentry into society of formerly incarcerated individuals, the Ohio Legislature hoped to reduce recidivism and keep people out of prison.[23]

B. A Criminal Record While Seeking Housing

In addition to the impact on one’s ability to find stable employment, these collateral consequences have a large effect on their ability to find stable housing. Roughly 90 percent of employers and landlords complete background checks that seek information regarding an individual’s criminal history.[24] In Ohio, a criminal background check will include the individual’s arrest history, criminal convictions, other civil and criminal history, traffic-related charges, and sex offender registry status.[25] Criminal background checks also include arrests and charges that have yet to be adjudicated in a court of law, and if someone’s record has not been expunged, any past charges can appear in the criminal background check.[26] However, the state of Ohio does not limit how far back a background check can go.[27] Therefore, while the average search goes back seven years, the background check can include an individual’s total history, depending on the background check services used.[28] These impacts extend beyond the individual, as their family may be seeking to live with them. However, because the individual’s contact with the carceral system prevents them from approval in many living accommodations, the rest of the family must subsequently choose between the housing accommodations or living with their family member.[29] These added collateral consequences increase the barriers to successful reentry into society, which in turn increases recidivism.[30]

Noting the success of the CQE,[31] the Ohio Legislature fashioned legislation mimicking the CQE to target another barrier to the reentry of formerly incarcerated individuals into society.[32] By creating the CQH, the legislature targeted issues formerly incarcerated individuals experience when seeking housing after release.[33] A CQH is a judicial order that helps people who have been impacted by the criminal legal system to overcome barriers while searching for housing after they reenter society.[34] A CQH gives housing providers the discretion to rent to CQH holders, knowing the holder is rehabilitated and the housing provider’s civil liability is limited if they choose to rent or sell to a CQH holder.[35]

For the CQH holder, CQHs erase mandatory state legal barriers—laws that prevent a person with a specific criminal record from renting or buying a residence.[36] CQHs also creates a “rebuttable presumption of rehabilitation” when applying for housing, meaning that a person’s criminal convictions are insufficient evidence that the person is unfit for the housing opportunity.[37] For the housing provider, CQHs minimize housing provider fear; when a tenant applicant has a CQH, the housing provider can be confident that they will not be sued if the new tenant commits a future tort.[38]

To receive CQH consideration, an individual has two options. For those in the custody of the Ohio Department of Rehabilitation and Correction (“ODRC”) or the Adult Parole Authority (“APA”), they must obtain a certificate of achievement and employability by the ODRC or APA[39] and also complete a tenant course certified by the ODRC.[40] The applicant may apply no earlier than one year before their scheduled release from ODRC custody and no later than the date of their release.[41] For people who were released into society, they must satisfy the applicable waiting period.[42] For a felony conviction, this waiting period lasts one year from the end of their incarceration or other sanctions, including but not limited to supervision, fines, restitution.[43] For a misdemeanor, this waiting period lasts six months after the end of their incarceration or other sanctions, including but not limited to supervision fines, restitution.[44] An interested party may file their petition in the Ohio Courts of Common Pleas.[45]

The court is permitted to order any report, investigation, or disclosure by the individual before determining whether to grant the CQH.[46] After reviewing all “relevant court filings and evidence regarding a petitioner’s criminal history,” the court may determine that an applicant will not pose an unreasonable safety risk and grant the applicant a CQH.[47] Additionally, to encourage landlords to accept tenants with a CQH, the landlords receive protection against liability for those CQH tenants’ actions.[48] A CQH must be revoked if the individual to whom the CQH was issued is convicted of or pleads guilty to a felony or a misdemeanor offense of violence after the issued CQH.[49]

A person is rebuttably presumed to be eligible for a CQH if the application was filed after the waiting period,[50] at least three years from release of incarceration or other sanctions for a felony, and at least one year from release of incarceration or other sanctions for a misdemeanor.[51] Therefore, an application that meets these qualifications can only be denied if the court finds that the evidence[52] rebuts the presumption by establishing, by a preponderance of the evidence, that the applicant has not been rehabilitated.[53] If the applicant does not meet these qualifications, the applicant must be able to show by a preponderance of evidence that a CQH “will materially assist the individual in obtaining housing,”[54] and that there is a “substantial need for the relief requested in order to live a law-abiding life,”[55] and that granting the CQH “would not pose an unreasonable risk to the safety of the public or any individual.”[56]

III. Discussion

Implementing CQH in Ohio will likely increase housing stability for previously incarcerated individuals and therefore reduce recidivism, but there are manners in which the policy can be improved. Additionally, the CQH policy may have use beyond assisting previously incarcerated individuals in finding homes to rent and may also play a role in assisting previously incarcerated individuals purchase homes.

First, people under community control, also known as probation, should be eligible for a CQH because they too need to obtain housing immediately after release from incarceration. In fact, more people are under supervision than released from custody according to the ODRC 2023 annual report.[57] The July 2023 ODRC snapshot showed that 25,037 people were under the supervision of the APA, while only 18,220 people were released from ODRC custody.[58] Therefore, the CQH should be expanded to support immediate housing stability upon release, even while under post-release control, to better target the demographic of individuals who would benefit from a CQH. Furthermore, the bill should eliminate the financial sanctions that are currently required to be paid before a person’s waiting period to apply for a CQH begins. These fines and restitution stand in the way of Ohioans’ ability to acquire stable housing and employment that could allow them to pay such sanctions. The CQH would better empower Ohioans if court debts were not standing in between housing and employment. Finally, the CQH application should require only the applicant’s criminal convictions and explicitly exclude non-convictions and sealed or expunged convictions. A CQH applicant currently must include their “criminal history,” except for information in any record that has been sealed under R.C. § 2953.32, in their CQH application to be considered by the reviewing court.[59] The Revised Code excludes expunged convictions for the CQE application but lacks this exclusion for the CQH application, implying that expunged convictions must be included in the CQH application despite a true expungement legally eliminating the record from the state’s perspective.[60]

Alternatively, while the CQH is written to assist Ohioans in convincing a landlord or a metropolitan housing authority to rent housing to someone with a criminal history, a creative lawyer might advise a client with a criminal record that the CQH could also be used for those seeking to purchase a home. Just like those individuals with a criminal record struggle to find housing they can rent, individuals with a criminal record might struggle to find a home they can purchase. Whether it is a bank unwilling to loan the necessary money, a homeowner’s association that creates roadblocks, or a homeowners insurance company resistant to providing coverage, a criminal record is a specter that can follow individuals for decades after the offense.[61] The CQH could serve as an indicator that this person with a criminal history has had their criminal history reviewed and vetted by a court and that they do not pose an unreasonable safety risk in the housing context. The CQH would not necessarily provide the same legal protections to those selling their home to an individual with a criminal record, like a housing provider’s immunity from tort actions regarding negligent leasing to an individual with a CQH. However, it may still help a person struggling to secure housing because of a criminal record by convincing others they should be trusted to purchase a home.

One might expect that the target demographic of individuals the CQH is meant to help would be those who have just completed their sentence and those looking to rent, but because the state of Ohio does not limit how far back a background check can go, a criminal record can still affect a person’s ability to find housing decades after the incident.[62] Additionally, while one might expect an individual who has just finished their sentence to be seeking a rental housing situation, the cost to purchase a house can be cheaper than the cost to rent nowadays.[63] Therefore, assisting those with a criminal record in the process of purchasing a home could still be assisting those who have just recently finished their sentence, not just those who have had a criminal record for decades. Increasing the housing options a person with a criminal record has increases the likelihood that one of the options will fit the individual’s needs, and while not the enumerated purpose of the CQH, helping those with a criminal record purchase a home can lead to more stable housing situations and reduce recidivism.

Ultimately, however, whether used in the enumerated purpose of assisting those with a criminal record rent housing or used to assist those with a criminal record purchase home, the CQH still leaves the decision up to the housing provider of whether or not to provide housing to the individual with a criminal record.[64] To prevent housing providers from discriminating against those with a criminal record, the class of individuals with a criminal record must receive a protected status. The federal Fair Housing Act prohibits discrimination by direct providers of housing, such as landlords and real estate companies,[65] because of race, color, religion, sex, national origin, familial status, or disability.[66] Additionally, many states including Ohio have also implemented their state-level version of a Fair Housing Act that increases the protections asserted in the federal Fair Housing Act.[67] By adding criminal history as a protected class under Ohio’s fair housing laws, it would no longer be left up to these private entities that play a role in deciding whether these individuals with a criminal record receive stable housing.

IV. Conclusion

The ODRC has yet to publish the CQH application, so the process and effects are yet to be seen, but it has the potential to help those with a criminal record find stable housing and subsequently alleviate some of the recidivism tension in Ohio. However, the CQH does not remove all housing barriers for Ohioans impacted by the criminal legal system. Even when considering a tenant with a CQH, a housing provider maintains the discretion to deny housing based on eviction history, bias, and other factors. Additionally, those involved in the process of the selling and purchase of a house are not even required to consider a CQH when determining if they will sell to an individual with a criminal record. Additional policy changes are necessary to help achieve the goals of the CQH, such as adding criminal history as a protected class under Ohio’s fair housing laws. For now, however, CQH is a useful tool that should be utilized and utilized creatively to maximize the results for Ohioans and minimize recidivism.

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[1] Bunting AM, Staton M, Winston E, Pangburn K. Beyond the Employment Dichotomy: An Examination of Recidivism and Days Remaining in the Community by Post-Release Employment Status. Int J Offender Ther Comp Criminol. 2019 Apr;63(5):712-733. doi: 10.1177/0306624X18808685. Epub 2018 Oct 26. PMID: 30362852; PMCID: PMC6387636; Jacobs LA, Gottlieb A. The Effect of Housing Circumstances on Recidivism: Evidence From a Sample of People on Probation in San Francisco. Crim Justice Behav. 2020 Sep;47(9):1097-1115. doi: 10.1177/0093854820942285. Epub 2020 Aug 6. PMID: 34629568; PMCID: PMC8496894.

[2] Recidivism, Nat’l Inst. of Just., nij.ojp.gov/topics/corrections/recidivism (last visited Mar. 24, 2025).

[3] Bunting, supra note 1; The National Institutes of Health found being homeless increased the hazard of recidivism by nearly 50%. Id.

[4] Patricia McKernan, Homelessness and Prisoner Reentry: Examining Barriers to Housing Stability and Evidence-based Strategies that Promote Improved Outcomes, J. Cmty. Corrs. (2017), https://voa-production.s3.amazonaws.com/uploads/pdf_file/file/2238/Homelessness_and_Prisoner_Re-Entry.pdf

[5] Id.

[6] Ohio Rev. Code Ann. §§ 2953.26; 2961.25.

[7] Rep. Humphrey Announces Enactment of House Bill 50, Ohio House of Representatives (June 25, 2024), ohiohouse.gov/members/latyna-m-humphrey/news/rep-humphrey-announces-enactment-of-house-bill-50-120589.

[8] Criminal Records and Reentry Toolkit, Nat’l Conf. of State Legis.,  www.ncsl.org/civil-and-criminal-justice/criminal-records-and-reentry-toolkit (last visited Mar. 25, 2025).

[9] The American Bar Association defines collateral consequence as a “legal penalty, disability or disadvantage, however denominated, that is imposed on a person automatically upon that person’s conviction for a felony, misdemeanor or other offense, even if it is not included in the sentence.”

[10] David Pager, The Mark of a Criminal Record, 108 Am. J. of Sociology 937 (2003)

[11] See, e.g., Padilla v. Kentucky, 559 U.S. 356, 365 (2010); Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 143 (2010); ABA Standards for Criminal Justice: Collateral Sanctions and Discretionary Disqualification of Convicted Persons (3d ed. 2004); Margaret Colgate Love, Managing Collateral Consequences in the Sentencing Process: The Revised Sentencing Articles of the Model Penal Code, 2015 WIS. L. REV. 247, 249; Michael Pinard, Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity, 85 N.Y.U. L. REV. 457, 459 (2010); Jenny Roberts, Why Misdemeanors Matter: Defining Effective Advocacy in the Lower Criminal Courts, 45 U.C. DAVIS L. REV. 277, 299 (2011).

[12] Lucius Couloute and Dan Kopf, Out of Prison & Out of Work: Unemployment among formerly incarcerated people, Prison Pol’y Initiative (July 2018), http://www.prisonpolicy.org/reports/outofwork.html.

[13] 42 U.S.C § 2000e-16.

[14] Couloute, supra note 11.

[15] Devah Pager, Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration 28-41 (2007).

[16] Id. Devah Pager examined the effect of a criminal record in the labor market by sending out paired job testers (two white testers and two Black testers) where one tester in each pair was given a fictitious felony record. Pager’s audit methodology allowed her to examine the independent effects of race and criminal records. Importantly, Black job testers without criminal records were less likely to receive callbacks from employers than white job testers with criminal records.

[17] See, e.g., James B. Jacobs, The Eternal Criminal Record 275-300 (2015); Jeremy Travis, But They All Come Back: Facing the Challenges of Prisoner Reentry 151-85 (2005).

[18] Pager, supra note 15.

[19] Jonathan Simon, Poor Discipline: Parole and the Social Control of the Underclass 1890-1990 192-93 (1993).

[20] Ohio Revised Code 2953.25.

[21] Id.

[22] Id.

[23] Peter Leasure, Evaluating the Effectiveness of Ohio’s Certificate of Relief, Univ. of S.C. (2019) (Doctoral dissertation) (on file at https://scholarcommons.sc.edu/etd/5616).

[24] TransUnion Independent Landlord Survey Insights, TRANSUNION SMARTMOVE (Aug. 7, 2017), https://www.mysmartmove.com/blog/landlord-rental-market-survey-insights-infographic.

[25] Clementine Deck, Fair Housing Focus: Criminal Records 101, HOME Greater Cincy (July 23, 2024), http://www.homecincy.org/post/fair-housing-focus-criminal-records-101.

[26] Id.

[27] Id.

[28] Id.

[29] David J. Hardig et al, Home is Hard to Find: Neighborhoods, Institutions, and the Residential Trajectories of Returning Prisoners, 647 Am. Acad. Of Pol. and Soc. Sci. 214 (2013)

[30] In Ohio in 2020, 20.8% of people previously incarcerated returned to prison for a new crime in the three years after their release. RECIDIVISM REPORT 1, OHIO DEPT. OF REHAB. & CORR. (2021), https://www.drc.ohio.gov/Portals/0/2021%20Final%20Report.pdf.

[31] Id.

[32] Rep. Humphrey Announces Enactment of House Bill 50,  supra note 7.

[33] Ohio Rev. Code Ann. §§ 2953.26; 2961.25.

[34] Id.

[35] Id.

[36] Ohio Rev. Code Ann. § 2953.26(D)(1). With a CQH, the housing provider is required to individually assess a CQH holder to determine whether they are fit for the residence. CQHs create flexibility.

[37] Ohio Rev. Code Ann. § 2953.26(D)(2).

[38] Ohio Rev. Code Ann. § 2953.26(F).

[39] Ohio Rev. Code Ann. § 2961.22.

[40] Ohio Rev. Code Ann. § 2961.25.

[41] Id.

[42] Ohio Rev. Code Ann. § 2961.26(B)(3).

[43] Id.

[44] Id.

[45] Ohio Rev. Code Ann. § 2961.26(B)(1). If the CQH applicant lives in Ohio, they must file in the county where they live. If the CQH applicant does not live in Ohio, they must file in the county where they were convicted.

[46] Ohio Rev. Code Ann. §§ 2961.26(C)(1)-(2). The individual is permitted to appeal a denial to the court of appeals if the individual alleges that the denial was an abuse of discretion.

[47] Id. Included in the relevant court filings is a complete ODRC application form, supporting documents like letters of recommendation, degrees, certificates, awards, etc., and a $50 filing fee or affidavit of indigence.

[48] Id.

[49] Id.

[50] Ohio Rev. Code Ann. § 2961.26(B)(3).

[51] Ohio Rev. Code Ann. § 2961.26(C)(5).

[52] Ohio Rev. Code Ann. § 2961.26(C)(1).

[53] Ohio Rev. Code Ann. § 2961.26(C)(6).

[54] Ohio Rev. Code Ann. § 2961.22. This can include relevant collateral consequences like impact on housing opportunities (e.g., rejections, lost leases, inhabitable housing; homeless).

[55] Id. This can take the form of explaining the applicant has been living a law-abiding life for a certain amount of time and will continue to do so but that a CQH would help the applicant be an even more productive citizen while emphasizing how CQH will help (e.g., family housing security, geographic proximity, affordability).

[56] Id. This can look like explaining why the applicant is a different person today.

[57] 2023 Annual Report at 19 & 37, DEP’T OF REHAB. & CORR. (2023), https://drc.ohio.gov/Portals/0/ODRC%20Annual%20Report%202021.pdf.

[58] Id.

[59] Ohio Rev. Code Ann. § 2953.26, § 2961.25.

[60] Id.

[61] Deck, supra note 25.

[62] Id.

[63] Arthur Acolin & Vincent Reina, Housing cost burden and life satisfaction, 37 J. Hous. And the Built Env’t 1789 (2022).

[64] Ohio Rev. Code Ann. §§ 2953.26; 2961.25. A CQH gives housing providers the discretion to rent to CQH holders, knowing the holder is rehabilitated and the housing provider’s civil liability is limited if they choose to rent or sell to a CQH holder.

[65] The federal Fair Housing Act goes so far as to also prevent this discrimination from being practiced by other entities whose discriminatory practices make housing unavailable to persons, such as municipalities, banks or other lending institutions and homeowners insurance companies.

[66] 42 U.S.C. 3601 et seq. In Bostock v. Clayton Cnty., 509 U.S.  644 (2020), the U.S Supreme Court held that that Title VII’s prohibition against sex discrimination includes sexual orientation and gender identity. Subsequently President Biden issued Executive Order 13988 on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. Pursuant to that Executive Order, U.S. Department of Housing and Urban Development’s Office of Fair Housing and Equal Opportunity issued a memorandum which addresses discrimination because of actual or perceived sexual orientation and gender identity under the Fair Housing Act.

[67] State Fair Housing Protections, LawAtlas, lawatlas.org/datasets/state-fair-housing-protections-1498143743 (last visited Apr. 24, 2025).

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