Urban Lawyer

Location, Location, Mis-Location: How Local Land Use Restrictions Are Dulling Halfway Housing’s Criminal Rehabilitation Potential

by Matthew J. McGowan

Matthew J. McGowan is an attorney at Pulman, Cappuccio, Pullen, Benson & Jones, LLP in San Antonio, Texas; J.D., Texas A&M University School of Law, May 2015; B.A. in journalism, Texas Tech University, 2008. Matthew would like to thank Professor Lisa Rich for her extensive insight and guidance. Author would also like to thank Whitley Zachary for her patient, witty, sometimes ruthless, and always invaluable editing.

Former United States Attorney General Robert F. Kennedy led the first nationwide crusade for pre-release community rehabilitation centers that sparked an on-again-off-again American love affair with the unique, though not revolutionary, corrections model.1 In 1961, the ill-fated United States Attorney General and First Brother could not have seemed more optimistic about the potential for these, as he formally dubbed them, “pre-release guidance centers” to become a central part of a modern corrections landscape.2 Kennedy proclaimed in a legal journal that the centers were “no longer an experiment” and instead now a proven method “to redirect young lives.”3

Now commonly called “community correctional centers” or “residential rehabilitation centers,” halfway houses are facilities run by local, state, and federal agencies, private subcontractors using government funding, or sometimes nonprofits funded solely through charitable contributions. They exist in one form or another in most states and have played home to thousands of convicted criminals — either serving alternative sentences or serving the last days of traditional prison stints — over the past half-century. Their popularity and centrality to American justice has waxed and waned in the decades since Kennedy’s prediction, but, regardless of their prevalence at any one point in time, their span of use has afforded troves of data.

Today, one might say that the jury is in: halfway houses do not definitively help or hurt recidivism rates.4 In other words, they are a wash from the standpoint of preparing their residents for a second chance in society. Fifty years of data about Kennedy’s exalted rehabilitation model suggest that he was, to put it bluntly, wrong by about half. He was correct about the potential of halfway houses, but he was incorrect about their effectiveness as they would take shape in the United States.5

How could this be? How could a model that instilled so much hope rhetorically and theoretically have failed to live up to its own potential? This Article offers one possible explanation best summarized by the age-old real estate adage: “location, location, location.” And, if one must blame a culprit, he or she might as well point the finger at another age-old real estate concept: “Not in My Back Yard,” or “NIMBY,” the ever-present influence of nearby landowners opposing any institution or facility that might depress property values. The problem in some respects boils down to neglect of the full complexity of criminal rehabilitation, which is just as much a function of place as it is of time. Yet, for whatever reason, the vast majority of debate, tinkering, legislation, study, and hand-wringing has focused on time.6 Sentence length has all but hijacked the conversation about sentencing.7 So little attention has focused on the second dimension, place.8 

This Article argues that the halfway house model remains a promising and viable means of rehabilitation despite data suggesting that it has failed to affect recidivism rates one way or the other.9 The model is sound, but its implementation has failed because placing residential rehabilitation centers in the wrong neighborhoods negates some benefits they might otherwise bestow on the criminal reintegration process. The proclivity for reoffending is at least to some extent a function of association, poverty, cultural influence, employment, and, yes, time.10 But these halfway houses all tend to place these vulnerable former convicts in precisely the places where other offenders, crime-permissive cultures, and unemployment surround them.11 Unsurprisingly, all the time in the world cannot overcome these environmental predictors of crime or, in this context, predictors of reoffending.

The answer lies in the delicate balance between local land use laws, such as zoning or local permit approval processes, and the government’s prerogative to carry out its criminal justice policies by placing these halfway houses in the right neighborhoods where they are not islands of the straight-and-narrow awash in a sea of shady actors, poverty, drugs, police on high alert, and limited employment prospects.12 

Currently, the high courts of many states have held that state-level entities, such as corrections departments, must defer to local zoning ordinances when viable location alternatives exist.13 These courts further hold that eminent domain power alone does not give these state-level entities the presumption of exemption from local land use laws, absent some specific, statutory exemption from local zoning laws.14 This means that state-level entities are beholden to local land use controls that force them to tightly narrow their search for appropriate real estate.15 This effectively limits the ability of these state entities to remove the community release centers from high-crime areas.

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