Estimating the impact: How many people are excluded from Fair Housing protections because of a past drug conviction?

A little-known 1988 law called the Thurmond Amendment stripped people with drug distribution convictions of federal protections under the Fair Housing Act, making it even more difficult for many people with criminal records to secure housing - even when they are qualified in every other way, and even when the conviction is decades old. By our count, this law makes it more difficult for as many as 3 million people with these kinds of convictions to secure housing.

by Wendy Sawyer, February 5, 2025

You’ve probably never heard of the Thurmond Amendment, but for almost 40 years, it has been quietly enabling landlords to deny housing to people based solely on a past conviction for selling drugs — no matter how qualified they are as tenants, no matter what drugs or quantities were involved, and no matter how long ago they were convicted. This lifelong collateral consequence, tied to this one specific type of conviction, makes it even more difficult for people with criminal records to find housing at a time when it’s already a near-impossible task given the highly competitive rental markets in the U.S. As we and many other researchers have explained before, safe and stable housing is a critical factor in reentry success, while homelessness puts people directly in the crosshairs of law enforcement. These facts put the Thurmond Amendment directly at odds with correctional and public safety interests.

A coalition of advocates is working to repeal the law, led by a real estate investor who was directly impacted by the Thurmond Amendment. Their first step: gathering the available data about its impact and raising awareness of this overlooked relic of the failed “war on drugs.” That’s where we at the Prison Policy Initiative come in. One form of support we offer advocates — particularly through our Policy & Advocacy team — is to bring to light the relevant data that exists about an issue, and to find ways to fill in the gaps where the necessary information simply isn’t available. When the coalition came to us with the question of how many people are potentially impacted by the Thurmond Amendment, we combed through the available historical data to come up with an estimate, ultimately finding that over 3 million people in the U.S. have received drug distribution convictions since 1986 (which is as far back as the available data go).

How we developed our estimate

Our approach, sources, and assumptions

You might think it would be easy to answer the question, “How many people in the U.S. have a drug distribution conviction and could therefore be excluded from Fair Housing Act protections?” but the unfortunate fact is that criminal legal system data are rarely collected or reported in ways that provide simple answers to simple questions. In this case, we were lucky to find that the annual number of felony convictions in state courts for “drug trafficking” (manufacturing or distribution) was published every other year from 1986 to 2006; for federal court convictions, this number was published every year from 1990 to 2014. We found no data for years prior to 1986, and had to use less-relevant but related data to produce estimates for the missing years. Then, to avoid double-counting people who had more than one such conviction (because they would be excluded under the Thurmond Amendment for their first conviction), we had to estimate how many of these convictions were “firsts” for people as opposed to subsequent convictions of the same individuals. Missing from our analysis are people with only a misdemeanor drug distribution/manufacturing conviction (who are also excluded by the Thurmond Amendment), because we couldn’t find a data source on which to base an estimate of their number.1 Inevitably, because of the gaps in the available data, our estimates are conservative and inexact, but we believe they are the only ones produced to date. This is how we did it.

For convictions in state courts:

  • In even-numbered years from 1986 to 2006, the National Judicial Reporting Program reported estimated numbers of felony convictions based on a nationally representative sample of counties. These were published in a Bureau of Justice Statistics report series, Felony Sentences in State Courts.
  • For odd-numbered years from 1987 to 2005, we used the reported even-numbered year estimates to calculate the least squares regression line and interpolated values for the missing years along that line.
  • For the years 2007-2023, we calculated estimates based on (a) annual arrests of adults for drug trafficking and (b) the most recent known ratio of felony convictions for drug sale or manufacturing to arrests for drug trafficking, which was 62 per 100 arrests in 2009. However, the number of annual arrests specifically for drug trafficking are not reported; instead, the FBI reports the number of all drug arrests — combining both sale/manufacturing and possession — and the percentage of drug arrests that were for sale or manufacturing versus possession. Once we had estimates of how many people aged 18 years and older were arrested for drug-related offenses each year, we multiplied those estimates by the annual percentages attributed to sale/manufacturing to produce estimates of adult arrests specifically for drug distribution or manufacturing. 2

    We wanted to exclude people under the age of 18 from our estimates because minors are typically (though not always) referred to juvenile courts, where they would not receive a felony conviction that would exclude them from fair housing protections. But this, too, required a few steps. Because not every jurisdiction reports its arrest data to the FBI every year, the FBI reports arrest data by most serious charge in two ways: the reported number of arrests and the estimated number of arrests. The estimated number adjusts for jurisdictions that did not report their data, providing the FBI’s best estimate of how many arrests were made nationwide in a given year. Unfortunately, these estimates can’t be broken down in as much detail as the reported numbers are, by characteristics such as age or sex. However, relying only on the reported numbers would lead to a serious undercount of arrests: for almost every year from 2007 to 2023, for example, the reported total was roughly 20% to 30% lower than the estimated total for drug arrests. For this reason, we calculated our own estimate of adult drug arrests based on the percentage of reported drug arrests that involved adults for each year, multiplying the FBI’s estimated total drug arrests by the adult percentage, which was between 89% and 96% for all years.

    Once we had annual estimates of adult arrests for drug sale or manufacturing for each year, we multiplied those estimates by 62% (the most recently reported ratio of drug sale/manufacturing arrests that result in felony convictions) to estimate how many arrests led to felony convictions.3

  • Finally, to avoid double-counting people with multiple felony convictions for drug sale/manufacturing, we relied on the most recently reported percentage of people whose most serious arrest charge was drug trafficking who had no prior felony conviction, which was 51% (again, from 2009). We multiplied each of the annual estimates of felony convictions for drug sale/manufacturing by 51%, resulting in a conservative final estimate, since those previous felony convictions could be for any offense type, not necessarily for drug sale/manufacturing (the only felony convictions that would be disqualifying under the Thurmond Amendment). Our final estimate of first-time convictions for drug sale/manufacturing through state systems for 1986-2023 was approximately 3,023,773.
  • To varying degrees, these state-level estimates all rely on data from the National Judicial Reporting Program and/or State Court Processing Statistics Program, which in turn are based on data from a sample of the nation’s 75 largest counties. Crime and law enforcement patterns vary by urbanicity (that is, places that are more rural or suburban have different policing patterns than more urban jurisdictions), so our estimates are not as accurate as they would be if we had access to data from a broader range of counties. Unfortunately, that level of data collection has never existed at the national level, to our knowledge.

For convictions in federal courts:

  • For the years 1990-2014, the U.S. Sentencing Commission (USSC) published the number of felony convictions for drug “trafficking” (sale/manufacturing) in its Annual Reports and Sourcebooks. For the years 2015-2023, the USSC publishes the same data on its Dashboard.
  • For the years 2016-2023, the USSC Dashboard also reports the annual number of people sentenced for drug trafficking who had a prior conviction for drug trafficking, which we used to adjust for the double-counting of people who received more than one such conviction. We removed the reported annual number of people with prior drug trafficking convictions from the reported annual number of trafficking convictions for those years. For the previous years for which we could not find similar estimates (1990-2015), we removed 30.3% of the reported annual convictions — the average share of people with prior trafficking convictions reported for the years 2016-2023.4
  • Finally, we summed our annual estimates of first-time felony drug trafficking (sale/manufacturing) convictions for all years, giving us a total of approximately 483,643 people convicted through the federal system.

Our final national estimate is the sum of our state court and federal court estimates: 3,507,417 U.S. adults with felony convictions for drug distribution or manufacturing. This is likely a significant underestimate of the actual number of people denied legal protection for housing discrimination based on their conviction under the Thurmond Amendment, because at every decision point that would impact our final estimate, we erred on the conservative side.5

Understanding the Fair Housing Act and the Thurmond Amendment

The Fair Housing Act of 1968, a key piece of civil rights legislation, declared discrimination by housing providers on the basis of race, religion, sex, national origin, familial status, or disability illegal. The 1988 Fair Housing Amendments Act strengthened the Department of Housing and Urban Development’s (HUD’s) power to enforce the Act, creating a new avenue of legal recourse for tenants and homebuyers who experience discrimination when applying to rent an apartment, buy a home, or take out a mortgage.

Enacted at the height of the failed “war on drugs,” however, the 1988 law includes an amendment named for its sponsor, the segregationist Strom Thurmond, which explicitly denies fair housing protections to people who have been convicted of drug manufacturing or distribution. While this amendment may seem like an odd thing to tack onto civil rights legislation that does not explicitly protect people from discrimination based on criminal history, it creates a carveout that allows landlords to deny housing to this specific population. Because drug distribution convictions — and criminal records more broadly — disproportionately impact Black and Brown people, discrimination against all individuals with criminal records is effectively a form of racial discrimination.6 On this basis, when housing providers discriminate against people with criminal records, individuals can make “discriminatory effect” claims under the Fair Housing Act. However, when landlords discriminate against people with drug distribution convictions specifically, the Thurmond Amendment makes these claims impossible. No other category of criminal conviction is excluded in the same way.

Importantly, repealing the Thurmond Amendment would do nothing to diminish the autonomy of landlords and other housing providers. The Fair Housing Act doesn’t require anyone to provide housing to people with drug distribution convictions, or any other kind of conviction for that matter. It just encourages them to consider applications more fully instead of automatically disqualifying people on the basis of a criminal record alone.

We know better now: Lessons learned about drugs, crime, and housing

The Thurmond Amendment was an expression of “tough on crime” 1980s politics, which were rationalized by false beliefs about drugs, crime, and punishment. For instance, in a recent op-ed, Yusef Dahl, who has been leading the effort to repeal the Amendment, points to the misconception that people who sell drugs are different from people who use drugs, which was central to how Thurmond sold the amendment to the rest of Congress: “drug dealers,” he argued, don’t deserve federal protection. In reality, distributors and users are often the same people: the most recent national data show that 78% of people in state prisons whose most serious offense was drug-related 7 reported using any drug in the month before their arrest. More than half (55%) were using at the time of the offense itself. 8 Among people sentenced to local jails for drug-related offenses (i.e., those serving shorter sentences than people in prison), the most recent data show 74% met the criteria for a substance use disorder. While it may be rhetorically convenient for politicians to vilify people who sell drugs, doing so necessarily casts a wide net around drug users who are often coping with poverty and illness.

A drawing of an unhoused man laying outside of a prison Nowhere to goHomelessness among formerly incarcerated people

Second, the Thurmond Amendment’s complete exclusion of people convicted of drug distribution, no matter how long ago, implies a belief that people don’t change.9 Decades of criminological research on desistance (the individual process of shifting away from lawbreaking behavior) prove otherwise. In fact, among the recommendations of experts Shawn Bushway and Christopher Uggen, authors of the chapter linked above, is “eliminat[ing] most collateral consequences of criminal justice involvement,” such as barriers to housing. Putting a finer point on it, they write: “Policies that continue to center a criminal act years after that act was committed directly contradict everything we know about desistance.”

Ultimately, this is the problem with the Thurmond Amendment: while it was added ostensibly so landlords could “protect other tenants,” it actually works directly against public safety interests. Securing safe, stable housing is one of the greatest challenges for people during reentry, and it makes a difference in reentry success, as previous research has shown. Creating additional barriers to housing for people with criminal records is simply bad policy.

To learn more about the effort to repeal the Thurmond Amendment, go to https://www.thurmondamendment.org.

Footnotes

  1. Drug distribution/manufacturing charges are typically felonies, but some states classify certain distribution/manufacturing charges as misdemeanors, such as when they involve marijuana. The Thurmond Amendment also excludes people with these misdemeanor convictions from fair housing protections.  ↩

  2. For the years 2007-2023, for which our state court estimates are based on arrests for drug sale/manufacturing and the proportion of those arrests that result in felony convictions, we did not attempt to disentangle arrests that might have resulted in federal court convictions. However, we believe that this likely results in an undercount of felony convictions rather than double-counting, because arrests by the Drug Enforcement Agency (DEA) — the federal agency that makes the most drug arrests .— are not reported to the FBI’s Uniform Crime Reporting program (our source for arrest data). And because most DEA arrests result in federal rather than state prosecution, the resulting convictions are captured in the federal United States Sentencing Commission conviction data.  ↩

  3. This ratio has varied over the years; in 2004, 71 per 100 arrests for drug sale/manufacturing resulted in felony convictions, and in 1986 it was 41 per 100 arrests.  ↩

  4. The percentage of people convicted of drug “trafficking” who had prior convictions for the same offense increased fairly steadily over the years it was reported, from 27.3% in 2016 to 33.3% in 2023. Because of this linear trend, we considered using estimates based on the least squares regression line for those years, but ultimately decided that those estimates were likely to underestimate the number of people with prior convictions (for example, this method would predict just 5% of people convicted in 1990 had a prior conviction for the same offense). Instead, we opted to use the larger proportion which produced a more conservative final estimate of unique convictions for drug sale/manufacturing.  ↩

  5. For example, we excluded about half of all estimated state court convictions under the assumption that they could all be subsequent convictions for the same offense, even though the data we used to rationalize their exclusion was based on how many people arrested for drug sale/manufacturing had any prior felony conviction, not specifically drug distribution or manufacturing convictions. Given the relatively small proportion of drug sale/manufacturing convictions out of all state felony convictions reported from 1986 to 2009 (an average of 19%), and the fact that more people released from prison sentences for drug offenses are rearrested for non-drug charges than for drug charges, this choice almost certainly excluded many people who did not have a prior conviction for drug sale/manufacturing. Furthermore, our estimates do not include people who have only a misdemeanor-level drug distribution/manufacturing conviction, even though these convictions also bar people from federal fair housing protections under the Thurmond Amendment.  ↩

  6. This is known as the “discriminatory effects rule,” which the Department of Housing and Urban Development (HUD) explains in this helpful Fact Sheet: “The Fair Housing Act bars more than intentionally discriminatory conduct — it also bars policies that have an unjustified discriminatory effect based on race, national origin, disability, or other protected class. As an example, a landlord’s policy of excluding people who have any criminal record… often will have a discriminatory effect based on race, national origin, and disability.” While these policies are not always unlawful, as HUD points out, “a policy that ha[s] a discriminatory effect on a protected class [is] unlawful if it [is] not necessary to achieve a substantial, legitimate, nondiscriminatory interest or if a less discriminatory alternative could also serve that interest.”  ↩

  7. Most of these people (72%) were in prison for drug trafficking (manufacturing or distribution) as opposed to possession (25%) or other drug offenses (3%). See Table 3 in the Bureau of Justice Statistics report Profile of Prison Inmates, 2016.  ↩

  8. These percentages were also high, if less dramatically so, among people in federal prisons whose most serious offense was drug-related: 61% reported using any drug in the month before the arrest that led to their incarceration, and 38% reported using at the time of the offense. See tables 4 and 5 in the Bureau of Justice Statistics report Alcohol and Drug Use and Treatment Reported by Prisoners: Survey of Prison Inmates, 2016.  ↩

  9. On this point it is worth noting that before Sen. Thurmond introduced his amendment, the bill already included language allowing discrimination against people “convicted two or more times … of illegal manufacture or distribution of a controlled substance” (emphasis added). In his rationale for that amendment, Rep. Bob Walker noted that, on the question of whether people who used drugs would be protected under the law, an earlier committee report had made clear that the intent was that “somebody who has cleaned up their act” would not be excluded from protections but that “we are not going to allow current users to have the protection.” Walker saw his amendment (excluding “dealers” with two or more convictions) as an extension of that logic, suggesting that he and other members of Congress — unlike Thurmond — recognized that people change and that they should not be treated differently under the law if they were not “currently engaged” in drug distribution (emphasis added).  ↩

Wendy Sawyer is the Prison Policy Initiative Research Director. (Other articles | Full bio | Contact)

Related briefings:

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  3. Introducing our profile of Native incarceration in the U.S. +

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