National Housing Law Project Housing Law Bulletin

HUD Pushes Aggressive Eviction Campaigns
as the Answer to Crime in Public Housing:
One More Time

HUD's "new" get tough policy is as misguided as its predecessors. HUD declares war on drugs by wielding a potent weapon — evictions — against any and all residents of a public housing unit believed to be associated with drugs or other criminal activity. It is misguided because it tackles only the tip of the iceberg (the relatively small number of resident drug dealers compared to non-resident dealers) and is thus bound to be ineffective in stemming the problems of security and criminality faced by public housing residents. What is even more disturbing is that, by resorting to simplistic, catchy phrases and exhorting public housing authorities (PHAs) to take swift, dramatic actions, the Department has discouraged restraint and downplayed the rights of innocent family members, trampling on basic principles of fairness and morality that Americans have long held dear.

The policy document is also cynical and dangerous because its large print — the title, subtitles and first paragraphs of each section — convey a single message: PHAs should crack down on entire families by being more aggressive on evictions.

No one is defending the use of public housing units as crack houses, but seldom in life are the issues so clearly defined. More often than not, the parents or grandparents are residing in the unit with several children. The acts or suspected acts of one person could threaten the security of tenure for all. All the laws and considerations that counsel managers and judges to strive for the wisdom of Solomon in making decisions about whether and whom to evict are hidden in the fine print of HUD's document. And, on some points, HUD's recommendations are flat out wrong, both legally and morally.

Misguiding the PHAs

One of the most telling facts disclosed in HUD's document is buried on the very last page, in nearly the very last sentence. In describing a special effort of the Flint, Michigan, police department and the local housing authority to work together on the community policing of its developments, the document states:

During 1991, 1992 and through March 1993, the Flint Police Special Operations Bureau made over 3,800 drug-related arrests. Only 28 of these arrests involved residents of public housing. [Emphasis added.]

Those 28 resident arrests represent less than one half of one percent of the arrests for drug-related activity in Flint public housing. That fact starkly documents what PHAs and tenants have been saying for years, and what HUD itself tacitly acknowledges in its document, namely, that the overwhelming majority of the drug-related activity in public housing is caused by outsiders, not tenants. A HUD seriously committed to improving security for public housing tenants would concentrate the bulk of its $290 million Drug Elimination budget — and its rhetoric — on cracking down on the far more numerous non-resident perpetrators and addressing the other security and maintenance concerns expressed by tenants, not exhorting PHAs to employ the broad-brush measure of wholesale evictions.

HUD knows that greater police presence, community policing, the fixing up and renting out of vacant units, and job creation for people left out by our society are measures that will make the difference. But those measures do not resonate with the public. They do not appear decisive and dramatic the way evictions do, and they cost more. So these activities do not get the attention, or political mileage, that evictions get. Pushing PHAs to focus their energy and limited resources on evictions is not going to win the war, because evictions reach only tenants and tenants are not usually the enemy. Innocent parents, grandparents, spouses and siblings of suspected troublemakers are just as likely to feel the sting and suffer the consequences of HUD's "get tough" policy. This is not just a hypothetical concern. Time after time, mothers and grandmothers who head households have been threatened with eviction, along with minor children, because of the acts of one family member or a guest which were committed without their knowledge or were beyond their control.

Misleading PHAs — and the Public

Living up to its newly found understanding of the importance of effectively framing its message, HUD's document uses numerous devices to hammer home its theme: PHAs should crack down on tenants and aggressively pursue evictions to solve the public housing crime problem. It plays down the other side of the story, that justice and fairness require more than simplistic solutions for these complex problems.

The simplistic message that eviction is the answer screams throughout the document. It begins with the title, and HUD knows that is as far as most people will ever see or hear. "One Strike and You're Out" makes a great soundbite, and its message is clear. "You're out" means evictions. "One strike" means zero tolerance for everyone, even innocent family members. Altogether it means we (HUD and the PHAs) are tough and you (the tenants) better watch out, because if anyone in your household makes one mistake, if even looks as though they might do something wrong, you will be evicted.

HUD bases its aggressive eviction policy on the well known consensus among residents and PHAs that public housing developments ought to be safe, strong and hopeful communities for people to live in and children to grow up in. HUD evokes the horror we all feel when we think about families who live under siege, terrorized by violent criminals and drug dealers. Relying upon that horror and the consensus that something must be done, HUD asserts that a strict, straightforward policy that tenants face certain and swift eviction if they engage in drug and other criminal activity is the answer. The need to consider all the facts and circumstances of individual cases to achieve fair results is drowned out by the loud call to action. Imagine for a moment how this message might be received if it were suggested that middle- and upper income families should be forced out of their homes by the government because of the activity or suspected activity of one of their children.

Another device HUD uses is to put its side of a particular issue up front in big letters and then note the contrary considerations at the end, when the reader's attention has begun to lag. For example, on the extremely controversial issue of tenant's absolute liability for the conduct of other household members and guests, HUD entitles its discussion, "Make tenants responsible for the conduct of everyone in their households."² The first of the three paragraphs dedicated to this issue discusses solely the position that every tenant should be held liable for the conduct of her family members and guests. HUD simplistically states, "A promise is a promise," and asserts that a tenant who has promised a crime-free household should be responsible "regardless of whether he or she was personally engaged in the prohibited drug or other criminal activity."³

It is only in the second paragraph that HUD introduces the possibility that PHAs should consider all the circumstances and not always evict if a tenant has taken all reasonable steps to prevent the criminal activity. Even then, refraining from eviction in such cases is presented only as a possibility, not something that the PHA ought to do.

The upshot of this type of presentation is that HUD gets across the message it wants to communicate and that perhaps it believes the public wants to hear, i.e., that PHAs should much more aggressively seek to evict tenants. At the same time, in the face of criticism, HUD can always point to those secondary parts of the document to claim that it is being balanced and fair. But it can rest assured that those ancillary caveats have not reached the minds of most readers, so that its goal of aggressive evictions based upon absolute liability will not be frustrated.

Flat Out Wrong

Equally disturbing are the parts of the document that are flat out wrong, either morally or legally.

Guilt by association. First, there is the position that whole families should be evicted when one family member or even the guest of one family member commits a crime, even if the rest of the family has done everything that is reasonable to prevent the criminal activity. In this country people are punished for what they individually do wrong. Our laws do not hold people collectively responsible for the acts of others in which they did not participate, did not know about and could not reasonably be expected to have prevented.

Congress, when it enacted the statute governing evictions from public housing for criminal activity, made it clear that the family cannot be held responsible for the conduct of guests who are not under the family's control.⁴ In the legislative history, Congress elaborated:

The Committee anticipates that each case will be judged on its individual merits and will require the wise exercise of humane judgment by the PHA and the eviction court. For example, eviction would not be the appropriate course if the tenant had no knowledge of the criminal activities of his/her guests or had taken reasonable steps under the circumstances to prevent the activity.

S. REP. NO. 316, 101st Cong., 2d Sess. 179 (1990).

The courts have interpreted the statute to require personal wrongdoing by the tenant being evicted, not to impose absolute liability regardless of individual culpability.⁵ Yet we find HUD telling PHAs that they may — indeed, should — evict entire families when one family member or a guest commits a crime, regardless whether the rest of the family is personally engaged in the criminal activity. It is true that HUD states that eviction of tenants who have taken all reasonable steps to prevent the criminal activity may not always be warranted or proper. But by stating that such evictions are not always warranted, HUD implies that such cases would be the exception.

HUD goes further and states that in some instances eviction of an entire family may be appropriate as a means of protecting the health, safety and welfare of the public housing community. In HUD's view, it appears that the end justifies the means. When discussing the difficulties of dealing with crime by outsiders, HUD even suggests, "If the presence of some nonresidents can be linked to specific residents, the disruptive activities of these guests can be grounds for eviction of the entire host household." All HUD requires is some link, not control, not failure to prevent the crime, not even knowledge of the wrongdoing. Our laws do not allow people to be evicted from their homes because of guilt by association.

Expendable rights. As noted earlier, HUD is advocating draconian measures that would not be entertained for a moment if applied to middle-class or upper class families. In defense of its position that innocent family members may be evicted, HUD unabashedly argues that the shortage of affordable housing has left many eligible, law-abiding families waiting to move in. For all of our lives we have been taught that two wrongs do not make a right. Yet here HUD is saying that it is not wrong to evict people who are innocent because other people who are wrongfully being denied affordable housing will move in. The way to address the injustice to people on long waiting lists is to provide sufficient housing assistance for all who need it, not to evict innocent people in order to give their homes to others who also need a place to live.

Undue influence on judiciary. Another point HUD asserts that is of equally questionable ethics is the suggestion that PHAs should seek greater cooperation from local judges by arranging general meetings with them to discuss the need for evictions and to overcome the judges' reluctance to evict tenants for fear that they have nowhere else to live. HUD acknowledges that PHAs should not talk to judges about particular pending cases. Is it not also unethical for a party who regularly appears before a judge to attempt, ex parte, to influence that judge to rule in its favor in future cases? Lecturing judges on the law at judicial education classes is one thing. Possibly staging a public debate for judges in which people representing both sides of the issue would be invited to participate might be defensible. But seeking private meetings with judges to present only one side of the issue smacks of some judicial system other than the American one.

Fighting Back

To the extent that your housing authority heeds HUD's call and overzealously seeks to evict innocent tenants, you are not without recourse. The judicial decisions protecting tenants who have no personal responsibility are still on the books. The central statutory provisions have not changed. The changes in the Extension Act which the President just signed do not alter the law on the liability of innocent family members. The right to be heard, at least in court, has not been taken away. The PHA still has the burden of proof, as HUD acknowledges. And if the PHAs and their lawyers step over the line of ethical behavior in trying to convince the courts to rule their way in ex parte meetings, you still have your state and local bar associations to hold them accountable.

1. HUD, "One Strike and You're Out" Policy in Public Housing (March 1996).
2. "One Strike and You're Out", at 8.
3. Id.
4. 42 U.S.C.A. § 1437d(l)(5) (West 1994).
5. See, e.g., Charlotte Hous. Auth. v. Patterson, No. 9326DC1269 (N.C. Ct. App. Nov. 7, 1995).