Re-entry to Assisted Housing

In late October, the U.N. Special Rapporteur on the Right to Adequate Housing undertook an official visit to the U.S. to "examine the realization of the right to adequate housing, in particular in relation to subsidized housing programmes, the homeless situation and the foreclosure crisis." She met with federal, state, and local government officials, non-profit organizations, and community members in six cities and on one Native American reservation. The Special Rapporteur released her report on February 12, 2010.

In her report, the Special Rapporteur criticizes federal policies that allow public housing authorities to screen and evict tenants on the basis of criminal activity. Although she recognizes that the government must protect residents of subsidized housing, she expresses her concern that one-strike policies discriminate against minorities, pointing to Bureau of Justice Statistics data showing that black and Hispanic men face a much higher chance of incarceration than white men. She also notes the “fragmenting effects” of one-strike policies on families. In addition, the Special Rapporteur indicates that despite passage of the Violence Against Women Act, one-strike policies continue to target victims of domestic violence, dating violence, or stalking.

Ultimately, the Special Rapporteur concludes that zero tolerance policies are not an appropriate way to maintain a safe environment in subsidized housing. She urges the federal government to “commit resources to determine the real effects of such policies on families, particularly minority families, and reform these policies.” In an even bolder step, she recommends that the federal government “prohibit the use of criteria such as drug tests and criminal records, for gaining access to subsidized housing.” It remains to be seen if HUD or Congress will take any action in response to the report.

Click here to read the full report.

Background

In general, each public housing authority (PHA) must develop and submit a Five Year Plan and an Annual Plan to the Department of Housing and Urban Development (HUD). The Annual Plan must set forth the local policies for admission to public housing and the Section 8 voucher program. 42 U.S.C. § 1437c-1(c)-(d). The supporting documents to the Annual Plan – the Admissions and Continued Occupancy Policy (ACOP) for public housing and the Administrative Plan (Admin Plan) for the voucher program – include more detailed information about eligibility criteria and the applicant screening process. Before submitting the Annual Plan to HUD, each PHA must hold a public hearing before its Board of Commissioners. 42 U.S.C. § 1437c-1(f). Advocates should engage PHAs as early as possible in the planning process by meeting with staff and submitting written comments on the contents of the ACOP and Admin Plan.

Screening Process

• The PHA will conduct a criminal background check on each adult member of an applicant household. An adult means a person 18 or older or a person convicted of a crime as an adult under federal, state, or tribal law.

• On the application form, the PHA will explain its policies and procedures on criminal activity and will inform the applicant of his or her right to request a reasonable accommodation and present evidence of mitigating circumstances, as well as the protections available under the Violence Against Women Act.

• If the criminal background check reveals negative information about a household member, and the PHA proposes to deny admission due to the negative information, the PHA will send the subject of the record (and the applicant, if different) a copy of the criminal record and provide an opportunity to dispute the accuracy and relevance of the record. In addition, the PHA will provide referral information for local legal services organizations.

• If the applicant does not contact the PHA to dispute the criminal record within 14 days, the PHA will send a written notice of ineligibility to the applicant. If the applicant did not contact the PHA within the specified time period due to a disability, the PHA will provide a reasonable accommodation if necessary.

• The notice of denial will state the specific reason for denial, inform the applicant that he or she may request an informal hearing to contest the decision, and explain how to request an informal hearing. In addition, the notice of denial will contain referral information for local legal services organizations. If the applicant did not request an informal hearing within the specified time period due to a disability, the PHA will provide a reasonable accommodation if necessary.

• For language groups served by the PHA, the PHA will translate its written materials and provide an oral interpreter at the informal hearing.

Eligibility Criteria

• The PHA will deny admission to a household if a member is subject to a lifetime registration requirement under a state sex offender registration program. (Mandatory bar under federal statute).

• The PHA will deny admission to a household if a member has been convicted of manufacturing or producing methamphetamine on the premises of federally-assisted housing. (Mandatory bar under federal statute).

• The PHA will deny admission to a household if a member has been evicted from federally-assisted housing for drug-related criminal activity within the past three years, unless the member has successfully completed a supervised drug rehabilitation program approved by the PHA or the circumstances leading to the eviction no longer exist. For example, the member who engaged in the drug-related criminal activity died, is in prison, or is no longer a member of the household. (Mandatory bar under federal statute).

• The PHA may deny admission to a household if a member has participated in drug-related or violent criminal activity within the past three years.

Note: Under federal law a PHA may deny an applicant if the criminal activity occurred within a “reasonable time” before the admission decision. A PHA may adopt a different length of time for different types of criminal activity. The New York City Housing Authority ACOP, for example, separates felonies and misdemeanors by class, and for each class, designates a length of time. Although some advocates believe that such a policy benefits individuals with a criminal record because it is easy for the PHA to administer, others find the model too rigid.

• If a household member has participated in drug-related or violent criminal activity, the PHA will consider mitigating circumstances, including, but not limited to: (1) the seriousness of the criminal activity; (2) the relationship between the criminal activity and the safety and security of residents, PHA staff, or property; (3) the length of time since the offense; (4) the age of the household member at the time of the offense; (5) evidence of rehabilitation, such as employment, participation in a job training program, education, participation in a drug or alcohol treatment program, or recommendations from a parole or probation officer, employer, teacher, social worker, or community leader; and (6) the effect a denial of admission will have on the household and the community.

• The PHA will not consider unproven allegations or arrests that did not result in convictions as evidence of criminal activity. In addition, the PHA will not consider expunged/purged/sealed convictions as evidence of criminal activity.

• The PHA will not consider juvenile adjudications that do not qualify as convictions under state law as evidence of criminal activity.

• If the applicant’s past criminal activity was related to his or her disability, the PHA will provide a reasonable accommodation if necessary.

• If the applicant’s past criminal activity was the consequence of acts of domestic violence, dating violence, or stalking against him or her, the PHA will not deny admission.

Note: For complete sample language on the protections available to victims of domestic violence under the Violence Against Women Act, see NHLP’s Sample PHA Domestic Violence Policy.

• If the PHA proposes to deny admission to a household based on the past criminal activity of a member, the PHA will provide the household an opportunity to exclude the member and obtain admission.

This page was supported in part by a grant from the Soros Justice Fellowships Program of the Open Society Institute.

Section 8 Voucher Program Provisions

   The provisions in Section 14(a) of H.R. 3045 would alter the voucher program only. First, the bill would restrict the elective screening process of public housing authorities to criteria “directly related” to the ability of the applicant to “fulfill the obligations of the assisted lease.” The bill makes clear, however, that the language does not prevent public housing authorities from rejecting an applicant due to past criminal activity, as mandated or permitted under the Quality Housing and Work Responsibility Act of 1998 (QHWRA). As a result, the clause would have little practical effect for individuals with a criminal record. (See below for changes to QHWRA). Second, SEVRA would mandate that a public housing authority consider mitigating factors before rejecting an applicant. Under current regulations, public housing authorities may, but are not required to, consider all of the relevant circumstances, including the seriousness of the offense and the effect of denial on family members not involved in the offense. 24 C.F.R. § 982.553(c)(2). Finally, the bill would protect tenants who receive enhanced vouchers from elective re-screening by public housing authorities.

Federally Assisted Housing Provisions

   The provisions in Section 14(b) of H.R. 3045 would amend QHWRA, which applies to public housing, the voucher program, Section 8 Moderate Rehabilitation, project-based Section 8, Section 202, 811, 221(d)(3), 236, 514, and 515 housing. 42 U.S.C. § 13664. Under the current statute, public housing authorities may deny an applicant who, within a reasonable time before the admission decision, engaged in violent criminal activity, drug related criminal activity, or “other criminal activity which would adversely affect the health, safety, or right to peaceful enjoyment of the premises by other residents, the owner, or public housing agency employees.” 42 U.S.C. § 13663(c). First, SEVRA would eliminate the ability of a public housing authority to deny an applicant based on “other criminal activity,” leaving drug related or violent criminal activity “which would adversely affect the health, safety, or right to peaceful enjoyment of the premises by other residents, the owner, or public housing agency employees” as permissible grounds for denial. The original version of the bill would have prohibited public housing authorities from rejecting an applicant for a misdemeanor “unless such denial is based on a pattern of activity.” H.R. 3045, 111th Cong. (2009) (as introduced in the House). An amendment introduced to the Financial Services Committee by Representative Biggert of Illinois, however, enlarged the universe of misdemeanor offenses that may serve as permissible grounds for denial. As a result, the version of the bill reported to the House states:

   “No denial of admission may be made pursuant to this subsection based on a misdemeanor charge and conviction unless such denial is based on a pattern of activity, the commission of any offense against a child (including child pornography offenses), the commission of any offense involving a child victim, the commission of a sexual assault, the commission of an assault, or the commission of violent, disruptive (as such term is defined by the Secretary), or illegal behavior that interferes with the right to peaceful enjoyment of the premises by other residents.”

   Although the “disruptive” and illegal behavior” language seems broad, it is important to note that the clause limits the type of drug related or violent criminal activity that could disqualify prospective participants.

   Second, SEVRA would remove the “reasonable time” language and allow public housing authorities to reject individuals based on criminal activity that occurred within the previous five years. The change would benefit prospective participants in jurisdictions where public housing authorities deny admission based on criminal activity that occurred over five years before the admission decision. Some public housing authorities, however, do not consider a criminal record over three years old. Because the clause sets five years as a ceiling as opposed to a floor, it would not force such public housing authorities to alter their admission policies. Finally, the bill would require “documented evidence that is credible and objective” to deny an applicant due to past criminal activity.

This page was supported in part by a grant from the Soros Justice Fellowships Program of the Open Society Institute.

Under 42 U.S.C. § 13661(c), a public housing authority may deny admission or assistance to an applicant who, during a “reasonable time” before the admission decision, engaged in drug related criminal activity, violent criminal activity, or other criminal activity that would adversely affect the health, safety, or right to peaceful enjoyment of the premises by other residents, the owner, or public housing agency employees.” The statute does not define a “reasonable time.” According to HUD guidance, public housing authorities may want to define the term in a different way for different categories of criminal activity. HUD suggests that “five years may be a reasonable period for serious offenses.” Screening and Eviction for Drug Abuse and Other Criminal Activity; Final Rule, 66 Fed. Reg. 28,776, 28,779 (May 24, 2001). Nevertheless, many public housing authorities deny admission or assistance on the basis of criminal activity that occurred 10 years or more before the admission decision.

Public housing authorities that adopt such restrictive admission policies assume that a criminal record is a good predictor of future criminal behavior. Recent research shows, however, that individuals with an old criminal record do not exhibit a higher risk of future criminal activity than individuals without a criminal record. Megan C. Kurlycheck, Robert Brame, and Shawn D. Bushway, Enduring Risk? Old Criminal Records and Short-Term Predictions of Criminal Involvement, 53(1) Crime & Delinquency 64 (2007). The study used police contact data from a cohort of 670 men born in Racine, Wisconsin in 1942 and followed through age 32. The results reveal that if a person with a criminal record is incident free for a period of about 7 years, his risk of future criminal activity is similar to that of a person without a criminal record.

It is important to note that the value of the study is limited for several reasons. First, advocates may not want to suggest that public housing authorities define a “reasonable time” as 7 years. A period of 3 years or less is ideal. Second, the study used police contact as a proxy for criminal activity, when in fact, many arrests are erroneous. Finally, the study does not provide offense specific information. It is possible that the risk of future criminal behavior decreases at a more rapid rate for certain types of criminal activity. Nevertheless, advocates may want to draw on the results of the study to incrementally improve the admission policies of public housing authorities that reject individuals on the basis of criminal activity that occurred 7 years or more before the admission decision.

This page was supported in part by a grant from the Soros Justice Fellowships Program of the Open Society Institute.