Public Housing Policies Deny Second Chances to Ex-Offenders

The Washington Post recently told the story of a highly-qualified woman who’s had difficulties getting — and keeping — jobs because she committed a crime 25 years ago. We’ve had quite a few such stories, plus reports, conferences and the like.

But a criminal record — not necessarily a conviction — can effectively condemn a low-income person to homelessness in another way. And homelessness can propel the person back into the criminal justice system. Congress bears some share of the responsibility for this, but not as much as public housing authorities.

Federal law prohibits PHAs and private-sector owners of federally-subsidized housing from accepting as tenants people who’ve been convicted of certain sex offenses or of manufacturing methamphetamine in federally-assisted housing.

The ban applies to these ex-offenders not only as renters, but as members of households that could otherwise qualify. Generally speaking, PHAs must also impose a three-year ban on people who’ve been evicted because of a drug-related crime.

Both PHAs and the federally-assisted project owners must have written policies specifying how they will screen applicants and decide whom to house. These must include the aforementioned bans. They must also comply with some legal limits, e.g., the anti-discrimination provisions in the Fair Housing Act.

But within these bounds, PHAs and project owners can exercise discretion. And that, all too often, means denial, as a new report from the Shriver Center on Poverty Law shows.

The researchers reviewed more than 300 policies. They found a goodly number that use their permissible discretion — even exceed it — to deny housing to people who pose no manifest risk to tenants, employees, the owners themselves or the property.

Nor do they establish a legitimate basis for determining that the screened-out people would adversely affect the “right to peaceful enjoyment of the property” — a screening criterion the law allows.

The report identifies four major ways policies deny affordable housing to people who deserve a second chance, as well as some that shouldn’t need it.

Unreasonable lookback periods. The U.S. Department of Housing and Urban Development expects policies to set a reasonable lookback period, i.e., time limit, for the criminal history they’ll consider relevant.

But some policies have no time limit — or even expressly establish lifetime bans beyond those federal law requires. Some others look back as far as 25 years. So an applicant in his early 40s could be rejected because he got into a gang fight as a teenager.

Use of arrests as proof of criminal activity. The law allows PHAs and project owners to screen out people who’ve “engaged in” certain criminal activities, rather than only those who’ve actually been convicted.

Some policies expressly deny housing on the basis of arrests. Others treat arrests as evidence, though not necessarily conclusive proof of criminal activity. In either case, people are guilty, even if a judge or jury has found the contrary — or even if they were never tried.

Knowing, as we do, how our criminal justice system sweeps in a far higher proportion of blacks than whites, these policies arguably violate not only the Fair Housing Act, but similar state laws or provisions in their broader civil rights laws.

Overbroad categories of criminal activity. The law apparently envisions policies designed to protect tenants and others on covered housing properties from harm, truly intrusive disruption — or in the case of drug felonies, perhaps temptation.

Some policies go much further, effectively banning people with a record of any felony whatever — or in fact, no felony, but a misdemeanor, e.g., trespassing, urinating in public.

You see what a catch-22 we have here. Homeless people who’ve got no place to take a pee, except in an alley or behind a bush denied housing because some police officer decided to run them in.

Underuse of mitigating circumstances. The law requires PHAs to consider mitigating circumstances if applicants appeal denials based on their criminal records, i.e., reasons the crimes don’t reflect their current or likely behavior.

These may include gainful, legal employment, participation in a job training program or some other program designed to help ex-offenders stay on the straight and narrow, a strong support network or even simply the fact that the crime was committed a long time ago and says nothing about suitability as a tenant now.

Both PHAs and project owners may consider such circumstances in their initial screenings. Policies reviewed indicate that some PHAs do, while others don’t even acknowledge the opportunity to ask for reconsideration.

Nearly four years ago, HUD urged PHAs to exercise their discretion in ways that would tend to give ex-offenders second chances. “A place to live,” its letter said, is “one of the most fundamental building blocks of a stable life.”

The PHAs “essentially … put it in their pocket and continued to deny people housing,” says the Shriver Center’s Director of Housing Justice.

The new report is primarily a message to HUD, which, it says, should step up the pressure. But we can use it as a lens to screen our local PHAs’ screening policies and practices.

The latter could well include what pressure, if any they exert on project owners that won’t rent to people who may — or may not — have committed a crime. There’s obviously a role here for our civil rights enforcement authorities too.

And for our policymakers, who need to step up funding so there’s room in public and other subsidized housing for everyone who needs it, including those who deserve a second chance.

One Response to Public Housing Policies Deny Second Chances to Ex-Offenders

  1. […] Not all public housing authorities — and probably even fewer private-sector landlords — make this distinction. Doubtful most employers do, though “ban the box” laws limit sweeping exclusions in a handful of states, the District of Columbia and about two dozen local jurisdictions. […]

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