This portion of the kit provides information for those of you who work with, or plan to work with, public housing authorities (PHAs). It provides materials you can use as you talk to PHAs about crafting policies and procedures that take into account both the PHAs’ valid public safety concerns and the need for those with conviction records to obtain and maintain stable housing. Materials include:

• Summary of Federal Housing Law
  
  • Federal Mandates
    
  • PHA Discretion
    
• What You Can Do
  
• Model Guidelines
  
• Sample Handout for Applicants
  
  

SUMMARY OF FEDERAL HOUSING LAW

The first thing you should know is that local PHAs often misunderstand federal housing laws, or do not realize that they have discretion in applying those laws. Federal housing law does not create an absolute bar to the admission to public housing of households that include a person with a criminal record. On the contrary, while federal law requires PHAs to adopt some mandatory policies, they have broad discretion in crafting most admission and eviction policies.

Federal Law – What is Required?

Federal laws require providers of public, Section 8 and other federally assisted housing to:

• Perform background checks for people who apply to public housing. However, before a PHA takes any adverse action against an applicant based on the results of a criminal background check, applicants must be given an opportunity to dispute the accuracy of their criminal records.¹
  
• Deny admission to any household with a member who:
  
  
  1. Has been convicted of methamphetamine production on the premises of federally funded housing²; or
     
     
  2. Is subject to a lifetime registration requirement under a state sex offender registration program.³

Federal Law – What is Discretionary?

PHAs have discretion to craft admission and eviction policies in the following areas:

• Drug Related or Violent Criminal Activity.

  PHAs are permitted but not required under federal law to deny housing to any household that includes a member who was “engaged in any drug-related or violent criminal activity or other criminal activity which would adversely affect the health, safety, or right to peaceful enjoyment of the premises” during a “reasonable” time prior to the application for housing.⁴

  It is up to the PHA to determine what a “reasonable” time period is, and what kind of criminal activity qualifies. The PHA may also require applicants to provide evidence that they have not been involved in any other criminal activity, once the “reasonable” period has passed.⁵. Some PHAs, however, have used this discretion to turn the “reasonable” period into a permanent ban on people – and the members of their households – who have been convicted of certain types of offenses

• Illegal Use of Controlled Substance

  PHAs can establish their own standards denying admission to households with a member who is illegally using a controlled substance,⁶ or whose pattern of abuse of drugs or alcohol may interfere with the health, safety, or right to peaceful enjoyment of the premises by other residents.⁷ PHAs are permitted to consider evidence of rehabilitation, such as participation in a treatment program, in making their decisions regarding admission.⁸

• Drug Related Criminal Activity in the Past Three Years

  PHAs also have the discretion to deny admission to any household that has been evicted from federally assisted housing because of drug-related criminal activity by one of its members in the previous three years.⁹ The PHA may choose to admit the household before the three years are up if the household member completes a rehabilitation program.¹⁰

• “One Strike” for Criminal Activity that Threatens Health, Safety and Enjoyment, or Drug-Related Activity

  Finally, under the controversial “One-Strike” policy, PHAs are required to include a provision in their leases that provides that if any member of a household, or a guest of that household, engages in “any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal activity,” the entire household may be evicted, regardless of whether the activity takes place on or off the premises.¹¹ To see this provision, click here.

To see these federal housing laws, 42 U.S.C. §§ 13661-13663, click here.

WHAT YOU CAN DO

Public housing advocates should work with their local PHAs to promote policies and procedures regarding applicants with criminal records that reinforce public safety and facilitate reintegration of rehabilitated people into the community. Following this section, you will find a model PHA guideline that incorporates these principles.

1. PHAs should make appropriate individualized determinations about every applicant.

   The fact that an individual has a criminal record does not necessarily mean that he or she will pose a threat to the health and safety of current public housing residents. Therefore, PHAs should not flat-out bar applicants with criminal records from public and Section 8 housing. Advocates can work with local PHAs to develop policies that allow for individualized decisions about an applicant’s eligibility based on his or her criminal history. Factors that PHAs should consider include:

• evidence of rehabilitation;
  
• the length of time since the crime was committed; and
  
• the nature of the offense.

For example:

• The Housing Authority of Portland, Oregon, assigns different standards and procedures for different kinds of convictions. Criminal convictions are listed and given a number value from one to four. In addition to the category of crime, the Housing Authority will also consider the amount of time that has passed since the conviction occurred, and the number of subsequent convictions of the individual, if any.
  
  
• The Saint Paul Public Housing Agency in Minnesota also looks at an individual’s patterns of behavior. If an applicant has a number of drug-related charges over a period of ten years, this would be more significant than a single forgery felony from two years ago.
  

2. In making individualized determinations, PHA should set a “reasonable” length of time to bar applicants with conviction records.

   Advocates can work with PHAs to determine more “reasonable” lengths of time to bar applicants with criminal records. By looking at the individual’s evidence of rehabilitation, age at time of conviction, and the nature and gravity of the offense, PHAs could decrease waiting periods and help individuals with criminal records secure housing without compromising the goal of public safety.

   • For example, the Baltimore City Housing Authority is now considering categorizing crimes so as to create different ineligibility periods based on the severity of the crime. Under the proposed guidelines, an individual would be ineligible for public housing for 18 months if the conviction was for a misdemeanor, and for up to 3 years if the conviction was for a felony.
     
     
   • The Phoenix Housing Department will only generally look at felony convictions that occurred in the past three years or multiple misdemeanors when considering a housing application. The Department will look at convictions that are not drug-related or violent, such as writing a bad check or car theft, but will not automatically bar applicants with such convictions.
     
     
3. PHAs should also determine what qualifies as evidence of rehabilitation, and consider a wide range of evidence.

   Advocates can work with PHAs to develop criteria for determining whether applicants with criminal records have been satisfactorily rehabilitated. Factors to consider may include:

• gainful employment;
• enrollment in drug or alcohol treatment programs;
• participation in mental health counseling;
• participation in anger management programs;
• enrollment in education and/or job training; and
• demonstrated financial accountability.
  
  
  • The Vancouver Housing Authority in Washington looks at a wide range of evidence of rehabilitation, including drug and alcohol treatment or anger management program participation and completion.

To see the Legal Action Center's kit, “How to Get Section 8 or Public Housing Even With a Criminal Record,” that helps applicants for public housing with criminal records gather the evidence of rehabilitation necessary to gain housing, click here.

4. PHAs should limit consideration to conviction information when making admission decisions.

   Using information about arrests that did not lead to convictions to deny people housing undermines a core value of our legal system, the presumption of innocence. Advocates can work with PHAs to develop policies that use conviction records only, rather than arrests, when considering an individual for public housing. Because an arrest is only an accusation, not proof that a crime was committed, it should not be used adversely against an applicant if he or she was not convicted. Otherwise, individuals who have not committed any criminal offense may be unfairly disqualified.

   • The New York City Housing Authority limits its evaluation of criminal records to conviction information only.
     
     
   • The Baltimore City Housing Authority is considering applying separate regulations for clients with conviction records, and those with only arrests that did not lead to convictions.
     
     
5. PHAs should make individualized determinations at time of application rather than relying on the appeals process

   Advocates can also recommend that PHAs not categorically reject applicants with criminal records under the assumption that they will assert their claims in an administrative appeal. Instead, PHAs should make individualized determinations when first considering an application for public housing or Section 8 vouchers. This is particularly important, because not every applicant has the wherewithal to appeal an application decision. Many families do not have access to affordable legal representation. In addition, the administrative appeal process can be very slow, and will delay the securing of a safe housing situation.

6. PHAs should develop and implement housing expansion programs for people with criminal records without compromising public safety

   Advocates can work with PHAs to develop and implement creative programs that effectively promote expanding housing opportunities for people with criminal records without compromising public safety. For example:

   • The Portland Housing Center in Oregon has implemented a Ready to Rent Program – a four-to-six week training program for individuals facing challenges getting approval for public housing or Section 8 subsidies. The course teaches housing priorities, understanding and repairing credit, tenants’ rights and responsibilities and other issues, and is currently being offered in several county and state correctional facilities.
     
     
   • The Oakland Housing Authority in California has implemented a program called Maximizing Opportunities for Mothers to Succeed (MOMS). This program assists women in reuniting with their children. Women who enroll in the program receive individual and group counseling, self-sufficiency activities, basic parenting classes, and vocational and educational assistance. If the families are successful in the program, they move to permanent public housing.
     
     
   • The New York State Office of Mental Health is developing an initiative to offer eight hundred units of new supportive housing to a target population that includes individuals released from prison or jail or individuals with serious mental illness.

To see additional recommendations found in the Legal Action Center’s publication “Safe At Home,” click here.

MODEL GUIDELINES

The Legal Action Center has drafted model housing authority guidelines that take into account both the valid public safety concerns of housing authorities, and the need for people with conviction records to obtain stable homes. In crafting these guidelines, the Legal Action Center examined the policies of different PHAs and selected provisions that take into account rights of all potential tenants and the rights of those living in or near the PHA to have a safe environment. Click here to see these model housing authority guidelines.

To seen an example of how one PHA, the New York City Housing Authority, treats specific types of conviction records, click here.

SAMPLE HANDOUT FOR APPLICANTS

Individuals applying for public housing usually do not know the process that the PHA will undertake to determine eligibility. Applicants frequently do not know that PHA will perform a criminal history background check. Others do not know what the PHA policy is with regard to admitting tenants with conviction records, or that they may have a right to present evidence of rehabilitation. Advocates should work with PHAs to develop a handout that can be given to individuals applying for public housing or Section 8 vouchers that explains the process and their rights. To see a sample of such a handout, click here.

¹42 U.S.C. § 1437d(q)(2).
²42 U.S.C. § 1437n(f).
³42 U.S.C. § 13663(a).
⁴42 U.S.C. § 13661(c)(1).
⁵42 U.S.C. § 13661(c)(2).
⁶42 U.S.C. § 13661(b)(A).
⁷42 U.S.C. § 13661(b)(B).
⁸42 U.S.C. § 13661(b)(2).
⁹42 U.S.C. § 13661(a).
¹⁰42 U.S.C. § 13661(a).
¹¹42 U.S.C. § 1437d(l)(6).