Yesterday, the Department of Housing and Urban Development (HUD) released much-anticipated guidance to public housing authorities and owners of HUD-assisted properties on the use of criminal records screening. By rejecting arrest records as a basis to deny admission, HUD slightly opened the door to federally subsidized housing for people with criminal records. To fully remove the burden of unfair barriers for this population, however, HUD needs to take further action. Specifically, it should issue further guidance on the implications of criminal records screening under the Fair Housing Act. In addition, housing providers desperately need direction on how far back they can look into an individual’s criminal history.
What the Guidance Says
The guidance addresses five important topics. First, it stresses that arrest records – without subsequent conviction or plea of guilt – are insufficient proof of criminal activity; Federal housing providers cannot deny housing or evict someone on the basis of arrests alone. Instead, providers must rely on evidence that the criminal activity took place.
Second, the guidance states that federal housing providers have the discretion whether to admit applicants or evict based upon criminal activity. In trying to debunk the myth that “one-strike” evictions are mandatory, HUD reiterated that there is no automatic denial or eviction for every allegation of criminal activity. Indeed, HUD reminded providers that they should consider factors such as the seriousness of the offending action and the extent to which the adverse decision will affect the household, such as rendering them homeless.
Third, the guidance reminds federal housing providers that they must honor the due process rights of individuals who are denied housing or evicted from housing as a result of a criminal record. These rights include notice, an opportunity to dispute the accuracy and relevance of the criminal record before the decision is made, and an opportunity to request an informal hearing or review after the decision was made.
Fourth, the guidance warns PHAs and project owners to create and apply their criminal records policies in accordance with civil rights laws, such as the Fair Housing Act. The discretion that they enjoy, in other words, is not unfettered.
Finally, the guidance ends by providing PHAs and project owners with a list of best practices and encouraging them to read the Shriver Center’s report, When Discretion Means Denial: A National Perspective on Criminal Records Barriers to Federally Subsidized Housing.
What the Guidance Fails to Say
As the first official document from HUD in favor of increasing housing opportunities for people with criminal records, this guidance is certainly welcome. A quick review of When Discretion Means Denial would show, however, that outstanding issues remain for HUD to address. Two issues are particularly urgent.
First, HUD must issue guidance on the fair housing implications of criminal records screening. Serious racial disparities persist in the criminal justice system. Far from contained, these disparities ripple out well past the system, adversely affecting people of color, their families, and their communities in employment, education, and numerous other areas. Housing policies that deny people with criminal records perpetuate these racial disparities without necessarily improving public safety. Fortunately, over the summer, the U.S. Supreme Court upheld the disparate impact theory as a means of proving discrimination under the Fair Housing Act, thus strengthening a powerful tool for breaking down criminal records barriers that unfairly and disproportionately burden people of color and their communities. On the heels of the Court’s decision and in the midst of the unprecedented re-examination of this country’s deleterious overreliance on mass incarceration, a fair housing guidance from HUD on the use of criminal records would be especially timely. It is also sorely needed, as the demands of prospective tenants and housing providers demonstrate.
Second, HUD must give housing providers direction on how far back they can look into a person’s criminal history. There are too many instances of housing providers imposing overly long lookback periods – 10, 20, 99, 100 years – or no time limits on their criminal records inquiries at all. As long as such policies continue to exist, people with criminal records will get the message that they are not welcome in federally subsidized housing, no matter how much HUD guidance tells them otherwise. The time for HUD to grapple with this issue is now.
HUD Secretary Julián Castro recently spoke about HUD’s need to strike the proper balance between “keeping our housing communities safe and […] afford[ing] more opportunity for people to get back on their feet and not confine them to a life of scrapping and inability to ever get on the right track because of overly burdensome regulations.” The guidance that HUD released yesterday is a welcome step toward achieving that balance. To further realize its “role to play in the larger conversation about criminal justice reform and ensuring that folks have effective and fair second chances in life,” however, HUD needs to issue further guidance on the these remaining issues now – before the conversation about criminal just reform comes to a close.
In July 2015, legal aid attorneys and advocates across the country, including the Shriver Center, sent a letter to Secretary Castro and Attorney General Loretta Lynch (in her capacity as convener of the Federal Interagency Reentry Council), requesting that the federal government take concrete steps toward eliminating unreasonable housing barriers for people with criminal records. Some of the recommendations were included in the HUD guidance, and others are described in this blog post. A copy of that letter can be found here.