When the Secretary of U.S. Housing and Urban Development (HUD) recently urged public housing authorities (PHAs) to use their discretion to admit applicants with past arrest and conviction records rather than simply exclude them from subsidized housing, we wondered: what happens when discretion means denial?
In a report entitled “When Discretion Means Denial: The Use of Criminal Records to Deny Low-Income People Access to Federally-Subsidized Housing in Illinois,” the Shriver Center reviewed the criminal records policies of nearly all the public housing and Housing Choice Voucher programs in the state as well as over 100 properties participating in the project-based Section 8 program. Concentrating on areas where HUD give PHAs discretion to admit applicants with criminal records, the report identifies four areas where PHAs and project owners are most likely to abuse their discretion. The report also urges HUD to align its programs with its “belie[f] in the importance of second chances” by taking affirmative steps toward ending each of these abusive practices.
Many PHAs and project owners fail to set reasonable limits on how far back to look when considering an applicant’s criminal history. Even though federal law requires PHAs and project owners to narrow their inquiries to criminal activity that occurred during a “reasonable time” before screening takes place, many admissions policies often give them license to look back as far as they want. These policies often:
- Have no time limits and simply deny admission to applicants who have certain types of criminal history in their backgrounds. Without a specific look-back period as a guide, many applicants with criminal records do not bother applying.
- Impose permanent bans on people who have been convicted of certain criminal activity. Given that the federal government has chosen to impose permanent bans in only two narrowly tailored instances, however, permanent bans in federally assisted housing should be sparsely used in only the most compelling circumstances.
- Use excessively long look-back periods, which essentially function as permanent bans. In two particularly egregious cases, the written admissions policies actually allow owners look back 99 years and 200 years, sending a strong message to people with criminal records—and their families—that they are not welcome in federally subsidized housing.
- Rely on minimum look-back periods rather than engage in the usual practice of setting maximum look-back periods. As a result, applicants are deprived of any notice of how long their criminal records will prevent them from accessing federally-assisted housing.
PHAs often rely on arrests as sufficient proof of criminal activity, even where the charges were ultimately dismissed and the arrests never led to convictions. Federal law allows PHAs to deny admission to applicants who have engaged in “criminal activity.” But instead of determining whether criminal activity actually occurred, many PHAs substitute a criminal arrest for criminal activity. This administrative shortcut often deprives people of housing when no wrongdoing may have ever taken place. Moreover, its effect on reducing crime is questionable. What is certain, however, is that arrest record screening impedes the fair housing choice of racial minorities disproportionately represented in the criminal justice system and therefore highly suspect under the federal Fair Housing Act.
What do these policies look like? About one out of every ten public housing programs in Illinois define “criminal activity” simply by the number of arrests on a person’s criminal record, even if no conviction resulted. The Housing Authority of Edgar County and Massac County Housing Authority, for example, go so far as to deny public housing applicants for a single arrest within the past decade.
More common are PHAs that consider arrests as evidence of criminal activity. Although about half of these admissions policies add that “a conviction for drug-related or violent criminal activity will be given more weight than an arrest for such activity,” the authority to deny admission on the basis of mere arrests remains. As a result, these PHAs are susceptible to violating their duty not to discrimination and their duty to affirmatively further fair housing under the Fair Housing Act.
Some PHAs and project owners use categories of criminal activity so vague that neither applicants nor administrators fully understand how to apply these standards. Admissions policies usually refer to the three types of criminal activity listed in HUD regulations: drug-related criminal activity, violent criminal activity, and other criminal activity that threatens the health, safety, and right to peaceful enjoyment of other residents. Sometimes, PHAs and project owners supplement this list with vague categories of criminal activity that provide little notice to applicants of the housing provider’s actual standard, such as crimes of “moral turpitude,” an imprecise term that is not defined in the Illinois Criminal Code.
Other amorphous categories include criminal activity “that indicates that the applicant may be a threat and/or negative influence on other residents” and “criminal activity that will adversely affect the reputation of the Development.” Neither standard reflects any language found in federal statutes or regulations, making them vulnerable to abusive application. Furthermore, a standard based on a building’s reputation strays from a property owner’s legitimate interest in resident safety, further increasing the potential for abuse.
A number of housing providers underuse mitigating circumstances, thus depriving applicants of the opportunity to overcome their past arrest and conviction records. Although HUD regulations require PHAs to consider the time, nature, and extent of a public housing applicant’s conduct, including the seriousness of the offense, more than half of the written admissions policies in Illinois gloss over the fact that applicants could—and in some cases, have the right to—present mitigating circumstances upon being denied for criminal history. Without notice of how to challenge a denial based on a criminal record, many applicants are likely to select themselves out of the admissions process.
In the project-based Section 8 program, consideration of mitigating circumstances is encouraged but not required. One out of four tenant selection plans reviewed explicitly stated that the project owner would not consider an applicant’s mitigating circumstances, thus stacking the odds of admissions against anyone with a criminal record.
Together, HUD, PHAs, and project owners need to ensure that criminal records screening respects the applicant’s right to be free from unwarranted discrimination. More than simply pulling a person’s criminal history, proper screening requires thoughtful consideration and proper balancing of various factors, such as the nature and severity of the offense, the time elapsed since the commission of the offense, and its relationship to a person’s tenancy. In the quest for bright-line rules, however, policies in Illinois today instead allow PHAs and project owners to abuse the discretion given to them by HUD.
For proper screening to happen, HUD must make clear that housing providers need to look beyond the criminal history or face potential consequences. To help ensure that people with criminal records are not unnecessarily barred from federally subsidized housing, we recommend that HUD, PHAs, and project owners:
- reign in unreasonable look-back periods;
- end the use of arrests as conclusive proof of criminal activity;
- enact clear standards for reviewing criminal history that have a basis in federal law; and
- ensure that applicants can overcome criminal records barriers by presenting evidence of mitigating circumstances.
Only when HUD, PHAs, and project owners take these affirmative steps can discretion lead to admission, not just denial.