Accessing Affordable Housing: The Rights of Previously Incarcerated Individuals

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1 Accessing Affordable Housing: The Rights of Previously Incarcerated Individuals 1 NATIONAL HOUSING LAW PROJECT JANUARY 29, GoToWebinar Interface 2 1. Viewer Window 2. Control Panel Outline I. Context A. Housing needs of reentry population B. Role of HUD-assisted housing II. Eligibility criteria for HUD-assisted housing III. Application process IV. Denial process V. Challenging denial of admission 3 1

2 I. Context 4 Housing Needs of Formerly Incarcerated Individuals Over 735,000 people released from state and federal prison in 2008 Each week over 230,000 people leave county jails 5 Housing Needs of Formerly Incarcerated Individuals Many formerly incarcerated individuals end up in unstable housing arrangements 10 percent of parolees homeless nationwide 30 to 50 percent of parolees homeless in large urban areas Urban Institute study 6 63 percent reported living in 2, 3, 4, or 5 places within first year after release At end of first year, 46 percent referred to housing arrangement as temporary 2

3 Housing Needs of Formerly Incarcerated Individuals Stable housing crucial for successful reentry 7 Urban Institute study The importance of finding a stable residence cannot be overestimated: men who found such housing within the first month after release were less likely to return to prison during the first year out. Role of HUD-Assisted Housing HUD-assisted housing may be only housing people leaving prison or jail can afford BUT supply insufficient 10 years average wait for public housing unit in San Francisco 8 Role of HUD-Assisted Housing Vast majority of formerly incarcerated individuals live with family member or significant other after release AVOID WAITLIST by joining family member of significant ifi other already living i in HUD-assisted itd housing 9 3

4 II. Eligibility Criteria 10 Eligibility Criteria 11 Federal restrictions apply Public housing Section 8 voucher program Section 8 moderate rehab Project-based Section 8 Section 202 Section 811 Section 221(d)(3) Section 236 NO federal restrictions LIHTC Shelter Plus Care Supportive Housing Program HOPWA MUST Be Denied Admission Subject to lifetime registration requirement under state sex offender registration law Convicted of manufacturing or producing methamphetamine on premises of federally assisted housing ONLY public housing, Section 8 voucher program, Section 8 moderate rehab Evicted from federally assisted housing for drugrelated criminal activity within the previous three years UNLESS completed drug rehabilitation approved by the PHA 12 4

5 MAY Be Denied Admission Drug-related criminal activity Violent criminal activity 13 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 MAY Be Denied Admission Criminal activity must have occurred within a reasonable period before admission No definition of reasonable period in statute or regulations HUD guidance 5 years may be reasonable for serious offenses 14 PHAs and HUD-assisted owners may want to use different period for different categories of offenses Location of local policies PHA Admin Plan for Section 8 voucher program and ACOP for public housing HUD-assisted owner tenant selection plan MAY Be Denied Admission 15 Other criminal activity limited by statute MUST adversely affect the health, safety or right to peaceful enjoyment of the premises HUD guidance indicates many offenses cannot be grounds for denial 5

6 MAY Be Denied Admission Mitigating circumstances 16 Public housing PHA MUST consider the time, nature, and extent of the conduct, including the seriousness of the offense Voucher program and HUD-assisted housing PHA or owner MAY consider mitigating g circumstances III. Application Process 17 Screening For a Criminal Record Applicant PHAs and HUD-assisted owners will perform criminal background check on each adult member of the household 18 6

7 Screening For a Criminal Record Adding member to household Need to notify PHA or HUD-assisted owner and obtain approval Timing critical Public housing ACOP and lease Section 8 vouchers Admin Plan and written notice of obligations given to voucher holder HUD-assisted lease and HUD Handbook Screening will occur at annual or interim recertification 19 Mitigating Circumstances Burden on applicant to present mitigating circumstances 20 Mitigating Factors Seriousness of offense Length of time since offense Age at time of offense Number of offenses Effect of denial on household and community Evidence of rehabilitation Mitigating Circumstances Evidence of rehabilitation Letters of support critical 21 Employer Teacher Case worker Drug or alcohol treatment program Current or prior landlord Parole or probation officer Information from prison or jail about programs completed in custody 7

8 22 Letters of support Building super *Courtesy of Legal Action Center 23 Letters of support Prison official *Courtesy of Legal Action Center 24 Letters of support Therapist *Courtesy of Legal Action Center 8

9 Other Arguments Reasonable Accommodation Past criminal activity related to disability 25 Disability can include mental illness or former substance abuse Under Fair Housing Act, PHA or owner must provide reasonable accommodation to person with a disability Reasonable accommodation means change in a rule, policy, practice, or service necessary to allow equal opportunity to use and enjoy dwelling Other Arguments Reasonable Accommodation BUT landlord not required to make dwelling available if applicant poses direct threat to health and safety of others IF Threat objective No accommodation could mitigate direct threat 26 Other Arguments Reasonable Accommodation 27 No successful reported case Williams v. Rochester Hous. Auth., Civil Action No. 03 CV 6005 (W.D.N.Y. April 7, 2005) (consent decree) 9

10 Other Arguments VAWA 28 Past criminal activity of applicant consequence of acts of domestic violence, dating violence, or stalking committed against him or her IV. Denial Process 29 Denial Process If PHA or HUD-assisted owner proposes to take adverse action on basis of criminal record obtained by PHA Must send copy of criminal record to applicant or tenant Must provide opportunity to dispute accuracy and relevance If HUD-assisted owner obtained criminal record from tenant screening agency, Fair Credit Reporting Act will apply 30 10

11 Denial Process Written notice of denial required Must state reasons for denial Simple statement applicant did not meet the standards for admission not sufficient Must state how and when applicant can contest decision Often must request review within 10 to 14 days 31 V. Challenging Denial of Admission 32 Informal Review 33 Applicant entitled by statute, regulations, and/or due process to review of admission decision Nature of review varies depending on program Public housing = informal hearing NOT grievance procedure NOT grievance procedure Section 8 voucher program = informal review HUD-assisted housing = meeting Must provide reasonable opportunity to prepare rebuttal and to contest basis for decision 11

12 Before hearing Informal Review Request all documents and information from PHA or owner about denial Obtain copy of criminal record 34 Informal Review Rules for informal review Impartial hearing officer required Hearing officer did not make initial decision Superior of hearing officer did not make initial decision Formal rules of evidence do not apply Burden of proof Substantial evidence or preponderance of the evidence PHA burden to show applicant criminal record sufficient to deny admission under statute or regulations Applicant burden to show mitigating circumstances For public housing and voucher program, subject of hearing confined to information in notice 35 Possible arguments Notice deficient Informal Review 36 BUT procedural challenge will not result in admission PHA or owner did not follow ACOP/Admin Plan/tenant selection ect plan ACOP/Admin Plan/tenant selection plan does not conform to federal statute or regulations Mitigating circumstances 12

13 Informal Review PHA or private owner must provide written decision within reasonable period of time after hearing Must state reasons for decision and evidence relied upon 37 Request a hearing Addition to Household Public housing tenant seeking to add family member right to grievance hearing to challenge decision Saxton. Hous. Auth. Of Tacoma, 1 F.3d 881 (9th Cir. 1993). Possible state or local laws offer protections 38 Informal Avenues PHA Board of Commissioners Elected officials Press 39 Contact HUD 13

14 Possible claims Review of PHA decision 42 USC 1983 State or Federal Court 40 State statute provides for judicial review of administrative decisions Review of decision by private owner More difficult to establish cause of action Race discrimination under Fair Housing Act Policies or practices disparate impact on people of color Successful in employment context under Title VII of Civil Rights Act Untested in housing context Follow-up 41 IF YOU HAVE ANY QUESTIONS, PLEASE CONTACT CATHERINE MCKEE ORG (510) EXT

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