HOUSING APPLICANTS WITH A CRIMINAL/SUBSTANCE ABUSE HISTORY (Prepared by Mac McCreight, Greater Boston Legal Services, Boston, MA --updated 9/13)

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1 HOUSING APPLICANTS WITH A CRIMINAL/SUBSTANCE ABUSE HISTORY (Prepared by Mac McCreight, Greater Boston Legal Services, Boston, MA --updated 9/13) HUD guidelines generally bar an assisted housing agency from automatically excluding an applicant based on a criminal record, past use of illegal drugs, or abuse of alcohol. Instead, the agency is supposed to look at whether the negative behavior, when combined with evidence of rehabilitation and subsequent good conduct, could still lead to disqualification. However, there are number of persons who can be automatically barred from federal housing programs, either permanently or for a limited period of time. A. GROUNDS FOR DENIAL FOR FEDERALLY ASSISTED HOUSING 1. Mandatory Denial of Current Illegal Drug Users or Persons Having a Pattern of Abuse of Alcohol or Illegal Drugs Applicants must be denied housing: If a housing agency determines that an applicant is currently using illegal drugs, or If a housing agency determines that an applicant s history of illegal drug use or abuse of alcohol provides reasonable cause to believe that s/he may interfere with the rights of other tenants. If there is a history of drug use or alcohol abuse, in making its decision to accept or deny the applicant, the housing agency must consider such mitigating factors as: The applicant is no longer using alcohol or illegal substances; The applicant is participating in or has successfully completed a supervised drug or alcohol rehabilitation program, or The applicant has otherwise been rehabilitated successfully. The negative behavior and the mitigating factors must be considered in the context of the likelihood of future conduct affecting another tenant s health, safety, or welfare including: Interfering with or threatening the rights of others, or Disturbing other tenants rights to security and peaceful enjoyment of housing. Cites: 42 U.S.C (b) --24 CFR (a)(2), (b) federal public housing. 24 CFR (a)(1)(ii)(A, B) (drugs), (a)(3) (alcohol) Section 8 vouchers. 24 CFR (a)(1)(iii), (4) Section 8 moderate rehabilitation. 24 CFR 5.854(b)(1) (drugs), 24 CFR (alcohol) Section 8 project-based. 1

2 2. Eviction from Federally Assisted Housing for Drug-Related Criminal Activity 3 Year Bar, Can Be Waived Tenants evicted from federally assisted housing for drug-related criminal activity are generally ineligible for all federally assisted housing for a 3-year period from the time of eviction. (For the public housing or HUD multi-family programs, the owner or PHA may elect to have a longer minimum period of disqualification, so long as it is reasonable. Drug-related criminal activity is defined as: The manufacture, sale, or distribution of a controlled substance; The possession with intent to manufacture, sell, or distribute a controlled substance, or The use or possession where it was not the intent to manufacture, distribute, or sell the substance. Ineligibility is for three (3) years from the date of eviction, unless: The tenant successfully completes an approved supervised drug rehabilitation program, or The circumstances for the eviction no longer exist. HUD has said that this would be presumed to be true if the person involved with the illegal activity has passed away or is incarcerated (but not necessarily just if s/he is no longer part of the household). Cites: 42 U.S.C (a) --24 CFR (c)(3)(ii), (a)(1) federal public housing. 24 CFR (a)(1)(i) Section 8 vouchers. 24 CFR (a)(1)(i) Section 8 moderate rehabilitation. 24 CFR 5.852(d), 5.854(a) project-based Section Eviction for Conviction of Manufacture or Production of Methamphetamine (Speed) Permanent Bar Persons convicted of manufacturing or producing methamphetamine (speed) while residing in federally assisted housing for this reason are permanently ineligible for federal public housing, Section 8 tenant-based subsidies, or the Section 8 moderate rehabilitation program. This permanent bar does not apply, however, to other project-based Section 8 2

3 programs or the HUD multifamily housing program. Cites: 42 U.S.C. 1437n(f) 24 CFR (a)(3) federal public housing. 24 CFR (a)(1)(ii)(C) Section 8 vouchers. 24 CFR (a)(1)(ii) Section 8 moderate rehabilitation. 4. Persons Subject to Life-Time Registration Requirements as Sex Offenders Permanent Bar Under QHWRA, the federal public housing, Section 8 voucher, Section 8 moderate rehabilitation, and Section 8 project-based housing programs are required to prohibit admission to any household that includes an individual subject to a lifetime registration requirement under a state sex-offender registration program. The PHA or owner can check to see if the individual is subject to the requirement either: (a) in the state where the housing is located; or (b) in other states where the individual is known to have resided. A critical question is whether the registration requirement is life-time or not; in some jurisdictions, certain sex offenses impose registration for lesser periods of time. Both state and federal requirements (see below) apply. There has been some litigation as well regarding whether persons who were erroneously admitted or who had a post-admission enhancement of state registration periods can subsequently be terminated. See Miller v. McCormick, 605 F.Supp.2d 296 (D.Me. 2009); Perkins-Bey v. Hous. Auth. of St. Louis, 2011 WL (E.D.Mo., 3/14/11); Bonseiro v. NYC Dept. of HPD, 2012, WL (N.Y.); HA of Hartford v. Brothers, 2013 WL (Conn.) In the fall of 2009, HUD issued a combined notice for its public housing, Section 8 voucher, and multifamily assisted housing programs regarding sex offenders, directing PHAs and owners to use the Dru Sjodin sex offender data base as part of screening, and authorizing periodic re-screening, as well as possible denial or termination/eviction if persons were wrongly admitted or made false statements regarding eligibility. PHAs and owners are required to ask what states applicants and additions to the household previously resided in, and document that they have made inquiries as to life-time registered sex offender status in those states. There has been some litigation about whether PHAs can rely on the Dru Sjodin or state/local sex offender registry databases in taking adverse action. See Henley v. HANO, 2013 WL (E.D. La.) (whether registered sex offender was unauthorized occupant of Section 8 voucher household). Cites: 42 U.S.C CFR (a)(4) federal public housing 24 CFR (a)(2)(i) Section 8 vouchers. 24 CFR (a)(2) Section 8 moderate rehabilitation. 24 CFR project-based Section 8. 3

4 --PIH Notice and /Housing Notice U.S.C (a)(3) (definitions of criminal offense against a victim who is a minor, sexual violent offense, or sexually violent predator ) 42 U.S.C (b-d) (imposes a life-time registration requirement if a person has two or more convictions for a criminal offense against a victim who is a minor, or for a sexual violent offense, or as a sexually violent predator, or has been convicted of aggravated sexual abuse, or has been determined to be a sexually violent predator). 5. General Criminal Activity Not Related To Current Illegal Drug Use or Past Eviction from Federally Assisted Housing for Drug-Related Criminal Activity PHAs and owners may also consider evidence of criminal activity not related to current illegal drug use or past eviction from assisted housing for drug-related criminal activity. Permissive prohibitions are for: drug-related criminal activity (this is defined as the illegal manufacture, sale, distribution, or use of a drug, or the possession of a drug with intent to manufacture, sell, distribute or use the drug; drug is defined as a controlled substance under 21 U.S.C. 802); violent criminal activity (this is defined as criminal activity that has as one of its elements the use, attempted use, or threatened use of physical force substantial enough to cause, or be reasonably likely to cause, severe bodily injury or property damage); other criminal activity which may threaten the health, safety, or right to peaceful enjoyment of the premises by other residents or person residing in the immediate vicinity; or other criminal activities which may threaten the health or safety of the owner, property management staff, or persons performing a PHA contract administration function.. The denial may be for such activity occurring a reasonable time preceding the date when the applicant household would be admitted. HUD does not define what this time period is.. See Cardenas v. AIMCO, 2012 WL (W.D. Tex.). It used to be (prior to 2001) that only violent or drug-related criminal activity was a basis for denial of admission to the Section 8 voucher program (and, where the drug-related activity was simple possession, only activity within the prior 12 months would count). This is no longer so. Conviction of a crime is not required for a denial for housing. Without a conviction, there must be independent evidence of illegal activity. The standard for the PHA or owner is not beyond a reasonable doubt, as it would be in a criminal trial; instead, the PHA or owner may deny admission if it finds that it was more likely than not that the criminal activity took place. 4

5 Wrongful activity committed by a juvenile (under federal law, a person under the age of 18) is not regarded as criminal activity unless the juvenile has been adjudicated as an adult under state or local law. However, if a PHA or owner is aware of the wrongful activity, it may try to use it to show that a household member is likely to disturb neighbors or the like i.e., it will not be a denial based on the criminal activity per se, but on whether the applicant s household will be suitable. Other than the automatic or permanent bars on admission mentioned above for particular types of criminal activity, with other criminal convictions of any kind, a housing agency must consider the time, nature, and extent of the applicant s conduct and factors such as rehabilitation, employment, and participation in social service programs. All of these factors must be considered, and the fact of having a serious criminal history does not always result in a denial if the other factors tip in the applicant s favor. Ultimately, judgment calls are left in the PHA s or owner s discretion. Cites: 42 U.S.C (c) --24 CFR (definitions for all federal housing programs) --24 CFR (c), (d) federal public housing. 24 CFR (h), (a)(2)(ii) Section 8 vouchers. 24 CFR (b)(1-3) Section 8 moderate rehabilitation. 24 CFR 5.852(a-c), 5.855(a-c) project based Section 8. B. CRIMINAL RECORDS AVAILABLE TO ASSISTED HOUSING AGENCIES 1. Access to Criminal Records Under Federal Law. By federal statute, certain criminal conviction records are to be available to all PHAs for screening applicants for, and evaluating the continued eligibility of tenants in, federal public housing, Section 8 tenant-based subsidies, and the Section 8 mod rehab program. In addition, owners of HUD multi-family housing can get access to this information through contracting and payment arrangements with a PHA. Agencies which must provide the information include the National Crime Information Center, state and local police departments, and other law enforcement agencies. Access is limited to adult records (i.e., those where the person is age 18 and older or has been adjudicated as an adult under federal, state or local law). A record must be kept confidential and destroyed once screening (and any related review) is completed. No adverse action can be taken based on a criminal record (or a sex offender record) until the applicant or tenant has a copy of the record, and an opportunity to dispute the accuracy and relevance of the information. See Barfield v. Plano HA, 2012 WL (E.D. Tex.); Bey v. Richmond RHA, 2013 WL (E.D. Va.) It is clear that the cost of obtaining criminal or 5

6 sex offender records may not be passed on to the applicant. Cites: --42 U.S.C. 1437d(q) --24 CFR (all federal housing programs) 2. Other Access to Criminal Records PHAs and owners may have access to criminal records by other means as a matter of state law, or through checking police blotters/arrest records, or through using credit reporting services which may gather information on arrests. Access through these other means is not covered by the above federal protections, but may be subject to existing state/local law protections or laws concerning credit reporting services. C. SUGGESTED STEPS FOR AN APPLICANT WITH A CRIMINAL RECORD. 1. Get What the PHA or Owner Has About Your Criminal Record: Ask the PHA or owner for a copy of any information it has received about the criminal record. An applicant has a right to review this material. If the PHA or owner is relying on federal law for access to your criminal history, the record should be sent to you with the notice of proposed denial. 2. Get Your Criminal Record Before You re Reached on the Waiting List: Well in advance of getting to the top of waiting lists, the applicant should get his/her own criminal record, under whatever means is possible under state/local law, and take steps to clear up any cases that can be resolved, corrected, or closed. While the applicant has a right to get his/her own criminal record information, it may not match what the PHA has. The applicant should not rely on his own criminal record or show it to the PHA, as it may result in divulging damaging information to the PHA that the PHA didn t otherwise know about. 3. Don t Make False Statements About Criminal History In the Application, But If You re Not Certain About Your Criminal History, Say So: If the applicant is asked, in the application, about a criminal record, and is not certain about its disposition/status (for example, if there was a conviction or if the crime could be considered a felony or a basis for life-time registration status as a sex offender), the applicant should say I don t know or I m not sure. A knowing false statement may be an independent basis for denial of admission, and/or for subsequent eviction or termination if it is discovered by the PHA or owner. See Chapter 4, HUD Handbook ; see also PIH Notice and Housing Notice (There may be a time bar on such action if the owner, in the exercise of due diligence, should have independently discovered such information and the ordinary statute of limitations for misrepresentation has elapsed.) 4. Check Information Against Court Records, and Correct Mistakes: Check the accuracy of the criminal record information that the PHA has against the court docket. If there are discrepancies, and rectifying the discrepancy will help your client, ask the probation office of the local court to correct the record; if they refuse, ask any state or local agency with control over the record to 6

7 order correction. Bring the discrepancies, if they are helpful to the applicant, to the attention of the PHA. 5. Clear Up Any Defaults: If there are defaults in criminal cases, have the applicant talk to a criminal attorney or public defender to assess any risk in clearing them up. The court-appointed attorney for the original case may be willing to intervene. There may be local programs to assist applicants with this (particularly since such defaults may serve as a basis for denial or termination of public benefits), and a number of local/state courts have established an attorney of the day program which may be of help. 6. Think About Where You Should Apply Based on Your Record: Review the criminal record to determine the programs for which the applicant might be qualified. Concentrate on those programs. For example, the applicant might face an automatic 3-year or permanent bar from the federal public housing or Section 8 programs, but still be eligible for a McKinney program such as Shelter Plus Care or Supportive Housing, or for state or locally funded housing programs. Similarly, a PHA may be more concerned about criminal history for someone who s been admitted to its public housing program than for a supportive housing program designed for exoffenders or the chronically homeless (such as a Section 8 Project-Based Voucher or Mod Rehab SRO program). 7. Think About the Elements of the Crime and the Federal Standards: Check the elements of the crime for the statute under which the applicant was convicted. For the voucher program, for example, it may be a case where the crime is not considered violent criminal activity, because force was not a necessary element of the offense, or the force was not substantial enough to cause or be reasonably likely to cause serious bodily injury or property damage. 8. Considerations If You re on Probation/Parole or Awaiting Trial: An applicant on probation or parole or with a case continued without a finding of guilt should ask the probation/parole officer to write a favorable recommendation, or ask her or his attorney to request the court to shorten the period that the action remains open or is under probation. Sometimes a public defender, with the cooperation of the district attorney and the judge s office, may be able to get a charge revised and revoked. While this is being done, you may request that the housing agency hold the record open on any pending appeal. Where an applicant is awaiting trial on a criminal case, ask that the housing agency not act on the application until the case is over, so the applicant s rights in the criminal case are not prejudiced. (If, however, it is your position that the criminal charge is so minor that it should not affect eligibility even if your client is found guilty, you could ask the PHA or owner to make a decision now, and not wait until the criminal case is finally disposed of.) In addition, some criminal statutes provide that for first time convictions with probation, once probation is successfully completed, the conviction cannot be used for any subsequent disqualification. There may be provisions for sealing or expungement of records after a period of time. Use the tools that are available to you and your client under state/local law. 9. Deciding Whether to Remain Silent If There Is A Pending Criminal Case; Effect of Plea 7

8 Bargains: Where there is a pending criminal case, the applicant must often make a difficult judgment call whether to talk about the criminal case with the PHA or to remain silent. By talking about the criminal case with the PHA, the applicant waives 5 th Amendment rights to remain silent and avoid self-incrimination. It is best, therefore, for the applicant to discuss these issues with his/her criminal attorney, so that the strategy for the admissions case is consistent with the strategy for the criminal case. It is also important for the criminal attorney to be informed about the consequences of particular dispositions or plea arrangements on the applicant s eligibility for housing assistance. An applicant may, for example, be counseled by a public defender to accept a plea arrangement so that s/he will not have to serve any time, but by entering into the plea arrangement, s/he may have admitted to sufficient facts to establish grounds for denial. Applicants should have the opportunity to explain why they entered into plea arrangements, and to deny that they did the wrongful acts, but PHA hearing officers will often be skeptical in listening to these claims absent corroborative evidence that the applicant did not engage in criminal activity. The applicant may ask the PHA to hold off on issuing a decision until the criminal matter has come to a conclusion, so that s/he is not left facing the dilemma of whether to talk and waive 5 th Amendment rights or to not talk and have the failure to rebut the allegations used against him/her; there is nothing, however, that requires the PHA to do this. 10. Present Any Mitigating/Extenuating Circumstances: Pull together the best information that exists for an applicant: Relaying mitigating or extenuating circumstances such as the relationship between the criminal history and a past drug addiction. Verifying participation in or completion of a drug rehabilitation program. Providing information about new medications taken to address a prior problem with violent outbursts. Demonstrating rehabilitation and favorable future prospects from counselors and social service agencies to meet concerns about past activity must be considered for public housing applicants and for disabled applicants for subsidized housing. 4. A FEW CRIMINAL HISTORY RELATED QUESTIONS Q.1 I m working with an applicant who lived outside of our state for part of the last five years. She s been asked to get her criminal records from the various states and counties where she resided. A number of these places charge for fingerprints or charge other fees. Can the PHA require this? A.1 If your client is applying for federal housing programs, the answer is probably yes. If your client is only applying for state or local housing programs, it may depend on whether it is legal, under the law of the state/county where your client lived, for a PHA to demand 8

9 this information. In either event, though, the PHA should pay the costs and fees associated with getting this information, or should reimburse your client. Q.2 My client got a Section 8 voucher from the ABC PHA after going through a criminal history screening there he had some criminal history, but they were convinced it was so old or not serious enough to lead to denial. Now he s trying to lease up with the Section 8 in the town of DEF, and their local PHA is putting his request on hold until they run their own criminal history check. Can they do this? A.2 This is a tricky question. The Section 8 portability regulations make clear that a PHA may not delay processing a portability request except for the purpose of re-verifying income eligibility. Therefore, the PHA may not delay the request in order to run a criminal history check. (HUD has issued notices to PHAs on this.) However, if the criminal history information comes back after the client has leased up, and the PHA thinks it would have grounds to deny your client, it can then move to terminate the Section 8. This is far worse than simply failing to process the portability request, because it means the client will be ineligible to lease up anywhere. You need to use your judgment in these cases. If you know, from past experience, that a PHA is likely to deny/terminate Section 8 voucher holders with certain types of criminal histories, and the denial/termination would otherwise be legal under HUD regulations, then you probably don t want to refer clients with such histories to those PHAs. Q3. An applicant that I m working with has a number of default warrants, including some for violation of probation (she failed to show up for certain court appointments). The PHA has told me that they don t want to accept her, even though the charges are fairly minor, because if it came out in the newspapers, they d be seen as harboring a fugitive from justice. Is this legitimate? A3. Another tricky question. The PHA s reasoning does not seem like a legitimate basis for denial. The federal statute and regulations, however, provide that tenants in federal public housing or in the Section 8 voucher, moderate rehabilitation, or project-based programs can be evicted or have their assistance terminated for fleeing to avoid prosecution or incarceration or violations of probation or parole. It is probably wise to clean up these warrants before your client is admitted. Your client may have independent reasons that she d want to clear up these defaults, as they can also serve as a basis for denial of welfare or Food Stamp benefits. You should find out if your client was assigned an attorney on the criminal case and consult with this person on the likely outcome of surrendering on the default warrant. You should note that for this provision, unlike the other federal criminal provisions, it has to be the tenant (i.e., not a household member) who was in breach of probation or parole to trigger this. 9