Protecting the Fair Housing Rights of People With Criminal Records - - PowerPoint PPT Presentation

Protecting the Fair Housing Rights of People With Criminal Records

Housing & Com m unity Developm ent Netw ork of New Jersey April 19, 2017

The S argent S hriver Center National Center on Poverty Law provides national leadership in advancing laws and policies that secure j ustice to improve the lives and opportunities of people living in poverty.

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PIH/Housing Arrest Record Guidance

HUD Notices PIH 2015-19/H 2015-10 applies to public housing, vouchers, and multifamily housing. https://portal.hud.gov/hudportal/do cuments/huddoc?id=PIH2015-19.pdf https://portal.hud.gov/hudportal/docum ents/huddoc?id=15-10hsgn.pdf HUD also released a subsequent FAQ. http://portal.hud.gov/hudportal/docume nts/huddoc?id=faqexcludearrestrec33116 .pdf

Fair Housing Guidance

This legal opinion from HUD OGC applies to all housing covered by the Fair Housing Act. https://portal.hud.gov/hudportal/do cuments/huddoc?id=HUD_OGCGuidAppF HAStandCR.pdf

HUD OGC on Fair Housing & Criminal Records

Criminal records status is not a protected class. But adverse housing decisions based on a person’s criminal record screening may violate the Fair Housing Act, which prohibits discrimination on the basis of race, national origin, and other protected classes.

• 1. Discriminatory treatment – criminal record as pretext for

race

• 2. Disparate impact – facially neutral policies that have an

unjustified disparate impact on racial minorities

Discriminatory Treatment

Disparate Impact: Step 1

Q1: Is there a disparate impact on race or other protected class?

• Plaintiff’s burden
• Local and state statistics preferred, but HUD says

that national statistics may work

Disparate Impact: Step 1

The Sentencing Project, The Color of Justice: Racial & Ethnic Disparity in State Prisons, 8 (2016), http://www.sentencingproject.org/wp-content/uploads/2016/06/The-Color-of-Justice-Racial-and-Ethnic-Disparity-in-State-Prisons.pdf

Disparate Impact: Step 2 Q2: Is the disparate impact justified? In other words, is it necessary to achieve a substantial, legitimate, and necessary interest?

• Defendant’s burden.
• Proof required; speculation is not enough.
• Defendant will have to show that the prohibited

criminal activity “indicates a demonstrable risk to resident safety and/or property.”

HUD OGC on Fair Housing & Criminal Records

General Principles:

• No arrests without convictions because no proof of

criminal activity

• No blanket bans on convictions because not all indicate

risk to resident safety and/or property

• Even if only some convictions, housing providers must

show demonstrable risk to resident safety and/or property, usually by showing that it considers (1) nature, (2) severity, and (3) recency of criminal activity

Disparate Impact: Step 3

Q3: Is there a less discriminatory alternative?

• Burden back on plaintiff.
• Individualized assessment of relevant mitigating

factors will usually be a less discriminatory alternative to a blanket ban.

Reasonable Accommodation

Persons with disabilities may request a reasonable accommodation. Includes persons who are recovering from addiction and have successfully completed or are undergoing substance abuse treatment.

• But not current users of illegal substances
• But not persons who are a direct threat to health and

safety of others

• But not persons whose tenancy would result in

substantial physical damage to the property of

• thers

PHAs with Better Criminal Records Policies

New York City Housing Authority – Family Reentry (Pilot) Program

• For individuals who have been released in the last 3 years who want

to be reunited with their families currently in public housing

• Out of 85 participants, only 1 had been convicted of a new charge

Housing Authority of New Orleans – New Criminal Record Policy

• Created a 3-person panel to review all applicants with criminal

history

• Added transparency to the process
• Narrowed the types of criminal activity, and moved applicants to

“further review” rather than “denial”

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Benefits of Better Criminal Records Policies

Reuniting Fa m ilies Red ucing Recid iv is m Red ucing Ad m inistra tiv e Tim e & Costs

Marie Claire Tran-Leung

50 E. Washington S t., S uite 500 Chicago IL, 60602 312.263.3830 marielairetran@ povertylaw.org povertylaw.org