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Apr 19

Fair Housing and Criminal History Screening

Posted on April 19, 2016 at 7:55 am by Dawn Corrigan

The U.S. Department of Housing and Urban Development (HUD) has designated April as Fair Housing Month, to commemorate the passing of the Fair Housing Act in April 1968, and to recommit to the goal of eliminating housing discrimination and creating equal opportunity in every community.

In light of this anniversary, April is a good time to review Notice PIH 2015-19, which HUD published on November 2, 2015. Entitled “Guidance for Public Housing Agencies (PHAs) and Owners of Federally-Assisted Housing on Excluding the Use of Arrest Records in Housing Decisions,” this notice addresses the housing challenges that people with criminal records face, and offers federally-subsidized housing providers with updated guidance regarding criminal history screening.

Despite its title, the notice actually covers two categories of people: those with arrest records, and those with criminal records (that is, convictions). HUD’s instructions to housing providers are somewhat different in each case.

Regarding people with arrest records, HUD’s instructions are unequivocal: “The purpose of this Notice is to inform PHAs and owners of other federally-assisted housing that arrest records may not be the basis for denying admission, terminating assistance or evicting tenants.”

Acknowledging that an arrest, in and of itself, does not prove a person has engaged in criminal activity, with this Notice HUD reminds federally-assisted housing providers of their duty to safeguard the due process rights of applicants and tenants. Assuming guilt before the applicant or tenant has had the opportunity to pursue remedies through the legal system would circumvent their right to due process of law.

However, although Notice PIH 2015-19 states that an arrest is not a permissible basis for making a housing decision, in a follow up publication published on April 4, 2016, “FAQs: Excluding the Use of Arrest Records in Housing Decisions,” HUD clarified that federally-subsidized housing providers may gather additional information that could lead to an adverse decision HUD would consider legal. Such information might include police reports, witness statements, or court records.

Pensacola Housing policy is to wait for the final disposition of the court before making an adverse decision against applicants or participants with arrest records. However, clients of the Housing Office are reminded that an arrest can have other consequences that could lead to termination from the program.

For example, both HUD, via the Federal Code of Regulations, and Pensacola Housing, in its HCV Program Administrative Plan, have policies concerning extended absences from an assisted unit. Prolonged absences may lead to program termination, especially if the Housing Office was not given timely notice of the absence.

The best policy is always for voucher program participants to maintain good communication with the Housing Office, and to inform the office promptly about any temporary or permanent changes in household composition, or any absences from the unit anticipated to last more than 30 days.

Similarly, though Notice PIH 2015-19 instructs federally-assisted landlords that an arrest record, by itself, cannot be the basis for evicting a tenant, if the circumstances surrounding the arrest led to lease violations, then the landlord may have legal grounds for eviction.

For example, if the tenant, or a guest of the tenant, engaged in criminal activity that threatened other residents’ health, safety, or right to peaceful enjoyment of the premises, then the landlord may proceed toward eviction. The landlord might use documentation such as a police incident report, or statements from residents or staff members who witnessed the activity, as the basis for the adverse decision.

Notice PIH 2015-19 also addresses admission policies for people with conviction records. HUD is a member of the Federal Interagency Reentry Council, a coalition of 20 federal agencies established by Attorney General Eric Holder in 2011 with a mission to:

• Make communities safer by reducing recidivism and victimization;

• Assist those who return from prison and jail in becoming productive citizens; and

• Save taxpayer dollars by lowering the direct and collateral costs of incarceration.

In accordance with this mission, in 2011 and 2012 former HUD Secretary Shawn Donovan encouraged PHAs and owners of HUD-assisted multifamily properties to provide “second chances” to formerly incarcerated individuals and to help ex-offenders gain access to stable housing.

Although Notice PIH 2015-19 doesn’t prohibit federally-assisted housing providers from making adverse decisions based on criminal convictions, it encourages PHAs and landlords to scrutinize their policies to ensure they are reasonable and protect due process and civil rights.

In its April 4, 2016 coverage of the HUD Notice, National Public Radio (NPR) noted that although people with criminal records aren’t a protected class under the Fair Housing Act, blanket policies of refusing to rent to anybody with a criminal record are “de facto discrimination—because of the systemic disparities of the American criminal justice system.” An example of this is the large disparities in the rates at which blacks and whites are arrested and imprisoned for drug offenses, despite the fact that illegal drug usage rates are roughly the same between the two groups.

Currently, Pensacola Housing denies admission, and terminates assistance, for people with felony convictions of drug-related or violent criminal activity. Our lookback period is 5 years.

However, in accordance with Notice PIH 2015-19 we will be reviewing this policy in 2016, and will publish any updates in the next release of our HCV Program Administrative Plan.