Criminal records can lock people out of housing assistance. HUD’s creating new rules to help

Written By: Mollie Bryant

(NATIONAL) Decades ago, a Clinton-era policy allowed people with criminal records to be denied public housing assistance, like Section 8 vouchers. Today, public housing agencies aren’t required to reject applicants who were formerly incarcerated, except in a few specific cases.

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But the US Department of Housing and Urban Development (HUD) and housing advocates say it’s still common for public housing authorities to reject applicants with criminal histories who deserve housing assistance.

Richard Cho, a HUD senior advisor focused on housing and services, said the agency’s fair housing office has received complaints of people being denied housing assistance due to convictions from 30 years ago. One was denied for being convicted of interfering with public transportation.

“There are instances where there’s no consideration for whether that criminal conviction actually does pose some real and current risk of future criminal activity, but people are just denied,” Cho said.

Last week, HUD said the agency plans to update federal rules on the use of background checks to screen applicants for housing assistance. HUD hopes the to-be-proposed rule change, which Cho expects the agency to publish in the next few months, will reduce unnecessary, overly broad assistance denials for previously incarcerated people.

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“One strike and you’re out” legacy remains

In 1996, a bill signed into law by President Bill Clinton laid the groundwork for “one strike and you’re out” policies that allowed public housing agencies to use criminal background checks to screen applicants.

During the past decade, HUD has advised public housing authorities that criminal records and arrests, in particular, shouldn’t lead to automatic denials. And because incarceration disproportionately affects people of color and with disabilities, some criminal screening policies can violate the Fair Housing Act, which bars discrimination in housing.

Cho said the law and HUD’s regulations have sent an unclear message, causing some public housing agencies to interpret the requirements to mean they should reject any applicant with a criminal history.

A 2016 guidance from HUD’s legal team discouraged the use of arrest records to deny applicants and outlined how certain screening techniques can violate the Fair Housing Act.

“But what we found was even with that guidance,” Cho said, “housing authorities and housing owners continue to deny people.”

The current regulations don’t have firm bans against practices like using any arrest record or decades-old convictions as reasons to deny assistance. That means how public housing agencies evaluate criminal records tends to run the gamut.

Advocates say that most public housing authorities tack their own denial policies onto HUD’s, preventing people from accessing needed assistance and increasing their risk of recidivism and homelessness.

The potential regulations should add consistency to those uneven policies, said Marie Claire Tran-Leung, a senior staff attorney for the National Housing Law Project.

“The hope is that through regulation, (HUD will impose) more of a mandate on public housing authorities and project-based owners, as well,” she said.

[ Read more: Five ways communities can use jails less ]

Tran-Leung, who also directs the National Housing Law Project’s eviction initiative, hopes the proposed rules address evictions from public housing due to justice involvement.

“It’s often the only housing that families can afford so eviction has a lot of consequences, like a ripple effect on families,” she said. “Sometimes families are faced with difficult decisions of staying in the unit or kicking somebody out.”

In addition to the anticipated rule changes, HUD is developing new training on criminal record screenings for public housing authorities and housing providers. Cho hopes these updates will help people no longer be viewed through the lens of their past justice involvement.

“Instead of their being judged by the worst thing they’ve ever done, they actually could be assessed on the total circumstances, their whole life, really treating people like people,” he said.

How Oklahoma’s state housing authority screens criminal records

Public housing authorities have to reject applicants in a few cases. People who are required to register as sex offenders for life and people who have been convicted of making methamphetamine on federally-assisted property are ineligible for federal housing assistance.

The Oklahoma Housing Finance Agency (OHFA) screens each of an applicants’ household members who are 18 or older. OHFA Executive Director Deborah Jenkins said the agency’s background checks usually concentrate on drug-related and violent offenses.

“We’re not really focused on any other type of criminal activity unless it somehow impacts the health or safety of those living in the complex with them,” Jenkins said.

OHFA is currently reviewing its background screening policies for potential changes, and Jenkins said the housing authority will likely adopt HUD’s anticipated rule updates.

[ Read more: When landlords won’t deal with mold, renters have few options ]

Like most public housing agencies, OHFA’s eligibility policies add a few restrictions to HUD’s. OHFA rejects people who are required to register as a sex offender, even if it’s not a lifetime registration. The agency also denies people who have received meth-related convictions for 10 years from the date of the conviction.

Otherwise, Jenkins said, OHFA’s screenings examine criminal histories within three years of an application. She said the agency is considering if that “lookback” period should be shorter.

For applicants with drug convictions that don’t involve meth, the agency may consider other circumstances, such as if they’re in a treatment program. If OHFA determines a household member is ineligible for assistance due to their criminal history, the housing authority may approve assistance to the family but require the ineligible person not live in the home.

What discrimination based on criminal histories can look like

An estimated 1 in 3 Americans has a criminal record. Misdemeanors alone can affect people’s access to welfare benefits and public housing. People who have been incarcerated are more likely to experience homelessness and unemployment.

Last year, the Fair Housing Center for Rights and Research, which serves Cuyahoga and Lorain counties in Ohio, received 500 housing discrimination complaints. About 60 of those involved criminal record screenings, a slight increase over last year that Tanesha Hunter, director of education and outreach for the nonprofit, attributes to resources that have helped renters learn about their rights.

Hunter said if a property bans all renters with a criminal history, it’s breaking the Fair Housing Act. Targeting applicants of color with background checks without requiring them for white applicants would also break the law.

As it is, such violations are underreported, she said.

“What folks may not realize is that when those who have been impacted by the criminal legal system are trying to find housing and get denied, that can actually increase their risk for turning back to the prison system,” Hunter said. “So in general, when folks are housed, our communities are safer.”

Connect with resources mentioned in this story

For renters: Learn more about your rights with the Fair Housing Center for Rights and Research’s digital toolkit and online course

For housing providers: Read HUD’s 2022 guidance on using criminal records to screen renters

In Ohio: Learn more about the Fair Housing Center for Rights and Research’s services

In Oklahoma: Learn more about Oklahoma Housing Finance Agency’s rental assistance programs

Learn more about the National Housing Law Project’s initiatives

Contact Streetlight editor Mollie Bryant at 405-990-0988 or bryant@streetlightnews.org. Follow her reporting by joining our newsletter.

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