A proposed HUD rule could make it easier for people with criminal backgrounds to get housing assistance, but it wouldn’t apply to housing choice vouchers

(NATIONAL) This year, Tulsa County, Oklahoma’s annual homeless census found that of the area’s estimated 1,427 people experiencing homelessness, 56% had a history of incarceration. 

Read the full story on Streetlight here. 

After leaving prison, people often have trouble finding jobs and housing that accept applicants who have been incarcerated, which can lead to homelessness.

Mark Smith, CEO of Housing Solutions in Tulsa, said crimes related to homelessness, like trespassing or violating camping bans, can also add to a person’s criminal record, making it harder for them to obtain housing.

In tight housing markets like Tulsa’s, Smith said landlords can be more selective and often increase restrictions for tenants, including with stricter rules on admitting people with criminal histories.

“It only makes it more challenging for people to then get back on their feet and start to address some of those issues,” Smith said.

A proposed rule from the US Department of Housing and Urban Development (HUD) aims to remove barriers to housing by limiting the use of criminal records in background checks for most federal housing assistance programs.

Smith views HUD’s proposed rule as a starting point to address the disproportionate impact of homelessness and justice involvement on people of color.

“HUD obviously is not involved directly in the criminal justice space, but understanding that housing can be a key way for people to get back on their feet to reenter society and avoid more justice involvement for issues that would not be offenses if people were in housing—that’s one of the biggest things (about the rule),” Smith said.

The rule would apply to public housing, the Section 202 program for older adults and other housing assistance programs—but not the Section 8 housing choice voucher program.

Penelope Schlesinger, lab manager for the Housing and Health Equity Lab at the Yale School of Public Health, is in favor of the proposed rule and its potential impact on justice-involved people seeking housing. But she wondered about what HUD’s oversight of the rule would look like and if the agency would investigate whether public housing authorities and HUD-assisted landlords follow it.

“I don’t know how much it’s going to move the needle,” Schlesinger said, “because you can have a policy in place, but – I mean, who’s going to enforce this policy?”

Read more: Three states have new camping bans this year 

Housing authorities also are wondering how HUD’s enforcement of the rule would work. 

“That’s a concern, that HUD will then come out with another additional protocol that the understaffed, underfunded housing authorities will then have to figure out how to implement in order to verify that the housing authority and everybody is doing everything right,” said David Weber, senior policy analyst for the Public Housing Authorities Directors Association.

When asked how HUD plans to enforce the proposed rule, an agency spokesperson said HUD doesn’t comment on the enforcement of proposed rules, per agency policy.

The proposed rule would limit the use of arrest records to reject applicants

Public housing authorities have to reject applicants for their criminal histories 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.

Aside from those requirements, how public housing agencies evaluate criminal records tends to run the gamut.

A 2020 study in the American Journal of Public Health examined policies for 152 housing authorities in cities with populations of 100,000 or higher. Researchers found 47% of the housing authorities had lookback periods of three years or less for drug-related criminal activity, while 53% had lookback periods of four years or longer. Half of the policies said they consider mitigating circumstances, such as participation in a recovery program.

Read more of our criminal justice coverage 

The new rule would require housing authorities and other federally-assisted landlords to use a lookback period of no longer than three years when screening applicants.

Under the rule, housing authorities and federally-assisted property owners couldn’t base admission decisions on criminal background information that’s irrelevant to safety, health or fitness for tenancy. They also couldn’t make decisions based solely on arrest records.

Currently, public housing authorities and other landlords can deny a household with members that have been involved in drug-related, violent and other criminal activity that could threaten the health and safety of other residents, the property owner or housing authority. The new rule still allows these denials.

Public housing authorities and other HUD-assisted landlords are already required to notify applicants if they’re being denied based on a background check and give them a copy of the criminal record prompting the denial. They’re also required to allow applicants to dispute the accuracy or relevance of a criminal record, but the current regulations don’t specify how long an applicant has to do that.

HUD’s proposed rule would give tenants at least 15 days after a denial to dispute the criminal records, and landlords must consider mitigating circumstances.

Current regulations give public housing authorities and HUD-assisted landlords the option to consider mitigating circumstances without requiring it.

“That had been mostly left to their discretion,” said Marie Claire Tran-Leung, senior staff attorney for the National Housing Law Project and director of its evictions initiative. “A lot of public housing authorities and owners either didn’t let the tenants and applicants know that was available, or even if (tenants) did provide evidence, they didn’t really consider it.”

Read more: Homelessness is affecting more older adults as rents eclipse fixed incomes

HUD’s proposed rule excludes housing choice vouchers

Most of HUD’s rule wouldn’t apply to Section 8 housing choice vouchers “to avoid discouraging owner participation,” the proposed rule says.

Public housing authorities have a limited number of vouchers to provide, and tenants often face lengthy waiting lists to receive them. Voucher holders have a certain amount of time to use the assistance, and many landlords won’t accept them. A 2018 Urban Institute study found that in places without source-of-income laws that require landlords to accept vouchers, properties denied 67% of voucher holders. 

Tran-Leung said excluding voucher landlords is unfair to tenants who may have a voucher but not be able to use it on the private rental market.

“That, in itself, really undermines the purpose of the rule, which is to expand opportunities for people with records,” Tran-Leung said. “At the same time, though, this is a much bigger question within HUD than the criminal history context, and HUD in general seems to need to make sure that when they’re putting tenant protections like this in place that they properly balance both the rights of the tenants and what they’re trying to do with the voucher program.”

Public comments suggest housing authorities are skeptical the rule is needed

In public comments on the rule, service providers were generally optimistic that the rule could improve their clients’ access to housing assistance. Public housing authorities, on the other hand, tended to question the need for the rule and worried the proposed changes would put tenant safety at risk.

“We’re housers, and we need to have responsible tenants,” Weber said. “Yes, housing is key to reentry, but that’s not the primary purpose of housing authorities. The primary purpose of housing authorities is just to provide housing to low-income folks.”

Read more: Texas is banning youth curfews. Here are other ways cities can prevent juvenile crime. 

In public comments on the rule, housing authorities expressed concerns about the proposed lookback period, the inconsistency of not applying the rule to housing choice vouchers and other aspects of the rule.

Weber said he’s heard a broad range of opinions on the rule from members of his organization, with some housing authorities worrying about the effect of limiting the lookback period and use of arrest records for background checks.

“Especially in those places where there is still gang activity, you need every tool you have to identify who those folks are and get them out for the safety of your other residents and your staff,” Weber said. “This could make it harder in some of those cases.”

TLDR: What would HUD’s proposed rule do?

The rule would:

Apply to public housing, Section 8 project-based housing, Section 221(d)(3) below market interest rate program, the Section 202 program for older adults, the Section 811 program for people with disabilities and the Section 236 interest reduction payment program

Require lookback periods of no longer than three years for criminal background checks

Require public housing authorities and federally-assisted landlords to consider mitigating circumstances, like participation in a recovery program, when evaluating tenants

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

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