Housing restrictions across the country

house-keyThe revolving door between prison and homelessness is an unfortunate and well-documented feature of our criminal justice system. But it is not just those returning from prison who are at risk. Even a conviction for a relatively minor offense – and, in some instances, simply being charged with one – can result in a lifetime of housing insecurity, both for individuals and their families.  These problems are the focus of an excellent new report from the National HIRE Network that examines criminal record-based housing restrictions across the country and describes what is being done by a few jurisdictions and the federal government to put the brakes on the cycle of conviction, homelessness, and recidivism.

Although record-based housing restrictions are implemented by both private and public housing providers, it is public housing restrictions that pose the biggest risk to individuals with criminal records since their statistically lower income makes them more likely to rely on federal subsidies for housing. Attached to those subsidies are a number of federally-mandated restrictions, including a permanent and automatic ban for anyone convicted of producing methamphetamine in public housing or of a sex offense requiring lifetime registration, and permissible eviction followed by a three-year bar (that may be reduced) for drug-related criminal activity.

But, as the report discusses, those federal restrictions are just the beginning. Federal law explicitly permits subsidized housing providers to reject applicants if a household member has engaged in criminal activity that is violent, drug-related, or that “would adversely affect the health, safety, or right to peaceful enjoyment of the premises” and that was committed within a “reasonable time” before applying. That loose standard gives providers enormous discretion to determine who gets in and who gets shut out:

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NC sex offender exclusion law held unconstitutional

ncsealcolorLast week the Fourth Circuit held unconstitutional two key provisions of a North Carolina law that made it a felony for sex offenders to be within 300 feet of certain premises that are “intended primarily for the use, care, or supervision of minors” or on premises where minors “gather for regularly scheduled educational, recreational, or social programs.”

The three-judge panel held that the first provision was overbroad under the First Amendment, while the second was unconstitutionally vague.  Interestingly, the state more or less ceded the First Amendment issue by failing to offer any evidence to meet its burden of proof regarding whether the law advanced the state’s interest in protecting minors.  This despite the fact that the district court warned the state in advance that failing to offer such evidence would be fatal to its defense of the provision.

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Justice Department will enforce limits on landlord background checks

Earlier this year the U.S. Department of Housing and Urban Development (HUD) issued new guidance asserting that housing policies that exclude people with criminal records may violate the non-discrimination provisions of the federal Fair Housing Act (FHA) if they fail to consider the nature, severity, and recency of criminal conduct and if they are not narrowly tailored to protect residents or property.  The Justice Department has taken the first step toward judicial enforcement of this guidance.

On October 18 the Department’s Civil Rights Division filed a Statement of Interest in Fortune Society v. Sandcastle Towers Housing Development, a federal civil rights suit brought in the Eastern District of New York against a Brooklyn provider of low-income housing, claiming that it has a blanket policy of refusing to rent to individuals convicted of any non-traffic crime.  The Statement urges the court to decide the case based on the legal framework set forth in the HUD guidance, which employs a three-step analysis to determine whether criminal history-based housing exclusion policies amount to illegal racial discrimination prohibited by the FHA.

Though the Statement does not address the factual dispute at issue in the case, it adopts HUD’s position that blanket bans based on criminal history are likely to violate the law in failing to require an individualized assessment of applicants, because African-American applicants are more likely to have criminal histories than their white counterparts.

When the HUD guidance was issued, we predicted that it would effectively end the use of criminal background checks to automatically exclude potential renters, and greatly expand housing opportunities for all people with criminal histories, regardless of their race.  The Justice Department’s strong endorsement of the guidance is a hopeful step in that direction.  

We reprint the Department’s press release below:

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HUD limits housing exclusion based on criminal history

hudseal_teal_1On Monday the Department of Housing and Urban Development (HUD) announced that housing policies that exclude people with criminal histories may be illegal under the federal Fair Housing Act (FHA) if the policy fails to consider the nature, severity, and recency of the criminal conduct and is not narrowly tailored to protect residents and property. The new HUD guidance, which applies to private landlords and realtors as well as to public housing authorities (PHAs), stresses that exclusions based solely on arrest records violate the FHA, which prohibits housing discrimination based on race, color, national origin, and other protected classes.[1]

The new guidance should end landlord reliance on electronic background checks to automatically exclude potential renters or purchasers, and greatly expand housing opportunities available to people with criminal histories, whether or not they are members of classes specifically protected by the FHA.  As the New York Times reported on Monday:

Lawyers who represent former prisoners said they expected HUD’s stance to lead landlords to revise their screening policies to avoid litigation. The guidance … could also lead to more and stronger lawsuits against those who continue to deny housing based on criminal history.

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New York governor adopts progressive collateral consequences agenda

Governor Cuomo has accepted all 12 recommendations made by his Council on Community Re-entry and Reintegration. The Council was created in July 2014 and tasked with “identifying barriers formerly incarcerated people face and making recommendations for change.”

Governor Cuomo’s 12 executive actions include:  adoption of anti-discrimination guidance for public housing; adoption of uniform guidelines for evaluating candidates for occupational licensing, and a presumption in favor of granting a license to a qualified applicant; revision of 10 licensing and employment regulations that imposed stricter standards than required by statute;  adoption of a “fair hiring” policy for state employment that will delay a background check until well into the hiring process; and streamlining the process for obtaining certificates of relief from disabilities and certificates of good conduct.

Council Chair Rossana Rosado said, “We accomplished our goals this year but our work is far from over. As we look to address many more of the systemic barriers encountered in re-entry, we will not lose sight of New York’s role as a leader in combating the devastating impact and stigma of second class citizenship that so many of our fellow New Yorkers face, especially men of color.”

The Council will continue to build on this successful first year by promoting a range of educational opportunities to improve chances of employment, addressing barriers to health care, seeking to reduce the potential for extortion from public exposure of criminal records and continuing to seek solutions to housing people with criminal convictions consistent with fairness and public safety.

Minnesota’s sweeping new expungement law takes effect

1932MinnesotaSnowScene640Beginning January 1st, 2015, many Minnesotans will have a meaningful shot at a second chance through criminal records expungement. For decades, many individuals have relied upon (and often languished under) a court’s inherent authority to expunge (or seal) criminal records, but recent Minnesota Supreme Court decisions effectively eviscerated that remedy. Without a legislative act expressly granting judicial authority to seal records held within executive branch agencies, the majority of petitioners were granted orders sealing only court records—leaving numerous publicly accessible criminal records untouched.

The new law, passed with bipartisan support and building upon momentum gained with last year’s Ban the Box for private employers, changes that.   It provides new authority for expunging (sealing) both criminal and juvenile records held by executive branch agencies; requires data mining companies to observe expungements, protects employers and landlords hiring and renting to individuals with expunged records, addresses victimization and housing evictions, and clarifies a number of procedural issues.  The standard for granting expungement remains that under current law, requiring the court to balance private and public interests.

While by no means a silver bullet, this new legislation will help a significant number of Minnesotans currently locked out of employment, housing, licensure, education, and countless other of life opportunities, by providing a true opportunity for a second chance.

Here is an explanation of the new law’s specific provisions. 

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“Arrests as Regulation”

Eisha Jain, a fellow at Georgetown Law Center, has posted on SSRN an important and (to us) alarming article about the extent to which mere arrests are beginning to play the s3984426260_07b0b8ca51ame kind of screening role outside the criminal justice system as convictions. In “Arrests as Regulation,” to be published in the Stanford Law Review in the spring, Jain argues that arrests are increasingly being used systematically as a sorting and screening tool by noncriminal actors (including immigration authorities, landlords, employers, schools and child welfare agencies), not because they are the best tool but because they are easy and inexpensive to access.

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Federal agencies reportedly (mostly) satisfied with their collateral consequences

In 2013, the Justice Department launched its Smart on Crime Initiative, which included a call for federal agencies to review collateral consequences in their own rules and policies, to determine which could be narrowed or amended without jeopardizing public safety. According to an NPR report, the results of that long-anticipated review are now in:

Amy Solomon was appointed by Attorney General Holder to oversee the twenty federal agencies charged with reviewing their regulations and policies for potential changes. She reports that hundreds of regulations were reviewed, but the vast majority were deemed “appropriately tailored for their purposes,” including HUD’s discretionary housing policies. So far, only three agencies have submitted changes.

In assessing the “appropriately tailored” conclusion in the context of HUD housing policies, NPR reporter Monica Haywood tells the story of Maurice Alexander, a 67-year-old man who was turned away from subsidized housing in the District of Columbia based on a six-year-old misdemeanor threat conviction, despite guidance from HUD encouraging property owners and agents “to develop policies and procedures that allow ex-offenders to rejoin the community.” The HUD guidance urges property owners to consider all relevant information when reviewing applications from people with a criminal record, including evidence of rehabilitation and “probability of favorable future conduct.”

Haywood concludes that, “If Alexander’s case is any indication, owners may not be taking HUD’s advice.” Read more

California’s Proposition 47 and collateral consequences: Part II (reentry and restoration of rights)

Prop 47 and restoration of rights 

California’s recently enacted Proposition 47 fundamentally alters the landscape for a handful of lower-level felony offenses in California. As discussed by Jeffery Aaron in a previous post, Prop 47 reclassifies eight offenses as misdemeanors, including simple drug possession offenses and theft of less than $950. Anyone with a qualifying conviction, who also does not have a disqualifying prior, can now petition under Prop 47 to have a felony reclassifiedimages as a misdemeanor. The most significant and immediate relief will be for people who are incarcerated for qualifying low-level felonies and who are now eligible for resentencing and release. Public defender offices around the state are busy filing those petitions.

But, Prop 47 also allows two other populations to petition for reclassification of their qualifying felonies to misdemeanors: People who are under supervision but not incarcerated (on probation, parole, or post-release community supervision), and people whose sentences were completed long ago. This aspect of the new law presents good opportunities for tens of thousands of Californians, and not insignificant implementation challenges.

Simply by reclassifying certain offenses from felonies to misdemeanors, Prop 47 can undo some of the most serious collateral consequences.  It’s clear from our experience providing reentry legal services to thousands of clients over the years that people with felony, as opposed to misdemeanor, convictions face increased barriers to employment, housing, and full and meaningful community reintegration and citizenship. For example, people with a felony conviction, even a decades-old low-level offense, can never serve on a jury in California. For many people, Prop 47 will reverse this lifetime disenfranchisement and move them one step closer to full civic engagement.

But unfortunately, many of the statuary and extra-legal barriers to successful reentry that block people convicted of felonies also apply to people with convictions for misdemeanors and criminal infractions. Consequently, Prop 47 relief alone is not a cure-all for collateral consequences, and for most people it’s not even the most important petition they can file to overcome the statutory disabilities they face.  The following section describes how Prop 47 relief interacts with other California relief mechanisms. Read more

Civil rights lawsuit filed against rental complex for excluding people with a criminal record

The Fortune Society has charged a Queens landlord with civil rights violations for refusing to rent to people with a criminal record. From the New York Times report on the lawsuit filed in federal district court on October 30:

The lawsuit was brought against the owners and manager of the Sand Castle, a rental complex in Far Rockaway, Queens, with more than 900 apartments. The suit is one of the latest efforts in a nationwide push to make it easier to integrate people emerging from prisons back into their communities.

Concern over legal restrictions that hinder former prisoners’ efforts to find jobs and homes, long voiced by advocates of criminal justice reform, has taken on a broader urgency in recent years. Faced with stark fiscal pressures and rising criticism, many state governments have been rethinking practices that led to record levels of incarceration. Nationwide, about 700,000 people a year are currently being released from prison

Bars against former offenders in housing are said to be common around the country, although some landlords apply them only partially — barring sex offenders or arsonists, for example, or allowing those convicted of misdemeanors but not felons. The ability of landlords to easily look up criminal backgrounds on the Internet is believed to have increased the practice.

The Fortune Society’s press release on the suit can be found here.

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