Category: Administrative law

A closer look at Indiana’s expungement law

More than four years ago, Indiana’s then-Governor Mike Pence signed into law what was at the time perhaps the Nation’s most comprehensive and elaborate scheme for restoring rights and status after conviction.  In the fall of 2014, as one of CCRC’s very first posts, Margaret Love published her interview with the legislator primarily responsible for its enactment, in which he shared details of his successful legislative strategy.  Later posts on this site reported on judicial interpretation of the law.  Since that time, a number of other states have enacted broad record-closing laws, including Louisiana, Missouri, Nevada, New York, and most recently Illinois. We have been impressed by the evident enthusiasm for Indiana’s “expungement” law within the state, from the courts, the bar, the advocacy community, and even from prosecutors.  So we thought it might be both interesting and useful to take a closer look at how the Indiana law has been interpreted and administered, how many people have taken advantage of it, and how effective it has been in facilitating opportunities for individuals with a criminal record, particularly in the workforce.  We also wanted to see what light this might shed on what has brought to the forefront of reform so many politically-conservative states.  Spoiler alert: the Chamber of Commerce was one of the strongest proponents of the law. We expect to be able to post our account of the Indiana expungement law shortly after Labor Day.  In the meantime, we thought it might be useful to reprint our 2014 interview with former Rep. Jud McMillan, which has been among our most viewed posts. Indiana’s new expungement law the product of “many, many compromises” In May of 2013, Indiana Governor Mike Pence signed into law what is possibly the most comprehensive and forward-looking restoration of rights statute ever enacted in this country.  Under the new law, courts are empowered to “expunge” most criminal records, after waiting periods keyed to the seriousness of the offense.  The effect of an expungement order varies to some extent according to the nature of the crime, but its core concept is to restore rights and eliminate discrimination based on criminal record in the workplace and elsewhere.  This new law has already resulted in relief for hundreds of individuals, due in large part to the proactive approach of the state courts in facilitating pro se representation. We recently had a chance to talk to the person primarily responsible for shepherding this law through the Indiana legislature, and his experience should be instructive to reform advocates in other states.  Jud McMillin, a conservative former prosecutor who chairs the House Committee on Courts and Criminal Code, might once have been regarded as a rather unusual champion of this unique and progressive legislation.  But in an age of bipartisan support for criminal justice reform, apparently anything can happen.   Rep. McMillin told us how he was able to persuade his colleagues in the legislature by careful groundwork, and overcome opposition from prosecutors and courts by making what he described as “many, many compromises.” One of the most important of those compromises was limiting use of criminal records rather than limiting public access to them, at least in the case of more serious offenses. Before letting Rep. McMillan describe in his own words how he secured passage of this relief scheme, here is a brief description of the law’s most salient features. (A more detailed description can be found here.)     All criminal records (except convictions involving serious violence, public corruption, and sexual offenses) are eligible for expungement from the court of conviction, after waiting periods ranging from one year (for non-conviction records) to ten years (for the most serious eligible felonies). After the court has issued an expungement order, records not resulting in conviction and records of misdemeanors and minor felonies are automatically sealed.  After a record is sealed, even a prosecutor may not access it without a court order. Expunged records of more serious convictions “remain public,” although they must be “clearly and visibly marked or identified as being expunged.”  However, all expungement orders similarly limit the use to which a criminal record can be put, as described below. Expungement may be granted by the court without a hearing unless the prosecutor objects.  Those filing for expungement of a conviction must pay the filing fees required for filing a civil action ($141), and this requirement may not be waived. Defendants are not permitted to waive the right to seek expungement as part of a plea agreement. A petitioner may seek to expunge more than one conviction at the same time, but may be granted expungement only once in his or her lifetime. If the first petition fails, there is a three-year waiting period before a person may reapply, and the only convictions expungeable are those in the original petition. It is unlawful discrimination for any person to refuse to employ or license a person because of a conviction or arrest record that has been expunged or sealed, and a person may not be questioned about a previous criminal record except in terms that exclude expunged convictions or arrests. Expunged convictions are not admissible as evidence of negligence in a civil action against a person who relied on the expungement order, and they may not be reported by credit reporting companies. The Attorney General may enforce the provisions relating to credit reporting companies through injunction and fines, and a private individual injured by a violation of these sections may recover damages, court costs and attorney fees. The Indiana courts have published a detailed explanation of the law and sample petitions for expungement that are tailored to the particular categories of eligible cases, to enable a person to seeking expungement without hiring a lawyer. * * * * * * * * * Here is our interview with Rep. McMillin: How did you get interested in the subject of criminal records? As a former prosecutor, and now someone who does some criminal defense work while serving in the legislature, I think I have seen the justice system from several sides.  Also, as a fiscal conservative it just makes practical sense to me that when somebody has served their court-imposed sentence there has to be a pathway back into society for them. Without this, we can’t expect them to become productive members of society.  The Indiana Constitution requires our criminal justice system to be based upon the principles of reformation and not vindication. I firmly believe that our expungement law moves substantially in that direction. How did you build support for the concept of expungement among your colleagues in the legislature? This was a process that played out over several years.  We proceeded in incremental steps, building on existing law and gaining supporters from various constituencies. We started by expanding an existing provision of the Indiana code that allowed courts to reduce a minor felony to a misdemeanor upon completion of the sentence, to allow people to come back after a waiting period to get the felony reduced, as long as they had no further charges.  I thought if I could just start the conversation with a simple bill that did not involve more serious offenses I would be able to get people to see how detrimental having a felony conviction can be for someone who wants to get back into the work force.  I took a practical approach, and was able to persuade some of my fiscally conservative colleagues that there can be economic benefits through the reduction of recidivism.  After getting that initial language enacted I came back the next session to work on full expungement, and found that there was support on both sides of the aisle as many people were able to see the benefits. There were those who had general objections to the legislation, some for ideological reasons, some for practical reasons, but we were able to overcome all of them with solid logic when it came to debating this issue.  We were even able to win over some of the prosecutors, enough that the opposition of the holdouts didn’t derail the legislation’s chances.  One of the most effective supporters was the Indianapolis Chamber of Commerce, which helped me convince people that expungement could be beneficial to business owners and economy as a whole. Obviously there were a lot of compromises we had to make, and it’s not hard to see what some of them were, like the lifetime limit to one expungement, the prohibition on seeking expungement of offenses committed after a petition has been denied, and the filing fee that is hefty for many.  Certain violent and sexual offenses had to be excluded from coverage or it would have torpedoed the effort before we got it off the ground. It was sometimes difficult to give up some things just to get the bill passed, while still ending up with a law that actually made a difference. We were able to resist several offers to compromise that would have simply gutted the bill.  We had to keep our eye on the core purposes of the legislation, which are to restore rights and give people a fair chance in the workplace and elsewhere.  We will see how the law works.  If some of the compromises we made need to be revisited, we can do that.  In fact, in the 2014 session we made quite a number of reasonably minor adjustments in the law, notably to permit more government entities including licensing agencies access to sealed records. How were you able to defuse opposition from the prosecutors? Because I anticipated the prosecutors would be the main opponents, I reached out to them early in the process, and worked with the ones who were willing to consider the concept. Here again I took a practical view, asking if they really wanted people they had prosecuted to return to the system, or whether they wanted them to succeed.  I had to persuade them that expunging a record did not reflect badly on the prosecution or create problems for law enforcement.  While their ideas were substantially different than mine, I felt it was important to incorporate many of them, and so we were able to reach a middle ground. That is how we came to have a multi-tiered system, with limits on sealing for more serious offenses, a role for prosecutors in the expungement process, the possibility of unsealing in the event of a new crime, and a lifetime limit of one expungement.   This is not to say that prosecutors across Indiana ended up supporting expungement. In fact many of them remain its most ardent opponents. However, asking for their input early and making them a part of the process instead of a constant and united opponent was instrumental in getting the job done. What about other sources of opposition or support? Many judges objected and some of the clerks were opposed to the additional work that the legislation would make for them.  The credit reporting companies were also not happy but they did not mount any substantial resistance.  As noted, the business community was surprisingly supportive.  Many employers liked the protections afforded them in the bill — including not being held responsible for information there were not permitted to have.  Governor Pence was a supporter from the beginning.  Early in his term he adopted a slogan that “Indiana should be the worst place to commit a crime, but the best place to get a second chance.” This slogan fit perfectly into the concept of this legislation. How has the law been working in its first year? Once the law was passed, the courts took a proactive role in carrying out their new responsibilities.  They took it upon themselves to develop a variety of forms for different kinds of cases, and publish them on a website so that people could apply for expungement without the need to hire a lawyer.   Legal services organizations have been spreading the word around the state, and are helping to clarify what appears to have been some initial confusion because of the law’s complexity.  There have been a few kinks, and as I said we have already passed several bills to make slight adjustments mostly of a procedural nature.  I anticipate that there will more a few more tweaks this year.  Thankfully the concept has been received wonderfully by the public so making the changes at this point is relatively easy and meets little resistance. Why is the relief called “expungement” if many records remain open to the public? I get this question frequently, and yes I agree it is a bit confusing to use a term that ordinarily implies some limits on access.  The original concept was that an expungement order would seal all records except for law enforcement purposes.  But that was not an approach that I could sell, in or out of the legislature, especially for more serious offenses.  As the bill ended up with tiered approaches, there really was not a single term that fit the whole — and as we studied what other states do, I am not even sure the term “expungement” has a single meaning. Also, even if a record is actually destroyed, it may be impossible to ever remove all evidence of it.   In the end, I was convinced that “expungement” was the best term to use to ensure that people who need relief would take advantage of it.  There’s no doubt that most people believe that you only get a second chance if your record is clear in a literal sense.  But even where a record is sealed, our law does not permit people to deny that they were arrested or convicted; rather, they cannot be asked about a record that has been expunged.  In this way we were able to reconcile keeping the record open with the core concept of restoring rights.  By limiting the use of a record we hope to clear away the cloud that these individuals have been living under. What advice do you have for legislators in other states and for advocates who want to try to develop a comprehensive scheme like Indiana’s? To begin with, to pass a bill like this you have to have someone in a leadership role who really understands the inside and out of the criminal justice system, and who is willing to live and breathe this concept through the entire legislative process and see it all the way through to completion. You have to start the conversation very early, and learn patience. It takes a long time to convince people who may only have a passing interest (or no real interest at all) in something like this, and no personal experience with the justice system, to understand why it is a good idea and why they should take the perceived risk of supporting this concept. In the political world it is very easy for those who oppose this concept to get their hooks into legislators early by telling them that this is “soft on crime” and that it will damage them politically to support it. In order to combat this I think it is necessary for the legislator who is carrying the bill to spend one-on-one time sitting down with other legislators. While advocates are important and certainly should be recruited, I find that nothing is as persuasive as the legislators themselves discussing the concept.  The other really important thing is to secure the support of the business community.   You should also find examples of individuals who have been battling for years if not decades to be successful in society while carrying the weight of a criminal record. Their anecdotal testimony can be extremely powerful. I also recommend reaching out to those you anticipate will oppose the bill and asking them to help with the bill. If they are not on the inside helping they will be on the outside opposing. Even if the “help” they are giving is not always consistent with the concept you are trying to advance, you are still much better off having those people working with you on developing language than trying to kill any language that you come up with. It is helpful to defuse opposition if you couch the conversation in terms of the social and economic benefit to society rather than always talking about the benefit to the individuals who might seek expungement. It is very important to make people see that while our human compassion should want to give people a second chance, our duty is to be fiscally responsible to our constituents, and that for numerous reasons (recidivism, costs of incarceration, costs of providing welfare, public safety, etc.) this concept is the right one for all of our constituents. In the end, you really do have to be willing to compromise, recognizing that if you get the key concepts enacted you can always come back later and change the details.     Read more

California follows federal lead in limiting employment screening

A new California regulation took effect last week that puts employers on notice that adverse action based on criminal history may violate state law prohibitions on racial discrimination.  The regulation closely tracks a 2012 guidance issued by the U.S. Equal Employment Opportunity Commission, which asserts that consideration of criminal history by employers violates Title VII of the federal Civil Rights Act when it adversely impacts racial minorities and is not job-related or consistent with business necessity. The California regulation adopts, in broad terms, the same position and standards put forth in the EEOC guidance, but applies them to the state’s Fair Employment and Housing Act (FEHA), which prohibits employment discrimination on grounds that are substantially similar to those enumerated in Title VII.  Like the EEOC guidance, the new FEHA regulation sets forth a number of factors used to determine whether a particular practice is job-related and consistent with business necessity, including whether it takes into account “the nature and gravity of the offense,” “the time that has passed since the offense,” and “the nature of the job held or sought.” The fact that the regulation was promulgated by the state’s Department of Fair Housing and Employment, which may sue to enforce the FEHA, may give California employers that have not already conformed their practices to the EEOC guidance an incentive to do so. Moreover, the new regulation ought to make it easier for individuals to challenge criminal history screening practices by giving them a clear basis for action under California law. Both the California regulation and the EEOC guidance follow from the “disparate impact” theory of liability that applies both to the FEHA and Title VII.  It allows an individual to proceed with an employment discrimination claim absent a showing of individual disparate treatment if he or she can show that a facially neutral employment practice adversely impacts a protected class, such as a particular racial group.  Because African Americans and Hispanics are more likely than other racial groups to have a history of criminal justice involvement, disparate impact theory has been used in both state and federal courts to challenge criminal history screening practices, especially blanket bans on hiring individuals with any conviction history at all. Although claims of disparate impact discrimination based on criminal history screening practices are not new, we are aware of no jurisdiction other than California that has codified such a basis for liability. Even the EEOC’s position is stated in the form of a “guidance,” and not codified in its official regulations. (Of course, the EEOC’s role in enforcing violations of Title VII gives its guidance significant weight.) The new regulation also restates a number of preexisting prohibitions on criminal history consideration that are imposed by the California’s Labor Code.  Among these is a general prohibition on inquiries into or consideration of arrests not resulting in conviction, non-conviction dispositions (including referral to, or participation in, diversion programs), arrests and dispositions that occurred while subject to juvenile court jurisdiction, and non-felony marijuana possession convictions more than two years old. More information about the law on criminal history discrimination in employment and licensing in California is available on the state’s Restoration of Rights Project profile, available here. Read more

HHS finalizes rules on child care worker screening

In February we posted about regulations proposed by the federal Department of Health and Human Services (HHS) to implement criminal history screening requirements for child care workers under recent changes to the Child Care and Development Block Grant Act of 2014.  The CCRC joined a coalition of organizations led by the National Employment Law Project (NELP) in calling upon HHS to reconsider the proposed regulations. In a formal comment submitted to HHS, the coalition argued that the regulations contained screening standards that were more exclusionary than the Act requires, and that they would have a disparate impact on women, African Americans, and Latinos. HHS has now issued the final version of those regulations.  Although the final rules are far from perfect, they do address a number of the concerns raised by the coalition.  For example, they omit language that encouraged states to require self-disclosure of criminal history, provide greater protection from inaccurate criminal record reporting, and urge states adhere to the standards laid out in the EEOC guidance by providing individualized assessments for disqualifying offenses that are added by the states but not required by the federal law. Unfortunately, HHS chose not to back down on one of the most troubling provisions of the proposed regulations: criminal history screening of anyone age 18 or older residing in a license-exempt home that provides child care services.  Screening of those individuals is not required by the Act itself.  As the coalition’s comments explained, the requirement will almost certainly have a disproportionately adverse impact on providers of color and their families: Expanding background checks to adult household members would have a disparate impact on low-income communities and communities of color, which have higher than average arrest and conviction rates. Based on the experience of our organizations serving these communities, it is clear that they constitute a significant proportion of license-exempt child care providers and are more likely to have multiple generations living in the same house. NELP has provided a brief summary of how the final regulations address (or fail to address) the coalition’s recommendations: Recommendation:  Consistent with the narrow language of the CCDBG Act of 2014, ACF should not extend background checks to individuals age 18 or older who reside in a non-relative, license-exempt CCDF provider’s home. Outcome:  Our argument not to extend child care worker background checks to family members and others residing in the caregiver’s home was not successful (see pages  218-219).  However, the preamble includes strong language cautioning states to narrowly limit disqualifying offenses for this group (“casting too wide a net could have adverse effects on the supply of family child care providers and other consequences for individuals returning from incarceration”) and urging states to include a waiver procedure modeled on the EEOC guidelines. Recommendation:   In order to limit consideration of inaccurate conviction history information that disproportionately penalizes people of color, ACF should eliminate the preamble language urging states to require applicants to “self-disclose” their conviction records. Outcome: The final HHS regulations did not include the self-disclosure requirement (at pages 239-230), which is a significant victory. Recommendation:  Consistent with the preamble language to the draft regulations, we urge ACF to adopt regulatory language incorporating the EEOC guidelines into the provision allowing the states to impose additional disqualifying offenses. Outcome:   The preamble to the final regulations quoted extensively form our comments describing the need for an individualized assessment based on the EEOC guidelines when states add disqualifying offenses that are not mandated by the HHS regulations  (see pages 252-253). HHS did not adopt our recommendation that the regulation  (Section 98.43(h)) specifically reference the EEOC guidelines, but it did include helpful language in the preamble urging the states to follow the individualized assessment process detailed by the EEOC (“we strongly encourage Lead Agencies to follow recommendations to implement an individualized assessment and waiver process in particular for any other disqualifying crimes not listed in the Act. In addition to challenging the record for accuracy and completeness, an individualized review allows the Lead Agency to consider other relevant information, and to provide waivers where appropriate.”) Recommendation:  Given the discriminatory impact of drug offenses on women of color, ACF should specifically reference the EEOC guidelines in the regulations authorizing the state to waive disqualifying drug offenses. Outcome:  The preamble to the regulations also quoted extensively form our comments describing the discriminatory impact of drug offenses on women of color (see pages 250-251).  HHS concluded that the states “must conduct the review processes in accordance with the EEOC’s current guidance on the use of criminal background checks in employment decisions, which requires individualized consideration of the nature of the conviction, age at the time of the conviction, length of time since the conviction, and relationship of the conviction to the ability to care for children, and other extenuating circumstances.”  However, the final regulations (Section 98.43(e)(4)) retained the language of the draft regulations, stating that “the review process shall be consistent with title VII of the Civil Rights Act of 1964.”  Thus, the regulations do not also reference the EEOC guidance, as we recommended. Recommendation:  Given the reliance on FBI background checks, which routinely contain  faulty information, ACF should adopt more protections governing appeals by workers challenging inaccurate background checks. Outcome: HHS made significant improvements to the regulations in this area based on our comments (which were quoted in full in the preamble, including our list of five specific “features of a fair and effective appeal process”). (Pages 246-249). In the preamble to the regulation (Section 98.43(e), HHS stated:  “ACF strongly agrees with the worker protections described in this comment.  While background checks are a necessary safeguard to protect children in child care, we are also mindful of the disproportionate impact that that they can have on low-income individuals of color.  A robust and effective appeals process, that incorporates the elements described above, is critical to protect prospective child care staff members who have inaccurate or incomplete background check records.  As such, we made changes to the regulatory language at 98.43(e)(2)(ii) and 98.43(e)(3) to incorporate many of these protections, while still preserving some State flexibility.” Most importantly, the new regulation requires the state to “attempt to verify the accuracy of the information challenged by the child care staff member, including making an effort to locate any missing disposition information related to the disqualifying crime.”  This is a major victory, and it sets a precedent in federal law requiring states to track down missing dispositions in the state and FBI rap sheets, thus removing the burden from the worker to have to produce the missing or updated records.  In addition, the final regulations require that the notice the worker receives in response to a challenge to the accuracy of the record “should indicate the State’s efforts to verify the accuracy of the information challenged by the child care staff member, as well as any additional appeal rights available to the child care staff member.” The final regulations and HHS’s response to comments can be found here. See our initial post on the proposed regulations here. Read more

Collateral consequences: punishment or regulation?

Have we been wrong in trying to fit the round peg of collateral consequences into the square hole of punishment?  Sandra Mayson, a Fellow at the Quattrone Center at the University of Pennsylvania Law School, says yes.  In an article published in the Notre Dame Law Review, Mayson challenges the view of some scholars that mandatory collateral consequences should be considered part of the court-imposed sentence, and thus potentially limited by procedural due process and ex post facto principles.  For starters, the Supreme Court has told us that dog won’t hunt. But that doesn’t mean that collateral consequences should be immune from constitutional constraint. Mayson proposes instead to analyze collateral consequences as “preventive risk regulation” under principles developed in the administrative law context.  Specifically, she argues that a severe collateral consequence (such as sex offender registration) may be justified only if it can be shown to serve a public safety purpose in a particular case. Mayson notes that the Supreme Court’s two 2003 decisions upholding sex offender registration schemes in Connecticut and Alaska did not rule out the possibility of substantive due process as a basis for challenge.  (An example of this, decided after Mayson’s article was published, is the Pennsylvania Court of Appeals’ decision in Peake v. Commonwealth, striking down provisions of the PA Older Adults Protective Services Act under the state constitution on substantive due process grounds.) Because Mayson doesn’t regard collateral consequences as part of the sentence, she questions the advisability of making sentencing courts responsible for managing them in the sentencing process, as proposed by the Uniform Law Commission and the American Law Institute. The analytical framework proposed by Mayson for dealing with mandatory collateral consequences is appealing, but it is not likely to have much practical effect except in the kind of extreme circumstances involved in Peake.  The problem is that we have constructed a vast apparatus of mandatory collateral penalties with no possibility for administrative challenge, and litigation is costly and time-consuming.  The dispensing role assigned courts under the ULC and ALI proposals, already in effect in several states including New York and Vermont, has greater potential for delivering individualized relief.  At the same time, it is important to devise clear enforceable risk-related standards to guide courts in deciding when a mandatory consequence is inappropriate. The article’s abstract follows: Approximately eight percent of adults in the United States have a felony conviction. The “collateral consequences” of criminal conviction (CCs) — legal disabilities imposed by legislatures on the basis of conviction, but not as part of the sentence — have relegated that group to permanent second class legal status. Despite the breadth and significance of this demotion, the Constitution has provided no check; courts have almost uniformly rejected constitutional challenges to CCs. Among scholars, practitioners and mainstream media, a consensus has emerged that the courts have erred by failing to recognize CCs as a form of additional punishment. Courts should correct course by classifying CCs as “punishment,” the consensus holds, such that constitutional constraints on punishment will apply. This Article argues for a different approach. The consensus view overlooks the fact that most CCs invoke a judgment of dangerousness as the basis for limiting individual liberty. Given their predictive logic, the Article contends that there are serious costs to classifying (most) CCs as punishment and that the courts have reached a defensible result in declining to do so. Where they have erred is in assuming that, as mere regulation, CCs are benign. On the contrary, laws that restrict certain people’s liberty solely on the basis of their perceived propensity to commit future crimes raise both moral and constitutional concerns. Rather than classify CCs as punishment, this Article contends that the better approach to constitutional adjudication of most CCs — for both theoretical and tactical reasons — is to recognize them as predictive risk regulation and seek to develop appropriate constraints. You can find more scholarly articles dealing with collateral consequences and relief from their effects on our resource page here. Read more

HUD limits housing exclusion based on criminal history

On 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. The guidance stems from a section of the FHA that outlaws housing policies and practices that have a “discriminatory effect” on a protected class regardless whether the policy has a discriminatory intent.[2] The guidance describes the law as follows: A housing provider violates the Fair Housing Act when the provider’s policy or practice has an unjustified discriminatory effect, even when the provider had no intent to discriminate. Under this standard, a facially-neutral policy or practice that has a discriminatory effect violates the Act if it is not supported by a legally sufficient justification.  Thus, where a policy or practice that restricts access to housing on the basis of criminal history has a disparate impact on individuals of a particular race, national origin, or other protected class, such policy or practice is unlawful under the Fair Housing Act if it is not necessary to serve a substantial, legitimate, nondiscriminatory interest of the housing provider, or if such interest could be served by another practice that has a less discriminatory effect Since African Americans and Hispanics are far more likely to have criminal histories,[3] policies that exclude people with such histories are likely to disparately impact those two groups and run afoul of the FHA absent “legally sufficient justification.” The guidance proposes that “ensuring resident safety and protecting property” are the only interests that can justify such criminal history exclusions, and it stresses that the relationship between the exclusion and the justification must be proven: Ensuring resident safety and protecting property are often considered to be among the fundamental responsibilities of a housing provider, and courts may consider such interests to be both substantial and legitimate, assuming they are the actual reasons for the policy or practice.  A housing provider must, however, be able to prove through reliable evidence that its policy or practice of making housing decisions based on criminal history actually assists in protecting resident safety and/or property.  Bald assertions based on generalizations or stereotypes that any individual with an arrest or conviction record poses a greater risk than any individual without such a record are not sufficient to satisfy this burden. Blanket exclusions for all people with any criminal history will never pass muster because they will necessarily exclude people whose criminal history has no bearing on resident safety or protection of property.  Policies that exclude people based solely on records of arrest — even if the policy is limited to arrests for specific offenses, such as crimes of violence — are indefensible for similar reasons: Because arrest records do not constitute proof of past unlawful conduct and are often incomplete (e.g., by failing to indicate whether the individual was prosecuted, convicted, or acquitted), the fact of an arrest is not a reliable basis upon which to assess the potential risk to resident safety or property posed by a particular individual.  Providers who wish to take criminal records into account should therefore adopt “more tailored” policies that consider only convictions and that are informed by a set of “standards” provided in the guidance: [A] housing provider must show that its policy accurately distinguishes between criminal conduct that indicates a demonstrable risk to resident safety and/or property and criminal conduct that does not. A policy or practice that fails to take into account the nature and severity of an individual’s conviction is unlikely to satisfy this standard.   Similarly, a policy or practice that does not consider the amount of time that has passed since the criminal conduct occurred is unlikely to satisfy this standard …. Accordingly, a policy or practice that fails to consider the nature, severity, and recency of criminal conduct is unlikely to be proven necessary to serve a “substantial, legitimate, nondiscriminatory interest” of the provider.  These standards suggest that even policies that categorically exclude residents with specific types of convictions (such as violent offenses) may be unlawful if they do not take into account the resident’s specific circumstances. The fact that the guidance refers to the nature, severity, and recency of criminal conduct in its summation implies that providers cannot rely simply on the nature and severity of particular types of convictions. The HUD guidance loosely tracks the standards in the EEOC’s more comprehensive guidance on the consideration of criminal records in the context of Title VII’s employment discrimination protections — guidance that is also rooted in a disparate impact theory.  The EEOC guidance also discourages categorical bars and requires employers to consider the nature, severity, and recency of criminal conduct. The HUD guidance does not limit a statutory exception carved out in the FHA itself which expressly permits exclusion based on convictions for drug manufacturing or distribution. Nor does it affect the obligation of Public Housing Authorities (PHAs) to exclude people that have certain criminal histories (including certain drug offenses and sex offenses).[4]  It also does not cover the small subset of housing that is statutorily exempt from FHA coverage.[5] While the HUD guidance does not directly protect classes not already covered by the FHA’s non-discrimination provisions, it should as act as a rising tide that lift all boats.  Everyone with a criminal record, regardless of their race, color, or nationality, will benefit as landlords and other housing providers revise their policies in an effort to avoid litigation.   [1] In November 2015, HUD issued a separate guidance to public housing authorities (PHAs) and owners of federally-assisted housing that stated that “an arrest is not evidence of criminal activity that can support and adverse admission, termination, or eviction decision,” and reminded PHAs of their obligation to comply with the FHA.  That more limited guidance, which applied only to PHAs, has now been substantially expanded by requiring individualized consideration and a public safety justification for any conviction-based restriction on renters or buyers. [2] The Supreme Court held last year that a plaintiff does need to prove that such discrimination by a public housing authority was intentional.  See Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., ___ U.S. ___, 135 S. Ct. 2507 (2015).  This decision is incorporated into the guidance. [3] From the guidance: National statistics provide grounds for HUD to investigate complaints challenging criminal history policies. Nationally, racial and ethnic minorities face disproportionately high rates of arrest and incarceration.  For example, in 2013, African Americans were arrested at a rate more than double their proportion of the general population.  Moreover, in 2014, African Americans comprised approximately 36 percent of the total prison population in the United States, but only about 12 percent of the country’s total population.  In other words, African Americans were incarcerated at a rate nearly three times their proportion of the general population.  Hispanics were similarly incarcerated at a rate disproportionate to their share of the general population, with Hispanic individuals comprising approximately 22 percent of the prison population, but only about 17 percent of the total U.S. population. In contrast, non-Hispanic Whites comprised approximately 62 percent of the total U.S. population but only about 34 percent of the prison population in 2014.  Across all age groups, the imprisonment rates for African American males is almost six times greater than for White males, and for Hispanic males, it is over twice that for non-Hispanic White males. [4] Statutorily authorized discretionary criminal history-based exclusions, see 42 U.S.C. § 13661(c), should otherwise comply with the guidance since PHA’s are still subject to the FHA’s general requirements.  See 42 U.S.C. § 3603(a)(1). See also note 3, supra.  The new guidance has no effect on the statutorily mandated exclusions from public housing for people convicted of manufacturing methamphetamine in public housing or subject to lifetime sex offender registration. See 42 U.S.C. § 1437n(f)(1); 42 U.S.C. § 13663. [5] See 42 U.S.C. § 3603 (exceptions for owner-occupied buildings with with no more than four units; certain single family housing where the owner does not own more than three single family homes at one time; housing operated by organizations and private clubs that limit occupancy to members). Read more