Protecting the Fair Housing Rights of People With Criminal Records - PowerPoint PPT Presentation

April 19, 2017 Protecting the Fair Housing Rights of People With Criminal Records Housing & Com m unity Developm ent Netw ork of New Jersey

The S argent S hriver Center National Center on Poverty Law provides national leadership in advancing laws and policies that secure j ustice to improve the lives and opportunities of people living in poverty. 2

PIH/Housing Arrest Record Guidance HUD Notices PIH 2015-19/H 2015-10 applies to public housing, vouchers, and multifamily housing. https://portal.hud.gov/hudportal/do cuments/huddoc?id=PIH2015-19.pdf https://portal.hud.gov/hudportal/docum ents/huddoc?id=15-10hsgn.pdf HUD also released a subsequent FAQ . http://portal.hud.gov/hudportal/docume nts/huddoc?id=faqexcludearrestrec33116 .pdf

Fair Housing Guidance This legal opinion from HUD OGC applies to all housing covered by the Fair Housing Act. https://portal.hud.gov/hudportal/do cuments/huddoc?id=HUD_OGCGuidAppF HAStandCR.pdf

HUD OGC on Fair Housing & Criminal Records Criminal records status is not a protected class. But adverse housing decisions based on a person’s criminal record screening may violate the Fair Housing Act, which prohibits discrimination on the basis of race, national origin, and other protected classes. 1. Discriminatory treatment – criminal record as pretext for race 2. Disparate impact – facially neutral policies that have an unjustified disparate impact on racial minorities

Discriminatory Treatment

Disparate Impact: Step 1 Q1: Is there a disparate impact on race or other protected class? • Plaintiff’s burden • Local and state statistics preferred, but HUD says that national statistics may work

Disparate Impact: Step 1 The Sentencing Project, The Color of Justice: Racial & Ethnic Disparity in State Prisons, 8 (2016), http://www.sentencingproject.org/wp-content/uploads/2016/06/The-Color-of-Justice-Racial-and-Ethnic-Disparity-in-State-Prisons.pdf

Disparate Impact: Step 2 Q2: Is the disparate impact justified? In other words, is it necessary to achieve a substantial, legitimate, and necessary interest? • Defendant’s burden. • Proof required; speculation is not enough. • Defendant will have to show that the prohibited criminal activity “indicates a demonstrable risk to resident safety and/or property .”

HUD OGC on Fair Housing & Criminal Records General Principles: • No arrests without convictions because no proof of criminal activity • No blanket bans on convictions because not all indicate risk to resident safety and/or property • Even if only some convictions, housing providers must show demonstrable risk to resident safety and/or property , usually by showing that it considers (1) nature, (2) severity, and (3) recency of criminal activity

Disparate Impact: Step 3 Q3: Is there a less discriminatory alternative? • Burden back on plaintiff. • Individualized assessment of relevant mitigating factors will usually be a less discriminatory alternative to a blanket ban.

Reasonable Accommodation Persons with disabilities may request a reasonable accommodation. Includes persons who are recovering from addiction and have successfully completed or are undergoing substance abuse treatment. • But not current users of illegal substances • But not persons who are a direct threat to health and safety of others • But not persons whose tenancy would result in substantial physical damage to the property of others

PHAs with Better Criminal Records Policies New York City Housing Authority – Family Reentry (Pilot) Program • For individuals who have been released in the last 3 years who want to be reunited with their families currently in public housing • Out of 85 participants, only 1 had been convicted of a new charge Housing Authority of New Orleans – New Criminal Record Policy • Created a 3-person panel to review all applicants with criminal history • Added transparency to the process • Narrowed the types of criminal activity, and moved applicants to “further review” rather than “denial”

Benefits of Better Criminal Records Policies Red ucing Red ucing Reuniting Ad m inistra tiv e Recid iv is Fa m ilies Tim e & Costs m 14

Marie Claire Tran-Leung 50 E. Washington S t., S uite 500 Chicago IL, 60602 312.263.3830 marielairetran@ povertylaw.org povertylaw.org