November 18, 2004

V. Federal "One Strike" Legislation

If you break the law, you no longer have a home in public housing, one strike and you're out. That should be the law everywhere in America. [78]

-President Bill Clinton

The right of every person to adequate housing includes the right to housing that is decent and safe.The United States, through the policies and practices of HUD as well as local public housing authorities, has taken various steps to try to ensure that the housing it provides is safe.One of the measures it has employed has been to screen applicants by using criminal background information.While PHAs have long been authorized to conduct such screening, the U.S. Congress passed harsh new laws between 1988 and 1998 imposing new responsibilities and authority on PHAs to exclude housing applicants with certain criminal records as well as to evict tenants who break the law.

The Anti-Drug Abuse Act of 1988, a broad statute Congress passed to further the war on drugs, called for strict lease enforcement and eviction of public housing tenants who engage in criminal activity.[79]Citing a "reign of terror" in public housing,[80] the Act required PHAs to utilize leases, which called for eviction if a tenant or a household member or guest engaged in any criminal activity on or near public housing premises.[81]

These new eviction rules became the foundation for what subsequently became the federal government's "one strike" policy.In 1990, Congress strengthened the eviction requirements of the Anti-Drug Abuse Act by prohibiting public housing authorities from giving any preference to applicants who otherwise qualified for preferential treatment,[82] if they had previously been evicted from public housing for drug-related activity.[83]

President Bill Clinton's 1996 State of the Union address gave momentum and the new "One Strike" name to Congress' efforts to control who lives in public housing.[84]

Congress responded to the president by passing the Housing Opportunity Extension Act of 1996 (Extension Act),[85] which again strengthened eviction rules and, for the first time, strongly urged that certain applicants for federally-subsidized housing be excluded based on their criminal records.[86]The Extension Act called on the National Crime Information Center and local police departments to provide criminal conviction records to PHAs for "purposes of applicant screening, lease enforcement, and eviction."[87]In addition, the Act established a three year ban on public housing for those evicted from public housing for drug-related activity.[88]Finally, the Act allowed PHAs to bar applicants believed to be using drugs or abusing alcohol, or anyone who the PHA found had a pattern of drug or alcohol abuse that could threaten the health and safety of residents.[89]

Congress' vigor in creating a statutory framework for the "one strike" rule in 1996 was matched by HUD's efforts to create a regulatory scheme for its enforcement.Spurred on by a policy memorandum from President Clinton,[90] HUD developed guidelines to press PHAs to "evict drug dealers and other criminals" and "screen tenants for criminal records."[91]HUD's "One Strike Guide"[92] calls on PHAs to "take full advantage of their authority to use stringent screening and eviction procedures[.]"[93]

The One Strike Guide's most far-reaching initiative is the promotion of applicant criminal screening procedures.[94]Housing authorities are encouraged to not only screen all applicants' criminal records but to develop their own exclusion criteria.[95]To ensure that all housing authorities screen applicants, the guide notes that PHA ratings and funding are tied to whether they are "adopting and implementing effective applicant screening."[96]

The effect has been PHA adoption of stringent exclusionary policies. Unfortunately, as discussed in more detail in this report, PHAs have chosen not to exercise with care the discretion HUD granted them to construct their screening mechanisms.HUD encourages PHAs to:

Consider applications for residence by persons with such criminal histories on a case-by-case basis, focusing on the concrete evidence of the seriousness and recentness of criminal activity as the best indicators of tenant suitability.PHAs should also take into account the extent of criminal activity and any additional factors that might suggest a likelihood of favorable conduct in the future, such as evidence of rehabilitation.[97]

Congress passed the last substantive statutory amendments to the "one strike" policy as part of the Quality Housing and Work Responsibility Act of 1998 (QHWRA).[98]Under the QHWRA, PHAs should deny applicants public housing benefits if:

during a reasonable time preceding the date when the applicant household would otherwise be selected for admission, [a household member] engaged in any drug-related or violent criminal activity or other criminal activity that would adversely affect the health, safety, or right to peaceful enjoyment of the premises by other residents[.][99]

The "reasonable time" was left undefined and at the housing authority's discretion.Similarly, housing authorities were left to decide what types of offenses could lead to exclusion.

The QHWRA thus granted Congressional approval of admissions rules formulated by HUD during the 1996 "one strike" initiative.Its broad mandate to exclude anyone with a criminal record who PHA authorities determine might pose a risk continues to affect the housing options of hundreds of thousands of people with criminal records and their families.[100]

In addition to giving PHAs discretion to determine the applicants they may reject based on criminal records, Congress has also enumerated three specific categories of applicants that PHAs must reject.These federally designated persona non grata include anyone the PHA believes to be using drugs, anyone subject to registration requirements under state sex offender registration laws, and anyone convicted of manufacturing methamphetamines on public housing property.

How Many Are Excluded?

It is difficult to quantify the effect of these criminal record exclusions.There is no comprehensive, reliable national data on the number of applicants who are rejected because of criminal records and no way of calculating the number of people who, believing they would be ineligible under the policies, never even bother to apply for public housing.

In response to a Freedom of Information Act request, HUD told Human Rights Watch that 46,657 applicants for conventional, project-based public housing were denied admission in 2002 because of "one strike" criteria.[101]This figure, however, represents only a fraction of applicants rejected because of their criminal records.

First, this number does not include those who are denied Section 8 housing assistance, as PHAs are not required to report Section 8 denials to HUD.Second, while HUD requires PHAs to report the number of applicants found ineligible under "one strike" policies as part of its periodic review of PHA operations, HUD has not provided a uniform definition of what exclusions fall under "one strike."[102]For example, PHA officials are provided with no guidance about whether such a number includes all criminal record exclusions, or only those mandated by Congress.In fact, we discovered considerable inconsistencies in the numbers some individual PHAs provided to Human Rights Watch and the numbers they provided to HUD.[103]

Many PHA officials told HRW that they did not even keep statistics on criminal exclusions.Several housing authorities indicated that because of the way they evaluate applications, it is impossible to determine whether an applicant was denied solely because of a criminal record, or whether the denial was the result of a combination of factors, including poor credit.[104]Some PHAs could not even explain to us how they arrived at the numbers they sent to HUD.Finally, no PHAs kept track of how many applicants given housing vouchers by the PHAs were turned away by landlords because of their criminal histories.

Even if PHAs collected accurate data showing the number of those denied because of criminal background information, that data would not capture the total number of people unable to access housing because of criminal records.It would not reflect the number of people who chose not to submit a full application after seeing that the application called for criminal record information, applicants who were turned away at the applications counter by PHA staff who said they were not eligible, and those discouraged from even approaching a PHA because they were told by social service providers, prison officials, peers, and even PHA staff that "people with felonies," or "people with drug charges" could not apply.

"They don't even let them turn them [applications] in," a Birmingham, Alabama attorney told Human Rights Watch, noting that the numbers provided by the housing authority were not reflective of the number of individuals affected by the PHA's strict exclusion policies."They turn them away at the applications desk.They don't let them fill it out.That way, they don't have to count them."[105]

Given the imprecise methods used to collect these figures and the impossibility of quantifying those discouraged from ever applying, it is impossible to know-and indeed HUD itself clearly does not know-how many of the millions of people with criminal records have been affected by the exclusionary policies.[106] We have developed a minimal estimate, however, that gives a sense of the magnitude.

Our research suggests that PHAs typically reject applications from people convicted of felonies within five years of the application. We estimate that over the past five years, the number of convicted felons is at least 3.5 million.[107]That is, we believe that at least 3.5 million would be ineligible for public housing.That number, of course, does not include people ineligible for other reasons, e.g. those convicted of misdemeanors or whose criminal records consist only of arrests; nor does it include those whose felony convictions are years earlier, but nonetheless might warrant exclusion either under local or federal rules.

[78]President Bill Clinton, "Remarks by the President at One Strike Symposium," The White House, Office of the Press Secretary, March 28, 1996, available online at: http://clinton6.nara.gov/1996/03/1996-03-28-president-remarks-at-one-strike-crime-symposium.html, accessed on February 4, 2004.

[79]Anti-Drug Abuse Act of 1988, Pub. L. 100-690, 102 Stat. 4181 (1988) (codified as amended in scattered sections of the United States Code).Among other initiatives, the Act created the Office of National Drug Control Policy, supervised by a Director appointed by the President and approved in the Senate (commonly known as the "Drug Czar") and provided for block grants to housing authorities to combat drug trafficking in public housing projects.

[80]Ibid., 5122.

[81]Ibid., 5101.Subsequent legislation broadened these grounds for eviction, calling for eviction from public housing whenever and wherever a household member or guest engages in criminal activity.The U.S. Supreme Court in HUD v. Rucker, 535 U.S. 125 (2002) upheld the eviction of several elderly tenants for criminal activity engaged in by household members, despite the tenants' lack of actual knowledge of their actions.

[82]Because there is not enough federally-subsidized housing for all those who are eligible, PHAs have established preference criteria that give priority to certain families waiting for assistance.For example, domestic violence victims, the elderly, families with minor children, and those with disabilities are often chosen for preference lists by local PHAs.

[83]Cranston-Gonzalez National Affordable Housing Act of 1990, Pub. L. No. 101-625, 104 Stat. 4079 (1990) (codified as amended in scattered sections of 12 & 42 U.S.C.) at 501.Section 501 of the 1990 Act required PHAs to remove families evicted from public housing for drug-related activity for a period of three years following eviction.

[84]President Bill Clinton, "State of the Union Address," January 23, 1996.

[85]Pub. L. No. 104-120, 110 Stat. 834 (1996).

[86]The Extension Act authorized housing authorities to evict tenants for criminal or drug-related activity "on or off" housing authority premises. 9(a)(1)(A). Previously, such activity allowed for eviction when occurring "on or near" housing authority premises.Congress also struck the word "criminal" from the mandatory lease provisions so that "any activity" which threatened the safety of residents could result in eviction. 9(a)(1)(B).

[87] Ibid., 9(b)(1)(A). See also footnote 225 for a more in-depth discussion of this issue.

[88]Ibid., 9(c).

[89]Ibid., 9(d)(2).

[90]"Memorandum from President Clinton to HUD Secretary on 'One Strike and You're Out' Guidelines," March 28, 1996, available online at: http://clinton6.nara.gov/1996/03/1996-03-28-memo-on-one-strike-and-you-re-out-guidelines.html, accessed on February 4, 2003.

[91]President Bill Clinton, "Remarks by the President at One Strike Symposium."

[92] HUD Notice PIH 96-16 (HA), April 29, 1996 and attached "one strike" guidelines: HUD, 'One Strike and You're Out' Screening and Eviction Guidelines for Public Housing Authorities, April 12, 1996.

[93]Ibid., p. 2.

[94]Ibid., p. 4-5.

[95] Ibid., p. 5.

[96]Ibid., p. 3.A later measure, discussed in more detail below, codified the requirement that PHAs be graded on their ability to screen and evict criminal offenders.See, Section 564(1)(A) of the Housing and Work Responsibility Act of 1998, Pub. L. No. 105-276, 112 Stat. 1643 (1998).Also see footnote 177 and accompanying text.

[97]Ibid., p. 6.

[98] Quality Housing and Work Responsibility Act of 1998, Pub. L. No. 105-276, 112 Stat. 1643 (1998).

[99] Ibid.

[100]Scattered throughout the U.S. code and the Code of Federal Register, the rules governing screening and eviction are so complicated that a booming consulting business has grown up around the process.Agencies like Nan McKay & Associates, for example, provide guidance on constructing policies which comport with federal law, and they actually write the policies for many PHAs. A chart outlining the rules is available on the agency's website at: http://www.nmauniversity.com/nanmckay_corp/nlha.pdf, accessed on December 22, 2003.

[101]Letter to Human Rights Watch from Carole W. Wilson, associate general counsel, Office of Litigation, U.S. Department of Housing and Urban Development, December 22, 2003.The figure was based on data provided to HUD by PHAs.

[102] Guidance to PHAs is provided in a HUD guidebook available online at: http://www.hud.gov/offices/reac/pdf/guidebook_oct01.pdf, accessed March 3, 2004.

[103] HUD provided Human Rights Watch with the number of PHA exclusions by each PHA.Human Rights Watch also requested data from PHAs reflecting "the number of denials of admission or findings of ineligibility based on someone's criminal history by the housing authority for the year 2002." The Housing Authority of the City of Pittsburgh, for example, told Human Rights Watch that it denied 446 applicants, who had applied for conventional public housing in 2002, based on the applicants' criminal history. Human Rights Watch e-mail correspondence with Anthony Williams, director, Housing Authority of Pittsburgh, January 27, 2004. However, the number of denials reflected in HUD's data is only 184.

[104] For example, the Housing Authority of the County of Los Angeles (HACoLA) evaluates a number of eligibility factors simultaneously.If negative information is received about both the applicant's credit history and criminal background, the applicant receives a letter of ineligibility, but HACoLA cannot determine the precise reason for the denial; hence, it does not include such a rejection in the data it reports to HUD. Human Rights Watch interview with Esther Keosababian, assistant director, Housing Management Division, Community Development Commission, County of Los Angeles, HACoLA, February 6, 2004.

[105]Human Rights Watch telephone interview with Kenneth Lay, managing attorney, Legal Services of Metro Birmingham, December 12, 2003.

[106] HUD's failure to obtain accurate and complete data on the effect of exclusionary policies is inconsistent with international norms.International law calls on states to monitor the implementation of housing rights. See, Committee on Economic, Social and Cultural Rights, General Comment No. 4, para. 13, citing also general guidelines regarding the form of reports adopted by the Committee (E/C.12/1991/1), which emphasize the need to "provide detailed information about those groups within . . . society that are vulnerable and disadvantaged with regard to housing."The Habitat Agenda also requires states to monitor their progress in fulfilling the right to housing by collecting data.Habitat Agenda para. 61(d), para. 240.In its 2001 report to Habitat, the United States devoted only two pages out of its seventy page report to homelessness and affordable housing. HUD, Habitat Report, 2001. Committee on Economic, Social and Cultural Rights has stated: "Effective monitoring of the situation with respect to housing is [an] obligation of immediate effect." See Committee on Economic, Social and Cultural Rights, General Comment No. 4, para. 13, citing also general guidelines regarding the form of reports adopted by the Committee (E/C.12/1991/1) which emphasize the need to "provide detailed information about those groups within . . . society that are vulnerable and disadvantaged with regard to housing."The UN Commission on Human Settlements (UNCHS or "Habitat"), the body responsible for the implementation and oversight of the Habitat Agenda, has urged states to establish appropriate monitoring mechanisms to evaluate quantifiable data on commitments that are measurable.Habitat recommends several kinds of data which should be collected, including data on the number of those evicted, but the list is certainly not exhaustive. Habitat Agenda, para. 61(b).

[107] We arrived at this number (3,504,483) by taking the number of new felony convictions in the years for which data is currently available (1996, 1998, and 2000), adding them, and dividing the total number (3,003,843) by three to come up with an average number of felony convictions per year (1,001,281).We then multiplied that number by five to come up with an estimated number of total felony convictions for the previous five years (5,006,405), and reduced that number by 30 percent, a generous recidivism figure, to account for offenders who committed more than one felony.Since a person who committed a felony within the past five years would be automatically ineligible for housing assistance under every housing authority policy we reviewed, this is a conservative estimate of the number of those currently ineligible for housing assistance, as many PHAs exclude offenders whose crimes do not rise to the level of a felony, and exclude convicted felons for much longer than five years.Matthew R. Durose and Patrick A. Langan, Ph.D., Felony Sentences in State Courts, 2000 (BJS, June 2003), p. 3 (citing also Compendium of Federal Statistics, 2000); Matthew R. Durose, David J. Levin, and Patrick A. Langan, Ph.D., Felony Sentences in State Courts, 1998 (BJS, October 2001), p. 3 (citing also Compendium of Federal Statistics, 1998); Jodi M. Brown, Partick A. Langan, Ph.D., and David J. Levin, Felony Sentences in State Courts, 1996 (BJS, May 1999), p. 2 (citing also Compendium of Federal Statistics, 1999). These reports are available online at: http://www.ojp.usdoj.gov/bjs/pubalp2.htm#fssc, accessed on October 22, 2004.