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VII. Exclusions Based on Local Policies

Using the authority given to them by HUD, PHAs have adopted a variety of definitions, graphs, and matrices to guide staff evaluating applicants with criminal records.  All too often, however, the criteria they have adopted are unduly broad, failing to provide any guidance on how to determine when ex-offenders or people with arrest records pose a risk to other tenants and when they do not, and which crimes warrant particular scrutiny. In addition, the periods of time during which applicants with criminal records are excluded are often unreasonably long.  The impact of existing criteria is enhanced because most PHAs do not conduct an individualized assessment or consider evidence of rehabilitation or mitigation before rejecting an applicant.  They have, in effect, adopted misguided “zero tolerance” policies that arbitrarily exclude needy applicants from public housing.

Arrests as Basis for Exclusion

In the United States, everyone is presumed innocent of a criminal offense unless guilt is established in a court of law.  Nevertheless, HUD guidelines allow PHAs to reject applicants based solely on arrest records even if the charges were ultimately dropped, and many do just that.136   

In our small random sample, nearly all of the PHA policies we reviewed give housing officials the authority to reject applicants simply on the basis of arrests.137  As best we could determine, the justification for using arrest records is that “where there’s smoke, there’s fire.”  One official at the Pittsburgh Housing Authority reasoned it is a well-known fact that when charges are dropped, it does not mean that the person arrested was not guilty, because, he explained, “[w]itnesses fail to show [and] judges won’t continue [cases] forever.”138

Some PHA officials do acknowledge that relying on arrest records as the determinant of housing eligibility is overly punitive.  “Arrests have much less weight,” she told us. “If authorities fail to prosecute, [denying them housing] seems pretty draconian to me.  I give it weight only if [there are] so many arrests, and a conviction; it seems likely that they have a problem.  Otherwise, I don’t pay attention.”139 

Certainly there are cases where the nature and number of arrests may suggest reason for concern, but arrest information should not trigger an automatic denial.  It would be reasonable, however, for PHAs to consider multiple arrests as one of the factors taken into consideration in an individualized evaluation of an application. 

One Mother’s Struggle for Housing

P.C. is a forty-one-year-old African American woman living in Pittsburgh with her nine-year-old son.  She was arrested for a child abuse charge which was subsequently dropped, but she was evicted from her public housing apartment as a result of the arrest.  She lived with relatives after her eviction but could not afford her share of the rent, so she and her son moved in with her son’s grandfather.  Ms. C. re-applied for public housing, and she was denied in September 2002 because she was told she owed back rent for the apartment from which she was originally evicted.  Ms. C. borrowed money and found assistance from a community-based organization to help her pay the $839 she owed.  But after she paid, she was notified in March 2003 that her application was denied because of her criminal background.

I was just totally gone.  I couldn’t function.  I couldn’t think.  I cried.  First, I done paid the money, then they deny me again. I just told myself, I could fight it or just let it go.  I prayed on it and I decided I’d file the grievance.

Ms. C.’s son suffers from mental health disorders, and although she says her son is what keeps her going through this process, the effect of their denial has affected him as well. 

My baby . . .gets real frustrated.  He just keeps seein’ me fight and fight.  The other day I told him I had a grievance hearing for housing, and he was jumpin’ all up and down, and he was very excited.  He asked me to go to the grievance hearing, “I wanna go with you and I hope we’ll get housing!”  . . . After we left out, he was crying and he said, “you paid the money, why is they doin’ this to you?” 

When they asked me at the hearing, “Is you planning on going out there and getting’ in any more trouble?”  He said “My mommy is a good mommy. She don’t do nothing wrong.  She don’t drink, she don’t do no crack, nothing”  They asked me, “Tell me what would keep you from getting’ in trouble?”  And I said, “I don’t drink anymore, I went through anger management classes.” 

[My son] asked me today, “leave the keys so I can see when the letter from housing comes.”  I think he’s real bitter now because he sees me fighting all the time.  He says, “Mommy, call the news.  Don’t be ashamed.  I’ll go on TV with you.  I’ll be with you.  Let’s pray for a house, pray for things to get better.”  That’s what’s pushing me. . . . This has to be stopped. I could see if I had murder charges, but I wouldn’t do anything to hurt nobody.  This gots to stop.  My baby’s getting’ bitterer and bitterer and worse and worse.  But he thanks his grandfather for letting us stay here.

Ms. C.’s son’s grandfather has problems of his own, however, and Pennsylvania Children and Youth Services told her that if she did not find another place to live, they would place her son in foster care.  When Human Rights Watch visited the house, the child’s grandfather was sitting on the couch with a half-empty bottle of whiskey. 

He drinks, he smokes weed, he’s an alcoholic.  He has women here that do crack.  My baby can’t see that.  He has people in here that rob him.  If I don’t get a place soon, they’re gonna take my baby.  He gets violent when he’s drunk.  They told me if I don’t get a place, they’ll take him. He [her son] would try to kill hisself if they take him.

At the time she spoke with Human Rights Watch, Ms. C. was only working part time because she was taking her son back and forth to a clinic.  “I tries to do the best I can,” she said.  Ms. C. is paid $8 an hour working as a housekeeper at Children’s Hospital, where she passed a child abuse history clearance before being offered the job. 

“Children’s Hospital, they gave me a chance.”

Ms. C. received a decision from the Housing Authority of the City of Pittsburgh in February 2004.  She and her son were approved for housing.140

Minor, Non-Violent Offenses

PHAs have adopted exclusionary policies that deny eligibility to applicants with even the most minor criminal backgrounds.  Just about any offense will do, even if it bears scant relation to the likelihood the applicant will be a good tenant.141

Some PHAs exclude applicants guilty of minor misdemeanor offenses and even of infractions that do not even rise to the level of a misdemeanor.  One PHA official in rural South Carolina told Human Rights Watch: “Most of the people denied are denied for shoplifting charges, not paying for video rentals.”142

Many of the women that Human Rights Watch spoke with had been denied because they had been charged with passing “bad checks”—paying for merchandise with personal checks when they did not have money in their bank accounts to cover the cost.  Their rejections were not based on being poor credit risks but on the fact that they had criminal records.

A Pittsburgh social worker told Human Rights Watch about one twenty-nine-year-old African American woman with two children who had applied for housing through the Allegheny County Housing Authority and was denied because of a retail theft charge three or four years prior to her application. 

She was the most peaceful person.  She had stolen some chapstick, some small things from a downtown drug store.  She lost custody of her children right around the time of the denial because she had no stable housing.  . . . I can see where some people do have a problem, but you can’t make those assumptions.  We had not one bit of a problem with her.  She’s not a threat to others.143

Pittsburgh, Pennsylvania housing officials insisted to Human Rights Watch that they would be justified even in excluding jaywalkers and shoplifters.  When Human Rights Watch asked how shoplifting posed a threat to existing public housing tenants, the director of housing occupancy said a shoplifter should not be admitted into a housing development because he would teach children his “craft,” e.g. how to “stuff bags of potato chips into his jacket.”  He added:

This is a threat to the community; people who can influence the community, sit there on the stoop and teach kids how to commit crime. . . . There is a greater propensity for crime in public housing that won’t happen in other communities.  If you are a habitual shoplifter, that shoplifting can lead to anything else that seems to be prevalent in public housing.144

The logic in these explanations is questionable, especially where the relationship between the offense and responsible tenancy is remote.  Moreover, they suggest an underlying punitive bias rather than a genuine public safety concern.  For example, another Pittsburgh housing official told Human Rights Watch:  “People have to understand that there are consequences to their actions.”145

New York City Housing Authority (NYCHA) policy allows housing officials to deny an applicant housing for a period of two years following such violations as disorderly conduct and “turnstile jumping” (riding the subway without paying the fare).  NYCHA officials, however, told Human Rights Watch that PHA staff evaluating the application would look at the totality of the information contained in the application.  While public intoxication (a violation) and disorderly conduct, depending on the circumstances, may justify exclusion, fare evasion alone may not.  NYCHA’s Deputy General Counsel reasoned that a series of such violations could, however, indicate a future risk: “If you constantly evade [paying the fare], you perhaps will not take lease obligations seriously.”146

The American Bar Association (ABA) and the U.S. Equal Employment Opportunities Commission (EEOC) have both recommended that to the extent prior offenses are used to impose collateral sanctions and what the ABA calls “discretionary disqualifications,” the disqualification should be “particularly related to the offense[.]”147  Similarly, the EEOC provided useful guidance to employers regarding the use of arrest records to screen prospective employees, and it is instructive by way of comparison with PHA practice.  The EEOC advises employers to examine whether there is a “business necessity” for excluding those with arrest records in much the same way Human Rights Watch urges PHAs to examine whether there is a valid public safety reason for excluding those with criminal records:

The question addressed in this policy guidance is “to what extent may arrest records be used in making employment decisions?" The Commission concludes that since the use of arrest records as an absolute bar to employment has a disparate impact on some protected groups, such records alone cannot be used to routinely exclude persons from employment. However, conduct which indicates unsuitability for a particular position is a basis for exclusion. Where it appears that the applicant or employee engaged in the conduct for which he was arrested and the conduct is job related and relatively recent, exclusion is justified.148  

The Consequences of Forging a Check

S.W. was denied housing from the Pittsburgh Housing Authority after she was charged with a felony offense.  S.W. says she lent $200 to a friend who did not pay her back, and after repeated attempts to get her friend to pay her back, S.W. took one of her friend’s checks and forged her signature.  S.W. paid the money back after she was arrested, but charges were still pending against her when she applied for public housing, and she was rejected.

She referred herself to Project Pindua,149 a social services agency in Pittsburgh because she said she needed help.  “We don’t get walk-ins,” said Christina Batesmore, case manager with the project, “[so] it shows a great deal of initiative, someone looking for help.”  S.W. had lived with her grandmother for most of her life, because her mother had lost custody of her children due to her own problems with drugs and alcohol.  S.W.’s uncle and his wife took over the house and forced S.W. to move out when she lost her grandmother to cancer.  “They wouldn’t even let me stay there until housing came through.”  She moved in with her boyfriend, but told Human Rights Watch,  “I need a place of my own because he does drugs.  I’m not trying to stay with that.” 

When she spoke with Human Rights Watch, S.W. was crying and felt there was no hope for the upcoming hearing that she requested to challenge the denial:

I’m tryin’, but I don’t think this stuff has anything to do with [housing].  I have no idea why they would deny me, unless they think I’m gonna do it again, and I’m not. . . . I never stole when I was coming up, I don’t know why I did this, but I learned my lesson.

A high school graduate, S.W. had aspired to return to school to study to be a Certified Nurse’s Aid, but admitted it would be difficult, if not impossible, if she didn’t have a stable place to live.150 

Charges against S.W. were dropped to a misdemeanor, she pled guilty, and with the help of her case manager at Project Pindua, S.W. succeeded in her appeal of the housing denial.  She is currently waiting for housing.151

Excluding People with Criminal Records for Excessive Periods of Time

In addition to determining what sort of conduct is a sufficient basis for exclusion, PHAs also determine, for different categories of offense, the “exclusion period”—the length of time applicants must have been crime free following such offenses before their housing applications can be accepted. 

The exclusion periods appear to have been arbitrarily chosen, and are frequently excessively long.  PHA officials could rarely provide us with an explanation for the particular length of any exclusion period nor could we discern any empirical explanation for the great variance in exclusion periods across the country; the differences appear simply to reflect philosophical and policy perspectives.  The chart below offers a sense of the variance in exclusion periods and, more importantly, the remarkable length of some of them. 

In New York City, for example, a person convicted of misdemeanor possession of marijuana and sentenced to six months probation would be ineligible for housing for five years.  In Sarasota, Florida, a single drug misdemeanor renders a person ineligible for public housing for four years.  In Pittsburgh, Pennsylvania, someone convicted of a violent felony can be ineligible for life—regardless of how exemplary the years following his crime had been.  And applicants who have prior offenses in Austin, Texas—no matter how minor—are excluded by the city housing authority for seven years, and by the county housing authority for ten. 

Discretionary Exclusion Periods          







Violent Felony§

Pittsburgh, PA


   HA City of

indefinite †


4 years ‡

7 years ‡

≤lifetime ¥

   County HA



5 years Š

5 years


Austin, TX


   HA City
   of Austin

indefinite †

indefinite †

7 years Š

5-7 yrs Š


   County HA

indefinite †

indefinite †

10 years Š

20 years Š

20 years

Other PHAs


    HA County
    of LA

indefinite †

indefinite †

3 years

3 years

3 years

    FL HA

2  = 3 years

indefinite †

4 years Š

10 years

20 years

    New York
    City HA


2 years

3-4 years

5 years

6 years

DNC Does not consider.

§ PHAs define “serious felony” differently, and include offenses such as murder, arson, kidnapping, domestic violence, aggravated assault, drugs, and child abuse in addition to the federally-mandated sex and methamphetamine offenses. 

† PHAs can consider applicant’s conduct regardless of when it occurred; the exclusion period is indefinite in duration.

‡ Each misdemeanor nets a four year exclusion; hence, two misdemeanors renders an applicant ineligible for eight years; three would mean an applicant would not be eligible for twelve years from the date of completion of the last misdemeanor.  Likewise with felonies: two felonies would render an applicant ineligible for fourteen years, and so on.

¥ HACP officials told Human Rights Watch that applicants with the most serious offenses had to have approval from a Criminal Activities Review Board (CARB) before being deemed eligible.  They implied that it would be very difficult for someone with certain offenses to ever pass CARB review.

Š For drug-related offenses. 

* In New York, exclusion periods begin upon completion of a sentence.  For example, a person would be ineligible for housing for two years following completion of a sentence of one-year probation for a misdemeanor offense, which could mean that a person is actually ineligible for housing for three years following the commission of a misdemeanor.

Kelli Dunn Howard, an attorney with Texas RioGrande Legal Aid (TRLA) in Austin, told Human Rights Watch about a twenty-four-year-old African American woman who applied for public housing for herself, her eighty-year-old father, and the four children she cares for—two of her own and two of her sister’s, who is currently serving time in prison.  In addition to caring for the children, the client attends college and does volunteer work. 

The city housing authority denied her application in January 2004 because of simple assault and marijuana possession charges from six-and-a-half years prior to her application, offenses committed when she was eighteen.  The client had pled guilty to both offenses, received probation, and then the charges were dismissed.  Howard told Human Rights Watch that her client said, “‘If it were just me, I could afford the rent because I’m working, but I can’t if I’m taking care of all these people.’”152

Whose Problem Is It?

A woman who won a high-profile grant of executive clemency from President Clinton in 2000 was also turned away from public housing.  Dorothy Gaines, a forty-five-year-old African American woman from Alabama with three children, had been convicted of a drug offense and was serving a nineteen year sentence at the time of her pardon.  She and her boyfriend at the time of her conviction were involved with a group of people who were selling drugs.  When members of the group were arrested, they testified against Gaines, whose only alleged link to drug activity was a one-time delivery of three small bags of crack cocaine to a corner dealer.  Gaines received a sentence of twenty years to life, while ranking members of the group received sentences as low as five years for testifying against her. 

Gaines served six years in prison before being released by Clinton, and when she returned to her community, jobless, without a place to live, and owning only the dress she was wearing when she was released, she turned to public housing for assistance.  She was denied based on her prior record.  “I gave them the paper where I had been released by President Clinton, but they didn’t care,” she said.  Gaines said she had done enough fighting, she did not want to fight the housing authority.  She has struggled since her release to pay the rent on her house in Mobile, Alabama and keep her family together.

When I called and told them [the Housing Authority] who I was, she said, “I don’t care about none of that.”  I said, “What am I supposed to do about housing?” She told me, “That’s your problem, not mine.”  She told me it didn’t matter to her.  No drug offenders, regardless.  It’s the same way with apartments around here.  I’ve called places on the phone and then they give you the criteria, and because I have a felony, I don’t qualify.153

Not all PHAs arbitrarily set long periods of exclusion.  Some housing officials recognize the absurdity of thinking that someone who has been arrest-free for a long period of time could be deemed a risk because of a remote criminal offense.  “We had one man apply,” said a PHA official in rural South Carolina, “he had an assault charge for domestic violence in 1983.  There’s no reason not to house this person.  If he had an ongoing problem, he would have a record.  I mean, we’re talking twenty years now.  He’s in his early fifties now.”154  Another housing official told Human Rights Watch:

You have to impose rules in a fair way.  . . . The felonies, the remoteness of the crime has to be taken into consideration. If it’s one or two years ago, you wonder.  If it’s five or six, you shouldn’t even consider it.155

Paying the Price

A social worker in Pittsburgh, Pennsylvania told Human Rights Watch about B., an African American woman in her fifties who sought public housing, when she became disabled after a period of rehabilitation and stability.

She was on the street for twenty-five years.  She had six kids, five are now incarcerated, one for life.  For twenty-five years she battled drug addiction. . . .Crack, methamphetamine, alcohol, everything, the whole spectrum. . . .   What treatment was available to her at that time [twenty-five years ago]?  She ran the streets, married her husband and they were both shortly thereafter incarcerated.  After the last five years of her own incarceration [for felony fraud], she was back to the streets.  She was passing by a picnic for Alpha House, a drug treatment facility, in the park, and when they explained to her what Alpha House was, at first she laughed and made fun of them.  But then she walked in the door and they took her.  It was amazing because they always have a waiting list, but it was fate, it was her time.  She spent two years in the program, she did de-tox, rehab, and then a step-down program.  . . .   Within six months, she was employed full time as a social service provider, she was engaged to be married, she graduated from school and was supporting her own housing.  Two months later, she broke her ankle, and she had no medical leave from her new job.  She applied for public housing, but both the city and the county housing authorities rejected her, and she chose not to appeal.  We reaccepted her back into our transitional program, she got better, went back to work full time, and applied for public housing again.  She was rejected again recently.  What the hell else does this woman have to do?  Because she’s proved that she can do it.  She did screw up, she paid enough of a price to make up for what she did, and she’s been doing everything she can.  She’s done nothing but try to erase the twenty-five years of havoc she wreaked.  She’ll do anything to make sure no one else goes down that path.  She’s open and honest about her past, and now she’s the biggest advocate we’ve had. . . . She’s watched five of her kids go down the same road, and she pays the price for it every day.156

Lack of Individualized Review

HUD guidelines provide that: “A criminal record should not automatically exclude an applicant from consideration.  The PHA should determine whether the person would be a suitable tenant.”157  When PHAs receive what HUD calls “unfavorable information” about an applicant, HUD advises them to “consider the possibility of more favorable future conduct,”158 and evaluate criminal background information on a “case-by-case basis” taking into consideration both the seriousness and remoteness of the criminal activity.159  HUD suggests that PHAs consider such mitigating circumstances as a record of rehabilitation as indicated by a report from parole officer or a social worker, or participation in a drug or alcohol treatment program.160 

Despite these recommendations, PHAs typically automatically exclude anyone with a criminal record that falls into one of their designated categories and exclusionary periods without any individualized assessment.161  They exercise their discretion in only one direction—to deny eligibility.

Rudy Vazmina, executive director of the Sarasota Housing Authority in Florida, explained his understanding of the discretion PHAs have to consider mitigating circumstances.  “We can have strict liability.  We can also use discretion to look at the totality of the circumstances.”162  Under no obligation to consider mitigation then, many PHAs have adopted “strict liability” exclusionary policies.

Jimmie Lacey, the director of public housing for the Housing Authority of the Birmingham District (HABD) told Human Rights Watch: “Our goal is to screen people in, not screen people out.  It’s to our advantage to get residents in.”163  But what we found by speaking with people who had dealt with HABD was quite different. “If you’ve ever had much worse than a parking or a speeding ticket, they’ll keep you out.  It’s a blanket policy,” explained Kenneth Lay, managing attorney of Legal Services of Metro Birmingham.

They do nothing if we don’t sue them. . . . Their policies are, whatever they can do [to keep people out], they will do.  They make no exceptions. . . .They say, well, if we exercise discretion, someone will charge us with discrimination. . . . We generally don’t win.  They stick by their policy.164

A grant of clemency is designed to “forgive[e] a person the criminal liability of his acts,”165 but PHAs are not required to consider grants of clemency in evaluating public housing applications.  “The governor gave me clemency,” said Elaine Bartlett.  Nevertheless, after serving sixteen years in prison at the time of her parole, she was told she could not request a larger apartment for her family, because she had a felony conviction.  The New York PHA manager reportedly told her: “‘You’re not even supposed to be here.  Be thankful you’re here and be quiet.’”166

Transitional housing providers who try to assist their clients in obtaining permanent housing have witnessed firsthand the refusal of some PHAs to accept applications without any assessment of rehabilitation or the actual risks posed.

“[C.] was on the waiting list for six months,” a legal service provider from Pittsburgh, Pennsylvania told Human Rights Watch about a client who had been denied:

She was perfect for public housing.  She had a small income . . . She was more devastated by the process than by the final answer, they kept asking her to come back and bring them this and bring them that. . . . She had drug possession charges in the past, and most recently, bad checks. . . . She was interviewed and denied, but we were surprised because we were working with housing trying to advocate for her, but it didn’t help.  . . . She was not a danger to anyone.167

“They add up the years and that’s it,” legal service providers said.  “Efforts at rehabilitation are in their guidelines, but it doesn’t seem to matter.”168

What’s the Use in Appealing?

S.C., a forty-year-old African American woman living with HIV in New York City, lost her apartment and everything she owned in a fire.  She received some assistance from the Red Cross but was advised to apply for public housing.  Her application was prioritized due to the fire, and she was interviewed for housing within days. 

They asked me if I’d ever been convicted of a crime, and I figured, I shouldn’t lie, so I said yes.  Then they asked me questions about drug abuse, and I couldn’t understand what any of it had to do with why I needed housing. 

The PHA told Ms. C. that she would have to get a Certificate of Disposition from the court and letters of support from various agencies.  She got the certificate, a letter of recommendation from her children’s foster care agency, letters from her doctor, psychiatrist, the Fire Marshall, Red Cross, and the Brooklyn AIDS Task Force.  “I did everything that they asked me to do.”  Two weeks after she turned over the documents, she received a denial letter. 

After she was denied, Ms. C. told Human Rights Watch:

They said I could appeal, but once they told me no, and I had just run around after a fire and went through hell to get all those letters, I said to myself, “What I’m gonna appeal for?  I’m gonna bring the same stuff back again.”  So I didn’t put in for an appeal … I might as well be getting high.  Why did you make me go to my children’s agency if you knew you were gonna deny me?  I knew in the back of my mind that they deny people.  I thought maybe they’d accept me because I had all these people advocating for me and all these letters, and they still said no.169 

An individualized review of an application typically occurs, if at all, during a hearing challenging a rejection.   Indeed it seems that PHAs may practice a “reject first, ask questions later” approach to applicants.  For example, according to local legal service providers, the Austin, Texas housing authority uses a “shotgun approach.  They reject everybody,” and then it is up to the applicant to request a hearing.  The housing authority, according to TRLA staff, wants to “see how bad they want it.”170  An attorney for Neighborhood Legal Services in Pittsburgh explained: “The city housing authority, I think, sees the grievance hearing as their exercise of discretion.  Allowing them [applicants] to have one satisfies the requirement.”171

Similarly, a legal service provider in Portland told Human Rights Watch that the position of the Housing Authority of Portland was that they would “be strict on the first cut, and then the appeals officer can look at mitigation.”172  The Oregon Law Center urged the PHA to include some consideration of mitigation in the “first cut,” but it was unable to persuade the housing authority to change its practice.  “Why should all these people have to go to the hearing when most of them are going to get in if they ask for a hearing?”173  Indeed, our research suggests that a high proportion of those who seek a hearing after a rejection will in fact be granted admission.  But the burden is on the applicant to seek review of the denial, and to be able to negotiate the appeal process simply to receive the individualized consideration that HUD guidelines already encourage. 

Despite the plain language of HUD guidelines urging careful exercise of discretion to make individual housing application decisions, housing officials across the country shared the sense that they had little such discretion, and many painted a picture of HUD officials peering over their shoulders as they made decisions about whose applications to approve.  “There is a growing realization that everyone needs somewhere to go, but we’re so limited by what we can and cannot do by federal regulations,” one PHA official told Human Rights Watch.174  “We don’t have much policy leeway,”175 another official said.  “We’re stuck with HUD regulations,” said yet another housing official in Pennsylvania:

I don’t like a fixed rule of ineligibility, I don’t think that’s fair.  . . . You can’t predict what may or may not happen.  . . . The federal government makes it very awkward.  It’s expensive [for us], and there are privacy concerns [for the applicants].  . . . If you paid your dues, it stays with you.  It’s kind of strange.  You’re denied the privilege of housing, or the right to apply for it.  It’s not a fair process.176

When pressed to explain how HUD restricted their discretion, housing officials could do no more than make vague references to the law or to HUD oversight.  They were not able to give us any specific examples or show us any documents from HUD raising questions about, or even indicating familiarity with their specific admissions policies or criteria.

Indeed, during the research for this report, we found no evidence that HUD makes an effort to ascertain how PHAs exercise their discretion in the admissions process.  Human Rights Watch made numerous efforts to hold meetings with HUD officials to discuss their review of PHA policies, among other matters.  HUD officials consistently refused to meet with us. 

On March 17, 2004, Human Rights Watch submitted a list of written questions to HUD concerning specific PHA practices and policies we had uncovered during our research that appeared to be inconsistent with federal policies.  In a written response, the department’s deputy assistant secretary in the Office of Public Housing and Voucher Programs refused to address the specific examples we had raised.  He explained:

HUD’s obligation in its oversight responsibilities extends to requiring that PHAs follow all applicable federal laws, HUD regulations, and all applicable state and local codes and laws.  As to compliance with all applicable laws and regulation, PHAs exercise their own discretion in the day-to-day management of PHAs.  It is the stated policy of HUD not to micromanage competent and successful PHAs as to program administration and decision-making.  . . . Only where a PHA fails to comply with all applicable laws, usually in extreme circumstances, will HUD undertake the day-to-day management decisions of a PHA.  It is only in this rare situation, where HUD is acting as the landlord, and substituting its own judgment for that of the PHA, that HUD would have actual knowledge of the specifics regarding the exercise of PHA discretion, absent a complaint made directly to HUD.177

In fact, Human Rights Watch reviewed HUD’s annual scoring of PHA performance and found that only one point out of a possible one hundred was related to a PHA’s “one strike” policy.  HUD officials speaking off the record and many local PHA officials told Human Rights Watch that HUD never reviewed the contents of a PHA’s policy, but rather simply checked to ensure that it had one. Auditors reportedly never examine the content of the policies.  “Our lenient policies don’t impact our HUD evaluations,” one housing official told Human Rights Watch.  “You just need to have a policy, really, that’s all they look for.” Despite the apparent lack of HUD scrutiny, however, PHAs consistently maintained to Human Rights Watch that they had adopted strict exclusionary policies because of HUD oversight.

Challenging Automatic Exclusionary Criteria

Many legal service providers told Human Rights Watch that they did not deal with public housing admissions cases.  Some offices, however, have been very active in challenging local PHA policies.  While legal service offices commonly challenge PHA practices on behalf of individual clients, at least two legal service organizations have sought class-wide relief for applicants denied under blanket policies.178  Both cases were resolved, with relief to individual plaintiffs and PHA adoption of more carefully tailored admissions criteria.

A consent order entered following a challenge brought by the Atlanta Legal Aid Society is the most sweeping relief we found.179  The unpublished consent decree requires the PHA to limit their review of criminal convictions to those obtained within five years of the application, consider only convictions and not arrests, and to take into consideration evidence of rehabilitation.  Legal Aid attorneys elsewhere in Georgia have used the order to pressure other PHAs to amend their policies accordingly.180

Attorneys at the Homeless Persons Representation Project (HPRP) in Baltimore undertook a lengthy process of pressuring the PHA to revise its zero-tolerance blanket policies.  Threatened with a federal lawsuit similar to the Atlanta case, the PHA recently adopted revised guidelines and attorneys continue to monitor the PHA’s adherence to the new policy.181

There are very few published decisions on individual admissions cases.  A challenge brought by Pine Tree Legal Services in Maine, however, resulted in a thoughtful decision by the Maine Superior Court.182  The local PHA had adopted a policy excluding anyone with a criminal record for violent activity at any time in the past.  Ruling on a challenge by an applicant who had been convicted of a sex offense fifteen years prior to his application, the court found that the housing authority never considered the time that had passed since his conviction.  The court rejected the PHA’s claim that admissions are entirely discretionary and that the “housing authority is free to establish standards which may be more stringent than those promulgated by HUD.”183  The court reasoned:

The HUD regulations do not place an unreasonable burden upon the housing authority by requiring that it undertake an inquiry into the reasonableness of the time which has passed since the date of the acts.  Such inquiry would presumably include looking into the circumstances of the conviction, what has transpired since the conviction, and the amount of time which has passed since the conviction.  There is no bright-line standard for a reasonable amount of time.  By accepting a zero-tolerance policy regarding convicted individuals, the Respondents divert from the clear intent of the policy reflected in the HUD regulations.  The regulations unambiguously mandate a consideration of whether a reasonable time has passed since the conviction (thus presumably rendering the applicant non-dangerous to other residents).  In the absence of such a consideration and finding, the Respondent has circumvented this necessary analysis.184

[136] HUD, Public Housing Occupancy Handbook, Chapter 4: Suitability for Tenancy, 4-1(b)(10), p. 4-3.

[137]A report by the Legal Action Center shows that over half of the largest PHAs in each state deny applicants on the basis of arrest records that do not lead to conviction.  Legal Action Center, “What’s the Law,”  in After Prison: Roadblocks to Re-Entry. Some PHAs, however, placed applications on hold pending the resolution of criminal charges. Human Rights Watch interview with Bernie Jay Meyers, executive director, Williamsport Housing Authority, Williamsport , Pennsylvania, December 1, 2003.

[138] Human Rights Watch interview with Anthony Williams, director of housing occupancy, Housing Authority of the City of Pittsburgh, Pittsburgh, Pennsylvania, January 27, 2004.

[139] Human Rights Watch interview with Carol Coley, hearing officer, Housing Authority of Portland, Portland, Oregon, August 1, 2003.

[140] Human Rights Watch interview with P.C., Pittsburgh, Pennsylvania, January 31, 2004.

[141] See John J. Ammann, “Criminal Records of the Poor and Their Effects on Eligibility for Affordable Housing,” Journal of Affordable Housing, Vol. 9, No. 3, Spring 2000.  Ammann provides several case studies of low-income people unable to obtain housing assistance because of outstanding warrants for such offenses as public transit violations.

[142] Human Rights Watch interview with Laurie Meadows, public housing manager, Newberry Housing Authority, Lawrence, South Carolina, December 16, 2003.

[143] Human Rights Watch interview with Renee D’Ippolito, case manager supervisor, Bethlehem Haven, Pittsburgh, Pennsylvania, January 30, 2004.

[144] Human Rights Watch interview with an official from the Housing Authority of the City of Pittsburgh, Pittsburgh, Pennsylvania, January 27, 2004.

[145] Ibid. 

[146] Human Rights Watch interview with Henry Shoenfeld, deputy general counsel for civil litigation, New York City Housing Authority (NYCHA), New York, New York, May 25, 2004.  See, e.g., Faison v. New York City Housing Authority, Order of N.Y. Co. Supreme Court, June 1, 2000 (Goodman, J.), reversed by 283 A.D.2d 353, 354, 726 N.Y.S.2d 23, 24 (1st Dep’t 2001).

[147] ABA Standards.

[148] Equal Employment Opportunities Commission Notice, “Policy Guidance on the Consideration of Arrest Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964,” N-91 5.061 9/7/90, available online at:, accessed on June 7, 2004 (EEOC Notice).

[149] “Pindua” is a Swahili verb meaning to change direction, or turn around.

[150] Human Rights Watch interviews with S.W. and Christina Batesmore, Project Pindua, Mon Yough Community Services, Pittsburgh, Pennsylvania, January 28, 2004.

[151] Human Rights Watch telephone interview with Sheila Fauntleroy, Project Pindua, Mon Yough Community Services, Pittsburgh, Pennsylvania, April 16, 2004.

[152] Human Rights Watch interview with Kelli Dunn Howard, staff attorney, Texas RioGrande Legal Aid, Austin, Texas, February 11, 2004.

[153] Human Rights Watch telephone interview with Dorothy Gaines, March 30, 2004; See also, Chuck Armsbury, Sr., The November Coalition, “Dorothy Gaines, Guilt by Association,” available online at:, accessed on July 6, 2004; “Clinton Grants Pardon to 59,” Miami Herald, December 23, 2000.

[154] Interview with Laurie Meadows, December 16, 2003.

[155] Interview with Bernie Jay Meyers, December 1, 2003.

[156] Human Rights Watch interview with Adrienne Wolnoha, Community Human Services Corporation, Pittsburgh, Pennsylvania, January 29, 2004.

[157] HUD, Public Housing Occupancy Handbook, Directive No. 7465.1 Rev.-2, Chapter 4, 4-3(b)(11).

[158] Ibid., Chapter 4, 4-3(a).

[159] HUD, “One Strike and You’re Out” Policy.

[160] HUD, Public Housing Occupancy Handbook, Chapter 4, 4-3(b)(1)(a) & (b).

[161] Ibid., Chapter 4, 4-3(b)(11).

[162] Human Rights Watch interview with Rudy Vazmina, executive director, Sarasota Housing Authority, Sarasota, Florida, March 20, 2003.

[163] Human Rights Watch interview with Jimmie Lacey, director of housing management, HABD, Birmingham, Alabama, December 10, 2003.

[164] Telephone interview with Kenneth Lay, December 12, 2003.  The director of one of the largest shelters in Birmingham for homeless men claimed: “This housing authority is one of the worst housing authorities I’ve ever dealt with . . . they won’t bend their rules.  In my experience, they don’t make exceptions.” Human Rights Watch interview with Steve Freeman, executive director, The Old Firehouse Shelter, Birmingham, Alabama, December 11, 2003. 

[165] “Clemency” is a general term that encompasses pardon, amnesty, and commutation.  Steven H. Gifis, Barron’s Law Dictionary, 3rd ed. (Hauppauge: Barron’s Educational Series, 1991).  See, e.g., Herrera v. Collins, 506 U.S. 390, 412 (1993). 

[166] Gonnerman, Life on the Outside, p. 232.

[167] Human Rights Watch interview with Doreen White, housing and employment specialist, Transitional Living Center, Pittsburgh, Pennsylvania, December 1, 2003.

[168] Human Rights Watch interview with Meghan Tighe, staff attorney, Neighborhood Legal Services, Pittsburgh, Pennsylvania, January 27, 2004.

[169] Human Rights Watch interview with S.C., New York, New York, November 3, 2003.

[170] Human Rights Watch interview with Virginia Rojo Holland, paralegal, Texas RioGrande Legal Aid, February 11, 2004.  At the Housing Authority of the City of Pittsburgh, for example, all applications are initially denied if the criminal background check reveals prior criminal activity, and the applicant is given an opportunity to appeal.  One PHA official said: “For the sake of integrity, We don’t believe we should have that discretion.”  Another added: “We wanted to objectify a very subjective process, so we believe a hearing officer should look at it [because] we have family and friends of employees coming into the office. . . .They can appeal it if they like.”  Human Rights Watch interviews with Suman Jaswal and Anthony Williams, Housing Authority of the City of Pittsburgh, Pittsburgh, Pennsylvania, January 27, 2004.  The Cuyahoga Metropolitan Housing Authority (CMHA) denies applicants who had convictions more than three years prior to the application, and does an individualized determination only if applicants ask for a hearing. Human Rights Watch interview with Duane Browder, vice chairman, Board of Commissioners, CMHA, Cleveland, Ohio, May 8, 2003.

[171] Human Rights Watch interview with a lawyer from Neighborhood Legal Services, Pittsburgh, Pennsylvania, January 27, 2004.

[172] Human Rights Watch interview with Mickey Ryan, Oregon Law Center, Portland, Oregon, August 7, 2003.

[173] Ibid.

[174] Human Rights Watch interview with Anthony E. Woods, executive director, Greene County Housing Authority, Eutaw, Alabama, December 12, 2003.

[175] Interview with Esther Keosababian, February 6, 2004.

[176] Interview with Bernie Jay Meyers, December 1, 2003.

[177] Letter to Human Rights Watch from William O. Russell, III, deputy assistant secretary, Office of Public Housing and Voucher Programs, HUD, April 5, 2004.  

[178] Legal service agencies that receive funding from the federal government are not permitted to file class action lawsuits to obtain relief for a group of applicants. Federal law states: "None of the funds appropriated . . . to the Legal Services Corporation (LSC) may be used to provide financial assistance to any person or entity . . . that initiates or participates in a class action suit." Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, § 504(a)(7), 110 Stat. 1321, 50 (1996) (codified at 29 U.S.C. 2996e(d)(5)).  This restriction has been re-imposed in each subsequent year's LSC budget allocation.  “Recipients are prohibited from initiating or participating in any class action.” 45 C.F.R. § 1617.3 (2004). The Committee on Economic, Social and Cultural Rights has suggested that “[i]n some legal systems it would also be appropriate to explore the possibility of facilitating class action suits in situations involving significantly increased levels of homelessness.”  Committee on Economic, Social, and Cultural Rights, General Comment No. 4, para. 17.

[179] Consent decree in Bonner v. Housing Authority of Atlanta, Georgia, No. 1:94-CV-376-MHS (N.D. Ga. October 11, 1995).

[180] Human Rights Watch telephone interview with Dennis Goldstein, attorney, Atlanta Legal Aid Society, June 1, 2004.

[181] Human Rights Watch e-mail correspondence with Carolyn Johnson, staff attorney, Homeless Person’s Representation Project, Baltimore, Maryland, to Human Rights Watch, May 21, 2004; Complaint on file with Human Rights Watch.  Baltimore Housing Authority adopted a chart developed by the HPRP to guide staff in making admissions decisions.

[182] Ouellette v. Housing Authority of the City of Old Town, Docket No. AP-03-17, 2004 Me. Super. LEXIS 60 (March 12, 2004).  Human Rights Watch asked a HUD spokesperson to comment on how, absent a lawsuit like the one brought on behalf of Ouellette, HUD would become aware of PHA policies and practices that are in conflict with federal law and HUD guidelines.  She responded that HUD would not be aware unless an applicant brought an issue to the agency’s attention.  “It’s about making applicants more aware of their rights,” she said, “I don’t know who it would be [who would do that], its not our responsibility. . . It’s about making ex-offenders more aware of their rights.  I don’t know how I can respond to that, the policy is there and what HUD’s intent is [is clear], an applicant can go to the legal services.”  Human Rights Watch telephone interview with HUD spokesperson Donna White, May 21, 2004.  When asked how applicants would know their rights if they did not have access to an attorney, she responded: “I really don’t know.”

[183] Ouellette, *3-4.  Because the plaintiff was convicted of the sex offense prior to the establishment of the state’s sex offender registry, he was not required to register and therefore was not subject to the federal ban.

[184] Ouellette, *4-5. 

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