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<<previous | index | next>> IX. Screening People Out: “Felons Need Not Apply”If you’ve got the big ‘F,’ it’s hard to move forward.217 Many people in need of housing assistance do not apply because they have criminal records. Although there is no way to quantify this assertion, our research indicates that many eligible applicants, or those who would certainly be eligible if PHAs rightfully gave individual consideration to each application, do not apply. Some do not know they are eligible despite having a criminal record, others are misled into believing that they are not, and still others are turned away at the applications desk by PHA employees who do not understand the exclusionary policies. In every city Human Rights Watch visited to conduct research for this report, social service providers, prison officials, probation and parole officers, homeless service providers, housing advocates, and even people with criminal records and their advocates told us that it was “common knowledge” that felons, especially drug offenders, were automatically ineligible for public housing. Many of those providing support and services to people with criminal records were not aware of the policies of their local PHAs. They based the information they had on rumors, past experiences with applicants who had been denied, and very rudimentary and infrequent contact with staff from local PHAs. As a result, an overwhelming majority of the homeless people with criminal records we spoke with had not even considered public housing as an option. “They’re not even applying because they know they’re not going to get it,” a Baltimore parole agent told Human Rights Watch.218 A homeless woman in Birmingham echoed this thought: “A lot of people don’t apply because they know they got a felony and they’re not going to get public housing.”219 Some of those seeking assistance were turned away at applications offices, or discouraged from applying by PHA staff. “I asked for an application for Section 8,” a young man with a felony conviction in New York told us, “They asked me if I had a felony. I said, ‘yes.’ They said I wasn’t eligible because of the felony. They said, ‘Well, then, this application isn’t for you.’”220 One commentator called officials who discourage those who might be eligible from applying “welfare cheats.” “They are not people who receive welfare illicitly,” David Shipler explains, The more damaging welfare cheats are the caseworkers and other officials who contrive to discourage or reject perfectly eligible families. These are the people who ask a working poor mother a few perfunctory questions at the reception desk, then illegally refuse to give her an application form . . . It is a clever tactic, say the lawyers, because they cannot intervene on behalf of a client who has not applied.221 Social service providers often actively discourage their own clients from applying for public housing, sometimes because they misunderstand the policies of the local PHA, and sometimes because they do not want to set their clients up for failure. A case manager in Pennsylvania explained her reluctance to send clients to apply for public housing: “I’m not sure if I should tell residents to apply if they have a felony record, if it’s worth the hassle because it’s just such a set-up, even if there is an appeal. . . . I just don’t encourage them.”222 A transitional housing provider in Birmingham echoed her concern. “Once someone tells you they’re not accepting ex-felons,” he explained, it seems “unkind” to refer clients to a service they are unlikely to get.223 The Screening ProcessFederal law authorizes and encourages PHAs to screen out applicants based on criminal records, and PHAs have adopted a variety of methods for doing so. Many PHAs ask applicants when they apply about their past involvement with the criminal justice system,224 and then seek official criminal records from public or private sources.225 Other PHAs wait until an application comes to the top of a waiting list and a housing unit is available before conducting a criminal background screen, and several years may pass between the time a person applies and when the criminal background check is completed. Consequently, many applicants who will inevitably and ultimately face denial based on their criminal records languish on waiting lists, often completely unaware of which offenses could result in denial and what kinds of rehabilitation the PHA will ultimately require for admission.226 If PHAs told applicants up front both how PHA exclusionary policies would affect them and what kind of evidence of mitigation and rehabilitation they would need to become eligible, an applicant could use the intervening months, and often years, to gather evidence of rehabilitation.227 The Cost of a Criminal Background CheckPHAs are not permitted to pass the cost of a criminal background check along to an applicant for public housing.228 HUD has no affirmative responsibility, however, to ensure that this does not happen, and has no process for regularly reviewing the actions of PHAs. HUD officials told Human Rights Watch they rely on applicants and legal service providers to notify them of PHA practices that violate the law.229 But most applicants have no idea what their PHAs can and cannot do, and legal service providers in some areas were unaware that the practice was in violation of the law. Applicants for housing in Lycoming County in Pennsylvania, for example, are reportedly charged $75 for a criminal background check.230 The Austin Housing Authority requires applicants to obtain their own criminal histories from the Texas Department of Public Safety by paying a fee of $15. Applicants who choose to follow through with the application process can then present their receipt to the housing authority to receive a cash refund. When Human Rights Watch asked HUD to comment on whether Austin’s practice of shifting the initial cost to the applicant was consistent with federal law, an agency spokesperson declined to respond, because a complaint had not been brought to HUD’s attention.231 The costs associated with a criminal background check go beyond simply obtaining criminal records. Applicants who dispute the veracity of a PHA’s criminal background check bear the burden of providing additional records. And in cases where applicants are called on to show mitigation or rehabilitation, to the extent that those records entail a cost to reproduce, applicants bear that cost. Less than Reliable Criminal Background InformationWhen PHAs seek to acquire criminal background information, they utilize a patchwork of sources—from informal phone calls to the sheriff down the road and paying for information from commercial vendors to accessing state repositories or the National Crime Information Center (NCIC) database for comprehensive criminal histories.232 Commercial vendors—companies which collect and sell individual background data—are quickly growing enterprises, but critics explain they are unreliable.233 Lawyers in Texas told Human Rights Watch that the Travis County Housing Authority pays $200 a year for unlimited criminal background “hits” from a commercial vendor, which they claim is “horribly unreliable. . . . It doesn’t list everybody, but incomplete can be dangerous. It’s sloppy, but it cuts both ways.”234 PHA officials told us about a recent applicant who had been erroneously rejected because of inaccurate information provided by a commercial vendor: One girl, she had convictions on her record for prostitution and drugs, selling crack cocaine in Columbia, South Carolina five years ago. I denied her, she called saying, “I don’t have any drug charges.” We told her: “put it in writing, ‘that’s not me.’” We had to go call [the state criminal records repository] because there was no social security number, it just hits on a name and date of birth. It was a common name, same date of birth, and it turns out it wasn’t her.235 Even official law enforcement records contain some errors. One study found that 87 percent of criminal record after prosecution (“rap”) sheets included at least one error.236 PHAs recognize that criminal justice records are sometimes inaccurate, and they have different ways of dealing with inaccuracies—from allowing applicants to view their records before housing officials see them,237 to confirming any negative information by requiring applicants to submit fingerprints.238 But most PHAs simply rely on applicants to challenge their denials at informal hearings. This is not an effective way to ensure that applicants are treated fairly, because, as described in the section “Lack of Individualized Review” in Chapter VII of this report, applicants have difficulty availing themselves of their right to challenge denials. The Cost of Making a Mistake on a Housing ApplicationApplicants may unwittingly, or out of fear that they will be denied, provide erroneous or incomplete information on their initial housing applications. Providing false or inaccurate information on an application for public housing almost always leads to a denial of eligibility.239 Indeed, PHA officials themselves told us that a one of the leading reasons for denial is providing “false” information on an application. Many applicants perceive that the cost of lying justifies the need to lie if they will ultimately be denied because of prior arrests or convictions. One advocate explained: “Why do they lie? Because they know they will be denied; that you will be homeless, and this is an opportunity to get some help that you definitely need. The risk is minor.”240 But Human Rights Watch also spoke with many people who were unable to understand or articulate their own criminal histories. Because criminal background checks conducted by PHAs reach so far into the past, many applicants are accused of lying on their applications when they fail to remember the details of prior cases, or worse, when a case was dismissed but the applicant is unable to prove it. An attorney in Baltimore told Human Rights Watch that the housing authority “would go ten, twenty years back. [A] nol pros241 twenty years ago. They [applicants] didn’t remember what happened. The housing authority would try to make it look like they were lying.”242 There are certain legal outcomes of criminal proceedings that applicants may not understand—either because they lack the ability to understand them or because the outcomes themselves are unclear. An individual arrested for a drug offense and diverted to an alternative to incarceration program (ATI), for example, completes the program and is told by a judge that her record is “clean.” Relying on that information, the applicant answers “no” when asked if she has ever been arrested or convicted. Because dispositions in ATI cases are often confusing, and because completion is not always reported to agencies that manage criminal background data, the information received by a PHA very likely will show the arrest or conviction, and the applicant will then be considered to have misrepresented the information or lied, and hence, denied assistance. PHAs allow applicants they consider to have misrepresented criminal history information to explain why the information they provided did not match the information retrieved by the PHA through the criminal background check process. PHA officials, however, told us that they did not consider an applicant’s failure to understand a criminal disposition a valid excuse.
[217] Human Rights Watch Interview with Sheila Fauntleroy, Project Pindua, Mon Yough Community Services, Pittsburgh, Pennsylvania, January 28, 2004. [218] Interview with Jaqueline Hawkins, November 18, 2003. [219] Human Rights Watch interview with P.D.P., Church of the Reconciler, Birmingham, Alabama, December 11, 2003. [220] Human Rights Watch interview with E.B., twenty-four-year-old Latino man in New York. Even when they chose to apply, most of those with criminal records we spoke with had little hope that their applications would be approved. As one woman who had been convicted of a felony seven years prior to her application told us: I’ve never had a record since then [in the last seven years]. I was eighteen at the time this happened. A friend of a friend who lives in public housing told me that I can’t get housing because of my record. She asked a lady at CMHA [Cuyahoga Metropolitan Housing Authority] for me and the lady said you can’t get housing. The housing authority didn’t send me a rejection letter. I called and asked about my application. They said someone will get back to me, but they didn’t. I said forget it because I already heard you can’t get in. I was just trying to see if it was true. Human Rights Watch interview with M.L., Cleveland, Ohio, May 5, 2003. [221] Shipler, The Working Poor: Invisible in America, p. 229. [222] Interview with Renee D’Ippolito, January 30, 2004. [223] Human Rights Watch telephone interview with Chris Retan, executive director, Aletheia House, Birmingham, Alabama, December 10, 2003. [224] Human Rights Watch reviewed sample applications from over twenty-five different housing authorities; some included questions about the applicant’s arrest history, others asked specifically about an applicant’s past convictions. [225] Although federal law authorizes law enforcement agencies to release information to PHAs, it does not require them to do so. As a result, some PHAs have developed relationships with law enforcement or state criminal record repositories; others seek information from companies that sell criminal background information. Federal law does not limit how far back into an applicant’s life criminal background checks can extend, and many PHAs receive information about a person’s entire criminal history, even though there are only two types of offenses that carry lifetime exclusions. California PHAs are a notable exception, because state law prevents them from obtaining information about criminal convictions that occurred ten years prior to the application, and in some cases, those that occurred more than five years prior. Law enforcement agencies are permitted to release to housing authorities information about convictions involving controlled substances or alcoholic beverages within five years. California Penal Code § 11105.03(b)(4). Section 11105.03 limits the information a law enforcement agency can provide that “relates to a conviction for a serious felony . . . involves a violation of a protective order . . . , or a conviction for any felony offense that involves controlled substances or alcoholic beverages, or any felony offense that involves any activity related to controlled substances or alcoholic beverages, or a conviction for any offense that involves domestic violence.” § 11105.03(b)(1). The statute prohibits the release of arrest information where the arrest did not result in conviction. § 11105.03(b)(2). The statute further provides: “If a housing authority obtains summary criminal history information for the purpose of screening a prospective participant pursuant to this section, it shall review and evaluate that information in the context of other available information and shall not evaluate the person’s suitability as a prospective participant based solely on his or her past criminal history.” California Penal Code § 11105.03(c). [226] In its Public Housing Handbook, HUD recognized applicants’ interests in finding out sooner, rather than later, that they may be ineligible, but noted that a PHA that waits until an applicant comes to the top of the waiting list before conducting an assessment “avoids the time and expense involved in evaluating applicants who will drop from the waiting list before their names can be reached.” Chapter 4-1(b)(5), page 4-3. [227] The New York City Housing Authority (NYCHA) provides applicants it denies with information about what kinds of evidence they would need to show to overcome a finding of ineligibility. Unfortunately, NYCHA provides this information at the end of the process, after an applicant has likely spent years on a waiting list. But in fact, most PHAs do not tell applicants anything at all about what kinds of evidence they would need to show. [228] 24 CFR § 982.553 (d)(3) (Section 8); 24 CFR § 960.204 (d) (public housing). [229] See also the section on “Challenging Automatic Exclusionary Criteria” in Chapter VII of this report; Human Rights Watch telephone interview with Donna White, HUD spokesperson, May 21, 2004. Until HUD directed the Baltimore Housing Authority (BHA) to halt the practice in 1997, BHA required all applicants for public housing to purchase copies of their own criminal histories to provide to the housing authority, without notifying the applicants that they would be summarily denied eligibility for assistance if their histories included any arrests. BHA’s practice of denying anyone with a criminal history was so broad that applicants were denied assistance for any arrests—even those where the charges were ultimately dismissed. [230] Human Rights Watch interview with Danna Rich-Collins, officer manager/paralegal, North Penn Legal Services, Williamsport , Pennsylvania, December 1, 2003; Human Rights Watch interview with S.L., Sojourner Truth Ministries soup kitchen December 2, 2003. Officials at the Lycoming County Housing Authority failed to respond to repeated requests for information. [231] Letter to Human Rights Watch from William O. Russell, III, deputy assistant secretary, Office of Public Housing and Voucher Programs, HUD, April 5, 2004. [232] HUD, “Table II-6: The Sources Of Information For Criminal Background Checks, By Program Size,” The Uses of Discretionary Authority in the Tenant-Based Section 8 Program: A Baseline Inventory of Issues, Policy, and Practice (November 2000), p. 15.
[233] See, e.g., HUD, “Table II-6: The Sources of Information For Criminal Background Checks, By Program Size,” The Uses of Discretionary Authority in the Tenant-Based Section 8 Program: A Baseline Inventory of Issues, Policy, and Practice (November 2000), p. 15. Commercial vendors often use a system of “name-plus-identifier,” matching the names and one other piece of personal information, such as a social security number or birth date. Commercial vendors that make information available on their websites include a “disclaimer” putting the user on notice that they cannot guarantee the accuracy of the records. A study by the National Task Force on Interstate Identification Index Name Check Efficacy, however, found that in a sample of over eighty-two thousand people, 4,562 (5.5 percent) were inaccurately found to have criminal records. National Consortium for Justice Information and Statistics (SEARCH), Interstate Identification Name Check Efficacy Report to the Attorney General (1999), p. 3. [234] Human Rights Watch interview with Nelson Mock, staff attorney, Texas RioGrande Legal Aid, February 11, 2004. [235] Interview with Laurie Meadows, December 16, 2003. [236] Legal Action Center, Study of Rap Sheet Accuracy and Recommendations to Improve Criminal Justice Recordkeeping, (1995). The study found that 41 percent of all records contained two or more errors, including missing disposition information, unsealed cases, unrecorded warrants that had been vacated, split arrest events, and inaccurately recorded disposition information. [237] Applicants at the Birmingham Housing Authority get their criminal background checks done themselves in the same building as the PHA, and after reviewing their rap sheet, they can decide for themselves whether to continue with the application process. This approach gives applicants a chance to correct any errors before the PHA sees their rap sheets, and to engage in additional rehabilitation prior to continuing with the application, but it places those with open cases at risk. A Birmingham housing official told Human Rights Watch: The criminal background check is done in the building, they take it to the office and they [the police] run it. They can decide not to give it to us. . . . If someone comes in with an outstanding warrant, they will go to jail. They are arrested right out of the office. Approximately 30 people a month are arrested when they go to get their backgrounds checked. Even for parking tickets. That’s the most common. Interview with Jimmie Lacey, December 10, 2003. Applicants who have been arrested from the housing authority office also include people who have third degree misdemeanor check charges and theft of property charges, “misdemeanor stuff,” Lacey explained. “We had one today, she owed $127 in fines, and she had some arrest warrant from ten years ago. It was an assault, a domestic violence situation where she and her batterer were arrested.” Ibid. [238] See Allen v. Muriello, 217 F. 3d 517 (7th Cir. Ill. 2000). [239] Some PHAs explicitly warn applicants against providing false or incomplete information on the initial application. For example, the form used by the Housing Authority of the County of Los Angeles (HACoLA) states: A criminal conviction alone may not necessarily result in the denial of assistance. Other factors such as disclosure on the application for housing assistance, completion of rehabilitative treatment, type and longevity of the conviction may also be taken into consideration. An applicant who fails to provide complete and accurate information as requested may be denied assistance. See also HACoLA Section 8 Administrative Plan, § 2.6.s [240] Human Rights Watch interview with Susan Burton, executive director, A New Way of Life, Los Angeles, California, February 5, 2004. In at least one instance, however, the PHA took action to prosecute an applicant who had not fully disclosed his background to the agency in federal court. U.S. v. Westover, 2002 U.S. Dist. LEXIS 19714 (D. Kansas). The Topeka Housing Authority brought Verel Tracy Westover Sr. to federal district court where he was charged with making a material and false statement on his application for public housing. The application Westover completed asked: “Have you ever been convicted of a FELONY, serious MISDEMEANOR or for DRUGS?” Westover responded “yes” on the application, disclosing a 1998 conviction for writing bad checks, but did not mention felony convictions he had in 1984. A subsequent criminal background check done by the THA revealed information about the fourteen-year-old convictions. Westover’s attorney told Human Rights Watch that his client, now serving a year and a day in federal prison, is a senior citizen who had just undergone bypass surgery and was residing in an elderly hospice at the time he was sentenced. He explained his client’s response on his application as the result of confusion rather than an intention to misrepresent his record. Westover “had a six-inch record that an attorney would have a hard time understanding.” Human Rights Watch telephone interview with Ronald E. Wurtz, assistant federal defender, Office of the Federal Public Defender, Topeka, Kansas, January 16, 2004. [241] “Nolle prosequi “ is a Latin term for “unwilling to prosecute,” or the prosecution’s abandonment of a charging document. Barron’s Law Dictionary, 3rd ed., p. 320. [242] Human Rights Watch interview with Carolyn Johnson, staff attorney, Homeless Persons Representation Project, Baltimore, Maryland, November 17, 2003. [243] H.G. had applied for housing through Allegheny Housing Rehabilitation Corporation (AHRCO), a housing agency that operates with a combination of public and private funding and whose admission policy is governed by HUD regulations. Human Rights Watch telephone interview with John Ponds, vice president, AHRCO, April 20, 2004. [244] Human Rights Watch interview with Kathy Hupner, case manager, Debra House, Pittsburgh, Pennsylvania, January 28, 2004. [245] Pennsylvania State Police, Pennsylvania Access to Criminal History (PATCH) Response for Criminal Record Check, March 11, 2002, on file with Human Rights Watch. [246] Human Rights Watch interview with H.G., Debra House, Pittsburgh, Pennsylvania, January 28, 2004. [247] Letter to H.G. from Ms. Bey, AHRCO Management Division, September 24, 2003. The letter stated: “The principal reason(s) for this adverse action: Other: unsatisfactory criminal report.” [248] Letter to Mr. Washington, AHRCO, October 9, 2003 from H.G., on file with Human Rights Watch. [249] Human Rights Watch interview with Kathy Hupner, case manager, Debra House, Pittsburgh, Pennsylvania, January 28, 2004. [250] Human Rights Watch interview with H.G., Debra House, Pittsburgh, Pennsylvania, January 29, 2004.
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