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VIII. Legislatively Mandated Categories of Exclusion from Public Housing

While federal law gives PHAs discretion in most instances to determine who is suitable for public housing, it expressly prohibits PHAs from providing housing assistance to three categories of offenders—those believed to be using drugs, those required to register as “sex offenders,” and those convicted of manufacturing methamphetamine on public housing premises.  People in the latter two categories are excluded for life, regardless of the number of years they have spent without committing another offense. 

Denials Based on Evidence of Drug Use

PHAs may not admit anyone they reasonably believe is currently using illegal drugs.185  Federal law and HUD regulations specifically authorize PHA officials to ask applicants about their drug use histories and, after receiving consent from the applicants, obtain otherwise confidential records from their treatment providers.186  PHAs can admit applicants with a history of drug use, including recent use, if they are able to show sufficient rehabilitation.

Human Rights Watch recognizes the unique problems that have arisen in many low income communities, particularly in public housing developments, from the illegal drug trade.  Public housing tenants themselves have struggled against the violence and harassment that is part and parcel of the illegal drug trade, and indeed, housing exclusionary policies have their roots in tenants’ efforts. 

There is no doubt that certain harms—to individuals, families, and communities—can, in some cases, attend illegal drug use.  But contrary to popular assumption, drug use does not necessarily entail violence, crime (except that inherent in the buying and possession of drugs themselves), or even serious harm.  Most drug users do not even develop a dependency on drugs.  In fact, “there are ample data supporting a conclusion that . . . most drug use is transient, noncompulsive, and innocuous.”187 

Often people confuse the prevalence of drug use among those charged with violent and property crimes to mean that those who use drugs are more likely to engage in such crime.  To the contrary, most drug offenders appear to be otherwise law-abiding individuals.188  In fact, the vast majority do not commit violent or property crimes at all.189

Federal housing law, consistent with federal drug policy, considers all drug use to be drug abuse.  U.S. Department of Health and Human Services statistics reveal that only a small percentage of those who use drugs become heavy drug abusers or addicts.  For example, of the 3.7 million Americans who have used heroin, only 3 percent used it in the last month.190  Although nearly thirty-five million Americans twelve years or older have used cocaine in their lifetime, only 0.6 percent of the entire U.S. population (i.e., less than 2 million people) are considered to have abused the drug or developed a dependency.191  As a leading critic of drug laws has pointed out, “So much of the media attention has focused on the relatively small percentage of cocaine users who become addicted that the popular perception of how most people use cocaine has become badly distorted.”192

Because drug use is illegal and highly stigmatized, most people become aware of it only when it wreaks havoc—when someone overdoses, commits a crime, or when a life falls spectacularly apart.  The only other drug users most people are aware of (besides politicians, radio talk-show hosts, and nominees for high level positions like Supreme Court justice) are former users who seek to impress upon their audiences the importance of recovery by emphasizing a litany of horrors.  The public is rarely exposed to and the media pays little attention to people whose drug use is uneventful and transient.193 

There is a common assumption that drug users are more likely than not to bring with them a whole passel of problems—attracting other drug users and dealers who will jeopardize peace, quiet, and safety; resorting to stealing; or harassing neighbors in some way, for example, by appearing in front of children comatose and obviously drugged.194  This fear is based on what statisticians call a sampling error or a built-in bias, the result of conclusions drawn from the most extreme examples, which, not surprisingly, are the examples most frequently presented by the media.195  Perhaps more telling, though, is that over 110 million Americans have used illicit drugs during the course of their lives.196  If it were true that the above-enumerated harms attended all drug use, the United States would be in a state of constant chaos.

Human Rights Watch asked one building manager from a private SRO hotel in Manhattan if he knew if any of his tenants used drugs.197  “Oh yeah, a lot of them do,” he told us, “But so do people in that building and that building and that building over there,” he said, pointing to the many private apartment buildings up and down the street.  When we asked him if they caused problems, he said, “There are always people who create problems.  They bother other neighbors, they play music loud, they don’t pay their rent.”  But, he explained, this was everyone, not just drug users.  “A lot of people who use, they’re addicts, and they don’t bother nobody.  They get their drugs and they use them in their rooms.”198 

It may be difficult to tell the difference between an applicant who uses illegal drugs without causing problems for those around him and one who will ultimately pose a risk.  But there are objective criteria that PHAs can look to in order to determine whether someone would pose a risk: first and foremost, the absence of any past offenses besides the possession of drugs.  PHAs could, in addition, look to additional evidence like character references, proof of employment, or enrollment in job training.  Under current law and practice, when applicants challenge denials in administrative proceedings (whatever the basis of denial), administrative law judges already consider this type of information.

Though federal law requires a PHA to deny admission to applicants who it reasonably believes are currently using drugs, denial on this basis alone is rare.  In practice, the issue of current drug use typically arises during the application process either when an applicant’s criminal background suggests past involvement with drugs (a drug possession charge), or when the applicants themselves seek to use evidence of drug rehabilitation to show that they are unlikely to commit another type of offense (such as petty theft or prostitution).  In such cases, absent sufficient evidence of rehabilitation, PHAs will presume that the applicant is a “current user” and will deny their application.

Human Rights Watch understands the need to ensure that those drug users likely to disrupt the safety of a community are not housed in traditional public housing developments.  Instead of simply excluding all current drug users, however, PHAs should be permitted to assess the nature and effects of a person’s drug use instead of making blanket assumptions about the character of all drug users.  At the same time, HUD should begin to develop alternative housing for those excluded to ensure that they are not relegated to homelessness.199

“Sex Offenders”

If our national attitude is one of fear, which it is, when you foster an attitude of fear, everybody begins to buy into that fear.  You become afraid of everything.  . . . This is fear mongering at a national level [and] one of the biggest targets is sex offenders.200<
—Fred Butler, executive director, Community Action Network

In an effort to exclude “dangerous sex offenders” from regular public housing, federal law prohibits anyone subject to state sex offense registries201 from admission to public housing.202  A lifetime exclusion from public housing may sound reasonable in terms of protecting children from violent, repeat sexual predators, but not everyone who has committed a sex offense poses a danger to children or others, much less a lifelong danger. 

State sex offender registries are not limited to predatory child molesters and violent serial rapists.  Some of the over 450,000 people currently listed in state sex offender registries203 are young men who had sexual relationships with girlfriends no more than a few years younger than them.  Some are women convicted of conspiracy to commit sexual abuse against a child for failing to protect a child from sexual abuse by a boyfriend, husband, or other male family member.  People subject to lifetime sex offender registration requirements also include those whose offenses consisted of indecent exposure or lewd displays, often related to a substance abuse or mental health diagnosis or homelessness.  For example, relieving oneself in public can—and many times does, in the case of homeless people and the mentally ill—result in a charge of indecent exposure. 

Helen Varty, executive director of the Capital Area Homeless Coalition in Austin, Texas told Human Rights Watch:

Sex offenders are the hardest.  Most of them take a plea, they are mentally ill or developmentally disabled, and they exposed themselves.  From now on, they can’t live anywhere.  I mean, they get these offenses for pissing off the porch.  Most sex offenders that took plea bargains; they say, “that’s the only choice I had.”  They end up on the streets.204

In many states, the most dangerous, violent sexual predators are incarcerated for long periods of time, some for the rest of their lives.  In addition to prison sentences, about a third of all states have provisions for the civil commitment of sex offenders.205  But many sex offenders will ultimately be released from confinement, and they must—and do—live somewhere.

After a local sheriff spent months searching for a landlord willing to rent to a registered sex offender with a mental health diagnosis, Linn County, Oregon spent $45 to purchase his new home: a camping tent with an army surplus cot.  “Transitional housing” for Bruce Scott Erbs was a tent in a yard behind the jail with a tin can for a toilet.206  Erbs was moved to a $155-a-week motel when he contracted pneumonia after a period of cold weather.  Erbs said, “It’s a lot better than the tent.  . . . I’m staying out of trouble.  I don’t mean nobody no hurt.  The deal that people can’t change when they come outta prison is bogus.  They can if they put their minds to it.”207  Rory A. Woodell, another convicted sex offender who completed his prison sentence, was also housed in a tent outside of downtown Bellingham, Washington.208 

A released sex offender in North Dakota was jailed by court order because he could not find a place to live.  “There was really no place for him to stay,” said the state’s attorney, “the alternative was for him to sleep under the bridge.”209 

Restrictions on access to public housing and the increasing inability of sex offenders to find private housing anywhere, regardless of their income, mean that many will wind up in shelters, in tents, or living on the street.  Neither federal, state, nor local governments have acknowledged their obligation to ensure that sex offenders, no less than any other U.S. resident, have access to safe, decent and stable housing.

Mike Alvidres of the Skid Row Housing Trust in Los Angeles noted:

Anyone who’s been in jail is problematic, these guys add to the mix of problems.  But I don’t know where you go.  Is that what we want?  To drive people underground? . . . I’m not sure from a big picture perspective that it makes any sense.  Where will sex offenders live?  Obviously you don’t want them to live near kids, but I’m not sure it makes sense to create more desperation in people.210 

Shamed to Death

Kaye Fohn, a social worker with the Salvation Army in Austin Texas, told Human Rights Watch about a seventy-year-old man who had applied for housing assistance while staying at the Salvation Army rehabilitation program.  He was denied because he had committed a sex offense ten years earlier. 

He was not a risk. He inappropriately touched a child when he used to be a raging alcoholic.  He [was] clean 12 years.  He was in jail, and now he’s subject to a lifetime registration.  He was here [at the Salvation Army] for two years.  . . . It was virtually impossible to place him. . . . He was very ashamed, he carried that shame with him until the day he died. . . . Who’s to say who’s a risk?  But I can tell you that I’ve had my grandchildren here, and he would get up and leave the room.  Did it make me uneasy?  Not at all. 

We’ve had some sex offenders here where I would have felt that threat. . . . They have to have a place to live.  I don’t know how anybody can make that determination—will somebody reoffend?

No one should have to live on the streets. . . . His health was failing and nursing homes would not take him, it was horrible.  . . . I tried no less than ten places. . . . He ended up going into a horrible facility where he did not receive the care that a patient in a nursing home should get. 

Did these conditions lead to his death?  Absolutely.  That man gave up.  He had nobody.  There was no place else for this individual to go.  I will go to my grave thinking that him going into that nursing home led to his death.  The man I checked in one late day in August was not the same man I saw in December.  It was phenomenal.  He stopped eating, drinking; he was willing himself to death.211



Methamphetamine Manufacturers

In 1999, Congress passed the last categorical ban on public housing assistance, a lifetime exclusion from public housing for anyone convicted of manufacturing or producing methamphetamine on the premises of public housing.212 

Methamphetamine—known by its street names “speed,” “ice,” “crank,” and sometimes called “the poor man’s cocaine”—is an illegal drug.  It is manufactured largely in make-shift chemical laboratories by combining components of some over-the-counter cold remedies with other chemicals.213  Manufacturing the drug produces explosive gas and toxins.  The inherent volatility of the process combined with the clandestine nature of its production, whereby those operating “meth labs” often do so in hidden spaces without adequate ventilation, make production of the drug uniquely dangerous. 

The co-sponsors of the new mandatory exclusion—Senator Kit Bond and then-Senator John Ashcroft—cited the “raging crisis” of the rise in methamphetamine use, and the dangers associated with manufacturing the drug.  Senators Bond and Ashcroft sought to send a blunt message: “If you want to turn your taxpayer-subsidized residence into a meth lab, the only public housing you will be eligible for in the future is the penitentiary.”214  Neither of the Senators nor anyone else in Congress offered any justification for the lifetime length of the ban.  A fifty-year-old whose methamphetamine offense was thirty years ago would still be prohibited from public housing no matter how virtuous and exemplary his subsequent life. 

Since the sharp rise in methamphetamine production and concomitant increase in criminal penalties is a fairly recent phenomenon, PHAs have yet to see those convicted of methamphetamine manufacture applying for public housing.  As one PHA official noted, “they are most likely still in jail.”  But interviews with PHA officials nonetheless suggest that the law will have an impact even broader than that mandated by its express language.  Several officials from different PHAsexplained to Human Rights Watch that they understood the law to require them to deny housing assistance to those convicted of mere possession of the drug.  PHAs also deny people charged as conspirators because they were present in a home where methamphetamine was being made.215  Housing officials in Los Angeles told us that they would deny anyone convicted of manufacture of the drug regardless of whether it was on federally-assisted housing property or not, because they could not tell from conviction records where the offense took place.216




[185] 42 U.S.C. § 13661(b), see also 24 C.F.R. §§. 982.553(a), 960.204(a).

[186] 42 U.S.C. § 1437n(e)(1).  One federal circuit court rejected a challenge to provisions of the federal law that allow PHAs to ask applicants about their history of drug and alcohol use and obtain records from substance abuse treatment programs. Campbell v. Minneapolis Public Housing Authority, 168 F.3d 1069 (8th Cir. 1999).

[187]Norbert Gilmore, “Drug Use and Human Rights: Privacy, Vulnerability, Disability, and Human Rights Infringements,” 12 The Journal of Contemporary Health Law and Policy, 412(Spring 1996).

[188]A high percentage of persons convicted of criminal conduct use drugs, but there is no evidence suggesting most drug users commit non-drug offenses.  See, generally, U.S. Department of Justice, Drugs, Crime, and the Justice System, (Washington, D.C.: U.S. Department of Justice, December 1992); New York City Criminal Justice Agency, Summary Final Report: Changing Patterns of Drug Abuse and Criminality Among Crack Cocaine Users, (New York: New York City Criminal Justice Agency, January 1990). Mario De La Rosa, et. al., eds., Drugs and Violence: Causes, Correlates, and Consequences, (Washington, D.C.: National Institute on Drug Abuse, U.S. Department of Health and Human Services, 1990); Thomas Mieczkowski, ed., Drugs, Crime and Social Policy: Research, Issues and Concerns (Boston: Allyn and Bacon, 1992).  Drug law critics argue that a certain amount of drug-related crime is in fact caused by the drug prohibition policies and that alternative drug sanction mechanisms would reduce drug-related crime; e.g., Ethan Nadelmann, “Drug Prohibition in the United States: Costs, Consequences, and Alternatives,” 248 Science (September 1, 1989).

[189] See Bruce L. Benson et al., Independent Policy Report: Illicit Drugs and Crime (Oakland: The Independent Institute, 1996), available online at: http://www.independent.org/tii/content/pubs/policyrep/p_bensonipr.html, accessed on July 6, 2004.  Benson and his co-authors cite a 1992 BJS Report, which found that drug offenders are far more likely to recidivate for a drug offense than for a violent or property offense (citing Patrick A. Langan and Mark Cunniff, "Recidivism of Felons on Probation, 1986-89" (BJS: Special Reports, 1992).

[190] Substance Abuse and Mental Health Services Administration, 2003 National Survey on Drug Use & Health, (Rockville: U.S. Department of Health and Human Services, 2004), tables A.1 and A.2, available online at: http://www.oas.samhsa.gov/p0000014.htm#NHSDA, accessed on September 22, 2004.

[191] Ibid., table A.1 (rates of cocaine use), table A.6 (rates of dependence and abuse).

[192]Nadelmann, “Drug Prohibition in the United States: Costs, Consequences, and Alternatives,” p. 939, 944.  See also Douglas N. Husak, “The Nature and Justifiability of Nonconsummate Offenses,” 37 Arizona Law Review  151 (Spring 1995).

[193] Research shows that, among drug users, those who do not seek drug treatment have fewer interpersonal and social problems than those who do.  Research among these individuals shows that recovery occurs in the “natural progression” of heroin dependence.  See Jason S. Luty, “Social Problems, Psychological Well-Being, and Childhood Parenting Experiences in a Community Sample of Heroin Addicts in Central London,” Substance Use & Misuse, vol. 38, no. 2 (2003), p. 209.

[194] Generalizations about the harm caused by drugs should not be derived from atypical scenarios.  See Douglas Husak, “Desert, Proportionality, and the Seriousness of Drug Offences,” in Andrew Ashworth and Martin Wasik, eds, Fundamentals of Sentencing Theory (Oxford: Clarendon Press, 1998), p. 187-219.

[195] For example, a plan to estimate rates of “hardcore” drug use commissioned by the Office of National Drug Control Policy very explicitly relies on an examination of the extremes:

These efforts rely upon models of the rate at which people who use drugs make contact with various elements of the criminal justice, drug treatment, and health care systems. The models are predicated on the belief that observed numbers of "institutional contacts"—and by this we mean numbers of arrests, drug treatment admissions, and stays at homeless shelters—can tell us something about unobserved drug use activity.

Ronald Simeone et al., A Plan for Estimating the Number of “Hardcore” Drug Users in the United States (Abt Associates, April 21, 1997), p. 1. 

[196] 2003 National Survey on Drug Use & Health, table 1.28A.

[197] Many of those who were housed in this particular SRO had either been found ineligible for public housing or had chosen not to apply because they had criminal records.

[198] Human Rights Watch interview with a building manager, who wished to remain anonymous, at an SRO hotel in Manhattan, New York, November 4, 2003.

[199] Researchers in Australia, for example, have concluded that the prevalence of drugs in public housing is an indication that public housing itself may be inappropriate for some of those in need of housing assistance, and that alternative models must be developed.  Judith Bessant et al., Heroin users, housing and social participation: attacking social exclusion through better housing (Australian Housing and Urban Research Institute, June 2002), p. 23, available online at: http://www.ahuri.edu.au/attachments/30056_final_heroinusers.pdf, accessed on October 22, 2004.

[200] Human Rights Watch interview with Fred Butler, executive director, Community Action Network, Austin, Texas, February 12, 2004.

[201] The federal statute known as Megan’s Law established the nation’s vast state-by-state sex offense registration and community notification system. Act of May 17, 1996, P.L. 104-145, § 1, 110 Stat. 1345, amending 42 USCS § 14071(d).  Information about each state’s sex offender registry can be found by accessing any individual state database and looking for links to others, for example, see New York State’s database, available online at: http://criminaljustice.state.ny.us/nsor/links.htm, accessed on April 1, 2004.

[202] See 42 USCS § 13663 (2004) explicitly purports to deny dangerous sex offenders, but in fact, requires PHAs to deny eligibility to anyone listed on a state sex offender registry, a number of whom cannot be considered dangerous, but are guilty of offenses that were non-violent or consensual.  In addition, neither the statute nor state sex offense registry laws allow for any independent determination of whether a registered sex offender is dangerous or not.  See, e.g., Connecticut Dep’t of Public Safety v. Doe, 538 U.S. 1160 (2003); Archdiocesan Housing Authority v. Demmings, 2001 Wash. App. LEXIS 2276 (Wa. Ct. App 2001).  In 1999, the local PHA found that three of its public housing residents were convicted sex offenders.  Because it interpreted federal law to mean that sex offenders were ineligible for housing assistance, the PHA sought to evict Mr. Demmings, a convicted sex offender who had been living without incident in the development since 1996 and was compliant with his treatment plan.  Demmings argued both that he posed no risk to other tenants, and that he suffered from a documented mental illness.  While the court expressed sympathy and “applaud[ed] his successful rehabilitation,” Ibid., *3-4, it affirmed Demmings’ eviction nonetheless.  The court concluded its opinion by noting: “The rule is harsh as to all sex offenders who increasingly struggle to find housing upon their release. . . The rule is, however, reasonable.”  Ibid., *9.

[203] At the end of 2001, according to BJS, about 386,000 people convicted of sex offenses were registered in forty-nine states and the District of Columbia, up from 277,000 in 1998.  U.S. Department of Justice, BJS, BJS Fact Sheet: Summary of State Sex Offender Registries, 2001 (March 2002), available online at: http://www.ojp.usdoj.gov/bjs/abstract/sssor01.htm, accessed on July 6, 2004.  Some advocates put the number of those subject to state sex offender registries at closer to 500,000.  L. Arthur M. Parrish, Commentary: Megans’ Laws: Accomplishing its purpose? [sic], October 30, 2003, available online at: http://www.geocities.com/eadvocate/issues/commentary-consequences.html, accessed on September 16, 2004.

[204] Human Rights Watch interview with Helen Varty, executive director, Capital Area Homeless Coalition, Austin, Texas, February 11, 2004.

[205] According to Peter C. Pfaffenroth, “The Need for Coherence: States’ Civil Commitment of Sex Offenders in the Wake of Kansas v. Crane,” 55 Stanford L. Rev 2229, 2232 no. 22 (2003), sixteen states have civil commitment  statutes for sex offenders.  The states are: Arizona, California, Florida, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Missouri, New Jersey, North Dakota, South Carolina, Texas, Virginia, Washington, and Wisconsin.  In his dissenting opinion in Kansas v. Hendricks, 521 U.S. 346 (1997), Justice Breyer made reference to seventeen states with civil commitment laws, seven of which were not cited by Pfaffenroth (Colorado, Connecticut, Nebraska, New Mexico, Oregon, Tennessee, and Utah).  Statutes in these states provide for some lesser form of commitment-like pre-trial commitment or treatment upon release from prison. The U.S. Supreme Court has upheld the indefinite confinement of sex offenders.  See, e.g., Kansas v. Hendricks, rejecting the theory that confining someone based on a determination of future dangerousness and mental abnormality constitutes double jeopardy, because the confinement is not punishment.  See also, Seling v. Young, 531 U.S. 250 (2001).

[206] Andrew Kramer, “Oregon Houses Paroled Sex Offender in Tent,” Associated Press, August 4, 2003.

[207] “Sex Offender Kept in Tent Gets Pneumonia,” Associated Press, November 17, 2003. 

[208] “Sex Offender Living in Tent,” Bellingham Herald, August 8, 2003. 

[209] “Sex Offender Jailed While Searching for Home, Job,” Associated Press, January 25, 2004.

[210] Human Rights Watch interview with Michael Alvidrez, supportive housing managing director, Skid Row Housing Trust Property Management Company, Los Angeles, California, February 4, 2004.  Some turn to crime in desperation.  For example, a registered sex offender in Wisconsin held up a bank after being evicted and resorting to living in a tent in the park. Dan Wilson, “Robbery spurred by lack of shelter,” Post-Crescent (WI), August 27, 2004.

[211] Human Rights Watch interview with Kaye Fohn, Salvation Army, Austin, Texas, February 11, 2004.

[212] Amendment No. 3207 to Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 1999, 144 Cong Rec. S 8330, 8365-66, amending Section 16 of the United States Housing Act of 1937 (42 U.S.C. § 1437n), July 16, 1998.

[213] Additional information about methamphetamine, including a time line of the drug’s history, is available online at: http://www.erowid.org/chemicals/meth/, accessed on June 1, 2004.

[214] John Aschroft, introducing the amendment, Congressional Record, 105th Cong. vol. 144, pt. 8366.

[215] Human Rights Watch interview with S.L., Marillac House, Salt Lake City, Utah, October 1, 2003.  S.L. told Human Rights Watch that she had been living with an abusive partner who was manufacturing methamphetamine, and, because she was present at the time, she was charged with the same offense.  She was subsequently denied housing.

[216] Human Rights Watch meeting with staff of the Housing Authority of the City of Los Angeles, Los Angeles, California, February 3, 2004.


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