By Michael McCutcheon
EASTHAMPTON, MASS – A new report published by the Prison Policy Initiative insists housing is a human right “recognized by international law, including the Universal Declaration of Human Rights.”
The report documents, however, “in the U.S., hundreds of thousands of people face homelessness” and “people who have been to prison just once experience homelessness at a rate nearly seven times higher than the general public.”
The report found this number climbs up to 13 times higher than the general public with multiple incarcerations, explaining, “housing policies…actually discriminate against people with criminal legal involvement and criminal records.”
As the report states, this problem is of high importance due to the association of safe, stable, and affordable housing with health, general well-being, and successful reentry into society because “79 million Americans have a criminal record and more than a quarter of formerly incarcerated people are unemployed.
“Based on just how widespread housing insecurity and homelessness are among formerly incarcerated people, it’s safe to assume that public housing policies significantly impact formerly incarcerated people,” according to the report.
“The criminal legal system disproportionately targets people of color, so the individuals, neighborhoods, communities, and families facing the collateral consequences of incarceration are also facing the compounded effects of poverty and systemic racism enshrined in housing policies,” the PPI study concludes.
While the Fair Housing Act in 1968 prohibited discrimination in housing transactions, as noted in the report, an individual’s criminal history was not considered a protected class, permitting discrimination by housing authorities and policies on its basis.
“However, in 2016, [the Department of Housing and Urban Development (HUD)] issued a memo to [Public Housing Authorities (PHA)] clarifying that while having a criminal record is not a protected status, criminal records alone do not justify automatic denial without justification. Because PHAs’ use of criminal history as a disqualification for public housing has disproportionately impacted Black, Indigenous, and people of color, this memo clarified that the exclusion of people based solely on criminal legal histories was a type of race-based discrimination,” said the report authors.
The report noted that “although the 2016 HUD memo shifted PHAs’ policies from allowing a blanket exclusion of people with any criminal record to a more focused exclusion of those with drug or ‘violent’ offense histories, the official guidelines leave so much to local interpretation that PHAs are still able to discriminate broadly on the basis of criminal legal system involvement.”
As recently as June 2022, HUD made changes to their federal public housing policies in order to make “public housing policies as inclusive as possible for people with histories of criminal legal system involvement.” However, the Prison Policy Initiative’s report noted that “there is no evidence that HUD is limiting the amount of discretion permitted within the existing rules.”
According to the Prison Policy Initiative, HUD has established two types of denials for obtaining public housing—mandatory and permissive.
The report details that PHAs must issue denials if a household member is presently engaged in drug use or has a pattern of drug use that may endanger other residents, any conviction for the manufacture of methamphetamine while on federal housing property, a conviction of any drug-related criminal activity within the past three years that resulted in eviction from federal housing, or if any individual of a household is subject to lifetime registration as a sex offender.
Permissive prohibitions, the report states, usually expand on the mandatory denials to make public housing even more restrictive.
“PHAs ‘may prohibit admission’ if the PHA determines that any household member ‘is currently engaged in, or has engaged in during a reasonable time before the admission’ the following behaviors,” said the report, adding drug-related crime, violent crime, any crime which may endanger other residents, or any crime which may endanger PHA management staff.
In particular, the report notes that drug-related criminal activity only requires a mandatory denial if a person is actively engaged in it and it is up to local PHAs to avoid denials based just on a history of past drug abuse or other criminal activity.
The phrase, “currently engaged in” is also subjective depending on the jurisdiction, as reported in the article, and may use the phrase to refer to any period of time they choose. The authors of the report state that “local PHAs should interpret this rule as narrowly as possible, and add exceptions for people in recovery, to minimize the number of people denied housing for ‘current drug use.’”
If PHAs find themselves unable to do this, the article suggests incorporating rehabilitation into the PHA system by connecting denied applicants to community resources for treatment or supportive housing.
Additionally, “HUD’s provided definition [of violent criminal activity] does not even try to clarify what offenses are encompassed by this vague definition,” as written in the report, that adds it means that these violent criminal activities should be explicitly highlighted in local PHA documentation. For example, some states consider burglary and theft of drugs as violent offenses when others do not.
The even vaguer specification of general criminal activity allows for “PHAs to deny public housing assistance if the PHA determines that a household member is engaged in ‘criminal activity that may threaten the health, safety, or right to peaceful enjoyment of the premises residents or persons residing in the immediate vicinity,’” the PPI study said, adding, this allows for PHAs “to discriminate against people who participate in almost any ‘criminal activity,’ no matter how innocuous.”
As for the evidence a PHA uses to identify prohibited behaviors, the report notes several, including arrest history (though it cannot be the sole reason someone is denied housing), conviction history, and eviction history with particular reference to PHA evictions and evictions due to criminal activity.
If a person is denied public housing assistance because of permissive prohibitions, the article found an informal review process exists, though the PHA does not have to grant an informal review for “almost any reason.”
PPI adds difficulties further challenge impoverished or criminal applicants, as they “are less likely to have reliable transportation or child care,” and the authors instead propose that consistency and clarity be offered throughout the review and hearing process and that the “HUD should outline exactly what determinations are not subject to external oversight.”
The report puts forth five major questions that can be used to examine one’s local PHA policy:
1. “What actions and behaviors…exclude people from public housing?”
2. “How does the PHA define ‘current’ and ‘currently’?”
3. “What evidence does the PHA use to identify prohibited actions and behaviors?”
4. “How does the PHA denial process work?”
5. “Who are the decision makers?”
To conclude the report, the authors list a set of recommendations they state will change the system for the better:
1. “Invest in expanding affordable housing and public housing.” As reported by the article, “every state is facing a shortage of affordable rental housing, and inadequate funding leaves eligible families waiting years for public housing availability.”
2. “Eliminate additional reasons for denial beyond those required by HUD.” The article argues, “All of the ‘permissive’ denials documented above that go beyond HUD’s minimum requirements are unnecessary barriers to housing and should be eliminated.”
3. “Remove local discretion to ‘look back’ into criminal history further than HUD requires.” The report submits two ways to implement this change. (1) Either “require PHAs to provide evidence-based justification for lookback periods,” or (2), “a HUD mandated standard lookback period…that is as short as possible” to “eliminate much of the discretion.”
4. “Require PHAs to always issue crystal clear explanations as to why they denied housing” in order to reduce opportunities for discrimination.
5. “Make the appeal process clear and fair. While HUD does require any denial to include a ‘notice of denial’ that includes ‘a brief statement of the reasons for the PHA decision,’ we know that the possible reasons for denial can vary a lot between localities and are often not evidence-based.
“Advocates should demand more than just a brief statement of the reasons for the denial and recommend a comprehensive explanation and information about how and when the individual or family can become eligible for public housing. PHAs should provide referrals to community-based legal aid or pro bono programs that provide free legal help for low-income people, or alternatively, direct applicants to a public service-oriented lawyer referral service.”
Link to article: https://www.prisonpolicy.org/blog/2023/02/15/publichousing 
