Tom Prettyman New Mexico Legal Aid, Albuquerque, NM

 Admissions  Section 8 (HCV) terminations  Evictions

 Public Housing  Section 8 vouchers  Section 8 moderate rehab  Project based section 8  Section 202/811 elderly/disabled  Section 221(d)(3) BMIR  Section 236 Rental Program  Section 514 and 515 Rural Housing

 LIHTC  Shelter Plus Care  Supportive Housing Program for the Homeless  HOPWA

 ONLY 3 CIRCUMSTANCES WHERE PHA/OWNER MUST DENY ADMISSION  Lifetime Sex Offender Registrant under state law  Conviction for making methamphetamine on premises of federally-assisted housing (ONLY applies to public housing, voucher and section 8 moderate rehab)  Evicted from “federally assisted housing” for drug-related criminal activity within the previous 3 years, UNLESS  Applicant completed PHA-approved drug rehab program, OR  Changed circumstances  In Section 514 and 515 rural housing, these bars are not mandatory, just discretionary

 PHA/OWNER MAY (NOT MUST) DENY ADMISSION FOR  Drug-related criminal activity  Violent criminal activity  Other criminal activity which would adversely affect the health, safety, or right to peaceful enjoyment of the premises by other residents, the owner, or PHA employees  Criminal activity must have occurred within a “reasonable time”  Reasonable time? Not defined.  PHA/owner should define in ACOP, Admin Plan, tenant selection plan (HUD), management plan (USDA)  May depend on seriousness of offense  HUD has suggested 5 years for serious offenses

 HUD PIH : Guidance for PHAs and Owners of Federally-Assisted Housing on Excluding Use of Arrest Records in Housing Decisions  HUD wrote: “[T]he fact that an individual was arrested is not evidence that he or she engaged in criminal activity.... An arrest shows nothing more than that someone probably suspected the person apprehended of an offense.”  Therefore, an “arrest for a crime is not a basis for... denial of admission, termination of assistance, or eviction.”  PHA or owner can use other evidence to prove the conduct  Witnesses  Conviction  Police reports with details about conduct (but might not be admissible in court or IFH)

 Protecting safety and property of  other residents,  the PHA/owner, and  employees

 650,000 prisoners released annually in US  People with criminal history have a hard time finding jobs and housing, and are more likely than others to be homeless  BUT stable housing for prison releasees is a crucial factor in preventing repeat offenses

 The US leads the world in incarceration: 5% of the world’s population, but 75% of the world’s prisoners  In 1970, the US population was 205 million, and about 200,000 people were in prison (0.1%).  In 2008, the US population was 304 million, but almost 1.6 million were in prison (0.5%). 7.3 million were in prison or on probation or parole (2.5%).  70 to 100 million Americans have criminal record (as many as 1/3)  If current incarceration rates continue, 1 in 15 Americans will serve prison time during their lifetime  Half of adult inmates have minor children  1 in 25 American kids had a parent in prison in 2012

 In 2014, African-Americans were 12% of the US population, but 36% of the prison population (for NM, 2% of population, but 6% of prisoners)  Hispanics were 17% of the US population, but 22 % of the prison population (for NM, 46% of the population, but 52% of the prisoners)  Non-Hispanic whites were 62% of the US population, but 34% of the prison population (for NM, 40% of the population, but 31% of the prisoners)  Native Americans were 9% of the NM population, but 11% of NM’s prisoners.  Studies show that the vast majority of US drug-users are white, but African- Americans are 5 times more likely to be arrested for drug offenses. ¾ of persons given sentences for possession are African-American.

 Applies to almost all housing providers (exception – 3 rental units or less) and real estate transactions – not just subsidized providers  Prohibits discrimination based on race, color, religion, sex, disability, familial status, and national origin  Intentional discrimination vs. disparate impact discrimination  Failure to make a reasonable accommodation for a disability  HUD Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions, April 4, 2016

 Housing provider’s policy or practice has an unjustified discriminatory effect, even if no intent to discriminate  3 STEP ANALYSIS 1. Does a policy or practice have a discriminatory effect? 2. If Yes to 1, is the policy or practice necessary to achieve a substantial, legitimate, and nondiscriminatory interest 3. If Yes to 2, is there a less discriminatory alternative

 Does using criminal history have a discriminatory effect?  Challenger's burden of proof  YES, says HUD. OGC Guidance.

 Housing provider’s burden of proof  Is the policy or practice necessary to achieve a substantial, legitimate, nondiscriminatory interest of the provider?  Interest cannot be hypothetical or speculative: landlord must prove interest and the nexus w/ the policy  Exclusions due to prior arrest? Not permissible, because does not prove conduct. PIH  Exclusions due to prior conviction? Yes, but policy should consider  Nature, severity & recency of conduct  Research: 7 years after commission of crime, offender is no more likely to commit a crime than person w/o a record

 Is there a less discriminatory alternative?  Challenger's burden of proof  Individualized assessment of mitigating information outside of criminal record  Facts of the criminal conduct  Age of the applicant at the time of conduct  Rental history before and after conduct  Rehabilitation  Employment, family & community support, education  HUD suggests doing criminal screening AFTER other eligibility criteria are satisfied

 3 STEP ANALYSIS DOES NOT APPLY to conviction for illegal manufacture of distribution of a controlled substance. It is not a violation of FHA to exclude an applicant based on such a conviction, regardless of discriminatory effect.

 Using criminal records as a pretext for unequal treatment due to race, national origin, etc.  For example, owner rejects Hispanic applicant due to criminal record, but accepts Anglo applicant with comparable criminal record.  3 step disparate treatment analysis does not apply

 In writing  Reason for denial  How and when applicant can contest the denial  Right to reasonable accommodation for person with a disability  Applicant file should be available for review upon request  If criminal record obtained with consent forms, PHA must give copy of record to applicant and the subject of the record (if different)

 Reasonable accommodation for disability  Evictions & voucher terminations  VAWA 2013  PHA/owner shall not deny an applicant housing on the basis that an applicant was victim of domestic violence, dating violence, sexual assault or stalking.  PHA/owner must provide HUD notice and VAWA certification at time of application, denial of admission and termination/eviction  Fair Credit Reporting Act  If PHA/owner uses consumer reporting agency to conduct background check  Report cannot include information more than 7 years old  PHA/owner must send written denial to applicant w/ contact information for agency, right to request free report from agency in 60 days, and right to dispute accuracy of information.

 Don’t use arrest as basis for denial of admission (or termination or eviction)  Don’t have a blanket ban on those with criminal records – “one-strike” and “zero tolerance” are probably meaningless and might violate FHA and HUD regulations

 Perform criminal screen after other eligibility criteria are satisfied  Put criminal screening procedures in writing, and follow those procedures  Conviction, not arrest  Screening criteria should be specific as to type of offense and look- back period.  Provide for consideration of mitigating factors  Apply procedures equally to all applicants (exception: reasonable accommodation)  Give written notice of denial, reasons and rights