OVERCOMING BARRIERS TO HOUSING FOR PEOPLE WITH CRIMINAL RECORDS MPLP Roadshow September 21, 2006

Why Should Legal Aid Lawyers Care About People with Criminal Records?

Many Low–Income People Have Criminal Records About 15% of Michigan adults have a criminal record (serious misdemeanor or felony that will show up on background check). One in 37 adults has prison experience. Over 14,000 people in Michigan return to the community from prison each year. Many offenders are low-income. 50% of prisoners have less than high school education, and 15-27% will end up homeless.

People of Color and Mentally Ill Disproportionately Affected 53% of MI prisoners are African-American, though only 14% of population. 14% of those released from prison are mentally ill. 84% of offenders were involved with drugs and alcohol at time of offense.

Criminal Records are One of Biggest Barriers Our Clients Face People with criminal records face many of the same challenges as other low-income people. However, people with criminal records don’t have access to many of the same opportunities to get out of poverty.

Major Criminal Record Barriers Employment Housing Public Benefits Student Loans/Government training programs Immigration Family Law Fees and Fines Today focus on housing. And on ways to clean up records. If we have time, also want to talk about employment.

Housing Stable housing critical to successful re-entry and to family reunification Access to housing is central to the stability of individuals and their communities. But for people with criminal records – and their families – even basic shelter is hard to find. Criminal records can prevent your clients from living in subsidized housing, and also have consequences in private housing. Housing sanctions are not limited to convictions, and not limited to felony convictions. Housing issues create tremendous barriers to family reunification upon reentry from jail or prison.

Consequences of a Record: Loss of housing options Any convictions will make it harder to find housing – landlords can refuse to rent. Certain convictions will result in loss of subsidized housing. Entire family can be evicted, not just offender. Convictions can affect employment and public benefits, which then affects the ability to pay for housing. Private Landlords Can evict an individual for criminal activity related to the tenancy. Are completely free to deny housing because a person has a criminal record. Federally Subsidized Housing Admission: Housing authorities can bar admission for a reasonable period of time after criminal activity. There are mandatory, presumptive and discretionary disqualifications, depending on the offense Termination/Eviction: Can terminate or evict for new criminal activity Mandatory termination for offenses that lead to life-time registration on sex offender registry or for methamphetamine production. Discretionary termination for illegal drug use, abuse of alcohol, furnishing false information, drug crimes on or off the premises, or engaging in criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises of other tenants. Public Housing Authorities can evict entire families for criminal activity, even if the other family members did not know about the criminal activity. Evidentiary standards: neither arrest nor conviction are necessary. PHA needs only some evidence of criminal activity. Mitigation: PHAs can consider mitigating circumstances, including drug and alcohol treatment.

Where Do Landlords and PHAs Get Records? Local police records Michigan State Police: Internet Criminal History Access Tool Department of Corrections: Offender Tracking and Information System Private background screening companies FBI fingerprint records

Private Landlords Can deny housing because a person has a criminal record. Cannot evict individual who has a valid lease just because person has a criminal record. Can evict for new criminal activity related to tenancy. Check lease terms.

Subsidized Housing Public Housing Authorities must publish standards for denying eligibility and terminating assistance based on criminal activity. Plans must include certain federal standards, but are often more restrictive than federal requirements.

What Subsidized Housing is Covered by Criminal Record Restrictions? “Federally Assisted Housing”: 24 CFR 5.850 et. seq. (Definition of “federally assisted housing” is in 24 CFR 5.100) Public Housing: 24 CFR 960.203-204; 24 CFR 966.4 Section 8: 24 CFR 982.553; 24 CFR 882.518 Federally assisted housing is defined as including public housing, project-based or tenant-based assistance projects, certain housing funded with subsidies, etc.

Differences Between Different Types of Subsidized Housing Federal standards largely the same between programs, but don’t assume identical. Federal standards set a baseline – great variation in implementation. Different public housing authorities can and do have different rules in discretionary areas. When in doubt, review policies of housing provider and make sure they comply with relevant federal regulations.

Admission to Subsidized Housing: Mandatory Denial Life-time Sex Offender Registration Offenses: CSC 1, CSC 2 with person under 13, kidnapping minor, leading away child, distribution/production of child sexual materials, or 2nd conviction of a listed offense. Methamphetamine Production on premises of federally assisted housing. I’m going to focus on public housing

Admission to Subsidized Housing: Presumptive Denial Household member evicted from subsidized housing in past 3 years for drug-related activity UNLESS Completed approved rehab program. Circumstances no longer exist (i.e. offending household member dead or incarcerated) Household member currently engaging in illegal use of drugs UNLESS Completed approved rehab program, or otherwise rehabilitated Household member abusing alcohol UNLESS Will be found ineligible unless mitigation provisions satisfied.

Admission to Subsidized Housing: Discretionary Denial May Deny Admission if Any Household Member Engaged in: Drug-related crimes Violent crimes Other crimes that affect health, safety or right to peaceful enjoyment of residents, neighbors, staff, owner, or PHA contractor. Limited to reasonable amount of time after criminal activity – Potential Area for Challenge.

Admission to Subsidized Housing: Getting Clients In Despite a Record 24 CFR 960.203, 24 CFR 982.553, 24 CFR 5.852: In discretionary cases, PHA can consider factors like: Seriousness of activity Extent of participation/culpability Evidence of Rehabilitation Effect of Denial on Members Not Involved PHA can reconsider denial if “sufficient evidence” that household member not currently engaged, and has not engaged in criminal activity during a reasonable time prior to admission.

Conditioning admission on exclusion of Household Member PHA may require applicant to excludes household member who was responsible for the criminal activity that would otherwise lead to denial.

Eviction from Public Housing: Mandatory Termination PHA must evict residents who: Are subject to lifetime sex offender registration. Were convicted of methamphetamine production on premises of federally assisted housing.

Eviction from Subsidized Housing: Discretionary Termination Engaging in illegal drug use UNLESS rehabilitated Abusing alcohol UNLESS rehabilitated Furnishing false information re drug/alcohol use Fleeing felons or parole violators Persons engaging in criminal activity Drug crime on or off premises Crimes entailing threat to other residents or persons residing in immediate vicinity PHA may terminate

Mitigation Provisions For Discretionary Terminations, Housing Authority may consider factors such as: Seriousness of offending action Extent of participation of leaseholder in offending action Effect eviction would have on family members not involved in offense Steps leaseholder took to prevent or mitigate offense 982.310

If Substance Abuse, Pursue Rehab For some drug or alcohol related activities, Housing Authority may allow defendant, if defendant completes rehabilitation program approved by the HA.

Who Gets Evicted Housing Authority has discretion to evict only offender. Housing Authorities can and do evict entire household for actions of any member of the household, any guest, or any person under the tenant’s control.

Standard of Proof Preponderance of the evidence that engaged in criminal activity. Neither arrest nor conviction are required.

Client’s Right to Record If Housing Authority proposes to deny admission or evict for criminal activity, Housing Authority must provide copy of record. Client must get opportunity to dispute accuracy or relevance of record through an informal review process. Client cannot be required to pay cost of getting record.

Sex Offender Registry Exclusion Zone Applies to Anyone on Sex Offender Registry Michigan registry very broad. Client may be on for “Romeo-and-Juliet” offense, prostitution, public urination, etc. School Safety Law (MCL 28.735): Can’t live within 1000 feet of school property May be unconstitutional Contact ACLU re cases

Exceptions to Exclusion Zone: Grandfathering Previously registered individuals residing in Student Safety Zone on January 1, 2006. Anyone who is added to registry after January 1, 2006 and lives in Student Safety Zone must move within 90 days.

Exceptions to Exclusion Zone: Young Offenders Individuals under 19 attending school and residing with parents Individuals under 26 who are in special ed and residing with parents Certain individuals convicted as juveniles HYTA trainees who complete probation Certain statutory rape offenders

Standard Parole Conditions Restrictions on living with children Restrictions on living near children 1000 feet from school or daycare Restrictions on living with /near victims

Practice Tips Run client records and discuss them with clients. Where possible, appeal denials of admission. Fight evictions in discretionary cases. Argue reasonable accommodation under ADA if client’s record is related to addiction or mental illness and client is not a “direct threat.” Tell your clients to attend relevant treatment programs in order to prove rehabilitation. Assist clients in cleaning up or expunging records.

CLEANING UP RECORDS: RECORD INACCURACY Many records are inaccurate. Criminal record identity theft convictions: estimated 400,000 victims. ICHAT mismatches: ICHAT searches on name, gender and year of birth

Correcting Inaccurate Records: Step 1 First determine what record was used. Local Police Michigan State Police ICHAT Michigan Department of Corrections OTIS Private Screening Company FBI Error in one means likely that there are errors in others too.

Correcting Inaccurate Records: Step 2 Determine what type of error there is: Inaccurate information about client’s convictions or missing disposition Arrest that did not lead to conviction Conviction that doesn’t belong to client

Correcting Inaccurate Records: Incorrect Information about Client’s Convictions Get copies of court documents showing actual convictions Get copies of court documents showing disposition Send documents to agency that produced the criminal record

Correcting Inaccurate Records: Conviction Doesn’t Belong to Client For ICHAT records: client must get fingerprinted and do a record challenge. For OTIS records: may require amendment of judgment of sentence. Contact DOC. For private records: clear state record and demand correction under FCRA. For FBI records: must clear with state repository in state of conviction. See the brochure in materials for detailed info

Correcting Inaccurate Records: Reporting of Arrests Not Leading to Conviction Pending cases can be reported. Individuals who are arrested and not charged, or who are found not guilty should file motion for return of fingerprints. Form MC 235; MCL 28.243. However, new law allows for dissemination of all criminal history information that is associated with a state identification number and is supported by fingerprint impressions. MCL 28.243: allows for return of fingerprints

ELIMINATING RECORDS: Expungement and Sealing The best criminal record is no criminal record at all. Way to remove information from record. Expunged or sealed records are not supposed to show up on background checks.

Expungement – who is eligible? 1 conviction only Multiple counts are considered separate convictions However, may be able to expunge both juvenile adjudication and adult conviction 5 years from conviction or release, whichever is longer Juveniles must be at least 24 Discretionary with Court An individual can have his or her record expunged if he or she: Has only one conviction. Multiple charges or counts in one proceeding count as multiple convictions. It has been five years since conviction or release from imprisonment, whichever is later. The sentencing court finds that setting aside the conviction is warranted. Juveniles eligible but must wait until age 24.

Some offenses can’t be expunged Offenses punishable by life imprisonment (regardless of actual sentence) CSC 1, CSC 2, CSC 3, assault with intent to commit CSC Traffic offenses reportable to the Secretary of State Non-traffic offenses reportable to SOS may be expunged but SOS still keeps a record. Some convictions cannot be expunged: Offenses punishable by life imprisonment (regardless of actual sentence) CSC 1, CSC 2, CSC 3, assault with intent to commit CSC Traffic offenses reportable to the Secretary of State. Non-Traffic offenses (e.g. negligent homicide) that are reportable to SOS, are often expunged by courts, but record of the offense is kept by SOS. The Attorney General has argued that these offenses can’t be expunged, but there is no controlling case, and many lower courts are still expunging them from court records.

Disposition without entry of judgment of conviction (“sealing record”) Variety of statutory options Usually results in dismissal of case after successful probation Often for 1st offenses (e.g. first time drug possession or use) Other Sealing Provisions There are a variety of mechanisms which allow records to be sealed, which typically involve dismissal of the case upon successful completion of probation. These include: 7411: first-time drug possession or use (MCL 333.7411) Holmes Youthful Trainee Act: youths between the ages of 17-21, or youths over 14 who are waived into adult court (MCL 762.11 et seq.) Spousal Abuse Act: first-time assault and battery cases where the victim is spouse, former spouse, individual with whom the defendant has a child, or individual who has a dating relationship with the defendant (MCL 769.4a) Drug court: individuals who successfully complete drug court (MCL 600.1068 et seq.) Minor in Possession: first time offenders (MCL 436.1703) Kidnapping by a Parent: first time offenders (MCL 750.350a) Practice of Profession by Health Professional Under the Influence: first time offenders (MCL 750.430)

Examples of Sealing Mechanisms 7411: first-time drug possession or use Holmes Youthful Trainee Act: youths between 17-21 Spousal Abuse Act: first-time assault and battery in domestic violence cases Drug court: individuals who successfully complete Minor in Possession: first time offenders Kidnapping by a Parent: first time offenders

 Practice Tips – Expungement and Sealing Check if client eligible for expungement. Check if record contains convictions that could or should have been sealed. Discuss motion for expungement or 7411.

Employment Why Consider Employment Consequences? Employment closely tied to housing: if can’t pay the rent, will lose housing. Employment is critical for the ability of our clients to support themselves and their families. Having a criminal record severely limits an individual’s employment options.

Why consider barriers to employment? 2/3 employers won’t hire people with criminal records 80% large / 66% small employers do background checks Reduced wages increase recidivism Inability to pay rent affects housing Two-thirds of employers will not hire a former offender. 80% of large corporations perform background checks on job applicants; 69% of small businesses do. Employment is closely linked to recidivism: A 10% decrease in wages is associated with a 10-20% increase in criminal activity and likelihood of incarceration.

Statutory Barriers to Employment State and Federal Laws and policies prevent employment of people with convictions in many jobs. Some estimates that up to 1/3 of jobs could be affected. Reporting Requirements In many professions, individuals are required to report if they are convicted of certain crimes, or even if they are simply arrested or arraigned. Failure to report is often a separate crime – which, if convicted, could prevent expungement. Always check reporting requirements if your client is employed in long-term care, education/schools services, or daycare; your client has a hazmat license; or you have a reason to believe reporting requirements might apply.

Resources to Find Applicable Rules Training Materials: Updates on web Website of agency that regulates industry Unions Defendants’ own employment materials Other Lawyers How Can I Find Out About Possible Employment Consequences? Unfortunately, there are hundreds of occupational restrictions are scattered throughout federal and state codes and regulations. There is no centralized source that sets out employment consequences in Michigan. Your legal outline highlights some of the most common restrictions, but not everything. We will keep adding to and updating this outline. If you are uncertain whether an occupational restriction applies: Check the most recent version of the legal outline, which will be posted on the SADO and MPLP websites. Ask your local legal services office. Ask the governmental agency regulating that occupation, or look on that agency’s website (see www.michigan.gov). Ask a union that organizes such workers. Ask an attorney who represents people in that industry. Ask your client.

Jobs Likely to be Affected Working with or near children Working with or near vulnerable adults Licensed Professions Security-related fields Transportation-related fields Jobs hired or paid by Government Licensed Professions – check with licensing agency Long-Term Care (e.g. nursing homes, home health agencies, adult foster care, psychiatric facilities) Complicated tiered disqualification scheme Felonies result in disqualification for 10 years to life Many misdemeanors, particularly those involving theft, assault, or drugs, result in disqualification for 1-10 years. Schools and school services (e.g. teachers, paraprofessionals, cafeteria workers, janitors, bus drivers, secretaries, etc.: basically anyone who works for a school or an agency that provides services to a school) Sex Offender - Any conviction resulting in registration on the Sex Offender Registry results in a mandatory, lifetime bar to employment. Any felony conviction results in a lifetime bar to employment, unless the individual receives written permission from both the superintendent and the school board. For teachers or others with certification or state board approval certain misdemeanors can also result in loss of certification or state board approval. Daycare (e.g. daycare centers, licensed in-home care, DHS-paid care) Private Security/Security Guard/Security Alarm Contractors - No felony conviction, regardless of age of the conviction or offense. Exception for individuals continuously employed with same employer and hired before March 28, 2001.

Tools for Your Practice Training Resources Providing Civil Legal Assistance to People with Criminal Records: A Manual for Attorneys and Advocates On Line Resources www.mplp.org www.reentry.net www.hirenetwork.org Resources include: Summary sheet from LAC Legal outline Reference guide from LAC CLASP article on subsidized housing Article of mine which contains many of CFR cites Brochures on how to get records and how to clean them up Sample motion for 7411 or expungement Brief and settlement on ADA claims challenging criminal record barriers Article on trespass policies

Legal Aid of Western Michigan Presenter Miriam Aukerman Reentry Law Project Legal Aid of Western Michigan maukerman@legalaidwestmich.net (616) 774-0672 x 114