Proposed Rule2024-06218
Reducing Barriers to HUD-Assisted Housing
Primary source
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Published
April 10, 2024
Issuing agencies
Housing and Urban Development Department
Abstract
This proposed rule would amend the regulations for certain HUD Public and Indian Housing and Housing Programs. The proposed amendments would revise existing regulations that govern admission for applicants with criminal records or a history of involvement with the criminal justice system and eviction or termination of assistance of persons on the basis of illegal drug use, drug-related criminal activity, or other criminal activity. The proposed revisions would require that prior to any discretionary denial or termination for criminal activity, PHAs and assisted housing owners take into consideration multiple sources of information, including but not limited to the recency and relevance of prior criminal activity. They are intended to minimize unnecessary exclusions from these programs while allowing providers to maintain the health, safety, and peaceful enjoyment of their residents, their staffs, and their communities. The proposed rule is intended to both clarify existing PHA and owner obligations and reduce the risk of violation of nondiscrimination laws.
Full Text
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[Federal Register Volume 89, Number 70 (Wednesday, April 10, 2024)]
[Proposed Rules]
[Pages 25332-25375]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-06218]
[[Page 25331]]
Vol. 89
Wednesday,
No. 70
April 10, 2024
Part II
Department of Housing and Urban Development
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24 CFR Parts 5, 245, 882, et al.
Reducing Barriers to HUD-Assisted Housing; Proposed Rule
Federal Register / Vol. 89 , No. 70 / Wednesday, April 10, 2024 /
Proposed Rules
[[Page 25332]]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 5, 245, 882, 960, 966, and 982
[Docket No. FR-6362-P-01]
RIN 2501-AE08
Reducing Barriers to HUD-Assisted Housing
AGENCY: Office of the Secretary, U.S. Department of Housing and Urban
Development (HUD).
ACTION: Proposed rule.
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SUMMARY: This proposed rule would amend the regulations for certain HUD
Public and Indian Housing and Housing Programs. The proposed amendments
would revise existing regulations that govern admission for applicants
with criminal records or a history of involvement with the criminal
justice system and eviction or termination of assistance of persons on
the basis of illegal drug use, drug-related criminal activity, or other
criminal activity. The proposed revisions would require that prior to
any discretionary denial or termination for criminal activity, PHAs and
assisted housing owners take into consideration multiple sources of
information, including but not limited to the recency and relevance of
prior criminal activity. They are intended to minimize unnecessary
exclusions from these programs while allowing providers to maintain the
health, safety, and peaceful enjoyment of their residents, their
staffs, and their communities. The proposed rule is intended to both
clarify existing PHA and owner obligations and reduce the risk of
violation of nondiscrimination laws.
DATES: Comments are due no later than June 10, 2024.
ADDRESSES: Interested persons are invited to submit comments regarding
this rule. Communications must refer to the above docket number and
title. There are two methods for submitting public comments. All
submissions must refer to the above docket number and title.
1. Submission of Comments by Mail. Comments may be submitted by
mail to the Regulations Division, Office of General Counsel, Department
of Housing and Urban Development, 451 7th Street SW, Room 10276,
Washington, DC 20410-0500.
2. Electronic Submission of Comments. Interested persons may submit
comments electronically through the Federal eRulemaking Portal at
<a href="http://www.regulations.gov">http://www.regulations.gov</a>. HUD strongly encourages commenters to
submit comments electronically. Electronic submission of comments
allows the commenter maximum time to prepare and submit a comment,
ensures timely receipt by HUD, and enables HUD to make them immediately
available to the public. Comments submitted electronically through the
<a href="http://www.regulations.gov">http://www.regulations.gov</a> website can be viewed by other commenters
and interested members of the public. Commenters should follow the
instructions provided on that website to submit comments
electronically.
Note: To receive consideration as public comments, comments must
be submitted through one of the two methods specified above. Again,
all submissions must refer to the docket number and title of the
rule.
No Facsimile Comments. Facsimile (FAX) comments are not acceptable.
Public Inspection of Public Comments. All comments and
communications properly submitted to HUD will be available for public
inspection and copying between 8 a.m. and 5 p.m. weekdays at the above
address. Due to security measures at the HUD Headquarters building, an
advance appointment to review the public comments must be scheduled by
calling the Regulations Division at (202) 708-3055 (this is not a toll-
free number). HUD welcomes and is prepared to receive calls from
individuals who are deaf or hard of hearing, as well as from
individuals with speech or communication disabilities. To learn more
about how to make an accessible telephone call, please visit <a href="https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs">https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs</a>.
In accordance with 5 U.S.C. 553(b)(4), a summary of this proposed
rule may be found at <a href="http://www.regulations.gov">www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Danielle Bastarache, Deputy Assistant
Secretary for Public Housing and Voucher Programs, Room 4204, U.S.
Department of Housing and Urban Development, 451 Seventh Street SW,
Washington, DC 20410; telephone (202) 402-1380 (this is not a toll-free
number) for the Public Housing and Section 8 programs. Ethan Handelman,
Deputy Assistant Secretary for Multifamily Housing, Room 6106, U.S.
Department of Housing and Urban Development, 451 Seventh Street SW,
Washington, DC 20410; telephone (202) 402-2495 (this is not a toll-free
number) for Multifamily Housing programs. HUD welcomes and is prepared
to receive calls from individuals who are deaf or hard of hearing, as
well as individuals with speech or communication disabilities. To learn
more about how to make an accessible telephone call, please visit
<a href="https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs">https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs</a>.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
Everyone deserves to be considered as the individual they are, and
everyone needs a safe and affordable place to live. For people with
criminal records, having a stable place to live is critical to
rebuilding a productive life. Yet too many people who apply for housing
opportunities are not given full consideration as individuals, but
instead are denied opportunities simply because they have a criminal
record. Criminal records are often incomplete or inaccurate, and
criminal conduct that occurred years ago may not be indicative of a
person's current fitness as a tenant. These unnecessary exclusions
disproportionately harm Black and Brown people, Native Americans, other
people of color, people with disabilities, and other historically
marginalized and underserved communities. In April 2016, HUD issued
guidance to all housing providers cautioning that unnecessary and
unwarranted exclusions based on criminal records may create a risk of
Fair Housing Act liability because they can have an unjustified
disparate impact based on race.\1\ That guidance advised housing
providers that individualized assessments that take into account
relevant mitigating information are likely to have a less
discriminatory effect than categorical exclusions based on criminal
record.
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\1\ Application of Fair Housing Act Standards to the Use of
Criminal Records by Providers of Housing and Real Estate-Related
Transactions (April 4, 2016), available at <a href="https://www.hud.gov/sites/documents/HUD_OGCGUIDAPPFHASTANDCR.PDF">https://www.hud.gov/sites/documents/HUD_OGCGUIDAPPFHASTANDCR.PDF</a>.
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Yet too often, people still are being excluded from HUD-assisted
housing for convictions that do not reflect at all on current fitness
for tenancy, such as stale convictions that date back more than a
quarter century, or those for low-level nonviolent offenses, such as
riding a subway without paying a fare. Such exclusions do little to
further legitimate interests such as safety, as mounting evidence shows
and an increasing number of housing providers and public housing
agencies (PHAs) now recognize.
This proposed rule would help standardize practices within HUD
programs with respect to prospective tenants. It would provide clearer,
common-sense rules and standards to help HUD-subsidized housing
providers and PHAs carry out the legitimate and important ends of
maintaining the safety
[[Page 25333]]
of their properties and the surrounding communities and following
federal law (which requires exclusion from HUD-assisted housing of
people who are engaged in certain conduct or have certain criminal
history), but without engaging in overbroad or discriminatory denials
of housing. This proposed rule would establish in HUD program
regulations a set of practices that already are required of housing
providers under state and local law in much of the country; that are
consistent with guidance HUD has provided to all housing providers to
comply with the Fair Housing Act and to HUD-subsidized providers and
PHAs to comply with program rules; and that, as HUD has heard from its
industry partners, are already being used and work in practice to
effectively balance various equities. In doing so, the proposed rule
would clarify a legal landscape that many HUD-subsidized housing
providers and PHAs find confusing, leading to divergent practices
within HUD programs. While existing HUD regulations generally permit a
fact-specific, individualized assessment approach, they have not been
updated to clearly require it.
This proposed rule would cover various HUD programs, including
public housing and Section 8 assisted housing programs, as well as the
Section 221(d)(3) below market interest rate (BMIR) program, the
Section 202 program for the elderly, the Section 811 program for
persons with disabilities, and the Section 236 interest reduction
payment program, and in doing so would amend existing programmatic
regulations. A summary of some of the ways in which these changes would
impact different program rules are explained below:
Clarifying what counts as relevant criminal activity and how
recently it must have occurred: Existing regulations permit an assisted
owner or PHA (for voucher applicants) to prohibit admission when the
household has engaged in, ``in a reasonable time prior to admission,''
(1) drug-related criminal activity; (2) violent criminal activity; (3)
other criminal activity that would threaten the health, safety, or
right to peaceful enjoyment of the premises of other residents; or (4)
other criminal activity that would threaten the health or safety of the
PHA or owner or any employee, contractor, subcontractor or agent of the
PHA or owner. While public housing regulations do not have a similar
``reasonable time prior to admission'' qualifier, there is a
``relevancy'' qualifier preceding these same four substantive
categories of criminal activity. Under the proposed rule, PHAs and
assisted owners would still be able to deny admission for these four
categories of criminal activity; however, the proposed rule would
clarify that assisted owners and PHAs may not deny admission for
categories of criminal activity beyond those which are specified in the
regulations. The proposed rule would require the establishment of a
``lookback period'' limiting the reliance on old convictions and would
provide, for all programs, that prohibiting admission for a period of
time longer than three years following any particular criminal activity
is ``presumptively unreasonable.'' The general rule would be that PHAs
and assisted owners cannot make decisions based on criminal history
that research indicates is not predictive of future criminal activity;
that is irrelevant to safety, health, or fitness for tenancy; or that
is based on incomplete or unreliable evidence of criminal activity
(e.g., a record for an arrest that has not resulted in a conviction).
Specifying procedural requirements before denying admission: At
present, program regulations require PHAs and assisted owners to follow
various procedural steps before denying admission based on a criminal
record but do not provide important specifics. For example, PHAs and
assisted owners must notify the household of the proposed denial,
supply a copy of a criminal record, and provide an opportunity to
dispute the accuracy and relevancy of the record before denial of
admission. However, the current regulations do not specify how much
notice a household must receive or the meaning of the opportunity to
dispute the accuracy and relevancy of the record prior to a denial of
admission. The proposed rule would clarify that tenants shall be given
at least 15 days to challenge the accuracy and relevance of the
information and to provide any relevant mitigating information prior to
an admissions decision.
Requiring a fact-specific and individualized assessment before
making a discretionary decision to deny tenancy or admission based on
criminal history: Current program regulations note that PHAs and
assisted owners ``may consider'' certain circumstances prior to making
a discretionary denial of admission or termination decision, and the
different program regulations provide incomplete and inconsistent lists
of appropriate considerations.\2\ HUD is proposing amended language
that would make clear that for all discretionary admission and
termination determinations, PHAs and assisted owners must consider
relevant mitigating circumstances. With respect to admissions
decisions, the proposed rule would require a fact-specific and
individualized assessment of the applicant, adopting a term and concept
that is familiar in the industry but has not previously been required
in HUD programs. The proposed rule would harmonize the non-exhaustive
list of relevant considerations across programs, setting out some
specific factors that will frequently be considered relevant, such as
how long ago the offense or incident occurred, mitigating conduct that
has taken place since (e.g., evidence of rehabilitation and successful
reentry, including employment and tenancy), and completion of drug or
alcohol treatment programs. So long as housing providers consider the
circumstances relevant to the decision, the ultimate decision as to
whether to deny tenancy or admission would remain within their
discretion.
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\2\ See 24 CFR 5.852(a), 966.4(l)(5)(vii)(B), and
982.552(c)(2)(i) and (iii).
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Revising and making available tenant selection plans and PHA
administrative plans: Under existing rules, owners participating in
certain assisted housing programs must have a written tenant selection
plan. The proposed rule would require these owners to update their
tenant selection plans to reflect the relevant policies they employ
within six months following this rule's effective date. The proposed
rule would also require PHAs and owners to make PHA administrative
plans and tenant selection policies more widely available.
Providing additional guidance for PHAs and owners conducting
screenings: When PHAs access criminal records from law enforcement
agencies, existing regulations require PHAs to obtain consent from
families before accessing their criminal records, require them to be
kept confidential, and permit disclosure under limited circumstances.
The proposed rule would broaden these protections to be applicable to
all criminal record searches conducted by PHAs, as well as to assisted
owners where appropriate. The proposed rule also would specify that,
except in circumstances where housing providers and PHAs rely
exclusively on an applicant's self-disclosure of a criminal record,
they may not bar admission for failure to disclose a criminal record
unless that criminal record would have been material to the decision.
Clarifying mandatory admission denial standards: Language
concerning mandatory admission denials based on criminal activity and
alcohol abuse which are required by federal statute is largely left
unchanged by the proposed
[[Page 25334]]
rule. For example, the requirement that an assisted owner or PHA
prohibit admission of individuals ``if any household member has been
evicted from federally assisted housing for drug-related criminal
activity'' in the last three years unless the ``the circumstances
leading to the eviction no longer exist'' has not been modified.\3\ Nor
have any modifications been made to the prohibition on admission to
HUD-assisted housing to those who are ``subject to a lifetime
registration requirement under a State sex offender registration
program.'' The requirement that assisted owners or PHAs must establish
standards to prohibit admission of individuals ``currently engaged in''
illegal use of a drug and in situations where individuals' pattern of
illegal drug use or alcohol abuse may interfere ``with the health,
safety, or right to peaceful enjoyment of the premises by other
resident[s]'' would remain substantively unchanged.
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\3\ HUD is proposing an amendment to these provisions which
would clarify that current participation in a substance use
treatment program may constitute a changed circumstance allowing for
waiver of this 3-year-bar. This amendment and other proposed changes
are explained in more detail later in this proposed rule.
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However, HUD proposes adding greater clarification to the
definition of ``currently engaging in,'' which as described above
triggers a mandatory exclusion with respect to the use of illegal drugs
and triggers discretionary exclusion authority with respect to certain
criminal activity. The existing regulations provide only that currently
engaging in ``means that the individual has engaged in the behavior
recently enough to justify a reasonable belief that the individual's
behavior is current.'' The proposed rule would provide that a PHA or
assisted owner may not rely solely on criminal activity that occurred
12 months ago or longer to establish that behavior is ``current.'' The
proposed rule would also require that any such determination be based
on a preponderance of the evidence standard and that such a
determination take into account mitigating evidence, for example that
the individual has successfully completed substance use treatment
services.
Specifying standards of proof in admissions and terminations
decisions based on criminal activity: Existing regulations are largely
silent on the standards of proof that must be met for admissions and
terminations decisions based on criminal activity. Where they speak to
the subject at all, they state broadly that an assisted owner or PHA
may terminate a tenancy when a household member engaged in certain
criminal activity, regardless of whether they have been arrested or
convicted for such activity, and without satisfying the heightened
standard of proof necessary to support a criminal conviction. There is
no similar provision in existing regulations regarding admission
decisions; nor do existing rules specifically discuss how PHAs and
assisted owners may or may not consider arrest records in making either
admissions or termination determinations. The proposed rule would (1)
prohibit the consideration of arrest records standing alone (in the
absence of other reliable evidence of criminal conduct) for any
exclusion from housing; and (2) provide that criminal conduct or any
other finding on which such an exclusionary decision is made must be
based on a preponderance of the evidence. This would establish and
clarify certain evidentiary standards and requirements for making key
determinations in a manner that is largely consistent with what HUD
already recommends in guidance for its housing providers and PHAs.
Implementing limited changes affecting owners accepting Housing
Choice Vouchers (HCVs) and Project Based Vouchers (PBVs): Most of the
changes in the proposed rule would not apply to owners who participate
in the HCV or PBV programs. The proposed rule would not apply most of
the changes to owners who participate in the HCV or PBV programs, in
order to avoid discouraging owner participation. Those owners who
participate in the HCV or PBV programs would still be able to screen
for drug-related criminal activity and other criminal activity that is
a threat to the health, safety or property of others. The proposed rule
would add language to clarify that this includes ``violent'' criminal
activity and that owners in the HCV and PBV program must also conduct
any screening consistent with the Fair Housing Act, which was not
previously spelled out in program regulations. Additionally, for
terminations of tenancy, HUD proposes the same standards regarding
preponderance of evidence and arrest records as would apply for PHAs
and assisted owners. Finally, existing regulations note that owners
``may consider'' certain mitigating circumstances when terminating a
tenancy. HUD proposes that, where a termination is based on criminal
activity, illegal drug use, or alcohol abuse, an owner may consider an
updated set of circumstances--the same circumstances, including
mitigating and contextualizing evidence, that that PHAs and assisted
owners would be required to consider in the context of admissions and
termination decisions.
Collectively, the principles embodied by this proposed rule are
meant to ensure that people are considered as individuals in HUD-
assisted housing. Requiring housing providers and PHAs to make fact-
specific determinations based on the totality of the circumstances,
rather than denying opportunities based solely on criminal history,
would help ensure that stale, inaccurate, and/or incomplete evidence
and stigma surrounding people with criminal justice system involvement
do not create unnecessary and counterproductive barriers to safe and
affordable housing. Research shows that expanding access to such
housing reduces the risk of future criminal justice system involvement
and, in doing so, strengthens public safety. To be sure, that does not
mean that everyone with a criminal history will satisfy legitimate
tenant screening criteria that apply to all applicants equally. Housing
providers would retain the authority to screen out individuals who they
determine, based on consideration of relevant information, pose a
threat to the health and safety of other tenants. What the proposed
rule would bar is the categorical, blanket exclusion of people with
criminal records without regard to all relevant and contextualizing
evidence and consideration of the full life someone has lived.
II. Background
A. Statutory Authority for This Rulemaking
1. HUD's General Statutory Authority To Promulgate Regulations
Federal agencies derive their authority to regulate from Congress.
Such authority may be provided through a specific law or from an
agency's organic statute. HUD's authority to issue regulations, section
7(d) of HUD's organic statute, the Department of Housing and Urban
Development Act, provides: The Secretary may delegate any of his or her
functions, powers, and duties to such officers and employees of the
Department as he or she may designate, may authorize such successive
redelegations of such functions, powers, and duties as he or she may
deem desirable, and may make such rules and regulations as may be
necessary to carry
[[Page 25335]]
out his or her functions, powers, and duties.\4\
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\4\ 42 U.S.C. 3535(d). HUD relied, inter alia, on this authority
in promulgating the 2001 rulemaking that implemented QHWRA. See 66
FR 28792.
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2. HUD's Specific Statutory Authority Relevant to This Rulemaking
a. HUD's Authority To Establish Criteria for Selection of Tenants,
Occupancy, and Lease Provisions
In 1992, Congress enacted section 13603 of the Housing and
Community Development Act (HCDA). (Oct. 28, 1992, Pub. L. 102-550,
Title VI, Subtitle C, 643, 106 Stat. 3821). Section 13603 sets forth
the authority and standards by which HUD may enact rules to establish
criteria for occupancy and provides that the Secretary shall promulgate
regulations that establish criteria for selection of tenants and lease
provisions in federally assisted housing. The Act requires that ``the
criteria provide sufficient guidance to owners and managers of
federally assisted housing to enable them to (A) select tenants capable
of complying with reasonable lease terms, (B) utilize leases
prohibiting behavior which endangers the health or safety of others or
violates the right of other tenants to peaceful enjoyment of the
premises, (C) comply with legal requirements to make reasonable
accommodations for persons with disabilities, and (D) comply with civil
rights laws.'' \5\
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\5\ 42 U.S.C. 13603(b).
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b. HUD's Authority To Mandate Lease Terms and Conditions
The United States Housing Act of 1937 (42 U.S.C. 1437a, et seq.)
(``USHA'' or ``the 1937 Act'') provides HUD with authority to include
language in contracts with PHAs that require PHAs (and owners) to add
specific requirements in lease agreements for federally assisted
housing (e.g., 42 U.S.C. 1437d(l), 42 U.S.C. 1437f(d)(o)(6)).
c. HUD's Authority To Establish Evidentiary Standards for Applicants
Previously Denied Admission Based on Criminal Activity
The Quality Housing and Work Responsibility Act of 1998 (Pub. L.
105-276, approved Oct. 21, 1998, 112 Stat. 2634-2643) (``QHWRA'')
provides that for applicants who have been previously denied admission
for criminal activity, PHAs or owners may impose a requirement that
such applicants provide ``evidence sufficient'' to show that they have
not engaged in that criminal activity within a ``reasonable period'' of
time. The statute explicitly outlines that ``the [HUD] Secretary shall
by regulation provide'' to PHAs what ``evidence is sufficient.'' 42
U.S.C. 13661(c)(2).
d. HUD's Authority To Make Rules To Carry Out the Fair Housing Act and
Other Civil Rights Laws
As noted above, the proposed rule is also an effort to advance
compliance with nondiscrimination statutes directed at housing and
programs and activities receiving federal financial assistance. The
Fair Housing Act of 1968 (42 U.S.C. 3601, et seq.) provides that ``the
Secretary [of HUD] may make rules (including rules for the collection,
maintenance, and analysis of appropriate data) to carry out this
subchapter [Fair Housing Act]. The Secretary shall give public notice
and opportunity for comment with respect to all rules made under this
section.'' 42 U.S.C. 3614(a).
3. Statutory History With Regard to Criminal History
a. U.S. Housing Act of 1937 \6\
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\6\ As discussed more fully below, the USHA (or the 1937 Act)
has been amended on several occasions with respect to criminal
history, including by the Anti-Drug Abuse Act of 1988; the 1990
National Affordable Housing Act amendments; the Housing Opportunity
Program Extension Act of 1996; and the Quality Housing and Work
Responsibility Act of 1998.
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Section 1437d(l)(6) of title 42, United States Code, applicable to
public housing, requires that PHA leases include a provision stating
that any member of a tenant's household may be evicted for drug-related
or certain other criminal activity.\7\ This section was originally
enacted in the Anti-Drug Abuse Act of 1988 (102 Stat. 4181), and was
retained in the 1990 National Affordable Housing Act amendments, which
redefined the classes of criminal activity to which this prohibition
applies (Pub. L. 101-625, section 504, amending section 6(1)(5) of the
U.S. Housing Act).
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\7\ ``Each public housing agency shall utilize leases which . .
. (6) provide that any criminal activity that threatens the health,
safety, or right to peaceful enjoyment of the premises by other
tenants or any drug-related criminal activity on or off such
premises, engaged in by a public housing tenant, any member of the
tenant's household, or any guest or other person under the tenant's
control, shall be cause for termination of tenancy . .''.
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With respect to Section 8 housing leases, the USHA contains
language similar to 1437d(l)(6). See, e.g., 42 U.S.C.
1437f(d)(1)(B)(iii), which applies to both project-based and tenant-
based section 8.\8\ See also section 1437f(o)(7)(D), which applies to
tenant-based and project-based voucher assistance specifically and
mandates virtually identical language in all housing assistance
payments contracts between a PHA and an owner.\9\ Additionally, section
1437f(o)(6)(C) allows a PHA to elect not to enter into a Housing
Assistance Payments contract with an owner who, among other things,
``[R]efuses, or has a history of refusing, to take action to terminate
tenancy for activity engaged in by the tenant, any member of the
tenant's household, any guest, or any other person under the control of
any member of the household that (i) threatens the health or safety of,
or right to peaceful enjoyment of the premises by, other tenants or
employees of the public housing agency, owner, or other manager of the
housing; (ii) threatens the health or safety of, or right to peaceful
enjoyment of the residences by, persons residing in the immediate
vicinity of the premises; or (iii) is drug-related or violent criminal
activity.''
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\8\ ``[D]uring the term of the lease, any criminal activity that
threatens the health, safety, or right to peaceful enjoyment of the
premises by other tenants, any criminal activity that threatens the
health, safety, or right to peaceful enjoyment of their residences
by persons residing in the immediate vicinity of the premises, or
any drug-related criminal activity on or near such premises, engaged
in by a tenant of any unit, any member of the tenant's household, or
any guest or other person under the tenant's control, shall be cause
for termination of tenancy . . .''
\9\ ``[D]uring the term of the lease, any criminal activity that
threatens the health, safety, or right to peaceful enjoyment of the
premises by other tenants, any criminal activity that threatens the
health, safety, or right to peaceful enjoyment of their residences
by persons residing in the immediate vicinity of the premises, or
any violent or drug-related criminal activity on or near such
premises, engaged in by a tenant of any unit, any member of the
tenant's household, or any guest or other person under the tenant's
control, shall be cause for termination of tenancy . . .''
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b. Housing Opportunity Program Extension Act
In 1996, the Housing Opportunity Program Extension Act (Pub. L.
104-120, 110 Stat. 834-846, approved March 28, 1996) (``the Extension
Act'') amended the United States Housing Act. The Extension Act made an
individual who has been evicted from public housing or any Section 8
program for drug-related criminal activity ineligible for admission to
public housing and the Section 8 programs for a three-year period,
beginning from the date of eviction, unless the individual who engaged
in the activity has successfully completed a rehabilitation program
approved by the PHA or if the PHA determines that the circumstances
leading to the eviction no longer exist.
The Extension Act also required PHAs to establish standards that
prohibit occupancy in any public housing unit or participation in a
Section 8 tenant-based program by any person the PHA
[[Page 25336]]
determines to be using a controlled substance, or whose pattern of
illegal use of a controlled substance or pattern of alcohol abuse would
interfere with the health, safety, or right to peaceful enjoyment of
the premises by other residents of the development. The Extension Act
states that in determining whether a person's use of a controlled
substance or pattern of alcohol abuse may interfere with the health,
safety, or right to peaceful enjoyment of the premises by other
residents of the development, the PHA administering the program may
consider whether an applicant has been rehabilitated from drug or
alcohol abuse. In addition, the Extension Act provides PHAs the
opportunity to access criminal conviction records from law enforcement
agencies for public housing applicants and residents. It also requires
that the public housing agency provide the tenant or applicant with a
copy of the criminal record and an opportunity to dispute the accuracy
and relevance of that record before an adverse action is taken on the
basis of that criminal record.
c. Quality Housing and Work Responsibility Act of 1998
In 1998, Sections 575-579 of the Quality Housing and Work
Responsibility Act (Pub. L. 105-276, approved Oct. 21, 1998, 112 Stat.
2634-2643) (QHWRA) revised sections 6 and 16 of the 1937 Act and
created statutory authority to expand the drug abuse and criminal
activity requirements already applicable to public housing to most
federally assisted housing. Sections 42 U.S.C. 13661-63 apply to all
federally assisted housing; they contain provisions applicable to
illegal drug use, alcohol abuse, individuals who are subject to a
lifetime registration requirement under a State sex offender
registration program, and other criminal activity.
QHWRA expanded the prohibition on admitting families for three
years because of eviction from public housing or Section 8 units for
drug-related criminal activity to cover admissions to (and evictions
from) Section 202, Section 811, Section 221(d)(3) BMIR, Section 236,
and Section 514/515 rural housing projects. In addition, QHWRA (section
578(a)) added the obligation for project owners--including PHAs that
administer public housing--to deny admission to sex offenders who are
subject to a lifetime registration requirement under a State sex
offender registration program.
d. Related Rulemaking
HUD issued a variety of guidance on implementing the Extension Act
(PIH Notice 96-16, issued April 12, 1996, and PIH Notice 96-27, issued
May 15, 1996) and published proposed rules for the Section 8 tenant-
based and moderate rehabilitation programs on March 31, 1997 (62 FR
15346) and for the public housing program on May 9, 1997 (62 FR 25728).
Because of the timing of the 1998 Act and the related nature of its
drug abuse and criminal activity requirements, HUD published a proposed
rule (64 FR 40262; July 23, 1999) on the provisions as they existed
after the revision to the drug abuse and criminal activity requirements
made by QHWRA, rather than issuing a final rule on the admission and
eviction provisions of the earlier Extension Act.\10\ HUD published its
Final Rule implementing the relevant provisions of both the Extension
Act and QHWRA on May 24, 2001.\11\
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\10\ The FY 1999 appropriations act (section 428 of Pub. L. 105-
276, 112 Stat. 2511) added a new paragraph (f) to section 16 of the
1937 Act to bar persons convicted of manufacturing or producing
methamphetamine on the premises of federally-assisted housing from
public housing and Section 8-assisted housing where the PHA
determines who is admitted.
\11\ Screening and Eviction for Drug Abuse and Other Criminal
Activity (66 FR 28775; May 24, 2001). An additional relevant
provision was added to the 1937 Act by the Personal Responsibility
and Work Opportunity Act of 1996 (Pub. L. 104-193, approved August
22, 1996; 110 Stat. 2105, 2348). Section 903 of that Act amended the
1937 Act (42 U.S.C. 1437f(d)(1) and 1437d(l)) to add as grounds for
termination of tenancy in the public housing and Section 8
assistance programs fleeing to avoid prosecution, or custody or
confinement after conviction, for a felony (or a high misdemeanor in
New Jersey). Violating a condition of probation or parole imposed
under Federal or State law is also grounds for termination of
tenancy under that provision. That provision also created the
obligation (in a new section 27 of the 1937 Act) for PHAs to provide
Federal, State or local law enforcement officials with information
concerning assisted recipients whom the officials are pursuing for
violating parole or fleeing to avoid prosecution. These provisions
are not affected by this proposed rule.
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B. HUD's Post-Rulemaking Efforts With Respect to Criminal Histories
In the 20-plus years since the publication of the final rule
implementing statutory drug abuse and criminal activity provisions,
HUD's experience has been that some PHAs and HUD-assisted housing
owners are unnecessarily restrictive in their use of criminal records
background screening in their tenant selection practices. This may be
partly due to mistaken beliefs that HUD still advocates use of ``One
Strike'' admissions policies, as it did in the 1990s.\12\ Rather than
viewing criminal records as just one part of what should be an
individualized determination of whether prospective tenants are likely
to engage in future criminal activity that may endanger the health and
safety of others, many have used ``blanket bans'' to turn away
prospective tenants with any criminal records, no matter how far in the
past that criminal justice system involvement was and its relation, if
any, to the applicant's current fitness as a tenant based upon public
safety, public health, and right to peaceful enjoyment concerns.\13\
Some owners and PHAs, especially in recent years, have begun taking an
individualized approach to tenant screening. Others, however, consider
the mere presence of certain convictions or criminal records automatic
grounds for denial, without regard to how far in the past that criminal
justice system involvement may have occurred, the type of criminal
history involvement and the circumstances surrounding it, including any
mitigating factors, such as a subsequent record of rehabilitation. As a
result, subsidized housing opportunities are denied to a group of
people that need them the most and whom research demonstrates can most
benefit from them to reduce the risk of homelessness and recidivism. In
this
[[Page 25337]]
regard, the Department notes that there are only two statutorily
required exclusions for federally assisted housing: persons who are
subject to a lifetime registration requirement under a State sex
offender registration program and persons convicted of producing
methamphetamines on federally assisted property.\14\ Other than these
two statutorily required exclusions, PHAs and HUD-assisted housing
owners are not statutorily required to deny housing assistance to
people with prior criminal convictions.
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\12\ On March 28, 1996, President Clinton announced a ``One
Strike and You're Out'' policy for public housing residents and
signed into law the ``Housing Opportunity Program Extension Act of
1996,'' providing additional authority to PHAs in the areas of
screening, lease enforcement, and eviction with the aim of reducing
crime in public housing. In Notice PIH 96-16, HUD recommended that
PHAs adopt ``One Strike'' policies with stricter screening at
admissions and lease provisions that offered ``zero tolerance'' for
public housing residents who engage in criminal activity. Available
at <a href="https://www.hud.gov/program_offices/administration/hudclips/notices/pih/96pihnotices">https://www.hud.gov/program_offices/administration/hudclips/notices/pih/96pihnotices</a>.
\13\ Blanket ban policies are presumptively inconsistent with
current HUD regulations, and HUD's proposed changes should not be
construed to indicate otherwise. For example, when making a
discretionary (or ``permissive'') admission denial to the voucher
program, a PHA must show that the criminal activity falls within
specific categories listed in HUD's regulations. Specifically, the
criminal activity must be current or have happened a reasonable time
before the admission decision, and must be either drug-related,
violent, or criminal activity that may threaten the health, safety,
or right to peaceful enjoyment of others (i.e., other residents,
persons residing in the immediate vicinity, the owner, property
management staff, or persons performing a contract administration
function or responsibility on behalf of the PHA. 24 CFR
982.553(a)(2)(ii)(A)(1)-(4). See Hartman v. Hous. Auth. of Cnty. of
Lawrence, No. 164 C.D. 2021, 2023 WL 7218096, at *4 (Pa. Commw. Ct.
Nov. 2, 2023)(unpublished)(upholding trial court's opinion that the
PHA exceeded its authority under HUD regulations and abused its
discretion when it denied admission to the Section 8 voucher program
based on a charge of welfare fraud, with no evidence that such
activity threatened the health, safety, or right to peaceful
enjoyment of others).
\14\ There are two ``qualified'' (i.e., not absolute)
exclusions: (1) a PHA must prohibit admission for three years from
date of eviction if a household member has been evicted from
federally assisted housing for drug-related criminal activity (the
PHA may admit if the PHA determines the member successfully
completed a supervised drug rehabilitation program approved by the
PHA, or the circumstances leading to the eviction no longer exist)
and (2) a PHA must prohibit admission of households with a member
who: (a) the PHA determines is currently engaging in illegal use of
a drug, or (b) the PHA determines that it has reasonable cause to
believe that a household member's illegal drug use, pattern of
illegal drug use, abuse of alcohol, or pattern of abuse of alcohol
may threaten the health, safety, or right to peaceful enjoyment of
the premises by other residents.
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In addition to admissions, similar patterns exist in the eviction
and termination context notwithstanding regulatory provisions and
judicial precedent that should restrain PHAs and assisted housing
providers. For example, in situations where PHAs and assisted owners
are granted discretion to evict or terminate for criminal activity,
some have failed to exercise such discretion in a thoughtful,
analytical manner and have instead engaged in automatic eviction and
termination of tenants and participants simply because some criminal
activity occurred or was alleged to have occurred, with no
consideration of relevant mitigating circumstances outlined in the
current regulations. This has led to unnecessary evictions and
homelessness, including of vulnerable individuals and families who pose
no danger to others. HUD notes that engaging in automatic evictions and
terminations where regulations grant PHAs or owners discretion is
contrary to the regulations currently in place. Courts have adopted the
view that HUD's eviction and termination regulations already require
PHAs and owners to consider relevant mitigating circumstances prior to
an eviction or termination, and HUD agrees with this view.\15\ This
proposed rule is intended to be consistent with existing law and does
not intend to suggest that a lesser degree of consideration for
mitigating circumstances should be given in evictions or terminations
than in admissions. HUD specifically seeks comment on whether the
language of the proposed rule makes clear and effective the necessity
to consider relevant mitigating circumstances prior to eviction or
termination (see ``Questions for public comment,'' infra, Section VII,
#4).
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\15\ See, e.g., E. Carolina Reg'l Housing Authority v. Lofton,
789 S.E.2d 449, 451 (N.C. 2016) (PHAs attempt to evict tenant and
her family for her babysitter committing marijuana offenses in her
unit ``failed to exercise its discretion'' under 24 CFR
966.4(l)(5)(vii)); City of Charleston Hous. Auth. v. Brown, 878
S.E.2d 913, 920 (S.C. Ct. App. 2022) (reversing an eviction because
there was no evidence that the PHA properly exercised its discretion
by considering mitigating factors as required by Sec.
966.4(l)(5)(vii)); Carter v. Lynn Hous. Auth., 880 N.E.2d 778, 785
(Mass. 2008) (reversing termination of voucher where hearing officer
failed to consider mitigating circumstances required by 24 CFR
982.552(c)(2), noting that ``failure to exercise discretion is
itself an abuse of discretion''); Oakwood Plaza Apts. v. Smith, 800
A.2d 265, 270 (N.J. Super. Ct. App. Div. 2002) (holding that 24 CFR
982.310(h), ``involve[s] [t]he same degree of discretion'' as in
public housing evictions, and ``the federal statutory framework
therefore does not permit a Section 8 landlord to act in an
arbitrary or capricious fashion.''). HUD is unaware of any judicial
precedent interpreting HUD regulations as making the consideration
of relevant mitigating circumstances optional in the eviction
context; indeed at least one circuit court decision interprets the
statutory language underlying these regulations as requiring a
consideration of relevant circumstances. Campbell v. Minneapolis
Pub. Hous. Auth. ex rel. City of Minneapolis, 168 F.3d 1069, 1076
(8th Cir. 1999). However, HUD is aware of a split in court decisions
on this issue in the voucher termination context. HUD agrees with
those decisions which read the voucher termination regulations as
requiring the consideration of mitigating circumstances, in line
with the majority of case law on these issues. See, e.g. Lynn Hous.
Auth., 880 N.E.2d at 785; Lipscomb v. Hous. Auth. of Cnty. of Cook,
45 N.E.3d 1138, 1147 (Ill. Ct. App. 2015) (a discretionary
termination of benefits under 24 CFR 982.552(c) requires the agency
to consider the ``relevant circumstances'' before making its
determination); Matter of Gist v. Mulligan, 886 N.Y.S.2d 172, 173
(App. Div. 2009) (finding the PHA's decision to terminate a tenant's
voucher was an abuse of discretion based on the circumstances in the
case, even though the participant violated the program rules);
Blitzman v. Mich. State Hous. Dev. Auth., Nos. 330184; 334484, 2017
WL 3044129, at *5-7 (Mich. Ct. App. Jul. 18, 2017) (unpublished)
(holding that, although ``may consider'' is usually permissive
language, in the context here, it becomes a command to consider
mitigating circumstances); Hicks v. Dakota Cnty. Comm. Dev. Agency,
No. A06-1302, 2007 WL 2416872, at *4 (Minn. Ct. App. Aug. 28, 2007)
(unpublished) (the PHA must consider the mitigating circumstance in
the case at hand, even though the regulation used the permissive
term ``may'') compare to Peterson v. Washington Cnty. Hous. &
Redevelopment Auth., 805 N.W.2d 558, 563-64 (Minn. Ct. App. 2011) (a
hearing officer is not required to consider mitigating factors when
deciding whether a participant's violation of a reporting rule is a
terminable offense); Bowman v. City of Des Moines Mun. Hous. Agency,
805 N.W.2d 790, 799 (Iowa 2011) (the words ``may consider'' in Sec.
982.552(c)(2)(i) give the hearing officer discretion about whether
to consider mitigating factors).
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HUD is committed to ensuring that PHAs and owners retain the
ability to make admission and termination decisions to protect the
peaceful enjoyment of all residents and employees at their properties.
At the same time, HUD seeks to ensure that its grantees make those
decisions consistent with a growing body of case law, evidence, and
best practices. PHAs and assisted housing owners should have clarity
about their obligations so they can have clear, predictable processes
for screening prospective residents. Effective applicant screening
entails more than simply reviewing an applicant's criminal record,
since having a criminal record in and of itself is not a reliable
indicator that an individual is unsuitable for tenancy in HUD-assisted
housing. For the same reason, PHAs and owners must consider all
relevant mitigating circumstances when making termination and eviction
decisions, rather than basing such decisions solely on a tenant's
criminal record.
HUD-assisted properties benefit from having long-term residents who
pay their portion of the rent and do not interfere with the peaceful
and quiet enjoyment of other residents. HUD believes that the type of
screening being proposed in this rule, which aims to determine whether
people are able to comply with lease terms, would ensure that selected
residents meet those resident criteria. It would further ensure fewer
inappropriate denials are made, avoiding the time and expense of re-
reviews or defending challenges.
1. HUD Guidance and Secretarial Letters
For two decades, HUD has issued letters and guidance in an attempt
to encourage PHAs and owners of HUD-assisted housing to reconsider and
revise unnecessarily restrictive criminal record screening and eviction
policies. In April 2002, former HUD Secretary Mel Martinez urged PHAs
to use the public housing lease provision that allows for eviction
based on certain criminal activity (often referred to as the ``one
strike'' lease provision) only as ``the last option explored, after all
others have been exhausted,'' and a ``tool of last resort'' in cases
involving the use of illegal drugs.\16\ In June 2011, former HUD
Secretary Shaun Donovan issued a letter to PHAs across the country,
emphasizing the importance of providing ``second chances'' for formerly
incarcerated individuals.\17\
[[Page 25338]]
Secretary Donovan urged PHAs to adopt admission policies that achieve a
sensible and effective balance between allowing individuals with a
criminal record to access HUD-subsidized housing and ensuring the
safety of all residents of such housing. A year later, Secretary
Donovan encouraged owners of HUD-assisted multifamily properties
(``owners'') to do the same,\18\ noting that ``people who have paid
their debt to society deserve the opportunity to become productive
citizens and caring parents, to set the past aside and embrace the
future.'' He also reiterated HUD's goal of ``helping ex-offenders gain
access to one of the most fundamental building blocks of a stable
life--a place to live.''
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\16\ Letter from Mel Martinez to Public Housing Authority
Executive Directors (April 16, 2002), available at <a href="https://www.nhlp.org/wp-content/uploads/Ltr-from-Mel-Martinez-HUD-Secy-to-Pub-Hous-Dirs-Apr.-16-2002-1.pdf">https://www.nhlp.org/wp-content/uploads/Ltr-from-Mel-Martinez-HUD-Secy-to-Pub-Hous-Dirs-Apr.-16-2002-1.pdf</a>.
\17\ Letter from Shaun Donovan to Public Housing Authority
Executive Directors (June 17, 2011), available at <a href="https://perma.cc/L5QM-MSMX">https://perma.cc/L5QM-MSMX</a>.
\18\ Letter from Shaun Donovan to Assisted Housing Owners (March
14, 2012). <a href="https://nhlp.org/files/HUD%20Letter%203.14.12.pdf">https://nhlp.org/files/HUD%20Letter%203.14.12.pdf</a>.
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In 2013, HUD again noted the troubling relationship between housing
barriers for individuals with criminal records and homelessness. In PIH
Notice 2013-15,\19\ which focused on housing individuals and families
experiencing homelessness, HUD stated ``the difficulties in
reintegrating into the community increase the risk of homelessness for
released prisoners, and homelessness in turn increases the risk of
subsequent re-incarceration.'' The notice reminded PHAs of the very
limited circumstances under which exclusion related to criminal
activity is mandated by statute and exhorted PHAs to consider amending
their discretionary admissions and occupancy policies to be more
inclusive of vulnerable populations who may have criminal backgrounds
or histories of incarceration.
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\19\ Guidance on housing individuals and families experiencing
homelessness though the Public Housing and Housing Choice Voucher
programs, HUD PIH Notice 2013-15 (HA), (June 10, 2013), available at
<a href="https://www.hud.gov/sites/documents/PIH2013-15.PDF">https://www.hud.gov/sites/documents/PIH2013-15.PDF</a>.
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In November 2015, HUD went on to issue more comprehensive guidance
to both PHAs and assisted housing owners on the proper use of criminal
records in housing decisions.\20\ The guidance made clear, among other
things, that arrest records may not be the basis for denying admission,
terminating assistance, or evicting tenants; that HUD does not require
the adoption of ``One Strike'' policies; and that PHAs and assisted
housing owners must be cognizant of their obligation to safeguard the
due process rights of both applicants and tenants. The Notice also
explicitly reminds PHAs and owners of their obligation to ensure that
all admissions and occupancy requirements comply with applicable civil
rights requirements contained in the Fair Housing Act, Title VI of the
Civil Rights Act of 1964, section 504 of the Rehabilitation Act of
1973, Titles II and III of the Americans with Disabilities Act of 1990,
and all other equal opportunity provisions listed in 24 CFR 5.105.
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\20\ Guidance for Public Housing Agencies (PHAs) and Owners of
Federally-Assisted Housing on Excluding the Use of Arrest Records in
Housing Decisions, PIH Notice 2015-19 (November 2, 2015), available
at <a href="https://www.hud.gov/sites/documents/PIH2015-19.PDF">https://www.hud.gov/sites/documents/PIH2015-19.PDF</a> (Identical
guidance was issued at the same time by HUD's Office of Housing as
Housing Notice 2015-10).
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With respect particularly to ``One Strike'' policies, HUD stated
that PHAs and owners are not required to adopt or enforce rules that
deny admission to anyone with a criminal record or that require
automatic eviction any time a household member engages in criminal
activity in violation of their lease. Rather, in most cases, PHAs and
owners may exercise discretion in these situations, and in exercising
such discretion they may consider all of the circumstances relevant to
the particular admission or eviction decision. Additionally, when
specifically considering whether to deny admission or terminate
assistance or tenancy because of illegal drug use by a household member
who is no longer engaged in such activity, a PHA or owner may consider
whether the household member is participating in or has successfully
completed a substance use rehabilitation program or has otherwise been
rehabilitated successfully.
HUD followed this up with guidance from the Office of General
Counsel (OGC) in 2016 that clarified that housing providers who use
overbroad criminal record exclusions risk violating the Fair Housing
Act.\21\ HUD's Office of General Counsel advised that in order to avoid
such risk, screening policies based on criminal records should be
narrowly tailored to exclude only to the extent necessary to achieve a
substantial interest. To meet this standard, housing providers should
make an individualized assessment that takes into account relevant
mitigating information beyond that contained in an individual's
criminal record before making any adverse decision based on criminal
activity. HUD's Office of General Counsel instructed that this
individualized assessment should consider factors such as the facts or
circumstances surrounding the criminal conduct; the age of the
individual at the time of the conduct; evidence that the individual has
maintained a good tenant history before and/or after the conviction or
conduct; and evidence of rehabilitation.
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\21\ See fn.1 supra.
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The guidance also clarified that housing providers must be able to
prove through reliable evidence that their policies actually assist in
protecting resident safety and peaceful enjoyment; therefore, they
should not exclude individuals because of one or more prior arrests
(without any conviction), impose ``blanket bans'' that exclude anyone
with a conviction record or even certain types of convictions, or
utilize policies that fail to distinguish between criminal conduct that
indicates a demonstrable risk to resident safety and/or property and
criminal conduct that does not. While this OGC guidance was not
directed specifically to PHAs or HUD-assisted housing providers, it
applies to them as it does to all other entities who engage in actions
covered by the Fair Housing Act.\22\
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\22\ Id. at 3 (clarifying that the 2016 Guidance ``applies to a
wide-range of entities covered by the Act, including private
landlords, management companies, condominium associations or
cooperatives, third-party screening companies, HUD-subsidized
housing providers, and public entities that operate, administer or
fund housing or that enact ordinances that restrict access to
housing based on criminal involvement''), <a href="https://www.hud.gov/sites/dfiles/FHEO/documents/Implementation%20of%20OGC%20Guidance%20on%20Application%20of%20FHA%20Standards%20to%20the%20Use%20of%20Criminal%20Records%20-%20June%2010%202022.pdf">https://www.hud.gov/sites/dfiles/FHEO/documents/Implementation%20of%20OGC%20Guidance%20on%20Application%20of%20FHA%20Standards%20to%20the%20Use%20of%20Criminal%20Records%20-%20June%2010%202022.pdf</a>.
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On June 23, 2021, HUD Secretary Marcia Fudge issued a letter to
PHAs, Continuums of Care, Multifamily Owners, and HUD Grantees,\23\
reiterating the theme of HUD's earlier secretarial-issued letters and
clarifying that people exiting prisons and jails who are at-risk of
homelessness due to their low incomes and lack of sufficient resources
or social supports are among the eligible populations for Emergency
Housing Vouchers under the American Rescue Plan. Secretary Fudge's
letter also emphasizes HUD's commitment to taking a comprehensive
approach to addressing reentry housing needs, including developing
tools and guidance to ensure that applicant screening and tenant
selection practices avoid unnecessarily overbroad denial of housing to
applicants on the basis of criminal records; reviewing existing HUD
policies and regulations that limit access to housing and HUD
assistance among those with criminal histories; and publishing findings
regarding the best practices on reentry housing programs.\24\ Following
the June letter,
[[Page 25339]]
HUD held a series of listening sessions with stakeholders, housing
residents, and people with lived experience of criminal justice system
involvement and learned that there continue to be numerous instances of
people being denied HUD program access for years-old criminal
convictions or convictions that do not pose a current risk or threat.
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\23\ Letter from Marcia L. Fudge to Public Housing Authorities,
Continuums of Care, Multifamily Owners, and HUD Grantees (June 23,
2021), <a href="https://www.hud.gov/sites/dfiles/PA/documents/SOHUD_reentry_housing_letter.pdf">https://www.hud.gov/sites/dfiles/PA/documents/SOHUD_reentry_housing_letter.pdf</a>.
\24\ Id.
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Partially as a result of those listening sessions, in April 2022,
Secretary Fudge issued an internal directive to principal staff to
conduct an agency-wide review of all existing regulations, guidance,
and subregulatory policy documents and to propose amendments that will
reduce barriers to housing for persons with criminal histories and
their families and make HUD programs as inclusive as possible. This
review identified opportunities to apply to HUD programs' core
principles informed by evidence-based research, e.g., that criminal
records should not be taken as indicating that the person is engaged in
or at-risk of engaging in current or future criminal activity or used
in an overbroad manner to deny access to HUD-assisted housing; that
stable housing reduces recidivism and increases public safety; and that
overly broad exclusions of people with criminal records do not increase
public safety.\25\ This proposed rule would implement many of the
changes that were proposed as part of that review effort.
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\25\ U.S. Dept. of Housing and Urban Development, Why Housing
Matters for Successful Reentry and Public Safety, THE EDGE, (Apr.
19, 2022), <a href="https://www.huduser.gov/portal/pdredge/pdr-edge-frm-asst-sec-041922.html">https://www.huduser.gov/portal/pdredge/pdr-edge-frm-asst-sec-041922.html</a>.
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2. Interagency Coordination Efforts
HUD has been involved since 2011 in various coordinated
intergovernmental efforts to address larger issues of reentry of
formerly incarcerated individuals, as part of both the Federal
Interagency Reentry Council (FIRC) and the more recently convened
Reentry Coordination Council (RCC).
In January 2011, then U.S. Attorney General Eric Holder established
the Cabinet-level FIRC, representing a significant executive branch
commitment to coordinating reentry efforts and advancing effective
reentry policies. From 2011 to 2016, HUD worked with more than 20 other
federal agencies to reduce recidivism and improve housing, employment,
education, health, and child welfare outcomes. Following up on the work
of the FIRC, in October 2021 U.S. Attorney General Merrick Garland
convened the federal Reentry Coordination Council (RCC). The creation
of the RCC--which largely mirrors the work of its FIRC predecessor, but
with an added focus on the impacts of COVID--stems from the First Step
Act of 2018 (section 505 of Pub. L. 115-391), which reauthorized the
Second Chance Act and requires the Attorney General to ``coordinate on
Federal programs, policies, and activities relating to the reentry of
individuals returning from incarceration to the community, with an
emphasis on evidence-based practices'' and to ``submit to Congress a
report summarizing the achievements'' of the agency collaboration,
including ``recommendations for Congress that would further reduce
barriers to successful reentry.'' The RCC is composed of
representatives from six federal agencies in addition to the Department
of Justice; it issued its first report in April 2022.\26\
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\26\ Coordination to Reduce Barriers to Reentry: lessons learned
from COVID-19 and beyond (April 2022), available at <a href="https://www.justice.gov/opa/press-release/file/1497911/download">https://www.justice.gov/opa/press-release/file/1497911/download</a>.
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In May 2022, President Biden issued Executive Order 14074,\27\
which, among other things, mandated the establishment of an interagency
Alternatives and Reentry Committee, with HUD as an enumerated member,
to develop a comprehensive evidence-based federal strategic plan to
improve public safety while safely reducing federal strategy to reduce
unnecessary criminal justice interactions, to support and improve
rehabilitation while people are incarcerated, and to facilitate and
support successful reentry. One of the specific charges of that
committee is to identify ways to reduce barriers to federal programs,
including housing programs, for individuals with criminal records.\28\
The White House Alternatives, Rehabilitation, and Reentry Strategic
Plan mandated by the Executive Order was published on April 28,
2023.\29\
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\27\ E.O. 14074 Advancing Effective, Accountable Policing and
Criminal Justice Practices To Enhance Public Trust and Public Safety
(May 25, 2022).
\28\ Id.
\29\ <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2023/04/28/fact-sheet-biden-harris-administration-takes-action-during-second-chance-month-to-strengthen-public-safety-improve-rehabilitation-in-jails-and-prisons-and-support-successful-reentry/">https://www.whitehouse.gov/briefing-room/statements-releases/2023/04/28/fact-sheet-biden-harris-administration-takes-action-during-second-chance-month-to-strengthen-public-safety-improve-rehabilitation-in-jails-and-prisons-and-support-successful-reentry/</a>.
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3. HUD's Engagement of Stakeholders and People With Lived Experience of
Criminal Justice System Involvement
Prior to and after the Secretary's internal directive to conduct a
comprehensive internal review of HUD policy and guidance regarding the
use of criminal records in housing decisions, HUD staff engaged in
extensive conversations with a variety of stakeholders on these issues.
In particular, HUD staff has held multiple listening sessions that
included representatives of public housing agencies, HUD-assisted
housing providers, community organizers, legal services organizations,
providers of reentry services and other services for formerly
incarcerated people, as well as formerly incarcerated individuals and
other people with criminal records. HUD held three such sessions in
early April 2022 that were attended by over 100 people. Although they
were invited to all three sessions, HUD held one of these three
sessions exclusively for formerly incarcerated people and others who
have been involved in the criminal justice system. The listening
sessions revealed several independent insights, including:
<bullet> There is wide variation among HUD-assisted housing
providers in their use of criminal records in screening, admission, and
tenancy policies.
<bullet> Following HUD's issuance of fair housing guidance from the
Office of the General Counsel, some public housing agencies and HUD-
assisted housing providers proactively made changes in their use of
criminal records, such as limiting ``lookback'' periods, limiting their
review to only a certain set of convictions, and also reviewing
mitigating factors as part of an individualized assessment.
<bullet> Many other HUD-assisted housing providers appear to be
unaware of the 2016 guidance from HUD's Office of General Counsel or
expressed uncertainty regarding how to apply fair housing principles.
Some expressed concern that the fair housing guidance applicable to all
housing providers was difficult to reconcile with HUD program
regulations and sub-regulatory guidance materials.
<bullet> Many people continue to be denied access to HUD housing
assistance programs for criminal records that appeared to indicate
little risk to the health, safety, welfare, and peaceful enjoyment of
housing by other residents.
<bullet> Owners and PHAs who provide HUD-assisted housing would
like clear guidance on how to screen applicants appropriately.
The information gathered from these listening sessions helped
inform the Secretary's decision to mandate a comprehensive review, as
well as this proposed rulemaking.
III. Need for the Regulation
In addition to creating clarity and standardizing variegated
admission and termination practices regarding individuals with criminal
records across
[[Page 25340]]
the country, the proposed rule is needed to address several discrete
issues.
A. Prevalence of Criminal Justice System Involvement in General
Population
In a typical year, approximately 600,000 people in the United
States enter prisons; at the same time, people are sent to jails across
our country over 10 million times.\30\ Individuals returning to their
communities after a term of imprisonment face a number of barriers to
success, including housing insecurity, inability to access health care,
food insecurity, and barriers to education and employment. These
longstanding barriers were exacerbated during the COVID-19 pandemic and
compounded by additional hurdles, including limited access to
government and community-based services and support.\31\
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\30\ Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole
Pie 2022, PRISON POLICY INITIATIVE (Mar. 14, 2023), <a href="https://www.prisonpolicy.org/reports/pie2023.html">https://www.prisonpolicy.org/reports/pie2023.html</a>. During the pandemic the
American correctional system experienced a 20 percent reduction in
the prison population and a 25 percent reduction in the jail
population. This is largely due to the ``pandemic-related slowdowns
in the criminal justice system.''
\31\ See Ripper, B. (2023). Flyers, fighters, and freezers: how
formerly incarcerated women coped with reentry and the job search
during the COVID-19 pandemic. Journal of Offender Rehabilitation,
62(3), 137-156 and Kramer, C., Song, M., Sufrin, C.B., Eber, G.B.,
Rubenstein, L.S., & Saloner, B. (2023). Release, Reentry, and
Reintegration During COVID-19: Perspectives of Individuals Recently
Released from the Federal Bureau of Prisons. Health Equity, 7(1),
384-394.
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The criminal justice system affects a large segment of the U.S.
population. The U.S. population has less than 5% of the world's
population but represents over 20% of the world's prisoners. Between 70
million and 100 million--or as many as one in three Americans--have a
criminal record.\32\ Approximately 5.5 million people in the United
States--1 in 48 adult U.S. residents--were under the supervision of
adult correctional systems at the end of 2021,\33\ and as many as one
in three adult Americans has been arrested at least once.\34\ In 2021,
nearly 445,000 people were released from prison.\35\ Individuals in
prison and jail are disproportionately poor compared to the overall
U.S. population.\36\ The impact of this mass incarceration is
disproportionate, with historically marginalized groups being most
impacted. Moreover, people of color are overrepresented in the nation's
prisons and jails: for instance, Black Americans make up thirty-eight
percent of the incarcerated population despite representing only twelve
percent of the U.S. population. Black men are incarcerated at nearly
six times the rate of White men. Black men with disabilities account
for less than 2% of the overall U.S. population but more than 18% of
the state prison population. Hispanic men are incarcerated at nearly
two-and-a-half times the rate of White men. Native Americans overall
are incarcerated at more than twice the rate of White Americans.\37\
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\32\ Sent'g Proj., Americans with Criminal Records (Aug. 2022),
<a href="https://www.sentencingproject.org/app/uploads/2022/08/Americans-with-Criminal-RecordsPoverty-and-Opportunity-Profile.pdf">https://www.sentencingproject.org/app/uploads/2022/08/Americans-with-Criminal-RecordsPoverty-and-Opportunity-Profile.pdf</a>.
\33\ Carson, E. Ann and Kluckow, Rich. (February 2023).
Correctional Population in the United States, 2021--Statistical
Tables. Bureau of Justice Statistics. In 2019, an estimated 6.3
million people in the United States (1 in 40) were under the
supervision of the adult correctional system. During the first year
of the pandemic in 2020, the number dropped by 11 percent to 5.5
million--a level not observed in nearly 25 years. (Minton, Beatty,
and Zeng, 2021; Kluckow and Zeng, 2022). The decrease between year 1
and 2 of the pandemic was only 1 percent. (Carson and Kluckow, 2023)
\34\ See Lucius Couloute, Nowhere to Go: Homelessness among
formerly incarcerated people, PRISON POLICY INITIATIVE (Aug. 2018),
<a href="https://www.prisonpolicy.org/reports/housing.html">https://www.prisonpolicy.org/reports/housing.html</a>; Shawn Bushway et.
al., Barred from employment: More than half of unemployed men in
their 30s had a criminal history of arrest, 8 Science Advances No. 7
(Feb. 18, 2022), <a href="https://www.science.org/doi/10.1126/sciadv.abj6992">https://www.science.org/doi/10.1126/sciadv.abj6992</a>.
\35\ Carson, E. Ann (December 2022). Prisoners in 2021--
Statistical Tables. Bureau of Justice Statistics.
\36\ Sawyer & Wagner, supra fn.30.
\37\ Id. Since the writing of the article, the U.S. Census
Bureau reported the percent Americans reporting race as ``Black or
African American alone'' increased to 13.6 percent.
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The nation as a whole faces a severe shortage of affordable housing
and rental assistance relative to need; federal housing assistance is
not an entitlement and serves only one in five eligible renter
households.\38\ However, certain populations, including those with
criminal justice system involvement, face even greater challenges with
obtaining and maintaining housing and housing assistance. The shortage
of affordable housing during the COVID-19 pandemic placed persons with
criminal histories and with limited or no credit histories (which is
often a byproduct of incarceration) at a particular disadvantage. In
some jurisdictions, the lack of safe, stable housing also delayed
approval for discretionary early or compassionate release from prison,
leading those without housing to serve more time behind bars than those
with stable housing available to them.\39\ Even fewer housing options
are affordable and accessible for individuals with disabilities, making
it more difficult for these individuals to successfully transition back
home from jail or prison.
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\38\ Corianne Payton Scally, et al., The Case for More, Not
Less: Shortfalls in Federal Housing Assistance and Gaps in Evidence
for Proposed Policy Changes, URBAN INST., at 1, (Jan. 2018), <a href="https://www.urban.org/sites/default/files/publiction/95616/case_for_more_not_less.pdf">https://www.urban.org/sites/default/files/publiction/95616/case_for_more_not_less.pdf</a>; G. Thomas Kingsley, Trends in Housing
Problems and Federal Housing Assistance, URBAN INST., (Oct. 2017),
<a href="https://www.urban.org/sites/default/files/publication/94146/trends-in-housing-problems-and-federal-housing-assistance.pdf">https://www.urban.org/sites/default/files/publication/94146/trends-in-housing-problems-and-federal-housing-assistance.pdf</a>.
\39\ Letter from Marcia L. Fudge, Secretary, U.S. Dept. of
Housing and Urban Development, supra at fn 23.
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Even prior to the pandemic, formerly incarcerated people were
almost ten times more likely to experience homelessness than the
general public. The rates are significantly higher among those released
from incarceration within the prior two years. Using HUD Point-in-Time
estimates and the National Former Prisoner Survey, academic Lucius
Couloute \40\ estimates that the sheltered homeless rate is 98 per
10,000 for formerly incarcerated individuals compared to 13 per 10,000
for the general public. The unsheltered homeless rate is 105 per 10,000
for formerly incarcerated individuals compared to 8 per 10,000 in the
general public. An additional 367 per 10,000 formerly incarcerated
individuals have marginal housing insecurities, living in rooming
houses, hotels, or motels. Moreover, studies have calculated that a
person experiencing chronic homelessness can cost taxpayers between
$30,000 and $100,000 per year.\41\
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\40\ See U.S. Dept. of Justice, Bureau of Justice Statistics,
Correctional Populations in the United States, 2020--Statistical
Tables (Mar. 2022), <a href="https://bjs.ojp.gov/content/pub/pdf/cpus20st.pdf">https://bjs.ojp.gov/content/pub/pdf/cpus20st.pdf</a>; Lucius Couloute, Nowhere to Go: Homelessness among
formerly incarcerated people, Prison Policy Initiative (Aug. 2018),
<a href="https://www.prisonpolicy.org/reports/housing.html">https://www.prisonpolicy.org/reports/housing.html</a>; Shawn Bushway et.
al., Barred from employment: More than half of unemployed men in
their 30s had a criminal history of arrest, 8 Science Advances No. 7
(Feb. 18, 2022), <a href="https://www.science.org/doi/10.1126/sciadv.abj6992">https://www.science.org/doi/10.1126/sciadv.abj6992</a>;
see also Saneta deVuono-powell, et al., Who Pays? The True Cost of
Incarceration on Families, Ella Baker Center, Forward Together,
Research Action Design (Sept. 2015), at 26-27, <a href="https://www.whopaysreport.org/wp-content/uploads/2015/09/Who-Pays-FINAL.pdf">https://www.whopaysreport.org/wp-content/uploads/2015/09/Who-Pays-FINAL.pdf</a>
(stating that in one study, 79 percent of survey respondents
reported being ineligible for or denied housing due to their
criminal conviction history or that of a family member).
\41\ See National Alliance to End Homelessness, Ending Chronic
Homelessness Saves Taxpayers Money (June 2017), <a href="http://endhomelessness.org/wp-content/uploads/2017/06/Cost-Savings-from-PSH.pdf">http://endhomelessness.org/wp-content/uploads/2017/06/Cost-Savings-from-PSH.pdf</a> (``A chronically homeless person costs the tax payer an
average of $35,578 per year''); United States Interagency Council on
Homelessness, Ending Chronic Homelessness in 2017 (2017), <a href="https://www.usich.gov/resources/uploads/asset_library/Ending_Chronic_Homelessness_in_2017.pdf">https://www.usich.gov/resources/uploads/asset_library/Ending_Chronic_Homelessness_in_2017.pdf</a> (``Some studies have found
that leaving a person to remain chronically homeless costs taxpayers
as much as $30,000 to $50,000 per year); What is the Cost of
Homelessness?, Father Joe's Villages (Mar. 8, 2022), <a href="https://my.neighbor.org/what-is-the-cost-of-homelessness/">https://my.neighbor.org/what-is-the-cost-of-homelessness/</a> (describing how
top homeless users of public services in San Diego cost tax payers
nearly an average of $111,000 per year); Malcolm Gladwell, Million
Dollar Murray, New Yorker (February 5, 2006), <a href="https://www.newyorker.com/magazine/2006/02/13/million-dollar-murray">https://www.newyorker.com/magazine/2006/02/13/million-dollar-murray</a>
(describing how one man experiencing homelessness and alcohol use
disorder used about $1 million dollars in public services over his
10 years of homelessness); Kathleen Miles, Housing the Homeless Not
Only Saves Lives--It's Actually Cheaper Than Doing Nothing, HuffPost
(Mar. 25, 2014), <a href="https://www.huffpost.com/entry/housing-first-homeless-charlotte_n_5022628">https://www.huffpost.com/entry/housing-first-homeless-charlotte_n_5022628</a> (describing study finding that program
that housed 85 chronically homeless adults saved $1.8 million in
health care costs and reduced emergency room visits and days in the
hospital by nearly 80 percent).
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[[Page 25341]]
The nexus between criminal justice system involvement and
homelessness is clear. Those who have been incarcerated once are seven
times more likely to experience homelessness than the general
population; this rises to thirteen times more likely for those arrested
more than once.\42\ Moreover, research shows that the lack of stable
housing following incarceration leads to a higher likelihood of
rearrest and reincarceration.\43\Additionally, there is a growing body
of evidence that shows that the provision of housing assistance,
particularly when accompanied with supportive services, can help reduce
the risk of recidivism and homelessness and decrease the risk of future
involvement in the criminal justice system.\44\ Blanket bans and other
restrictive criminal records policies and practices affect more than
just the individual with a history of criminal activity, but rather
they can affect an entire family, e.g., when the criminal history of
one member leads to the denial or termination of housing for all
members. Studies show that housing instability can have harmful and
long-lasting consequences for children,\45\ potentially affecting a
child's educational outcomes, access to medical care, food security,
and health outcomes.\46\
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\42\ Id.
\43\ Id.
\44\ See, e.g., Kimberly Burrowes, Can Housing Interventions
Reduce Incarceration and Recidivism? HOUSING MATTERS (Feb. 27,
2019), <a href="https://housingmatters.urban.org/articles/can-housing-interventions-reduce-incarceration-and-recidivism">https://housingmatters.urban.org/articles/can-housing-interventions-reduce-incarceration-and-recidivism</a>; Leah A. Jacobs &
Aarton Gottlieb, The Effect of Housing Circumstances on Recidivism:
Evidence from a Sample of People on Probation in San Francisco, 47
CRIM. JUST. BEHAV. 1097-1115 (Sept. 2020), <a href="http://ncbi.nlm.nih.gov/pmc/articles/PMC8496894/pdf/nihms-17434785">ncbi.nlm.nih.gov/pmc/articles/PMC8496894/pdf/nihms-17434785</a>.
\45\ Rebecca Vallas et al., Removing Barriers to Opportunity for
Parents with Criminal Records and their Children, Center for
American Progress (Dec. 2015) at 10, <a href="https://americanprogress.org/wp-content/uploads/2015/12/CriminalRecords-report2.pdf?_ga=2.8340081.214011696.1657129695-2105602745.1657129694">https://americanprogress.org/wp-content/uploads/2015/12/CriminalRecords-report2.pdf?_ga=2.8340081.214011696.1657129695-2105602745.1657129694</a>.
\46\ Id.
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B. Inaccuracy of Arrest Record as an Indicator of Criminal Activity
Subject to limitations imposed by program rules, the Fair Housing
Act, and other civil rights requirements, PHAs and owners generally
retain discretion in setting admission, termination of assistance, and
eviction policies for their programs and properties. Even so, such
policies must ensure that adverse housing decisions based upon criminal
activity are supported by sufficient evidence that the individual
engaged in such activity.
This proposed rule would establish by regulation existing HUD
guidance that an arrest cannot be the sole basis for a determination
that an individual engaged in criminal activity. The mere fact that an
individual has been arrested does not, in and of itself, constitute
evidence that he or she has engaged in criminal activity. Accordingly,
the fact that there has been an arrest for a crime may not be used as
the sole basis for the requisite determination that the relevant
individual engaged in criminal activity warranting denial of admission,
termination of assistance, or eviction.
An arrest shows nothing more than that someone had reason to
suspect that the person apprehended committed an offense.\47\ In many
cases, arrests do not result in criminal charges, and even where they
do, such charges can be and often are dismissed or the person is not
convicted of the crime alleged. Even where an arrest leads to a charge,
one study found that only 53 percent of charges resulted in conviction
(43.8 percent among felony counts), whereas 38.7 percent of all charges
resulted in non-conviction.\48\
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\47\ See Schware v. Bd of Bar Examiners, 353 U.S. 232, 241
(1957); see also United States v. Berry, 553 F.3d 273, 282 (3d Cir.
2009) (``[A] bare arrest record--without more--does not justify an
assumption that a defendant has committed other crimes and it
therefore cannot support increasing his/her sentence in the absence
of adequate proof of criminal activity.''); United States v. Zapete-
Garcia, 447 F.3d 57,60 (1st Cir. 2006) (``[A] mere arrest,
especially a lone arrest, is not evidence that the person arrested
actually committed any criminal conduct.'').
\48\ Chien, Colleen. (2020). America's Paper Prisons: The Second
Chance Gap. Michigan Law Review, Volume 119, Issue 3. (computed from
charge count and conviction tables in the appendix). According to
the paper, the remaining 8.3 percent of charges were disposed of
through diversions, deferrals, pending transfers, or the disposition
of the case was unknown. Id.
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Moreover, arrest records are often inaccurate or incomplete (e.g.,
by failing to indicate or update the outcome of the arrest or charge
records or the dispositions of cases presented to the court),\49\ such
that reliance on arrests not resulting in conviction as the basis for
denying applicants or terminating the assistance or tenancy of a
household or household member may result in unwarranted denials of
admission to or eviction from federally assisted housing.
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\49\ Wells, M., Cornwell, E.Y., Barrington, L., Bigler, E.,
Enayati, H. & Vilhuber, Y. (2020). Criminal Record Inaccuracies and
the Impact of Record Education Intervention on Employment-Related
Outcomes. U.S. Department of Labor; Ariel Nelson, Broken Records
Redux: How Errors by Criminal Background Check Companies Continue to
Harm Consumers Seeking Jobs and Housing, National Consumer Law
Center (Dec. 2019), at 17, <a href="https://www.nclc.org/wp-content/uploads/2022/09/report-broken-records-redux.pdf">https://www.nclc.org/wp-content/uploads/2022/09/report-broken-records-redux.pdf</a>.
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For these reasons, HUD has explained, and the Supreme Court has
recognized, that ``[t]he mere fact that a man has been arrested has
very little, if any, probative value in showing that he has engaged in
any misconduct.'' \50\ Because arrest records do not constitute proof
of past unlawful conduct and are often incomplete, the fact of an
arrest is not a reliable basis upon which to assess the potential risk
to resident safety or property posed by a particular individual.\51\
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\50\ Schware, at 241.
\51\ See, e.g., Conn. Fair Hous. Ctr. v. CoreLogic Rental Prop.
Sols., LLC, 478 F. Supp. 3d 259, 300 (D. Conn. 2020); U.S. Dep't of
Justice, The Attorney General's Report on Criminal History
Background Checks at 3, 17 (June 2006), available at <a href="http://www.bjs.gov/content/pub/pdf/ag_bgchecks_report.pdf">http://www.bjs.gov/content/pub/pdf/ag_bgchecks_report.pdf</a> (reporting that
the FBI's Interstate Identification Index system, which is the
national system designed to provide automated criminal record
information and ``the most comprehensive single source of criminal
history information in the United States,'' is ``still missing final
disposition information for approximately 50 percent of its
records.'' The DOJ has noted that the disposition rates are slightly
higher today, and this statement doesn't encompass National
Fingerprint File states that maintain their own criminal history nor
differentiate between states and federal agencies.).
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Although a record of arrest itself is insufficient to show that an
individual engaged in the conduct at question, the conduct underlying
an arrest--where reliable records of that conduct exist--may indicate
that the individual is not suitable for tenancy. The conduct, not the
arrest, is what is relevant for admissions and tenancy decisions. A
housing provider still must have reliable evidence that the alleged
conduct reflected in the arrest actually occurred in order to deny
housing on that basis.\52\
[[Page 25342]]
HUD recognizes that housing providers often lack resources to
investigate and adjudicate whether criminal conduct occurred in the
absence of a conviction,\53\ and that a number of PHAs have faced legal
costs and liability for terminating tenants based on their use of
unreliable hearsay.\54\ HUD seeks comment on whether it should provide
further clarification of what evidence may or may not be used to
determine that criminal activity occurred for admission, denials,
terminations, and evictions, whether in this rule or in subsequent
guidance (see ``Questions for public comment,'' infra, Section VII,
#7).
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\52\ Analogously, in the employment context, the Equal
Employment Opportunity Commission has explained that barring
applicants from employment on the basis of arrests not resulting in
conviction is not consistent with business necessity under Title VII
because the fact of an arrest does not establish that criminal
conduct occurred. See U.S. Equal Emp't Opportunity Comm'n, EEOC
Enforcement Guidance, Number 915.002, 12 (Apr. 25, 2012), available
at <a href="http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm">http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm</a>; see also
Gregory v. Litton Systems, Inc., 316 F. Supp. 401, 403 (C.D. Cal.
1970) (holding that defendant employer's policy of excluding from
employment persons with arrests without convictions unlawfully
discriminated against African American applicants in violation of
Title VII because there ``was no evidence to support a claim that
persons who have suffered no criminal convictions but have been
arrested on a number of occasions can be expected, when employed, to
perform less efficiently or less honestly than other employees,''
such that ``information concerning a . . . record of arrests without
conviction, is irrelevant to [an applicant's] suitability or
qualification for employment''), aff'd, 472 F.2d 631 (9th Cir.
1972).
\53\ While a record of conviction will generally serve as
sufficient evidence to show that an individual engaged in criminal
conduct, even a guilty plea does not conclusively establish the
underlying crime. There may be evidence of an error in the record,
an outdated record, or another reason for not relying on the
evidence of a conviction. For example, a database may continue to
report a conviction that was later expunged or pardoned or may
continue to report as a felony an offense that was subsequently
downgraded to a misdemeanor. See generally SEARCH, Report of the
National Task Force on the Commercial Sale of Criminal Justice
Record Information (2005), available at <a href="http://www.search.org/files/pdf/RNTFCSCJRI.pdf">http://www.search.org/files/pdf/RNTFCSCJRI.pdf</a>. See also Costa v. Fall River Hous. Auth., 903
NE2d 1098 (Mass. 2009) (noting that ``guilty pleas are not
conclusive of the underlying facts, but evidence of them).''
\54\ See, e.g. Woods v. Willis, 825 F. Supp. 2d 893, 901-02
(N.D. Ohio 2011) (finding that a PHA hearing officer erred for
terminating Section 8 benefits based solely on hearsay evidence to
substantiate fraud allegations); Costa v. Fall River Hous. Auth.,
903 NE2d 1098, 1108-12 (Mass. 2009) (holding that a housing
authority grievance panel could not properly base its decision to
terminate Section 8 benefits on ``unattributed, multi-level, and
conclusory hearsay evidence'' from a newspaper); Diaz v. Donovan,
404959/07, 2008 N.Y. Misc. LEXIS 4570, at *7-8 (Sup. Ct. June 25,
2008); Basco v. Machin, 514 F.3d 1177, 1182-83 (11th Cir. 2008)
(hearsay evidence in the form of police reports insufficient to
create prima facie case for termination) overruled on other grounds
by Yarbrogh v. Decatur Hous. Auth., 931, 1322, 1323 (11th Cir.
2019); Escalera v. N.Y.C. Hous. Auth., 425 F.2d 853, 862-63 (2d Cir.
1970); Edgecomb v. Hous. Auth. of Town of Vernon, 824 F. Supp. 312,
315-16 (D. Conn. 1993); Loving v. Brainerd Hous. & Redev. Auth., No.
08-1349 (JRT/RLE), 2009 WL 294289, at *6-7 (D. Minn. Feb. 5, 2009);
Chase v. Binghamton Hous. Auth., 458 N.Y.S.2d 960, 962-63 (App. Div.
1983) (holding that unreliable hearsay statements were not
admissible in an administrative hearing to show that the tenant
violated her housing agreement); Knox v. Christina, 465 N.Y.S.2d 203
(App. Div. 1983); Brown v. Winnebago Cty Hous. Auth., 10 C 50027,
2010 U.S. Dist. LEXIS 144669, at *3-5 (N.D. Ill Apr. 1, 2010);
Williams v. Hous. Auth. of City of Milwaukee, 779 NW2d 185, 188-90
(Wis. Ct. App. 2009); Mortle v. Milwaukee County, No. 2007AP166,
2007 WL 4233007 (Wis. Ct. App. Dec. 4, 2007) (unpublished); Badri v.
Mobile Hous. Bd., No. 11-0328-WS-M, 2011 WL 3665340, at *5 (S.D.
Ala. Aug. 22, 2011) (reversing termination based on double hearsay
contained in letters); Sanders v. Sellers-Earnest, 768 F. Supp. 2d
1180, 1185-88 (M.D. Fla. 2010) (reversing termination based on
hearsay statement of ex-boyfriend on police report); Young v.
Maryville Hous. Auth., No. 3:09-CV-37, 2009 WL 2043891, at *7-*8
(E.D. Tenn. July 2, 2009) (reversing termination based on double
hearsay in police report); Willis v. Rice Cty. Hous. & Redev. Auth.,
No. A08-1637, 2009 WL 2225983, at *3-*5 (Minn. Ct. App. July 28,
2009) (unpublished).
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1. Absence of Empirical Evidence That Having a Criminal Record
Negatively Affects Success in Tenancy
Although existence of a criminal record is one of the pieces of
information used to assess the probability of future criminal
reoffending, it has not been routinely studied as a predictor of
housing retention.\55\ One study of a supportive housing program for
individuals with behavioral health conditions experiencing homelessness
found that, on average, having criminal history made no difference in
the ability to successfully stay housed.\56\ Research also shows that
over time the likelihood that a person with a prior criminal record
will engage in additional criminal conduct decreases until, by six to
seven years after the prior offense, it approximates the likelihood
that a person with no criminal history will commit an offense.\57\
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\55\ Daniel K. Malone, 2009. ``Assessing criminal history as a
predictor of future housing success for homeless adults with
behavioral health disorders,'' Psychiatric Services 60:2, 224-30.
\56\ See Malone, D.K. (2009). Assessing criminal history as a
predictor of future housing success for homeless adults with
behavioral health disorders. Psychiatric Services, 60(2), 224-230.
The overall housing success rate for continuous residency of at
least two years was 72 percent among the 332 individuals in the
sample.
\57\ See, e.g., id. (citing Title VII cases and Megan C.
Kurlychek et al., Scarlet Letters and Recidivism: Does an Old
Criminal Record Predict Future Offending, 5 Criminology and Pub.
Pol'y 483 (2006) (reporting that after six or seven years without
reoffending, the risk of new offenses by persons with a prior
criminal history begins to approximate the risk of new offenses
among persons with no criminal record).
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A study of housing outcomes among tenants participating in an
Intervention based on the Housing First model found that successful
tenancy by those with a criminal history was similar to that of
participants without a criminal history.\58\ A national study following
nearly 15,000 veterans who were transitioned from homelessness to
housing through the HUD-VA Supportive Housing (HUD-VASH) program found
that prior incarceration did not impede connection to services or
success in obtaining or maintaining housing.\59\ A Minnesota study
examining the relationship between criminal conviction history and
housing outcomes among over 10,000 households found that 11 out of 15
conviction types in resident criminal histories show no evidence of
impact on negative housing outcomes.\60\ The remaining four conviction
types (property offenses, major drug offenses, fraud, and assault) did
show an impact on negative housing outcomes, but even they increased
the probability of negative housing outcomes by only three to nine
percentage points, which decreased over time.\61\
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\58\ Id.
\59\ Tejani N, Rosenheck R, Tsai J, Kasprow W, McGuire JF.
Incarceration histories of homeless veterans and progression through
a national supported housing program. Community Ment Health J. 2014
Jul;50(5):514-9. doi: 10.1007/s10597-013-9611-9. Epub 2013 Jun 1.
PMID: 23728839.
\60\ Cael Warren, Success in Housing: How much Does a Criminal
Background Matter? Wilder Research, at 15(Jan. 2019), <a href="https://www.wilder.org/sites/default/files/imports/AEON_HousingSuccess_CriminalBackground_Report_1-19.pdf">https://www.wilder.org/sites/default/files/imports/AEON_HousingSuccess_CriminalBackground_Report_1-19.pdf</a>.
\61\ Id. Even with this modest impact, the author of this study
noted that the data limitations--namely the fact that the author
could not control for residents' employment status, education
background, disability status, mental health or substance abuse
diagnoses, or housing history--led him to question the size and
significance of the impact observed. Id. at 15, 21.
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HUD is not aware of any empirical evidence that would justify a
blanket exclusion from housing of people with criminal histories or by
treating criminal records as per se disqualifying without reference to
other evidence bearing on fitness for tenancy. Despite this lack of
empirical basis, many landlords and housing providers continue to deny
housing or housing assistance to people solely or largely based upon
their criminal histories. Several studies using paired testers of
prospective tenants, some with criminal histories and others without,
found significant differences in success in housing admission.\62\ One
study found that prospective tenants without criminal records were more
than twice as likely to have calls returned (96 percent) than those
with criminal records (43 percent).\63\
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\62\ Douglas N. Evans, Kwan-Lamar Blount-Hill & Michelle A.
Cubellis (2019) Examining housing discrimination across race, gender
and felony history, Housing Studies, 34:5, 761-778, DOI: 10.1080/
02673037.2018.1478069.
\63\ Evans, Douglas & Porter, Jeremy. (2014). Criminal history
and landlord rental decisions: a New York quasi-experimental study.
Journal of Experimental Criminology. 11. 21-42. 10.1007/s11292-014-
9217-4.
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Many public housing agencies and HUD-assisted housing providers
recognize that people with criminal records face unnecessary exclusions
to housing assistance and barriers to housing. A HUD study of public
housing agency efforts to address homelessness found that PHAs commonly
identified criminal records as a barrier to assisting people
[[Page 25343]]
experiencing homelessness, and, as a result, many modified their
screening and admission policies.\64\ Through an initiative supported
by the U.S. Department of Justice's Bureau of Justice Assistance,
twenty-two public housing agencies in twelve states voluntarily amended
their screening and admissions policies to limit the scope of the
criminal records considered and/or developed programs to increase
access for people with criminal records.\65\ There is no evidence that
indicates that the more tailored consideration of criminal records in
screening and admissions by these public housing agencies negatively
affected housing outcomes or public safety.
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\64\ Abt Associates (2014). Study of PHAs' Efforts to Serve
People Experiencing Homelessness. U.S. Department of Housing and
Urban Development: Washington, DC.
\65\ U.S. Department of Justice Bureau of Justice Assistance.
(2022). ``Opening Doors, Returning Home: How Public Housing
Authorities Across the Country Are Expanding Access for People with
Conviction Histories.'' <a href="https://bja.ojp.gov/doc/opening-doors-returning-home.pdf">https://bja.ojp.gov/doc/opening-doors-returning-home.pdf</a>.
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2. Research Demonstrates That Risk of Recidivism and Future Criminal
Activity Decreases Significantly Over Time and With Age
Research indicates that a person's prior criminal justice system
involvement taken at face value is not a reliable or accurate predictor
of their risk to public safety. Moreover, the relationship between a
past conviction and the risk of future criminal justice system
involvement declines over time and with age. Most people who are
released from incarceration never return to prison.\66\ Studies have
shown that a person with a prior criminal conviction that has not
committed a subsequent offense within four to seven years is no more
likely to be arrested for a crime than a person in the general
population.\67\ As time passes, a person's criminal history becomes
less likely to determine their risk of future criminal justice system
involvement. After a period of time, a person with a criminal history
is no more likely to commit another offense than a person of the same
age without a criminal history. Specifically, there is little
difference in offending likelihood after an individual reaches their
mid-20's.
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\66\ Following Incarceration, Most Released Offenders Never
Return to Prison. Rhodes, W., Gaes, G., Luallen, J., King, R., Rich,
T., & Shively, M. (2014). <a href="https://doi.org/10.1177/0011128714549655">https://doi.org/10.1177/0011128714549655</a>.
\67\ Kurlychek, Megan, et al., Enduring Risk? Old Criminal
Records and Short-Term Predictions of Criminal Involvement, 53 Crime
& Delinq. 64.70 (2007).
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Although 71 percent of state prisoners released from prison were
arrested within five years following release, half of these arrests
were for public disorder offenses or associated probation/parole
violation, failure to appear, obstruction of justice, contempt of
court, commercialized vice, and disorderly conduct. Nearly all these
offenses would fall into the category of non-criminal technical
violations. Research has shown that post-incarceration interventions
such as housing, social supports, and community-based programs have
repeatedly shown benefit to enrolled individuals, regardless of the
severity of their original criminal conduct.\68\ Research indicates
that recidivism rates drop significantly after three years for all
types of offenses.\69\
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\68\ See Recidivism Rates: What You Need to Know. Council on
Criminal Justice (2021). <a href="https://counciloncj.org/recidivismreport/">https://counciloncj.org/recidivismreport/</a>
and Reforms without Results: Why states should stop excluding
violent offenses from criminal justice reforms. Prison Policy
Initiative (2020). <a href="https://www.prisonpolicy.org/reports/violence.html">https://www.prisonpolicy.org/reports/violence.html</a>.
\69\ Bureau of Justice Statistics. ``Recidivism and Reentry''
available at <a href="https://bjs.ojp.gov/topics/recidivism-and-reentry">https://bjs.ojp.gov/topics/recidivism-and-reentry</a>.
Accessed on February 22, 2024.
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Of the small percentage of people who do reoffend, the average time
from release to the subsequent offense is 18 months. However, it is
important to keep in mind whether a person receives supportive services
that address their core needs and their environment affects their risk
of recidivism.\70\ When a person is released to a higher-risk
environment, the risk of reoffending increases. Higher-risk
environments are characterized by instability, such as a shortage of
affordable, accessible, and quality housing; lack of positive social
supports; unemployment; and other factors. The risk of recidivism is
not the same for every person; assessing the likelihood of reoffending
requires consideration of multiple factors and is highly individual and
circumstance dependent.
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\70\ The Limits of Recidivism: Measuring Success After Prison
(2022). <a href="https://nap.nationalacademies.org/read/26459/chapter/1">https://nap.nationalacademies.org/read/26459/chapter/1</a>.
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Another factor to consider is age. Researchers have studied the
prevalence of offending over the life course. Their studies have shown
that crime commission typically peaks in the mid-20s and then drops
sharply as a person ages. Most people will no longer commit crimes by
their 40s, and desistence from crime overall is the typical
outcome.\71\ There are a number of reasons why offending decreases with
age. Studies on brain development suggest that adolescents are more
likely to take more risks, be more influenced by their peers, and act
on instant gratification. Human brains do not develop completely until
approximately age 26, and the rational decision-making centers are the
last to develop. As people age, they tend to become more future-
oriented, better able to manage their emotions, and more able to assess
the consequences of their actions.\72\ Of individuals who were
incarcerated, older individuals are substantially less likely to
recidivate. If they do recidivate, it is more likely to involve a non-
violent offense or technical violation.\73\ Aging out of the criminal
justice system altogether, however, is the typical outcome.
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\71\ A New Lease on Life. The Sentencing Project (2021). <a href="https://www.sentencingproject.org/app/uploads/2022/08/A-New-Lease-on-Life.pdf">https://www.sentencingproject.org/app/uploads/2022/08/A-New-Lease-on-Life.pdf</a>.
\72\ Adolescent Development and the Regulation of Youth Crime.
Scott, E. & Steinberg, L. (2008). <a href="https://ccoso.org/sites/default/files/import/Adol-dev-and-reg-of-crime.pdf">https://ccoso.org/sites/default/files/import/Adol-dev-and-reg-of-crime.pdf</a>.
\73\ The Effects of Aging on Recidivism Among Federal Offenders.
United States Sentencing Commission (2017). <a href="https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2017/20171207_Recidivism-Age.pdf">https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2017/20171207_Recidivism-Age.pdf</a>.
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Criminal records alone are not reliable, accurate, or sufficient to
determine a person's risk to public safety or risk of engaging in
future criminal activity as most people who commit crimes do not engage
in further criminal activity, recidivism risk is highly individual and
circumstance dependent, and the risk of reoffending decreases with time
and age. Additionally, research shows that positive environmental
factors and supportive services, such as access to housing, decrease
the risk that a person will reoffend.
C. Primacy of Stable Housing as It Affects Recidivism Rate and Public
Safety
There is compelling evidence that excluding or denying housing or
housing assistance to people with criminal records can have detrimental
and counterproductive impacts on the people with criminal records, and,
by increasing the risk of recidivism, undermine the public safety of
communities as a whole. Denying housing assistance to people with prior
criminal justice system involvement can increase the risk of housing
instability and homelessness, which can, in turn, increase their risk
of recidivism. As noted earlier, formerly incarcerated individuals are
nearly ten times more likely to be homeless than the general public,
and the rates are significantly higher among those released from jail
or prison within the past two years.\74\ Homelessness and housing
instability among people returning to the community from prisons and
jails can increase their recidivism, particularly in the first few
months and years following release from prison or jails, when the
[[Page 25344]]
need for stabilizing supports is most acute. One study estimated that
people with unstable housing were up to seven times more likely to
reoffend.\75\ Housing insecurity also increases the risk of recidivism
for people on probation.\76\ The type of housing a person is released
to also affects the risk of recidivism, and release to emergency
shelters after release from jail or prison increases the odds of
rearrest.\77\ Research also has found that moving residences increases
the risk of recidivism by at least 70 percent every time someone who is
formerly incarcerated changes their residence due to the destabilizing
impact.\78\
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\74\ See fn.40, supra, and the accompanying text.
\75\ Valerie Schneider, The Prison to Homelessness Pipeline:
Criminal Records Checks, Race, and Disparate Impact, 93 Ind. L. J.
421, 432-33 (2018).
\76\ Jacobs, L.A., & Gottlieb, A. (2020). The Effect of Housing
Circumstances on Recidivism: Evidence From a Sample of People on
Probation in San Francisco. Criminal Justice and Behavior, 47(9),
1097-1115. <a href="https://doi.org/10.1177/0093854820942285">https://doi.org/10.1177/0093854820942285</a>
\77\ Clark, V. (2015). The Effect of Community Context and Post-
Release Housing Placements on Recidivism Evidence from Minnesota.
Minnesota Department of Corrections.
\78\ Tesfai, A. & Gilhuly, K. (2016). The Long Road Home:
Decreasing Barriers to Public Housing for People with Criminal
Records. Human Impact Partners.
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By contrast, there is compelling evidence that stable housing and
the provision of housing assistance programs can reduce the risk of
recidivism, which includes arrests, convictions, and incarceration for
new offenses. A study by the Urban Institute found that people who
secured housing within a few months after release from jail or prison
had better mid-term outcomes than those who had less stable access to
housing.\79\ Stable housing also increases the ability of formerly
incarcerated people to find and maintain employment and reestablish
family ties, both of which have also been shown to reduce
recidivism.\80\ Numerous studies have found that the provision of
affordable housing with other supportive services, including permanent
supportive housing programs, reduced police interactions, arrest rates,
and admission rates to jail and prison, days spent in jail or prison,
and increased successful completion of parole.\81\
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\79\ Yahner, J. & Visher, C. (2008). Illinois Prisoners' Reentry
Success Three Years after Release. Urban Institute.
\80\ Baer, D., Bhati, A., Brooks, L., Castro, J., La Vigne, N.,
Mallik-Kane, K., Naser, R., Osborne, J., Roman, C., Roman, J.,
Rossman, S., Solomon, A., Visher, C., & Winterfield, L. (2006).
Understanding the Challenges of Prisoner Reentry: Research Findings
from the Urban Institute's Prisoner Reentry Portfolio. Urban
Institute.
\81\ See studies identified at <a href="https://www.huduser.gov/portal/pdredge/pdr-edge-frm-asst-sec-041922.html">https://www.huduser.gov/portal/pdredge/pdr-edge-frm-asst-sec-041922.html</a>.
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IV. State and Local Legislative and Policy Changes To Reduce Barriers
to Housing for People With Criminal Histories
Recognizing that people with criminal records face barriers and
exclusions from rental housing and housing assistance programs, several
states and localities have enacted legislation or adopted policies that
regulate the use of criminal records in admissions decisions. Many of
these laws, including the examples below, apply to providers of
government- and HUD-assisted housing programs as well as private-market
rental housing.
In 2018, the District of Columbia amended its local code to adopt a
Fair Criminal Record Screening for Housing policy that prohibits any
landlord or provider of rental housing from accessing applicants'
arrest records, limits landlords' consideration to 48 specified
criminal convictions that must have occurred in the past seven years
and requires landlords to consider mitigating factors prior to denying
admission to rental housing.
In 2019, Colorado passed the Rental Application Fairness Act.\82\
Under this law, landlords may not consider arrest records or criminal
conviction records more than five years before the date of housing
application. There are several exceptions, including for crimes related
to methamphetamine, crimes requiring registration to the sex offender
registry, and homicides.
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\82\ Colorado HB 19-1106(2020), <a href="https://leg.colorado.gov/sites/default/files/2019a_1106_signed.pdf">https://leg.colorado.gov/sites/default/files/2019a_1106_signed.pdf</a>.
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Also in 2019, the Cook County, Illinois, Board of Commissioners
passed an amendment to its county human rights ordinance that prohibits
housing discrimination on the basis of a criminal record. Specifically,
this law prohibits denying admission to rental housing based on a
criminal history unless there is a conviction within the past three
years, or the person is subject to a sex offender registry bar. It also
requires landlords to perform an individualized assessment and to show
that any denial based on a criminal conviction in the past three years
is necessary to protect against a demonstrable risk to personal safety
and/or property.\83\
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\83\ Cook County Board of Commissioners, <a href="https://www.cookcountyil.gov/content/just-housing-amendment-human-rights-ordinance">https://www.cookcountyil.gov/content/just-housing-amendment-human-rights-ordinance</a>.
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In 2021, Illinois passed the Public Housing Access Bill, under
which PHAs are required to limit their lookback period for criminal
activity to six months prior to the application date (the two federal
mandates remain in place).\84\
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\84\ Illinois Public Act 101-0659 (2021), <a href="https://ilga.gov/legislation/publicacts/101/PDF/101-0659.pdf">https://ilga.gov/legislation/publicacts/101/PDF/101-0659.pdf</a>.
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New Jersey's Fair Chance in Housing Act, passed in 2021, places
limits on housing providers' ability to inquire about arrests, expunged
criminal records, and records from the juvenile justice system. Only
after a conditional offer of housing is made may a housing provider run
a criminal background check and an individualized assessment is
required prior to any denial based on a criminal record. The law
includes a tiered system for denial under which certain types of
conviction records require a longer lookback period than others. For
example, a six-year lookback period is in place for a first-degree
indictable offense; that decreases to four years for a second- or
third-degree indictable offense.\85\
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\85\ New Jersey Office of the Attorney General, Fair Chance in
Housing Act What You Need to Know, <a href="https://www.njoag.gov/wp-content/uploads/2022/01/FCHA-Flowchart-12.30.21.pdf">https://www.njoag.gov/wp-content/uploads/2022/01/FCHA-Flowchart-12.30.21.pdf</a>.
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New York State's housing agency, Homes and Community Renewal (HCR),
has adopted a policy that regulates what criminal history information
may be considered and used in connection with admissions decisions by
housing providers receiving state funding. HCR's policy limits the
review of criminal records by applicants to state-funded housing
providers to misdemeanors within the last year or felonies within the
last five years and also requires that state-funded housing providers
conduct an individualized assessment that must take into account
multiple factors to assess the relevance of the criminal conviction to
housing suitability.\86\ HCR provides state-funded housing agencies
with a worksheet to guide this individualized assessment.\87\
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\86\ New York State Homes and Community Renewal, <a href="https://hcr.ny.gov/system/files/documents/2022/10/doc-y-guidance-for-assessing-justice-involved-applicants_-10.7.2022.pdf">https://hcr.ny.gov/system/files/documents/2022/10/doc-y-guidance-for-assessing-justice-involved-applicants_-10.7.2022.pdf</a>.
\87\ New York State Homes and Community Renewal, <a href="https://hcr.ny.gov/system/files/documents/2022/12/doc-x-justice-involved-worksheet_-10.7.2022.pdf">https://hcr.ny.gov/system/files/documents/2022/12/doc-x-justice-involved-worksheet_-10.7.2022.pdf</a>.
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In 2017, Seattle, Washington, enacted the Fair Chance Housing
Ordinance, which prohibits landlords from inquiring about criminal
history or taking adverse action based upon criminal history.\88\ Its
goal is to prevent unfair bias against individuals with prior criminal
justice system involvement. The ordinance also prohibits advertising
language that would automatically exclude individuals with arrest
records,
[[Page 25345]]
conviction records, or criminal histories.\89\
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\88\ Seattle, Wash., Municipal Code sec. 14.09, et seq.
\89\ See Yim v. City of Seattle, 63 F.4th 783 (9th Cir. 2023)
(ruling that the provision preventing landlords from asking about a
tenant's criminal record violates the First Amendment, but upholding
the portion of the ordinance that bars a landlord from taking
adverse action based on a tenant's criminal history).
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In 2020, both Oakland and Berkeley, California, enacted Fair Chance
Housing Ordinances.\90\ The laws prohibit most types of landlords from
asking about or taking adverse action based on criminal history. There
are narrow exceptions including one that allows housing providers to
comply with federal or state laws that require automatic exclusion
based on specific types of criminal histories.
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\90\ Berkeley, Cal., Mun. Code sec. 13.106.040, et seq.;
Oakland, Cal., Mun. Code sec. 8.25.010, et seq.
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Ann Arbor, Michigan, enacted its Fair Chance Access to Housing law
in 2021.\91\ Similar to Oakland and Berkeley, Ann Arbor's law also
prohibits landlords from asking about or taking adverse action due to
criminal history with certain narrow exceptions. As with the California
laws discussed above, even where exceptions do exist, emphasis is
placed on providing applicants with notice and an opportunity to
withdraw their applications for tenancy.
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\91\ Ann Arbor, Mich., Mun. Code, Title IX, Chapter 122, sec.
9:600, et seq.
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This proposed rule is informed by some of these state and local
laws, but HUD does not propose to go so far as to bar any consideration
of criminal history.
Lookback Periods
As noted above, several of these state and local legislative and
policy initiatives have involved not only Fair Chance statutes and
ordinances, but efforts aimed directly at defining and limiting
lookback periods for criminal activity when such activity may be
relevant to a potential adverse housing action.
The issue of limiting lookback periods was specifically raised by
HUD as an industry best practice in its 2015 notice to PHAs and owners
of federally assisted housing.\92\ Likewise, many reentry advocates
point to overly lengthy lookback periods as one of the major
impediments to successful reentry.\93\ While declining to provide a
one-size-fits-all solution, HUD itself has suggested in 2001 \94\ that
five years may be a reasonable period for serious offenses, depending
on the offense. HUD notes, however, the more recent efforts by states
and localities across the country and social science research conducted
since 2001 support further reducing these lookback periods.\95\
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\92\ See fn.20, supra.
\93\ See, e.g., When Discretion Means Denial: A National
Perspective on Criminal Barriers to Federally Subsidized Housing
(Chicago: Sargent Shriver National Center on Poverty Law, 2015),
p.12.
\94\ See, Screening and Eviction for Drug Abuse and Other
Criminal Activity, 66 FR 28776, 28779 (May 24, 2001).
\95\ See studies cited in section III, B-C, supra.
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Recognizing the discretion currently afforded to PHAs and owners to
establish their own lookback periods and the absence of standard
practice in this area (with many PHAs or owners operating under
policies that allow lookback periods of ten years or more), HUD
proposes that in making admissions decisions a lookback period that
considers convictions that occurred more than three years prior to an
application is presumptively unreasonable. The proposed rule would
permit, however, a PHA or owner to determine a longer lookback period
for certain crimes if they are able to provide empirical evidence
justifying such longer period.
HUD seeks specific comment from the public on the issue of lookback
periods for criminal activity (see ``Questions for public comment,''
infra, Section VII, #2).
V. Need To Bring Regulations Into Alignment With Civil Rights Laws and
Other Legal Requirements
HUD has a duty to both administer its programs in a manner that
affirmatively furthers fair housing (AFFH) \96\ and to ensure that
PHAs, owners, and grantees do not discriminate in HUD's housing
programs.\97\ Additionally, even when statutes and regulations grant
HUD-assisted housing providers discretion to deny admission, terminate,
or evict, based on certain criminal records, criminal activity, or for
other reasons, this discretion is necessarily limited by requirements
for housing providers under civil rights statutes, including the Fair
Housing Act's mandate to not discriminate.\98\
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\96\ See 42 U.S.C. 3608(d), (e)(5).
\97\ See, e.g., San Francisco Housing Auth. v. United States,
No. C 03-2619 CW, Slip Op. at 14-15 (N.D. Cal. July 29, 2003)
(noting that ``[t]his affirmative fair housing duty was imposed by
Congress to correct the longstanding `bureaucratic myopia' of HUD
and its predecessor agencies regarding civil rights and housing
discrimination,'' and that ``[t]he public has a vital interest in
ensuring that the HOPE VI program is administered in accordance with
the Fair Housing Act.'').
\98\ See, e.g., Alexander v. Edgewood Mgmt. Corp., Civ. No. 15-
01140 (RCL), 2016 U.S. Dist. LEXIS 145787, at *7 (D.D.C. July 22,
2016) (noting that although defendant was allowed to deny admission
to applicants for engaging in certain criminal activity under 42
U.S.C. 13661(c) (pertinently, for drug-related or violent criminal
activity or other criminal activity which would adversely affect the
health, safety, or right to peaceful enjoyment of the premises by
other residents which was engaged in in a reasonable time prior to
admission), this ``is still subject to claims of disparate
impact''); Langlois v. Abington Hous. Auth., 234 F. Supp. 2d 33, 67-
69 (D. Mass. 2002) (explaining how program statutes and the Fair
Housing Act must be read in harmony, and that the permission the
Quality Housing and Work Responsibility Act of 1998 grants to PHAs
to enact local preferences is limited by the Fair Housing Act,
including its prohibition against policies having an unjustified
disparate impact); Comer v. Cisneros, 37 F.3d 775, 795 (2d Cir.
1994) (``Although the U.S. Housing Act, by its terms, does permit a
local preference, such preference is subject to various limitations
including that its administration must be consistent with the
Constitution and civil rights laws.''); Altman v. Eco Vill., Ltd.,
No. C 79-202, 1984 U.S. Dist. LEXIS 24962, at *21 (N.D. Ohio 1984)
(citing the Fair Housing Act and finding in favor of tenants of a
Section 8 new construction building and against the owner for
discriminatory eviction actions taken against the tenants, while
also finding that the relevant programmatic statute granted the
owner broad discretion to evict tenants, even without citing any
cause). See e.g., Operations Notice for the Expansion of the Moving
to Work Demonstration Program, 85 FR 53458-9 (``Notwithstanding the
flexibilities described in this notice, the public housing and
voucher funding provided to MTW agencies remain federal funds and
are subject to any and all other federal requirements outside of the
1937 Act . . . As with the administration of all HUD programs and
all HUD-assisted activities, fair housing, and civil rights issues
apply to the administration of MTW demonstration. This includes
actions and policies that may have a discriminatory effect on the
basis of race, color, sex, national origin, religion, disability, or
familial status (see 24 CFR part 1 and part 100 subpart G) or that
may impede, obstruct, prevent, or undermine efforts to affirmatively
further fair housing.''); 85 FR 53449-50 (``HUD and the MTW agencies
may not waive or otherwise deviate from compliance with Fair Housing
and Civil Rights laws''); cases cited in fn.99 (courts consistently
finding that eviction actions that are not mandatory but are allowed
by program statutes (i.e. for criminal activity that threatens the
health, safety, and welfare of other tenants) are subject to
reasonable accommodation requirements of the Fair Housing Act.)
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Criminal record policies that are otherwise lawful are still
subject to the Fair Housing Act's requirement to provide reasonable
accommodations for people with disabilities and similar requirements
under Section 504 of the Rehabilitation Act and the Americans with
Disabilities Act.\99\ HUD's
[[Page 25346]]
regulations must provide sufficient guidance to owners and managers of
federally assisted housing to enable them to, among other things,
comply with civil rights laws. See 42 U.S.C. 13603(b)(2)(D).
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\99\ See Hunt v. Aimco Props., L.P., 814 F.3d 1213, 1226 (11th
Cir. 2016) (finding in favor of tenant and against landlord where
landlord terminated tenant's lease based on tenant's son threating
to ``sacrifice [the landlord's staff members] then trap all the
residents in their apartments and set the property on fire'', where
the landlord refused to modify its policies to accommodate the
tenant's son's disabilities); Sinisgallo v. Town of Islip Hous.
Auth., 865 F. Supp. 2d 307, 341-343 (ED NY May 23, 2012) (PHA's
attempt to evict a tenant for assaulting his neighbor where the
tenant's behavior was caused by his disability and where the PHA
made no attempt to consider reasonable accommodations which would
eliminate or acceptably minimize the risk the tenant posed violated
the Fair Housing Act); Roe v. Sugar River Mills Associates, 820 F.
Supp. 636 (D.N.H 1993) (finding that HUD-funded housing provider
would violate Act by evicting tenant with a conviction for
disorderly conduct for threatening elderly neighbor without first
demonstrating that no reasonable accommodation would eliminate or
acceptably minimize the risk he posed to other residents at the
complex); Roe v. Housing Authority of City of Boulder, 909 F. Supp.
814 (D. Colo 1995) (finding PHA violated the Fair Housing Act by
attempting to evict tenant without considering accommodating the
tenant's disabilities where tenant had struck and injured another
tenant, threatened apartment manager, and created noise disturbing
neighbor); PIH Public Housing Occupancy Guidebook 2.2 (``A PHA must
engage in an individualized analysis to determine if it must provide
a reasonable accommodation to an individual with a disability who
allegedly is in violation of the PHA's criminal record policies,
rules, or lease.'') available at <a href="https://www.hud.gov/sites/dfiles/PIH/documents/PHOGLeaseRequirements.pdf">https://www.hud.gov/sites/dfiles/PIH/documents/PHOGLeaseRequirements.pdf</a>.
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This proposed rule would incorporate changes to program regulations
that, in addition to furthering the policy aims discussed above, help
HUD-assisted housing providers ensure they are complying with these
obligations. Much of the conduct this rule proposes to require has been
found to be required by courts under the Fair Housing Act and other
laws. For example, various courts have held that statutory and
regulatory program rules require an independent assessment--as this
rule would require--or have held that it is an abuse of discretion for
a housing provider to fail to consider individual circumstances.\100\
HUD believes this proposed rule would help PHAs and HUD-subsidized
housing providers comply with such case law by providing necessary
clarity.
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\100\ See, e.g. Carter v. Lynn Hous. Auth., 450 Mass. 626, 635,
880 N.E.2d 778, 785 (2008) (considering 42 U.S.C. 1437 et seq. and
24 CFR 982.552(c)(2)(i) as requiring the consideration of mitigating
circumstances) (quoting Commonwealth v. Fredette, 56 Mass. App. Ct.
253, 259 n.10, 776 N.E.2d 464 (2002) (``Failure to exercise
discretion is itself an abuse of discretion'')); Singleton v. Bos.
Hous. Auth., 98 Mass. App. Ct. 1105, 150 N.E.3d 1163 (2020) (due
process regulations at 24 CFR 982.552(c)(2)(i) require the decision
maker to weigh the evidence, find facts relating to ``all relevant
circumstances,'' and to balance them in the decision whether to
impose a sanction less severe than termination); Matter of Gist v.
Mulligan, 2009 NY Slip Op 6688, ] 1, 65 A.D.3d 1231, 1232, 886
N.Y.S.2d 172, 173 (App. Div. 2nd Dept.) (finding the decision to
terminate a tenant's voucher by the PHA to be an abuse of discretion
based on the circumstances where the penalty of termination was
shocking to one's sense of fairness, even though evidence supported
that the participant engaged in program violations which constituted
valid bases of termination) (citing Matter of Sicardo v Smith, 49
AD3d 761, 762, 853 NYS2d 639 [2008]; Matter of Riggins v Lannert, 18
AD3d 560, 562, 796 NYS2d 93 [2005]; Matter of Brown v Lannert, 272
AD2d 323, 714 NYS2d 677 [2000]).
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Policies or practices that bar persons from housing based on their
criminal history may have a disparate impact on certain groups of
persons \101\ and thus implicate the Fair Housing Act and other civil
rights laws. In particular, given data showing that persons of color
and persons with disabilities are disproportionately impacted by
criminal justice system involvement, courts in recent years have
recognized that criminal records-based policies may discriminate
because of characteristics protected under the Fair Housing Act.\102\
People of color are ``arrested, convicted and incarcerated at rates
[that are] disproportionate to their share of the general population.''
\103\ In 2019, the incarceration rate of Black males was 5.7 times that
of White non-Hispanic males.\104\ Consistent with longstanding
jurisprudence, even if a housing provider has no intent to
discriminate, a criminal records policy can violate the Fair Housing
Act if it has an unjustified discriminatory effect on a protected
class.\105\ To adequately justify a criminal records policy with a
disparate impact on a protected class (such as race or disability), a
housing provider must be able to demonstrate that it is necessary to
serve the housing provider's substantial, legitimate, nondiscriminatory
interest, and that such interest could not be served by another
practice that has a less discriminatory effect.\106\ While ensuring
resident safety and protecting property are substantial and legitimate
interests, they must be the actual reasons for a criminal records
policy and a housing provider must be able to prove through reliable
evidence that its policy actually assists in protecting resident safety
and/or property and that interest could not be served by another policy
that has a less discriminatory effect.\107\
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\101\ See fn.20, supra. See also ``Implementation of the Office
of General Counsel's Guidance on Application of Fair Housing Act
Standards to the Use of Criminal Records by Providers of Housing and
Real Estate-Related Transactions'' at 2 (June 10, 2022).
\102\ See, e.g., Sams v. GA W. Gate, LLC, No. CV415-282, 2017
U.S. Dist. LEXIS 13168, at *13-14 (S.D. Ga. Jan. 30, 2017) (finding
that plaintiffs had successfully plead that a policy banning those
with certain convictions in the last 99 years would disparately
impact African Americans based on statistics showing that ``African
Americans are twice as likely to have criminal convictions as
caucasians [and that] . . . in 2014, African Americans represented
36% of the prison population in the United States but only 12% of
the country's total population''); Jackson v. Tryon Park Apartments,
Inc., No. 6:18-CV-06238 EAW, 2019 U.S. Dist. LEXIS 12473, at *8-9
(W.D.N.Y. Jan. 25, 2019) (finding that plaintiff had successfully
plead that policies excluding people for having a felony conviction
have a disparate impact on applicants for housing on the basis of
race and color because ``[e]mpirical evidence shows that nationally,
and in New York State, blanket bans on eligibility, based on
criminal history, result in the denial of housing opportunities at a
disproportionate rate for African Americans and minorities''); La.
Fair Hous. Action Ctr. v. Azalea Garden Props., LLC, No. 22-74, 2022
U.S. Dist. LEXIS 77083, at *14 (E.D. La. Apr. 27, 2022) (finding
that plaintiff's statistical data showing that ``a disproportionate
number of African Americans are arrested and incarcerated in the
United States compared to white persons, [which] is particularly
true at the local level in Jefferson Parish where the apartment
building was located'', made plausible the allegation that a blanket
ban (or something short of a blanket ban) excluding all applicants
with any criminal history disproportionately affects certain
applicants because of race), rev'd on other grounds, 82 F.4th 345
(5th Cir. 2023); Jones v. City of Faribault, No. 18-1643 (JRT/HB),
2021 U.S. Dist. LEXIS 36531, at *55 (D. Minn. Feb. 18, 2021)
(recognizing that while it is ``of course true that the [defendant]
did not create the pervasive and well-known racial disparities in
the criminal justice system . . . if the [defendant's] criminal
screening policy intersects with a pre-existing, known racial
disparity in a way that creates a similar racial disparity in
housing, then it is possible that the [defendant's] policy creates a
housing disparity and violates the [Fair Housing Act.]''); Conn.
Fair Hous. Ctr. v. CoreLogic Rental Prop. Sols., LLC, 478 F. Supp.
3d 259, 291-93 (D. Conn. 2020) (finding plaintiffs' evidence that
nationally, African Americans and Latinos are more likely to be
arrested for federal drug crimes than whites, and, in Connecticut,
African Americans are more likely to be arrested than white, created
a sufficient issue for trial regarding whether defendants' policy
created a disparate impact on African Americans and Latinos);
Alexander v. Edgewood Mgmt. Corp., No. 15-01140 (RCL), 2016 U.S.
Dist. LEXIS 145787, 2016 WL 5957673, at *2-3 (D.D.C. July 25, 2016)
(finding plaintiff properly plead that the defendant violated the
Fair Housing Act where the applicant was rejected based on a seven
year old misdemeanor conviction and an over 15 year old conviction
that was later overturned and which the plaintiff alleged created a
discriminatory effect on African Americans because a
disproportionate number of individuals arrested, convicted, and
incarcerated in the District of Columbia are African American);
Fortune Soc'y v. Sandcastle Towers Hous. Dev. Fund Corp., 388 F.
Supp. 3d 145, 173 (E.D.N.Y. 2019) (finding plaintiffs presented
sufficient evidence that defendants had blanket ban on anyone with a
criminal record and allowing plaintiffs expert witness to testify at
trial about how disparities in the criminal justice system support
that defendant's criminal record policy has a disparate impact on
African American and Latino individuals).
\103\ See fn.1, supra. See also Report Highlights `Staggering'
Racial Disparities in U.S. Incarceration Rates (<a href="http://usnews.com">usnews.com</a>)
(reporting that nationally ``Black Americans are incarcerated at
nearly 5 times the rate of white Americans, though in some states
the disparity is far greater.'').
\104\ Robey, J., Massoglia, M., & Light, M. (2023). A
generational shift: Race and the declining lifetime risk of
imprisonment. Demography, p. 1.
\105\ See 24 CFR 100.500; see also Tex. Dep't of Hous. & Cmty.
Affairs v. Inclusive Cmtys. Project, Inc., 576 U.S. at 519, 527-28,
535-36, 541 (upholding disparate impact liability, overviewing HUD's
regulation which provides this framework to analyze disparate impact
claims and citing this framework with approval).
\106\ Id.
\107\ See fn.1, supra; see also Conn. Fair Hous. Ctr. v.
CoreLogic Rental Prop. Sols., LLC, 478 F. Supp. 3d 259, 300 (D.
Conn. 2020) (applying this same principle to its partial grant of
summary judgment to plaintiff on issue of whether a particular
criminal records screening policy was necessary to protect health
and safety and concluding that excluding people from housing based
on arrests alone cannot serve a legitimate business justification.)
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[[Page 25347]]
As described above, this proposed rule is intended to address
certain common practices that HUD believes may sweep too broadly in
their attempts to serve legitimate interests such as tenant safety and
so may expose PHAs and HUD-assisted housing providers to risk of
violating the Fair Housing Act or other civil rights statutes. Non-
discrimination requirements are extensive, and compliance with these
proposed regulations does not mean that compliance is achieved under
civil rights laws. However, these regulations should make it clearer
and easier for program participants such as owners and PHAs to develop
narrowly tailored policies that fulfill the housing mission of
providing safe, affordable homes with improved compliance with fair
housing and nondiscrimination obligations.
VI. Summary of Proposed Rule
Consistent with HUD's authority and to address the need for the
regulation discussed above, HUD is proposing changes to 24 CFR parts 5,
245, 882, 960, 966, and 982. Part 5 applies generally to HUD programs;
however, subpart I, Preventing Crimes for Federally Assisted Housing--
Denying Admission and Terminating Tenancy for Criminal Activity or
Alcohol Abuse, does not apply to the Public Housing or HCV programs.
Program-specific provisions related to denial of admissions and
termination of tenancy similar to those in part 5, subpart I, are
included in the Moderate Rehabilitation Program, public housing, and
HCV regulations (Section 8 Moderate Rehabilitation Program (24 CFR part
882), Public Housing Program (24 CFR parts 960 and 966), and Section 8
Tenant-Based Assistance: Housing Choice Voucher Program (24 CFR part
982)). Part 5, subpart J applies to PHAs that administer public housing
and Section 8 programs.
Throughout the proposed changes, HUD, where possible and where not
contradicted by statute, uses person-centered language that describes
an individual's behavior rather than labeling that individual. To that
end, this proposed rule would amend language that references ``alcohol
abusers'' and ``drug criminals'' and instead use the language ``alcohol
abuse'' and ``drug-related criminal activity.'' HUD also proposes
consistent language and cross-references throughout the regulations.
With respect specifically to the term ``alcohol abuse'', HUD
recognizes that some agencies, advocates, and members of the disability
and medical communities have moved away from the term ``alcohol abuse''
towards alternatives such as ``alcohol use disorder,'' ``excessive
alcohol use,'' or ``alcohol use'' due to stigma associated with the
term ``alcohol abuse.'' \108\ HUD considered these alternatives while
drafting this proposed rule but has elected not to adopt any of them at
this time. The term ``alcohol abuse'' is taken directly from statutory
language in QHWRA, which permits denial of admission or eviction from
federally assisted housing in a situation where ``abuse (or pattern of
abuse) of alcohol . . . interfere[s] with the health, safety, or right
to peaceful enjoyment of the premises by other residents.'' \109\ In
other words, ``alcohol abuse'' is a term of art used to describe a
category of conduct that can justify exclusion from housing. It has
been construed in case law and carried forward in numerous regulatory
provisions, subregulatory guidance, and leases. Any replacement term,
unless substantively identical, would alter the scope of the conduct
that permits exclusion and create questions about how to reconcile the
rule with the governing statutes.
---------------------------------------------------------------------------
\108\ Nat'l Inst. on Drug Abuse, Words Matter--Terms to Use and
Avoid Using When Talking About Addiction (Nov. 29, 2021), <a href="https://nida.nih.gov/nidamed-medical-health-professionals/health-professions-education/words-matter-terms-to-use-avoid-when-talking-about-addiction">https://nida.nih.gov/nidamed-medical-health-professionals/health-professions-education/words-matter-terms-to-use-avoid-when-talking-about-addiction</a> (suggesting that the term ``abuse'' should be
avoided because it has a high association with negative judgments
and punishment).
\109\ 42 U.S.C. 13661(b)(1)(B), 13662(a)(2).
---------------------------------------------------------------------------
HUD has considered using different terms, for example, ``excessive
alcohol use'' and ``alcohol use'' in this proposed rule but has
declined to do so because they are broader than ``alcohol abuse.''
Consequently, substituting these terms would expand the category of
conduct that permits exclusion, contrary to the purposes of this
proposed rule, and may lead to more admission denials and evictions
than were intended by QHWRA's statutory language.
HUD has also contemplated using the term ``alcohol use disorder''
as an alternative to ``alcohol abuse,'' as some federal agencies have
begun using because of its clinical definition.\110\ However, not only
is this term inconsistent with the statutory language in QHWRA, but it
also creates confusion in the fair housing context, because individuals
with alcohol use disorder are people with a disability under the Fair
Housing Act, Americans with Disabilities Act, and the Rehabilitation
Act of 1973. Using a term as the standard for permitting exclusion that
is also a recognized disability could create problems harmonizing this
standard with the analysis required under the civil rights laws. HUD
seeks public comment specifically on the issue of the continued use of
the term ``alcohol abuse'' (see ``Questions for public comment,''
infra, Section VII, #11).
---------------------------------------------------------------------------
\110\ Nat'l Inst. on Alcohol Abuse & Alcoholism, Understanding
Alcohol Use (Apr. 2023), <a href="https://www.niaaa.nih.gov/sites/default/files/publications/Alcohol_Use_Disorder_0.pdf">https://www.niaaa.nih.gov/sites/default/files/publications/Alcohol_Use_Disorder_0.pdf</a> (highlighting that
``alcohol use disorder'' is a medical condition listed in the
Diagnostic and Statistical Manual of Mental Disorders, Fifth
Edition, that encompasses ``alcohol abuse,'' among other
conditions).
---------------------------------------------------------------------------
HUD also proposes at various places to include ``PHA employees'' or
``property employees'' among those meant to be protected from
threatening activity. The Housing Act of 1937 and QHWRA both evince a
desire to include these employees among those intended to be protected
from threatening activity, but they are not uniformly included in the
existing regulations.
HUD also proposes to add the following definitions to Sec. 5.100:
``Criminal history'', ``Criminal record'', ``Currently engaging in or
engaged in'', ``Individualized assessment'', and ``Preponderance of the
evidence.'' These terms are discussed throughout this section where
appropriate. With respect to the term ``Currently engaging in or
engaged in'', HUD seeks specific comment on certain aspects of the
proposed definition (see ``Questions for public comment,'' infra,
section VII, #1).
A. Part 5: Individualized Assessment
To increase access to covered housing programs, this proposed rule
would require that housing providers conduct an individualized
assessment of each individual whose suitability is under question based
on the existence of a criminal history. Though the individualized
assessment requirement would apply slightly differently to different
programs and circumstances due to statutory and programmatic
differences, HUD intends to increase access to HUD's programs by
applying the new individualized assessment process.
This rule proposes to amend 24 CFR part 5 by adding a definition of
``individualized assessment'' to Sec. 5.100. The definition would
provide that the purpose of the ``individualized assessment is to
determine the risk that an applicant will engage in conduct that would
adversely affect the health, safety, and peaceful enjoyment of the
premises by other residents, the owner, or property employees.'' As
proposed, HUD's definition of ``individualized assessment'' would
require holistic consideration of ``multiple points of information''
that may include a criminal history but also relevant
[[Page 25348]]
mitigating factors, including but not limited to those set forth in
Sec. 5.852(a)(1) and (2), and repeated in the public housing and
voucher regulations as appropriate. In conjunction with the
individualized assessment, HUD also proposes to define ``criminal
history'' in Sec. 5.100 to mean an individual's past involvement with
criminal activity or the criminal justice system, including but not
limited to that reflected in a criminal conviction. Criminal history
may include information that appears in an individual's criminal record
but may also include information that is not part of that individual's
criminal record. ``Criminal record'' is proposed to be defined as a
history of an individual's contacts with law enforcement agencies or
the criminal justice system. A criminal record may include details of
warrants, arrests, convictions, sentences, dismissals or deferrals of
prosecution; acquittals or mistrials pertaining to an individual;
probation, parole, and supervised release terms and violations; sex
offender registry status; and fines and fees.
This proposed rule retains existing requirements in Sec. 5.851
regarding authority to screen applicants for admissions and terminate
tenants. HUD is proposing, however, to add a requirement that, where
discretion exists to deny admission or terminate, a housing provider
must consider certain circumstances listed in Sec. 5.852 before doing
so based on the following circumstances: a criminal record, a finding
of criminal activity, illegal drug use, or alcohol abuse. In the
admissions context, the considerations listed in Sec. 5.852 must be
considered as part of an individualized assessment.
This proposed rule is not intended to affect existing discretion
with respect to admissions, evictions, and terminations on other bases.
Section 5.851(a)(1) provides that a criminal record may be considered
only in the manner and for the purpose described in this regulation.
Paragraph (a)(2) would require an individualized assessment in every
instance a housing provider considers criminal activity in an
admissions decision except in circumstances where a statute requires
denial of admission based on criminal history. Paragraph (a)(2)(i)
would provide that such criminal activity, if determined relevant, may
be considered only alongside the relevant mitigating factors, including
the factors listed at Sec. 5.852(a). HUD seeks public comment
specifically on whether it should provide additional specificity in the
final rule or in subsequent guidance on this requirement (see
``Questions for public comment,'' infra, Section VII, #5).
Section 5.851(a)(2)(ii) would provide that an arrest record alone
may not be the basis for a determination that an individual has engaged
in criminal activity that warrants denial of admission; however, the
underlying conduct leading to an arrest may be relevant to determine
the applicant's risk to engage in such conduct provided there is
sufficient evidence independent of the arrest itself that the conduct
occurred.
Section 5.851(b) would require that any termination based on
criminal activity, illegal drug use, or alcohol abuse must be in
accordance with the procedures and requirements of subpart I. Several
of the specific protections discussed above are proposed to be
expressly incorporated into relevant provisions in the regulations in
the public housing and voucher provisions as discussed in more detail
below.
HUD's intent is to provide practical guidance to assist housing
providers with decisions regarding admissions and terminations that
involve criminal history considerations. To that end, Sec. 5.852(a)(1)
outlines factors for a housing provider to consider in the admission
context and the termination or eviction context. The factors listed in
Sec. 5.852(a)(1) are meant to provide housing providers with a
holistic view of the individual seeking housing or seeking to maintain
housing. The factors are not all inclusive, and housing providers may
consider other relevant mitigating circumstances.
For an individualized assessment conducted for admissions purposes,
Sec. 5.852(a)(1), the relevant factors that should be considered
include, but are not limited to, the nature and circumstances of the
conduct in question, including seriousness, impact on suitability for
tenancy, and length of time that has passed since the conduct; the
extent to which the applicant or relevant household member has
attempted to mitigate the risk that admission would adversely affect
the health, safety, and peaceful enjoyment of the premises by other
residents, the owner, or property employees; whether the applicant
would like the owner to consider mitigating circumstances related to a
medical condition of a household member; whether, considering relevant
evidence, there is reason to believe the conduct will recur and rise to
the level that it will interfere with the health, safety, or right to
peaceful enjoyment of the premises by others; and whether further
considerations must be made in order to comply with the obligation to
consider and provide reasonable accommodations to persons with
disabilities.
For terminations or evictions, relevant factors that housing
providers should consider under Sec. 5.852(a)(2) include the nature
and circumstances of the conduct in question, including seriousness and
impact on fitness for continued tenancy; the effect on the community
and on other household members not involved in the conduct of
termination or eviction or of inaction; whether the leaseholder or
relevant household member was involved in the conduct and whether they
have taken reasonable steps to prevent or mitigate the conduct;
whether, considering relevant evidence, there is reason to believe the
conduct will recur and rise to the level that it will interfere with
the health, safety, or right to peaceful enjoyment of the premises by
others; whether the applicant would like the owner to consider
mitigating circumstances related to a medical condition of a household
member; and whether further considerations must be made in order to
comply with the obligation to consider and provide reasonable
accommodations to persons with disabilities.
The proposed rule provides at Sec. 5.851(a)(2)(ii) that the
existence of an arrest record alone may not be the basis for a
determination that an individual has engaged in criminal activity;
however, actions that resulted in the arrest could be relevant as long
as there is sufficient evidence, independent of the arrest, that the
actions occurred, and other mitigating factors are considered.
HUD also recognizes that there are statutory limits that dictate
how housing providers treat criminal histories in certain
circumstances.\111\ Where an individual is statutorily barred from
admission or continued tenancy in a covered program, a housing provider
is not required to conduct an individualized assessment or consider the
above factors before denying them admission or terminating their
tenancy.
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\111\ 42 U.S.C. 13663 bars admission to federally assisted
housing for individuals who are subject to a lifetime registration
requirement under a State sex offender registration program; 42
U.S.C. 1437n(f) bars admission to and requires termination of
individuals convicted of manufacturing or producing methamphetamine
from public housing and Section 8-assisted housing.
---------------------------------------------------------------------------
In Sec. 5.852(b), the proposed rule continues to give the housing
provider the discretion to exclude a household member that the housing
provider determined participated in or was culpable for an action or
failure to act that warrants denial or termination. However, this rule
would provide clarity that this determination must be
[[Page 25349]]
based on a preponderance of the evidence. HUD proposes to add a
definition for ``preponderance of the evidence'' at Sec. 5.100, which
would define the standard as more likely than not that a claim is true
when all evidence is taken together and its reliability or
unreliability is considered. This definition responds to the need for
housing providers to have a clear, uniform standard with which to
evaluate evidence underlying important decisions that have significant
consequences on the future housing opportunities of tenants and
prospective tenants.
Section 5.852(b) also proposes that the duration of any such
exclusion must not exceed the time period an individual could be denied
admission based on the same action or failure to act. In addition, this
section would provide that such an exclusion may not be based solely on
the fact of an arrest. The conduct underlying an arrest may provide the
basis for an exclusion, provided the housing provider can meet a
preponderance of the evidence standard that the conduct occurred
independent of the fact of the arrest.
HUD proposes to remove current Sec. 5.852(c) regarding
consideration of rehabilitation because it would be redundant with
paragraphs (a)(1)(iv) and (a)(2)(vi).
HUD also proposes to remove the language from Sec. 5.852(d) that
allows an owner to prohibit admission for a period of time longer than
that authorized by statute. HUD proposes parallel deletions of
equivalent language in the public housing regulations at Sec.
960.203(c)(3)(ii) of the current regulation and Sec.
966.4(l)(5)(vii)(E), as HUD proposes to replace this with the creation
of a three-year presumptive lookback period for criminal history (see
discussion of lookback periods under A.2 of this section).
The proposed paragraph (c) would revise current paragraph (e) and
clarify that admission and eviction actions be consistent with 24 CFR
part 5, subpart L, as well as the fair housing and equal opportunity
provisions of Sec. 5.105 and would clarify that the Fair Housing Act's
prohibitions against discrimination extend to third-party screening
services or companies contracted by housing providers.
Finally, HUD proposes to add a new paragraph (d) to address
situations where an applicant fails to disclose criminal record
information. The provision would provide that except in those
circumstances where a PHA or owner solely relies on self-disclosure in
reviewing an applicant's criminal record, the PHA or owner may deny
admission for failure to disclose a criminal record only if that
criminal record would be material to an admissions decision pursuant to
this rule and the PHA's or owner's admissions standards. For criminal
history information that is material to an admissions decision, the PHA
may take the failure to disclose into account, along with other factors
set out in this rule, in determining whether that criminal record
warrants denial of admission. Parallel provisions are proposed to be
added at Sec. Sec. 960.203(d) and 982.552(f).
1. Drug-Related Criminal Activity and Illegal Drug Use Sec. Sec.
5.854, 5.858
Section 5.854 addresses the admission of individuals who have
engaged in drug-related criminal activity or illegal drug use. However,
the currently codified title of the section does not include reference
to ``illegal drug use.'' To provide clarity as to the scope of the
application of this section, HUD proposes to revise the title of this
section to add ``illegal drug use.'' Paragraph (a) of this section
provides that housing providers must prohibit the admission of an
applicant for three years following an eviction from federally assisted
housing for drug-related criminal activity as required by 42 U.S.C.
13661(a). This proposed rule would clarify Sec. 5.854(a)(1), by
providing that a housing provider may admit a household member who
engaged in drug-related criminal activity if the person is
participating in or has successfully completed a substance use
treatment service. The proposed rule would remove reference to ``an
approved supervised drug rehabilitation program'' as the only basis for
admittance so that the language is more closely aligned with the
statute. HUD also proposes a minor change to paragraph (b) of this
section to clarify that ``illegal use of a drug'' that threatens the
health, safety, or right to peaceful enjoyment of the premises by
``property employees,'' and not only other residents or property
employees, may be a basis for denying admission.
HUD proposes to revise Section 5.858, which addresses the eviction
of tenants who have engaged in drug-related criminal activity or
illegal drug use, in a number of ways. Because the title of the section
does not include reference to ``illegal drug use,'' HUD proposes to
revise the title of this section to add ``illegal drug use'' to clarify
the scope of the application. HUD proposes to further clarify this
section by revising Sec. 5.858 into paragraphs (a) and (b) to more
clearly make the distinction between the relevant lease provisions
applicable to drug-related criminal activity versus illegal drug use.
HUD also proposes to insert the word ``potential'' before ``grounds for
you to terminate tenancy'' to make clear that the stated actions need
not automatically result in evictions. Finally, HUD proposes to clarify
that a housing provider may consider the health and safety of
``property employees'' when determining whether to evict a family based
on a household member's illegal use of a drug or a pattern of illegal
use.
2. Other Criminal Activity Sec. 5.855
Section 5.855 addresses when a housing provider is allowed to
prohibit admission to a housing program based on criminal activity
other than that covered in Sec. 5.854. This proposed rule would revise
Sec. 5.855(a) to clarify that the list of situations in which a
housing provider has discretion to prohibit admission of a household
member on the basis of criminal activity is an exclusive list. HUD
would keep Sec. 5.855(a)(1) and (2) unchanged (drug-related criminal
activity and violent criminal activity) but would limit the remaining
activities to situations where the health, safety, and right to
peaceful enjoyment of residents or the health or safety of the PHA,
owner, employee, contractor, subcontractor, or agent of the PHA or
owner who is involved in the housing operations is actually threatened.
Section 5.855(b) provides that a housing provider may establish a
reasonable period of time (a so-called ``lookback period'') before an
admission decision during which an applicant must not have engaged in
the activities enumerated in paragraph (a). While housing providers
would continue to exercise discretion in setting lookback periods, this
rule proposes to place a limit on what would be a reasonable period of
time for lookbacks. Specifically, HUD proposes that ``prohibiting
admission for a period of time longer than three years following any
particular criminal activity is presumptively unreasonable.'' This
section would also permit a housing provider to impose a longer period
of time for a lookback, but only after a determination, based on
empirical evidence, that a longer period of time is necessary to ensure
the health, safety, and peaceful enjoyment of other tenants or property
employees. An example of empirical evidence in this context may include
data gathered through qualitative and/or quantitative research that is
made the subject of a published, peer-reviewed study. HUD would provide
other potential examples
[[Page 25350]]
through subregulatory guidance. The proposed rule does not provide that
three years will always be a reasonable period of time, only that a
time longer than three years is presumptively unreasonable. Parallel
provisions are proposed at Sec. Sec. 882.518(b)(2), 882.519(e)(2),
960.204(c)(2), and 982.553(a)(4)(ii)(B). HUD intends that, under the
proposed rule, a housing provider may determine that a time less than
three years is the reasonable lookback period for some or all activity.
Any discretionary decision to deny admission based on activity
occurring within the lookback period also would have to occur in
accordance with the individualized assessment described elsewhere in
this proposed rule.
In Sec. 5.855(c), HUD proposes requiring PHAs and HUD-assisted
housing providers to provide notice of the proposed action and a copy
of any relevant criminal record to the subject of the criminal record
and the applicant (except where otherwise prohibited by law) no less
than 15 days prior to a notification of denial. The notification must
inform the household that it has the opportunity to dispute the
accuracy and relevance of the criminal record as well as the
opportunity to present any relevant mitigating information, which the
housing provider must consider. HUD specifically seeks comment on the
proposed 15-day timeframe and whether the proposed process would
adequately balance the needs of applicants and PHAs and HUD-assisted
housing providers (see ``Questions for public comment,'' infra, Section
VII, #3).
In Sec. 5.855(d), HUD proposes that all determinations to deny
admission under Sec. 5.855 must be supported by a preponderance of the
evidence, as defined by Sec. 5.100. This section would also provide
that the fact of an arrest could not be the basis for determining that
an individual engaged in criminal activity but the conduct that
resulted in the arrest can be such a basis provided there is sufficient
evidence independent of the arrest that the conduct occurred, subject
to the lookback period. Section 5.855(e) would be revised to make it
clear that no applicant that was previously denied admission based on
criminal activity shall be prohibited from applying for assistance, and
that a HUD-assisted housing provider must not deny the application
based solely on the prior denial.
3. Alcohol Abuse Sec. 5.857
In Sec. 5.857, HUD proposes to remove ``you have reasonable cause
to believe'' from the description of the standard that a housing
provider must meet to show that a household member's abuse or pattern
of abuse of alcohol interferes with the health, safety, or right to
peaceful enjoyment of the premises by other residents. HUD is proposing
this deletion because it believes it to be consistent with the
preponderance of the evidence standard used throughout these
regulations. The proposed deletion would avoid confusion that these
standards are different. Parallel deletions are proposed at Sec. Sec.
882.518(a)(1)(iii) and (b)(4), 960.204(a)(2)(ii) and (b), and
982.553(a)(2)(ii)(B) and (a)(4)(C)(3). HUD also clarifies that the
health and safety provision applies to a property employee.
4. Evictions on the Basis of Criminal Activity Sec. 5.861
Currently, Sec. 5.861 provides that in order to evict an existing
tenant based on criminal activity, a housing provider may do so
regardless of whether the person has been arrested or convicted of such
activity and without satisfying a criminal conviction standard of
proof. This proposed rule would change the focus of this provision to
the evidentiary standard that the housing provider does have to meet in
order to evict, namely the preponderance of the evidence standard,
which HUD believes is a more helpful articulation of the applicable
rule. HUD continues to believe this standard can be met regardless of
whether a person has been arrested or convicted, and by definition it
can be met without satisfying a criminal conviction standard of proof.
While this proposed rule does not change the substance of this
pronouncement, in HUD's experience, clarifying specific limits is more
helpful to ensure compliance with applicable laws than what this
regulation currently does. Therefore, and also in keeping with the
principles discussed in the preamble, this proposed rule would change
the focus of this provision. HUD would eliminate the above-referenced
language and provide that the housing provider may terminate tenancy
and evict based on criminal activity if the housing provider determines
that the covered person has engaged in the criminal activity described
in subsections 5.858 and 5.859.
B. Part 5: Criminal Records
As specified in 24 CFR 5.901, part 5, subpart J, of HUD's
regulations addresses access to and use of criminal conviction records
and sex offender registry information obtained from law enforcement
agencies. However, these regulations do not apply to access to and use
of other criminal records, such as records obtained from third party
screening companies and records of arrest or other criminal history
information from law enforcement agencies. HUD is aware that
increasingly, PHAs and owners are considering records other than
conviction and sex offender registry records obtained directly from law
enforcement agencies. Although this information has the potential to be
less accurate, reliable, and instructive, this information is currently
the least regulated by HUD's program regulations.
This proposed rule would therefore amend certain sections of
subpart J in order to cover all criminal records, emphasize the limited
circumstances in which HUD believes criminal records should be relevant
in an admission or termination decision and to strengthen an
individual's right to dispute their accuracy and relevance in such a
decision. HUD proposes adding a new definition for ``criminal record''
to Sec. 5.100, which would include a variety of interactions with the
criminal justice system including arrests, warrants, conviction,
sentencing, dismissals or deferrals of prosecution, not-guilty
verdicts, and probation, parole, and supervised release violations.
Section 5.901(a) would be amended to clarify that subpart J applies
when criminal records are obtained from a law enforcement agency or any
other source for consideration in admission, lease enforcement, or
eviction. Language would also be added to emphasize that PHAs and
owners are not required to review an individual's criminal records
beyond the extent necessary to satisfy statutory requirements.
Section 5.903(f) governs an individual's opportunity to dispute the
accuracy and relevance of a criminal record of conviction obtained by a
PHA from a law enforcement agency that may be used to deny their
admission or evict them from federally assisted housing. The proposed
rule would revise Sec. 5.903 to provide that when a PHA obtains any
criminal record, either under Sec. 5.901(a) or by request of an owner
under Sec. 5.903(d), the PHA must notify the subject of the record and
the applicant or tenant (except where otherwise prohibited by law) of
the proposed action to be taken based on the record and give them an
opportunity to dispute the accuracy and relevance of the record. The
PHA would be required to provide this opportunity at least 15 days
before a denial of admission, eviction or lease enforcement action
based on such information. This proposed rule would also add a new
paragraph (f)(2) to this section that would outline an individual's
rights when an owner of
[[Page 25351]]
federally assisted housing obtains criminal record information from
anywhere other than a PHA. Specifically, the owner must notify the
subject of the record and the applicant or tenant if the owner obtains
a criminal record relevant to admissions or continued tenancy and
provide an opportunity to dispute the accuracy and relevance of the
criminal conviction record before a denial of admission, lease
enforcement action, or eviction. Such opportunity must be provided at
least 15 days before any of the three foregoing decisions. Consistent
with these changes in Sec. 5.903, HUD proposes similar revisions to
Sec. 5.905(d) concerning notice and opportunity to dispute sex
offender registration information. Finally, HUD proposes to revise
Sec. 5.903(g), which deals with records management, by deleting the
phrase ``from a law enforcement agency,'' since all records should be
afforded the safeguards set out in paragraph (g), regardless of their
source.
This proposed rule would also add a new Sec. 5.906 to ensure
consistency of tenant selection plans and the regulations proposed in
this rule and with any non-conflicting state or local law providing
protections for people with criminal records. Proposed paragraph (a)
would require owners of federally assisted housing--except owners of
properties receiving tenant-based assistance and project-based voucher
and moderate rehabilitation owners--to amend their tenant selection
plan within six months of the effective date of the final rule to make
such plan consistent with amended 24 CFR part 5. Under proposed
paragraph (b), owners would be prohibited from considering the
existence of a criminal record in the admissions process or in the
termination of tenancy process except as specified in this proposed
rule. HUD is proposing this paragraph to make it clear that overall
compliance is required as of the effective date of the regulation, even
if the requirement to amend Tenant Selection Plans under paragraph (a)
is subject to the 6-month delay in effective date. HUD seeks public
comment specifically on whether the six months proposed for amendment
of the tenant selection plan is reasonable (see ``Questions for public
comment,'' infra, Section VII, #6).
C. Part 245: Tenant Organizations
This proposed rule would amend part 245, subpart B--Tenant
Organizations. Specifically, the proposed rule would revise existing
paragraph (b) and redesignate existing paragraphs (b) and (c) of Sec.
245.115. Paragraph (b)(1) would provide that owners covered under Sec.
245.10 must make their tenant selection plans available to the public
and specifies the acceptable manner in which this may be done,
including by posting on its website or social media account(s), in a
conspicuous location and accessible format, where applicable. Parallel
provisions have been proposed at Sec. Sec. 882.514(a)(2),
960.202(c)(2), and 982.54(b).
Proposed paragraph Sec. 245.115(b)(2) would require that tenants
be notified of proposed substantive changes to the tenant selection
plan and be provided the right to inspect and copy such changes for 30
days following notification. This opportunity would extend to any legal
or other representatives acting for tenants individually or as a group.
During the 30-day inspection period, the owner would be required,
during normal business hours, to provide a place reasonably convenient
to the tenants where they may inspect and copy the materials in
question.
Paragraph (b)(3) of this section would give tenants the right to
draft written comments on the proposed changes to the tenant selection
plan, with or without the help of tenant representatives, and submit
them to the owner and to the local HUD office. This proposed change is
consistent with HUD's recognition of the importance of ensuring tenants
have a voice in how their homes are managed and would increase
incentives to owners to update their tenant selection plans as needed
to reflect program requirements and best practices. Additionally, by
providing tenants with visibility into tenant selection policies, HUD
believes that tenants will play a role in holding owners accountable
for policies such as the proposed requirement to perform an
individualized assessment prior to making a determination based on
criminal records. HUD seeks public comment on whether owners should be
required to respond to comments received from tenants (see, ``Questions
for public comment'', infra, Section VII, #9).
D. Part 882: Moderate Rehabilitation
This proposed rule would revise the regulations governing the
Moderate Rehabilitation Program, located in part 882, subpart E, to
reflect the changes in part 5 above as they apply to the Moderate
Rehabilitation program. As noted above, Sec. 882.514(a)(2) would be
revised to provide for transparency with respect to tenant selection
policies.
1. Individualized Assessment
The proposed rule would make several changes to Sec. 882.518.
Paragraph (a)(1) would be redesignated as paragraph (2) and new
paragraph (a)(1) would clarify that an arrest record alone may not be
the basis for a determination that an individual has engaged in
criminal activity that warrants denial of admission; however, the
underlying conduct leading to an arrest may be relevant to determine
the applicant's risk to engage in such conduct provided there is
sufficient evidence independent of the arrest itself that the conduct
occurred, and would require that where a criminal activity is
determined to be relevant it must be considered alongside the factors
in Sec. 882.518(a)(1)(ii) and other relevant mitigating factors.
Paragraph (a)(1)(ii) of this section would also provide the list of
mitigating factors related to admissions from Sec. 5.852(a)(1), which
must be considered as part of an individualized assessment.
2. Admissions
The proposed rule would amend redesignated Sec. 882.518(a)(2) by
revising its title to cover drug-related criminal activity rather than
``drug criminals.'' To align with the revisions proposed to Sec.
5.854, the language of Sec. 882.518(a)(2)(A) and (B) would be revised
to substitute ``substance use treatment service'' for ``approved
supervised drug rehabilitation program'' (in (A)) and ``household
member who engaged in the criminal activity'' for ``criminal household
member'' (in (B)). This proposed revision is an expansion of the
existing statutory provision that allows a PHA to nonetheless admit the
household if, among other things, the household member who engaged in
drug-related criminal activity and whose tenancy was terminated has
successfully completed substance use treatment services.
HUD is also proposing changes to Sec. 882.518(a)(2)(iii), which
currently requires that a PHA establish standards that prohibit
admission of a household to a PHA's program if the PHA determines that
any household member is currently engaging in illegal use of a drug, or
if the PHA determines that it has ``reasonable cause to believe'' that
a household member's illegal use or pattern of illegal use of a drug
``may'' threaten the health, safety, or right to peaceful enjoyment of
the premises by other residents. First, HUD proposes to delete the
phrase ``that it has reasonable cause to believe'' to be consistent
with the preponderance of the evidence standard used throughout these
regulations. The proposed deletion would avoid confusion that these
standards are different. Second, HUD proposes replacing the word
``may'' in this paragraph with ``would,'' to prevent
[[Page 25352]]
an overly broad reading of ``may'' in this context, which could lead to
speculative admissions determinations HUD does not believe were
intended by this language. Third, HUD is incorporating a cross-
reference to the newly proposed definition of ``currently engaging in
or engaged'' in Sec. 5.100 to clarify when the applicant is currently
engaging in the use of an illegal drug. Lastly, in this paragraph, HUD
would add that any determination must take into account any relevant
information submitted by the household, such as whether the household
member is currently receiving or has successfully completed substance
use treatment services.
Section 882.518(b)(1) addresses the authority a PHA has to deny
admission on the basis of other criminal activity. The revisions
proposed by this rule mirror those in Sec. 5.585 and provide that a
PHA may only deny admission based on criminal activity if it determines
by a preponderance of the evidence that the individual is currently
engaging in criminal activity or engaged in criminal activity during a
reasonable time before the admission decision as those terms would be
defined in Sec. 5.100. Other criminal activity must be criminal
activity that would actually threaten residents, owner, employee,
contractor, subcontractor or agent of the owner who is involved in the
owner's housing operations. Paragraph (b)(2) of this section, which
provides that the PHA may prohibit admission based on criminal activity
only for a reasonable time, would be revised to include the three-year
presumptively reasonable lookback period previously discussed.
HUD proposes to revise Sec. 882.518(b)(3) which would provide that
except in those circumstances where a PHA solely relies on self-
disclosure in reviewing an applicant's criminal record, the PHA may
deny admission for failure to disclose a criminal record only if that
criminal record would be material to an admissions decision pursuant to
this rule and the PHA's or owner's admissions standards. HUD also
proposes in Sec. 882.518 to redesignate paragraph (b)(4) as paragraph
(b)(5). New paragraph (b)(4) would explain that no applicant that was
previously denied admission shall be prohibited from applying for
assistance, and that PHAs may not deny applications based solely on
prior denials. This section would be revised, in line with part 5, to
provide that the fact that there has been an arrest is not a sufficient
basis for the determination that the relevant individual engaged in
criminal activity, but the conduct that resulted in the arrest can be
such a basis provided there is sufficient evidence that it occurred
independent of the fact of the arrest.
Redesignated paragraph (b)(5) currently requires a PHA to establish
standards that prohibit admission on the basis of alcohol abuse. Like
the changes in part 5, the proposed rule provides that the PHA must
determine the applicant's abuse of alcohol would threaten the health,
safety, or right to peaceful enjoyment of the premises of residents or
PHA employees. Similarly, HUD proposes to make changes to paragraph
(b)(1)(iv) which currently states that PHAs may prohibit admission of a
household to a PHA's program if the PHA determines that any household
member is currently engaging in, or has engaged in during reasonable
time before the admission, other criminal activity which ``may''
threaten the health or safety of the owner or any employee, contractor,
subcontractor or agent of the owner who is involved in the owner's
housing operations. HUD proposes replacing the word ``may'' in this
paragraph with ``would'' to prevent an overly broad reading of ``may''
in this context, which could lead to speculative admissions
determinations HUD does not believe were intended by this language.
Redesignated paragraph (b)(6), consistent with part 5, subpart J,
would provide that before a PHA denies admission based on criminal
activity, it must notify the household of the proposed action and
provide a copy of any relevant criminal record (except where otherwise
prohibited by law) no less than 15 days prior to the denial, and
expressly provides an equivalent protection to that proposed in Sec.
5.851, that a criminal record may be considered only if it is accurate
and relevant to determining the risk that an applicant would threaten
the health, safety, or right to peaceful enjoyment of residents or PHA
employees. The provision would provide an opportunity to dispute the
accuracy and relevance of the criminal record and to present any
mitigating evidence. In addition, paragraph (b)(6) would provide the
list of mitigating factors related to admissions from Sec.
5.852(a)(1), which must be considered as part of an individualized
assessment, and this section would also provide that if the PHA decides
to deny admission following the individualized assessment, the PHA must
notify the family of its decision and that the family may request an
informal hearing in accordance with Sec. 882.514(f).
3. Denial and Terminations
New paragraph (c)(1) of Sec. 882.518 proposes that for
terminations or evictions, relevant factors that PHAs should consider
under Sec. 5.852(a)(2) include the nature and circumstances of the
conduct in question, including seriousness and impact on fitness for
continued tenancy; the effect on the community and on other household
members not involved in the conduct of termination or eviction or of
inaction; whether the leaseholder was involved in the conduct and
whether they have taken reasonable steps to prevent or mitigate the
conduct; whether, considering relevant evidence, there is reason to
believe the conduct will recur and rise to the level that it will
interfere with the health, safety, or right to peaceful enjoyment of
the premises of other residents or property employees; whether the
applicant would like the owner to consider mitigating circumstances
related to a medical condition of a household member; and whether
further considerations must be made in order to comply with the
obligation to consider and provide reasonable accommodations to persons
with disabilities.
The proposed rule would amend redesignated paragraph (c)(2)
consistent with the changes in Part 5. Specifically, the proposed rule
would revise the term ``drug criminals'' to ``drug-related criminal
activity,'' change ``interferes with'' to ``threatens,'' specify when
the text is discussing illegal drug use, add ``property employees'' to
the list of individual whom a tenant's illegal drug use may threaten
and give rise to cause to evict, allow the PHA to admit a household
member who engaged in drug-related criminal activity if the person is
participating in or has successfully completed a substance use
treatment service, and reference the definition of ``currently engaging
in or engaged in'' at Sec. 5.100. Similar to the proposed revisions in
Sec. 882.518(a)(1), paragraph (d) would be revised in line with part
5, to provide that the fact that there has been an arrest is not a
sufficient basis for the determination that the individual engaged in
criminal activity, but the conduct that resulted in the arrest can be
such a basis provided there is sufficient evidence that it occurred
independent of the fact of the arrest.
The proposed rule would also revise Sec. Sec. 882.511 and 882.514
to require that the owner follow Sec. 882.519 for actions or potential
actions to terminate tenancy, or deny tenancy on the basis of criminal
activity, illegal drug use, of alcohol abuse. HUD proposes to remove in
Sec. 882.514(c) the provision that an owner may refuse any family,
provided that the owner does not unlawfully discriminate. In addition,
HUD would
[[Page 25353]]
revise Sec. 882.514(a)(2) by clarifying that the PHA's tenant
selection policies should be publicized by posting copies in each
office where applications are received and by making available copies
to applicants or tenants for free upon request. Paragraph (a)(2) would
also clarify that these policies can be posted on the PHA's website
and/or its social media account(s), in a conspicuous location and an
accessible format, where applicable. Lastly, HUD proposes to revise
Sec. 882.514(f) by removing the outdated reference to the informal
review provisions for the denial of a Federal selection preference
under Sec. 882.517(k).
The proposed rule would also add a new section, Sec. 882.519.
Proposed Sec. 882.519(a) would reflect changes in part 5 by adding the
requirement that where discretion exists to deny admission or
terminate, an owner must consider certain circumstances listed in Sec.
882.519 before doing so based on the following circumstances: a
criminal record, a finding of criminal activity, illegal drug use, or
alcohol abuse. In the admissions context, the considerations listed in
Sec. 882.519 must be considered as part of an individualized
assessment. Section 882.519(a)(2) would require an individualized
assessment in every instance an owner considers criminal activity in an
admissions decision. Paragraph (a)(2)(i) of this section would provide
that such criminal activity may be considered only if it is relevant to
determining the risk that an applicant will interfere with or adversely
affect the health, safety, or right to peaceful enjoyment of residents
or property employees. Paragraphs (a)(2)(ii) and (iii) of this section
would require that where a criminal activity is determined to be
relevant, it must be considered alongside the factors in Sec.
882.519(b) and other relevant mitigating factors, and that an arrest
record alone may not be the basis for a determination that an
individual has engaged in criminal activity that warrants denial of
admission; however, the underlying conduct leading to an arrest may be
relevant to determine the applicant's risk to engage in such conduct
provided there is sufficient evidence independent of the arrest itself
that the conduct occurred.
Like part 5, Sec. 882.519(b)(1) would provide the list of
mitigating factors related to admissions from Sec. 5.852(a)(1), which
must be considered as part of an individualized assessment. Paragraph
(b)(2) of this section would list the circumstances relevant to a
particular termination or eviction that an owner must take into account
before exercising discretion to terminate or evict based on a criminal
record, illegal drug use, or alcohol abuse. Proposed Sec. 882.519(c)
would give the owner discretion to exclude a household member that the
owner determined, based on a preponderance of the evidence,
participated in or was culpable for an action or failure to act that
warrants denial or termination. In addition, HUD proposes to add Sec.
882.519(d) which would provide that except in those circumstances where
a PHA solely relies on self-disclosure in reviewing an applicant's
criminal record, the PHA may deny admission for failure to disclose a
criminal record only if that criminal record would be material to an
admissions decision pursuant to this rule and the PHA's or owner's
admissions standards.
Parallel to provisions proposed at Sec. Sec. 5.855(B),
882.518(b)(2), 960.204(c)(2), and 982.553(a)(4)(ii)(B), HUD also
proposes to add Sec. 882.519(e) which would provide that an owner may
establish a reasonable period of time (lookback period) before an
admission decision during which an applicant must not have engaged in
the activities enumerated in this paragraph. An owner would continue to
exercise discretion in setting lookback periods; however, this rule
proposes to place a limit on what HUD believes is a reasonable period
of time, which is a period of time no longer than three years following
any particular criminal activity. The proposed rule does not provide
that three years will always be a reasonable period of time, only that
a time longer than three years is presumptively unreasonable. A housing
provider can, however, overcome this presumption and impose a longer
period of time but only after a determination, based on empirical
evidence, that a longer period of time is necessary to ensure the
health, safety, and peaceful enjoyment of other tenants or property
employees.
Section 882.519(e)(3) would be added to require that an owner
provide notice of the proposed action and a copy of any relevant
criminal record to the subject of the criminal record and the applicant
(except where otherwise prohibited by law) no less than 15 days prior
to a notification of denial. The notification must inform the household
that it has the opportunity to dispute the accuracy and relevance of
the criminal record as well as the opportunity to present any relevant
mitigating information, which the housing provider must consider.
Lastly, Sec. 882.518(e)(4) and (5) would be added to explain that
no applicant that was previously denied admission shall be prohibited
from applying for assistance, and that PHAs may not deny applications
based solely on prior denials. This section would be added to align
with part 5, to provide that the fact that there has been an arrest is
not a basis for the requisite determination that the relevant
individual engaged in criminal activity, but the conduct that resulted
in the arrest can be such a basis provided there is sufficient evidence
that it occurred independent of the fact of the arrest.
E. Part 960: Public Housing Program
This proposed rule would revise the regulations governing admission
to the Public Housing Program, codified in part 960, to reflect the
revisions in part 5.
The proposed rule would clarify, by adding a new Sec. 960.103(e),
that nothing in part 960 is intended to pre-empt operation of State and
local laws that provide additional protections to those with criminal
records, but that State and local laws shall not change or affect any
HUD requirement for administration or operation of the program. The
proposed rule would also redesignate Sec. 960.202(c)(3) as (c)(4) and
add language to new paragraph (c)(3) that would mirror the tenant
selection policy transparency provision already discussed (see
discussion of Sec. 245.118(b)(1)).
The proposed rule would make several changes to Sec. 960.203.
Paragraph (b) of this section would remove an obsolete provision that
PHAs that successfully screen out applicants with criminal histories
would receive points under Public Housing Assessment System (PHAS). In
addition to being obsolete, the former provision was fundamentally at
odds with the purpose of this proposed rule. Paragraph (c) of this
section would be redesignated as paragraph (b) and revised in several
ways. Redesignated paragraph (b)(3)(i) currently provides that a PHA
may require an applicant to exclude a household member from residing in
the unit in order to be admitted to the housing program where that
household member has participated in or been culpable for actions
described in Sec. 960.204 that warrant denial. HUD proposes to temper
this provision by adding language limiting the duration of such
exclusion to the time period an individual could be denied admission
for that action or failure to act and requiring that the time period
shall be reasonable in light of all relevant circumstances.
Existing paragraph (c)(3)(ii), which allows a PHA to prohibit
admission for a period of time longer than that authorized by statute,
is proposed for deletion for the reasons discussed earlier (see
discussion of Sec. 5.852(d)).
[[Page 25354]]
HUD proposes to replace it with a new paragraph (b)(3)(ii), which would
be added to provide equivalent protections to those proposed in part 5
in the public housing regulations.
Existing paragraph (d) would be redesignated as paragraph (c) and
would mirror the requirements of Sec. 5.852(a)(1) with respect to
admissions decisions on the basis of a criminal record. Finally,
proposed new paragraph (d) would mirror the provision previously
discussed at Sec. 5.852(d) regarding an applicant's failure to
disclose a criminal history.
The rule proposes several changes to Sec. 960.204. HUD proposes to
revise paragraph (a)(1)(i) of this section to clarify that a PHA may
admit a household member evicted from federally assisted housing within
three years of the date of the eviction if the PHA determines that the
evicted household member is participating or has successfully completed
substance use treatment services. HUD is proposing this revision in
accordance with the waiver provision of 42 U.S.C. 13661(a), which does
not require the bar when circumstances leading to the eviction no
longer exist (which could include situations where the person who
committed the drug offense leading to the eviction is in treatment). In
addition, the Americans with Disabilities Act, prohibits public
entities, such as PHAs, from discriminating against applicants with
substance abuse disabilities who are not currently using illegal drugs
and are currently participating in a supervised rehabilitation program,
have successfully completed a supervised drug rehabilitation program,
or have otherwise been rehabilitated successfully. 28 CFR 35.131; see
42 U.S.C. 12210.
HUD is also proposing changes to Sec. 960.204(a)(2)(i) and (ii).
These provisions currently require that a PHA establish standards that
prohibit admission of a household to a PHA's program if the PHA
determines that any household member is currently engaging in illegal
use of a drug, or if the PHA determines that it has ``reasonable cause
to believe'' that a household member's illegal use or pattern of
illegal use of a drug ``may'' threaten the health, safety, or right to
peaceful enjoyment of the premises by other residents. First, HUD is
incorporating a cross-reference to the newly proposed definition of
``currently engaging in or engaged'' in Sec. 5.100 to clarify when the
applicant is currently engaging in the use of an illegal drug. HUD also
proposes to delete the phrase ``that it has reasonable cause to
believe.'' HUD is proposing this deletion be
[…truncated; see source link]Indexed from Federal Register on April 10, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.