Housing Authority Eliminates Ban of Ex-Offenders
With the approval of new background check procedures, a criminal conviction won’t automatically disqualify a person from receiving public housing or voucher assistance in New Orleans.
By Katy Reckdahl Posted on July 5, 2016
Calvin “Cosmo” Russell would like to add his adult son to his apartment’s lease. That might be fairly simple if his son hadn’t been arrested three years ago for possession of five dime bags of weed, which ended in a conviction and a short prison term.
The arrest also gives Russell a certain urgency. Though his son is 26, Russell believes that he can help him successfully transition from young adulthood into decades of stable living.
Russell’s landlord has met Russell’s son and approved the lease change. But because Russell, 48, is disabled from an on-the-job injury, the Housing Authority of New Orleans helps him pay his monthly rent and must authorize any additions to his lease.
In the past, Russell would not have asked. “They wouldn’t let you add an ex-con to your Section 8 voucher,” he says. “They’d tell you ‘no’ flat-out.”
Even before his son’s arrest, Russell saw HANO’s screening policy as wrong-headed. Several years ago, he joined the grassroots group STAND with Dignity, which has spent four years working with other local advocates to push for a revised criminal records screening policy.
The revisions were particularly necessary in high-poverty New Orleans, where nearly 1 in 4 households receives rental assistance, and per-capita incarceration rates have long been the nation’s highest and disproportionately affect the city’s African-American community, says Cashauna Hill, executive director of the Greater New Orleans Fair Housing Action Center. “Here in New Orleans, we’re at ground zero of the incarceration epidemic,” she says. “Folks are now agreeing that this level of disenfranchisement for people of color is not beneficial for anyone.”
In May, the U.S. Department of Housing and Urban Development approved HANO’s amended occupancy plan. Experts say it is the nation’s most progressive such policy.
“I think HANO realized it was the right thing to do,” says Norris Henderson, the founder and executive director of a New Orleans grassroots group called Voice of the Ex-offender, which joined STAND with Dignity to push for the policy shift. Henderson also sees the issue through a national lens as one of the so-called “Super Eight,” a group of eight justice activists from across the United States who have been meeting regularly with the U.S. Department of Justice since late 2014 to advocate for policy changes that can help others who have spent time in prison.
Henderson is well versed on the federal focus on re-entry under the Obama administration, and says that he and his colleagues at VOTE urged HANO to step into the lead. “We told them, ‘New Orleans can provide the roadmap for how this rolls out across the country.’”
For Russell, the win is a sweet victory. He remembers when STAND for Dignity members got the word that the policy finally passed. “It was a proud moment for us,” he says. “We felt like we had done something that needed to be done.”
“More Than Their Criminal Record”
From the start, advocates were clear that the new procedures in New Orleans should not started with automatic denials.
HUD regulations only require housing authorities to automatically bar two narrow groups of tenants from public housing—those who are on the lifetime registry for sex offenders and those who have been convicted of making methamphetamine on public housing property.
But beyond those two requirements, New Orleans’s new procedures ensure that no one else’s application for public housing assistance will be rejected solely on the basis of a conviction. “A conviction is merely a trigger to look more closely into present circumstances,” says Jon Wool, the director of the Vera Institute of Justice office in New Orleans, which began consulting on the process about three years ago. The Institute used recidivism research to help HANO create their Screening Criteria Grid, which for different types of convictions sets different lengths of time for which they should spark further review. For instance, potential tenants convicted of felony-level assault and battery require further review if they are screened within three years or less of their convictions or within one year of their release from prison. These are called “lookback periods.”
If by the grid an applicant requires “further review,” that person must appear before a three-member panel for a personalized review that considers their individual circumstances, including schooling, treatment for addictions, job training and employment, and volunteer work. The panel will also hear perspectives from parole officers, bosses, or even friends and family members who know the person well before making a decision.
To Marie Claire Tran-Leung, it’s heartening to see an agency formally acknowledge that “a person is more than their criminal record.” Tran-Leung is a staff attorney for the Sargent Shriver National Center on Poverty Law, which has published two in-depth reports, in 2011 and 2015, about the “overly aggressive and potentially illegal criminal background policies” being used by housing programs financed by HUD.
In addition to HANO’s screening criteria, Tran-Leung particularly likes the new policy’s emphasis on data. Every decision made by the panel will be recorded and tracked by conviction type and decision. The totals will be published twice a year, though no identities will be revealed.
In 2011, then–HUD Secretary Shawn Donovan wrote a letter to public housing authorities, saying, “this is an administration that believes in the importance of second chances—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. Part of that means helping ex-offenders gain access to one of the most fundamental building blocks of a stable life—a place to live.”
HUD released guidance in November that further advised public housing authorities about some of the concerns that the Shriver Center found in its research, including reliance on one-strike policies and the use of arrest records that didn’t result in a conviction. As a result, some housing agencies have called the center recently, asking for a model template that they can use to create procedures for evaluating criminal records.
The Shriver Center now refers those callers to HANO’s policy. “I think it’s really, really good,” Tran-Leung says.
The One-Strike Rule
For years, anyone with a criminal record was barred from most of the nation’s public housing rolls.
In 1996, President Bill Clinton used his State of the Union speech to announce a one-strike strategy for everyone who lived in housing funded by the HUD. “From now on, the rule for residents who commit crime and peddle drugs should be, one strike and you’re out,” Clinton announced.
The idea was to quell the gun violence, rising crime, and open-air drug dealing that often plagued public housing properties. Two months later, Clinton signed the Housing Opportunity Program Extension Act of 1996, which required that public housing agencies evict tenants for “any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or 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.”
By that time, one-strike rules had already been in place in New Orleans for nearly a decade. In 1995, HANO evicted Virgie Green, a 12-year resident of the Lafitte public housing development who was a resident leader, considered an “exemplary tenant,” and was attending business and management classes. Her daughter’s friend had brought two bags of cocaine into the apartment and placed the drugs inside a shoe box in a bedroom while she took a bath. An hour later, police (who were tipped off by a confidential informant) charged the friend with possession of cocaine with intent to distribute. Eviction paperwork was filed against Green.
Citing the strategy as a “key to success,” HUD officials urged housing authorities to use the one-strike rule in order to find a solution to drug-related crime. In New Orleans, as elsewhere, grandmothers were kicked out of their homes because of a grandson who had brought drugs into their apartments without their knowledge. Parents faced evictions because an elementary-aged child stole a backpack at school.
It didn’t matter if someone had served their time in prison or had successfully completed their probation. Grown children with felony records were stopped on complex grounds and told that they couldn’t visit their mothers’ apartments. Adding a grown child with a felony record or a spouse returning from prison onto an official lease was out of the question.
Today though, the tide is turning. It is difficult to tell what the legacy of public housing’s one-strike era will be. “The effect of the one-strike rule on crime was never evaluated, so there is no evidence one way or another as to whether it reduced drug trafficking or violent crime,” says Urban Institute researcher Susan Popkin, whose 2000 book, The Hidden War: Crime and the Tragedy of Public Housing in Chicago, looked at crime within the Windy City’s public housing system and the strategies that attempted to combat it.
Overall, Popkin noted that violent crime has declined over the past 15 years. Crime has also declined in public housing developments, she said, though public housing, on average, still has higher crime rates than other communities.
Others are less diplomatic about the one-strike rule. HUD Secretary Julián Castro summarized it in April as, “a harsh policy that likely did more harm than good.” Of course, housing authorities are still fully able to evict tenants when warranted, he says. “But we’re working to make sure that families who pose no risk to public safety aren’t unduly punished.”
Last year, many people told Russell that his son could secretly live with him “off-lease,” which had long been the only option available to returning prisoners.
Many housing authorities looked the other way at off-lease guests, at least some of them, says Popkin, who has interviewed public housing residents and written about related policies and impacts for nearly two decades. “Many housing authorities have, in effect, been practicing ‘don’t ask, don’t tell’ and only enforcing their criminal justice record bans when a household was creating problems,” Popkin says. “That meant that residents could not rely on knowing whether or not their family members could stay. It created a disincentive to try and put them on the lease.”
Allowing those “shadow renters” to be on public housing leases would allow housing authorities to more accurately understand who is living in their apartments, says Tran-Leung. Plus, she adds, off-lease arrangements are “stressful for everyone—the person who has to be hidden, the person whose name is on the lease and could lose the unit if caught. It just makes for a toxic environment.”
Russell didn’t want to hide what he was doing. He allowed his son to use his address as the stable, “permanent” address required by the parole office, though many families fear that they would lose their assistance if they officially vouch that anyone, much less a felon, lived with them off-lease.
Still, adding a person to a household’s voucher can be a byzantine process, at best. Russell started the process by making an appointment with his assigned case manager, which most voucher holders refer to as their “worker.”
“Talking to the worker about it was like talking to the wall,” says Russell, who pulled out all the stops. “I tried explaining, charming, conning, I did all that . . . Still I heard, ‘no.’ My answers were not sufficient to her.”
Now that HUD has officially approved HANO’s new policy, Russell hopes that he will have better success. He also hopes other cities implement more humane screening policies, as a long-overdue way to undo harms done in the past, when families were often separated by housing authority bans.
Popkin agrees. “The hardline policies of the past 15 years have meant that many young men were banned from living with their families. That made it difficult for fathers returning from jail or prison to maintain relationships with their children,” she says, noting that it’s now becoming clear that the bans went too far. “There has been growing recognition of the social cost of these policies, including pushing young men into homelessness, or couch-surfing, and instability.”
In fact, one of the biggest local supporters of HANO’s policy comes from the law-and-order side of things. “I was so relieved when this thing passed,” says Frank Palestina, who recently retired from his position as head of the New Orleans district probation and parole office.
Palestina had long seen people under his supervision struggle with the Housing Authority’s wholesale bans on people with criminal records. “I’d say, ‘so your mother is the most stable person in your life and you can’t live with her? And your grandmother says she wants to take you in, but she’s afraid she’ll lose her housing?’” It was really hard for Palestina and his colleagues to see recently released people try to do the right thing, only to have to move from house to house so they wouldn’t get their family members in trouble. In fact, not having a stable address can in itself be a parole violation.
Palestina understands recidivism and its dangers—his office relied on risk assessments to determine how much supervision each person needed. But he believes that the interest of public safety wasn’t always served by policies that sometimes kept people away from their best support network and left them without stable addresses. “How can I help you if I can’t even find you?” Palestina asks.
Tackling Racial Discrimination
Though the policy is game changing in many ways, one of its gaps is that landlords who participate in the Housing Choice (formerly Section 8) voucher program are not subject to the new procedure. Before the federal levees flooded the city in 2005 due to Hurricane Katrina, there were several thousand more public housing apartments in New Orleans. There are 4,000 them that have been rebuilt in mixed-income communities run by third-party property managers, and they became subject to the new screening process at the last minute, thanks to pressure applied by advocates. But most of HANO-assisted renters— roughly 16,000 out of 20,000— get help renting apartments on the private market through vouchers, which are not covered.
Though HANO-assisted voucher holders can now add household members with criminal records to the actual vouchers, the new policy includes a line exempting landlords from having to accept the voucher: “Landlords on the Housing Choice Voucher Program are still able to conduct their own review process prior to renting a unit to a particular voucher holder.”
The Greater New Orleans Fair Housing Action Center found last year that when policies were unwritten or entirely up to the landlord’s discretion, private landlords discriminated against black testers 55 percent of the time. In some cases, landlords told white testers that they wouldn’t even bother to run a background check on them.
For those applying to HANO’s public housing or mixed-income properties, that sort of wild discretion has largely been eliminated by the Screening Criteria Grid and the panel process, says Hill. As HANO implements its policy, Hill and her colleagues will be “on the lookout to make sure that third-party managers aren’t putting the grid aside and simply evaluating each tenant on a case-by-case basis.
“We know that when policies are too discretionary or allow for too much subjective determination, that leads to racial discrimination,” Hill says. “Discretion very often leads to denial for people of color.”
Yet even private landlords who are not deliberately discriminating on the basis of race must be careful not to automatically disqualify tenants who have any sort of criminal record. Because the vast majority of people who go through the criminal justice system in the U.S. are black, HUD released guidance in April, warning private and public landlords that blanket bans on people with criminal records violate the Fair Housing Act, which prohibits discriminatory policies, even if they’re unintentional.
After describing how much more likely black and Latino people were to be stopped by police, Castro emphasized that those disparities should not bleed into the housing market. “When landlords summarily refuse to rent to anyone who has an arrest record, they may effectively and disproportionately bar the door to millions of folks of color for no good reason at all. It is wrong and it has to end,” he said.
Bryan Greene, HUD’s deputy assistant secretary for fair housing and equal opportunity, says the agency released the guidance in response to questions from landlords about when criminal records checks could expose them to litigation. The guidance instructs landlords, both public and private, to tailor their screening practices to what really matters. “You’d better be ready to explain how it’s necessary for the rental,” Greene says.
He predicts that criminal records screenings may become less of a hot-button issue in the future, as people become accustomed to revised screening procedures like HANO’s and similarly reasonable policies set by private landlords. “If other people are able to rent successfully to people with criminal records,” Greene says, “those who rigidly exclude will have a harder time defending that practice,” Greene says.
Katy Reckdahl is a New Orleans-based news reporter who has written for The Times-Picayune, The New York Times, The Daily Beast, and the Christian Science Monitor.