On November 2, 2015, HUD issued Notice H 2015-10, Guidance for Public Housing Agencies (PHAs) and Owners of Federally-Assisted Housing on Excluding the Use of Arrest Records in Housing Decisions.
The purpose of this Notice is to inform PHAs and owners of other federally assisted housing that arrest records may not be the basis for denying admission, terminating assistance or evicting tenants. The Notice also makes it clear that HUD does not require use of “One Strike” policies and that the due process rights of applicants and tenants must be safeguarded.
“One Strike” Policies
In most cases, PHAs and owners have discretion whether or not to deny admission to an applicant with certain types of criminal history, or terminate assistance or evict a household if a tenant, household member, or guest engages in certain drug-related or certain other criminal activity on or off the premises (in the case of public housing) or on or near the premises (in the case of Section 8 Programs).
PHAs and owners may consider all of the circumstances relevant to the particular admission or eviction decision, including but not limited to:
- The seriousness of the offending action;
- The effect that eviction of the entire household would have on family members not involved in the criminal activity; and
- The extent to which the leaseholder has taken all reasonable steps to prevent or mitigate the criminal activity.
When specifically considering whether to deny admission or terminate assistance or tenancy for 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 drug rehabilitation program, or has otherwise been rehabilitated successfully.
An Arrest is Not Evidence of Criminal Activity that Can Support an Adverse Admission, Termination, or Eviction Decision
Before a PHA or owner denies admission to, terminates the assistance of, or evicts an individual or household on the basis of criminal activity by a household member or guest, it must be determined that the relevant individual engaged in such activity.
The fact that an individual was arrested is not evidence that he or she has engaged in criminal activity. Accordingly, the fact that there has been an arrest for a crime is not a basis for the requisite determination that the relevant individual engaged in criminal activity warranting denial of housing.
United Stated Department of Justice statistics show that in the 75 largest counties in the country, approximately 1/3 of felony arrests did not result in conviction, with about 25% of all cases ending in dismissal. Also, arrest records are often inaccurate or incomplete.
The Notice requires that termination of assistance for criminal activity be based on a “preponderance of the evidence” that the tenant, other household member, or guest engaged in such activity. When PHAs or owners seek eviction, they should be prepared to persuade a court that the eviction is justified based on sufficient evidence of criminal activity in violation of the lease.
While an arrest record may not be used to deny housing, PHAs and owners may make an adverse housing decision based on the conduct underlying an arrest if the conduct indicates that the individual is not suitable for tenancy and the PHA or owner has sufficient evidence other than just the arrest. The conduct, not the arrest, is what is relevant for admissions and tenancy decisions.
An arrest record may trigger an inquiry into whether there is sufficient evidence for a PHA or owner to determine that a person engaged in disqualifying criminal activity. Information such as police reports detailing the circumstances of the arrest, witness statements, etc. may be adequate to make a negative housing decision. Evidence of a conviction for criminal conduct may also be the basis for determining that the disqualifying conduct did in fact occur.
Best Practices & Peer Examples
The Notice provides suggested best practices and examples of current policies that may be acceptable. Some of those examples are:
- Adopting written policies that limit criminal record screening to assessments of conviction records;
- Allow applicants to address and present mitigating circumstances regarding criminal backgrounds prior to admission decisions;
- Adopt look back periods that limit what criminal conduct is considered during the screening process based on when the conduct occurred and/or the type of conduct;
- Adopt admission policies that specify the factors that will be considered when evaluating an individual’s criminal record, including:
- Whether the offense bears a relationship to the safety and security of other residents;
- The level of violence, if any, of the offense for which the applicant was convicted;
- Length of time since the conviction;
- The number of convictions that appear on the applicant’s criminal history;
- If the applicant is now in recovery for an addiction, whether the applicant was under the influence of alcohol or illegal drugs at the time of the offense; and
- Any rehabilitation efforts that the applicant has undertaken since the time of conviction.
This Notice is now in effect, and will remain in effect until amended, superseded, or rescinded. PHAs and owners of federally-assisted properties must not have any criminal screening policy that uses arrest records as a determining factor in a housing decision. If PHAs or owners have such policies, they should be amended immediately to conform to the requirements of the Notice.