NO SECOND CHANCE
People with Criminal Records
Denied Access to Public Housing

Human Rights Watch

Copyright © 2004 by Human Rights Watch.
All rights reserved.
Printed in the United States of America
ISBN: 1564323285
Cover photo: © 2004 Corinne Carey
Cover design by Rafael Jimenez

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The staff includes Kenneth Roth, Executive Director; Allison Adoradio, Operations
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You deserve a chance, no matter what you did. . . . It's done and over with, it’s in the past. I’m tryin’
to do the right thing; I deserve a chance. Even if I was the worst criminal, I deserve a chance.
Everybody deserves a chance.
—P.C., a forty-one-year-old African American mother denied housing because of a
single arrest four years prior to her application. She was not convicted of the offense.
What you want is a way for housing projects to be safe. Some restrictions based on real safety make all
the sense in the world, but you want those restrictions to be reasonable, and you want people to be able to
earn their way back in.
—JoAnne Page, Executive Director, Fortune Society, interviewed by Human Rights
Watch on March 2, 2004.

Acknowledgements
Corinne Carey, researcher with the U.S. Program of Human Rights Watch, is the author
of this report. It is based primarily on research she conducted from 2003 to 2004. The
report was edited by Jamie Fellner, U.S. Program director, Dinah PoKempner, general
counsel, and Joseph Saunders, program director. Widney Brown provided additional
legal advice. Miranda Johnson’s research assistance was meticulous and thorough, and
Alison Parker, Rebecca Schleifer, Jonathan Cohen, and Paul Jacobs were particularly
helpful throughout the research and writing of this report. Paul Jacobs, Keramet Reiter,
Andrea Holley, and Fitzroy Hepkins provided production assistance.
Human Rights Watch gratefully acknowledges the many contributions of the following
individuals to our understanding of public housing, homelessness, reentry, and the
nature and impact of criminal record exclusions: Catherine Albisa of the National
Economic and Social Rights Initiative, Patricia Allard of the Brennan Center, Philip
Alston of New York University, Allen Beck of the Bureau of Justice Statistics, Luciano
Colonna of the Harm Reduction Project in Salt Lake City, Utah, Jennifer Flynn and
Shirlene Cooper of the New York City AIDS Housing Network, Maria Foscarinis of the
National Law Center on Homelessness & Poverty, Kelli Dunn Howard of Texas
RioGrande Legal Services, Carolyn Johnson of the Homeless Persons Representation
Project in Baltimore, Maryland, Malcolm Langford and Mayra Gomez of the Center on
Housing Rights and Evictions, Debbie Mukamal of the National H.I.R.E. Project at the
Legal Action Center, JoAnne Page of the Fortune Society, and Dorothy Thomas,
independent consultant.
We extend sincere gratitude as well to the local public housing officials, and the
hundreds of homeless people, former prisoners, and their advocates who agreed to be
interviewed for this report, and we regret that we cannot mention all of them by name.
We are grateful to the JEHT Foundation for providing the funding for this report and
for the good counsel given by Scott Bane during its development. Human Rights Watch
also thanks the Open Society Institute and Peter B. Lewis for their generous support of
our U.S. program.

Table of Contents

I. Summary ..................................................................................................................................... 1
Methodology.............................................................................................................................. 5
II. Recommendations ................................................................................................................... 6
To the U.S. Congress ............................................................................................................... 6
To the U.S. Department of Housing and Urban Development........................................ 6
To Public Housing Authorities............................................................................................... 7
To Publicly-Funded Legal Services Organizations .............................................................. 8
To the United Nations ............................................................................................................. 8
III. Background ............................................................................................................................. 9
Mass Incarceration Policies ..................................................................................................... 9
Lack of Affordable Housing ................................................................................................. 11
Barriers to Reentry and Housing .......................................................................................... 15
“Deserving” Tenants.............................................................................................................. 19
IV. The Right to Adequate Housing ........................................................................................ 22
V. Federal “One Strike” Legislation......................................................................................... 28
How Many Are Excluded? .................................................................................................... 31
VI. Public Safety.......................................................................................................................... 35
Homelessness: A Downward Spiral ....................................................................................40
No Home, No Family........................................................................................................42
VII. Exclusions Based on Local Policies................................................................................. 44
Arrests as Basis for Exclusion............................................................................................... 44
One Mother’s Struggle for Housing......................................................................................45
Minor, Non-Violent Offenses .............................................................................................. 46
The Consequences of Forging a Check .................................................................................49
Excluding People with Criminal Records for Excessive Periods of Time..................... 50
Discretionary Exclusion Periods..........................................................................................51
Whose Problem Is It?..........................................................................................................52
Paying the Price .................................................................................................................. 53
Lack of Individualized Review.............................................................................................. 54
What’s the Use in Appealing? ............................................................................................56
Challenging Automatic Exclusionary Criteria .................................................................... 59
VIII. Legislatively Mandated Categories of Exclusion from Public Housing ................... 62
Denials Based on Evidence of Drug Use............................................................................ 62
“Sex Offenders”...................................................................................................................... 66
Shamed to Death ................................................................................................................69
Methamphetamine Manufacturers ....................................................................................... 69

IX. Screening People Out: “Felons Need Not Apply” ......................................................... 71
The Screening Process ........................................................................................................... 73
The Cost of a Criminal Background Check ................................................................... 74
Less than Reliable Criminal Background Information ................................................. 75
The Cost of Making a Mistake on a Housing Application........................................... 76
“A Criminal for the Rest of My Life?”...............................................................................78
X. Arbitrary Denials and Discrimination................................................................................. 80
Arbitrary Exclusions............................................................................................................... 80
Discrimination......................................................................................................................... 81
Racial Disparities in the Criminal Justice System ................................................................84
XI. Limited Right to Redress..................................................................................................... 86
Lack of Representation .......................................................................................................... 86
Lack of Information from PHAs ......................................................................................... 90
Inadequate Time to Appeal................................................................................................... 91
Giving Up................................................................................................................................. 92
Too Many Denials..............................................................................................................93
Too Little, Too Late...........................................................................................................94
An Ineffective Process ........................................................................................................... 94
Failure to Consider Mitigation or Rehabilitation........................................................... 94
No Opportunity to Challenge a Denial........................................................................... 98
Access to the Courts .......................................................................................................... 99
No Record on Appeal........................................................................................................ 99
XII. Conclusion .........................................................................................................................101

I. Summary
Decent and stable housing is essential for human survival and dignity, a principle
affirmed both in U.S. policy and international human rights law. The United States
provides federally subsidized housing to millions of low-income people who could not
otherwise afford homes on their own. U.S. policies, however, exclude countless needy
people with criminal records, condemning them to homelessness or transient living.
Exclusions based on criminal records ostensibly protect existing tenants. There is no
doubt that some prior offenders still pose a risk and may be unsuitable neighbors in
many of the presently-available public housing facilities. But U.S. housing policies are so
arbitrary, overbroad, and unnecessarily harsh that they exclude even people who have
turned their lives around and remain law-abiding, as well as others who may never have
presented any risk in the first place.
There is no national data on the number of people excluded from public housing
because of criminal records, or even the number of people with criminal records who
would be ineligible if they applied. But we know that there are several million ex-felons
in the United States; under current housing policies, everyone convicted of a felony is
automatically ineligible for a minimum of five years. We also know that there are tens of
millions of Americans who have been convicted of misdemeanors, or merely arrested
but never convicted of any offense, and they too can be and often are excluded from
public housing on the basis of their criminal records.
Under existing policies, criminal records will shadow people for the rest of their lives.
Even an arrest that is not followed by conviction can have a lifelong impact. Whether
the offense is a violent crime or a low-level drug or property offense—and even most
felonies do not involve violence against persons—a criminal record can be a barrier to
employment, education, the right to vote, and certain public benefits, including public
housing.
The tenuous relationship between public housing restrictions and legitimate safety goals
is exemplified by policies that, for example, automatically deny housing to a person
convicted of a single shoplifting offense four years earlier, or to someone convicted of
simple possession of marijuana ten years earlier. Denying these people a home does
little to promote the welfare of existing tenants. But it can cause homelessness or
transient living for those excluded—and it can be counterproductive for community
safety, as it is difficult to be law-abiding while living on the streets.

1

SUMMARY

In addition to the explicit goal of protecting tenant safety, there seem to be at least two
other reasons for criminal record exclusions in public housing. The first is a widespread
belief in the United States that people who have broken the law do not deserve a second
chance and are the legitimate target of policies that are little more than expressions of
disdain and hostility. Such a punitive view ignores the right of all people to a life with
dignity and should have no place in housing policy.
The second reason is that the demand for public housing far exceeds the supply.
Neither the federal nor state governments have taken upon themselves the goal of
dramatically increasing the availability of affordable housing. Instead, by requiring strict
admissions policies, the federal government has tacitly adopted a method of “triage” to
whittle down the numbers of qualified applicants. Excluding those with criminal records
has proven to be a politically cost-free way to entirely cut out a large group of people
from the pool of those seeking housing assistance.
Exclusions from public housing are among the harshest of a range of punitive laws that
burden people with criminal records. Nevertheless, to date they have received scant
attention from policymakers, elected officials, advocates for the poor, and the public at
large.
There is, however, growing recognition nationwide of the wisdom of providing
transitional services and assistance to help over half a million men and women who leave
prison each year. Indeed, as President Bush pointed out in his 2004 State of the Union
address, such services are crucial if these former prisoners are to successfully navigate
their reentry to life outside prison walls. An overwhelming majority of those who are
incarcerated were poor when they were arrested, and they will return to their
communities with fewer resources and more needs than when they left.
The Bush administration and Congress have endorsed the concept of providing
transitional housing to at least some former prisoners, but transitional housing is, by
definition, temporary. Policymakers to date have failed to recognize the devastating
impact of public housing exclusionary policies that outlast the transition period.
As long as those policies remain unchanged, former prisoners, as well as people with
criminal records who were never sent to prison, will find themselves condemned to
living on the streets, in overcrowded shelters, in squalid transient motels, or crowded
into in the homes of friends and relatives.

NO SECOND CHANCE

2

* * *
The exclusion of people with criminal records from public housing is often referred to
as the “one strike” policy. This policy developed in the 1990s as an attempt to address
drug trafficking, violent crime, and disorder in public housing, especially urban high-rise
developments. In 1996, President Bill Clinton declared: “The rule in public housing
should be one strike and you’re out.”1 That is, commission of one offense suffices to
render a person ineligible to be admitted to or remain in public housing. Congress
subsequently incorporated the “one strike” policy into federal housing law. Today,
federal law requires public housing authorities (PHAs), the agencies that administer
housing assistance and manage public housing property, to exclude people with certain
types of criminal records and gives them broad discretion to deny admission to others.
Federal law bans outright three categories of people from admission to public housing:
those who have been convicted of methamphetamine production on the premises of
federally funded housing, who are banned for life; those subject to lifetime registration
requirements under state sex offender registration programs; and people who are
currently using illegal drugs, regardless of whether they have been convicted of any drugrelated offense.
PHAs have the discretion to deny admission to three additional categories of applicants:
(1) those who have been evicted from public housing because of drug-related criminal
activity for a period of three years following eviction; (2) those who have in the past
engaged in a pattern of disruptive alcohol consumption or illegal drug use, regardless of
how long ago such conduct occurred; and, (3) the catch-all category of those who have
engaged in any drug-related criminal activity, any violent criminal activity, or any other
criminal activity, if the PHA deems them a safety risk. Our research indicates that, in
practice, these discretionary categories are used to exclude a wide swath of people with
criminal records without any reasonable basis to believe they may actually pose a risk.
Federal regulations advise PHAs to take into consideration in their admissions decisions
the nature and remoteness of applicants’ offenses, as well as mitigating factors and
evidence of rehabilitation. But they do not require PHAs to do any individualized
evaluations of whether or not a specific applicant is likely to pose a risk to the safety of
existing public housing residents—and few of them provide a meaningful evaluation
before issuing a rejection. Nor does the Department of Housing and Urban

1

President Bill Clinton, “State of the Union Address,” January 23, 1996, available online at: http://www.cspan.org/executive/stateoftheunion.asp, accessed on June 17, 2004.

3

SUMMARY

Development (HUD)—the federal agency that administers housing programs—review
admissions criteria established by the PHAs to determine if, on their face, they are
consistent with federal housing policy and goals.
Most PHAs automatically deny eligibility to an applicant with a criminal record without
considering rehabilitation or mitigation. Consideration of those factors typically occurs
only if and when an applicant for housing seeks administrative review of a denial of
eligibility. Those who have lawyers often win such appeals. But many applicants for
public housing are unable to secure representation, and are therefore unable to
successfully challenge denials.
* * *
In a country with the wealth of the United States, the fundamental human right to
housing is surely not satisfied when an estimated 3 million people are homeless in any
given year, including many who have been excluded from federally subsidized housing.
This report, however, does not address the broader problem of homelessness in the
United States, but assesses public housing exclusionary policies against human rights
standards. Our research demonstrates that these policies are arbitrary and unreasonably
overbroad. By singling out whole classes of people for exclusion—in some cases by law;
in others, by overly rigid application of screening criteria—these policies violate the
rights of individuals who do not actually pose a risk but who are nonetheless denied
access to public housing facilities. Such exclusionary policies are also discriminatory.
Racial and ethnic minorities suffer disproportionately from exclusionary housing policies
because of their overrepresentation among those who experience arrest and prosecution,
those who currently live in poverty, and those who seek public housing. Human Rights
Watch is not aware of any other country that deprives people of the right to housing
because of their criminal histories.
The United States should abandon “one strike” policies, reject all automatic federal
exclusions, and prohibit local housing authorities from establishing their own. PHAs
should be required to undertake individualized and meaningful assessments of each
applicant to ascertain whether they pose a risk to the safety, health, and welfare of
existing tenants. The United States must recognize that all its residents—even those
who may not be appropriate for traditional public housing because of the risks they
pose—have a right to decent and affordable housing.

NO SECOND CHANCE

4

Methodology
There are some four thousand PHAs in the United States providing federal housing
assistance. To undertake this report within a reasonable timeframe, Human Rights
Watch gathered information from forty-two PHAs, diverse in terms of geographic
location, urban or rural base, and size. From February 2003 to February 2004, Human
Rights Watch visited seventeen housing authorities in fifteen cities and collected
information from an additional twenty-five about their policies and practices with regard
to applicants with criminal histories.2
In addition to collecting copies of admissions, “one strike,” and appeal policies, and
meeting with key staff from each of the PHAs we visited, HRW met with and
interviewed over one hundred applicants who had been denied admission, hundreds of
homeless people with criminal records, and scores of social service providers, homeless
outreach and shelter workers, probation and parole officers, and housing, criminal
justice, and prisoner reentry advocates working locally and nationally.
During the course of the research, HUD officials repeatedly refused our written requests
to meet with them to discuss public housing admissions policies and practices.

2

Human Rights Watch contacted nearly fifty housing authorities to request copies of their policies and request
meetings with key staff. Only two PHAs flatly refused to meet with Human Rights Watch. The Housing
Authority of Baltimore City, which has been under threat of litigation for its blanket exclusionary admissions
practices, declined to meet with Human Rights Watch to discuss its policies. And the executive director of the
Jasper Housing Authority, a small housing authority in rural Alabama, refused to meet with HRW to clarify her
statement with regard to the housing authority's admissions policy: “We are very strict. We do what we have to
and we don’t care who likes it. . . . We are probably stricter than what our policy says.” Human Rights Watch
telephone interview with Mavis B. Adams, executive director, Jasper Housing Authority, December 5, 2003.

5

SUMMARY

II. Recommendations
The extent of homelessness and barriers to prisoner reentry are vast social problems,
and Human Rights Watch believes that the U.S. must do far more to address them. Our
recommendations, however, focus on the narrow question of the exclusion of people
with criminal records from federally-assisted housing. If implemented, these
recommendations would allow PHAs to pursue the goal of safe housing without
excluding those who pose no risk. Such careful evaluations would afford people with
criminal records a second chance.

To the U.S. Congress
♦

Repeal federal laws that impose outright bans on public housing for certain
types of offenders.

♦

Pass federal legislation that requires PHAs to conduct an individualized
evaluation of each applicant with a criminal record before making a decision
on the application.

♦

Ratify the International Covenant on Economic, Social and Cultural Rights
(ICESCR) and acknowledge the right of all residents of the United States to
adequate housing that is decent, safe, and affordable.

To the U.S. Department of Housing and Urban Development
♦

Adopt policies that require individualized consideration of each applicant
with a criminal record, prior to making a decision on an application, to
determine whether he or she will pose a risk to existing housing tenants.
Require the following factors be included in the consideration: (1) evidence
of rehabilitation, either during incarceration or in the community; (2) the
effect of denial on minor children and efforts to reunify families; and (3)
whether denial will render the applicant homeless.

♦

Require PHAs to adopt admissions policies that ensure:
¾ criminal records that are more than ten years old do not prevent
admission, absent extraordinary circumstances;
¾ offenses upon which denials are based are relevant to being a good
tenant; and
¾ absent a pattern of continuing arrests, consideration of a criminal record
is limited to convictions.

NO SECOND CHANCE

6

♦

Monitor denials of public housing to ensure that they are not arbitrary, that
they are based on reasonable and individualized determinations of risk, and
that they do not have a disproportionate and unjustifiable impact on
applicants from racial and ethnic minorities.

♦

Require PHAs to compile and make public on an annual basis the number
of applications made for public housing, the number of applicants denied
because of negative criminal history information, the number of those
denied who appeal, and the number of those challenging their denials who
prevail following administrative hearings.

♦

Conduct expert and ongoing evaluations of whether policies excluding
people with criminal records from public housing have an effect on crime
patterns, public safety, and quality of life in public housing.

♦

Provide guidance and training to PHAs about how to conduct individualized
evaluations of applications for housing assistance.

♦

Research the feasibility and design of expanded alternative housing
programs for people with criminal records who cannot be accommodated in
existing public housing models because of their criminal histories.

To Public Housing Authorities
♦

Adopt policies that require individualized consideration of each applicant
with a criminal record, prior to making a decision on an application, to
determine whether he or she will pose a risk to existing housing tenants.
Ensure that the following factors be included in the consideration: (1)
evidence of rehabilitation, either during incarceration or in the community;
(2) the effect of denial on minor children and efforts to reunify families; and
(3) whether denial will render the applicant homeless.

♦

Adopt criminal record admissions screening polices that consider:
¾ only criminal records that are less than ten years old, absent
extraordinary circumstances;
¾ only those offenses that are relevant to being a good tenant; and
¾ only convictions, absent a pattern of continuing arrests.

♦

Provide an administrative appeal process for those deemed ineligible for
public housing that ensures the full range of due process rights including:
adequate notice of the reason for denial; the opportunity to appear with
representation, to question witnesses and present evidence and testimony; a
written and publicly-available decision setting forth reasons for the

7

RECOMMENDATIONS

administrative decision; and a meaningful opportunity to appeal the
administrative decision to a court of law.
♦

Advise applicants who are denied eligibility for public housing of the
availability of local legal assistance to represent them should they choose to
challenge their denials.

♦

Ensure that applicant criminal records are obtained from a reliable source.

To Publicly-Funded Legal Services Organizations
♦

Reconsider any policy or practice against providing legal assistance to
applicants who are denied admission to public housing and train attorneys,
paralegals, and law students to represent applicants in administrative
hearings.

♦

Monitor local PHA policies and practices to determine whether they violate
federal law or policy.

♦

Conduct outreach to ensure that applicants understand their right to apply
for public housing, to challenge their denials in administrative proceedings,
and to appeal adverse administrative decisions to courts of law.

To the United Nations
♦

The Committee on Economic Social and Cultural Rights should issue a
comment on the human rights dimensions of government-assisted housing,
with particular attention to arbitrary criteria used to determine eligibility for
assistance and to whether denials of assistance result in outright
homelessness.

♦

The U.N. Special Rapporteur on the Right to Adequate Housing should
report on the United States’ denial of housing assistance to individuals
because of their criminal histories.

NO SECOND CHANCE

8

III. Background
The exclusion of people with certain criminal records from public housing and
the massive impact of that exclusion reflects the intersection of two discrete
public policies in the U.S.—public housing policy and criminal justice policy. In
concert they operate to exclude those with criminal records from housing
designed to meet the needs of those unable to afford housing on their own.
Ineligibility for public housing is just one of many “collateral consequences” or
forms of “invisible punishment” that continue to affect people with criminal
records long after they have completed any sentence they received for their
offense.

Mass Incarceration Policies
The number of people potentially affected by criminal record exclusions from
public housing is enormous. Since the 1970s, harsh sentencing laws and
stepped-up law enforcement for even minor nonviolent offenses have led to a
stunning and historically unprecedented increase in the number of U.S. residents
who have been arrested, prosecuted, and incarcerated.
According to Federal Bureau of Investigations (FBI) statistics, 13.7 million
people were arrested in 2002 for criminal infractions.3 Nearly 925,000
Americans were convicted of felony offenses in the nation’s courts in the most
recent year for which data is available, and some 600,000 were incarcerated as a
result.4 Nearly 6.9 million adult men and women were either incarcerated or on
probation or parole by the end of 2003.5

3

Federal Bureau of Investigations (FBI), Uniform Crime Reports, Crimes in the United States, 2002,
table 29, p. 234, available online at: http://www.fbi.gov/ucr/cius_02/pdf/4sectionfour.pdf, accessed on
April 8, 2004. This number excludes those charged with mere traffic violations. According to the
Bureau of Justice Statistics (BJS), there are approximately 64,282,700 state criminal history records,
and approximately 48,233,583 FBI records (29,083,532 reported by states, an additional 19,150,051
reported by federal law enforcement). U.S. Department of Justice, Office of Justice Programs, BJS,
Survey of State Criminal History Information Systems, 2001: A Criminal Justice Information Policy
Report (August 2003), available online at: http://www.ojp.usdoj.gov/bjs/pub/pdf/sschis01.pdf,
accessed on April 8, 2004. The total number of individuals who have criminal records is unknown,
however, because there is no way to account for those who may have a criminal record in more than
one state.
4

BJS, Crime, available online at: http://www.ojp.usdoj.gov/bjs/glance.htm#Crime, accessed on April
1, 2004.

5

BJS, Probation and Parole in the United States, 2003, available online at:
http://www.ojp.usdoj.gov/bjs/abstract/ppus03.htm, accessed on July 28, 2004. Over two million adult
men and women were serving jail or prison sentences, and over 4.8 million adult men and women

9

BACKGROUND

With over thirteen million ex-felons—6.5 percent of the entire adult
population6— “America has become a nation of ex-cons.”7 The federal Bureau
of Justice Statistics (BJS) predicts that “[i]f rates of first incarceration and
mortality in 2001 remain unchanged, nearly 1 in 15 persons born in 2001 will go
to State or Federal prison during their lifetimes.”8
These stunning numbers are less a reflection of rates of serious crime in the
United States than they are of “tough on crime” sentencing policies that have
emphasized harsh punitive policies—mandatory prison sentencing and three
strikes policies, for example—for even low level and nonviolent crimes.9 Arrest
rates also reflect the U.S. “war on drugs” which results in over 1.5 million arrests
per year, over 80 percent for simple possession.10
Arrests, convictions, and incarceration differ sharply among socio-economic
sectors and racial groups in the United States. The vast majority of those in the
criminal justice system were either impoverished or among the working poor at
the time of their arrest.11 And racial and ethnic minorities are disproportionately
represented among those arrested, convicted, and incarcerated. (See the box
entitled “Racial Disparities in the Criminal Justice System” under the
“Discrimination” section of Chapter X.)

were under federal, state or local probation or parole at the end of 2003. There were 4,073,987
American adults on probation and 774,588 on parole as of December 31, 2003.
6

Joan Petersilia, When Prisoners Come Home: Parole and Prisoner Reentry (New York: Oxford
University Press, 2003), p. 10.
7

Jennifer Gonnerman, Life on the Outside: The Prison Odyssey of Elaine Bartlett (New York: Farrar
Straus Giroux, 2004).
8

BJS, Prevalence of Imprisonment in the U.S. Population, 1974-2001 (August 2003), p. 7, available
online at: http://www.ojp.usdoj.gov/bjs/abstract/piusp01.htm, accessed on June 17, 2004. BJS
estimates that one in seventeen white males, one in six Hispanic males, and one in three Black males
will go to prison within their lifetimes. Ibid., p. 1.
9

See Marc Mauer, Race to Incarcerate (New York: The New Press, 1999). Twenty-four percent of
those currently serving sentences in U.S. jails or prisons have been convicted of drug offenses, and
18 percent have been convicted of property offenses. U.S. Department of Justice, Office of Justice
Programs, BJS, Prison and Jail Inmates at Midyear 2003 (May 2004), table 15, p. 10 and table 18, p.
11, available online at: http://www.ojp.usdoj.gov/bjs/abstract/pjim03.htm, accessed on July 6, 2004.

10

The number of arrests for drug abuse violations far exceeded the number of arrests for any other
single offense in 2002, and 80.3 percent of all drug-related arrests were for simple possession.
Federal Bureau of Investigation, Uniform Crime Reports, tables 28 & 29, p. 234; table 28.

11

U.S. Department of Labor, Bureau of Labor Statistics (BLS), A Profile of the Working Poor, 2000
(March 2002), available online at: http://www.bls.gov/cps/cpswp2000.htm, accessed on June 17,
2004.

NO SECOND CHANCE

10

Lack of Affordable Housing
The United States has long recognized the importance of housing to the
standard of living of its people. The United States Housing Act of 1937
affirmed as national policy:
the goal of providing decent and affordable housing for all
citizens through the efforts and encouragement of Federal, State
and local government, and by the independent and collective
actions of private citizens, organizations, and the private
sector.12
The U.S. Congress reiterated this commitment to housing in the 1990 CranstonGonzalez National Affordable Housing Act which states, “The objective of
national housing policy shall be to reaffirm the long-established national
commitment to decent, safe, and sanitary housing for every American.”13
Today the United States provides a wide variety of housing programs from loans
to first-time homebuyers and subsidies and tax credits for homeowners and
housing developers, to supportive housing for the elderly and disabled and direct
provision of housing to Americans unable to compete for housing in the private
market.14 It administers a vast system of public housing15 for Americans with
12

United States Housing Act of 1937, 42 U.S.C. 1437(a), et seq.

13

Pub. L. No. 101-625, 104 Stat. 4079 (1990).

14

Meeting Our Nation’s Housing Challenges, Report of the Bipartisan Millennial Housing
Commission, Appointed by the Congress of the United States, Pursuant to Section 206(b) of Public
Law 106-74, as Amended (Washington, D.C.) May 30, 2002, Appendix 3 (MHC Report).

15

We use the term public housing to refer to the two largest housing programs administered by
HUD—conventional public housing and Section 8, or the Housing Choice Voucher program. Human
Rights Watch examined exclusionary policies that apply to these two forms of assistance, because
project-based public housing and direct rental assistance in the form of housing vouchers serve far
more poor people than all other government programs combined (MHC Report, Appendix 3, p. 106,
109, 114, 115). Different eligibility criteria apply to other federal housing programs, but we did not
include them in our study. Conventional public housing was established to provide decent and safe
rental housing—from scattered single family homes to high rise apartments—for eligible low-income
families, the elderly, and persons with disabilities. There are approximately 6.5 million Americans
living in public housing, managed by some 3,200 PHAs. Section 8, or the Housing Choice Voucher
program provides assistance to very low-income families, older adults, and people with disabilities in
the private market. Voucher holders are free to choose any housing that meets the program’s
requirements and are not limited to units located in subsidized housing projects. HUD provides
federal funding through vouchers to individuals PHAs, which in turn distribute the vouchers. Once a
family has found suitable housing, the owner agrees to rent under the program, and the PHA
approves the housing according to its health and safety standards, the PHA pays the housing subsidy
directly to the landlord. The family is responsible for covering the difference between the actual rent
charged by the landlord and the subsidy.

11

BACKGROUND

the lowest incomes that is supported by over $34 billion in federal funds16 and
managed by over four thousand local public housing authorities (PHAs).17
PHAs provide nearly 2.7 million units of affordable housing to over 6.5 million
Americans.18
Nevertheless, the United States has failed to ensure that the supply of affordable
housing is sufficient to meet the demand. Indeed, the U.S. currently faces an
affordable housing crisis. A growing number of Americans, including many
who work full-time, are unable to rent—much less own—their own homes in
the private market. At the same time, the federal administration has made deep
cuts in conventional public housing programs, and PHAs are struggling to retain
the number of housing vouchers and units that they currently administer.19
Requests for federally-assisted housing continue to increase,20 while the absolute
number of public housing units has declined.21
A recent report on American hunger and homelessness by the U.S. Conference
of Mayors estimates that only one-third of eligible low-income households are
16

Ethan Handelman, Recapitalization Advisors (January 2004), available online at:
http://www.recapadvisors.com/learn/hudapprops2004.html (citing Consolidated Appropriations Act,
2004, P.L. 108-199, Div. G, Title 2), accessed on October 18, 2004.
17

PHAs are agencies chartered by state governments that administer, on a local level, funding from
HUD and manage conventional public housing developments.

18

U.S. Department of Housing and Urban Development (HUD), A Picture of Subsidized Households
General Description of the Data and Bibliography, available online at:
http://www.huduser.org/datasets/assthsg/statedata98/descript.html#foot11, accessed on May 17,
2004.

19

“Bush Budget Contains 40 Percent Cut in the Nation's Principal Low-Income Housing Program by
2009,” U.S. Newswire, February 11, 2004. The most recent cuts may force some PHAs to eliminate
existing vouchers or raise the amount of rent contribution from tenants. “NAHRO: New HUD Voucher
Proposal Slashes Funding Levels for Affordable Housing,” U.S. Newswire, February 19, 2004 (“By
one estimate, approximately 250,000 families could lose services in FY 2005”); “HUD cuts place
financial strain on housing agencies,” Associated Press, May 24, 2004; Sherri Williams, “Federal
Housing-Voucher Cuts Could Put Thousands on Street,” The Columbus Dispatch, April 21, 2004.
The reduction in the absolute number of conventional public housing units has also been exacerbated
by the Hope VI Program, widely criticized for demolishing entire housing complexes and replacing
them with smaller numbers of units designed for “mixed income” populations. See, e.g., Sudhir Alladi
Venkatesh, The Robert Taylor Homes Relocation Study (Columbia University: Center for Urban
Research and Policy, September 2002) available online at:
http://www.sociology.columbia.edu/people/faculty/venkatesh/papers/robert_taylor.pdf, accessed on
August 6, 2004.
20

Eugene T. Lowe, United States Conference of Mayors, Sodexho Hunger and Homelessness
Survey: A Status Report on Hunger and Homelessness in America’s Cities, A 25-City Survey
(December 2003), p. 81, available online at: http://www.usmayors.org/uscm/hungersurvey/2002/
onlinereport/ HungerAndHomelessReport2002.pdf, accessed on August 6, 2004 (2003 U.S.
Conference of Mayors Survey).
21

MHC Report, Appendix 3, p. 106.

NO SECOND CHANCE

12

being served by current housing programs.22 Waiting lists maintained by
individual PHAs show hundreds of thousands of people seeking housing
assistance.23 According to HUD, applicants wait an average of one to two years,
and often much longer, for access to conventional public housing and the
voucher program.24 Despite its commitment to “End Homelessness in 10
Years” and its subsequent call for increased appropriations for homeless services
(which include such things as nightly shelter beds and social services), the federal
government has not met increases in homelessness and poverty with an increase
in the development of new units of subsidized housing.25
The latest census figures show that 35.9 million people, or 12.5 percent of the
American population, live at or below the official poverty level.26 According to
a 2003 National Low Income Housing Coalition (NLIHC) report, families with
extremely low incomes are unable to afford housing at fair market rates in
almost every U.S. jurisdiction.27 But it is not just the impoverished who cannot
afford housing in the private market; even the working poor are unable to pay
for adequate housing on their own. As one analyst has noted, “the working poor
have been left practically helpless, unable to get into the market and unserved by
underfunded federal and state housing programs.”28

22

2003 U.S. Conference of Mayors Survey, p. 87.

23

Human Rights Watch interviews with housing officials in Salt Lake City, Utah; Pittsburgh and
Williamsport, Pennsylvania; Los Angeles, New York, and Birmingham, Alabama.
24

HUD, Waiting in Vain: An Update on America’s Rental Housing Crisis (March 1999), summary
available online at: http://www.huduser.org/periodicals/rrr/rrr5_99art1.html, accessed on October 18,
2004. See also 2003 U.S. Conference of Mayors Survey, p. 84. Many PHAs have even closed their
waiting lists and stopped taking applications for Section 8 Housing.
25

President Bush made “ending chronic homelessness in the next decade a top objective” in his 2003
budget. Strategies for Reducing Chronic Street Homelessness Final Report, Prepared for the U. S.
Department of Housing and Urban Development Office of Policy Development and Research
(January 2004), p. 384. However, a New York Times editorial accused both Congress and the
administration of paying “lip service to the goal of ending chronic homelessness” and playing a “shell
game” of making up for cuts to the Section 8 program with funding for services for the homeless.
“Congress Plays the Housing Game,” New York Times, July 22, 2004.

26

U.S. Census Bureau, Income, Poverty, and Health Insurance Coverage in the United States: 2003
(August 2004), available online at: http://www.census.gov/prod/2004pubs/p60-226.pdf, accessed
October 25, 2004.
27

National Low Income Housing Coalition, Out of Reach 2003: America's Housing Wage Climbs,
available online at: http://www.nlihc.org/oor2003/, accessed on May 24, 2004 (NLIHC report).
28

David K. Shipler, The Working Poor: Invisible in America (New York: Alfred A. Knopf, 2004), p. 22829.

13

BACKGROUND

As the authors of the NLIHC report conclude:
Millions of American families [are] unable to afford safe and
decent rental housing. Wages have failed to keep pace with
rental costs, rental costs have increased faster than costs of
other basic needs, affordable rental housing is being lost to
homeownership and market-rate rentals, and little or no new
affordable housing is being built. As a result, these families are
living in substandard conditions, are homeless, or are making
choices each day to spend money on housing and do without
health care, child care, or other basic necessities. As sobering as
this is . . . this is not the beginning of the crisis, and . . . it has
only gotten worse in recent years. . . . Our nation strives to be a
standard-bearer for the world in fairness, compassion and
quality of life, yet overlooks this problem year after year at the
cost of the safety, health and security of millions of its citizens.29
HUD reported to the United Nations in 2001 that 4.9 million Americans have
“worst-case housing needs,” that is, they spend more than 50 percent of their
income on housing, or they live in substandard housing.30 The agency also
reported that the number of rental housing units affordable for very low income
families declined by 1.1 million, a loss of 7 percent, from 1997 to 1999.
In its report, HUD estimated that six hundred thousand individuals may be
homeless on any given night. A recent report by the National Law Center on
Homelessness and Poverty estimates that between 2.5 and 3.5 million people
over the course of a year will experience homelessness; seven million will
experience homelessness over the course of five years.31 One survey showed
that 12.5 million, or 6.5 percent of the U.S. resident population, has been
homeless at some point during the course of their lives.32

29

NLIHC Report.

30

HUD, Habitat II Progress Report, 2001, p. 6, n. 14 (Habitat Report), citing HUD, A Report on Worst
Case Housing Needs in 1999-A New Opportunity Amidst Continuing Challenges, 2001. Two years
later, HUD’s estimate of “worst case housing needs” was up to 5.07 million. HUD, Trends in Worst
Case Needs for Housing, 1978-1999: A Report to Congress on Worst Case Housing Needs (Plus
Update on Worst Case Needs in 2001), December 2003, page xix, available online at:
www.huduser.org/Publications/PDF/trends.pdf, accessed on September 15, 2004.

31

National Law Center on Homelessness and Poverty, Homelessness in the United States and the
Human Right to Housing (January 14, 2004), p. 6.

32

Ibid.

NO SECOND CHANCE

14

Barriers to Reentry and Housing
This year, some 600,000 inmates will be released from prison back into society. We know
from long experience that if they can't find work, or a home, or help, they are much more likely
to commit more crimes and return to prison. So tonight, I propose a four-year, 300 million
dollar Prisoner Re-Entry Initiative to expand job training and placement services, to provide
transitional housing, and to help newly released prisoners get mentoring, including from faithbased groups. America is the land of the second chance—and when the gates of the prison open,
the path ahead should lead to a better life.33
—President George W. Bush
Over six-hundred-fifty thousand people per year are expected to return home
from America’s prisons and jails in the coming years.34 The consequence of
America’s overreliance on incarceration during the past two decades, these
numbers have shocked the country into paying increased attention to ensuring
that the return from prison to the free world—a process now known as
reentry—is successful.
Politicians have for decades enhanced their “tough on crime” credentials by
creating laws and policies that impose adverse collateral consequences on many
categories of those with criminal records.35 According to the New York-based
Legal Action Center “people with criminal records seeking reentry [now] face a
daunting array of counterproductive, debilitating and unreasonable roadblocks in
almost every important aspect of life.”36 These include restrictions on voting

33

President George Bush, “State of the Union Address,” January 20, 2004, available online at:
http://www.whitehouse.gov/news/releases/2004/01/20040120-7.html, accessed on October 25, 2004.
34

In 2002, 632,000 offenders were released from state prisons and jails. Human Rights Watch
telephone interview with Allen Beck, Ph.D., chief, Corrections Statistics Program, BJS, April 1, 2004.
The numbers of those returning will continue to rise until rates of incarceration drop. For example, in
2001, 592,000 offenders were released from state prison, a 46 percent increase over the 405,400
offenders that were released in 1990. U.S. Department of Justice, Office of Justice Programs, BJS,
Reentry Trends in the United States, available online at: http://www.ojp.usdoj.gov/bjs/prisons.htm,
accessed on March 25, 2004.
35

See Mauer, “Crime as Politics,” in Race to Incarcerate, p. 56.

36

Legal Action Center (LAC), After Prison: Roadblocks to Reentry (2004), available online at:
http://www.lac.org/lac/, accessed on May 24, 2004. The LAC released a state-by-state report in May
2004 that compiles state laws restricting the rights of those with criminal records to vote, gain access
to housing, public assistance, employment, loans for higher education, driver’s licenses, and criminal
records; as well as laws affecting their ability to keep their families intact. Such laws and policies are
commonly referred to as “collateral consequences” or “collateral sanctions.” The American Bar
Association (ABA) has established standards seeking to limit the impact of collateral sanctions and
ensure they are used appropriately. “Collateral Sanctions and Discretionary Disqualifications of

15

BACKGROUND

rights, housing, employment, and government welfare assistance. No matter
how exemplary their subsequent lives, people who have a criminal record bear a
modern-age “scarlet letter,” or a new civil identity that they cannot shed.37 On
every application they will constantly confront questions about their criminal
records—from applications for welfare or for a job at a fast food restaurant, to a
volunteer dog-catcher position at the SPCA (Society for the Prevention of
Cruelty to Animals), and even a box on the application to join a Parent-Teacher
Association.38
Some attention is appropriately and finally being paid to the needs of many
returning prisoners for supportive, transitional services. But there has been
relatively little attention so far to the many “collateral consequences” of
imprisonment or having a criminal record that erect often insurmountable
barriers to successful reentry. Many of these barriers are the result of public
laws and directly restrict the rights and opportunities of those with criminal
records.
Exclusionary housing policies constitute one of the most significant barriers to
reentry. People leaving prison and jail are typically among Americans with the
most dire housing needs. For them, publicly supported housing is the only
realistic option for safe and stable places to live. Excluded from public housing,
they often end up swelling the ranks of the homeless, become inhabitants of
grimy and unsafe transient hotels and motels, or crowd into the homes of
relatives and friends. None of these options is conducive to the development of
stable, productive lives for former prisoners or their children.
HUD’s current exclusionary policies and those of local PHAs ignore the
changing landscape of the poor in the U.S. As the number of people with
criminal records continues to soar, so their proportion among the impoverished
in the United States grows. Policies that exclude them from housing thus have
the effect of excluding an ever growing number of those in need. As one tenant
advocate in Pittsburgh, Pennsylvania told us:

rd

Convicted Persons,” ABA Standards for Criminal Justice, 3 ed., August 2003, (ABA Publishing,
2002), Standard 19 (“ABA Standards”).
37

Gonnerman, Life on the Outside, p. 9.

38

Remarks of Dorsey Nunn at the Biennial Conference of the Drug Policy Alliance, East Rutherford,
New Jersey, November 5, 2003. As one reporter found, even Santa Claus and his elves undergo
criminal background checks. “Santas Undergo Background Checks, Drug Testing,” Associated Press,
November 25, 2002.

NO SECOND CHANCE

16

No one’s in more need than ex-offenders. That’s what this
housing is for. I understand that originally it was for women
and children and vets, but as times change, our federal programs
need to recognize who’s needy in our society.39
Another housing advocate in Austin, Texas said:
They have a responsibility for tenants, but also the responsibility
to be the housing of last resort. They receive large sums of
federal money to be the bottom-line safety net of housing for
folks out there. The Housing Authority is that safety net.
That’s why they can get all those grants. If it wasn’t the intention
to make sure that the safety net is there, why give them all that
money? . . . If all they want to do is cream the population and
take the best, why are they getting all that money? . . . Housing
authorities used to be the ones that would give people a second
chance.40
President Bush called attention to certain barriers to reentry, including the need
for transitional housing, in his 2004 State of the Union address.41 Members of
Congress responded with bipartisan bill introduced in mid-2004. The Second
Chance Act of 2004 (“house bill”), pending in the United States House of
Representatives, found that “from 15 percent to 27 percent of prisoners expect
to go to homeless shelters upon release from prison,” and calls for:
structured post-release housing and transitional housing,
including group homes for recovering substance abusers,

39

Human Rights Watch interview with Ronell Guy-Curtis, community activist, director, Northside
Coalition for Fair Housing, Pittsburgh, Pennsylvania, January 29, 2004.
40

Human Rights Watch interview with Katherine Stark, executive director, Austin Tenant’s Council,
Austin, Texas, February 12, 2004.
41

Even prior to Bush’s State of the Union address, his administration awarded nearly $1.3 billion to
HUD as part of its strategy to end chronic homelessness, and HUD has partnered with the U.S.
Department of Justice and other federal agencies to address prisoner re-entry issues. U.S.
Department of Justice, Office of Justice Programs, Learn About Reentry, Overview, Serious and
Violent Offender Reentry Initiative, available online at:
http://www.ojp.usdoj.gov/reentry/learn.html#go3, accessed on March 25, 2004; a state-by-state listing
of grantees is available online at: http://www.ojp.usdoj.gov/reentry/sar/welcome.html, accessed on
March 25, 2004.

17

BACKGROUND

through which offenders are provided supervision and services
immediately following reentry into the community [and]
assisting offenders in securing permanent housing upon release
or following a stay in transitional housing.42
The house bill would provide states with a small amount of money to develop a
system of reentry services, including transitional housing, and calls only for a
study of existing barriers to accessing housing.
The Senate followed with two of its own versions of the Second Chance Act.
The first mirrors the provisions of the house bill with which it shares a name.43
The second, the Enhanced Second Chance Act, contains many of the same
provisions, but among its chief differences is a call to strengthen HUD rules to
require PHAs to conduct individualized determinations of housing applications
from those with criminal records.44 At this writing, all three bills were still
pending in Congress.
Human Rights Watch recognizes the importance of increasing the supply of
transitional housing. But transitional housing is by definition temporary. It is
not a solution to the need for permanent housing. Thus far, there has been
inadequate federal recognition of the basic reality articulated by Nan Roman of
the National Alliance to End Homelessness: "Effective reentry will require
expanding the supply of affordable housing.”45
To date, no federal reentry initiative has proposed to increase the supply of
public housing. And the Enhanced Second Chance Act is the only legislation
thus far that would address the barriers to successful reentry that are embedded
in existing housing policies. Finally, there is no designated federal funding for
alternative facilities to house those currently excluded from existing public
housing because of their criminal records.

42

Second Chance Act of 2004, H.R. 4676, Section 3(a)(4), (5), amending Section 2976 of the
Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3797w), introduced June 23, 2004.

43

Second Chance Act of 2004, S. 2789, introduced September 10, 2004.

44

Enhanced Second Chance Act of 2004, S. 2923, introduced October 8, 2004, see specifically,
section 20.

45

Human Rights Watch e-mail correspondence with Nan Roman, executive director, National Alliance
to End Homelessness, May 27, 2004.

NO SECOND CHANCE

18

The impact of federal and local exclusionary policies is not limited to public
housing. Increasingly, private landlords are following the lead of public housing
and screening people for criminal histories.46 Federal law allows “owners” of
private housing to decline to rent to those who have been deemed eligible and
awarded a voucher by a PHA.47 But housing advocates told Human Rights
Watch that landlords are also refusing to rent to prospective tenants in the
private market because of their criminal records. “Once the housing authority
did it, everybody started to do it,” one reentry advocate told Human Rights
Watch. “Any housing complex, any apartment, if you have an ‘x,’ they’ll deny
you.”48

“Deserving” Tenants
Exclusions based on criminal records are usually justified in terms of promoting
the safety of public housing tenants. But the choice of criminal records as an
exclusionary factor cannot be understood solely in terms of the goal of tenant
safety.
Given the enormous gap between the supply of public housing and the demand
for it, public authorities have been forced to adopt a form of triage to determine
who will receive it. Language in HUD’s guidance on the “one strike” policy
explicitly addresses the zero-sum nature of public housing choices:
In deciding whether to admit applicants who are borderline in
the PHA’s evaluation process, the PHA should recognize that
for every marginal applicant it admits, it is not admitting another
applicant who clearly meets the PHA’s evaluation standards.49

46

For instance, in March 2003, Georgia established a website called “Know Thy Neighbor Parolee
Database” that allows people to find parolees that live in their neighborhood, available online at:
http://www.georgia.gov/00/channel_title/0,2094,4802_5047,00.html, accessed on May 31, 2004.

47

24 CFR § 982.307

48

Human Rights Watch interview with Anthony Barber, reentry advocate, Texas Criminal Justice
Reform Coalition, San Antonio, Texas, February 10, 2004. “Well, if they can’t get housing there [with
the PHA], they can’t get housing anywhere in the county,” one social service provider in Alabama
said. “If they’re denied by the housing authorities, they apply for the housing complex here. But if
they’re denied by the housing authority, they will probably be denied by the [private] housing complex,
too.” Human Rights Watch interview with Eula Morton, service supervisor for Family and Childrens’
Services Unit, Greene County Department of Human Resources, Eutaw, Alabama, December 12,
2003.

49

HUD, Public Housing Occupancy Handbook, Directive No. 7465.1 Rev.-2, Chapter 4, 4-3(b)(3).

19

BACKGROUND

Criminal record exclusions have the important effect of helping reduce the
pressure on a limited public resource. From the perspective of public housing
authorities trying to ration a scarce resource, the exclusion is also an easy one to
sell publicly. The public views people with criminal records with suspicion, fear,
hate and anger. It is not going to protest the exclusion of “bad” people from
public housing.
HUD guidelines, echoed in the polices of individual PHAs, suggest that only
those who “play by the rules” should be housed:
Because of the extraordinary demand for affordable rental
housing, public and assisted housing should be awarded to
responsible individuals. . . . At a time when the shrinking supply
of affordable housing is not keeping pace with the number of
Americans who need it, it is reasonable to allocate scarce
resources to those who play by the rules. There are many
eligible, law-abiding families who are waiting to live in public
and assisted housing and who would readily replace evicted
tenants. By refusing to evict or screen out problem tenants, we
are unjustly denying responsible and deserving low-income
families access to housing and are jeopardizing the community
and safety of existing residents who abide by the terms of their
lease.50
To some extent, HUD is merely indicating that it makes sense to exclude those
who will be problem tenants. But the language is also moralistic. Embedded in
the exclusion is an implicit moral calculus: not everyone deserves public housing,
regardless of whether they would pose any risk to tenants. Access to public
housing should be restricted to those who have never broken the law, those who
are “responsible and deserving.”
The needs of those with criminal records—and, indeed, their right to housing—
are left out of the equation. Where, or how, they will live is of scant public
concern.

50

HUD, Office of Public and Indian Housing, “‘One Strike and You’re Out’ Policy in Public Housing”
(March 1996), contained in HUD Directive No. 96-16 (April 12, 1996), Guiding Principles of a One
Strike Policy, Section I(b).

NO SECOND CHANCE

20

HUD’s argument of an essentially zero-sum game between deserving and
undeserving families in housing allocation also ignores the fact that many of
those who seek access to public housing want to join families who are already
public housing tenants.51 Permitting people with criminal records to join their
families would not reduce the overall number of available housing units.
The safety of tenants is obviously an important consideration in making
decisions about public housing applicants. As this report will make clear, the
existing criteria invite arbitrary rejection of applicants without any careful
assessment of any real safety risks they might pose. It is hard to avoid the
suspicion that moral judgments, public prejudices and fears, and political
opportunism play a role in the selection of those criteria. It is hard to find any
other convincing explanation, for example, for federal legislation that would
deny a sixty-year-old access to public housing because of a single sex offense
committed decades earlier.
Restricting public benefits for the virtuous has obvious public appeal. But
human rights are not a privilege of the deserving.

51

Under current housing rules, a family member who wishes to live with family who are currently
public housing tenants must satisfy the admissions criteria for eligibility to be able to join them.

21

BACKGROUND

IV. The Right to Adequate Housing
[E]veryone has the right to a standard of living adequate for the health and well-being of himself and of
his family, including food, clothing, housing and medical care and necessary social services, and the right
to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of
livelihood in circumstances beyond his control.52
—Universal Declaration of Human Rights (UDHR)
International human rights law acknowledges the right to housing as an integral
component to the right to an adequate standard of living. The United States has been
reluctant to fully embrace the idea of the right to housing and has been inconsistent in
its position on this point in international fora. United States officials have been clear,
however, that they do not view public housing as a right. And there is little sign that
officials have acknowledged the fact that access to public housing may be the only
realistic way of realizing the right to adequate housing.53
The UDHR, ratified in the General Assembly of the United Nations in 1948, was the
first international document acknowledging the importance of housing to human
dignity.54 Numerous international treaties and documents have subsequently
acknowledged the right to housing.55 The most important is the International Covenant
52

rd

UDHR, G.A. Res. 217, U.N. GAOR, 3 Sess., pt. 1, art. 25(1), U.N. Doc A/810 (1948).

53

“Public housing has never been a right, it has always been a privilege.” President Bill Clinton, “Remarks by
the President at One Strike Symposium.” See also, The White House, Office of the Press Secretary, “Press
Briefing by Secretary of Housing and Urban Development Henry Cisneros,” March 27, 2003, available online at:
http://clinton6.nara.gov/1996/03/1996-03-28-cisneros-briefing-on-public-housing-policy.html, accessed on
February 4, 2003. Then-Missouri Senator John Ashcroft, now the U.S. attorney general, stated on the floor of
Congress that exclusionary provisions were not only designed to ensure public safety, but also to “emphasize
that federal housing assistance is a privilege, not a right.” Senator John Ashcroft, 144 Cong. Rec. S. 8330,
th
nd
8367, 105 Congress, 2 Sess. (July 16, 1998). Consequently, the U.S. does not acknowledge that laws or
policies that restrict access to housing must be justifiably reasonable in light of legitimate state goals, and it
does not hold itself to the proscriptions against discriminatory effect embodied in international law.
54

UDHR, G.A. Res.217A (III) art. 25(1), U.N. Doc. A/810 (adopted December 10, 1948).

55

See also, article 5 (e) (iii) of the International Convention on the Elimination of All Forms of Racial
Discrimination (CERD), 660 U.N.T.S. 195, U.N. Doc. A/32/18 (entered into force January 4, 1969); article 14(2)
of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1249 U.N.T.S.
13, U.N. Doc. A/34/46 (entered into force September 3, 1981); article 27 (3) of the Convention on the Rights of
the Child (CRC), G.A. Res. 44/25, U.N. Doc. A/44/49, (entered into force September 2, 1990). See, e.g.,
Declaration on Social Progress and Development G.A.R. 2542 (XXIV), U.N. Doc. A/RES/41/146 (December
11, 1969), Part II, Art. 10(f); Resolutions on the realization of the right to adequate housing: G.A. Res. 41/146,
U.N. Doc. A/RES/41/146 (December 4, 1986); G.A. Res. 42/146, U.N. Doc. A/RES/42/146 (December 7, 1987);
Economic and Social Council Res. 1987/62 (May 29, 1987); Commission on Human Rights Res. 1986/36
(March 12, 1986); Commission on Human Rights Res. 1987/22 (March 10, 1987); Commission on Human
Rights Res. 1988/24 (March 7, 1988); Resolutions on Forced Evictions: Commission on Human Rights Res.
1993/77 (March 10, 1993); Sub-Commission on Prevention of Discrimination and Protection of Minorities Res.

NO SECOND CHANCE

22

on Economic, Social and Cultural Rights (ICESCR), entered into force in 1976 and
signed by 156 countries to date.56 The ICESCR codifies the right and requires ratifying
states to strive to ensure that all their residents have adequate housing.57
Article 11(1) of the ICESCR provides: “The States Parties to the present Covenant
recognize the right of everyone to an adequate standard of living for himself and his
family, including adequate food, clothing and housing, and to the continuous
improvement of living conditions.”58 States parties are required to take “appropriate
steps to ensure the realization of this right.”59
The United States has not ratified the ICESCR. Nevertheless, as a signatory it is bound
not to undertake policies or practices that would defeat the covenant’s object and
purpose.60
The most comprehensive recent international affirmation of housing rights and state
housing responsibilities is the 1996 Istanbul Declaration, and the accompanying “Habitat
Agenda.”61 The Habitat Agenda contains over one hundred commitments and six
hundred recommendations on human settlements and housing concerns.62 The
preamble to the Agenda reaffirms signatories’ commitment “to the full and progressive
realization of the right to adequate housing”63 and pledges to “work to expand the
1991/12 (August 26, 1991); Resolution on the human right to adequate housing: Commission on Human
Settlements Res. 14/6 (May 5, 1993); Resolution on promoting the realization of the right to adequate housing:
Sub-Commission on Prevention of Discrimination and Protection of Minorities Res. 1991/26 (August 29, 1991).
56

As of June 9, 2004, 149 countries of the 156 that had signed, ratified the Covenant.

57

International Covenant on Economic, Social and Cultural Rights (ICESCR), 993 U.N.T.S. 3, art. 11(1), U.N.
Doc. A/6316 (entered into force January 3, 1976).

58

Ibid.

59

Ibid.

60

See Vienna Convention on the Law of Treaties, art. 18, concluded May 23, 1969, 1155 U.N.T.S. 331 (entered
into force January 27, 1980). Although the United States has signed but not ratified the Vienna Convention on
the Law of Treaties, it regards this convention as "the authoritative guide to current treaty law and practice." S.
nd
Exec. Doc. L., 92 Cong., 1st Sess. (1971), p. 1; Theodor Meron, “The Meaning and Reach of the International
Convention On The Elimination Of All Forms Of Racial Discrimination,” 79 Am. J. Int’l Law 283, 285 (1985).

61

These documents emerged from the U.N. Conference on Human Settlements in Istanbul, known as Habitat II,
an international conference on housing and human settlements in 1996 in Istanbul, Turkey. Habitat II followed
an earlier conference, Habitat I, held in Vancouver in 1979. For more information and discussion on the various
international conferences discussing housing rights see Habitat II and U.S. Implementation: Background and
Overview, National Law Center on Homelessness & Poverty, available online at:
http://www.nlihc.org/mahn/habitat.htm, accessed on June 12, 2004.
62

The Habitat Agenda is the official document of the 1996 United Nations Conference on Human Settlements in
Istanbul, Turkey. The document is available online at: www.unhabitat.org/unchs/english/hagenda/ist-dec.htm,
accessed on August 6, 2004.
63

Ibid., para. 8.

23

THE RIGHT TO ADEQUATE HOUSING

supply of affordable housing . . . and assisting those who are unable to participate in
housing markets.”64
The Declaration, though not a binding treaty, was signed by 171 countries, including the
United States. But some who observed the proceedings described a considerable
amount of resistance on the part of U.S. delegates to the notion of housing as a right.
Indeed, as Philip Alston describes, during preparatory meetings leading up to the
conference:
The United States delegation insisted that there is no human right to
adequate housing, that this right is not recognised in international
human rights law and that the right has never been recognised in
international treaties. The delegation indicated that it attached great
importance to this issue, that it would call for a vote upon any paragraph
which included a reference of any type to the right to housing, and that
the United States would vote against the inclusion of any such
reference.65
The U.S. had changed its position by the time of the conference and signed the
Declaration despite the inclusion of language specifically noting a right to housing.66
But, as Alston notes, “[i]n place of outright opposition came a statement with enough
nuances, convolution, and circumlocution as to enable both supporters and opponents
of the right to housing to claim victory on the basis of the same text.”67

64

Ibid., para. 9.

65

Phillip Alston, “The U.S. and the Right to Housing: A Funny Thing Happened on the Way to the Forum,”
European Human Rights Law Review , vol. 1, no. 2 (London: Sweet & Maxwell, 1996). Alston wrote extensively
on the efforts of the U.S. to limit the language of rights in the Habitat Agenda. He noted that:
At the Nairobi [Preparatory Committee] it succeeded, not quite but almost singlehandedly,
in having every provision in the draft Habitat II documents which had referred to the right to
housing either deleted or placed in square brackets (used in such international diplomatic
negotiations to denote a strong objection and to underline the lack—be it temporary or
permanent—of the consensus assumed to be necessary in order to secure inclusion of the
relevant provision in the final text).

Ibid. p. 127
66

The U.S. delegate thus addressed the opening session of the conference: “[M]y delegation comes to this
historic Conference to reaffirm the existence of the right to adequate housing as a component of existing human
rights.” Honorable Michael A. Stegman, alternate head of the U.S. Delegation, “Statement at the Opening
Plenary of the United Nations Conference on Human Settlements” (HABITAT II) (June 3, 1996).
67

Alston writes:
[I]n essence, the new position [of the United States] consists of three elements: (a)
acceptance that the right to an adequate standard of living is "universally accepted"; (b) a
belief that "the issue of housing rights is best pursued" in the context of that broader

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24

In 2001, however, the Bush administration reaffirmed its promise to fulfill the Agenda’s
mandate,68 and submitted a seventy-page report69 to UN-Habitat, the U.N. agency that
monitors compliance with the Agenda.70 While the report acknowledges homelessness
and the shortage of affordable housing in the U.S., it does not refer in any way to public
housing exclusionary policies or their impact.
Experts charged with interpreting the right to housing have attempted to clarify what
adequate housing means in the context of disparate national resources. There is a
general recognition, however, that the right to housing means the “right to live
somewhere in security, peace and dignity.” The Committee on Economic, Social, and
Cultural Rights (CESCR) noted that:
[T]he right to housing should not be interpreted in a narrow or
restrictive sense which equates it with, for example, the shelter provided
by merely having a roof over one’s head or views shelter exclusively as a
commodity. . . . Adequate shelter means adequate privacy, adequate
space, adequate security, adequate lighting and ventilation, adequate
basic infrastructure and adequate location with regard to work and basic
facilities—all at a reasonable cost.71
We have not attempted in this report to assess whether life in single room occupancies
(SROs), transient motels, or shelters satisfies the minimum standards of decent
housing.72 What is clear is that people who are forced to move day to day, or even
month to month, from motel to shelter to the couch of a relative do not have access to
the stability that is inherent in the right to housing.
formulation; and (c) insistence that the "basic components of the shelter aspect of the right
to an adequate standard of living" conveniently mirror existing United States domestic
policies with their twin anti-discrimination and free market emphases.
Alston, “The U.S. and the Right to Housing,” p.121.
68

“Statement of Mel Martinez, Secretary, United States Department of Housing and Urban Development,”
Special Session of the General Assembly for an Overall Review and Appraisal of the Implementation of the
Habitat Agenda, June 7, 2001, available online at: http://www.un.int/usa/01_080.htm, accessed on July 10,
2003. Secretary Martinez deftly avoided mention of a right to housing, stating instead: “[m]y country shares with
you a commitment to the ‘fair idea’ of secure, safe, and adequate housing for all.”
69

U.S. Department of Housing and Urban Development, Office of Policy Development and Research, United
States-Habitat II: Progress Report, June 2001, available online at:
http://www.huduser.org/Publications/pdf/habitat.pdf, accessed on July 14, 2003.

70

For more information on UN-HABITAT’s mandate see: http://www.unchs.org/unchs/english/whdbro.htm.

71

Committee on Economic, Social and Cultural Rights, General Comment No. 4, para. 7.

72

Ibid., para. 8 sets forth seven core principles embodied in the right to housing, including legal security of
tenure, availability of services, resources and infrastructure, affordability, habitability, accessibility, location, and
cultural adequacy.

25

THE RIGHT TO ADEQUATE HOUSING

If the right to housing means anything, it means that one should not have to be
homeless. It also means, at a minimum, that governments should avoid policies that
predictably increase homelessness or that reduce affordable housing opportunities that
previously existed.73 Rajindar Sachar, the U.N. special rapporteur on the right to
adequate housing, has noted that governments infringe that right if they adopt policies
that “result in homelessness, greater levels of inadequate housing, [or] the inability of
persons to pay for housing . . . [.]”74 Yet between 1988 and 1998, with its public
housing exclusionary policies, the United States deliberately removed affordable housing
options that had previously been available to low-income people with criminal records.
The extent of homelessness in the United States, estimated at 2.5 to 3.5 million a year,
certainly raises serious questions about the meaning of a right to housing in the United
States.75 The causes of homelessness are many, and not all can be placed at the feet of
the federal government. But an estimated half of those who are homeless on any given
night have criminal records.76 And with regard to them, the government’s exclusionary
policies have clearly played a devastating role that directly undermines their right to
housing.

73

The Committee on Economic, Social and Cultural Rights, the U.N. body that is the authoritative interpreter of
the Covenant, has elaborated the article 2 requirement that states parties take steps “to the maximum of its
available resources” with a view towards “achieving “progressively” the Covenant’s rights. In explaining what
“progressive realization” entails, the Committee has said, “a minimum core obligation to ensure the satisfaction
of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus,
for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of
essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima
facie, failing to discharge its obligations under the Covenant.” Committee on Economic, Social and Cultural
Rights, General Comment No. 3, para. 10 (emphasis added). “Progressive realization” also means, at minimum
that “any deliberately retrogressive measures in that regard would require the most careful consideration and
would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the
context of the full use of the maximum available resources.” Ibid., para. 9.

74

Rajindar Sachar,1993 Special Rapporteur’s Report, UN Doc. E/CN.4/Sub.2/1993/15, para. 144.

75

“The plea of lack of resources sounds hollow,” said Mr. Sachar in a 1995 report, “in view of the finding of the
United Nations Development Programme in 1992 that only a 3 percent reduction in worldwide arms expenditure
per year during the 1990s would make available by the year 2000 an amount of US $1.2 trillion for the
industrialized countries and an amount of $279 billion for the developing countries.” United Nations
Commission on Human Rights, Subcommission on Prevention of Discrimination and Protection of Minorities,
The Realization of Economic, Social and Cultural Rights: The Right to Adequate Housing, Final Report
Submitted by Mr. Rajindar Sachar, E/CN.4/Sub.2/1995/12, p. 6, para. 16 (July 12, 1995).
76

According to one HUD estimate, 54 percent of the homeless have criminal records. HUD, Homelessness:
Programs and the People they Serve, Interagency Council on the Homeless, ed. (December 1999), table 3.6,
available online at: http://www.huduser.org/publications/homeless/homelessness/ch_3c.html#table3.6,
accessed on August 6, 2004. While these numbers have been used to provoke fear of the criminal homeless
population, HUD estimates that only 18 percent of the homeless have ever spent time in state or federal prison
for a serious offense. Comprehensive statistics on those released from prisons and jails without adequate
housing do not exist, but it is estimated that 15 to 27 percent of all prisoners go to homeless shelters upon
release. H.R. 4676, the Second Chance Act of 2004, Section 2(15).

NO SECOND CHANCE

26

Human rights law does not preclude public housing authorities from establishing criteria
for admission. But those criteria should not be unreasonable or discriminatory.77
Moreover, given the nature of the existing housing market and the high cost of private
housing, public housing admissions policies should not have the effect of denying
people any realistic opportunity of finding safe and stable housing. They should not
undermine, much less negate, the right to adequate housing.

77

The Limburg Principles on the Implementation of the International Covenant on Economic, Social and
Cultural Rights (ICESCR), UN Doc. E/CN.4/1987/17, were written by a group of distinguished international law
experts and serve as guidance to nations interpreting the ICESCR. Article 4 of the Limburg Principles states:
“Laws imposing limitations on the exercise of economic, social and cultural rights shall not be arbitrary or
unreasonable or discriminatory.”

27

THE RIGHT TO ADEQUATE HOUSING

V. Federal “One Strike” Legislation
If you break the law, you no longer have a home in public housing, one strike and you’re out. That
should be the law everywhere in America.78
—President Bill Clinton
The right of every person to adequate housing includes the right to housing that is
decent and safe. The United States, through the policies and practices of HUD as well
as local public housing authorities, has taken various steps to try to ensure that the
housing it provides is safe. One of the measures it has employed has been to screen
applicants by using criminal background information. While PHAs have long been
authorized to conduct such screening, the U.S. Congress passed harsh new laws between
1988 and 1998 imposing new responsibilities and authority on PHAs to exclude housing
applicants with certain criminal records as well as to evict tenants who break the law.
The Anti-Drug Abuse Act of 1988, a broad statute Congress passed to further the war
on drugs, called for strict lease enforcement and eviction of public housing tenants who
engage in criminal activity.79 Citing a “reign of terror” in public housing,80 the Act
required PHAs to utilize leases, which called for eviction if a tenant or a household
member or guest engaged in any criminal activity on or near public housing premises.81
These new eviction rules became the foundation for what subsequently became the
federal government’s “one strike” policy. In 1990, Congress strengthened the eviction
requirements of the Anti-Drug Abuse Act by prohibiting public housing authorities
from giving any preference to applicants who otherwise qualified for preferential

78

President Bill Clinton, “Remarks by the President at One Strike Symposium,” The White House, Office of the
Press Secretary, March 28, 1996, available online at: http://clinton6.nara.gov/1996/03/1996-03-28-presidentremarks-at-one-strike-crime-symposium.html, accessed on February 4, 2004.
79

Anti-Drug Abuse Act of 1988, Pub. L. 100-690, 102 Stat. 4181 (1988) (codified as amended in scattered
sections of the United States Code). Among other initiatives, the Act created the Office of National Drug
Control Policy, supervised by a Director appointed by the President and approved in the Senate (commonly
known as the “Drug Czar”) and provided for block grants to housing authorities to combat drug trafficking in
public housing projects.

80

Ibid., § 5122.

81

Ibid., § 5101. Subsequent legislation broadened these grounds for eviction, calling for eviction from public
housing whenever and wherever a household member or guest engages in criminal activity. The U.S. Supreme
Court in HUD v. Rucker, 535 U.S. 125 (2002) upheld the eviction of several elderly tenants for criminal activity
engaged in by household members, despite the tenants’ lack of actual knowledge of their actions.

NO SECOND CHANCE

28

treatment,82 if they had previously been evicted from public housing for drug-related
activity.83
President Bill Clinton’s 1996 State of the Union address gave momentum and the new
“One Strike” name to Congress’ efforts to control who lives in public housing.84
Congress responded to the president by passing the Housing Opportunity Extension
Act of 1996 (Extension Act),85 which again strengthened eviction rules and, for the first
time, strongly urged that certain applicants for federally-subsidized housing be excluded
based on their criminal records.86 The Extension Act called on the National Crime
Information Center and local police departments to provide criminal conviction records
to PHAs for “purposes of applicant screening, lease enforcement, and eviction.”87 In
addition, the Act established a three year ban on public housing for those evicted from
public housing for drug-related activity.88 Finally, the Act allowed PHAs to bar
applicants believed to be using drugs or abusing alcohol, or anyone who the PHA found
had a pattern of drug or alcohol abuse that could threaten the health and safety of
residents.89
Congress’ vigor in creating a statutory framework for the “one strike” rule in 1996 was
matched by HUD’s efforts to create a regulatory scheme for its enforcement. Spurred
on by a policy memorandum from President Clinton,90 HUD developed guidelines to
press PHAs to “evict drug dealers and other criminals” and “screen tenants for criminal

82

Because there is not enough federally-subsidized housing for all those who are eligible, PHAs have
established preference criteria that give priority to certain families waiting for assistance. For example,
domestic violence victims, the elderly, families with minor children, and those with disabilities are often chosen
for preference lists by local PHAs.
83

Cranston-Gonzalez National Affordable Housing Act of 1990, Pub. L. No. 101-625, 104 Stat. 4079 (1990)
(codified as amended in scattered sections of 12 & 42 U.S.C.) at § 501. Section 501 of the 1990 Act required
PHAs to remove families evicted from public housing for drug-related activity for a period of three years
following eviction.
84

President Bill Clinton, “State of the Union Address,” January 23, 1996.

85

Pub. L. No. 104-120, 110 Stat. 834 (1996).

86

The Extension Act authorized housing authorities to evict tenants for criminal or drug-related activity “on or
off” housing authority premises. § 9(a)(1)(A). Previously, such activity allowed for eviction when occurring “on or
near” housing authority premises. Congress also struck the word “criminal” from the mandatory lease
provisions so that “any activity” which threatened the safety of residents could result in eviction. § 9(a)(1)(B).

87

Ibid., § 9(b)(1)(A). See also footnote 225 for a more in-depth discussion of this issue.

88

Ibid., § 9(c).

89

Ibid., § 9(d)(2).

90

“Memorandum from President Clinton to HUD Secretary on ‘One Strike and You’re Out’ Guidelines,” March
28, 1996, available online at: http://clinton6.nara.gov/1996/03/1996-03-28-memo-on-one-strike-and-you-re-outguidelines.html, accessed on February 4, 2003.

29

FEDERAL “ONE STRIKE” LEGISLATION

records.”91 HUD’s “One Strike Guide”92 calls on PHAs to “take full advantage of their
authority to use stringent screening and eviction procedures[.]”93
The One Strike Guide’s most far-reaching initiative is the promotion of applicant
criminal screening procedures.94 Housing authorities are encouraged to not only screen
all applicants’ criminal records but to develop their own exclusion criteria.95 To ensure
that all housing authorities screen applicants, the guide notes that PHA ratings and
funding are tied to whether they are “adopting and implementing effective applicant
screening.”96
The effect has been PHA adoption of stringent exclusionary policies. Unfortunately, as
discussed in more detail in this report, PHAs have chosen not to exercise with care the
discretion HUD granted them to construct their screening mechanisms. HUD
encourages PHAs to:
Consider applications for residence by persons with such criminal
histories on a case-by-case basis, focusing on the concrete evidence of
the seriousness and recentness of criminal activity as the best indicators
of tenant suitability. PHAs should also take into account the extent of
criminal activity and any additional factors that might suggest a
likelihood of favorable conduct in the future, such as evidence of
rehabilitation.97
Congress passed the last substantive statutory amendments to the “one strike” policy as
part of the Quality Housing and Work Responsibility Act of 1998 (QHWRA).98 Under
the QHWRA, PHAs should deny applicants public housing benefits if:

91

President Bill Clinton, “Remarks by the President at One Strike Symposium.”

92

HUD Notice PIH 96-16 (HA), April 29, 1996 and attached “one strike” guidelines: HUD, ‘One Strike and
You’re Out’ Screening and Eviction Guidelines for Public Housing Authorities, April 12, 1996.
93

Ibid., p. 2.

94

Ibid., p. 4-5.

95

Ibid., p. 5.

96

Ibid., p. 3. A later measure, discussed in more detail below, codified the requirement that PHAs be graded on
their ability to screen and evict criminal offenders. See, Section 564(1)(A) of the Housing and Work
Responsibility Act of 1998, Pub. L. No. 105-276, 112 Stat. 1643 (1998). Also see footnote 177 and
accompanying text.

97

Ibid., p. 6.

98

Quality Housing and Work Responsibility Act of 1998, Pub. L. No. 105-276, 112 Stat. 1643 (1998).

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30

during a reasonable time preceding the date when the applicant
household would otherwise be selected for admission, [a household
member] engaged in any drug-related or violent criminal activity or other
criminal activity that would adversely affect the health, safety, or right to
peaceful enjoyment of the premises by other residents[.]99
The “reasonable time” was left undefined and at the housing authority’s discretion.
Similarly, housing authorities were left to decide what types of offenses could lead to
exclusion.
The QHWRA thus granted Congressional approval of admissions rules formulated by
HUD during the 1996 “one strike” initiative. Its broad mandate to exclude anyone with
a criminal record who PHA authorities determine might pose a risk continues to affect
the housing options of hundreds of thousands of people with criminal records and their
families.100
In addition to giving PHAs discretion to determine the applicants they may reject based
on criminal records, Congress has also enumerated three specific categories of applicants
that PHAs must reject. These federally designated persona non grata include anyone the
PHA believes to be using drugs, anyone subject to registration requirements under state
sex offender registration laws, and anyone convicted of manufacturing
methamphetamines on public housing property.

How Many Are Excluded?
It is difficult to quantify the effect of these criminal record exclusions. There is no
comprehensive, reliable national data on the number of applicants who are rejected
because of criminal records and no way of calculating the number of people who,
believing they would be ineligible under the policies, never even bother to apply for
public housing.
In response to a Freedom of Information Act request, HUD told Human Rights Watch
that 46,657 applicants for conventional, project-based public housing were denied

99

Ibid.

100

Scattered throughout the U.S. code and the Code of Federal Register, the rules governing screening and
eviction are so complicated that a booming consulting business has grown up around the process. Agencies
like Nan McKay & Associates, for example, provide guidance on constructing policies which comport with
federal law, and they actually write the policies for many PHAs. A chart outlining the rules is available on the
agency’s website at: http://www.nmauniversity.com/nanmckay_corp/nlha.pdf, accessed on December 22, 2003.

31

FEDERAL “ONE STRIKE” LEGISLATION

admission in 2002 because of “one strike” criteria.101 This figure, however, represents
only a fraction of applicants rejected because of their criminal records.
First, this number does not include those who are denied Section 8 housing assistance,
as PHAs are not required to report Section 8 denials to HUD. Second, while HUD
requires PHAs to report the number of applicants found ineligible under “one strike”
policies as part of its periodic review of PHA operations, HUD has not provided a
uniform definition of what exclusions fall under “one strike.”102 For example, PHA
officials are provided with no guidance about whether such a number includes all
criminal record exclusions, or only those mandated by Congress. In fact, we discovered
considerable inconsistencies in the numbers some individual PHAs provided to Human
Rights Watch and the numbers they provided to HUD.103
Many PHA officials told HRW that they did not even keep statistics on criminal
exclusions. Several housing authorities indicated that because of the way they evaluate
applications, it is impossible to determine whether an applicant was denied solely
because of a criminal record, or whether the denial was the result of a combination of
factors, including poor credit.104 Some PHAs could not even explain to us how they
arrived at the numbers they sent to HUD. Finally, no PHAs kept track of how many
applicants given housing vouchers by the PHAs were turned away by landlords because
of their criminal histories.
Even if PHAs collected accurate data showing the number of those denied because of
criminal background information, that data would not capture the total number of
people unable to access housing because of criminal records. It would not reflect the
101

Letter to Human Rights Watch from Carole W. Wilson, associate general counsel, Office of Litigation, U.S.
Department of Housing and Urban Development, December 22, 2003. The figure was based on data provided
to HUD by PHAs.
102

Guidance to PHAs is provided in a HUD guidebook available online at:
http://www.hud.gov/offices/reac/pdf/guidebook_oct01.pdf, accessed March 3, 2004.
103

HUD provided Human Rights Watch with the number of PHA exclusions by each PHA. Human Rights
Watch also requested data from PHAs reflecting “the number of denials of admission or findings of ineligibility
based on someone's criminal history by the housing authority for the year 2002.” The Housing Authority of the
City of Pittsburgh, for example, told Human Rights Watch that it denied 446 applicants, who had applied for
conventional public housing in 2002, based on the applicants’ criminal history. Human Rights Watch e-mail
correspondence with Anthony Williams, director, Housing Authority of Pittsburgh, January 27, 2004. However,
the number of denials reflected in HUD’s data is only 184.
104

For example, the Housing Authority of the County of Los Angeles (HACoLA) evaluates a number of eligibility
factors simultaneously. If negative information is received about both the applicant’s credit history and criminal
background, the applicant receives a letter of ineligibility, but HACoLA cannot determine the precise reason for
the denial; hence, it does not include such a rejection in the data it reports to HUD. Human Rights Watch
interview with Esther Keosababian, assistant director, Housing Management Division, Community Development
Commission, County of Los Angeles, HACoLA, February 6, 2004.

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32

number of people who chose not to submit a full application after seeing that the
application called for criminal record information, applicants who were turned away at
the applications counter by PHA staff who said they were not eligible, and those
discouraged from even approaching a PHA because they were told by social service
providers, prison officials, peers, and even PHA staff that “people with felonies,” or
“people with drug charges” could not apply.
“They don’t even let them turn them [applications] in,” a Birmingham, Alabama attorney
told Human Rights Watch, noting that the numbers provided by the housing authority
were not reflective of the number of individuals affected by the PHA’s strict exclusion
policies. “They turn them away at the applications desk. They don’t let them fill it out.
That way, they don’t have to count them.”105
Given the imprecise methods used to collect these figures and the impossibility of
quantifying those discouraged from ever applying, it is impossible to know—and indeed
HUD itself clearly does not know—how many of the millions of people with criminal
records have been affected by the exclusionary policies.106 We have developed a minimal
estimate, however, that gives a sense of the magnitude.
Our research suggests that PHAs typically reject applications from people convicted of
felonies within five years of the application. We estimate that over the past five years, the
number of convicted felons is at least 3.5 million.107 That is, we believe that at least 3.5

105

Human Rights Watch telephone interview with Kenneth Lay, managing attorney, Legal Services of Metro
Birmingham, December 12, 2003.
106

HUD’s failure to obtain accurate and complete data on the effect of exclusionary policies is inconsistent with
international norms. International law calls on states to monitor the implementation of housing rights. See,
Committee on Economic, Social and Cultural Rights, General Comment No. 4, para. 13, citing also general
guidelines regarding the form of reports adopted by the Committee (E/C.12/1991/1), which emphasize the need
to “provide detailed information about those groups within . . . society that are vulnerable and disadvantaged
with regard to housing.” The Habitat Agenda also requires states to monitor their progress in fulfilling the right
to housing by collecting data. Habitat Agenda para. 61(d), para. 240. In its 2001 report to Habitat, the United
States devoted only two pages out of its seventy page report to homelessness and affordable housing. HUD,
Habitat Report, 2001. Committee on Economic, Social and Cultural Rights has stated: “Effective monitoring of
the situation with respect to housing is [an] obligation of immediate effect.” See Committee on Economic, Social
and Cultural Rights, General Comment No. 4, para. 13, citing also general guidelines regarding the form of
reports adopted by the Committee (E/C.12/1991/1) which emphasize the need to “provide detailed information
about those groups within . . . society that are vulnerable and disadvantaged with regard to housing.” The UN
Commission on Human Settlements (UNCHS or “Habitat”), the body responsible for the implementation and
oversight of the Habitat Agenda, has urged states to establish appropriate monitoring mechanisms to evaluate
quantifiable data on commitments that are measurable. Habitat recommends several kinds of data which
should be collected, including data on the number of those evicted, but the list is certainly not exhaustive.
Habitat Agenda, para. 61(b).
107

We arrived at this number (3,504,483) by taking the number of new felony convictions in the years for which
data is currently available (1996, 1998, and 2000), adding them, and dividing the total number (3,003,843) by

33

FEDERAL “ONE STRIKE” LEGISLATION

million would be ineligible for public housing. That number, of course, does not include
people ineligible for other reasons, e.g. those convicted of misdemeanors or whose
criminal records consist only of arrests; nor does it include those whose felony
convictions are years earlier, but nonetheless might warrant exclusion either under local
or federal rules.

three to come up with an average number of felony convictions per year (1,001,281). We then multiplied that
number by five to come up with an estimated number of total felony convictions for the previous five years
(5,006,405), and reduced that number by 30 percent, a generous recidivism figure, to account for offenders who
committed more than one felony. Since a person who committed a felony within the past five years would be
automatically ineligible for housing assistance under every housing authority policy we reviewed, this is a
conservative estimate of the number of those currently ineligible for housing assistance, as many PHAs exclude
offenders whose crimes do not rise to the level of a felony, and exclude convicted felons for much longer than
five years. Matthew R. Durose and Patrick A. Langan, Ph.D., Felony Sentences in State Courts, 2000 (BJS,
June 2003), p. 3 (citing also Compendium of Federal Statistics, 2000); Matthew R. Durose, David J. Levin, and
Patrick A. Langan, Ph.D., Felony Sentences in State Courts, 1998 (BJS, October 2001), p. 3 (citing also
Compendium of Federal Statistics, 1998); Jodi M. Brown, Partick A. Langan, Ph.D., and David J. Levin, Felony
Sentences in State Courts, 1996 (BJS, May 1999), p. 2 (citing also Compendium of Federal Statistics, 1999).
These reports are available online at: http://www.ojp.usdoj.gov/bjs/pubalp2.htm#fssc, accessed on October 22,
2004.

NO SECOND CHANCE

34

VI. Public Safety
What you want is a way for housing projects to be safe. Some restrictions based on real safety make all
the sense in the world, but you want those restrictions to be reasonable, and you want people to be able to
earn their way back in.108
—JoAnne Page, executive director, Fortune Society
The right of every person to adequate housing includes the right to housing that is
decent and safe. Human Rights Watch recognizes the responsibility of the U.S., through
HUD and local PHAs, to ensure, to the extent possible, that government-assisted
housing is safe. Current public housing policies that automatically exclude individuals
with a wide range of criminal histories for long periods of time (for a lifetime, in some
cases) are an unreasonable means of furthering that goal. They reflect widely shared but
flawed assumptions about public safety and about people who have broken the law.
First, they reflect the belief that the longer people who have committed crimes are
excluded from public housing, the safer other tenants will be. That mistaken belief is
predicated on mostly unexamined beliefs about the character of people who commit
crimes.
Criminologists recognize that the longer people with criminal records go without
committing a crime, the less likely they are to commit another offense.109 In fact, Joan
Petersilia, noted criminologist and author of a definitive study of reentry, suggests that
parole supervision beyond five years is ineffective because recidivism is unlikely after
five years of arrest-free behavior. Periods of exclusion beyond five years, especially
lifetime exclusions, make little sense in light of this reality.
HUD has not attempted to document the relationship between restrictive admissions
policies and crime, despite the fact that the agency has its own Office of Policy
Development and Research and employs several criminologists. Many public housing
officials say that public safety has improved in their facilities and cite the adoption of
exclusionary policies as the reason. But we are aware of no concrete studies supporting
such claims and, despite requests, neither HUD nor PHA officials provided Human
Rights Watch with facts that could support this conclusion.

108

Human Rights Watch telephone interview with JoAnne Page, March 2, 2004.

109

Petersilia, When Prisoners Come Home, p. 18.

35

PUBLIC SAFETY

Human Rights Watch does not doubt that crime rates have decreased in public housing
facilities: such rates have decreased nationwide in recent years. But it is difficult to
establish the extent to which exclusionary policies themselves contributed to the
decrease. As one housing official in Cleveland, Ohio told us, looking at crime statistics
as support for exclusionary policies is “useless. Do we know if it is because of ‘one
strike’? It becomes hard to judge whether ‘one strike’ works.”110 Declining crime rates
in public housing no doubt reflect many factors. But surely most of them are the same
factors responsible for declining rates in cities and rural areas across the country—
factors that have nothing to do with housing policies. “Crime is down in public
housing,” New York City Housing Authority’s (NYCHA’s) general manager told
Human Rights Watch, “but it looks similar to reductions in the city as a whole.”111
Moreover, our research indicated that PHA officials with very different exclusionary
policies all nonetheless believe their crime rates have dropped.
Despite a lack of evidence that strict exclusionary policies are necessary for public safety,
PHAs are reluctant to explore whether they should be changed. “It’s not a causal
relationship I can draw,” said NYCHA’s general manager, “but if we change [the policy],
we don’t know what would happen. . . . I’m not sure I’d want to find out.”112
Curiously, there has been relatively little discussion among federal or local housing
officials as to what, in fact, predicts a good tenant, much less the predictive value of a
criminal record. Pressured by local advocates, housing officials in Portland, Oregon in
2003 agreed to impose a sort of moratorium on the strictest of their exclusion policies
and commission a study at Portland State University (PSU) to examine whether
someone with a criminal record can be a good tenant. Annette Jolin, Chair of the PSU
Department of Criminology and Criminal Justice told Human Rights Watch:
Before we began designing the study, I had students look for existing
studies that had been done on the connection between ex-offenders and
public housing. We wanted to know: do they make good or bad
tenants? They couldn’t find anything, and I thought, well, maybe they’re

110

Human Rights Watch interview with Scott Pollack, executive assistant, Cuyahoga Metropolitan Housing
Authority, Cleveland, Ohio, May 7, 2003.
111

Human Rights Watch interview with Douglas Apple, general manager, New York City Housing Authority,
New York, New York, May 25, 2004.
112

Ibid.

NO SECOND CHANCE

36

not looking in the right places. And I had others look, and there was
nothing. I was surprised.113
While Jolin explained that much has been written about crime in public housing, there
was nothing about what, in fact, makes for a good tenant. “People had always just gone
with the assumption that having a criminal record makes someone a bad tenant,” she
said, “and that has never been empirically demonstrated.”114
Slated to begin in the summer of 2004, the PSU study will track people with criminal
records who were admitted to public housing in Portland in 2000 for a period of four to
five years.
Based on interviews with public housing officials, Jolin and her team will operationalize
the definition of a “good tenant.” They will then look at whether tenants in the subject
population pay their rent on time, maintain their apartments, create problems for
neighbors, or get evicted. While she plans to look at rates of recidivism, Jolin said,
“that’s not really the point. We really want to focus on whether or not they are good
tenants.”
Although advocates for harsh exclusionary policies argue they are necessary to reduce
crime in public housing, the experience of many PHAs suggests otherwise.
For example, neither the New York nor the Los Angeles city housing authorities
consider arrest records, and both limit the types of offenses that warrant exclusion, as
well as the length of time applicants with criminal records are excluded. Yet officials at
both PHAs told Human Rights Watch that they believe they combat crime just as
effectively with their policies as PHAs with far harsher ones. They also have
acknowledged the importance of including consideration of prisoner reentry needs in
developing public housing policies. “We try to have an enlightened, balanced policy,
recognizing that people do have the ability to rehabilitate,” the general manager of the
NYCHA told Human Rights Watch. “Understanding the role of probation, parole, and
treatment, we try to balance the interests of residents and applicants.”115

113

Human Rights Watch telephone interview with Annette Jolin, chair, Department of Criminology and Criminal
Justice, Portland State University, April 16, 2004.
114

Ibid.

115

Interview with Douglas Apple, May 25, 2004.

37

PUBLIC SAFETY

Additional evidence that highly restrictive criminal record policies are not responsible for
reduced crime rates in public housing developments comes from comparisons between
PHAs located in the same geographic area but with radically different admissions
criteria.116 For example, the Salt Lake City Housing Authority uses automatic exclusion
policies that restrict access to housing for long periods of time and for minor offenses,
while the Housing Authority of the County of Salt Lake undertakes individualized review
of each applicant. Yet officials in both PHAs believe they have achieved increased safety
and reduced crime.
Different housing authorities have different philosophies, legal service representatives
and social service providers told us. The “Williamsport Housing Authority sees itself as
a social service agency,” one experienced paralegal told us of a small town housing
authority in Pennsylvania, while the county housing authority does not. “They take a
more conservative view. The [town PHA] says, ‘let them prove themselves;’ [the county
PHA] is not willing to make that choice.”117
Ironically, many housing providers told Human Rights Watch that it was not people who
had committed crimes in the past that created a risk to safety or presented management
problems.118 Such people, they said, were often grateful for a second chance, and were
eager to put their lives back together. One manager of a Single-Room Occupancy
(SRO) housing program catering to single homeless people in Austin, Texas described
having to persuade the PHA that administers the program to let them admit those with
criminal records. “Some of those we advocated for have been fine,” he told Human

116

Human Rights Watch interviews with housing officials in Williamsport, Pennsylvania, with the Williamsport
Housing Authority and the Lycoming County Housing Authority in November 2003, the city and county of Los
Angeles in February 2004, and the city and county of Salt Lake, Utah in October 2003.
117

Human Rights Watch interview with Linda Milton, paralegal, North Penn Legal Services, Williamsport,
Pennsylvania, December 1, 2003.
118

Some may dispute this notion, pointing to high levels of recidivism, but studies show that those with access
to basic services are less likely to re-offend. For example, the Texas Criminal Justice Policy Council found in
2002 that only 7 percent of those who completed the state substance abuse program committed another
offense within 2 years, compared to a recidivism rate of 25 to 31 percent for those who failed to complete the
treatment program. Tony Fabelo, Recidivism Rates and Issues Related to TDCJ Substance Abuse Treatment
Programs 8 (March 13, 2002), available online at: http://cjpc.state.tx.us/reports/adltrehab/RecidTDCJ.pdf,
accessed on October 18, 2004. Likewise, a study by the Corporation for Supportive Housing in New York
showed that the use of state prisons and city jails dropped by 74 percent and 40 percent, respectively, when
people with mental illness and past criminal records were provided supportive housing. Dennis P. Culhane,
Stephen Metraux, and Trevor Hadley, The New York, New York Agreement Cost Study: The Impact of
Supportive Housing on Services Use for Homeless Mentally Ill Individuals 4 (Corporation for Supportive
Housing, May 2001), available online at: http://www.csh.org/html/NYNYSummary.pdf, accessed on October 22,
2004.

NO SECOND CHANCE

38

Rights Watch. “They are the ones that want to get their lives back together. Those [who
had no criminal records and] went through smoothly, we have problems with.”119
Probation and parole agents told us that some of those that they supervise may be
among those least likely to threaten public safety because they fear returning to prison.
“People on my caseload with long records, they do a 360—‘I’m not going back, I’ve
learned my lesson.’ A past record alone is not a good predictor for reoffense. They may
have messed up before, but it scared them straight.”120
Leslie Steckler, program coordinator for the Women & Children’s Unit at the
Birmingham Salvation Army said of two of her clients interviewed by Human Rights
Watch:
They are at the tail end of their treatment. They’ve already paid back
their communities. They resided in the shelter as the judge told them,
and they’ve worked through their IOP [Intensive Outcare Program]. . . .
They would not be a risk. They made a mistake, they got in trouble with
drugs, they’ve never caused a problem in the shelter. I’ve never had a
problem with these women. They are a couple of my best clients
because they’ve hit that bottom and they’ve dealt with and gotten over
their addiction.121
Human Rights Watch asked a building manager of one of New York’s many private
SROs about the difficulties he faced housing people coming out of prison with serious
charges—people no one else would house. “They don’t bother nobody,” he said,
“Sometimes they’re even more careful not to bother other people. Look, they’ve got a
place to live, they’ve just gotten out, they don’t want to jeopardize that. I’ve never had
any problems.”122
People with criminal records sometimes saw themselves as assets to housing programs.
“Why are we not given a chance?” asked one woman in a transitional housing program
119

Human Rights Watch interview with Ramon Martinez, property manager, Garden Terrace, Austin, Texas,
February 12, 2004.
120

Human Rights Watch interview with Jaqueline Hawkins, parole agent, Baltimore, Maryland, November 18,
2003.
121

Human Rights Watch interview with Leslie Steckler, program coordinator, Women & Children’s Unit,
Salvation Army, Birmingham, Alabama, December 10, 2003.
122

Human Rights Watch interview with a building manager, who wished to remain anonymous, at a single-room
occupancy (SRO) hotel in Manhattan, New York, November 4, 2003.

39

PUBLIC SAFETY

in Baltimore, Maryland. “Ex-offenders that are really trying to do something, women
that’s showing up for the program . . . we’d be a huge asset. We would work harder
because we know the odds are stacked against us—we’d try to prove them wrong.”123
No one argues that exclusionary policies reflect a considered effort to balance the rights
of would-be tenants with those of existing tenants. They were adopted at a time in the
United States when public officials—and the public at large—were willing to ignore the
rights of criminal offenders because of the putative gains of “tough on crime” policies.
Many of those we interviewed for this report were living on the streets, in overcrowded
shelters, and in squalid transient or SRO hotels. In the best of circumstances, they were
crowded into the homes of family or friends for short periods of time or living in
apartments they would not be able to afford the following month. Many of them had
no housing options other than those which, as they themselves recognized, were rife
with domestic abuse, violence, crime, and surrounded by harmful drug and alcohol use.

Homelessness: A Downward Spiral
R.Y., a forty-two-year-old African American man, told Human Rights Watch that in 1996 he
had applied for housing for himself and his three children who were living with him at the
time. He was denied housing because of a drug possession charge for which he had pled
guilty and served 30 days in jail a year earlier. Since being denied he has lost custody of his
children, and many nights he sleeps outside on the streets.
I’m homeless now. . . . It’s real hard to stay not using when you’re outside. I’ve been diagnosed with
depressed [sic] and I haven’t received any treatment for it. I think that’s what kept me using, takes me out
of my misery and the shame and guilt of homelessness. Hey, you need a place to create some stable place in
your life. You have to ad lib your day instead of plan it when you’re homeless.124

Indeed, denying people with criminal records some form of affordable housing may
create a greater threat to public safety for communities surrounding PHA developments.
Life on the streets can create desperation and incentives to break the law. “Homeless
people are much more likely to collect criminal records just for being there—for living
private lives in public places,” explained the director of Baltimore’s Healthcare for the

123

Human Rights Watch interview with T.S., Baltimore, Maryland, November 18, 2003.

124

Human Rights Watch interview with R.Y., Baltimore, Maryland, November 20, 2003.

NO SECOND CHANCE

40

Homeless. “If I want to drink a couple of bottles of wine, no problem. On a street
corner, there are consequences.”125
The consequences of denying people the only means of securing safe and affordable
housing are as obvious as they are tragic:
♦

Lacking stable housing, parents returning from incarceration are unable to
regain custody of their children.126 Child welfare officials remove children
from families that cannot provide them with stable housing. Human Rights
Watch met families who were forced to choose between staying together or
excluding a member of the household with a criminal record, in order to
secure affordable housing for the rest of the family. Policies that so
obviously impede the ability of families to reunite or remain together flatly
contradict the “family values” espoused in the United States.127 They also
violate principles of international law.128

♦

Transient living disrupts a child’s education, emotional development, and
sense of well-being. There is no way to know how many children are
excluded along with their parents from public housing. But we do know that
an estimated 1.5 million minor children have at least one parent in prison on
any given day in the United States, and over ten million had a parent in
prison at one point in their lives.129 Children are “[i]n some ways . . . the

125

Human Rights Watch interview with Kevin Lindamood, executive director, Healthcare for the Homeless,
Baltimore, Maryland, November 21, 2003.
126

The Adoption and Safe Families Act of 1997, Pub. L. 105-898 (codified in scattered sections of the U.S. code
(U.S.C.)), imposes strict time limits on parents’ separation from their children during periods of incarceration.
States are required to file proceedings to permanently terminate all parental rights if children remain in the
custody of the state for fifteen out of twenty-two consecutive months. Required to provide adequate housing for
their children before regaining custody, some parents are unable to access housing in time, and their children
are separated from them forever.
127

One study even attributed rates of recidivism to loss of child custody. Vera Institute of Justice and
Administration for Children’s Services, Patterns of Criminal Conviction and Incarceration Among Mothers of
Children in Foster Care in New York City (December 2003), available online at:
http://www.vera.org/publication_pdf/210_408.pdf, accessed on October 12, 2004.
128

See, for example, the prominence placed on the integrity of the family in the Convention on the Rights of the
Child (CRC), adopted by the UN GA November 20, 1989 (entered into force September 2, 1990, in accordance
with Article 49), arts. 7, 9, 16(1) and 27(3). While the U.S. is one of only two states that have failed to ratify the
CRC, 192 states have, and its provisions are considered customary international law and are applied as such in
U.S. courts.
129

Ibid. Fifty-five percent of all those in state prison and 63 percent of those in federal prison had minor
children. Christopher J. Mumola, Incarcerated Parents and their Children (BJS, August 2000), available online
at: http://www.ojp.usdoj.gov/bjs/pub/pdf/iptc.pdf, accessed on October 18, 2004; Petersilia, When Prisoners
Come Home, p. 43.

41

PUBLIC SAFETY

unseen victims of the prison boom and war on drugs[,]”130 and, hence, the
unseen victims of exclusionary housing policies.
♦

Women may be forced to consider returning to an abuser to avoid
homelessness, where they are particularly vulnerable to rape and violent
crime on the streets. Many women, along with other struggling individuals,
find themselves having to exchange sex for protection, money, or a place to
stay.

No Home, No Family
A community activist in Pittsburgh told Human Rights Watch about a twenty-six-yearold African American woman who had spent time in prison for several felony drug
convictions. When she was released, she worked closely with Children and Youth
Services (CYS) to plan for her children’s return. She applied for public housing
through both the city and the county PHAs but was denied because of her felony
record.
She was working at a Wal-Mart in North Versailles, about an hour-and-a-half bus ride from where
she was staying in Pittsburgh. She would take two buses to get to work, and two to come back. She
went to [recovery] meetings at night. She worked hard, she was a domestic violence survivor, she’d
been really beat up, incarcerated . . . . She couldn’t find a place [to live] and they terminated her
parental rights. CYS was saying, ‘these kids can’t just hang out there [waiting]’ . . . We all cried
together, it was so sad. She had hope, we all had hope.131

♦

People who are inadequately housed, especially those living on the streets or
in homeless shelters, are at a higher risk for communicable diseases such as
HIV and tuberculosis.132 Living in conditions that are unsanitary, without
cooking facilities or refrigeration, or not knowing where the night will be
spent make it extremely difficult to manage a regimen of treatment for
chronic diseases such as diabetes, tuberculosis, and asthma. Existing mental
health conditions are exacerbated by the stress of rejection and housing
instability, and depression is common.

130

Petersilia, When Prisoners Come Home, p. 43. See also Human Rights Watch, Collateral Casualties:
Children of Incarcerated Drug Offenders in New York (New York: Human Rights Watch, June 2002).
131

Interview with Ronell Guy-Curtis, January 29, 2004.

132

Angela Aidala and Jay Cross, Housing and HIV: Drug and Sex Risk Behaviors, report available at the Center
for Applied Public Health, Mailman School of Public Health, Columbia University.

NO SECOND CHANCE

42

♦

Struggling with addiction in even the most ideal circumstances is difficult.
But many treatment professionals argue that without stable housing, relapse
is almost certain.133

♦

Homelessness itself is a predictor for recidivism, particularly for the
commission of minor offenses, as people are forced to, as some have put it,
“live private lives in public places.”134 For example, most cities and towns in
the United States do not have public restrooms, and relieving oneself in a
park or a side street is considered a criminal offense.

Recidivism becomes a self-fulfilling prophecy when offenders are released from
incarceration with scant survival options. As one substance abuse treatment provider
explained, exclusionary policies need to be changed “not just because it’s the humane
thing to do, but because it’s the smart, public safety thing to do.”135

133

Herman Joseph and John Langrod, “The Homeless,” in Substance Abuse: The Comprehensive Textbook
(forthcoming 2004).
134

Interview with Kevin Lindamood, November 21, 2003.

135

Human Rights Watch interview with Chris Retan, executive director, Aletheia House, Birmingham, Alabama,
December 11, 2003.

43

PUBLIC SAFETY

VII. Exclusions Based on Local Policies
Using the authority given to them by HUD, PHAs have adopted a variety of definitions,
graphs, and matrices to guide staff evaluating applicants with criminal records. All too
often, however, the criteria they have adopted are unduly broad, failing to provide any
guidance on how to determine when ex-offenders or people with arrest records pose a
risk to other tenants and when they do not, and which crimes warrant particular scrutiny.
In addition, the periods of time during which applicants with criminal records are
excluded are often unreasonably long. The impact of existing criteria is enhanced
because most PHAs do not conduct an individualized assessment or consider evidence
of rehabilitation or mitigation before rejecting an applicant. They have, in effect,
adopted misguided “zero tolerance” policies that arbitrarily exclude needy applicants
from public housing.

Arrests as Basis for Exclusion
In the United States, everyone is presumed innocent of a criminal offense unless guilt is
established in a court of law. Nevertheless, HUD guidelines allow PHAs to reject
applicants based solely on arrest records even if the charges were ultimately dropped,
and many do just that.136
In our small random sample, nearly all of the PHA policies we reviewed give housing
officials the authority to reject applicants simply on the basis of arrests.137 As best we
could determine, the justification for using arrest records is that “where there’s smoke,
there’s fire.” One official at the Pittsburgh Housing Authority reasoned it is a wellknown fact that when charges are dropped, it does not mean that the person arrested
was not guilty, because, he explained, “[w]itnesses fail to show [and] judges won’t
continue [cases] forever.”138
Some PHA officials do acknowledge that relying on arrest records as the determinant of
housing eligibility is overly punitive. “Arrests have much less weight,” she told us. “If
authorities fail to prosecute, [denying them housing] seems pretty draconian to me. I
136

HUD, Public Housing Occupancy Handbook, Chapter 4: Suitability for Tenancy, 4-1(b)(10), p. 4-3.

137

A report by the Legal Action Center shows that over half of the largest PHAs in each state deny applicants on
the basis of arrest records that do not lead to conviction. Legal Action Center, “What’s the Law,” in After
Prison: Roadblocks to Re-Entry. Some PHAs, however, placed applications on hold pending the resolution of
criminal charges. Human Rights Watch interview with Bernie Jay Meyers, executive director, Williamsport
Housing Authority, Williamsport, Pennsylvania, December 1, 2003.
138

Human Rights Watch interview with Anthony Williams, director of housing occupancy, Housing Authority of
the City of Pittsburgh, Pittsburgh, Pennsylvania, January 27, 2004.

NO SECOND CHANCE

44

give it weight only if [there are] so many arrests, and a conviction; it seems likely that
they have a problem. Otherwise, I don’t pay attention.”139
Certainly there are cases where the nature and number of arrests may suggest reason for
concern, but arrest information should not trigger an automatic denial. It would be
reasonable, however, for PHAs to consider multiple arrests as one of the factors taken
into consideration in an individualized evaluation of an application.

One Mother’s Struggle for Housing
P.C. is a forty-one-year-old African American woman living in Pittsburgh with her nineyear-old son. She was arrested for a child abuse charge which was subsequently
dropped, but she was evicted from her public housing apartment as a result of the arrest.
She lived with relatives after her eviction but could not afford her share of the rent, so
she and her son moved in with her son’s grandfather. Ms. C. re-applied for public
housing, and she was denied in September 2002 because she was told she owed back
rent for the apartment from which she was originally evicted. Ms. C. borrowed money
and found assistance from a community-based organization to help her pay the $839 she
owed. But after she paid, she was notified in March 2003 that her application was
denied because of her criminal background.
I was just totally gone. I couldn’t function. I couldn’t think. I cried. First, I done paid the money,
then they deny me again. I just told myself, I could fight it or just let it go. I prayed on it and I decided
I’d file the grievance.
Ms. C.’s son suffers from mental health disorders, and although she says her son is what
keeps her going through this process, the effect of their denial has affected him as well.
My baby . . .gets real frustrated. He just keeps seein’ me fight and fight. The other day I told him I
had a grievance hearing for housing, and he was jumpin’ all up and down, and he was very excited. He
asked me to go to the grievance hearing, “I wanna go with you and I hope we’ll get housing!” . . . After
we left out, he was crying and he said, “you paid the money, why is they doin’ this to you?”
When they asked me at the hearing, “Is you planning on going out there and getting’ in any more
trouble?” He said “My mommy is a good mommy. She don’t do nothing wrong. She don’t drink, she
don’t do no crack, nothing” They asked me, “Tell me what would keep you from getting’ in trouble?”
And I said, “I don’t drink anymore, I went through anger management classes.”
[My son] asked me today, “leave the keys so I can see when the letter from housing comes.” I think he’s
real bitter now because he sees me fighting all the time. He says, “Mommy, call the news. Don’t be
139

Human Rights Watch interview with Carol Coley, hearing officer, Housing Authority of Portland, Portland,
Oregon, August 1, 2003.

45

EXCLUSIONS BASED ON LOCAL POLICIES

ashamed. I’ll go on TV with you. I’ll be with you. Let’s pray for a house, pray for things to get
better.” That’s what’s pushing me. . . . This has to be stopped. I could see if I had murder charges, but
I wouldn’t do anything to hurt nobody. This gots to stop. My baby’s getting’ bitterer and bitterer and
worse and worse. But he thanks his grandfather for letting us stay here.
Ms. C.’s son’s grandfather has problems of his own, however, and Pennsylvania Children
and Youth Services told her that if she did not find another place to live, they would
place her son in foster care. When Human Rights Watch visited the house, the child’s
grandfather was sitting on the couch with a half-empty bottle of whiskey.
He drinks, he smokes weed, he’s an alcoholic. He has women here that do crack. My baby can’t see
that. He has people in here that rob him. If I don’t get a place soon, they’re gonna take my baby. He
gets violent when he’s drunk. They told me if I don’t get a place, they’ll take him. He [her son] would
try to kill hisself if they take him.
At the time she spoke with Human Rights Watch, Ms. C. was only working part time
because she was taking her son back and forth to a clinic. “I tries to do the best I can,”
she said. Ms. C. is paid $8 an hour working as a housekeeper at Children’s Hospital,
where she passed a child abuse history clearance before being offered the job.
“Children’s Hospital, they gave me a chance.”
Ms. C. received a decision from the Housing Authority of the City of Pittsburgh in
February 2004. She and her son were approved for housing.140

Minor, Non-Violent Offenses
PHAs have adopted exclusionary policies that deny eligibility to applicants with even the
most minor criminal backgrounds. Just about any offense will do, even if it bears scant
relation to the likelihood the applicant will be a good tenant.141
Some PHAs exclude applicants guilty of minor misdemeanor offenses and even of
infractions that do not even rise to the level of a misdemeanor. One PHA official in
rural South Carolina told Human Rights Watch: “Most of the people denied are denied
for shoplifting charges, not paying for video rentals.”142

140

Human Rights Watch interview with P.C., Pittsburgh, Pennsylvania, January 31, 2004.

141

See John J. Ammann, “Criminal Records of the Poor and Their Effects on Eligibility for Affordable Housing,”
Journal of Affordable Housing, Vol. 9, No. 3, Spring 2000. Ammann provides several case studies of lowincome people unable to obtain housing assistance because of outstanding warrants for such offenses as
public transit violations.
142

Human Rights Watch interview with Laurie Meadows, public housing manager, Newberry Housing Authority,
Lawrence, South Carolina, December 16, 2003.

NO SECOND CHANCE

46

Many of the women that Human Rights Watch spoke with had been denied because
they had been charged with passing “bad checks”—paying for merchandise with
personal checks when they did not have money in their bank accounts to cover the cost.
Their rejections were not based on being poor credit risks but on the fact that they had
criminal records.
A Pittsburgh social worker told Human Rights Watch about one twenty-nine-year-old
African American woman with two children who had applied for housing through the
Allegheny County Housing Authority and was denied because of a retail theft charge
three or four years prior to her application.
She was the most peaceful person. She had stolen some chapstick, some
small things from a downtown drug store. She lost custody of her
children right around the time of the denial because she had no stable
housing. . . . I can see where some people do have a problem, but you
can’t make those assumptions. We had not one bit of a problem with
her. She’s not a threat to others.143
Pittsburgh, Pennsylvania housing officials insisted to Human Rights Watch that they
would be justified even in excluding jaywalkers and shoplifters. When Human Rights
Watch asked how shoplifting posed a threat to existing public housing tenants, the
director of housing occupancy said a shoplifter should not be admitted into a housing
development because he would teach children his “craft,” e.g. how to “stuff bags of
potato chips into his jacket.” He added:
This is a threat to the community; people who can influence the
community, sit there on the stoop and teach kids how to commit crime.
. . . There is a greater propensity for crime in public housing that won’t
happen in other communities. If you are a habitual shoplifter, that
shoplifting can lead to anything else that seems to be prevalent in public
housing.144
The logic in these explanations is questionable, especially where the relationship between
the offense and responsible tenancy is remote. Moreover, they suggest an underlying
143

Human Rights Watch interview with Renee D’Ippolito, case manager supervisor, Bethlehem Haven,
Pittsburgh, Pennsylvania, January 30, 2004.
144

Human Rights Watch interview with an official from the Housing Authority of the City of Pittsburgh,
Pittsburgh, Pennsylvania, January 27, 2004.

47

EXCLUSIONS BASED ON LOCAL POLICIES

punitive bias rather than a genuine public safety concern. For example, another
Pittsburgh housing official told Human Rights Watch: “People have to understand that
there are consequences to their actions.”145
New York City Housing Authority (NYCHA) policy allows housing officials to deny an
applicant housing for a period of two years following such violations as disorderly
conduct and “turnstile jumping” (riding the subway without paying the fare). NYCHA
officials, however, told Human Rights Watch that PHA staff evaluating the application
would look at the totality of the information contained in the application. While public
intoxication (a violation) and disorderly conduct, depending on the circumstances, may
justify exclusion, fare evasion alone may not. NYCHA’s Deputy General Counsel
reasoned that a series of such violations could, however, indicate a future risk: “If you
constantly evade [paying the fare], you perhaps will not take lease obligations
seriously.”146
The American Bar Association (ABA) and the U.S. Equal Employment Opportunities
Commission (EEOC) have both recommended that to the extent prior offenses are used
to impose collateral sanctions and what the ABA calls “discretionary disqualifications,”
the disqualification should be “particularly related to the offense[.]”147 Similarly, the
EEOC provided useful guidance to employers regarding the use of arrest records to
screen prospective employees, and it is instructive by way of comparison with PHA
practice. The EEOC advises employers to examine whether there is a “business
necessity” for excluding those with arrest records in much the same way Human Rights
Watch urges PHAs to examine whether there is a valid public safety reason for excluding
those with criminal records:
The question addressed in this policy guidance is “to what extent may
arrest records be used in making employment decisions?" The
Commission concludes that since the use of arrest records as an
absolute bar to employment has a disparate impact on some protected
groups, such records alone cannot be used to routinely exclude persons
from employment. However, conduct which indicates unsuitability for a
particular position is a basis for exclusion. Where it appears that the

145

Ibid.

146

Human Rights Watch interview with Henry Shoenfeld, deputy general counsel for civil litigation, New York
City Housing Authority (NYCHA), New York, New York, May 25, 2004. See, e.g., Faison v. New York City
Housing Authority, Order of N.Y. Co. Supreme Court, June 1, 2000 (Goodman, J.), reversed by 283 A.D.2d
st
353, 354, 726 N.Y.S.2d 23, 24 (1 Dep’t 2001).
147

ABA Standards.

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48

applicant or employee engaged in the conduct for which he was arrested
and the conduct is job related and relatively recent, exclusion is
justified.148

The Consequences of Forging a Check
S.W. was denied housing from the Pittsburgh Housing Authority after she was charged
with a felony offense. S.W. says she lent $200 to a friend who did not pay her back, and
after repeated attempts to get her friend to pay her back, S.W. took one of her friend’s
checks and forged her signature. S.W. paid the money back after she was arrested, but
charges were still pending against her when she applied for public housing, and she was
rejected.
She referred herself to Project Pindua,149 a social services agency in Pittsburgh because
she said she needed help. “We don’t get walk-ins,” said Christina Batesmore, case
manager with the project, “[so] it shows a great deal of initiative, someone looking for
help.” S.W. had lived with her grandmother for most of her life, because her mother
had lost custody of her children due to her own problems with drugs and alcohol.
S.W.’s uncle and his wife took over the house and forced S.W. to move out when she
lost her grandmother to cancer. “They wouldn’t even let me stay there until housing
came through.” She moved in with her boyfriend, but told Human Rights Watch, “I
need a place of my own because he does drugs. I’m not trying to stay with that.”
When she spoke with Human Rights Watch, S.W. was crying and felt there was no hope
for the upcoming hearing that she requested to challenge the denial:
I’m tryin’, but I don’t think this stuff has anything to do with [housing]. I have no idea why they would
deny me, unless they think I’m gonna do it again, and I’m not. . . . I never stole when I was coming up,
I don’t know why I did this, but I learned my lesson.
A high school graduate, S.W. had aspired to return to school to study to be a Certified
Nurse’s Aid, but admitted it would be difficult, if not impossible, if she didn’t have a
stable place to live.150

148

Equal Employment Opportunities Commission Notice, “Policy Guidance on the Consideration of Arrest
Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964,” N-91 5.061 9/7/90, available
online at: http://www.hirecheck.com/downloads/pdf/ComplianceAssistance/EEOCNOFRAME.pdf, accessed on
June 7, 2004 (EEOC Notice).
149

“Pindua” is a Swahili verb meaning to change direction, or turn around.

150

Human Rights Watch interviews with S.W. and Christina Batesmore, Project Pindua, Mon Yough Community
Services, Pittsburgh, Pennsylvania, January 28, 2004.

49

EXCLUSIONS BASED ON LOCAL POLICIES

Charges against S.W. were dropped to a misdemeanor, she pled guilty, and with the help
of her case manager at Project Pindua, S.W. succeeded in her appeal of the housing
denial. She is currently waiting for housing.151

Excluding People with Criminal Records for Excessive Periods of
Time
In addition to determining what sort of conduct is a sufficient basis for exclusion, PHAs
also determine, for different categories of offense, the “exclusion period”—the length of
time applicants must have been crime free following such offenses before their housing
applications can be accepted.
The exclusion periods appear to have been arbitrarily chosen, and are frequently
excessively long. PHA officials could rarely provide us with an explanation for the
particular length of any exclusion period nor could we discern any empirical explanation
for the great variance in exclusion periods across the country; the differences appear
simply to reflect philosophical and policy perspectives. The chart below offers a sense
of the variance in exclusion periods and, more importantly, the remarkable length of
some of them.
In New York City, for example, a person convicted of misdemeanor possession of
marijuana and sentenced to six months probation would be ineligible for housing for
five years. In Sarasota, Florida, a single drug misdemeanor renders a person ineligible
for public housing for four years. In Pittsburgh, Pennsylvania, someone convicted of a
violent felony can be ineligible for life—regardless of how exemplary the years following
his crime had been. And applicants who have prior offenses in Austin, Texas—no
matter how minor—are excluded by the city housing authority for seven years, and by
the county housing authority for ten.

151

Human Rights Watch telephone interview with Sheila Fauntleroy, Project Pindua, Mon Yough Community
Services, Pittsburgh, Pennsylvania, April 16, 2004.

NO SECOND CHANCE

50

Discretionary Exclusion Periods
Arrest

Violation

Misdemeanor

Felony

Serious/
Violent Felony§

HA City of
Pittsburgh

indefinite †

indefinite

4 years ‡

7 years ‡

≤lifetime ¥

Allegheny
County HA

DNC

DNC

5 years

5 years

lifetime

HA City
of Austin

indefinite †

indefinite †

7 years

5-7 yrs

lifetime

Travis
County HA

indefinite †

indefinite †

10 years

20 years

20 years

HA County
of LA

indefinite †

indefinite †

3 years

3 years

3 years

Sarasota,
FL HA

≤ 2 = 3 years indefinite †

4 years

10 years

20 years

New York
City HA*

DNC

3-4 years

5 years

6 years

Pittsburgh, PA

Austin, TX

Other PHAs

2 years

DNC Does not consider.
§ PHAs define “serious felony” differently, and include offenses such as murder, arson, kidnapping,
domestic violence, aggravated assault, drugs, and child abuse in addition to the federally-mandated sex
and methamphetamine offenses.
† PHAs can consider applicant’s conduct regardless of when it occurred; the exclusion period is
indefinite in duration.
‡ Each misdemeanor nets a four year exclusion; hence, two misdemeanors renders an applicant
ineligible for eight years; three would mean an applicant would not be eligible for twelve years from
the date of completion of the last misdemeanor. Likewise with felonies: two felonies would render an
applicant ineligible for fourteen years, and so on.
¥ HACP officials told Human Rights Watch that applicants with the most serious offenses had to
have approval from a Criminal Activities Review Board (CARB) before being deemed eligible. They
implied that it would be very difficult for someone with certain offenses to ever pass CARB review.
For drug-related offenses.
* In New York, exclusion periods begin upon completion of a sentence. For example, a person
would be ineligible for housing for two years following completion of a sentence of one-year
probation for a misdemeanor offense, which could mean that a person is actually ineligible for
housing for three years following the commission of a misdemeanor.

51

EXCLUSIONS BASED ON LOCAL POLICIES

Kelli Dunn Howard, an attorney with Texas RioGrande Legal Aid (TRLA) in Austin,
told Human Rights Watch about a twenty-four-year-old African American woman who
applied for public housing for herself, her eighty-year-old father, and the four children
she cares for—two of her own and two of her sister’s, who is currently serving time in
prison. In addition to caring for the children, the client attends college and does
volunteer work.
The city housing authority denied her application in January 2004 because of simple
assault and marijuana possession charges from six-and-a-half years prior to her
application, offenses committed when she was eighteen. The client had pled guilty to
both offenses, received probation, and then the charges were dismissed. Howard told
Human Rights Watch that her client said, “‘If it were just me, I could afford the rent
because I’m working, but I can’t if I’m taking care of all these people.’”152

Whose Problem Is It?
A woman who won a high-profile grant of executive clemency from President Clinton in
2000 was also turned away from public housing. Dorothy Gaines, a forty-five-year-old
African American woman from Alabama with three children, had been convicted of a drug
offense and was serving a nineteen year sentence at the time of her pardon. She and her
boyfriend at the time of her conviction were involved with a group of people who were
selling drugs. When members of the group were arrested, they testified against Gaines,
whose only alleged link to drug activity was a one-time delivery of three small bags of crack
cocaine to a corner dealer. Gaines received a sentence of twenty years to life, while ranking
members of the group received sentences as low as five years for testifying against her.
Gaines served six years in prison before being released by Clinton, and when she returned to
her community, jobless, without a place to live, and owning only the dress she was wearing
when she was released, she turned to public housing for assistance. She was denied based
on her prior record. “I gave them the paper where I had been released by President Clinton,
but they didn’t care,” she said. Gaines said she had done enough fighting, she did not want
to fight the housing authority. She has struggled since her release to pay the rent on her
house in Mobile, Alabama and keep her family together.
When I called and told them [the Housing Authority] who I was, she said, “I don’t care about none of
that.” I said, “What am I supposed to do about housing?” She told me, “That’s your problem, not mine.”
She told me it didn’t matter to her. No drug offenders, regardless. It’s the same way with apartments
around here. I’ve called places on the phone and then they give you the criteria, and because I have a felony, I
don’t qualify.153

152

Human Rights Watch interview with Kelli Dunn Howard, staff attorney, Texas RioGrande Legal Aid, Austin,
Texas, February 11, 2004.
153

Human Rights Watch telephone interview with Dorothy Gaines, March 30, 2004; See also, Chuck Armsbury,
Sr., The November Coalition, “Dorothy Gaines, Guilt by Association,” available online at:

NO SECOND CHANCE

52

Not all PHAs arbitrarily set long periods of exclusion. Some housing officials recognize
the absurdity of thinking that someone who has been arrest-free for a long period of
time could be deemed a risk because of a remote criminal offense. “We had one man
apply,” said a PHA official in rural South Carolina, “he had an assault charge for
domestic violence in 1983. There’s no reason not to house this person. If he had an
ongoing problem, he would have a record. I mean, we’re talking twenty years now. He’s
in his early fifties now.”154 Another housing official told Human Rights Watch:
You have to impose rules in a fair way. . . . The felonies, the remoteness
of the crime has to be taken into consideration. If it’s one or two years
ago, you wonder. If it’s five or six, you shouldn’t even consider it.155

Paying the Price
A social worker in Pittsburgh, Pennsylvania told Human Rights Watch about B., an African
American woman in her fifties who sought public housing, when she became disabled after a
period of rehabilitation and stability.
She was on the street for twenty-five years. She had six kids, five are now incarcerated, one for life. For
twenty-five years she battled drug addiction. . . .Crack, methamphetamine, alcohol, everything, the whole
spectrum. . . . What treatment was available to her at that time [twenty-five years ago]? She ran the
streets, married her husband and they were both shortly thereafter incarcerated. After the last five years of her
own incarceration [for felony fraud], she was back to the streets. She was passing by a picnic for Alpha
House, a drug treatment facility, in the park, and when they explained to her what Alpha House was, at
first she laughed and made fun of them. But then she walked in the door and they took her. It was amazing
because they always have a waiting list, but it was fate, it was her time. She spent two years in the program,
she did de-tox, rehab, and then a step-down program. . . . Within six months, she was employed full time
as a social service provider, she was engaged to be married, she graduated from school and was supporting her
own housing. Two months later, she broke her ankle, and she had no medical leave from her new job. She
applied for public housing, but both the city and the county housing authorities rejected her, and she chose not
to appeal. We reaccepted her back into our transitional program, she got better, went back to work full time,
and applied for public housing again. She was rejected again recently. What the hell else does this woman
have to do? Because she’s proved that she can do it. She did screw up, she paid enough of a price to make up
for what she did, and she’s been doing everything she can. She’s done nothing but try to erase the twenty-five
years of havoc she wreaked. She’ll do anything to make sure no one else goes down that path. She’s open
and honest about her past, and now she’s the biggest advocate we’ve had. . . . She’s watched five of her kids go
down the same road, and she pays the price for it every day.156

http://www.november.org/thewall/cases/gaines-d/gaines-d.html, accessed on July 6, 2004; “Clinton Grants
Pardon to 59,” Miami Herald, December 23, 2000.
154

Interview with Laurie Meadows, December 16, 2003.

155

Interview with Bernie Jay Meyers, December 1, 2003.

156

Human Rights Watch interview with Adrienne Wolnoha, Community Human Services Corporation,
Pittsburgh, Pennsylvania, January 29, 2004.

53

EXCLUSIONS BASED ON LOCAL POLICIES

Lack of Individualized Review
HUD guidelines provide that: “A criminal record should not automatically exclude an
applicant from consideration. The PHA should determine whether the person would be
a suitable tenant.”157 When PHAs receive what HUD calls “unfavorable information”
about an applicant, HUD advises them to “consider the possibility of more favorable
future conduct,”158 and evaluate criminal background information on a “case-by-case
basis” taking into consideration both the seriousness and remoteness of the criminal
activity.159 HUD suggests that PHAs consider such mitigating circumstances as a record
of rehabilitation as indicated by a report from parole officer or a social worker, or
participation in a drug or alcohol treatment program.160
Despite these recommendations, PHAs typically automatically exclude anyone with a
criminal record that falls into one of their designated categories and exclusionary periods
without any individualized assessment.161 They exercise their discretion in only one
direction—to deny eligibility.
Rudy Vazmina, executive director of the Sarasota Housing Authority in Florida,
explained his understanding of the discretion PHAs have to consider mitigating
circumstances. “We can have strict liability. We can also use discretion to look at the
totality of the circumstances.”162 Under no obligation to consider mitigation then, many
PHAs have adopted “strict liability” exclusionary policies.
Jimmie Lacey, the director of public housing for the Housing Authority of the
Birmingham District (HABD) told Human Rights Watch: “Our goal is to screen people
in, not screen people out. It’s to our advantage to get residents in.”163 But what we
found by speaking with people who had dealt with HABD was quite different. “If you’ve
ever had much worse than a parking or a speeding ticket, they’ll keep you out. It’s a
blanket policy,” explained Kenneth Lay, managing attorney of Legal Services of Metro
Birmingham.

157

HUD, Public Housing Occupancy Handbook, Directive No. 7465.1 Rev.-2, Chapter 4, 4-3(b)(11).

158

Ibid., Chapter 4, 4-3(a).

159

HUD, “One Strike and You’re Out” Policy.

160

HUD, Public Housing Occupancy Handbook, Chapter 4, 4-3(b)(1)(a) & (b).

161

Ibid., Chapter 4, 4-3(b)(11).

162

Human Rights Watch interview with Rudy Vazmina, executive director, Sarasota Housing Authority,
Sarasota, Florida, March 20, 2003.
163

Human Rights Watch interview with Jimmie Lacey, director of housing management, HABD, Birmingham,
Alabama, December 10, 2003.

NO SECOND CHANCE

54

They do nothing if we don’t sue them. . . . Their policies are, whatever
they can do [to keep people out], they will do. They make no
exceptions. . . .They say, well, if we exercise discretion, someone will
charge us with discrimination. . . . We generally don’t win. They stick by
their policy.164
A grant of clemency is designed to “forgive[e] a person the criminal liability of his
acts,”165 but PHAs are not required to consider grants of clemency in evaluating public
housing applications. “The governor gave me clemency,” said Elaine Bartlett.
Nevertheless, after serving sixteen years in prison at the time of her parole, she was told
she could not request a larger apartment for her family, because she had a felony
conviction. The New York PHA manager reportedly told her: “‘You’re not even
supposed to be here. Be thankful you’re here and be quiet.’”166
Transitional housing providers who try to assist their clients in obtaining permanent
housing have witnessed firsthand the refusal of some PHAs to accept applications
without any assessment of rehabilitation or the actual risks posed.
“[C.] was on the waiting list for six months,” a legal service provider from Pittsburgh,
Pennsylvania told Human Rights Watch about a client who had been denied:
She was perfect for public housing. She had a small income . . . She was
more devastated by the process than by the final answer, they kept
asking her to come back and bring them this and bring them that. . . .
She had drug possession charges in the past, and most recently, bad
checks. . . . She was interviewed and denied, but we were surprised
because we were working with housing trying to advocate for her, but it
didn’t help. . . . She was not a danger to anyone.167

164

Telephone interview with Kenneth Lay, December 12, 2003. The director of one of the largest shelters in
Birmingham for homeless men claimed: “This housing authority is one of the worst housing authorities I’ve ever
dealt with . . . they won’t bend their rules. In my experience, they don’t make exceptions.” Human Rights Watch
interview with Steve Freeman, executive director, The Old Firehouse Shelter, Birmingham, Alabama, December
11, 2003.
165

“Clemency” is a general term that encompasses pardon, amnesty, and commutation. Steven H. Gifis,
Barron’s Law Dictionary, 3rd ed. (Hauppauge: Barron’s Educational Series, 1991). See, e.g., Herrera v. Collins,
506 U.S. 390, 412 (1993).
166

Gonnerman, Life on the Outside, p. 232.

167

Human Rights Watch interview with Doreen White, housing and employment specialist, Transitional Living
Center, Pittsburgh, Pennsylvania, December 1, 2003.

55

EXCLUSIONS BASED ON LOCAL POLICIES

“They add up the years and that’s it,” legal service providers said. “Efforts at
rehabilitation are in their guidelines, but it doesn’t seem to matter.”168

What’s the Use in Appealing?
S.C., a forty-year-old African American woman living with HIV in New York City, lost
her apartment and everything she owned in a fire. She received some assistance from
the Red Cross but was advised to apply for public housing. Her application was
prioritized due to the fire, and she was interviewed for housing within days.
They asked me if I’d ever been convicted of a crime, and I figured, I shouldn’t lie, so I said yes. Then
they asked me questions about drug abuse, and I couldn’t understand what any of it had to do with why
I needed housing.
The PHA told Ms. C. that she would have to get a Certificate of Disposition from the
court and letters of support from various agencies. She got the certificate, a letter of
recommendation from her children’s foster care agency, letters from her doctor,
psychiatrist, the Fire Marshall, Red Cross, and the Brooklyn AIDS Task Force. “I did
everything that they asked me to do.” Two weeks after she turned over the documents,
she received a denial letter.
After she was denied, Ms. C. told Human Rights Watch:
They said I could appeal, but once they told me no, and I had just run around after a fire and went
through hell to get all those letters, I said to myself, “What I’m gonna appeal for? I’m gonna bring the
same stuff back again.” So I didn’t put in for an appeal … I might as well be getting high. Why did
you make me go to my children’s agency if you knew you were gonna deny me? I knew in the back of my
mind that they deny people. I thought maybe they’d accept me because I had all these people advocating
for me and all these letters, and they still said no.169
An individualized review of an application typically occurs, if at all, during a hearing
challenging a rejection. Indeed it seems that PHAs may practice a “reject first, ask
questions later” approach to applicants. For example, according to local legal service
providers, the Austin, Texas housing authority uses a “shotgun approach. They reject
everybody,” and then it is up to the applicant to request a hearing. The housing
authority, according to TRLA staff, wants to “see how bad they want it.”170 An attorney

168

Human Rights Watch interview with Meghan Tighe, staff attorney, Neighborhood Legal Services, Pittsburgh,
Pennsylvania, January 27, 2004.
169

Human Rights Watch interview with S.C., New York, New York, November 3, 2003.

170

Human Rights Watch interview with Virginia Rojo Holland, paralegal, Texas RioGrande Legal Aid, February
11, 2004. At the Housing Authority of the City of Pittsburgh, for example, all applications are initially denied if
the criminal background check reveals prior criminal activity, and the applicant is given an opportunity to appeal.

NO SECOND CHANCE

56

for Neighborhood Legal Services in Pittsburgh explained: “The city housing authority, I
think, sees the grievance hearing as their exercise of discretion. Allowing them
[applicants] to have one satisfies the requirement.”171
Similarly, a legal service provider in Portland told Human Rights Watch that the position
of the Housing Authority of Portland was that they would “be strict on the first cut, and
then the appeals officer can look at mitigation.”172 The Oregon Law Center urged the
PHA to include some consideration of mitigation in the “first cut,” but it was unable to
persuade the housing authority to change its practice. “Why should all these people
have to go to the hearing when most of them are going to get in if they ask for a
hearing?”173 Indeed, our research suggests that a high proportion of those who seek a
hearing after a rejection will in fact be granted admission. But the burden is on the
applicant to seek review of the denial, and to be able to negotiate the appeal process
simply to receive the individualized consideration that HUD guidelines already
encourage.
Despite the plain language of HUD guidelines urging careful exercise of discretion to
make individual housing application decisions, housing officials across the country
shared the sense that they had little such discretion, and many painted a picture of HUD
officials peering over their shoulders as they made decisions about whose applications to
approve. “There is a growing realization that everyone needs somewhere to go, but
we’re so limited by what we can and cannot do by federal regulations,” one PHA official
told Human Rights Watch.174 “We don’t have much policy leeway,”175 another official
said. “We’re stuck with HUD regulations,” said yet another housing official in
Pennsylvania:

One PHA official said: “For the sake of integrity, We don’t believe we should have that discretion.” Another
added: “We wanted to objectify a very subjective process, so we believe a hearing officer should look at it
[because] we have family and friends of employees coming into the office. . . .They can appeal it if they like.”
Human Rights Watch interviews with Suman Jaswal and Anthony Williams, Housing Authority of the City of
Pittsburgh, Pittsburgh, Pennsylvania, January 27, 2004. The Cuyahoga Metropolitan Housing Authority
(CMHA) denies applicants who had convictions more than three years prior to the application, and does an
individualized determination only if applicants ask for a hearing. Human Rights Watch interview with Duane
Browder, vice chairman, Board of Commissioners, CMHA, Cleveland, Ohio, May 8, 2003.
171

Human Rights Watch interview with a lawyer from Neighborhood Legal Services, Pittsburgh, Pennsylvania,
January 27, 2004.
172

Human Rights Watch interview with Mickey Ryan, Oregon Law Center, Portland, Oregon, August 7, 2003.

173

Ibid.

174

Human Rights Watch interview with Anthony E. Woods, executive director, Greene County Housing
Authority, Eutaw, Alabama, December 12, 2003.
175

Interview with Esther Keosababian, February 6, 2004.

57

EXCLUSIONS BASED ON LOCAL POLICIES

I don’t like a fixed rule of ineligibility, I don’t think that’s fair. . . . You
can’t predict what may or may not happen. . . . The federal government
makes it very awkward. It’s expensive [for us], and there are privacy
concerns [for the applicants]. . . . If you paid your dues, it stays with
you. It’s kind of strange. You’re denied the privilege of housing, or the
right to apply for it. It’s not a fair process.176
When pressed to explain how HUD restricted their discretion, housing officials could do
no more than make vague references to the law or to HUD oversight. They were not
able to give us any specific examples or show us any documents from HUD raising
questions about, or even indicating familiarity with their specific admissions policies or
criteria.
Indeed, during the research for this report, we found no evidence that HUD makes an
effort to ascertain how PHAs exercise their discretion in the admissions process.
Human Rights Watch made numerous efforts to hold meetings with HUD officials to
discuss their review of PHA policies, among other matters. HUD officials consistently
refused to meet with us.
On March 17, 2004, Human Rights Watch submitted a list of written questions to HUD
concerning specific PHA practices and policies we had uncovered during our research
that appeared to be inconsistent with federal policies. In a written response, the
department’s deputy assistant secretary in the Office of Public Housing and Voucher
Programs refused to address the specific examples we had raised. He explained:
HUD’s obligation in its oversight responsibilities extends to requiring
that PHAs follow all applicable federal laws, HUD regulations, and all
applicable state and local codes and laws. As to compliance with all
applicable laws and regulation, PHAs exercise their own discretion in the
day-to-day management of PHAs. It is the stated policy of HUD not to
micromanage competent and successful PHAs as to program
administration and decision-making. . . . Only where a PHA fails to
comply with all applicable laws, usually in extreme circumstances, will
HUD undertake the day-to-day management decisions of a PHA. It is
only in this rare situation, where HUD is acting as the landlord, and
substituting its own judgment for that of the PHA, that HUD would

176

Interview with Bernie Jay Meyers, December 1, 2003.

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have actual knowledge of the specifics regarding the exercise of PHA
discretion, absent a complaint made directly to HUD.177
In fact, Human Rights Watch reviewed HUD’s annual scoring of PHA performance and
found that only one point out of a possible one hundred was related to a PHA’s “one
strike” policy. HUD officials speaking off the record and many local PHA officials told
Human Rights Watch that HUD never reviewed the contents of a PHA’s policy, but
rather simply checked to ensure that it had one. Auditors reportedly never examine the
content of the policies. “Our lenient policies don’t impact our HUD evaluations,” one
housing official told Human Rights Watch. “You just need to have a policy, really, that’s
all they look for.” Despite the apparent lack of HUD scrutiny, however, PHAs
consistently maintained to Human Rights Watch that they had adopted strict
exclusionary policies because of HUD oversight.

Challenging Automatic Exclusionary Criteria
Many legal service providers told Human Rights Watch that they did not deal with
public housing admissions cases. Some offices, however, have been very active in
challenging local PHA policies. While legal service offices commonly challenge PHA
practices on behalf of individual clients, at least two legal service organizations have
sought class-wide relief for applicants denied under blanket policies. 178 Both cases were
resolved, with relief to individual plaintiffs and PHA adoption of more carefully tailored
admissions criteria.
A consent order entered following a challenge brought by the Atlanta Legal Aid Society
is the most sweeping relief we found.179 The unpublished consent decree requires the
PHA to limit their review of criminal convictions to those obtained within five years of
the application, consider only convictions and not arrests, and to take into consideration

177

Letter to Human Rights Watch from William O. Russell, III, deputy assistant secretary, Office of Public
Housing and Voucher Programs, HUD, April 5, 2004.
178

Legal service agencies that receive funding from the federal government are not permitted to file class action
lawsuits to obtain relief for a group of applicants. Federal law states: "None of the funds appropriated . . . to the
Legal Services Corporation (LSC) may be used to provide financial assistance to any person or entity . . . that
initiates or participates in a class action suit." Omnibus Consolidated Rescissions and Appropriations Act of
1996, Pub. L. No. 104-134, § 504(a)(7), 110 Stat. 1321, 50 (1996) (codified at 29 U.S.C. 2996e(d)(5)). This
restriction has been re-imposed in each subsequent year's LSC budget allocation. “Recipients are prohibited
from initiating or participating in any class action.” 45 C.F.R. § 1617.3 (2004). The Committee on Economic,
Social and Cultural Rights has suggested that “[i]n some legal systems it would also be appropriate to explore
the possibility of facilitating class action suits in situations involving significantly increased levels of
homelessness.” Committee on Economic, Social, and Cultural Rights, General Comment No. 4, para. 17.
179

Consent decree in Bonner v. Housing Authority of Atlanta, Georgia, No. 1:94-CV-376-MHS (N.D. Ga.
October 11, 1995).

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EXCLUSIONS BASED ON LOCAL POLICIES

evidence of rehabilitation. Legal Aid attorneys elsewhere in Georgia have used the order
to pressure other PHAs to amend their policies accordingly.180
Attorneys at the Homeless Persons Representation Project (HPRP) in Baltimore
undertook a lengthy process of pressuring the PHA to revise its zero-tolerance blanket
policies. Threatened with a federal lawsuit similar to the Atlanta case, the PHA recently
adopted revised guidelines and attorneys continue to monitor the PHA’s adherence to
the new policy.181
There are very few published decisions on individual admissions cases. A challenge
brought by Pine Tree Legal Services in Maine, however, resulted in a thoughtful decision
by the Maine Superior Court.182 The local PHA had adopted a policy excluding anyone
with a criminal record for violent activity at any time in the past. Ruling on a challenge
by an applicant who had been convicted of a sex offense fifteen years prior to his
application, the court found that the housing authority never considered the time that
had passed since his conviction. The court rejected the PHA’s claim that admissions are
entirely discretionary and that the “housing authority is free to establish standards which
may be more stringent than those promulgated by HUD.”183 The court reasoned:
The HUD regulations do not place an unreasonable burden upon the
housing authority by requiring that it undertake an inquiry into the
reasonableness of the time which has passed since the date of the acts.
Such inquiry would presumably include looking into the circumstances
of the conviction, what has transpired since the conviction, and the
amount of time which has passed since the conviction. There is no
180

Human Rights Watch telephone interview with Dennis Goldstein, attorney, Atlanta Legal Aid Society, June 1,
2004.
181

Human Rights Watch e-mail correspondence with Carolyn Johnson, staff attorney, Homeless Person’s
Representation Project, Baltimore, Maryland, to Human Rights Watch, May 21, 2004; Complaint on file with
Human Rights Watch. Baltimore Housing Authority adopted a chart developed by the HPRP to guide staff in
making admissions decisions.
182

Ouellette v. Housing Authority of the City of Old Town, Docket No. AP-03-17, 2004 Me. Super. LEXIS 60
(March 12, 2004). Human Rights Watch asked a HUD spokesperson to comment on how, absent a lawsuit like
the one brought on behalf of Ouellette, HUD would become aware of PHA policies and practices that are in
conflict with federal law and HUD guidelines. She responded that HUD would not be aware unless an applicant
brought an issue to the agency’s attention. “It’s about making applicants more aware of their rights,” she said, “I
don’t know who it would be [who would do that], its not our responsibility. . . It’s about making ex-offenders more
aware of their rights. I don’t know how I can respond to that, the policy is there and what HUD’s intent is [is
clear], an applicant can go to the legal services.” Human Rights Watch telephone interview with HUD
spokesperson Donna White, May 21, 2004. When asked how applicants would know their rights if they did not
have access to an attorney, she responded: “I really don’t know.”
183

Ouellette, *3-4. Because the plaintiff was convicted of the sex offense prior to the establishment of the
state’s sex offender registry, he was not required to register and therefore was not subject to the federal ban.

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bright-line standard for a reasonable amount of time. By accepting a
zero-tolerance policy regarding convicted individuals, the Respondents
divert from the clear intent of the policy reflected in the HUD
regulations. The regulations unambiguously mandate a consideration of
whether a reasonable time has passed since the conviction (thus
presumably rendering the applicant non-dangerous to other residents).
In the absence of such a consideration and finding, the Respondent has
circumvented this necessary analysis.184

184

Ouellette, *4-5.

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EXCLUSIONS BASED ON LOCAL POLICIES

VIII. Legislatively Mandated Categories of Exclusion from Public Housing
While federal law gives PHAs discretion in most instances to determine who is suitable
for public housing, it expressly prohibits PHAs from providing housing assistance to
three categories of offenders—those believed to be using drugs, those required to
register as “sex offenders,” and those convicted of manufacturing methamphetamine on
public housing premises. People in the latter two categories are excluded for life,
regardless of the number of years they have spent without committing another offense.

Denials Based on Evidence of Drug Use
PHAs may not admit anyone they reasonably believe is currently using illegal drugs.185
Federal law and HUD regulations specifically authorize PHA officials to ask applicants
about their drug use histories and, after receiving consent from the applicants, obtain
otherwise confidential records from their treatment providers.186 PHAs can admit
applicants with a history of drug use, including recent use, if they are able to show
sufficient rehabilitation.
Human Rights Watch recognizes the unique problems that have arisen in many low
income communities, particularly in public housing developments, from the illegal drug
trade. Public housing tenants themselves have struggled against the violence and
harassment that is part and parcel of the illegal drug trade, and indeed, housing
exclusionary policies have their roots in tenants’ efforts.
There is no doubt that certain harms—to individuals, families, and communities—can,
in some cases, attend illegal drug use. But contrary to popular assumption, drug use
does not necessarily entail violence, crime (except that inherent in the buying and
possession of drugs themselves), or even serious harm. Most drug users do not even
develop a dependency on drugs. In fact, “there are ample data supporting a conclusion
that . . . most drug use is transient, noncompulsive, and innocuous.”187

185

42 U.S.C. § 13661(b), see also 24 C.F.R. §§. 982.553(a), 960.204(a).

186

42 U.S.C. § 1437n(e)(1). One federal circuit court rejected a challenge to provisions of the federal law that
allow PHAs to ask applicants about their history of drug and alcohol use and obtain records from substance
th
abuse treatment programs. Campbell v. Minneapolis Public Housing Authority, 168 F.3d 1069 (8 Cir. 1999).
187

Norbert Gilmore, “Drug Use and Human Rights: Privacy, Vulnerability, Disability, and Human Rights
Infringements,” 12 The Journal of Contemporary Health Law and Policy, 412 (Spring 1996).

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Often people confuse the prevalence of drug use among those charged with violent and
property crimes to mean that those who use drugs are more likely to engage in such
crime. To the contrary, most drug offenders appear to be otherwise law-abiding
individuals.188 In fact, the vast majority do not commit violent or property crimes at
all.189
Federal housing law, consistent with federal drug policy, considers all drug use to be
drug abuse. U.S. Department of Health and Human Services statistics reveal that only a
small percentage of those who use drugs become heavy drug abusers or addicts. For
example, of the 3.7 million Americans who have used heroin, only 3 percent used it in
the last month.190 Although nearly thirty-five million Americans twelve years or older
have used cocaine in their lifetime, only 0.6 percent of the entire U.S. population (i.e.,
less than 2 million people) are considered to have abused the drug or developed a
dependency.191 As a leading critic of drug laws has pointed out, “So much of the media
attention has focused on the relatively small percentage of cocaine users who become
addicted that the popular perception of how most people use cocaine has become badly
distorted.”192
Because drug use is illegal and highly stigmatized, most people become aware of it only
when it wreaks havoc—when someone overdoses, commits a crime, or when a life falls
spectacularly apart. The only other drug users most people are aware of (besides

188

A high percentage of persons convicted of criminal conduct use drugs, but there is no evidence suggesting
most drug users commit non-drug offenses. See, generally, U.S. Department of Justice, Drugs, Crime, and the
Justice System, (Washington, D.C.: U.S. Department of Justice, December 1992); New York City Criminal
Justice Agency, Summary Final Report: Changing Patterns of Drug Abuse and Criminality Among Crack
Cocaine Users, (New York: New York City Criminal Justice Agency, January 1990). Mario De La Rosa, et. al.,
eds., Drugs and Violence: Causes, Correlates, and Consequences, (Washington, D.C.: National Institute on
Drug Abuse, U.S. Department of Health and Human Services, 1990); Thomas Mieczkowski, ed., Drugs, Crime
and Social Policy: Research, Issues and Concerns (Boston: Allyn and Bacon, 1992). Drug law critics argue that
a certain amount of drug-related crime is in fact caused by the drug prohibition policies and that alternative drug
sanction mechanisms would reduce drug-related crime; e.g., Ethan Nadelmann, “Drug Prohibition in the United
States: Costs, Consequences, and Alternatives,” 248 Science (September 1, 1989).
189

See Bruce L. Benson et al., Independent Policy Report: Illicit Drugs and Crime (Oakland: The Independent
Institute, 1996), available online at: http://www.independent.org/tii/content/pubs/policyrep/p_bensonipr.html,
accessed on July 6, 2004. Benson and his co-authors cite a 1992 BJS Report, which found that drug offenders
are far more likely to recidivate for a drug offense than for a violent or property offense (citing Patrick A. Langan
and Mark Cunniff, "Recidivism of Felons on Probation, 1986-89" (BJS: Special Reports, 1992).
190

Substance Abuse and Mental Health Services Administration, 2003 National Survey on Drug Use & Health,
(Rockville: U.S. Department of Health and Human Services, 2004), tables A.1 and A.2, available online at:
http://www.oas.samhsa.gov/p0000014.htm#NHSDA, accessed on September 22, 2004.
191

Ibid., table A.1 (rates of cocaine use), table A.6 (rates of dependence and abuse).

192

Nadelmann, “Drug Prohibition in the United States: Costs, Consequences, and Alternatives,” p. 939, 944.
See also Douglas N. Husak, “The Nature and Justifiability of Nonconsummate Offenses,” 37 Arizona Law
Review 151 (Spring 1995).

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OF EXCLUSION FROM PUBLIC HOUSING

politicians, radio talk-show hosts, and nominees for high level positions like Supreme
Court justice) are former users who seek to impress upon their audiences the importance
of recovery by emphasizing a litany of horrors. The public is rarely exposed to and the
media pays little attention to people whose drug use is uneventful and transient.193
There is a common assumption that drug users are more likely than not to bring with
them a whole passel of problems—attracting other drug users and dealers who will
jeopardize peace, quiet, and safety; resorting to stealing; or harassing neighbors in some
way, for example, by appearing in front of children comatose and obviously drugged.194
This fear is based on what statisticians call a sampling error or a built-in bias, the result
of conclusions drawn from the most extreme examples, which, not surprisingly, are the
examples most frequently presented by the media.195 Perhaps more telling, though, is
that over 110 million Americans have used illicit drugs during the course of their lives.196
If it were true that the above-enumerated harms attended all drug use, the United States
would be in a state of constant chaos.
Human Rights Watch asked one building manager from a private SRO hotel in
Manhattan if he knew if any of his tenants used drugs.197 “Oh yeah, a lot of them do,”
he told us, “But so do people in that building and that building and that building over
there,” he said, pointing to the many private apartment buildings up and down the street.
When we asked him if they caused problems, he said, “There are always people who
create problems. They bother other neighbors, they play music loud, they don’t pay
their rent.” But, he explained, this was everyone, not just drug users. “A lot of people
193

Research shows that, among drug users, those who do not seek drug treatment have fewer interpersonal
and social problems than those who do. Research among these individuals shows that recovery occurs in the
“natural progression” of heroin dependence. See Jason S. Luty, “Social Problems, Psychological Well-Being,
and Childhood Parenting Experiences in a Community Sample of Heroin Addicts in Central London,” Substance
Use & Misuse, vol. 38, no. 2 (2003), p. 209.
194

Generalizations about the harm caused by drugs should not be derived from atypical scenarios. See
Douglas Husak, “Desert, Proportionality, and the Seriousness of Drug Offences,” in Andrew Ashworth and
Martin Wasik, eds, Fundamentals of Sentencing Theory (Oxford: Clarendon Press, 1998), p. 187-219.
195

For example, a plan to estimate rates of “hardcore” drug use commissioned by the Office of National Drug
Control Policy very explicitly relies on an examination of the extremes:
These efforts rely upon models of the rate at which people who use drugs make contact
with various elements of the criminal justice, drug treatment, and health care systems. The
models are predicated on the belief that observed numbers of "institutional contacts"—and
by this we mean numbers of arrests, drug treatment admissions, and stays at homeless
shelters—can tell us something about unobserved drug use activity.
Ronald Simeone et al., A Plan for Estimating the Number of “Hardcore” Drug Users in the United States (Abt
Associates, April 21, 1997), p. 1.
196

2003 National Survey on Drug Use & Health, table 1.28A.

197

Many of those who were housed in this particular SRO had either been found ineligible for public housing or
had chosen not to apply because they had criminal records.

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who use, they’re addicts, and they don’t bother nobody. They get their drugs and they
use them in their rooms.”198
It may be difficult to tell the difference between an applicant who uses illegal drugs
without causing problems for those around him and one who will ultimately pose a risk.
But there are objective criteria that PHAs can look to in order to determine whether
someone would pose a risk: first and foremost, the absence of any past offenses besides
the possession of drugs. PHAs could, in addition, look to additional evidence like
character references, proof of employment, or enrollment in job training. Under current
law and practice, when applicants challenge denials in administrative proceedings
(whatever the basis of denial), administrative law judges already consider this type of
information.
Though federal law requires a PHA to deny admission to applicants who it reasonably
believes are currently using drugs, denial on this basis alone is rare. In practice, the issue
of current drug use typically arises during the application process either when an
applicant’s criminal background suggests past involvement with drugs (a drug possession
charge), or when the applicants themselves seek to use evidence of drug rehabilitation to
show that they are unlikely to commit another type of offense (such as petty theft or
prostitution). In such cases, absent sufficient evidence of rehabilitation, PHAs will
presume that the applicant is a “current user” and will deny their application.
Human Rights Watch understands the need to ensure that those drug users likely to
disrupt the safety of a community are not housed in traditional public housing
developments. Instead of simply excluding all current drug users, however, PHAs
should be permitted to assess the nature and effects of a person’s drug use instead of
making blanket assumptions about the character of all drug users. At the same time,
HUD should begin to develop alternative housing for those excluded to ensure that they
are not relegated to homelessness.199

198

Human Rights Watch interview with a building manager, who wished to remain anonymous, at an SRO hotel
in Manhattan, New York, November 4, 2003.
199

Researchers in Australia, for example, have concluded that the prevalence of drugs in public housing is an
indication that public housing itself may be inappropriate for some of those in need of housing assistance, and
that alternative models must be developed. Judith Bessant et al., Heroin users, housing and social
participation: attacking social exclusion through better housing (Australian Housing and Urban Research
Institute, June 2002), p. 23, available online at:
http://www.ahuri.edu.au/attachments/30056_final_heroinusers.pdf, accessed on October 22, 2004.

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“Sex Offenders”
If our national attitude is one of fear, which it is, when you foster an attitude of fear, everybody begins to
buy into that fear. You become afraid of everything. . . . This is fear mongering at a national level
[and] one of the biggest targets is sex offenders.200
—Fred Butler, executive director, Community Action Network
In an effort to exclude “dangerous sex offenders” from regular public housing, federal
law prohibits anyone subject to state sex offense registries201 from admission to public
housing.202 A lifetime exclusion from public housing may sound reasonable in terms of
protecting children from violent, repeat sexual predators, but not everyone who has
committed a sex offense poses a danger to children or others, much less a lifelong
danger.
State sex offender registries are not limited to predatory child molesters and violent serial
rapists. Some of the over 450,000 people currently listed in state sex offender
registries203 are young men who had sexual relationships with girlfriends no more than a
few years younger than them. Some are women convicted of conspiracy to commit
200

Human Rights Watch interview with Fred Butler, executive director, Community Action Network, Austin,
Texas, February 12, 2004.
201

The federal statute known as Megan’s Law established the nation’s vast state-by-state sex offense
registration and community notification system. Act of May 17, 1996, P.L. 104-145, § 1, 110 Stat. 1345,
amending 42 USCS § 14071(d). Information about each state’s sex offender registry can be found by
accessing any individual state database and looking for links to others, for example, see New York State’s
database, available online at: http://criminaljustice.state.ny.us/nsor/links.htm, accessed on April 1, 2004.
202

See 42 USCS § 13663 (2004) explicitly purports to deny dangerous sex offenders, but in fact, requires PHAs
to deny eligibility to anyone listed on a state sex offender registry, a number of whom cannot be considered
dangerous, but are guilty of offenses that were non-violent or consensual. In addition, neither the statute nor
state sex offense registry laws allow for any independent determination of whether a registered sex offender is
dangerous or not. See, e.g., Connecticut Dep’t of Public Safety v. Doe, 538 U.S. 1160 (2003); Archdiocesan
Housing Authority v. Demmings, 2001 Wash. App. LEXIS 2276 (Wa. Ct. App 2001). In 1999, the local PHA
found that three of its public housing residents were convicted sex offenders. Because it interpreted federal law
to mean that sex offenders were ineligible for housing assistance, the PHA sought to evict Mr. Demmings, a
convicted sex offender who had been living without incident in the development since 1996 and was compliant
with his treatment plan. Demmings argued both that he posed no risk to other tenants, and that he suffered
from a documented mental illness. While the court expressed sympathy and “applaud[ed] his successful
rehabilitation,” Ibid., *3-4, it affirmed Demmings’ eviction nonetheless. The court concluded its opinion by
noting: “The rule is harsh as to all sex offenders who increasingly struggle to find housing upon their release. . .
The rule is, however, reasonable.” Ibid., *9.
203

At the end of 2001, according to BJS, about 386,000 people convicted of sex offenses were registered in
forty-nine states and the District of Columbia, up from 277,000 in 1998. U.S. Department of Justice, BJS, BJS
Fact Sheet: Summary of State Sex Offender Registries, 2001 (March 2002), available online at:
http://www.ojp.usdoj.gov/bjs/abstract/sssor01.htm, accessed on July 6, 2004. Some advocates put the number
of those subject to state sex offender registries at closer to 500,000. L. Arthur M. Parrish, Commentary:
Megans’ Laws: Accomplishing its purpose? [sic], October 30, 2003, available online at:
http://www.geocities.com/eadvocate/issues/commentary-consequences.html, accessed on September 16,
2004.

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sexual abuse against a child for failing to protect a child from sexual abuse by a
boyfriend, husband, or other male family member. People subject to lifetime sex
offender registration requirements also include those whose offenses consisted of
indecent exposure or lewd displays, often related to a substance abuse or mental health
diagnosis or homelessness. For example, relieving oneself in public can—and many
times does, in the case of homeless people and the mentally ill—result in a charge of
indecent exposure.
Helen Varty, executive director of the Capital Area Homeless Coalition in Austin, Texas
told Human Rights Watch:
Sex offenders are the hardest. Most of them take a plea, they are
mentally ill or developmentally disabled, and they exposed themselves.
From now on, they can’t live anywhere. I mean, they get these offenses
for pissing off the porch. Most sex offenders that took plea bargains;
they say, “that’s the only choice I had.” They end up on the streets.204
In many states, the most dangerous, violent sexual predators are incarcerated for long
periods of time, some for the rest of their lives. In addition to prison sentences, about a
third of all states have provisions for the civil commitment of sex offenders.205 But
many sex offenders will ultimately be released from confinement, and they must—and
do—live somewhere.
After a local sheriff spent months searching for a landlord willing to rent to a registered
sex offender with a mental health diagnosis, Linn County, Oregon spent $45 to purchase
his new home: a camping tent with an army surplus cot. “Transitional housing” for
Bruce Scott Erbs was a tent in a yard behind the jail with a tin can for a toilet.206 Erbs
204

Human Rights Watch interview with Helen Varty, executive director, Capital Area Homeless Coalition,
Austin, Texas, February 11, 2004.
205

According to Peter C. Pfaffenroth, “The Need for Coherence: States’ Civil Commitment of Sex Offenders in
the Wake of Kansas v. Crane,” 55 Stanford L. Rev 2229, 2232 no. 22 (2003), sixteen states have civil
commitment statutes for sex offenders. The states are: Arizona, California, Florida, Illinois, Iowa, Kansas,
Massachusetts, Minnesota, Missouri, New Jersey, North Dakota, South Carolina, Texas, Virginia, Washington,
and Wisconsin. In his dissenting opinion in Kansas v. Hendricks, 521 U.S. 346 (1997), Justice Breyer made
reference to seventeen states with civil commitment laws, seven of which were not cited by Pfaffenroth
(Colorado, Connecticut, Nebraska, New Mexico, Oregon, Tennessee, and Utah). Statutes in these states
provide for some lesser form of commitment-like pre-trial commitment or treatment upon release from prison.
The U.S. Supreme Court has upheld the indefinite confinement of sex offenders. See, e.g., Kansas v.
Hendricks, rejecting the theory that confining someone based on a determination of future dangerousness and
mental abnormality constitutes double jeopardy, because the confinement is not punishment. See also, Seling
v. Young, 531 U.S. 250 (2001).
206

Andrew Kramer, “Oregon Houses Paroled Sex Offender in Tent,” Associated Press, August 4, 2003.

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OF EXCLUSION FROM PUBLIC HOUSING

was moved to a $155-a-week motel when he contracted pneumonia after a period of
cold weather. Erbs said, “It’s a lot better than the tent. . . . I’m staying out of trouble. I
don’t mean nobody no hurt. The deal that people can’t change when they come outta
prison is bogus. They can if they put their minds to it.”207 Rory A. Woodell, another
convicted sex offender who completed his prison sentence, was also housed in a tent
outside of downtown Bellingham, Washington.208
A released sex offender in North Dakota was jailed by court order because he could not
find a place to live. “There was really no place for him to stay,” said the state’s attorney,
“the alternative was for him to sleep under the bridge.” 209
Restrictions on access to public housing and the increasing inability of sex offenders to
find private housing anywhere, regardless of their income, mean that many will wind up
in shelters, in tents, or living on the street. Neither federal, state, nor local governments
have acknowledged their obligation to ensure that sex offenders, no less than any other
U.S. resident, have access to safe, decent and stable housing.
Mike Alvidres of the Skid Row Housing Trust in Los Angeles noted:
Anyone who’s been in jail is problematic, these guys add to the mix of
problems. But I don’t know where you go. Is that what we want? To
drive people underground? . . . I’m not sure from a big picture
perspective that it makes any sense. Where will sex offenders live?
Obviously you don’t want them to live near kids, but I’m not sure it
makes sense to create more desperation in people.210

207

“Sex Offender Kept in Tent Gets Pneumonia,” Associated Press, November 17, 2003.

208

“Sex Offender Living in Tent,” Bellingham Herald, August 8, 2003.

209

“Sex Offender Jailed While Searching for Home, Job,” Associated Press, January 25, 2004.

210

Human Rights Watch interview with Michael Alvidrez, supportive housing managing director, Skid Row
Housing Trust Property Management Company, Los Angeles, California, February 4, 2004. Some turn to crime
in desperation. For example, a registered sex offender in Wisconsin held up a bank after being evicted and
resorting to living in a tent in the park. Dan Wilson, “Robbery spurred by lack of shelter,” Post-Crescent (WI),
August 27, 2004.

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Shamed to Death
Kaye Fohn, a social worker with the Salvation Army in Austin Texas, told Human
Rights Watch about a seventy-year-old man who had applied for housing assistance
while staying at the Salvation Army rehabilitation program. He was denied because he
had committed a sex offense ten years earlier.
He was not a risk. He inappropriately touched a child when he used to be a raging alcoholic. He [was]
clean 12 years. He was in jail, and now he’s subject to a lifetime registration. He was here [at the
Salvation Army] for two years. . . . It was virtually impossible to place him. . . . He was very ashamed,
he carried that shame with him until the day he died. . . . Who’s to say who’s a risk? But I can tell you
that I’ve had my grandchildren here, and he would get up and leave the room. Did it make me uneasy?
Not at all.
We’ve had some sex offenders here where I would have felt that threat. . . . They have to have a place to
live. I don’t know how anybody can make that determination—will somebody reoffend?
No one should have to live on the streets. . . . His health was failing and nursing homes would not take
him, it was horrible. . . . I tried no less than ten places. . . . He ended up going into a horrible facility
where he did not receive the care that a patient in a nursing home should get.
Did these conditions lead to his death? Absolutely. That man gave up. He had nobody. There was no
place else for this individual to go. I will go to my grave thinking that him going into that nursing home
led to his death. The man I checked in one late day in August was not the same man I saw in
December. It was phenomenal. He stopped eating, drinking; he was willing himself to death.211

Methamphetamine Manufacturers
In 1999, Congress passed the last categorical ban on public housing assistance, a lifetime
exclusion from public housing for anyone convicted of manufacturing or producing
methamphetamine on the premises of public housing.212
Methamphetamine—known by its street names “speed,” “ice,” “crank,” and sometimes
called “the poor man’s cocaine”—is an illegal drug. It is manufactured largely in makeshift chemical laboratories by combining components of some over-the-counter cold
remedies with other chemicals.213 Manufacturing the drug produces explosive gas and
toxins. The inherent volatility of the process combined with the clandestine nature of its
211

Human Rights Watch interview with Kaye Fohn, Salvation Army, Austin, Texas, February 11, 2004.

212

Amendment No. 3207 to Departments of Veterans Affairs and Housing and Urban Development, and
Independent Agencies Appropriations Act, 1999, 144 Cong Rec. S 8330, 8365-66, amending Section 16 of the
United States Housing Act of 1937 (42 U.S.C. § 1437n), July 16, 1998.
213

Additional information about methamphetamine, including a time line of the drug’s history, is available online
at: http://www.erowid.org/chemicals/meth/, accessed on June 1, 2004.

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LEGISLATIVELY MANDATED CATEGORIES
OF EXCLUSION FROM PUBLIC HOUSING

production, whereby those operating “meth labs” often do so in hidden spaces without
adequate ventilation, make production of the drug uniquely dangerous.
The co-sponsors of the new mandatory exclusion—Senator Kit Bond and then-Senator
John Ashcroft—cited the “raging crisis” of the rise in methamphetamine use, and the
dangers associated with manufacturing the drug. Senators Bond and Ashcroft sought to
send a blunt message: “If you want to turn your taxpayer-subsidized residence into a
meth lab, the only public housing you will be eligible for in the future is the
penitentiary.”214 Neither of the Senators nor anyone else in Congress offered any
justification for the lifetime length of the ban. A fifty-year-old whose methamphetamine
offense was thirty years ago would still be prohibited from public housing no matter
how virtuous and exemplary his subsequent life.
Since the sharp rise in methamphetamine production and concomitant increase in
criminal penalties is a fairly recent phenomenon, PHAs have yet to see those convicted
of methamphetamine manufacture applying for public housing. As one PHA official
noted, “they are most likely still in jail.” But interviews with PHA officials nonetheless
suggest that the law will have an impact even broader than that mandated by its express
language. Several officials from different PHAs explained to Human Rights Watch that
they understood the law to require them to deny housing assistance to those convicted
of mere possession of the drug. PHAs also deny people charged as conspirators because
they were present in a home where methamphetamine was being made.215 Housing
officials in Los Angeles told us that they would deny anyone convicted of manufacture
of the drug regardless of whether it was on federally-assisted housing property or not,
because they could not tell from conviction records where the offense took place.216

214

John Aschroft, introducing the amendment, Congressional Record, 105th Cong. vol. 144, pt. 8366.

215

Human Rights Watch interview with S.L., Marillac House, Salt Lake City, Utah, October 1, 2003. S.L. told
Human Rights Watch that she had been living with an abusive partner who was manufacturing
methamphetamine, and, because she was present at the time, she was charged with the same offense. She
was subsequently denied housing.
216

Human Rights Watch meeting with staff of the Housing Authority of the City of Los Angeles, Los Angeles,
California, February 3, 2004.

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IX. Screening People Out: “Felons Need Not Apply”
If you’ve got the big ‘F,’ it’s hard to move forward.217
—Sheila Fauntleroy, Project Pindua, Mon Yough Community Services
Many people in need of housing assistance do not apply because they have criminal
records. Although there is no way to quantify this assertion, our research indicates that
many eligible applicants, or those who would certainly be eligible if PHAs rightfully gave
individual consideration to each application, do not apply. Some do not know they are
eligible despite having a criminal record, others are misled into believing that they are
not, and still others are turned away at the applications desk by PHA employees who do
not understand the exclusionary policies.
In every city Human Rights Watch visited to conduct research for this report, social
service providers, prison officials, probation and parole officers, homeless service
providers, housing advocates, and even people with criminal records and their advocates
told us that it was “common knowledge” that felons, especially drug offenders, were
automatically ineligible for public housing. Many of those providing support and
services to people with criminal records were not aware of the policies of their local
PHAs. They based the information they had on rumors, past experiences with
applicants who had been denied, and very rudimentary and infrequent contact with staff
from local PHAs. As a result, an overwhelming majority of the homeless people with
criminal records we spoke with had not even considered public housing as an option.
“They’re not even applying because they know they’re not going to get it,” a Baltimore
parole agent told Human Rights Watch.218 A homeless woman in Birmingham echoed
this thought: “A lot of people don’t apply because they know they got a felony and
they’re not going to get public housing.”219
Some of those seeking assistance were turned away at applications offices, or
discouraged from applying by PHA staff. “I asked for an application for Section 8,” a
young man with a felony conviction in New York told us, “They asked me if I had a

217

Human Rights Watch Interview with Sheila Fauntleroy, Project Pindua, Mon Yough Community Services,
Pittsburgh, Pennsylvania, January 28, 2004.
218

Interview with Jaqueline Hawkins, November 18, 2003.

219

Human Rights Watch interview with P.D.P., Church of the Reconciler, Birmingham, Alabama, December 11,
2003.

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SCREENING PEOPLE OUT:
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felony. I said, ‘yes.’ They said I wasn’t eligible because of the felony. They said, ‘Well,
then, this application isn’t for you.’”220
One commentator called officials who discourage those who might be eligible from
applying “welfare cheats.” “They are not people who receive welfare illicitly,” David
Shipler explains,
The more damaging welfare cheats are the caseworkers and other
officials who contrive to discourage or reject perfectly eligible families.
These are the people who ask a working poor mother a few perfunctory
questions at the reception desk, then illegally refuse to give her an
application form . . . It is a clever tactic, say the lawyers, because they
cannot intervene on behalf of a client who has not applied.221
Social service providers often actively discourage their own clients from applying for
public housing, sometimes because they misunderstand the policies of the local PHA,
and sometimes because they do not want to set their clients up for failure. A case
manager in Pennsylvania explained her reluctance to send clients to apply for public
housing: “I’m not sure if I should tell residents to apply if they have a felony record, if
it’s worth the hassle because it’s just such a set-up, even if there is an appeal. . . . I just
don’t encourage them.”222 A transitional housing provider in Birmingham echoed her
concern. “Once someone tells you they’re not accepting ex-felons,” he explained, it
seems “unkind” to refer clients to a service they are unlikely to get.223

220

Human Rights Watch interview with E.B., twenty-four-year-old Latino man in New York. Even when they
chose to apply, most of those with criminal records we spoke with had little hope that their applications would be
approved. As one woman who had been convicted of a felony seven years prior to her application told us:
I’ve never had a record since then [in the last seven years]. I was eighteen at the time this
happened. A friend of a friend who lives in public housing told me that I can’t get housing
because of my record. She asked a lady at CMHA [Cuyahoga Metropolitan Housing
Authority] for me and the lady said you can’t get housing. The housing authority didn’t send
me a rejection letter. I called and asked about my application. They said someone will get
back to me, but they didn’t. I said forget it because I already heard you can’t get in. I was
just trying to see if it was true.
Human Rights Watch interview with M.L., Cleveland, Ohio, May 5, 2003.
221

Shipler, The Working Poor: Invisible in America, p. 229.

222

Interview with Renee D’Ippolito, January 30, 2004.

223

Human Rights Watch telephone interview with Chris Retan, executive director, Aletheia House, Birmingham,
Alabama, December 10, 2003.

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The Screening Process
Federal law authorizes and encourages PHAs to screen out applicants based on criminal
records, and PHAs have adopted a variety of methods for doing so. Many PHAs ask
applicants when they apply about their past involvement with the criminal justice
system,224 and then seek official criminal records from public or private sources.225
Other PHAs wait until an application comes to the top of a waiting list and a housing
unit is available before conducting a criminal background screen, and several years may
pass between the time a person applies and when the criminal background check is
completed. Consequently, many applicants who will inevitably and ultimately face denial
based on their criminal records languish on waiting lists, often completely unaware of
which offenses could result in denial and what kinds of rehabilitation the PHA will
ultimately require for admission.226 If PHAs told applicants up front both how PHA
exclusionary policies would affect them and what kind of evidence of mitigation and
rehabilitation they would need to become eligible, an applicant could use the intervening
months, and often years, to gather evidence of rehabilitation.227
224

Human Rights Watch reviewed sample applications from over twenty-five different housing authorities; some
included questions about the applicant’s arrest history, others asked specifically about an applicant’s past
convictions.
225

Although federal law authorizes law enforcement agencies to release information to PHAs, it does not
require them to do so. As a result, some PHAs have developed relationships with law enforcement or state
criminal record repositories; others seek information from companies that sell criminal background information.
Federal law does not limit how far back into an applicant’s life criminal background checks can extend, and
many PHAs receive information about a person’s entire criminal history, even though there are only two types of
offenses that carry lifetime exclusions. California PHAs are a notable exception, because state law prevents
them from obtaining information about criminal convictions that occurred ten years prior to the application, and
in some cases, those that occurred more than five years prior. Law enforcement agencies are permitted to
release to housing authorities information about convictions involving controlled substances or alcoholic
beverages within five years. California Penal Code § 11105.03(b)(4). Section 11105.03 limits the information a
law enforcement agency can provide that “relates to a conviction for a serious felony . . . involves a violation of
a protective order . . . , or a conviction for any felony offense that involves controlled substances or alcoholic
beverages, or any felony offense that involves any activity related to controlled substances or alcoholic
beverages, or a conviction for any offense that involves domestic violence.” § 11105.03(b)(1). The statute
prohibits the release of arrest information where the arrest did not result in conviction. § 11105.03(b)(2). The
statute further provides: “If a housing authority obtains summary criminal history information for the purpose of
screening a prospective participant pursuant to this section, it shall review and evaluate that information in the
context of other available information and shall not evaluate the person’s suitability as a prospective participant
based solely on his or her past criminal history.” California Penal Code § 11105.03(c).
226

In its Public Housing Handbook, HUD recognized applicants’ interests in finding out sooner, rather than later,
that they may be ineligible, but noted that a PHA that waits until an applicant comes to the top of the waiting list
before conducting an assessment “avoids the time and expense involved in evaluating applicants who will drop
from the waiting list before their names can be reached.” Chapter 4-1(b)(5), page 4-3.
227

The New York City Housing Authority (NYCHA) provides applicants it denies with information about what
kinds of evidence they would need to show to overcome a finding of ineligibility. Unfortunately, NYCHA
provides this information at the end of the process, after an applicant has likely spent years on a waiting list.
But in fact, most PHAs do not tell applicants anything at all about what kinds of evidence they would need to
show.

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The Cost of a Criminal Background Check
PHAs are not permitted to pass the cost of a criminal background check along to an
applicant for public housing.228 HUD has no affirmative responsibility, however, to
ensure that this does not happen, and has no process for regularly reviewing the actions
of PHAs. HUD officials told Human Rights Watch they rely on applicants and legal
service providers to notify them of PHA practices that violate the law.229 But most
applicants have no idea what their PHAs can and cannot do, and legal service providers
in some areas were unaware that the practice was in violation of the law.
Applicants for housing in Lycoming County in Pennsylvania, for example, are reportedly
charged $75 for a criminal background check.230 The Austin Housing Authority requires
applicants to obtain their own criminal histories from the Texas Department of Public
Safety by paying a fee of $15. Applicants who choose to follow through with the
application process can then present their receipt to the housing authority to receive a
cash refund. When Human Rights Watch asked HUD to comment on whether Austin’s
practice of shifting the initial cost to the applicant was consistent with federal law, an
agency spokesperson declined to respond, because a complaint had not been brought to
HUD’s attention.231
The costs associated with a criminal background check go beyond simply obtaining
criminal records. Applicants who dispute the veracity of a PHA’s criminal background
check bear the burden of providing additional records. And in cases where applicants
are called on to show mitigation or rehabilitation, to the extent that those records entail a
cost to reproduce, applicants bear that cost.

228

24 CFR § 982.553 (d)(3) (Section 8); 24 CFR § 960.204 (d) (public housing).

229

See also the section on “Challenging Automatic Exclusionary Criteria” in Chapter VII of this report; Human
Rights Watch telephone interview with Donna White, HUD spokesperson, May 21, 2004. Until HUD directed
the Baltimore Housing Authority (BHA) to halt the practice in 1997, BHA required all applicants for public
housing to purchase copies of their own criminal histories to provide to the housing authority, without notifying
the applicants that they would be summarily denied eligibility for assistance if their histories included any
arrests. BHA’s practice of denying anyone with a criminal history was so broad that applicants were denied
assistance for any arrests—even those where the charges were ultimately dismissed.

230

Human Rights Watch interview with Danna Rich-Collins, officer manager/paralegal, North Penn Legal
Services, Williamsport, Pennsylvania, December 1, 2003; Human Rights Watch interview with S.L., Sojourner
Truth Ministries soup kitchen December 2, 2003. Officials at the Lycoming County Housing Authority failed to
respond to repeated requests for information.
231

Letter to Human Rights Watch from William O. Russell, III, deputy assistant secretary, Office of Public
Housing and Voucher Programs, HUD, April 5, 2004.

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Less than Reliable Criminal Background Information
When PHAs seek to acquire criminal background information, they utilize a patchwork
of sources—from informal phone calls to the sheriff down the road and paying for
information from commercial vendors to accessing state repositories or the National
Crime Information Center (NCIC) database for comprehensive criminal histories.232
Commercial vendors—companies which collect and sell individual background data—
are quickly growing enterprises, but critics explain they are unreliable.233 Lawyers in
Texas told Human Rights Watch that the Travis County Housing Authority pays $200 a
year for unlimited criminal background “hits” from a commercial vendor, which they
claim is “horribly unreliable. . . . It doesn’t list everybody, but incomplete can be
dangerous. It’s sloppy, but it cuts both ways.”234
PHA officials told us about a recent applicant who had been erroneously rejected
because of inaccurate information provided by a commercial vendor:
One girl, she had convictions on her record for prostitution and drugs,
selling crack cocaine in Columbia, South Carolina five years ago. I
denied her, she called saying, “I don’t have any drug charges.” We told

232

HUD, “Table II-6: The Sources Of Information For Criminal Background Checks, By Program Size,” The
Uses of Discretionary Authority in the Tenant-Based Section 8 Program: A Baseline Inventory of Issues, Policy,
and Practice (November 2000), p. 15.
233

See, e.g., HUD, “Table II-6: The Sources of Information For Criminal Background Checks, By Program Size,”
The Uses of Discretionary Authority in the Tenant-Based Section 8 Program: A Baseline Inventory of Issues,
Policy, and Practice (November 2000), p. 15. Commercial vendors often use a system of “name-plus-identifier,”
matching the names and one other piece of personal information, such as a social security number or birth
date. Commercial vendors that make information available on their websites include a “disclaimer” putting the
user on notice that they cannot guarantee the accuracy of the records. A study by the National Task Force on
Interstate Identification Index Name Check Efficacy, however, found that in a sample of over eighty-two
thousand people, 4,562 (5.5 percent) were inaccurately found to have criminal records. National Consortium for
Justice Information and Statistics (SEARCH), Interstate Identification Name Check Efficacy Report to the
Attorney General (1999), p. 3.
234

Human Rights Watch interview with Nelson Mock, staff attorney, Texas RioGrande Legal Aid, February 11,
2004.

75

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her: “put it in writing, ‘that’s not me.’” We had to go call [the state
criminal records repository] because there was no social security
number, it just hits on a name and date of birth. It was a common
name, same date of birth, and it turns out it wasn’t her.235
Even official law enforcement records contain some errors. One study found that 87
percent of criminal record after prosecution (“rap”) sheets included at least one error.236
PHAs recognize that criminal justice records are sometimes inaccurate, and they have
different ways of dealing with inaccuracies—from allowing applicants to view their
records before housing officials see them,237 to confirming any negative information by
requiring applicants to submit fingerprints.238 But most PHAs simply rely on applicants
to challenge their denials at informal hearings. This is not an effective way to ensure that
applicants are treated fairly, because, as described in the section “Lack of Individualized
Review” in Chapter VII of this report, applicants have difficulty availing themselves of
their right to challenge denials.

The Cost of Making a Mistake on a Housing Application
Applicants may unwittingly, or out of fear that they will be denied, provide erroneous or
incomplete information on their initial housing applications. Providing false or
inaccurate information on an application for public housing almost always leads to a

235

Interview with Laurie Meadows, December 16, 2003.

236

Legal Action Center, Study of Rap Sheet Accuracy and Recommendations to Improve Criminal Justice
Recordkeeping, (1995). The study found that 41 percent of all records contained two or more errors, including
missing disposition information, unsealed cases, unrecorded warrants that had been vacated, split arrest
events, and inaccurately recorded disposition information.
237

Applicants at the Birmingham Housing Authority get their criminal background checks done themselves in
the same building as the PHA, and after reviewing their rap sheet, they can decide for themselves whether to
continue with the application process. This approach gives applicants a chance to correct any errors before the
PHA sees their rap sheets, and to engage in additional rehabilitation prior to continuing with the application, but
it places those with open cases at risk. A Birmingham housing official told Human Rights Watch:
The criminal background check is done in the building, they take it to the office and they
[the police] run it. They can decide not to give it to us. . . . If someone comes in with an
outstanding warrant, they will go to jail. They are arrested right out of the office.
Approximately 30 people a month are arrested when they go to get their backgrounds
checked. Even for parking tickets. That’s the most common.
Interview with Jimmie Lacey, December 10, 2003. Applicants who have been arrested from the housing
authority office also include people who have third degree misdemeanor check charges and theft of property
charges, “misdemeanor stuff,” Lacey explained. “We had one today, she owed $127 in fines, and she had
some arrest warrant from ten years ago. It was an assault, a domestic violence situation where she and her
batterer were arrested.” Ibid.
238

th

See Allen v. Muriello, 217 F. 3d 517 (7 Cir. Ill. 2000).

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76

denial of eligibility.239 Indeed, PHA officials themselves told us that a one of the leading
reasons for denial is providing “false” information on an application.
Many applicants perceive that the cost of lying justifies the need to lie if they will
ultimately be denied because of prior arrests or convictions. One advocate explained:
“Why do they lie? Because they know they will be denied; that you will be homeless, and
this is an opportunity to get some help that you definitely need. The risk is minor.”240
But Human Rights Watch also spoke with many people who were unable to understand
or articulate their own criminal histories.
Because criminal background checks conducted by PHAs reach so far into the past,
many applicants are accused of lying on their applications when they fail to remember
the details of prior cases, or worse, when a case was dismissed but the applicant is unable
to prove it. An attorney in Baltimore told Human Rights Watch that the housing
authority “would go ten, twenty years back. [A] nol pros241 twenty years ago. They
[applicants] didn’t remember what happened. The housing authority would try to make
it look like they were lying.”242

239

Some PHAs explicitly warn applicants against providing false or incomplete information on the initial
application. For example, the form used by the Housing Authority of the County of Los Angeles (HACoLA)
states:
A criminal conviction alone may not necessarily result in the denial of assistance. Other
factors such as disclosure on the application for housing assistance, completion of
rehabilitative treatment, type and longevity of the conviction may also be taken into
consideration. An applicant who fails to provide complete and accurate information as
requested may be denied assistance.
See also HACoLA Section 8 Administrative Plan, § 2.6.s
240

Human Rights Watch interview with Susan Burton, executive director, A New Way of Life, Los Angeles,
California, February 5, 2004. In at least one instance, however, the PHA took action to prosecute an applicant
who had not fully disclosed his background to the agency in federal court. U.S. v. Westover, 2002 U.S. Dist.
LEXIS 19714 (D. Kansas). The Topeka Housing Authority brought Verel Tracy Westover Sr. to federal district
court where he was charged with making a material and false statement on his application for public housing.
The application Westover completed asked: “Have you ever been convicted of a FELONY, serious
MISDEMEANOR or for DRUGS?” Westover responded “yes” on the application, disclosing a 1998 conviction
for writing bad checks, but did not mention felony convictions he had in 1984. A subsequent criminal
background check done by the THA revealed information about the fourteen-year-old convictions. Westover’s
attorney told Human Rights Watch that his client, now serving a year and a day in federal prison, is a senior
citizen who had just undergone bypass surgery and was residing in an elderly hospice at the time he was
sentenced. He explained his client’s response on his application as the result of confusion rather than an
intention to misrepresent his record. Westover “had a six-inch record that an attorney would have a hard time
understanding.” Human Rights Watch telephone interview with Ronald E. Wurtz, assistant federal defender,
Office of the Federal Public Defender, Topeka, Kansas, January 16, 2004.
241

“Nolle prosequi “ is a Latin term for “unwilling to prosecute,” or the prosecution’s abandonment of a charging
rd
document. Barron’s Law Dictionary, 3 ed., p. 320.
242

Human Rights Watch interview with Carolyn Johnson, staff attorney, Homeless Persons Representation
Project, Baltimore, Maryland, November 17, 2003.

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There are certain legal outcomes of criminal proceedings that applicants may not
understand—either because they lack the ability to understand them or because the
outcomes themselves are unclear. An individual arrested for a drug offense and diverted
to an alternative to incarceration program (ATI), for example, completes the program
and is told by a judge that her record is “clean.” Relying on that information, the
applicant answers “no” when asked if she has ever been arrested or convicted. Because
dispositions in ATI cases are often confusing, and because completion is not always
reported to agencies that manage criminal background data, the information received by
a PHA very likely will show the arrest or conviction, and the applicant will then be
considered to have misrepresented the information or lied, and hence, denied assistance.
PHAs allow applicants they consider to have misrepresented criminal history
information to explain why the information they provided did not match the
information retrieved by the PHA through the criminal background check process.
PHA officials, however, told us that they did not consider an applicant’s failure to
understand a criminal disposition a valid excuse.

“A Criminal for the Rest of My Life?”
H.G., a fifty-seven-year-old African American woman, was denied housing by a private
low-income housing provider243 for a conviction she did not know was on her record.
“It was very depressing,” said H.G.’s caseworker. “It was a shock to her. It is having an
effect on her health. I saw her decline. She didn’t know where to go or what to do. It
set some things in motion right after. She got pneumonia, and she was in pretty bad
shape. She’s recuperating now. It really did knock her for a loop.”244
H.G. understood very little about what she was charged with and less about the ultimate
disposition of the case. With the assistance of a social worker, she attempted to obtain
information about her criminal record. She produced a document from the
Pennsylvania State police that, she explained, showed that she was never convicted of
any offense. H.G. could not understand the letter, however, which only stated that her
request for information was under review.245

243

H.G. had applied for housing through Allegheny Housing Rehabilitation Corporation (AHRCO), a housing
agency that operates with a combination of public and private funding and whose admission policy is governed
by HUD regulations. Human Rights Watch telephone interview with John Ponds, vice president, AHRCO, April
20, 2004.
244

Human Rights Watch interview with Kathy Hupner, case manager, Debra House, Pittsburgh, Pennsylvania,
January 28, 2004.
245

Pennsylvania State Police, Pennsylvania Access to Criminal History (PATCH) Response for Criminal Record
Check, March 11, 2002, on file with Human Rights Watch.

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78

H.G. told Human Rights Watch that she and her brother got into a fight after her
mother’s death in 1990. The police were called, she was taken to the hospital, and her
brother was taken to jail. She joined her brother in jail after being treated for her
injuries. She explained:
We both spent the night in jail. I didn’t press charges, but I paid the fine for both of us. I don’t know
what you’d even call it, it wasn’t bail. . . . It was $250 for both of us. Nobody ever called me a
criminal . . . I don’t know who got a fine. I never asked. He got community service.246
With the help of social workers at a transitional housing program for women, H.G.
wrote to AHRCO explaining the incident which led to her arrest, and asking them to
reverse their denial. She received a form letter rejecting her request for reconsideration
in response.247 H.G. wrote a final letter to AHRCO asking for a second chance. H.G.’s
letter reads:
Would you please reconsider my application for housing. I am 57 and living at the Debra House. My
year at the Debra House expires on 10-16-03. I need to find permanent housing. . . . I am now
working at BVEV, Inc. (Black Vietnam Era Veterans, Inc.) in Pittsburgh and I have not had any
other incidents since this one in April of 1990. We are all human and make mistakes. Please give me
a chance to prove I am a worthy person.248
Despite her caseworker’s advocacy on behalf of H.G. with AHRCO, H.G. was
ultimately denied. “I don’t think they’ve been fair. They’re not looking at references.
Our letters got no attention or response.”249 H.G.’s caseworker urged her to apply for
housing through other agencies, but was not hopeful. “I had no idea I was a criminal,”
H.G. lamented, “I’m going to be a criminal for the rest of my life?”250

246

Human Rights Watch interview with H.G., Debra House, Pittsburgh, Pennsylvania, January 28, 2004.

247

Letter to H.G. from Ms. Bey, AHRCO Management Division, September 24, 2003. The letter stated: “The
principal reason(s) for this adverse action: Other: unsatisfactory criminal report.”
248

Letter to Mr. Washington, AHRCO, October 9, 2003 from H.G., on file with Human Rights Watch.

249

Human Rights Watch interview with Kathy Hupner, case manager, Debra House, Pittsburgh, Pennsylvania,
January 28, 2004.
250

Human Rights Watch interview with H.G., Debra House, Pittsburgh, Pennsylvania, January 29, 2004.

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X. Arbitrary Denials and Discrimination
To recognize that adequate housing is a right means that people cannot be deprived of
the opportunity for adequate housing for reasons that are merely arbitrary or
discriminatory. In international law, discrimination in the recognition and protection of
rights is strictly prohibited, and limitations on the right to housing are permitted only if
they are embodied in law, compatible with the nature of the right, and for the purpose of
promoting “the general welfare in a democratic society.”251 Current U.S exclusionary
criteria for public housing fail these tests.

Arbitrary Exclusions
Public safety and the housing rights of others are legitimate grounds for restricting
certain applicants from public housing. However, current exclusionary policies rely on
such broad-brush criteria that they are only tenuously, if at all, connected to the goal of
public safety. The result: many wind up unreasonably deprived of their best chance for
housing, as well as for realizing the many other rights that flow from having a stable
address.
The requirement in international human rights law that restrictions on rights be justified
in light of specific interests “in a democratic society” entails that such limitations be
strictly necessary, proportional, of limited duration, and subject to review.252 Legislative
mandatory lifetime denial of public housing is neither necessary nor the least restrictive
means to protect the safety of other public housing tenants. Where exclusion from
public housing results in homelessness or permanent separation from one’s family, the
case can be made that the actual damage to individuals or society is disproportional to
any speculative gain in public safety. Furthermore, lifetime denials of housing are plainly
not limited in duration.
It is likely that, in establishing the exclusionary policies discussed in this report, Congress
was far more interested in sending a message of disapproval about specific crimes than
251

ICESCR, art. 2.2, 4.

252

This is a principle of interpretation that applies to restrictions clauses, common to both the ICCPR and the
ICESCR, and is grounded in the jurisprudence of the European Court of Human Rights. See Manfred Nowak,
U.N. Covenant on Civil and Political Rights: CCPR Commentary (Arlington: N.P. Engel, 1993), p. 378-79;
Committee on Economic, Social, and Cultural Rights, General Comment No. 14, on “The right to the highest
attainable standard of health,” August 11, 2000, art. 12, para. 28. The Committee, analyzing the limitations
clause of the ICESCR in the context of the right to health, noted that when a government seeks to impose
limitations on the right to health on grounds of national security or the preservation of public order, its aims must
be legitimate and “strictly necessary for the promotion of the general welfare in a democratic society.”

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in establishing reasonable protections for tenant safety. In any event, Congress provided
no public safety justification for imposing lifetime exclusions, rather than permitting a
case-by-case consideration of the risks potentially posed by any individual applicant.
Many PHA policies fail to establish a reasonable basis for excluding applicants. As
discussed above, many PHA policies utilize exclusionary criteria that bear no discernible
relationship to tenant safety and that establish unduly lengthy periods of time between
the offense and eligibility. For example, Austin’s seven-year exclusion for everyone
convicted of drug sales is not reasonable by virtue of the fact that an argument can be
made that one person who sold drugs seven years ago might be a danger today to
tenants.
Our review of PHA policies suggests that PHAs have made little effort to ensure
housing applicants are not needlessly rejected. Rather, the policies seem to reflect, at
best, a scant regard for the housing rights of applicants, and at worst, a purely punitive
approach to people with criminal records.

Discrimination
International human rights law unequivocally affirms the equality of all persons before
the law and prohibits governments from discriminating in policy or practice “on any
ground such as race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.”253
Not all distinctions made by governments, however, constitute impermissible
discrimination. The Human Rights Committee has observed that “not every
differentiation in treatment will constitute discrimination, if the criteria for such
differentiation are reasonable and objective and if the aim is to achieve a purpose which
is legitimate under the Covenant.”254

253

ICCPR, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S.
171, entered into force March 23, 1976, article 26. The Committee on Economic, Social, and Cultural Rights
has also specifically noted the prohibition against discrimination in the context of housing rights: “individuals, as
well as families, are entitled to adequate housing regardless of age, economic status, group or other affiliation
or status and other such factors. In particular, enjoyment of this right must, in accordance with Article 2(2) of
the Covenant, not be subject to any form of discrimination.” Committee on Economic, Social, and Cultural
Rights, General Comment No. 4, para. 6.
254

th

Human Rights Committee, General Comment No. 18,”Nondiscrimination,” 37 Sess., 1989, para. 13.

81

ARBITRARY DENIALS AND DISCRIMINATION

Housing laws and policies that have a racially disparate impact, but are not reasonably
designed to achieve a legitimate state purpose, violate the international human right to be
free from discrimination. The laws need not reflect a racially discriminatory purpose.
Under state and federal constitutional law, racial disparities that arise from public
housing policies are constitutional as long as they are not undertaken with discriminatory
intent or purpose.255 But unlike U.S. law, international human rights law does not
require discriminatory intent. The International Convention on the Elimination of All
Forms of Racial Discrimination (CERD or “the Convention”), to which the United
States is a party, prohibits laws or policies which have “an unjustifiable disparate impact”
on racial and ethnic minorities.256 The Convention specifically requires states parties to
eliminate unjustifiable laws or practices that may be facially race-neutral, but that have
the “purpose or effect” of restricting rights on the basis of race.257 It proscribes raceneutral practices curtailing fundamental rights that unnecessarily create statistically
significant racial disparities even in the absence of racial animus.258
Data on the racial composition of people denied because of criminal records are not
available.259 Nevertheless it is likely that criminal record exclusions from public housing
have a significant racially disparate impact.260

255

See Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); see also Harris v. Itzhaki, 183
F.3d 1043 (9th Cir 1999) (applying Burdine’s requirement of intent to discrimination in public housing).
256

UN Committee on the Elimination of Racial Discrimination, General Comment No. 14, para. 2. In its
concluding observations on the implementation of the International Convention on the Elimination of All Forms
of Racial Discrimination (CERD) in the U.S. in 2001, the Committee on the Elimination of Racial Discrimination
stated:
While noting the numerous laws, institutions and measures designed to eradicate racial
discrimination affecting the equal enjoyment of economic, social and cultural rights, the
Committee is concerned about persistent [racial] disparities in the enjoyment of, in
particular, the right to adequate housing, equal opportunities for education and
employment, and access to public and private health care.
A/56/18/380-407, August 14, 2001, 398.
257

CERD, para. 1, art. 1.

258

th

See CERD, General Recommendation XIV(42), on art. 1, para. 1 of the Convention, U.N. GAOR, 48 Sess.,
Supp. No. 18, at 176, U.N. Doc. A/48/18 (1993). See also, Theodor Meron, “The Meaning and Reach of the
International Convention on the Elimination of All Forms of Racial Discrimination,” 79 The American Journal of
International Law, 283, 287-88 (1985).
259

HUD does not require PHAs to maintain statistics on those who were denied, much less on the race of those
denied, and we did not find any PHA that did maintain such statistics.
260

U.S. courts have indeed acknowledged the obvious fact that criminal records screening has a disparate
impact on racial and ethnic minorities. See, e.g., Green v. Missouri Pacific Railroad Co., 523 F.2d 1290, 1295
(8th Cir. 1975). The United States EEOC has also noted:
The FBI’s Uniform Crime Reporting Program reported that in 1987, 29.5 percent of all
arrests were of Blacks. The U.S. Census reported that Blacks comprised 11.7 percent of
the national population in 1980 and projected that the figure would reach 12.2 percent in

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Racial and ethnic minorities are disproportionately represented among the impoverished
of the United States: in 2002, 24.1 percent of blacks and 21.8 percent of Hispanics were
below the poverty line.261 As a result, minorities are more likely than whites to need
housing assistance and, indeed, racial and ethnic minorities constitute 70 percent of
those who currently reside in conventional public housing.262
As illustrated below, African Americans are also disproportionately represented among
those who have criminal records, and as such are much more likely to be rejected for
public housing on this basis. As noted above, criminal record exclusionary criteria used
by PHAs are in and of themselves overbroad and therefore unreasonable as a means of
promoting public safety. If exclusionary policies have a significant racially disparate
impact, and such an impact cannot be justified on public safety grounds, then the
policies would contravene the provisions of CERD.

1987. Since the national percentage of arrests for Blacks is more than twice the percentage
of their representation in the population (whether considering the 1980 figures or the 1987
projections), the . . . presumption of adverse impact, at least nationally, is still valid.
EEOC Notice.
261

U.S. Census Bureau, Poverty in the United States: 2002, table 1, p. 2. Note: the number for ”black” refers to
the category of which is “black alone”—those who self-identified as black and not as any other race (e.g. black
and Asian). The number for "blacks alone and in combination" is 23.9. The number for Hispanics refers to
Hispanics of any race. A report from the Institute on Race and Poverty also shows that rates of poverty among
racial and ethnic minorities is three times as high as those of whites. Racism and Metropolitan Dynamics: The
st
Civil Rights Challenge of the 21 Century (April 2002), available online at:
http://www1.umn.edu/irp/publications/racismandmetrodynamics.pdf, accessed on October 21, 2004.
262

HUD, Resident Characteristics Report (March 31, 2004), available online at:
http://pic.hud.gov/pic/RCRPublic/rcrmain.asp, accessed on April 8, 2004. Seventy percent of all residents in
conventional public housing are African American, American Indian, Asian, or Hispanic.

83

ARBITRARY DENIALS AND DISCRIMINATION

Racial Disparities in the Criminal Justice System
Racial disparities among those arrested, sentenced, and incarcerated for criminal
offenses in the United States are immense:
♦
♦
♦
♦
♦
♦

According to the Federal Bureau of Investigation, nearly 27 percent of all those
who were arrested in the U.S. were African American, despite the fact that they
constitute approximately 12 percent of the U.S. population.263
African Americans constituted roughly 44 percent of those convicted of
felonies by state courts.264
African Americans and Hispanics constitute nearly 63 percent of all those
incarcerated in local jails and state and federal prisons.265
African Americans constitute 23 percent of those serving state probationary
sentences,266 and 41 percent of those on federal or state parole.267 Of federal
offenders under supervision, half were racial and ethnic minorities.268
By the end of 2001, of the nearly 5.6 million people who had ever served time
in prison, nearly as many were black as were white, and an estimated 17.7
percent were Hispanics.269
Racial and ethnic minorities account for fully two-thirds of those returning each
year from prisons and jails.270

263

“By race, 70.7 percent [6,923,390] of arrestees in 2002 were white, 26.9 percent [2,633,632] were black, and
the remainders were of other races.” Federal Bureau of Investigation, Uniform Crime Reports, Crimes in the
United States, 2002, available online at: http://www.fbi.gov/ucr/cius_02/pdf/4sectionfour.pdf, accessed on April
8, 2004. Note: data used in this report did not distinguish between white and Hispanic arrestees.
264

Matthew R. Durose and Patrick A. Lanagan, Ph.D., State Court Sentencing of Convicted Felons, 2000 (BJS,
June 2003), table 2.1, available online at: http://www.ojp.usdoj.gov/bjs/pub/pdf/scscf00.pdf, accessed on April 8,
2004.
265

Paige M. Harrison and Jennifer C. Karberg, Prison and Jail Inmates at Midyear 2003 (BJS, May 2004, rev.
July 13, 2004), table 13, p. 11, available online at:http://www.ojp.usdoj.gov/bjs/pub/pdf/pjim03.pdf, accessed on
July 20, 2004. Blacks constituted 43 percent of the total, while those of Hispanic origin constituted 19 percent.
266

BJS Statisticians, Correctional Populations in the United States, 1998 (BJS, September 2002), table 3.8,
available online at: http://www.ojp.usdoj.gov/bjs/pub/pdf/cpus9803.pdf, accessed on April 8, 2004.
267

Ibid., table 6.7, available online at: http://www.ojp.usdoj.gov/bjs/pub/pdf/cpus9806.pdf, accessed on October
21, 2004.

268

BJS, Compendium of Federal Justice Statistics 2001 (November, 2003), table. 7.2, p. 93, available online at:
http://www.ojp.usdoj.gov/bjs/pub/pdf/cfjs01.pdf, accessed on October 23, 2004. As of September 30, 2001, 32
percent of federal offenders under supervision were African American, and 17.9 percent were Hispanic.
269

Thomas P. Bonczar, Prevalence of Imprisonment in the U.S. Population, 1974-2001 (BJS, August 2003), p.
1, available online at: http://www.ojp.usdoj.gov/bjs/pub/pdf/piusp01.pdf, accessed on July 6, 2004.
270

Petersilia, When Prisoners Come Home, p. 26.

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84

Data from individual states is even more striking:
♦
♦
♦
♦

Only 7 percent of the state’s population, African Americans account for 20
percent of all felony arrest and 31 percent of the prison population in
California.271
Over 90 percent of those serving time for a drug offense in New York are
African American or Latino.272
Although only one-quarter of the state’s residents, African Americans make up
77 percent of Maryland’s state prisoners. Since 1990, nine out of every ten
inmates entering state facilities has been African American.273
African Americans in New Jersey are thirteen times more likely to be
incarcerated than whites, giving the state the dubious distinction of leading the
nation in racially disparate incarcerations. Eighty-one percent of all people in
New Jersey prisons are black or Latino; they comprise only 27 percent of the
general population.274

271

Center on Juvenile and Criminal Justice, Texas Tough?: An Analysis of Incarceration and Crime Trends in
the Lone Star State (2002) (CJCJ Report), citing Christopher Davis, Richard Estes, and Vincent Schiraldi,
“Three Strikes”: The New Apartheid (San Francisco: Center on Juvenile and Criminal Justice, 1996). The report
is available online at: http://www.cjcj.org/pubs/texas/texas.html, accessed on April 8, 2004.
272

CJCJ Report, citing Robert Gangi, Vincent Schiraldi, and Jason Ziedenberg, New York State of Mind: Higher
Education vs. Prison Funding in the Empire State, 1988-1998 (Washington, D.C.: The Justice Policy Institute,
December 1998).
273

CJCJ Report, citing Vincent Schiraldi, Is Maryland’s System of Higher Education Suffering Because of Prison
Expenditures? (Washington DC: Justice Policy Institute, March 1998).
274

FAMMGram, vol. 14, issue 1 (Spring 2004), p. 6, citing The Sentencing Project, “State Rates of Incarceration
by Race” (2004), available online at: http://www.sentencingproject.org/pdfs/racialdisparity.pdf, accessed on
October 21, 2004.

85

ARBITRARY DENIALS AND DISCRIMINATION

XI. Limited Right to Redress
Federal law gives applicants for public housing the “opportunity to dispute the accuracy
and relevance of” any criminal record a PHA relies on to deny the applicant eligibility
for housing assistance.275 Most, but not all, PHAs allow applicants to do this through
administrative proceedings that contain most of the safeguards essential to a fair hearing.
Hearings are extremely important because they are typically the only time PHAs consider
information beyond the criminal record itself, such as evidence of rehabilitation. Indeed,
in many places, there is a strong likelihood that the initial denial will be overturned after
officials have considered such evidence, a fact which underscores the arbitrariness of the
initial denial. Nevertheless, many applicants are deterred from challenging their
rejections.276 And those who are barred under mandatory federal exclusionary statutes
can only dispute the accuracy of the records used to deny them; they do not have a
chance to argue they are rehabilitated.277

Lack of Representation
If you have representation, you have a good chance of winning. If you don’t, forget it.278
—Virginia Rojo Holland, paralegal, Texas RioGrande Legal Aid
Applicants challenging public housing denials are entitled to bring someone to assist
them, whether a lawyer or non-legal advocate such as a case manager, to any meeting or
administrative proceeding. Many housing authorities and legal service attorneys we
spoke with acknowledged that when an applicant appears at a hearing with a
275

42 U.S.C. § 1437d(q)(2).

276

We asked each PHA official we met with for statistics on how many of those denied due to criminal records
actually appeal and how many prevail after administrative hearings. None of the seventeen PHAs that we
visited kept such records. The NYCHA did provide Human Rights Watch with the number of people who, after
the PHA had found them ineligible for any reason, had requested a hearing. While Human Rights Watch found
that the notices NYCHA provides to those it deems ineligible provide far better information about how to
challenge a denial than those provided by most all other PHAs, information provided by NYCHA suggests that
less than 50 percent of all those denied eligibility for any reason requested hearings. Letter to Human Rights
Watch from Sherry Shuh, deputy general manager for policy, planning and management analysis, New York
City Housing Authority, June 17, 2004, and Human Rights Watch e-mail correspondence with Jill Berry,
executive assistant to the deputy general manager for policy, planning and management analysis, New York
City Housing Authority, June 28, 2004. One PHA suggested that a significant “drop off” occurs in the
application process as roughly 60 percent request hearings, 60 percent of those who request hearings show up
at those hearings, and rejections are upheld between 30 and 40 percent of the time. Human Rights Watch
interview with Housing Authority of the City of Austin staff, Austin, Texas, February 12, 2004. Housing officials
told us that significant additional staff resources would be required if every applicant who was denied appealed.
277

See Archdiocesan Housing Authority v. Demmings, 2001 Wash. App. LEXIS 2276 (Wa. Ct. App 2001) and
discussion in footnote 202.
278

Interview with Virginia Rojo Holland, February 11, 2004.

NO SECOND CHANCE

86

representative, they are often able to overcome a denial of eligibility. “If you are there
with a case manager or advocate,” said one housing official in Portland, “you will usually
get into housing.”279 Unfortunately, such advocates are not always available. “If a case
manager goes to an appeal hearing with them,” one service provider with a non-profit
group in Portland told Human Rights Watch, “they are more successful. But we don’t
have that many case managers because of budget cuts, so people do fall through the
cracks.”280
Applicants accompanied by a lawyer stand the best chances of prevailing.281 An attorney
in Baltimore told Human Rights Watch: “We never lost a hearing;”282 a paralegal in
Austin agreed: “I can’t think of a case that we’ve lost.”283 However, those who appear,
without an attorney, even with evidence of rehabilitation, do not fare as well.
It is extremely difficult for public housing applicants to secure legal representation.
Almost by definition, applicants for housing assistance lack the funds to hire private
attorneys, and neither federal nor state laws give them a right to legal representation free
of charge. Moreover, many legal service organizations that provide free legal services to
the poor do not prioritize admissions cases. Those that do are, like all legal services
organizations, so overwhelmed by the demand for their services that applicants may not
be able to receive assistance—and some applicants we spoke to indicated they did not
even know how to reach a legal services attorney.
Outreach to housing applicants is difficult even when an organization wants to reach
them because of the transient nature of their lives and the fact that many are homeless.
Kenneth Lay, the managing attorney at Legal Services of Metro Birmingham said, “We
don’t see many admissions cases. I don’t think they know we can help with that. We’ve
tried through community outreach to get to people but we’re only reaching current
tenants. I don’t know how we could reach them, other than requiring the housing
authority to notify them.”284

279

Human Rights Watch interview with Rachel Duke, social services coordinator, Housing Authority of Portland,
Portland, Oregon, June 24, 2003.
280

Human Rights Watch interview with Renata Wilson, interim employment/housing supervisor, Portland
Impact, Portland, Oregon, May 26, 2003.
281

Most of the denial notices sent to applicants state that they can bring a representative along with them to an
informal hearing, but Human Rights Watch only found one that included the name or number of the local legal
service agency.
282

Interview with Carolyn Johnson, November 17, 2003.

283

Interview with Virginia Rojo Holland, February 11, 2004.

284

Telephone interview with Kenneth Lay, December 12, 2003.

87

LIMITED RIGHT TO REDRESS

And as one lawyer told us, one of the reasons legal service organizations may not
prioritize cases where applicants are denied because of criminal records is because they
get no “political mileage by trying to help this population”:
We don’t deal directly with this issue . . . but if you ask me, its because
of the type of population this is . . . . A lot of the work is driven by the
funding that we’re able to get. There hasn’t been much of an outcry,
they’re at the bottom of the totem pole. . . . From my experience, it’s
much easier to get funding when you’re talking about families or
children. We just can’t get anyone on board. We don’t have the funding
to tackle these kinds of issues.285
In the rural areas we visited, legal representation was even more scarce. Housing
officials in two rural areas of South Carolina told us that they had never seen an
applicant represented by an attorney, and the legal services office closest to Greene
County in Alabama had no recollection of representing anyone in an applications case
with the local PHA in recent years.286
Legal service organizations and public interest attorneys that reach out specifically to
find applicants denied housing because of criminal records, as well as agencies that focus
on public housing issues, report having more than just occasional experience with
helping rejected applicants. The Homeless Persons Representation Project (HPRP) in
Baltimore has focused a great deal of attention on applicant denials, mainly because of
the office’s location and individual attorney interest in such cases. Carolyn Johnson, a
staff attorney with the project explained why:
Because we are in the same building [as the housing authority] people
would just find their way to our office. Housing authority staff would
say: “Go down to the second floor [the offices of the HPRP] if you’re
that angry.” We started seeing a lot of people getting denied in 1997
when I was a law student and so we [the law students] started doing the
hearings.287

285

Human Rights Watch telephone interview with Clemente Franco, executive director, Inner City Law Center,
Los Angeles, California, January 7, 2004.
286

Human Rights Watch telephone interview with Willie Mae Jones, managing attorney, Tuscaloosa Legal
Services, Tuscaloosa, Alabama, February 10, 2004.
287

Interview with Carolyn Johnson, November 17, 2003.

NO SECOND CHANCE

88

Texas RioGrande Legal Aid’s (TRLA) Austin office is one of the few offices that has the
luxury of specializing and has taken a focused interest in challenging public housing
denials. Most attorneys are not taking public housing admissions cases “because they
don’t have the experience,”288 one TRLA attorney told us. “They don’t realize they’re
winnable cases.”289
Many legal service agencies restrict the kinds of admissions cases they will take to only
those denied in violation of a PHA’s own policy, or those who can clearly show
significant rehabilitation.
“Most are slam dunk,” said one paralegal in Austin, but others are less clear, and she said
that they “absolutely would not” take a case of someone with a recent drug conviction
or a case pending, “because we know the policy!”290 Attorneys at TRLA said that they
knew what a hearing officer needs to see to approve an application, but that they
themselves exercise “discretion” in how they take cases. “It really depends on the facts,”
said an attorney in the Austin office. “If a client comes in and says, ‘I’m homeless and I
have four kids, but these are the reasons you should take my case,’ then of course we’ll
consider it.”291 Those with less sympathetic cases, or single adults without children, may
have a more difficult time securing representation even in those areas where the local
legal services office takes admissions cases.
Some legal service agencies are able to press local housing authorities to exercise
discretion in considering an applicant’s rehabilitation or re-open cases where the PHA
rejected an unrepresented applicant. But few are able to address PHA policies or
practices that affect entire classes of clients. Because federal legislation prevents legal
service agencies that receive federal funding from the Legal Services Corporation (LSC)
from engaging in class action litigation,292 the most an LSC-funded legal service provider
can do is bring challenges on behalf of individual clients and conduct outreach to
applicants who may be affected by the same practices.

288

Interview with Nelson H. Mock, February 11, 2004.

289

Interview with Kelli Dunn Howard, February 11, 2004.

290

Interview with Virginia Rojo-Holland, February 11, 2004.

291

Interview with Nelson H. Mock, February 11, 2004.

292

See footnote 178 for a more in-depth discussion of class action litigation issues.

89

LIMITED RIGHT TO REDRESS

Lack of Information from PHAs
Many applicants who were denied because of their criminal records told Human Rights
Watch that they either received no information from the PHA telling them that they
could challenge their denials, or they were actively misled by PHA staff.
Some applicants simply do not have the wherewithal to understand the process on their
own. “[The denial letter] just said that I could appeal it, but I didn’t know how,” one
young mother in rural Pennsylvania told us. She called her local legal services office
after she, her husband, and her infant son had been denied because of her husband’s
felony theft record from 2000, and she was told that they could not help her file an
appeal.293 Living apart from her husband now and struggling to pay the rent on her
own, she said:
I don’t really consider us much of a family. Whenever we can see each
other, we try to see each other. Neither of us drive and he lives about
45 minutes away. It is stressful . . . because I feel like I’m taking care of
a kid by myself. I am young . . . and I don’t have anyone to help me. I
am hoping that if either myself or my husband gets a job, we can get our
own apartment.294
With no work history, no GED, and a husband now living on the streets, the chances of
reuniting her family, however, seem slim.
Federal law requires that PHAs notify applicants why they were rejected, and provide
them with a copy of the record upon which the denial was based.295 Yet PHAs do not
always comply with these requirements.
In many places, applicants had little to no idea why they had been denied. Many PHAs
provide applicants with form letters notifying them that they have been denied, but fail
to specify the reasons why. “If the person has a criminal history,” a housing
administrator in Florida told Human Rights Watch, “and falls within the [PHA’s] criteria
for denial, they usually get a standard rejection letter. It states that the person has been
rejected because they have a criminal history. It doesn’t say what type of crime was the

293

Human Rights Watch telephone interview with K.S., Lycoming County, Pennsylvania, February 20, 2004.

294

Ibid.

295

24 CFR 982.553(d)(1) (§ 8); 24 CFR 960.204(c) (public housing).

NO SECOND CHANCE

90

reason for the rejection.”296 Letters to Baltimore applicants, for example, contain this
standard reason for denial: “Engagement in drug-related or violent crime and/or other
criminal activity which may adversely affect the health, safety, or right to peaceful
enjoyment of other residents.”297
Many housing providers recognized that the process available to challenge denials itself
actually deters applicants from appealing. Others, in an effort to ameliorate the effects
of blanket policies and, after seeing that many applicants who were denied failed to
request appeals, have revised their letters to make them more “friendly.”298 At least one
PHA recently revised its letters of rejection to explain to applicants why they had been
denied. “How can you mount a defense without knowing the crimes you’re being
rejected for?” asked a hearing officer.299

Inadequate Time to Appeal
Under PHA policies, an applicant who has been rejected must appeal within a set period
of time, typically ten days from the date of the denial, or their application will be
terminated. For many applicants, ten days is an impossible deadline to meet. Every
advocate for the homeless that we spoke to pointed to the problem that homeless
applicants have receiving notices from PHAs. Without a permanent, fixed address,
homeless people cannot receive mail regularly.300
Many PHAs allow an applicant to appeal a denial after the deadline has passed if they
can show “good cause” for the delay.301 But PHAs do not consider problems with
receiving mail “good cause.” They insist it is up to the applicants to make sure the
PHAs have a way to be in contact with them. While it is certainly reasonable for a
housing authority to require a way of contacting an applicant, there is no need for

296

Human Rights Watch interview with Julie Boyle, executive assistant, Sarasota Housing Authority, Sarasota,
Florida, July 21, 2003.
297

Sample denial letter from the Housing Authority of Baltimore City, on file with Human Rights Watch.

298

Human Rights Watch interview with Rachel Duke, social services coordinator, Housing Authority of Portland,
Portland, Oregon, June 24, 2003.
299

Telephone interview with Carol Coley, August 1, 2003.

300

Where do homeless people get their mail? In some large cities, like New York, the post office allows those
who are homeless to receive mail at the post office through “general delivery.” In many places, this option is not
available. If they are fortunate, a social service agency, a church, or a relative may allow them to use a mailing
address.
301

Generally an applicant must show an emergency (which often requires a medical note or proof of
hospitalization), or sufficient proof that he or she did not receive mail (which requires certification from a post
office).

91

LIMITED RIGHT TO REDRESS

deadlines that prejudice the homeless. A somewhat longer appeal period would not
unduly disrupt PHA operations.
Indeed some housing officials have recognized the unique difficulties of the homeless in
the appeal process.302 Administrators at Garden Terrace, a HUD-funded SRO in
Austin, Texas, adopted a policy allowing applicants to challenge denials at any time.
When asked whether this was an administrative burden for the staff, they said it was not.
Program administrators simply keep the application on file and wait for applicants to
bring in evidence of rehabilitation. “The faster you bring it in,” the Assistant Manager
said, “the faster you’ll get housing.”303

Giving Up
People who continually face obstacles and rejections in many facets of their lives because
of their criminal histories may simply give up and choose not to pursue an appeal.
“They get to the part where it says you can be denied for housing for a felony
conviction, drug offense …they shut down at that point,” said Anthony Barber, a
reentry advocate in Texas. “There’s no reason to keep reading on for appeals. . . .
You’ve been told for . . . years that if you’ve been convicted of a felony, you’ve lost your
rights. That’s branded into their subconscious, that they haven’t the rights.”304
“It’s going to come back and slap me in the face,” one applicant who had been denied
told Human Rights Watch, “so why should I go through the bother—it’s a waste of
time.”305
Sheila Fauntleroy, a social worker in Pittsburgh, told Human Rights Watch about a
twenty-eight-year-old African American woman with six children who was denied
housing. After being released from prison on several drug possession charges, she
regained custody of her children and applied for assistance. Denied by both the city and
the county PHAs, she chose not to appeal. Instead, she works two jobs and pays $500 a
month in rent for a three bedroom apartment on a $6-7 per hour wage as a nurse’s aid.
302

The Cuyahoga Metropolitan Housing Authority has begun to work with homeless service providers to ensure
that homeless applicants with criminal records receive notices of rejection by mailing them to the service
provider’s address. The Salt Lake City County Housing Authority has also begun to consider how to handle
homeless applicants who do not receive notice in time to appeal.
303

Human Rights Watch interview with Theresa Mather, assistant manager, Garden Terrace, Austin, Texas,
February 12, 2004.
304

Interview with Anthony Barber, February 10, 2004.

305

Human Rights Watch interview with C.W., an African-American man at an overnight shelter in Baltimore,
Maryland, November 20, 2003. Mr. W. is living with HIV and Hepatitis C.

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“She didn’t even want to fight,” Fauntleroy explained, “she’s fighting a lot of other
issues as it is. It would just be another one. Her main objective was to find housing.
They told her straight up that if they have a felony offense, they aren’t eligible for
anything[.]” Without medical coverage for herself, and juggling both of her jobs and her
responsibilities as a single parent, her ability to maintain the apartment on her own was
precarious at best. “Regardless of what she had done,” Fauntleroy said, “her children
shouldn’t have been penalized. . . . She’s trying to do the best she can.”306

Too Many Denials
A homeless mother who had a drug charge that was over fifteen years old at the time of
her application for housing spoke with Human Rights Watch at a soup kitchen in
Baltimore:
They denied me . . . They said I had a criminal background. . . . I didn’t do any time, I spent one year
on a stat [a period of time where the court file remains open, but charges are dismissed if no further
arrests occur]. They told me I could get a hearing, but I didn’t want to bother. What good would it
have done? . . . I got three kids—one boy, two girls. . . . I’m homeless now. I just keep moving around
living here and there.307
Some applicants give up on more than just their housing applications when they are
denied. Almost without exception, people with criminal records who were turned away
from public housing described the depression that followed each rejection they
received—from housing providers, welfare agencies, and potential employers. The
despair that some begin to feel after repeated rejections is sometimes too much for them
to bear.
C.L., an ex-offender who was living on the streets in Salt Lake City, Utah told Human
Rights Watch:
Either I am going to end up back in prison, or I’m going to end up dead,
or killing myself—I’ve thought about suicide several times—or I end up
corroding away living on the streets, and going back to drugs or going
back to crime and doing whatever I have to do to have any kind of
satisfaction I guess on a daily basis.308
306

Interview with Sheila Fauntleroy, January 28, 2004.

307

Human Rights Watch interview with E. G., an African-American woman in a soup kitchen in Baltimore,
Maryland, November 20, 2003.
308

Human Rights Watch interview with C.L., a forty-year-old African-American homeless man, Pioneer Park,
Salt Lake City, Utah, September 28, 2003.

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Too Little, Too Late
The director of a transitional housing program for women in New York City told
Human Rights Watch about one woman she worked with for over a year challenging a
public housing denial.
This woman was in her thirties, African American. Her father was a drug addict and her mother left
them. She started taking drugs when she was sixteen. She did a mandatory minimum sentence on a
drug charge, and when she got out, I started working with her [at the Women’s Prison Association].
She was doing everything she was supposed to do. She had obtained full-time employment. She had a
hard time with housing. She’d been denied twice. That’s all she talked about, trying to get her kids
back. She couldn’t afford a place of her own. She had three girls and was making $14 an hour. She
became very depressed. Her record was long, [drug possession and sale] charges, child neglect . . .
robbery, repeatedly, all related to her drug addiction. At that time, she’d been out of jail a few years, she
had completed two treatment programs and was following up with aftercare. At one point, after
appealing her denial twice, she just said, “I’m tired of this,” and she just let go. She took an overdose of
pills and heroin and took her own life. She got a letter saying that she was approved after her last
appeal a week after she died.309

An Ineffective Process
The administrative appeal process at many PHAs consists of an informal hearing before
a housing official serving as an Administrative Law Judge (ALJ). If the applicant is not
represented by a lawyer or other advocate, the hearing can be pro forma, with the ALJ
refusing to consider any evidence of mitigation or rehabilitation and simply
rubberstamping the initial decision.
Failure to Consider Mitigation or Rehabilitation
Federal law suggests that beyond taking into consideration the nature, severity, and
remoteness of an applicant’s past offenses, PHAs may also consider evidence of
rehabilitation that would indicate the applicant no longer poses a threat. As already
noted, most PHAs do not consider such evidence except, if at all, when an applicant
appeals an initial finding of ineligibility.
Most housing officials told Human Rights Watch that they would allow someone with a
criminal history into housing, if the applicant could show documented evidence of
rehabilitation. Housing officials expressed universal concern that without adequate

309

Human Rights Watch interview with Ruth Joyner, case manager, Providence House, Brooklyn, New York,
January 15, 2004.

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documentation, they could be held liable for future illegal acts of tenants with criminal
records. A policy analyst for a national public housing group explained, “PHAs don’t
want to stand in the middle of that field [even though] the chance [of being sued] is like
getting struck by lightning.”310 In fact, Human Rights Watch identified only one
reported court case dealing with whether a PHA could be held liable for the actions of a
third party. In this case, a family member sought damages from the Birmingham
Housing Authority after a tenant was shot and killed during a gunfight between drug
dealers on housing authority premises. Alabama’s Supreme Court held that the PHA was
not liable, even though it knew there was a problem with crime and that drug sales were
occurring on the premises.311
Unfortunately, because consideration of rehabilitation is not mandatory under federal
law or HUD regulations, some PHAs feel free to ignore, or pay only nominal attention
to, an applicant’s efforts to rehabilitate.312
Attorneys at Neighborhood Legal Services (NLS) in Pittsburgh, Pennsylvania told
Human Rights Watch about a mother of two who was denied because of several
convictions for minor offenses. Although she ultimately prevailed on appeal in state
court, the case illustrates the refusal of PHAs to exercise the discretion they have.
The mother had one domestic violence charge, which resulted from an incident between
her and her husband. They were both arrested, and he convinced her to plead guilty so
that she could return home to care for their children. Her husband pled not guilty, and
the charges were ultimately dismissed against him.

310

Human Rights Watch interview with Christine Siksa, policy analyst, acting director of the Legislative and
Program Division, National Association of Housing and Redevelopment Officials (NAHRO), Washington, D.C.,
October 29, 2003.
311

Dailey v. Housing Authority for the Birmingham District, 639 So.2d 1343 (Ala. 1994).

312

nd

See, e.g., Spady v. Mt. Vernon Housing Authority, 41 A.D. 2d 762 ( N.Y. 2 Dep’t 1973). The court in Spady
held that the decision to deny the applicant was neither arbitrary nor capricious and had a rational basis, despite
the testimony of social workers, substance abuse treatment providers, a personal physician, parole officer, and
former employer that the applicant had been “rehabilitated.” The dissent in Spady noted, however, that:
The State has spent countless millions of dollars to combat drug addiction and it is the
policy of the State to treat drug addiction as a disease by comprehensive programs of
treatment. . . . Petitioner . . . is successfully undergoing treatment and shows no signs of
regression. . . . To deprive him of public housing accommodations now is yet another
unfortunate revolution in the “revolving door” of drug addiction [citations omitted]. [The
housing authority’s decision] is wholly without rational basis, at complete variance with the
State’s public policy of treating narcotic addiction as a disease, and contrary to the nature
and purpose of public housing.

Ibid. p. 766.

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She appealed her denial with the assistance of NLS attorneys. “We had excellent
evidence, but we lost at the hearing,” Amy Carpenter explained,
The hearing officer didn’t think he had discretion. We had a substance
abuse counselor come in and testify that this woman had become a
poster child. She was quite impressive in the changes she’d made and
was continuing in her recovery. She was even employed by a Section 8
landlord! He came in and testified, “She handles my books, she’d be a
good member of the community, I rely on her,” etc. etc. We had two or
three witnesses, it was very impressive. . . . The hearing officer was
sympathetic, but his supervisor denied it and we lost. We filed a
statutory appeal and the decision was reversed. I thought we were going
to win at the grievance. He [the hearing officer] was almost apologetic
about it.313
The same group of attorneys described another recent case of an African American
woman who was over sixty and was denied because she pled guilty to three different
offenses in 2000. One attorney told Human Rights Watch:
She’s been in programs to deal with alcoholism and depression. She’s in
rehab, doing everything she’s supposed to do. There had been no
further arrests. We had a recent appeal, and the housing authority
wouldn’t even consider the case. She was a threat to nobody, she’d
done so much work. A caseworker from Western Psych [Western
Psychiatric Institute and Clinic at the University of Pittsburgh Medical
Center] testified. They [housing officials] said she wasn’t eligible until
2008. We filed an appeal in the Court of Common Pleas, and the judge
who heard the case knew the housing authority had the discretion to
deny her, and he said, “Can’t you make some kind of a deal?” The
attorney for the housing authority said absolutely not. They said they
don’t have to.314

313

Human Rights Watch interview with Amy Carpenter, staff attorney, Neighborhood Legal Services, Pittsburgh,
Pennsylvania, January 27, 2004. While NLS attorneys said the applicant could have put together evidence on
her own behalf at the hearing, they said that “She never would have been able to do a statutory appeal.”
Human Rights Watch interview with Peggy Fried, staff attorney, Neighborhood Legal Services, Pittsburgh,
Pennsylvania, January 27, 2004.
314

She was not, ultimately, approved for housing. Interview with Meghan Tighe, January 27, 2004.

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Paralegals in a small town in Pennsylvania told Human Rights Watch about a client who
had been denied based on a series of arrests six years prior to his application for
housing.315 Pittsburgh housing officials disregarded the fact that the forty-eight year-old
man had never once been prosecuted for a criminal offense. The PHA relied solely on
the applicant’s remote arrest record and refused to conduct any semblance of an
individualized evaluation of the applicant’s character or the circumstances surrounding
his arrests.316
After an attorney intervened on the applicant’s behalf, threatening to contact HUD and
file suit against the PHA, the housing authority reversed its initial decision and issued the
applicant a housing voucher. By that time, however, the applicant had secured housing
elsewhere. “They got what they wanted,” the paralegal working on the case said, “They
didn’t want him in there.”317
As discussed above, where an applicant’s record suggests prior drug use, PHAs may
require evidence of rehabilitation. Absent such evidence, or depending on its nature,
PHAs in effect presume that the applicant is a “current user.” Because there is no
standard definition of what constitutes “current” drug use, PHAs require applicants to
produce evidence that they have been enrolled in treatment for at least six months, and
often much longer. Some PHAs require applicants to provide otherwise confidential
information from treatment providers such as toxicology reports and progress notes.
PHAs frequently deny admission to drug users who are currently in treatment, those
who have relapsed, and those who have not been drug-free for long enough periods of
time.
Human Rights Watch reviewed written decisions issued by ALJs and found cases where
it was apparent that ALJs did not give sufficient weight to substance abuse rehabilitation
documentation.
315

Human Rights Watch interview with Linda Milton, paralegal, North Penn Legal Services, Williamsport,
Pennsylvania, December 1, 2003.
316

After Linda Milton, a paralegal with North Penn Legal Services, told the ALJ that her client had never been
prosecuted, the hearing officer scheduled the case for another hearing to give Milton time to obtain
documentation. But after Milton received documentation back from the courts in Philadelphia, she was told not
to bother bringing the information in—the PHA had already made its decision. “After speaking with you this
morning,” read the fax sheet cover Milton received from the PHA’s Deputy Executive Director, “I realized that I
would be causing you to spend unnecessary time in further meetings on this matter, so please find attached my
decision on the matter of Mr. [C.A.]” Facsimile transmission to Milton from Shawn McMillin, Lycoming County
Housing, dated March 19, 2001, on file with Human Rights Watch. At least one state court has found such
automatic exclusion practices to be contrary to federal law and HUD guidelines. See Ouellette v. Housing
Authority of the City of Old Town, Docket No. AP-03-17, 2004 Me. Super. LEXIS 60 (March 12, 2004), which is
discussed in more depth in footnote 182.
317

Interview with Linda Milton, December 1, 2003.

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For example, a hearing officer in New York affirmed the denial of an applicant whose
last criminal conviction was eight years prior to her application for housing. In her
defense, the applicant brought her enrollment in substance abuse treatment to the
attention of the housing authority. At her hearing, she produced four letters
documenting her rehabilitation, including proof that she had been receiving methadone
maintenance treatment for six months at the time of the hearing. The ALJ, however,
was not convinced that she had been sufficiently rehabilitated—assuming that because
she was still in the methadone program, she had not completed treatment. (“Methadone
maintenance,” as its name indicates, is a maintenance program, and many people are
maintained on the medication for years, some for the rest of their lives. Hence, patients
do not graduate from the program like other forms of substance abuse treatment). As a
result, the ALJ ignored all of evidence of rehabilitation and reasoned incorrectly that:
Ms. [R] has acknowledged that she has a drug addiction problem yet she
has not been able to successfully complete a rehabilitation program. . . .
Ms. [R] did not present any documentation or evidence to show how her
life has changed or improved since the time of the felony and
misdemeanor charges listed in the Basis of Ineligibility.318

No Opportunity to Challenge a Denial
Perhaps because federal law does not grant an applicant the right to challenge a denial,
but only to challenge the veracity and relevance of records upon which denials are based,
some PHAs deny hearing rights altogether.
A public official with the Housing Authority of the City of Austin (HACA) confirmed to
Human Rights Watch that tenants who had been evicted from public housing under
“one strike” policies and then applied for public housing before three years had passed
would be denied, and they would not be entitled to an informal hearing to challenge that
denial.319
Indeed, lawyers with TRLA in Austin recounted to Human Rights Watch the case of
two young women who had been minors in families that had been evicted from public
housing. When they later applied for housing for themselves and their children, HACA

318

NYCHA, Report of Informal Hearing Held, December 1, 2003, in the case of E.K., on file with Human Rights
Watch. E.K. had been denied because of his partner, Ms. R’s criminal record.
319

Human Rights Watch interview with James Hargrove, executive director, Housing Authority of the City of
Austin, Austin, Texas, February 12, 2004. Human Rights Watch sought to clarify with HUD whether, in fact, this
practice was consistent with federal law, but HUD declined to respond.

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98

officials said they would not even consider the applications, nor would they allow a
challenge to that decision. The applications were reinstated only because TLRA lawyers
threatened to sue, and ultimately, as HACA’s director told Human Rights Watch, “Fuchs
[TRLA’s director] got involved.”320 Both women were eventually found eligible for
housing.

Access to the Courts
Applicants who are denied admission to public housing following an informal hearing
may appeal such determinations to the courts. Notices of a denial sent to applicants,
however, generally do not inform them either of their right to appeal to a court or that
they should contact an attorney to assist them in filing such an appeal.321
Needless to say, it is difficult to bring an appeal pro se, i.e., without a lawyer, and as
discussed above, housing applicants do not have ready access to attorneys. Although no
statistics are available, we were told by PHA officials and housing advocates that very
few applicants file court appeals of housing denials, and indeed, a Human Rights Watch
search identified fewer than ten published decisions nationwide on such cases since
1996.
Furthermore, the standard is very high for judicial review of administrative decisions. In
order to reverse a finding of ineligibility, a court must find a decision arbitrary or
capricious, and generally, if an administrative law judge provides any reason whatsoever
for a denial of eligibility, especially where the ALJ weighs the PHA justification against
the applicant’s evidence, a court will refuse to substitute its own judgment and reverse
the denial.322

No Record on Appeal
Applicants are further disadvantaged because, almost without exception, hearings are not
tape recorded or transcribed.323 As a result, there is no record on which to base an
appeal. Without an accurate and complete record, a court may not even be able to

320

Ibid. HACA confirmed that its policies had not changed as a result, and while they would not comment on a
hypothetical case, they implied that an applicant in a similar situation would be denied.
321

The NYCHA is one of the few PHAs that actually advises denied applicants of their appellate rights. Letters
to applicants denying eligibility following administrative hearing, on file with Human Rights.
322

st

See, e.g., Faison v. New York City Housing Authority, 283 A.D.2d 353, 726 N.Y.S.2d 23 (1 Dep’t 2001).

323

One lawyer told Human Rights Watch that attorneys in her office tape record hearings themselves. Human
Rights Watch interview with an attorney at the National Legal Aid & Defender Association conference, Los
Angeles, California, July 22, 2004.

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determine the factors on which the hearing judge based the decision.324 This also
hampers the ability of attorneys to evaluate the strength of applicants’ cases. In addition,
many PHAs utilize one form letter for initial denials and another for their hearing
decisions. “I don’t know what they based their decisions on,” one attorney told Human
Rights Watch, “because people would just receive form letters, you won or you lost.”325

324

th

See, e.g., Campbell v. Minneapolis Public Housing Authority, 168 F.3d 1069, 1076 (8 Cir. 1999), where the
court noted:
Regrettably, we do not have before us all of the evidence the MPHA considered: [the
treatment records] upon which the MPHA apparently relied were not included in the record
on appeal, nor can we find those records in the original District Court file. . . . Given the
incompleteness of the record the parties have provided to us (and, apparently to the District
Court as well), we are unable to engage in meaningful review of the MPHA’s denial of [the]
application.
325

Interview with Carolyn Johnson, November 17, 2003.

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XII. Conclusion
Housing is a linchpin that everything else hangs on in your life—who you associate with, where your
kids go to school, whether you can keep a job. If you don’t have housing, that all falls apart.326
—Katherine Stark, executive director, Austin Tenant’s Council
Policies that arbitrarily exclude people from public housing do not advance public
safety—they undermine it. Denying housing to those with the fewest options threatens
the health and safety of people with criminal records and, indeed, the safety of entire
communities.
Exclusionary policies may seem an appropriate way to distribute scarce public housing
resources, and because criminal offenders are not a powerful political constituency
locally or nationally, these policies are not subject to political challenge. But the right to
housing should not be conditioned on public appeal or political power.
With increasing numbers of people—now in the hundreds of thousands each year—
returning to their communities after periods of incarceration, federal, state, and local
governments are finally beginning to support reentry programs. But even the most welldesigned reentry programs will fail unless political leaders and the public acknowledge
the collateral consequences that follow a criminal record and dismantle the barriers to
reentry that have been erected by law and policy. Chief among these, as documented in
this report, are the barriers to housing.
The United States must address the drastic shortage of affordable housing, particularly in
public housing. Ultimately, adequate solutions must be devised to ensure that those
rightfully excluded have safe and affordable alternatives. As a first step, it is critical that
the United States eliminate the profound unfairness in the allocation of existing units,
exemplified by unreasonable criminal record exclusions.

326

Interview with Katherine Stark, February 12, 2004.

101

CONCLUSION