Do We Need to Update Our Resident Screening Policies & Procedures?

1. Do We Need to Update Our Resident Screening Policies & Procedures? Recent HUD guidance indicates that the answer is yes. Using the Law to Fight Poverty in Ohio

2. The work that provided the basis for this publication was supported by funding under a grant with the U.S. Department of Housing and Urban Development.  The substance and findings of the work are dedicated to the public.  The author and publisher are solely responsible for the accuracy of the statements and interpretations contained in this publication.  Such interpretations do not necessarily reflect the views of the Federal Government Using the Law to Fight Poverty in Ohio

3. Why is this a crucial issue? • Stable and affordable housing is one of the most basic human needs and it’s a key component of being able to successfully rebuild after incarceration. • Without stable housing, returning citizens face barriers to reuniting with their families and are twice as likely to become involved with the criminal justice system again than those living in stable housing. Using the Law to Fight Poverty in Ohio

4. Why is this important in Ohio? • As many as one in six Ohioans have a misdemeanor or felony conviction. That means that one in six Ohioans face barriers to safe, stable housing due to a criminal record. • The number of people unable to obtain housing is greater when arrest records are considered – even when their arrests did not result in prosecution. • Public Housing Authorities (PHAs) are critical to addressing this key need and can make a meaningful impact on the lives of individuals with records and their families. Using the Law to Fight Poverty in Ohio

5. This is a fair housing issue. • The right to be free from discrimination in housing is a right that we all share. • We also share in the duty to make this right a reality for all. • The Ohio Poverty Law Center is committed to making sure that every person has the right to fair housing opportunities and the protections afforded by federal and state fair housing laws. Using the Law to Fight Poverty in Ohio

6. Disclaimer This information is provided for informational purposes only by the Ohio Poverty Law Center ("OPLC"). OPLC does not warrant this information for any purpose. This presentation shall not constitute legal advice, nor does it create an attorney-client relationship. The laws referenced in this presentation may have changed or could be affected by case law developments. Do not rely on this presentation or your interpretation of it for any purpose.  If you have a legal question you should consult with an attorney.  We suggest that you contact your local Legal Aid Society if you cannot afford an attorney to assist you.  You can get contact information for Ohio legal aid organizations at www.ohiolegalhelp.org or by calling (800) 589-5888.  Using the Law to Fight Poverty in Ohio

7. Screening Policies Matter • “The goal of the housing choice voucher program is to provide ‘decent, safe and sanitary’ housing at an affordable cost to low-income families.” (HUD Guidebook 10-1) • Among the role of the PHA is “Complying with fair housing and equal opportunity requirements, HUD regulations and requirements, the consolidated ACC, HUD-approved applications for program funding, the PHA’s administrative plan, and federal, state, and local laws.” (HUD Guidebook 1-14) Using the Law to Fight Poverty in Ohio

8. Screening Policies Protect Residents, Property, and Serve the Public Interest • Screening policies serve an important function for the public and help people needing safe, affordable housing. • “Ensuring resident safety and protecting property are often considered to be among the fundamental responsibilities of a housing provider, and courts may consider such interests to be both substantial and legitimate, assuming they are actual and legitimate.” • April 4, 2016 Office of General Counsel Guidance on Application Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate Transactions (“HUD April 2016 Guidance”) Using the Law to Fight Poverty in Ohio

9. Screening Policies Also Matter to People with Criminal Records • As many as one in six Ohioans—or 1.92 million people—have a misdemeanor or felony conviction. • SeeOhio Justice & Policy Center • People with criminal convictions face numerous barriers to accessing stable housing. • Without stable housing, individuals are twice as likely to recidivate (reoffend). 1 in 6 Back to HUD Guidance Using the Law to Fight Poverty in Ohio

10. Family Reunification • “More than 70% of those leaving prison indicated that family is an important factor in keeping them out of prison, and up to 82% of people leaving prison or jail expect to live with or get help from their families.” • Tesfai, Afomeia and Kim Gilhuly, The Long Road Home: Decreasing Barriers to Public Housing for People with Criminal Records, Human Impact Partners. (May 2016) available athttp://www.ellabakercenter.org/sites/default/files/media/OHA-HIA-Final-Report.pdf. (emphasis added) • “Strong family connection acts as a protective factor to reduce recidivism. Studies show that reuniting with families after incarceration improves employment status, substance abuse avoidance, and decreases post-release depression.” • Id. Citing Makarios M, Steiner B, Travis LF. Examining the Predictors of Recidivism Among Men and Women Released from Prison in Ohio. Criminal Justice Behavior. 2010;37(12):1337-1391. DOI:10.1177/0093854810382876 Using the Law to Fight Poverty in Ohio

11. HUD Guidance Confirms that Criminal Records Screening Policies and Practices Must Comply with Fair Housing Laws • “A housing provider must, however, be able to prove through reliable evidence that its policy or practice of making housing decisions based on criminal history actually assists in protecting resident safety and/or property.” (HUD April 2016 Guidance) • See24 C.F.R. § 100.500(b)(2) Using the Law to Fight Poverty in Ohio

12. How could a criminal records screening policy or practice violate Fair Housing law? “A housing provider violates the Fair Housing Act when the provider’s policy or practice has an unjustified discriminatory effect, even when the provider had no intent to discriminate. Under this standard, a facially-neutral policy or practice that has a discriminatory effect violates the Act if it is not supported by a legally sufficient justification. Thus, where a policy or practice that restricts access to housing on the basis of criminal history has a disparate impact on individuals of a particular race, national origin, or other protected class, such policy or practice is unlawful under the Fair Housing Act if it is not necessary to serve a substantial, legitimate, nondiscriminatory interest of the housing provider, or if such interest could be served by another practice that has a less discriminatory effect.” (emphasis added) • HUD April 2016 Guidance at 2. Using the Law to Fight Poverty in Ohio

13. Fair housing analysis – disparate impact resulting from criminal records screening policies and practices when unjustified by sufficient evidence. “The Fair Housing Act prohibits both intentional housing discrimination and housing practices that have an unjustified discriminatory effect because of race, national origin or other protected characteristics. Because of widespread racial and ethnic disparities in the U.S. criminal justice system, criminal history-based restrictions on access to housing are likely disproportionately to burden African Americans and Hispanics. While the Act does not prohibit housing providers from appropriately considering criminal history information when making housing decisions, arbitrary and overbroad criminal history-related bans are likely to lack a legally sufficient justification. Thus, a discriminatory effect resulting from a policy or practice that denies housing to anyone with a prior arrest or any kind of criminal conviction cannot be justified, and therefore such a practice would violate the Fair Housing Act.” HUD April 2016 Guidance at 10.(emphasis added) Using the Law to Fight Poverty in Ohio

14. HUD analysis of disparate impact • From HUD April 2016 Guidance: • “Nationally, racial and ethnic minorities face disproportionately high rates of arrest and incarceration.” • “African Americans were incarcerated at a rate nearly three times their proportion of the general population. Hispanics were similarly incarcerated at a rate disproportionate to their share of the general population . . .” Using the Law to Fight Poverty in Ohio

15. Why does recent HUD guidance require new or revised screening policies or procedures? • Nearly 1 in 3 Americans (100 million) have some type of criminal record • African-Americans and Latinos are arrested, convicted, and incarcerated at a disproportionate rate when their population share is compared to that of other Americans • May not discriminate in sale, rental, or financing of dwellings and other housing-related activities on the basis of race, national origin • Criminal history-based restrictions—without justification—have a negative impact on renters or applicants of one race or national origin over another because of the disproportionate rate of arrests, convictions, and incarceration. April 4, 2016 Guidance from HUD General Counsel's Office Fair Housing – Disparate Impact Analysis (see next) Back to HUD Guidance Using the Law to Fight Poverty in Ohio

16. How HUD and Courts Analyze Whether a Policy or Practice has a Discriminatory Impact or Effect* * See Texas Dept. of Hous. And Cmty. Affairs v. Inclusive Communities Project, Inc. 576 U.S. ___ (2015). Using the Law to Fight Poverty in Ohio

17. Examples of Disparate Impact in Other Contexts • Insurance redlining • Disparate impact caused by seemingly neutral underwriting guidelines (age and value of homes) that resulted in denial of insurance in zip codes with a majority of African–American homeowners. See Toledo Fair Housing Center et al. v. Nationwide Mutual Insurance Company et al., No. CI93-1685, Lucas County Court of Common Pleas, August 11, 1997 • Employment • Cited in HUD Guidance: See U.S. Equal Emp’t Opportunity Comm’n, EEOC Enforcement Guidance, Number 915.002, 12 (Apr. 25, 2012), available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm; see also Gregory v. Litton Systems, Inc., 316 F. Supp. 401, 403 (C.D. Cal. 1970) (holding that defendant employer’s policy of excluding from employment persons with arrests without convictions unlawfully discriminated against African American applicants in violation of Title VII because there “was no evidence to support a claim that persons who have suffered no criminal convictions but have been arrested on a number of occasions can be expected, when employed, to perform less efficiently or less honestly than other employees,” such that “information concerning a … record of arrests without conviction, is irrelevant to [an applicant’s] suitability or qualification for employment”), aff’d, 472 F.2d 631 (9th Cir. 1972). Using the Law to Fight Poverty in Ohio

18. Areas where neutral screening policies or procedures may have a discriminatory effect on protected classes under the Fair Housing Act: Issue Areas Click on the boxes for more information! Using the Law to Fight Poverty in Ohio

19. Due Process Rights & the Opportunity for Individualized Consideration • Federal law requires that PHAs provide applicants with notification and the opportunity to dispute the accuracy and relevance of a criminal record before admission or assistance is denied on the basis of the record. • Applicants should be given the chance to present information about their individual circumstances. Back to Issue Areas Using the Law to Fight Poverty in Ohio

20. Individualized Review – Consideringthe Applicant • Applicants should be given the opportunity to submit information about evidence of individual circumstances before a denial takes place. • Consideration of the individual circumstances may explain the time of the crime or steps taken during or after the sentence to contribute to the individual's rehabilitation. Back to Issue Areas Using the Law to Fight Poverty in Ohio

21. HUD on Arrests – Case law and Bureau of Justice stats do not support exclusions based on arrests • HUD 2015 Guidance at p. 3: • “HUD has reviewed relevant case law and determined that the fact that an individual was arrested is not evidence that he or she has engaged in criminal activity. Accordingly, the fact that there has been an arrest for a crime is not a basis for the requisite determination that the relevant individual engaged in criminal activity warranting denial of admission, termination of assistance, or eviction.” • “An arrest shows nothing more than that someone probably suspected the person apprehended of an offense. In many cases, arrests do not result in criminal charges, and even where they do, such charges can be and often are dismissed or the person is not convicted of the crime alleged. In fact, in the 75 largest counties in the country, approximately one-third of felony arrests did not result in conviction, with about one-quarter of all cases ending in dismissal.” • Citing Brian A. Reaves, Bureau of Justice Statistics, U.S. Dep’t of Justice, Felony Defendants in Large Urban Counties, 2009, at 22, Table 21 (2013), http://www.bjs.gov/content/pub/pdf/fdluc09.pdf Back to Issue Areas Using the Law to Fight Poverty in Ohio

22. Arrests are NOT Evidence of Criminality • HUD 2015 Guidance : • “An arrest shows nothing more than that someone probably suspected the person apprehended of an offense. In many cases, arrests do not result in criminal charges, and even where they do, such charges can be and often are dismissed or the person is not convicted of the crime alleged. In fact, in the 75 largest counties in the country, approximately one-third of felony arrests did not result in conviction, with about one-quarter of all cases ending in dismissal.” • Citing Brian A. Reaves, Bureau of Justice Statistics, U.S. Dep’t of Justice, Felony Defendants in Large Urban Counties, 2009, at 22, Table 21 (2013), http://www.bjs.gov/content/pub/pdf/fdluc09.pdf • “Moreover, arrest records are often inaccurate (e.g., by failing to indicate whether the individual was prosecuted, convicted, or acquitted), such that reliance on arrests not resulting in conviction as the basis for denying applicants or terminating the assistance or tenancy of a household member may result in unwarranted denials of admission to or eviction from federally subsidized housing.” • See, e.g., U.S. Dep’t of Justice, The Attorney General’s Report on Criminal History Background Checks at 3, 17 (June 2006), http://www.bjs.gov/content/pub/pdf/ag_bgchecks_report.pdf Back to Issue Areas Using the Law to Fight Poverty in Ohio

23. Conclusion: An Arrest Alone is NOT Evidence of Criminal Activity that Can Support an Adverse Admission, Termination, or Eviction Decision • "The fact that there has been an arrest for a crime is not a basis for the requisite determination that the relevant individual engaged in criminal activity warranting denial of an admission, termination of assistance, or eviction.” HUD 2015 Guidance at 3 (emphasis added). Arrest Conviction Back to Issue Areas Using the Law to Fight Poverty in Ohio

24. Lookback Periods Should Be Reasonable What is a reasonable time before the admission decision? HUD does not define this. Consider the following (follow the link in the graphic to When Discretion Means Denial from the Sargent Shriver National Center on Poverty Law): Back to Issue Areas Using the Law to Fight Poverty in Ohio

25. "One Strike" Policies other than Mandatory Bars Will Likely Violate Fair Housing • PHAs have the discretion to decide whether or not to deny admission to an applicant with certain types of criminal history • But only two circumstances for permanent bars: • Sex-offender offenses • 24 CFR 982.553(a)(2)(i) • Methamphetamine manufacturing on federally assisted properties • 24 CFR 982.553(a)(1)(ii)(C) Back to Issue Areas Using the Law to Fight Poverty in Ohio

26. Fair Housing Analysis applies to all housing-related transactions • Applies to all covered by Fair Housing law • Housing providers • Real estate-related transactions • Applies to all housing-related transactions, including lease renewals • Parties should look to any housing-related transactions, e.g., home loans • Fixing policies alone does not take away responsibility for intentional discrimination if it occurs – e.g., applying a screening policy more harshly to a comparable person in a protected class Back to HUD Guidance Using the Law to Fight Poverty in Ohio

29. Resources • For more information: phiggins@ohiopovertylaw.org • HUD Guidance—April 4, 2016: Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions, available at https://portal.hud.gov/hudportal/documents/huddoc?id=HUD_OGCGuidAppFHAStandCR.pdf • Fair Housing Act: Criminal History-Based Practices and Policies, National Association of Realtors Legal Affairs Department, April 2016, available athttp://www.realtor.org/articles/fair-housing-act-criminal-history-based-practices-and-policies Back to HUD Guidance Using the Law to Fight Poverty in Ohio

30. Request this Presentation and Other Materials Email Janet Hales, jhales@ohiopovertylaw.org

31. The work that provided the basis for this publication was supported by funding under a grant with the U.S. Department of Housing and Urban Development.  The substance and findings of the work are dedicated to the public.  The author and publisher are solely responsible for the accuracy of the statements and interpretations contained in this publication.  Such interpretations do not necessarily reflect the views of the Federal Government Using the Law to Fight Poverty in Ohio