This report represents more than just a legal analysis about the struggles in low-income communities. For many of us, this is about our homes. This is about where we try to cook our meals, relax, and raise our families. The stakes are high, inciting passion. Yet we do not let this passion blind us; instead, we use it to motivate ourselves. We encourage everyone, regardless of background or circumstance, to join us in taking action upon a most critical issue.
We are fortunate to have strong individuals and organizations working towards change in New Orleans. The city is “ground zero” for incarceration, and a true tragedy considering the rich history and difficult geographic location at the mouth of the Mississippi. What we have created is a national model, drawing from the expertise on the ground and in the legal community, to help our people step up and out of the carnage created by two generations of the “War on Drugs.”
The FICPM looks forward to building partnerships with people working on this and other issues across the nation.
Formerly Incarcerated & Convicted People’s Movement
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This report is broken into five primary pieces, along with an Introduction and conclusion.
Section I: Introduction provides a starting point on the topic of public housing and criminal conviction policies, rooting this issue in one particular city. New Orleans tangles with the most intense incarceration in America, and thus the world. Seemingly innocent programs related to criminal convictions, can take on a primary role in a city such as New Orleans, where one in seven Black men is either in prison, on parole or probation.
To fully grasp the community impact of affordable housing barriers in this sphere, one must account for arrest, incarceration, and poverty rates. Particular to civil rights law, one should factor in the proportionality between recognized ethnic and language groups. It is no mystery that in New Orleans, policies that affect people impacted by the criminal justice system (both individuals and families) are disproportionately affecting people of Color- especially African-Americans. The contrasting affect is most glaring when comparing the drug enforcement policies of densely populated, overwhelmingly White, college students. The excuse of “experimentation” has been reserved for a certain segment of young drug users.
Public housing exclusion standards apply to entire families, thus the impact is far broader than the tens of thousands who are formerly convicted, whether incarcerated or not. Statistics typically fail to account for those who are no longer serving a punishment, yet they too have a criminal history that impacts their ability to obtain housing or employment. Hurricane Katrina exasperated the dilemma of a public housing shortage, and rebuilding efforts have intentionally been below previous capacity. There are now over 27,000 households on the waiting list for affordable housing, putting pressure on other services to deal with homelessness.
In Section II, this report provides a brief overview on housing and policing policies within the context of The War on Drugs. The primary method of encouraging “drug free” behavior has been punishment, while the primary mode of enforcement has been to focus on densely populated low-income communities of Color. The exclusions and evictions from public housing has been accelerated along with the escalation of the War on Drugs. Accordingly, it may make sense for a recession of the punitive policies to span all fronts as widespread de-escalation is afoot in response to the growing sentiment that the War on Drugs has been a failure.
The goal of Forced Sobriety has justified highly-policed communities and a massive construction boom (and employment growth) associated with prison expansion. The Department of Justice estimates that nearly 7% of all people born after 2001 will serve time in state or federal prison; this is on top of the 65 million people who currently have been convicted of a crime. If current rates continue, about 1 in 17 White men, 1 in 6 Hispanic men, and 1 in 3 African American men are expected to serve prison time in their lifetime. It is difficult to imagine anyone in the public sphere being satisfied with these statistics.
The history of public housing, and HUD, includes an acknowledged discrimination over time. The 1.1 million remaining public housing units, and 2.2 million households assisted by vouchers, must be implemented in a manner consistent with HUD’s mission to support community development. HUD has long been a partner with local policing efforts. This partnership deserves scrutiny in the same manner as the police, as overly aggressive tactics have become (in some opinions) more destructive than the harms they purport to reduce.
Section III looks at how government actors are evolving on criminal justice, and new policies are competing with the “Tough on Crime” reactionary rhetoric. The National Reentry Council is an interagency approach to confront the effects of mass incarceration. The most active agency among them, the Equal Employment Opportunity Commission, has been dealing with employment issues for decades, and the agency’s 2012 policy change regarding the use of criminal records in hiring is a major breakthrough.
The EEOC provided one of the most significant advances in recent Civil Rights law, and they make specific findings regarding national data. Specifically, the EEOC finds that the criminal justice system disproportionately impacts Black and Latino people in America. This is significant when assessing a neutral policy under Title VII of the Civil Rights Act of 1965, and any blanket policy using criminal history alone to exclude people will run afoul of Title VII. The EEOC provides a framework to guide policies in both the public and private sector. Courts have held that the various Civil Rights statutes are intended to work as a unified framework, thus developments in employment law can be persuasive regarding similar issues in housing law.
Section IV lays out the complex web of laws that serve as Congressional guidance to local public housing authorities (PHA), regarding the exclusions and evictions from subsidized programs. Ultimately, HUD allows broad discretion to the local PHA. By comparing policies to the HUD requirements, and comparing them to each other, it is clear that overly restrictive, and extremely vague, policies are guiding decisions that have a far-reaching affect on community housing. When HUD Secretary Shaun Donovan put out a clear statement, that only two types of crimes are barred from HUD, few local agencies took any action.
Only people convicted of sex offenses, and on a Registry for life, along with those who manufactured methamphetamines on federal property, are barred from public housing. Congress makes particular exclusions optional beyond that, generally related to drug use. If someone was previously evicted for a drug related crime, they are faced with a three-year ban unless the offending family member is in prison, dead, or completed a drug rehabilitation program. However, community members around the country have been dealing with policies that don’t provide for those nuances.
A model admission and eviction policy is included. This policy is currently being used as a starting point for changes in New Orleans, and has gotten past a public hearing stage. It addresses the need for the PHA to be part of a system where mentally ill and addicted people are directed towards help rather than prisons and homelessness. The phrase “Reasonable Time” is reasonably defined, eliminating the extreme lengths of time people are facing around the country before eligibility for affordable housing. The Housing Authority of New Orleans is currently working to develop and finalize a policy in accordance with these principals.
Section V is a detailed assessment of housing discrimination under federal law. It also includes a proposed change (as of this writing) of HUD’s policy, by finally providing a federal code regarding disparate impact in housing. Disparate impact is when a neutral policy becomes discriminatory- such as using drug convictions to exclude people from public housing. Whereas studies indicate drug use is similar across all identified races, the chosen policing patterns result in an overwhelming percentage of drug convictions concentrated in Black and Latino communities. All additional penalties attached, based on those convictions, will disproportionately impact Black and Latino people. Thus, “Disparate Impact.”
Courts have long transferred disparate impact theory between employment and housing, but at times differed on the proper standards and process. It is important for advocates to gain a full understanding of disparate impact theory. This is likely to serve as a legal framework for pushing back against a myriad of criminal justice policies that have resulted in the systemic loss of economic and political power among Black and Latino communities.
The EEOC has found four key factors so that employers may design an acceptable “targeted screen,” rather than a blanket policy subject to civil rights lawsuits. These factors are (1) Nature of the crime; (2) Time elapsed; (3) Nature of the job; and (4) Individual assessment. Housing providers, particularly where there is a documented shortage of affordable housing (i.e. New Orleans), should develop a similar screen suitable to residential life.
Section VI focuses on the key elements to make a legal case for dispirate impact in the courts. Those who are not interested in litigating a claim will nonetheless want to appropriate some of the standards and justifications that the courts have developed as consistent with the constitution. One complication in presenting “impact” data is that many people with criminal records (and their families) do not apply for public housing. Most people have “heard” you can’t get in with a felony, to some degree of accuracy or another. Even if they were fully knowledgeable about the waiting periods, it is impossible to know how many are foreclosed because they would need to not know the policy, apply anyway, and be denied. Thus, data of this sort may require a study of the potential (rather than actual) applicants who are deemed ineligible solely due to criminal convictions. If Black residents have a rate below 80% of the White residents’ rate, it is likely to be deemed sufficiently “disparate.”
Under disparate impact litigation, housing providers would need to present the court with their substantial, legitimate, nondiscriminatory interests being served by the exclusion policies. Furthermore, they will be tasked to show that the exclusions actually serve the goal: Resident safety. This cannot merely be speculation. Finally, reformers can still prove victorious by showing that the interests (i.e. resident safety) can be achieved in a less discriminatory manner. PHA’s who understand this civil rights litigation framework are more likely to recognize that a court may ultimately order them to a negotiating position exactly like the one being offered at the outset. Delaying the adoption of a new policy by requiring the court order is the least cost-efficient way forward.
This report recognizes that there is a movement to repeal Civil Rights protections for people of Color in America. Although Justice Antonin Scalia famously referred to the protection of voting rights as “just another racial entitlement,” the sentiments of state and federal policymakers suggest that Civil Rights are not going to be eroded. Racial disproportion is one manner of addressing the problems of discrimination, and is the primary path outlined in this report. As criminal records impact a larger swath of America, however, new legal arguments will emerge regarding the rationale to continue, or repeal, this framework that supports two separate citizenships.
The Appendix provides the complete proposed policy for the Housing Authority of New Orleans, and a nationwide sample snapshot of six other cities.
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