OVERCOMING BARRIERS TO HOUSING FOR PEOPLE WITH CRIMINAL RECORDS

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OVERCOMING BARRIERS TO HOUSING FOR PEOPLE WITH
CRIMINAL RECORDS

• MPLP Roadshow
• September 21, 2006

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Why Should Legal Aid Lawyers Care About People
with Criminal Records?
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Many LowIncome People Have Criminal Records

• About 15 of Michigan adults have a criminal
  record (serious misdemeanor or felony that will
  show up on background check).
• One in 37 adults has prison experience.
• Over 14,000 people in Michigan return to the
  community from prison each year.
• Many offenders are low-income. 50 of prisoners
  have less than high school education, and 15-27
  will end up homeless.

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People of Color and Mentally Ill
Disproportionately Affected

• 53 of MI prisoners are African-American, though
  only 14 of population.
• 14 of those released from prison are mentally
  ill.
• 84 of offenders were involved with drugs and
  alcohol at time of offense.

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Criminal Records are One of Biggest Barriers Our
Clients Face

• People with criminal records face many of the
  same challenges as other low-income people.
• However, people with criminal records dont have
  access to many of the same opportunities to get
  out of poverty.

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Major Criminal Record Barriers

• Employment
• Housing
• Public Benefits
• Student Loans/Government training programs
• Immigration
• Family Law
• Fees and Fines

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Housing

• Stable housing critical to successful
  re-entry and to family reunification

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Consequences of a Record Loss of housing options

• Any convictions will make it harder to find
  housing landlords can refuse to rent.
• Certain convictions will result in loss of
  subsidized housing.
• Entire family can be evicted, not just offender.
• Convictions can affect employment and public
  benefits, which then affects the ability to pay
  for housing.

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Where Do Landlords and PHAs Get Records?

• Local police records
• Michigan State Police Internet Criminal History
  Access Tool
• Department of Corrections Offender Tracking and
  Information System
• Private background screening companies
• FBI fingerprint records

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Private Landlords

• Can deny housing because a person has a criminal
  record.
• Cannot evict individual who has a valid lease
  just because person has a criminal record.
• Can evict for new criminal activity related to
  tenancy. Check lease terms.

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Subsidized Housing

• Public Housing Authorities must publish standards
  for denying eligibility and terminating
  assistance based on criminal activity.
• Plans must include certain federal standards, but
  are often more restrictive than federal
  requirements.

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What Subsidized Housing is Covered by Criminal
Record Restrictions?

• Federally Assisted Housing 24 CFR 5.850 et.
  seq. (Definition of federally assisted housing
  is in 24 CFR 5.100)
• Public Housing 24 CFR 960.203-204 24 CFR 966.4
• Section 8 24 CFR 982.553 24 CFR 882.518

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Differences Between Different Types of Subsidized
Housing

• Federal standards largely the same between
  programs, but dont assume identical.
• Federal standards set a baseline great
  variation in implementation.
• Different public housing authorities can and do
  have different rules in discretionary areas.
• When in doubt, review policies of housing
  provider and make sure they comply with relevant
  federal regulations.

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Admission to Subsidized Housing Mandatory Denial

• Life-time Sex Offender Registration Offenses
  CSC 1, CSC 2 with person under 13, kidnapping
  minor, leading away child, distribution/production
  of child sexual materials, or 2nd conviction of
  a listed offense.
• Methamphetamine Production on premises of
  federally assisted housing.

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Admission to Subsidized Housing Presumptive
Denial

• Household member evicted from subsidized housing
  in past 3 years for drug-related activity UNLESS
• Completed approved rehab program.
• Circumstances no longer exist (i.e. offending
  household member dead or incarcerated)
• Household member currently engaging in illegal
  use of drugs UNLESS
• Completed approved rehab program, or otherwise
  rehabilitated
• Household member abusing alcohol UNLESS
• Completed approved rehab program, or otherwise
  rehabilitated

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Admission to Subsidized Housing Discretionary
Denial

• May Deny Admission if Any Household Member
  Engaged in
• Drug-related crimes
• Violent crimes
• Other crimes that affect health, safety or right
  to peaceful enjoyment of residents, neighbors,
  staff, owner, or PHA contractor.
• Limited to reasonable amount of time after
  criminal activity Potential Area for Challenge.

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Admission to Subsidized Housing Getting Clients
In Despite a Record

• 24 CFR 960.203, 24 CFR 982.553, 24 CFR 5.852 In
  discretionary cases, PHA can consider factors
  like
• Seriousness of activity
• Extent of participation/culpability
• Evidence of Rehabilitation
• Effect of Denial on Members Not Involved
• PHA can reconsider denial if sufficient
  evidence that household member not currently
  engaged, and has not engaged in criminal activity
  during a reasonable time prior to admission.

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Conditioning admission on exclusion of Household
Member

• PHA may require applicant to excludes household
  member who was responsible for the criminal
  activity that would otherwise lead to denial.

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Eviction from Public Housing Mandatory
Termination

• PHA must evict residents who
• Are subject to lifetime sex offender
  registration.
• Were convicted of methamphetamine production on
  premises of federally assisted housing.

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Eviction from Subsidized Housing Discretionary
Termination

• Engaging in illegal drug use UNLESS rehabilitated
• Abusing alcohol UNLESS rehabilitated
• Furnishing false information re drug/alcohol use
• Fleeing felons or parole violators
• Persons engaging in criminal activity
• Drug crime on or off premises
• Crimes entailing threat to other residents or
  persons residing in immediate vicinity

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Mitigation Provisions

• For Discretionary Terminations, Housing Authority
  may consider factors such as
• Seriousness of offending action
• Extent of participation of leaseholder in
  offending action
• Effect eviction would have on family members not
  involved in offense
• Steps leaseholder took to prevent or mitigate
  offense

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If Substance Abuse, Pursue Rehab

• For some drug or alcohol related activities,
  Housing Authority may allow defendant, if
  defendant completes rehabilitation program
  approved by the HA.

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Who Gets Evicted

• Housing Authority has discretion to evict only
  offender.
• Housing Authorities can and do evict entire
  household for actions of any member of the
  household, any guest, or any person under the
  tenants control.

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Standard of Proof

• Preponderance of the evidence that engaged in
  criminal activity.
• Neither arrest nor conviction are required.

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Clients Right to Record

• If Housing Authority proposes to deny admission
  or evict for criminal activity, Housing Authority
  must provide copy of record.
• Client must get opportunity to dispute accuracy
  or relevance of record through an informal review
  process.
• Client cannot be required to pay cost of getting
  record.

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Sex Offender Registry Exclusion Zone

• Applies to Anyone on Sex Offender Registry
• Michigan registry very broad.
• Client may be on for Romeo-and-Juliet offense,
  prostitution, public urination, etc.
• School Safety Law (MCL 28.735) Cant live
  within 1000 feet of school property
• May be unconstitutional

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Exceptions to Exclusion Zone Grandfathering

• Previously registered individuals residing in
  Student Safety Zone on January 1, 2006.
• Anyone who is added to registry after January 1,
  2006 and lives in Student Safety Zone must move
  within 90 days.

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Exceptions to Exclusion Zone Young Offenders

• Individuals under 19 attending school and
  residing with parents
• Individuals under 26 who are in special ed and
  residing with parents
• Certain individuals convicted as juveniles
• HYTA trainees who complete probation
• Certain statutory rape offenders

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Standard Parole Conditions

• Restrictions on living with children
• Restrictions on living near children
• 1000 feet from school or daycare
• Restrictions on living with /near victims

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Practice Tips

• Run client records and discuss them with clients.
• Where possible, appeal denials of admission.
• Fight evictions in discretionary cases.
• Argue reasonable accommodation under ADA if
  clients record is related to addiction or mental
  illness and client is not a direct threat.
• Tell your clients to attend relevant treatment
  programs in order to prove rehabilitation.
• Assist clients in cleaning up or expunging
  records.

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CLEANING UP RECORDS RECORD INACCURACY

• Many records are inaccurate.
• Criminal record identity theft convictions
  estimated 400,000 victims.
• ICHAT mismatches ICHAT searches on name, gender
  and year of birth

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Correcting Inaccurate Records Step 1

• First determine what record was used.
• Local Police
• Michigan State Police ICHAT
• Michigan Department of Corrections OTIS
• Private Screening Company
• FBI
• Error in one means likely that there are errors
  in others too.

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Correcting Inaccurate Records Step 2

• Determine what type of error there is
• Inaccurate information about clients convictions
  or missing disposition
• Arrest that did not lead to conviction
• Conviction that doesnt belong to client

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Correcting Inaccurate Records Incorrect
Information about Clients Convictions

• Get copies of court documents showing actual
  convictions
• Get copies of court documents showing disposition
• Send documents to agency that produced the
  criminal record

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Correcting Inaccurate Records Conviction
Doesnt Belong to Client

• For ICHAT records client must get fingerprinted
  and do a record challenge.
• For OTIS records may require amendment of
  judgment of sentence. Contact DOC.
• For private records clear state record and
  demand correction under FCRA.
• For FBI records must clear with state
  repository in state of conviction.

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Correcting Inaccurate Records Reporting of
Arrests Not Leading to Conviction

• Pending cases can be reported.
• Individuals who are arrested and not charged, or
  who are found not guilty should file motion for
  return of fingerprints. Form MC 235 MCL 28.243.
• However, new law allows for dissemination of all
  criminal history information that is associated
  with a state identification number and is
  supported by fingerprint impressions.

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ELIMINATING RECORDS
Expungement and Sealing
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Expungement who is eligible?

• 1 conviction only
• Multiple counts are considered separate
  convictions
• However, may be able to expunge both juvenile
  adjudication and adult conviction
• 5 years from conviction or release, whichever is
  longer
• Juveniles must be at least 24
• Discretionary with Court

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Some offenses cant be expunged

• Offenses punishable by life imprisonment
  (regardless of actual sentence)
• CSC 1, CSC 2, CSC 3, assault with intent to
  commit CSC
• Traffic offenses reportable to the Secretary of
  State
• Non-traffic offenses reportable to SOS may be
  expunged but SOS still keeps a record.

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Disposition without entry of judgment of
conviction (sealing record)

• Variety of statutory options
• Usually results in dismissal of case after
  successful probation
• Often for 1st offenses (e.g. first time drug
  possession or use)

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Examples of Sealing Mechanisms

• 7411 first-time drug possession or use
• Holmes Youthful Trainee Act youths between
  17-21
• Spousal Abuse Act first-time assault and
  battery in domestic violence cases
• Drug court individuals who successfully
  complete
• Minor in Possession first time offenders
• Kidnapping by a Parent first time offenders

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? Practice Tips Expungement and Sealing

• Check if client eligible for expungement.
• Check if record contains convictions that could
  or should have been sealed.

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Employment
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Why consider barriers to employment?

• 2/3 employers wont hire people with criminal
  records
• 80 large / 66 small employers do background
  checks
• Reduced wages increase recidivism
• Inability to pay rent affects housing

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Statutory Barriers to Employment

• State and Federal Laws and policies prevent
  employment of people with convictions in many
  jobs.
• Some estimates that up to 1/3 of jobs could be
  affected.

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Resources to Find Applicable Rules

• Training Materials Updates on web
• Website of agency that regulates industry
• Unions
• Defendants own employment materials
• Other Lawyers

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Jobs Likely to be Affected

• Working with or near children
• Working with or near vulnerable adults
• Licensed Professions
• Security-related fields
• Transportation-related fields
• Jobs hired or paid by Government

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Tools for Your Practice

• Training Resources
• Providing Civil Legal Assistance to People with
  Criminal Records A Manual for Attorneys and
  Advocates
• On Line Resources
• www.mplp.org
• www.reentry.net
• www.hirenetwork.org

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Presenter

• Miriam Aukerman
• Reentry Law Project
• Legal Aid of Western Michigan
• maukerman_at_legalaidwestmich.net
• [phone] x 114