ERC Encourages HUD to Reduce Barriers to HUD-Assisted Housing for People with Criminal Records

By Nick Adjami and Susie McClannahan
June 11, 2024 

On April 10, 2024, the U.S. Department of Housing and Urban Development (HUD) published a proposal to update existing criminal record screening regulations for applicants and program participants in HUD-assisted housing. Under current policy, public housing authorities (PHAs) and landlords of HUD-assisted housing have broad discretion in evaluating current and prospective tenants. As a result, some PHAs and landlords have created additional barriers for people with criminal records in need of stable housing. These exclusionary policies can make it exceedingly difficult for those most in need of stable, affordable housing to obtain it.

Additionally, exclusionary policies fuel racial disparities in housing access, as people of color are disproportionately arrested, incarcerated, and subject to housing discrimination. Meanwhile, housing instability exposes people to increased interactions with police, increasing the likelihood of arrest and contributing to the revolving door of homelessness and incarceration. These exclusionary policies prove especially detrimental to people with criminal records against the backdrop of the affordable housing crisis facing cities and states across the country. As such, the ERC applauds HUD for taking this step to increase access to affordable housing for people with criminal records by ensuring they are not unnecessarily excluded from HUD-assisted programs.

Among other changes, the proposal would:

• Clarify the types of “relevant criminal activity” for which PHAs and landlords of HUD-assisted housing can screen.
• Limit lookback periods for admissions decisions to no more than three years prior to an application.
• Mandate individualized assessments for applicants and current tenants with criminal convictions.

The ERC submitted a comment to HUD that emphasizes the organization’s support for the effort and identifies opportunities for strengthening the rule before it is finalized. The full text of the comment is available below:

These comments, on HUD’s proposed rule on Reducing Barriers to HUD-Assisted Housing, are filed on behalf of the Equal Rights Center (ERC). The ERC is a civil rights organization that identifies and seeks to eliminate unlawful and unfair discrimination in housing, employment, and public accommodations in its home community of Greater Washington, D.C. and nationwide. For many years, the ERC has conducted intakes with individuals in the Washington, D.C. metropolitan region who believe they may have experienced housing discrimination, investigated individual claims and systemic forms of housing discrimination, pursued enforcement of the Fair Housing Act and state and local fair housing laws as needed, and conducted education and outreach about fair housing protections and requirements.

The Equal Rights Center commends HUD for issuing this proposed new rule for Reducing Barriers to HUD-Assisted Housing. The ERC has signed on to joint comments drafted by the National Housing Law Project (NHLP) and National Fair Housing Alliance (NFHA) that highlight the necessity of reducing barriers to HUD-assisted housing for individuals with criminal records and applaud HUD’s promulgation of this proposed rule as well as identify opportunities to further strengthen these protections when finalizing the rule. The ERC is taking this opportunity to, on its own behalf, specifically comment on several questions HUD posed in the proposed rule.

In response to the second question for comment, the ERC strongly supports HUD’s proposal that it would be presumptively unreasonable for PHAs and owners to consider convictions that occurred more than three years ago. As HUD notes in the proposed rule, previous studies have shown that an individual’s criminal record frequently has no correlation with whether the individual would be a good tenant. For the limited number of crimes where data indicates there could be an impact on housing outcomes, that correlation quickly decreases over time.

The ERC also encourages HUD to restrict PHAs and owners from considering any convictions that are not correlated to negative housing outcomes. The Fair Criminal Record Screening for Housing Act of 2016 in Washington, D.C. limits the types of offenses that housing providers can consider during the criminal background screening of an applicant. The law limits housing providers from considering all but forty-eight offenses. The law then requires the housing provider to conduct an individualized assessment of that applicant’s criminal record for any pending accusations or convictions that can be considered under the law. In the ERC’s experience, the D.C. law’s clear lookback period and list of offenses that can be considered has resulted in better housing outcomes for residents with criminal records compared to other parts of the ERC’s service area without similar protections. In one example, a Black, low-income D.C. resident was denied housing in a HUD-assisted program for a single felony on his record from four decades prior. The ERC successfully appealed the applicant’s denial on the basis that the felony was well outside of the District’s allowable lookback period and the client was ultimately able to secure housing. The ERC has also successfully appealed denials on behalf of multiple clients who were denied for convictions that occurred within the lookback period but that are not included in the list of offenses that housing providers can consider according to the law. The ERC thus encourages HUD to not only set a lookback period of no more than three years, but to also restrict housing providers from considering any offenses that do not have a negative impact on housing outcomes.

In response to the third question for comment, the ERC encourages HUD to direct PHAs and owners to provide applicants with relevant criminal records more than 15 days prior to notification of a denial of admission. The ERC recommends providing, at minimum, 30 days’ notice. The ERC has heard from PHA program participants as well as community advocates that mailed notices from PHAs can sometimes take weeks to arrive and the deadlines within those notices to reply to or appeal a decision have already passed prior to the participant’s receipt of the notice. Additionally, low-income and unhoused residents, those who are most likely to be applying for HUD-assisted programs, may not have a consistent mailing address or access to technology, such as a cell phone or email, and thus would benefit from additional time to review and dispute the accuracy of the records procured in the screening, especially given that such a decision could have long-term and devastating consequences on a household’s housing stability.

In response to the tenth question for comment, the ERC encourages HUD to establish the same requirements for PBV owners as for other HUD-assisted programs. Unlike the Housing Choice Voucher Program (“HCVP”), where HCVP participants receive a tenant-based subsidy and rent a unit on the private market, PBV owners have already opted in to participate in the Project Based Voucher (“PBV”) program as part of the receipt of HUD-assisted rental payments. While landlords who are renting to HCVP participants may be unfamiliar with HUD’s HCVP rules and regulations outside of the terms stipulated in a Housing Assistance Program (“HAP”) contract, PBV owners should be generally familiar with HUD’s PBV program rules and regulations. As such, it would not be a significant burden for PBV owners to follow any criminal activity screening requirements HUD promulgates in its final rule. Additionally, it would dramatically increase housing opportunities for low-income residents with criminal records.

Lastly, the ERC appreciates that HUD has explicitly stated that the proposed rule is not intended to “pre-empt operation of State and local laws that provide additional protections to those with criminal records, but that State and local laws shall not change or affect any HUD requirement for administration or operation of the program.” The ERC encourages such language to be included and expanded upon in the final rule. The ERC has knowledge of at least one housing provider participating in a HUD-assisted program that claims to be exempt from the entirety of the District’s additional criminal record screening protections because it participates in a HUD-assisted program and is thereby required to conduct criminal record screenings. As such, the ERC encourages HUD to state as explicitly as possible in the final rule that its intent is not to exempt PHAs and HUD-assisted housing from State or local laws that provide additional housing protections to individuals with criminal records. The ERC also suggests that HUD reiterate that State or local laws may be inapplicable only in such cases where they directly contradict a HUD statutory requirement.

The Equal Rights Center appreciates this opportunity to submit comments on HUD’s proposed new rule for Reducing Barriers to HUD-Assisted Housing. The ERC looks forward to HUD publishing the final rule on this matter as quickly as possible.

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The Equal Rights Center (ERC) — a national non-profit organization — is a civil rights organization that identifies and seeks to eliminate unlawful and unfair discrimination in housing, employment and public accommodations in its home community of Greater Washington DC and nationwide. The ERC’s core strategy for identifying unlawful and unfair discrimination is civil rights testing. When the ERC identifies discrimination, it seeks to eliminate it through the use of testing data to educate the public and business community, support policy advocacy, conduct compliance testing and training, and, if necessary, take enforcement action. For more information, please visit www.equalrightscenter.org.