OVERCOMING BARRIERS TO HOUSING FOR PEOPLE WITH

CRIMINAL RECORDS

MPLP Roadshow

September 21, 2006

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

Many Low–Income 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.

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.

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 don’t have access to many of the same opportunities to get out of poverty.

Major Criminal Record Barriers

Employment Housing Public Benefits Student Loans/Government

training programs Immigration Family Law Fees and Fines

Housing

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

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.

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

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.

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.

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

Differences Between Different Types of Subsidized Housing

Federal standards largely the same between programs, but don’t 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.

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.

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

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.

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.

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.

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.

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

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

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.

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 tenant’s control.

Standard of Proof

Preponderance of the evidence that engaged in criminal activity.

Neither arrest nor conviction are required.

Client’s 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.

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): Can’t live within 1000 feet of school property

May be unconstitutional

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.

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

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

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

client’s 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.

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

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.

Correcting Inaccurate Records: Step 2

Determine what type of error there is:– Inaccurate information about client’s convictions

or missing disposition– Arrest that did not lead to conviction– Conviction that doesn’t belong to client

Correcting Inaccurate Records: Incorrect Information about Client’s 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

Correcting Inaccurate Records: Conviction Doesn’t 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.

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.

ELIMINATING RECORDS: Expungement and Sealing

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

Some offenses can’t 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.

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)

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

Practice Tips – Expungement and Sealing

– Check if client eligible for expungement.

– Check if record contains convictions that could or should have been sealed.

Employment

Why consider barriers to employment?

2/3 employers won’t hire people with criminal records

80% large / 66% small employers do background checks

Reduced wages increase recidivism

Inability to pay rent affects housing

Hire 33%

No Hire 67%

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.

Resources to Find Applicable Rules

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

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

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

Presenter

Miriam Aukerman

Reentry Law Project

Legal Aid of Western Michigan

maukerman@legalaidwestmich.net

(616) 774-0672 x 114