OVERCOMING BARRIERS TO HOUSING FOR PEOPLE WITH CRIMINAL RECORDS MPLP Roadshow September 21, 2006.
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Transcript of OVERCOMING BARRIERS TO HOUSING FOR PEOPLE WITH CRIMINAL RECORDS MPLP Roadshow September 21, 2006.
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
(616) 774-0672 x 114