Family separation due to a parent’s incarceration has impacted over 5 million children and has profound negative impacts on a child’s well-being. But some states are addressing this crisis. We reviewed recent legislation and found that, in response to pressure from advocates to address the crisis of family separation by incarceration, 12 states and the federal prison system have taken legislative action to lessen parental incarceration’s disruptive effects.
Parental incarceration can have lasting effects on children into adulthood. Child development experts consider a child’s household member becoming incarcerated an “Adverse Childhood Experience,” which correlates to challenges throughout childhood development, negative effects on health, and adverse impacts on employment and educational outcomes. The state’s typical responses to parental incarceration often worsen this crisis, permanently changing a family’s relationships by placing children in foster care or terminating parental rights, but advocates are fighting for creative and holistic solutions.
As a result of tireless advocacy, often led by formerly incarcerated women, legislatures are finally addressing this problem. Four states and the federal prison system have implemented requirements that parents be detained within a specified distance of their kids, making it easier for children to access their caregivers. Eight states have passed legislation requiring a convicted person’s status as a caregiver to be considered a mitigation factor in their sentencing, or allowing parents priority access to diversion and alternative-to-incarceration programs. (Caregiver laws are also currently being considered in the Connecticut, Maine, and Rhode Island state legislatures.)
Caregiver mitigation and diversion laws: The best existing reform targeting family separation
Of course, the best way to maintain a bond between a parent and their child is to avoid separating them, so some states have implemented caregiver mitigation or diversion laws. Mitigation laws, like those in Illinois and Massachusetts, require judges to consider a person’s status as a caregiver when sentencing them. In other states, including California,1Louisiana, Oregon,2Tennessee, Washington, and Missouri, 34 caregiver diversion laws create specialty programs for parents or give parents priority access to diversion or alternative-to-incarceration programs such as drug treatment programs, electronic monitoring, or other community-based alternatives. The successful implementation of these laws in states with very different political climates suggests that this is a type of criminal justice reform which — since it places the welfare of children at the center — draws support from legislators across political divides. (For model legislation, see the original bill proposed in Tennessee.)
It’s worth noting that the strength of existing caregiver laws varies widely by state: Some laws merely suggest that judges take a person’s caregiver status into account, while Massachusetts, for example, outlines a clear and formal process that requires a judge to either give an alternative community-based sentence or write a justification for why they are not doing so.
Unfortunately, states that assign parents to alternative or diversion programs have faced limitations to funding, scarcity of available programs, and stipulations like sunset policies and “pilot programs” that leave programs precariously funded and vulnerable to ending. Nationally, diversion and alternative sentencing programs are underfunded. Demand often exceeds capacity in successful but resource-strained programs (for instance, in Seattle and Los Angeles). Unless caregiver mitigation and diversion laws include provisions to allocate funding for a new court, program, or alternative sentence, these laws risk enhancing the burden on already overburdened programs. (A federal bill, the FAMILIES Act, introduced by Sen. Ron Wyden and Rep. Pramila Jayapal, has the potential to alleviate some of this strain: The bill would not only offer primary caregivers in the federal system opportunities for diversion, but fund grants for states to create new diversion programs. The FAMILIES Act has unfortunately repeatedly died in committee.)
Even when diversion programs are available, not all are not created equal. Many diversion programs effectively funnel people into prison anyway,5 and strict eligibility policies often exclude deserving individuals — especially those with violent offenses (a problematic and fluid category) — from these programs. For maximum impact, diversion opportunities should not include broad exclusions (or “carve outs”) based on offense type.
Proximity laws: A promising reform facing major implementation challenges
Unfortunately, legislative and logistical challenges have limited the impact of these laws. Prisons isolate people by placing them in geographically remote areas, which makes it difficult for many states to implement their proximity legislation. For example, in Florida, “the measure originally encouraged the Department of Corrections to place inmates within 150 miles of their families, but [a legislator] amended the bill to widen the radius to 300 miles. ‘Our problem is, most of the prisons are in the Panhandle, and most of the people are down south.’”7 Similar challenges exist in New York; although 41% of incarcerated New Yorkers are from New York City, almost all of the facilities are upstate, hundreds of miles from the city.8Further, many states only have one women’s prison that is often located rurally. This limitation makes it hard to preserve bonds between incarcerated mothers and kids in major cities.
Quality proximity legislation must include funding and infrastructure for visitation and transportation for children of incarcerated parents. Traveling great distances is time-consuming and inaccessible for families who do not have cars and need to reach loved ones locked up in areas that aren’t accessible by public transit. While some non-profit organizations and social service agencies have attempted to remedy this by providing free “reunification rides,”9 such programs are a private sector band-aid fix to an issue that better legislation and policy could solve.
Case Study: A Look At Parental Incarceration in Illinois
The experiences of advocates in Illinois show effective implementation of laws is essential for success.
While Illinois advocates have won several reforms that expand incarcerated parents’ rights, many barriers have hindered their implementation. Observing this long uphill battle offers interesting insights about the limited value of passing legislation without effective implementation measures in place.
Illinois is one of seven states with a nursery where incarcerated new mothers can spend up to two years with their newborns, but there are often more than three times as many pregnant people in the Illinois Department of Corrections than there are spaces in the Moms and Babies program. Even though demand outweighs capacity, admissions requirements are so strict that spaces in the program often sit empty. At the beginning of the COVID-19 pandemic, all program participants were released, which is a promising reminder that simply releasing parents from prison is possible. As of April 2021, the program had not resumed accepting participants even though the DOC had started re-admitting people, including pregnant people.10
Additionally, the 1998 Women’s and Children’s Pre-release Community Supervision Program Act requires the state to create a community-based program where mothers and young kids can live together outside of prison, but according to 2021 reporting, “the directive has been underutilized … only one program, the Women’s Treatment Center in Chicago, has been contracted.”11An article in Truthout reported that over a four-year period, the Women’s Treatment Center received only three women from prison. Newer reporting from the Chicago Tribune indicates that this center has since closed.
In 2019, Illinois attempted to expand incarcerated parents’ rights by passing the Children’s Best Interest Act, inspired by legislation crafted by members of the National Council for Incarcerated and Formerly Incarcerated Women and Girls, such as the original Tennessee bill. The Children’s Best Interest Act requires that a court consider whether a defendant is the parent of a child or a caregiver for a relative who will be negatively impacted by the defendant’s absence. The act specifies that the following factors be considered:
If the parent is breastfeeding the child;
the age of the child, with strong consideration given to avoiding disruption of the caregiving of an infant, pre-school, or school-age child by a parent;
the role of the parent in the day-to-day educational and medical needs of the child;
the relationship of the parent and the child;
any special medical, educational, or psychological needs of the child;
\the role of the parent in the financial support of the child.
The Act also allows defendants to present another form of mitigation during sentencing: “a Family Impact Statement…which the court shall consider before imposing any sentence and may include testimony from family and community members, written statements, video, and documentation.”12
While the potential benefits of this legislation are promising, many limitations have stifled its impact so far. After going into effect in January 2020, the COVID-19 pandemic delayed sentencing hearings, pushing back implementation. Further, though advocates on the ground are organizing to spread the word, the legislation did not create an initiative to educate judges and attorneys about the changes that result from this legislation. Finally, the act does not change or bypass mandatory minimums, meaning there are limitations to the discretion that a judge can exercise during sentencing. Illinois advocates continue resisting these barriers to implementation, and their struggle can provide insights that advocates in other states might consider when pursuing legislation about incarcerated parents in their own state.
Considerations for successful policy and advocacy efforts
A criminal sentence should not equate to a termination of parental rights, and children of incarcerated parents should not bear the brunt of their parents’ punishment. Defending incarcerated parents’ rights and attending to the needs of the children are vital goals that more states should pursue. While caregiver mitigation or diversion and proximity laws are positive first steps, these laws are too often hindered by overreliance on under-resourced diversion programs, a failure to educate judges and attorneys on changes in the law, and a lack of transportation infrastructure for kids of incarcerated parents. Furthermore, some laws bar people convicted of any violent offense from benefiting from the reforms at all. Future laws should focus on making reforms applicable to as many people as possible, maximizing the time shared between parents and children, and minimizing the burden on families for pursuing that time together.
Further reading for advocates and policymakers interested in protecting incarcerated caregivers and their children:
Model legislation: the original draft of the Tennessee legislation, shared by the National Council for Incarcerated and Formerly Incarcerated Women and Girls, and a 2018 Louisiana bill drafted by Operation Restoration, which would have also allowed courts to vacate the judgment of conviction with successful completion of the program, and would broaden eligibility to include caretakers of people with mental or physical disabilities of any age who cannot take care of themselves.13
Are you aware of resources or advocacy efforts that aren’t mentioned in this briefing? Let us know through our contact page.
Footnotes
Most of these states’ laws create diversion programs that begin during the sentencing process, allowing defendants to avoid incarceration but not a criminal conviction. California’s law goes further: Its program diverts primary caregivers from incarceration during the pretrial period, and individuals who successfully complete the program avoid not just incarceration, but the collateral consequences of a criminal conviction. ↩
Oregon’s law, passed in 2015, established a “Family Sentencing Alternative Pilot Program,” to sunset in 2025 (or, presumably, to be replaced with more permanent legislation). Currently, the diversion program is only active in 5 of the state’s counties: Deschutes, Jackson, Marion, Multnomah, and Washington. The linked report includes more information about outcomes of the program. ↩
One more state — Minnesota — is not on this list but deserves a mention. In 2021, Minnesota passed the “Healthy Start Act,” allowing the Department of Corrections Commissioner to conditionally release people to community-based programming who are pregnant or immediately postpartum for up to 12 months. We did not include this among the states that have passed primary caregiver legislation because of how few caregivers are eligible for this program and for how limited the diversionary period is. However, it is a vast improvement on the previous law, which only allowed a 36-to-72 hour departure from the correctional facility for a mother to give birth and separated mothers from their newborns immediately. ↩
Texas and Arizona also introduced caregiver diversion bills that did not pass in 2019 and 2021, respectively. ↩
This study states that “Recidivism, the outcome variable, was measured two different ways in this study. It was operationalized as 1) a reconviction for a felony-level offense, and 2) a revocation for a technical violation.” We believe that how you measure “recidivism” is complex and that the equation of these two outcomes is problematic, as is outlined here. ↩
Operation Restoration also successfully passed a related Primary Caretakers Arrest Bill in 2021, which sets out training and procedures for arrests of people caring for minor children, to reduce the traumatic impact of primary caretakers’ arrests on children. ↩
Millions of people with criminal records likely meet the income eligibility requirements for public housing assistance. But needlessly strict local policies lock them out of housing. We explain how your public housing authority may be overly exclusionary.
by Selena Muñoz-Jones and Emily Widra,
February 15, 2023
Housing is a human right: the right to adequate housing is recognized by international law, including the Universal Declaration of Human Rights. But we know that in the U.S., hundreds of thousands of people face homelessness, and there are particularly high rates of homelessness and housing insecurity among formerly incarcerated people across the country. Our previous research found that people who have been to prison just once experience homelessness at a rate nearly 7 times higher than the general public. But people incarcerated more than once have rates 13 times higherthan the general public. Inevitably, part of the problem is that public housing policies — which should be a part of a crucial safety net against housing insecurity — actually discriminate against people with criminal legal involvement and criminal records.
Part I of this briefing delves deep into the policies of the U.S. Department of Housing and Urban Development (HUD) that give local public housing authorities (PHAs) overly broad discretion to deny housing to people with criminal records. We review how PHAs wield this discretion to deny people housing in more ways than required by federal law. Part II of this briefing is a guide to critically reviewing public housing policies to help you identify the criteria your local PHA has chosen to use to exclude people with criminal records and to help you evaluate whether those criteria are necessary or potential targets for local-level reforms.
Part I: An introduction to local public housing authorities’ exclusion of people with criminal histories
We know that access to safe, stable, and affordable housing is crucial for healthandwell-being, and for formerly incarcerated people, housing is also crucial for successful reentry. The transition from prison to the community is rife with challenges. But before formerly incarcerated people can begin to address health problems, find stable jobs, or learn new skills, they need a place to live.
Across the country, there is a shortage of affordable housing which gives landlords the option of denying housing to people with criminal records (most conduct criminal background checks on prospective renters), leaving public housing, Section 8 vouchers, and other assisted housing as their only choices. But even public housing sets up barriers for people with any involvement with the criminal legal system. At least 79 million Americans have a criminal record1 and more than a quarter of formerly incarcerated people are unemployed, meaning that millions of people with criminal histories likely meet the income eligibility requirements for public housing assistance:
While the available data do not allow us to determine exactly how many people would qualify for public housing if not for their prior criminal legal system contact, based on just how widespread housing insecurity and homelessness are among formerly incarcerated people, it’s safe to assume that public housing policies significantly impact formerly incarcerated people. The criminal legal systemdisproportionatelytargetspeople of color, so the individuals, neighborhoods, communities, and families facing the collateral consequences of incarceration are also facing the compounded effects of poverty and systemic racism enshrined in housing policies.
Introduction to public housing authorities
There are over 3,000 public housing authorities (PHAs) granting access to the more than 970,000 public housing units for low-income families and individuals across the country. PHAs are local agencies that determine public housing eligibility based on general guidelines published by the federal Department of Housing and Urban Development (HUD).
In 1968, the Fair Housing Act expanded the Civil Rights Act of 1964, prohibiting discrimination in housing transactions (renting, buying, and selling) on the basis of race, religion, sex, national origin, family status, and disability. Importantly, the 1968 Fair Housing Act — nor any subsequent revision — has not considered criminal history status as a protected class, meaning that housing policies can legally discriminate based on criminal legal system involvement.2
However, in 2016, HUD issued a memo to PHAs clarifying that while having a criminal record is not a protected status, criminal records alone do not justify an automatic denial without justification. Because PHAs’ use of criminal history as a disqualification for public housing has disproportionately impacted Black, Indigenous, and people of color, this memo clarified that the exclusion of people based solely on criminal legal histories was a type of race-based discrimination. Even without identifying people with criminal histories as a protected class, this memo should have created a pathway to hold PHAs responsible for denials of housing with discriminatory intent or effects as violations of the Fair Housing Act. But although the 2016 HUD memo shifted PHAs’ policies from allowing a blanket exclusion of people with any criminal record to a more focused exclusion of those with drug or ‘violent’ offense histories, the official guidelines leave so much to local interpretation that PHAs are still able to discriminate broadly on the basis of criminal legal system involvement, as we explain below.
Doubling down on its 2016 guidance, in June 2022, HUD published the most recent changes to federal public housing policies. These guidelines advocated for PHAs to make their 2023 public housing policies3as inclusive as possible for people with histories of criminal legal system involvement. It remains to be seen how PHAs will — or will not — incorporate this directive, as there is no evidence that HUD is limiting the amount of discretion permitted within the existing rules.
Denial of public housing assistance for people with criminal histories
HUD establishes two types of denials — mandatory and permissive — that local authorities use in making decisions about housing for people with criminal histories. The language in both sections leaves far too much room for discriminatory decision-making by local public housing authorities (PHAs).
Mandatory prohibitions
First, there are automatic reasons for which local PHAs must issue denials, as decreed by HUD (“mandatory prohibitions”) (24 CFR §982.553):
The PHA determines that any household member is “currently engaging in illegal use of a drug;”
The PHA determines that it has reasonable cause to believe that a household member’s “illegal drug use or a pattern of illegal drug use may threaten the health, safety, or right to peaceful enjoyment of the premises by other residents;”
Any household member has ever been convicted of “drug-related criminal activity for manufacture or production of methamphetamine” on the premises of federally assisted housing;
A household member has been evicted from federally assisted housing for “drug-related criminal activity” in the past three years; or
Any member of the household is subject to a lifetime registration requirement under “a State sex offender registration program.”
As you can see, throughout these reasons for mandatory denials, there is still significant room for discretion at the local level. For example, there is no definition of what “currently” means and each PHA has the authority to define this timeframe however they want: for example, “currently” could be defined as within the last week, the last six months, or within the last year.
Permissive prohibitions
The second kind of denial issued for people with criminal histories is not federally required, but instead, the PHA elects to expand the criteria for denial. These “permissive prohibitions” often build on the above federal requirements to make public housing access even more restrictive. PHAs “may prohibit admission” if the PHA determines that any household member “is currently engaged in, or has engaged in during a reasonable time before the admission” the following behaviors (24 CFR §982.553):
“Drug-related criminal activity;”
“Violent criminal activity;”
“Other criminal activity which may threaten the health, safety, or right to peaceful enjoyment of the premises by other residents or persons residing in the immediate vicinity;” or,
“Other criminal activity which may threaten the health or safety of the owner, property management staff, or persons performing a contract administration function or responsibility on behalf of the PHA (including a PHA employee or a PHA contractor, subcontractor or agent).”
Ultimately, the federal government offers PHAs freedom in determining how to define all of the terms used above, including “currently,” “reasonable time,” “threaten,” and “peaceful enjoyment,” essentially granting PHAs vast autonomy over denials of public housing assistance for virtually any criminal history they choose.
Addressing your local PHA policies
Local PHAs can — and do — exercise a great deal of discretion when crafting and implementing their policies that determine who is and isn’t eligible for low-income public housing. While HUD provides guidelines on criteria for access and denial (24 CFR §982.553), individual PHAs often make their policies even more restrictive than the HUD recommendations. In fact, almost all PHAs use permissive prohibitions to make their policies more restrictive.
Not all public housing policies are created equal, and we encourage you to investigate your local policies. To that end, because these policies often use the same general template, we have looked at general trends across these policies to outline key areas for local advocates to take a closer look at. In Part II below, we offer a guide for analyzing of public housing policies. If you find your local public housing authority is needlessly discriminating against people with criminal histories, we encourage you to advocate for changes to the policies for the coming year. These documents are public and are often updated annually with public comment periods (often in the first few months of the calendar year). This is an opportune time to view the documents, provide necessary feedback, and advocate for fair and just housing policies in your community before they are submitted for approval and implemented.
Part II: How to critically review your local public housing authority policy’s exclusions for people with criminal histories
Local public housing authority policies often limit or completely deny public housing assistance to people with criminal histories. Some of the reasons for exclusion are mandatory and determined by the federal Department of Housing and Urban Development (HUD) (see Part I for more information on these mandatory prohibitions). But most public housing authority policies are even more exclusionary than the federal regulations require, needlessly denying housing assistance to those likely to need it most.4
It’s not always clear how or why people with criminal histories are denied public housing assistance, nor which rules could be changed through advocacy efforts. We put together this guide to help local advocates and decision-makers identify questions to consider when looking for ways to make local public housing policies more inclusive and housing more accessible to residents with criminal histories.
Here are 5 major questions to look at in your local policy:
What actions and behaviors that exclude people from public housing?⤵
How does the PHA define “current” and “currently”?⤵
What evidence does the PHA uses to identify prohibited actions and behaviors?⤵
What kinds of actions and behaviors exclude people from public housing assistance?
There are five federally required “mandatory prohibitions”, or behaviors for which PHAs are required by HUD to deny public housing assistance. But there are far more “permissive prohibitions” — i.e., behaviors for which PHAs can choose to deny assistance regardless of federal guidelines — and we find that PHAs exercise significant discretion to make these policies more exclusive than necessary:
“Drug-related criminal activity.” HUD defines “drug-related criminal activity” as “the illegal manufacture, sale, distribution, or use of a drug, or the possession of a drug with intent to manufacture, sell, distribute or use the drug” (24 CFR §5.100). Federal regulations require denial of assistance if there is “current” engagement “in the illegal use of a drug” or “a pattern of illegal drug use [that] may threaten the health, safety, or right to peaceful enjoyment of the premises by other residents” (24 CFR §982.553). However, federal regulations do not require PHAs to look for any history of “drug-related criminal activity” nor does HUD require PHAs to deny assistance to people with such a history.
Importantly, throughout all public housing authority policies, “illegal drugs” refers to federally illegal drugs, including marijuana (the medical use of cannabis has been legalized in 37 states and D.C., and the recreational adult use of cannabis has been legalized in 21 states and D.C.). So, for example, while someone has not participated in the “illegal use of a drug” by using marijuana in the state of Colorado (where it is legalized), for the purposes of public housing assistance, a Colorado PHA can and will consider this “drug-related criminal activity” to deny assistance. At a minimum, PHA policies should be written to be in line with state law, specifying exceptions for drug-related activities in states where those drugs have been decriminalized. A more comprehensive step would be to pass H.R. 3212,5 a bill introduced in the House to resolve this discrepancy between state and federal marijuana laws in public housing assistance.
“Violent criminal activity.” HUD defines this as “any criminal activity that has as one of its elements the use, attempted use, or threatened use of physical force substantial enough to cause, or be reasonably likely to cause, serious bodily injury or property damage” (24 CFR §5.100). Federal regulations do not require PHAs to look for any history of “violent criminal activity” nor does HUD require PHAs to deny assistance to people with this history.
While HUD provides this loose definition of “violent criminal activity,” it does not actually specify which criminal offenses may or may not be included, allowing the PHA freedom, again, to decide what behaviors can be considered “violent criminal activity.” This matters because what constitutes a “violent crime” varies between jurisdictions,6 and HUD’s provided definition does not even try to clarify what offenses are encompassed by this vague definition. In some states, entering a dwelling that you do not own is a burglary, a “violent” offense.7 Similarly, several states consider “purse snatching” and theft of drugs to be “violent” offenses. The reality is that while these offenses may momentarily shock or scare someone, they are hardly indicative of a long-term pattern of “violence” towards people, and certainly not indicative of an inability to safely live in publicly assisted housing, but PHAs are still able to consider them when denying someone housing.
PHAs currently denying housing on the basis of “violent criminal activity” in an applicant’s past should reconsider. People convicted of violent offenses have among the lowest rates of recidivism, illustrating again that people who have committed a violent act are not inherently violent people and can succeed in the community. People convicted of violent offenses are less likely to be re-arrested in the years after release than those convicted of property, drug, or public order offenses.8 An act of violence represents a single moment in someone’s life, and shouldn’t be the only factor that determines their access to housing.
Other, unspecified “criminal activity.” HUD permits — but does not require — PHAs to deny public housing assistance if the PHA determines that a household member is engaged in “criminal activity that may threaten the health, safety, or right to peaceful enjoyment of the premises residents or persons residing in the immediate vicinity” (24 CFR §982.553).
HUD provides this purposefully vague language, allowing PHAs to determine what behaviors they consider to “threaten the health, safety, or right to peaceful enjoyment.” Without any definition of what a threat to “the right to peaceful enjoyment of the premises” refers to, PHAs are free to discriminate against people who participate in almost any “criminal activity,” no matter how innocuous.
What does it mean that the PHA is evaluating “current” actions and behaviors?
Some “lookback periods” (that is, the timeframe in which behaviors are evaluated in determining eligibility for public housing assistance) are mandated by HUD (see sidebar). But there are also lookback periods that the PHAs are able to determine on their own, with no minimum or maximum guidelines from HUD. When evaluating “current” behaviors, PHAs have the ability to define what “current” means. While to most people, “current” means “right now,” PHAs define “current” in a number of different ways:
For example, some PHA policies define “currently engaged in the use of illegal drugs” to include “any use of illegal drugs in the previous six months,” or any other period of time they choose.
Similarly, “any household member’s current use or pattern of use of illegal drugs, or current abuse or pattern of abuse of alcohol” can mean almost any range of time chosen by the PHA.
Some PHAs do not even try to define “currently” or “current” in their policies, shifting this significant amount of discretion to individual decision-makers within the PHA, leaving room for inequitable decisions even within the same agency.
Lengthy lookback periods are a serious problem because they cast such a wide net. Looking at drug convictions alone, almost 400,000 people are currently incarcerated for a drug offense, and law enforcement make over 1 million drug possession arrests each year (many of which lead to convictions). The number of people excluded by lengthy lookback periods for “current” or “patterns of” drug use when they apply for public housing is staggering, given these statistics. Stable, safe, and affordable housing is crucial to reducing recidivism for all types of offenses, including drug offenses. To enhance public safety, PHAs should be expanding access to housing for people with criminal histories, not limiting it.
What time limits does HUD specify for mandatory denials?
If any household member has ever been convicted of “production or manufacture of methamphetamine on the premises of federally assisted housing,” regardless of how long ago this occurred, the PHA must deny assistance. The federally mandated lookback period here is “lifetime”.
Similarly, if any household member has ever been subject to a lifetime registration requirement under a “sex offender registration program,” the PHA must deny assistance, no matter how long ago it was. The federally mandated lookback period here is “lifetime”.
HUD also requires the PHA to deny assistance if any household member has been evicted from federally-assisted housing in the last 3 years for “drug-related criminal activity,” but PHAs can extend this time period as much as they would like, and we have seen cases where this was extended from the federally required 3 years to upwards of 5 years. The federally mandated lookback period here is 3 years, but that is only a minimum.
Given what we know about substance use, harm reduction, and the importance of housing in recovery,9 HUD should consider removing drug use as a criterion for denial. Until then, local PHAs should interpret this rule as narrowly as possible, and add exceptions for people in recovery, to minimize the number of people denied housing for “current drug use.” Some PHAs rightly have policies in place to overlook possible drug use in the lookback periods if a person has completed a drug rehabilitation program. Another possibility is for PHAs to create a process of (1) informing applicants who are denied housing for this reason of the PHA’s policies regarding drug use, (2) connecting them with community resources for treatment or supportive housing, if desired, and (3) encouraging them to reapply for public housing assistance after participating in a drug rehabilitation program.
What evidence is the PHA using to identify prohibited actions and behaviors?
Federal guidelines grant PHAs significant discretionary power in determining an individual’s participation in “criminal activity” (whether “current” or within a specific lookback period). PHAs can — and do — use the following “evidence of criminal activity” to determine eligibility for public housing assistance:
Arrests. PHAs cannot use arrest history alone to deny public housing, but they can use a known arrest as a trigger to look for more “evidence of criminal activity” or to be used in conjunction with other “evidence of criminal activity,” like convictions.
Arrests can’t be used as the sole “evidence of criminal activity” because they are not reliable indicators of actual criminal behavior, as evidenced by the large number of criminal cases that are dismissed or otherwise result in non-conviction. For example, Measures for Justice found case dismissal rates (the percentage of cases filed in court that were dismissed) ranging from 14% (in Pennsylvania) to 46% (in North Carolina) in the 16 states for which they had access to the data. And even before cases are filed in court, many cases referred by law enforcement are rejected by prosecutors; Measures for Justice found that prosecutors rejected 20% of all cases in Missouri, and 22% in Florida (the two states for which they had these data).10
Convictions. PHAs can deny public housing assistance based on conviction records. Many PHA policies will state something indicating that a “conviction is more heavily weighted than an arrest,” but it’s important to note that arrests without convictions can — but shouldn’t — still be used in conjunction with a historic conviction to deny public housing.
Evictions. A history of eviction is not an indicator of “criminal activity,” but a PHA can use an eviction history “related to the use of illegal drugs or the abuse of alcohol” as a reason to deny public housing assistance. And that creates a loophole to the “arrests aren’t evidence enough” rule: Considering that the federal regulation disallowing the use of arrests alone to deny housing is relatively recent (dating back to the 2016 HUD memo), people who were evicted following an arrest prior to the rule change could still be barred from public housing today because of the past arrest and subsequent eviction (regardless of conviction).
In addition, evictions are used to determine whether a household can meet the financial obligations of public housing. But by definition, people applying to public housing are doing so because they have difficulty meeting current financial obligations for housing, so policies that use prior evictions to determine eligibility for housing support are particularly nonsensical.11
What happens when someone is denied public housing assistance?
When a PHA denies housing assistance for a reason other than “mandatory prohibitions”, the individual or family can petition for an informal review process. However, HUD offers a long list of reasons that the PHA does not have to grant an informal review, including “discretionary administrative determinations by the PHA,” which could include almost any reason for the PHA to deny assistance (24 CFR §982.554). Additionally, if an informal hearing is required to determine if the reasons for denial “are in accordance with the law” (24 CFR §982.555), individual PHAs create the parameters of the hearing, including how quickly a family needs to request a review or hearing and instances where the denial automatically stands if the individual or family is late to the hearing. For instance, we’ve found PHA policies that state denials will stand automatically if someone is more than 15 minutes late to the hearing.
The review and hearing process is often impossible for people with criminal histories and low incomes. People with low incomes are less likely to have reliable transportation or child care, and sometimes criminal legal system involvement itself can interfere with daily life in ways that can be disqualifying.12 For example, people on probation and parole are often required to submit to random, unannounced home or work visits, which could interfere with timely arrival at scheduled hearings.
A standardized, best practice outlined by HUD would offer consistency and clarity to the review and hearing process. Instead of permitting individual PHAs to determine what “discretionary administrative determinations” do not require an informal review, HUD should outline exactly what determinations are not subject to external oversight. Similarly, while certain timelines may inevitably vary between localities based on their infrastructure, it is important for HUD to restrict situations in which denials automatically stand despite the PHA agreeing to an informal review. People with criminal histories should not be forced to jump through countless extra hoops to have the PHA’s decisions reviewed. Again, housing policies should be working towards expanding housing access, not restricting it.
Who makes the decisions?
The decision-makers that determine who gets access to public housing assistance vary by locality, but are almost never specified in the policies. Often, these policies state that “the PHA decides to offer or deny assistance,” which provides no information about who, exactly, is making these critical decisions. While every PHA has a director — and we can assume most decisions go through them — there are often cases where a city or county board of commissioners can be heavily involved in the decision-making process.
Because of the variance — and often the obscurity — of who the decision-makers are, we encourage advocates to reach out to their local PHAs for clarity and to advocate for adding this information to the public housing policy.
Recommendations
The discretionary power of PHAs resides in the ability of these systems to work without much public investment and oversight. Wherever possible, we encourage advocates to participate in public comment periods when these policies are drafted annually and let the PHAs know that you are invested in expanding housing access for all.
While local advocacy efforts can’t change HUD’s mandatory reasons for denial, which of course, should be changed, local advocates can make important changes in how their local PHAs set, interpret, define, and measure criteria for denial:
Invest in expanding affordable housing and public housing. Currently, every state is facing a shortage of affordable rental housing, and inadequate funding leaves eligible families waiting years for public housing availability. A 2022 Human Rights Watch report finds that “policy decisions taken by the U.S. federal government have resulted in a housing assistance system that fails to ensure the human right to housing,” in part due to serious reductions in federal funding of public housing. The report proposes two practical recommendations: the federal government should increase funding for affordable housing, expand funding for public housing, and review other housing assistance programs to ensure they are adequately serving the lowest-income families, and state and local governments should allocate more financial support for public housing to maintain safe, affordable low-income housing regardless of federal funding.
Eliminate additional reasons for denial beyond those required by HUD. All of the “permissive” denials documented above that go beyond HUD’s minimum requirements are unnecessary barriers to housing and should be eliminated.
Remove local discretion to “look back” into criminal history further than HUD requires. There are two ways to implement this reform:
Require PHAs to provide evidence-based justification for lookback periods beyond the few minimums set by HUD. HUD could require PHAs to provide their reasoning and justification for lookback periods that go beyond the HUD requirements. We would encourage HUD to oversee these justifications and only allow those based in fact, rather than in stereotypes of people with criminal legal system contact.
A HUD mandated standard lookback period. A mandatory lookback period that is as short as possible — without permitting the PHA to extend the lookback period — would eliminate much of the discretionary, subjective power the PHAs hold over people looking for safe and affordable housing. HUD should provide reasoning and justification for whatever lookback period it imposes.
To reduce opportunities for mistakes or discrimination, require PHAs to always issue crystal clear explanations as to why they denied housing. At a minimum, PHAs should provide clear standards for denial, including specific disqualifying offenses, allowable types of evidence, clear and relevant lookback periods, and what person(s) or decision-making bodies have discretionary power.
Make the appeal process clear and fair. While HUD does require any denial to include a “notice of denial” that includes “a brief statement of the reasons for the PHA decision,” we know that the possible reasons for denial can vary a lot between localities and are often not evidence-based (24 CFR §982.555). Currently, HUD mandates that any denial “must notify the family that the family may ask for an explanation of the basis of the PHA determination, and that if the family does not agree with the determination, the family may request an informal hearing on the decision” (24 CFR §982.555). HUD provides guidelines on how reviews and hearings operate, but again, a lot of local discretion is built in: for example, the PHA determines the deadline for requesting an informal hearing. Furthermore, HUD states that the family may be represented by a lawyer or other representative “at [their] own expense” (24 CFR §982.555), but we know that people facing discretionary denials of public housing assistance for criminal legal reasons are unlikely to be able to afford an attorney. To make this process clear and fair, advocates should demand more than just a brief statement of the reasons for the denial and recommend a comprehensive explanation and information about how and when the individual or family can become eligible for public housing. PHAs should provide referrals to community-based legal aid or pro bono programs that provide free legal help for low-income people, or alternatively, direct applicants to a public service-oriented lawyer referral service (often run by state and local bar associations).
Footnotes
Not all people with a criminal record have been incarcerated in a jail or prison. ↩
A protected class refers to people who have “a common characteristic and who are legally protected from discrimination based on that characteristic.” Under federal law, people are protected from discrimination based on race, color, religion, sex, gender, sexual orientation, pregnancy, national origin, age, disability, and genetic information. People in protected classes can sue for discrimination based on their protected class status in housing and employment. In 2022, Atlanta added formerly incarcerated people to their list of protected classes, which “prohibits discrimination against individuals for criminal convictions, just as it offered legal protections against racial, age-based and other forms of discrimination.” For more information on making formerly incarcerated people a protected class, seeEnding Legal Bias Against Formerly Incarcerated People from the Haas Institute at UC Berkley. ↩
Throughout this briefing, we refer to the policies from public housing authorities as “public housing policies” that outline the criteria for access to housing assistance. These are often called Administrative Plans (APs) and/or Admissions and Continued Occupancy Plans (ACOPs), and serve to establish the local policies for the administration of public housing assistance. These plans are usually updated annually and these documents are often quite long and can range anywhere from fifty to five hundred pages in length. For an example of what to watch out for in these policies, see Part II of this briefing. ↩
As discussed in Part I and the 2018 Prison Policy Initiative report, Nowhere to Go: Homelessness among formerly incarcerated people, formerly incarcerated people are almost 10 times more likely to be homeless than the general public, and people who have been incarcerated multiple times are twice as likely to be homeless as those who are returning from their first prison term. ↩
In 2021, House of Representatives Delegate for Washington, D.C. Eleanor Holmes Norton introduced H.R.3212 to remedy this discrepancy between state and federal marijuana laws: “This bill specifies that (1) an individual may not be denied occupancy of federally assisted housing on the basis of using marijuana in compliance with state law, and (2) the Department of Housing and Urban Development may not prohibit or discourage the use of marijuana in federally assisted housing if such use is in compliance with state law.” (As of January 2023, there has been no movement with this bill since it was introduced in May 2021). ↩
The distinction between “violent” and other crime types is a dubious and subjective one; what constitutes a “violent crime” varies from state to state and from policy to policy, and acts that are considered “violent crimes” do not always involve physical harm. The Justice Policy Institute explains many of these inconsistencies, and why they matter, in its comprehensive and relevant report, Defining Violence. ↩
This statistic is based on re-arrest, which, as a measure, casts the widest net — and therefore estimates the highest rates of recidivism — but does not actually reflect anything about actual guilt or convictions. (For more information on recidivism and “violent” offenses, see our 2020 report, Reforms without Results.) ↩
With stable housing, people’s capacity to seek out regular healthcare, employment opportunities, and community support expands significantly. With a serious shortage of supportive sober or harm reduction housing options in the U.S., many formerly incarcerated people and many people who use drugs may not have access to stable, affordable housing. ↩
For a detailed discussion of how arrests are misused by non-criminal justice authorities to make decisions (such as those made by public housing authorities discussed here), see “Arrests as Regulation,” (Jain, 2015). ↩
Even in instances where PHAs offer remote informal hearings, this can still create a burden to the family for the same reasons, but in addition, low-income families may lack ready access to computers and other necessary technology. ↩
In the United States, Native people1 are vastly overrepresented in the criminal legal system. Native people are incarcerated in state and federal prisons at a rate of 763 per 100,000 people. This is double the national rate (350 per 100,000) and more than four times higher than the state and federal prison incarceration rate of white people (181 per 100,000). These disparities exist in jails as well, with Native people being detained in local jails at a rate of 316 per 100,000. Nationally, the incarceration rate in local jails is 192 per 100,000, and for white people, the jail incarceration rate is 157 per 100,000.
Even when government data on incarceration are disaggregated by race, the way that Native incarcerated people are counted is inconsistent and often underreports their numbers, because people reporting two or more races are lumped into various categories depending on who is publishing the data. In publishing this profile of Native incarceration, we are hoping to make the existing information more accessible, while also acknowledging the layers of systemic oppression impacting Native people in the criminal legal system.
We joined the National Consumer Law Center and 27 other organizations to call on the Federal Trade Commission to crack down on abusive fees incarcerated people and their families are forced to pay.
“Junk fees,” those hidden charges attached to purchases or transactions, are something we’ve all faced. For those outside the prison walls, they are an inconvenience that may force them to find another company to do business with or grumble as they pay more for a product than they expected.
For incarcerated people, though, there is no escape. They don’t have the option to use a different service or company. And their ability or inability to pay these fees often has dramatic consequences, determining whether they can stay in touch with a loved one or buy food at the commissary to supplement the paltry meals the prison provides. And considering the unconscionably low wages they earn for their labor, these fees are no minor inconvenience.
As part of a broader effort by the Biden administration, the Federal Trade Commission (FTC), an independent agency charged with protecting consumers and enforcing antitrust laws, is currently considering new measures to crack down on these fees. This week, along with the National Consumer Law Center and 27 other organizations, we explained to the agency that because of their low incomes and uniquely constrained position as consumers, providing incarcerated people relief from junk fees should be at the top of their list.
In an 18-page joint letter, this coalition highlighted some of the most abusive financial practices in prisons and jails and the ways incarcerated people are especially vulnerable to these junk fees.
Money transfers
As facilities increasingly shift the costs of incarceration to the people who are locked up, money plays a more important role than ever in the lives of people in prisons and jails. They now often have to pay for essentials like hygiene products, food, and paper from the commissary. As a result, many families have to send money to their incarcerated loved ones to help them make these purchases.
Sensing an opportunity for profit, companies have sprung up to facilitate these money transfers. Our 2021 analysis of this industry found that these companies charge steep fees — up to 37% — and have complex pricing structures that make it hard to know exactly how much it’ll cost to send money to your loved one.
These fees are tough to justify at a time when services like Venmo and Zelle make transferring money outside of the prison walls easy and free.
Communication and technological services
As prison and jail phone rates recently came under increased scrutiny, the companies behind these services have evolved to offer new services that have, thus far, largely evaded government regulation and oversight. As these companies moved into these unregulated industries, they packed their products with unfair and unclear fees that sap money from incarcerated people and their loved ones.
Electronic messaging: In recent years, electronic messaging has exploded in popularity in prisons and jails. While the service has immense potential to strengthen connections between incarcerated people and their loved ones, unreasonably high costs and hidden fees have, thus far, made this yet another way for these companies to reap immense profits off the backs of some of the poorest people in society.
Tablets: Similarly, so-called “free” tablets offer the promise of maintaining stronger connections to the outside by allowing incarcerated people to access music, videos, and other digital content, but are often little more than a tool to sap money from incarcerated people. For example, one tablet provider charges incarcerated people a $14.99 fee for a 14-day digital music subscription. For comparison, Spotify’s standard price is $9.99 a month, and its most expensive plan, the “family plan” — which provides six accounts that can stream music at the same time — is only $15.99 a month.
Release cards
Even when a person is released, they’re still not free from the exploitative grasp of these companies, thanks to the advent of “release cards.” These prepaid debit cards, which we’ve covered extensively, are often given to people as they leave prison or jail. They’re loaded with any funds they had in their trust account — wages earned while behind bars, support from family members, or money the person had in their possession when arrested.
At first, this may sound like a convenient way to give someone their money when they’re released, until you learn of the complex and costly fees that quickly drain their value. This includes fees for:
Using your card for a purchase,
Not using your card recently enough,
Declined purchases,
Using your card at the wrong ATM or bank, and
Closing your account.
Often the only way to avoid these fees is by closing your account almost immediately upon your release, a time when you’re likely to be looking for stable housing and employment — things that are often necessary conditions for someone’s release to be approved.
Other junk fees in the criminal legal system
Our comment goes on to explain that beyond these services, junk fees are baked into the mass incarceration economy, with incarcerated people and their loved ones being subjected to fees for:
Commercial bail,
Pretrial diversion programs,
Private probation,
Electronic monitoring,
And more.
This push by the FTC and the Biden Administration to address junk fees is laudable — and long overdue. However, if it is to be successful, they must recognize that you can’t truly address the worst impacts of junk fees without addressing how they harm incarcerated people and their families.
The nearly two million people behind bars (and their loved ones on the outside) are unfairly exploited by corporations and governments every day. Addressing these junk fees will not end this exploitation entirely, but it will be a significant and meaningful step toward economic justice.
