HUD issued a notice of proposed rule making to change how criminal records history may be considered in deciding to prohibit individuals from residing in HUD-assisted housing.
According to the proposal, the rule changes would “revise existing regulations that govern admission for applicants with criminal records or a history of involvement with the criminal justice system and eviction or termination of assistance of persons on the basis of illegal drug use, drug-related criminal activity, or other criminal activity.”
The problem as HUD sees it is that too many people are being excluded from HUD-assisted housing due to incomplete information in their file, encounters with the criminal justice system that took place years earlier, failure of housing providers to consider mitigating circumstances or because of low level nonviolent offenses on the applicant’s record. Because a greater percentage of Black and Brown people have criminal records, HUD considers exclusions on the basis of those records to be potential violations of the Fair Housing Act.
The sorts of changes proposed by the new rule include defining any lookback period for examining criminal history of greater than 3 years as presumptively unreasonable, and specifying that applicants must be given a minimum of 15 days to provide mitigating information after being presented with information on their criminal records that would seem to disqualify them from residency. Exclusion based on residents or applicants “currently engaging in” criminal activity would be limited to considering activity occurring within the last 12 month. Proof of criminal activity could not be based solely on arrest records but rather would have to be based on the preponderance of the evidence.
The rule changes would apply to Public Housing Authorities (PHAs) and owners who participate in the Section 8 assisted housing program as well as those participating in certain interest rate reduction programs and programs for the elderly or disabled. In order to not discourage property owners from participating in the Housing Choice Voucher and Project Based Voucher programs, not all of the proposed changes would apply to those programs.
The proposed rule is called Reducing Barriers to HUD-Assisted Housing. It was published in the Federal Register on April 10. Interested parties have until June 10 to comment on the proposed rule before it takes effect.
