OVERCOMING BARRIERS TO HOUSING FOR PEOPLE WITH CRIMINAL RECORDS

1. OVERCOMING BARRIERS TO HOUSING FOR PEOPLE WITH CRIMINAL RECORDS MPLP Roadshow September 21, 2006

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

3. 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.

4. 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.

5. 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.

6. Major Criminal Record Barriers • Employment • Housing • Public Benefits • Student Loans/Government training programs • Immigration • Family Law • Fees and Fines

7. Housing Stable housing critical to successful re-entry and to family reunification

8. 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.

9. 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

10. 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.

11. 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.

12. 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

13. 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.

14. 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.

15. 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

16. 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.

17. 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.

18. 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.

19. 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.

20. 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

21. 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

22. 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.

23. 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.

24. Standard of Proof • Preponderance of the evidence that engaged in criminal activity. • Neither arrest nor conviction are required.

25. 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.

26. 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

27. 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.

28. 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

29. 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

30. 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.

31. 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

32. 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.

33. 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

34. 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

35. 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.

36. 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.

37. ELIMINATING RECORDS: Expungement and Sealing

38. 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

39. 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.

40. 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)

41. 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

42. Practice Tips – Expungementand Sealing • Check if client eligible for expungement. • Check if record contains convictions that could or should have been sealed.

43. Employment

44. 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

45. 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.

46. Resources to Find Applicable Rules • Training Materials: Updates on web • Website of agency that regulates industry • Unions • Defendants’ own employment materials • Other Lawyers

47. 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

48. 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

49. Presenter Miriam Aukerman Reentry Law Project Legal Aid of Western Michigan maukerman@legalaidwestmich.net (616) 774-0672 x 114