Sneak Preview: HUD Guidance Details Public Housing Agency Use of Arrest Records

December 31, 2015 | By Jerry Ashworth | Post a Comment

xgran_bookshot(The following was excerpted from a recent article in the Federal Grants Management Handbook). The Department of Housing and Urban Development (HUD) issued new guidance to public housing agencies (PHAs) and owners of Section 8 HUD-assisted multifamily properties concerning the use of arrest records when making housing decisions, stressing that an arrest record alone should not be used to deny or terminate residency in public housing, particularly for formerly incarcerated individuals who are re-entering society. The guidance also included best practices when screening potential residents and terminating residency due to active criminal activity.

In 2011, a HUD letter to PHAs emphasized the importance of providing “second chances” for formerly incarcerated individuals, and urged PHAs to develop admission policies that offer a balance between allowing ex-offenders access to HUD-subsidized housing and ensuring the safety of its residents. HUD sent a similar letter in 2012 to multifamily property owners. In November, HUD issued guidance regarding the proper use of arrest records when PHAs and multifamily property owners make housing decisions.

In general, PHAs and multifamily property owners have discretion to decide whether or not to deny admission to a potential resident that has a criminal history, or evict a resident that has engaged in certain drug-related or other criminal activity. However, HUD regulations at 24 C.F.R. Part 5, Subpart I, require that PHAs must prohibit admission of sex offenders, as well as alcohol abusers that would endanger the health and safety of other residents.

When deciding whether to admit or retain an individual or household that has engaged in criminal activity, PHAs and multifamily property owners may consider the following circumstances: (1) the seriousness of the offending action; (2) the effect that eviction of the entire household would have on family members not involved in the criminal activity; and (3) the extent to which the leaseholder has taken all reasonable steps to prevent or mitigate the criminal activity. In addition, when considering whether to deny admission or terminate assistance or tenancy for illegal drug use by a household member who is no longer engaged in such activity, a PHA or owner may consider whether the household member is participating in or has successfully completed a drug rehabilitation program, or has otherwise been rehabilitated successfully.

The guidance notes that PHAs and multifamily property owners should establish policies so that, when making decisions not to reject residency or to evict a tenant based on criminal activity, such decision must be supported by sufficient evidence of the criminal activity. However, the guidance points out that an arrest is not sufficient evidence of criminal activity that can support the decision not to admit an individual for residency or evict a resident. “An arrest shows nothing more than someone probably suspected the person apprehended of an offense,” the guidance states. “In many cases, arrests do not result in criminal charges, and even when they do, such charges can be and often are dismissed or the person is not convicted of the crime alleged. For these reasons, a PHA or multifamily property owners may not base a determination that an applicant or household engaged in criminal activity warranting denial of admission, termination of assistance, or eviction on a record of arrest.”

(The full version of this story has now been made available to all for a limited time on Thompson’s Grants Compliance Expert site.)

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