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In April 2022, HUD Secretary Marcia L. Fudge issued a memo to Principal Staff, Eliminating Barriers That May Unnecessarily Prevent Individuals with Criminal Histories from Participating in HUD Program. In her memo, Secretary Fudge wrote:
I take the health and safety of our communities seriously. This must include providing opportunities for all Americans, including those who have been involved in the criminal justice system. Too often, criminal histories are used to screen out or evict individuals who pose no actual threat to the health and safety of their neighbors. And this makes our communities less safe because providing returning citizens with housing helps them reintegrate and makes them less likely to reoffend.
She added that since justice-involved people “are disproportionately racial minorities or persons with disabilities. We must understand the potential discriminatory impact exclusions based on criminal history can have on protected classes. As part of our ongoing effort to make HUD programs more equitable, we must do all that we can to prevent unfair and potentially discriminatory exclusions from our programs.”
Thus, the Secretary continued,
I am instituting a HUD-wide effort to review our programs and put forth changes that ensure that our funding recipients are as inclusive as possible of individuals with criminal histories. lam directing all relevant HUD program offices to, within 6 months of the date of this memorandum, identify all existing HUD regulations, guidance documents and other policies and sub-regulatory documents (including model leases and other agreements) that may pose barriers to housing for persons with criminal histories or their families and propose updates and amendments consistent with this directive to make our programs as inclusive as possible.’ This review should include an assessment for each of these regulations or documents as to whether it is legally permissible and practically feasible (as informed by available data, feedback from listening sessions, and other relevant evidence) to make such policies more inclusive for persons with criminal histories and their families. Each office shall submit their analysis, findings, and proposed updates to Richard Cho (Richard.S.Cho(1hud.gov) on or before October 14, 2022, in accordance with a recommended format that the Office of the Secretary will provide to you. In the meantime, any policy or document currently under development should be implemented in a way that supports persons with criminal histories and their families, consistent with this directive as well as existing rules and requirements.
[HUD’s] efforts on this front are in keeping with previously issued HUD directives and guidance,2 which rely upon the same principles of justice and fairness that underlie this review and provide important principles for this effort. In particular, 2016 guidance from the Office of General Counsel sets out best practices for all landlords, including avoiding exclusions based on arrest records only; ensuring that any reliance on conviction history is based on evidence showing that it will actually promote safety; and ensuring that any exclusion based in part on conviction history also takes into account mitigating circumstances such as time that has passed since the conviction and evidence of rehabilitation or good tenant history in the more recent past. Put simply. it calls on landlords to treat people as individuals rather than reducing them to their criminal histories. Some public housing authorities, owners, and other HUD-assisted housing providers have taken steps consistent with this guidance towards being inclusive of individuals with criminal histories. However, too many continue to exclude people from desperately needed housing opportunities based on events that have little or no relevance to fitness to be a tenant.
Resources:
- Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions (April 4, 2016).
- Guidance for Public Housing Agencies (PHAs) and Owners of Federally-Assisted Housing on Excluding the Use of Arrest Records in Housing Decisions, PIH 2015-19 (Nov. 2, 2015)