Transcript USING COLLATERAL CIVIL CONSEQUENCES TO ACHIEVE …

OVERCOMING BARRIERS TO HOUSING
FOR PEOPLE WITH
CRIMINAL RECORDS
MPLP Roadshow
September 21, 2006
Why Should Legal Aid Lawyers Care
About People with Criminal Records?
Many Low–Income People Have
Criminal Records
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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.
People of Color and Mentally Ill
Disproportionately Affected
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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.
Criminal Records are One of Biggest
Barriers Our Clients Face
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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.
Major Criminal Record Barriers
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Employment
Housing
Public Benefits
Student Loans/Government
training programs
Immigration
Family Law
Fees and Fines
Housing
Stable housing critical to successful re-entry and to
family reunification
Consequences of a Record: Loss of
housing options
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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.
Where Do Landlords and PHAs Get
Records?
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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
Private Landlords
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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.
Subsidized Housing
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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.
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
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Differences Between Different Types of
Subsidized Housing
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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.
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.
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Admission to Subsidized Housing:
Presumptive Denial
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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
Admission to Subsidized Housing:
Discretionary Denial
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May Deny Admission if Any Household Member
Engaged in:
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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.
Admission to Subsidized Housing:
Getting Clients In Despite a Record
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24 CFR 960.203, 24 CFR 982.553, 24 CFR 5.852: In
discretionary cases, PHA can consider factors like:
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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.
Conditioning admission on exclusion
of Household Member
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PHA may require applicant to excludes
household member who was responsible for
the criminal activity that would otherwise lead
to denial.
Eviction from Public Housing:
Mandatory Termination
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PHA must evict residents who:
– Are subject to lifetime sex offender
registration.
– Were convicted of methamphetamine
production on premises of federally
assisted housing.
Eviction from Subsidized Housing:
Discretionary Termination
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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
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Drug crime on or off premises
Crimes entailing threat to other residents or persons
residing in immediate vicinity
Mitigation Provisions
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For Discretionary Terminations, Housing
Authority may consider factors such as:
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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
If Substance Abuse, Pursue Rehab
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For some drug or alcohol related activities,
Housing Authority may allow defendant, if
defendant completes rehabilitation program
approved by the HA.
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.
Standard of Proof
 Preponderance
of the evidence
that engaged in criminal activity.
 Neither arrest nor conviction are
required.
Client’s Right to Record
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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.
Sex Offender Registry Exclusion Zone
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Applies to Anyone on Sex Offender Registry
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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
Exceptions to Exclusion Zone:
Grandfathering
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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.
Exceptions to Exclusion Zone: Young
Offenders
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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
Standard Parole Conditions
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Restrictions on living with children
Restrictions on living near children
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1000 feet from school or daycare
Restrictions on living with /near victims
Practice Tips
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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.
CLEANING UP RECORDS: RECORD
INACCURACY
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Many records are inaccurate.
Criminal record identity theft convictions:
estimated 400,000 victims.
ICHAT mismatches: ICHAT searches on
name, gender and year of birth
Correcting Inaccurate Records: Step 1
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First determine what record was used.
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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.
Correcting Inaccurate Records: Step 2
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Determine what type of error there is:
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Inaccurate information about client’s convictions
or missing disposition
Arrest that did not lead to conviction
Conviction that doesn’t belong to client
Correcting Inaccurate Records:
Incorrect Information about Client’s
Convictions
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Get copies of court documents showing
actual convictions
Get copies of court documents showing
disposition
Send documents to agency that produced
the criminal record
Correcting Inaccurate Records:
Conviction Doesn’t Belong to Client
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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.
Correcting Inaccurate Records:
Reporting of Arrests Not Leading to
Conviction
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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.
ELIMINATING RECORDS:
Expungement and Sealing
Expungement – who is eligible?
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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
Some offenses can’t be expunged
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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.
Disposition without entry of judgment
of conviction (“sealing record”)
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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)
Examples of Sealing Mechanisms
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7411: first-time drug possession or use
Holmes Youthful Trainee Act: youths between 1721
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
 Practice Tips – Expungement
and Sealing
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Check if client eligible for expungement.
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Check if record contains convictions that
could or should have been sealed.
Employment
Why consider barriers to employment?
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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
Hire
33%
No Hire
67%
Statutory Barriers to Employment
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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.
Resources to Find Applicable Rules
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Training Materials: Updates on web
Website of agency that regulates industry
Unions
Defendants’ own employment materials
Other Lawyers
Jobs Likely to be Affected
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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
Tools for Your Practice
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Training Resources
Providing Civil Legal
Assistance to People
with Criminal Records:
A Manual for Attorneys
and Advocates
On Line Resources
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www.mplp.org
www.reentry.net
www.hirenetwork.org
Presenter
Miriam Aukerman
Reentry Law Project
Legal Aid of Western Michigan
[email protected]
(616) 774-0672 x 114