Volume 18, Number 2
Criminal Records of the Poor
The Impact on Eligibility for Affordable Housing
By John J. Ammann
With full implementation of welfare reform, there are thousands of people coming off public assistance and coming out of job training programs who cannot move into available housing or jobs because of a history of minor criminal activity. These are a few of their their stories, along with suggestions for addressing their needs.Story 1: Taco Bell Blues. Mary is a single mother with three children. During her stay at a homeless shelter, Mary worked two part-time jobs, one at a Taco Bell and the other at a warehouse. One day, after working a shift at Taco Bell, she took her two fringe-benefit tacos with her and boarded the train to head for her job at the warehouse. She found a seat and unwrapped a taco. A security guard advised her of the rule against eating on the train, and issued her a summons to appear in court. Mary didn’t have a way to the courthouse on her court date, and failed to appear. A warrant was issued for her arrest. When Mary was ready to move into transitional housing, a police check showed the outstanding warrant. The shelter told her to clear up her "rap sheet" before she could move into her apartment.Many poor persons have criminal histories. A final barrier for families who are ready for transitional or permanent housing is the existence of an outstanding warrant or unresolved minor criminal charge. Typically, a client has violated a municipal ordinance and been given a summons to appear in court. The most common charge is riding public transit without paying. For homeless men, common charges include public urination, trespassing, and disturbing the peace. The client misses the court date because of a lack of transportation or childcare, or because the client couldn’t take time off from job training or newly found employment. When the client fails to appear in court, an arrest warrant is issued. Police do not actively seek these people to arrest them, but if they are stopped for any reason and the officer checks their name in a police department database, the warrant is revealed and the person is taken to jail. Typically, bond is $100 or $200 on these minor charges, an insurmountable amount for a poor person.
A study conducted by the U.S. Department of Housing and Urban Development found that 54 percent of the homeless have some history of incarceration, but that figure is misleading. While 49 percent of the homeless have spent five or more days in a local jail in their lifetime, only 18 percent have spent time in prison. These figures show that most of the homeless who are labeled as having a prior criminal history have only minor offenses in their background. Story 2: Begging a Cop for a Donut. A homeless man sought help for an outstanding warrant for "panhandling." One morning he entered a coffee shop and purchased coffee, but could not afford to buy anything to eat. He spotted a police officer and asked for 50 cents for a donut. The officer wrote him a summons for panhandling. The homeless man couldn’t make it to court on the date designated, and a warrant was issued.Federal policies on criminal activity. Federal policymakers require careful scrutiny of the backgrounds of applicants for public and subsidized housing. Part of President Clinton’s "One Strike and You’re Out" policy attempts to keep criminals from ever entering public and subsidized housing. Federal regulations direct housing authorities to look at a family’s "history of criminal activity involving crimes of physical violence to persons or property and other criminal acts which would adversely affect the health, safety or welfare of other tenants." The regulations on assistance in the Section 8 program state that a housing authority may deny assistance to an applicant if any member of the family commits drug-related or violent criminal activity, even if there is no arrest or conviction. The housing authority need only show by a preponderance of evidence that a family member has engaged in such activity. Typically, a police report is relied on to deny a family’s application. These regulations, if implemented fairly, would not serve to prevent clients with the minor types of violations discussed here from obtaining housing.
While federal regulations determine who must be kept out of government-subsidized housing, landlords who participate in the Section 8 program are free to use their own screening devices, which can be even more stringent than the federal rules. There would appear to be nothing to prevent a private landlord from saying that he or she will not accept Section 8 voucher holders who have convictions for even minor offenses.
It is hoped that social service agencies and nonprofit housing providers will carefully examine an applicant’s criminal record to determine the seriousness of the charges before denying an application simply because of the existence of a record.Story 3: How to Turn $12 into $900. A homeless man was caught riding the train without having paid the fare. At his first court date, the judge indicated that the charge would be dismissed if the man could pay $12 in court costs within 30 days. The man didn’t have $12, didn’t show up in court, and moved out of state. When he returned to the St. Louis area, he was stopped on a street corner by the police and questioned. The police ran a check, and he was arrested on the outstanding warrant, which was now four years old. In that four years, the city had scheduled repeated court dates for the man. Each time that he failed to appear, a new warrant had been issued and a charge added for the warrant fee. By the time he was arrested, his fines totaled more than $900.Opportunities for attorneys. Lawyers around the country are responding to the challenge of helping low-income people with minor criminal charges become eligible for affordable housing. In many communities, an annual event known as Standdown for Homeless Veterans provides free legal assistance to help veterans clear up minor criminal matters on the spot, as judges and their clerks set up a portable, on-site courtroom, complete with computers to pull up records, and dispose of cases.
More sustained efforts are being made with the help of funding by state and foundation grants to pay legal aid offices to help clear up the records of people enrolled in welfare-to-work programs. This funding is important for legal aid programs because Legal Services Corporation (LSC) regulations generally prohibit the use of LSC funds for assistance in criminal cases. While in many cases the charges are quasi-criminal in nature in that they are violations of ordinances and not true crimes in the traditional sense, many legal aid programs avoid any possible violation of the rules by using non-LSC funds.
Attorneys who represent housing developers and owners of rental property can educate their clients about the effect of zero-tolerance admission policies. Affordable housing developers often seek the advice of counsel in developing lease forms and admissions policies. Lawyers can inform their clients that outstanding warrants for minor offenses should not be used to deny a person housing, and explain that hardworking people can miss court dates for many reasons. The charges themselves are often minor and usually arise out of the person’s homelessness or financial situation.
Attorneys might offer to speak to police departments about a more compassionate approach to law enforcement as it relates to the poor. Officers need to realize that many of these cases eventually get dismissed because, when viewed in the context of the entire criminal justice system, many of the "crimes" are victimless, and society would be better served by simply ignoring them.
John J. Ammann is the director of the law clinic as Saint Louis University School og Law and an assisstant professor.
- This article is an abridged and edited version of one that originally appeared on page 222 of the Journal of Affordable Housing and Community Development Law, Spring 2000 (9:3).