January 21–28, 1999
city beat
High Crimes and Slamming Doors
PHA plans to conduct criminal background checks on Section 8 applicants. Housing advocates say the proposal violates civil rights and could be implemented arbitrarily.
by Gwen Shaffer
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Katie and her family idled on the Section 8 housing waiting list "forever." They were homeless, off and on, for five years. Katie, her daughter and her two grandchildren mostly lived on the street, occasionally finding shelter by squatting in abandoned homes.
In 1995, Katie's Section 8 number finally came up. Her family gratefully moved into an apartment in the Mayfair section of Northeast Philadelphia. They get along fine with the neighbors and have never caused any trouble for their landlord.
After living an existence in which it was routine to beg strangers for food, Katie's grandchildren—now 10 and 11 years old—at last have some stability in their lives. Her granddaughter is on the school cheerleading squad. Her grandson routinely wins trophies for his talent on the basketball court. "They are finally able to live like human beings," Katie, 53, says.
But if she were applying for the Section 8 program today, it is quite possible that Katie and her family would never be accepted.
That's because Katie has been arrested.
Her crime? She was one of more than 50 demonstrators who "reclaimed" an abandoned home in Northeast Philadelphia. Katie was charged with trespassing and placed on probation—no big deal, but enough to smack her with a criminal record.
Philadelphia Housing Authority (PHA) Director Carl Greene has proposed a controversial plan to conduct criminal background checks on Section 8 applicants. PHA insists that a criminal record alone will not be grounds for rejecting anyone from the program. But local politicians, civil rights attorneys and housing advocates fear otherwise.
PHA is currently revising the proposal, based on concerns raised during a Dec. 15 public hearing on the plan. If the authority's board of directors passes the plan during its Jan. 21 meeting—as expected—it will go into effect immediately. The initial check will look back five years into applicants' criminal pasts. However, PHA will examine a criminal record all the way back to its origin if the person has been convicted of murder, rape, armed robbery, child molestation or illegal drug activity.
Under the Section 8 program, the federal office of Housing and Urban Development (HUD) subsidizes rent for needy families. Local housing authorities, such as PHA, administer the program.
Critics of the criminal background checks contend they are a knee-jerk reaction to a beleaguered program.
Section 8 has been blamed for enabling slumlords to run their properties into the ground. Their tenants are frequently accused of making excessive noise and neglecting to take care of their homes. But neither of these problems, critics say, will be solved by screening out convicted criminals.
The hard fact remains that there are not enough Section 8 housing vouchers to go around. Philadelphia has 11,000 full units, while another 12,000 families are on the waiting list. The overwhelming numbers force HUD and local housing authorities to make decisions about who is deserving and who isn't.
Although PHA's proposal falls within HUD guidelines that explicitly permit local housing authorities to conduct criminal background checks, some anti-discrimination advocates claim such a policy violates civil rights laws.
Those advocates say PHA may be opening itself up to legal challenges under the 14th Amendment. That law makes it illegal for anyone to be denied equal access because of their race or religion.
"Historically, many more African-American men than Caucasian men have criminal backgrounds," notes Stefan Presser, an attorney with the Pennsylvania chapter of the American Civil Liberties Union.
In addition, the proposed PHA policy "may run afoul" of Title Six of the 1964 Civil Rights Statute, Presser says, because the law does not require a plaintiff to prove he was harmed as a result of a "bad motive" on the part of government. "Under a Title Six challenge, one simply has to show that African-Americans were denied service," he says.
The plan would unfairly punish former criminals who have already paid their debt to society, Presser adds. By being denied subsidized housing, "those with criminal backgrounds are condemned to achieve subsistence only through further criminal activity," he says.
Fair-housing advocates say, however, that the biggest problem with the PHA proposal is not that it breaks federal law. Rather, it is the potential for criminal background checks to be arbitrarily implemented.
The plan raises perplexing questions, notes David Bryson, deputy director of the National Housing Law Project based in Oakland, CA.
At what point is a person's past actually his past? If an applicant committed a crime five or 10 years ago, at what point will PHA assume it is irrelevant? If a person commits a crime and serves out a prison or probation sentence, should he be, in effect, punished again by having public housing denied? Or, if the person who committed a crime is no longer part of the household, how will the housing authority deal with it?
"In the wrong hands, you end up with people being arbitrarily excluded," Bryson warns. "Public housing in this country is what welfare has evolved into—it's not an entitlement."
Criminal background checks are not intended to serve as "blanket indictments," insists Ray Jones, community relations manager for PHA. "Folks think we have a Gestapo mentality about this, and I can't stress enough that we don't."
Reporting a criminal past to PHA will not automatically disqualify any applicant from obtaining a spot on the waiting list, Jones says. Instead, it will help PHA understand an applicant's "history and background." Applicants denied Section 8 vouchers because of their criminal pasts will have the right to appeal the decision.
The majority of complaints about Section 8 applicants would not be as severe if PHA had more information "on the front end," he says. "The tenants who cause the most trouble have been involved in recent criminal activity."
Simply by asking Section 8 applicants whether they have a criminal record will help whittle down the wait list, Jones adds. "If folks check the 'no' box and we find that they have committed a crime, that is grounds for dismissal."
When it comes to conventional public housing developments, commonly known as projects (which have used criminal background checks for years), U.S. courts have looked at whether there is a reasonable link between how someone has behaved and their future ability to be a good tenant. These same principles could now be applied to Section 8 applicants.
"If the criminal activity was 20 years ago, there is no rational link," Bryson speculates. "But if someone was convicted of dealing drugs last year and is now denied Section 8, the courts are going to say that is pretty rational."
A PHA official points out that the agency plans to use the same criteria for conducting Section 8 criminal background screening that it uses for housing development applicants. As a result, "We feel the Section 8 checks will survive any legal challenge," he says.
Because housing authorities around the country have only recently begun screening Section 8 applicants for criminal pasts—Atlanta, Baltimore, Chicago and Oakland are already doing it—no data exists on whether these checks are necessary or beneficial. But Bryson says he is unaware of disproportionate drug use and crime in Section 8 units.
"If the government were to conduct a study of Section 8, the incidents of crime would actually probably be less," he says. "People who make it into Section 8 obviously already have something going for them. And it takes so long to make it to the front of the waiting list, nobody wants to risk losing their spot."
HUD encourages criminal background checks on tenants because "it is the agency's responsibility to make sure Section 8 is safe," says HUD spokesperson Stanley Vosper. "Bad guys who corrupt Section 8 with drug dealing and criminal activity shouldn't get a foot in the door."
It is too soon for HUD to collect data demonstrating whether criminal background checks lead to safer and cleaner environments. And even if such a study was conducted, it would take decades to draw any conclusions—criminal background checks are applied only to new tenants, while just 10 percent of public housing residents move out in a given year.
Members of Philadelphia's City Council are split over whether criminal background checks are a good idea.
"People living in housing subsidized by the federal government should be held to a certain standard of behavior," says Councilman Jim Kenney, who supports the proposal.
The plan would punish a person twice for committing a crime, says Councilwoman Jannie Blackwell. "We should give them the skills they need and let them move in. Everybody deserves a chance."
Councilman David Cohen agrees. "If someone committed a crime and paid his debt to society, no one should be digging up his past and using it against him."
