HUD Stepping Up Efforts to Eliminate Housing Barriers Due to Criminal History

On April 12, 2022, HUD Secretary Marcia L. Fudge sent a memo to HUD staff under the subject heading, “Eliminating Barriers That May Unnecessarily Prevent Individuals with Criminal Histories from Participating in HUD Programs.”

The memo stresses that individuals with criminal histories too often face difficult and unnecessary barriers to obtaining and maintaining housing. Criminal histories are often used to screen out or evict individuals who pose no actual threat to the health and safety of their neighbors. It is HUD’s position that this actually makes communities less safe because providing returning citizens with housing helps them reintegrate and makes them less likely to re-offend.

Persons who have been involved with the justice system are disproportionately racial minorities or the disabled. The use of criminal screening policies can thus have a disparate impact on certain protected groups.

Through this memorandum, HUD is instituting a department-wide effort to review its programs and make changes that ensure that funding recipients are as inclusive as possible for individuals with criminal histories. It directs all relevant HUD program offices to, within six months of the date of the 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 and propose updates and amendments to make the programs as inclusive as possible. Programs covered by the memorandum include (1) public housing, (2) housing choice vouchers, (3) RAD, and (4) Multifamily housing programs {such as project-based Section 8}. (5) Community Development Block Grants, (6) HOME Program, and (7) Homeless Assistance Grants. Each office must submit its analysis, findings, and proposed updates to HUD Headquarters no later than October 14, 2022. In the meantime, any policy or document currently under development should be implemented in a way that supports persons with criminal histories.

This HUD effort is in keeping with the 2016 guidance from the HUD Office of General Counsel which set out best practices relative to criminal screening for all landlords. These best practices included avoiding exclusions based on arrest records only; ensuring that any reliance on conviction history is based on evidence showing that it actually will promote safety, and ensuring that any exclusion based in part on conviction history also takes into account mitigating circumstances such as the time that has passed since the conviction and evidence of rehabilitation or good tenant history in the more recent past.

Owners of HUD-assisted housing should be proactive in developing criminal screening policies to ensure that the 2016 HUD General Counsel guidance is incorporated into any such policies. This memorandum makes it clear that HUD will be taking assertive steps in this direction by early 2023. Getting ahead of the curve on this is a sound idea for managers of HUD housing. In addition, operators of non-HUD housing, including low-income housing tax credit properties, should be aware that the 2016 guidance applies to all housing – not just HUD-assisted properties.