Helping Applicants with a Criminal History Obtain Affordable Housing in Massachusetts Mac McCreight, Greater Boston Legal Services MCLE CORI Basics Training March 2018 1 Grounds for Denial See separate chart. (See also chart on termination of assistance or eviction if you are working with persons already in public or subsidized housing.) Note that the grounds are different for different programs and for state and federal programs. Find out what you re dealing with. 2
Applications and Inquiries About Criminal History I Need to be truthful about what s said. False statement can be basis for later denial, termination or eviction. If not sure, SAY SO. Applicant may not know if case is felony or misdemeanor, or if case resulted in a conviction, or what the impact is of a continued without a finding action. Most owners will do a CORI check. 3 Applications and Inquiries about Criminal History II May run Dru Sjodin website to see if registered sex offender anywhere (HUD says owners should for most federal housing). May ask applicant to obtain criminal history from out of state (or may use FBI Triple I system with fingerprint checks through local police). PHA/owner should bear costs. Don t provide your own CORI. However 4
Applications and Inquiry about Criminal History III It may be that DCJIS information does not provide enough information about disposition of case (date closed, what the underlying charge was, whether still pending) and applicant may have to get docket information. If credit screening service (rather than DCJIS), info may be from police arrest reports (public record) and burden to discount a negative. 5 Applications and Inquiries About Criminal History IV NOT like employment, where you can just say no record. But it is fine to say I m not sure, check my CORI. PHAs and owners will get record of convictions, pending cases, and defaults, but should NOT get dismissed or not guilty cases. PHAs may want to find out what s happening with pending cases or defaults. 6
Defaults or Pending Cases Wise in most cases to wrap up cases. However, there may be risks and best to make Attorney of the Day inquiries and use any programs that exist. Can ask to delay processing until CORI is corrected (including closing out default/pend). Or could say, this isn t enough to deny me for (may be risky). Regs used to say 90 days no longer. 7 Being proactive Find out what the PHA or owner has as a basis to deny you. (Don t volunteer information which isn t known which could result in negative treatment.) See what the docket sheets say and correct them, close out defaults & pending cases. For example, case may look like drug trafficking on CORI report, but docket shows pled down to simple possession for first time narcotics offense. 8
Being strategic about where you apply State vs. federal: for example, if life-time registered sex offender. Some developments may work with ex offenders or those with substance abuse histories and be willing to argue for admission; PHA may balk if voucher was being issued for use anywhere in private market. SAMHSA example. 9 Considerations if on Probation/Parole, During CWOF Period, or Awaiting Trial In some cases, may be able to shorten CWOF or probation period, or get the charge revised and revoked (assistance from defender). First time narcotics possession statute provides that if CWOF or probation period ends, can t be used for the purpose of any civil disqualification. PHA/owner may say, however, that good conduct was just because on probation, and need to wait longer to see if applicant will remain compliant. 10
Plea Bargains Pleas can be used against applicant (one of the collateral consequences defenders need to be aware of). Can explain why applicant entered into the plea and deny the wrongful acts, but decision makers are likely to be skeptical absent corroborating evidence. Filed cases remain on your CORI. 11 Mitigating Circumstances I Pull together the best information that exists and corroboration. Examples: 1. Relationship between criminal activity and past drug addiction (shoplifted to help support habit, now clean). 2. Participation in or completion of treatment. 3. Information about new medications taken to address a prior problem with violent outbursts. 12
Mitigating Circumstances II Show rehabilitation and favorable future prospects from counselors, social service agencies, etc. to meet concerns about past activity that would otherwise affect tenancy. More will need to be shown if the activity is relatively serious, shows a repeated pattern, or recent, or if only recently discharged from custody. 13 Reasonable Accommodation (RA) and CORI-Related Denial of Admission Separate from mitigating circumstances, but related where applicant is person with disabilities. Duty of owner/pha to consider RA request, but it would not allow waiver of essential eligibility requirements. No duty to accommodate current illegal substance use, or ongoing alcohol abuse, but past history could be discounted. 14
Disparate Impact and Housing HUD issued a number of notices about the likely disparate impact of policies that would simply bar for any past criminal record, without individualized consideration of circumstances. BUT new Admin. In Burbank Apts. Tenants Assn v. Kargman, SJC clarified that state disparate impact claims can be pursued, but robust causality. 15 Revised CORI Regs? Not enough time to get into Powerpoint update can include in distribution, discuss. 16