1.4.2 Criminal Record

A criminal record or activity may be grounds for denial of admission to public housing. Federal regulations provide that a history of criminal activity involving crimes of physical violence and other criminal acts may be used to reject an applicant. If a PHA receives unfavorable information with respect to an applicant, it must consider the time, nature, and extent of the applicant’s conduct as well as factors that might indicate a reasonable probability of favorable future conduct such as evidence of rehabilitation, the family’s willingness to participate in social services or other appropriate counseling programs, and the family’s willingness to increase family income.1  When contesting whether a criminal conviction should be grounds for denying admission, be sure to bring to the informal hearing any evidence of mitigating factors such as certificates of completion of a drug rehabilitation or recovery program or letters from probation or parole officers, employers, ministers, etc. Blanket criminal background screening policies may also violate the Fair Housing Act.2

HUD policies in the last decade favor giving ex-offenders greater opportunity to access public housing. In June 2011, HUD Secretary Shaun Donovan issued a letter to all PHAs encouraging them to allow ex-offenders to rejoin their families when possible.3  A November 2015 program letter affirmed that HUD does not require public housing providers to adopt “one strike” policies and that an arrest is not sufficient evidence of criminal activity to support either denying admission or terminating assistance.4  In addition, HUD guidance issued in 2016 and 2022 spells out how admissions policies that exclude people with criminal records may violate the Fair Housing Act.5  Nevertheless, PHAs must deny admission to applicants currently illegally using drugs,6  as well as those who have been convicted of the production of methamphetamines or who are on the lifetime sex offender list.7

Although arrests or arrest records are insufficient to deny admission, they can be used as evidence that the arrestee engaged in criminal activity.8  When determining whether a person who was arrested for disqualifying criminal activity actually engaged in that activity, PHAs may consider, among other things: police reports that detail the circumstances of the arrest; statements made by witnesses or by the applicant or tenant that are not part of the police report; whether formal criminal charges were filed; whether any charges were ultimately withdrawn, abandoned, dismissed, or resulted in an acquittal; and any other relevant evidence.9

The Housing Authority of New Orleans (HANO) has a progressive criminal background screening policy that limits automatic denial to applicants who have been convicted of production of methamphetamines or are on the lifetime sex offender list. Other applicants are sent through a further review process based on the nature of the criminal conviction and the time since it occurred. As part of this process, applicants can provide evidence of the facts and circumstances surrounding the conviction, evidence of good tenant and employment history, and evidence of rehabilitation and community support. No applications will be denied based on arrest alone. This policy also applies to some but not all privately-controlled public housing properties.

Any private third-party public housing provider that also receives a Low-Income Housing Tax Credit (LIHTC) subsidy must comply with the Louisiana Housing Corporation criminal background screening policy for LIHTC recipients.10

Disclaimer: The articles in the Gillis Long Desk Manual do not contain any legal advice.