"Working to
Build A Better Community"
"The
probability that we may fail in the struggle ought not deter us from the
support of a cause we believe to be just."
~ Abraham Lincoln
EX-OFFENDER HOUSING DISCRIMINATION
THE BIG PICTURE: REALITY IN THE U.S.
THE REALITY IN MASSACHUSETTS
THE LAW IN MASSACHUSETTS
Types of Housing and CORI
Admissions and Appeals
Application
of the Law
COMMUNITY RESOURCES IN
MASSACHUSETTS
PROGRAMS IN OTHER
STATES
TYPES OF Affordable HOUSING ANd CORI LAW
▼TYPES
OF AFFORDABLE PUBLIC HOUSING /
▼MASSACHUSETTS
CORI LAW / GLOSSARY
Sections below illustrate 1) the types of affordable public housing that exist in Massachusetts and 2) Massachusetts Criminal Record Information (CORI) law, which gives public housing authorities (PHA) and others access to criminal records in making admission decisions.
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| Public Housing, Milton |
TYPES
OF AFFORDABLE PUBLIC HOUSING
This section outlines the various kinds of public and assisted
housing in Massachusetts, including both state and federally funded housing.
In Massachusetts over 250,000 people rely on some form of government assistance
for housing. This government assistance can be divided into five
main categories:
- Public Housing Owned by a local housing authority
(LHA).
- Privately Owned Multifamily Subsidized Housing
Operated by Private Landlords. This may include units with a project-based
deep subsidy, in which rent is set at roughly 30% of income, as well
as shallow subsidy units, which have flat rents which are below the
market rate, but which do not decrease if the tenant’s income decreases.
Some of this housing is financed and/or regulated by the Massachusetts
Housing Finance Agency (Mass Housing, or MHFA), and some is only financed
or managed by the U.S. Department of Housing and Urban Development (HUD).
- Public Housing Agency Administered Rental Assistance
Programs for Housing Granted by the State or Federal Government. This
includes tenant-based vouchers, where the tenant can move with the subsidy,
and project-based assistance, where the subsidy is tied to the property
and the tenant either cannot move with the subsidy at all or may have
to wait to move. The key here, though, is that a public housing agency
(PHA) administers the subsidy, and not a private non-profit or for-profit
owner. The biggest program here is the Section 8 Housing Choice Voucher
Program. While most of the rental assistance programs are federally
funded, a few are state funded Massachusetts Rental Voucher Program
(MRVP), which can be tenant-based or project-based, and the Alternative
Housing Voucher Program (AHVP).
- McKinney Homeless Programs; HOME Program. These
are specialized programs, and usually have far fewer units. The McKinney
programs are designed for homeless individuals and families. This includes
two Supportive Housing programs for Transitional Housing and Permanent
Housing for the Disabled, the Shelter Plus Care program, and the Housing
Opportunities for Persons With AIDS (HOPWA) program. The HOME program
provides federal funding to develop/operate a range of affordable housing
programs, including homeownership units and a tenant-based rental assistance
program.
- Tax Credit Units; SHARP/TELLER Units. There
are both state and federal low-income housing tax credits to help finance
the development or rehabilitation of this housing. Sometimes this financing
is linked to an existing housing program, such as public housing or
privately owned subsidized multifamily housing. If a unit in a tax credit
development does not otherwise have another type of subsidy (either
tied to the development, or brought there by the tenant such as a Section
8 voucher), the rent is reduced below market, and a certain percentage
of the units must be set aside to persons with very-low incomes. However,
the rents are often only affordable to those in the upper range of the
very-low income group. SHARP and TELLER were older programs that operate
in a similar fashion.
Many cities and towns in Massachusetts have a Local Housing Authority (LHA) responsible for administering public housing and rental assistance programs in that town. If the Housing Authority’s programs include federal housing programs, and most do, it is also called a public housing agency (PHA). The State’s Department of Housing and Community Development (DHCD) oversees state-assisted public housing and rental assistance programs; it is also a PHA for a state-wide Section 8 program operated under contract with HUD, which it sub-contracts with a group of eight regional non-profit agencies (Metropolitan Boston Housing Partnership, etc.).
Public Housing
One of the most important kinds of housing assistance that exists
is public housing, whether funded by DHCD or by HUD. Public housing is
made up of buildings owned and operated by the government, with the PHA
acting as the landlord in most cases. This means the PHA will conduct
background and credit checks like a typical landlord. For federal public
housing, at least 40% of new admissions are designated for persons with
incomes at or below 30% of area median income; the balance of the units
can be assigned to persons with incomes up to 80% of area median income.
For state public housing, there is no targeting of a minimum number of
units to certain income groups; however, applicants must have incomes
at or below 80% of area median income.
For each LHA/PHA, you must know what kind of housing they administer, and what bedroom sizes exist, and turnover/waiting list status to know whether it is worth applying at that agency. Some LHAs, for example, may only have elderly/disabled housing, which may not help a person who has a number of children or who is not disabled, or they may not have apartments which are large enough to accommodate the family. Some housing authorities may have very few units with waiting lists that are closed or which are very long.
If not all members of the applicant family are citizens or have eligible immigration status (generally, legal permanent residency or recognized refugee or asylum status), it may not be wise to apply for federal public housing programs. The family may be completely ineligible (if there are no members that are citizens or have eligible status), or its subsidy reduced and its rent increased to such a degree that it would not be affordable. State public housing, however, does not have such restrictions.
In federal public housing, each housing authority can choose whether or not to give preference to applicants based on special characteristics, such as local residency, homelessness, involuntary displacement, or the like. Some PHAs do not have much in the way of preferences, and rely largely on the date of application. For state public housing, preference is given to who have been displaced by a natural disaster, or whose need for housing constitutes an emergency situation.
Since a LHA/PHA is going to be the landlord for public housing, they can do extensive screening for tenant suitability, including consideration of criminal history, housing history, treatment of neighbors and property, and likelihood that rent will be paid and that other lease provisions will be followed. (Specific grounds for denial based on criminal and sex offender history, substance abuse, and use of CORI for this and other affordable housing programs are discussed below.)
Once a tenant is admitted to public housing, rent is set at roughly housing has to pay30%-32% of gross income, with some adjustments for certain deductions and exclusions, as well as for whatever utilities the tenant must pay.
Privately Owned Multifamily Subsidized
Housing
Privately owned multifamily subsidized housing, like public housing, is
made up of buildings (or portions of buildings) which are dedicated to
low income tenants through federal or state subsidies. Although it is
run by a private owner rather than a PHA or LHA, these private owners
enter into an agreement with the federal or state government to operate
the housing in return for government subsidies and tax breaks.
Income eligibility for this housing is similar to that in public housing. The same considerations apply as with applying for public housing (some developments may be targeted to the elderly or disabled, may not have the right bedroom size, or may have waiting lists that are closed or very long). The same factors are also true here regarding citizenship status for the federal and state housing programs.
Different owners may have different admissions preferences; housing that is subject to Mass. Housing oversight, however, has certain preferences for applicants who are displaced by natural forces, by public action, or by domestic violence. Since here, again, the owner is going to be the landlord, there may be extensive screening of criminal history and other factors to determine suitability (credit checks are extensively used in this kind of housing).
Once a tenant is admitted, rent levels can vary, depending on the nature of the underlying subsidy program.
Public Housing Agency Rental Assistance
Programs
For the Section 8 voucher
program, 75% of new admissions are targeted to those with incomes of 30%
of area median or below; other usually have to have incomes of 50% of
area median or below. Each PHA can have its own system for when its
waiting list is open, and what preferences it applies. As of the
spring of 2004, most PHA waiting lists for rental assistance are either
closed or are quite long. Each PHA also has its own system for taking
applications: some do it by lottery, some by being open for particular
time periods, and some by preference category. Once a tenant is eligible
for a voucher, however, he or she does not need to worry about bedroom
size, because the subsidy is adapted to household size. The same
considerations apply as above to those who do not have citizenship status, i.e.,
this can be a big problem for the federal housing programs.
A PHA generally does less screening for the rental assistance programs than for the public housing programs, because it will not be the owner. However, the PHA will screen for violent or drug-related criminal history, as well as any prior history of eviction or termination from public housing or rental assistance and any debt owed to a PHA. PHAs are free to do more extensive screening if they put it in their policies.
Once an applicant is issued a rental assistance voucher, for most of the programs, the applicant must then find a private owner which will accept the voucher within a set period of time (search period). Usually this is a minimum of 60 days; maximum periods may vary, and can usually be extended for good cause (such as reasonable accommodation of a disability). The private owner can do his or her own screening, and this can include inquiries as to tenant suitability (including criminal history). If the private owner agrees to lease to the tenant, the PHA then must determine if the unit passes code and if the rent requested is reasonable in comparison to the rent charged for comparable units in the private market. For many of the voucher programs, the tenant must pay a minimum of 30% of income for rent; if the owner demands more in rent than the subsidy will cover, the tenant must make up the difference between the maximum subsidy and the full rent, in addition to 30% of income. For the Section 8 voucher program, however, the tenant cannot lease the unit if he or she would end up paying more than 40% of income as the tenant share.
McKinney
Housing; HOME
For the McKinney programs, there are very few requirements, other than
the applicant must be homeless. A person who is currently incarcerated
is not considered homeless within the meaning of the McKinney Act; however,
at the moment of discharge, the person is homeless and eligible. Since
there will be no extensive discussion of these programs below, just be
aware that the HUD non-citizen rules discussed above and the mandatory
and permissive grounds for denial of admission based on criminal or sex
offender history, or current substance abuse, do not apply to these programs. Instead,
providers may develop their own criteria, based on what is reasonable
for the particular program. The HOME programs, too, have few rules
on screening, although providers must target assistance to low-income
applicants and follow certain procedures on waiting lists.
Tax Credit
Housing
Here, too, as with the McKinney and HOME programs, there are few criteria,
other than the targeting of admission to income eligible persons. However,
if the tax credits are being used in conjunction with other underlying
subsidies (federal public housing, multifamily subsidized housing), those
admissions rules would govern.
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| Multi-family housing, Worcester |
MASSACHUSETTS CORI LAW
This
section will explain the origins and nature of CORI law in Massachusetts,
looking at both the statutory law and how the law is implemented.
The main function of CORI is to make a person’s criminal record readily available to law enforcement agencies in Massachusetts, but it is also widely used by public agencies, private corporations, and individuals to conduct background checks. Every person charged with a crime in Massachusetts has a record of that crime placed on his or her CORI report, including any court proceedings and the final outcome of the case. Therefore, by obtaining a person’s CORI report, one is able to see all pending criminal cases and convictions on his or her criminal record.
Who Has Access to CORI?
CORI is not available to everyone. In Massachusetts, CORI information
is mainly used by criminal justice and other government / government funded
agencies that have been empowered by specific statutes to access CORI. The
agencies granted statutory access to CORI are mostly those that deal with
children, such as schools and the departments of social services, and
those that care for the elderly or infirm, such as nursing homes.
Public Housing Agencies (PHAs) are another set of agencies with access to CORI. These agencies are, in fact, required to use CORI records to conduct background checks before granting applicants public housing. PHAs are granted access to the CORI records of all applicants, and they must use this information when determining the suitability of all applicants for public housing. For state public housing, DHCD has a set of criteria that PHAs are supposed to use in determining whether an applicant with a criminal history should be denied. For federal public housing, while HUD has established certain rules on mandatory and permissive denial of housing based on criminal history, PHAs are also given a lot of discretion to have broader policies so long as they are reasonable.
CORI is also available to the general public in two situations. First, any member of the public can access a person’s CORI when the CORI curtain is up. This occurs while the person is in prison, on parole, or has been convicted of a serious crime and has only been out of custody from one to three years. It is likely that a private landlord, for example, could use such CORI to evaluate Section 8 applicants, as long as it applied a similar policy to all applicants; it would be unlawful to do so for just Section 8 applicants or in a manner that could constitute unlawful discrimination. Secondly, any member of the public can access CORI if he or she can convince the CHSB, which oversees CORI, that it is in the public interest to reveal a person’s CORI report to that particular applicant. The granting of access in the latter case used to be a rare occurrence, but in recent years the CHSB has been granting the general public greater access to CORI.
According to Barry LaCroix of the CHSB, private landlords that receive public subsidies to maintain low income units can receive special certification from the Criminal History Systems Board (CHSB) to applicants’ criminal records similar to PHAs. Private landlords who do not receive public subsidies to maintain affordable units are currently not allowed to access the criminal records. Although such landlords are theoretically allowed to receive special certification to access CORI records, the CHSB has never found the public interest for CORI access for these type of private landlords to outweigh the private interests of the ex-offender.
How To
Get Your Own CORI
Anyone can contact the CHSB and get a free copy of his or her own CORI. This
can be a useful thing for ex-offenders to do, given that CORI reports
can contain surprising and/or erroneous information. Many people
do not know that they may have been charged with a minor offense, for
which they never had a court proceeding. Such an offense, though minor,
may show up as an active case on a CORI report, and will have to be resolved
before such a person can apply for public housing. CORI reports can often
contain inaccurate information or, worse still, the CHSB has been found
to have mixed up CORI reports for individuals with similar names. It
is recommended that individuals with doubts or questions regarding their
own CORI reports order and review their records.
While it’s wise to know about your own CORI, and to particularly try to clear up CORI before it can become a problem with housing applications, an applicant should NOT disclose his or her own CORI to a PHA or private owner. This is because there may be much more information in the individual’s own CORI than in the CORI that the PHA or owner receives. The PHA’s CORI report, for example, may only include convictions or open cases; the applicant’s own CORI may reveal other offenses which were resolved, but which may raise concerns for the PHA. You don’t want to volunteer information to the PHA or owner that could be harmful. It is unlawful for a PHA or owner to require you to turn over your CORI. If, on the other hand, there is helpful information that you have about your CORI - for example, you have a copy of the criminal docket sheet that shows that the case was dismissed, or was reduced to a lesser offense - then it is often in your interest to provide this.
Can
a CORI Record Be Sealed?
It is also possible to seal information on a CORI
report and prevent most people from having access to it if it is an old
record, or if the case was decided favorably. Any felony that occurred
fifteen years in the past, or any misdemeanor that occurred ten years
in the past, can be sealed. If a case was decided for the defendant,
it is automatically sealed in most situations, though in some cases the
defendant must petition a judge to do so.
Out of State Criminal History
Most owners and PHAs ask for a housing history for their applicants to
disclose where they’ve lived for the past few years. If the applicant
indicates an address outside of the Commonwealth, some PHAs and owners
request that you obtain criminal history information from that location. How
this information is stored varies a lot by the State and locality sometimes
it’s kept in a state-wide system (as in Massachusetts), while in other
places it’s based with county sheriff’s offices or local police departments. It
is legitimate for a PHA or owner to request you to obtain this information
(unless there is a state or local law elsewhere that forbids it). Often
there are fees associated with getting this information, or other requirements
(providing a fingerprint). The PHA must cover any such costs.
Public Arrest Information
(Non-CORI)
A few owners and PHAs rely on certain tenant screening or credit reporting
agencies for information about their applicants. These agencies usually
do not have access to CORI. However, they may have access to public
arrest information for example, the police arrest logs and blotter sheets
are accessible to any member of the public, and are the bread and butter
of local newspapers. Where such information is obtained, it will
not say what ultimately happened. The owner or PHA may, in response
to the report, ask you to provide information showing that the matter
was resolved favorably (for example, that the charges were not pressed
or the case was dismissed). While you have no duty to provide this
information, failure to respond is likely to lead to a rejection the owner
will say that it received negative information, gave you an opportunity
to respond, and it did not receive anything to refute the negative information. Here
again, it is important to not volunteer too much until you know what information
they’re relying upon, and to limit your response to the particular case.
For more information about CORI, please visit the Massachusetts Trial Court Law Libraries website. Additional information is on the Criminal History Systems Board website.