MyCoach, LLC | HUD Strongly Limits Criminal Histories to Screen Prospective Residents, Part 2
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HUD Strongly Limits Criminal Histories to Screen Prospective Residents, Part 2

HUD Strongly Limits Criminal Histories to Screen Prospective Residents, Part 2

The previous blog discussed HUD’s recent limits on the use of criminal histories for the purpose of screening apartment residents. This blog expands upon this discussion, and reviews other subjects in the HUD general counsel’s directive.

The HUD opinion does not mean that a screening process cannot consider criminal convictions. Not at all. Ms. Kanovsky makes it clear that a screening process that disqualifies applicants who have a type of criminal history that would clearly put other residents’ safety or property at risk can be legal. Here’s what she says:

“A housing provider must be able to prove through reliable evidence that its policy or practice of making housing decisions based on criminal history actually assists in protecting resident safety and/or property.”

This means that a legal screening process may consider those crimes – and only those crimes – that would put residents’ safety or property at risk. Let’s consider what kinds of crimes would meet that test.

The first step in deciding whether a criminal conviction puts at risk resident safety and/or property is to consider the nature of the crime itself. What kinds of conduct are involved in the commission of a particular crime?

Fortunately, we know a great deal about the type of conduct that is involved in four general categories of criminal offenses. Here they are:

  • Personal crimes: These crimes include homicide (murder, manslaughter), arson, and rape.
  • Property crimes: These crimes include burglary, theft, and robberies of different types.
  • Inchoate crimes: These crimes include active participation in criminal behavior, such as attempts and conspiracies.
  • Statutory crimes: These include alcohol and drug violations, traffic offenses, and so-called “white collar” crimes.

HUD’s memorandum is very recent, and we can expect more commentary from HUD’s experts and others about the kinds of criminal conduct that meet the requirement of putting at risk resident safety and/or property. I believe that the so-called “personal” crimes and “property crimes,” by definition meet this test. And there are certain “statutory crimes” that do so as well. In my opinion, convictions for drug sales, reckless driving and drunk driving pose risks to safety and property.

The final question that should be answered is whether there is a reasonable likelihood that a criminal convicted of one or more of these crimes poses a current risk to safety or property. Our criminal justice system considers whether a person convicted of a crime can be successfully and permanently rehabilitated, that is, reintegrated into society without reoffending. Considering the length of time that a person with a criminal history has lived crime-free can be used to determine whether a former felon is likely to be a successful apartment resident.

All of this, of course, is new to our business. My goal in providing this segment is to suggest strategies that will help MY COACH customers to meet these new requirements.

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