By Ryan Sakoda, Student in the Tenant Advocacy Project and Harvard Ph.D. Candidate in Economics

Over 100 million individuals, or about one-third of the U.S. population, have some form of criminal record. During 2012 alone, there were over 12 million arrests reported in the United States. In addition, about 640,000 individuals were released from state and federal prisons to try to rebuild their lives with the heavy burden of a criminal conviction on their record.

The impact of the criminal justice system has been particularly concentrated among low-income individuals, many of whom rely on public or subsidized housing. After having contact with the criminal justice system, however, most of these individuals are barred from public housing assistance even many years after their conviction. Without reliable housing, it is nearly impossible to maintain steady employment and establish the structure necessary for these individuals to move on with their lives.

The U.S. Department of Housing and Urban Development (HUD) has recognized how important housing assistance programs can be in efforts to reduce recidivism and has recently issued two letters reminding public housing agencies of their discretion to admit individuals with prior convictions. These two letters, issued in 2011 and 2012, emphasize the Obama Administration’s belief “in the importance of second chances” and the necessity of “helping ex-offenders gain access to one of the most fundamental building blocks of a stable life—a place to live.”

During the past winter and spring, the Tenant Advocacy Project (TAP) focused on these issues, assisting four clients on criminal-history-based denials of public and Section 8 housing. Each of these clients presented a unique story reflecting the myriad and complex circumstances that can lead to a criminal record.

In our first case, Pedro Spivakovsky-Gonzalez ’17 took the lead representing a young mother whose application for public housing was denied due to a drug conviction early in life. Her conviction was the result of being in the wrong place at the wrong time and not understanding the long-run impact of a criminal conviction before pleading guilty to a crime she did not commit. Although this conviction had occurred before our client became a mother, it stood as the barrier preventing her two children from obtaining a stable home. These kinds of contextual details are often overlooked as an applicant’s Criminal Offender Record Information (CORI) report is sometimes the sole source of information relied on by public housing agencies when evaluating an applicant’s criminal history. Although applicants are given the opportunity to provide mitigating evidence related to their criminal record, they often do not have the time or resources to produce evidence deemed sufficient by the housing authority to overcome their record.

Throughout the winter, Pedro put together a package of mitigating evidence for our client. He spent countless hours interviewing her and collecting numerous letters of support from friends and former neighbors. In addition, we included a memo arguing that our client’s perfect record while on probation should be considered strong evidence of her commitment to remain free of criminal activity. Housing authorities normally place little or no weight on good behavior while on probation because of the assumption that it was the supervision rather than intrinsic motivation that kept the individual out of trouble. But contrary to this assumption, high rates of probation violations are found in a number of studies and suggest that not all individuals perform well under supervision. Therefore, we argued, those that do perform well should certainly be given credit for their performance. These materials, along with Pedro’s excellent argument at the administrative hearing, resulted in a reversal of our client’s application denial and her reinstatement to the waiting list for housing.

The remaining three cases resulted in victories as well, two through mitigation of the criminal record and one by way of Reasonable Accommodation. Like our first case, TAP helped each of these clients gather documentation including letters from friends, doctors, and social workers, evidence of the completion of programming, and academic research relevant to the client’s past behavior.

This research, along with the testimony of our client’s social worker, was particularly valuable for our case decided on Reasonable Accommodation grounds. In that case, we provided evidence showing that past trauma victims often have violent reactions to being held or constrained due to extreme agitation and fear, supporting our claim that there was a nexus between our client’s mental health disabilities and her convictions for violent criminal activity. After presenting this evidence at the hearing, the Boston Housing Authority (BHA) decided in favor of our client, finding that she should be granted a reasonable accommodation for her mental health disabilities and consequently, that the criminal convictions resulting from her disabilities could not be grounds to deny her application.

Working on this set of cases highlighted the challenges faced by individuals attempting to rebuild their life after a criminal conviction. These challenges are enormous and exacerbated by the numerous barriers to public benefits levied against those with a record. Fighting these barriers can seem hopeless, but as shown by TAP’s experience, these cases are winnable and worthy of the attention of our legal community.