Innocent Until Proven Guilty - Examining The Constitutionality of

Goodridge Final_final (Do Not Delete) 6/1/2016 4:36 PM
INNOCENT UNTIL PROVEN GUILTY?:

EXAMINING THE CONSTITUTIONALITY OF
PUBLIC HOUSING EVICTIONS BASED ON
CRIMINAL ACTIVITY
LEAH GOODRIDGE AND HELEN STROM
I. INTRODUCTION
As Jennie Williams sat handcuffed in the hallway of her public housing
development, a police officer turned to her and said, You shoulda did it. Now
you really goin to jail.1 Jennie would soon find out this was only a fraction of
the hard ways that public housing residents lose constitutional rights in
exchange for safety.
Jennie Williams moved to Stateway Gardens, a public housing complex in
Chicago, with her two young sons in 1980.2 In August 2001, as Jennie walked
across the courtyard to visit a friend in an adjacent building, she was stopped by
six plainclothes police officers waiting in the lobby.3 The officers demanded that
she knock on apartment doors in the building so that they would not have to
announce their identity to residents.4
When Jennie refused, the officers physically searched and handcuffed her.5
They threatened that if she did not help them, she would be charged with
criminal trespassing.6 Reluctantly, Jennie agreed to help.7 As a resident opened
the door after hearing Jennies voice, the police rushed in and searched the
apartment. 8 Upset by this, Jennie refused to continue helping the police. 9 On
Copyright 2016 Leah Goodridge and Helen Strom.

Leah Goodridge is Supervising Attorney, Housing Rights Project, MFY Legal Services.
Helen Strom is an Independent Researcher. She graduated from Harvard University, B.A., 2011. This
article expresses only the opinion of the authors. The authors would like to thank Fitzroy Christian
for suggesting this topic and Shabana Shahabuddin, Rajiv Jaswa, Jason Blumberg and Matthew Main
for their helpful comments. Lastly, the authors thank the journals editors for their tireless work.
1. Jamie Kalven, One Strike: Jennie Williams Part I, ViewfromtheGround.com, June 18, 2002,
http://viewfromtheground.com/archive/2002/06/one-strike-jennie-williams-part-i/.
2. Id.
3. Id.
4. Id.
5. Id.
6. Id.
7. Id.
8. Id.
9. Id.
1
2 DUKE FORUM FOR LAW & SOCIAL CHANGE Vol. 8:1 2016
account of her refusal, the police handcuffed Jennie and left her in the hallway
while they investigated other apartments.10
Jennie was in jail for three days.11 Only a few weeks later, Jennie received
two notices in the mailone from criminal court and the other from the Housing
Authority.12 Jennie was charged with drug possession on August 21, 2001 and
would have to go to criminal court.13 But what was most disturbing is that even
before Jennie was tried for the criminal charges, the Chicago Housing Authority
commenced a proceeding to terminate her tenancy and thereafter to evict her
whole family, all based on her arrest.14
While Jennie was entitled to a lawyer for her criminal case, she had no such
right to legal representation in her eviction case.15 The decision to evict Jennie
was based solely on her arrest and the police officers testimony.16 After 21 years
of living in one of the few affordable housing complexes in Chicago, Jennie and
her two sons were displaced based on a charge for which she had not yet been
convicted.17
Jennies story18 is not an isolated incident. It is one of many examples of the
disastrous effects of a nationwide policy that affects millions of residents of
public housing. The one strike policy, introduced in 1996 and still in effect in
many developments, requires housing authorities to take aggressive measures to
evict individuals suspected of criminal activity. The evictions occur even if the
residents have not been convicted of a crime.
This article examines the legal implications of a federal regulation which
authorizes public housing authorities (PHAs) across the nation to evict tenants
on the basis of criminality without solid proof of guilt. PHA Denial of Admission
and Termination of Assistance for Criminals and Alcohol Abusers Rule provides
that:
The PHA may terminate assistance for criminal activity by a household member
as authorized in this section if the PHA determines, based on a preponderance of
the evidence, that the household member has engaged in the activity, regardless
of whether the household member has been arrested or convicted for such
10. Id.
11. Id.
12. Id.
13. Id.
14. Jamie Kalven, One Strike: Jennie Williams Part II, ViewfromtheGround.com, June 18, 2002,
http://viewfromtheground.com/archive/2002/06/one-strike-jennie-williams-part-ii/ (As many
public housing residents do, Jennie made the common sense assumption that if she prevailed in her
drug case, the eviction case would necessarily be resolved. She hired a lawyer to represent her in the
criminal case. While she didnt neglect the eviction case, she gave it less priority.).
15. In Gideon v. Wainwright, 372 U.S. 335 (1963), the U.S. Supreme Court held that indigent
defendants have a right to counsel in criminal cases pursuant to the Fourteenth Amendment of the
U.S. Constitution. This recognized right to counsel has not yet been extended to civil cases.
16. See Kalven, supra note 14. (On April 2, the police appeared in court. Jennie did not. The
police testified that on August 21, they arrested her for possession of drugs in her apartment. No
counter-evidence was offered. The judge entered a judgment for the CHA and ordered Jennie
evicted.).
17. Id.
18. Id.
INNOCENT UNTIL PROVEN GUILTY? 3
activity.19
Section II provides an overview of the one strike policy, which was
developed as a result of the War on Drugs. Section III examines the potential
procedural due process violations that stem from one strike evictions. In
particular, the low evidentiary standard that PHAs rely on for one strike
evictions can amount to a violation of the Due Process Clause. Section IV
considers whether there is a viable Fair Housing Act claim on the basis that the
evictions disproportionately impact people of color. Finally, Section IV offers
recommendations for change that will protect the due process and civil rights of
public housing residents.
II. OVERVIEW OF THE ONE STRIKE POLICY
A. The History of the One Strike Policy

The origins of the one strike policy lie in the Anti-Drug Abuse Act of 1988,
an omnibus bill passed by Congress to further the War on Drugs.20 Citing a
reign of terror in public housing, the Act required all public housing leases to
include provisions providing for eviction if the tenant, household member, or
guest engage[d] in criminal activity. . .on or near public housing premises.21
Notably, while the Acts purpose was to further the War on Drugs, the Act
required public housing leases to provide for eviction based on any criminal
activity, not just drug-related activity. These provisions were further codified by
the Cranston Gonzalez National Affordable Housing Act of 1990, which required
public housing leases to include eviction clauses for any criminal activity that
threatens the health, safety, or right to peaceful enjoyment of the premises by
other tenants. 22 Significantly, the Act also required the U.S. Department of
Housing and Urban Development (HUD) to develop performance indicators
to measure how closely the various local housing authorities were adhering to
the new Congressional statutes and corresponding HUD regulations.
In 1996, former U.S. President Bill Clinton gave the one strike policy its
current name in his State of the Union address. Decrying high rates of crime,
drug use, and gangs in public housing, Clinton announced that, From now on,
the rule for residents who commit crime and peddle drugs should be one strike
and youre out.23
But what did it mean to commit a crime? To many, the longstanding
American principle of innocent until proven guilty implied that this policy
would be applied to convicted criminals. However, this would not be the case.
19. PHA Denial of Admission and Termination of Assistance for Criminals and Alcohol Abusers
Rule, 24 C.F.R 982.553 (2015).
20. Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181 (1988) (codified as
amended in scattered sections of the United States Code).
21. Id.
22. See Cranston-Gonzalez National Affordable Housing Act, Pub. L. No. 101-625, 104 Stat. 4079
(1990) (codified as amended in scattered sections of 12 U.S.C. & 42 U.S.C.).
23. President William J. Clinton, Address Before a Joint Session of the Congress on the State of
the Union (Jan. 23, 1996), http://www.presidency.ucsb.edu/ws/?pid=53091.
The HUD policy released in April 1996 stated that:

In order to terminate a lease and evict a tenant, a criminal conviction or arrest is
not necessary, and [Public Housing Authorities, or PHAs,] need not meet the
criminal standard of proof beyond a reasonable doubt in eviction proceedings.
PHAs should specify in their leases that criminal activity is cause for eviction
even in the absence of conviction or arrest. Any provisions in state laws that
require conviction in order to evict tenants are preempted by federal law.24
Furthermore, local PHAs would not only be permitted to evict tenants on
these grounds, but would be aggressively required to do so. As President Clinton
explained in 1996, [u]nder the new rules, . . ., for the first time there will actually
be penalties for housing projects that do not fight crime and enforce one strike
and youre out.25 Under the new system, HUD evaluations awarded points to
PHAs that could show that they were taking measures to evict tenants engaged
in criminal activity.26 These evaluations would then determine the availability
and amount of the PHAs funding and the level of federal oversight, with failing
PHAs facing a possible federal takeover. 27 While PHAs had previously been
granted a significant amount of control and discretion in setting policies around
eviction, one strike was established as a mandatory priority.
B. The Impact of One Strike

The impact of one strike was significant. In the first six months after the one
strike guidelines were adopted, evictions nationwide jumped from 9,835 to
19,405. 28 This represented an 84 percent increase. 29 Although HUD does not
publish national data on evictions, there are data available from several
individual housing authorities. Data regarding the New York City Housing
Authority (NYCHA), for example, showed that in one calendar year (2011),
NYCHA initiated 1,581 one strike cases against tenants.30 Data released by the
24. One Strike and Youre Out: Screening and Eviction Policies for Public Housing
Authorities, Notice PIH 96-16 (HA) (Apr. 12, 1996),
http://www.hud.gov/offices/pih/publications/notices/96/pih96-16.pdf.
25. President William J. Clinton, Remarks by the President at One Strike Symposium (Mar. 28,
1996), http://clinton6.nara.gov/1996/03/1996-03-28-president-remarks-at-one-strike-crime-
symposium.html.
26. Memorandum from Public Housing Management Assessment Program (PHMAP) on
Indicator #8, Security: One Strike and Youre Out (Jul. 25, 1996),
https://portal.hud.gov/hudportal/documents/huddoc?id=DOC_11016.pdf.
27. Id.
28. ACLU DRUG POLICY LITIGATION PROJECT, COLLATERAL CONSEQUENCES OF THE WAR ON
DRUGS, (Jan. 2003), https://www.aclu.org/files/FilesPDFs/final%20brochure.pdf (Many public
housing projects encounter drug activity and violent crime. Instead of going after drug sellers and
users directly, this law targets innocent families. One Strike puts families on the street and
increases family instability. Without housing, parents may lose custody of their children. Fear of
being evicted or denied housing may also prevent families from taking in relatives with past or
current drug problems or who are returning home from prison.).
29. Supreme Court to Rule on Zero Tolerance Policy for Drugs in Public Housing Projects, THE ARGUS
PRESS, Sept. 25, 2001, at A5. (Evictions rose 84 percent in the first six months of the tougher 1996
policy, an analysis by the Associated Press at the time showed.).
30. Erin Durkin, De Blasio Vows He Wont Tolerate Violent Criminals Living in NYCHA
Public Housing Authority in Chicago tracked all one strike cases from August
2000 through April 2002. During that time, 717 one strike cases were concluded
and an additional 847 one strike cases were pending. In 328 (46%) of the cases
that were concluded, the entire family was evicted, and in 273 (37%) of the cases,
one of the family members was evicted from the home.31
One strike also created a financial incentive to evict tenants in cities with
plans to tear down public housing high-rises. In Chicago, for example, the
housing authority was responsible for relocating and financing vouchers for any
residents who lived in public housing as of 1999. Any tenants who were evicted,
however, would no longer be the financial responsibility of the Housing
Authority. This undoubtedly created a structural incentive to evict.32
In Florida, public housing residents and activists Connie Burton and Deloris
Fletcher asserted that the Tampa Housing Authority and St. Petersburg Housing
Authority respectively, were using one strike as a tool to prevent the housing
authority from paying relocation fees. According to Ms. Burton:
Its an attack on the entire community in that it criminalizes everyone. The
housing authority has that tool to remove families. Theyre using it to eliminate
people from public housing. . . It negates any constitutional rights that you think
you have because it goes on the assumption that you are guilty.33
A 2000 study similarly demonstrated that the Atlanta Housing Authority
made a deliberate attempt to empty out the number of public housing residents
as it relocated residents in Atlanta.34 The study found that low-income families in
public housing were consistently and strategically displaced by the onset of
urban renewal initiatives over the course of two decades. As many public
housing residents lost their affordable apartments, the Atlanta political regime
replaced these low-income apartments with developments for higher-income
residents. In Atlanta, eviction was not only part of a bureaucratic process, but
also a business.
One strike also led to unprecedented levels of coordination between local
law enforcement and local housing authorities. In many areas, local police
referred all arrests directly to housing authority management so that eviction
proceedings could be quickly initiated, even for minor offenses. Many housing
authorities also built strong relationships with local police departments to
coordinate additional policing and actions on housing authority property,
including searches and raids. This web of policing and enforcement far exceeded
any endeavors which existed in the private sector and grew to resemble the
criminal justice system much more than real estate.
Sociologist Loc Wacquant uses the term the prisonization of public
housing to describe the ways in which public housing complexes have come to
Developments, N.Y. DAILY NEWS (Nov. 9, 2015), http://www.nydailynews.com/news/politics/de-

blasio-won-tolerate-violent-criminals-nycha-housing-article-1.2428570.
31. Kalven, supra note 14.
32. Id.
33. HOMING DEVICES: THE POOR AS TARGETS OF PUBLIC HOUSING POLICY AND PRACTICE 89
(Marilyn M. Thomas-Houston and Mark Schuller eds., 2006).
34. See Larry Keating, Redeveloping Public Housing, 66 J. AM. PLAN. ASSN 384 (2000).
resemble jails and have developed systems that send a substantial number of
residents to jail. 35 Video surveillance, curfews, illegal searches by the police,
barbed wire fences, and restricted access for visitors were introduced in many
public housing complexes in the 1980s and 1990s. In one public housing project
in Chicago, residents had to pass through metal detectors and were subjected to
pat-down searches upon entering the complex. 36 As one resident of public
housing in the District of Columbia noted: Its as though the children in here are
being prepared for incarceration, so when they put them in a real lock-down
situation, theyll be used to being hemmed in.37
In some cases, this close relationship between law enforcement and housing
authorities led to serious constitutional abuse. Arlene Burke, a resident of public
housing in Tampa, Florida, faced eviction proceedings after she attempted to
take a video of a police interaction on public housing property. 38 The police
alleged that she hit an officer on the arm and charged her with battery. However,
several witnesses confirmed that the polices allegations were false. It is likely
that the police concocted the battery charge to arrest her in retaliation for filming
police misconduct.
Another example of the nexus between public housing and incarceration is
the widespread use of stop and frisk practices on public housing grounds in
New York City. In 2010, the NAACP Legal Defense Fund filed a federal class
action challenging the NYPDs unlawful policy and practice of routinely
stopping and arresting NYCHA residents and guests without reasonable
suspicion or probable cause of illegal conduct in a racially discriminatory
manner.39 These claims were upheld in federal court.40
The impact of the one strike policy has been swift and clear. It has led to the
over-policing of mostly poor communities of color and the systematic disregard
for the longstanding innocent until proven guilty standard. Citing resident
support for such policies, Clinton and others argued that these measures were
35. Loc Wacquant, Deadly Symbiosis: When Ghetto and Prison Meet and Mesh, 3 PUNISHMENT &
SOCY 95, 108 (2001) (Over the past decade, the Chicago Housing Authority has deployed its own
police force and even sought to institute its own misdemeanor court to try misbehaving tenants on
the premises. Residents of Robert Taylor Homes, at the epicenter of the South Side, have been
subjected to video surveillance and requires to bear special ID cards as well as pass through metal
detectors, undergo patdown searches, and report all visitors to a housing officer in the lobby.). See
also Securing Buildings vs. Controlling Firearms: Rampant Gun Crime Demands Comprehensive Curbs, L.A.
TIMES, Apr. 19, 1994 (Metal detectors in the lobbies of public housing projects? Sure. Add them to
the list of secured facilities in our midst: schools, banks, courthouses, airports. These measures help
to a point. But that point is usually at the buildings perimeter.).
36. Id.
37. Id.
38. Kathryn Wexler, Woman Fights One Strike Eviction Policy, ST. PETERSBURG TIMES, May 6, 2001,
http://www.sptimes.com/News/050601/Hillsborough/Woman_fights_one_stri.shtml ([Burkes]
case underscores the power police wield in public housing. The Housing Authority relies on police in
every stage of the eviction process. The nature of Burkes complaintthat police targeted her for
retaliationunderscores the potential pitfalls of the [eviction] policy.).
39. Davis v. City of New York, 10 Civ. 0699 (SAS), 2013 U.S. Dist. LEXIS 74189, at *3 n.6 (May 24,
2013), http://www.naacpldf.org/case/davis-vs-city-new-york.
40. Id.
necessary to address new and unprecedented crime and drug use in the projects.
The harsh approach and indiscriminate implementation, however, fit into a
historical pattern of regulating and criminalizing poor people of color.
C. One Strike and Black Criminality: The Colored Lines of Criminality in

Public Housing
1. Who Lives in Public Housing?

The first public housing developments were built in the late 1930s as a
reward for working-class whites.41 By the 1990s, however, the public and media
narrative around public housing had cemented into a racialized image of low-
income minorities living in high-crime high-rises ravaged by drug use and
gangs. In the wake of three decades of federally-financed white flight to the
suburbs, 42 steady disinvestment in public housing infrastructure, 43 and
segregationist housing practices such as redlining,44 this perception was partially
supported by the numbers. By the 1990s, median family income in public
41. Emily Badger, How Section 8 Became a Racial Slur, WASH. POST (June 15, 2015),
https://www.washingtonpost.com/news/wonk/wp/2015/06/15/how-section-8-became-a-racial-
slur/ (This [article] is the history of how public housing in the United States originally conceived
as enviable housing for working whites has become a prism through which some Americans
see poor blacks. Its a history that explains how some of the most visible public projects in big cities
became, over decades, almost exclusively black, how the residents living there came to be among the
countrys most deeply impoverished. Today, households receiving government housing assistance
from traditional public housing to the private-market vouchers it inspired live on average incomes
of less than $13,000 a year.).
42. Id. (As the white barely poor moved out and as the strict criteria for who could live in
public housing faded the median incomes of the families there began to fall. In 1950, the median
household in public housing earned about 57 percent of the national median income. That number
fell to 41 percent by 1960, then 29 percent by 1970. By the 1990s, the median family in public housing
made only about 17 percent what the median family in America made. Relatively speaking, that
means public-housing residents by the 1990s were about three times as poor as they had been in the
1950s.).
43. See Paul Stinson, Restoring Justice: How Congress Can Amend the One-Strike Laws in Federally-
Subsidized Public Housing to Ensure Due Process, Avoid Inequity, and Combat Crime, 11 GEO. J. POVERTY
LAW & POLY 435 (2004) (By 1988, the United States government was spending an estimated $4.7
billion a year on the drug war. This number grew to $13.2 billion by 1995 and $26 billion in 2002. At
the same time, funding and manpower for public housing was slashed; during the Reagan
presidency, HUDs budget was cut from $26 billion to less than $8 billion, and its work force reduced
from 16,000 employees to 11,000. Funding for affordable housing remained at record-low levels
during the first Bush presidency, and Clintons record of HUD assistance was mixed, with budget
authority only slightly higher in 2001 than in 1993. And while the need for affordable housing
solutions is greater than ever, there is no indication that the current administration has any intention
of searching for any. Yet while money and manpower has moved out, ever-stricter regulations have
moved in. As noted above, during the 1980s Congress targeted public housing as a particularly
significant locus of drug-related crime and responded not with increased funding but with increased
penalties and decreased procedural protections for public housing tenants involved with drugs.).
44. Ta-Nehisi Coates, The Case for Reparations, THE ATLANTIC MONTHLY (June 2014),
http://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/ (It was
the Home Owners Loan Corporation, not a private trade association, that pioneered the practice of
redlining, selectively granting loans and insisting that any property it insured be covered by a
restrictive covenanta clause in the deed forbidding the sale of the property to anyone other than
whites. Millions of dollars flowed from tax coffers into segregated white neighborhoods.).
housing had dropped to 17% of the median family income in America. 45

Empirical data from 1991 showed that 61% of public housing households were
people of color and 48% of public housing households were black compared to
19% of all rental households.46 By 2001, blacks and Latinos comprised 67% of the
population of public housing across the nation.47
2. Perceptions and Myths on Crime in Public Housing

Interestingly, there was a dearth of national data about crime in public
housing despite the unquestioned public narrative about this point. With the
exception of New York City, police departments did not keep separate data for
public housing developments. As late as 1998, HUD researcher Harold Holzman
wrote, valid statistics on the level of crime in public housing do not exist.48 In
2006, criminologist Garth Davies noted, that public housing projects are rife
with serious crime is . . . accepted as fact despite a discernable paucity of
evidence.49 Dr. Fritz Umbachs comprehensive survey of the last five decades of
available research on the link between public housing and crime is non-
conclusive: some public housing seems to have increased crime rates under
certain conditions, while other projects, under different conditions, are actually
safer than private housing.50
Nevertheless, certain cities (and public housing developments) were
affected by increased crime and drug use in the late 1980s and early 1990s, and
many residents led the way in calling for policies to increase safety. A 1995
national poll found that 88% of African Americans agreed that individuals
convicted of illegal drug sales or possession should be evicted from public
housing.51 In New York City, tenant leaders and activists in the 1980s demanded
that the housing authority (NYCHA) take action to address drugs, crime, and
prostitution which affected the Citys 600,000 public housing tenants. 52 As a
result of this pressure, NYCHA formed an Anti-Narcotics Task Force in 1987 to
examine the issue. The Task Force considered a variety of options, including
economic alternatives, but eventually settled on harsher and speedier eviction
45. Badger, supra note 41.

46. United States Department of Housing and Urban Development, Public Housing: Image Versus
Facts, U.S. Housing and Market Conditions, Spring 1995,
http://www.huduser.gov/periodicals/ushmc/spring95/spring95.html#foot.
47. David R. Jones, One Strike and Youre Out If Youre Black!, NEW YORK AMSTERDAM NEWS, Apr.
18, 2002.
48. Harold R. Holzman and Larry Piper, Measuring Crime in Public Housing Methodological Issues
and Research Strategies, 14, J. QUANTITATIVE CRIMINOLOGY 4: 331, 331 (1998).
49. NICHOLAS D. BLOOM, PUBLIC HOUSING MYTHS: PERCEPTION, REALITY, AND SOCIAL POLICY 64
5 (Nicholas Dagen Bloom, Fritz Umbach, and Lawrence J. Vale eds., 2015).
50. Id. at 90.
51. This statistic was used to justify one strike policies despite the noticeable distinction
between the poll question and the policy itself. The question asks if African Americans favor evicting
convicted criminals while one strike allows for the eviction of tenants who have not been convicted of
a crime. See Adam P. Hellegers, Reforming HUDs One-Strike Public Housing Evictions Through Tenant
Participation, 90 J. CRIM. L. & CRIMINOLOGY 323, 32425 (1999-2000).
52. FRITZ UMBACH, THE LAST NEIGHBORHOOD COPS: THE RISE AND FALL OF COMMUNITY POLICING
IN NEW YORK PUBLIC HOUSING 151 (2011).
policies for tenants. In many ways, these policies in New York City spurred on
the public housing eviction clause in the Anti-Drug Abuse Act of 1988, opening
the door for the use of such policies nationwide.
While affected residents led efforts for change and often supported the
eviction of criminals, they did not fully support one strikes implementation,
which sometimes led to the eviction of innocent tenants. Umbach suggests that
conservative groups co-opted tenants message into calls for a new age of
responsibility, ignoring decades of community activism within public housing
where residents took responsibility for change in their communities. 53 One
strikes calls for individual responsibility also ignored the systemic economic
realities for many public housing residents. Sociologists Loc Wacquant and
William Julius Wilsons 1989 analysis of areas of extreme poverty in Chicago in
the late 1980s centered on the citys public housing complexes. Their analysis
found that high unemployment and economic exclusion in poor, black
communities in Chicago had created a crisis that they called the hyperghetto.54
Observers of the crime increase in the New York City Housing Authority in the
1980s came to a similar conclusion as well, attributing the shift to the social
dynamics of having fewer residents with full-time employment.55
To be clear, many public housing residents rejected the idea that they
should have to choose between safe communities and their civil rights. A 1996
newspaper article aptly summarized this idea: Public housing residents poured
into a monthly board meeting at the Tampa Housing Authority Friday to let
leaders know they dont want drug dealers and criminals in their
neighborhoods. But they dont want government stepping on the innocent in an
effort to clean up the neighborhoods, either.56
Unfortunately, as Umbach observed, this sort of nuance and empirical
precision has often seemed beside the point to an American public that has
woven crime, [Public Housing Developments], and racial minorities into an
unholy trinity. 57 Two elements of this unholy trinity, crime and black
53. Id. at 155.

54. Loc Wacquant and William Julius Wilson, The Cost of Racial and Class Exclusion in the Inner
City, 501.1 THE ANNALS OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE, 8-25, 11
(1989) (The single largest force behind this increasing social and economic marginalization of large
numbers of inner-city blacks has been a set of mutually reinforcing spatial and industrial changes in
the countrys urban political economy that have converged to undermine the material foundations of
the traditional ghetto. Among these structural shifts are the decentralization of industrial pants,
which commenced at the time of World War I but accelerated sharply after 1950, and the flight of
manufacturing jobs abroad, to the Sunbelt states, or to the suburbs and exurbs at a time when blacks
were continuing to migrate en masse to Rustbelt central cities; the general deconcentration of
metropolitan economies and the turn toward service industries and occupations, promoted by the
growing separation of banks and industry; and the emergence of post-Taylorist, so-called flexible
forms of organizations and generalized corporate attacks on unionsexpressed by, among other
things, wage cutbacks and the spread of two-tier wage systems and labor contractingwhich has
intensified job competition and triggered an explosion of low-pay, part-time work.).
55. Stephen Nessen, Housing Generations, Life in the Projects: A Shift to Violence, NATIONAL PUBLIC
RADIO, Dec. 19, 2012, http://www.wnyc.org/story/258072-housing-generations-life-projects-shift-
violence/.
56. Darlene McCormick, Public Housing Rule Aired, TAMPA TRIB., May 4, 1996, at 1.
57. See NICHOLAS D. BLOOM, PUBLIC HOUSING MYTHS, supra note 49.
people, had been united in the American imagination since our nations early
days, with public housing sliding neatly into this narrative by the mid to late
twentieth century. Contextualizing one strike within this long, historical
trajectory helps us understand how and why this policy was implemented in
such harsh and draconian terms.
3. The Origins of Black Criminality

The notion of blacks as criminals was written into the U.S. Constitution by
way of the Fugitive Slave Clause, which provided that slaves who committed the
crime of running away or escaping must be returned to the party to whom such
service or labour may be due.58 As Frederick Douglass told his audiences, I
appear before you this evening as a thief and a robber. I stole this head, these
limbs, this body from my master, and ran off with them.59 However, running
away was not the only crime that blacks were thought to be likely to commit. In
1860, The New York Herald expressed widespread attitudes regarding blacks while
reporting on runaway slaves living in Canada. The article concluded that the
runaways displayed a savage ferocity peculiar to the vicious Negro and
reported that the criminal calendars would be bare of a prosecution but for the
Negro prisoners.60
After the end of slavery, white society used black criminality as a principal
rationale for continued oppression, discrimination, and violence. According to
Khalil Gibran Muhammad, the director of the Schomburg Center for Research in
Black Culture at the New York Public Library, From the 1890s through the first
four decades of the twentieth century, black criminality would become one of the
commonly cited and longest-lasting justifications for black inequality and
mortality in the modern world.61 Perhaps the most violent manifestations of this
were the mass lynchings carried out against blacks, justified by the shadow of
the Negro criminal who made such actions necessary by virtue of their own
hot-headedness.62
Significantly, the link between illegal drug use and black people was also
established by the early 1900s. In 1914, the federal government initiated its first
war on drugs by limiting the sale of opiates and cocaine with the Harrison
Narcotics Tax Act.63 The rhetoric justifying this legislation featured reports of a
South overrun by cocaine-crazed negroes and Congressional testimony stating
that, It has been authoritatively stated that cocaine is often the direct incentive
to the crime of rape by the negroes of the South and other sections of the
country.64
While the civil rights movement of the 1960s rendered this overt racism to
be outwardly unacceptable, ideas of black criminality persisted under the guise
58. U.S. CONST. art. IV, 2, cl. 3.

59. See Coates, supra note 44.
60. Id.
61. Id.
62. Id.
63. Id. (citation omitted).
64. Id.
of race-neutral language. Former U.S. President Richard Nixons law-and-order

strategy highlighted a perceived moral decline in America marked by rising drug
use and increased crime. Nixon believed that the solution was an aggressive war
on crime focused on a group of people who were never named publicly but
always present: blacks and other racial minorities. They were sometimes named
behind the scenes however. In describing the Nixon campaigns electoral
strategy, Nixon aide John Ehrlichman put it bluntly: Well go after the racists . . .
. That subliminal appeal to the anti-black voter was always in Nixons statements
and speeches on schools and housing. In an outtake from a 1968 campaign ad,
Nixon was also caught on tape talking to himself: Yep this hits it right on the
nose . . . . [I]ts all about law and order and the damn Negro-Puerto Rican groups
out there.65
4. The War on Drugs as Pretext for the War on the Poor

Law and order politics and the War on Drugs were centerpieces of national
policy for the next three decades, and the target - people of color - remained the
same. Today, the United States now accounts for 25% of the global incarcerated
population, despite having only 5% of the worlds population.66 These policies
have disproportionately affected people of color, despite surveys showing that
over time, blacks and whites have used drugs at remarkably similar rates.67 In
2000, one in every ten black males were currently incarcerated versus one in
every 100 white.68 Today, one out of every four black men born since the late
1970s has spent time in prison.69
With the advent of one strike, public housing residents felt the impact of
these policies acutely. In 1994, complexes across Chicago were targeted as part of
Operation Clean Sweep, where mass arrests were made in predawn raids in
violation of many residents Constitutional rights. Furthermore, data obtained by
The New York Times also showed that from 2005 to 2010, 73% of one strike cases in
Chicago were initiated based on drug possession charges, including 28% for
marijuana possession.70 Only 8% of cases were related to drug sales and only 4%
were related to weapon possession. These numbers demonstrated that in
Chicago, the focus of one strike was not on violent crimes, but on the suspected
drug use of public housing residents.
The story of Kimberly Preston in Oakland, California provides a striking
example of this focus. Preston faced eviction in 2000 after her son was found with
a wad of cash in his pocket. Preston stated that it was grocery money but police
found a ball of crack hidden in a wall nearby. While her son was never charged
65. Id.
66. Id.
67. Id.
68. Id.
69. Id.
70. Angela Caputo, Application of First Strike Policy is Questioned, N.Y. TIMES, Sept. 3, 2011,
http://www.nytimes.com/2011/09/04/us/04cncfirststrike.html?_r=0 (No community has
experienced more recent one-strike cases than Cabrini. Roughly one in five of the arrests of C.H.A.
tenants over the past six years involved its residents. A decade ago, nearly 13,000 people lived there;
today, just 444 units are reserved for public housing.).
with a crime, Ms. Preston received an eviction notice a few weeks later. Although
she was fortunate enough to secure a free lawyer and win her case, she reported
that 4 of the 14 families living in her courtyard had been evicted due to drugs
and crime. While she believed that one strike had some impact on crime, she
maintained that the Housing Authority was focusing on the wrong people and
that a better result could be achieved simply with better policing.71
Many have noted that the War on Drugs failed to extend similar policies to
other forms of housing that were traditionally held by white families. In his
formal remarks announcing the initiative in March of 1996, Clinton elaborated on
his reasoning. Public housing has never been a right; it has always been a
privilege. 72 Clintons remarks underscore the public consciousness on what
qualifies as subsidized housing and what does not. For example, while many
white families benefited from federal tax credits facilitating home ownership,
public housing residentsmany of whom were families of colorwere told that
their homes were a privilege that could be removed at any moment. In a 2001
article in the Amsterdam News, David Jones points out that if we want to ensure
that all housing that receives a government subsidy is tax-free, then we should
also deny the mortgage interest deduction credit to any homes identified for
drug crimes.73
This contrast was put into sharp relief by Ms. Connie Burton, a Tampa
Housing Authority resident, former building manager, and leader who vocally
opposed the one strike policy. After years of fighting the one strike policy, Ms.
Burton was evicted in 2005 based on her sons arrest for drug possession. I make
no apologies, Burton said. But because of the rules of public housing, we are
forced to abandon people who find themselves in a crisis. People reached out to
Gov. [Jeb] Bush when his daughter, Noelle, had problems with drugs. 74
Burtons comparison is especially apt since the Florida Governors Mansion was
also paid for with public funds.
The stated goals of the one strike policy - increased safety and crime
reduction- were important and certainly shared by many public housing
residents. However, in design, application, and implementation, the one strike
policy fit into and indeed, relied upon the countrys long history of criminalizing
people of color. The policy authorizes Housing Authorities to assign guilt and
criminality without the need for legal representation, the criminal standard of
beyond a reasonable doubt, or judges trained in the complexities of criminal
71. Janelle Brown, Evicting Grandma, SALON, Apr. 10, 2002, 5:30PM,
http://www.salon.com/2002/04/10/eviction_risk/ (Under the terms of a 1996 law upheld by the
court, any public housing resident can be evicted from his or her apartment if anyone living in or
visiting their home is discovered using drugs, or participating in other criminal activity. The rule
means that Lark, already overwhelmed with the business of mothering, has to take on the role of cop.
If she wants to stay in her apartment, she has to make sure that no one in it friends, visitors, her
addicted daughter takes drugs, sells drugs, hangs out with drug dealers or commits any crime. If
she fails, she could be evicted.).
72. Supra note 25.
73. Jones, supra note 47.
74. Tom Zucco, Community activist lost her voice, now loses her home, ST PETERSBURG TIMES, May 23,
2005, http://www.sptimes.com/2005/05/23/news_pf/Hillsborough/Community_activist_lo.shtml.
procedures. Furthermore, as significant amounts of scholarship have noted, one

strike painted all residents with the same brush by allowing Housing Authorities
to evict entire households for the actions of one member or even a guest.75 These
procedures require a base assumption that the accused party is already a
criminal, likely to be guilty, undeserving of the protections afforded to most
citizens, and perhaps less than fully human.
III. LEGAL ANALYSIS OF PROCEDURAL DUE PROCESS VIOLATIONS OF EVICTIONS

BASED ON ARRESTS
A. The Low Evidentiary Burden of Proof Constitutes a Violation of Procedural

Due Process
Although the genesis of one strike evictions stemmed from the War on
Drugs, public housing authorities ultimately expanded the ideology of one
strike and youre out to residents suspected of any crime. Today, public housing
residents can lose their public housing apartment on the grounds that they
allegedly engaged in criminal activity without a conviction or guilty plea.
Under the federal rule 24 C.F.R. 982.553, a public housing authority can
terminate the tenancy for a tenants suspected criminal activity. 76 After the
termination of the tenancy, the public housing authority may proceed to civil
court to initiate the eviction. Even more problematic, the language and ambit of
the federal regulation is so broad that an arrest itself is not necessary to evict a
tenant based on criminal activity. Theoretically, a landlord can evict a tenant for
suspected criminal activity using the testimony of neighbors who claim to
have witnessed the conduct. Once evicted, there is no guarantee that the tenants
can regain their apartments if they are subsequently absolved of criminal
liability. These evictions, in the name of safety, pose a great danger to the
procedural due process rights of subsidized housing tenants.
The loss of public housing based on suspected criminal activity without
solid proof conflicts with the Due Process Clause of the Fourteenth Amendment.
When an individual is deprived of property, the procedure must be fair and
thorough. As part of a fair process, the evidentiary burden of proof cannot be so
low as to allow the party commencing the process an unfair advantage. The use
of the preponderance of the evidence standard enables housing authorities to
meet their burden of proving that a tenant engaged in criminal activity by using
an arrest as proof of guilt. This section discusses two issues: (1) how arrests used
as proof of guilt violate procedural due process and (2) how an elevated
evidentiary burden can ensure procedural safeguards.
1. An Arrest is Not Proof of Guilt

The Due Process Clause attaches when the state deprives a person of
property, life or liberty. 77 Once the Due Process Clause is triggered, courts
75. See Dept of Hous. and Urban Dev. v. Rucker, 535 U.S. 125, 130 (2002).
76. 24 C.F.R. 982.553, supra note 19.
77. See Goldberg v. Kelly, 397 U.S. 254 (1970) (holding that welfare benefits are a statutory
determine what process is due by looking at (1) the importance of the private
interest at stake; (2) the risk of erroneous deprivation; and (3) any burdens the
due process pose on the state.78
In the context of evictions based on criminal activity, housing authorities are
essentially deputized as an arm of law enforcement by adjudicating and
excluding the resident. These evictions are problematic because, in many cases,
they are based on only an arrest. In these instances, an arrest is used as the basis
of proof that criminal activity took place.
a. Importance of the Private Interest at Stake

The importance of the interest at stake determines the weight of the due
process. For example, the evidentiary standard in a parental termination hearing
may be elevated because the interest at stake is the loss of parental rights. 79
Similarly, courts have elevated the evidentiary standard in naturalization cases
because a persons citizenship was at stake.
In some cases, the forfeiture of an individuals professional license was held
to be a procedural due process violation, and thus the license was rendered an
important private interest. However, shelter is equally if not more important of
an interest than a professional license. Indeed, New York State has a legal right to
shelter pursuant to the State Constitution. 80 Shelter is constitutionally
guaranteed. There is no similar constitutional right to a professional license.
Therefore, shelter and the right to a home is an important private interest that
merits an evidentiary burden which reflects the degree of importance.
b. Risk of Erroneous Deprivation

Another factor in determining what process is due is the risk of deprivation
by error. Within the context of an evidentiary threshold, courts consider whether
a person is likely to be deprived of his life, liberty, or property if the evidentiary
standard is not elevated. Evictions based on suspected criminal activity with
little evidence of guilt can lead to large margins of error. In Schware v. Bd. Of Bar
Exam of N.M., the U.S. Supreme Court held that an arrest does not prove guilt.81
In this 1957 case, a man seeking to be admitted to practice law was denied
because, among other reasons, he had been arrested. In the applicants favor, the
U.S. Supreme Court wrote,
The mere fact that a man has been arrested has very little, if any, probative value
in showing that he has engaged in any misconduct. An arrest shows nothing
more than that someone probably suspected the person apprehended of an
offense. When formal charges are not filed against the arrested person and he is
released without trial, whatever probative force the arrest may have had is
normally dissipated.82
entitlement under the Due Process Clause).

78. Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
79. See Santosky v. Kramer, 455 U.S. 745, 763 (1982)
80. Callahan v. Carey, No. 79-42582 (Sup. Ct., N.Y. 1979).
81. Schware v. Bd. Of Bar Exam of N.M., 353 U.S. 232 (1957).
82. Id. at 241.
The Court held that the New Mexico bar violated the applicants procedural
due process rights by denying his law license on the basis of his arrest, which did
not result in a conviction. Schware is significant because the low evidentiary
thresholdan arrestwas considered a due process violation. Therefore, the
state contravened the Fourteenth Amendment when it deprived a person of a
license on the basis of inadequate evidence. The following sub-sections explore
what process is due in the context of public housing evictions based on criminal
activity.
In addition, statistics indicate that an arrest does not prove guilt of the
underlying offense. In 2009, 26% of felony arrests in the largest U.S. counties did
not result in a conviction.83 In one Florida county alone, nearly 10% of arrests
resulted in dropped charges.84 This means that many people who are arrested are
not ultimately found guilty of the crime.85
The low evidentiary threshold is also problematic because arrest records do
not provide an accurate portrayal of the final disposition of the case. For
example, many arrest records do not show whether the arrest resulted in a
conviction or dismissal of the charge. 86 In 2012, ten states reported that fifty
percent or less of their arrest records had final dispositions.87 That means that for
many states, most arrest records do not comprise adequate verification that the
arrest occurred to the person accused. Even when criminal charges are
dismissed, tenants still need time to gather evidence to prove innocence because
83. Brian A. Reaves, Bureau of Justice Statistics, U.S. Dept of Justice, Felony Defendants in Large
Urban Counties, 2009 at 24, Table 21 (2013).
84. Cindy Swirko, Why Are Hundreds of Cases Dropped Over Insufficient Evidence?, THE
GAINESVILLE SUN (Mar. 11, 2016), http://www.gainesville.com/article/20121216/
ARTICLES/121219734. (In 2011, the [Alachua County Sheriffs Office] made 49,72 arrests and
dropped a total of 510 cases for insufficient evidence and related reasons. Over the same period, [the
Gainesville Police Department] made 10,845 arrests and dropped 917 cases for the same reasons.)
85. BJ Lutz, CHA Wont Evict Family of Acquitted Fenger Student, NBC CHICAGO 5, Mar. 2, 2016,
7:51 PM, http://www.nbcchicago.com/news/local/cha-bailey-greyer-eviction-reversal-
65055777.html. Sixteen year old Eugene Bailey was arrested on suspicion that he murdered his
classmate. Two days after his arrest, his family received a notice of termination, commencing the
eviction process from their Chicago Housing Authority apartment. Baileys mother wryly noted to
news reporters, They acted real fast and quick. Aint nobody went to trial or none of that. Thats
wonderful. Three weeks after Baileys arrest, prosecutors dropped the murder charge against him.
Due to high media coverage, the Chicago Housing Authority rescinded its notice of termination and
allowed the family to retain their subsidized apartment. Had the Chicago Housing Authority
proceeded with the eviction, it is likely that Bailey would have lost his subsidized home due to an
erroneous determination that he committed a crime. Baileys story is an illustration that an arrest
itself does not prove that the individual is guilty of the crime.
86. Some researchers have argued against using arrest records to determine criminality. See
Delbert S. Elliot, Lies, Damn Lies, and Arrest Statistics, Sutherland Award Presentation, American
Society of Criminology (Nov. 1995)
87. U.S. GOVT ACCOUNTABILITY OFFICE, Criminal History Records: Additional Actions Could
Enhance the Completeness of Records Used for Employment-Related Background Checks at 19, Feb. 2015,
http://www.gao.gov/assets/670/668505.pdf. According to the same report, of thirteen states, 51 to
75 percent had arrest records with final dispositions. Only twenty states had a 76 to 100 percentage of
arrest records with final dispositions. FBI officials notes, it is not possible for states to have 100
percent complete records because it can take more than 1 year for criminal felony cases to conclude
and disposition information to be entered into criminal record systems.
the arrest record does not show the outcome of the case.88
In some instances, public housing authorities have successfully evicted a
tenant using the arrest record alone as evidence. In response to these evictions,
HUD released a circular in November 2015 which guided public housing
authorities away from the use of an arrest as evidence of criminal activity. In
pertinent part, the circular provided:
An arrest record can trigger an inquiry into whether there is sufficient evidence
for a PHA or owner to determine that a person engaged in disqualifying criminal
activity, but is not itself evidence on which to base a determination. PHAs and
owners can utilize other evidence, such as police reports detailing the
circumstances of the arrest, witness statements, and other relevant
documentation to assist them in making a determination that disqualifying
conduct occurred. Reliable evidence of a conviction for criminal conduct that
would qualify an individual for tenancy may also be the basis for determining
that the disqualifying conduct in fact occurred.89
Although the HUD circular makes clear that an arrest is not proof of guilt, it
does not go so far as to require that public housing authorities postpone an
eviction until the tenant is convicted or at least the criminal case is resolved.
Instead, the HUD circular focuses on verifiable arrests. In many one strike
cases, no officer or witnesses testified to prove that the tenant engaged in
criminal activity and therefore the arrest itself was never verified. In response
to these evictions, the HUD circular emphasizes that a public housing authority
should not use the arrest record itself as the sole evidence to prove guilt. After
all, some arrest records might even have the wrong name. The circular is clear,
however, that a public housing authority may supplement the arrest record with
testimony of a police officer to verify that the arrest occurred. Therefore, the
HUD circular does not squarely address the overarching issuethat tenants
should not lose their homes based on an arrest that has not yet been resolved
with a conviction or guilty plea in criminal court.
c. Burden on the State

Lastly, a court considers whether the proposed process would pose an
administrative burden on the state. In this case, an elevated evidentiary standard
(as a mechanism of due process) would not present an administrative burden.
88. CORINNE CAREY, HUMAN RIGHTS WATCH, NO SECOND CHANCE: PEOPLE WITH CRIMINAL
RECORDS DENIED ACCESS TO PUBLIC HOUSING (2004), https://www.hrw.org/report/2004/11/17/no-
second-chance/people-criminal-records-denied-access-public-housing (PHAs recognize that
criminal justice records are sometimes inaccurate, and they have different ways of dealing with
inaccuraciesfrom allowing applicants to view their records before housing officials see them, to
confirming any negative information by requiring applicants to submit fingerprints. But most PHAs
simply rely on applicants to challenge their denials at informal hearings. This is not an effective way
to ensure that applicants are treated fairly, because [a]pplicants have difficulty availing themselves of
their right to challenge denials.).
89. U.S. Dept of Housing and Urban Development Office of Public and Indian Housing,
Guidance for Public Housing Agencies (PHAs) and Owners of Federally-Assisted Housing on Excluding the
Use of Arrest Records in Housing Decisions, (Notice PIH 2015-19), 4,
http://portal.hud.gov/hudportal/documents/huddoc?id=PIH2015-19.pdf.
The adjudication process in criminal cases is lengthy. Accordingly, tenants who

have been arrested may not have their criminal case resolved before the civil
eviction case ends. A legal services lawyer crystallized the issue: The problem is
the criminal justice system moves slow, but the eviction process it moves really
fast.90
To that end, the U.S. Department of Justice reported that in 2009, eighty-five
percent of arrests in the largest U.S. counties were adjudicated within one year.91
Very few cases are resolved quicklyin fact, only five percent of these cases
were adjudicated in one week. Although New York has a speed trial law that
sets of a target of six months after an arraignment, in practice, there are many
ways to stretch that limit: court scheduling delays do not count toward that time
limit and prosecutors can pause the clock by asking for a few days postponement
when the court cannot reschedule a case for months.92 These external factors
have contributed to the notoriously lengthy gulag in Bronx criminal court
where the average length of time is 517 days from the arrest to final disposition
of the case.93
2. Safeguarding Tenants Due Process Rights: Why We Need to Elevate the

Evidentiary Standard
One approach to ensuring procedural due process in evictions based on
criminal activity is to heighten the evidentiary threshold. This section will
discuss three evidentiary standards: reasonable doubt, clear and convincing
evidence, and preponderance of the evidence.
The legal burden of proof in most civil cases is the preponderance of the
evidence standard. One of the lowest burden thresholds, the preponderance of
the evidence standard requires that litigants prove more likely than not that
the accused engaged in the underlying conduct.94 Thus, by its very nature, there
could be some doubt about whether the accused party committed the conduct.
90. Richard A. Webster, Arrest Record Not Enough to Ban Public Housing Rental, HUD Says, THE
TIMES PICAYUNE (Nov. 4, 2015), http://www.nola.com/politics/index.ssf/2015/11/
arrest_record_not_enough_to_ba.html.
91. Reaves, supra note 85.
92. William Glaberson, Faltering Courts, Mired in Delays, N.Y. TIMES (Apr. 13, 2013),
http://www.nytimes.com/2013/04/14/nyregion/justice-denied-bronx-court-system-mired-in-
delays.html (The number of felony cases citywide that exceed the courts own guidelines for
excessive delay180 days in most felony caseshas more than doubled since 2000, even as the total
number of felony cases has dropped by nearly a quarter.).
93. Kalief Browder was arrested at age 16 and detained at Rikers for three years until
prosecutors finally dropped the charges against him. Browders ultimate suicide shed light on not
only the delayed process of criminal cases in New York, but also the mental and physical toll that
false arrests have on victims. For more on Kalief Browder and the Bronx criminal court gulag, see
James C. McKinley Jr., Calls Mount for Changes to Speed Criminal Cases to Trial, N.Y. TIMES (June 17
2015), http://www.nytimes.com/2015/06/18/nyregion/calls-mount-for-changes-to-speed-criminal-
cases-to-trial.html (Previous efforts to reduce court backlogs have met with only limited success.
Over the last two decades, the average time New York courts take to resolve felony cases has
increased even as the number of arrests has declined generally, said Michael P. Jacobson, a former
city correction commissione[r].).
94. McEwen v. Tennessee Dept. of Safety, 173 S.W. 3d 815, 825 (Tenn. Ct. App. 2005).
In some instances, public housing tenants have lost court battles and have
been subsequently evicted because the preponderance of the evidence standard
tipped the scale in favor of the housing authority. For example, in Hoopa Valley
Housing Authority v. Hunsucker, a tribal court in California held that the Hoopa
Housing Authority could evict a tenant who was arrested but not convicted
because the preponderance standard was such a low threshold. 95 The court
reasoned that a criminal conviction is not required to prove drug-related criminal
activity because the preponderance of the evidence threshold is so low.
The preponderance standard differs from beyond a reasonable doubt
employed in criminal cases, which leaves no room for error. 96 To meet the
reasonable doubt standard, a litigant must use evidence to show that the party
committed the act without the shadow of a doubt. Reasonable doubt is the
highest evidentiary burden because it leaves little room for error. As such, it is
almost never used in civil cases.
Clear and convincing evidence is considered the middle ground between
the preponderance of the evidence standard and beyond a reasonable doubt. If
the clear and convincing evidence standard were required to prove that the
tenant engaged in criminal activity, solid proof, such as a conviction, would
likely be necessary to satisfy the burden of proving that a tenant engaged in
criminal activity. Therefore, elevating the evidentiary burden would require
housing authorities to prove that the tenant is guilty.
The U.S. Supreme Court has held that a low evidentiary burden can rise to a
violation of procedural due process. In Schneiderman v. U.S., the Supreme Court
found that denaturalization cases must use the clear and convincing evidence
standard rather than the preponderance standard because rights once
conferred, should not be lightly revoked.97 Similarly, in Woodby v. Immigration
and Naturalization Services, the petitioner argued that the reasonable doubt
standard should be used in his deportation civil proceeding because the issue
related to a criminal element.98 The U.S. Supreme Court reasoned that while the
reasonable doubt standard would not apply here, the clear and convincing
95. Hoopa Valley Hous. Auth. v. Hunsucker, No. Ud-13-003/A-13-003 (Feb. 27, 2014). See also
Martinez v. Hous. Auth, of Dekalb County, 592 S.E.2d. 245 (Ga. Ct. App. 2003) (upholding the
termination of tenancy of public housing residents who were arrested for drug possession but police
found no drugs no accomplice. Tenants eviction upheld because court reasoned that under the
preponderance of the evidence standard, a jury could have concluded that the tenant engaged in
criminal activityit did not require proof that the tenant actually engaged in the activity.).
96. In one of the first cases to use the reasonable doubt standard, Miles v. U.S., 103 U.S. 304, 310
(1880), the U.S. Supreme Court wrote, Proof beyond a reasonable doubt is such as will produce an
abiding conviction in the mind to a moral certainty that the fact exists that is claimed to exist, so that
you feel certain that it exists. A balance of proof is not sufficient. A juror in a criminal case ought not
to condemn unless the evidence excludes from his mind all reasonable doubt; unless he be so
convinced by the evidence, no matter what the class of the evidence, of the defendants guilt, that a
prudent man would feel safe to act upon that conviction in matters of the highest concern and
importance to his own dearest personal interests.
97. Schneiderman v. United States, 320 U.S. 118, 125 (1943). See also Chaunt v. United States, 364
U.S. 350, 354 (1960) (holding that denaturalization cases must use the clear and convincing evidence
standard).
98. Woodby v. Immigration and Naturalization Servs., 385 U.S. 276 (1966).
evidence standard was appropriate. The Court reasoned that while a deportation
case is not a criminal proceeding, it does not syllogistically follow that a person
may be banished from this country upon no higher degree of proof than applies
in a negligence case.99
Arguably, loss of a federally-subsidized apartment may not be as life-
altering as deportation. However, the U.S. Supreme Court has singled out civil
cases which involve a quasi-criminal wrongdoing and ruled that these
proceedings should have a higher burden than preponderance of the evidence.
The interests at stake in those cases are deemed to be more substantial than
mere loss of money and some jurisdictions accordingly reduce the risk to the
defendant of having his reputation tarnished erroneously by increasing the
plaintiffs burden of proof.100 The Courts reasoning shows that the evidentiary
standard must align with the weight of the private interest at stake. In the cases
at hand, a public housing tenants lease is terminated for a breach of lease based
on alleged criminal activity. Although a breach of lease is a civil matter, its
underlying claim is that the tenant breached the lease by engaging in criminal
activity. Therefore, in order to meet its legal burden, a housing authority must
present evidence that the tenant engaged in criminal activity.
Moreover, the elevation of the evidentiary standard also takes into account
the imbalance of power between the litigants. In Santosky v. Kramer, two parents
challenged the use of the preponderance standard in a parental termination
proceeding on the grounds that it violated procedural due process.101 The U.S.
Supreme Court raised the burden of proof from the preponderance standard to
clear and convincing evidence, reasoning that parents in the proceedings tend to
be poor, uneducated or members of minority groups and thereby vulnerable
to judgments based on cultural or class bias.102 In bolstering its holding, the
Court also relied on the fact that the states attorney is normally an expert on the
issues and the agency (terminating parental rights) often is able to call its own
employees as witnesses.103 Therefore, as the Court recognized, the resources are
inherently mismatched between the litigants when the evicted resident is
challenging a housing authority in court.
B. Additional Procedural Due Process Violations in Criminally-based

Evictions
Aside from the low evidentiary standard, there are additional procedural
due process violations when a tenant is evicted from his or her home on the basis
99. Id. at 285.

100. Addington v. Texas, 441 U.S. 418, 424 (1979). In this case, the appellant asserted that his
procedural due process rights were violated when a court used the preponderance of the evidence
standard rather than reasonable doubt to determine whether he should be involuntarily committed to
a state mental institution. The Court held that while the reasonable doubt standard was too extreme
as it may impose a burden the state cannot meet, the clear and convincing evidence standard stuck
a fair balance.
101. See Santosky v. Kramer, 455 U.S. 745 (1982).
102. Id. at 763.
103. Id.
of criminal activity without solid proof. This section analyzes: (1) inadequate
termination notices; (2) Fifth Amendment violations; and (3) the effect of the lack
of right of counsel in civil proceedings.
1. Inadequate Notices
In general, a landlord is required to serve the tenant with a written
pretermination notice before commencing an eviction proceeding in court. The
notice specifies the reason based on which the landlord seeks to terminate the
tenancy and sometimes offers the tenant the opportunity to cure the defect. To
satisfy jurisdictional requirements, the pretermination notice cannot be vague
and must specify the acts or conduct giving rise to the breach. For example, if a
landlord seeks to terminate a tenancy based on the tenants unauthorized
alteration of the apartment, the notice must specify the alleged conduct by the
tenant that amounted to the breach of lease. If a landlord alleges that a tenant
breached a provision of the lease, the landlord must cite to that provision. The
purpose of a clear and unambiguous termination notice is to provide the tenant
with the opportunity to prepare an adequate defense. If, for example, the tenant
is accused of engaging in criminal activity, it is insufficient to fail to disclose the
criminal statute which the tenant allegedly violated.
Nevertheless, some states have held that a tenant can be evicted on the basis
of engaging in criminal activity, even where the pretermination notice does not
specify what crime the tenant allegedly committed. In Housing Authority of City of
New Haven v. DeRoche,104 the Housing Authority of the City of New Haven sent a
tenant a termination notice alleging that the tenant became intoxicated and
started a fire in her apartment which damaged the property. The notice provided
that the tenant violated terms of her lease and also that she engaged in criminal
activity. However, the notice neither specified the crime that the tenant allegedly
committed nor cited any penal provisions to bolster its claims.
The DeRoche court held that a public housing authority need not specify the
criminal statute the tenant violated because federal regulations authorize a
termination of tenancy regardless of whether the tenant has been arrested or
charged.105 There, the tenant was not arrested or charged with any crime. This is
a gross violation of procedural due process because it allows for a vague
predicate notice which relies on an allegation that a crime took place but absolves
the landlord of the responsibility to list the actual crime or criminal statute.
2. Fifth Amendment Violations

In parallel proceedings in which two cases are litigated in separate courts on
a single underlying issue, the criminal case typically precedes the civil case to
avoid prejudicing the defendant. 106 Civil courts are not required to stay the
proceeding until the resolution of the parallel criminal case, but the parties in the
104. Hous. Auth. of City of New Haven v. DeRoche, 962 A.2d 904 (Conn. App. Ct. 2009).
105. Id. at 911.
106. For example, a defendant might face a homicide charge in criminal court and a wrongful
death claim in civil court regarding the same claim.
civil case may request to stay the proceeding until the criminal case is resolved.107
Although a tenant is not entitled to a stay of a civil eviction proceeding (either at
the administrative termination of tenancy stage or the eviction case in civil court)
when he has a pending criminal case, the strongest argument to stay the civil
eviction process is that forcing the tenant to litigate it would violate her Fifth
Amendment rights to avoid self-incrimination.
Nevertheless, the remedy of a stay is undermined by the fact that federal
regulations authorize a public housing authority to terminate the federal benefit
regardless of whether the tenant has been arrested or convicted of a crime.
Therefore, courts have no incentive to wait for a conviction because the claim
itself can be proven without said conviction. This presents thorny issues for
subsidized housing tenants.
Allowing a civil case to proceed simultaneously or before the resolution of a
criminal case results in detrimental consequences to the tenant related to the
right of counsel. The statements by the tenant in the civil case can be used against
the tenant in the criminal case. For example, HUD regulation 982.555(e)(5)
provides that evidence in an administrative hearing may be considered without
regard to admissibility under the rules of evidence applicable to judicial
proceedings. 108 Many courts have interpreted this provision to mean that
hearsay is admissible evidence.109 Therefore, the admission of hearsaysuch
as a neighbor testifying as to what he hear about tenants conductcould result
in the tenants eviction.110 Some case precedent affords litigants protection from
the use of legal loopholes to use a civil case to build a criminal case.111 However,
107. DeSiervi v. Liverzani, 136 A.D.2d 527 (N.Y. 1988) ([T]he pendency of a criminal proceeding
does not give rise to an absolute right under the United States or New York State Constitution to a
stay of a related civil proceeding.).
108. Informal Hearing for Participant, 24 C.F.R. 982.555(e)(5) (2015).
109. See, e.g., Costa v. Fall River Hous. Auth., 903 N.E.2d, 1108 (Mass. App. Ct. 2009) (We read
the regulations specific reference to the inapplicability of formal rules of evidence as support for the
conclusion that there is no categorical prohibition of hearsay.).
110. Id. at 627 (holding that hearsay evidence may form the basis of a PHAs decision to
terminate Section 8 assistance so long as that evidence contains substantial indicia of reliability.). See
also Figgs v. Boston Hous. Auth., 14 N.E.3d 229 (Mass. App. Ct. 2014) (holding that a hearing officers
reliance on hearsay to determine the termination of a housing subsidy was proper).
111. See Eisenberg, 654 F.2d 1107 (5th Cir. 1981) (holding that plaintiffs attempts to depose a
witness in a civil case were a veiled attempt to bypass the stricter evidentiary rules in a parallel
criminal proceeding related to the same claim); Campbell v. Eastland, 307 F.2d 478, 487 (5th Cir. 1962)
(A litigant should not be allowed to make use of the liberal discovery procedures applicable to a
civil suit as a doge to avoid the restrictions on criminal discovery and thereby obtain documents he
would not otherwise be entitled to for use in his criminal suit); United States v. Tison, 780 F.2d 1569,
1573 (11th Cir. 1986) (referring to 18 U.S. Code 1514 of the federal rules to restrain harassment of
victims, the court wrote, Filing a civil lawsuit to avoid the restrictions on criminal discovery and
thereby obtain documents that a defendant would not ordinarily be entitled to for use in his criminal
case, while at the same time attempting to intimidate a witness from providing accurate information
to federal law officials is exactly the kind of harassment this legislation was designed to eliminate.);
F.D.I.C. v. Chang, 1986 WL 3518, *1 (holding that a stay is granted to preclude parties from using the
broad civil discovery rules to circumvent the more restrictive rules of criminal discovery); Larouche
Campaign v. Fed.l Bureau of Investigation, 106 F.R.D. 500, 501 (1985) (court granted motion for a stay
of civil court proceeding under the general proposition that the broad rules of civil discovery cannot
be used to circumvent the more restrictive rules of criminal discovery.).
two factors present problems. First, the federal regulations essentially undercut
any argument for a stay because an arrest or conviction is not required to evict
the tenant. Second, civil cases typically proceed quicker than criminal cases.
Although the indigent tenant is protected by right of counsel in criminal cases,
the same tenant does not have a court-appointed counsel in a civil case. Without
that protection, the tenant may not know the effect of his statements or even
adequately prepare his defense in the civil case.
3. Right of Counsel Does Not Attach in Civil Proceedings

Unlike defendants in criminal cases, tenants in civil cases do not have a
legal right to counsel. Allowing a civil case to proceed simultaneously or before
the resolution of a criminal case adversely affects a tenants right of counsel in
criminal matters. For example, the statements made by the tenant in the civil case
or administrative proceeding can be used against the tenant in the related
criminal case. The end result is that prosecutors could use the civil case discovery
against the tenant in the criminal case.
Most public housing residents have low-income. The states attorney is
normally an expert on the issue while most tenants are pro se. The state has
caseworkers, most of whom are its own employees, to call on as witnesses. In
New York, 99% of tenants are unrepresented in eviction proceedings. 112
Therefore, it is much easier for any housing authority to make a case against the
public housing residents because it typically has a wealth of resources at its
disposal.
IV. THE DISPARATE IMPACT CREATED BY PUBLIC HOUSING EVICTIONS BASED ON

CRIMINAL ACTIVITY
In 2009, the United Nations Special Rapporteur on the Right to Adequate
Housing singled out one strike policies and their discriminatory effect on public
housing residents.113 In many ways, tenants who face eviction on the basis of an
unlawful arrest face double disparate impact. At the first stage, people of color
are disproportionately arrested on the basis of race. At the second stage, these
tenants subsequently face an eviction on the basis of an unlawful arrest.
The Davis v. NYCHA case, litigated by the NAACP Legal Defense Fund,
shed light on discriminatory stop and frisk practices on public housing grounds
in particular. The case challenged the practice of the New York Police
Department, which heavily patrolled, stopped, and arrested residents of public
housing. Many of these arrests were unlawful, the complaint alleged, because
112. Frank G. Runyeon, Few Benefit from Millions Spent on Anti-Eviction Lawyers, CITY & STATE,
(Nov. 3, 2015), http://www.cityandstateny.com/articles/politics/new-york-city/few-benefit-from-
millions-spent-on-anti-eviction-lawyers.html#.VzIqaU32aUk.
113. Raquel Rolnik, Report of the Special Rapporteur on Adequate Housing as a Component of the Right
to an Adequate Standard of Living, and on the Right to Non-Discrimination in this Context, UNITED
NATIONS HUMAN RIGHTS COUNCIL (Dec. 26, 2011),
http://www.ohchr.org/Documents/Issues/Housing/A-HRC-19-53_en.pdf. (While the Special
Rapporteur recognizes the duty of the State to protect its population, she is concerned by the
discriminatory nature of these practices towards the residents of public housing, and their negative,
fragmenting effects on families.).
they were based on the residents race or ethnicity.114 A black public housing
resident was more likely to be stopped and arrested than a white public housing
resident. When a public housing resident is unlawfully arrested on the basis of
race and is subsequently evicted due to the unlawful arrest, housing authorities
are creating a disparate impact of race-related evictions.
The Fair Housing Act prohibits policies and practices by a state actor which
result in a racially skewed adverse impact, even if there is no intention to
discriminate. 115 According to HUD, while having a criminal record is not a
protected characteristic under the Fair Housing Act, criminal history-based
restrictions on housing opportunities violate the Act if, without justification, their
burden falls more often on renters or other housing market participants of one
race or national origin over another (i.e., discriminatory effects liability). 116
African Americans and Hispanics are disproportionately affected by systemic
racial and ethnic disparities, including but not limited to those within the
criminal justice system. HUD itself concluded that criminal records-based
barriers to housing are likely to have a disproportionate impact on minority
home seekers.117 Moreover, because criminal records can include an arrest that
never led to a conviction,118 many individuals encounter significant barriers to
securing housing, including public and other federally-subsidized housing,
because of their criminal history.119
The Fair Housing Act requires housing providers who consider ones
criminal history to show a legally sufficient justification for doing so.120 Whether
a policy or practice that restricts a persons access to housing on the basis of their
criminal history has a disparate impact is assessed under a three-step, burden-
shifting analysis.121 The first step requires a plaintiff to prove that the policy or
practice actually or predictably results in disparate impact on a group of
persons because of race or national origin.122 Supporting evidence may include
national statistics where state or local supporting statistics are not readily
available and there is no reason to believe they would differ markedly from the
former.123 To these ends, applicant data, tenant files, census demographic data,
and localized criminal justice data may also be used to support a claim.
114. Davis v. City of New York, 10 Civ. 0699 (SAS), 2013 U.S. Dist. LEXIS 74189, at *3 n.6 (May 24,
2013), http://www.naacpldf.org/case/davis-vs-city-new-york.
115. 42 U.S.C. 3604 (2011)
116. Office of General Counsel Guidance on Application of Fair Housing Act Standards to Use of
Criminal Records by providers of housing and Real-Estate Transactions, U.S. Dept of Housing. &
Urban Development (Apr. 4, 2016), http://portal.hud.gov/hudportal/ documents/huddoc?id=
HUD_OGCGuidAppFHAStandCR.pdf.
117. Id.
118. Camila Domonoske, Denying Housing Over Criminal Record May be Discrimination, Feds Say,
NPR (Apr. 4, 2016), http://www.npr.org/sections/thetwo-way/2016/04/04/472878724/denying-
housing-over-criminal-record-may-be-discrimination-feds-say
119. U.S. Dept of Housing and Urban Development Guidance on Application of Fair Housing
Act Standards, supra note 118.
120. Id.
121. Id.
122. Id. at 3.
123. Id.
The second step requires the housing provider to prove that the policy or
practice being challenged is necessary to serve a substantial, legitimate,
nondiscriminatory interest and that it in fact achieves that specific interest.124
While courts may consider interests such as tenant safety and property
protection, for example, a housing provider must prove vis--vis reliable
evidence that its policy or practice actually assists in maintaining alleged
interests. 125 Bald assertions based on generalizations or stereotypes are not
sufficient to satisfy this burden.126 In particular, exclusions based solely on one or
more prior arrests not resulting in conviction do not satisfy this burden.127 While
exclusions based on prior convictions are sufficient evidence to prove a person
engaged in criminal conduct, housing providers must still prove the policy or
practice is necessary to serve a substantial, legitimate, nondiscriminatory
interest. 128 A housing provider can reduce the discriminatory impact by
showing a policy or practice that is more tailored, using factors such as the type
of crime, the nature and severity of the conviction, and the date of the conviction,
but ultimately the analysis is fact-specific and determined on a case-by-case
basis.129
Evictions based on criminal activity have racially disparate impact because
people of color are disproportionately arrested. Specifically, as the Davis v.
NYCHA case shows, people of color are targeted for arrest on public housing
grounds. Therefore, any evictions based on an unlawful arrest contribute to the
disparate impact on people of color by their exclusion from public housing.
V. RECOMMENDATIONS
As shown, the one strike policy for public housing raises significant due
process and fair housing issues. Therefore, public housing authorities should
only be permitted to initiate evictions if the resident is found guilty of criminal
charges. This could be accomplished nationally through a change in HUD
regulations or federal law. While imperfect, the criminal justice system at a
minimum will ensure that the public housing resident receives the benefit of the
right to counsel and the beyond a reasonable doubt standard.130 Public housing
authorities should leave the determination of guilt on criminal issues to our
criminal justice system and weigh the appropriate action only after that system
has made its determination.
124. Id.
125. Id.
126. Id. at 5.
127. Id.
128. Id. at 6.
129. Id.
130. During the criminal proceeding, it is crucial that defense attorneys inform public housing
residents of the potential collateral consequences of any guilty pleas or convictions so that residents
can make informed decisions during the criminal case. In 2010, the Supreme Court found that defense
attorneys have an obligation to inform defendants of the possible immigration consequences of a
guilty plea. See Padilla v. Kentucky, 130 S.Ct. 1473 (2010). While no such obligation exists for other
civil penalties, we believe that effective counsel for public housing residents accused of crimes should
include information about the possible collateral consequences of guilty pleas, including eviction.
Furthermore, public housing authorities should develop guidelines to

ensure that evictions are only pursued when tenants pose a significant threat to
the safety of other residents. One strikes broad mandate allows for public
housing residents to be evicted based on offenses as minor as trespassing and
often leads to significant law enforcement presence in public housing and the
accompanying criminalization of large numbers of public housing residents.
Affected tenants face eviction, family separation, and homelessness. PHAs
should never pursue evictions for offenses that are unrelated to the safety of
other public housing residents. For offenses that may affect the safety of other
public housing residents, PHAs should develop guidelines that allow them to
make individualized determinations. These determinations must balance the
current risks to tenant safety against the potential harm caused by evictions and
family separation.
The recent HUD circular emphasizing that arrests alone should not be used
as evidence in the pursuit of evictions is a step in the right direction.131 While still
insufficient, this shift demonstrates a desire to reduce the number of one strike
evictions pursued in public housing. HUD should go one step further and issue
new policy guidance as outlined above. These recommendations will ensure that
public housing residents are not asked to choose between their safety and their
basic rights.
131. U.S. Dept of Housing and Urban Development Guidance on Application of Fair Housing
Act Standards, supra note 118.

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INNOCENT UNTIL PROVEN GUILTY?:

LEAH GOODRIDGE AND HELEN STROM

Copyright 2016 Leah Goodridge and Helen Strom.

INNOCENT UNTIL PROVEN GUILTY? 3

II. OVERVIEW OF THE ONE STRIKE POLICY

A. The History of the One Strike Policy

The HUD policy released in April 1996 stated that:

B. The Impact of One Strike

INNOCENT UNTIL PROVEN GUILTY? 5

Developments, N.Y. DAILY NEWS (Nov. 9, 2015), http://www.nydailynews.com/news/politics/de-

INNOCENT UNTIL PROVEN GUILTY? 7

C. One Strike and Black Criminality: The Colored Lines of Criminality in

1. Who Lives in Public Housing?

housing had dropped to 17% of the median family income in America. 45

2. Perceptions and Myths on Crime in Public Housing

45. Badger, supra note 41.

INNOCENT UNTIL PROVEN GUILTY? 9

53. Id. at 155.

3. The Origins of Black Criminality

58. U.S. CONST. art. IV, 2, cl. 3.

INNOCENT UNTIL PROVEN GUILTY? 11

of race-neutral language. Former U.S. President Richard Nixons law-and-order

4. The War on Drugs as Pretext for the War on the Poor

INNOCENT UNTIL PROVEN GUILTY? 13

procedures. Furthermore, as significant amounts of scholarship have noted, one

III. LEGAL ANALYSIS OF PROCEDURAL DUE PROCESS VIOLATIONS OF EVICTIONS

A. The Low Evidentiary Burden of Proof Constitutes a Violation of Procedural

1. An Arrest is Not Proof of Guilt

a. Importance of the Private Interest at Stake

b. Risk of Erroneous Deprivation

entitlement under the Due Process Clause).

INNOCENT UNTIL PROVEN GUILTY? 15

c. Burden on the State

INNOCENT UNTIL PROVEN GUILTY? 17

The adjudication process in criminal cases is lengthy. Accordingly, tenants who

2. Safeguarding Tenants Due Process Rights: Why We Need to Elevate the

INNOCENT UNTIL PROVEN GUILTY? 19

B. Additional Procedural Due Process Violations in Criminally-based

99. Id. at 285.

2. Fifth Amendment Violations

INNOCENT UNTIL PROVEN GUILTY? 21

3. Right of Counsel Does Not Attach in Civil Proceedings

IV. THE DISPARATE IMPACT CREATED BY PUBLIC HOUSING EVICTIONS BASED ON

INNOCENT UNTIL PROVEN GUILTY? 23

INNOCENT UNTIL PROVEN GUILTY? 25

Furthermore, public housing authorities should develop guidelines to

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