Volume 6, Issue 4, Fall 1996

Public Housing Safety Versus Tenants' Rights
Dennis Saffran

On the evening of Sunday, August 27 last year, 4-year-old Shamone Johnson was caught in the crossfire between two rival drug gangs and killed while roller-skating outside her godmother s home in a Brooklyn housing project. Recent actions by Congress and President Clinton, and by a federal judge in New York, will finally make it easier for public housing authorities to protect poor children like Shamone from this kind of vicious drug-related violence. Yet these actions are staunchly opposed by some groups that claim to be champions of the poor.

In March, the president signed the Housing Opportunity Program Extension ("HOPE") Act of 1996, which strengthens the ability of federally subsidized housing projects to screen out and evict drug dealers and other criminals who prey on their law-abiding neighbors. And he announced a "One Strike And You re Out" policy, which encourages housing authorities to take full advantage of these new powers. Under the policy, an authority s receipt of federal funds will be based, in part, on its use of a lease that clearly provides that any drug-related or other serious criminal activity by a member of a household is grounds for eviction. The policy also encourages housing authorities to more effectively screen applicants for admission by using access to federal and state criminal conviction records provided by the HOPE Act. The "One Strike" policy was drafted by Housing and Urban Development Secretary Henry Cisneros, one of the more liberal members of the Clinton administration. He noted that "the number one group of people" demanding such toughened public housing eviction and screening rules "are the residents themselves," who have been forced to "put children to sleep in bathtubs" and otherwise abandon their rights and their dignity. Yet the policy was branded as unconstitutional by the American Civil Liberties Union.

While the "One Strike" policy has not been officially challenged, a court case in New York earlier this year involved similar issues. In April, the New York City Housing Authority (the nation s largest provider of low-income housing) and tenant leaders represented by the American Alliance for Rights and Responsibilities prevailed in their attempt to modify a 25-year-old federal court decree that had made it particularly difficult to evict drug dealers from public housing in New York. The 1971 consent decree in the Escalera case required the Housing Authority to go through a lengthy two-step eviction proceeding lasting up to two years. This made it impossible for the Authority to take advantage of New York State s "Bawdy House Law," which allows for expedited eviction proceedings (without abandoning due process protections) in drug cases. Efforts by the administrations of both former Mayor David Dinkins and current Mayor Rudolph Giuliani to modify the 1971 decree were vigorously opposed by the Legal Services Corporation and the Legal Aid Society, who argued that no change was called for because "the incidence of drug-related crime is not significantly different today than in the 1970s." This argument was squarely rejected both by the court and by the elected tenant representatives, which intervened in the case in support of modifying the decree.

Innocent Grandmothers

Opponents of these reforms have largely abandoned the argument that the drug dealers themselves have a right to remain in public housing. Rather, they raise the specter of innocent family members who may face eviction as the result of the illegal activity of a member of their household. This "innocent grandmother" argument seems compelling, but it ignores a simple and more compelling reality: public housing is a scarce resource available only to a fraction of the poor people who desperately need it. This means that criteria other than need alone must be used to determine who gets this housing. There are three poor families on the waiting list for every unit of public housing, and the vast majority are fully law-abiding and therefore would not endanger the safety of other tenants. Thus, as John Atlas and Peter Dreier have noted in The American Prospect, screening and eviction of problem families "does not exclude more tenants; it simply gives priority to certain tenants on criteria other than first come, first serve."

In this situation, the most important question is not whether a grandmother or other family member of a drug dealer is completely innocent or tacitly acquiescent, but rather how society should allocate scarce housing resources in order to do the most good and cause the least suffering. Looked at in this way, the choice between a poor family that, however innocently, has let its apartment be used as a base of operations for terrorizing its neighbors, and an equally poor family on the waiting list that would not pose such a threat, is a painful one but a clear one. As President Clinton stated in announcing the "One Strike" policy: "The people who are living [in public housing] deserve to be protected, and the good people who want to live [there] deserve to have a chance," and it is therefore "morally wrong" to allow households harboring criminals "to use up homes that could make a big difference in the lives of decent families." The same point was made in Edison v. Pierce by a federal appellate court in upholding the screening of undesirable tenants from participation in the Section 8 housing voucher program:

At the heart of this case is the fact that there are not enough...housing units to accommodate all who are eligible.... At issue are the rights not only of those...who were denied...benefits but also of those who received those benefits in the[ir] stead.

But, opponents respond, why not require only the criminal to move rather than evicting the entire household? In fact, both the One Strike policy and the New York Bawdy House Law that was at issue in Escalera do allow for such individualized discretion in the case of tenants who were genuinely unable to prevent the use of their apartments for criminal activity. In such situations, the family may be allowed to remain on the condition that it agree to a permanent order of exclusion barring the offender from the premises. The hard truth, however, is that this approach needs to be used sparingly because it usually does not work-and it is actually least likely to work in those cases in which the plight of the tenant-of-record is the most sympathetic. The drug dealers, gang members, and other criminals subject to these orders of exclusion are not the kind of people who tend to have a lot of respect for such documents, especially since the sanction for violation is directed against their families rather than against them personally. And it is precisely those thugs who bullied, intimidated, and if necessary beat their families into complicity in their illegal activity-that is, those whose families are most truly innocent-who are the least likely to remain away from profitable turf out of either respect for the law or tender concern that grandma might lose her apartment. Respecting Due Process-and Respecting the Poor The One Strike policy and the Bawdy House Law provide tenants with the right to a hearing on the charges of illegal activity prior to eviction, but do not require a criminal conviction on these charges. Opponents point to this as a grievous violation of rights-an argument that has a surface appeal but is ultimately specious. As stated by Assistant Attorney General Walter Dellinger, a former law professor with a reputation as a staunch civil libertarian and liberal:

Eviction is a civil, not a criminal matter. Tenants in both public and private housing are subject to eviction for violations of appropriate lease terms, whether it is keeping an unlawful pet or violating any of the other reasonable terms of a lease. Lease terms prohibiting [criminal] activities like this are no different. The fact that no conviction is required does not leave public housing authorities free to evict tenants on the basis of speculation or suspicion [since] tenants have... the right to a hearing.

The criminal standard of "proof beyond a reasonable doubt" has never been required in eviction proceedings, or in any other civil proceedings based on conduct that could also be criminally actionable. And, as a practical matter, allowing a drug-dealing or gun-toting tenant to remain on the premises for months or years while awaiting the outcome of a criminal proceeding would largely undermine the goal of removing dangerous persons from public housing, while increasing the very real risk of witness intimidation.

Perhaps more importantly, the two main arguments against toughened eviction policies-that public housing tenants should not be held responsible for the illegal activities of members of their households, and should not be subject to eviction for these activities based on the same civil standard of proof applicable to evictions from private housing-also share a flaw more fundamental than those discussed above. That flaw is the patronizing and destructive refusal to apply to low-income communities the same standards that maintain social order and well-being in middle-income neighborhoods-and that for many years did so in poor areas as well. It is not uncommon for tenants to be evicted from private housing based on misconduct of their children in violation of the lease, regardless of whether the misconduct has been criminally proven or even constitutes a crime. In the middle-income apartment building in which I grew up in Queens, New York, for example, there was a three-strikes-and-you re-out policy for petty mischief like defacing property or even ball playing in the halls. (A one-strike policy for serious criminal activity was implicit.) This policy did have a harsh impact on the often blameless parents of troublemaking children, but it allowed the rest of us to grow up in decent and safe surroundings.

Similar and even stricter rules of conduct, punishable by eviction, were enforced in public housing in that era (the late fifties and early sixties) and, not coincidentally, the projects then still provided about as good an environment in which to raise children as did any middle-income development. Indeed, public housing worked in this country for 30 years-filling a void left by the private market and providing tens of thousands with a safe, clean, and stable oasis in which to gain a foothold out of poverty. This is an inconvenient bit of history for both the free market absolutists who need to face the fact that a government program worked, and the doctrinaire liberals who need to confront why it stopped working. It stopped working when well-intentioned civil libertarians, responding to genuine excesses in which public housing rules had been applied in arbitrary and sometimes racially insensitive ways, pushed the pendulum to the other extreme. In a series of court decisions and decrees, followed by legislative and administrative changes that interpreted these decisions as expansively as possible, the civil rights and civil liberties bar won victories that seriously restricted the ability of housing authorities to achieve certain previously accepted goals: to screen out and evict criminals and other undesirable or disruptive tenants; to give preference to intact and working families; or even to maintain a healthy balance between the working and welfare poor. The unintended result was a breakdown of the social order that had allowed public housing to succeed in the first place.

The "One Strike" policy and the Escalera decision are two big steps towards moving the pendulum back to the center and restoring public housing to the success story that it once was. These developments offer the hope that some day little children growing up in the projects may once again enjoy the same right that my own 4-year-old daughter and other middle-class children now have to play outside their homes without fear of random, violent death. Why should advocates for civil liberties and the poor oppose that?

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