No Way Home: Is NYCHA's Permanent Exclusion Policy More Trouble Than it's Worth?

Early in the morning of Dec. 3, 2013, Barbara Smith’s son Davon finished a double shift. He had plans to go Christmas shopping with his mother the next day. It was late when he got off work—around 4 a.m., and he was tired, so he crashed at his mother’s apartment in New York City Housing Authority’s Baruch Houses. But did he realize that nap could lead to his parents’ eviction from their home?

The previous November, Davon had been “permanently excluded” from the Housing Authority, whose regulations stipulate that the arrest of any individual living in housing or giving the police a NYCHA address can result in the termination of the tenancy.

The event that led to his exclusion happened on a warm night in June 2012, when Davon, at the time in his early twenties, had been sitting in the basketball court near his parents’ apartment. “He was celebrating the fact that his son was born, that he became a father and whatnot,” Barbara Smith told City Limits recently in her apartment in Baruch Houses. “So he’s out here in the basketball court with his friends, like most all these young kids do, out there smoking weed. That’s it.”

Davon was arrested, and pled guilty to criminal sale of marijuana. He was sentenced to two days of community service. And even though Davon has not been on his father’s NYCHA lease since he was 16 years old, the arrest, and another for smuggling contraband into a prison, prompted NYCHA to start eviction proceedings against Smith and Davon’s father, David Venable.

Hoping to head it off, Smith went down to 250 Broadway and met with one of NYCHA’s lawyers; not knowing that she was eligible for legal representation, Smith went without counsel. She was told that she could keep her apartment on one condition: She would have to agree to prevent Davon from stepping foot inside, a stipulation known as “permanent exclusion.” As part of the agreement, investigators would visit her home on a regular basis in order to verify that Davon wasn’t living there.

Davon’s exclusion was hard on Smith and her family. Venable is disabled and a veteran, and Smith was upset that Davon couldn’t visit his sick father. She was upset that Davon couldn’t drop off her grandson for the weekend. She now had to arrange to meet him at another location. “We shouldn't have to do that!” she said. “He should be able to come here, spend time with his father, see how his father is doing, have Sunday dinner with us, spend Christmas day with us. We can't do none of that."

And then, things got worse. On December 3, with his exhausted son asleep in the apartment, Venable heard a knock on the door and thought it was a food delivery. He opened the door to find himself facing investigators from NYCHA. Davon Venable was found in the apartment, “after the residents mislead [sic] inspectors to his identity,” according to a statement from NYCHA.

A few days after Christmas, Smith got another letter from NYCHA. She had violated the terms of the stipulation she had signed, which excluded Davon from the apartment. And now, “They want to evict us,” Smith told City Limits.

Smith says she hadn’t fully understood the stipulation, or the extent to which it would impact her life. “We signed it not knowing what it was,” Smith says. “We signed it not thinking they would actually use it to try to put us out.” 

But she did sign it, and as a result, Smith and Venable are facing termination of tenancy. “We're just two working people,” Smith says. “He's disabled. I'm working part-time to try to make ends meet. We're doing our best. Come on. We don't bother anybody.”

But NYCHA sees it differently. “Between 2014 and 2015, Davon Venable was arrested for multiple charges including felony possession, criminal mischief, assault, and failure to appear in court, and he used the NYCHA address as his home address,” reads a statement from NYCHA. The permanent exclusion case is pending and scheduled to go next month before a hearing officer, who will decide if Smith and Venable stay or go.

No conviction needed 

In 1996, at the behest of President Clinton, the federal Department of Housing and Urban Development sought the eviction of drug dealers and other criminals from public housing in what came to be known as “One Strike and You’re Out.” Housing authorities across the country were encouraged to develop their own criteria for exclusion.

NYCHA’s version of the regulations mean that the authority can terminate the tenancy of any resident who has engaged in criminal or drug-related activity on or even near the development where they reside. NYCHA’s guidelines stipulate that a mere arrest—even one that doesn’t result in a conviction—is enough to trigger eviction or permanent exclusion—a process which frequently begins before criminal proceedings conclude. In 2002, the U.S. Supreme Court ruled that a tenant may be evicted if a family member or a guest uses drugs—even if the tenant had no knowledge of the drug usage.

A total of 4,698 individuals were permanently excluded from NYCHA for criminal activity between 2007 and 2014. Residents of public housing who have been through this process frequently complain about the pain of evicting or “putting out” loved ones, the violation of having investigators walk through their homes and the humiliation of having their business known. NYCHA used to publicize a “NYCHA Not Wanted List.” and even though the list is no longer public knowledge, the investigators’ visits are not discrete. Explaining to visitors why investigators are walking through the apartment was an experience public housing residents who had been through permanent exclusion recounted with shame.

Like Barbara Smith, other affected residents who spoke to City Limits all claimed that real drug dealers and violent criminals live undisturbed in different apartments throughout their complexes, and feel bitterly the unfairness of having to evict a minor offender, or having to put up with searches for individuals who have new addresses. 

And like Smith, many individuals signing the exclusion stipulations later say they didn’t know what exactly they were signing. Most don’t have representation. Some don’t speak English. Most don’t realize that the investigators will continue their visits indefinitely, according to advocates.

Taisha Taylor was a 22-year-old single mother of two in 2003 when she got a letter stating that she was in danger of losing her home. Her uncle, a drug addict who did not live with her, had given her address to the police, and NYCHA had initiated the eviction process “following four arrests for the sale of controlled substances which occurred on NYCHA property,” NYCHA wrote in a statement. When Taylor went to meet NYCHA’s lawyers, they told her to plead no contest, Taylor says. In order to keep her apartment, NYCHA told Taylor to sign a stipulation whereby she would be on probation for two years, and investigators would come to the apartment and make sure her uncle wasn't living there.

“They didn’t offer me a lawyer and they didn’t explain everything,” Taylor says. She signed the stipulation, and from that day on, she says, she has been visited every three months by investigators from NYCHA. Later, in 2006, her brother—who did not live in the apartment, either—also used her address when he was arrested, and a second stipulation was added to the first. For a while, the inspection visits were suspended because both offenders were incarcerated. But visits resumed after her uncle was released from incarceration.

“I agreed to let [inspectors] into the house, because [my uncle and brother] didn’t live here,” Taylor says. “But now when they come, it’s more intrusive. My kids will tell you, sometimes when they come, they’re rude and disrespectful. They like to touch things. In the beginning when they were coming, they had a photo of who they were looking for. They would just look, and then they would leave the apartment. … (Now) they bang on the door, to the extent that my peephole has fallen out. They search through closets and touch things they shouldn’t be touching because they are looking for a person. They say they are looking for evidence.” But Taylor has a 16-year-old son, so there is already evidence of an adult male all over the apartment. “What are you exactly looking for? You know those people aren’t here. My brother’s in federal prison. He can’t get out. My uncle’s in a homeless shelter. Go look for him there.” It’s aggravating and insulting, she says. After one visit, one of her children asked her, “Ma, we’re poor?”

“I feel like it’s a violation on my rights,” Taylor says. “Not only is it scary because I am a woman here alone with my children. For them to come here, and enter it, and touch everything … I just don’t want people to touch my things. I can’t go into their home and do it. Why should I be subjected to it? I feel like it’s a violation of my privacy. I pay rent, I should be respected, whether it’s low-income or not.” According to NYCHA’s records, in April 2014, Ms. Taylor refused to let an inspector enter her apartment and a violation was issued, which is the subject of an ongoing administrative case.

Maintaining safety ... by barring pot-smokers

The Housing Authority defends permanent exclusion in terms of public safety. “NYCHA families deserve to feel safe in their homes,” a spokesperson for NYCHA wrote in an email. “In order to better protect the health and safety of all residents, while preserving the tenancy of innocent family members, NYCHA can pursue permanent exclusion when the actions of a resident threaten the safety of an entire community.  While we strive to maintain the safety and quality of life of all our residents, permanent exclusion is a critical tool to protect the rights of residents and a means to preserve the tenancy of non-offending family members.”

And some residents would agree, according to Reginald Bowman, president of the City-Wide Council of Presidents, NYCHA’s resident board. “There is a perception that if someone gets arrested, everybody needs to pay,” Bowman explains. “There are some people in public housing who support this kind of policy because they equate it with people who deal drugs and harbor weapons inside apartments. They feel that if a person is found to be dealing drugs, or if there are a number of undocumented people in an apartment, they feel like the entire family should be penalized, because they feel like everyone in the house had to know what was going on. And they think of it as a safety issue.”

But Bowman himself passionately disputes this rationale. “I think that people have rights,” he told City Limits. “Nowhere in any other property that’s being managed in this city will you getting arrested automatically trigger you being evicted from your apartment.” A person is innocent until proven guilty, he says. “Just because someone is arrested for an offense, that does not necessarily mean they are guilty of that offense.” Furthermore, “if a person is not committing a crime, they shouldn’t be penalized. Someone being arrested as a member of a household should not put the household in jeopardy of being evicted. Especially if the crime did not happen on public housing grounds, and it didn’t involve some kind of drug trafficking out of the apartment, or some kind of criminal activity that was going on within the apartment that was a threat to the public safety of the building.”

Bowman was careful to emphasize that this was his position as a resident, and not the opinion of the City-Wide Council board. But his feelings on the matter were strong, and clear. “I think the policy needs to be reexamined and modified so the person who commits the crime takes responsibility for it, and not the entire household,” he said. “Not only is it unfair, it’s unethical, and it’s a double standard that’s being applied to people who live in public housing.”

Crime numbers in question

No doubt, there are people who threaten the safety of public housing residents. NextGeneration NYCHA, the Housing Authority’s roadmap for the next ten years that was released in May, assembled data from the July 2013 U.S. Census, the New York City population estimate, and the NYPD, and concluded that while only five percent of New Yorkers live in public housing, nine percent of New York City’s violent crime occurs in public housing.

But this higher crime rate could be caused in part by the way NYCHA is policed. For many years individuals on public housing property were stopped and questioned absent any indicia of wrongdoing. This means they were subject to a level of policing that has been deemed unconstitutional in the rest of the city. Lawyers tell stories of clients who were arrested for trespassing when they went to pick up a pizza, or to take out the garbage.

“The way that NYCHA is being policed really creates crime, for lack of a better word,” says Lauren Zimmerman, a lawyer with Brooklyn Defender Services. “There’s more crime because it’s more policed. If police were patrolling buildings in Bushwick where 22-year-olds were buying weed and cocaine, there would be spikes in the crime rates there too. But they’re not policed in the same way.”

On January 29, 2010, a group of residents filed a class action lawsuit against NYCHA and the City of New York challenging what they said were the NYPD’s unlawful stops and arrests of NYCHA residents and their visitors for criminal trespass. The city agreed to reform the rules governing the NYPD’s conduct on NYCHA land. But Zimmerman says those changes have failed to alter what happens on the ground at NYCHA developments. “If you sit in an arraignment shift any day of the week, there's still a lot coming through for low-grade weed possession,” she says. “I haven’t seen a change with regards to this. I haven’t seen fewer people arrested for trespassing on NYCHA, or fewer arrested for trespassing because they weren’t specifically invited by a resident.”

And the Housing Authority seems to be allocating more law enforcement resources to patrol its developments, not fewer, according to NextGeneration NYCHA. The measure is one of a number NYCHA is taking “to ensure that neighborhoods are safe and vibrant.” Others include temporary exterior light towers to improve lighting of public spaces, hiring 992 youth through the Summer Youth Employment Program, and linking NYCHA residents to domestic violence support services. “Safety measures deployed to date through the Mayor’s Action Plan for Neighborhood Safety have reduced violent crime by nearly 10 percent at the 15 targeted developments,” states the plan. Interestingly, Permanent Exclusion was not one of the listed measures. According to a spokesperson for the authority, this is because “NextGen… focuses on key strategies such as supporting families and intervening before crime occurs in order to strengthen overall neighborhood cohesion. However, when residents commit certain offenses, permanent exclusion remains a tool available to NYCHA.” 

But advocates argue that permanent exclusion casts too wide a wide a net for the safety rationale to apply. Laurie Parise, executive director and founder of Youth Represent, disputes the safety explanation. “We've seen people excluded and evicted for having marijuana in their apartment,” Parise says. “I don't understand how breaking up families and pushing people into shelters for having marijuana in their homes protects anyone's safety or helps any community.”

Lucy Newman, staff attorney at the Legal Aid Society, agrees. “Permanent exclusion is routinely imposed against individuals for minor offenses and even when criminal charges have been dropped,” she wrote in an email to City Limits. “Its impact can be devastating: breaking up families, forcing young men of color into homelessness and subjecting those who remain in the apartment to years of intrusive, humiliating, unannounced inspections. Every resident has a right to feel safe in his/her home, but there is no evidence to support NYCHA's position that exclusion needs to be permanent or that, in most instances, permanent exclusion is making anyone safer.”

Parise recalled her first client facing permanent exclusion, a young man who had been arrested and incarcerated at Riker’s Island for five months, and who was pursuing alternatives to incarceration when his parents got eviction notices. She remembered sitting in a room with her client and his parents, and telling them that they were being given a choice between having the whole family evicted and excluding their son. “I remember looking at his mother and father’s face and thinking, what kind of choice is this? And having the father crying and saying, ‘I will never kick my son out of the house, particularly when he’s most vulnerable.’” She managed to convince NYCHA’s lawyer that her client was not going to be a threat. “In that case, I was very lucky,” Parise says. “It’s the luck of the draw who you get as lawyer and hearing officer.” She said a NYCHA employee once told her that the only way to lift permanent exclusion for a criminal offender is “if he went to Harvard.” 

According to NYCHA, since 2007, the authority has removed the permanent exclusion of 226 individuals, out of a total of 557 applications. But lawyers who have worked with clients on exclusion cases are baffled by the process for a stipulation to be reversed. “The paperwork doesn’t really exist,” says Zimmerman. “They’ve set up these parameters, very intentionally so, which make it impossible to challenge.”

What's more, Zimmerman contends, allowing a mere arrest to trigger the process that results in permanent exclusion goes against everything our legal system is built on. In a criminal trial, the judge instructs the jurors that an arrest should be no indication that a crime has been committed. Yet, in the case of permanent exclusion, an accusation is enough to be “convicted” as it were—one strike and you’re out. 

Then there’s the fact that most cases are resolved via stipulation, rather than a hearing. According to numbers supplied by NYCHA to advocates, of the 4,698 cases resulting in permanent exclusion between 2007 and 2014, 690 resulted in an impartial hearing, whereas 4,008 were solved via stipulation. The problem with these stipulations is that they bypass the legal requirements of an impartial hearing.In 2011, James Branden, chair of the Criminal Justice Operations Committee of the Association of the Bar of the City of New York, wrote a letter arguing that the proceedings should be more transparent since, “unfortunately, virtually all tenants in these proceedings are not represented by counsel.” 

A shifting approach?

Parise says NYCHA has gotten better with time. “There’s more awareness about excluding young people,” she says.

A spokesperson for NYCHA confirms Parise’s experience. While minors may be permanently excluded, “NYCHA pursues that route only as a last resort, and only if the minor is charged as an adult or has committed particularly egregious acts, usually involving gangs and violent crimes. NYCHA works with minors, their families, and the district attorney’s office to provide supportive programs or seek alternative remedies such as probation.” In the past year, no one under the age of 16 has been excluded by NYCHA.

Still, permanent exclusion remains shrouded in mystery for those subjected to it, their lawyers and advocates alike. It's not even clear, for instance, how NYCHA learns about encounters with the NYPD that lead back to its properties. “For years we did not know how NYCHA found out about arrests,” Parise said. “It seemed completely random. We are just learning there actually is a process.”       

“It’s catch as catch can,” said Ann Jacobs, director of John Jay’s Prison Reentry Institute. “Some precincts will report to NYCHA on a regular basis, and the management company is informed. But it isn’t like it’s really systematic. You hesitate to point out how unfair that is because if they fixed it they would just permanently exclude more people.”

Police Officer David Collado is the community affairs officer at PSA 6 in Harlem, one of the NYPD’s Housing Bureaus dedicated to serving NYCHA. He explained that when a person is arrested and gives public housing as their address, it’s the NYPD who makes the initial decision on whether to inform NYCHA. “If it’s something where we deem it necessary and we want to take further actions to have them removed from NYCHA grounds, we’ll open a case for legal action,” Collado says. This involves putting together a report informing NYCHA of the crimes committed and the NYPD's wish to open up a case. “We basically put in a request, but everything falls down on NYCHA. NYCHA handles all the decision-making, and the follow up. We become a support system for them. Anything we can provide them from our end, we’ll do that, and we keep a very amicable relationship with them.” But NYCHA sometimes decides on its own to open proceedings, and asks the NYPD to supply a complaint number. “We don’t always, depending on the nature of the crime,” Collado says. 

Collado also says that when youth are involved, the NYPD always tries to find other means to pursue the case than “always trying to arrest someone.” “But if it becomes a situation where let’s say, for example, narcotics are involved, that’s usually a big one,” Collado explained. Generally, Collado says, the housing bureau arresting officers try to initiate exclusion only when the individual has been charged with a felony, “but if it becomes something that’s a pattern, that’s happening over and over again, then no, it’s like anything else, we’ll bring it to their attention,” Collado explained. “Obviously, NYCHA has their own set of rules as well.”

According to NYCHA, permanent exclusion is never based solely on a complaint or violation. “In the past, some people may have been excluded for relatively minor crimes like assault,” a spokesperson wrote in an email. “Now, exclusion impacts individuals who commit major offenses, such as drug-dealing, firearms possession, sex offenses and murder.”

NYCHA says it has been working to improve the policy to further benefit resident families. For example, the authority removed marijuana possession from the offense list in 2014. “Over the past several years, NYCHA has been reviewing all permanent exclusion cases to assess whether individuals deserve to have their exclusion removed,” NYCHA wrote. If they have demonstrated rehabilitation by, for example, going to college, seeking drug-abuse rehabilitation, or steady employment, the tenant of record may apply to have the former household member’s exclusion lifted. “In 2014, we reached out to more than a hundred tenants and removed 85 permanent exclusions,” NYCHA wrote.

But advocates are not entirely convinced. “My sense is that [NYCHA Chair] Shola [Olatoye] cares about families and she cares about community wellbeing, and she believes her staff,” Jacobs says. “The managers of these various projects have an enormous amount of discretion and they and the police characterize some families a certain way.” And NYCHA’s legal department is problematic, too. “The legal department is calcified and very resistant to change.”

Monique "Mo" George, director of the New York City chapter of Community Voices Heard, is even less convinced of change. "They are still excluding folks for drug violations and for things that are happening outside the development," she tell City Limits. "They're still going in to people's houses in these really invasive ways, on holidays and things like that, searching like they're looking for Bin Laden or something. At what point do you stop? And how much money are you spending to look for a fourteen year old son who, by the way, you've now made homeless?" 

But change may be on the horizon, if CCOP head Reggie Bowman has anything to do with it. “The Housing Authority needs to change its policy, and we are definitely going to pursue this policy change when we are in the appropriate meetings and forums with the executives and policy makers of public housing,” he told City Limits. 

“A person should not be found guilty by agencies that are not courts of law,” Bowman says. “I mean, come on. Eviction because someone got arrested? Give me a break.”