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Excerpted From: Lahny Silva, The Trap Chronicles, Vol. 1: How U.S. Housing Policy Impairs Criminal Justice Reform, 80 Maryland Law Review 565 (2021) (489 Footnotes) (Full Document)

LahnySilvaClose to fifty years after President Richard Nixon's 1971 declaration of a War on Drugs, America is attempting to remedy the aftermath. Today, the War is generally considered a failure. Despite all the arrests and prosecutions, the War has been unsuccessful in accomplishing its two touted objectives: eliminating drug trafficking and eliminating drug addiction in the United States. America paid dearly; it was extremely expensive, disproportionately impacted communities of color, and took hundreds of thousands of prisoners. This final cost was highlighted when the “the land of the free” earned the number one spot for having the highest incarceration rate in the world.

Recognizing the substantial costs associated with wartime criminal laws and sentencing practices, a criminal justice reform is currently sweeping through legislatures across the country. In the spirit of fair sentencing and second chances, legislatures are commissioning studies of sentencing regimes and modifying criminal penalties with retroactive application. The return of judicial discretion with the United Supreme Court's decision in United States v. Booker now allows punishments that deviate from otherwise strict determinate criminal sentences. And clemency is making a comeback, with both Presidents Obama and Trump utilizing the executive power to commute overly punitive terms of imprisonment. Over 100 days into his administration, President Biden has not yet made his views clear on clemency. Ex-offender reentry as a substantive and procedural legal issue is now considered a legitimate legislative concern, with Congress putting federal dollars behind evidence-based programs proven to reduce recidivism. States are following suit. Although this is a positive step in undoing decades of ineffective policy, other areas of law impacted by the Drug War must also be reviewed and modified if the damage caused is to be truly rectified.

Wartime legislation contributed to the proliferation of not only criminal statutes and sanctions, but also numerous civil penalties associated with drug-related suspicion and/or conviction. Drug war policies bled over into civil and administrative areas of law, manifesting in rules that work as a form of further government control--wreaking havoc on poor, mostly minority communities that already absorbed the bulk of the War's attacks on the criminal front. Commonly referred to as the “collateral consequences of conviction” in the academic literature, these civil statutes and administrative regulations are pervasive and pernicious, hindering the transition from prison to society. Collateral consequences affect almost every part of one's life: areas that are essential to productive citizenship and socio-economic stability. As the War seems to be winding down on the criminal front, other rules continue to endure and serve as the predicate for intensive regulation and exclusion in civil and administrative matters such as voting, employment, and housing.

This Article contributes to the existing scholarship on the War on Drugs, collateral consequences, and offender reentry by reviewing federal criminal and housing laws in the aftermath of redemptive rhetoric that has been employed to pronounce a retreat from the War. It applies drug war criticisms to federal housing policy and argues that the ideological shift away from “tough on crime” to “second chances” in the criminal context must be extended to national housing policy. I argue that wartime costs associated with criminal law are mimicked in the federal housing policy context, a battleground during the War on Drugs. More specifically, I argue that with wartime policy deeply penetrating the national housing agenda, the drug laws continue to serve as a justification to inflict socio-economic violence on targeted groups. This violence takes the form of intensive regulation in federal housing programs and operates as an additional layer of criminalization and social control on an already powerless group.

In neglecting to review wartime policies beyond the criminal law, this Article contends that policymakers are creating an ideological schism that has manifested in an inconsistent legislative agenda. There are thus two systems: one where prisoners of the War are to be viewed as redeemed and worthy of a second chance, and the other where prisoners of the War continue to be demonized and excluded from mainstream society. In the criminal context, the government is pivoting from taking people out of their communities and incarcerating them to now releasing the legislative pressure valves to open the prison gates and release prisoners of the War. The question is: Where will they all live? Housing is identified as the primary barrier for those reintegrating. During this reform movement, legislators are overlooking collateral consequences affecting housing prospects for criminal justice-involved individuals, especially drug offenders, thus continuing the War on the civil front. This Article reasons that the next natural step in the retreat from the War's policies is to review and modify Drug War legislation that transcends criminal law. This is a necessity if the proclaimed political promise of a second chance is to be truly fulfilled. If it is not, then the redemptive rhetoric is nothing but a trap--a political ploy used to pander to public opinion on the criminal justice front, while laying cover to the grave legislative mistakes made in the shadows on the civil front during the War.

This Article is divided into three primary parts: The Frame, the War, and the Aftershock. Part I will present a framework to analyze the costs associated with the War in both criminal law and federal housing policy. This Part will present Drug War criticisms as the lens through which socioeconomic violence caused by wartime federal housing rules ought to be viewed. In doing so, Part I will offer a new approach to understanding the breadth and depth of the War on Drugs. Instead of assessing the War as a battle waged only in the criminal sphere, it should be evaluated as an attack encompassing all law--the criminal law, as well as civil and administrative law. In understanding the War as a monolithic effort that bridged both criminal and civil law, I will evaluate the socio-economic assault on targeted groups in the housing context arguing that true reform must take a holistic view of the costs of wartime policy.

Part II will examine the War on Drugs' criminal law policies, pointing out signature pieces of legislation enacted during the 1980s, to later demonstrate the recent government changes to this specific legislation. This Part will also analyze the War's influence on federal housing policies through the review of various statutes that reflect the government's aggressive stance on drugs. More specifically, the public housing and Section 8 Housing Choice Voucher and Certificate (“HCV”) programs will be examined. Housing policy was chosen as the case study because (a) federal subsidized housing was a targeted war zone in the War on Drugs and (b) research demonstrates that housing currently presents the greatest barrier to reentry. Each section in Part II also will offer an outcomes assessment of wartime policy in the criminal and housing contexts, with an emphasis on the failure of the War to accomplish its twin goals of eliminating drug trafficking and reducing drug abuse.

Part III will assess the retreat from the War on Drugs and the reform of anti-drug criminal law policies within each of the three branches of government. Like the previous Part, Part III also will review the impact (or lack thereof) of the criminal justice reforms on housing policy, concluding that the ideological underpinnings of redemption have yet to penetrate the national housing agenda, leaving harsh, anti-drug housing legislation on the books. Finally, Part IV will provide a brief summary of the Article's thesis. In doing so, Part IV reiterates the strong call for review and reform of national housing policy at all levels and within all branches of government.

[. . .]

This Article is meant as a call for a review of Wartime legislation and a reform of national housing policy. For the past twenty years, all three branches of government contributed to the reform movement in the criminal law. Starting with the judicial branch, major pieces of anti-drug legislation were dismantled, culminating in an era of redemption and second chances for prisoners of the War. The contributions of Congress and the Executive resulted in the development of release mechanisms to free drug prisoners from the overly punitive sentences meted out during the War. Congress amended the law while the Executive modified prosecutorial charging practices and resurrected the presidential clemency power. However, national housing policy remains a War stronghold.

If the political rhetoric of second chances and redemption is to be offered as a truth, all areas of substantive of law affected by the policies of the War on Drugs should be reviewed and modified. Housing policy must consider the 600,000 people returning annually from America's prisons and jails and the recent legislation further opening the prison gates. Where will they go? Because housing is understood to be the most difficult challenge in the reentry process and is critical to post-incarceration stability, it is imperative that federal housing legislation be immediately examined and reformed as part of the current broader criminal reform.

While criminal law reform may have opened the door, the War's policies in other areas of law continue to keep prisoners excluded from mainstream society. This in effect continues the War's violence on targeted groups. It is just that now it is socio-economic as opposed to criminal. Such a schizophrenic policy sustains the revolving prison door. With the criminal law reform movement serving as a model, it is clear that it will take all three branches of government to participate in deconstructing the War's influence on national housing policy.

In his first 100 days, President Biden demonstrated an interest in addressing the housing crisis. He is showing a promising commitment to racial equality in housing and his administration is working to ensure the rules reflect this. First, he appointed Marcia Fudge, an African American lawyer, to the position of HUD Secretary. She immediately started the rollback of Trump era policies and resurrecting the fair housing work of the Obama Administration. In addition, in his proposed Infrastructure plan, President Biden earmarked $213 billion to housing with $40 billion allocated to updating and upgrading public housing and a promise to build 500,000 units for low-income families. With national attention now being paid to the housing issue, now is the time to review and modify HUD rules that work to exclude individuals with criminal histories. With funding available and refreshed political will, we can begin thinking of new and innovative ways to provide housing to this demographic.

Reentry, as a substantive area of law, is unique in its bipartisan legislative support. While other areas of law experience severe partisan divides, both sides of the aisle support reentry-centered initiatives and have done so for the past twenty-five years. In addition to critically reviewing and modifying legislation, a new legislative ideals should be developed that reflect the second chance principle in the area of housing.

Courts should continue to examine subsidized housing rules with an eye towards strictly enforcing constitutional due process requirements as well as protecting Fourth Amendment rights against unreasonable search and seizure. The War is no longer an appropriate justification for a constitutional exemption. While administrative deference is essential to the efficient workings of government, constitutional protections and the principle of fairness should be given full accord.

One a more local level, partnerships between local government, community-based organizations, and private landlords should be explored with a strong focus on geographic zones where most prisoners return. Financial backing by local government may incentivize private landlords typically renting in already depressed areas to loosen exclusionary policies. Another suggestion is to create affordable residential units for short-term stays for this group with strong ties to supportive services such as job training and placement, vocational training, and counseling. Boots-on-the-ground service providers should collaborate with government actors and the private market to investigate ways to offer safe and affordable housing to those returning home.

Policymakers and bureaucrats must understand that reentry is not strictly a criminal law topic. It transcends the criminal law and penetrates other areas such as housing, employment, public benefits. True reentry requires a commitment to offer a second chance to prisoners in all aspects of life. Opening the prison gates is the first step in the transition back home. But to fully integrate the formerly incarcerated, we must open the door to American life by offering real and equal socio-economic opportunity as well embodying second chance ideologies in our day-to-day.

While benevolence and redemption are emerging as the signature creed of recent criminal justice reform, zero-tolerance and harsh regulation continue to dominate the underlying philosophy of other substantive areas of law shaped by the War on Drugs. This in turn offers a duplicitous political promise of a second chance. Thus, a second chance extends only as far as the purpose of release from prison or relief from a criminal sentence. It no longer applies once an individual walks across the threshold of the prison gate back into free society. It is there that the opportunity for a real second chance exists and, unfortunately, it is there that violence from the War continues in the socio-economic realm of American life.

Professor of Law, Indiana University Robert H. McKinney School of Law.

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