Volume 25

Protecting Tenants Without Preemption: How State and Local Governments Can Lessen the Impact of HUD’s One-Strike Rule

by Robert Van Someren Greve

Under a policy first enacted in 1988 and expanded in 1996, federally funded public housing authorities (“PHAs”) and private landlords renting their properties to tenants receiving federal housing assistance have been required to include a provision in all leases under which drug-related criminal activity as well as criminal activity that in any way poses a threat to other tenants or nearby residents constitutes ground for initiating eviction proceedings.1 This strict-liability eviction policy, which has become known as the “One-Strike Rule,”2 was part of a broader congressional effort to combat the “reign of terror” that Congress believed drug dealers were imposing on public-housing and assisted-housing tenants.3 Like many of the crime-related policies enacted in the 1980s and 1990s, the One-Strike Rule has done little to reduce crime rates, but has been wildly successful in ensuring that the situation of poor households receiving federal assistance remains highly precarious.4 Calls for reform of the One-Strike Rule are almost as old as the policy itself, but given the political outlook of the current administration, the prospects for reform at the federal level are dim.5

While federal law and a combination of gridlock and unwillingness in the legislative and executive branches foreclose a range of possible strategies for reform, there is nonetheless room to mitigate the socially corrosive effects of the One-Strike Rule through legislative efforts at the state and local level. Courts in various jurisdictions have upheld state laws that protect vulnerable tenants despite the federal strict-liability policy, and these holdings help to provide a framework for how state and local governments seeking to protect tenants can do so without their efforts necessarily falling prey to the Supremacy Clause.6

This paper describes that framework and proposes three concrete measures that fit it. The paper is structured as follows: After explaining the One-Strike Rule and the threat it poses to vulnerable tenants (Section II), the paper discusses the burden the Rule imposes on tenants and the benefits it is supposed to bring to other parties, and argues that the resulting distribution of burdens and benefits is unjust (Section III). The paper then lays out three concrete measures that state and local governments can enact to protect tenants who face eviction for criminal activity under the Rule that would survive a federal preemption challenge: Requiring “good cause” for eviction, giving tenants the right to cure a breach of their lease, and providing tenants with free counsel in landlord-tenant court (Section IV).

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1. For the current version of the applicable statutes, see 42 U.S.C. § 1437d(l)(6) (2012) (covering public housing) and 42 U.S.C. § 1437f(o)(7)(D) (2012) (Section 8). On the history and development of these provisions, see, e.g., Robert Hornstein, Litigating Around the Long Shadow of Department of Housing and Urban Development v. Rucker: The Availability of Abuse of Discretion and Implied Duty of Good Faith Affirmative Defenses in Public Housing Criminal Activity Evictions, 43 U. TOL. L. REV. 1, 4–5 (2006) [hereinafter Litigating]; Sarah Clinton, Note, Evicting the Innocent: Can the Innocent Tenant Defense Survive a Rucker Preemption Challenge?, 85 B.U. L. REV. 293, 297–301 (2005); 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. ON POVERTY L. & POL’Y 435, 436–37 (2004).

2. Reference to the policy as a “One-Strike”-rule dates back to President Clinton’s 1996 State of the Union address, in which he asserted that, because “[c]riminal gang members and drug dealers are destroying the lives of decent tenants,” the new “rule for residents who commit crime and peddle drugs should be ‘one strike and you’re out.’” Address Before a Joint Session of the Congress on the State of the Union, 1996 PUB. PAPERS 79, 83 (Jan. 23, 1996).

3. 42 U.S.C. § 11901 (2012) (codifying the “Anti-Drug Abuse Act of 1988,” Pub. L. No. 100-690 (1988)).

4. See infra Section III.

5. For early criticism of the One-Strike Rule, see, e.g., Jason Dzubow, Fear-Free Public Housing? An Evaluation of HUD’s One Strike and You’re Out Housing Policy, 6 TEMP. POL. & C. R. L. REV. 55, 58–71 (1996) (discussing concerns over innocent tenants, procedural protections, disparate impact, and lack of effectiveness).

6. See infra Section IV.