One Strike: Introduction

On March 26, the United States Supreme Court upheld the so-called “One Strike and You’re Out” provisions of the Anti-Drug Abuse Act of 1988 under which public housing tenants may be evicted for criminal or “drug-related” activity by any household member or guest, even when that activity takes place outside the apartment and without the tenant’s knowledge. The decision—HUD v. Rucker—was widely reported and discussed across the country. Yet the actual workings of the One-Strike law remain a matter of persisting confusion for public housing residents—and for many others.

Several weeks after Rucker was handed down, the Chicago Tribune reported that Terry Peterson, the chief executive officer of the Chicago Housing Authority, “said his agency has been evicting residents on a case-by-case basis. Only people who are convicted are asked to leave, he added.”

In fact, under the One-Strike policy, the CHA, like other housing authorities, routinely evicts residents whose criminal cases have not yet been decided or who have been cleared of criminal charges.

I asked Montel Gayles, Mr. Peterson’s chief of staff, about the statement quoted in the Tribune. He replied that Mr. Peterson may have been misquoted and added, “In any case, it’s not up to us. It’s the federal law.”

Perhaps Mr. Peterson was misquoted. I have no desire to hold him to a statement he has disavowed. Is it possible, though, that in an unguarded moment he may have responded to a reporter’s question by speaking out of his fundamental sense of fairness and decency rather than trying to defend the way the One-Strike machinery actually works? The words attributed to him by the reporter described a policy that would make sense: we evict those who have been convicted. It’s harder to defend a policy that results in the eviction of those who have been found not guilty or had the charges against them dropped.

One strike policy excerpt from CHA document.

The misunderstanding suggested by the remark attributed to Mr. Peterson is widely shared by public housing residents (as well as, I suspect, by many others). Guided by notions of rudimentary fairness, residents often assume that if they are cleared of the criminal charge they will be allowed to stay in their homes. They have a hard time comprehending how the One-Strike machinery actually works: they simply can’t believe the legal system could be so unfair.

This policy that declares its unfairness in its name (at least to baseball fans) was announced by President Clinton in his 1996 State of the Union address: “And I challenge local housing authorities and tenant associations: Criminal gang members and drug dealers are destroying the lives of decent tenants. From now on, the rule for residents who commit crimes and peddle drugs should be one strike and you’re out.”

The Clinton challenge took the form of strengthening the relevant provisions of the Anti-Drug Abuse Act of 1988 by creating incentives for public housing authorities to pursue One-Strike evictions: HUD includes assessment of One-Strike evictions in the performance evaluation ratings that are used in determining funding levels and the degree of federal oversight for public housing authorities. The Clinton administration also extended the reach of the law by changing the statutory language from crimes committed “on or near the premises” to crimes committed “on or off the premises.”

The precise issue before the Supreme Court in Rucker was important but relatively narrow: could public housing authorities evict tenants for drug-related activity by any household member or guest, even if that activity took place outside the apartment and the tenant had no knowledge of it? The United States Court of Appeals for the Ninth Circuit had held that the law did not permit the eviction of tenants who lacked knowledge. Any other interpretation, it said, would raise serious constitutional questions.

The Supreme Court overruled the Ninth Circuit. The decision was unanimous; there were no separate concurring opinions. The opinion by Chief Justice Rehnquist is untroubled. It is an exercise in statutory interpretation. The Chief Justice does not feel the need to address any constitutional questions. He finds no ambiguity in the intent of Congress:

With drug dealers increasingly imposing a reign of terror on public and other federally assisted low-income housing tenants, Congress passed the Anti-Drug Act of 1988.


With drugs leading to murders, muggings, and other forms of violence against tenants, and to the deterioration of the physical environment that requires substantial government expenditures, it was reasonable for Congress to permit no-fault evictions in order to provide public housing that is decent, safe, and free from illegal drugs.

The level of scrutiny the Court brings to bear in such exercises in statutory construction is not very demanding. Rehnquist writes:

It is not absurd that a local housing authority may sometimes evict a tenant who had no knowledge of the drug-related activity. [Emphasis added.]

Note that the basis for eviction is “drug-related activity.” It’s not conviction for a crime. Arrest triggers the eviction process. Tenants may be evicted while their criminal case is still in progress. It is not uncommon for the criminal case to be thrown out and for the eviction case to go forward.

What has the impact of One-Strike been? The CHA recently made available statistics, based on reports from property managers, on cases initiated August, 2000 through April, 2002.

Several different outcomes are possible in One-Strike cases:

Agreed orders. A negotiated settlement under which the offending party is taken off the lease and/or barred from the unit. Typically in such settlements, the tenant is placed on probation: another offense brings automatic eviction.

Judgments for the CHA. A verdict is rendered in favor of the CHA, resulting in the eviction of the tenant.

Judgments for the tenant. A verdict is rendered in favor of the tenant, allowing the family to retain their apartment and restoring them to lease compliance.

Dismissals. The case is dismissed by the judge. According to Stephanie Horton, the One-Strike Project Manager for the CHA, the reason for dismissal in most instances is that the police fail to appear.

Vacate / move-outs. Without knowing their legal rights, tenants move out on their own after receiving a 10-day notice, the document that initiates the eviction process, and before a One-Strike is filed. According to Ms. Horton, “the majority leave because they fear they’re going to be evicted at the end of ten days.”

Cancellations. The CHA cancels the One-Strike because of mistaken identity or procedural errors on the part of the property manager.

According to the CHA, 93% of One-Strike cases over this period have originated in family developments, 4% in senior housing, and 3% in scattered site housing. The numbers below should thus be read as representing families rather than individuals in the vast majority of cases .

Agreed orders entered 263 37%
Judgments for the CHA 187 26%
Dismissals 72 10%
Cancellations 43 6%

Over a period of a year and nine months, 717 One-Strike cases have been concluded. In 328 of these cases (46%), the family was evicted or moved out on its own under the misperception that eviction was imminent. In 263 cases (37%), the family was allowed to stay on the condition that it exclude the offending party—often a child or grandchild of the leaseholder–from the family home.

In addition to the 717 cases that have been concluded over the last twenty-one months, 847 cases are currently pending. This total includes 280 “one-strike eligible incidents” referred to the CHA by the Chicago Police Department during the first four months of this year. At this rate, an additional 560 incidents will be referred to the CHA by the end of the year, yielding a projected total of 1,407 cases.

The above statistics suggest the dimensions of the impact of the One-Strike policy on individuals, families, and communities in Chicago public housing—and by extension in public housing developments across the nation. The CHA is one of 3,300 housing authorities in the United States, all of which have been challenged by HUD to pursue One-Strike evictions.

In view of the fact that the Supreme Court has unanimously upheld the law and that Congressional repeal is highly unlikely, it is at the level of implementation by individual housing authorities that the law might be made more equitable.

Several issues demand attention:

The quality of law enforcement. The argument for One-Strike rests on a narrative about conditions in public housing that goes like this: Public housing communities are drug-infested. They are under siege by violent gangs engaged in the drug trade. The police have exhausted their resources in trying to deal with these conditions. The problem is beyond the capacity of conventional law enforcement. Hence the need for special measures. Thoughtful advocates of One-Strike acknowledge that it trenches on the frontiers of constitutionality. It is, however, reasonable for Congress to have passed the law, they argue, in light of the extreme conditions prevailing in public housing. Putting aside for the moment the question of whether this narrative is accurate, it presupposes good police work. But what if the quality of law enforcement is uneven? What if it’s abusive? Does the One-Strike process provide adequate safeguards against unjust outcomes resulting from police misconduct?

Unintended consequences arising from the interaction of criminal law and civil law. The protections of the criminal law do not extend to eviction proceedings. The upshot is that evidence inadequate to convict in the criminal case may be sufficient to evict in the civil case. Part of the rationale for the higher standards of proof in criminal cases is the relative severity of criminal sanctions—the loss of freedom that imprisonment entails. But in One-Strike cases it is often the eviction rather than the criminal penalty that is the ultimate sanction. Consider the value of lease compliance to a resident of a development undergoing relocation and redevelopment: one’s current housing, access to a Section 8 voucher over time, and ultimately the opportunity to return to newly constructed housing in a mixed income community. How would we assess the adequacy of procedural protections in One-Strike cases, if the sanction was a fine equal to the value of those benefits?

Structural incentives to evict. Among the arguments made for One-Strike is that public housing is a scarce resource. There is not enough available for those who need it. Hence criteria other than need must necessarily be used to allocate this resource. From this perspective, One-Strike evictions can be seen as giving priority to law-abiding tenants. In announcing the One-Strike policy in his 1996 State of the Union address, President Clinton stated that it is “morally wrong” to allow households implicated in criminal activity “to use up homes that could make a big difference in the lives of decent families.” This sort of argument has more force in settings where public housing units once vacated are rented out. But the CHA is in the process of “transforming” public housing—demolishing high-rise developments and replacing them with mixed income neighborhoods. Under the Plan for Transformation, the CHA has assumed responsibility for providing housing not to the population of those in need, not to the thousands on the waiting list but to a fixed number of tenants who were residents as of a particular date—October 1, 1999. The CHA has finite resources for achieving its objectives. There are thus structural incentives to evict, for each eviction represents one less household to which it is obligated to provide the benefits of the Plan. One need not assert that the CHA is consciously pursuing such a strategy to be concerned that the process will be skewed toward the outcome of eviction. What sorts of safeguards against this tendency might be built into the process?

The impact on families. As the statistics above show, a significant number of One-Strike cases—roughly 44% of all cases that aren’t cancelled or dismissed—are settled by an agreement under which the offending party is taken off the lease and/or barred from the unit. Does the nature of the One-Strike process create undue pressure to enter into such settlements, despite the costs to the family? In our experience at Stateway Gardens, these settlements are often a matter of the leaseholder agreeing, in effect, to banish their child from the family home. This hidden dimension of One-Strike needs to be assessed against the background of patterns of police misconduct and the failure of the CHA as landlord to fulfill its obligations to tenants. The CHA has agreed, post-Rucker, that it will continue to allow lack of knowledge as a defense—i.e., the tenant may prevail if she can show that she had no knowledge of the alleged criminal activity by a member of her household or guest. But this defense is not available to the concerned, engaged parent who knows her child is on a problematic trajectory and is trying to address the problem. Over the years, I have known residents to be evicted or forced to banish a child, when they were in fact making exemplary efforts to do right by their children and the community. One of the first One-Strike cases at Stateway Gardens in 1997 was precipitated by the arrest of a 16-year old boy on a minor drug charge. His mother, aware that he was being drawn into the orbit of the drug dealers operating in the lobby of her building, fought to hold on to him. She closely monitored his activities and regularly confronted him. She challenged gang leaders to leave her son alone and often stayed up all night to see that he didn’t leave the apartment. She participated in anti-violence demonstrations, including a march conducted by a group of mothers in the middle of a gang war. The conditions in which she struggled to raise her children were not the product of her household but rather were consequences of her community having been abandoned by various public institutions. Did the eviction of this woman and her children make Stateway a safer, stronger community? Did it protect the “decent” people in public housing from the criminals? Or is there a sense in which the One-Strike policy forces vulnerable households to bear the costs incurred by the institutions that have failed them?

In an occasional series The View From The Ground will explore these questions by closely examining individual One-Strike cases.