Podcast with Norrinda Brown Hayat: Housing the Decarcerated: Covid-19, Abolition, and the Right to Housing

This podcast accompanies the article by Professor Norrinda Brown Hayat, Housing the Decarcerated: Covid-19, Abolition, and the Right to Housing.

Transcript

Speakers: Taylor Graham, Norrinda Brown Hayat

0:00

In the United States, many recently incarcerated individuals struggled to find housing. The Coronavirus pandemic forced a national conversation about this issue, and highlighted how essential the right to housing is to prison abolition efforts.

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Welcome to the California Law Review podcast. Our goal is to provide an accessible and thought provoking overview of the scholarship we publish. Today we will be discussing housing the incarcerated COVID-19 abolition and the right to housing a piece by Fordham Law School Professor Norrinda Brown Hayat, published in Issue 3 of Volume 110, in June of 2022. Professor Hi, thank you so much for joining us to discuss your article.

0:45

Thank you for having me. So to begin with, can you summarize your main argument in this piece? Sure. So I think what I was hoping to convey in the piece is that the Coronavirus pandemic revealed something about two movements that we see happening in real time kind of on parallel track with the pandemic itself. And that's the right to housing movement and the abolition movement.

1:18

And that these movements obviously, predate the pandemic, but that they, the light was shown on just how important it is to advance these movements separately, through the pandemic, but also that their interconnectedness, I think, was made more apparent during the pandemic. And you just, you know, touched on this a bit in your answer, but what was it specifically that motivated you to write this article? Before the pandemic, I had been thinking about what I call in the article, the culture of exclusion in public and subsidized housing, that is that policies, a set of policies are really designed to keep as many people from benefiting from public and subsidized housing as possible. And I should say here that most major cities have waitlist of 1000s and 1000s of 11,000 16,000 people on the waitlist, so demonstrating how much need there is, but, you know, the scarcity of the resource, the scarcity of the voucher. And so those are people who allegedly qualify, that waitlist, those wait lists are filled with people who allegedly qualified, there's this whole other group of people that are really disappeared by in the programs and analysis by this culture of exclusion. And I would say number at the top of the list or the decarceration, the recently decarceration. Right. So I've been thinking about this before the pandemic and what to do about the culture of exclusion. And again, the pandemic only, just as I saw some states, open up jails in you know, we saw some regression on this, I should say, but at the height, at the start of the pandemic, there was a decarceration movement inside the movement. And

3:32

I thought, Where do these folks go? Where did these folks go? No, we did an episode earlier this year on this podcast that touched on the unique dangers COVID-19 presents to the incarcerated. And you note in your article that many recently incarcerated incarcerated persons face similar risks from COVID-19 Once they become decarceration, because the risk of the pandemic presents to people who are living on the streets, and the high rate of recently incarcerated folks who are on house, Could you outline why the COVID-19 pandemic still presents such a threat to folks once they become decarceration? I think what we found at the start, especially was you need to distance yourself, sometimes you need to stay inside and we could talk more about that.

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You need to wash your hands, you need to wash your mask. You need to you know, at one point, you know, we've moved past this but it was like wash your groceries. Like all these things that you needed to do to allegedly stay safe. And some of them we still are still I think best practices and in many parts of the country.

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You just can't do when you're on the street. So I think this is for the same reasons that we had locked down and quarantines in the first place, which is to keep people separate to keep people in

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their homes and also to keep them clean, right to keep things as clean as possible. Those those goals are made more difficult when you're living on the street. And so being on the street, you get you get sick, but then you have nowhere to get well, and you also expose other people who are on the street, because you have no way to quarantine yourself while you get well. As a follow up, why are recently incarcerated folks more likely to be enhanced. This goes to a concept that I talked about in the article, which is about capital, both economic and social capital.

5:40

When the decarceration it the recently diverse rate in particular, and so by that, I mean, folks like days out, hours out, days out, weeks out, you know, up to a year or two out rate, I think things if you can stay out, there's research to suggest that if you can stay out beyond the first couple of years, and the situation may change, right, things may get better for you. But this folks, hours, if you can imagine doing hours or days out in especially if you've been in for a long time,

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you're you you're light or just have none, you have no social capital, or economic capital, right. And in my social capital, we mean connections to people, depending on how long been there, your connections to your community, to your family members, people have died, people have moved, people have passed away people are speaking to you, they've just forgotten about you at some level. They've moved on with their life. And now you're trying to patch that together. Their social networks are important to create a place to wash up lay your head, you know, kind of get mail have an address to put on an application, these things help you get economic capital, which is access to education, importantly, access to employment, and employment is just really critical to housing.

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Yeah, so being without those things, without the social capital and the ease and or the economic capitals, and you're on the street, you have nowhere to go. Your article identifies an important connection between the prison abolition movement and the right to the right to housing movement. What are these two movements? And what do they seek to achieve? So I think at the most simple level,

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abolition, and by this part, I mean, the negative part of Well, I mean, maybe even both, but let's just start with the negative concept of abolition, which is the drawing down of numbers down to zero in prisons and jails.

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That concept of ending the carceral state as we know it now.

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What I just this is connected to the My answer to the let your last question, which is,

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if people were on the street, have no place to lay their heads have no food, have no opportunity for work, then they recidivate.

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If we want to keep the numbers down to zero, we need to create a space where people can come out and be successful in there are studies that suggest that it's not dangerousness that sends people back to jail. It's lack of resources. And so housing a right to housing for everyone, regardless of whether they have had criminal interactions with the criminal justice, or the criminal legal system, that justice system and the legal system, then

8:48

is really important to keep to really, truly in the wheel, this hamster wheel of sending people out in in and back in and out of prison in jail like so, a future that does not have that process would suggest it's a future that provides resources where people have among other things, housing.

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Sometimes people say well, why, you know, why should the housing movement care but I think people who are in the right to housing movement, which is believing that every human being deserves to be housed and housed in a way that is clean and safe and allows them to be prosperous. And jail is not that many jails a cage. It's, it's, you know, some people will say for animals, but not even right. In many cities, in many places, animals are treated better than people in jail. So that's not house that's not housing for any human or any even animal and, you know, some concepts of what is right and so, I think

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The right those who are committed to the right to housing movement have to recognize that 2 million people are in cages, not houses. And if we believe that all humans on this earth deserve safe housing, then that means that these folks that are actually in jails, in prisons living in cages also deserve housing. And so the people in the right to housing movement should be joined up with the people in the abolition movement and ask for those cages to be opened. Could you outline how federal and state subsidized housing programs work, and how they might support the recently incarcerated? Sure. So I was thinking, no one, I don't know anyone, maybe Secretary of Education say she knows how the all these programs work right there, there are so many state and federal housing programs, I don't want to suggest that they all work the same, or we even have time to go into them one by one. Now, I want to share though, like a broad concept about them, which is that those who would be housing burdened, and that means that you would spend more than 30% of your income on housing, and thus that you have not enough resources for food and clothes and other things books and childcare that you need transportation, that the government would come in and subsidize that housing down to a point where you will only pay 30% of your income for housing. Right. So if you make $1,000 a month, the government would say you pay $300 towards your own housing, and we will pay whatever above $300 your housing costs in this area. So if market rent is going to mean that it would be $1,500, for you get a two bedroom for, you know, this person and her children, let's say, then the government would pay $1,200. And the voucher holder would pay her $300 share, so that she has $700. So the rest of her earnings to take care of her other basic needs. And so most of the programs kind of use the formulas become complicated. And where you live determines, you know, certain aspects of the formula

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based on how expensive the market is, but that basic 30% of your income, like trying not to make trying to make sure that people are not rent burden, and paying more than 30% of their income in rent is a basic premise that most all of the programs share. And what's really important for this paper, I think another part of it is that there are rules in order for the government to step in here, both, you have to be eligible for the program. And that means, you know, they're like good citizenship

12:59

standards for which the government says you must meet in order to qualify to be part of the program. And those standards include not having a recent record and how recent depends on which jurisdiction you are in, you can be in very similarly situated places like Oakland and Berkeley in, in in have a different, you know, standard for how recently you can't have had any touches. And I think it's important to note that it's it's now brought into touches with the carceral state, you don't it's not just convictions, that can result in you being excluded or not qualified to get this assistance from the government. But that even being stopped or arrested and let go and found not to have actually violated the law at all, could result in you not being eligible. And also children, behaviors in schools can be attributed to their parents and other family members and make the whole family in eligible. So those are some of the contours again, that are relevant. I think, for this discussion, there are pages and pages of regulations on this. The final thing I would say is that getting once you're inside public and subsidized housing, or what people commonly call section eight, you have to work really hard to stay there. And

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that means you have to follow all types of rules that are set out by the local housing authority who manages these programs in the federal government and state governments including that you also might have touches with the carceral state and that no one you know his touches with the carceral state. This web is really big, that no one that would come visit you or has visited you, even if they have touches

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Nowhere near your home have a touches with the carceral state.

15:06

Or else you could be removed from your current housing.

15:11

So what you're describing and what your what your article describes is this culture of exclusion that prevents recently incarcerated individuals from accessing housing and of course, by extension, that social and economic capital. And with that last point that you made, could you tell us a little bit more about the story of Rucker the Supreme Court decision and how that solidified the Clinton administration's extreme subsidized housing laws? Right, right. Right. So I think Rucker is important in in by record, we mean that the Department of Housing and Urban Development V Rocker,

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which was a case where the Oakland Housing Authority

15:53

initiated separate actions in municipal court so you know, regular landlord tenant court, to evict for tenants, black elderly folks, one, fairly ill in their names, or poorly Rucker who's you know, now famous for being the lead plaintiff, or defendant, plaintiff depending on the different postures of the case that went forward. Willie Lee, Barbara Hill, and Herman Walker. And what's important about these four individuals is that the agency the Housing Authority, acknowledge admitted that they from the very beginning that they were all called innocent themselves of any criminal wrongdoing. Nonetheless, the Rucker just tenant were each accused of violating their lease. And this goes back to the answer to the last question, which was how,

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why this net is really, you know, was being targeted because of his grandson's

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allegedly illegal drug activity. I think Herman Walker's case is really important, because it was his caregiver. This is the person who was fairly ill, and had a caregiver, and the caregiver was found with drugs. And so you have the sick, elderly person whose caregiver is, you know, you know, doesn't live there, but is found to have illicit drugs, and he was being moved to be evicted.

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As a result of that, so what happens is, there's a question from these folks about like, whether if you're innocent, if you're no one, this believes that you're innocent. No one thinks you actually were involved in illegal activity or even knew had knowledge of this illegal activity that is alleged. But if you're innocent, could you really be evicted from public housing. And so we have to realize, right, the point that people who have public and subsidized housing vouchers are deeply impoverished. And so you have now like elderly, some disabled, some sick, folks who are deeply impoverished being evicted from their housing for activity that was engaged in by third party that they didn't know of that they had no knowledge of. And the question was, Could this really be what Congress intended, and after much back and forth, going to the district court to the Ninth Circuit twice, once on bonk, and then up to the US Supreme Court? Justice Rehnquist, writing for the majority says, Yes, this is what Congress intended, in that there is no innocent tenant defense. So that even if you don't know, so what that means, I mean, you know, there's lots written about the innocence and how is it that we're evicting all these innocent people? And I am concerned about that, make no mistake, I think we should be worried. But there's this this paper calls for us to think beyond innocent to a group of people who have allegedly paid their debt to society, right when they are decarceration it

19:26

in a very vulnerable and if we want them to succeed and stay now need housing to do so. And then beyond that, we have to look to the work Michelle Alexander offered us in The New Jim Crow.

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And knowing that so many people haven't really violated laws at all butter inside like they're innocent, right? Like this notion of who's innocent, I think is one we should question who in almost turn it on its head and say I don't I

20:00

Don't think approach it this way in the paper, but since I've thought like who's guilty? who's guilty? And who's guilty of what, that they don't deserve? Housing?

20:10

Yeah, I think that case is a really good example of why, as you mentioned in your article, in essence is, it's a fiction created by a caste system. And so just to kind of dig in there a little deeper, could you continue to explain why, in a sense, you shouldn't determine who deserves housing? Well, you know, the example that people I think can most

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easily grasp right now is what's happening with marijuana. And how we're, you know, marijuana is being decriminalized throughout the country to various degrees varying degrees, but we're on a we're on a march towards decriminalizing marijuana use.

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But there are so many people who are in jail, in prison for various activities involving marijuana.

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And let's say those people and there's a, there's a racial component to this, that other scholars have written about, in which I won't get into only to say, similar to crack and cocaine, but maybe you can with like, you know, even less disparities,

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America's using marijuana. And there are only a certain group of people who happen to be black and brown that are jailed and criminalized for using marijuana. So that when we think about innocence, and guilt, like both is fictions, you could be engaged in the same activities in America. And then some people have a record that's criminal that could keep them and their families from having housing that they need.

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As a result in some people go along with their already well to do lives, without any,

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you know, any access to any of their resources being hampered. And so it's not activity that we really criminalize so much as it is the

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type or race of the person who engages in that activity. And once we know that, you know, and it can acknowledge that really deeply, you know, again, Alexander's work with so many others, pop Butler's work in this respect, even some of the work that James Forman has done and trying to raise these issues, Angela Davis, those those that work, lets us know that if many of the people who were incarcerated were not black and brown, they wouldn't be in jail in the first place. So to continue the consequences is bad enough. They've been jailed, they've been imprisoned, but to continue to have these collateral consequences, including denying them access to public housing. And I just want to take a moment here to say that what the paper really, really suggests is that people be allowed to go home to their kin networks that may already be subsidized. So there's one strand of the argument, which is say we could give subsidies and there are programs that have given subsidies to directly to the recently incarcerated, and those have had really strong impacts on the success of folks coming out. But there's something else which is that if we go back to social capital, that so many people coming out, may still have contacts, can networks that have already a voucher, and so they could go into homes that are already being subsidized if the rules were different. Your article discusses how federal housing assistance during the COVID 19 pandemic created, in effect a right to housing.

23:54

If we saw this extended, as you suggest, what might a world where an individual's connections to the carceral system do not bear on their ability to be housed look like?

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I think that we saw many experiments, social experiments in the US know some bright spots in the pandemic were the social experiments, including that there was a halting on eviction. So the eviction moratoria that were enacted states, did them separately, and then the federal government came in and then engaged in a rent moratorium, which was huge, right? What is it like to not evict people? And also, why do we not need to worry about landlords when we're stopping the eviction process because the cares that came in with money that paid their rent when they could not? And so I think this goes back to our earlier the earlier part of our conversation, we were talking about how long the wait lists are. There's a scarcity model that we don't have enough resources to house all the people who need

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Our help. And what does that say of how America but what the Cares Act did

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is show us that maybe we do have the resources that maybe we do. And this wasn't just for the deeply impoverished, right, maybe we have even more resources than we thought, because that money wasn't just for the deeply impoverished it was for people who are on and you know, have fallen on hard times and need help right now.

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That is what the system could and should look like, at the very least, right? I'm sure there are other components that if we got there, we could think, yeah, there's, we could do better. But it would be a huge, a tremendous step, if we could

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keep, you know, meeting people where they legitimately are. And, you know, for those who don't know about the program, folks have to do a lot to demonstrate need, you don't just walk in and say I'm needy, which could be okay with me, too. Because people who aren't needy, often don't go through these kinds of processes. But that's it's not simple at all, the application is very complex, the proofs are, you know, they have to be given are significant. So these folks really do have so little income and have, you know, very high housing costs. Before we wrap up, I wanted to see if there's anything specific that you might like to add? Yeah, you know, I think we one thing that is important is that abolition itself is maybe

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controversial term. And

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we haven't talked, you know, maybe as much about in the controversial part of times is drawing down the numbers, I think we need to talk also about the impact that abolition could have on not sending as many people the positive part of abolition, which is like building resources into communities, so that people don't go to prison in the first place. And so when we think about the future, beyond even just the Cares Act money, or money from the government that could help subsidize housing. So that's when the right to housing side, on the abolition side, we should be thinking there are programs that could be in place, including the subsidy desizing of housing, but others, right education programs, better educational system, and poor in, you know, in our inner cities.

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In particular, but not just in our rural or excerpts, like just better education generally, would prevent

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so many people from turning to

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what might be deemed as illegal behavior, right. And so it's, it's

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the case that by positive and doing the work of positive ambulation, which is building structures, we reduce dangerous illness, before it even starts. We reduce the cycle of crime, whatever folks are worried about in terms of criminality, that these programs have been shown through study after study to reduce

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the likelihood of crime occurring in the first place, and makes us all just appreciably.

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I hate to use the word safer, but I just want to say, more more productive, live more fruitful. It makes a society just in general, more supportive for all. Professor Hi, thank you so much for joining us and for discussing your article. Thank you. Thank you have so much faith and

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We hope you've enjoyed this episode of The California Law Review podcast. If you'd like to read Professor Hayat’s article, you can find it in Volume 110 Issue 3 of the California law review at Californialawreview.org. For updates on new episodes and articles, please follow us on Twitter. You can find a list of the editors who worked on this volume of the podcast in the show notes. See you in the next episode.