Saving One’s Home: Collateral Consequences for Innocent Family Members


Mrs. Smith, a resident of public housing for 30 years, had eviction proceedings brought against her after her 16 year-old son was found in possession of cocaine several blocks from her apartment. Unable to afford or retain an attorney, Mrs. Smith appeared at her administrative hearing without counsel. Unaware of the law and administrative procedures, Mrs. Smith refused to sign a stipulation agreeing to probation and permanent exclusion of her son from her apartment. During the hearing, Mrs. Smith did not submit proof of the mitigating circumstances that would have established her eligibility to remain in her apartment. The Hearing Officer rendered a determination terminating Mrs. Smith’s tenancy. Not knowing what to do, Mrs. Smith prepared to move herself, her children, and her three grandchildren out of the apartment with nowhere to go. This scenario highlights one of the most severe collateral consequences of criminal activity: eviction of innocent family members from their federally assisted housing. Routinely, eviction proceedings are commenced against a tenant of record based upon the criminal (usually drug) activity of another household member or guest. The tenant of record often is a parent or grandparent who lacks knowledge of or the ability to control the criminal activity. Yet statutory provisions may subject the entire household-despite their innocence-to eviction proceedings and potential homelessness. The harshness of these consequences is compounded by the fact that there is no right to counsel in housing matters in New York. These family members generally must attempt to defend the right to their homes without the benefit of counsel. Given the scope and complexity of the applicable federal, state, and local laws, these tenants are placed in an untenable situation. They must fend for themselves in forums that have been designed by and for attorneys, in which the culture and language are alien to them, and where they face experienced counsel who represent the public housing authority or other landlords. Without the assistance of counsel, these tenants are unable to fully access the courts and thus ensure their right to equal justice. This article will examine the federal law that is the basis for eviction of family members for drug activity of a household member, the various procedures that tenants must pursue to defend their right to remain in their home, and why an attorney is necessary at each step of the process to address this vital unmet legal need.

Suggested Reading