Reconceptualizing Public Housing: Not as a Policed Site of Control, But as a System of Support

Georgetown Journal on Poverty Law and Policy

Volume XXVIII, Number 1, Fall 2020

95

NOTES

Reconceptualizing Public Housing: Not as a Policed

Site of Control, but as a System of Support

Sarah Miller*

America’s system of mass incarceration is the product of the over-policing

of low-income people of color, often for minor offenses. A critical site of

entrenched policing takes place in the public housing context. Public housing

residents live under a system of surveillance in which they are constantly

monitored and policed. Harsh federal public housing policies – built on racist

housing prioritization for whites at the expense of Black communities – are

compounded by constitutional jurisprudence justifying outsized police

intrusion. Together, these policies and practices work to criminalize public

housing residents.

This Note argues that draconian and paternalistic public housing policies

and policing practices must be abolished. As harmful drivers of mass

incarceration, these policies further entrench poverty and dangerous

racialized notions of people living in poverty. American history includes two

contrasting stories of public housing: one for white people, involving trust,

unquestioned support, and investment, and one for Black people, characterized

by distrust, criminalization, and disinvestment. It is long past time that we

reconceptualize public housing by applying the same worth to Black residents

as has been historically and is still regularly accorded to white residents. This

can be done by envisioning public housing not as a site of marginalization and

control, but as a system of support that enables mobility and trusts those whom

it purports to help.

* Georgetown University Law Center, J.D. 2021. The author would like to thank the editors of the

Georgetown Journal on Poverty Law & Policy for their work on this Note. © 2021, Sarah Miller.

96 The Georgetown Journal on Poverty Law & Policy [Vol. XXVIII

I. INTRODUCTION ................................................................................................. 96

II. HISTORICAL BACKGROUND ............................................................................. 98

A. The Creation of Public Housing ................................................................. 98

B. The History of Criminalizing Public Housing .......................................... 100

1. Public Housing in the Public Imagination ............................................. 100

2. Reinforcing Racialized Perceptions through Policing ........................... 101

III. MODERN SURVEILLANCE OF PUBLIC HOUSING ........................................... 103

A. Policing Tactics ......................................................................................... 103

1. Fourth Amendment Jurisprudence ........................................................ 103

2. Broken Windows Policing ..................................................................... 104

3. Modern Technological Surveillance in Public Housing ........................ 105

B. HUD Policies ............................................................................................ 107

1. Banishment and No-Trespass Policies .................................................. 107

2. Screening Policies ................................................................................. 108

IV. RECONCEPTUALIZING PUBLIC HOUSING ..................................................... 110

A. Legal Challenges ....................................................................................... 110

B. Public Housing as Support ....................................................................... 111

V. CONCLUSION ................................................................................................. 115

I. INTRODUCTION

The home is often viewed as a comfortable place free from government

intrusion. However, public housing residents across the United States (U.S.) live

under constant surveillance and in a state of social control. Undergirding this

reality is a system of harsh federal policies, built upon an unsteady foundation of

racist housing prioritization for whites at the expense of Black people, which work

to penalize rather than support.

The surveillance and over-policing of low-income communities of color have

driven mass incarceration in the United States.1 President Nixon’s declaration of a

“War on Drugs” in 1971 and its subsequent expansion by the Reagan

administration led to the explosion of incarceration rates as law enforcement

agencies across the country, responding largely to federal incentives, began to

prioritize arrests for low-level drug offenses.2 Tragically, the policing tactics

employed during the War on Drugs, which continue to this day, reflect the

institutionalized racism grounding much of policing in America.3

1. See MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF

COLORBLINDNESS 130-37 (2010).

2. See A Brief History of the Drug War, DRUG POLICY ALLIANCE,

https://www.drugpolicy.org/issues/brief-history-drug-war (last visited Dec. 6, 2020); ALEXANDER, supra

note 1, at 72-84 (describing the Reagan administration’s use of federal incentives to expand the reach of

the War on Drugs).

3. See ALEXANDER, supra note 1, at 7 (studies show that while “people of all colors use and sell

illegal drugs at remarkably similar rates,” in some states, Black men are incarcerated for drug crimes “at

rates twenty to fifty times greater than those of white men”).