ONE STRIKE FOR THE POOR AND HOW MANY FOR THE REST OF US?

Several weeks ago the nation learned of the arrest of Florida Gov. Jeb
Bush's daughter, who was charged with trying to buy the drug Xanax
with a fraudulent prescription. Bush and his wife quickly issued a
press release stating that they were deeply saddened by their
daughter's troubles and asking the public to respect the family's
privacy. The governor also noted that drug abuse is a problem
confronted by many American families. Several days later, the media
reported that his 24-year-old daughter had entered a drug treatment
program, which upon completion would result in dismissal of the
criminal charges against her.

Pearlie Rucker, a 63-year-old great-grandmother who has lived in
public housing in Oakland, Calif., since 1985, would understand the
full measure of the Bush family's burden. She lives with her mentally
disabled daughter, who was found in possession of illegal drugs three
blocks from Rucker's apartment.

Unlike Gov. Bush, however, the Oakland Housing Authority thought that
a daughter's drug problem was anything but a private family matter.
Instead, the housing authority invoked the U.S. Department of Housing
and Urban Development's "one strike and you're out" policy: As a
consequence of her daughter's drug crime, Rucker, her daughter, two
grandchildren, and one great-granddaughter were faced with eviction in
late 1997.

HUD's one-strike policy is founded on the Anti-Drug Abuse Act of 1988,
which requires that all public housing leases prohibit criminal
activity on or near the premises by a tenant, guest, or other person
under the tenant's control. That statute was amended in 1990 to
require that such leases contain a provision that "any drug-related
criminal activity on or near such premises, engaged in by a public
housing tenant, any member of the tenant's household, or any guest or
other person under the tenant's control, shall be cause for
termination of tenancy." The law was amended again in 1996 to change
the phrase "on or near" to "on or off" such premises.

In 1996, the Clinton administration announced a one-strike policy
requiring eviction under the statute and HUD regulations. Eviction
does not depend on actual guilt or a criminal conviction; a mere
accusation is sufficient to kick a family out of its home.

Which gets us back to Pearlie Rucker, one of thousands of innocent,
desperately poor, often frail, elderly, and disabled public housing
tenants across the nation who have been affected by the one-strike
policy. Rucker is the name plaintiff in HUD v. Rucker, which was
argued before the U.S. Supreme Court on Feb. 19. She had prevailed in
the trial court and before the U.S. Court of Appeals for the 9th
Circuit sitting en banc (following an initial reversal by a divided
appellate panel).

The parties in HUD v. Rucker agree that their case is governed by
Chevron U.S.A. v. Natural Resources Defense Council Inc. (1984), in
which the Supreme Court set forth an interpretative framework for
judging when agency regulations appropriately reflect legislative
intent. But the parties disagree on just what it is that Congress
intended. HUD argues that the statutory phrase "any drug-related
criminal activity" is all encompassing and thus imbues housing
authorities with the power to evict -- or not evict -- tenants
regardless of their knowledge or complicity in the drug activity of a
relative or guest. The department points out that there is no
"innocent tenant" defense in the language of the statute. To
illustrate its point, HUD even goes so far as to argue (in its brief
to the Court) that if a tenant's child were caught smoking marijuana
3,000 miles away, eviction of the tenant would be permitted.

Rucker's lawyers respond that the law simply can't be interpreted to
yield such absurd results. Their principal argument is that nothing on
the face of the statute -- nor in its legislative history -- demands
the expansive, draconian interpretation that HUD has given it.

Rucker's lawyers also point to the forfeiture provisions of the
Controlled Substances Act. When the federal housing act was amended in
1988 to require leases prohibiting criminal activity, those forfeiture
provisions were also amended to cover leasehold interests.
Importantly, the Controlled Substances Act already had a provision
that does not permit forfeiture unless the owner had knowledge of or
gave consent to the offense. These protections were expanded in the
Civil Asset Forfeiture Reform Act of 2000.

Taken together, Rucker's lawyers say, this demonstrates that Congress'
intent was never to evict innocent tenants. They also contend that
because public housing authorities are state actors, due process
attaches to the public benefit they provide, and due process does not
permit such irrational and arbitrary deprivations of public benefits.

Compare And Contrast

Ostensibly, Rucker will be decided on such statutory interpretation
grounds. But whether the Supreme Court finds ambiguity or clarity,
something other than purely jurisprudential concerns should inform its
decision. As three poverty lawyers who have handled hundreds of public
housing eviction cases, we are struck by the flawed assumptions and
hypocrisy that underlie this case.

Context matters. After all, what really separates Pearlie Rucker and
her daughter from Gov. Bush and his daughter? Or even from President
George W. Bush and his daughters?

Rucker and the Bush brothers are all residents of a species of public
housing. All have a daughter who at one time or another had legal
problems with alcohol or drugs. But the consequences flowing from the
Bush daughters' problems are far different from those that Rucker has
faced. Even Jeb Bush's daughter, an adult by any definition whose
apparent crime cannot be explained away as youthful indiscretion, is
not locked up. Instead, she's receiving medical treatment -- an option
not readily available to public housing tenants.

So if the law really does authorize the eviction of Pearlie Rucker,
that would demonstrate not only a mean-spiritedness on the part of
government officials but also an unmistakable double standard. There
is nothing intrinsic to the concept of a one-strike policy that makes
it applicable only to drugs or to public housing tenants. Perhaps the
reason for its exclusivity lies in the lack of regard our society has
for the poor -- or at least our superficial and class-tainted
perception and definition of government benefits.

If one-strike is a just and effective policy tool, then why shouldn't
it apply to the rest of us? After all, most of us receive valuable
public benefits. Our government's largest and most sacred housing
program is the income tax deduction for homeowners' property taxes and
mortgage interest, which is four times as costly as low-income
housing. Imagine a federal statute that prohibited parents from taking
their mortgage interest deduction if their children were involved in
drug activity. Imagine that the parents' knowledge of or ability to
control that activity, as well as its location, were immaterial. In
that context, what would be the ratio decidendi of the Supreme Court's
decision? More likely than not, incredulity packaged in a formalistic
analysis that unburdens the innocent or the infirm.

Noted legal philosopher John Rawls, in his book A Theory of Justice,
discusses how to build a fair and just society. Rules for this society
must be developed behind what Rawls calls a "veil of ignorance": You
don't know your place in society, your class, or your fate. You don't
know whether you'll sit on the bench or in the dock. It's almost
certain that behind such a veil there would be no one-strike policy.
And if there were such a policy, it would apply equally to persons of
high and low station -- as well as equally to those who live in
executive mansions and those who call public housing home.

Poor And Convicted

Pearlie Rucker is guilty of nothing except, perhaps, being poor -- a
condition that George Bernard Shaw observed might be the greatest
crime of all. It does not require the brilliant mind of a Benjamin
Cardozo or the exquisite sense of justice of an Elbert Tuttle to
understand that the law should not punish people for being poor. Nor
does it require recourse to a philosopher's more perfect theory of
justice to know that the law should not authorize the eviction of the
elderly, the frail, and the disabled for the sins of those whom they
can't control.

Former independent counsel and federal appellate judge Arlin Adams
knows this very well. Adams was appointed in 1990 to investigate
whether Samuel Pierce Jr. conspired to defraud the United States and
commit other federal crimes during his tenure as HUD secretary. For
five years, Pierce mounted a defense around the contention that he was
betrayed by aides whom he apparently could not control. Eventually,
Adams decided not to prosecute. Context matters.

If you asked the Bushes what they thought of the drug problems of
Pearlie Rucker's daughter, odds are at least even that they would say
it was a private matter. In the meantime, public housing tenants
across the nation anxiously wait to learn more about the Supreme
Court's theory of justice. Either way, none of the Bushes will worry
about being evicted.