The Case For A Right To Counsel In Housing Court

THE CASEFOR A RIGHTTO COUNSELIN HOUSINGCOURTJamila Michener, Associate Professor in the department of Governmentat Cornell UniversityJuly 2020

EXECUTIVESUMMARYThe coronavirus pandemic has dramaticallyand ominously shifted the scale of the evictioncrisis in the United States. Short of extensive,multipronged legislative action, estimatessuggest that anywhere from 19 to 23 millionrenters (or 11 million renter households) areat risk of eviction between summer and fall2020. Congress must take immediate action toaddress the eviction crisis by providing states andlocalities with the resources needed to ensure thatindividuals receive full legal representation inhousing court.With no constitutionally guaranteed right torepresentation in U.S. civil courts, roughly 90%of tenants do not have lawyers, and face strikingdisadvantages as they navigate complex housingcourts. Guaranteeing legal representation toindividuals facing eviction is one way to addressthe most imminent need. There is strongbipartisan support for increasing legal protectionsto prevent evictions: Polling by Data for Progressshows that 60% of likely voters support increasedfunding for legal services to prevent evictions.And 59% of likely voters support, while only 19%oppose, a right to counsel in eviction cases.INTRODUCTIONThe United States now faces a housing crisisof unprecedented proportions. Even before thepandemic, 25% of all renter households wereconsidered extremely low income. Seventy-onepercent of those low-income households facedsevere housing cost burdens, spending more than50% of their income on housing. These householdswere already on the financial brink, confrontinga high-priced housing market that put rentTHE CASE FOR A RIGHT TO COUNSEL IN HOUSING COURTout of reach for many low-income Americans.Coronavirus has now pushed many of them overthe edge. As a result, a massive wave of evictionsthreatens to displace millions of people from theirhomes. Evictions aggravate homelessness andpoverty, harm families, imperil health, destabilizeneighborhoods, and perpetuate racial inequality.States and localities urgently need federalresources to address this crisis.Evictions operate through the force of a legalsystem that severely disadvantages tenants.Because there is no constitutionally guaranteedright to representation in U.S. civil courts,roughly 90% of tenants facing eviction do nothave lawyers, while up to 90% of landlordsdo. Unrepresented tenants are at a significantdisadvantage as they navigate complex housingcourts that are not user friendly.Ensuring legal representation in housing courtis one way to prevent some of the destructiveoutcomes associated with being evicted. Agrowing “right to counsel” movement hasbrought together tenants, organizers, lawyersand legislators to advocate for this policy. Recentlegislation passed in New York City, San Francisco,Newark, Philadelphia, and other cities providessignificantly expanded access to legal counselin housing court. Studies show that these policychanges have the potential to dramaticallychange outcomes. In New York City, for instance,84% of households who had legal counsel wereable to stay in their homes. Though these citiesare unique in their own ways, most Americanssupport legislative action to provide individualsfacing eviction with greater access to legalrepresentation.2

Polling by Data for Progress shows strongbipartisan support for increasing legal protectionsto prevent evictions: Sixty percent of likely voters supportincreased funding for legal services toprevent evictions.Fifty-nine percent of likely voters support aright to counsel in eviction proceedings thatis similar to the right that already exists incriminal cases. Only 19 percent of likely votersoppose this idea.Would you support or oppose increased funding for legal services toprevent evictions?Topline 31%29%Democrat 42%14%30%Independent 20%28%28%20%11%31%Republican 27%0%17%12%12%14%40%9%10%18%60%5%13%80%100%Would you support or oppose a right to counsel in eviction proceedings, similarto the right to counsel that already exists in criminal cases?Topline 30%29%Democrat 38%28%Independent 19%29%18%31%20%11%40%THE CASE FOR A RIGHT TO COUNSEL IN HOUSING COURT16%60%8%11% 5%35%Republican 29%0%21%10%12%80%8%12%100%3

A WORSENINGEVICTION CRISISBetween 2000 and 2016, an average of 3.6 millioneviction cases were filed in the United States eachyear. As a result, 1.5 million renter householdsexperienced eviction each year—more than thenumber of owner households that confrontedforeclosure at the height of the great recession.Though troublingly high, these numbers actuallyunderestimated the severity of the evictionproblem in the United States, given knownundercounts in places like California and NewYork and the difficulty of tracking illegal evictionsthat were not mediated via the courts.In the wake of a global pandemic, the scaleof the eviction crisis in the United States hasbeen dramatically altered. With over 30 millionAmerican workers collecting unemploymentbenefits, many people are struggling to pay forrent and other basic needs. Short of extensive,multipronged legislative action, estimates suggestthat anywhere from 19 to 23 million renters(or 11 million renter households) are at risk ofeviction between summer and fall 2020.SWELLINGHOUSING COURTSBecause formal evictions must be handledthrough civil legal proceedings, more rentersfacing eviction translates into increaseddemands on courts. Housing courts were alreadyovercrowded and underfunded before thepandemic. Now, operating under the specter of apublic health threat, they are slowly reopening,sometimes in the face of substantial publicpushback. A National Housing Law Project (NHLP)survey of legal aid attorneys indicates that 85%THE CASE FOR A RIGHT TO COUNSEL IN HOUSING COURTof attorneys expect a dramatic surge in evictioncases as moratoria expire in the coming weeks andmonths. Given this context, civil lawyers expressserious concerns about capacity, due process, andequity for racially and economically marginalizedpopulations.THE PROMISEOF LEGAL COUNSELAdvancing a right to counsel is not unprecedented.New York City provides the best evidence insupport of doing so. NYC passed “right to counsel”legislation (Intro 214-b) in 2017 that guaranteedrepresentation in housing court to all New Yorkersliving at or below 200 percent of the federalpoverty line. Examining the effects of this effortdemonstrates the remarkable promise of legalservices in preventing evictions and protectingtenants from predatory landlords. Since theenactment of Intro 214-b (which has been onlypartially implemented and will not be fully rolledout until 2022), rates of legal representation fortenants in NYC housing courts have risen from1% (in 2013) to 38% (in 2019). In this time period,evictions have dropped by 41% overall, includinga 15% drop in 2019 alone. Eviction filings havedropped by 30% and default judgements by 34%.Perhaps most crucially, 84% of households whowere represented by counsel remained in theirhomes and preserved their tenancies.Other studies have demonstrated howpowerful legal representation can be for peopleexperiencing a housing crisis. For example, astudy of California pilot programs providinga number of housing related services tolow-income individuals, including full legalrepresentation, found that tenants were morelikely to retain possession of their homes, have4

more days to move, and receive better financialand credit-related outcomes. Access to full legalrepresentation also significantly increased thelikelihood of settlement, with 70% of individualsin the program resolving their cases by settlementand only 5% by trial. Another study in Minnesotafound that fully represented tenants won orsettled 96% of cases, as compared to 62% ofunrepresented individuals. Additionally, thesettlements reached by fully-represented tenantswere much better, with nearly twice as manytenants allowed to stay in their homes or receivetwice as much time to move. Tenants with fullrepresentation were also four times less likely touse homeless shelters.CONCLUSIONGuaranteeing legal representation to people facing eviction does not solve everything. Housinginstability stems from profound racial and class inequities embedded in our social, economic, andpolitical systems. Moreover, the actual laws that tenants face once they are in court dictate andconstrain what even a lawyer can do for them. All of this means that policies bolstering resources forcivil legal assistance should go hand-in-hand with more transformative proposals that alter the largerpolitical economy, changing the rules of the game that have been failing so many people for so long.Even with this bigger picture in sight, the imperative of providing resources for legal counsel is urgent.Civil legal attorneys can help to meet the most immediate and pressing need: keeping people in theirhomes now. More affirmatively, experiences with civil legal organizations can stabilize and supportcommunities in ways that build power within them and plant seeds to strengthen future efforts insupport of housing justice for all.METHODOLOGYFrom 7/17/2020 to 7/17/2020 Data for Progress conducted a survey of 1,225 likely voters nationallyusing web panel respondents. The sample was weighted to be representative of likely voters by age,gender, education, race, and voting history. The survey was conducted in English. The margin of error is /- 2.8 percentCOVER PHOTOTingey/UNSPLASHTHE CASE FOR A RIGHT TO COUNSEL IN HOUSING COURT5

OF LEGAL COUNSEL Advancing a right to counsel is not unprecedented. New York City provides the best evidence in support of doing so. NYC passed "right to counsel" legislation (Intro 214-b) in 2017 that guaranteed representation in housing court to all New Yorkers living at or below 200 percent of the federal poverty line.