By John Pollock, National Coalition for a Civil Right to Counsel
Because of shows like Law and Order, most people know the warning that “if you cannot afford a lawyer, one will be provided to you.” But they may not realize the warning only applies to criminal cases, due to federal law embedded in the Constitution that requires the government to provide free lawyers to low-income defendants. There is no similar federal constitutional right for civil cases, even those cases – like those involving evictions – that impact basic human needs. Instead, states and cities decide whether to extend the right to counsel either through legislation or a court decision relying on the state’s constitution. Until 2017, no jurisdiction provided a right to counsel for tenants facing eviction, leaving most of the tenants involved in the 3.6 million eviction filings filed each year to go it alone.
Evictions devastate individual lives, families, and entire communities. They can lead to homelessness and all its harms – being arrested, increased health problems, losing one’s children due to having an unstable home, and more. Even when it doesn’t lead to homelessness, an eviction on a tenant’s record can make it almost impossible to find new housing, and if tenants don’t have enough time to find a new place, their belongings may wind up on the street. Additionally, tenants of color, particularly Black women, experience eviction at disproportionate rates. Without a right to counsel, representation in eviction cases is greatly imbalanced: on average, only 3% of tenants are represented nationwide, compared to 81% of landlords.
Decades of research shows that tenants facing eviction who have lawyers are far more likely to remain in their homes. But where such relief is not possible, represented tenants more often avoid evictions on their records, get more time to move, receive reduced or eliminated rent judgments, and avoid forced displacement than tenants without lawyers. The research also shows that the costs associated with evictions, such as the creation and upkeep of homeless shelters and the provision of emergency medical care, are more expensive for cities and states than the costs of representation. Finally, and perhaps most critically, representation helps build tenant power individually and communally, as it helps tenants see their rights as real and enforceable while also empowering them to exercise those rights with less fear of retaliation by the landlord.
Recognizing all of this, tenants, community organizers, legal services programs, and other advocates across the country began fighting for the right to counsel. The combination of early victories plus a pandemic that put close to 40 million families at risk of eviction further drove the movement. As a result, three states – Connecticut, Maryland, and Washington – and 15 cities – New York City, San Francisco, Newark, Cleveland, Philadelphia, Boulder, Baltimore, Seattle, Louisville, Denver, Toledo, Minneapolis, Kansas City, New Orleans, and Detroit – have enacted a right to counsel for tenants facing eviction in just the last five years. In some places, all tenants are eligible, while other jurisdictions have eligibility requirements, such as income limits or having children.
In New York City, tenants and organizers at Community Action for Safe Apartments and the Right to Counsel NYC Coalition (RTCNYC) identified right to counsel as an issue that could transform the power dynamic between landlords and tenants. RTCNYC spent four years running a campaign to provide a right to counsel for all families facing eviction with income at 200% or below of the federal poverty level. In 2017, New York City became the first city in the country to provide such a right. Given that hundreds of thousands of evictions are filed in New York City every year – more than anywhere in the country – this was a major victory for tenants.
“RTC signaled a seismic shift of tenant power and rights in and outside the housing court,” explains Susana Blankley, the RTCNYC coordinator. “In buildings and neighborhoods across NYC, tenants have used right to counsel to organize, launch rent strikes, and so much more. Inside the court, tenants show up more to say not only are we going to fight for our homes but we are going to fight to uphold our rights in the court.” Blankley adds that “the national movement that took off after our win is inspiring. Across the country, folks are saying we don’t have to accept evictions as normal, and we can build campaigns to take power back.”