Renters should have the right to a lawyer
The timeless trope of the Miranda warning is familiar to most anyone who’s watched a post-Perry Mason police questioning: The Constitution guarantees criminal defendants the right to an attorney — including court-appointed advocates for those who can’t afford one.
Far fewer realize such broad federal protections don’t extend to civil law, including for those facing eviction. Research shows that in many cities while 90 percent of property owners typically have the resources to hire a lawyer, the vast majority of tenants in these cases don’t have their own legal advocate.
With tens of millions of renters at risk of homelessness, the recent extension of the federal Centers for Disease Control and Prevention’s eviction moratorium recognizes the public health risks of turning people out of their homes during a global pandemic.
“Evicted renters must move, which leads to multiple outcomes that increase the risk of COVID-19 spread,” the emergency order states.
Despite its promise, the moratorium hasn’t stopped evictions, with various exemptions and loopholes — including no requirement that landlords actually have to inform tenants about the emergency CDC rule — tilted in favor of property owners.
Outside Washington, D.C., a growing number of cities are turning to a more systematic approach to the nationwide eviction crisis: right-to-counsel laws in landlord-tenant disputes.
In 2017, New York City enacted the nation’s first right-to-counsel law for those facing eviction in housing court. Not only has legal representation of defendants increased, but eviction filings are also down, and almost 90 percent of households with counsel have been allowed to stay in their homes.
In San Francisco, where voters approved a 2018 ballot measure ensuring right to counsel for those facing eviction, such filings are also down. And in Cleveland, which adopted its program in 2020, data for its first six months shows that 93 percent of tenants with counsel were able to avoid eviction.
Those cities are joined by Baltimore, Boulder, Newark, Philadelphia and Seattle, where elected leaders have approved yet another right-to-counsel ordinance. Similar ordinances are being debated in Fresno and Tulsa. In Denver, organizers and city leaders alike are pushing to bring voters a right-to-counsel ballot measure in the fall, and a pilot project is under consideration in Milwaukee.
At the state level, tenant right-to-counsel bills have been filed in eight states: Connecticut, Maryland, Massachusetts, Minnesota , Nebraska, South Carolina , Washington and New York, where it would cover those ages 62 and over.
Here in Houston, where only 3 percent of tenants in the 32,000-plus eviction cases processed in 2020 had attorneys, Lone Star Legal Aid is working with a coalition of eviction defenders to offer our own pilot program, the Eviction Right to Counsel Project, in a small number of area Justice of the Peace courts.
The coalition is comprised of Lone Star Legal Aid, Houston Volunteer Lawyers, South Texas College of Law, Thurgood Marshall School of Law’s Earl Carl Institute and the University of Houston Law Center.
The only program of its kind in Texas, ER2C provides any eligible applicant full representation in eviction court. Since July 2020, that’s meant legal representation in more than 300 eviction cases, on behalf of nearly 750 people.
Public support for such legal protection is high. A February survey of likely voters nationwide found that across party lines, more than two-thirds support a right to counsel in eviction proceedings “similar to the right that exists for criminal cases.” Similarly high margins of support were expressed for increased funding of legal services by Congress to prevent evictions.
The country’s eviction crisis ravaged low-income and marginalized communities long before COVID-19’s arrival. And as the CDC notes, eviction results in increased homelessness and forces families to stay in shelters, in cars, or with friends and families as they double up and surf from couch to couch.
This type of overcrowding and transiency increases the risk of COVID-19 exposure, infection and death and furthers health inequities among people of color.
It’s against this backdrop that Congress tasked the nonprofit Legal Services Corporation, the nation’s largest funder of civil legal aid, to examine how varying state and local laws affect eviction outcomes.
Once completed later this year, that work will enable LSC to develop datadriven interventions to address the root causes of housing instability in the hardest-hit communities.
But more immediately, the nation must not withhold lifesaving supports, including expanding the civil right to counsel when eviction is at stake.