Eviction right to counsel: Saving money and lives

By Peter Gorski

In Gideon v Wainwright, the supreme court guaranteed a right to counsel for criminal court cases in all states. Today, this is a foundational cornerstone of our legal system that no one of any political background questions. It is an intuitive guarantee. When faced with a criminal case, who among us feels equipped to navigate our byzantine legal system? Only those with a formal education and professional experience are prepared for such a task.

Though less considered than its criminal counterpart, the stakes in a civil court case can be very high. People in civil court can face losing their children, healthcare, employment, or housing. The civil court system also requires an understanding of the law, and the administrative skills to navigate the legal system. If we can recognize that an average individual does not have the skills, training, and time to defend themselves in the criminal legal system, shouldn’t this logic extend to civil court?

Many are saying yes, including the National Coalition for a Civil Right to Counsel (NCCRC). The NCCRC advocates for “the right to counsel for low-income people in civil cases involving basic human needs, such as housing, health, domestic violence, civil incarceration, and child custody.” And civil right to counsel is gaining steam across the country in one field particularly: Eviction court.

Eviction cases in civil court are where landlords and tenants face off to determine if the tenant will be forced to vacate their unit. It is a conflict where the balance of power is regularly stacked in favor of the landlord. Landlords, especially those owning dozens to hundreds of units, typically have lawyers on retainer. They work with lawyers to set up their business and deal with internal matters like employment disputes. Data drawn from Philadelphia’s eviction right to counsel program showed that 81% of landlords have a lawyer, while only 8% of tenants did. Landlords are also the ones filing eviction papers. They have the time and foresight to know when a case will be filed. Even without a lawyer, as a professional in the field of housing they are experienced with evictions and the civil court system. They know what they are doing and are equipped to make their case effectively.

In contrast, most tenants have little or no experience with the civil court system. They almost certainly do not know a lawyer personally or have one in mind in case of legal issues. Tenants are often blindsided by eviction filings and are left to scramble to their own defense as they deal with the stress of possibly becoming homeless. They must research the laws surrounding the case, as well as comb through their lease to ensure they understand the agreement. Landlords can also use intimidating tactics to try to trick tenants into thinking they need to vacate before they are ordered to do so by a court. If a tenant doesn’t know that the only lawful eviction must come from a court mediation or judge’s decision, they may be deceived by a fake eviction notice from a landlord. Without legal counsel or advice, tenants struggle through their cases alone.

Eviction not only takes away a tenant’s shelter. It disrupts their entire life. Eviction can have knockdown effects that can snowball and result in deeper struggles. 

A sudden move can create a far more difficult or impossible commute to work. Evictions often result in loss of possessions, including irreplaceable keepsakes. It can disrupt a child’s access to education and force them to change schools, which can cut children off from a source of needed nutrition as well. A disruptive displacement can affect child custody agreements. It can limit transportation options and access to groceries and social services. Leaving behind the neighbors and neighborhood, it also results in loss of community.

Eviction filings are open records, and landlords often check them when screening potential tenants. La Crosse has a rental unit vacancy rate of around 3.5 percent, which is around half the national average. It is a landlord’s market, and they have the luxury to be selective with the tenants they choose. Even if a tenant is not evicted and the filing was entirely baseless, tenants in Wisconsin have an eviction record following them for 2-years, inhibiting their future pursuit of housing. Only judges can seal or redact those records. That requires the tenant to know about this loophole and force the case to go all the way in front of the judge. If the tenant settles out of court or the landlord drops the filing, the tenant must push for the case to stay open and get in front of a judge to clear their name. If a tenant is evicted, they are faced with a 7-year record that will show up on screenings.

The solution is simple. Government, at some level, can step in and guarantee legal counsel for any tenant with an eviction filed against them. This begs another question: Will providing legal counsel really improve outcomes?

The answer is unequivocally yes. To date, several states and municipalities have implemented eviction legal counsel programs. Connecticut, Maryland, and Washington all have state legislation that provides legal counsel to tenants facing eviction. Rochester NY, Baltimore MD, Boulder CO, and San Francisco CA have programs in place at the city level guaranteeing counsel to every tenant. Louisville KY, Cleveland OH, Newark NJ, and Philadelphia PA, all have programs as well, albeit with some qualification for tenants, generally related to family income and/or presence of children in the household.

These programs show staggering statistical success. New York City’s program shows 86% of individuals represented by counsel remained in their homes. Eviction filings have dropped by 30% and eviction judgements have dropped by 41%. NYC estimates their savings at $320 million through decreased use of affordable housing units and decreased shelter costs.

Cleveland’s program has resulted in 93% of tenants who retained counsel for their court proceedings avoiding eviction or an involuntary move.

Milwaukee County Supervisor Ryan Clancy has proposed a right to counsel for all tenants in Milwaukee county using stimulus funding. Milwaukee currently has an Eviction Defense Project that works to connect pro-bono lawyers to tenants in need. A review of cases from 2017-2018 show that each dollar invested in eviction defense returned $2.23 to the county. Homelessness is very expensive. An ounce of prevention is worth a pound of treatment here. Keeping people in their homes helps them thrive and prevents myriad other risks that could lead to costly and destructive social problems. Decreasing homelessness lowers the burden on police. Homelessness is often criminalized under our current paradigm, and police resources are wasted. The Project data shows that 90% of tenants who get representation get their case dismissed or delayed, allowing them time to plan a safe, effective exit.

Preliminary research from Philadelphia showed that 78% of tenants that represented themselves were disruptively displaced, 12% of evictions are unjust, and 20% of shelter use is due to evictions. The conclusion is clear. Legal counsel will reduce evictions, homelessness, and shelter use. Implementing legal right to counsel for eviction cases decreases human suffering and saves money.

La Crosse averages something between 300-400 eviction filings per year. In comparing case numbers to the caseload for similar programs, a cost estimate for right to counsel comes out around $150,000-200,000. This would be based on every single tenant using these services, which almost certainly won’t be the case. Landlords will be much less likely to file frivolous cases if they know they will face a trained lawyer in court, resulting in a decreased burden on the court system, and further lowering the cost for the eviction counsel program itself.

The American Rescue Plan is sending tens of millions of dollars into our community. Chunks of this funding could be spent on addressing homelessness. The county of La Crosse, in partnership with the municipalities receiving bailout funds, should use this once in a generation opportunity to establish eviction right to counsel. The savings in police resources, court time and resources, and lowered need for services to alleviate homelessness will offset much if not all of the cost. If Milwaukee’s research carries over to La Crosse, it will be a net gain for local government budgets and public health.

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