The timeless trope of the Miranda warning is familiar to most anyone who’s watched a post-Perry Mason police questioning: The U.S. 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 while 90% 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. That’s also the case in Denver and throughout Colorado.
Put another way: If faced with a night in jail, we as a society ensure legal representation. But if faced with eviction-driven homelessness, individuals (and their families) are expected to navigate the legal process alone.
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.
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, including here at home, are turning to a more systematic approach to the nationwide eviction crisis, recognizing that a fair process requires lawyers for both sides: right-to-counsel laws in landlord-tenant disputes.
Building on a successful 2018 pilot project, a proposed city ordinance would guarantee counsel for renters facing eviction and who earn no more than 80% of area median income.
A second proposal from tenant advocates calls for a similar measure via ballot initiative, with a $75-per-property fee for landlords generating $12 million annually for program costs. That effort is modeled on the successful Boulder ballot initiative, which passed last year with nearly 59% approval.
As Denver elected leaders (and possibly voters) consider these measures, it’s instructive to note that right-to-counsel programs elsewhere have proven to increase legal representation, reduce evictions and homelessness, and ultimately save the city money.
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% 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% of tenants with counsel were able to avoid eviction.
Other cities with right to counsel ordinances in housing include Baltimore, Newark, Philadelphia and Seattle. Similar ordinances are being debated in Fresno and Tulsa, while pilot projects are under way in Houston and under consideration in Milwaukee.
Just last week, Maryland lawmakers endorsed a right to counsel in evictions; the legislation awaits the governor’s signature. Similar bills have been filed in seven other states: Connecticut, Massachusetts, Minnesota, Nebraska, South Carolina, Washington and New York, where it would cover those ages 62 and over.
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 data-driven 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.