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No Evictions without Representation: Right to Counsel in Housing Courts

“You have the right to remain silent… You have the right to an attorney… If you cannot afford one, one will be provided for you at no cost to you.”

It’s an iconic movie line. Away from the big screen, however, many people don’t realize that the Fifth Amendment’s Miranda rights and the Sixth Amendment’s Constitutional right to counsel only apply to criminal cases. Evictions, however, are considered civil cases. Within civil courts, which handle routine disputes over matters such as property rights, child custody, and housing agreements, the right to counsel is not guaranteed. In housing courts nationwide, 2.3 million evictions are filed annually—and yet, only 10 percent of tenants have representation, compared to 90 percent of landlords. Even locally, the legal system is largely inaccessible for Providence tenants who arrive without legal counsel, creating an unjust balance of power by perpetuating already skewed power dynamics between landlords and renters.

Without legal counsel, tenants must navigate complex housing laws to adequately represent themselves against experienced lawyers who specialize in housing cases. For tenants who are unfamiliar with the judicial system, the courtroom’s processes and procedures are challenging to navigate. For example, a study from Seattle University showed that unrepresented litigants often have difficulty translating their experiences into compelling legal arguments and raising possible defenses.

Furthermore, even before stepping foot in a courthouse, tenants are already at a powerful disadvantage. Without a guarantee of representation, tenants are aware of the challenges they face in the housing court to present their own cases and are often discouraged from even fighting their cases. Without a complete understanding of their rights, they are susceptible to unjust agreements on conditions set by landlords, such as unrealistic move-out dates or uninhabitable housing. This is further impacted by the fact that having an eviction on a tenant’s record is a large obstacle to obtaining stable housing in the future. The threat of eviction—a threat made on an uneven playing field—is a serious risk. Evicted tenants may fall into a dangerous cycle in which they are unable to secure housing.

In response to these issues, a National Right to Counsel movement has recently gained ground. In August 2017, New York became the first city to guarantee legal representation for low-income tenants who are 200 percent below the federal poverty level. In January 2018, San Francisco followed suit when voters approved a ballot initiative to guarantee representation for all tenants facing eviction, regardless of income. Providence has one of the highest eviction rates in the northeast—nearly triple that of Boston’s—and would benefit from implementing the right to counsel in housing court.

Although the costs of such a program are significant, the city would save on transitional homelessness costs such as shelters and services. A study by Stanford law found that sheltering a family costs about $30 per night, and the average family stays for 60 days. According to the local CrossRoads RI, it costs taxpayers an average of $31,617 annually for one homeless individual. With over 1,580 annual evictions occurring in the city, according to the most recent 2016 statistic, Providence could see savings related to the high cost of homelessness. Additionally, the Right to Counsel NYC Coalition projected that the city would also save on administrative costs, as unfounded cases would be less frequent if everyone had access to lawyers knowledgeable about housing law.

In both San Francisco and New York, the cities are implementing Right to Counsel by providing funding to existing nonprofit legal service providers, which will allow them to scale up their operations. In San Francisco, this process is still developing, but after identifying recipients of funding, the city is now on track for full program implementation by July 2019. Due to New York’s size and limited capacity, the city is phasing in legal representation to specific zip codes over five years. Less than two years in, evictions have already dropped by 14 percent. This policy has quadrupled the number of tenants who are now able to access city-funded legal services.

Just as tenants in San Francisco and New York were reliant on pro bono and nonprofit legal services prior to Right to Counsel legislation, Providence’s tenants are currently dependent on organizations that offer legal assistance for evictions. These organizations include Rhode Island Legal Services, the Volunteer Lawyer Program (assistance provided by pro bono lawyers), and the Rhode Island Center for Justice. Although Providence is much smaller than New York or San Francisco, these organizations would need to enormously expand their capacity to adequately provide counsel for tenants. Public defenders are notoriously swamped with overwhelming workloads that hinder their ability to effectively do their job defending clients. In order for this program to work, Providence should expand purposefully and slowly, providing enough trained and prepared lawyers to meet demand.

Due to limited capacity, Providence should also consider following New York’s model by providing eviction legal services to low-income tenants—with a small alteration. Although New York’s requirement of being 200 percent below the federal poverty level does focus on those most vulnerable under the system, it leaves out a significant chunk of the population that also struggles in eviction courts, including those who make minimum wage. Providence should consider starting with tighter income requirements but then expanding beyond New York’s current levels once sufficient capacity is available to do so. This will help guarantee that those who cannot afford a lawyer in housing courts will receive the assistance they need and deserve.

With modifications like these to fit Providence’s local context and needs, Right to Counsel is a way to rebalance our justice system and create a fair housing system. It is a national movement that is gaining ground, and Providence would be wise to take note and tackle the city’s burgeoning eviction crisis.

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