As the evictions crisis loomed, the Federal Reserve Bank of Kansas City looked for policy responses that might help. The Bank was approached by the Legal Aid Society of Oklahoma, which suggested looking at the right to counsel for tenants facing eviction. It seemed to be a policy response that was needed, targeted, unique in the state, and, to a large degree, unique in the nation. It addressed both short-term needs and offered a long-term solution.
The Kansas City Fed partnered with the Legal Aid Society of Oklahoma and the Oklahoma Access to Justice Foundation on informational meetings for interested parties in Oklahoma City and Tulsa. Participants included city council members, city staff, county commissioners, housing advocates and a few engaged funders. At the first meeting, we shared perspectives on the issue. At the second, John Pollock, coordinator for the National Coalition for a Civil Right to Counsel, shared the national picture and representatives from Cleveland, Ohio, discussed a local program. Since then, working groups have formed in both Oklahoma cities. Other cities in the Tenth District also are interested.
About John Pollock
Pollock is a staff attorney for the External LinkPublic Justice Center and since 2009 has been coordinator of the External LinkNational Coalition for a Civil Right to Counsel (NCCRC). His work focuses on establishing the right to counsel for low-income individuals in civil cases involving basic human needs such as child custody, housing and benefits. He received the 2018 Innovations Award from the National Legal Aid and Defender Association (NLADA) and is on an advisory committee for the American Academy of Arts and Sciences. Pollock graduated in 1994 from Wesleyan University and in 2005 from Northeastern University School of Law.
About the civil right to counsel
The Supreme Court ruled in 1963 that individuals charged with serious crimes (and later juveniles charged with delinquency offenses and people charged with misdemeanors) have a right to counsel. Yet many people do not realize that this broad right only applies to criminal cases, not civil cases; the Supreme Court's approach to civil cases has been viewed as less protective. As a result, the right to counsel in civil cases varies by External Linkwhat state you’re in and the type of case. Overall, according to the NCCRC:
- No state guarantees a right to counsel for a person in cases involving housing or access to health care.
- Few states provide a right to counsel for domestic violence or private custody proceedings.
- Fewer than half of states guarantee counsel for those jailed for failing to pay child support or a criminal fee or fine.
Magnitude of the eviction crisis
We recently had a virtual conversation with Pollock about the civil right to counsel and the effect it has on those who need it. The conversation coincides with looming evictions for many in the Tenth District.
- The U.S. Census Bureau’s Household Pulse survey indicates about a quarter million renter households in the Tenth District may be at risk of eviction for non-payment of rent.
- According to Eviction Lab, in 2016 both Oklahoma City and Tulsa ranked in the top 20 in the nation for evictions, a situation likely to be exacerbated by pandemic-related job losses.
- Across the Tenth District, about 45% of renter households earning less than $35,000 a year spend more than half their income on rent, making them susceptible to eviction if they experience any loss of income.
The Q and A
KC Fed: What is ‘right to counsel’?
Pollock: Basically, it’s ensuring that people who are in civil cases involving basic human needs are entitled to a lawyer when they can’t afford one. There is not one definition of “basic human needs” that means the same thing everywhere. It’s up to each jurisdiction to decide what fits, such as housing, child custody, health, domestic violence, sustenance-related matters such as public benefits, and people who are being incarcerated for other than criminal cases.
In the past several years, the work we’ve done, probably 80% of the time, has been focused on evictions. The other part of our portfolio comes and goes, but evictions has been the prominent issue for the last few years.
KC Fed: What are the problems right to counsel addresses?
Pollock: There are many problems right to counsel is designed to solve.
The first is what happens to people when they get evicted. The consequences for evictions really know no limits. You lose your home and shelter. You may lose your kids if you don’t have a stable home, or your health if you’re forced to live on the street, or your job if you can’t live in the same community anymore. You may not be able to find another home because eviction is such a black mark. It’s almost like any bad thing you can imagine can happen because of an eviction.
There’s so much data showing that counsel dramatically changes what happens during an eviction proceeding. When people have lawyers, they stay in their homes more frequently, and even when they’re not able to stay in their home some of the worst results of eviction may be avoided. The lawyer may negotiate to avoid a formal eviction appearing on the tenant’s record, for example.
Around 90% of the landlords in the country have counsel, and for tenants it’s at somewhere between 1% and 5%. The eviction proceeding is basically the place where the landlord comes to get the rent collected. They’re places set up to give landlords what they want.
Right to counsel is intended to protect people and correct the balance of power. The vast majority of people in eviction proceedings are people of color, particularly black women.
KC Fed: What’s the strongest argument that renters don’t need or deserve counsel? Wouldn’t expense be a consideration?
Pollock: Not providing counsel is really expensive. Homeless shelters are expensive. Emergency hospital use is very expensive. Foster care is very expensive, and that often is where kids wind up. Mental health care is very expensive. These are all very real consequences of evictions. There have been studies, the connection between eviction and how much all of these things happen. It’s quite a strong connection.
Because 90% of landlords show up with lawyers, it would be pretty hard for them to say that tenants shouldn’t have counsel when tenants stand to lose everything. For landlords, it’s an investment, but for tenants it’s their home.
Also, some landlords or their attorneys will tell you it’s easier to resolve these issues with tenant attorneys. That’s because if the relationship between the landlord and tenant has broken down it can be easier to resolve problems if it’s two attorneys working on the solutions.
KC Fed: What are some examples of successful implementation of right to counsel?
Pollock: Eight cities have passed right to counsel. Seattle was the eighth, and that happened yesterday (March 29, 2021). In the Tenth District, Boulder (Colorado) passed the right to counsel in November.
It usually takes six months to a year after the law passes to get the program off the ground. Only three of the eight cities have been implemented long enough to have data showing the impact. In New York City, 86% of people represented by counsel are staying in their homes. In San Francisco, 67% are staying in their homes. In Cleveland, 93% of those who have been represented have avoided an eviction or an involuntary move.
Another statistic we look at is whether eviction filings go down. We know that some of these filings are completely bogus. They only get filed because the odds are that, without a lawyer, the tenants won’t know their rights. And, in fact, in New York City evictions filings went down by 30% with right to counsel. For a filing drop off of that magnitude, you need the landlord to know not that the tenant might have a lawyer, but that they will have a lawyer.
KC Fed: What are you doing next to expand right to counsel?
Pollock: With housing, eight states have introduced right-to-counsel bills this year alone and we expect another two to do so soon. Getting a state to pass it is a big deal. Getting the federal government to commit serious resources to funding right to counsel at the city and state level is another big goal.
We are seeing a greater awareness of what’s at stake here. There’s a perception that criminal cases are high and civil cases are low in terms of importance. That understanding is changing. Just because it’s called “civil” doesn’t mean it’s less important. Whether it’s losing your children, your ability to make decisions, losing or obtaining a protective order for domestic violence, whether it’s literally going to jail … the awareness is changing. People are getting the message. Lack of awareness that the right to counsel doesn’t already exist in some of these areas, as well as the importance, has been one of the biggest stumbling blocks to expanding right to counsel in the past.
The right to counsel exists in a lot of areas outside of housing. States do pretty well in providing counsel for things like when the state removes children, civil incarceration, guardianship. These are areas where the majority of states do provide right to counsel.
Just like in housing, there are collateral consequences for not dealing with these situations. People are jailed for not paying a court fine, so now we’re paying to incarcerate them. So, they lose the job they had, and it’s gone when they get out of jail. It’s expensive. The consequences mean we’re not saving money, we’re spending it in the worst way. I call right to counsel preventative legal medicine.
KC Fed: Why is this issue important to you? Is there anything in your own experience that has led to this becoming a cause?
Pollock: When I was in law school, I volunteered for a legal clinic starting the year before I went to law school and continued throughout law school. The more cases I worked, the more I thought, “this is crazy.” I was a law student under the supervision of a lawyer, I was well educated, and I was struggling to keep up with some of this stuff. It doesn’t make sense making people do this by themselves.
I started doing work around enforcement of the Fair Housing Act. It was impossible without a lawyer. The system makes no sense. We take it for granted that these people lose cases that are actually very winnable. They did a small study in Virginia. The National Center for State Courts looked at civil cases. When only the plaintiff was represented, the plaintiff won 60% of the time. If both plaintiff and defendant were represented, the plaintiff only won 20% of the time. Having a lawyer is a game changer. It has little to do with right or wrong, what the facts are. It’s about who has a lawyer.
This is about racial equity. This is about the power imbalance. Those are why right to counsel needs to happen. But it’s undeniable that the cost savings are there too. Studies look at the cost benefits of providing right to counsel in housing court. It’ll save millions. Those same cost savings exist outside of housing too. We’re being fiscally irresponsible by not providing it.