This story originally appeared in Truthout on July 24, 2022. It is shared here with permission.
The multiple ongoing crises around housing across the United States are actively corroding the lives and livelihoods of millions. When tenants are evicted from their homes at the whim of their landlord, oftentimes, their difficulties have only just begun — a sequence of destructive individual and social consequences regularly follows.
Landlords nationwide are generally able to evict tenants with ease. Tenant law structures tend to be overwhelmingly friendly to the propertied class, and filing fees are minimal. More often than not, rentier owners are able to steamroll their tenants in court by fielding legal representation, which they utilize in around 80% of eviction cases. Tenants, meanwhile, have a lawyer to defend them, on average, only 3% of the time.
Such vast disproportionality puts the lie to the pretense of justice in the majority of eviction proceedings. The codification of a tenant right to counsel — i.e., enshrining the legal right to a public defender in eviction court — would rebalance power dynamics, disincentivize the kneejerk recourse to eviction and deter exploitation and abuses of many kinds, with major positive ramifications for all renters — especially the marginalized.
In the last five years, advocates and organizers, recognizing a tenant right to counsel’s outsize potential, have seized upon the opportunity. Nationwide, the work of committed advocates — including tenants’ unions, socialist organizers, housing rights activists and legal aid organizations — has produced tangible progress on real-world implementations of what was once an entirely unrecognized civil right in the US.
The promise of these efforts is traceable to both the dogged work of legal aid programs and the transformative power of collective action taken by tenant’s unions, community associations and organizers who seek to recalibrate the tilted scales.
An Incessant Stream of Displacement
Evictions are a pernicious and pervasive feature of the US rental market. From 2000 to 2018, on average, around 3 million households faced eviction filings per year — 7% of the renting population. More recently, despite eviction moratoriums, unemployment and CARES Act aid payments during the pandemic, expulsions have persisted: Landlords have filed over a million evictions since March 2020. (The moratoriums have also proven markedly porous, and enforcement has been patchy at best. Regardless, as emergency measures expire, evictions are again rising to pre-pandemic levels, as Mike Ludwig has reported for Truthout.)
This incessant stream of displacement is, again, enabled by the imbalance of power between renters and landlords in housing court. The disparity has been recognized, even before the recent spate of organizing, by legal aid organizations like the National Coalition for a Civil Right to Counsel, a project of the Public Justice Center. The coalition pushes for public defenders in civil cases, which includes housing court. (The US is an outlier among developed countries in failing to guarantee civil-court defense.) Truthout spoke to National Coalition for a Civil Right to Counsel Executive Director John Pollock about the severity of the eviction crisis and the significant progress made on right to counsel nationwide.
Pollock emphasized that the effects of evictions are far more devastating than many consider. “When you ask what’s affected by someone losing their home, the better question is what’s not affected. Everything is at risk.” Becoming homeless after an eviction — a very common occurrence — “puts you at immediate risk of arrest, incarceration and a criminal record,” he said. The strain can have an enormous impact on physical and mental health.
An eviction on one’s record precipitates all manner of future problems. Thanks to landlords’ ability to obtain data on tenant-screening reports, an eviction can follow a tenant for years and create impassable barriers to obtaining later housing. Damages to credit, court fees, rent judgments and worse can easily result. As Pollock put it, “Whether or not you’re homeless, your children may be at risk — you may lose your custody if you don’t have a stable home. Your job. Your children may have to change schools. The list is endless of the ways it can destroy a family.”
In a country with millions of evictions per year, the toll on human well-being is difficult to contemplate. Government spending on mitigating the social effects, “like homeless shelters, mental health treatment, police and jails, and prosecutors,” Pollock pointed out, far exceeds the cost of providing lawyers to tenants.
The crises of eviction and housing are tightly interlinked with sprawling systemic injustices. Evictions disproportionately impact people of color — and of those, women are particularly affected. LGBTQ+ discrimination is also rampant. Eviction prevention, via right to counsel and other means, has therefore become of great interest to organizers.
Landlords Use Evictions to Retaliate Against Tenant Organizing
Whether an eviction is “warranted” or not, advocates say, should be up for a fair court to decide, in which both parties have equal representation. While “problem tenants” of course exist, landlords also turn to eviction on disingenuous grounds: retaliating in a dispute, against tenant organizing, or if tenants complain to the rent board or the city — even the slightest pushback can result in a whiplash expulsion. Landlords may also wish to sell the building for profit, move into a unit themselves or assert their power to collect debts. (It can be advantageous to hold tenants in arrears to gain leverage.) Regardless of the motivation, these fights can be bitter indeed; cases exist of landlords naming children as defendants in eviction cases as a form of harassment and intimidation.
The tactical filing of evictions follows a path of least resistance. “If a landlord runs into any sort of dispute with a tenant, it’s so easy for them to go to court and just evict someone… They know that the tenant is not going to have counsel,” said Pollock. “Landlords that have not been complying with the law don’t really worry. Not doing repairs, overcharging tenants — no one will catch them.” When tenants represent themselves, they must navigate the labyrinthine corridors of the legal system, where even a slight misunderstanding of opaque and obscure laws can torpedo their case.
To institute a right to counsel — securing a lawyer familiar with the intricacies of the proceedings to help a tenant secure necessary documentation, understand terminology, show up for them in court if they’re at work, decrease judgments, keep an eviction off their record or buy time — is to radically rebalance the scales.
First Forays in New York City
The tide first began to shift on right to counsel in New York City, thanks to the long struggle waged by a coalition of activists, community organizers, lawyers and unionists, many of them tenants themselves. Their efforts culminated in the passage of New York City’s 2017 Local Law 136. This earlier iteration of the right to counsel was initially limited to tenants making under 200% of the federal poverty line, making it “means-tested,” i.e., subject to income caveats.
However, during the pandemic moratorium, the program was eventually expanded to all tenants across the city, making it universal, if tenuously. “100% of tenants with calendared eviction cases had access to legal services, and 71% of tenants who appeared in Housing Court had full representation by attorneys — nearly double the pre-pandemic rate of 38%, and an exponential increase over the 1 percent of tenants who had lawyers in 2013,” noted a city press release.
Follow-up reports indicate the program’s continued success into the present: 84% of tenants represented have been able to remain in their homes, evictions dropped by a fifth in some neighborhoods and positive effects on well-being have been documented across the board. Unfortunately, since March, some New York housing court judges have begun to compel tenants to appear in court without representation, due to the moratorium expiration, lawyer shortages and case backlogs. The rupture is a reminder that right to counsel cannot be taken for granted: It must be defended.
San Francisco Wins Universal Access
One way to ensure that counsel remains operational and less assailable by opponents is to make it freely available to all. Universality is also a critical element if a program is to maximize just outcomes. Income (“means”) testing puts up barriers to access, necessitates additional bureaucracy and recapitulates “welfare” stigmas.
At the feverish pace of complex eviction proceedings, and on top of the stress of an eviction, requiring that a tenant ply their way through more reams of paperwork can create a major stumbling block. As Pollock told Truthout, legal aid programs “don’t have a lot of time to even get to the tenant or get them to court… The process of getting all the documentation to verify income, it really slows things down.”
The simplest solution is to do away with means testing entirely. New York spearheaded the codification of a right to counsel, but it was organizers and tenant advocates in San Francisco who, in 2018, designed and fought for Proposition F, creating the first truly universal right to counsel in the nation.
Proposition F was driven by the No Eviction without Representation campaign. Filed by the SF Right to Counsel Committee, the measure’s backers included many members of the Democratic Socialists of America’s (DSA) San Francisco chapter, Tenants Together (and its founder Dean Preston, city supervisor, DSA member and an architect of the measure) and the SF Tenants Union, with the support of legal aid nonprofits like the Eviction Defense Collaborative. Their agitation and organizing won out on the ballot; the program became a reality, and $5.8 million was disbursed to around a dozen legal aid organizations to supply counsel.
This was a particularly pointed intervention in a city where grotesque wealth inequality and a gaping shortage of affordable housing have made eviction, displacement and homelessness commonplace — a city where, “Evictions account for 17% of individuals experiencing homelessness in San Francisco,” SF Weekly reported. Since 2009, San Francisco tenants have been served 1,700 eviction notices a year. Eighty to 90% of evicted tenants had no legal representation in housing court.
Reports through 2021 indicate that Prop F has vastly increased the proportion of tenants able to remain in their homes and led to significant reductions in rent settlements. Universality has also not hampered the program: 85% of those who use it are very low income and 9% are moderate income, meaning the rationale behind means testing is made redundant — program use has been de facto income-targeted, simply as the structural product of necessity. That said, the effort is still embattled; like New York, a shortage of tenant lawyers has dogged the program. In the initial rollout, it was not immediately available to all tenants, but more recently achieved full funding with a budget increase to $17 million. Regardless, it has already impacted many lives: The stories from tenants who were defended, like those gathered by Martin Kuz in The Christian Science Monitor, are a moving attestation to the invaluable role of tenant counsel services.
Organizers Take Notice
After these two coastal metropoles adopted their flagship right-to-counsel models, similar programs began to crop up with remarkable speed: Newark, New Jersey; Cleveland, Ohio; and Philadelphia, Pennsylvania, among them (though these examples remained means-tested).
Right to counsel was given a further boost after the onset of the pandemic. As Laura Jedeed and Shane Burley have documented for Truthout, major concerns about housing spurred increasingly strident action to aid tenants — both action in policy and the more direct varieties: e.g. rent strikes, occupations and eviction defense, amid a wider surge in tenant organizations and unions.
The momentum spread to right-to-counsel efforts in Boulder, Colorado; Baltimore, Maryland; Louisville, Kentucky; and Seattle, Washington. As Abigail Savitch-Lew catalogued several for The Appeal, by mid-2021, “Cities like Houston; Santa Monica, California; and Rochester, New York, [had] launched pilot programs, and New Jersey [had] launched a pilot in three counties.” Over the next year, Denver, Colorado; Detroit, Michigan; and Minneapolis, Minnesota, codified full rights, as did numerous local jurisdictions.
The first full state to do so was Washington, then Maryland, then Connecticut. Numerous bills, ordinances, measures and proposals of all kinds are now pending around the country. While all of these programs vary in their comprehensiveness, their durability, their universality and their funding sources, it’s become clear that, although a long road remains to achieving a national right to counsel, a certain critical mass has been achieved.
A Tenant Organizing Success in Kansas City
One of the more resounding recent successes took place in Kansas City, Missouri, where a citywide tenant’s union called KC Tenants organized behind a right-to-counsel ordinance. It was passed in December 2021, thanks to the efforts of grassroots organizers in a coalition that included the union. Implementation began this June.
Mason Andrew Kilpatrick is a community organizer with KC Tenants. In an email to Truthout, he cited the overwhelming odds facing unrepresented renters: “From 2006-2016, over 99.8% of Jackson County eviction hearings resulted in tenants losing their homes.” 2021 saw over 5,000 evictions.
One of the recently affected was Sabrina Davis, a tenant in Kansas City who, from 2020 through 2021, was put through a nightmarish ordeal. She told Truthout that faulty wiring in her rental saddled her with monthly utility bills of over a thousand dollars. Her landlord’s response, to avoid paying for repairs, was an immediate eviction. He claimed unpaid rent (fraudulently) as the rationale and attempted to mislead her into skipping a court date. When she showed up anyways, he turned to vicious retaliation.
“He’d done all these egregious things against me,” Davis told Truthout. “He took the air conditioning off the house… I came back and the locks were all changed… They’d trashed the house — they threw red paint on the walls and said that I did it.… It was so horrible.”
She was able to contact KC Tenants and to secure pro bono representation. Organizer Kilpatrick met with Jones and heard her concerns: “He stood up for me, and he stayed around,” she said. With legal aid, she was able to turn the tide in court, eventually winning back her year’s rent and deposit in a settlement.
“My landlord had screwed so many people over the years,” she said, with still-smoldering outrage. “My lawyer found out through discovery that he’d been a landlord since 1993, and every single person that man had ever rented to, he evicted. He won cases because people didn’t show up and fight, so he won on default. He figured I wouldn’t show up.”
She was emphatic on this point: “I won my case because I had counsel. Because I had a lawyer.” This traumatic experience led her into organizing. “I was at my wit’s end,” she told Truthout. “I said, ‘Oh my god, I cannot be just another story. I have to stand up for other folks that are going through the same mess and let them know that they’re not alone and that there’s a way out.’ So, I joined KC Tenants.” Thereafter, she participated in the campaign that won right to counsel: a victory that fulfilled her hopes for others.
Much as in the rest of the country, in Kansas City, said Kilpatrick, housing court is weighted “against poor and working tenants in the eviction process from the beginning.” Property owners have resources, and their lawyers may have “relationships with judges and civil court servants. These lawyers are well-educated in the civil court process and can work with landlords to find loopholes in leases and laws that make it easier for them to push tenants out of homes.”
The same patterns are in evidence in Missouri as elsewhere: “The odds were much better for tenants who were represented by lawyers,” Kilpatrick said. “During the pandemic, Kansas City began funding three eviction defense lawyers. Through that program, over 90% of tenants who gained representation remained housed and eviction-free.”
KC Tenants has also undertaken direct actions, including verbally and physically disrupting court proceedings, teleconferences and eviction lockouts. (Eleanor J. Bader reported on some for Truthout in 2020.) Another success was the 2019 passage of a Tenants’ Bill of Rights. Since throwing their weight behind the ordinance in 2021, they brought one of the more robust examples of the right to fruition. The Kansas City program is notable for its strength and universality, as well as the fact that the ordinance is one of the few “drafted directly by impacted tenants,” said Kilpatrick.
“KC Tenants,” he continued, “knows that people closest to the problems are closest to the solutions. The first step as a collective was that we discussed [the ordinance’s structure] with tenants who have been evicted … or are at threat of losing their homes from negligent landlords.”
Research, community input and draft models produced a fully funded universal ordinance, which includes features like city staffing support, notifying tenants of their rights, annual accountability reports and a tenants’ oversight committee. The latter “works with the city to hold city staff and contracted lawyers accountable for maintaining the right to counsel process to a standard that actually works for poor and working tenants,” Kilpatrick noted.
The right-to-counsel victory in Kansas City represents accumulated knowledge and experience, both with reference to local needs and injustices and to the fine-tuning facilitated by the many contemporary examples of right-to-counsel formulas around the country.
Looking Forward in Portland
Taking up the mantle of their interstate counterparts are housing advocates, socialists and tenant organizations in Portland, Oregon, including many who were involved with the UP NOW campaign, which won Multnomah County a universal preschool program via ballot measure in 2020. Last year, UP NOW organizers and members of the Portland chapter of the Democratic Socialists of America set their sights on a right to counsel with a new initiative: Eviction Representation for All. Supporters include elements of the North Portland Tenants Collective, Portland Tenants United, Don’t Evict PDX and the Eviction Defense Project of the Oregon Law Center.
Portland’s progressive sheen often serves to obscure its neoliberal governance and deeply riven injustices. With the city facing a major housing crisis and a correlated increase in its unhoused population, renter stability is increasingly difficult to come by, especially, of course, for the working class and marginalized. Harassment of tenants by landlords has worsened (particularly against people of color), and a lawsuit from landlords recently led the city council to revoke protections against unfair fees. Accordingly, tenants’ rights movements have found particular purchase, and tenants’ unions have been a key source of support for struggling renters throughout the pandemic and the threadbare protections of the would-be moratorium.
Planning for the Eviction Representation for All measure began in earnest in 2021. “[We] reached out and had really great conversations with organizers that both succeeded in their right-to-counsel measures and those who didn’t,” Colleen Carroll, an Eviction Representation for All organizer and local housing activist, told Truthout. Carroll was previously involved with Don’t Evict PDX, a community organization involved in protests and eviction court monitoring, and is all too familiar with the intricate absurdities and injustices of housing court.
Court watchers had noted that, despite the ostensible moratorium on evictions for non-payment, plenty of evictions were still going through — yet with notice that listed causes other than non-payment. (Carroll cited examples like “too many plants on a balcony, a TV playing too loudly.”) In other words, landlords were filing spurious charges to skirt the moratorium and continue evictions.
As organizers began to plan the new right-to-counsel initiative, this insight informed its scope. “Some of the other right-to-counsel programs were only for certain causes,” Carroll pointed out, “or only for certain tenants, like tenants with a child in the household, or low-income tenants. We realized that with any of those types of restrictions, like our moratorium, landlords were going to find a way around it.” To counter this tactic, as well as to avoid the bureaucratic barriers put up by means testing, it was critical, organizers believed, that the measure be universal like those in San Francisco, Boulder and Kansas City.
It was decided that a ballot measure was the optimal route, the same strategy that had delivered UP NOW’s pre-K program to success. “If we went the ordinance path, we would have been asked to compromise on certain things,” said Carroll, “on it being universal, [or on the] self-funding tax mechanism.” One of the Eviction Representation for All measure’s standout features is that it will be funded by a 0.75% increase in an existing capital gains tax, meaning that it simultaneously strikes a blow to regressive taxation. Building on a pre-existing tax also lowers one hurdle to the measure’s passage.
Eviction Representation for All will also require that tenants be furnished with a lawyer at “first notice of termination, rather than court filings,” Carroll noted — an important nuance. The rapidity of eviction court means that time is of the essence. And, she continued, “It appears on paper that [Portland has] low eviction numbers compared to many other places in the United States. But what isn’t documented is that many, many tenants are evicted before the court process.” Tenants will often leave immediately after first notice, “either because they’re so afraid of the court process, they don’t want an eviction on their record, or they don’t understand their rights.”
Jesse Joseph is a Portland DSA member, Eviction Representation for All organizer and field coordinator who has been assiduously gathering signatures to get the measure on the November ballot. “When we do talk to people, the response is overwhelmingly positive,” he said. “A lot of people are surprised this doesn’t already exist.” The core pitch is, after all, relatively simple: as the ERA site header puts it, “Eviction court is rigged.”
“I think you’d be surprised at how many of them will say, I could have used this,” Joseph said. “Or, I’m dealing with an eviction right now. Or my daughter, my brother, my son is dealing with an eviction. A lot of people just needed a moment to vent.”
Though, if passed, Eviction Representation for All’s incarnation of right-to-counsel will be limited to Multnomah County, a successful measure promises to have catalytic effects on future initiatives, as well as tenant power and collective bargaining. “Tenants in [other counties] are looking to the Multnomah County measure and saying yeah, if we had that protection, we would feel safer organizing [for] repairs, for rent caps, and all of that,” Carroll related.
At the time of publication, the campaign is moving into the final weeks of the signature-gathering phase. Carroll and Joseph expressed optimism about its eventual placement on the November ballot, and they underscored the transformative effects that a right to counsel would have on Portland and its homegrown injustices.
A Long-Overdue Remediation
The fact that the harm of evictions is so widespread means that limiting them has the chance to do a great deal of good. Evictions, as Carroll said, are “a catalyst. I think some people think of it as, ‘Oh, this is the culminating point; this is the big crescendo!’ And it’s not. It’s often the beginning of the story of hardship.” Legal defense can mean halting that familiar narrative before it begins. It’s become abundantly clear that a right to counsel exerts an outsize impact as an intervention, with positive knock-on effects for the well-being of the renting populace.
It’s not often that a single inflection point is so readily identifiable and combatable in situations of injustice. That’s not to say that it’s a simple matter — but with tenant organizing on the rise after the ruptures opened by COVID, new opportunities are impending in the near term.
National Coalition for a Civil Right to Counsel Director John Pollock emphasized, “This is becoming a movement that is unified with a common understanding of what works. [We’re] connecting jurisdictions to each other so that everyone’s learning from everyone else. There are dozens and dozens of places that are in the pipeline that we’re talking to… We see things happening in the next couple years that will even add to what’s been accomplished.”
The excitement and optimism of advocates on the topic is palpable. All are in agreement that collective action has been the source of the recent string of successes, and remains the means by which further wins will be realized.
As someone who experienced the brutality that can accompany evictions firsthand, Davis is acutely aware of the urgent need for community solidarity and legal aid. “I’ve lived in Kansas City for 20 years,” she said. “When I became a disabled person, and I had to live on disability, and lost my income and my way of life, I saw how people were treated. It was deplorable to me. I couldn’t handle it. All over Kansas City, every time I moved, I got a worse landlord by the one before.”
Kilpatrick, who personally assisted Davis during her ordeal, has helped build the kind of community power necessary to resist housing injustice. As he wrote, “When poor and working people create space to listen and take action with each other, our relationships with each other deepen… We are real about our intent to make change happen together. The realness of our community and relationships is liberation at work.”
To Davis, who speaks with unreserved gratitude for Kilpatrick and her fellow organizers, these words ring true. “This is the most beautiful thing I’ve ever been involved in,” she told Truthout, adding that the other organizers “lift me up and they make me keep going and keep fighting.”
“Now that we have the right to counsel, we’re saving people by the day — we saved 150 in a week from eviction,” she added. “I will never quit. I will forever be a KC Tenant!”
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