September 12, 2018
Can a Right to Counsel Slow Down the 'Eviction Machine?'
By Bruce Cory
Earlier this year, The New York Times gave readers a revealing look at the workings of what it labeled “the eviction machine”: The city’s Housing Court. A series of articles detailed how a court system designed to protect tenants has been hijacked by landlords using eviction, or threatened eviction, often based on dubious or flimsy evidence, to drive tenants out and, in the process, free their buildings from rent regulation.
The process disproportionately uproots working-class African American and Hispanic families, forcing them out of familiar communities and away from jobs, schools, and neighborhood networks. The eviction machine also runs in high gear; landlords try to evict close to a million people a year using the Housing Court. In the vast majority of such cases, tenants historically haven’t had lawyers. The resulting imbalance of power puts a big thumb on the scales of justice in landlords’ favor – which explains why they go to court so readily.
But it doesn’t necessarily have to be that way – as the preliminary results of New York City’s landmark drive to establish a “right to counsel” in eviction cases suggest. How these efforts continue to play out will have a big impact on keeping New York a hometown for people of all income levels. It also will influence a growing right to counsel movement for tenants in cities across the country.
First, a little background, as sketched in during a lively public seminar hosted by the Center for New York City Affairs at The New School in June. In 2014, tenant leaders, housing activists, and legal service providers established the Right to Counsel Coalition NYC. Building on years of prior organizing and research by the Bronx-based Community Action for Safe Apartments (CASA), the Community Development Project at the Urban Justice Center, and others, its focus was passing local legislation to make eviction defense a legal right.
City Hall initially responded with a pilot “expanded legal services” (ELS) program that sharply increased funding for eviction defense. The upshot: a tripled citywide legal representation rate in Housing Court for tenants facing eviction (from 16 percent in 2015 to 48 percent in 2017), and a 27 percent drop in the number of evictions between 2013 and 2017. Outcomes were especially heartening in neighborhoods long plagued by high rates of eviction that got enhanced funding under the ELS.
Those results, combined with a robust community organizing campaign, led to the August 2017 enactment of Local Law 136. It made New York the nation’s first jurisdiction with a right to publicly funded legal counsel in eviction cases for low-income residents.
The law has a five-year implementation schedule. Currently, free Housing Court lawyers are guaranteed in 15 high-impact zip codes. (Expanded legal counsel is available, if not yet mandated, in other parts of the city, too. More information is available here.) By 2022 guaranteed coverage will phase-in citywide, making free counsel available to what is expected to be some 125,000 households a year. In the process, the program’s now roughly $93 million in funding will increase year by year to $155 million.
A year after passage, there’s now a legislative effort to further broaden and strengthen Local law 136’s impact. With the Coalition’s backing, the law’s two principal sponsors, Council members Vanessa Gibson and Mark Levine, have prepared a new bill to expand right to counsel coverage to more households. The current income-eligibility standard, 200 percent of the federal poverty level, amounts to $50,200 annually for a family of four. But a single person earning the minimum wage would have an income exceeding this limit. The new bill would raise the income threshold to 400 percent of the poverty level while also expanding the types of cases that can be covered.
The new bill also seeks to extend right to counsel funding to include education, outreach, and organizing as well as legal defense. After all, Coalition coordinator Susanna Blankley points out, legal rights only matter if people know about them and are unafraid to claim and exercise them. Grassroots groups that have won tenants’ trust can help them overcome landlord intimidation or retaliation when they use their right to counsel – and their rights as tenants generally. In the Coalition's view, that’s crucial to redressing the imbalance of power between tenants and landlords.
At the same time, Coalition members say, a shift in Housing Court’s working culture is also in order. It’s why advocates are pushing the Court to communicate more effectively with people who don’t speak English as their first language, or have limited literacy skills, or face other impediments and barriers. It’s also why they’re focused on training a new cohort of housing attorneys, who even under the new law often meet their clients for the first time in the halls of Housing Court just before their cases are heard. “Everything about how the Court system works has been influenced by the lack of attorneys representing tenants,” says Marika Dias, a housing attorney with Legal Services NYC who participated in the June New School event.
Other cities have taken note of New York’s right to counsel movement. San Francisco recently passed a right to counsel law; at least a dozen other cities, including Newark, are weighing similar measures. It’s not hard to understand why; the effects of gentrification and displacement on the fabric of community life are hot-button issues in cities from coast to coast. “When someone gets evicted, it affects everyone. It affects the whole community,” says Maria Lopez-Nuñez, a community organizer at Newark’s Ironbound Community Corporation. Establishing a right to counsel isn’t the only answer to such all-too-common trauma. But it’s a tool, along with others, to build tenant power and to change the narrative.
Photo by: David Baxendale