Right to Counsel in Eviction Proceedings is Vital Amidst Post-COVID Eviction Surge

November 21, 2023 by Thomas Stanley-Becker

About a quarter of Black babies and toddlers in rental housing face eviction every year, according to a new study, and children generally are disproportionately at risk.[1] The study’s finding that the Americans most at risk of eviction are babies and toddlers provides stark evidence that a new form of intervention is needed – extending a right to counsel to those facing eviction.[2]

Young children are at greatest risk of eviction. Princeton University sociologist Matthew Desmond, when he first started writing about eviction, thought that children would “shield families from eviction” but in fact “they expose families to eviction.”[3] Households with children under the age of 5 make up the largest group in households facing eviction proceedings[4] that have surged in the aftermath of the end of the eviction moratoria put in place during the COVID-19 pandemic.  Children are usually “invisible” in the legal documents filed in eviction cases. The documents name “only adults and leaseholders summoned to court.” But the New York Times describes how “by linking hundreds of thousands of eviction filings to detailed census records, researchers at Princeton University, Rutgers University, and the United States Census Bureau identified other people living in homes facing eviction.[5]


Age of Those Facing Eviction Between 2007 and 2016

The expiration of the COVID-19 pandemic eviction moratoria in October 2021[6] has led to a surge in eviction filings, increasing the likelihood of injury to children and tenants of color.[7]


Growth in Eviction Filings Post-COVID-19 Pandemic

Source: Princeton University Eviction Lab, Eviction Filings For All Sites

But there is a glimmer of hope because several jurisdictions have enacted statutes that create a right to counsel (RTC) in eviction proceedings. Right to counsel in eviction proceedings has been called “Civil Gideon.” The statutes owe this moniker to Gideon v. Wainwright, the case in which the Supreme Court held that, in all criminal prosecutions, accused individuals who cannot afford counsel must be provided counsel.[8]

Now is the time for more jurisdictions to create a RTC in eviction proceedings. The fact that tenants are far more likely to appear pro se than are landlords in eviction proceedings makes it much more likely that tenants will lose and get evicted.[9] “The deck is kind of stacked against [them].”[10]

RTC legislation is very new. New York City started the movement in 2017. Currently, 17 cities, four states, and one county have created a right to counsel in eviction proceedings.[11] But only three states provide for a categorical right to counsel. A categorical right to counsel means “right to counsel without qualification for all indigent individuals [in eviction proceedings] (except that the individual may be required to request counsel).”[12] The rest have statutes that provide for a discretionary or qualified appointment.[13] Qualified appointment means “[t]he established right to counsel or discretionary appointment of counsel is limited in some way, including the only authority comes from a lower/intermediate court decision or a city government, not a high court or state legislature; a case has cast doubt on prior authority; a statute is ambiguous; or the right or discretionary appointment is not for all individuals or proceedings within that type of case.”[14]

More jurisdictions, including D.C., should create a RTC in eviction proceedings. Policymakers should make such statutes categorical. For example, NYC’s law “establishes a right to counsel for low-income tenants in eviction cases.”[15] And evaluations of the NYC RTC program have been promising.[16] NYC lawyers have had success in representing tenants in housing court.[17] They have helped many such tenants stay in their homes. 84% of households represented by lawyers were able to escape eviction.[18]

The need is pressing in D.C. The number of successful evictions in the city has increased 250 percent between January 2022 and January 2023, according to data from the U.S. Marshals Service.[19] Still the fraction of renters who come to D.C. Superior Court with legal representation is low.[20]

There is currently no RTC law in D.C. Members of the Council introduced such a bill in 2016 but it did not move forward.[21] When the bill was introduced, its proponents argued that existing legal services did not sufficiently address tenants’ needs. In 2015, 94 percent of landlords were represented by counsel in the Landlord and Tenant Branch of the D.C. Superior Court, whereas 5 percent of tenants were represented.[22] The bill would have established a RTC in eviction proceedings for tenants with gross household income at or below 200 percent of the federal poverty level.[23] The bill stated “[a] right to counsel should attach in civil cases whenever fundamental human needs are at risk. Fundamental human needs include preservation of liberty (incarceration and immigration detention or deportation), housing, safety (protection from domestic violence), family integrity (child custody and visitation), health care, nutrition, education, income (access to public benefits and wages), and a meaningful opportunity to obtain employment.”[24]

Currently, there is a movement in D.C. to provide counsel in eviction proceedings, but not yet by legislating RTC. Just this November, a coalition of six nonprofits, 19 private law firms and the D.C. Access to Justice Commission relaunched the Housing Right to Counsel Project.[25] This effort restarts an initiative from 2016.[26] The Project staff will send letters to “one out of every six tenants with subsidies against whom a publicly available eviction case has been filed and scheduled for November and December 2023” offering them free legal assistance.[27] Such efforts should be given legal backing through a D.C. RTC ordinance.

With the dramatic increase in evictions after the end of the COVID-19 pandemic eviction moratorium, no tenant at risk of eviction should have to appear in court pro se in D.C. or in any other city or state.

[1] Emily Badger, Claire Cain Miller, & Alicia Parlapiano, The Americans Most Threatened by Eviction: Young Children: About a quarter of Black babies and toddlers in rental households face the threat of eviction in a typical year, a new study says, and all children are disproportionately at risk, The N.Y. Times (Oct. 2, 2023), https://www.nytimes.com/2023/10/02/upshot/evictions-children-american-renters.html.

[2] Id.

[3] Id.

[4] Id.

[5] Nick Graetz et al., A comprehensive demographic profile of the US evicted population, PNAS, Vol. 120, No. 41, Oct. 2. 2023, https://www.pnas.org/doi/10.1073/pnas.2305860120.

[6] See Alabama Ass’n of Realtors, et al v. Dep’t of Health and Hum. Servs., et al., 141 S.Ct. 2485 (2021).

[7] Princeton University Eviction Lab, Eviction Filings for All Sites, January 2020 to September 2023, https://evictionlab.org/eviction-tracking/. See also Kyle Harris & Rebecca Tauber, Denver has broken eviction court case records in 2023 – and it’s only the start of November: City Council is pushing to add more funding to the city’s emergency rental assistance programs., Denverite (Nov. 6, 2023 01:29 PM ET), https://denverite.com/2023/11/06/denver-has-broken-eviction-court-case-records-in-2023-and-its-only-the-start-of-november/.

[8] Gideon v. Wainwright, 372 U.S. 335, 339-40 (1963).

[9] Evicted and Living in Their Car During a Pandemic, Al Jazeera (Dec. 20, 2020), https://www.youtube.com/watch?v=1iMSgfZ7kpo&t=425s. See also Tipping the Scales: A Report of Tenant Experiences in Bronx Housing Court (A Report by New Settlement Apartments’ Community Action for Safe Apartments (CASA) and the Community Development Project (CDP) at the Urban Justice Center) (March 2013), https://newsettlement.org/wp-content/uploads/2018/01/CDP.WEB_.doc_Report_CASA-TippingScales-full_201303.pdf. Esme Caramello, A moment of truth for the Housing Court, Harvard Law School Clinic Stories (Feb. 16, 2023), https://hls.harvard.edu/clinic-stories/clinical-voices/a-moment-of-truth-for-the-housing-court/.

[10] Evicted and Living in Their Car During a Pandemic, supra note 9.

[11] Nat’l Coal. for a Civil Right to Counsel, The Right to Counsel for Tenants Facing Eviction: Enacted Legislation 4-5 (last modified Oct. 2023), http://civilrighttocounsel.org/uploaded_files/283/RTC_Enacted_Legislation_in_Eviction_Proceedings_FINAL.pdf., Civil Right to Counsel Status Map (Housing-Evictions), Nat’l Coal. for a Civil Right to Counsel, Interactive Map of Civil Right to Counsel (Nov. 10, 2023),  http://civilrighttocounsel.org/map. The cities are New York City (2017), San Francisco (2018), Newark (2018), Cleveland (2019), Philadelphia (2019), Boulder (2020), Baltimore (2020), Seattle (2021), Louisville (2021), Denver (2021), Toledo (2021), Minneapolis (2021), Kansas City (2021), New Orleans (2022), Detroit (2022), Jersey City (2023), and St. Louis (2023). The county is Westchester (2023). The states are Washington (2021), Maryland (2021), Connecticut (2021), and Minnesota (2023). The four states have categorical right to counsel laws.

[12] Nat’l Coal. for a Civil Right to Counsel, Interactive Map of Civil Right to Counsel, supra note 11.

[13] Id.

[14] Id.

[15] Id.

[16] Universal Access to Legal Servs., A Report on Year Four of Implementation in New York City 8 (Fall 2021), Office of Civ. Just., New York City Hum. Res. Admin., https://www.nyc.gov/assets/hra/downloads/pdf/services/civiljustice/OCJ_UA_Annual_Report_2021.pdf.

[17] Id. at 8.

[18] Id. Cf. Nicole Summers, The Limits of Good Law: A Study of Housing Court Outcomes, 87 U. Chi. L. Rev. 145, 151-52 (2020).

[19] Marissa J. Lang, When facing eviction, some D.C. renters will not get free lawyers, The Washington Post (Nov. 2, 2023 8:45 PM ET), https://www.washingtonpost.com/dc-md-va/2023/11/02/dc-legal-aid-right-to-counsel-relaunch/.

[20] Id.

[21] Expanding Access to Justice Act of 2016, B21-0879, https://lims.dccouncil.gov/Legislation/B21-0879.

[22] Jasper Scherer, D.C. Council to consider free legal help for poor residents in housing cases, The Washington Post (Oct. 14, 2016 6:37 PM EDT), https://www.washingtonpost.com/local/dc-politics/dc-council-to-consider-free-legal-help-for-poor-residents-in-housing-cases/2016/10/14/771210ae-8f22-11e6-a6a3-d50061aa9fae_story.html. The data on legal counsel in evictions and other housing disputes was compiled by the D.C. Legal Aid Society.

[23] Expanding Access to Justice Act of 2016, supra note 21, at § 102(c).

[24] Id. at § 101(a).

[25] Lang, supra note 19.

[26] Id.

[27] Press Release, Legal Aid of the District of Columbia, DC Legal Services Providers Announce Relaunch of Housing Right to Counsel Project to Provide Free Lawyers to Residents Facing Eviction, As DC faces a housing crisis, scheduled evictions have increased 250%, yet 88% of tenants facing eviction do not have legal representation, (Nov. 2, 2023), https://www.legalaiddc.org/blogs/dc-legal-services-providers-announce-relaunch-housing-right-counsel-project-provide-free.