A National Evictions Cliff Is Coming. America’s Failing Legal System Will Make It Worse

This commentary is part of The Appeal’s collection of opinion and analysis.

The coronavirus pandemic isn’t over, but across the country, many of the eviction moratoriums that kept people in their homes are coming to an end, allowing landlords constrained by these grace periods to proceed with forcing their nonpaying tenants out. America’s already overburdened civil legal system is not prepared for the volume of cases or the levels of human suffering it will soon encounter.

The numbers of people at risk of going over this “evictions cliff” are staggering: Data collected by the U.S. Census Bureau indicates that between 43 and 45 percent of adults live in renter households affected by recent job or income losses, and nearly half of all renter households were struggling to make ends meet even before the virus hit. A UCLA analysis projects that in Los Angeles County alone, about 120,000 households—including 184,000 children—are likely to experience homelesseness, and Black, Latinx, and poor families will suffer the most.

Having a lawyer in housing court can give tenants facing eviction a fighting chance: A March 2012 Boston study, for example, found that about two-thirds of people in the group with full-service representation were able to keep their homes, compared to one-third in the group that received more limited legal help. In Seattle, the King County Bar Association’s Housing Justice Project found that tenants with counsel are more than three times as likely to avoid a forced eviction executed by the local sheriff’s office and reach an out-of-court agreement with their landlord. When the agreement includes a payment plan for catching up on rent, tenants remain housed nearly two-thirds of the time. 

But for those who are already unable to make their monthly payments, hiring a lawyer is out of the question. Legal aid bureaus, which provide free assistance to those who can’t afford it, struggle to meet demand during normal times, let alone during a life-altering pandemic. “Without a massive increase in access to both information and legal services,” the UCLA study’s authors conclude, “most tenants will face eviction within weeks.” 

In some areas, the process is already underway. Moratoriums have lapsed or are set to lapse in around half of states, and some jurisdictions never enacted any in the first place. In Houston, after the Texas Supreme Court ended that state’s moratorium in mid-May, landlords filed nearly 2,500 complaints in June, according to data collected by the Eviction Lab—four times the number of cases filed in April. Elsewhere, law enforcement officials have resumed executing evictions that were authorized before moratoriums went into place. Instead of preventing a housing crisis, these measures may have just briefly delayed it.

This disaster is as preventable as it is tragic. In 1963, the Supreme Court held that poor criminal defendants have a right to representation, regardless of their ability to pay; in an adversarial legal system, it reasoned, the Constitution’s guarantees of fairness at trial are functionally worthless without professional help. Neither the Court nor Congress, however, have extended that promise to people in civil court. Instead, in the 1981 case of Lassiter v. Department of Social Services, by a 5-4 vote, the justices recognized a presumptive right to counsel only in civil matters in which one’s “physical liberty” is in jeopardy. Otherwise, they said, judges should use a balancing test that weighs the individual’s and the state’s competing interests, as well as the risk that the absence of a lawyer will lead to erroneous, unjust outcomes.

In absence of a national standard, no state currently mandates the provision of counsel in evictions. Although a handful of major cities do so—New York, Philadelphia, and San Francisco, among others—these exceptions affect only a tiny fraction of people who would otherwise benefit. In his Pulitzer Prize-winning 2016 book “Evicted,” sociologist Matthew Desmond says that about 90 percent of tenants who face eviction do not have lawyers. John Pollock, coordinator of the National Coalition for a Civil Right to Counsel, offers an even more pessimistic estimate: between 95 and 99 percent in most jurisdictions. Landlords, by contrast, have lawyers 80 to 100 percent of the time.

A hodgepodge of nonprofits, bar association projects, and legal aid bureaus valiantly try to narrow this so-called justice gap. But as Kathryn Joyce detailed in the New Republic last month, the federal Legal Services Corporation, which funds 132 local organizations that provide free help to lower-income people, has been gutted since the Reagan administration began, and the modern LSC simply cannot ensure that everyone who needs help receives it. The corporation itself estimates that each year, lower-income Americans receive insufficient help—or no help all—for 86 percent of the civil legal problems they experience.

Given this decades-long history of disinvestment, the Legal Services Corporation cannot realistically be expected to suddenly meet the moment of COVID-19, either. As Joyce notes, in the $2 trillion CARES Act signed into law in March, Congress included an emergency infusion of $50 million for the LSC—half of what the corporation says it needs to adequately respond to the pandemic’s fallout. Lawmakers may make additional funding part of the HEROES Act currently under consideration on Capitol Hill, but not a moment too soon—LSC says it has exhausted the first $50 million already.  

Beating an eviction is, for all intents and purposes, impossible without assistance. Cases can proceed on timelines measured in days or weeks, and fighting back requires people to fill out a host of complicated forms, decipher mountains of abstruse jargon, and pay filing fees by court-ordered deadlines. Non-lawyers are unlikely to be familiar with convoluted rules of evidence or procedure, or with legal theories that could allow them to mount a defense. “We’ve definitely heard of evictions going through that had improper filing procedures followed, but because the tenant didn’t raise that defense it went through anyway,” said Talia Smith, an organizer with Omaha Tenants United. “The legal system is not on tenants’ side.” A decade-long study of eviction suits in Kansas City, Missouri, found that of the nearly 77,000 cases that proceeded to a judgment, tenants won 161 of them—less than one quarter of 1 percent.

The assembly-line nature of evictions can catch tenants off guard, too. “Most people don’t realize that when they show up for their court date, it’s going to be like ‘Judge Judy,’” said Edmund Witter, senior managing attorney at the Housing Justice Project in Seattle. Judges rubber-stamp many evictions at an initial “show cause” hearing, and the case never goes to trial—no time, no jury, no meaningful chance to make a case. “You didn’t know that all of your rights were going to be decided on that day, and you weren’t aware that you were supposed to bring in evidence,” Witter said. “You’re just kind of at a loss.” 

COVID-19 is already creating additional layers of complication: Tenants’ rights may differ under overlapping city, state, and federal moratoriums, and parsing which provision covers which people in what buildings can be tricky even for attorneys. “If they live in a unit where the landlord has a HUD-backed mortgage, there’s no way the tenant’s going to know that,” Pollock says. In some places, moratoriums aren’t exactly deterring landlords from trying to get rid of tenants, either. Over about three months after the state’s moratorium went into effect, Nevada Legal Services fielded nearly 2,000 complaints about lockouts, utility shut-offs, or landlords threatening to take similar action, according to executive director Annamarie Johnson. It received 12 of these calls all of last year.

Pandemic or not, there are often other logistical hurdles to fighting an eviction, like finding childcare or taking valuable time off from work. Given the long odds tenants know they face, these obstacles can deter even token participation in the process of losing their homes: About half of people facing eviction never actually show up in court.

The Supreme Court’s Lassiter decision, which limited the presumptive right to counsel to matters in which a person might lose their liberty, fails to acknowledge that in some situations, the stakes in civil court are even higher than they are in criminal court. “Most parents would probably agree that losing one’s right to her child seems like a far greater loss than spending six months in prison,” argues Seattle University School of Law professor Brooke Coleman.

Although it isn’t a housing case, the details of Lassiter illustrate in devastating, poignant fashion how vital representation is to a meaningful shot at justice. In 1978, Abby Gail Lassiter, a young, Black single mother, was incarcerated in North Carolina when she received notice of termination of her parental rights to her young son, William. State law allowed her a hearing but did not guarantee her someone to shepherd her through it. As she tried to cross-examine a social worker, the judge repeatedly interrupted her, needling her for her lack of legal acumen and disallowing several of her questions as impermissible arguments. In effect, the court punished a poor woman with little formal education—Lassiter was 14 when she had her first child, Coleman wrote, and depended on her mother and her community for support—for not being a trained attorney who knew how cross-examination works.

Forcing Lassiter to go it alone had tangible, readily identifiable consequences. She missed weaknesses in the social worker’s testimony on which a lawyer would have pounced, and raised no objections to hearsay evidence the state used against her. In his dissent, Justice Harry Blackmun emphasized the stakes of failing to address the “gross disparity in power and resources” between a state represented by counsel and a frightened, disoriented person who is not. “By intimidation, inarticulateness, or confusion, a parent can lose forever all contact and involvement with his or her offspring,” he wrote.

Lassiter also showcases the effect of the casual prejudice that members of the legal profession sometimes display toward non-lawyers—especially poor and nonwhite people—in their midst. In the courtroom, a lawyer is often seen as a proxy for a meritorious case, which means judges and opposing counsel can feel less of a professional obligation to take an unrepresented person seriously. Lassiter’s judge, Blackmun noted, was “noticeably impatient” with her, and occasionally “expressed open disbelief” at her testimony. When she denied that her mother had filed a complaint about her allegedly neglectful care, the judge responded sarcastically, “That was some ghost who came up here and filed it, I suppose.” 

When Lassiter pleaded that William needn’t be placed into foster care because “he knows my mother and he knows all of us,” the judge cut her off with a cruel clarifying question that surely no one in the courtroom actually needed answered: “Who is ‘he’?” 

In 2011, the Court reaffirmed the basic thrust of Lassiter in Turner v. Rogers, ruling in a 5-4 decision that even in some civil proceedings that could result in incarceration, states need not automatically provide lawyers to people who can’t afford one, as long as there are “alternative procedural safeguards” to ensure the hearings are fair. The four more-conservative justices dissented not in defense of the dignity of poor people, but because they believed no obligation exists to appoint counsel for poor people facing incarceration in civil cases, and would not go any further than that.

Today, many of the people flooding housing courts are in the same position as Abby Gail Lassiter was: alone, intimidated, and trying to navigate a labyrinthine process that can be contemptuous of their plight and uninterested in helping them through it. Like so many aspects of American society, civil courts set up a two-track system of justice: one for people with money and power, and one for those without it.

The fallout from the evictions cliff will be devastating, but it will not be equal opportunity. Decades of occupational and educational segregation mean that nonwhite workers are likelier to work in layoff-prone service-sector jobs, leaving their families especially vulnerable to disappearing hours, closed businesses, and dwindling paychecks. About a fifth of Black and Latinx workers are able to telework, compared to one-third of white workers, according to the Center for American Progress. A recent survey conducted by the Census Bureau found that Black and Latinx people roughly twice as likely to have missed their June rent payments as white people—and less confident that they’d be able to pay in July, too. 

Nonwhite people are also less likely to have enough savings to weather a temporary loss of income, much less one that has already stretched for months and could stretch into the foreseeable future. This is no accident: A multitude of public policies developed during the last century, especially during and after the Great Depression, made homeownership the primary means for working- and middle-class families to build wealth. But as Richard Rothstein argues in his book “The Color of Law,” another set of policies largely excluded people of color from this process, at once fueled by and fueling practices like steering, redlining, and other forms of private-sector racism. Segregation, he writes, “was a nationwide project of the federal government in the twentieth century, designed and implemented by its most liberal leaders.”

The cumulative effect of generations of state-sanctioned discrimination has led to a stunning, stubborn racial wealth gap: A typical white family’s net worth is about 10 times that of a Black family, and Black heads of household with college degrees have a lower median net worth than white heads of household who dropped out of high school. As Nikole Hannah-Jones writes in the New York Times Magazine, “Wealth begets wealth, and white Americans have had centuries of government assistance to accumulate wealth, while the government has for the vast history of this country worked against black Americans doing the same.”

This history has shaped racial inequities in access to stable housing that persist to this day. Nearly three-quarters of white households own their homes, compared to less than half of Latinx and Black households. Black families are likelier than white families to be “rent-burdened,” spending 30 percent or more of their incomes on rent. Nonwhite women are at especially high risk of eviction; as Desmond, the sociologist, puts it, “Eviction is to women what incarceration is to men.” Nationwide, about 40 percent of people experiencing homelessness and roughly a quarter of unsheltered homeless people are Black. In 2017, the Urban Institute found that the Black-white homeownership gap was three points higher than it was in 1960—nearly a decade before the Fair Housing Act purported to outlaw housing discrimination for good. 

Against this historical backdrop, COVID-19 is not creating a crisis so much as it is laying bare one that has long been in progress. “Systemic racism is manifested in every aspect of American life,” Representative Barbara Lee of California, an outspoken tenants’ rights proponent, told The Appeal. “Gentrification, displacement, unsheltered individuals, a large percentage African-American—that’s just another manifestation of systemic racism.”

Policymakers have offered an array of proposals to address this issue. On the front end, Senator Elizabeth Warren of Massachusetts has proposed a nationwide evictions moratorium that would prohibit landlords from evicting nonpaying tenants until March 27, 2021; Lee and Representative Jesús “Chuy” García of Illinois are working on companion legislation in the House.

“Failing to put a safeguard in place to keep people in their homes is most likely to harm the most economically vulnerable Americans, and to harm communities of color,” Warren told The Appeal by email. “Preventing unnecessary evictions in the middle of a public health crisis is a moral imperative, a public health necessity, and a critical racial justice issue.” 

Other efforts are focused on ensuring that tenants have access to legal assistance if and when the need arises. Expanding the right to counsel in evictions was part of the 2020 presidential campaign platforms of Warren, Bernie Sanders, Amy Klobuchar, Cory Booker, Pete Buttigieg, and Julián Castro. Presumptive Democratic nominee Joe Biden has pledged his support for legislation authored by Senator Michael Bennet of Colorado and House Majority Whip Jim Clyburn that would award grants on a preferential basis to jurisdictions that recognize a right to counsel.  

In May, Representative Joe Kennedy III of Massachusetts authored a bipartisan resolution that would recognize a right to counsel for people in all “adversarial proceedings involving basic human needs,” citing the Legal Services Corporation’s findings regarding the current system’s considerable shortcomings. “I don’t think anybody can sit there and say that this is not a gross miscarriage of justice,” he told The Appeal, comparing the status quo to asking someone with no medical training to staff an emergency room. “Why would we ever think that that’s an appropriate thing to do? But we’re doing that when we say, ‘OK, good luck keeping a roof over your head.’” Kennedy said he hopes to introduce legislation on the subject soon.

Lee, a co-sponsor of Kennedy’s resolution, says Congress should “probably double or triple” funding for the Legal Services Corporation. But she emphasizes that correcting longstanding racial injustices and power imbalances will require more than tinkering with existing legal infrastructure. “We have to deconstruct the system that allows for the continuation of racism embedded in our systems,” she said. Providing lawyers, she added, “is one step to correct it.”

The benefits of representation aren’t just limited to whether someone remains in their home. Attorneys can negotiate for move-out dates, eliminating the acrimony, uncertainty, and violence that a sheriff’s eviction can entail. They can help clients keep evictions off their records, find rental or relocation assistance, and apply for public housing, maximizing the chances of long-term housing stability. An analysis of six California pilot programs found that although three-quarters of represented tenants moved out, most did so as part of a settlement, and had an average of 11 more days to move than tenants who represented themselves. 

The financial case for a right to counsel is as strong as the moral one. An 2018 analysis found that Minneapolis tenants with full-service representation were four times less likely to need to use shelters, saving more than $231,000 per year. Over three years in the Bronx, a pilot program managed to help nearly 1,400 families—76 percent of those who were eligible—and prevented eviction 86 percent of the time. It cost $450,000, and saved about $740,000 in shelter costs. An Abell Foundation study estimates that funding a $5.7 million right-to-counsel initiative in Baltimore would reduce the city’s displacement-related costs by $17.5 million. 

No fundamental right, for poor people or rich people or anyone else, should be contingent on the satisfactory results of a cost-benefit analysis. But for politicians who are nervous about responsible stewardship of public resources, particularly when state and municipal budgets are tightening, there is encouraging evidence that having the foresight to spend this money is a choice that will literally pay for itself.

In the meantime, for tenants, evictions court is only going to get more inhospitable during the COVID-19 era, as fears of catching the disease and difficulties gaining access to Zoom-style remote court proceedings could cause no-shows—and, thus, evictions—to spike to new highs. Johnson, the Nevada Legal Services executive director, says she’s had to hire 10 new staffers already, and Census Bureau data suggests that up to 50,000 households across the state are at risk of eviction as the moratorium’s protections expire. “We don’t know which end of the spectrum it’ll be, but either way, it’s going to be a lot,” she said.  

In Seattle, the Housing Justice Project is bracing for at least one-and-a-half times its usual case volume, Witter says. But it is the untold number of families whose files don’t end up crossing his desk who perhaps face the greatest danger. Since the organization cannot help people it doesn’t know about, he fears the pandemic will inevitably result in more evictions that a lawyer could have stopped. 

“They’re probably not going to be connected to us at all,” he said. “We’re going to be completely out of the game.”

Jay Willis is a senior contributor at The Appeal.