Proclaiming rights, be it housing, healthcare, food “security,” or whatever it is that people would really like to have, gathers around it fans of the benefit without much thought to the two questions that got shoved aside. What, aside from people would really like to have it, makes the thing people want a “right,” and how, as a practical matter, do we accommodate it in conjunction with other “rights,” including the “right” not to be subject to confiscatory taxes to pay for it?
This isn’t to suggest that we should let people starve to death in cardboard boxes on the street while suffering from typhus and depression. As a matter of sound social policy, we should have a social safety net to feed, house and treat people in need. But does that make it a “right”? Can a person demand his right to a split-level house, a steak dinner and rhinoplasty? What about a lawyer?
The Supreme Court held in Gideon that every indigent criminal defendant is entitled to a lawyer for his defense. a right that derives from the Sixth Amendment. We’ve done a mediocre to poor job of fulfilling that right, a problem that pops onto the radar fairly regularly, only to be displaced by some more radical concern a day, an hour, later.
What about lawyers for undocumented immigrants? They surely need lawyers, but there is no foundational basis for a right to a lawyer, producing both the absurd outcome of a five-year-old defending herself in immigration court as well as the mundane scenario of an adult who lacks the knowledge and experience to present a proper argument. Under the best of circumstances, the lack of a competent lawyer substantially impairs a person’s ability to defend or prosecute their claim. But does the utility of a lawyer make it a right?
Terri Smith lost her home in three minutes. Standing before a judge in a Richmond, Va., courtroom one morning this spring, she admitted that although she had paid her April rent on schedule, she had missed the deadline a handful of times over the past year. It was usually just by a day or two: The rent is due on the third of each month, and Smith often doesn’t get her paycheck until the fourth or fifth. The judge ruled for the landlord and evicted her.
The anecdote doesn’t reflect the norm, either from landlords or housing court judges. Late rent by a few days is hardly a landlord’s biggest problem, as he gets paid. Not getting paid for months is a bigger deal. And judges hear plenty of tenant horror stories; a few missed deadlines likely won’t bring a tear to a judge’s eye for the sad landlord. But hey, it’s an anecdote and it’s there for a reason.
Only one in 10 tenants comes to court with an attorney. Landlords, meanwhile, almost always have legal representation. And while the lawyers can jockey for the best interests of their clients, and all of them understand court procedures, renters in eviction courts seldom understand the rules. According to the National Center for State Courts, plaintiffs in a wide variety of civil cases are twice as likely to win when only their side is represented by an attorney as they are when there is counsel on both sides. “The plaintiff’s lawyer, when unopposed, will introduce hearsay and do other objectionable things in court the defendant doesn’t know to object to,” says John Pollock, coordinator for the National Coalition for a Civil Right to Counsel.
So, as the headline to the story says:
The Right To An Attorney
Governments still don’t provide lawyers for many poor people who are lost without them.
Is there any doubt tenants in landlord-tenant court would do far better with competent counsel? Is there any question that tenants without counsel will fail to avail themselves of protections the law provides? Nope. But does that make it a right? That tenants would do far better with a lawyer isn’t the question. The question is whether there is a right to counsel in housing court.
Since 2016, when Matthew Desmond brought national attention to evictions with his Pulitzer Prize-winning book Evicted: Poverty and Profit in the American City, local governments across the country have started using their resources to provide legal representation for tenants. After three years of pilot programs, New York City passed a “right to counsel” law in late 2017. The city spends $155 million each year to help low-income renters (for example, a family of four making less than $49,000 a year qualifies). The program assists tenants in 15 ZIP codes hard hit by evictions. In its first year, the percentage of tenants represented by a lawyer in eviction court rose from 1 percent to 56 percent, according to city data. Evictions dropped by 27 percent in the same time period. In the next three years, the program is expected to cover the entire city.
New York City has made a policy choice to spend its money on lawyers for tenants. At the time, the argument was that 90% of tenants with lawyers prevailed. If the numbers are correct, there was only a 27% drop in evictions. It’s unsurprising that the numbers don’t align, as the arguments in favor glossed over the salient details of why tenants who can’t afford lawyers get evicted. Then again, would those tenants do better if the City used the $155 million to pay rent rather than pay lawyers?
Legal Aid lawyers complain that their salary is so low that some are forced to drive Ubers to make ends meet. Would that $155 million spent on lawyers for tenants help? What about the funds used to provide lawyers to undocumented immigrants? Mind you, lawyers for indigent criminal defendants is a right, whereas lawyers for immigrants and tenants, despite rhetoric to the contrary, is merely a policy choice, unless you’re of the view that everything that would be beneficial is a right because it’s invariably better to be represented than not.
And then there are the multitude of middle class working folks who would also benefit enormously from having a lawyer, but would prefer not to squander their kids’ college fund. There’s no shortage of need, but is there any way to fulfill it and still make it worthwhile to practice law? Don’t lawyers have a “right” to a decent life as well, even if we become other people’s “right”?