Which of these things is not like the other:
- Stealing a hoagie from WAWA
- Being evicted from your apartment
- Needing an order of protection to keep a perpetrator of domestic violence away
- Losing your food benefits.
The answer is of course, (a), but perhaps not for the reason you might think. People accused of crimes are guaranteed a right to legal representation by the Constitution, but not people facing life altering civil legal crises. Each year, on a national level, civil legal services for poor people goes unfunded. As a result, over 90% of the civil legal needs of poor and marginalized people are unmet. Every day the agencies that CCJ represents, Community Legal Aid Society, Inc. (CLASI), Delaware Volunteer Legal Services, Inc. (DVLS), and Legal Services Corporation of Delaware, Inc. (LSCD) work hard to combat this need.
CLASI, LSCD and DVLS provide free representation to tenants in eviction cases, but due to a lack of a right to representation and limited funding, we can represent only a tiny fraction of the 18,000 tenants who face eviction each year in our state. Delaware had an eviction crisis before the pandemic – with one of the five highest per capita rates of eviction of any state in the country. In Delaware, more than 85% of the time landlords are represented by a lawyer or an agent in court, whereas tenants have representation less than 5% of the time. In adversarial systems, justice and truth are more likely found when both sides are represented in some fashion. For tenants, having representation is outcome determinative. Therefore, these clear disparities in representation are more likely to lead to unjust results. A 2013 Harvard University study found that tenants were twice as likely to win their eviction cases when they were represented than if they were not.
Why does this matter?
Evictions destroy families and wreak havoc amongst vulnerable populations especially women of color and their children. In addition, the financial impact of evictions to states, counties and cities is significant. The impact on individual lives, families, and communities is devastating—full homeless shelters, rehousing costs, increased foster care, missed work, missed school, depressed wages, community instability, and increased health care costs are all correlated with eviction. Eviction has a human cost.
The pandemic has brought the nationwide eviction crisis to the fore. The loss of employment, the loss of wages, and the recent dramatic rise in inflation together triggered a housing crisis. Fortunately, the federal Emergency Rental Assistance (ERA) program has delivered much needed rental relief to tenants and landlords—and thereby turned what could have been a tsunami of evictions into a slowly rising tide. This slow ascent has allowed those of us working to fight for tenants time to re-imagine the eviction defense system and plan for more efficient and effective ways to help people facing eviction.
Ensuring that there is a right to representation where individuals are confronting eviction, hunger, or domestic violence is crucial. There is a bill currently pending before Delaware’s legislature (SB 101) guaranteeing the right for representation in evictions for tenants at 200% of the Federal Poverty Income Level or below. Jurisdictions which have established such rights (New York City, Cleveland, Philadelphia just to name a few) dramatically reduced evictions and the costs associated with them. In Delaware, Supreme Court Rule 57 had allowed the practice of non-attorneys to represent landlords in cases of eviction. As result of creative advocacy this rule was amended and for the first time is allowing tenants to be represented by trained and supervised non- attorneys in eviction matters. If SB 101 passes, that along with the rule change, will enable us to significantly narrow the civil justice gap in Delaware’s eviction courts.
What are the solutions?
- At the state, federal, and local level, investing in affordable housing is crucial. This means incentivizing and investing in affordable housing development and funding more voucher programs that ensure that tenants are not paying more than 30% of their income towards rent.
- At the federal level, investing adequately in civil legal services, so that all people who need representation in fundamentally important legal areas like housing, benefits, and domestic violence have it. America’s ranking in the World Justice Project’s measure of the affordability and accessibility of civil legal services fell in 2021 to 126 out of 139 countries in the world. https://worldjusticeproject.org/rule-of-law-index/factors/2021/Civil%20Justice/
This is one of the biggest shames of our nation.
- At the state and federal level, it is crucial to respond to future public health crises like COVID 19 with aggressive bold action like the American Rescue Plan Act (ARPA) and the ERA that put money in the hands of people who needed it the most. It is not an embellishment to say that the stimulus funds and eviction moratoria saved lives, many lives.
I am always happy to engage in conversation about any of this important topic, and about my proposed solutions. Feel free to reach out at any time.
Daniel G. Atkins, Esq.
Community Legal Aid Society, Inc.