I. Justice
for Some
In 1963 Clarence Earl Gideon was charged with felony breaking and entering and was sentenced to 5 years in prison after defending himself in court—he could not afford a lawyer. The United States Supreme Court reversed the judgment, establishing that under the Sixth and Fourteenth Amendments of the U.S. Constitution guaranteed counsel in criminal matters is a fundamental and essential right.[1] As it turns out, in the U.S. Pledge of Allegiance phrase “with liberty and justice for all,” apparently “all”
includes even those who can’t afford it… or does it?
Unlike in criminal cases, where legal counsel is appointed to those who cannot afford it, in civil matters there is no right to counsel. As a result, many Americans who risk losing their home, job, or children lack legal representation. In fact, we have a system lacking liberty and justice for millions less than “all.”
Consider the case of Lorenza and German Artiga.[2]
The Artiga’s had raised six children in their only home since they moved from
El Salvador over 29 years ago—a rent-controlled bungalow in Los Angeles.[3]
Their landlord served them with eviction papers under the pretext that their
12-year-old granddaughter, Carolyn, whose mother was killed in a car crash in
2007, was an illegal occupant.[4]
With limited resources and limited ability to speak English the Artiga’s stood
little chance against a landlord with disposable resources, an experienced
lawyer, and a complicated court system. Fortunately, an organization providing
legal services for free was able to help out.[5]
The couple provided their lawyer with documentation proving that they were
already legal guardians of Carolyn when the current landlord bought the
property in 2008. Just before the scheduled court date, the landlord dropped
the case.[6]
Ms. Sharma, the lawyer they were assigned, noted, “I think the landlord was
betting that they wouldn’t get a lawyer.” Mr. Artiga, 66, said, “We would have
been kicked out,” and with his worsening glaucoma added, “I’d trip and fall in
a new neighborhood.”[7]
Landlords can be, and often are, predatory. Knowing that tenants cannot afford legal counsel, they often use pretexts to seek eviction so they can benefit from gentrification and rising rents.[8] Like this, there are at least some civil issues where Americans should be guaranteed counsel, but are not. Instead, each year annual federal funding for legal aid amounts to less than Americans spend on Halloween costumes—for their pets.[9] This is part of what is known as the “justice gap.”
II. The
Justice Gap
The “justice gap” is the difference between the civil legal needs of low-income Americans and the resources available to meet those needs.[10] In 2016 86% of the civil legal problems reported by low-income Americans received inadequate or no legal help.[11] In that same year 71% of low-income households experienced at least one civil legal problem—
including problems with domestic violence, veterans’ benefits, disability access, housing conditions, and health care.[12] In 2017 it was estimated that low-income Americans would approach legal aid organizations for support with 1.7 million problems, but would receive limited or no legal help for more than half of these because of a lack of resources.[13] In 2015 an estimated 1.8 million people appeared in the New York State courts without a lawyer.[14] In these courts 98% of tenants in eviction cases and 95% of parents in child support cases were unrepresented in 2013.[15] In Michigan there is only one legal aid attorney (an attorney providing free civil counsel) for every 8,177 people living in poverty.[16] Comparable numbers can be found in courts across the United States. To understand the significance of the justice gap, consider eviction in Michigan.
Each year, landlords file nearly 200,000 eviction cases
in Michigan and around 40,000 Michigan households lose their homes as a result of court-ordered evictions.[17] In 2018 there was about 1
eviction case filed for every 6 rental housing units in the state.[18] Of the eviction cases
filed in Michigan from 2014-2018 83.2% of landlords had attorney representation,
while only 4.8% of tenants did.[19] In Washtenaw County,
90.5% of landlords had attorney representation, compared to only 2.3% of
tenants.[20]
In this sample tenants
with representation were more likely to receive a positive outcome—56% of cases
were dismissed and 11% received a judgment in their favor, versus 45% of cases
dismissed and no judgments in their favor among tenants without representation.[21] In other words, tenants
without attorneys faced an adverse outcome 25% more of the time than those with
them. Of the cases filed, 92% were filed for non-payment of rent.[22] Given an imminent second
wave of COVID, this is problematic for many.
IV. COVID-19
In June the Michigan State Court Administrative Office estimated that due to COVID there could be more than 75,000 eviction cases filed once a pause on case filing
ended.[23] Now, COVID cases are again on the rise as the state is starting to be hit with the long-predicted “second wave.” As low-income workers lose jobs and fall behind on rent, and as delayed unemployment benefits slowly reach the hands of tenants, eviction cases will likely increase.[24] Many of the delivery, janitorial, and restaurant workers deemed “essential” during the pandemic, yet frequently lacking a living wage, paid sick leave, healthcare, or a savings account, will be among those hit hardest by the second wave. Those we force to be our heroes may lack justice in our complicated bureaucracy.
V. Civil
Gideon
Now as much as ever a “civil Gideon” is needed. Guaranteed
counsel for basic needs like housing, safety, and custody should be a
fundamental right, just as counsel in criminal matters is. As of May 2020,
Cleveland, Newark, New York City, Philadelphia, San Francisco, and Santa Monica
have established a right to counsel in eviction cases while Massachusetts and
Connecticut are considering legislation to create a state-wide right to
counsel. [25]
At the very least, Michigan should join this growing national movement.
Currently, the
City of Detroit is considering such legislation.[26]
Although the Community Enterprise Clinic does not provide counsel for eviction,
or any civil court proceedings, we will continue to help our clients find and
negotiate favorable leases. Speaking more broadly, we will continue to help
America realize liberty and justice for all by providing free services to
individuals and organizations who are themselves bringing positive change to
their communities.
[1]. Gideon v Wainwright,
372 US 335 (1963).
[2]. Erik Eckholm and Ian Lovett, A
Push for Legal Aid in Civil Cases Finds Its Advocates, The New York Times
(Nov. 21, 2014), https://www.nytimes.com/2014/11/22/us/a-push-for-
legal-aid-in-civil-cases-finds-its-advocates.html.
[3]. Id.
[4]. Id.
[5]. Id.
[6]. Id.
[7]. Id.
[8]. Id.
[9]. See, e.g., Joe Kennedy
III, Opinion: Access to Justice for All, The New York Times (March 2,
2016), https://www.nytimes.com/2016/03/03/opinion/access-to-justice-for-all.html; Since the date of the previous
article the trend has continued, compare Nicole Lyn Pesce, Americans
Are Spending Almost Half a Billion Dollars on Halloween Costumes For Their Pets,
Market Watch (October 26, 2019), https://www.marketwatch.com/story/americans-are-spending-almost-half-a-billion-on-halloween-costumes-for-their-pets-2019-10-22 with American Bar Association, Legal
Services Corporation: Latest Developments, https://www.americanbar.org/advocacy/governmental_legislative_work/priorities_policy/access_to_legal_services/legal_services_corporation/;
While comparing federal funding with private spending is not necessarily
comparing apples to apples, it does provide a sense for how small legal aid
spending actually is.
[10]. Legal Services Corporation. 2017. The
Justice Gap: Measuring the Unmet Civil Legal Needs of Low-income Americans.
Prepared by NORC at the University of Chicago for Legal Services Corporation.
Washington, DC. https://www.lsc.gov/sites/default/files/images/TheJusticeGap-FullReport.pdf.
[11]. Id.
[12]. Id.
[13]. Id.
[14]. New York State Courts Access to
Justice Program, Report to the Chief Judge and the Chief Administrative
Judge of the State of New York, 2015. www.nycourts.gov/ip/nya2j/pdfs/NYA2J_2015report.pdf.
[15]. James J. Sandman, Rethinking
Access to Justice, Hawaii Access to Justice Conference (June 20, 2014), http://www.lsc.gov/rethinking-access-justice-james-j-sandman-hawaii-access-justice-conference.
[16]. Access To Justice Campaign, Michigan
State Bar Foundation, https://atjfund.org/about-the-atj-campaign/
[17]. Robert Goodspeed, Kyle Slugg,
Margaret Dewar, Elizabeth Benton, Michigan Evictions: Trends, Data Sources,
and Neighborhood Determinants (May 2020), at 4. Download it here: https://poverty.umich.edu/working-paper/michigan-evictions-trends-data-sources-and-neighborhood-determinants/.
[18]. Id.
[19]. Id.
[20]. Id.
[21]. Id.
[22]. Id.
[23]. Paul Egan, Whitmer Extends Freeze
on Residential Evictions for Non-Payment of Rent, Detroit Free Press (June
11, 2020), https://www.freep.com/story/news/local/michigan/detroit/2020/06/11/whitmer-extends-freeze-residential-evictions-coronavirus/5333647002/.
[24]. Paula Gardner, Order Extending
Halt in Michigan Evictions May Create 75,000 Case Backlog, Bridge Michigan
(June 12, 2020), https://www.bridgemi.com/business-watch/order-extending-halt-michigan-evictions-may-create-75000-case-backlog.
[25]. Goodspeed, Slugg, Dewar, and Benton,
supra note 16, at 30 n. 80.
[26].
For more
information on Detroit’s efforts to establish a right to counsel in eviction
cases, visit: “Right to Counsel Movement,” United Community Housing Coalition, https://www.uchcdetroit.org/right-to-counsel.