Expanding the Right to Counsel in Eviction Cases: Arguments for and Limitations of "Civil Gideon" Laws in a Post-COVID 19 World

(Excerpt) With the cost of housing rising nationwide and incomes largely failing to keep pace with this increase, the United States is in the midst of interrelated affordable housing and eviction crises. The housing affordability metric that has long been the bedrock of American housing policy is that households should spend no more than thirty percent of their income on housing. This is no longer an attainable goal for many Americans. By 2017, forty-eight percent of renter households were “rent burdened”—they paid more than thirty percent of their income in rent. Over a quarter of American renters, or 11 million households, are “severely rent burdened,” meaning they spend more than half their monthly income on rent. When a renter is rent-burdened, they have less income remaining for non-housing essentials like food, medicine, transportation, and childcare. The chances of eviction also climb significantly. Eviction statistics paint a sobering picture. In 2016—the last year the Princeton University-based Eviction Lab collected and aggregated eviction data at the national level—approximately 2.3 percent of renter households in the United States lost their housing due to eviction. This figure is roughly double what it was in 2000. There is also strong gender and racial disparity in these statistics. Black renters face eviction nearly twice as frequently as white renters. Low-income Black women face the highest eviction rates of all, with one in five Black female renters reporting they have experienced eviction at least once in their lifetimes. The devastating mental, physical, and financial consequences evictions have on individuals, children, families, and communities have been well documented. Eviction means more than just losing a place to live. Mothers who experience eviction suffer higher rates of material hardship, depression, and poorer health than their peers. Children facing eviction are more likely to be disciplined in school and involved in child protective services. Eviction can lead to a vicious cycle of housing insecurity and homelessness. People who are evicted struggle to secure new housing, because evictions stay on a renter’s record for years— even if the case was dismissed—and many landlords screen applications for prior evictions through a process called “blacklisting.” Tenants evicted from public housing may, under federal law, be denied future federal housing assistance for up to five years. Evictions further contribute to the ongoing cycle of poverty by damaging renters’ credit scores and by increasing the chances they will lose their jobs. And because eviction and housing displacement can increase transiency and force renters into homelessness and crowded living environments, eviction and housing insecurity can increase exposure to and the continued spread of COVID-19. The COVID-19 pandemic made these problems worse. By late December 2020, ten million Americans were behind on their rent obligations due to COVID-related wage and job loss, a figure three times higher than the normal rate. Because of this, the pandemic initially brought the eviction crisis into the national conversation in a way that has little historical precedent. During the pandemic’s first year, the federal government implemented several new assistance programs to help vulnerable tenants; these included the CARES Act, the Emergency Rental Assistance (“ERA”) program contained within the American Rescue Plan, and the Center for Disease Control’s eviction moratorium. Each program temporarily bolstered the safety net for low-income renters but fell short of solving the underlying causes of housing insecurity that existed long before the pandemic. Now, with CARES Act funding depleted and the Supreme Court invalidating the eviction moratorium on August 26, 2021, there remains little federal protection against eviction—but the crisis facing renters is not over. Two years after the pandemic began, eight million Americans remained behind on their rent and at risk of losing their housing.

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