The Bigger Problem: Why Didn't Tenants Have Right to Counsel in First Place?

 Long wait for justice (NYT)

Long wait for justice (NYT)


Recently, housing advocates celebrated the announcement that New York City will provide free legal counsel to low-income tenants in housing court. This relatively inexpensive program will undoubtedly improve the lives of many vulnerable New Yorkers by reducing the risk of eviction.  But why didn’t these tenants have access to legal representation in the first place?  Therein lies the bigger housing problem with our legal system and our country.

The obvious place to start is the difference between criminal and civil court in the US.  The 6th Amendment guarantees the right to counsel in all criminal proceedings (although surprisingly it wasn’t expressly outlined by the Supreme Court until 1963).  Anytime the state brings charges against you, you are guaranteed fair, conflict-free legal counsel through the public defender system (though some are cared for more than others.)

However, unlike most western democracies, you are not guaranteed the right to counsel in civil court in the US.  There are some exceptions to this - if there are concerns over due process or if the case risks your personal liberty.  This narrow view is partially based on Lassiter v Dept. Social Services in 1981.  It’s an utterly heart-breaking case and I strongly recommend you read this article about it to understand the sexist and racist assumptions that went into the broader argument against providing counsel for civil cases.

In New York City, the Housing Court (which was formalized as its own branch of the civil court system in 1973) sees 350,000 filings a year with just 50 judges. That makes for a painfully slow process that favors those who can afford lawyers who are familiar with its pace and process (and who can afford to take that long).  As of 2015, 90% of landlords had legal representation and only 10% of tenants did.

Now, ask any landlord and they will tell you its exceedingly difficult to evict a tenant in New York (which is absolutely true, certainly relative to other states) but with such a discrepancy between representation, it’s clear that tenants don’t have the same access to due process.  It’s also a substantially different circumstance when your home is at stake vs. part of an investment. 

It’s not hard to see why this is a problem.  According to the Coalition for the Homeless, eviction is the number one cause of homelessness for women and children in the city, who represent over 75% of shelter system residents (about 48,000 out of 62,000 people).  The right to counsel will have a profound impact on this particularly vulnerable population.

But why did it take this long to address? Because we don’t think of housing as a right.  Or, put another way, we don’t think the loss of a home is the same as loss of personal liberty

And therein lies the problem with our civil legal system (putting aside how unacceptably overworked and underfunded that system is) and our broader society.  Who defines personal liberty? Would a mother with several children consider herself free if she is homeless? Is she not deprived of her personal liberty and her children’s? Not being able to afford a home is not the same as choosing not to have one.

Courts have generally shown concern about the ‘slippery slope’ of where to draw the line on personal liberty.   That’s reasonable and one that the courts ultimately shouldn’t have to decide.  We should.  The right to counsel to prevent evictions is a wonderful start, but we must go further as a society.  We must decide that housing is a right.

To be clear, I don’t mean to suggest that it is the landlord’s obligation to provide that right.  There are malevolent landlords out there for sure, but there are also many more that are trying to make ends meet just like everybody else.  We can’t simply put the burden of providing free housing on landlords or demonize them when they are trying to get a return from their property.

We must think bigger. Adopting housing as a right as an organizing principle would have several major policy implications to do just that.

First, at the local level it would have a liberating effect on the stifling status quo of our current rent, occupancy, zoning, and property tax laws that collectively play a large role in the affordable housing crisis.  It would spur significant innovation around these regulations that would likely provide gains for all stakeholders.

Second, it could fix the federal government’s wasteful role in housing.  For too long, and at far too high a cost, the federal government has supported homeownership exclusively.  This choice has caused generations of systemic segregation, degraded our environment and civic life, and nearly destroyed our economy.  Building more types of housing in more kinds of communities for more types of people could arguably create a sustainable, equitable economic boom the likes of which we haven’t experienced in decades, if ever.

Finally, it could also potentially lead to a cultural reboot; something that Americans of all political identities appear to agree is needed.  For too many people, it’s not clear today what America’s role in the world is or will be.  It isn’t clear that our system is producing the type of peace and prosperity we’ve come to expect - or that it’s capable of fixing itself in order to do so.  It isn’t clear what America is. Let’s fix that.

Let’s start by getting back to basics. What is “life, liberty, and the pursuit of happiness’? Is it merely positive liberty (the freedom to do something) or is it also negative liberty (the freedom from something)?  How can you pursue happiness, liberty, or life without a place to call home?

We’ve always been our best when we’ve used our noble ideals to defend the vulnerable and innocent from the violent injustices of the world, here and abroad.  Surly we can address the housing needs of millions of Americans.  In the process, we can rediscover the ideals that have made us such a beacon for the rest of the world.