The Eviction Crisis and the Attempt to Harmonize Gideon in Civil Courts
“‘While an eviction moratorium is an essential step, it is a half-measure that extends a financial cliff for renters to fall off of when the moratorium expires and back rent is owed.’” – Diane Yentel, CEO of the National Low Income Housing Coalition (NLIHC)
Nationwide, millions of people rent homes and apartments. Renters made up 36% of the 122.8 million households in the country in 2019. As the COVID-19 pandemic swept the nation in 2020 and states went into quarantine to try and prevent the spread of the disease, families faced severe financial hardships. There were record-high unemployment rates, as people were unable to work in-person, and an estimated twelve-million adults living in a rental—about sixteen percent of adult renters—were not caught up on their rent. Furthermore, twenty-three percent of households with children were at least a month behind on rent in October 2021. To battle the economic symptoms of COVID, the federal government temporarily expanded unemployment benefits, and with the threat of mass evictions looming, the Centers for Disease Control and Prevention (CDC) issued a sweeping eviction moratorium for those who lost their jobs and did not have alternative options for housing.
Affordable housing is defined as 30% of a household’s income going towards shelter. In 2020, 46% of renters spent at least 30% of their household income on rent, and of those renters, 23% spent at least 50% of their household income on rent. The NLIHC found that as of July 2021, a full-time minimum-wage worker could not afford to rent a modest two-bedroom anywhere nationally, nor could she afford a modest one-bedroom apartment in 93% of counties nationally. For that worker to afford a modest two-bedroom—priced at the fair market value and without spending more than 30% of her income on housing—she would need to earn $24.90 per hour, and $20.40 per hour for the modest one-bedroom. Since 2010, the federal minimum wage has been set at $7.25 per hour, and twenty-one states—including North Carolina—do not require anything above that minimum.
The most common reason for eviction is the failure to pay rent, and in recent years, the median cost of rent has increased nationwide. The cost of rent has been increasing nationally since mid-2021. In July 2022, the cost of rent across the country reached a record high for the seventeenth consecutive month. In North Carolina, the cost of rent has increased at a higher rate than the national average, with renters reporting an average 20% increase to rent prices over 2021 across the state. Comparatively, the average cost of monthly rent increased by 16% in the same period. In the course of only six months, many areas of North Carolina reported a 10% increase to the monthly cost of a rental property. Raleigh-Cary and Durham-Chapel Hill were among the top 25% of metro areas across the country that saw a 20% increase to monthly rent prices in 2021. In Raleigh, NC, the median rent for a two-bedroom apartment is $1,540. Nationwide, renters are, on average, indebted to their landlords for about $3,700 owed in back rent, with large discrepancies between states.
“The evidence strongly indicates that eviction is not just a condition of poverty, it is a cause of it.” – The Eviction Lab
There is no official database on eviction statistics, but in 2017, Matthew Desmond—author of the Pulitzer Price winning book Evicted: Poverty and Profit in the American City—partnered with Princeton University to create The Eviction Lab, a database on the statistics of eviction nationally. The introduction of the database has been praised and applauded, but it does not offer a complete picture of eviction data. Importantly, the data only demonstrates the number of formal evictions. Those evictions are based on state laws and leaves the tenant with a public record of the eviction which carries a heavy stigma.
During the pandemic, even the broadest-reaching moratoriums did not put an absolute end to eviction as landlords found ways around the courts. In fact, many renters still face eviction through informal, and potentially illegal, practices from landlords. When landlords engage in “self-help evictions” they often change the locks on the rental property, remove belongings without legal justification, turn off the heat or electricity, and otherwise make the property unsuitable to live in by refusing to make repairs. Some landlords even go so far as to remove the tenant’s front door. Others falsely claimed that their properties were not covered by applicable eviction moratoriums to try and deceive tenants into leaving. For example, one landlord distributed false documents to tenants that the eviction moratorium had ended after 5 p.m. on a Friday so they could not verify it with the courts and hoped certain tenants would simply move out be the end of the weekend.
Landlords rely on the power imbalance between them and their tenants to harass and coerce tenants into leaving. Those tactics are effective because many renters—particularly low-income tenants—choose to leave their housing voluntarily rather than risk the stigma of an eviction. If the tenant tries to bring the matter to court, she risks losing her case and getting evicted formally. Alternatively, she can choose not to fight and potentially find better housing than she could if she had an eviction on her record. The combination of increases to the cost of rent and the end of eviction moratoriums has caused journalists to speculate about an impending “eviction crisis.” While eviction filings at the end of 2021 were lower than usual, overall filings for evictions have been increasing in recent months. More recent reports show that the rate of eviction is returning to pre-pandemic numbers nationally, but closer analysis reveals that in cities with little to no legal protection, eviction filings increased.
In truth, an eviction crisis existed before the pandemic, and the nationwide evictions moratorium did not put a complete stop to evictions. Now, the Census Bureau predicts that millions of renters are at risk of being evicted in the coming months.
“You should seek legal assistance if you are in public housing or have a housing voucher and are being evicted, because an eviction could affect your right to receive further housing assistance.” – North Carolina Judicial Branch
The consequences of eviction are substantial as the mere presence of an eviction filing on a person’s court records can be enough for a landlord to reject an application. For those who are evicted, the impact can be devastating. Eviction can take a toll on the evicted person’s or family’s mental and physical health. For example, children dealing with housing instability are more likely to struggle in school and less likely to graduate high school. Eviction can also force individuals and families into worse living conditions because they do not have the time to find something better. If someone has an eviction filing on her record, regardless of the outcome, most landlords will refuse to rent to her so her options are severely limited. Families may be forced to live in temporary housing like extended-stay hotels to avoid needing to stay in shelters but evicted families may end up homeless anyway. Now, as affordable housing is scarce, families dealing with eviction find themselves at a greater loss of how to proceed.
Eviction does not only hurt the individuals, but their communities as well. When people are evicted they become more reliant on government support, and many lose their jobs in midst of coping with a forced move. This can mean millions in lost earnings and greater strains on communities at large. Individuals working low-paying jobs may not be able to perform at their jobs as well while facing eviction. Because those jobs also offer little flexibility for employees to take sudden time off—and offer little protection from termination—eviction is closely connected to subsequent job loss. One study suggests that an emergency shelter costs around $5,000 per family.
Eviction is a major contributor to residential instability, exasperated by the fact that women—particularly women of color—are more likely to be evicted, and single mothers are especially at risk. This means that in addition to everything else, the tenants must also find childcare or send their children to live elsewhere. She may also be forced to choose between watching her child or going to work, so she may be forced to take more time off and put herself at greater risk of job loss. That can put even greater strain on the community as families rely on assistance to re-establish housing at a cost of about $7,000 for an average of seven months.
“The eviction process in one city can differ dramatically from the process in another, leading to different intervention opportunities.” – Housing Matters
In North Carolina, eviction is called a “summary ejectment” and landlords are required to “serve” tenants with paperwork when they want to forcibly remove someone. The issue is then presented before a judge in small claims court. Representation from an attorney is not required for eviction proceedings, but the litigant will be held to the same standards as licensed attorneys. There are several defenses available to an individual faced with eviction, but an inability to pay rent is not one of them.
When they do decide to present a defense, tenants still have to navigate the judicial system to persuade the judge they have a valid case to stay in their home. However, this can often require knowledge of proper court procedure. For example, valid defenses include the landlord used “self-help” procedures or did not properly follow formal eviction procedures. Even if the tenant can prove those, the eviction is only delayed until the landlord does follow proper procedure.
Other defenses, like the landlord is evicting the tenant in retaliation or a breach of warranty of habitability, will require more evidence and rely on more legal theory than the others. In North Carolina, tenants can sue for breach of warranty of habitability for a rent reduction or abatement. North Carolina has a resource available to help tenants determine if their landlord has failed to meet his responsibilities of maintenance and repair of the property, but it is not exhaustive. When making her case, the tenant will need to be able prove that the damage was not her fault, she has fully paid her rent, and she willing to face eviction if the case does not go in her favor.
Even if they have a valid defense, many tenants will not appear in court, often because they cannot afford to miss work or cannot find adequate childcare. Some may not realize they have a defense and feel like the case has already been decided. Given that 90% of landlords have legal representation but less than 10% of tenants have representation, the feeling that the game is skewed against them is justifiable.
The ability to appear before the court in the first place is further frustrated by the fast pace of eviction proceedings. Compared to the average civil case, which can take months or years to litigate, eviction proceedings can be completed within one to three months. At worst, evictions can be finalized within minutes. In some places, evictions happen informally in the hallways of courtrooms. At times, information provided by police, before there is a chance to investigate criminal activity, can lead to the swift “displacement” of a tenant from their home. When tenants do not show up to court to defend themselves, they often receive a default eviction. Once a landlord serves the eviction notice, the court date could be as soon as four days later, giving renters little time to request time off from work or find childcare. After the proceedings have concluded, the parties have ten days to file an appeal. There is a $150 fee to file an appeal that can be waived if a person petitions the court to proceed as an indigent.
While the appeals process does offer the chance to remain in the rental property, a tenant must still make rental payments as they become due during the appeals process. If the tenant fails to pay rent, she can be evicted before presenting her case to a judge. Appealing an eviction also requires a tenant to present a valid defense, which she may not know she has available to her because landlords can engage in illegal practices to push tenants out of rentals. A tenant also cannot appeal an informal eviction that occurs outside the courts. In those cases, the law should be on the tenant’s side, but those landlords can be archetypal bullies when they want to have a tenant removed from the property.
In addition to the trauma associated with eviction, appealing that eviction would require the tenant to prolong the stress while feeling like the sword of Damocles was hanging over her head.
“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. . . . He lacks both the skill and knowledge adequately to prepare his defense, even though he had a perfect one.” – Powell v. Alabama (1932)
In the landmark case of Gideon v. Wainwright, the Supreme Court unanimously decided that defendants in criminal cases had the right to an attorney at both the state and federal levels. Decided in 1963, Gideon is a prime example of the lasting legacy of the Warren Court, remembered for its constitutional revolution and for seeking to protect the rights of individuals. In the years following the decision, Gideon has been remembered for redefining the landscape of criminal procedure for the protection of poor defendants. Not long after Gideon was decided, legal scholars began to ponder the potential to extend the right to an attorney to civil court.
The limits on the Sixth Amendment right to an attorney are most obvious in civil court, where there is generally no right to an attorney at all. This leads to disparate outcomes in civil cases as most litigants representing themselves, also referred to as “pro se litigants,” are not adequately prepared to represent themselves against licensed attorneys. The question of how to resolve the crisis of eviction has led some academics and reporters to support the right to an attorney in civil cases. Inspired by the landmark case, the movement is called “Civil Gideon” and has gained momentum in recent decades.
For some, the spirit of Gideon v. Wainwright presents the perfect solution to the eviction crisis. In his concurring opinion, Justice Clark emphasized that constitutional protections were meant to apply equally, writing, “The Fourteenth Amendment requires due process of law for the deprival of ‘liberty,’ just as for deprival of ‘life,’ and there cannot constitutionally be a difference in the quality of the process based merely upon a supposed difference in the sanction involved.” The deprival of liberty is just as punishing as the deprival of life, according to Justice Clark, and the Fourteenth Amendment protects both equally. In Bolling v. Sharp, Chief Justice Warren explained that, while liberty lacked a precise definition, under the law liberty “extends to the full range of conduct which the individual is free to pursue.” Eviction can severely limit an individual’s housing and employment options in the future, even if eviction only remains on a person’s credit report for a limited period of time.
The unequal protection from the Sixth and Fourteenth Amendments is especially clear in the context of eviction cases. Eviction proceedings have become so skewed in favor of landlords that they undermine citizens’ confidence that eviction decisions are made on the merits. In general, landlords are represented by attorneys around 90% of the time, and tenants are unrepresented 90% of the time. Tenants without any legal representation win or settle their case 62% of the time. Comparatively, the outcomes for tenants represented by legal counsel are dramatically better. Those fully represented by counsel win or settle cases 96% of the time, and those with limited representation win or settle 83% of the time. Furthermore, 80% of the tenants with legal representation do not have a lingering eviction record, compared to the 94% of unrepresented tenants who do leave court with an eviction record.
Additionally, the terms of the settlements are better for those with counsel. Full representation doubles the chances of a tenant staying in their home, and if the tenant agrees to move, she gets twice as much time to do so. Tenants who go to court with no representation are about four to five times more likely to be forced from their home by sheriff deputies than tenants with full legal representation.
“Rather than seeing the plight of the poor as an opportunity to fund more lawyers, we should see it as an opportunity to make American law simpler, fairer and more affordable.” – Against Civil Gideon (and for Pro Se Court Reform)
Those who are not in favor of Civil Gideon may think guaranteeing the right to an attorney in civil cases is impractical or is too conservative of a solution. The critics who find Civil Gideon impractical argue that the sensible solution is to reserve the right of appointed counsel to criminal proceedings. Considering the inadequate funding for criminal defense attorneys, directing funding towards civil attorneys would only put greater strain on the overburdened criminal defense attorneys and take away from their ability to properly litigate felonies “which are typically more important and more complex” than those cases arising in civil court. Civil Gideon, critics argue, would undermine Gideon in criminal court, resulting in an illusory promise of representation both in criminal and civil proceedings because there would not be enough resources to give every litigant adequate representation. The critics look to how Gideon has been poorly applied to criminal courts and caution that the judicial system would be less inclined to protect the right to an attorney in civil court. Furthermore, while proponents of Civil Gideon say attorneys will speed up the adjudicative process, critics argue that attorneys can actually make proceedings more complex and technical.
Even in the criminal context, the right to an attorney is limited. For example, a person may be arrested on charges insufficient to trigger the right to an attorney. Furthermore, attorneys need only act in a reasonable manner, according to the Court in Strickland v. Washington. In that case, Justice Marshall wrote the only dissenting opinion, and criticized the standard as offering nothing in terms of a uniform test to be applied. By setting a standard that required attorneys to act “reasonably competent” the Court—according to Justice Marshall—was setting a standard “so malleable that, in practice, it will either have no grip at all or will yield excessive variation in the manner in which the Sixth Amendment is interpreted and applied by different courts.”
Additionally, the Supreme Court has clearly expressed reluctance to extend the right to an attorney in cases where the litigant is not at risk of losing physical liberty. Lassiter v. Department of Social Services established a presumption against providing an attorney in cases where physical liberty is not at stake. More recently, in Turner v. Rogers, the Court clarified that an attorney was not the only way to satisfy due process, and states may provide other procedural safeguards to protect indigent litigants.
“Landlords and their agents know the judges and clerks . . . and understand how the system works. Tenants, by contrast, arrive at hearings with little knowledge.” – The Baltimore Sun
Several states have begun enacting statutes guaranteeing the right to an attorney in different areas of civil law. Commonly, the statutes guarantee representation in cases involving parental rights, juveniles, and adoption proceedings, but some only apply if the litigant can demonstrate financial need—meaning the litigant would have to request the court to appoint an attorney to the case. In the summer of 2017, New York, New York became the first city in the United States to codify the right to an attorney in eviction cases. Following closely behind were San Francisco, California and Newark, New Jersey. Maryland has also passed legislation to extend the right to an attorney in eviction proceedings by 2025.
These legislative acts appear to be having the desired effect of lowering the amount of forcible evictions in those jurisdictions. Some reports also suggest that by providing tenants with an attorney and lowering the rates of evictions, major cities and states will save millions of dollars. Civil Gideon however, is not the only solution being offered. Others would rather see a reform effort towards improving the total system for pro se litigants. Those scholars point to the “unfulfilled” promises of Gideon v. Wainwright, noting that attorneys in the criminal system are not consistently able to effectively represent their clients.
Other possible solutions include increasing investments in affordable housing and programs that would prevent eviction proceedings altogether. Eviction diversion programs offer resources like legal advice and mediation to landlords and tenants with the hope of helping tenants stay in their homes. Philadelphia and Florida, along with other major cities and states, have started to implement their own diversion programs. Within the last year, Legal Aid of North Carolina has also started an eviction diversion program to help connect tenants with attorneys, paralegals, and outreach workers.
Eviction is a growing crisis in the nation, and comprehensive solutions are needed. The question of how to resolve the crisis is still open to debate, but advocates share a common voice on the need to make a change soon.