Posted April 22, 202110:26 am
Written by the Editorial Board in The Washington Post on 04/22/2021.
East 185th Street runs south from the shores of Lake Erie in Ohio, connecting Cleveland in the west with the small city of Euclid to the east. The road also demarcates an invisible legal boundary that for some may mean the difference between having a roof over their heads or not.
Last summer Cleveland enacted an ordinance providing court-appointed lawyers to certain low-income tenants fighting eviction cases that could cost them their homes, a burgeoning risk for people who have lost jobs in the pandemic. Euclid, like most other places, has no such law, meaning tenants are on their own — if they even bothered going to court.
The odds are good for lawyered-up tenants in eviction cases — they can strike a deal, hammer out a payment plan, make counter-claims involving peeling paint, broken windows, mice. Impoverished tenants without lawyers, which is to say the vast majority in Euclid and elsewhere, are overwhelmingly out of luck. Some might land out on the street.
Those unlawyered tenants, like millions of similarly luckless Americans struggling in legal proceedings to keep their cars, their assets, their children — or even, in domestic violence cases, to protect themselves from physical harm — face daunting odds in a justice system tilted badly against litigants without lawyers. Courts and judges give them short shrift. Legal forms are often confusing. And the patchwork of state laws requiring court-appointed attorneys, or not, gives millions little reason to hope they will prevail.
Unlike in criminal cases, in which destitute defendants facing even minor charges are assigned lawyers, there is no such blanket privilege in non-criminal cases. At their wit’s end, many litigants turn to nonprofit legal aid groups, only to discover a harsh truth: The United States might have plenty of lawyers for those with money; but for those with slimmer wallets, there are not nearly enough to go around.
The resulting triage is brutal. In the Great Recession, some legal aid outfits, facing a deluge of desperate homeowners at risk of losing houses or apartments in foreclosure, routinely turned away debtors anguished at the prospect of losing their cars, without which their access to work and medical care might evaporate. Those who need lawyers in domestic violence cases might get one from legal aid, but only if a child was in the house, or if the alleged violence was recent.
Chronically underfunded, legal aid officials are forced to anoint winners who get lawyers, and more numerous others, probable losers in the game of justice, who don’t. They are the haves and have-nots of the American legal system. And there are far too many have-nots, a recipe for rampant injustice.
The math is unforgiving. In 2017, impoverished Americans ineligible for court-appointed lawyers under state law were expected to seek help for roughly 1.7 million civil legal problems at one of hundreds of offices supported by Legal Services Corp., a congressionally funded nonprofit. More than half got limited or no help. Little wonder: Just 1 percent of the nation’s lawyers work for a legal aid or public defender’s office. While there are 40 lawyers for every 10,000 Americans, there is less than one legal aid attorney for every 10,000 people living at or below the poverty line, according to a report by Fordham Law School’s National Center for Access to Justice.
Those numbers translate into terrible outcomes for ordinary Americans. In guardianship cases, for instance, many states provide no court-appointed lawyers for mainly elderly people, who may lose control of where they live, what medication they take and whom they may see. In Indiana, four years ago, just 21 percent of 2,625 adults in guardianship proceedings had access to lawyers to represent them. And without a lawyer in such a case, their chances of retaining any semblance of autonomy are negligible, according to experts.
The Supreme Court has refused to find in the Constitution a right to counsel for civil cases, despite the often enormous stakes, as it did in criminal ones nearly six decades ago. Yet it has also said states would be wise in certain instances to provide court-appointed lawyers for penniless litigants. In some circumstances, states have done so — when they move to take children away from allegedly neglectful or abusive parents, for example.
But too often states shrug off the plight of people whose lives may be torn apart without legal advice or representation.
The pretext is cost. In fact, states could afford to do more.
In Cleveland, for instance, where nearly a third of the population lives in poverty, officials imposed strict eligibility limits on tenants seeking court-appointed lawyers in eviction cases: The benefit is available only for households with children and incomes at or below the federal poverty threshold of $21,720 for a family of three. The city expects that to yield some 1,500 cases annually that qualify for a lawyer provided by Legal Aid Society of Cleveland, at a cost of roughly $2.4 million. More than half of that cost will be borne by local philanthropies, notably the United Way. Hardly a bank-breaker in a city with a budget of $1.8 billion.
The hundreds of tenants facing eviction who will now go to court with a lawyer represent a sea change in Cleveland; previously just 1 or 2 percent had legal representation. Most landlords have lawyers when they go to court. So now, in Cleveland at least, there is a chance for a level playing field in housing court. Maybe lawyers will even stop referring to it as “eviction court,” given that in the first six months of the program, ending in December, the vast majority of tenants represented by lawyers were able to avoid being thrown out of their homes.
Not so across East 185th Street in Euclid. Like Cleveland, Euclid also has a largely African American population. Like Cleveland, most of the city’s homes are occupied by renters. Like Cleveland, many of its residents scrape by; the city’s per capita income is less than $25,000, according to census figures.
Yet all but a handful of tenants facing eviction in Euclid will appear in court with no lawyer, if they appear at all. Their fates will be all but sealed.