Right to counsel for tenants facing eviction remains unrecognized as a fundamental right—a contradiction to our country’s commitment to liberty. The label of ‘evicted’ is one that burdens many; in 2018, 3.6 million evictions were filed nationwide, a figure overwhelmingly composed of marginalized residents in low-income communities.[1] Through the threat of eviction, a free and equitable life becomes an impossibility for our nation’s socioeconomically vulnerable. Rent-burdened families either endure landlord harassment and subpar housing conditions or face the risk of losing their homes when forced to navigate the complexities of housing court devoid of attorney representation. After all, tenant representation is abysmally low—approximately 4%—compared to 83% of landlords.[2] Eviction deprives Americans of undeniably fundamental aspects of liberty. Guaranteed counsel in civil matters would ensure all citizens are allowed to preserve them. The Supreme Court’s interpretation of due process in acknowledging the constitutionality of a criminal right to counsel paves the way for extending this right to individuals on the verge of eviction.
History of Right to Counsel
The constitutional significance of the right to counsel was first established in criminal matters. In Powell v. Alabama (1932), the Court considered the case of nine young Black men convicted of raping two White women. The state claimed counsel was provided to the plaintiffs; however, representation was only afforded moments before trial.[3] Without attorney protection, the proceedings became, in essence, a surefire condemnation. Hostility permeated the courtroom, and an “excited public sentiment” was palpable as the all-White jury sentenced the defendants to death—the maximum possible punishment for such a crime under Alabama state law.[4] In a landmark ruling, the Supreme Court held that the Alabama court’s denial of due process contravened the Fourteenth Amendment. The state’s interest in expedient criminal sentencing could not strip the accused of their right to “advise with counsel and prepare his defense.”[5] In the Court’s view, doing so would reflect the “haste of the mob.”[6] A “fair” trial requires the provision of adequate legal representation regardless of financial means. The Court reasoned that, by lacking attorney support, “even the intelligent and educated layman” faces, irrespective of guilt, the “danger of conviction because he does not know how to establish his innocence.”[7] Powell illustrates that a citizen’s right to counsel cannot be neglected without violating those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.”[8] Accordingly, the Court spent the following years expanding this right to all levels of jurisdiction and forms of crime, culminating in 1963’s seminal case Gideon v Wainwright.[9] Through Gideon, guaranteed counsel would now apply to all state criminal prosecutions.[10]
While the Court has expanded the right to counsel in criminal cases, it has been far less sympathetic to tenants, consistently denying this right in civil cases. Lindsey v Normet (1972) pertained to lessees who withheld payment from their landlord until substandard conditions in the home were remedied. The couple was evicted, leading them to file a lawsuit claiming Oregon’s Forcible Entry and Wrong Detainer (FED) statute was unconstitutional.[11] The policy outlines that eviction trials must occur “no later than six days after service of the complaint” unless rent is provided and demands the “posting of bond on appeal with two sureties, in twice the amount of rent expected to accrue pending appellate decision.”[12] The Court erroneously framed the circumstance as the tenants attempting to “occupy the real property of [their] landlord beyond the term of [their] lease without the payment of rent”—a misrepresentation of renters’ simple quest to demand the rights supposedly asserted by their state’s landlord-tenant law.[13] The Court held that regardless of their financial struggles, counsel did not need to be provided to the tenants under due process. The Court noted the state’s power to pursue its “legitimate objective of achieving rapid and peaceful settlement of possession disputes between landlords and tenants” and that “tenants would appear to have as much access to relevant facts as their landlord.”[14] The requirement that already economically burdened tenants must pay double one month’s rent while a court decision is pending—all without access to counsel—could only serve as a deterrent to attempting legal recourse against landlord misconduct. Normet exposes the judicial system’s apathy before providing families opportunity to prevent expulsion from their home; here, the Court finds no issue ensuring courtroom efficiency to the detriment of equity.
The Court subsequently established a procedure through which the obligation of due process in a civil case would be determined. This was accomplished in Lassiter v Department of Social Services (1981), in which an unrepresented Abby Gail Lassiter challenged the state’s attempted termination of her infant’s custody while she served a 25-year prison sentence.[15] The Supreme Court hereafter implemented Mathews v Eldridge’s balancing test, weighing the “private interest at stake, the government’s interest, and the risk that the procedures used will lead to erroneous decisions” to determine whether due process applies.[16] It ruled that appointment of counsel could not be provided for every indigent parent because their physical liberty is not at stake. Even at the prospect of depriving parental rights—an interest found to “undeniably” warrant “deference and, absent a powerful countervailing interest, protection”—Lassiter lost the case.[17] The case-by-case standard for reviewing the applicability of due process implemented in Gagnon v Scarpelli was thereafter applied to civil rights matters through the Mathews test.[18]
A Constitutional Imperative for Civil Counsel
Notwithstanding the Supreme Court’s conservative treatment in civil cases, Due Process presents the right to counsel in eviction as constitutionally guaranteed, as it prohibits the government from depriving Americans of “life, liberty, or property.”[19] Government action is inextricably tied to civil disputes between private parties, which take place in government court, with judgments administered by government actors, part of a governmentally directed judicial system. Consideration ensuring a just trial is therefore constitutionally mandated. Scholars have most extensively explored a procedural interpretation of Due Process, which focuses on how adjudication is resolved rather than its outcome. This was the Court’s primary concern with criminal right to counsel and it concluded that adherence to Due Process necessitates counsel for all defendants. One of the Court’s foremost justifications was incarceration’s infringement on an individual’s freedom. Its failure to extrapolate this reasoning to more abstract conceptions of “liberty” contradicts 50 years of legal precedent.
The Supreme Court has previously distinguished liberty to encompass far more than a lack of “arbitrary and unreasonable restraint.”[20] It concedes that freedom denotes the right to “engage in any of the common occupations of life,” “establish a home and bring up children,” and “generally to enjoy those privileges…essential to the orderly pursuit of happiness by free men.”[21] It is an “insensitive presumption” that incarceration be deemed the only loss of liberty sufficient to justify a right to counsel (Blackmun, J., dissenting), as civil matters such as eviction uproot families from their homes, leaving them vulnerable to the consequences of residential instability.[22] When applying the Mathews balancing test, the Court should abide by its commitment to consider the full cost of a civil verdict on state and defendant, assenting a tenant’s overwhelming interest in retaining their home. In not assigning legal counsel, the Court provides one sole alternative to eviction for impoverished families: increasing financial burden by pursuing likely futile legal action across state courts.
Liberty is a right that promises “freedom to act according to one’s own will”—to live a life fruitful for oneself and, consequently, the whole of society. [23] It is an entitlement that need not be restricted except for proper governmental objectives.[24] Lindsey found the Court emphasizing the importance of Oregon’s desire for a “rapid” solution to eviction cases, although not believing this to be proper enough objective for denying criminal defendants of a counseled trial in Powell. If the Court seeks efficiency, it has certainly been attained. The “machine-gun rapidity” with which default judgments are issued in eviction proceedings is a unique phenomenon of today, facilitated by a judicial climate driving approximately 70% of tenants to not appear in court.[25] The risk associated with wrongful eviction in civil trials is constitutionally equivalent to that of imprisonment. Ability to live in a home and shelter one’s family should be vehemently protected—our constitution, the Court, nor our human conscience can disregard these as fundamental aspects of a “free” life.
Ensured counsel in eviction disputes is now widespread at the local level, reaping clear benefits for tenants in those jurisdictions. In 2017, New York became the first state to mandate counsel in housing court. Over the next four years, seventeen cities, five states, and two counties followed suit. Today, 84% of represented NYC tenants remain in their homes, while the city’s eviction filing and verdict default rates have decreased by almost 30%; 93% of clients avoided eviction or displacement in Cleveland; and Kansas City experienced a more than 79% eviction rate decrease in the first three months of right to counsel’s effectuation.[26] With Court-mandated provision of counsel and accompanying funding legislation modeled after the 1964 Criminal Justice Act, tenants and other civil defendants can be afforded a platform to exercise their rights.
Civil right to counsel warrants the Court’s recognition as a constitutional right. Its ruling in Lassiter and historically unyielding consideration of civil right to counsel is discredited by Gideon’s declaration that individuals “cannot be assured a fair trial unless counsel is provided” for them. Despite case particulars, the ad hoc consideration of due process introduced by Lassiter should be amended to an unconditional guarantee of counsel in civil litigation. The Constitution obligates the protection of a free life: undoubtedly encompassing access to housing which makes it possible. In recognizing due process as constitutionally guaranteed, so is the right to counsel in eviction proceedings.
[1] Eviction Lab,“Research Overview,” 2018, https://evictionlab.org/research.
[2] National Coalition for a Civil Right to Counsel, “Eviction representation statistics for landlords and tenants absent special intervention,” 2024, https://civilrighttocounsel.org/wp-content/uploads/2023/11/Landlord_and_tenant_eviction_rep_stats__NCCRC_.pdf
[3] Powell v. Alabama, 287 U.S. 45, 47 (1932)
[4] Id., 51
[5] Id., 59
[6] Id.
[7] Id., 69
[8] Id., 67
[9] e.g.: Johnson v Zerbst, 04 U.S. 458 (1938), Argersinger v Hamlin, 407 U.S. 25 (1972)
[10] Gideon v. Wainwright, 372 U.S. 335 (1963)
[11] Lindsey v. Normet, 405 U.S. 56, 58-59 (1972)
[12] Id., 64
[13] Id., 74
[14] Id., 64-65
[15] Lassiter v. Department of Social Services, 452 U.S. 18, 18 (1981)
[16] Id.
[17] Id., 27
[18] Id., 26
[19] U.S. Const. amend. XIV, cl. 3.
[20] Wex, liberty, Cornell Law Sch., https://www.law.cornell.edu/wex/liberty.
[21] Meyer v Nebraska, 262 U.S. 390, 390 (1981)
[22] Lassiter, 452 U.S. at 42.
[23] Wex, liberty, Cornell Law Sch., https://www.law.cornell.edu/wex/liberty
[24] Bolling v. Sharpe, 347 U.S. 497, 497 (1954).
[25] Matthew Desmond, “Evicted: Poverty and Profit in the American City,” 2016, 100, 104
[26] National Coalition for a Civil Right to Counsel, “The right to counsel for tenants facing eviction: enacted legislation,” 2024, 1-2, https://civilrighttocounsel.org/uploaded_files/283/RTC_Enacted_Legislation_in_Eviction_Proceedings_FINAL.pdf.