Page 36 - Impact: Collected Essays on the Threat of Economic Inequality

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served with eviction proceedings each year show up in court to defend themselves,27 and the vast majority of them are low-income people who are forced to defend their homes without any access to counsel28 in complex legal proceedings in which the rules of evidence apply and that are governed by a host of substantive and procedural rights . Close to 30,000 families end up evicted each year—one family is evicted about every 4 .5 minutes of the workweek .29 As one low-income tenant put it, describing her Housing Court experience, “what we are asking for is respect and dignity . We want to live like everyone else in the world . We have a right to have housing, to be able to participate in the society as citizens . The question is, do they just want all people of color to pack up and get out of the city?”30
The sentiment expressed by Ms . Cortes about her experience with Housing Court echoes a broader current of concern in New York City’s communities and in the country about the justice system in general . The deaths of Eric Garner on Staten Island, Michael Brown in Ferguson, Missouri, and Freddy Gray in Baltimore, among others, have heightened the perception that we have “two systems of justice,” in which race and economic status lead to vastly different treatment . The message to poor litigants (mostly people of color) in Housing Court that they can be removed from their homes by an armed City Marshal, pursuant to an order of a judge, as a consequence of a complex and technical legal proceeding in which they are deprived of the benefit of legal counsel, is unmistakable: Your homes, your families, and your lives don’t really matter .
Studies have shown that most people believe there already is a “right to counsel” in legal matters such as eviction proceedings .31 This misconception is probably related to the fact that there actually is a right to appear by counsel . The right to appear in court by counsel is a longstanding right that precedes the founding of the nation .32 People with the financial means to hire counsel can exercise that right . People who do not have the financial means cannot . At best, they can obtain free legal assistance—if and when it is available—not as a matter of right, but rather through government-funded and/or privately-funded programs, or from attorneys who are willing to provide representation on a pro bono basis . However, a right cannot be dependent on the largesse of government, the beneficence of the private sector, or the good graces of a volunteer .33 Legal scholarship confirms what most people intuitively understand: a right is a “claim[] that a
27 sTaTisTical reporT of acTiviTy of l & T clerk’s office, sT-30-l&T clerk’s office (march 6, 2014), available at http:// cwtfhc.org/wp-content/uploads/2014/03/Case_Filings_2013.pdf.
28 Supra note 11.
29 The estimate of an eviction every 4.5 minutes was arrived at as follows: there were 26,857 residential evictions in 2014. nyc deparTmenT of invesTigaTion, summary of evicTions, possessions & eJecTmenTs conducTed: Jan. Through dec. 2014 (2015), available at http://cwtfhc.org/wp-content/uploads/2015/03/Evictions-by-Marshal-2014-_-DOI.pdf. There are 52 weeks and 5 work days per week each year; subtracting an estimated 10 holidays leaves 250 work days, or 2000 hours, or 120,000 minutes. (8- hour days = 2000 hours x 60 = 120,000 minutes in the work days per year). 120,000 minutes divided by 26,857, the number of evictions = 1 eviction every 4.5 minutes.
30 Maria Cortes, What the Experts are Saying, impacT cenTer for puBlic inTeresT law and coaliTion for a righT To counsel in housing courT, available at https://d3n8a8pro7vhmx.cloudfront.net/righttocounselnyc/pages/23/attachments/ original/1433269447/FINAL_expert_report.pdf?1433269447.
31 BosTon Bar associaTion Task force on The civil righT To counsel, The imporTance of represenTaTion in evicTion cases and homelessness represenTaTion: a reporT on The BBa righT To counsel piloTs 1 (2012), available at http://www. bostonbar.org/docs/default-document-library/bba-crtc-final-3-1-12.pdf.
32 See generally Julian Cook, Rule 11: A Judicial Approach To An Effective Administration Of Justice In The United States, 15 Ohio n. univ. l. rev. 397, 409 (1988).
33 While there are important measures in New York to expand the availability of pro bono resources for delivery of legal services, such as the recently implemented rule requiring fifty hours of pro bono work for admission to the New York bar (see 22 NYCRR § 520.16 (2015)), these measures are no substitute for a government guarantee and adequate funding of representation.
Impact: Collected Essays on the Threat of Economic Inequality