Page 37 - Impact: Collected Essays on the Threat of Economic Inequality

government is obligated to respect .”34 The U .S . Supreme Court has described a statutory right as having three attributes: 1) it must be intended to benefit the claimant; 2) it must create a binding, mandatory obligation on the government; and 3) it must be “sufficiently specific and definite” to be judicially enforceable . 35
Funding for access to counsel for those who cannot afford to pay, of course, helps . A huge influx of New York City appropriated funds for eviction-prevention legal assistance is expected in 2015, as is passage of legislation creating an Office of the Civil Justice Coordinator . These measures will help enormously by expanding the availability of counsel and placing much-needed focus on the importance of civil legal services . But funding, unaccompanied by a “right,” keeps the funder and the organizations that provide legal services as the gatekeepers to the justice system rather than shifting power to the people who are affected themselves . If there is no right and the money runs out or the funding is reduced, or if nonprofit legal services organizations are without sufficient staff resources to take another case, access can be denied . To truly shift the balance and change the justice paradigm, there must be a right to counsel . 36
The inequitable distribution of justice is a result of the actions and inactions of all levels of government, and while the federal, state, and city governments all do something to address that inequity by funding civil legal services in fluctuating amounts, no level of government does enough . New York City has the legal authority, compelling policy, and fiscal reasons and the growing political will to do something much more significant—and game-changing—about it . New York City has the power . Its powers are delegated to it from the State, through the New York State Constitution and the Municipal Home Rule Law, both of which grant the City the power to adopt local laws for the “protection, order, conduct, safety, health and well-being of persons or property”;37 and the right to counsel certainly protects New Yorkers and advances their well-being . New York City has compelling fiscal and policy reasons . Establishing a right to counsel furthers several of the administration’s key objectives: it keeps people out of the shelters and saves money otherwise spent on sheltering people;38 it mitigates the growing housing crisis by enabling low-income people to stay in affordable housing; and it sends a strong message that we are one New York City that strives to address inequality and matters of fundamental justice . And New York City has the political will to take this action . New York City’s current political leadership—Mayor Bill de Blasio, City Council Speaker Melissa Mark-Viverito, and the members of the City Council—have clearly recognized the importance of access to counsel for those who face losing their homes, in both their words and their deeds . A large majority of the Council has co-sponsored the pending legislation that would create the right to counsel .39
34 Sarah H. Cleveland, The Legacy of Louis Henkin: Human Rights In The “Age of Terror,” 38 columBia human righTs l. rev., 499 (2007).
35 Wilder, Governor of Virginia, et al., v. Virginia Hospital Ass’n, 496 U.S. 498, 510 (1990).
36 A right to counsel would, of course, lose its meaning unless it is implemented through a system that provides high-quality representation. Critiques of state criminal defense systems are instructive on this point. See generally The JusTice policy insTiTuTe, sysTem overload: The cosTs of under-resourcing puBlic defense (2011), available at http:// www.justicepolicy.org/uploads/justicepolicy/documents/system_overload_final.pdf.
37 New York State Constitution Article IX § 2(c)(ii); N.Y. Mun. home rule § 10(1)(ii)(a)(12) (2015).
38 new york ciTy independenT BudgeT office, esTimaTe of The cosT of legal counsel in housing courT and poTenTial shelTer savings due To averTed evicTions (2014), available at http://www.ibo.nyc.ny.us/iboreports/2014housingcourtletter.pdf. (Note that while this IBO report finds that the savings from a right to counsel would exceed the cost of providing counsel, the report assumes that those savings would be shared by the state and federal governments, while the cost of counsel would be solely the responsibility of the City.)
39 See supra note 3. As of publication, Intro 214 had 39 sponsors, including NYC Public Advocate, Letitia James. There are 51 members of the City Council. Council members Mark Levine and Vanessa Gibson have led the legislative push within the Council.
Housing and Community
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