New Report: Oksana Mironova, NYC Right to Counsel: First Year Results and Potential for Expansion, Community Service Society, March 25, 2019. Preview below:
Evictions are a major driver of housing instability and homelessness for low-income New Yorkers. In the past, tenants facing eviction usually arrived to housing court without legal representation, at a major disadvantage to landlords who almost always have an attorney. This is changing. After years of advocacy, New York became the first city in the country to launch Right to Counsel (RTC) in late 2017. This law will give tenants with incomes below 200 percent of the federal poverty level who are facing an eviction in housing court access to an attorney. The city’s FY 2018 budget included $15M for the first phase of the program, which is reaching 20 of the city’s 200+ zip codes. Plans are to extend it to the remaining zip codes by 2022.
In addition to RTC, the city has launched other anti-harassment/anti-displacement legal services programs since 2014, like the Tenant Harassment Assistance program. The major difference is that in RTC zip codes, access to an attorney is a right for any low-income tenant facing an eviction. In non-RTC zip codes, legal services are a benefit for some low-income tenants.
In this brief, we look at how much legal representation has grown as a result of the Right to Counsel law, and what impact it has had on eviction rates. The phase-in of the program provides a natural experiment; it has given us an opportunity to compare RTC zip codes with similar zip codes without the program.
News Coverage: Jessica Pishko, The Shocking Lack of Lawyers in Rural America, The Atlantic, July 18, 2019. While cities are trying to reform their criminal-justice systems, smaller, more far-flung locales are struggling to provide basic services.
News Coverage: Eli Hager, One Lawyer. Five Years. 3,802 Cases. How Detroit’s Indigent Defense System Fails Poor Defendants. The Marshall Project.org, Aug. 1, 2019. In Detroit, court-appointed lawyers for the poor are encouraged to take on large caseloads at the expense of their clients, a new report says.
News Coverage: Sonia Weiser, Lawyers by Day, Uber Drivers and Bartenders by Night, NYTimes.com, June 3, 2019. Legal Aid lawyers, who represent poor people in court, often have to work second jobs to make ends meet.
New Article: Dorothy Weldon, Note, More Appealing: Reforming Bail Review in State Courts, 118 Columbia L. Rev. (2018).
New Blog Post: Matthew Shaer, How Cities Make Money by Fining the Poor, NYTimes.com, Jan. 8, 2019.
In many parts of America, like Corinth, Mississippi, judges are locking up defendants who can’t pay — sometimes for months at a time.
Jamie Tillman in Corinth, Miss. “I thought, Because we’re poor, because we’re of a lower class, we aren’t allowed real freedom.”
Posted in Access to Justice, Blog Posts, Criminalization of Poverty, Family, Inequality, Jobs, Measuring Poverty, News Coverage of Poverty, Property, Public Defenders, Socio-Economic Rights
New Article: Cristina Rodrigues, The Cost of Justice: The Importance of a Criminal Defendant’s Ability to Pay in the Era of Commonwealth v. Henry, Northeastern Univ. L. Rev. Vol. 10, No. 1 (2018). Abstract below:
Individuals involved with the criminal courts are exposed to a minefield of fees. In fiscal year 2016, the (state) trial courts of Massachusetts collected over $99 million in fines, fees and court costs. Much of that amount came from the state’s poor residents, poor communities and communities of color, because those groups are dramatically over represented in criminal courts. Individuals who do not make criminal court ordered payments can be jailed. As a public defender in Boston, I see my clients burdened by these fees everyday.
In this article, I detail the way in which these criminal court fees are exacerbating the stark racial and economic inequalities that persist. The statistics are alarming. With great enthusiasm though, I argue that the Supreme Judicial Court’s (SJC) 2016 decision in Commonwealth v. Henry provides powerful legal tools for addressing the unjust imposition and collection of criminal court payments. In Henry, the SJC 1) barred judges from ordering defendants on probation to pay restitution amounts that are beyond their actual ability to pay and 2) barred the very common practice of extending a person’s probation for the sole purpose of collecting more restitution payments. These rules extend beyond what exists in most jurisdictions. In the article, I analyze Henry closely. I then argue that Henry’s rules should be formally extended to all criminal court payments. Doing so could render Henry a watershed case regarding the criminalization of poverty in Massachusetts and beyond. These rules will bring us a bit closer to actualizing the fundamental principle that no individual should be incarcerated for his poverty or treated more harshly by the courts based on his poverty.
New Article: Lauren Sudeall Lucas, Public Defense Litigation: An Overview, 51 Indiana Law Review 89 (2018), Georgia State University College of Law, Legal Studies Research Paper. Abstract below:
In Gideon v. Wainwright, the Supreme Court held that all criminal defendants facing serious criminal charges are entitled to the assistance of counsel, regardless of whether they can afford an attorney. In the years since Gideon, however, the provision of public defense to those who cannot afford counsel has fallen far short of the ideal expressed in Gideon that “every defendant stands equal before the law.” The failure of public defense systems to provide adequate representation to indigent defendants is often caused by severe underfunding and has resulted in the chronic appointment of “incompetent or inexperienced” counsel; delays in the appointment of counsel and discontinuity of attorney representation; a lack of training and oversight for counsel representing indigent defendants; excessive public defender caseloads and understaffing of public defender offices; inadequate or nonexistent expert and investigative resources for defense counsel; and a lack of meaningful attorney-client contact.
One response to these failings—as is often the case when constitutional violations are afoot—has been to challenge them in court. The focus of this short Article is on how the courts can address and have addressed the failings of underfunded and structurally flawed indigent defense systems. More specifically, it explores lawsuits that identify systemic failures—such as underfunding, excessive caseloads, and inadequate training and oversight—and seek system-wide remedies, capable of transforming the provision of defense services.
This Article is intended to provide a brief, high-level overview of public defense litigation in the United States. Part I provides an overview of the legal basis for such lawsuits and the obstacles they often encounter. Part II provides an aggregate depiction of how such litigation efforts have fared in state and federal court and highlights several examples, illustrative of some of the points made in Part I. Finally, Part III concludes by pointing to suggestions that have been made to increase the scope and effectiveness of such litigation and an alternative basis for future litigation efforts.
Patrick C. Brayer, The Power of the Public Defender Experience: Learning by Fighting for the Incarcerated and Poor, 53 Wash. U. J. L. & Pol’y 105 (2017). Abstract below:
This Essay discusses how public defender apprenticeships impact law students and help mold their future careers. Brayer discusses the tangible advantages that the apprenticeship imparts on students as well as the transferable skills that students gain. Brayer then analyzes the internal and professional growth of students that participate in this apprenticeship. Brayer situates this growth within the context of Chief Justice John Marshall’s own similar experience, arguing how the public defender experience focuses and matures aspiring lawyers.
Article: Kathryn A. Sabbeth, Housing Defense as the New Gideon, 43 Harv. J. L. & Gender (forthcoming).
New York City is poised to become the first jurisdiction in the United States to guarantee a right to counsel for poor people at risk of losing their homes. Although millions of Americans are evicted every year, until recently, scholars and policymakers largely ignored the eviction phenomenon. New research demonstrates the frequency of eviction and the breadth of its economic and social impacts on individuals, their families, and society at large. Relying on studies showing that housing defense lawyers decrease eviction rates and promote positive social outcomes, NYC legislators concluded that a right to housing defense counsel would be both morally right and cost-effective. They introduced Intro 214-A to establish such a right and, in February 2017, the NYC mayor announced that his administration will provide the funds the bill needs to move forward. This Article is the first to analyze this ground-breaking legislation.
The right to appointment of criminal defense counsel recognized in Gideon v. Wainwright grew out of the Supreme Court’s response to the Civil Rights Movement. Using NYC’s housing defense bill as a case study, this Article identifies three ways in which the civil right to counsel has the potential to build on the Gideon model and expand it for today. First, in targeting the secondary effects of the eviction phenomenon, the NYC legislature moves beyond procedure to promote substantive outcomes. Second, its focus on housing defense recognizes a set of concerns that disproportionately impact Black women, thus building on the racial equality aims underlying Gideon and adding a move toward gender equality. Third, whereas the criminal defense model defends individuals against state power, the new bill applies to tenants of public and private landlords, thus checking abuses of private power.
The Article also addresses the dynamics of defensive lawyering, a feature of both the old and the new models of appointment of counsel. Defensive lawyering suffers from systemic limitations and fails to challenge social problems that could be addressed through affirmative suits—such as discrimination, harassment, and unsafe conditions. The availability of counterclaims in civil litigation, however, makes the civil defensive position more flexible than its criminal cousin, and may overcome some of these limits. The Article concludes that the new right to counsel holds significant promise.