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  • Public Interest Law Section Blog
    October 21, 2021

    'A Screaming Need:' Why Eviction Defendants Need Representation

    Through Legal Aid Society’s EvictionFreeMKE, residents in Milwaukee County at or below 200% of the federal poverty level now qualify for free representation in an eviction case. Joe Riepenhoff discusses why this is a good start to stemming an overwhelming need.

    Joseph S. Riepenhoff

    eviction

    On Sept. 1, 2021, Legal Aid Society of Milwaukee launched EvictionFreeMKE, a pilot program aimed at providing legal representation for individuals in Milwaukee County facing eviction.

    The program is funded through commitments from the United Way and Rescue Plan Act funds from Milwaukee County and the City of Milwaukee. Anyone in Milwaukee County at or below 200% of the federal poverty level who has an eviction case brought against them now qualifies for a free attorney.

    Data Points Regarding Representation

    Some numbers on how housing courts operate provide a context for considering the subject of representation.

    According to an analysis by Branden DuPont, Milwaukee County CCAP data from 2016 showed 112 defendants out of 13,457 total cases had an attorney of record listed, which is less than 1% of cases involved in the court that year.

    Joe Riepenhoff Joe Riepenhoff, Marquette 2014, is a staff attorney with Legal Aid Society of Milwaukee , where he focuses on neighborhood lawyering in 53206.

    As reported recently in Urban Milwaukee, a recent report from the Milwaukee Department of Health and Human Services references that, pre-pandemic, only 3% of the 14,000 tenants fighting evictions in Milwaukee were represented.

    An informal review of Milwaukee housing cases in CCAP from 2019 found that less than 2.5% of money judgments ordered on defendants were ever paid.1

    A national study by the Eviction Lab from December 2020 shows that eviction cases across the country are disproportionately brought against people of color, and in particular against women.

    Representation Has Benefits

    There are obvious benefits to increasing defendant representation. Matthew Desmond in his 2012 article “Eviction and the Reproduction of Urban Poverty,” writes that:

    Researchers have shown that tenants with counsel are more likely to appear in court and are significantly less likely to be evicted than their unrepresented counterparts, irrespective of the merits of their case.2

    There are also benefits to plaintiffs. An individual who has worked for years with judges, the Office of Civil Justice, Legal Aid providers, and landlords in New York anecdotally shared with me that landlord attorneys there have consistently indicated that they would always prefer to work with a tenant that is represented, over one that is not. This response in New York, where a right to counsel in housing matters has been present in some form since 2017, was attributed in part to lawyers aiding in negotiations and more prompt access to emergency rental assistance.

    From the perspective of return on investment, a report on a proposed right to counsel in housing from 2018 estimated that Philadelphia could avoid annual costs of at least $45.2 million by investing $2.5 million to provide representation to tenants, taking into consideration the constellation of harms that flow from eviction. According to the report, these costs include:

    • the education costs, juvenile justice costs, and welfare costs associated with homeless children;

    • the negative impact of eviction on tenants’ credit score, ability to re-rent, and the potential loss of a subsidized housing voucher;

    • the cost of providing public benefits when jobs are lost due to eviction;

    • the costs associated with homelessness, such as additional law enforcement and incarceration costs;

    • the cost of family and community instability;

    • preservation of financial and personal assets;

    • preservation of affordable housing stock;

    • enforcement of rent laws and regulations; and

    • a reduction, over time, of the number of eviction cases filed resulting in improved use of city and court resources.

    Resources for Tenants Facing Eviction

    Though the federal moratorium on evictions is no longer in place, there are still resources available to help tenants facing housing uncertainty. The single best tool available right now is emergency rental assistance, available to those who have experienced financial hardship due to COVID-19 (unemployment, reduction in hours, unexpected costs, etc.). Information on where Wisconsinites may apply for rent assistance can be found on the Wiscap.org website.

    If a case has already been brought against a person in Milwaukee County, they can apply for an attorney through EvictionFreeMKE’s website.

    A Good Start

    A cautionary tale is also warranted. After Gideon v. Wainwright3 – the U.S. Supreme Court case that established a right to counsel in criminal cases – the problems of unconstitutional restraint on liberty was not solved. To the contrary, the 1980s, 90s, and now 2000s in the U.S. have seen the most horrendous mass incarceration rates in the history of humanity.4

    We cannot say that having attorneys on the side of the defense cured our society’s punitive use of the criminal justice system, and in some ways it may have even legitimatized it.

    Similarly, we should be conscious that right to counsel when it comes to evictions will not solve housing instability and the perpetuation of poverty in America. It is a good start on addressing a screaming need. It is a step in the right direction.

    This article was originally published on the State Bar of Wisconsin’s Public Interest Law Section Blog. Visit the State Bar sections or the Public Interest Law Section web pages to learn more about the benefits of section membership.

    Endnotes

    1See Apartment Association of Southeastern Wisconsin press release, reproduced in this Pettit+Pettit blog article.

    2See Matthew Desmond, “Eviction and the Reproduction of Urban Poverty,” American Journal of Sociology, vol. 118, no. 1 (July 2012), pg. 123. Desmond cites two older studies: Carroll Seron, Martin Frankel, Gregg Van Ryzin and Jean Kovath, “The Impact of Legal Counsel on Outcomes for Poor Tenants in New York City’s Housing Court: Results of a Randomized Experiment,” Law & Society Review, vol. 35, no. 2 (2001); and Karl Monsma and Richard Lempert, “The Value of Counsel: 20 Years of Representation before a Public Housing Eviction Board,” Law & Society Review, vol. 35, no. 2 (1992).

    3Gideon v. Wainwright, 372 U.S. 335 (1963).

    4See German Lopez, Mass incarceration in America, explained in 22 maps and charts, Vox.com, Oct. 11, 2016; and Criminal Justice Facts from SentencingProject.org.





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    Public Interest Law Section Blog is published by the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Richard Lavigne and review Author Submission Guidelines. Learn more about the Public Interest Law Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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