Neighborhood Defender Service Attorney Amy Kwak testified before City Council today on the need to expand the Right to Counsel to all income-eligible New Yorkers. The Right to Counsel guarantees New Yorkers legal representation when facing eviction.
Read Amy’s testimony below.
Evictions are always an act of violence; during a pandemic they can be deadly. Expand the Right to Counsel
I am Amy Kwak, Staff Attorney in the Civil Defense Practice at Neighborhood Defender Service of Harlem (NDS). NDS is a community-based public defender office that provides high-quality legal services to residents of Northern Manhattan. Since 1990, NDS has been working to improve the quality and depth of criminal and civil defense representation for those unable to afford an attorney through holistic, cross-practice representation. With the early implementation of Right to Counsel in key Northern Manhattan zip codes, NDS joined the Right to Counsel Coalition and began serving the community through the Right to Counsel Program. As a holistic public defender office, NDS is particularly familiar with the collateral consequences of homelessness, including an increased chance of entering the criminal legal system.
Thanks to the efforts of tenants, organizers, and community leaders, New York City has been at the national forefront of guaranteeing tenants legal representation in housing court. Since its enactment in 2017, the Right to Counsel Law has been an undeniable success, fundamentally changing the housing court landscape and stemming the tide of the housing crisis drowning our city.
The difference between having an attorney and having to face housing court alone can be stark, in both a tenant’s experience of housing court, as well as the ultimate outcome. The structural imbalance of housing court —the halls of which too often and for far too long have been dominated by the hostile voices of eviction attorneys berating Black and Brown families for their poverty— is finally being balanced with the infusion of eviction defense attorneys advocating for tenants’ dignity, justice, and safety.
And the empirical evidence is clear: tenants represented by an attorney are significantly more likely to be able to remain in their homes. Keeping tenants in their homes protects families, preserves communities, and prevents the destabilization that too often precipitates criminal legal involvement. Put plainly, it’s good for the entire city. As a holistic public defender, NDS knows that the Right to Counsel when fighting an eviction case is a bulwark against the worst injustices of our legal system. An eviction is often the first domino to fall, with cascading impacts ranging from prosecution and incarceration, to having a family torn apart by ACS, to deportation.
The stakes are even higher in the midst of a once-in-a-lifetime global pandemic that has disproportionately ravaged Black and Brown communities. A family’s right to remain safely housed and out of crowded shelters is, literally, a matter of life or death.
Yet, under the current law, our office is often retained by tenants on the brink of eviction, who were originally ineligible for Right to Counsel and were forced to face landlords’ attorneys alone, solely because of where they live. Too often, by the time we have taken a case, the tenant has unknowingly signed a settlement agreement an attorney would never have advised them to, or waived important rights and defenses in court.
The unreasonable expectation placed on tenants, who just happen to live in the wrong zip code, to properly navigate the opaque rituals of housing court, craft a defense, and conduct a trial has never been more apparent than it is now, when they face the labyrinth of State and Federal COVID-19 eviction protections. Since last March, we have seen Federal legislation, two rounds of State legislation, Federal CDC (Centers for Disease Control) orders, and countless Gubernatorial Executive Orders and Administrative Orders from the Court, each with their own protections, caveats, loopholes, and requirements of tenants, further obfuscated by competing, confusing, or oversimplified messaging from the Governor’s office.
For example, NDS recently represented one of three roommates. Before the pandemic, the household was not RTC-eligible based on their zip code, and none of them could afford to hire an attorney. Last month, when the landlord sought to execute the warrant of eviction, two of the roommates were able to retain RTC attorneys, but the third was left to fend for himself. The two represented tenants had each of their attorneys put forth detailed, comprehensive arguments as to why they should not be evicted under the myriad of COVID-19 protections. However, when the third unrepresented tenant was asked by the Judge, “what do you have to say as to why you should not be evicted,” he could only respond, “I don’t know what to say.” What could he be expected to say? What would you say if you were asked the same question? Expecting unrepresented tenants to be able to vindicate their rights in court only leads to extreme miscarriages of justice.
In a time where a trip to the bodega requires precautions to avoid deadly consequences, tenants in this city should not also be required to be familiar with Judge Marks’ most recent administrative order.
Given the public health and economic crises of COVID-19 and the complex protections enacted in response, the original plan to phase in the Right to Counsel based on zip codes no longer makes sense. For the various COVID-19 related State and Federal protections to be effective, all income-eligible tenants must be afforded the right to counsel to help them identify and raise such defenses, regardless of zip code.
The need is urgent. Even with the State legislature’s temporary pause on most eviction proceedings, cases where the landlord claims the tenant is a nuisance are still moving ever forward towards eviction. Furthermore, after February 26, 2021, many of the more than 200,000 proceedings currently stayed by the law will also be allowed to move forward, putting hundreds of thousands of New Yorkers vulnerable to eviction once again. Especially with vaccines not expected to be available for all New Yorkers for many more months, it is essential for public health and basic justice that tenants have access to all the tools to exercise their right to stay safely housed.
Thus, the Right to Counsel must be expanded to include all income-eligible New Yorkers, and that change must be implemented immediately. The Right to Counsel, to be meaningful, must be implemented as to allow the full representation of tenants’ interests, not just the rubber stamping of settlements for the sake of processing cases and lining landlords’ coffers. This means tenants must be afforded the time and opportunity to develop trust in their attorneys. Tenants must know that their attorneys have the capacity and drive to advise them of all their options, instead of funneling them towards what is expedient for the attorney’s caseload. Tenants must be given the chance to tell their full story.
Evictions are always an act of violence; during a pandemic they can be deadly.
Our city had a housing crisis even before last March, but since the start of the COVID-19 pandemic, nearly 1.5 million New Yorkers have been unable to pay rent. The wave of evictions is coming, and New York must step up to meet this historic moment by expanding the Right to Counsel.
Sam McCann, Communications Specialist, NDS
Phone: (212) 316-7399