Human Rights at Home Blog

Human Rights Housing Advocates Cheer!

Those advocating for the civil right to counsel have enjoyed a major victory. Last week, New York City's mayor DeBlasio signed a bill ensuring that low income tenants facing eviction will have counsel appointed.  The legislation is the first in the country to mandate and fund appointed counsel for housing court eviction defendants.  Manhattan Councilman Mark Levine said "The worst landlords have used housing court as a weapon, hauling tenants into court on flimsy eviction cases because they knew in the vast majority of cases, the tenant would not have a lawyer. "

The program will be phased in over five years and tenants in certain zip codes will be the first to receive the benefit of appointed counsel.  The maximum income for qualification for appointed counsel will be $49,200.00 for a family of four.  The program is expected to help 400,000 tenants per year. 

John Pollock of the National Coalition for a Civil Right to Counsel commented: "New York City's historic step forward is a watershed moment for the national right to counsel movement, and already we've heard of cities and states lining up to be he next one to advance the critically important right to counsel in housing cases."

 

 

Housing and The Human Right to Life

When UN Rapporteur for Housing Leilani Farha speaks this week at Columbia Human Rights Institute on the Right to Life, she will be speaking in one of the cities across the country that is looking seriously at providing a lawyer to tenants who appear in housing court as part of an eviction process.  As reported earlier, New York City instituted a pilot program where tenants were appointed a lawyer for the process.  While only 20% of the tenants were assigned lawyers, the outcomes for tenants with lawyers were significantly better than those without.  Now the city is looking at the possibility of appointing counsel for all housing court involved tenants. Hearings were held in late September and speakers were overwhelmingly in favor. The movement toward appointed counsel for those who cannot afford counsel is spreading.  Last week the District of Columbia held hearings on a bill that looks to enhance the availability of counsel in civil cases that involve fundamental human rights.  The bill looks to fund pilot projects for  access to counsel, through expanding existing legal services organizations. Among the cases that would be prioritized are housing, family integrity (custody), health care and safety (domestic violence).  The bill reads "A right to counsel should attach in civil cases whenever fundamental human needs are at risk." 

In specifically addressing the need for counsel in housing cases, the bill states: "Safe, secure, and accessible housing  is essential to achieving equal access to all other fundamental needs. Without housing, individuals and families cannot preserve family integrity, gain employment or other income, or enjoy access to healthcare, proper nutrition and education."  While the bill is largely aspirational, it has ignited serious human rights discussion. 

Major cities are assessing the need, if not the right, to counsel in housing matters.  Civil Gideon implementation is edging toward reality.

For a national perspective on the Civil Gideon movement, click here.

 

Effective Prevention of Homelessness Despite No Right to Counsel

In the face of overwhelming evidence that having a lawyer when a tenant is facing eviction evens the playing field for tenants, Mayor DeBlasio is not ready to endorse a human right to counsel in these circumstances.

In January, the Mayor announced a program to supply lawyers to those being evicted.  At the time, Mayor DeBlasio said:   "Providing legal assistance through the Office of Civil Justice is not just effective and efficient, it's the right thing to do to ensure equal justice for all New Yorkers."  Several boroughs' community boards have supported the right to counsel in eviction proceedings but the Mayor is not ready to take that leap, despite the overwhelming success of his program to provide counsel.  The tenant representation rate is now 27% compared with 1% in 2013.  The Mayor acknowledged huge savings by city in not having to provide shelter to the homeless families who can avoid eviction through the help of legal counsel.

Hope is in the air, however.  One headline reported that "More New Yorkers Facing Eviction Have Lawyers, But No Right To Counsel Yet."  The "yet" is hopeful.  Whether or not the right to counsel is formally endorsed, NYC is stepping forward to provide counsel in housing court evictions.  Given widespread support for the program, the right to counsel might quietly be endorsed without fanfare.  Time will take care of the formal acknowledgement of the right. 

 

 

 

 

 

 

 

 

 

The Global Access to Justice Goal

 

Risa Kaufman, Columbia Law School Human Rights Institute, &

David Udell, National Center for Access to Justice at Cardozo Law School

 

Access to justice is now, quite literally, on the global agenda. The post-2015 Sustainable Development Goals (“SDGs”), which establish a new universal anti-poverty agenda, are scheduled for a vote before the United Nations General Assembly on September 25, 26 and 27^th and expected to go into effect on January 1, 2016. With Goal 16 specifically focused on “access to justice”, the U.S. access to justice community should take note. 

 

In the run up to the vote on the SDGs, the United Nations released in June its final report on the Millennium Development Goals. Since 2001, the MDGs have guided international initiatives to end poverty in the developing world. The final report credits the MDGs with significant beneficial impacts, including helping to halve the number of people living in extreme poverty and increasing the number of girls receiving a primary education. The report also acknowledges that the MDGs have fallen short in important respects, including by failing to address and reduce inequalities in and between countries.

 

With the post-2015 Sustainable Development Goals, the UN is seeking to build on lessons learned from the MDGs. Thus, the SDGs will intentionally incorporate human rights principles, apply universally to all countries, tackle the problem of inequality in and between countries, and cover a broader range of concerns. The current UN draft of the SDGs sets forth 17 Goals and 169 Targets. In addition to access to justice in Goal 16, the SDGs address gender inequality, climate change, education, hunger, health, water and sanitation, sustainable energy, economic growth, urban development, employment, housing, and more. The significance of the SDGs’ grounding in human rights is discussed in blog posts here and here. 

 

In setting forth its unprecedented call for access to justice, Goal 16 states that countries should “[p]romote peaceful and inclusive societies for sustainable development, provide access to justice for all, and build effective, accountable and inclusive institutions at all levels.” The goal is broadly drafted to extend to both civil and criminal justice systems, and to include good governance, legal identity, and the rule of law. Target 16.3 states that countries should “[p]romote the rule of law at the national and international levels and ensure equal access to justice for all.”

 

Just what is the basis for the UN including access to justice in global anti-poverty goals?  The international community has come to the view that access to justice is essential to ending poverty, with the UN Secretary General explaining that justice is so essential that it must be viewed as one of the six themes driving all the SDGs. Access to justice helps people stabilize their lives and communities by assisting them to retain their homes, inherit property, secure safety from domestic violence, establish legal identity and citizenship, obtain health care and qualify for government benefits.  Inclusion of access to justice in the SDGs is also consistent with their grounding in human rights.

 

The process for implementing the SDGs is still in flux. The UN’s Statistical Commission has established an Interagency Expert Group on Sustainable Development Goal Indicators to create global level “indicators” to promote gathering of data. This will allow comparisons of progress by countries in implementing the SDGs and meeting the targets. Countries will also be responsible for creating their own national-level indicators for meeting the goals and targets, based on their own unique features and contexts.

 

For all of us working to promote human rights and access to justice in the United States, whether in the NGO community, government, or philanthropy, Goal 16 would appear to offer new opportunities for increasing access to justice as a strategic response to poverty. We have developed a list of such opportunities, available in full here. 

 

For NGOs, these opportunities include educating stakeholders (including academics, advocates, reporters, government officials, and others) about barriers to accessing justice; educating funders about the need to support research and policy reform initiatives to improve access to justice; and strengthening data gathering, indicators, and indexing systems (like the Justice Index, www.justiceindex.org) that can help to increase access to justice.  Goal 16 will offer opportunities for NGOs to strengthen reporting on access to justice, including through the human rights treaty reviews and in the Universal Periodic Review. Goal 16 can be used to promote a broad vision of civil legal aid in providing access to justice for all (“100% access”), create new alliances between reformers around the world, and increase cross-global learning about effective reform initiatives. Finally, Goal 16 can help to reinforce advocates’ efforts to accomplish important criminal justice system reforms.

 

For government officials, Goal 16 can be a source of support for initiatives such as DOJ’s Office for Access to Justice and the Legal Aid Interagency Roundtable (LAIR) in identifying ways in which support for civil legal aid can help to accomplish the anti-poverty goals of federal agencies. Goal 16 also offers support for research on access to justice, including projects sponsored by the National Science Foundation and by other federal agencies and institutes. And Goal 16 underlines the importance of legislative and appropriations initiatives that would increase access to justice by providing funding for courts, court reform initiatives, and civil and criminal legal aid.

 

Last, Goal 16 offers opportunities for the philanthropic sector to adopt a framework for grantmaking that reduces poverty by increasing access to justice, including in the specific contexts of family security, health care, housing, legal identity, racial justice, LGBT rights, and many other areas of importance and concern to foundations.

 

Even before the SDGs are formally adopted, Goal 16 is spurring conversations and activities that are promoting access to justice in countries around the world. The promise it holds for increasing access to justice in the United States ought to inspire dialogue and action here, as well. 

 

Editors' Note:  This entry is cross-posted with the blog of the National Center for Access to Justice, http://ncforaj.org/.

 

A Basic Human Right: Meaningful Access to Legal Representation

Deborah M. Weissman, Reef C. Ivey II Distinguished Professor of Law

University of North Carolina School of Law

 

The UNC School of Law Human Rights Policy Seminar recently released its study on meaningful access to legal representation in the United States.  The report, A Basic Human Right: Meaningful Access to Legal Representation is intended to aid advocates who seek to utilize international and regional human rights bodies, specifically the Inter-American Commission on Human Rights, for assistance in improving the judicial system in the United States and in pressuring the U.S. government to provide a universal right to meaningful access to legal representation.  Many legal scholars and a growing number of democracies agree that a fair and impartial judicial system requires a right to counsel.  Indeed, for many individuals, having access to legal representation can make the difference between maintaining and losing ownership of one’s home, having enough food to eat, keeping one’s family together, or obtaining protection from threats to bodily harm or even death.  Those who have no means to protect and enforce their fundamental rights will have diminished trust in their government and little faith in the Rule of Law.  These propositions are hardly new and their fundamental truths have been well-established.

The report demonstrates that international and regional human rights bodies have encouraged the United States to provide meaningful access to legal representation as a basic right. Relatedly, it makes the case that the various affirmative rights that the United States is obligated to protect pursuant to both domestic and international human rights norms cannot be realized without meaningful access to legal representation

Section One of the report establishes the basis in international and regional human rights norms for a universal right to meaningful access to legal representation. The section also provides a brief overview of the considerable inadequacy of the protection of these rights in U.S. jurisprudence.  Section Two examines the failure to provide a right to legal representation in civil proceedings and describes the disturbing array of fundamental rights that are left unprotected for those individuals who are unable to obtain counsel on their own in civil proceedings. Without a right that allows these individuals to access counsel, their fundamental interests in housing, employment, family, sustenance, and more are left unprotected and vulnerable to erosion.  Section Three surveys the consequences of depriving immigrants in removal proceedings of the right to counsel. The section describes the effects of the deprivation of liberty that immigrants suffer on their ability to represent themselves and the fundamental unfairness of the immigration court system. These circumstances reveal the desperate need for counsel to advocate for respondents’ rights throughout the process, particularly because legal representation has been shown to have a on the outcome dramatic effect for immigrants.  Finally, Section Four focuses on the criminal defense system in the United States, which is the one area where a right to counsel is recognized. However, quality legal representation is a rare experience for indigent criminal defendants. Due to chronic underfunding and inadequate assurances of the quality of counsel, even this area of U.S. jurisprudence fails to meet obligations under international and regional human rights norms. Criminal defendants without access to effective legal counsel do not receive the protection of their fundamental right to liberty that the United States has promised to provide.

 The report serves as a compendium of international and regional human rights standards related fundamental protections and the obligation of the United States to assure meaningful access to legal representation in order to realize those protections.  It concludes with the suggestion that advocates consider the invoking the guidance and authority of the Inter-American Commission on Human Rights which is well-positioned to consider the human rights obligations of the U.S. government to provide meaningful access to legal representation to all.

Judges, Lawyers and Bank Fraud

Recently, the New York Times reported on "Two Judges Who Get It About Banks".  Decisions by the two judges addressed unscrupulous and illegal bank practices, in these cases by Wells Fargo, that led to wrongful foreclosure.  The cases are demonstrative of the deceit and fraud that caused much of the mortgage foreclosure crisis. 

The first case involved a wrongful foreclosure against Mr. and Mrs. Holms.  They were told that a payment of  $10,000.00 would stop the foreclosure and if they faxed a copy of the check to Wells Fargo that the foreclosure scheduled for the next day would be cancelled.  The couple managed to raise the funds, faxed the check copy and Wells Fargo proceeded anyway.  The couple learned as soon as a lawyer was retained that they had a viable defense to the original foreclosure.  

“Defendant Wells Fargo’s deceptive and intentional conduct displayed a complete and total disregard for the rights of David and Crystal Holm,” wrote Judge R. Brent Elliott, a circuit judge in Missouri’s 43rd Judicial District, in his Jan. 26 opinion. “Wells Fargo took its money and moved on, with complete disregard to the human damage left in its wake.”  The court awarded the Holms $200,000.00 in actual damages, attorney's fees and nearly $3,000,000.00 in punitive damages.

In the second case, New York Bankruptcy Judge Drain, heard a separate case involving Wells Fargo.  In that case it became clear that Wells Fargo had manufactured evidence purporting to make the bank the legitimate owner of the debt at issue. The testimony, Judge Drain noted, shows “a general willingness and practice on Wells Fargo’s part to create documentary evidence, after the fact, when enforcing its claims, WHICH IS EXTRAORDINARY.” (Original emphasis)

The White Plains lawyer who represented the debtors, Linda Terelli, commented:  “I very respectfully disagree that this is extraordinary...This is business as usual, not just at Wells Fargo.”

So the question arises why are these cases newsworthy?  The judges are to be applauded for their findings.  Some might call this courageous judging.  Their findings certainly were unusual and welcomed. But these judges were simply doing their jobs well.   Without regard to clearing dockets and other administrative considerations, these judges listened and weighed the evidence, made findings and took offense at the bank's disregard for the law and process.  

There have, however, been thousands of similar foreclosure cases across the nation.  Why now are we hearing of cases addressing bank fraud and assessing penalties against those institutions who engaged in fraud?  Why haven't judges made these findings before?  Is it poor lawyering? The inability of debtors to hire counsel?  Are the attorneys retained by debtors quickly overwhelmed by the aggressive tactics of the bank attorneys?    We may not have the answers to those questions although it seems implausible that so many years after the foreclosure crisis started debtors are only now presenting evidence of fraud and forgery.   The sad stories of those who lost their homes, of broken families and dreams, reinforce the need for Civil Gideon statutes.  Appointment of competent counsel in civil cases that so fundamentally alter people's lives must be viewed as a right and not as a privilege that the state cannot afford. 

 

 

 

 

Positive Developments on the Civil Right to Counsel

As reported in Newsweek and the New York Times earlier this month, years of advocacy efforts to establish a civil right to counsel, particularly in the area of housing evictions, may finally be paying off in New York City.  New York's housing court is a notorious site of questionable justice, where a significant power embalance between landlords (typically represented by counsel) and tenants (typically unrepresented) plays out every weekday.  Pilot programs studying the effect of civil counsel  in Massachusetts and California, among others, have established that such assistance promotes fairer outcomes and more efficient case management.  New York City now appears poised to move beyond pilots, to establish a civil right to counsel in housing eviction cases for individuals who cannot afford representation.  While this would be a first for the U.S., it is by no means untested, since appointment of counsel in such situations is the longstanding norm for the 47 nations that make up the Council of Europe. 

With a majority of the City Counsel behind the new proposal, its fate rests with the DeBlasio Administration, which -- according to press reports -- has yet to articulate a position. 

Meanwhile, regardless of the outcome, kudos to the National Coalition for the Civil Right to Counsel for taking this issue from "pie in the sky" just a few years ago to a serious possibility -- and hopefully in 2015, a reality.

Expanding the US Right to Counsel

Co-Editor Lauren Bartlett discusses the growing US movement to expand the right to counsel beyond felony cases and limited civil areas.  The movement, often referred to as Civil Gideon demands expansion of the legal counsel in compliance with the International Covenent on Civil and Political Rights.  In part the Covenant demands that "all persons shall be equal before the courts and tribunals."  (Art. 14) The right to civil counsel is a growing movement of advocacy and literature that recognizes the need for counsel in order to meaningfully secure basic human needs.

Expanding  the  Right to  Counsel  in  the  U.S.

By Lauren E. Bartlett

Last year, institutions across the U.S. celebrated the fiftieth anniversary of Gideon v. Wainwright, 372 U.S. 335 (1963) with events, reports, and more. After the excitement over the anniversary of this groundbreaking right to counsel decision died down, what became clear, as it has after past anniversaries, is that there remains a right to counsel crisis in the U.S.  The right to counsel is not being fulfilled for many low-income people, not only in the criminal justice system, but also in civil cases and immigration proceedings in the U.S.   Today, public defenders offices across the U.S. cannot keep up with demand and individuals are not getting the defense they need, which exacerbates our mass incarceration problem.  Although the right to counsel for juveniles charged with serious crimes was established soon after Gideon, many youth are not able to exercise the right or are pressured to waive the right.  At other times counsel is appointed so late in the process that the right becomes meaningless.

 Tens of thousands of immigrant children may face deportation proceedings in the coming year, there is no right to counsel for immigrants in detention (but see Franco-Gonzales v. Holder).  Moreover, there has been a growing movement towards a civil right to counsel, or Civil Gideon, with growing evidence that providing counsel to low-income families in civil cases, such as housing and child custody cases, provides extraordinarily better outcomes for the low-income individuals involved and saves courts a good deal of time, frustration, and money. Many possible solutions to this crisis have been proposed, and a couple of local jurisdictions have taken it upon themselves to try out new ideas. Yet, individually and structurally, barriers to the right to counsel crisis persist.

In an effort to charge the conversation and use international pressure to push the movement forward, U.S. advocates have begun using the human rights framework to advocate for the expansion of the right to counsel in both the misdemeanor criminal and civil contexts. Human rights law provides for more expansive protections for access to justice.  For example, human rights law has been cited as requiring the right to counsel to apply for certain cases for civil litigants, individuals detained at police stations, and immigrants in detention. Although much of human rights law is not directly enforceable in U.S. courts, advocates can make policy and comparative law arguments using human rights that can be quite persuasive to some judges and policymakers.

As Risa Kaufman mentioned in her post earlier this week, this is the year of U.S. human rights reviews at the U.N. and access to justice is key to the discussion.  Here at home, U.S. advocates have the chance to directly engage with the U.S. government on how access to justice can help promote the implementation of United States human rights obligations and commitments.  On April 1, 2014, the Local Human Rights Lawyering Project at the Center for Human Right and Humanitarian Law at American University Washington College of Law will host a Civil Society Consultation with the U.S. Government on Access to Justice. This is the first-ever consultation with the U.S. government focusing on access to justice in the human rights context.  The consultation will allow U.S. advocates, as well as persons directly affected, to directly address U.S. government officials both regarding the upcoming Universal Periodic Review and the review by the Committee on the Elimination of All Forms of Racial Discrimination. By the time the sixtieth anniversary of Gideon rolls around, we hope to move leaps and bounds closer to fulfilling our human right of access to justice for all.  This consultation provides a unique platform to launch us towards that goal.  Please join us in D.C., or at least tune into the live webcast of the consultation.  All are welcome.