The Washington PostDemocracy Dies in Darkness

Opinion The eviction moratorium limbo laid bare the system’s extreme dysfunction

Aashna Avachat, left, and Arusha Avachat, sit on the steps of the Capitol in Washington during a protest of the expiration of the federal eviction moratorium on Aug. 1. (Sarah Silbiger/For The Washington Post)
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Emily A. Benfer is a visiting professor of law at Wake Forest University and a visiting research collaborator at the Eviction Lab at Princeton University; Antonia K. Fasanelli is the executive director of the National Homelessness Law Center; Rasheedah Phillips is the managing attorney of housing policy at Community Legal Services of Philadelphia; and Kathryn A. Sabbeth is an associate professor of law at the University of North Carolina at Chapel Hill.

Last week’s do-or-die crisis over the federal eviction moratorium reminded us that the housing insecurity faced by millions of Americans is far from over. Though President Biden’s vital decision to issue the moratorium may or may not survive court scrutiny, the fact remains: Our eviction system is broken and requires urgent and fundamental redesign.

In the two days between the expiration of one federal moratorium and the announcement of another, the United States caught a horrifying glimpse of what happens when the eviction system is resurrected. Sheriffs tripled law enforcement teams and express-vaccinated staff to execute a long-awaited onslaught of eviction orders. Judges raced through their calendars and ordered distressed families out of their homes — all before the roughly $46 billion in emergency rental assistance appropriated by Congress reached landlords.

Despite the emergence of the covid-19 delta variant, the response was remarkably different from March 2020, when the pandemic prompted policymakers to prioritize safe shelter and judges to halt evictions.

Courts in a democracy are charged with providing equal access to justice and making decisions based on law and fact. But this is not what happens in today’s eviction courts, which are beset by structural dysfunction.

Tenants don’t always have a right to their day in court. In dozens of states, tenants can’t get a hearing or an appeal unless they pay a rent bond. For example, in Florida, if the tenant is just a day late or a penny short in paying their bond to the court, they automatically lose their home. For tenants already paying most of their income toward rent, the right to be heard is simply unavailable.

If an eviction case does go to a hearing, that “trial” typically lasts two minutes or less. Landlords win the vast majority of eviction cases. In contrast, tenants are rarely given an opportunity to present defenses. In one study, even when tenants had defenses, they were evicted 100 percent of the time.

While in a few states the eviction process can be drawn out for weeks or more — a challenge for some landlords operating at the margins — in most jurisdictions, the deck is stacked against tenants.

Many tenants hear about their cases only three days in advance, if at all, and lose automatically if they fail to appear. An investigative report published by DCist recently found that thousands of tenants in the District of Columbia had been evicted without notice after process servers lied about fulfilling their duties. In Philadelphia, tenants are regularly locked out without notice.

Case outcomes change drastically when tenants have access to a lawyer. In every study of cities with a right to counsel in eviction, the overwhelming majority of tenants represented by a lawyer — including 86 percent in New York City and 93 percent in Cleveland — remained in their homes. Yet, nationwide, tenants cannot obtain counsel in 97 percent of cases, while landlords are represented 80 to 90 percent of the time.

The consequences of these judgments are grave for tenants. In Arkansas, missing rent is a criminal offense that can result in jail time. Even in civil cases, the eviction record itself creates a mark of undesirability — a “Scarlet E” that haunts families for years (even if they win their cases). In some states, such as New York — where the warrant law requires naming all household members to be removed as defendants — that mark can attach even to children.

For pregnant women, eviction can lead to preterm pregnancies and low birth weights. And after eviction, the resulting homelessness, moving from couch to couch, sleeping in public, living in cars and existing in a constant state of peril is traumatic for adults and children, leads to poor health and undermines access to jobs, education, even voting.

That’s on top of the increased risk of covid-19 infection and death associated with eviction. All these harms are borne disproportionately by people of color, women and children.

There are several ways to stop the immediate crisis. Congress can ratify the federal moratorium, and states can require landlords to apply for rent relief before filing to evict. States can also reform eviction laws to prevent and penalize notice violations, and ensure everyone has the ability to be heard.

In addition, states can seal tenants’ records and guarantee a right to counsel for tenants at risk. To support the substantive goal of housing stability, the federal government can fund a permanent nationwide rent-relief program, and states can require landlords to give a reason (known as “just cause” eviction) when seeking to expel a tenant.

Longer term, we recommend that the federal government create a task force on the human right to housing that will include the voices of people most affected by this crisis.

Instead of restarting a broken system, the United States can strengthen our communities by prioritizing housing stability. Access to safe, decent and equitable housing for all is essential to surviving the pandemic — and thriving as a nation.