As states attempt to tackle growing housing instability, advocates encouraged by the Biden Administration have been pushing for right to counsel programs funded by the American Rescue Plan Act (ARPA) in cities and states nationwide. Now, cities and states are grappling with the aftermath of these programs originally funded by ARPA. Detroit, Mich. is no exception to this as the right to counsel ordinance passed unanimously in May 2022 despite little thought in the way of funding methods in lieu of ARPA.
With a price tag of $18 million per year, and only $6 million of ARPA funds so far approved by the City Council, the program had an immediate $12 million shortfall that cannot come from the city’s general fund in the first year alone. Fast forward one year and fears of sustainable funding sources have already come true.
To supplement, Detroit turned to the state for state-level tax funding with HB 4437 - a one-year appropriation of $2.5 million - which was signed into law on August 22, 2023. While this funding only lasts one year, and doesn't cover the gap, it moves the support of a right to counsel program to the state which could open the door to a state-wide right to counsel mandate in future years.
Currently, 18 municipalities and now five states -Connecticut, Delaware, Maryland, Minnesota, and Washington – have some form of mandated right to counsel in eviction cases. It is common for qualification for the program to be determined by an income threshold or – in the case of Minnesota – as recipient of public housing, or facing a breach of lease.
Delaware’s new law, which goes into effect November 22, 2023, allows for an even more targeted approach with conditions for appointment that extend beyond income or housing type. Counsel is not appointed if:
- The property owner has ownership stake in three or fewer properties,
- The owner does not have legal representation or
- Attorney review determines the resident does not have a case.
Funds for right to counsel would be better spent to help renters avoid eviction at the outset, namely through rental assistance. A 2020 analysis of the Sargent Shriver Civil Counsel Act reported “tenants frequently needed more resources than legal help, such as short-term rental assistance and help finding new housing.”
As policymakers are considering ways to prevent renter displacement, they should look at increasing housing subsidies and investing in program administration of the Section 8 Housing Choice Voucher Program and incentivize greater investment in housing supply.
For more information about eviction policy, contact Joe Riter, Senior Manager, Public Policy.