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Prisons Without Walls: Eviction Rights and Counsel

Natalie Rozmus

Edited by Colin Crawford and Vedanth Ramabhadran.

Outlined as inalienable in the Declaration of Independence are the human rights of life, liberty, and the pursuit of happiness. When Jefferson penned these words, he deviated from John Locke’s trinity of natural rights: life, liberty, and property. Jefferson’s change was largely important because it addressed natural human rights more broadly by deeming that anything preventing the pursuit of happiness was denying those rights. Contention arises among lawmakers, however, when the terms of that broad phrase and what exactly it encompasses come into question. Does an individual need to fulfill physiological needs for personal liberty? Derivatively, does this broad phrase encompass the right to “a home” as an extension of the right to liberty? Does society deprive an individual of their basic human rights when it forces them to confront unfair housing practices or eviction proceedings largely alone and unassisted? To address such concerns and safeguard basic human rights, the United States should establish a right to counsel in civil matters, specifically regarding eviction proceedings.

            A 1963 Supreme Court case, Gideon v. Wainwright, held that a fair trial was impossible without counsel. The defendant, Clarence Earle Gideon, was tried and convicted of a non-capital felony in the state of Florida.  The State forced Gideon to act as his own counsel, denying him an appointed attorney under a statute providing that “the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense” [1]. After conviction, Gideon appealed to the United States Supreme Court and found relief. Citing the Fourteenth Amendment, the Court ruled unanimously that if a criminal defendant cannot provide themselves with an attorney, it is their right to have the state appoint an attorney to represent them. Justice Black delivered the opinion for the Court, quoting the Sixth Amendment’s provision that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense” [1]. He conceded that the Sixth Amendment neglected to establish a “rule of conduct for the States” but noted that the Amendment’s provision  “expresses a rule . . . fundamental and essential to a fair trial” [1]. Regardless, the Fourteenth Amendment obliges states to preserve and uphold the right to representation. Without this adherence, the states would violate the defendant's right to due process. The unanimous decision regarded only criminal cases; however, the United States Supreme Court nonetheless concluded through Gideon v. Wainwright that, without legal counsel, a criminal defendant is denied due process, and, therefore cannot receive a fair trial. Since prison sentences are possible upon conviction in a criminal proceeding, denial of a fair trial would be a denial of the individual’s right to liberty.  

Historically, courts have been reluctant to extend this right to representation where defendants did not face possible imprisonment. For example, Gail Lassiter experienced this narrow view of liberty in a social services case involving her parental rights. The U.S. Supreme Court found that “parental rights were not akin to liberty interests” [2]. Thus, Lassiter’s custody of her youngest son was terminated because a series of challenging circumstances prevented her from attending the court hearing, and a lack of resources prevented her from hiring counsel. A “divided court ruled that defendants had a right to counsel only when they risked losing their physical liberty” [3]. Sociologist Matthew Desmond writes in his book, Evicted, that “incarceration is a misery”, but “the outcomes of civil cases can also be devastating”  of which Lassiter is a prime example [3]. Although she did not face a prison sentence in this civil case, it is ignorant to pretend that the severity of the outcome was not devastating to her person. 

Moreover, the psychological impact of being without a home is, in fact, similar to the psychological impact and disenfranchisement of personhood that someone experiences due to imprisonment. In a chapter on “Psychological disturbance in prison” in Psychology in Prisons, author David Cook describes the psychological impacts of imprisonment as “devastating” and “damaging to prisoners” [4]. These psychological effects are largely due to the loss that prisoners experience while incarcerated. Specifically, Cook describes the “loss of control” and “loss of family” that incarcerated individuals experience resulting in “agitation, feelings of hopelessness and humiliation” [4]. Thus, the deprivation of agency from imprisonment psychologically harms and humiliates incarcerated individuals. Humbilina Robles-Ortega wrote “Post-Traumatic Stress Disorder Symptomatology in People Affected by Home Eviction in Spain” for The Spanish Journal of Psychology studying the extent of the psychological effects of eviction. The focus on the mental health effects of eviction and home foreclosure in this article resulted in similarities between the psychological impact of incarceration. Indeed, the losses an evicted individual experiences are similar to the losses Cook describes. Robles-Ortega found “PTSD symptomatology” and “alarming impacts on mental health [in] people affected by eviction [5]. Additionally, as a result of being without a home, evicted individuals experience “social isolation” like those incarcerated [5]. Thus, the psychological impact of incarceration is similar to the psychological damage endured by evicted individuals. 

Therefore, defendants in eviction cases are impacted by the disregard of how stable housing contributes to a person’s liberty and ability to pursue happiness. Frequently, those being evicted cannot attend their court hearings because they cannot afford to miss work or must take care of their children [6]. Eviction causes individuals to be trapped in a cycle of poverty and has been “linked to job loss, depression, and prolonged homelessness” [7].   

A few cities have established, at the municipal level, the right to counsel for those facing eviction, recognizing the severity of the consequences those families face [7]. Some states have begun to enact legislation providing for affordable housing. For example, Virginia has invested “in affordable housing in direct response to recently published data showing eviction to be widespread” [7]. Other states, however, are pursuing legislation aimed at limiting the ability of local communities to foster housing rights. For example, in Texas, a bill currently pending before a House committee would prevent individual cities across the state from passing legislation to protect individuals from eviction. This bill, HB 2035, bars any municipality from “adopt[ing] or enforc[ing] an ordinance, order, or other measure that prohibits, restricts, or delays delivery of a notice to vacate; or filing of a suit to recover possession of the premises under this chapter; or otherwise relates to an eviction suit under this chapter” [8]. 

Overall, the cycle of inequality perpetuated throughout the civil justice system in eviction proceedings should be examined and the rights of those in these cases viewed more similarly to those of criminal defendants. The justice system should consider the importance of housing, in particular, as a safeguard of individual rights and liberties. Neglecting to prioritize fair trial for individuals facing eviction denies them their natural rights. To pursue a more equitable justice system, the United States should expand Gideon v. Wainwright to civil courts by establishing a right to counsel for indigent individuals in these cases.


[1] Gideon v. Wainwright, 372 U.S. 335 (1963).

[2] Brooke D. Coleman, Lassiter v. Department of Social Services: Why Is It Such a Lousy Case?, 12 Nev. L.J. 591 (2012).

[3] Matthew Desmond, Evicted: Property and Profit in the American City (First Edition ed. 2016).

[4] Pamela Baldwin, David Cooke, Jacqueline Howison, Psychology in Prisons (1 ed. 1993)

[5] Humbeline Robles-Ortega, et al. Post Traumatic Stress Symptomatology in People Affected by Home Eviction in Spain, Volume 20, Spanish Journal of Psychology (2017).

[6] Ginny Monk, Part I: Evictions are surging, and children often pay the price, USC Center for Health Journalism (Dec. 11, 2022),

[7] Adam Porton, et al., Inaccuracies in Eviction Records: Implications for Renters and Researchers, Princeton University (Mar. 24, 2020). 

[8] H.B. 2035, 88th TX Leg. § 1 (2023).

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