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As millions face eviction, the digital divide should not become a justice divide
Federal and state governments have been holding back a tsunami of evictions facing 14 million households and 40 million people. If courts and governments do not take immediate steps, people who are struggling financially will be unable to participate meaningfully in eviction hearings - where payment plans get worked out to keep tenants in their homes and landlords receiving income.
After COVID-19 hit, the Centers for Disease Control and Prevention (CDC) and most state governors barred landlords from evicting tenants. They rightly feared mass eviction would spread the virus as displaced people couch-surfed and families crammed together, overwhelming strained healthcare facilities.
CDC's eviction moratorium, extended several times, ends on June 30, as many state-level eviction bans also expire. Some courts are already hearing eviction cases even though tenants cannot yet be ejected from their homes.
Evicted tenants will struggle to find new housing. Landlords cannot perpetually float tenants; landlords have their own bills to pay. Because of the scale of displacement, landlords will not readily replace that income.
The American Rescue Plan signed into law last month by President Biden includes $21 billion in emergency rental assistance on top of the $25 billion Congress already approved in December. But these funds do not go directly to tenants or landlords. State and local governments must receive and review individual applications for assistance and distribute funds. Those processes are slow. Many tenants will not have money in hand fast enough to head of eviction.
It is in everyone's interest to work out payment plans to keep renters in their homes.
We are conducting a study of access to justice during COVID-19, using in-depth focus groups in multiple states to shape an ongoing national survey. The lessons are sobering.
Pre-COVID, tenants who appear for eviction hearings strike deals with landlords in the hallway. One South Carolina legal-aid lawyer told us that at in-person hearings, "we are always able to negotiate with the landlord and come up with a plan." Without the opportunity to talk away from the judge, "we don't have their side of the story or understand what they need."
At physical courthouses, parties feel urgency to resolve their disputes. Judges, concerned about clearing dockets, often urge parties to step outside and settle.
In COVID times, many courts remain closed to in-person proceedings. Hearings continue online. They are streamlined, quick and, for some, convenient. Participants with busy lives can attend on their lunch break at work or at home while caring for their kids.
But without greater attention to equal access, remote justice is likely to leave tenants and landlords alike worse off.
Online, the cases steadily churn. Participants appear on screen as the judge starts the hearing, and disappear when the hearing is over. There is no hallway, no opportunity to physically break and negotiate. Unless both parties are present, negotiated resolutions are elusive.
Seasoned lawyers paint a "wild west" of virtual court proceedings, with fluctuating rules they find confusing, at best. If lawyers find remote hearings challenging, how can we expect tenants, many of whom lack legal representation, to figure things out? Mom-and-pop landlords may face similar difficulties.
Many tenants behind on rent also lack the technological resources to participate effectively in virtual proceedings. They may have no internet service or unreliable, spotty service. Those attending by smartphone may have limited data plans, making lengthy hearings, or hearings at the end of a billing cycle, unaffordable. Tenants whose first language is not English, who have limited education, or are unused to navigating online environments might have trouble keeping up.
When tenants cannot meaningfully join the proceeding, often the only remaining outcome is eviction. But with governmental rental assistance slowly but surely on its way to millions of tenants, eviction for unpaid rent is simply in nobody's interest.
There is still time to act. Governments should replicate as equitably as possible the physical courthouse online before eviction cases are heard and adjudicated. States and cities can use funds from the newest federal relief package as well as unspent CARES Act money to build better virtual housing courts.
Some Illinois courthouses repurposed conference rooms for computer terminals for tech-challenged or cash-strapped members of the public. Similar court internet kiosks are popping up in Texas and Alaska and Kansas has received funding to create them. Stimulus money was provided for exactly this kind of relief.
Courts can also extend existing online dispute resolution programs, extend their wi-fi coverage into their parking lots for mobile access and publish step-by-step procedural guides. Bar groups that have developed cheat sheets for new court procedures can make them available to tenants, landlords and attorneys alike.
Landlords should strongly favor measures that ensure equal access and remove the logjam to payment.
How tenants and landlords fare in these life-altering proceedings will be a measure of America's commitment to access to justice.
The digital divide should not become a justice divide, especially when help for tenants and landlords alike is already on its way.
Jason Mazzone is a professor at the University of Illinois College of Law. Robin Fretwell Wilson is the director of the Institute of Government and Public Affairs at the University of Illinois System and a professor at the College of Law.