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Excerpted From: Anne Kat Alexander, Residential Eviction and Public Housing: Covid-19 and Beyond , 18 Indiana Health Law Review 243 (2021) (212 Footnotes) (Full Document)

AnneKatAlexanderThis Article provides an account and analysis of the eviction-reducing public health measures taken during the COVID-19 pandemic in the United States, adding to the urgent and growing body of research that seeks both to capture a description of the current situation and press for best practices to be implemented more widely. I gave the panel presentation that this Article accompanies approximately six weeks before this writing, and already much has changed with respect to housing policy, infection counts, and the pandemic as a whole; even more will change before this Article goes to press. During the time between my presentation and this writing, Americans elected a new president; that new president, Joe Biden, will be inaugurated on January 20, 2020. Before Inauguration Day, the national eviction moratorium put in place to curb the spread of COVID-19 by the Centers for Disease Control and Prevention (“CDC”) is scheduled to expire. The past several weeks and months have seen governors, state supreme courts, and legislatures implement extraordinary measures to keep people housed. The policy landscape shifts like sand underfoot, but reviewing those early, remarkable emergency orders provides a spark of hope that the shifts can move in a direction that promotes housing stability and, consequently, improved public health.

In this Article, I combine an early analysis of COVID-19 emergency housing policies put in place during the ongoing pandemic with a look to the future and some of the options available to policymakers working to create a more stable rental housing market than the one that existed prior to the health and economic crisis. I aim to answer the following questions, which are relevant both at the present moment and in the months and years to come: What did we do about eviction during this once-in-a-generation pandemic? Why did we do it? Where did we go wrong? And, what should we do next?

In Section II, I begin with a brief overview of the problem of eviction, its definition and characteristics, and what it has to do with health. Eviction is associated with many harms to tenants and falls within two main categories: (1) harms having to do with the acute crisis of removal from one's home and (2) long-term harms having to do with the “Scarlet E” that an eviction filing leaves on a tenant's rental history, which prevents the tenant from accessing healthy housing later.

Section III examines COVID-19 rental housing policy responses in general, including social distancing in courts, financial assistance, and eviction moratoria. Remarkably, forty-three states and the District of Columbia implemented some form of emergency anti-eviction policy other than or in addition to financial assistance. In this Section, I outline the contours of what policies were implemented, thus proving to be possible, in 2020. Section III also discusses the goals of COVID-19 rental housing policy and flaws in policies and programs that prevent the achievement of these goals. I pay particular attention to four types of flaws: (1) intervention that targets an action too late in the eviction process; (2) intervention that only applies to subsets of renters or types of housing; (3) intervention that requires action by tenants; and (4) intervention that postpones, rather than eliminates, risk of eviction.

Three policy regimes are discussed in greater detail in Section IV: the responses of Massachusetts and Austin, Texas, which stand out as exemplary among responses from states, localities, and the federal government's response in the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) and the CDC's eviction moratorium. I conclude with notes about court actions in Section V and thoughts on how, in the wake of strong anti-eviction measures during a crisis, we might move forward with creating a housing policy regime that supports public health following the pandemic.

Key to any discussion about eviction in the United States is understanding that the hardships caused by housing insecurity are not distributed evenly throughout the American population. Systemic racism has denied Black Americans the key wealth-building activity of homeownership for centuries. Whereas more than three in four non-Hispanic white families own their homes, fewer than half of all Black families are homeowners. This difference in homeownership contributes to the fact that the median white family in America has ten times the wealth of the median Black family. The simple demographic truth that a higher proportion of nonwhite than white families are renters means that, by definition, nonwhite and especially Black American households, as a population, will be more exposed to eviction and its harms than white American households. Further, research into the demographic characteristics of evicted tenants and distribution of eviction cases within cities demonstrates that Black households and Black neighborhoods experience this form of housing instability at a rate disproportionate to their share of the renting population. These racial inequities will be even more pronounced during the COVID-19 pandemic and corresponding economic crisis.

The [CDC has] estimated that COVID-19 case and hospitalization rates are at least 2.5 and 4.5 times higher, respectively, among Black, Hispanic, and Native American populations than among [w]hite populations. Black individuals have died from COVID-19 at more than twice the rate as [w]hite individuals.

At the same time, unemployment rates during the crisis are higher for Black and Hispanic workers than white and non-Hispanic workers. This Article considers eviction as a public health issue, but one should keep in mind that this public health burden is particularly and disproportionately borne by Black Americans.

[. . .]

At some point in the near future, the last remaining eviction moratoria will end. For a brief moment in May 2020, more than half of renters were covered by some form of state eviction ban, in addition to a targeted federal ban and many local bans. These actions were taken as emergency steps to prevent an acute catastrophe, recognizing both that America was facing an economic meltdown and that this particular byproduct of the economic crisis would further the health crisis. As the crisis wore on, however, this early commitment to stabilizing the economic situation and preventing further negative health impacts fell to the wayside. As of this writing in November 2020, COVID-19 infections are increasing at a rate greater than in March 2020, yet the vast majority of renters live in states with little or no protection from eviction (defined as states with under 1.5 stars on the Scorecard). Eviction courts across the country are resuming business as usual, despite the fact that the pandemic has yet to subside or that “business as usual” already represented a severe housing crisis.

The pandemic forced policymakers to take dramatic, expedited action to stabilize the American rental housing market in the spring and summer. The continued pandemic forces policymakers to confront the choice of whether to return to a worsened status quo--the crises of the past few years and months-- now in the middle of winter, with renters' savings and relief aid exhausted, or whether to build long-term programs to move into a better future. Physicians are guided by the Hippocratic principle of “[f]irst, do no harm.” What if housing policy was similarly guided by a principle of first, keep people housed? Eviction presents numerous health risks, yet even amidst this once-in-a-generation emergency, relief measures are designed to ward off moral hazard: executive orders forbidding eviction filings included explicit warnings that renters were still on the hook for rent; rental assistance programs designed to keep low-income families from becoming homeless included such onerous documentation and application requirements that the program staff worried that they would not be able to spend all of their federal dollars. These measures are haunted by a phantom unsavory tenant from whom policymakers must protect the landlord and the taxpayer. American housing policy treats rental housing first as an investment and income-generating scheme for landlords, and second as homes for renters.

There is another way. The current best practice in homelessness response is a “housing first” policy: do not require people without housing to get sober or get a job or even just wait to secure housing for them. Start with housing and supply wraparound services to support them, resolving the other issues. A policy of “First, keep people housed” should be even easier to implement: the population the policy serves already by definition has housing. All the policy regime must do is assist in keeping those people housed and accessing higher-quality housing.

How do we keep people housed? We raise barriers to filing for eviction so that landlords must treat eviction as a tool of last resort, rather than a rent-collection strategy when a tenant misses a payment. This might look like raising filing fees, establishing a floor for nonpayment eviction claims to eliminate evictions over small sums of money, or requiring an out-of-court mediation process prior to filing. We make housing more affordable, which can look like building new housing, funding rental assistance or housing vouchers, or implementing rent control, but can also look like raising the minimum wage to a living wage. We support tenants through the eviction process by establishing the right to counsel in housing cases--guaranteeing that all people receive adequate legal counsel when their home is at risk. We mitigate the harm done by eviction by removing requirements that renters have an eviction-free record to apply for government housing assistance and sealing or masking more eviction cases. None of these policies is extreme or impossible, and nearly all can be done at the local or state level. Indeed, the fact that so many states and cities, as well as the federal government, stepped up to institute extraordinary anti-eviction measures during the early days of the pandemic should indicate that where there is a will, there is a way to keep people housed. Can we keep that will to keep people housed as the pandemic continues and, eventually, ends?

Eviction is common, quick, and traumatic. Eviction is a public health crisis. Eviction is at once life-altering for the tenant and routine for the landlord. None of this is inevitable. We must not allow it to remain the case. The health of our neighbors and communities depends on it.

Resarcher in the Eviction Lab at Princeton University.

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