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Can You Go to Jail for Not Paying Rent?

Only in Arkansas. And a stealthy campaign is changing that.

On an otherwise unremarkable day last July, Artoria Smith of Little Rock, Ark. was in her kitchen with an armful of laundry when, she says, she fell through the floor. Before she knew it, her refrigerator had sunk halfway into the basement.

That’s how she learned that the floors in her townhouse, where she had lived for more than 20 years, were rotting.

According to Smith and her attorney, she called her landlord, Primo Novero, and also registered a complaint with the city’s housing authority, regarding a number of unsafe conditions in the house. Novero came over, placed a plank of wood over the hole in the floorboards, and asked her for $700, which he estimated to be the cost of repairs1. She told him she only had $400, her usual rent. He left.

the cost of repairs1Arkansas is the only state in the nation with no "implied warranty of habitality," meaning that the state's landlords are not legally responsible for repairs and maintenance.

Hours later, he returned, armed with a green slip – “Ten-Day Notice to Vacate,” it said – and told her that she owed $22,353 in back rent, a sum she says he came up with “out of the blue” as payback for reporting him.

Smith, who supports her 15-year-old son, Willie, on a fixed income, says she could not afford the deposit for a new apartment on such short notice.

After ten days, the police showed up at Smith’s door, and fingerprinted her in her house. They had a warrant for her arrest, but, mainly because the city jails were overcrowded, she was not officially arrested.

Several weeks later, Smith was found guilty of failure to vacate her home. She was now a convicted criminal.

Smith’s case is not unusual in Arkansas, the only state in the nation2 that classifies the nonpayment of rent (while remaining on the property) as a criminal act, punishable by up to 90 days in jail. In every other state, disputes over rent are considered a civil matter, in which the worst that can happen is eviction. But if a landlord in Arkansas claims that a tenant is even one day late in making a payment, he can stick the tenant with a ten-day notice to vacate. If the tenant has not vacated after the ten days, the landlord may file an affidavit for an arrest warrant, which the local sheriff will then promptly carry out..

only state in the nation2Arkansas' law has exactly one precedent – a Florida statute enacted in 1933 and repealed in 1973 that criminalized the act of "holding over," i.e. staying in a property beyond the end of the lease, which was considered a form of trespassing.

According to a 2013 analysis by Lynn Foster, a law professor at the University of Arkansas-Little Rock, over 2,000 Arkansans per year are prosecuted as criminals for not meeting rent deadlines. Of these, Foster found, a plurality were low-income black women.

“This is really the worst of what we call the ‘criminalization of poverty,’” says Amy Johnson, the executive director of Arkansas Access to Justice and an expert on landlord-tenant policies in the state. “You see it elsewhere, with debtors’ prisons – people sentenced to jail only because they can’t afford to pay fees,” as well as the quality-of-life policing used in some cities, by which the homeless are arrested for loitering in the street.

Under the Arkansas law, there is no investigation into the amount of rent the landlord says is owed, no process through which the tenant may dispute that amount; the criminal prosecution is activated entirely on the landlord’s word3. Only two factors are considered: whether or not the tenant paid what the landlord says is owed, and whether or not the tenant failed to vacate after receiving the ten-day notice. No extenuating factors – including, for example, whether the tenant lost her job, or whether there were repairs that the landlord failed to undertake, or any other good-faith misunderstanding – are discussed.

activated entirely on the landlord’s word3One of the few comparable procedures under the criminal law – in which a private citizen can almost singlehandedly initiate another citizen's arrest and prosecution – is the process of filing for a restraining order and then claiming that it was violated.

Most controversially, any tenant who believes she is not guilty and wishes to plead her case at trial must pay the full quantity that the landlord says is owed, or else face a more serious charge and jail time. Those who give up and plead guilty do not have to pay any restitution (beyond a $25-a-day fine for the days they stayed on the property) and do not face any jail time.

“This is not an eviction,” says Dustin Duke, Smith’s attorney. “What it is is a ruthlessly efficient way of frightening tenants from their homes, without the cost to the landlords (and to the backed-up courts) of due process.”

“There is so much intimidation throughout,” Duke adds. “From the ten-day notice, to the law-enforcement visits… Most people give up well before trial – the system is set up for them to do so. It takes a certain type of person who is willing to keep fighting.”

Despite such criticism, the 114-year-old statute criminalizing the nonpayment of rent has been particularly tough to repeal in the state legislature4. Johnson and Duke attribute the law’s stamina to the imbalance of power in their state. “The realtors’ lobby has an awful lot of influence over the legislators, here,” says Duke. “They’ve successfully halted a number of attempts to deal with this issue, even in the last few years.”

legislature4In 2011, the Arkansas legislature established a commission to compare this law with other states' landlord-tenant laws, and in December 2012 issued its recommendations, which included scrapping the statute. But no further action was taken.

Every time a pro-tenant bill goes down in flames, the realtors, bankers, and insurance lobbyists offer the same refrain: Take this to court5; it’s not a legislative matter. “There are remedies for that,” said Allen Kerr, Arkansas’ Insurance Commissioner, back in March after yet another proposal to help renters failed to gain momentum at the state Capitol. “It’s the court system…”

Take this to court5Because most renters do not have a lawyer, and most cases never make it beyond arraignment, the law has only been appealed ten times since 1968, never successfully. The constitutionality of the statute had also not been ruled on since the 2001 amendment that required defendants to pay their rent before proceeding to trial.

Smith and the legal aid organizations of Arkansas seem to have taken that advice. Without much fanfare, they have quickly launched an all-out assault on the failure-to-vacate law in courts around the state.

First, Smith appealed her guilty verdict – and won. A usually-conservative circuit judge in Pulaski County, Herbert Wright, ruled that the manner in which she had been treated was unconstitutional on the grounds that it chilled her fundamental right to due process and a trial (and constituted debtors’ imprisonment, to boot). “The fact that Arkansas’s sui generis law is – by definition – an ‘unusual’ punishment only further convinces this Court that the statute is facially unconstitutional,” Judge Wright concluded.

As a result of Arkansas v. Smith, renters in Little Rock – Arkansas’ largest and most populous jurisdiction – no longer face criminal prosecution if they fall behind in paying rent. Ever since, legal aid attorneys have been mounting a district-by-district operation to take down the law. “We will use [Smith’s] case as persuasive authority in similar cases,” says Jason Auer of Legal Aid of Arkansas, which is spearheading the effort along with the ACLU.

Craighead County, in Northeast Arkansas, was the next to fall. The D.A. there issued a memo saying that he would no longer approve arrest warrants regarding nonpayment of rent.

In at least 12 other counties in the western part of the state, more cases are pending.

Johnson says that Legal Aid of Arkansas is “trying to fly under the radar” by filing these briefs almost surreptitiously, before the realtors’ groups take notice. “If the realtors knew where the next one was coming, they would immediately go to that county and exert all their political and financial sway over the judges and D.A.’s, who are all elected… The goal is to go county-by-county before their lobbyists find out.”

No matter the outcome, the burgeoning fight over whether nonpayment of rent should be criminalized has raised larger questions about the true purpose of the criminal justice system. What sorts of offenses should be considered criminal rather than civil? Is staying on a property after failing to pay rent more like burglary, or is it more accurately a dispute over a contract?

Landlords tend to see the case for criminalization. “I’m no fan of this law, but remaining on my property without paying is like stealing a car from Avis,” says Howard Warren, the legislative director for the Landlords Association of Arkansas. “I’m operating a business, not a social entitlement.”

Professor Foster’s investigation of the law, however, explains that a “civil injury” arises from a dispute with another individual, such as a breach of an agreement, whereas a criminal act is a dispute with the state, a transgression against the whole community. “Harm to the public, not to individuals, is the hallmark of a crime6,” Foster writes.

the hallmark of a crime6A crime also entails intent, which is never considered under the failure-to-vacate statute; even if the defendant's failure to pay rent was perfectly accidental, she is guilty according to this law.

At stake is whether landlords or other creditors with private complaints against debtors ought to be able to employ the taxpayer-funded (and decidedly more threatening) resources of the police and jails to get what they feel they deserve.

Even if nonpayment of rent is considered criminal, Arkansas’s expedited way of handling it has caused the legal aid lawyers fighting the law to pose an even more fundamental question about how the American legal system operates. Is the goal of the system expedience, for those who are probably in the right? A quick, useful, publicly-funded process by which individuals – such as complaining landlords – can get what they are duly owed? Or is it justice: A universally accessible, adversarial process, in which both sides get a chance to hash it out, no matter how inefficient?

As of now, landlord-tenant law in Arkansas is, by all accounts, geared toward the former.

The landlord himself files for an arrest warrant. (In some jurisdictions, the process is so do-it-yourself that the landlord need only sign and date an affidavit without describing the circumstances of the dispute or providing documentation.) Then, the court takes the landlord’s complaint at face value, pushing the case through without much review, “as if all parties were on the same team, trying to achieve a time- and cost-efficient result,” says Duke.

To the landlords, the in-and-out feel of the proceedings is appropriate, because a majority of these tenants are guilty of not paying – or worse. “Again, this law is immoral in certain respects, but it’s efficient with bad tenants. I’ve had renters who punched holes in the walls, did all kind of things, to try and say that was why they had withheld the rent,” says Warren.

But, says Johnson, the fact that there are deadbeat tenants should not determine how the justice system functions for honest tenants. “The landlords tell these stories about the bad people, not paying rent and running a meth lab and everything... And it’s probably true that a lot of those folks should pay. If it’s decided in a trial that they owe restitution for unpaid rent, then they should do so.”

“But this is such a matter of fairness. The way it is, the process is so streamlined for the landlords to get what they deserve from the bad tenants, at the expense of due process for the good tenants.”

“I don’t have a problem with setting up a more streamlined civil process, so that landlords have a decent, cost-effective tool for dealing with truly bad tenants,” says Duke. “But unless you get rid of the criminal procedure, there is no incentive to develop such an option.” The realtors’ lobby, Duke notes, opposes improvements to the the existing civil process because “not having a good substitute law is a good way to keep a bad existing law in place.”

Now that the criminal failure-to-pay-rent law is poised to fall, such a civil remedy seems to be in the making. “I fully expect a bill containing an inexpensive, fast, fair civil procedure to be introduced in the next legislative session in 2015,” says Foster.

As for Smith, she has been surprised that a law that has been on the books since 1901 may meet its downfall around the state – in part because of her case. “I keep hearing that this is a hundred-year-old law and all that,” she says. “It’s kind of amazing what one woman can start.”