February 5, 2013

Summary

One summer evening in Little Rock, a middle-aged couple named Steve and Angela were preparing for Bible study class when there was a knock at the door. Steve answered and found two police officers standing outside with a warrant for their arrest. Angela fainted on the spot. The couple had been two weeks late paying the rent and when their landlord ordered them out within ten days, they had not moved fast enough. In Arkansas, that is a crime.

Arkansas is the only US state where tenants can end up as convicted criminals because they did not pay their rent on time. The state’s unique “failure to vacate” law sees tenants charged as criminals purely on their landlords’ say-so, without any independent investigation by prosecutors. Tenants who run afoul of the law face fines—sometimes in excess of the rent they could not pay to begin with—as well as possible jail time, and can be saddled with a criminal record. On top of all that, the law is written in a way that tramples on tenants’ due process rights, punishing those who do not plead guilty with harsher sentences.

Every other US state treats evictions as a purely civil matter. In those jurisdictions, aggrieved landlords can use the courts to force out tenants who no longer have lawful claim to occupancy and claim any damages that might be owed them, but they cannot have tenants arrested and charged with crimes for failing to pay rent in a timely manner. But an Arkansas tenant who fails to pay their rent on time—even if they are only a day late—can be evicted on 10 days’ notice. If they have not moved out at the end of those 10 days, their landlord can have a warrant issued for their arrest and see them charged with a misdemeanor offense that operates as if it imposed strict and absolute liability.

Arkansas’s draconian criminal evictions law allows landlords to evict tenants if they fail to pay their rent on time and then have them charged as criminals if they have not vacated the property within 10 days. That law, along with the many abuses that flow from its application and at least occasional misuse, is the subject of this report. In researching this report, Human Rights Watch conducted interviews in Little Rock, North Little Rock, Cabot, and West Memphis. Those interviewed included tenants, landlords, a district judge, attorneys, and independent legal experts.

Proponents of the criminal evictions law say it is a useful tool to remove abusive tenants who refuse to move out even though they cannot or will not pay their rent. Arkansas landlords inevitably have their fair share of tenant horror stories, just like landlords everywhere do. But roughly a third of all Arkansans are renters. Working families hit with job losses or other sudden economic distress; longtime renters who were only a week or two behind; and even people whose only “crime” was getting on the bad side of a vindictive landlord are all hauled into criminal court.

Many accused tenants do not understand the law they are being charged under and most face trial without legal representation. They sit in court alongside accused murderers and thieves waiting for their cases to be called. Some leave court with criminal records after hearings that last less than five minutes. Many others are intimidated into moving out even when they do not feel they have broken the law, because the only way they can have their day in court is to wait for police officers to arrive at their door with an arrest warrant.

Once in court, some tenants go before the judge armed with folders overstuffed with documents. With little or no knowledge of the law they are being charged under, they make the mistaken assumption that they will have a chance to tell their side of a complicated story. Some tenants withhold rent to try and press an abusive landlord to repair a broken hot water heater, or a leaky roof. Others have far more complicated stories to tell. But under Arkansas law none of this is relevant, so many judges cut tenants off before they can utter a word of the stories they wanted the court to hear. The only questions legally relevant to a judge are, “Did you pay the rent on time?” and “Are you out?” Human Rights Watch met tenants in the hallways outside their courtrooms who seemed stunned and sometimes outraged—but mostly incredulous to learn that, just by staying in their homes while waiting for their day in court, they had actually committed a crime.

For all practical purposes, the criminal evictions law operates as if the renter bears strict and absolute liability. Although the law refers to situations where the renter “willfully” refuses to vacate a property, when it comes to determining criminal guilt, the judge only assesses if the two constituent acts of the offence—failure to pay on time and failure to leave the property within ten days of notice—have been met.

The law also turns prosecutors into the personal attorneys of aggrieved landlords—at taxpayer expense. At the same time, for some tenants, the law has the practical effect of criminalizing economic hardship at a time when many are struggling to cope with the impacts of a bad economy.

The law is completely indifferent to the circumstances that might have led to a late rent payment, or a tenant’s inability to move out within 10 days of getting notice. The law imposes fines that can exceed the rent payments tenants could not scrape together in the first place, potentially plunging people even deeper into financial distress. Human Rights Watch saw one woman sentenced to probation even though she said she had been in the hospital after suffering a stroke when the eviction notice was served against her.

The law can sometimes be even more abusive in practice than it is on paper. Some judges are respectful of the people who appear before them in court and others are not. Human Rights Watch saw one district judge shout down a woman who tried to explain her side of a rent dispute and compare her to a bank robber.

What’s much worse, in some cases, unscrupulous landlords are able to exploit the credulity with which many prosecutors treat their assertions to wrongfully evict or otherwise harass tenants. The criminal evictions process is initiated by the landlord filling out an affidavit, and many counties issue arrest warrants and file criminal charges purely on the say-so of the landlord, without any further investigation. Human Rights Watch documented one case where a landlord had her tenant hauled up on criminal charges even though she only gave her three days to vacate rather than the ten required by law. In another case, a man in West Memphis managed to get criminal charges filed repeatedly against a woman he had actually sold a house to by claiming that she was a tenant who had stopped paying rent.

Even within the bounds of legality, creative landlords have at least some latitude to use the law against tenants in ways its authors probably never contemplated. For instance, one Little Rock attorney’s website advises landlords that the state’s criminal evictions law can be used to circumvent federal laws that bar them from evicting active duty service members while they are serving overseas. A landlord who uses the civil evictions process to do the same thing could find themselves facing federal criminal charges.

The criminal evictions law’s most draconian provisions are not universally applied. The law is badly written and requires a certain amount of improvisation by the district judges called upon to implement it. Different judges handle this in different ways—there may well be no two courts in Arkansas that apply the statute in exactly the same way. Many district judges deal with criminal evictions cases in ways that are entirely inconsistent with what the law actually requires. Some judges depart from the law out of a desire to help accused tenants, but in some cases the prevailing norm of judicial improvisation makes the criminal evictions law even more capricious and arbitrary than it is already. A tenant’s fate in court can depend as much on the whims of the judge before whom they appear as it does on the letter of the law.

Some prosecutors refuse to apply the criminal evictions statute altogether. Some district judges find the law so extreme that they modify or ignore its harshest provisions, without any legal justification. Others bend over backwards to avoid convicting anyone at all—some tell the tenants who appear before them in court that they will dismiss all of the charges against them if they vacate their residence within the next week. The law does not make provision for this, but landlords have not been vocal in objecting. They achieve the goal of regaining possession of their property cheaply and quickly, and may have little interest in punishing their tenants as criminals.

On the other hand, some courts regularly impose guilty verdicts and hand down fines that can exceed US$400. In at least one city—Jacksonville— tenants charged under the law are subjected to pretrial detention. And some judges issue orders of restitution compelling convicted tenants to pay their landlords the money allegedly owed them even if they plead guilty—an outcome that would be perfectly at place in civil court, but is contemplated nowhere in the actual text of the criminal evictions law.

Statewide data on the application of the statute does not exist. As a result no one actually knows what the full range of judicial practice is with criminal evictions cases, or even how many tenants are convicted or what sentences they face. What is clear is that the law applies to some 900,000 renters and is used every day in courts across Arkansas. Landlords’ representatives estimate that it is used to effect a large majority of the evictions that take place across the state every year.

Human Rights Watch, working in partnership with a faculty member at the University of Arkansas law school, was able to determine that over 1,200 people were charged under Arkansas’ criminal evictions law in 2012—and that figure leaves many counties wholly unaccounted for. Over 100 of those tenants were ultimately convicted of a crime; in hundreds of other cases, courts or prosecutors let the charges drop if tenants agreed to move out of their homes immediately.

Arkansas’s legislature should promptly repeal its abusive criminal evictions law. It violates the basic human rights of tenants, and is out of step with US legal norms. But the political weight of the state’s landlords’ lobby means that the likelihood of reform will depend on the support—or least quiet acceptance—of a significant proportion of the state’s landlords.

Many Arkansas landlords contend that the only reason they rely on the criminal evictions statute is the state’s lack of a viable civil evictions process. While Arkansas does have a civil evictions statute, landlords complain that it is slow, expensive, and cumbersome relative to those in other states. The civil process is avoided at all costs by many landlords. Landlords argue that the costs they incur pursuing a civil eviction in Arkansas can sometimes dwarf the revenues they stand to earn from the property they want to regain. If that argument is valid, the solution is to improve the civil process, not to rely instead on an abusive criminal statute.

A potential solution is already on the table. In 2011, the Arkansas state legislature set up the Non-Legislative Commission on the Study of Landlord-Tenant Laws to compare the state’s legal framework with norms in other states. The commission—whose members included landlords, realtors, independent legal experts, and others— recommended that the state legislature should scrap the criminal evictions law and streamline Arkansas’ civil evictions law to make it a more practical tool for landlords while still respecting the rights of tenants. It also recommended a number of other key steps to modernize Arkansas’ outmoded legal framework.

This is a reasonable compromise and the state legislature should take up the commission’s recommendations. But the criminal evictions law should be taken off the books during the state’s 2013 legislative session, regardless of how long it takes to reform the civil process. It is an abusive statute that serves no defensible public purpose. If Arkansas landlords want the two steps be taken simultaneously, they should encourage legislators to fast-track changes to the civil evictions process rather than delay repeal of the criminal evictions statute.