Having failed again to persuade the landlord-dominated Arkansas legislature to repeal the last criminal eviction statute in the United States, renter advocates have turned to federal court.

Lynn Foster, the retired law professor who’s president of Arkansans for Stronger Communities, announces:

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On Sept. 2, Equal Justice Under Law, a national nonprofit, and the UA Little Rock Bowen School of Law Legal Clinic filed suit in federal court on behalf of Cynthia and Terry Easley, tenants, against Hot Spring County, alleging that Arkansas’s failure to vacate statute, which criminalizes the eviction process and is the only statute of its kind in the U.S., is unconstitutional.

It’s high time this bad law was challenged, and Arkansans for Stronger Communities, a nonprofit working for fair landlord-tenant law, hopes the suit is successful.

You can read the lawsuit here. It details the unfairness of Arkansas law, the worst in the country for renters. The 2021 legislature, after much resistance, finally enacted a minimum standard of habitability bill, but it was only a tiny step in favor of renters. The lawmakers soundly rejected decriminalizing non-payment of rent. Landlord legislators prefer the cheap and easy use of the police to enforce their civil contracts. The lawsuit details the Arkansas process and the role of one of the Arkansas legislators working to preserve it:

Failure to pay rent is traditionally approached as a civil matter, handled in landlord-tenant court. Landlords can pursue evictions for non-paying tenants in landlord-tenant court. Indeed, Arkansas has two civil eviction processes. Landlords can pursue an unlawful detainer eviction (the most common form of eviction) under Ark. Code § 18-60-307 or, in some places, what is known as a 2007 Act eviction under Ark. Code § 18-17-901.

Landlords are successful in securing evictions via these civil methods and routinely have the upper hand in these proceedings, since, for example, they almost always have a lawyer to represent them in unlawful detainer cases, whereas tenants do not.

Arkansas is the only state that offers landlords the option of a criminal process in addition to civil remedies, turning a civil debt into a criminal offense. Ark. Code § 18-16-101 (the “Criminal Eviction Statute”) allows criminal charges to be brought against a tenant if three elements are met: (1) a landlord alleges that a tenant is behind on rent (regardless if the tenant’s failure to pay is willful and regardless if the landlord is truthful), (2) the landlord notifies the tenant in writing that she must leave her home because she is behind on rent, and (3) the tenant “willfully and unnecessarily” remains at home more than ten days after receiving written notice.

Every day beyond the 10-day notice period that a tenant remains at home — even if the tenant’s failure to pay rent is non-willful — is considered a separate criminal offense, subject to excessive fines of up to $25 per offense. Ark. Code § 18-16-101(b).

There is no cap on how many criminal offenses or excessive fines a tenant may face.

In practice, private landlords use this law to force tenants to self-evict. According to State Representative and landlord Richard McGrew, “This law is really just used to get [tenants] out of the apartment…we just want them out of our apartment so we can re-rent it.”Terry Schug, Greene County Landlord Association president, justifies the law as landlords “need[ing] a good way to evict people.”

The self-eviction strategy is effective, as a landlord threatening to call the sheriff to arrest tenants for being behind on rent causes tenants to abandon their homes just to avoid the possibility of criminal prosecution.

Tenants who do not self-evict and go to court — who are almost always unrepresented — can be met with judges who tell them to move out or else be jailed for contempt of court.

In practice, tenants are not given the opportunity to present defenses in Criminal Eviction Statute proceedings — as they are in civil landlord-tenant court — and are not given the opportunity to make up for alleged due rent.  If a tenant offers funds to cover a portion or all of the alleged due rent, judges will routinely tell the tenant that it is the landlord’s decision whether to accept the funds. Most landlords will refuse the funds, preferring instead that the tenant leave the property.

Some circuit judges, including in Pulaski, have ruled the criminal eviction statute unconstitutional and property owners in such counties use the civil statutes in their courts. But the cases have never gone to the Arkansas Supreme Court for statewide application. Some counties are particularly receptive to the use of the criminal statute.

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Some details on the Malvern plaintiffs in this case against the prosecutor and sheriff enforcing the statute:

Plaintiffs Cynthia and Terry Easley have been served a failure to vacate criminal eviction notice under Ark. Code § 18-16-101 for non-payment of rent. After their landlord replaced the water tank last year and left them without running water, Plaintiffs stopped paying rent because they could no longer afford rent on top of the new expenses they had to incur as a result of not having running water (such as renting a porta potty and buying bottled water) and other necessary expenses (such as food and medicine). To this day, Plaintiffs do not have running water, yet they are being threatened with criminal prosecution. Plaintiffs are elderly, indigent, and have disabilities requiring use of wheelchairs for mobility.

What was I saying yesterday about our new state motto: The Mean State?

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