When falling behind on rent leads to jail time

Illustration of home
Illustration credit: Matt Williams for ProPublica

This story was published by ProPublica in partnership with the Arkansas Nonprofit News Network.

It was bad enough when Jazmon Allen lost her waitressing job in March at a Hot Springs barbecue restaurant during statewide closures meant to curb the pandemic.

Then, after she fell behind on her rent, came the shock that only happens to tenants in Arkansas: In May, her landlord filed a criminal complaint for failing to pay and failing to vacate the property.

When Allen, 29, didn’t appear in court as required on the morning of July 9, a warrant was issued for her. Four days later, an officer handcuffed her and booked her into a cell at the local sheriff’s office, where she remained for six hours until her mother posted bail.

Arkansas is the only state in the country that allows landlords to file criminal — rather than civil — charges against tenants after they fall behind on rent. Based on a law dating back to 1901, if tenants’ rent is even a day overdue, they forfeit their right to be in the property. Then, if they don’t leave their homes within 10 days of getting a notice from their landlords, they can be charged with a misdemeanor.

“I hate that law. It’s unconstitutional,” said Josh Drake, a deputy prosecutor in Garland County, where Allen was charged. The statute, he thinks, makes poverty a crime and violates the Eighth Amendment prohibiting cruel and unusual punishment. Nonetheless, Drake feels he must continue prosecuting these charges as long as the law remains on the books. He has represented the state in more than a dozen failure-to-vacate cases in the past few years.

In all other states, not appearing in civil eviction proceedings typically results in a ruling in favor of the landlord that gives the tenant a certain number of days to leave. Stay, and the landlord can enlist the sheriff to help remove the tenant’s belongings and change the locks, but the tenant does not face criminal charges.

But in Arkansas, the consequences can be more dire. In Mena, Jocelyn Mailly, 66, feared jail so much she went to court for her failure-to-vacate hearing in August despite having a fever and a presumptive positive coronavirus diagnosis. She had fallen behind on her monthly mobile home dues in June.

Jocelyn Mailly photo (Joshua Asante, special to ProPublica)
Fearing jail, Jocelyn Mailly came to court even though she was feeling sick with COVID-19 symptoms. She was later evicted through a civil charge and is now living in a cabin tent on her property. (Joshua Asante, special to ProPublica)

Evictions in the state can snowball from charges to warrants to arrests to jail time. The evicted, who research shows are disproportionately female, Black and low-income, are then saddled with a permanent criminal record, making it harder to find a new place to live or a job.

Around the country, leaders have paused evictions altogether as the pandemic has thrown millions of people out of work. In Arkansas, however, COVID-19 has not deterred criminal eviction cases. Since mid-March, more than 200 new failure to vacate cases have been filed statewide, according to online records and a survey of 28 district courts in the state’s largest communities by ProPublica and the Arkansas Nonprofit News Network. At least seven women were detained or sentenced to jail for not appearing in court.

Even a national moratorium on evictions didn’t stop the practice: Since the Sept. 4 order issued by the U.S. Centers for Disease Control and Prevention, at least 24 new cases have been filed.

Arkansas’ eviction statute has faced a number of challenges over its lifetime from courts and lawmakers. The top prosecutor in Pulaski County, home to Little Rock, flatly refuses to enforce it, as do a handful of other prosecutor’s offices.

Yet the law has survived, in part because many people — including landlords and elected officials — erroneously believe that no one charged under it ends up arrested or in jail. They do, and not just for missing court dates related to eviction charges. Since 2018, there have been 45 arrests exclusively for failing to pay rent and not leaving, according to the state’s criminal database.

Arkansas landlords have fought hard to keep the option of using the criminal justice system for evictions, with consistent support from the state legislature. It helps that many state legislators are themselves landlords. Filing for criminal eviction is cheaper than using the civil courts. Landlords are spared the cost of hiring private attorneys to pursue eviction cases by having taxpayer-funded prosecutors effectively act on their behalf. Arguing to protect the law, the state’s realtor’s association has contended that the criminal process “is much easier on both landlords and tenants. It is less costly and does not result in a civil judgment on the tenant’s record,” according to an association email.

But even some in Arkansas worry the statute evokes a different time, and not a better one.

“It’s incredibly sad for the state,” said state Rep. Jimmy Gazaway (R-Paragould), who owns rental property. “When you hear that people go to jail because they weren’t able to pay a private debt, it’s essentially the equivalent of a debtors prison, which you would have thought was part of our history. But apparently it remains alive in Arkansas today.”

“We Just Want Them Out of Our Apartment”

When state Sen. Jacob King introduced the statute to criminalize failing to pay rent in 1901, it broke with hundreds of years of legal tradition. Judicial systems had recognized evictions as a civil matter since the Middle Ages.

Even then, some of King’s colleagues foresaw the law’s consequences. Sen. R.A. Dowdy, from Central Arkansas, worried the bill could end up giving landlords the right to throw tenants in jail. King, who had moved to Arkansas after fighting for the Confederate Army in North Carolina, argued the statute only instituted a fine, not jail time. “That is true, but we all know what is done to a poor man in this state who cannot pay his fine,” responded Sen. Robert Lawrence. “He is sent to jail and compelled to work it out.” Nonetheless, the Senate passed the bill on a 14-13 vote.

The law has been adjusted several times since, but the criminal charge has survived. Since 2018, after the legislature amended the statute in an effort to make it less punitive, Arkansas courts have heard at least 1,050 criminal eviction cases. In that span, authorities issued more than 200 warrants related to evictions, some for arrests and others for citations that instruct the tenants to appear in court. Judges have issued 37 jail sentences for not appearing in court for rent payment hearings, according to a review of court records.

Most Arkansas landlords in the state do opt for the civil eviction route. But for many large property owners, it’s more expensive. If they manage their properties through a registered company (which most large property owners do), they have to be represented by an attorney. Attorney fees vary, but landlords say each case can cost up to $750.

“We’re not about turning someone into a criminal because they didn’t pay their rent, but we do want a simple, easy to use law that’s inexpensive,” said Steve Webster, president of the Hot Springs Landlord Association. Most members of the association are what he calls “mom and pop” landlords, owning anywhere from two to five units. Repealing the criminal eviction statute outright would force property owners to pass along the added costs for civil evictions to renters, he contended.

Hot Springs is a hub of criminal evictions. Downtown, in the Garland County Courts Building, state Rep. Richard McGrew (R-Hot Springs), owner of more than 200 rental units, regularly has charges brought against tenants who aren’t paying rent. McGrew represents parts of Garland and Saline counties.

Formerly an electrician, McGrew and his wife transitioned into real estate about two decades ago to save for retirement, initially buying a seven-unit apartment building in the Hot Springs historic district. McGrew prides himself on providing affordable housing for those struggling with poverty or addiction. “It’s about caring for the individuals and not just caring about the almighty dollar,” he said.

He has his limits, however, and when one of his tenants has exceeded them, he uses the court system to pressure them to move out. Like others in the state, he said he did not believe any of his tenants ever ended up in jail. “This law is really just used to get them out of the apartment. That’s the purpose of all this — it’s not to get them a criminal record, or to fine them, or to cost them money — we just want them out of our apartment so we can re-rent it.”

In a case from 2015, however, one of McGrew’s tenants didn’t show up to court and spent time in jail after being arrested on charges for failing to appear. The woman was later sentenced to 10 days in jail but had the jail time suspended. At least two other tenants who rented from McGrew have active warrants because they didn’t show up to court.

“It’s more about being disrespectful to the court than it is violating the failure to vacate,” McGrew said when told by ProPublica about the cases.

State Sen. Jimmy Hickey (R-Texarkana), the incoming Senate leader, initially insisted jail time was just as likely in civil eviction cases as criminal ones. If tenants refuse to leave when a sheriff is removing their belongings from the property, Hickey thought arrest would be inevitable. But there is no evidence that this happens regularly in Arkansas: Of more than 26,000 civil eviction cases that passed through circuit courts since 2014, ProPublica found that none resulted in jail sentences or failure to appear charges.

Hickey, who owns rental property units in Texarkana, said he wasn’t overly concerned about the potential harm that can result from criminal cases. Landlords need a tool to address contract breaches, he said. If the law allows a judge to order someone to jail either for unpaid rent or for not appearing in court for the charge, that’s the judge’s prerogative, he said.

Still, he said he’d stopped filing for criminal eviction a few years ago. Asked why, he shrugged. “I mean that’s a question I can’t answer. I’ve been doing this for 20 years. I can’t tell you why I stop something or why I did it.”

Other landlords haven’t stopped. Since the pandemic began in mid-March, property owners have filed 71 failure to vacate charges in the county district court encompassing Texarkana, or about one every three days.

Even supporters worry about the law’s enforcement as the coronavirus continues to rage. “I can’t imagine any judge, especially during this pandemic, doing anything other than trying to encourage them to find another place,” said Gibbs Ferguson, the former president of the state’s municipal judges council and a vocal supporter of the statute. “Lord have mercy.”

The Park Crest Fight

One early evening in October 1999, Wilma Young was preparing dinner for her daughters when there was a knock on her front door. She had a quiet pride in her three-bedroom, ground-floor apartment in Sherwood, a middle class and rapidly developing suburb outside Little Rock. The Park Crest complex had a dirt road leading into it, but she could walk to grocery stores and her favorite spot, Shotgun Dan’s Pizza.

Young, then 42, opened the door that evening to find a police officer on her doorstep. He asked for Young by name, then told her he had a warrant for her arrest for failing to pay rent and then not vacating. “There must be a mistake,” she remembers repeating over and over. Young had made a point of paying her rent on time and had copies of her monthly checks. With the officer on her doorstep, she retrieved them to let them speak for themselves.

They did not. Young remembers the officer saying he had to carry out the warrant as issued. In front of her children, the officer handcuffed and arrested her. Young shuddered as her youngest, just 5, started crying.

Outraged, Young spent the night in the county detention center. In the morning, her dad came to bail her out. Aside from a parking violation, she had never been accused of breaking the law or been arrested before. “You do all the right things and still get hung up in a system that’s never built for you,” she said.

Wilma Young
Wilma Young brought lawsuits challenging her criminal eviction — but the law remained on the books. (Joshua Asante, special to ProPublica)

Young, who knew her neighbors from swapping child care, began knocking on their doors to find out whether anyone else in the development had had similar visits from the police. Sure enough, the stories rolled in. One neighbor told Young she had been driving out of town to visit family in Memphis when police pulled her over for a broken taillight. The officer ran her driver’s license, found an active warrant for failing to pay her Park Crest rent and arrested her. She spent a few days in jail before her family could post bail, Young recalled.

After surveying the entire apartment complex, she came to believe that only Black tenants, mostly women, were getting charged and arrested for not paying rent. In legal filings, Park Crest denied the allegation that they were only using the statute against Black tenants. Park Crest’s former owners and property managers did not respond to multiple requests for comment.

In her rent case, the district court ruled in her favor, determining she could remain in her apartment. Young continued to advocate for renters. She went looking for a fair housing commission only to learn the state did not have one. She then found an attorney who filed lawsuits against Park Crest’s property managers in the fall and winter of 2000. In federal court, Young’s suit included five Black women living in the complex as plaintiffs and alleged the property managers violated the fair housing and civil rights acts. Park Crest’s lawyers denied every claim made against the company.

As the lawsuits wended through the courts, the state was moving to toughen the law. State Rep. Jerry Allison crafted a bill in March 2001 to amend the criminal statute and give it more teeth.

The amendment boosted the fines against tenants for overstaying from a range of $1 to $25 per day to a flat fee of $25 per day. Tenants had to pay back rent to a court registry. If they did not and were found guilty, they would be charged with a Class B misdemeanor, which carried a sentence of up to 90 days in jail. Previously, the statute carried a less serious general misdemeanor charge and did not explicitly mention jail time as a possible penalty.

The bill passed and, in April 2001, Gov. Mike Huckabee signed it. Allison, now in his 70s, did not return calls and voicemails from ProPublica.

As 2001 came to a close, Young reached a settlement with the Park Crest property managers for an undisclosed amount, according to orders of dismissal filed in each court. As part of the settlement, Young agreed to leave the property within 30 days and never again live in a Park Crest building. She eventually used the settlement to buy a home on an 11-acre plot of land outside of Little Rock that she still owns. Her lawsuits, which largely went unreported by local or national news outlets, did not spur challenges to the criminal eviction law.

Over the ensuing two decades, landlords would go on to use the criminal eviction statute disproportionately against women, and especially women of color. In Little Rock in 2012, 62% of the cases were filed against Black women, according to research conducted by University of Arkansas at Little Rock law professor emerita Lynn Foster. (Black women make up about 20% of the city.) Between mid-March and mid-September of this year, ProPublica found that women also made up more than 65% of the tenants with criminal eviction filings against them. ProPublica did not have racial information for the tenants, but this pattern extends to civil evictions in other locations, according to researchers who studied housing courts and surveyed tenants in Cleveland and Milwaukee.

“In disadvantaged neighborhoods, eviction is to women what incarceration is to men: incarceration locks men up, while eviction locks women out,” wrote sociologist Matthew Desmond, who authored the Pulitzer Prize-winning book, “Evicted.” Desmond, who has since established Princeton University’s Eviction Lab to track the practice in 47 states, explains one of the main reasons is that landlords discriminate against tenants with children. Women, on average, also continue to earn lower wages than men, with Black women in Arkansas earning 65 cents for every dollar white men earn.

The pandemic economy has hit women particularly hard, threatening to push more women into the eviction churn than ever. This September, more than 800,000 women nationwide left the labor force compared with about 216,000 men, according to the Bureau of Labor Statistics.

Two decades after her own eviction charge, when Young learned the Arkansas statute was still ending in arrest warrants and jail sentences, she cried.

The $22,353 Bill

In 2014, the law faced its most significant challenge. Lawyers with the ACLU of Arkansas took on the appeal of Artoria Smith, whose landlord had used the criminal eviction statute to compel her to leave, alleging that she owed 56 months of back rent, amounting to $22,353. She had been charged and fingerprinted, leaving her with a record that would haunt future job and housing searches.

The case landed in the court of Circuit Judge Herbert Wright, in Pulaski County. As a lawyer in private practice, Wright had defended tenants facing criminal evictions and had seen the harm they could cause firsthand. In Smith’s case, he ruled the statute violated the Eighth Amendment’s cruel and unusual punishment clause, as well as state and federal laws prohibiting debtors prisons.

Wright’s trial-court decision didn’t set legal precedent, however. To have applied statewide, someone would have had to appeal it and no one did.

Federal suits challenging the law have foundered as well. In June of this year, the ACLU of Arkansas brought a lawsuit on behalf of Edrin Allen, arguing the criminal eviction statute was unconstitutional. In a response during the case, the federal judge found that Allen was unlikely to succeed, citing two decisions by state Supreme Court justices upholding the law. The judges concluded that a tenant who does not pay rent on time “without justification” is stealing property from the landlord and should be criminally punished. Allen also moved out during the proceedings, which dragged on for months, and the judge dismissed the case.

Though Wright’s decision didn’t bring about statewide change, it gave some jurisdictions a reason to act. The day after the judge’s ruling, Larry Jegley, the prosecuting attorney for Pulaski County, sent a memo to every police chief in the county announcing that his office would no longer approve affidavits for arrest warrants filed under the statute. The year before, the office had approved 487.

Larry Jegley
Larry Jegley, the Pulaski County prosecutor, has stopped bringing criminal eviction cases. (Joshua Asante, special to ProPublica)

Jegley, 67, has been the county’s top law enforcement officer for 18 years. He had begun to notice that tenants charged with failure to vacate often were so poor that they needed a public defender. “They’re in that position because they don’t have anything, and now they are being charged with the crime of basically not paying rent,” Jegley said. “Allowing one class of businesspeople to avail themselves of criminal process for breach of contract is just fundamentally unconscionable.”

As landlords walked into Jegley’s office seeking his signature on affidavits in the following weeks, he turned them away with a copy of Wright’s decision. This didn’t sit well. Some landlords said they wouldn’t be able to offer affordable housing. Some said they’d find someone to run against Jegley in the next election. He told them to go for it, then ran unopposed and was reelected for the eighth time.

That year, the number of civil evictions filed in circuit courts across the county almost doubled from 784 in 2014 to 1,416 in 2015, according to court records.

“Right’s right and wrong is wrong,” he said he told the landlords. “If you bounce a check, should I be able to come after you and put you in prison for it or jail?”

Landlords changed tack in the lead up to the 2017 legislative session, the first session since Wright’s ruling. The Greene County Landlord Association worked with Sen. Blake Johnson (R-Corning) to draft a bill returning the criminal evictions statute to its more modest pre-2001 form. That was the version that had survived two constitutional challenges in the state Supreme Court. The Greene County prosecuting attorney had, like Jegley, decided he would no longer bring criminal eviction cases after Wright’s decision. The landlord association figured that if the statute became less punitive, maybe prosecutors would reconsider.

“I don’t want to label anyone a criminal by no means,” Terry Schug, the association’s president, told ProPublica. “But, you know, we need a good way to evict people.”

The Arkansas Realtors Association got behind the bill, becoming one of the state’s top spenders on campaigns and lobbying and retaining two top lobbyists, Ted and Julie Mullenix.

The husband-wife duo capitalized on the knowledge Ted gleaned from serving in the state legislature for 16 years before opening the firm. Until recently, the state had some of the strictest term limits in the nation, and local officials told ProPublica that every new legislator has welcomed the Mullenixes’ institutional knowledge.

Days before the house vote, the realtors association sent its members an email urging them to contact their representatives to vote yes. They laid out talking points that the law kept costs down for both landlords and tenants and told people to refer questions to the Mullenixes.

“The statute has been upheld as constitutional over a number of years,” wrote Julie Mullenix in response to questions. These rulings as well as the recent response in the Edrin Allen case, she wrote, provide “sufficient clarity about any questions surrounding the statute.”

The bill passed comfortably.

On paper, people who are charged now are not supposed to get locked up since the charge reverted to the less serious misdemeanor that does not explicitly include jail time. But as the court records show, the evicted still sometimes wind up in jail anyway.

The legislative change did not sway Jegley or Greene County’s prosecuting attorney to rethink their positions. Pulaski and Greene are two of a handful of counties that have not heard criminal eviction cases for five years now. “I’m glad to be shed of those types of cases,” Jegley said. “We need to leave it in civil courts where it belongs.”

Wright, who issued the 2015 ruling, told ProPublica the legislative changes did not address his constitutional objections.

Legal advocates say the expense of having to pursue evictions in civil court hasn’t had an obvious effect on rents in Arkansas counties where landlords are no longer able to pursue criminal charges.

“The idea that it is too expensive to enforce a civil contract to the courts is not a good reason to criminalize breaking that contract,” said Kendall Lewellen, a managing attorney at the Center for Arkansas Legal Services who defends tenants in eviction cases.

“Arrested for Being Poor”

Over Labor Day weekend, Teresa Hunter packed a U-Haul with furniture from the three-bedroom house in Hot Springs where she’d lived for two-and-a-half years.

Back in June, the manufacturing and repair shop where she works took her off the schedule for 14 days because she was exposed to someone who had COVID-19. That month, she was $200 short on her $850 monthly rent. After she could not work things out with her landlord, he filed a criminal complaint against her for failing to pay rent and not leaving.

Hunter thought the officer who delivered the notice on Aug. 2 said that as long as she moved out before the Sept. 8 hearing, she would not need to come to court. A public information officer for the Hot Springs Police Department, where the officer works, reviewed audio and video of the interaction and said the officer told Hunter she would need to appear in court, where a judge would decide the outcome.

In the weeks after she got the citation, Hunter, 45, said she spent every day scouring rental ads to try to find a new home but couldn’t find anything. So, the weekend before her court date, she moved her furniture into a storage unit and herself into her son’s spare bedroom.

On Sept. 8, when Judge Joe Graham called Hunter’s case, she was at her son’s, looking through apartment rentals after getting home from the graveyard shift. All Graham saw, however, was that Hunter was not in court. He issued a failure-to-appear warrant against her and tacked on a $1,000 bond.

Unaware, Hunter subsequently found an apartment, rented another U-Haul and moved her furniture from the storage unit into her new place. Hunter did not know about the warrant until ProPublica reached out to her in late September. Confused and worried, she began thinking out loud: She would have to turn herself in, she said. She would have to get a bail bond. Hunter had been criminally charged for other offenses before, and she knew how complicated and expensive the process could get. “I got to pay a fine for that, I got to get a bond out, it’s just so much,” she said. “I moved out, so why am I going through all this? Why?”

Amber Lee Wells is in a similar position.

At the end of February, just before the pandemic began, Wells moved into a rented three-bedroom house with her daughter and boyfriend in Hot Springs. She’d been working as a teller at Oaklawn Racing Casino for two months.

Then the virus arrived. The casino let her go in March. Lee Wells lived on money that she’d saved and that her dad had given her until April and then started the process of filing for unemployment. But the state’s agency was overwhelmed and she didn’t get it right away.

Housing wasn’t a concern — at least, at first. Eighteen days after she was laid off, she received a letter from her property broker, Diana Jones, acknowledging the difficult times and offering to work with tenants who lost employment. Lee Wells said she called Jones, who told her they would work something out, leaving Lee Wells with the impression she’d be able to stay even if she missed payments. But Jones later told ProPublica that while she was willing to work with tenants, that did not mean they could stop paying rent with no plan in place. It’s a contract, after all, she said, and the property owners Jones works for still have monthly mortgage and insurance payments to make. “We also have bills and rents to pay,” Jones said.

Lee Wells was looking for a job, any job, but the economy had cratered. A month went by and the state had yet to process her unemployment claim. On May 1, she couldn’t make that month’s $750 rent.

Jones escalated matters, posting a notice on Lee Wells’ front door on May 27 giving her 10 days to leave. When she got the notice, she said she allowed herself a moment to break down, but only a moment. Then she went back to looking for new housing and jobs.

Three weeks later, with Lee Wells still in the house and unable to pay up, Jones turned to law enforcement to file a criminal citation against her. An officer dropped off the ticket the same day, explaining that failing to appear for her hearing could result in an arrest warrant and jail time.

Then Lee Wells got more bad news: Her dad, recently diagnosed with an aggressive cancer, was in decline. Lee Wells decided to move back to Montana to be with him.

When the district court clerk called the case docket on Aug. 4, Lee Wells was more than 1,300 miles away. As with Hunter, Graham issued a warrant and a $1,000 bond against Lee Wells for not appearing. The warrant will remain active until it’s served, at which point a new court date will be set and a judge will decide whether Lee Wells’ case should be dismissed or addressed with fines or other penalties, which could include jail and a criminal record.

“I don’t understand why I would be arrested for being poor,” she told ProPublica through tears in early September. Lee Wells got a new job at a casino in Montana but was furloughed on Oct. 5 as the pandemic spiked in her town of 10,000.

Graham, who took the bench in 2019, said he treated criminal eviction cases like any other based on a valid statute. “I swore to enforce the law,” he said, “and that’s one of our laws.”

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