ACLU sues to strike down state’s rent criminal prosecution

LITTLE ROCK — The American Civil Liberties Union of Arkansas is challenging the legality of the state’s 119-year-old criminal eviction law — the only statute of its kind in the country allowing courts to punish tenants with indetermine fines for not paying rent.

Joined by the Bowen Law School Legal Clinic, the Center for Arkansas Legal Services and Legal Aid of Arkansas, the ACLU filed suit Monday, calling on U.S. District Judge Brian Miller to strike down Arkansas Code 18-16-101.

The law, passed in 1901, makes it a misdemeanor for tenants who owe rent to stay on leased property after being given written notice to vacate. Arkansas is the only state criminalizing evictions, subjecting renters to daily fines of up to $25 that can go on indefinitely.

Under Arkansas law, a tenant who’s one day late on rent can be ordered to vacate within 10 days. Each day the renter remains on the property after is considered a separate criminal offense under the law.

The fines go to the government, leaving open the possibility the landlord could take civil action against the tenant on top of the criminal punishments, according to the lawsuit.

“Arkansas is the only state where being late on the rent can result in a criminal prosecution — purely on the basis of a landlord’s say-so,” said Holly Dickson, ACLU of Arkansas interim executive director and legal director. “This law allows landlords to use the criminal process to get the upper hand in a matter for civil court, and it disproportionately impacts black and brown communities who already suffer from over-policing and systemic discrimination in housing, health care, and employment.”

Eviction is considered a civil matter in every other state. The U.S. Department of Housing and Urban Development bars HUD-funded rental operators from using the law against tenants.

The criminal-eviction law violates constitutional due-process protections because tenants who stay past the 10-day notice period don’t know how many charges they will ultimately face nor do they have any way of contesting additional convictions coming from delays in the legal process, the suit states.

The law is also unconstitutional because it mandates a finding of guilt for renters who remain on-property, depriving them of the right to a trial by jury to determine guilt or innocence, according to the suit.

The ACLU is acting on behalf of Edrin Allen, 36, of McGehee, a former factory worker who has been unemployed and unable to pay his $400 monthly rent since losing his job in April. Hampered by the covid-19 pandemic, Allen hasn’t been able to find work and has been denied unemployment, the lawsuit states.

Sheriff’s Office deputies have come to Allen’s East Pecan Street home three times this month to order him off the property or face arrest and forcible removal, most recently Friday when he was told to leave by Sunday.

Allen remains in the home and has no way to leave, according to the suit, which states “prosecution is likely imminent.”

The ACLU is asking Miller to issue a temporary restraining order to keep Allen from being removed from his home until a trial can be held on the constitutionality of the statute.

The defendants, sued only in their official capacities, are Gibbs Ferguson, city attorney for McGehee; Desha County

Sheriff Larry Allen and Sarah Farrar-Phillips, chief clerk of the 27th State District Court in McGehee.

Five years ago, Circuit Judge Herb Wright struck down an earlier version of the law in a ruling prohibiting authorities from invoking the law in the 6th Judicial Circuit of Perry and Pulaski counties. He ruled the criminal-eviction status to be an unconstitutional infringement on the rights to trial and equal protection as well as a violation of laws that bar debtors’ prisons and cruel and unusual punishment.

The challenge to the statute came before him in 2014 through a joint effort of the ACLU, Legal Aid of Arkansas and the Center for Arkansas Legal Services.