Tuesday, January 20, 2015

Judge invalidates state's criminal eviction statute

Posted By on Tue, Jan 20, 2015 at 4:27 PM

Pulaski Circuit Judge Herb Wright today found that the state's criminal eviction statute violates the U.S. Constitution's prohibition of cruel and unusual punishment.

Arkansas is the only state that has a criminal as well as civil eviction statute. It is among the worst states in affording few protections to tenants, but plenty to landlords.

David Koon wrote last week about this lawsuit and the effort to invalidate  the criminal statute, which allows eviction on being as little as one day late on a rent payment. The article noted:

In Arkansas, if a tenant seeks to contest the charges and plead not guilty, the current law — Arkansas Code annotated 18-16-101 — requires the tenant to deposit the entire amount of rent he or she allegedly owes with the registry of the court, which will hold the funds until the case is decided. If the tenant is found guilty of the misdemeanor, he or she will forfeit the money placed with the court to the landlord, and will be liable for $25 per day for every day he or she stayed in the residence after being served with the eviction notice. If the tenant does not place the alleged back rent with the registry of the court and is eventually found guilty of the nonpayment of rent and failure to vacate, then the law says the renter is guilty of a more serious Class B misdemeanor, punishable by a $1,000 fine and 90 days in jail.

Wright said Arkansas's singular position with a criminal statute supported the argument that the punishment was unusual. 

The judge noted a commission had unanimously recommended repeal of the law. The legislature resisted, at the instigation of the real estate lobby. If the requirement of remitting money to the registry was a violation of due process alone, the judge said he could invalidate that and try the defendant on a misdemeanor charge without forcing compliance with that part of the law. But the judge said any application of the law was unconstitutional under the ban on debtor's prisons. The one of a kind law is, on its face, unconstitutional, he said.

He dismissed the case brought against Artorio Smith for failure to vacate in 10 days after the landlord, Primo Novero, declared Smith failed to make rent payment. The state, in response, noted a lack of Arkansas Supreme Court guidance on the current statute and the potential for unconstitutional treatment of defendants based on differing abilities to pay. Central Arkansas Legal Services has represented Smith in the case.

A similar case was filed in Washington County and decided differently. A state appeal would settle the question. I've asked the attorney general if it plans, as is customary, to continue to defend the state statute until a final ruling. Judd Deere, spokesman for the office, replied:

"A decision as to whether the state files an appeal will be made once the Attorney General's office has thoroughly reviewed the decision of the circuit court and discussed the case with the local prosecutor."

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