November 27, 2020; ProPublica
“At this festive season of the year, Mr. Scrooge…it is more than usually desirable that we should make some slight provision for the Poor and destitute, who suffer greatly at the present time. Many thousands are in want of common necessaries; hundreds of thousands are in want of common comforts, sir.”
“Are there no prisons?”
“Plenty of prisons…”
“Those who are badly off must go there.”
—Charles Dickens, A Christmas Carol, 1843
“I don’t want to label anyone a criminal by no means. But, you know, we need a good way to evict people.”
—Terry Schug, Greene County Landlord Association President, ProPublica
In 2020, Ebenezer Scrooge’s cruel indifference to the suffering of others—endorsing prison time and even death as suitable outcomes for the poor, especially during the holiday season—seems so extreme to be almost exaggerated. But 177 years after Dickens published his novella, we are in the midst of an ever-worsening pandemic that has significantly heightened economic insecurity in the US, creating the potential for a looming eviction crisis that could mean millions on the streets. Thus, if there ever were a time in which “hundreds of thousands are in want of common comforts” during the holiday season, it is now.
The National Low Income Housing Coalition recently estimated that “as many as 19 million people in 6.7 million households are at risk of being evicted when the calendar flips to 2021.” We stand, waiting with bated breath, like Dickens’s two men collecting for the poor, to see if Congress will act in the remaining 22 days of the year to enable the millions who are suffering to stay in their homes.
In 49 states, failure to pay rent is considered a civil case filed by landlords, rather than a criminal charge. But in Arkansas, people who cannot make their rental payments, even now, during the worst surge of the pandemic, could face jail time. Arkansas is the only state in which landlords are able to file criminal charges against renters, officially called “failure to pay rent, failure to vacate.” If renters are just one day overdue on payments, they forfeit their right to be in the property, and if they don’t leave within 10 days, they could be charged with a misdemeanor and are subject to fines for each day they remain. Evictions can quickly become criminal charges, then warrants for arrests, then served jail time—an “are there no prisons” outcome that pre-transformed Scrooge could surely get behind.
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An Arkansas Deputy Prosecutor, Josh Drake, was recently fired for calling this 119-year-old law “cruel” and “unconstitutional.” Drake was interviewed for an October story in ProPublica that detailed the Arkansas law and its history. According to Drake, the Arkansas Prosecuting Attorney Michelle Lawrence “called him into her office the day after ProPublica’s story ran and said she was firing him because his remarks drew media and statewide attention to her office.” When approached by ProPublica, Lawrence declined commenting on Drake’s firing.
Drake had never criticized the law until his interview for the October story, but even after his firing, he told ProPublica, “I stand by what I said. I still feel the same way…It’s one of those things that I’ve always been ashamed of, but I’ve never been in a situation where I could do anything about it.”
Now, he said, “I can at least call more attention to it.”
The Arkansas law originated in 1901 when Sen. Jacob King introduced the idea of criminalizing people who could not pay their rent, breaking with longstanding legal tradition that designated evictions as a civil matter and had done so for hundreds of years. Despite criticism from some of his colleagues who saw the implications of the proposed law, King, originally from North Carolina and a member of the Confederate army, argued the law would only constitute a fine and not actual jail time. But, as noted by his fellow senator, Sen. Robert Lawrence, “we all know what is done to a poor man in this state who cannot pay his fine…he is sent to jail and compelled to work it out.” The bill passed 14–13 and has continued to withstand numerous challenges in the many years since its passing. In 2001, Arkansas Governor Mike Huckabee signed a tougher version of the law, but in the years that followed, more and more challenges and criticisms led the Greene County Landlord Association in 2017 to work with Sen. Blake Johnson to return the law to its earlier pre-2001, less punitive version which had survived two constitutional challenges in the Arkansas Supreme Court.
Apparently, many landlords and elected officials have believed just what King himself had argued—“that no one charged under it ends up arrested or in jail.” This is categorically false, as Arkansas’s criminal database attests. As pointed out by ProPublica, “It helps that many state legislators are themselves landlords. Filing for criminal eviction is cheaper [for the landlords] than using civil courts.”
Arkansas State Senator Jimmy Hickey, the incoming state senate leader, initially argued that there was really no substantial difference in tenants getting jail time for a civil eviction as for a criminal one. But ProPublica uncovered that no one actually faced jail time or failure to appear charges in the more than 26,000 civil eviction cases in Arkansas, as they regularly do for criminal eviction cases.
According to ProPublica, more than 1,000 cases have been filed in the past two years under this current version of the law, at least 37 renters have been sentenced to jail, and the majority of those evicted have been women, Black, and poor, and are now “saddled with a permanent criminal record, making it harder to find a new place to live or a job.” ProPublica reports that between mid-March and mid-September, women made up more than 65 percent “of the tenants with criminal eviction filings against them.”
Sociologist Matthew Desmond, the founder of Princeton University’s Eviction Lab, which tracks eviction in 47 states, claims that landlords tend to discriminate against renters who have children, and as we know, women continue to be economically disadvantaged compared to men, as they statistically earn less in wages, and Black women in Arkansas earn 65 cents for every dollar that white men earn. The COVID-19 pandemic has notably had a much greater economic impact on women than men, as reported multiple times in NPQ this year.
Just since the start of the pandemic in mid-March, more than 200 failure to vacate cases have been filed across Arkansas, and as noted by ProPublica, “at least seven women were detained or sentenced to jail for not appearing in court.” Jocelyn Mailly, 66, fearing the very real possibility that she could be one of those sent to jail, went to her court hearing in August, even though she had a fever and was most likely positive for the coronavirus at the time. Mailly had fallen behind on her monthly mobile home rent in June and now lives in a tent on her property. Despite the Centers for Disease Control and Prevention issuing a national moratorium on evictions in September to mitigate the spread of the virus and keep people in their homes, 24 new failure to vacate criminal cases were still filed in Arkansas. In the words of Amber Lee Wells, an Arkansas woman and mother facing possible jail time and criminal charges after losing her job at the start of the pandemic and being unable to pay her rent and eventually moving to Montana to take care of her ailing father, who is suffering from an aggressive form of cancer, “I don’t understand why I would be arrested for being poor.”
Being arrested for being poor is precisely the case for many in Arkansas this holiday season, as COVID-19 is rising dramatically across the state and thus further impacting the local economy and the ability of many to find jobs or even work. There is hope the law can be repealed in the next session of the Arkansas state legislature. As Drake told ProPublica, “Like I hoped from the first time I stepped foot in the state and learned about the law, I hope that the legislature will repeal it.” It’s past time for Arkansas legislators to step up and do what they should have done in 1901 when King brought the bill to the senate floor in the first place: repudiate this despicable law that criminalizes someone for being poor.—Beth Couch