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The Purpose of Criminal Evictions: Applying the Theories of Punishment to Arkansas’ Criminal Eviction Statute

By · May 8, 2018 · 2018 Ark. L. Notes 1993
In categories: Property Law, Real Estate Law


Eviction is a useful tool for both landlords and the general public. However, every eviction story also involves a tenant. Consider the following situations:

  1. Somewhere in rural Arkansas, a pair of farmers have been disputing the ownership and rental payments for a tract of land for ten months. Tired of the dispute, the true owner used their right as a landlord to post an eviction notice. When the tenant found the eviction notice, he notified his attorney who immediately wrote a letter to the landlord. Having taken what he thought were the proper legal steps, the current tenant left town for the weekend. When he returned home, the tenant found his house ransacked, 100 items had been removed from the premises, and his five dogs had been shot.[1]
  2. An elderly couple owned property they lived on. They proceeded to transfer ownership of their property to their daughter, but continued to live on the property. Several months later, the elderly couple moved off the property. They entered into a written lease agreement with a man; the lease required the man to take care of the property in lieu of monetary rent. When the daughter learned about the lease agreement, she went to the property and demanded that the current tenant leave. The tenant refused to leave, because he did not believe that the daughter was the true owner, and therefore his lease agreement with the parents was valid.[2]

All evictions force a tenant to relocate; now imagine an eviction process[3] that compounds relocation with possible fines and imprisonment for ninety days. In Arkansas, if a tenant is evicted, they must either leave within ten days, or challenge the eviction in court. However, in order to challenge the eviction, the tenant must deposit the alleged rent owed into the court registry. Failure to make this deposit is a jailable offense.  Not only does the possibility of imprisonment exist,[4] the courts have sentenced a tenant to imprisonment during a criminal eviction.[5]

A tenant can be evicted for any violation of the rental agreement.[6] The most common violation and reason for an eviction is the tenant’s failure to pay rent.[7] Because this violation is the most common reason for eviction, this note will be focusing specifically on the eviction of tenants who failed to pay rent.

Evictions are an ugly, yet, necessary judicial mechanism. Society has recognized the need for an efficient and safe process that allows landlords to reclaim their property and any money owed to them when a tenant refuses to leave after the end of a lease, or fails to pay rent while occupying the leased property. A civil eviction proceeding is the judicial mechanism that fulfills this need. In every state, a landlord can sue a tenant to reclaim their property and receive a judgment for unpaid rent and/or damages to the property.[8] Arkansas is different; in addition to a civil eviction proceeding, landlords may utilize the criminal justice system resulting in a criminal eviction.[9] For landlords, a criminal eviction provides the same restitution as a civil eviction.[10]  The biggest difference between the eviction procedures is felt by the tenants, in addition to the liabilities incurred in a civil eviction, a criminal eviction further punishes the tenant, because it carries the possibility of fines and imprisonment.[11]

Civil courts allow private parties to seek compensation for individual transgressions;[12] in contrast, the criminal justice system is designed to protect the interests of society as a whole.[13] Because the criminal justice system serves society, it has access to punishments that are not available in civil courts. These heightened punishments come with additional responsibility—the punishment must serve a purpose. Arkansas, like most[14] other jurisdictions, has codified the purposes of sentencing.[15]

While two scholars: Professor Lynn Foster[16] and Professor Carol Goforth,[17] have argued that criminal eviction is unconstitutional and should be repealed, no article or publication has considered whether the additional punishments resulting from a criminal eviction are justifiable under Arkansas’ purposes of sentencing. This article argues that the additional punishments resulting from a criminal eviction conflict with Arkansas’ purposes of sentencing. Additionally, this conflict provides the basis for a judicial challenge to Arkansas’ criminal eviction statute.

This article proceeds in five Parts. Part I details the criminal eviction statute as codified by the Arkansas legislature, and focuses particularly on the criminal penalties that may be imposed upon tenants. Part II examines the theories of punishment that support Arkansas’ purposes of sentencing. Part III applies the purposes of sentencing to the penalties for eviction. Part IV explores conflicts between the purposes of sentencing and the penalties for eviction. Part V illustrates how a judicial challenge to Arkansas’ criminal eviction statute could succeed.

I. Criminal Eviction in Arkansas[18]

The criminal eviction process, between 2001 and 2017,[19] had two parts. First, the landlord gives the tenant a written notice to vacate the property.[20] The tenant has ten days to comply with the notice, and failure to vacate within those ten days is a misdemeanor.[21] The punishment for failure to vacate is a fine of $25.00 per day, for each day the tenant remains on the property.[22]

Alternatively, if a tenant wishes to enter a plea of not guilty, they are required to deposit into the registry of the court an amount equal to the alleged rent due.[23] If the tenant is found guilty, the rental payment paid into the registry of the court will be paid over to the landlord.[24] Any tenant who is found guilty and failed to make the required deposits into the registry of the court is guilty of a Class B misdemeanor.[25]

Prior to the 2001 update, Arkansas allowed for variable fines, between $1.00 and $25.00, for each day that the tenant remained on the property.[26] The entire section requiring tenants to deposit the alleged rent due into the registry of the court was also added in 2001. Senate Bill 25 will repeal the 2001 update and in-effect return Arkansas’ criminal eviction statute to its 1937 form.[27] While imprisonment does not appear to be possible under the new statute, it is impossible to determine what secondary effects may occur as a result of Senate Bill 25.[28]

A. The Root Harm & Justifying the Statute[29]

The first harm recognized by Arkansas’ legislature is that tenants are denying landlords the rent owed to them. This failure to pay rent is an economic harm being inflicted upon the landlord. A common example of how this kind of claim would be treated in a civil action is a suit involving a breach of contract.  The proper remedy for a breach of contract is expectation damages.[30] Expectation damages force the defendant to put the plaintiff in the monetary position they would have been in had the contract been completed.[31] The expectation damages resulting from a tenant’s failure to pay rent would be the rent owed to the landlord.

The second harm recognized by Arkansas’ legislature is that tenants are remaining on the landlords’ property after being ordered to leave. This failure to vacate is a physical harm being inflicted upon the landlord through the impairment of real property. A civil lawsuit seeking redress for this kind of injury might involve a claim for trespass to land.  The proper remedy for a trespass to lands is an injunction.[32] An injunction is a court order commanding or preventing an action.[33] An injunction resulting from a tenant’s failure to vacate would be a court order commanding the tenant to vacate the property.

The third harm recognized by Arkansas’ legislature is that defendants[34] are failing to deposit into the registry of the court.[35] This failure to deposit is an economic harm being inflicted upon the State. A common example of this harm is a failure to pay court fees. When an individual fails to pay their court fees a sheriff or officer will levy the fee bill upon the goods and chattels, of the individual who failed to pay, and expose the goods and chattels for sale.[36] The civil remedy for a failure to deposit would be a sale of the tenant’s personal property on the court house steps.

One thing all these harms have in common is that proper remedy for them is available through civil proceedings. The question still remains: what is the root harm of Arkansas’ criminal eviction statute? The failure to deposit can only occur if there is a failure to vacate. In the context of this note a failure to vacate can only occur after a failure to pay rent. The root of all the harms criminalized by the Arkansas legislature is the failure to pay rent.

B. The Possibility of Imprisonment Under the 2001 Statue

Pre-2001, Arkansas’ criminal eviction statute listed failure to vacate as an unspecified misdemeanor, but the only penalty it listed for failure to vacate, was a fine of $1.00 -$25.00 for each continuing day in violation.[37] In the 1989 case of Duhon v. State, the Supreme Court of Arkansas ruled that imprisonment was not an applicable punishment for criminal eviction.[38] The justification for their reasoning was Ark. Code Ann. §5-1-108(b), which states:

Regardless of any designation appearing in the statute defining an offense, an offense is a violation for purposes of this code if the statute defining the offense provides that no sentence other than a fine, or fine or forfeiture, or civil penalty is authorized upon conviction.[39]

The Supreme Court of Arkansas concluded that a criminal eviction was a violation not a misdemeanor, therefore, the only applicable penalty was the listed fine.[40]

In 2001, Arkansas updated the criminal eviction statute. Duhon v. Statedoes not fully apply to the 2001 version of the statute. When the Arkansas legislature added a new requirement to the statute, that a tenant is required to deposit the alleged rent due into the registry of the court, the offense listed for failure to deposit is a Class B misdemeanor. The statute used by the Supreme Court of Arkansas in Duhon, is not applicable because the statute does not list “a fine, or fine or forfeiture, or civil penalty” to be applied upon failure to pay.[41] However, a defendant convicted of a Class B misdemeanor may be imprisoned for up to ninety days.[42]

II. Theories of Punishment

Why does a state’s legislature choose to criminalize certain conduct? The answer to that question can be found in the theories of punishment. The punishment and the purpose behind it can vary depending on the severity of the crime committed, the person who committed the crime, and the administrator of the punishment. Because circumstances differ, Arkansas has codified five possible purposes of punishment:[43]

  • 1) To assist the offender toward rehabilitation and restoration to the community as a lawful citizen.[44]
  • 2) To deter criminal behavior and foster respect for the law.[45]
  • 3) To protect the public by restraining offenders.[46]
  • 4) To punish an offender commensurate with the nature and extent of the harm caused by the offense.[47]
  • 5) To provide restitution or restoration to victims of crime to the extent possible and appropriate.[48]

Each of these theories is supported by a range of justifications, both theoretical and practical.

A. Rehabilitation

The rehabilitation of criminal offenders is a primary goal of common law countries such as Canada, England, Wales, Australia, and New Zealand.[49] Up until the 1970’s, rehabilitation was a primary goal of the United States as well.[50] A punishment given for the purpose of rehabilitation aims to fix the behavior and attitude of criminals to make them lawful citizens again.[51] Rehabilitation is unique from the other purposes of punishment because, its goal is to help the offender. The uniqueness of rehabilitation is reflected in the many possible sentences including drug treatment programs[52] and special conditions tailored to the offender.[53]  Here, the behavior needing to be fixed is the failure to pay rent.

B. Deterrence

A punishment given for the purpose of deterrence aims to prevent future crime by using the fear of imprisonment and social condemnation to persuade the public to obey the law.[54] There are two types of deterrence: general deterrence, which focuses on preventing the public from committing a crime in the first place; and specific deterrence, which focuses on preventing recidivism, by a particular defendant.[55]

A punishment with the goal of general deterrence is normally a long imprisonment[56] that is meant to send a message.[57] The effectiveness of general deterrence depends on how many members of the public receive the message.[58] Here, the message being sent to the community should persuade tenants to pay their rent.

A punishment with the goal of specific deterrence can be a long imprisonment[59] intended to restrain the offender so that he cannot commit the crime again.[60] Alternatively, scholars argue that specific deterrence is best achieved with more lenient punishments.[61] Research has shown that harsher penalties correlate to increased rates of recidivism.[62] Here, the punishment should be one that persuades offenders to pay their rent in the future.

C. Incapacitation

The incapacitation of criminal offenders is the primary goal of the criminal justice system in the United States.[63] A punishment given for the purpose of incapacitation aims to prevent recidivism by incarcerating the criminal until they are unable to commit the crime again.[64] Incapacitation is different from specific deterrence, because incapacitation focuses on the offender’s ability, rather than the offender’s desire to recidivate.[65] If a defendant is considered a danger to the public, the theory of incapacitation can be used to imprison the defendant longer than would be otherwise appropriate.[66] However, punishment for the purpose of incapacitation is not appropriate in all cases.[67] If a defendant is unable to recidivate, then the goal of incapacitation is accomplished without the need for punishment.[68]

Here, the punishment should be such that it renders the offender unable to deny their landlords rent in the future. The punishment could be framed as one that guarantees a previously convicted tenant will pay rent, assuming, the offender has returned to their role as a tenant.

D. Retribution

Retribution is sometimes referred to as the theory of just deserts. The idea is that criminals are blameworthy and therefore deserve to be punished in a way that is equivalent to their wrongdoing.[69] Unlike other theories of punishment, retribution does not concern itself with what is best for society.[70] Because retribution is crime specific, there is no standard punishment. Capital punishment is the most glaring example of a retributivist punishment. Alternatively, courts have used the notion of proportionality to shorten defendant’s sentences.[71] Here, the punishment inflicted on the offender should be equal to the harm caused by the offender’s failure to pay rent.

E. Restitution

Unlike the other theories of punishment, restitution does not focus on the offender, rather, its focus on the financial injury suffered by the victim.[72] The purpose of restitution is to make the victim whole again.[73] Restitution is one of the oldest theories of punishment; before the development of civil law, criminal restitution permitted a victim to collect monetary compensation from the offender.[74] As the concept of separate civil and criminal law emerged, the use of criminal restitution declined, but it remains an available punishment.[75] Criminal restitution is very similar to restitution ordered in contract and tort disputes.[76] The amount of restitution ordered is a factual question that depends on the amount of loss suffered by the victim.[77] Restitution for a criminal eviction must return the property to the landlord and compensate the landlord for the time they did not have control over the property. The award must also compensate the landlord for any damage to the property that occurred while the tenant was in unlawful possession of the premises.

III. Relating the Criminal Penalties to the Theories of Punishment

All eviction stories have the same beginning—a tenant materially breaches their lease, and this breach is often caused by the tenant’s failure to pay rent. As these stories unfold and the unique facts of each case are presented, it becomes self-evident that no one ending would be suitable for every tale. While no blanket punishment exists for evictions, two punishments are unique to criminal eviction proceedings: fines and imprisonment.[78] In order to justify the use of these punishments, the punishment must further one of the purposes of punishment in an effective and efficient manner.[79] A punishment is effective if it achieves its desired purpose.[80] If multiple punishments are effective then the punishment with the lowest social cost[81] is efficient.[82]

Are either of the additional punishments likely to be effective under one of the theories of punishment? If so, is the additional punishment efficient?

A. Fines

1. Using Fines to Rehabilitate Nonpaying Tenants

A criminal eviction can result in a twenty-five dollar per day fine being levied against the defendant.[83] Fining an offender with the purpose of teaching them to pay rent seems like a plausible method of behavioral correction. If a hypothetical offender could pay rent, but failed to pay for whatever reason, the fine could teach the offender that it is cheaper to pay rent on time. However, if a hypothetical offender failed to pay rent because they did not have the money to pay rent, a fine would hurt the offender, rather than helping them.

If the goal of rehabilitation is to help the offender, and the offender failed to pay rent, the ideal punishment would seem to be one that helps the offender pay rent.  Facially, helping a criminal pay rent sounds like an unorthodox punishment, if a punishment at all. Luckily, Congress has provided some suggestions for such unorthodox punishments.[84] Congress noted that sanctions could be conditioned upon participation in educational programs or vocational training.[85] In fact, these programs have already been found to be effective rehabilitative methods.[86] Providing employment and job training for offenders in the community reduces recidivism by 4.3%.[87]

Instead of fining all defendants, for those who are unable to pay rent, courts could order the defendants to participate in classes on budgeting and financial planning, or vocational training. These alternative solutions place the defendant in a position to better themselves financially, which in turn help the defendant pay their rent.

2. Using Fines to Encourage the Payment of Rent

In a general sense, any fine could act as an encouragement because it is a punishment for a wrongdoing. In a simple world, the greater the punishment, the greater the deterrence it would provide.[88] A criminal eviction carries a relatively small fine of up to twenty-five dollars per day. However, individuals with limited monetary resources will likely find a small fine to be a significant punishment, and therefore a powerful deterrent.[89] Tenants facing eviction can be broken into two categories: tenants who can afford to pay their rent, and tenants who cannot. Tenants who can afford to pay their rent are not encouraged to do so by a small fine. For tenants who cannot pay their rent, monetary punishment can be an effective deterrent.

Tenants may also receive a monetary sanction aside from rent and damages in a civil eviction.[90] During a civil eviction proceeding, courts can order tenants to pay their landlord’s attorney costs.[91] Assuming the tenant is impoverished and monetary damages are an effective deterrent, is the social cost lower for civil or criminal evictions?

Both civil and criminal evictions infringe upon a tenant’s liberty by removing the tenant from their home and by placing the tenant in debt to their previous landlord. A criminal proceeding also carries the risk of a criminal conviction. A criminal conviction can permanently infringe upon an individual’s liberty because of the negative stigma associated with it.[92]

Additionally, in a civil eviction proceeding the landlord is the plaintiff and therefore bears the court cost of initiating the proceeding. Conversely, a landlord is a victim in a criminal eviction proceeding and the court costs are paid by the State.

3. Using Fines to Incapacitate Nonpaying Tenants

Facially, the use of a fine as an incapacitating punishment seems improbable if not impossible. The ability for a fine to incapacitate an offender would depend on the offense committed.[93] It is possible that an offender needed a large sum of money in order to commence with their criminal endeavors. In this scenario, a fine could possibly incapacitate the offender because it would render them unable to commit the crime again. A criminal eviction does not fall under this scenario.

B. Imprisonment

Using Jail to Rehabilitate Nonpaying Tenants

In Tapia, the Supreme Court considered whether the Sentencing Reform Act[94] prevented courts from incarcerating defendants for the purposes of rehabilitation.[95] The SRA specifically states, “that imprisonment is not an appropriate means of promoting correction and rehabilitation.”[96] The legislative history for the SRA reveals that Congress believed the purposes of rehabilitation were best achieved outside the prison setting.[97] The Court held that rehabilitation should not be a factor considered when a defendant is sentenced to incarceration.[98]

State courts in Arkansas are not bound by Tapia’sdecision. However, Arkansas has codified appropriate uses of sentencing sanctions.[99] Arkansas mandates that “[r]estrictions on an offender’s liberty should only be as restrictive as necessary to fulfill the purposes of sentencing.”[100] If Arkansas disagreed with Tapia and found that incarceration is an effective method of rehabilitating nonpaying tenants, a court would then have to determine which of the available punishments places the least amount of restrictions on the offender’s liberty. The alternative solutions mentioned previously, educational programs and vocational training, both infringe an offender’s liberty because they require the offender to go school every week or every day. However, incarceration places a much greater restriction on the offender’s liberty because it does not allow the offender to leave prison until their term is up. Additionally, the economic cost of imposing the alternative solutions is cheaper than incarceration.[101] Providing employment and job training in the community has a cost benefit of $4,359 per offender.[102]

2. Using Jail to Encourage the Payment of Rent

Incarceration provides an effective deterrent for many reasons, the most obvious being that the goal of deterrence is to “prevent future crime by using the fear of imprisonment.” A flaw in the theory of deterrence is that it can only be applied to those crimes that are preventable.[103] If the sole purpose of punishment was deterrence and a crime occurred that could not have been deterred, then a punishment would be ineffective because it would serve no purpose.[104] Here, a punishment of imprisonment is only effective if the fear of ninety days in jail[105] is what persuades tenants to pay their rent.

“[A]s every housewife knows, the first check you write is for the mortgage.”[106] The best motivation tenants have for paying their rent does not come from fear of imprisonment or societal condemnation, its source is the basic human need for shelter. For a tenant, an eviction does not represent a move from one apartment to another, an eviction represents the possibility of moving from shelter to the streets.[107] Homelessness has been called “one of the single greatest threats to the physical and mental well-being” of an individual.[108] The most effective deterrent for a tenant not to pay rent is not the fear of calling jail home for ninety days, it is the fear of having nowhere to call home.

3. Using Jail to Incapacitate Nonpaying Tenants

Imprisonment by definition achieves some incapacitation by impairing the offender’s access to the general public.[109] Incapacitation by imprisonment is imperfect, because it is only effective for the duration of the imprisonment.[110] Imprisonment that occurs from a criminal eviction has a maximum duration of ninety-days. In order for imprisonment to be effective under the theory of incapacitation, an offender must be unable to recidivate after a ninety-day incarceration. The question presented here is, whether after a ninety-day imprisonment a tenant has the ability to pay rent to all their future landlords?

The answer is obviously no; but it is worth noting that while imprisonment itself won’t aid tenants in paying their rent, rehabilitative programs are available in prisons that could help tenants pay their rent.[111] The rehabilitative solutions mentioned earlier in this note could be made available to offender’s who are imprisoned, just as they could be made available to offender’s who are not incarcerated. While the Supreme Court has held that rehabilitation cannot be considered when determining whether or not to incarcerate; it has also held that once the decision to incarcerate an offender has been made, the court should consider the rehabilitation of the offender.[112]

IV. Conflicts Between the Criminal Penalties and the Theories of Punishment

Whether a punishment is effective and efficient is only relevant if the punishment is permissible. Sometimes a court or legislature has already made a determination about using a particular punishment to further a theory of punishment. This may seem obvious, because this note briefly covered one of these conflicts earlier.[113] In Tapia, the United States Supreme Court determined that incapacitation conflicted with the purpose of federal rehabilitation.

A. Fines Conflict With the Purpose of Retribution

The harm caused by failure to pay rent is financial; civil evictions rectify this harm by forcing the tenant to pay the disputed rent, the interest accumulated on that rent, and any damages the tenant has caused to the property.[114] At the conclusion of a civil eviction, a landlord will be awarded the property and the money they were entitled too.[115] One remedy that landlords are not entitled to through a civil eviction is punitive damages.[116] The purpose of punitive damages is to punish the unlawful conduct of a defendant at a civil trial.[117]

A fine is the criminal proceeding version of punitive damages. The purpose of a fine is a monetary sanction intended to punish the offender for a violation of a law.[118] Unlike punitive damages, which are awarded to the plaintiff in a civil trial, a fine is paid into the coffers of the State.[119] Further proof that fines are the criminal equivalent to punitive damages can be found in the Supreme Court’s comparison of the two when determining the reasonableness of punitive damages.[120] The reasonableness of punitive damages, and by extension, fines is “the degree of reprehensibility of the defendant’s conduct.”[121] Additionally, Justice O’Connor has called for “substantial deference to legislative judgments concerning appropriate sanctions for the conduct at issue.”[122]

The legislative judgments concerning the appropriateness of punitive monetary sanctions reveal no justification for a fine resulting from a criminal eviction. The criminal eviction statute, which judges punitive monetary sanctions as appropriate, was passed in 2001.[123] The civil eviction statute that does not allow punitive monetary sanctions was passed six years later in 2007.[124] The Arkansas legislature has passed a bill, which alters the criminal eviction statute, however, this alternation strikes the 2001 additions and returns the statute to its 1937 form.[125]

There are two ways to interpret the legislative judgments concerning the appropriateness of punitive monetary sanctions. The first, is that the Arkansas Legislature believes the punitive monetary sanctions to be inappropriate because the most recently written statute does not allow for them.[126] The second, is that the conflicting statutes imply the legislature has not come to a judgment on the appropriateness of punitive monetary sanctions. If the first interpretation were true, then the State of Arkansas would have deemed a fine to be an inappropriate punishment for an eviction. If the second interpretation were true, then a fine would be the offender’s just deserts if the failure to pay rent was reprehensible enough to justify the punishment.

Here, the defendants’ conduct is reprehensible; they have caused a monetary injury to their landlord. However, only “conduct that is outrageous, because of the defendant’s evil motive or [] reckless indifference to the rights of others” is reprehensible enough to award punitive damages.[127] The Arkansas Legislature has codified eleven different classifications for criminal punishments.[128] As crimes become more severe, and therefore more reprehensible the classification level rises too.[129] The failure to pay rent is a violation,[130] which is the category containing the least reprehensible crimes.[131]

B. Imprisonment Conflicts With the Purpose of Retribution

Arkansas’ Legislature has determined that if a court levies a fine against a defendant, the court may not simultaneously impose an alternative sentence or imprisonment in the event the fine is not paid.[132] Why then, does Arkansas’ criminal eviction statute impose a Class B misdemeanor on defendants who have failed to deposit? A failure to deposit and a failure to pay a fine may be different crimes, but they have the same criminal wrongdoing. In both cases, the defendant was supposed to pay the court money, and failed to do so.

C. Restitution Alone Does Not Justify Using the Criminal Justice System

It is hard to imagine a punishment that furthers all of Arkansas’ purposes of sentencing; therefore there is no such requirement.[133] Interestingly, there is no requirement for how many of the purposes must be furthered in order to justify the punishment.[134] The statute connects the five purposes with the word “and.”[135] This would imply that the legislature intended for all purposes to be furthered; which is not possible. Conversely, the legislature did not intend for the furtherance of a single purpose to justify a punishment. If the legislature had intended for a single purpose to justify using the criminal justice system, they would have used the connecting term “or,” to list the purposes. The legislature’s use of the word “and” instead of “or” cannot be written off as an oversight. The legislature used the word “or” when describing the purpose of retribution and when describing the purpose of restitution.

The federal criminal justice system has codified similar purposes of punishment.[136] In the federal system, the sentencing judge is required to consider all the purposes of punishment before imposing a sentence.[137] The ideal sentence should be “sufficient, but not greater than necessary to achieve the goals of sentencing.”[138] Similarly, the ideal sentence in Arkansas “should only be as restrictive as necessary to achieve to fulfill the purposes of sentencing.”[139]

A tenant is entitled to the same restitution in both a criminal and civil eviction, their property is returned to them and they receive a judgment for monetary damages. In order for restitution alone to justify using the criminal justice system, a criminal eviction must be less restrictive on a tenant than a civil eviction—the criminal proceeding must be efficient.

When comparing criminal and civil eviction proceedings, the difference in restitution is procedural rather than substantive.[140] What the statutes do not say, is that a victim is more likely to promptly receive civil restitution than criminal restitution.[141] This is because repayment of restitution is not possible until the offender has enough money to make payments. A criminal conviction carries the possibility of fines, which would divert the offender’s monetary resources; and imprisonment, which would prevent the offender from earning money. In cases where no fine or imprisonment occur, a criminal conviction can still make it difficult for offenders to find or maintain employment.[142]

V. The Possibility of a Judicial Challenge

In Arkansas, a criminal defendant may seek post-conviction relief from a sentence that is illegal or illegally imposed.[143] A sentence is any court ordered punishment imposed on a criminal defendant.[144] An illegal sentence refers to any punishment that the trial court lacks the authority to impose.[145] A trial court lacks authority to impose a punishment if the statute containing the punishment conflicts with another statute.[146] A conflict occurs when the punishment fails to achieve the purposes of sentencing.[147] When a sentence conflicts with a purpose of sentencing, it is vacated and remanded for resentencing.[148] In the case of a criminal eviction any sentence will conflict with the purposes of sentencing. Courts in Arkansas will be left to decide whether to uphold the conviction without a sentence, rendering the eviction useless. Alternatively, the court can vacate the conviction and direct the landlord to the civil court system.


This note has argued that when a tenant is evicted for failing to pay their rent, the eviction procedure used must be civil. Arkansas is the only state that allows landlords to use the criminal justice system to evict a non-paying tenant. This note has shown that in order for a defendant to be punished by the criminal justice system, that punishment must serve a purpose.

The purposes of rehabilitation, deterrence, and incapacitation are not furthered because fines and incarceration are either ineffective or inefficient methods. The purpose of retribution might be furthered by fines or incarceration, but it does not matter because the Arkansas Legislature has determined that these punishments cannot be considered in relation to a criminal eviction. The only remaining purpose that could justify using the criminal justice system for an eviction is restitution. Use of the criminal justice system may be justified, if a punishment only furthers one purpose of sentencing. However, restitution alone cannot justify the use of the criminal justice system, because the civil court system is always a more efficient method of collecting restitution.

The criminal eviction laws in Arkansas are changing, and it is unknown how non-paying tenants will be punished after these changes. However, it does not matter whether a criminal eviction results in a fine or an imprisonment, the sanction conflicts with the theories of criminal punishment.

Arkansas’ criminal eviction statute has been under criticism since the 1980’s.[149] One commentator has described Arkansas’ criminal eviction statute as “a relic of the 1900s”[150] and in 2013 an independent commission unanimously recommended the Arkansas legislature repeal the statute.[151] This note concludes that for all the controversy surrounding the law, the law itself serves no purpose.


[1] Schmidt v. Stearman, 374 S.W. 254 (Ark. App. 2010).

[2] Polk v. State, 772 S.W.2d 368 (Ark. App. 1989).

[3] For ease of reference this Note will refer to this process as a criminal eviction. Seediscussion infraPart I.

[4] Seediscussion infraPart I.B.

[5] Duhon v. State, 774 S.W.2d 830 (Ark. 1989).

[6] Lucas Hall, Top 5 Legal Reasons to Evict a Tenant, Landlordology, Mar. 22, 2017

[7] Id.

[8] See Carol R. Goforth, Arkansas Code §18-16-101: A Challenge to the Constitutionality and Desirability of Arkansas’ Criminal Eviction Statute, 2003 Ark. L. Notes21, 22 (2003).

[9] See id.

[10] Seediscussion infra Part IV.B.

[11] For ease of reference this Note will refer to the possibility of fines and imprisonment as the additional punishments.

[12] See1 Stuart M. Speiser et al., American Law of Torts§ 1:3 (Monique C. M. Leahy ed., 2016) (“The fundamental policy purposes of the tort compensation system are compensation of innocent parties.”).

[13] SeeModel Penal Code § 1.02 (Am. Law Inst. 1962) (The fundamental purpose of the criminal justice system is “to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests.”).

[14] SeeNat’l Ctr. for St. Courts, State Sentencing Guidelines(2008),

[15] Seediscussion infraPart II.

[16] See generally, Lynn Foster, The Hands of the State: The Failure to Vacate State and Residential Tenants’ Rights in Arkansas, 36 U. Ark. Little Rock L. Rev.1 (2013)

[17] See generally, Goforth,supranote 8.

[18] The legislature amended the statute in 1937, and again in 2001. 1937 Ark. Acts 129, 2001 Ark Acts 1733 (Ark. Code Ann. § 18-16-101 (2001)) (Criminal eviction was first codified in Arkansas in 1901; a new amendment, Senate Bill 25, was introduced on January, 9 2017 and adopted on February 14, 2017. 2017 Ark. Acts 159).

[19] Senate Bill 25 will become effective law on August, 1 2017. The 91stGeneral Assembly of the Arkansas State Legislature convened on January 9, 2017. SeeArk. Code Ann. § 10-2-101 (2015). A session generally lasts sixty days unless the legislature votes to extend the duration. SeeAR. Const. art. 5, § 17. Laws passed during the regular session become effective ninety days after the session ends. SeeArkansas House of Representatives, visit Mar. 4, 2017). March 10this sixty days after January 9thand June 8this ninety days after March 10th.

[20] Ark. Code Ann. § 18-16-101 (2001).

[21] Id. This offense is actually a violation. See Ark. Code. Ann. § 5-1-108 (1975) (“Regardless of any designation appearing in the statute defining an offense, an offense is a violation for purposes of the Arkansas Criminal Code if the statute defining the offense provides that no sentence other than a fine, fine or forfeiture, or civil penalty is authorized upon conviction.”). The only sentence provided in the statute defining the offense is a fine.

[22] Ark. Code Ann. § 18-16-101 (2001).

[23] Id.

[24] Id.

[25] Id.

[26] 2001 Ark. Acts 1733.

[27] 2017 Ark. Acts 159. The substance of the act is the same as the 1937 law. The individual clauses are now separated, rather than being compiled in one paragraph.

[28] In the past courts have used loopholes to imprison tenants, even though the criminal eviction statute did not allow for imprisonment. SeeGoforth supra, note 8 at 31 (a tenant was sentenced to 160 days in jail because the tenant did not immediately pay the court ordered restitution) (this particular loophole has since been closed).

[29] “[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” John Stuart Mill, On Liberty(1859).

[30] See Waste Corp. of America, Inc. v. Genesis Ins. Co., 382 F.Supp.2d 1349, 1362 (S.D. Fla. 2005).

[31] See, Restatement (Second) of Contracts: Measure of Damages in General§ 347 cmt. a (Am. Law Inst.1981).

[32] SeeSillasen v. Winterer, 107 N.W. 124. 125 (Neb. 1906).

[33] Injunction, Black’s Law Dictionary(10th ed. 2014).

[34] Tenants who wish to challenge their eviction.

[35] The deposit amount must be equal to the amount of alleged rent due.

[36]  Ark. Code Ann.§ 16-66-201 (2003).

[37] 2001 Ark. Acts 1733.

[38] SeeDuhon v. State, 774 S.W.2d 830, 836 (Ark. 1989).

[39] Ark. Code Ann. § 5-1-108 (1975).

[40] See Duhon,774 S.W.2d at 836.

[41] Ark. Code Ann. § 5-1-108 (1975).

[42] Ark. Code Ann. § 5-4-401 (1983).

[43] Ark. Code Ann. § 16-90-801 (1993).

[44] For ease of reference this Note will refer to this as rehabilitation.

[45] For ease of reference this Note will refer to this as deterrence.

[46] For ease of reference this Note will refer to this as incapacitation.

[47] For ease of reference this Note will refer to this as retribution.

[48] For ease of reference this Note will refer to this as restitution.

[49] SeeJulian V. Roberts & Kent Roach, Conditional Sentencing and the Perspectives of Crime Victims: A Socio-Legal Analysis, 30 Queen’s L.J. 560, 562 (2005).

[50] SeeJordan Blair Woods, Taking the “Hate” Out of Hate Crimes: Applying Unfair Advantage Theory to Justify the Enhanced Punishment of Opportunistic Bias Crimes, 56 UCLA L. Rev. 489, 536 (2008).

[51] Seeid.

[52] See Tapia v. United States, 564 U.S. 319, 322 (2011).

[53] SeeUnited States v. Mefford,711 F.3d 923, 927 (8th Cir. 2013) (court banned the defendant from possessing any pornography).

[54] SeeWoods, supranote 50.

[55] Seeid.

[56] See Lee v. State, 11 S.W.3d 553, 555 (Ark. 2000).

[57] See 560.

[58] See Robert S. Hunter et al., Trial Handbook for Illinois Lawyers – Criminal Sentencing§ 1:8 (2016) (“For general deterrence to be accomplished, the message that ‘crime does not pay’ must be conveyed to a very large population).

[59] See Lee,11 S.W.3d at 555.

[60] See id. at 560.

[61] SeeMark W. Lipsey & Francis T. Cullen, The Effectiveness of Correctional Rehabilitation: A Review of Systematic Reviews,3 Ann. Rev. L. & Soc. Sci. 297, 302 (2007).

[62] Seeid.

[63] Franklin E. Zimring & Gordon Hawkins, Incapacitation: Penal Confinement and the Restraint of Crime3 (1995) (“Incapacitation now serves as the principal justification for imprisonment in American criminal justice”).

[64] SeeKevin Bennardo, Incarceration’s Incapacitative Shortcomings, 54 Santa Clara L. Rev. 1, 5 (2014) (“Thus, to design a punishment that incapacitates, a governing authority must first identify the offense or offenses it wishes to inhibit as well as the relevant population it wishes to protect. Once these two variables are identified, the governing authority must determine what the offender needs in order to commit the identified offenses against the relevant population and deny the offender access to those resources.”).

[65] 3.

[66] See United States v. Lily, 2009 WL 792564 at 3 (E.D. Ark.).

[67] See United States v. Jewell, 2009 WL 1010877 at 10 (E.D. Ark) (“A term of imprisonment probably is not needed to protect the public from further crimes by [defendant]”).

[68] See id.

[69] SeeWoods, supranote 50 at 533.

[70] Seeid.

[71] See United States v. Cravens, 2010 WL 654283 at 1 (W.D. Ark.) (“To provide ‘just punishment for the offense,’ Defendant must be incarcerated for a term which enables him to receive treatment for his drug use and to demonstrate the consequences of his actions without undoing the fabric of his life”).

[72] SeeArk. Code Ann. § 16-90-301 (1981).

[73] See Hampton v. State, 183 S.W.3d 148, 153 (Ark. 2004).

[74] SeeVictim Restitution in the Criminal Process: A Procedural Analysis, 97 Harv. L. Rev. 931, 933 (1984).

[75] Seeid. at 934.

[76] SeeCatharine M. Goodwin, Federal Criminal Restitution§ 1:4 (2016).

[77] See Simmons v. State, 205 S.W.3d 194, 197 (Ark. App. 2005).

[78] These punishments are available in criminal evictions but not in civil evictions. CompareArk Code Ann. § 18-60-309 (2007); withArk. Code Ann. § 18-16-101 (2001).

[79] SeeAllan D. Johnson, The Illusory Death Penalty: Why America’s Death Penalty Process Fails to Support the Economic Theories of Criminal Sanctions and Deterrence, 52 Hastings L.J.1101, 1119 (2001) (“[I]f the central purpose of punishment is deterrence, as the economic approach posits, then any punishment that does not provide an effective (and efficient) deterrent should be eliminated.”).

[80] SeeMark W. Lipsey & Francis T. Cullen, The Effectiveness of Correctional Rehabilitation: A Review of Systematic Reviews,3 Ann. Rev. L. & Soc. Sci. 297, 298(2007).

[81] There are two social costs that should be considered, the infringement on the offender’s liberty and the economic cost of imposing the punishment. SeeArk. Code Ann. § 16-90-801(c)(4) (1993), Allan, supranote 79.  Under the current circumstances it is unnecessary to formulate a balancing test because the costs never move inversely of each other.

[82] SeeAllan, supranote 79 at 1124-25. If one punishment is more effective than the other, it would stand to reason that the more effective punishment could be efficient even if it had a greater social cost.

[83] Ark. Code Ann. § 18-16-101 (2001).

[84] S. Rep. No.98-225, at 76 (1983).

[85] S. Rep. No.98-225, at 76 (1983).

[86] SeeBeth A. Colgan, Teaching A Prisoner To Fish: Getting Tough on Crime By Preparing Prisoners To Reenter Society, 5 Seattle J. for Soc. Just. 293, 298 (2006).

[87] Steve Aos, et al., Wash. State Inst. for Pub. Pol’y, Evidence-Based Public Policy Options to Reduce Future Prison Construction, Criminal Justice Costs, and Crime Rates9 (2006), available at

[88] SeeJamie Marie Billotte, Is it Justified? – The Death Penalty and Mental Retardation, 8 Notre Dame J.L, Ethics & Pub. Pol’y333, 356 (1994) (“The more heinous the crime, the greater the need for deterrence; hence the more severe the punishment can be.”).

[89] The less money an individual has the more value they place in each individual dollar. SeeSean Ross, What is The Marginal Utility of Income?, Investopedia (July 28, 2015 9:11 AM),“people value each subsequent dollar less and less because it satisfies less urgent wants”).

[90] Ark. Code Ann. § 18-60-309 (2007).

[91] See Davis v. Pines Mall Partners, 2011 WL 6189485 at 1 (Ark. App. 2011).

[92] SeeCortney E. Lollar, What is Criminal Restitution?100 Iowa L. Rev. 93, 124 (2014) (“many individuals with criminal convictions have difficulty finding employment).

[93] SeeBennardo, supra note 64 at 5 (“Whether targeted at certain offenses or criminal activity in general, a punishment only incapacitates to the extent that the offender is unable to overcome the restriction placed upon her.”).

[94] 18 U.S.C. § 3582 (2002) [hereinafter SRA].

[95] See Tapia v. United States, 564 U.S. 319, 328 (2011).

[96] 18 U.S.C. § 3582 (2002).

[97] S. Rep. No.98-225, at 76 (1983) (“[P]articipation in such programs as education or vocational training, or . . . might be made conditions of probation for rehabilitative purposes.”).

[98] See Tapia, 564 U.S. at 328.

[99] Ark. Code Ann. § 16-90-801(c) (1993).

[100] Id.

[101] See Beth A. Colgan, Teaching A Prisoner To Fish: Getting Tough on Crime By Preparing Prisoners To Reenter Society, 5 Seattle J. for Soc. Just. 293, 325 (2006).

[102] Aos et al., supra note 87.

[103] SeeSteven Shavell, Criminal Law and The Optimal Use of Nonmonetary Sanctions as A Deterrent, Colum. L. Rev. 1232, 1242 (1985).

[104] Seeid.

[105] Failure to deposit is a Class B misdemeanor, and imprisonment for a misdemeanor occurs in a county jail. SeeArk. Code Ann.§ 5-4-402 (2011).

[106] The Blind Side(Alcon Entertainment 2009).

[107] SeeAndrew Scherer, Gideon’s Shelter: The Need to Recognize a Right to Counsel for Indigent Defendants in Eviction Proceedings, 23 Harv. C.R.-C.L.L. Rev. 557, 565 (1988).

[108] Ken Karas, Recognizing a Right to Counsel for Indigent Tenants in Eviction Proceedings in New York,24 Colum. J.L. & Soc. Probs. 527, 534 (1991).

[109] SeeBennardo, supra note 64 at 5.

[110] Arthur W. Campbell, Law of Sentencing§ 2:3 (2016).

[111] SeeTapia v. United States, 564 U.S. 319, 334 (2011).

[112] Seeid.(“[T]he presence of a rehabilitation program may make one facility more appropriate than the other.”).

[113] See discussion, supraPart III.B.1.

[114] Ark. Code Ann. § 18-17-703 (2007).

[115] SeeArk. Code Ann. § 18-17-701 (2007). (“[T]he landlord may recover actual damages and obtain injunctive relief, judgments, or evictions.”).

[116] See id.(no mention of recovering punitive damages).

[117] See BMW of North America, Inc. v. Gore, 517 U.S. 559, 568 (1996).

[118] SeeDoug Hamill, The Fifty-Dollar Fines Clause Re-Emerges After Thirty-Five Years of Slumber, 70 Tenn. L. Rev. 887, 895 (2003).

[119] SeeFrédèric Mégret,Justifying Compensation by the International Criminal Court’s Victims Trust Fund: Lessons from Domestic Compensation Schemes, 36 Brook. J. Int’l L.123, 135 (2010).

[120] SeeBMW of North America,517 U.S. at 584; see alsoPaul J. Swier, The Utility of a Nonconsequentialist Rational for Civil-Jury-Awarded Punitive Damages, 54 U. Kan. L. Rev.403. 407 (2006) (“The Court compared the punitive damage award in Gore with statutory fines for consumer fraud.”).

[121] BMW of North America, 517 U.S. at 575.

[122] Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 301 (1989) (opinion concurring in part and dissenting in part) (quotations removed).

[123] Ark. Code Ann. § 18-16-101 (2001).

[124] Ark. Code Ann. § 18-17-703 (2007).

[125] S. Res. 25, 91st G.A. (Ark. 2017).

[126] Even though Senate Bill 25 was introduced in 2017, the legislative judgment on the use of punitive monetary sanctions was made in 1937. See2017 AR S.B. 25 (Feb. 14, 2017) (“It is the intent of the General Assembly by this act to amend Ark. Code § 18-16-101 so that the language of Ark. Code § 18-16-101 is exactly as was previously in effect when Ark. Code § 18-16-101 was upheld as constitutional in [1989]”).

[127] Restatement (Second) of Torts: Punitive Damages §908 (Am. Law Inst.1979).

[128] See generallyArk. Code Ann. § 5-1-105 (1975), Ark. Code Ann. § 5-4-401 (1983) (6 felonies, 4 misdemeanors, and 1 violation).

[129] CompareArk. Code Ann. § 5-13-204 (2009), withArk. Code Ann. § 5-10-102 (1991).

[130] The criminal eviction statute does not specify a criminal classification for the failure to pay rent. SeeArk. Code Ann. § 18-16-101 (2001) (failure to vacate is a misdemeanor and failure to deposit is a Class B misdemeanor). The punishment for failure to pay rent is a forfeiture of the right to occupy the property. Id. An offense is a violation if the statute authorizes a forfeiture and nothing more upon conviction. SeeArk. Code Ann. § 5-1-108 (1975).

[131] See generallyArk. Code Ann. § 5-1-105 (1975), Ark. Code Ann. § 5-4-401 (1983).

[132] Ark. Code Ann. § 5-4-202 (2011).

[133] See generallyArk. Code Ann. § 16-90-801 (1993) (the legislature does not expressly state that every punishment must further every purpose).

[134] See generallyid.

[135] Ark. Code Ann. § 16-90-801 (1993).

[136] 18 U.S.C. § 3553(a) (the mandatory guidelines in later subsections were found unconstitutional by United States v. Booker).

[137] Alan Ellis, An Introduction to Federal Sentencing, 40 Champion28, 43 (2016).

[138] Id.

[139] Ark. Code Ann. § 16-90-801 (2007).

[140] In a civil eviction the landlord is entitled to attorney’s fees. In a criminal eviction the state bears the cost of the action.

[141] SeeLollar, supranote 92 at 125.

[142] Seeid. at 124.

[143] Ark. R. Crim. P.37.2(b). In Arkansas sentencing is entirely a matter of statute, as such all sentences must be in accordance with a statute in effect at the time of the commission of the crime. State v. Fountain, 88 S.W.3d 411, 413 (Ark. 2002). When a sentence in not in accordance with a statute, the sentence is unauthorized and illegal. Id.

[144] SeeSentence, Black’s Law Dictionary(10th ed. 2014).

[145] Wicks v. State, 375 S.W.3d 769, 774 (Ark. App. 2010).

[146] SeeThomas v. State, 79 S.W.3d 347, 351 (Ark. 2002) (“The State contends that the trial court lacked authority [because] Ark. Code Ann. § 16-97-101 . . . conflicts with the authority given to the trial judge . . . pursuant to Ark. Code Ann. § 16-90-107(e).”) (the court disagreed on the merits). The basis for this argument is that the challenged statute has been repealed by implication. See id. Repeal by implication is not a favored by the Arkansas courts; however, it is recognized when the statutes are in irreconcilable conflict. See id.

[147] See United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005) (“We must evaluate whether the sentence imposed by the district court fails to achieve the purposes of sentencing.”). Talleywas later abrogated by the Supreme Court. See Rita v. United States, 551 U.S. 338, 346 (2007). Rita found that an analysis into the reasonableness of a sentence may begin with a presumption of reasonableness if the sentence in question complies with the federal sentencing guidelines. See id. In contrast, the reasonableness analysis in Talleydid not begin with a presumption of reasonableness. See id. See alsoGall v. United States, 552 U.S. 38, 51 (2007) (“[T]he appellate court must . . . ensure that the district court committed no significant procedural error, such as . . . failing to consider the [purposes of sentencing].”)

[148] SeeUnited States v. Tapia, 665 F.3d 1059, 1063 (9th Cir. 2011).

[149] See Duhon v. State, 774 S.W.2d 830, 836 (1989) (Purtle, J., dissenting) (“I was of the opinion that we were joining the rest of the country in rendering an enlightened decision on the relationship between landlord and tenant. I was mistaken. The majority has, with all the speed of a crawfish, backed into the 19th century.”).

[150] Marshal Prettyman, The Landlord Protection Act, Arkansas’ Code § 18-17-101 ET SEQ., 2008 Ark. L. Notes 71, 71 (2008).

[151] See Non-Legislative Commission on the Study of Landlord-Tenant Laws,35 U. Ark. Little Rock L. Rev. 739, 743 (2013).