The coronavirus pandemic has created a cascade of horrible effects. As of April 10, there have been half a million cases and 18,000 deaths in the United States (1.5 million cases and over 100,000 deaths worldwide). The pandemic has also created widespread economic hardship, with 17 million Americans newly unemployed within the past three weeks. And one further consequence of this all is that many tenants are struggling to stay afloat. Estimates are that one-third of U.S. tenants did not pay April rent.

Tenants and activists have urged legislatures to provide some kind of safety net. And many cities and states have responded, enacting local ordinances that put evictions on hold or provide other protections. Tenant organizers have also advocated rent strikes – coordinated efforts where a group of tenants consciously chooses not to pay rent.

However, some landlords are pushing back – and at least some are peddling the false idea that tenants who engage in rent strikes or fail to pay rent would be subject to imprisonment. This falsehood found a platform in a recent article on Slate where reporter Rachelle Hampton interviews landlord Clifton Rowls.

The interview is fascinating for several reasons. For one thing, Hampton repeatedly asks whether Rowls would give any leeway to tenants unable to pay their rent, and Rowls doggedly refuses to agree. And then, in a key exchange, Rowls suggests that non-payment could put a tenant in jail. Here is that exchange (emphasis added):

Hampton: One thing gaining traction is the idea of a rent strike.

Rowls: People can do that. And you don’t have to have been fired from your job and I’m positive that there are a lot of people who are going to take advantage of this and then they’ll do it. But they need to remember, they will pay for it sooner or later because once you have just simply refused to pay your rent because of this, it will affect your credit report. There’s no free lunch out here, none. I’ve been around for a very long time. Take my word for it. In the fine print, you do not want your credit destroyed.

Not only that, it’s against the law to do it. Why would you risk going to jail? There is no law that I have seen saying that you can just not pay your rent. That’s like saying, “Go to the grocery store and don’t pay your grocery bill.” And anybody who tries that, they will be affected later on if not right away. I wouldn’t tell anybody to do it.

Rowls’s comments are a bit scattered, but it appears he is claiming that either participating in a rent strike or just non-payment of rent generally (probably the latter) is a criminal act that can subject a tenant to jail time. That claim is absolutely false.

This was not always the case. Debtor’s prisons have a long and ugly history in the United States. Until the mid-1800s, debtors could be and often were sent to prison, facing horrific conditions including rats, smallpox, and starvation. Thankfully, an 1833 federal law banned many debtor’s prisons, while the rest disappeared under state laws and follow-up court decisions. Explicit debtor’s prison is a relic of over a century past.

This does not mean that debt has no connection with prison today. People in poverty have higher rates of incarceration. (As scholars have discussed, this ties to the racial wealth gap.) And modern commenters have argued that aspects of the current carceral system (such as bail, fines, and fees) in fact function as a kind of debtor’s prison. But express imprisonment for failure to pay a debt to a landlord is, thankfully, a relic of the far distant past.

Until recently, there was one not-quite-exception in Arkansas. Unlike every other state, Arkansas has a “criminal eviction” statute. Until 2015, a tenant who failed to pay rent could in fact be charged with a misdemeanor and, in subsequent court proceedings, might eventually be subject to some prison time. This law was criticized for many decades; advocates recently brought a lawsuit challenging its validity and in 2015, a court struck down the statute as unconstitutional. In response, the statute was amended in a way which appears to remove the possibility of imprisonment.

Now, this does not mean that landlords have no legal remedies for non-payment. Landlords regularly pursue unlawful detainer (eviction) lawsuits in order to regain possession. Eviction cases are on-hold in many places, but as a general matter they do allow landlords to regain possession of property. Landlords can also seek money judgments (which are subject to the same provisions as any other money judgment).

However, if a landlord tells his tenants that they must pay rent or go to jail, he is lying and misrepresenting the law. Such fraud has no place in public discussion, and especially should not be promoted by publications like Slate. In the United States in 2020, explicit Debtor’s Prison only exists in Dickensian horror stories – and apparently, in the misguided imagination of some D.C. landlords.

Kaimipono David Wenger is Professor Emeritus at Thomas Jefferson School of Law, and Senior Staff Attorney at Inner City Law Center. His work has previously appeared in law journals such as the Wisconsin Law Review, American University Law Review, and Loyola Law Review, as well as popular venues such as the Daily Beast, Jurist, and the Salt Lake Tribune; Kaimipono Wenger has also been primary attorney in over 100 unlawful detainer cases, representing low-income clients.

Suggested citation: Kaimipono David Wenger, No, You Don’t Go to Jail for Not Paying Rent, JURIST – Academic Commentary, April 14, 2020, https://www.jurist.org/commentary/2020/04/Kaimipono-david-wenger-debtors-prison/

This article was prepared for publication by Ashely Monti, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org