Civil Probation.

• Author: Summers, Nicole

Table of Contents Introduction I. Mass Settlement in the Eviction Legal System II. Study Context, Design, and Methodology A. Study Context B. Study Design and Methodology III. Settlement Outcomes A. Empirical Findings: The Structure of Settlements B. Theory of Civil Probation IV. Features of the Civil Probation System A. Disproportionate Prevalence of Civil Probation Agreements in Cases Involving Subsidized Tenancies, Institutional & Represented Landlords, and Lower Arrears Amounts B. Expansive Probationary Conditions C. Lengthy Probationary Periods D. Strict and Frequent Enforcement of Civil Probation Agreements E. Foundation of Most Judicial Eviction Orders V. Consequences of Civil Probation A. Shadow Legal System 1. Alternative procedural and substantive rules for eviction 2. Alternative procedural and substantive rules as a shadow legal system 3. Normative consequences of the shadow legal system B. Expansion of Landlord Control C. The Possibility of Net-Widening VI. Potential Reforms A. Reforms Targeting Landlords B. Reforms Targeting Tenants C. Reforms Targeting Judges Conclusion Introduction

Approximately 3.6 million eviction cases are filed annually in the United States--over ten times the number of all civil cases filed in all federal courts annually. (1) Scholarship on the eviction legal system has focused primarily on documenting the system of mass settlement that plagues eviction courts. (2) Landlords' attorneys pressure unrepresented, low-income tenants to sign settlement agreements in the court hallways. (3) Judges, faced with enormous docket pressures, not only rubber-stamp the agreements but play an active role in encouraging tenants to sign them. (4) But while we know this mass settlement system exists, no one has asked, much less answered: What are people settling for? What are the terms of settlement agreements, how do those terms allocate rights among landlords and tenants, and what are their implications for the eviction legal system as a whole?

In this Article, I put forth an answer to these questions based on an empirical study of the eviction legal system in Massachusetts. My study found that the majority of settlement agreements impose interlocking terms that amount to what I call civil probation. I define civil probation as court-ordered conditions placed on a person's tenancy that, if violated, can result in swift eviction with few procedural safeguards. I term agreements that place the tenant on civil probation civil probation agreements. The data reveal that the substantial majority--nearly two-thirds--of eviction settlement agreements in the study jurisdiction are civil probation agreements. The data further show that a civil probation agreement is the single most common outcome of an eviction filing overall, with 37% of all filings resulting in this disposition. Civil probation is more common than any other type of final case disposition.

To conduct the study, I randomly selected nearly 1,000 eviction cases filed in eastern Massachusetts over a five-year period. (5) After retrieving the case files from the courthouse, I constructed a database of eviction case information by coding thirty variables from each file. The coding captured characteristics of the parties and tenancy, the reasons for the eviction, the procedural trajectory of the case, the specific settlement terms, and any and all interim and final substantive outcomes.

The data analysis revealed that 65% of settlement agreements contained three defining features: (1) judgment for possession is awarded to the landlord; (2) actual eviction is stayed conditional on the tenant's compliance with certain terms for a certain period, after which the tenancy is reinstated; and (3) upon motion, actual eviction may issue if the tenant violates any of the conditional terms. These interlocking features create a legal structure best understood as civil probation.

Civil probation is the civil analogue in the eviction context to probation in the criminal context. In the system of criminal probation, a person's liberty is conditioned on their compliance with certain behavioral terms. These terms are typically expansive and frequently unrelated to the underlying criminal charge. (6) If the probationer is alleged to have not abided by a probationary term, they face a charge known as a violation of probation. (7) The process to adjudicate a violation of probation involves significantly fewer procedural safeguards than the process to adjudicate a standard criminal charge does and affords the defendant fewer substantive defenses. (8) Most notably, the defendant does not have a right to a jury trial and proof beyond a reasonable doubt is not required. (9) Yet a violation of probation, if proved, can result in the same outcome of incarceration as proof of a standard criminal charge. (10)

The legal structure I define as civil probation operates similarly. A person's tenancy becomes conditioned on their compliance with certain terms. These terms are typically expansive and are frequently unrelated to the underlying basis for the eviction fding. If the landlord then alleges that the tenant violated any one of these terms, they face a legal process analogous to a violation of probation: an expedited eviction process that operates through a motion to issue execution (a motion for eviction based on a violation of the settlement terms). Like in the criminal probation system, the process of adjudicating a motion to issue execution affords the tenant far fewer procedural rights than an eviction proceeding under formal law. Whereas a tenant faced with eviction under formal law is entitled to a particular type and amount of notice, to take discovery on the landlord's claim, and to a jury trial, a tenant facing a motion to issue execution enjoys none of those rights. The only process due is a motion hearing. Similarly, the majority of substantive defenses recognized under the formal eviction laws are unavailable to tenants facing a motion to issue execution. Yet a motion to issue execution, if granted, can result in the same outcome of eviction.

For example, in the summer of 2017, a family received an eviction Filing for failing to pay $676 in rent. (11) The family lived in East Boston, a historically low-income, immigrant neighborhood that is currently experiencing enormous gentrification pressures. (12) By the time of the first court date in August, the family had already repaid the rent they owed. (13) Yet the case was not dismissed. (14) Instead, the landlord and the family signed a settlement agreement that awarded a possessory judgment to the landlord and conditioned the family's ability to remain in the unit on their compliance with a series of terms over an eight-month period. (15) In November, the family additionally agreed to submit lease paperwork for certain members of the household for whom such paperwork was (presumably) outstanding. (16) The issue of the missing paperwork had not been previously raised in the eviction case; the reason for the filing was solely nonpayment of rent. (17) Four months after the initial settlement was signed in August, the landlord filed a motion alleging that the family had violated the missing-paperwork term. (18) The family had no right to discovery, to a jury trial, or to any meaningful process beyond a hearing on the landlord's motion. (19) The judge allowed the motion and evicted the family. (20)

This story illustrates the structure of civil probation and the devastating consequences it had on one particular family. Through detailed data analysis, I surface the workings of civil probation at a systemic level. (21) First, civil probation agreements are disproportionately found in cases involving subsidized tenancies, institutional and represented landlords, and lower arrears amounts. (22) Civil probation agreements are highly and disproportionately prevalent in cases filed by these landlords as compared with cases filed by unrepresented, individual, and unsubsidized landlords. (23) Second, probationary conditions are much broader than what is necessary to address the concern underlying the eviction filing. (24) Third, probationary periods are long, with a median length of over a year. (25) The periods routinely extend beyond the point at which the tenant has satisfied the arrears. (26) Fourth, landlords frequently seek enforcement of the probationary terms. (27) In one-third of cases that resulted in a civil probation agreement, the landlord filed a motion to issue execution alleging violation of the probationary conditions. (28) Fifth, the vast majority of eviction orders issued by judges are issued within the civil probation system. (29) Specifically, an eviction order issued by a judge is over four times more likely to be based on the tenant's violation of the conditions of civil probation than on the underlying merits of the eviction complaint. (30)

Based on these findings, and drawing on criminal probation literature, I argue that civil probation has profound consequences for both civil jurisprudence and the landlord-tenant relationship. From a jurisprudential perspective, civil probation gives rise to a shadow legal system. (31) It establishes procedural and substantive rules for eviction entirely distinct from those set forth in statutory law. (32) These alternative rules not only bear little resemblance to the formal law, but are also devoid of any legislative endorsement. Instead, they are the handiwork of landlords and their attorneys. These rules operate at a widespread, systemic level, apply to an extraordinary number of tenancies at any given point in time, and underlie the overwhelming majority of judicial eviction orders. (33) This shadow legal system undermines the rule of law, erodes tenants' due process and substantive rights, and threatens public regulatory enforcement. (34)

From the perspective of the landlord-tenant relationship, civil probation expands landlord control...