There’s some disagreement about legality in the comments section to my recent post about Representative Cale Keable (D, Burrillville, Glocester) and his attempt to forcibly enter a property that he owns against the tenant’s consent.  Personally, I greatly sympathize with landlords who have difficult tenants (although the behavior of both Mr. and Mrs. Keable, as displayed on the video, was abysmal, regardless).

But what does the law say?

The law for breaking and entering does not require any malicious intent (i.e., breaking into a property for any reason is illegal), and attempting to break and enter is handled as if the perpetrator had succeeded.  Furthermore, the law imposes a minimum sentence of two years, so if convicted of such a crime, Representative Keable would have to be sentenced to two years in prison.

The ambiguity is that the breaking and entering statute gives the “owner or tenant” the ability to consent.  What happens when a tenant refuses consent to a landlord is described elsewhere in law.

In the statute governing landlord access to his or her rentals, section (c) does give the landlord a right to enter a property if he or she gives at least two days’ notice.  But that has to be read within the context of the rest of the chapter.  Section (a) says the “tenant shall not unreasonably withhold consent to the landlord,” which indicates that the tenant does have a right to withhold consent if it’s “reasonable” to do so.  The only exceptions provided in law come in section (b), which states that “a landlord may enter the dwelling unit without consent of the tenant in case of emergency, or, during any absence of the tenant in excess of seven days, if reasonably necessary for the protection of the property.”

In this case, the tenant had obviously not abandoned the property, and whatever legislators may think of their role in Rhode Island civic life, they are not authorized to adjudicate the law in their private lives.  Prior to a landlord’s forcing entry, an appropriate legal authority (i.e., a court) should determine that the reason for withholding consent is “unreasonable.”  Maybe it is or isn’t reasonable for a parent to withhold consent because she’s working and her minor son is home alone (or for some other reason), but it isn’t for the landlord to decide.

The difficulty, here, is that the law itself is unreasonable.  Because legislators were so aggressive as to impose a mandatory minimum sentence for breaking and entering, the only way to moderate the punishment is through non-enforcement.

The statement from local police chief Colonel Stephen Lynch highlights this point:  “Our assessment is it did not rise to the level of criminality.”   That phrase “rise to the level” appears, from time to time, when Rhode Islanders challenge the behavior of government officials and the authorities don’t think the rules they broke are reasonable.

It’s not a statement that the representative did not attempt to forcibly enter the apartment.  It’s not a statement that landlords are allowed to do what he did.  It’s an assertion that the police have some vague standard by which they permit themselves to use their own judgment.

As it happens, I generally support some level of this discretion.  It would be to the detriment of society if the duty of law enforcement (especially local police) were less to “protect and serve” and more to enforce the government’s edicts.  (Indeed, this shift in emphasis is arguably the underlying problem behind some of America’s thorniest racial conflicts.)

That said, minimum sentences raise the threshold of this judgment by police and prosecutors.  If, further down the line of law enforcement, a judge were able and likely to consider individual circumstances and impose a more-reasonable penalty, then the threshold for the police simply to follow the law, rather than their judgment, would be lower.  In questionable cases — or in cases where failing to prosecute might further the impression that Rhode Island is an aristocracy with a banana republic legal system — they would be more apt to let the process play out.

The state is going in the wrong direction on this.  Indeed, Keable’s fellow legislators have submitted a bill to increase the minimum sentence for breaking and entering when somebody is home.  If this legislation passes, then somebody doing what Keable did will face a minimum of four years in prison, unless the judgment of the local police intervenes.  (That bill has been referred to House Judiciary, which Keable chairs.  It will be interesting to see which way he votes, if it comes back from the further study limbo.)

Looking at the law as it stands, though, one has to wonder:  If the legislators don’t believe that judges should have latitude to consider circumstances when setting a sentence, do they actually believe that the police — and attorney general, who’ll be reviewing Keable’s case — should have such latitude?  If so, does it only apply when one of their own is staring into the black hole of a full legislative term in jail?