A Lifetime of Punishment (Report on Drug Convictions and Welfare Benefits) The Sentencing Project 2013
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A LIFETIME OF PUNISHMENT: THE IMPACT OF THE FELONY DRUG BAN ON WELFARE BENEFITS For more information, contact: The Sentencing Project 1705 DeSales Street NW 8th Floor Washington, D.C. 20036 This report was written by Marc Mauer, Executive Director of The Sentencing Project, and Virginia McCalmont, Research Associate. Layout and graphics by Jean Chung, Program Associate. Thanks to Dr. Emily Wang for review of the report. The Sentencing Project is a national non-profit organization engaged in research and advocacy on criminal justice issues. (202) 628-0871 sentencingproject.org twitter.com/sentencingproj facebook.com/thesentencingproject The work of The Sentencing Project is supported by many individual donors and contributions from the following: Morton K. and Jane Blaustein Foundation craigslist Charitable Fund Ford Foundation Bernard F. and Alva B. Gimbel Foundation General Board of Global Ministries of the United Methodist Church Jewish Communal Fund JK Irwin Foundation Open Society Foundations Public Welfare Foundation David Rockefeller Fund Elizabeth B. and Arthur E. Roswell Foundation Tikva Grassroots Empowerment Fund of Tides Foundation Wallace Global Fund Working Assets/CREDO Copyright © 2013 by The Sentencing Project. Reproduction of this document in full or in part, and in print or electronic format, only by permission of The Sentencing Project. OVerView I n his first State of the Union address, President Bill Clinton promised to “end welfare as we know it.”1 Nearly four years later, on August 22, 1996, President Clinton signed legislation to do exactly that: the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA).2 PRWORA’s reforms were expansive and controversial for several reasons, including its implementation of a revised cash assistance program— Temporary Assistance to Needy Families (TANF)— which limited the length of time eligible families could receive benefits3 and established work requirements for recipients.4 In addition, PRWORA made substantial changes to the operation of the federal food stamp program,5 which has since been renamed the Supplemental Nutrition Assistance Program (SNAP). Perhaps because of the general debate surrounding PRWORA’s changes to cash assistance and food stamp programs, one significant provision of the law initially received little attention: along with other federal legislation related to the “war on drugs,” PRWORA imposed a denial of federal benefits to people convicted in state or federal courts of felony drug offenses. The ban is imposed for no other offenses but drug crimes. Its provisions that subject individuals who are otherwise eligible for receipt of SNAP or TANF benefits to a lifetime disqualification applies to all states unless they act to opt out of the ban.6 Despite the magnitude of this change, the provision received only two minutes of debate after it was introduced on the Senate floor—one minute for Republicans and one minute for Democrats.7 It was then unanimously adopted by a voice vote.8 The brevity of Congressional discussion on the felony drug conviction ban makes it difficult to know the intent of Congress in adopting this policy, but the record that does exist suggests the provision was intended to be punitive and “tough on crime.” As Senator Phil Gramm (R-TX), the sponsor of the amendment, argued, “if we are serious about our drug laws, we ought not to give people welfare benefits who are violating the Nation’s drug laws.”9 Conspicuously absent from the brief debate over this provision was any discussion of whether the lifetime ban for individuals with felony drug offenses would advance the general objectives of welfare reform. In an effort to assess the impact of this policy, this report provides an analysis of the ban on receipt of TANF benefits for individuals with felony drug convictions. First, we survey the current status of the ban at the state level, including actions by legislatures to opt out of the ban in full or in part. Next, we produce estimates of the number of women potentially affected by the ban in those states that apply it in full. We then assess the rationale for the ban and conclude that, for a multiplicity of reasons, the ban not only fails to accomplish its putative goals, but also is likely to negatively impact public health and safety. Finally, we offer policy recommendations for future treatment of the ban on receipt of food stamps and cash assistance for individuals convicted of felony drug crimes. 1 Bill Clinton, Address before a Joint Session of Congress on the State of the Union (Feb. 17, 1993). Transcript available at: http://legacy.c-span.org/Transcripts/SOTU1993.aspx. 2 See, e.g., Francis X. Clines, Clinton Signs Bill Cutting Welfare; States in New Role, N.Y. Times (Aug. 23, 1996). Available at: http://www.nytimes.com/1996/08/23/us/ clinton-signs-bill-cutting-welfare-states-in-new-role.html. 3 42 U.S.C.A. § 608(a)(7) (West 2012). For adults, the lifetime limit is five years (60 months). 4 42 U.S.C.A. § 607 (West 2012). 5 United States Department of Agriculture Food & Nutrition Service, Supplemental Nutrition Assistance Program: Legislative History (Aug. 22, 1996, updated July 25, 2013). Available at: http://www.fns.usda.gov/snap/rules/Legislation/history/PL_104-193.htm. 6 21 U.S.C.A. § 862a (West 2008). 7 142 Cong. Rec. S8498 (daily ed. July 23, 1996). 8 Id. at S8499. 9 Id. at S8498. A Lifetime of Punishment: The Impact of the Felony Drug Ban on Welfare Benefits 1 State Policies Table 1. State drug conviction policies on cash assistance (TANF) and food stamps (SNAP) Although PRWORA banned the receipt of SNAP and TANF benefits for individuals with felony drug convictions, it gave states the discretion to opt-out of or modify the ban. By 2001, eight states and the District of Columbia had entirely opted out of the ban, while an additional 20 states had modified it.10 In the last decade, more states have joined the ranks of those that do not enforce PRWORA’s drug-crime exclusion provisions in full. Despite these changes, a 2011 review of state policies by the Legal Action Center documents that three-quarters of the states enforce the ban in full or in part.11 Currently, 37 states either fully or partially enforce the TANF ban, while 34 states either fully or partially enforce the SNAP ban (Table 1). Of these states, 25 (largely, but not precisely the same for both policies) have modified the ban to allow individuals with felony drug convictions to receive TANF or SNAP benefits under certain circumstances. For example, Arkansas, Florida, and North Dakota allow people to receive TANF if they were convicted of possessing drugs, but not manufacturing or distributing drugs. Other states allow receipt of TANF benefits for individuals who take part in or complete drug treatment, submit to drug testing, or have completed a specified waiting period. North Carolina, for instance, bans people from receiving benefits for six months following completion of a felony drug sentence. Although states are minimally more lenient in allowing people to receive food stamps, SNAP restrictions generally mirror state TANF restrictions. TANF1 SNAP2 Full Ban Modified Ban No Ban Full ban Modified Ban No Ban AK AR KS AK AR DE AL AZ ME AL AZ IA DE CA MI GA CA KS GA CO NH MO CO ME IL CT NJ MS CT MI MO FL NM SC FL NH MS HI NY TX HI NJ NE IA OH WV ID NM WY SC ID OK IL NY SD IN PA IN OH TX KY RI KY OK WV LA VT LA PA MA WY MA RI MD MD SD MN MN VT MT MT WA NC NE ND NC NV ND OR NV TN OR UT TN VA UT WA VA WI 12 25 WI 13 9 25 16 1 Source: http://bit.ly/HIRE_TANF Source: http://www.lac.org/toolkits/TANF/TANF.htm#summary 2 Impact of the Federal Ban on TANF The federal ban on TANF benefits has been in effect since 1996. Given the scale of drug convictions annually, the number of individuals affected by the ban is potentially quite substantial. In this analysis we develop estimates of this effect. To produce a conservative estimate of the impact of the ban, we use the following methodology: • First, since state policies vary somewhat between prohibitions on TANF or SNAP we focus here only on the TANF ban. We do so because the financial effect of the TANF ban is more significant for affected households, but with the recognition that many of the individuals excluded under the TANF ban have also lost food stamp benefits. 10 Patricia Allard, Life Sentences: Denying Welfare Benefits to Women Convicted of Drug Offenses, The Sentencing Project (Feb. 2002), at 2. Available at: http://www. sentencingproject.org/doc/publications/women_lifesentences.pdf. 11 Legal Action Center, Opting Out of Federal Ban on Food Stamps and TANF, Available at: http://www.lac.org/toolkits/TANF/TANF.htm#summary (last updated Dec. 2011). This site also contains more detailed descriptions of each individual state’s policies and modifications to the ban. 2 The Sentencing Project • Our analysis only covers the 12 states that impose a full ban on TANF benefits. Although there are an additional 25 states that impose a partial ban, there is no reliable means of obtaining data on the factors that trigger these bans (such as distinctions between convictions for drug sales or drug use, or the number of people with felony drug convictions enrolled in treatment programs). account for mortality and reconviction over time. These adjustments led to an estimate of the unique number of women convicted of felony drug offenses from 19962011. The estimated total number of women convicted of drug felonies from 1996 through 2011 was apportioned to states according to the estimated proportion of the national combined female probation, parole, and prison populations within those states. • Our analysis only covers the effect on women with felony drug convictions. Although the absolute number of men with drug convictions is far greater, women with children are far more representative of the TANF population. As seen in Table 2, for the 15-year period 1996 – 2011 there are now an estimated 180,100 women in these states who may be affected by the TANF ban at some point in their lives. Our estimates below represent the lifetime potential impact of the TANF ban in these selected states. That is, the prospect that at some point in their lives women who would otherwise qualify for such benefits will be denied them due to a prior felony drug conviction. At any given moment in time, many women would not qualify for these benefits since eligibility criteria include having custody of minor children, meeting income and work requirements, and not having exhausted the lifetime eligibility limit (five years in most states).12 Eligibility for food stamps is similar, except non-parents are also eligible to receive SNAP benefits.13 The estimated number of women potentially affected by the PRWORA ban in states that fully ban people convicted of drug felonies from receiving TANF was derived using data from the Bureau of Justice Statistics’ Felony Sentences in State Courts series.14 These data are based on a nationally representative sample of counties and are available for even years from 1996 through 2006. The average of the preceding and subsequent years was used to estimate odd year values, and the 2006 value was used to approximate values for each year from 2007 through 2012. Estimates of the proportion of sentencing events involving women and the proportion in which a drug offense was the most serious offense were used to estimate the number of women convicted annually of a felony drug offense. The annual estimates were adjusted downward to account for multiple convictions during one sentencing event. Further adjustments were made to Table 2. Estimated number of women affected by the TANF ban, 1996 to 2011 States with Full Ban State # Women Alabama 9,600 Arkansas 1,200 Delaware 2,000 Georgia 56,100 1 Illinois 18,800 Missouri 10,500 Mississippi 5,200 Nebraska 2,200 South Carolina 5,400 South Dakota 1,400 Texas West Virginia TOTAL 65,900 1,800 180,100 1 The Bureau of Justice Statistics reports that probation counts in Georgia may overstate the number of individuals under supervision because the agency that reports the county data has the capacity to report probation cases, but not the number of individuals under supervision. Therefore, individuals on probation with multiple sentences may be under supervision by more than one agency. http://bjs.gov/content/ pub/pdf/ppus11.pdf Note that the number of individuals affected would greatly increase if the analysis were expanded to include women in the 25 states that partially implement the ban or who are only seeking SNAP benefits, as well as lowincome men with felony drug convictions. 12 See U.S. Department of Health & Human Services Office of Family Assistance, Major Provisions of the Welfare Law (Dec. 16, 1996). Available at: http://www.acf.hhs.gov/ programs/ofa/resource/law-reg/finalrule/aspesum. 13 See, e.g., Center on Budget Policy & Priorities, A Quick Guide to SNAP Eligibility and Benefits (Jan. 2013). Available at: http://www.cbpp.org/files/11-18-08fa.pdf. 14 Bureau of Justice Statistics, Publications & Products: Felony Sentences in State Courts. Available at: http://bjs.gov/index.cfm?ty=pbse&sid=28 (last updated July 13, 2013). A Lifetime of Punishment: The Impact of the Felony Drug Ban on Welfare Benefits 3 The Ban’s Disparate Effects Impact on Children In addition to the direct effect of the TANF ban on parents, the ban also has an immediate impact on their children, who have committed no crime themselves. Under the terms of the law, in a TANF-eligible household the monthly grant allotment is reduced for the ineligible parent, but is still allowed for that person’s children. For example, if a single mother with two dependent children Impact on Women has a felony drug conviction the TANF benefit will be reduced from the three-person level to that of a twoThe ban’s effect on women results from several factors. person household. Given that TANF benefits are quite First, women comprise the vast majority of recipients of modest to begin with, a reduction of this size creates both TANF and SNAP benefits. In 2009, 85.9% of adult substantial additional hardship for such families. TANF recipients were women;15 women are also about twice as likely as men to receive food stamp benefits at some point in their lives.16 Racial / Ethnic Impact While the TANF ban does not target any demographic groups specifically, the dynamics of social class and the accompanying disparate racial effects of criminal justice policy and practice combine to produce highly disparate effects on women, children, and communities of color. Law enforcement and sentencing trends in recent decades have also combined to skew the effect of the ban on women. This has come about through two interrelated trends - a sharply rising number of women charged with drug offenses and a disproportionate effect of drug law enforcement on women. While prison populations have grown dramatically in recent decades, the rise in women’s incarceration has outstripped that of men. From 1980 to 2010, the number of women in prison rose by 646%, compared to a 419% increase for men.17 Within the prison population, women have been affected more so than men by drug law enforcement. Given that women are typically a small percentage of people who commit violent crimes, their numbers in prison historically were quite low. But as drug law enforcement accelerated rapidly beginning in the 1980s, women became much more likely to be convicted of a felony or sentenced to prison than in previous eras. By 2011, 25.1% of women in state prisons were incarcerated for a drug offense, compared to 16.2% of men.18 Thus, the combination of the high rate of women as SNAP and TANF recipients, along with the disproportionate effect of the drug war on women, has produced the skewed effects of the PRWORA ban. The federal ban on receipt of food stamps and cash assistance for individuals with felony drug convictions disproportionately impacts African Americans and other minority groups. This is a direct reflection of the racial disparities produced by the “war on drugs.” Data on illicit drug use collected by the Department of Health and Human Services has consistently shown over time that whites, African Americans, and Latinos use drugs at roughly comparable rates.19 But as of 2011, African Americans comprised 40.7% of prisoners in state prisons for drug crimes, while individuals of Hispanic origin made up another 21.1% of this population.20 Thus, the racial/ ethnic disparities in drug offender incarceration produced by the interaction of law enforcement and sentencing policies through the war on drugs then translate into a disproportionate impact of the felony drug ban. Assessing the Ban as Policy As we have seen, the felony drug ban potentially affects hundreds of thousands of women (as well as children and men) over the course of their lifetimes, well after most will have completed serving their felony sentences. For this disproportionately lower-income population, the 15 Pamela J. Loprest, How Has the TANF Caseload Changed Over Time?, U.S. Department of Health & Human Services Administration for Children & Families Office of Planning, Research & Evaluation (Mar. 2012), at 4, tbl. 2. Available at: http://www.acf.hhs.gov/sites/default/files/opre/change_time_1.pdf. 16 Rich Morin, The Politics and Demographics of Food Stamp Recipients, Pew Research Center (July, 2013). Available at: http://www.pewresearch.org/fact-tank/2013/07/12/ the-politics-and-demographics-of-food-stamp-recipients/. 17 Marc Mauer, The Changing Racial Dynamics of Women’s Incarceration, The Sentencing Project (Feb. 2013), at 9. Available at: http://sentencingproject.org/doc/ publications/rd_Changing%20Racial%20Dynamics%202013.pdf. 18 E. Ann Carson & Daniela Golinelli, Prisoners in 2012-Advance Counts, Bureau of Justice Statistics (July 2013), at 10, tbl. 9. Available at: http://www.bjs.gov/content/pub/ pdf/p12ac.pdf. 19 See, e.g., U.S. Department of Health & Human Services Substance Abuse & Mental Health Services Admin., Results from the 2011 National Survey on Drug Use and Health: Survey of National Findings (Sept. 2012), at fig. 2.11. Available at: http://www.samhsa.gov/data/NSDUH/2k11Results/NSDUHresults2011.htm. See also Marc Mauer, The Changing Racial Dynamics of the War on Drugs, The Sentencing Project (Apr. 2009), at 7. Available at: http://www.sentencingproject.org/doc/dp_raceanddrugs.pdf. 20 Carson & Golinelli, supra note 18, at 10 tbl.10. 4 The Sentencing Project sudden loss of a job or change in family circumstances can move an otherwise self-supporting household into a situation whereby the loss of federal benefits can make the difference between stability and vulnerability in one’s life prospects. users who have been convicted of larceny, theft, robbery, and a host of other felonies. Denying individuals convicted of drug crimes food stamps and cash assistance is one of the many collateral consequences of a felony conviction that have been termed an “invisible punishment”—a sanction that results from a criminal conviction but “take[s] effect outside of the traditional sentencing framework,” and as a result “operate[s] largely beyond public view, yet ha[s] very serious, adverse consequences for the individuals affected.”23 Collateral consequences in general have dubious value as deterrents, in large part because most people are unaware of the civil penalties that result from criminal convictions. In order to justify such effects, we can explore the possible beneficial effects of the ban that may have motivated federal lawmakers to adopt the policy originally, and to determine to what extent the policy of benefits denial has succeeded in its goals. Although members of Congress did not specifically articulate a rationale for the ban, it has often been assumed that denying SNAP and TANF benefits to individuals convicted of drug crimes arose out of “the government’s desire to deter drug use and to reduce incidences of fraud.”21 The following is an assessment of the ban’s effect on these goals, which leads In particular, there is little reason to believe that barring us to conclude that the ban is not necessary to or effective individuals with felony drug convictions from receiving welfare benefits deters drug use or crime. For example, one at achieving them. study of women with drug convictions or pending felony drug charges found that not a single one of the 26 women interviewed was aware prior to her involvement with the Deterring Drug Use criminal justice system that a felony drug conviction could To the extent that policymakers believed that the ban on lead to a loss in SNAP or TANF benefits.24 Furthermore, benefits would deter use, they were unfortunately very 92% of the women reported that even if they had known misinformed about the connection between substance of the ban, it “would not have acted as a deterrent during abuse and certain criminal behaviors. While the ban applies active addiction.”25 Because of the nature of addiction, it to individuals convicted of a drug offense, many people is also generally implausible to believe that a person who in this category do not use drugs themselves. Looking at is not deterred from criminal activity by the specter of data from 2006 (most recent available) from the Bureau criminal prosecution or imprisonment would be halted by of Justice Statistics, we find that more than half (56%)22 the threat of losing access to TANF and SNAP benefits. of the 377,860 drug convictions that year were for selling drugs, not using drugs. Some people who sell drugs do so to support their own drug use or addiction, but many Reducing Welfare Fraud do so as a means of making money. In addition, of the remaining 44% of drug convictions for possession, The ban on receipt of TANF and SNAP benefits for many were for the offense of “possession with intent to individuals with felony drug convictions is sometimes deliver,” a charge involving sale of drugs. Therefore, the defended on the ground that the ban helps to reduce welfare ban applies to many people convicted of a drug fraud in the federal welfare system. The logic of this crime who do not use drugs, but does not apply to drug claim seems to be that individuals with drug convictions 21 Turner v. Glickman, 207 F.3d 419, 427 (7th Cir. 2000) (holding that 21 U.S.C. § 862a is not a violation of due process or equal protection rights guaranteed by the United States Constitution). 22 Matthew R. Durose, Donald J. Farole, Jr., & Sean P. Rosenmerkel, Felony Sentences in State Courts 2006, Bureau of Justice Statistics (December 2009), at 5, tbl. 1.2.1. Available at: http://www.bjs.gov/content/pub/pdf/fssc06st.pdf. 23 Jeremy Travis, Invisible Punishment: An Instrument of Social Exclusion, in Invisible Punishment: The Collateral Consequences of Mass Imprisonment (Marc Mauer & Meda Chesney-Lind eds., 2002), at 16. 24 Amy E. Hirsch, Welfare Reform and Women with Felony Drug Convictions: Research Results and Policy Recommendations, Journal of Poverty Law and Policy (2000), at 587, 590. One possible reason for this lack of information is that courts have long held that defense attorneys are not required to affirmatively advise their clients of all the possible consequences that could result from a guilty plea or conviction; under the “collateral consequences doctrine,” defendants were “kept . . . in the dark about severe statutory or regulatory penalties like deportation or eviction or loss of employment until it was too late to avoid them.” Margaret Colgate Love, Collateral Consequences after Padilla v. Kentucky: From Punishment to Regulation, 31 St. Louis Pub. L. Rev. (2011), at 87, 90, 91. Some of this jurisprudence was upended by the Supreme Court’s decision in Padilla v. Kentucky, 130 S.Ct. (2010), at 1473, 1486, in which seven Justices held that attorneys are required to inform their noncitizen clients when deportation could result from a guilty plea in a criminal case. However, it is still unclear whether Padilla applies to contexts and consequences other than deportation. As a result, people who plead guilty to felony drug offenses may still not be advised that their convictions could result in lifetime ineligibility for TANF or SNAP benefits. 25 Hirsch, supra note 24, at 591. A Lifetime of Punishment: The Impact of the Felony Drug Ban on Welfare Benefits 5 receipt of food stamps for individuals with felony drug convictions, because it is responsive to actual misuse of benefits regardless of whether the recipient has a history of criminal or drug involvement. In contrast, the ban on receipt of benefits for individuals with felony drug The perception that drug users may be likely to commit offenses is over-inclusive, because it disallows SNAP fraud may be traceable, in part, to “[a] series of media benefits to people who have never and would never accounts in the early 1990s,” which “suggested that engage in fraudulent use of SNAP or TANF benefits— food-stamp benefits were being exchanged readily for for life. cash and contraband.”27 Scholars have noted that the problem with these accounts is that they often involved undercover officers who tried to exchange food stamps Implications for Reentry and for cash, drugs, or weapons, and that while their success RecidiVism in doing so demonstrates that food stamps have value, “[t]hese anecdotes did not establish that households Each year, nearly 700,000 people are released from receiving monthly food-stamp allotments—as opposed state and federal prison.33 Along with the stigma of the to undercover agents with benefits provided explicitly criminal conviction and incarceration that they carry, a for sting operations—were exchanging food stamps host of public policy restrictions make the reentry process improperly.”28 In reality, the SNAP fraud rate is extremely increasingly challenging. In addition to potentially losing low: from 2006-2008, the trafficking rate for food stamps access to food stamps and TANF benefits, individuals was approximately one cent per every dollar.29 At least one with felony convictions (for drug offenses or other explanation for the low fraud rate is the fact that SNAP felonies, depending on the particular sanction) may not benefits are now issued on an electronic benefit card be eligible for public housing or federal loans to pursue an that functions like a regular debit card and makes it both education; they may face substantial hurdles in obtaining harder to misuse benefits and easier for the government employment, particularly when this involves applying for to identify and track suspicious food stamp activity.30 a professional license; driver’s licenses may be suspended; and there may be a loss of the right to vote, serve on a Even though the fraud rate is low, it is not unreasonable jury, or join the military. to attempt to detect and prevent the trafficking of food stamps. But disallowing TANF and SNAP benefits These collateral consequences of a criminal conviction to individuals with felony drug convictions is hardly would be difficult to manage under any circumstances, but necessary to achieve this goal since federal legislation for people who are trying to reenter society after a period already proscribes and punishes fraudulent use of welfare of incarceration, they are particularly damaging. Most benefits.31 In fact, trading controlled substances for SNAP people returning home from prison had been struggling benefits is specifically prohibited in a separate section of in some significant way prior to their involvement with the United States Code; individuals who are found to the criminal justice system; surveys consistently show that have traded controlled substances for SNAP benefits are substantial proportions of people who are incarcerated punished with two years of SNAP ineligibility for a first have histories of substance abuse, mental health issues, offense and permanent ineligibility for a second offense.32 homelessness, or physical or sexual abuse.34 Without This provision is more closely tailored to the purpose proper support, these individuals may continue to struggle of deterring food stamp fraud than the blanket ban on with similar issues upon their release from prison. are more likely to be drug users, and that drug users are more likely to commit welfare fraud—for example, by using TANF cash payments to buy drugs or by trafficking food stamps.26 26 “Trafficking” food stamps means exchanging food stamps for cash. U.S. Department of Agriculture Food & Nutrition Service, Fighting SNAP Fraud. Available at: http://www. fns.usda.gov/snap/fraud/fraud_2.htm (last updated July 25, 2013). 27 David A. Super, The Quiet “Welfare” Revolution: Resurrecting the Food Stamp Program in the Wake of the 1996 Welfare Law, 79 N.Y.U. L. Rev. (2004), at 1271, 1301. 28 Id. at 1301 n.104. 29 Fighting SNAP Fraud, supra note 26. 30 Id. 31 See 7 U.S.C.A. § 2015(b)(1) (West 2008) (restricting SNAP eligibility for variable periods for individuals found by a court or administrative agency to have intentionally misused benefits, traded benefits for controlled substances, or traded benefits for firearms); 42 U.S.C.A. § 608(a)(8) (West 2012) (disallowing benefits for 10 years to individuals “found to have fraudulently misrepresented [their] residence in order to obtain assistance in 2 or more States.”). 32 7 U.S.C.A. § 2015(b)(1) (West 2008). 33 See, e.g., E. Ann Carson & William J. Sabol, Prisoners in 2011, Bureau of Justice Statistics (Dec. 2012), at 12, tbl. 13. Available at: http://www.bjs.gov/content/pub/pdf/ p11.pdf. 34 See, e.g., Dale E. McNiel et al., Incarceration Associated with Homelessness, Mental Disorder, and Co-occurring Substance Abuse, 56 Psychiatric Services (2005), at 840; Amy L. Solomon, In Search of a Job: CriminalRecords as Barriers to Employment, 270 Nat’l Inst. of Just. J. (June 2012), at 42, 44. 6 The Sentencing Project In this context, access to SNAP and TANF benefits may be particularly critical. The SNAP and TANF programs are designed to provide subsistence level benefits for people who cannot afford to feed themselves or clothe their children.35 People who use these benefits typically do so for short periods of time; one overview of the program found that less than ten percent of recipients used food stamp benefits for five consecutive years.36 People who apply for benefits are more likely to do so in the wake of a catastrophic life event, such as the loss of a job.37 For formerly incarcerated individuals transitioning back to their home communities, SNAP or TANF benefits can help to meet their basic survival needs during the period in which they are searching for jobs or housing. By doing so, the programs reduce the likelihood that formerly incarcerated individuals will return to criminal activity to secure food or other essentials for themselves or their families. Restrictions on SNAP and TANF benefits are also counterproductive for providing drug treatment services. Historically, drug treatment facilities have used their patients’ SNAP and TANF benefits to subsidize the cost of treatment.38 If individuals who are recovering from drug addiction are denied access to these “subsistence benefits, treatment, and safe and sober housing, it is much less likely that these [people] will be able to live drug-free in the community and avoid recidivism.”39 Public Health Effects incarcerated people who lived in states that fully enforce the ban on receipt of food stamps for individuals with felony drug convictions were more likely to report having gone an entire day without eating than people who lived in states that did not enforce the ban; furthermore, people who did not eat for an entire day were more likely to engage in HIV risk behaviors, such as using alcohol, heroin, or cocaine before sex or exchanging sex for money.41 While the authors note that the small sample size limits the ability to draw definitive conclusions, they report that “[i]ndividuals released from prison are at high risk for food insecurity,” and that the level of food insecurity among recently released prisoners uncovered by the study “mirror[s] the magnitude of food insecurity in developing countries.”42 Overall, there is little reason to believe that the drug felony ban has had any constructive impact on either substance abuse or public safety. States that enforce the ban in full have not conducted any studies that suggest there may be positive outcomes in comparison to states that have fully opted out of the ban. After 17 years of implementation, though, there is reason to believe that affected individuals in these states may be subject to substantial reentry challenges and food insecurity. Current Political Climate Since the TANF ban was enacted in 1996, a number of states have taken action to opt out of its provisions in full or in part, but three-quarters still retain either a full or partial ban on the receipt of welfare benefits. At the federal level members of Congress have introduced bills that would repeal the ban, but such legislation has not gained sufficient support to change policy.43 In addition to enhancing the risk of recidivism, there is some evidence that barring individuals with felony drug convictions from receiving food stamps may have troubling public health consequences. One of the few analyses done in this area was a recent pilot study conducted in Texas, California, and Connecticut that More recently there have even been proposals to examined the relationship between “food insecurity and expand the scope of the ban’s restrictions, such as the HIV risk behaviors among individuals recently released one introduced during the 2013 legislative session of from U.S. prisons.”40 The study found that formerly 35 For the Congressional view of the purpose of the food stamp program, see 7 U.S.C.A. § 2011 (West 2008). 36 Mark R. Rank & Thomas A. Hirschl, Likelihood of Using Food Stamps During the Adulthood Years, 37 J. Nutrition, Educ. & Behav. (2005), at 137, 142. 37 U.S. Department of Agriculture Food & Nutrition Service, Determinants of Supplemental Nutrition Assistance Program Entry and Exit in the mid-2000s (Sept. 2011). Available at: http://www.fns.usda.gov/ora/MENU/Published/snap/FILES/Participation/DeterminantsMid2000_Summary.pdf. 38 See Gwen Rubinstein & Debbie Mukamal, Welfare and Housing—Denial of Benefits to Drug Offenders, in Invisible Punishment: The Collateral Consequences of Mass Imprisonment 42 (Marc Mauer & Meda Chesney-Lind eds., 2002). 39 Id. 40 Emily A. Wang et al., A Pilot Study Examining Food Insecurity and HIV Risk Behaviors Among Individuals Recently Released from Prison, 25 AIDS Educ. & Prevention (2013), at 112, 113. 41 Id. at 117. 42 Id. at 118. 43 See, e.g., Food Assistance to Improve Reintegration Act of 2013, H.R. 197, 113th Cong. (2013). A Lifetime of Punishment: The Impact of the Felony Drug Ban on Welfare Benefits 7 Congress by Senator David Vitter (R-LA). Senator Vitter’s proposal, which was presented as an amendment to the omnibus Farm Bill, called for a retroactive ban on individuals convicted of murder, aggravated sexual abuse, or sexual exploitation of children from receiving SNAP benefits for life.44 Although the amendment was strongly denounced by many outside the halls of Congress,45 it was unanimously consented to in the Senate.46 A version of the amendment was later approved by the House as well.47 However, broader political strife over the Farm Bill leaves the future of such policy uncertain. Policy Recommendations Since the adoption of the ban on receipt of SNAP and TANF benefits for individuals with felony drug convictions in 1996, we estimate that 180,100 women in the states that fully enforce the ban’s provisions may be affected by these provisions at some point in their lives. Including women in the states with partial bans, or men who are impacted by the policy, would clearly raise this number substantially. There is no evidence to date that any harm caused by the ban has been offset by the realization of significant positive outcomes for public safety. The ban has not been shown to decrease drug use, nor is it necessary to reduce welfare fraud, which is proscribed by other sections of the United States Code. Furthermore, by raising a new substantial barrier to successful reentry, the ban may actually harm public safety and public health, while contributing to swollen prison populations. Policymakers who wish to address these challenges should consider the following reforms: Congress Given how little evidence was supplied in support of the ban in 1996 or regarding its impact since then, it is long overdue for Congress to repeal the drug felony ban on access to welfare benefits and food stamps. Among other incongruous effects, the ban is clearly inconsistent with Congressional support for reentry services through funding provided by the Second Chance Act, as well as current policy recommendations of the Federal Interagency Reentry Council. Policies such as the TANF/SNAP ban make it increasingly difficult for formerly incarcerated individuals to return home and lead productive law-abiding lives. States Until such time as Congressional repeal of the ban on receipt of SNAP and TANF benefits is enacted, states should consider adopting policies to opt out of the ban’s provisions. At a minimum, states should modify the ban such that individuals with felony drug convictions have some possibility of regaining eligibility for SNAP or TANF benefits—perhaps by successfully completing drug education or treatment. To the extent that any prohibitions remain in place, they should be narrowly tailored to achieving some kind of public health or safety goal, rather than being merely punitive in nature. 44 Agriculture Reform, Food, and Jobs Act of 2013, S. 954, 113th Cong. § 4020 (2013). 45 See, e.g., Bob Greenstein, Senator Vitter Offers—And Senate Democrats Accept—Stunning Amendment with Racially Tinged Impacts, Huffington Post Politics Blog (May 22, 2013, 3:55 PM). Available at: http://www.huffingtonpost.com/bob-greenstein/senator-vitter-offers--an_b_3321645.html. See also Jeremy Haile, Letter to the Editor, Farm Bill Died for Many Reasons, Including Attack on Felons, Wash. Post (June 23, 2013). Available at: http://www.washingtonpost.com/opinions/farm-billdied-for-many-reasons/2013/06/23/b5f910b6-daa2-11e2-b418-9dfa095e125d_story.html. 46 159 Cong. Rec. S3716-17 (daily ed. May 22, 2013). 47 Nutrition Reform and Work Opportunity Act of 2013, H.R.3102, 113th Cong. § 137 (2013). 8 The Sentencing Project A Lifetime of Punishment: The Impact of the Felony Drug Ban on Welfare Benefits NOV EMBER 2013 Further reading available on our website: • Children in Harm’s Way: Criminal Justice, Immigration Enforcement, and Child Welfare (2013) • The Affordable Care Act: Implications for Public Safety and Corrections Populations (2012) • State-Level Estimates of Felon Disenfranchisement in the United States, 2010 (2012) • Collateral Consequences of Criminal Convictions: Barriers to Reentry for the Formerly Incarcerated (2010) The Sentencing Project works for a fair and effective U.S. criminal justice system by promoting reforms in sentencing policy, addressing unjust racial disparities and practices, and advocating for alternatives to incarceration. 1705 DeSales Street NW, 8th Floor Washington, D.C. 20036 Tel: 202.628.0871 Fax: 202.628.1091 sentencingproject.org