Testimony: The Collateral Impact of Criminal Records on Public Assistance
Testimony: The Collateral Impact of Criminal Records on Public Assistance
The following testimony was delivered by Amy Hirsch, Managing Attorney of CLS's Public Benefits Unit, before the United States Commision on Civil Rights on May 19, 2017.
Thank you, Chairperson Lhamon, and members of the Commission, for allowing me to testify today concerning collateral consequences of criminal records as they affect public assistance, most particularly the impact of the lifetime ban on TANF benefits and SNAP/Food Stamps for women with felony drug convictions.
My name is Amy E. Hirsch. I am the Managing Attorney for public benefits issues at Community Legal Services, in Philadelphia. In the past, I have taught welfare law at the University of Pennsylvania Law School, and at the Bryn Mawr College Graduate School of Social Work and Social Research. I have written a number of articles about the impact on low-income women and families of welfare policies, domestic violence and sexual abuse, and criminal justice and addictions policies. During 1997-1998, I had a leave of absence from Community Legal Services, and funding from the Center on Crime, Communities and Culture, to do research on the interaction of welfare reform and criminal justice issues.
I looked at the impact of the lifetime ban on TANF benefits and Food Stamps for women with felony drug convictions. I conducted extensive interviews of over 30 criminal justice and public health professionals, and of 26 women with drug convictions, in four counties in Pennsylvania, while the ban was in effect in Pennsylvania. I also analyzed data from the criminal court system in Philadelphia and from a residential drug & alcohol treatment program for women. Much to my surprise, the picture I got from these very different sources was very consistent. Everyone interviewed—prosecutors, police officers, corrections officials, probation officers, defense attorneys, public health professionals, drug & alcohol treatment staff, experts on domestic violence and sexual assault, and the women themselves—spoke from different perspectives, but reached the same conclusion: the ban on benefits is counter-productive. It does not deter drug usage or crimes, but instead makes it much harder for women to stay clean and sober.
I wrote a comprehensive report on the research results, Some Days Are Harder Than Hard': Welfare Reform and Women with Drug Convictions in Pennsylvania, and edited a report called Every Door Closed: Barriers Facing Parents with Criminal Records (copies are being provided to the Commission). My research results have also been published in several journals, including Women, Girls and Criminal Justice, Violence Against Women, Clearinghouse Review: Journal of Poverty Law and Policy, and the Temple Civil and Political Rights Law Review.
Although my research was a small, qualitative study, it began an important national conversation about the counter-productive nature of the federal lifetime ban, which continues today. I want to tell you a little bit about the research results, and their policy implications.
The women I interviewed began their drug usage as children, or as young teens, in direct response to being sexually and/or physically abused. In the absence of other resources, they self-medicated the pain of abuse with drug usage. Here are a couple of typical quotes from the women I interviewed:
Lynette: My stepfather was drunk a lot, my mom left us alone with him. I was sexually molested by my stepfather. I was hurt because I told my mom and she said maybe I led him on—I was very young. They took me away when I was thirteen and it was before then. It went on for a year or two and my mother said it was my fault. The drugs I used when things really hurted me, so I wouldn't feel the hurt.
Tanya: When I was a child, my father used to rape me. It started when I was nine. ...After I ran away, I wanted somebody to want me. I ran into this guy, he was older, and I wanted him to want me. He gave me cocaine. I was thirteen.
Wendy: I was afraid to go to sleep at home, because my mom’s boyfriend came in and messed with me. I thought if I could just go to sleep—I only felt safe sleeping at school. So I went to sleep at school every day, and they yelled at me.
They left school at an early age, often when they ran away to escape the abuse. They have limited literacy, limited job skills, and multiple physical and mental health problems. They have histories of homelessness and prostitution. Their crimes were committed while they were in active addiction, to get drugs or money for drugs.
The criminal justice system was the first place anyone offered them drug treatment or help dealing with the abuse they had experienced.
Maria: I was in the city jail), in the OPTIONS program, for drugs and alcohol. They had all different kind of classes-about being raped in the street, about being raped in your family. I needed both those classes.
The convictions which disqualified them from receiving benefits were generally for very small amounts of drugs, ($5 or $10 worth) and were often their first convictions. (1)
Their drug usage and crimes were inextricably intertwined with ongoing domestic violence and sexual assault. A staff member working with incarcerated women in a semi-rural area talked about one of the women she was worried about:
She has two children at home who really need her. Her husband was terribly violent to her. She was in a battered women’s shelter, and she applied for benefits-one of the shelter workers went with her to the welfare office. The welfare department turned her down. The caseworker said she wasn’t eligible because she had been convicted of a felony, writing prescriptions for painkillers for herself. After she was turned down for benefits her husband violated the protection from abuse order, and she had to leave the shelter. Then she violated her parole, and now she's back in jail.
Her parents, who are taking care of her children, are really angry at her. They don't understand how she could have used drugs; they don’t understand how much physical and emotional pain she was in—she had broken ribs, broken arms. The abuse this woman endured from her husband, I would have written prescriptions for myself too—she was in such pain. She's going to be released soon, and her children need her, and she needs benefits—isn't there some way to get cash assistance for her? It can’t be right.
The women I interviewed have terrible feelings of guilt and shame because of their drug usage, because of the abuse they have experienced, and because of the ways they have failed their children in the past. They love their children very much, and they are trying to reunify and rebuild their families and move forward with their lives.
Although welfare receipt carries tremendous stigma, being banned from getting benefits is even more shameful. For women who have been living on the streets, getting welfare is a step up in the world, a connection to civil society. For women who have been financially dependent on an abusive boyfriend or husband, welfare is essential to escaping abuse. Until a woman is able to work, getting welfare is often the only legal way she can have money of her own, and be independent. Telling these women that they can never get assistance, no matter what they do, or how hard they try, simply pushes them back into abusive relationships and active addiction.
The Lifetime Ban on Benefits
The ban on benefits is contained in a little-known provision of the federal welfare reform law from 1996. It provides that unless a state affirmatively passes legislation to opt out of the federal ban, any individual with a felony drug conviction for conduct after August 22, 1996 is banned for life from receiving TANF benefits or Food Stamps (now called SNAP). (2) The state legislation opting out of the ban must be passed after August 22, 1996, and must specifically reference the federal statute. Twenty-eight states moved quickly and passed legislation to opt-out, and eliminated or modified the ban. Other states have taken action in smaller numbers over the years, so that there is now a patchwork of state provisions that vary widely. Pennsylvania lifted the ban in 2004.
Some states have eliminated the ban only for one type of benefits (either TANF or SNAP, but not both). Others have lifted the ban only for individuals who have completed drug treatment, or have completed probation or parole, or whose convictions were a certain number of years ago, or who have met other requirements. Many of those modifications mean that benefits are not available to individuals when they most need them—right after release from incarceration. While there are at least four states that have lifted or modified the ban since 2015, there are also still 6 states that have not modified the ban at all, and still have a lifetime ban on both TANF and SNAP, and most states still impose at least a partial ban. (3)
It is difficult to know just how many low-income individuals are banned from benefits. Because the ban is lifetime, the cumulative numbers continue to rise as additional individuals become banned, and shift as states modify or lift the ban. The Sentencing Project estimated that approximately 180,000 women were affected by the TANF ban between 1996 and 2011, not counting those in states that had partially lifted the ban on TANF, and not counting women in states banned only from SNAP. (4)
I have focused on the impact on women, and on their children, because the recipients of TANF and SNAP are overwhelmingly women and children. TANF requires that you either be pregnant, or the custodial parent or relative caregiver of a minor child, and approximately 90% of the adults who receive TANF are women. Federal SNAP law provides for a limit of 3 months out of 36, for any individual who is not pregnant, disabled, employed at least 20 hours per week, or living with minor children. As a result, 62 % of non-elderly adult SNAP participants and 63 % of elderly adult SNAP participants are female, and almost half of SNAP households include children. (5) In addition, the increase in rates of incarceration for women has been very closely linked to drug offenses, more so than for men. (6) Because of the structure of the benefit programs involved, and the impact of drug offenses, the ban disproportionately affects women.
The Benefits At Issue
The federal ban prohibits any individual with a felony drug conviction from receiving TANF or SNAP. SNAP benefits, more commonly called Food Stamps, are completely federally funded, and provide an average of $1.40 cents per person per meal. Currently, the maximum Food Stamp allotment for a mother and two children is $511/month nationally; however the average monthly SNAP benefit nationally for a family of three is only $379/month.
TANF benefits, which are funded by a federal block grant, and vary by state, are a maximum of $316/month for a mother and child, or $403/month for a mother and two children, in most counties in Pennsylvania. The grant levels for TANF have not been raised in Pennsylvania since January 1, 1990. In Pennsylvania, the maximum TANF grant and Food Stamp benefits combined are only 54% of the federal poverty line for a family of three. Yet Pennsylvania’s TANF grant levels are higher than those of 21 other states. (7)
If, as a result of the ban, a mother with one child is only able to get benefits for the child and not for herself, the family is reduced to 39% of the federal poverty line. Because it is impossible to find safe housing, and buy food, clothing and other necessities at that level of income, the ban inevitably results in families becoming homeless, and children entering or staying longer than necessary in foster care. The strain of severe poverty increases the likelihood of relapse into addiction and a return to jail.
The costs of foster care (approximately $630/month per child) and of incarceration (over $3,000/month per person in the Philadelphia jails) (8) far exceed the cost of granting benefits. In fact, it costs over five times as much to maintain one child in foster care and a mother in jail than to provide them with TANF and Food Stamps.
Although the benefits at issue are small, they make an incredible difference to the women involved. Here are some typical quotes from women I interviewed;
Linda: If I could get welfare it would make a lot of difference to me. I wouldn’t have to ask nobody for anything. I’d have something of my own.
Tanya: We still need welfare until we are strong enough to get on our feet. Trying to stay clean, trying to be responsible parents and take care of our families…We trying to change our lives. Trying to stop doing wrong things. Some of us need help. Welfare helps us stay in touch with society.
The impact of the ban has also been described in a study done by Yale University researchers who interviewed 110 affected individuals recently released from prisons in states with bans in effect. They found that 38% of the women they interviewed who were living with children had not eaten for an entire day in the past month, and 25% of the women living with children reported that their children had not eaten for a day in the past month. “These individuals are incredibly vulnerable when they are released from a prison. If they cannot get government food assistance, they are much more likely to be hungry and thus engage in dangerous sexual behavior in exchange for money or food for themselves or their children.” (9)
As one of the women I interviewed said; “Now it matters because I’m trying to do the right thing.”
Amy E. Hirsch
Community Legal Services, Inc.
1. Each state has its own laws which define which offenses are felonies, and which drug crimes are misdemeanors or felonies. In Pennsylvania, whether a drug crime is a misdemeanor or a felony is not dependent on the quantity of drugs. The quantity is relevant to sentencing, but not to the classification of the offense. Possession with intent to deliver is a felony regardless of the amount of drugs involved. See § 13(a)(30) of the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-101 et seq.
2. The ban is codified at 21 U.S.C.S862a.
3. See Center for Law and Social Policy, “No More Double Punishments” (updated March 2017), http://www.clasp.org/resources-and-publications/publication-1/Safety-Net-Felony-Ban-FINAL.pdf.
4. The Sentencing Project, “A Lifetime of Punishment,” (updated September 2015), http://sentencingproject.org/wp-content/uploads/2015/12/A-Lifetime-of-Punishment.pdf.
5. USDA Food and Nutrition Service, “Characteristics of Supplemental Nutrition Assistance Program Households: Fiscal Year 2014 (December 2015), https://fns-prod.azureedge.net/sites/default/files/ops/Characteristics2014.pdf.
6. Center for American Progress, “Removing Barriers to Opportunity for Parents With Criminal Records and Their Children at p. 5 (Dec. 2015), https://cdn.americanprogress.org/wp-content/uploads/2015/12/09060720/CriminalRecords-report2.pdf.
7. Center on Budget and Policy Priorities, “TANF Cash Benefits Have Fallen by More Than 20% in Most States and Continue to Erode” (updated Oct. 17, 2016), http://www.cbpp.org/research/family-income-support/tanf-cash-benefits-have-fallen-by-more-than-20-percent-in-most-states .
8. https://static.prisonpolicy.org/scans/Philadelphias_Crowded_Costly_Jails_rev.pdf (estimate of $95/day in 2009).
9. Helen Dodson, “Ban on food stamps leads to hunger, HIV risk among former drug felons” quoting Dr. Emily Wang, Yale School of Medicine, Yale News, March 25, 2013, http://news.yale.edu/2013/03/25/ban-food-stamps-leads-hunger-hiv-risk-among-former-drug-felons.