Arienne J. Jones is an attorney who advocates for a reimagined justice system. She currently serves as Senior Policy Advisor at the Cook County State’s Attorney’s Office in Chicago.[1]
Here, Arienne discusses the criminalization of poverty and its impact on public benefits recipients.
Next week, she will continue the discussion by highlighting how homelessness is criminalized.
In San Diego, California, a single mother decides to apply for welfare benefits to assist her family with its most basic survival needs. Before her application can be approved, the mother must submit to an unannounced home visit by a welfare fraud investigator, who then interviews her and inspects any area of her home they may choose. If the mother refuses to consent, her welfare application will automatically be denied. This, then, forces the mother to choose between her right to privacy and her family’s ability to survive.
In theory, the mother made the choice to try to help her family; yet, to do so, she may have to sacrifice her right to privacy. That the mother must choose between these two seemingly unrelated things – survival and privacy – is a result of lawmakers’ choice to criminalize the poor for their poverty. If she chooses the former, the mother runs the risk of being characterized as a criminal and/or treated as a criminal suspect simply because she did something necessary for her family’s survival. If the mother elects the latter, she may not be able to provide her family with its most basic needs.
More than Fines and Fees
In the last several years, much attention has been given to how the United States criminalizes poverty through the imposition of excessive fines, fees, bail, and other financial obligations imposed by the criminal legal system. This increased scrutiny is a direct result of the 2014 killing of Black teenager Michael Brown by a white police officer in Ferguson, Missouri, a suburb of St. Louis.
After Brown’s killing, the Department of Justice investigated both the Ferguson Police Department and Municipal Court. Among its findings, the Ferguson investigation revealed that the Municipal Court assessed such onerous costs that it “imposed a particular hardship upon Ferguson’s most vulnerable residents, especially those living in or near poverty.” These included levying charges, fines, and fees when people missed court appearances for minor local law violations, such as parking infractions and traffic tickets, coupled with a policy of refusing defendants’ requests for fine reductions or other alternatives, like community service. If a defendant continued to fail to pay their fines and fees, they could face jail time, regardless of the reality that many people did not pay their debts simply because they could not afford to do so.
Ferguson, while a drastic example of how the criminal legal system entangles the most vulnerable members of society into a never-ending cycle of debt for miniscule legal violations, is not alone in its policies. Across the United States, in response to small, non-dangerous infractions of law, local governments impose fines and fees against rule-breakers, many of whom live at or below the poverty line and can ill afford the additional burden placed on them by the courts.
However, before the poor are saddled with the responsibility of sacrificing their limited fiscal resources to the courts, they must have committed, or been accused of committing, some act that violates a law. These violations are often benign, but their criminalization risks placing even greater burdens and stigma on some of society’s most vulnerable members simply because of their socioeconomic status.
Welfare Recipients as Criminal Suspects
There are a variety of public benefits programs throughout the United States, both at state and federal levels. These include housing assistance; the Supplemental Nutritional Assistance Program (SNAP), formerly known as food stamps; Medicaid; and the Children’s Health Insurance Program (CHIP), among others.
Beginning in the 1970s, cities and states started enacting harsh surveillance policies as prerequisites to approval for and receipt of such benefits. These polices require invasive investigation into the personal lives of welfare applicants and recipients, including fingerprinting; interviews with applicants, their loved ones, neighbors, and employers; drug testing; testing children’s paternity; and unannounced, warrantless visits to verify an applicant’s eligibility or a recipient’s compliance with eligibility rules.
The rationale behind these increasingly intrusive investigations is to prevent welfare fraud. However, these rules are almost exclusively enacted for government benefits needed by the poorest in our communities, who tend to be primarily women of color, senior citizens, and people with disabilities. Indeed, more socioeconomically stable groups who receive government benefits, such as farmers who receive subsidies, are not subjected to the same type of surveillance as preconditions to receiving their aid.
This system of treating poor public benefits applicants and recipients as criminals or criminal suspects is a product of the era between the late 1970s and mid-1990s. First, Ronald Reagan gave the racist “welfare queen” trope a national platform during his first presidential campaign. Then, Bill Clinton supported the enactment of harsher restrictions on who could receive federal benefits and for how long. The fearmongering that colored this era gave rise to increased public perception that welfare benefits recipients were either criminals or criminal-adjacent simply because of the poverty that necessitated their need for government assistance.
Then, when law enforcement agencies found the rare case of egregious welfare fraud, they used such cases as examples of the prevalence of this crime and the need for greater surveillance of low-income recipients. Yet welfare fraud committed by recipients was and is relatively uncommon. For example, in 2015, the combination of fraud, overpayments, and underpayments in federal and state public benefits programs only accounted for approximately five percent (5%) of the money spent on assistance. In 2016, only .9% of the of the money distributed for SNAP benefits was the result of fraud committed by recipients.
Today, the practice of treating low-income public benefits applicants and recipients as criminals persists. So prevalent are the policing policies around receiving public benefits that the desire to deter, uncover, and punish rare instances of welfare fraud has overshadowed the inclination to provide accessible assistance to society’s most economically vulnerable.
Where do we go from here?
The most obvious way to stop criminalizing poverty is, first, to eradicate the larger societal issues that create poverty. Then, cities should repeal the ordinances most commonly used to police our most vulnerable community members. Alternatively, governments can choose to incorporate non-fiscal penalties for rules violations, including community service. For welfare recipients, government actors should end the practice of surveilling welfare beneficiaries and applicants under the guise of rooting out fraud.
Prosecutors, too, have a role to play. They can, and should, decline to prosecute crimes that result from poverty circumstances, and end the practice of policing the private lives of welfare recipients by drastically reducing the role they play in welfare fraud investigations and prosecutions. Currently, many prosecutors’ offices across the United States dedicate some of their limited fiscal and human resources to prosecuting welfare fraud cases, including employing welfare fraud investigators to conduct unannounced home visits; and using welfare records to search for fugitive felons who have active warrants for unrelated issues.
However, if prosecutors insist on punishing instances of welfare fraud, they should narrow their focus to the most egregious violations, including cases of organized welfare fraud and those in which individuals prey on both low-income victims and health insurers by intentionally billing insurers for services they did not provide. This narrower focus would serve two purposes: first, it would redirect finite resources to the most serious fraud cases; and second, it would ensure that the average public benefits recipient is not trapped in the criminal legal system simply because they either made an unintentional error or chose to make an unwise decision while stuck between a rock and a hard place.
Poverty is not a crime. The choice to punish people for being poor – for relying on public benefits to barely meet their most basic needs – is really a way of blaming individuals for greater governmental and societal failures.
[1] The views expressed in this commentary are the author’s own and do not reflect those of the Cook County State’s Attorney’s Office.