The criminalization of poverty.

• Author: Gustafson, Kaaryn

1. INTRODUCTION

   The word welfare is now commonly used pejoratively--as in "welfare mother" or "welfare queen." We often hear the word welfare used to describe a bureaucratic mess or to describe economically and socially marginalized populations. Lost in these contemporary understandings of welfare is the association of welfare with wellbeing, particularly collective, economic wellbeing. Many of the current welfare policies and practices are far removed from promoting the actual welfare of low-income parents and their children. The public desire to deter and punish welfare cheating has overwhelmed the will to provide economic security to vulnerable members of society. While welfare use has always borne the stigma of poverty, it now also bears the stigma of criminality. This change in perspective has under-examined implications for both welfare law and criminal law. This Article examines those implications.

   Over the last several decades, criminal law enforcement goals, strategies, and perspectives have grown entangled with the welfare system, a putatively benevolent arm of the state. Government welfare policies increasingly treat the poor as a criminal class, and the treatment of low-income women as criminals has occurred at all levels of government--federal, state, and local. The 1996 federal welfare reform legislation required states to implement measures to control welfare fraud. (1) While states have approached the policing of welfare fraud with varying levels of zeal, there is a clear trend toward toughness on welfare recipients who run afoul of regulations or who fail to comply with welfare rules. (2)

   Perhaps no state has been tougher on welfare fraud than California. California is one of the most aggressive states not only in investigating and prosecuting welfare fraud cases, but also in welcoming law enforcement into the welfare system. (3) Even before receipt of a first issuance of a grant, an applicant for welfare is reminded of the welfare system's punitive rules and undergoes state scrutiny otherwise limited to criminal offenders. A welfare recipient has likely signed documents informing her that her welfare grant will be reduced or terminated if she has a boyfriend move in without informing the state, if she fails to vaccinate her children, or if she is convicted of a drug charge. She has probably signed a document stating that any child she conceives and gives birth to while on welfare will be excluded from calculations of household financial need. Her Social Security number has been matched against state and national criminal records to make sure that she is not someone who should be incarcerated, that she does not have an outstanding arrest warrant, and that she has not been convicted of a drug-related crime. The financial information she has provided has been matched against various employment databases, IRS records, and Franchise Tax Board records to see that her lack of income is verifiable. Her personal information has been entered into the welfare system's database, which may be accessed by law enforcement officers without any basis for suspicion that she has engaged in any wrongdoing. She has been photographed and fingerprinted. And all of this has occurred before she has received a single welfare check.

   Particular California counties are especially zealous in policing welfare fraud. San Diego, for example, takes a more proactive approach to welfare cheating than other California counties. In 1997 the County established a program known as Project 100%. (4) Under the program, all individuals who apply for California's welfare program, known as CalWORKs, are subject to an unannounced home visit by a plain-clothed welfare fraud investigator, who is deputized and employed by the local prosecutor's office. (5) Home visits occur before benefits are issued, and consist of an interview and a walk-through of the home. Investigators may, and do, look inside closets, bathroom cabinets, laundry baskets, and trash cans during the walkthrough. (6) Welfare applicants are informed that the home visits are designed to verify their eligibility. (7) Anyone who refuses consent for the interview or walk-through will automatically have her welfare application denied. (8) If the home visit and walk-through reveals any evidence of criminal activity, the county investigator may make a referral for criminal investigation. (9)

   San Diego County's practices, some of the most aggressive in the country, are emblematic of the broader trends in both welfare provision and the intermingling of the welfare and criminal justice systems. Nationwide, welfare applicants are treated as presumptive liars, cheaters, and thieves. Low-income families find their lives heavily surveilled and regulated--not only by welfare officials, but also by the criminal justice system. And low-income individuals may not be aware of the complex rules and regulations that take effect when applying for government benefits or of the many ways the government surveilles their actions. Policing the poor and protecting taxpayer dollars from misuse have taken priority over providing for the poor. Regulating the behavior of the poor and deterring fraud are now the objects of political attention and government resources, even when the goals of such regulation are unclear and the methods of deterrence are unevaluated and costly.

   More than forty-five years ago, Professor Charles Reich wrote that it would undermine the fundamental purposes of welfare provision to "violate the sanctity of the home and degrade and humiliate recipients." (10) Yet today, some of the key purposes of welfare policies are to regulate the home and to degrade welfare recipients to such a degree that they are deterred from using welfare. (11)

   The term criminalization is used in this Article to describe a web of state policies and practices related to welfare. (12) There are several different kinds of criminalizing policies and practices. First, there are a number of practices involving the stigmatization, surveillance, and regulation of the poor. (13) These practices are historically embedded in aid programs to the poor. As Part II of this Article describes, the welfare reforms implemented near the end of the twentieth century raised these practices to a new level.

   Second, many of the policies written into the federal and state welfare reform laws assumed a latent criminality among the poor. The welfare reform measures were aimed at excluding welfare recipients who had engaged in illicit behavior (such as drug use or possession) in the past, and were aimed at imposing harsh penalties on welfare recipients who engaged in illicit behavior while receiving government benefits. (14) These policies engaged the get-tough-on-crime approach used by the criminal justice system.

   The third type of criminalizing practices involved the growing intersection between the welfare system and the criminal justice system. This intersection includes not only overlapping goals and attitudes toward the poor, but also collaborative practices and shared information systems between welfare offices and various branches of the criminal justice system. Both these systems are now preoccupied not with addressing social ills, but rather with reducing the risks associated with social ills. Very concrete examples of this criminalization exist in the welfare system--most notably, aggressive investigations into and increasing prosecutions for welfare fraud. (15) These government practices, which involve both the welfare offices and the criminal justice system, are leaving a large and growing number of parents with criminal records and paying criminal penalties. More troubling, the policing of welfare fraud typically occurs at the local level, so that dramatically disparate rates of investigation and prosecution appear to exist among counties, even those in a single state. (16)

   The following Part of this Article describes the historical and political progression through which welfare fraud and welfare cheats became such a concern in the United States. Part III then details some of the federal programs and state and local practices that have in recent years contributed to the criminalizing trends. That Part also examines the movement away from civil penalties for welfare cheating and the increasingly aggressive pursuit and punishment of welfare cheating as a felony crime. Part IV examines the tenuous and troubling state of constitutional protections for the poor under recent case law. Finally, Part V proposes some policy changes to address the problematic convergence of the welfare and criminal justice systems. It also considers why legal scholars should become more attentive to the intermingling of government programs and strategies and, more specifically, attentive to the poor.

2. THE HISTORY OF THE CRIMINALIZATION OF POVERTY

   1. FROM 1935 THOUGH THE 1960S: CHANGES IN WELFARE DEMOGRAPHICS AND THE RISE OF MIDNIGHT SEARCHES

      The criminalization of welfare recipients entails a long historical process of public discourse and welfare policies infused with race, class, and gender bias. (17) State and federal government aid programs developed in the first half of the twentieth century supported white, male workers and the white women and children dependent upon their wages while they excluded a huge segment of poor women of color and their children. (18) The Social Security Act created Aid to Dependent Children (ADC), a program specifically designed for poor mothers and their children and originally intended to support the widows of working men. (19) After World War II, the ADC rolls grew--from about 900,000 individuals in 1945 to approximately three million in 1960. (20) The proportion of families headed by divorced or unmarried mothers grew, while the proportion of families headed by widows declined. (21) In addition, the number of African-American families receiving welfare rose, especially as poor African-American...