To Punish the Poor: Criminalizing Trends in the Welfare System

Kaaryn Gustafson, University of Connecticut School of Law

Abstract

In addition to providing a safety net, though a threadbare one, for impoverished families, the welfare system in the United States is increasingly casting a broad net that gathers poor families into the criminal justice system. Families usually turn to the welfare system as a last resort, when they cannot find employment to provide sufficient income for their most basic needs. The cash benefits available under Temporary Aid to Needy Families (TANF), however, are far too low to sustain a family. Families receiving TANF benefits are overwhelmingly female-headed; in fiscal year 2000, men made up only 10 percent of adult TANF recipients (ACF 2002). Women on welfare have long been penalized for the sins of being poor, for declining (for whatever reasons) to join male-headed households through civil marriage, and for bearing children outside marriage. They have been penalized through the provision of completely inadequate levels of support, through public shaming, and through intrusive administrative forays into their personal lives that none but the truly needy would tolerate. In recent years, however, the penalizing of welfare recipients has shifted from the metaphorical to the literal as policies have been enacted to criminalize a population long deemed socially repugnant. This shift has a decidedly racial character in at least three different ways. First, for a complex set of historical, economic and social reasons, the welfare rolls include a disproportionately high number of African-American and Latina women, a disparity that has only increased since the implementation of the 1996 welfare reforms (Savner 2000). Any policy that negatively affects women on welfare will have a negative impact on the women of color over-represented in the welfare system and among the poor. If women on welfare are being vigorously prosecuted for welfare fraud, or fingerprinted and subjected to random drug testing as a condition of receiving government assistance, then women of color will be subject to these practices much more often than white women. Table 1: Race of AFDC/TANF Recipients (Percent of all families) FY 1996 FY 2000 White 35.9 31.2 Black 36.9 38.6 Hispanic 20.8 25.0 Asian 3.0 2.2 American Native 1.4 1.6 Other - 0.6 Unknown 2.0 0.8 Source: United States Administration for Children and Families 2002 Second, the criminalization of women on welfare converges with—and becomes a constituent part of—another trend particularly prevalent in, but by no means confined to the African-American community: the increasing rates of arrest, conviction, and incarceration of women (Harrison and Karberg 2003). At the same time that a rising number of women of color were being convicted on drug-related felony charges (Davis and Shaylor 2001:182-183), the welfare rules in many states changed to exclude individuals with felony convictions from receiving various government benefits. Third, the criminalization of women welfare plays upon longstanding stereotypes that widespread social ills—from drug use to criminal activity to sexual depravity—are rooted in communities where African-American women raise children outside of the patriarchal model of state-sanctioned marriage. These stereotypes hold not only that black women are to blame for failing to socialize their children and run their communities properly, but also that they are to blame for giving birth to the young men, and increasingly the young women, who often wind up in the criminal justice system. According to these views low income women of color embody and breed criminality. This paper traces some of the criminalizing practices that have emerged in the welfare system since the U.S. Congress passed, and President Bill Clinton signed, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (hereafter “PRWORA”). PRWORA abolished federal entitlement to relief for poor families under the Aid to Families with Dependent Children program and instituted TANF, a program available for only a maximum of 60 months throughout an adult’s lifetime. TANF allows states to set other limits or impose other conditions on families receiving aid. The legislation contains a number of punitive measures designed to push welfare recipients into the work force and imposes harsh penalties on households whose members fail to comply with new welfare rules and requirements or who engaged in criminal conduct unrelated to welfare receipt. In addition, the 1996 legislation fashioned the welfare system into a new tool in U.S. crime control efforts. This paper highlights a number of criminalizing trends in welfare policy and practice. The following section defines the term “criminalization” as it is used in this paper and provides some historical context to the current welfare system and the increasing association of welfare receipt with criminality. The next two sections describe some of the criminalizing trends, first, at the federal level and, second, at the state level. A final section describes local practices that criminalize welfare recipients.