The criminalization of poverty

Journal of Criminal Law and Criminology

Volumn 99, Issue 3, 2009, Pages 643-716

  Gustafson, Kaaryn ^a  

^a UNIVERSITY OF CONNECTICUT   (United States)

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EID: 77950427020     PISSN: 00914169     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (359)

1. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, Title IX, § 911, 110 Stat. 2105, 2353 (codified as amended at 42 U.S.C. § 608(a) (2006))
2. H. COMM. ON WAYS & MEANS, 1996 GREEN BOOK: BACKGROUND MATERIAL AND DATA ON PROGRAMS WITHIN THE JURISDICTION OF THE COMMITTEE ON WAYS AND MEANS, WMCP 104-14, app. L (104th Cong., 2d Sess. 1996) (summarizing, inter alia, the fraud control requirements for states).
3. See infra notes 89-105 and accompanying text (discussing state sanction rules for welfare recipients in California and other states).
4. See infra notes 242-276 and accompanying text (discussing history of home searches of welfare recipients in California); note 201 and accompanying text (discussing the preference for criminal penalties over civil penalties for welfare cheating in California).
5. Sanchez v. County of San Diego, No. 00 CV 1467 JM(JFS), 2003 U.S. Dist. LEXIS 27538, *2 (S.D. Cal. Mar. 7, 2003).
6. Sanchez v. County of San Diego, No. 00 CV 1467 JM(JFS), 2003 U.S. Dist. LEXIS 27538, *5-6.
7. Sanchez v. County of San Diego, 464 F.3d 916, 919 (9th Cir. 2006).
8. Sanchez v. County of San Diego, 464 F.3d 916, 919 (9th Cir. 2006).
9. Sanchez v. County of San Diego, 464 F.3d 916, 919 (9th Cir. 2006).
10. Sanchez v. County of San Diego, 464 F.3d 916, 919 (9th Cir. 2006)919 n.3.
11. Charles A. Reich, Midnight Welfare Searches and the Social Security Act, 72 YALE L.J. 1347, 1360 (1963).
12. Norma M. Riccucci, Street-Level Bureaucrats and Intrastate Variation in the Implementation of Temporary Assistance for Needy Families Policies, 15 J. PUB. ADMIN. RES. & THEORY 89, 102-03 (2005) (finding that frontline welfare administrators in Michigan view reducing the number of people on welfare to be a state policy priority).
13. The term criminalization of poverty is frequently used by advocates for the homeless to describe ordinances, such as panhandling statutes and anti-loitering statutes, and selective enforcement targeting homeless individuals
14. METRO ATLANTA TASK FORCE FOR THE HOMELESS, THE CRIMINALIZATION OF POVERTY (1993)
15. David M. Smith, A Theoretical and Legal Challenge to Homeless Criminalization as Public Policy, 12 YALE L. & POL'Y REV. 487 (1994). I use the term more broadly, however, to include all of the poor who use, or even apply for, means-tested public benefits.
16. A number of sociologists use the term criminalization of poverty to describe an element of neoliberalism that involves the mass incarceration of poor people of color
17. ZYGMUNT BAUMAN, COMMUNITY: SEEKING SAFETY IN AN INSECURE WORLD 120 (2001) (describing the criminalization of the poor as the "ongoing exchange of population between the ghettos and the penitentiaries, each serving as a huge and growing input source for the other")
18. Loïc Wacquant, The Penalization of Poverty and the Rise of Neo-Liberalism, 31 CAPITULO CRIMINOLÓGICO 7, 16 (2003) (describing the criminalization of poverty in the United States as "a sharp and brutal substitution of the social-welfare treatment of poverty by penal treatment backed by all-out 'carceralization'").
19. See infra notes 147-153 and accompanying text (discussing fingerprint imaging); notes 163-176 and accompanying text (discussing drug testing); notes 89-99 and accompanying text (discussing administrative sanctions).
20. See infra notes 130-138 and accompanying text (discussing the felony drug exclusion); notes 109-113 and accompanying text (discussing the fugitive felon provision).
21. See infra note 228 (discussing a trend among the states to punish welfare cheating through criminal prosecution rather than through civil administrative remedies).
22. See infra notes 199-200 and accompanying text (discussing prosecutorial discretion and localized practices of punishing welfare cheating).
23. KENNETH J. NEUBECK & NOEL A. CAZENAVE, WELFARE RACISM: PLAYING THE RACE CARD AGAINST AMERICA'S POOR 35 (2001) (using the term welfare racism to describe "the various forms and manifestations of racism associated with means-tested programs of public assistance for poor families")
24. Neubeck and Cazenave describe "the abolition of [Aid to Families with Dependent Children (AFDC)] and the substitution of punitive welfare reform policies for the safety net needed by impoverished families" as the "ultimate expression of welfare racism."
25. JILL QUADAGNO, THE COLOR OF WELFARE 15 (1994) (arguing that "the motor of American history has been the continual reconfiguration of racial inequality in the nation's social, political, and economic institutions").
26. Barbara J. Nelson, The Origins of the Two-Channel Welfare State: Workmen's Compensation and Mothers' Aid, in WOMEN, THE STATE, AND WELFARE 124 (Linda Gordon ed., 1990) (arguing that we should view "the welfare state as fundamentally divided into two channels, one originally designed for white industrial workers and the other designed for impoverished, white, working-class widows with young children").
27. See generally Nelson, supra note 18.
28. The Aid to Dependent Children (ADC) caseload in 1942 was 901,560. WINIFRED BELL, AID TO DEPENDENT CHILDREN 208 n.24 (1965). By the beginning of 1960, the number of individuals receiving ADC had grown to 2,964,135 children and their adult caretakers
29. Jules H. Berman, Public Assistance Under the Social Security Act, 14 INDUS. & LAB. REL. REV. 83, 88 (1960).
30. Jules H. Berman, Public Assistance Under the Social Security Act, 14 INDUS. & LAB. REL. REV. 83 106. (1960)
31. FRANCES FOX PIVEN & RICHARD A. CLOWARD, REGULATING THE POOR: THE FUNCTIONS OF PUBLIC WELFARE 184-89 (updated ed. 1993).
32. BELL, supra note 20, at 76 (explaining that the rules "had no standing in the general state statutes" and tended most heavily to affect African Americans). These morality standards were indeed generally intended as tools of racial oppression. In response to a school desegregation order by a federal court, the Louisiana state legislature passed a "segregation package" that included welfare legislation designed to economically disempower African Americans in the state. NEUBECK & CAZENAVE, supra note 17, at 70, 74. The legislation included welfare reforms excluding from public benefits women who had, in the last five years, lived in a common-law marriage or who had given birth outside of marriage. Id. at 71. The legislation rendered ineligible "6,000 families with 22,500 children-95 percent of whom were African American." Id.
33. Charles A. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 YALE L.J. 1245, 1248 (1965).
34. BELL, supra note 20, at 41-46 (describing the suitable home requirements); id. at 87-92 (describing surveillance of welfare mothers by welfare caseworkers).
35. BELL, supra note 20, at 41-46 (describing the suitable home requirements); id. at 87-92 (describing surveillance of welfare mothers by welfare caseworkers) 77-78.
36. See generally Parrish v. Civil Serv. Comm'n, 425 P.2d 223, 232-33 (Cal. 1967) (holding unannounced early morning searches invalid under the California Constitution). These surprise searches, done without warrants, were conducted in the early morning by teams of both fraud investigators and social workers. Id. at 225. Surprise home visits in California stopped after an Alameda County social worker, Benny Max Parrish, refused to continue participating in Sunday morning raids of welfare recipients' homes. Id. at 226, 234. Parrish, after being fired for insubordination, challenged his dismissal, claiming he had been asked to participate in illegal activity. Id. at 226. The California Supreme Court held that the raids violated welfare recipients' rights to privacy and were unreasonable, and that Parrish was justified in refusing to participate. Id. at 234.
37. NEUBECK & CAZENAVE, supra note 17, at 96-97. In 1962, the Senate Appropriations Committee held hearings on welfare fraud in the District of Columbia. Id. According to Kenneth Neubeck and Noel Cazenave, the hearings were sparked by segregationist U.S. Senator Robert Byrd, who was preoccupied not only by the rising welfare caseloads in the District, but also by both the rising population of African Americans in the District and the recent passage of the Twenty-Third Amendment giving D.C. residents the right to vote. Id. at 92-104.
38. Id. at 102. Neubeck and Cazenave note that in congressional discussions of welfare cheating in this era, unmarried men in intimate relationships with women receiving welfare "were portrayed as being, on the one hand, men who exploited welfare-reliant mothers and their children, and on the other hand, as men who provided for them. Both actions violated ADC policy, and, taken separately, each depiction presented a very negative view of these men, their motives, and their actions." Id.
39. DANIEL PATRICK MOYNIHAN, U.S. DEP'T OF LABOR, THE NEGRO FAMILY: THE CASE FOR NATIONAL ACTION 30 (1965).
40. DANIEL PATRICK MOYNIHAN, U.S. DEP'T OF LABOR, THE NEGRO FAMILY: THE CASE FOR NATIONAL ACTION 30 (1965) 5-6, 14.
41. DANIEL PATRICK MOYNIHAN, U.S. DEP'T OF LABOR, THE NEGRO FAMILY: THE CASE FOR NATIONAL ACTION 30 (1965) 9.
42. DANIEL PATRICK MOYNIHAN, U.S. DEP'T OF LABOR, THE NEGRO FAMILY: THE CASE FOR NATIONAL ACTION 30 (1965) 12.
43. King v. Smith, 392 U.S. 309 (1968).
44. King v. Smith, 392 U.S. 309 (1968)329.
45. King v. Smith, 392 U.S. 309 (1968) 315.
46. U.S. DEP'T OF HEALTH & HUMAN SERV., INDICATORS OF WELFARE DEPENDENCE: ANNUAL REPORT TO CONGRESS tbl. TANF 6 (2003), available at http://aspe.hhs.gov/hsp/indicators03/apa.htm#ttanf6 (last visited May 15, 2009).
47. KATHRYN EDIN & LAURA LEIN, MAKING ENDS MEET: HOW SINGLE MOTHERS SURVIVE WELFARE AND LOW-WAGE WORK 147-84 (1997)
48. SUDHIR ALLADI VENKATESH, AMERICAN PROJECT 46 (2000) (discussing how families often reported men as absent from the household so that they could qualify for cash aid under AFDC).
49. For a detailed description of this administrative "churning," see PIVEN & CLOWARD, supra note 22, at 373-81.
50. For a detailed description of this administrative "churning," see PIVEN & CLOWARD, supra note 22, at 375-76 ("Forms written in legalese were mailed out (as often as monthly) asking poorly-educated recipients with erratic mail delivery to fill in the blanks and provide documentation justifying the continuation of checks.").
51. Timothy J. Casey & Mary R. Mannix, Ctr. on Soc. Welfare Policy & Law, Quality Control in Public Assistance: Victimizing the Poor Through One-Sided Accountability, 22 CLEARINGHOUSE REV. 1381, 1385 (1989) ("Extreme verification requirements create a cycle, known as 'churning.' Eligible families have their applications rejected or their cases closed for failure to verify, and then they reapply to gain or regain benefits.").
52. Michael Lipsky, Bureaucratic Disentitlement in Social Welfare Programs, 58 SOC. SERV. REV. 3, 13 (1984) ("[E]xclusive concern with quality control errors resulted in diminished attention to helping recipients or concern about whether they fully received all to which they were entitled."). The Reagan Administration began penalizing states that overpaid benefits to the poor. Under an "error rate reduction system" implemented by the Reagan Administration, a state that could be shown to have an error rate of more than 5% on food stamp cases lost out on a portion of the funds it would otherwise have received from Washington.
53. Michael J. Puma & David C. Hoaglin, Food Stamp Payment Error Rates: Can State-Specific Performance Standards Be Developed?, 85 J. AM. STAT. ASS'N. 891, 891 (1990) (noting that between 1981 and 1985, the Food and Nutrition Service of the U.S. Department of Agriculture assessed "423.5 million in liabilities against 49 states" for their food stamp error rates).
54. Only overpayment was penalized; from 1973 to 1977, underpayment to an eligible recipient, or the failure to serve an eligible person altogether, did not count as an error for the purpose of that calculation. Casey & Mannix, supra note 41, at 1381, 1382. This system created a strong incentive for welfare administrators to err on the side of caution in determining eligibility for aid. In fact, hunger rose in the United States during the early 1980s.
55. Joseph Lelyveld, Hunger in America: The Safety Net Has Shrunk but It's Still in Place, N.Y. TIMES, June 16, 1985, at 20.
56. Casey & Mannix, supra note 41, at 1386 (noting that home visits declined in the 1970s, though also noting that the Department and Health and Human Services instructed states in 1984 that they might return to home visits to reduce overpayments to welfare recipients).
57. David Burnham, U.S. Agencies Starting to Bolster Meager Defenses Against Fraud, N.Y. TIMES, Apr. 17, 1978, at A1.
58. Inspector General Act of 1978, Pub. L. No. 95-452, § 3, 92 Stat. 1101, 1101-02. The Inspector General's duties were to root out waste and fraud in government programs, and report instances of abuse directly to the U.S. Attorney General.
59. A 1978 Department of Health, Education, and Welfare Inspector General's report revealed costly fraud and abuse in the programs the department oversaw. OFFICE OF THE INSPECTOR GEN., DEP'T OF HEALTH, EDUC. & WELFARE, ANNUAL REPORT: JANUARY 1, 1978-DECEMBER 31, 1978 (1979). The Inspector's report criticized, in particular, defaulted loans in the student aid program and abuses by medical providers, particularly pharmacies and physicians, in the Medicaid and Medicare programs. Id. at 58-68, 122. (The report gives the impression that overpayments to AFDC recipients and fraud by government officials in both the cash aid and food stamp programs, though occurring, were problems secondary to the student aid and medical aid abuses.) The Inspector General's recommendations for attacking fraud, abuse, and error in income maintenance programs, such as AFDC, targeted improvements in information systems and better data exchange between government agencies.
60. 'Welfare Queen' Becomes Issue in Reagan Campaign, N.Y. TIMES, Feb. 15, 1976, at 51.
61. 'Welfare Queen' Becomes Issue in Reagan Campaign, N.Y. TIMES, Feb. 15, 1976, at 51.
62. MARTIN GILENS, WHY AMERICANS HATE WELFARE: RACE, MEDIA, AND THE POLITICS OF ANTIPOVERTY POLICY 115 (1999).
63. RUSSELL B. LONG, S. COMM. ON FINANCE, 92D CONG., 2D SESS., WELFARE CHEATING (Comm. Print 1972).
64. Food Stamp Act of 1977, Pub. L. No. 106-171, 114 Stat. 3 (codified as amended at 7 U.S.C. §§ 2011-2036 (1977)).
65. The first nationally publicized case made news in 1974 when police began investigating forty-seven-year-old Chicago mother Linda Taylor for welfare fraud. Taylor herself triggered the investigation by reporting to police that fourteen thousand dollars in cash, jewelry, and furs had been stolen from her home. Welfare and Pension Swindle Laid to Woman of Many Aliases, N.Y. TIMES, Dec. 15, 1974, at 58. Early newspaper coverage of the case reported that Taylor was being investigated for using as many as fourteen different aliases over twenty-eight years to collect perhaps hundreds of thousands of dollars in welfare and social security payments. Id. The early estimates of her fraud were perhaps overestimates. In March, Taylor-who investigators and the press called the "welfare queen"-was found guilty of welfare fraud and perjury for using two aliases to collect eight thousand dollars in wrongful payments over the course of twenty-three months. Chicago Relief 'Queen' Guilty, N.Y. TIMES, Mar. 19, 1977, at 8.
66. Then, in 1978, Barbara Jean Williams, a thirty-three-year-old African-American mother from Compton, California, was convicted of ten counts of welfare fraud and twelve counts of perjury. Woman Guilty of $240,000 Welfare Fraud, WASH. POST, Dec. 2, 1978, at A4. According to a newspaper account of the investigation: Officials were alerted by an anonymous telephone tip to feed the name of Barbara Jean Thompson, one of Williams' alleged aliases, into the computer. The computer printout showed a pattern of identical or similar names for the recipients' alleged needy children. Williams was later accused of filing for aid in 10 welfare offices and collecting a total of $239,587 from September 1971 to February 1978.
67. At the time she applied for aid, the welfare system had not yet been computerized, making it easy for a willful criminal to apply for aid by opening multiple cases under different names. Williams was ultimately sentenced to eight years in jail for cheating the system. 'Queen of Welfare' Ordered Jailed in $239,500 Fraud, N.Y. TIMES, Dec. 29, 1978, at A10. The New York Times reported that Williams was known as the "Queen of Welfare." Id. In coverage of her court case, the New York Times and the Washington Post repeatedly noted that Williams drove a Cadillac. Id.
68. Text of White House Message to Congress on Proposal to Overhaul Welfare System, N.Y. TIMES, Aug. 7, 1977, at 40.
69. See 'Welfare Queen' Becomes Issue in Reagan Campaign, supra note 47. The article noted that while campaigning for the Republican presidential primaries in New Hampshire, Reagan mentioned Linda Taylor "at nearly every stop." Id. Reagan reported greatly exaggerated facts, telling voters that Taylor had used eighty names, when, in fact, the indictment brought against her charged her with using four aliases. Id. The article noted that "[t]he 'welfare queen' item in Mr. Reagan's repertoire is one of several that seem to be at odds with the facts." Id.
70. David S. Broder, Still Learning to Be the Opposition, WASH. POST, Feb. 15, 1981, at C7.
71. Robert Pear, Reagan's Social Impact, N.Y. TIMES, Aug. 25, 1982, at A1.
72. Steven V. Roberts, Food Stamp Trims Sought by Reagan, N.Y. TIMES, Sept. 23, 1981, at A23.
73. Steven V. Roberts, Food Stamp Trims Sought by Reagan, N.Y. TIMES, Sept. 23, 1981, at 56.
74. Charles R. Babcock & Patrick Tyler, Fired U.S. Waste-Fighters Bare Government Foulups, WASH. POST, Feb. 2, 1981, at A1.
75. Steven V. Roberts,'82 Election Preview: Making Money, Making Law, N.Y. TIMES,
76. Sept. 22, 1981, at A28 (summarizing comments by California Democratic Representative Tony Coelho).
77. House Representative Guy Vander Jagt, a Michigan Republican, said, "'I suspect that a disproportionate share of blacks are on welfare, and that a disproportionate share of welfare fraud is committed by blacks. But people are not mad at black welfare chiselers, they're mad at welfare chiselers, period.'" Id.
78. Babcock & Tyler, supra note 59; see OFFICE OF THE INSPECTOR GEN., supra note 46.
79. In December of 1980, after Reagan's successful presidential campaign, another prominent welfare fraud case surfaced in California. Dorothy Woods, a thirty-eight-year-old African-American mother of six living in Pasadena, was charged with welfare fraud for, like Barbara Jean Williams, creating multiple (twelve) aliases for herself and using the names of fictitious children to receive large payments from the AFDC program. Coast Woman Admits $377,458 Welfare Fraud, N.Y. TIMES, Mar. 17, 1983, at A16; Woman's Aid Claims for 38 Children Are Examined, N.Y. TIMES, Dec. 21, 1980, at 31
80. Again, the news coverage highlighted the welfare cheat's automobiles of choice, in this case a Rolls Royce, a Mercedes Benz, and a Cadillac. Woman's Aid Claims for 38 Children Are Examined, supra. Woods was jailed in November of 1981 and, in March of 1983, pleaded guilty to forty-one criminal counts, including forgery, perjury, and welfare fraud. Coast Woman Admits $377,458 Welfare Fraud, supra. According to prosecutors, Woods had fraudulently collected $377,458 in welfare between 1974 and 1980. Id. The media dubbed Woods the "Welfare Queen," not only because of her luxury cars, but also because she lived in a large house with a swimming pool. Requiem for the Welfare Queen, WASH. POST, June 29, 1983, at A18.
81. Woods's criminal activities were not limited to welfare fraud and did not end with her fraud conviction. In 1987, Woods had her parole rescinded after the welfare office discovered she had collected a welfare check for a son who was not living with her
82. Lois Timnick, 'Welfare Queen' Arrested on New Fraud Charges, L.A. TIMES, May 22, 1987, at 3.
83. An administrative hearing, however, later determined that the welfare office had not provided fair notice before terminating her benefits and that Woods had left her son with her brother for a few weeks while searching for housing. The Region, L.A. TIMES, Aug. 9, 1987, at 2
84. In 1993, after her release from prison, Woods became head of a Pasadena church homeless shelter
85. Nicholas Riccardi, 'Welfare Queen' Held on Tax Fraud Charges, L.A. TIMES, Apr. 11, 1997, at B3
86. Her life of freedom did not last long. In 1997, Woods was again charged with fraud and pleaded guilty, this time for using the Social Security numbers of clients at the homeless shelter, forging their signatures, and fraudulently filing and collecting claims for earned-income tax credits. Official Business: Woman Pleads Guilty to New Tax Fraud Charge, L.A. TIMES, July 8, 1997, at B4.
87. WAHNEEMA LUBIANO, Black Ladies, Welfare Queens, and State Minstrels: Ideological War by Narrative Means, in RACE-ING JUSTICE, EN-GENDERING POWER: ESSAYS ON ANITA HILL
88. CLARENCE THOMAS, AND THE CONSTRUCTION OF SOCIAL REALITY 323, 332-33 (Toni Morrison ed., 1992) ("[T]he welfare queen is omnipresent in discussions about 'America's' present or future even when unnamed. All of those things are constantly in the news (not that welfare queens were ever much out of the news)-urban crime, the public schools, the crack trade, teenage pregnancy are all narratives in which 'welfare queen' is writ large.")
89. ANGE-MARIE HANCOCK, THE POLITICS OF DISGUST: THE PUBLIC IDENTITY OF THE WELFARE QUEEN (2004) (discussing negative views of welfare recipients in political debates and in public opinion).
90. The figure of the welfare queen offered (and continues to offer) contradictory stereotypes about the rationality of poor women. On the one hand, the welfare queen stereotype embodied a woman who was hyper-rational and enterprising, someone who was working the system and milking taxpayer money from the government. This welfare queen was someone who had decided to maximize her income by bearing more children and increasing her government benefits rather than working. She also represented a mother who refused to enter into marriage, which would jeopardize her benefits.
91. At the same time, the welfare queen stereotype portrayed welfare recipients as uneducated, lazy, and irrational. A welfare queen was someone who did not, or perhaps could not, pursue the long-term well-being of her family. She was someone unmotivated to seek an education to improve her station, someone who refused to take the economic risk of joining the paid labor force and leaving the welfare system. Worst of all, she had children without regard for her inability to raise them in middle-class comfort. She neither participated in the paid labor market nor took on the caretaking responsibilities for a working husband. She simply drew upon taxpayer dollars with neither gratitude nor remorse.
92. While poverty is not exclusive to women of color who have children, black mothers have come to bear much of the stigma associated with welfare
93. Dorothy E. Roberts, Racism and Patriarchy in the Meaning of Motherhood, 1 J. GENDER & L. 1, 25 (1993) ("Ideologically, in America, single motherhood is Black.").
94. Choking Food Stamps, N.Y. TIMES, Nov. 14, 1983, at A18 (noting that the Reagan Administration's focus on "fraud, waste and abuse," described in the article as "Reagan bugaboos," was making it difficult for destitute families to access public benefits).
95. Editorial, Reagan, Women and Poverty, BOSTON GLOBE, Apr. 13, 1984 (noting that Reagan's re-election efforts were aimed at middle-class women, while many of the budget cuts he implemented during his first term most affected the poor women he labeled "welfare queens").
96. WALTER I. TRATTNER, FROM POOR LAW TO WELFARE STATE: A HISTORY OF SOCIAL WELFARE IN AMERICA 370-71 (5th ed. 1994).
97. GILENS, supra note 49, at 3.
98. HANCOCK, supra note 64, at 93-94 (conducting a content analysis of the Congressional Record of the 104th Congress and finding the following terms arising frequently in debates about welfare recipients: Culture of Poverty, Don't Work, Single-Parent Family, Illegitimacy, Cross-Generational Dependency, Teen Mothers, Crime, and Overly Fertile)
99. Martha L. Fineman, Images of Mothers in Poverty Discourse, 1991 DUKE L.J. 274, 283 ("[I]n poverty discourses emanating from a broad spectrum of groups, these single mothers have been lumped together with drug addicts, criminals, and other socially-defined 'degenerates' in the newly-coined category of 'underclass.'").
100. Susan D. Bennett Describes welfare office application procedures as "discouragement practices" leading to "bureaucratic disentitlement."
101. Susan D. Bennett, "No Relief but upon the Terms of Coming into the House"-Controlled Spaces, Invisible Disentitlements, and Homelessness in an Urban Shelter System, 104 YALE L.J. 2157, 2159 (1995).
102. She explains that discouragement practices tend to take four forms: "the demand for the applicant's physical presence as a precondition to application, the physical isolation of the applicant in the waiting room, the withholding of information from the applicant, and verification extremism." Id. at 2161.
103. California began investigating applicants, not just welfare recipients, for fraud in the 1980s. A report by the 1996 U.S. Office of Inspector General notes: California was the original pioneer to use pre-eligibility fraud investigative units, and their program is one of the largest in the United Sates. It is also generally more aggressive than other States in detecting fraud. For example, many California counties used trained peace officers rather than social workers for investigators.
104. OFFICE OF THE INSPECTOR GEN., DEP'T OF HEALTH & HUMAN SERV., REP. NO. OEI-04-91-00101, AFDC PRE-ELIGIBILITY FRAUD INVESTIGATIVE UNITS 3 (1995).
105. OFFICE OF THE INSPECTOR GEN., DEP'T OF HEALTH & HUMAN SERV., REP. NO. OEI-04-91-00101, AFDC PRE-ELIGIBILITY FRAUD INVESTIGATIVE UNITS 3 (1995) 2.
106. OFFICE OF THE INSPECTOR GEN., DEP'T OF HEALTH & HUMAN SERV., REP. NO. OEI-04-91-00101, AFDC PRE-ELIGIBILITY FRAUD INVESTIGATIVE UNITS 3 (1995) 6.
107. OFFICE OF THE INSPECTOR GEN., DEP'T OF HEALTH & HUMAN SERV., REP. NO. OEI-04-91-00101, AFDC PRE-ELIGIBILITY FRAUD INVESTIGATIVE UNITS 3 (1995) 8.
108. OFFICE OF THE INSPECTOR GEN., DEP'T OF HEALTH & HUMAN SERV., REP. NO. OEI-04-91-00101, AFDC PRE-ELIGIBILITY FRAUD INVESTIGATIVE UNITS 3 (1995) 11-12.
109. Wilson cut AFDC benefits by 5.8% in 1992. Jane Gross, U.S. Court Delays Welfare Cutback, N.Y. TIMES, Dec. 24, 1992, at A10. Wilson also sought to provide reduced benefits to welfare recipients who moved from other states, though a federal court prohibited that restriction, citing Shapiro v. Thompson, 394 U.S. 618 (1969), a Supreme Court case holding that residency restrictions on AFDC violate a constitutional right to travel. Id.
110. Carla Rivera, Experimental Fingerprint Program Targets Aid Fraud, L.A. TIMES, Apr. 7, 1994, at B4
111. A consultant to the Senate's Budget Committee noted that finger imaging would raise the $72 million a year the state already spent on welfare fraud programs another 13% without significant increases in efficiency. Id.
112. Max Vanzi, Assembly OKs GOP-Backed Welfare Cuts, L.A. TIMES, May 21, 1996, at A3. 79
113. Max Vanzi, Assembly OKs GOP-Backed Welfare Cuts, L.A. TIMES, May 21, 1996, at A3. 79
114. Scott Steepleton, Countywide; Investigators Arrest 22 Welfare Recipients, L.A. TIMES, Mar. 7, 1997, at 3.
115. Beverly Horsburgh, Schrödinger's Cat, Eugenics, and the Compulsory Sterilization of Welfare Mothers: Deconstructing an Old/New Rhetoric and Constructing the Reproductive Right to Natality for Low-Income Women of Color, 17 CARDOZO L. REV. 531, 565-66 (1996) (quoting lawmakers who associated women on welfare with caged animals such as wolves and alligators).
116. Vanessa Gallman, 'Sit Down and Shut Up': Welfare Debate Turns Testy, MIAMI HERALD, Mar. 25, 1995, at 8A.
117. [I] represent Florida where we have many lakes and natural reserves. If you visit these areas, you may see a sign like this that reads, "do not feed the alligators." We post these signs for several reasons. First, because if left in a natural state, alligators can fend for themselves. They work, gather food and care for their young.
118. Second, we post these warnings because unnatural feeding and artificial care creates dependency. When dependency sets in, these otherwise able-bodied alligators can no longer survive on their own. 141 CONG. REC. 9194 (1995) (statement of Representative Mica).
119. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (codified as amended in scattered sections of 7, 8, 21, 25, 42 U.S.C. (2006)).
120. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (codified as amended in scattered sections of 7, 8, 21, 25, 42 U.S.C. (2006)). at Title I, § 401, 110 Stat. at 2261 (codified as amended at 42 U.S.C. § 601 (2006)) (specifying that the federal funds provided to states "shall not be interpreted to entitle any individual or family to assistance.").
121. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (codified as amended in scattered sections of 7, 8, 21, 25, 42 U.S.C. (2006)). at Title I, § 402, 110 Stat. at 2113-15 (codified as amended at 42 U.S.C. § 602
122. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (codified as amended in scattered sections of 7, 8, 21, 25, 42 U.S.C. (2006)). at Title I, § 407, 110 Stat. at 2129-34 (codified as amended at 42 U.S.C. § 607 (2006)) (describing mandatory work requirements)
123. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (codified as amended in scattered sections of 7, 8, 21, 25, 42 U.S.C. (2006)) at Title I, § 404, 110 Stat. at 2124-28 (codified as amended at 42 U.S.C. § 604 (2006)) (allowing states to sanction a family's welfare benefits if an adult fails to ensure that children attend school)
124. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (codified as amended in scattered sections of 7, 8, 21, 25, 42 U.S.C. (2006)) at Title IX, § 902, 110 Stat. at 2347 (codified as amended at 21 U.S.C. § 862(b) (2006)) (allowing states to sanction welfare recipients who test positive for controlled substances).
125. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (codified as amended in scattered sections of 7, 8, 21, 25, 42 U.S.C. (2006)). at Title I, § 408, 110 Stat. at 2140-42 (codified as amended at 42 U.S.C. § 609 (2006)) (allowing states discretion in determining the obligations of individual aid recipients and granting the states discretionary authority to determine penalties for noncompliance among individuals).
126. The many people who used this phrase seemed uncritical of the beast-of-burden imagery that the phrase "carrot and stick" creates with relation to the poor individuals who stand between the carrot and the stick. The phrase itself conjures up images of coerced, unpaid labor and resonates with images of black servitude under slavery. Martin Gilens notes that the public's negative attitudes towards the welfare system are inextricably tied to racism and an aversion to providing African Americans with aid. GILENS, supra note 49, at 3 (noting that "welfare has become a 'code word' for race").
127. Carolyn Skorneck, Negotiators OK Welfare Bill: Carrot-and-Stick Reform Offers Some Concessions to Clinton, TIMES-PICAYUNE, July 31, 1996, at 2 (explaining that the welfare reform bill had "a tough edge that would force people off public rolls and into jobs").
128. Regulations set forth by the Department of Health and Human Services determine general rules for all of the states, but the states determine what the work requirements will be under their programs, and eligibility workers at local offices determine what counts as work hours for individual welfare recipients.
129. Andrew J. Cherlin, et al., Operating Within the Rules: Welfare Recipients' Experiences with Sanctions and Case Closings, 76 SOC. SERV. REV. 387, 395 (2002).
130. JACOB ALEX KLERMAN & JANE MCCLURE BURSTAIN, RAND, SANCTIONS IN THE CALWORKS PROGRAM xv (2008).
131. Jacob Alex Klerman & Caroline Danielson, Why Did the Welfare Caseload Decline? 2 (RAND, Working Paper No. WR-167, 2004) ("[O]ur simulations suggest only a moderate role for any specific reforms in explaining the large observed drop in the welfare caseload. We attribute about a fifth of the caseload decline to time limits and sanctions, about a quarter to the economy, and about a third to a residual policy bundle; the remainder of the decline is absorbed by unexplained time effects.").
132. Sanford F. Schram, Race and State Welfare Reform Choices: A Cause for Concern, in FROM POVERTY TO PUNISHMENT: HOW WELFARE REFORM PUNISHES THE POOR 97 (Gary Delgado ed., 2002).
133. LADONNA PAVETTI ET AL., MATHEMATICA POLICY RESEARCH, INC., THE USE OF TANF WORK-ORIENTED SANCTIONS IN ILLINOIS, NEW JERSEY, AND SOUTH CAROLINA 2 (2004).
134. LADONNA PAVETTI ET AL., MATHEMATICA POLICY RESEARCH, INC., THE USE OF TANF WORK-ORIENTED SANCTIONS IN ILLINOIS, NEW JERSEY, AND SOUTH CAROLINA 2 (2004)
135. State Policy Documentation Project, TANF Categorical Eligibility, http://www.spdp.org/tanf/sanctions/sanctions_findings.htm (last visited May 15, 2009).
136. States may determine standards of "good cause" that will spare a household a sanction if an adult was not in compliance with the work requirements or other state requirements of the state welfare rules. Id. Good cause usually includes illness of the head of household, illness of a child in the family, or lack of transportation. Id. The Center for Law and Social Policy (CLASP) notes, however, that three states "do not have any type of process to resolve sanction disputes before they are imposed." Id. This lack of procedural protection for welfare recipients appears to be a violation of Goldberg v. Kelly, 397 U.S. 254 (1970), which holds that individuals are entitled to notice and a right to a fair hearing before denial of governmental benefits.
137. PAVETTI ET AL., supra note 96, at 2.
138. LaDonna Pavetti, Welfare Policy in Transition: Redefining the Social Contract for Poor Citizen Families with Children, 21 FOCUS, Fall 2000, at 44.
139. LADONNA PAVETTI ET AL., MATHEMATICA POLICY RESEARCH, INC., REVIEW OF SANCTION POLICIES AND RESEARCH STUDIES: FINAL LITERATURE REVIEW 3 (2003)
140. JANICE PETERSON, INST. FOR WOMEN'S POLICY RESEARCH, REP. NO. IWPR-E511, FEMINIST PERSPECTIVES ON TANF REAUTHORIZATION: AN INTRODUCTION TO KEY ISSUES FOR THE FUTURE OF WELFARE REFORM 4 (2002)
141. ISABEL V. SAWHILL ET AL., BROOKINGS INST., WELFARE REFORM: AN OVERVIEW OF EFFECTS TO DATE (2001), available at
142. http://www.brookings.edu/papers/2001/01poverty_haskins.aspx
143. Pamela Holcomb & Caroline Ratcliffe, When Welfare Recipients Fail to Comply with Work Requirements: Indiana's Experience with Partial Benefit Sanctions, 24 J. APPLIED SOC. SCIENCES 1, 4 (2000).
144. A recent study of California's TANF system found one-fifth of the adults were being sanctioned, and that the sanction rates doubled between 2000 and 2005. KLERMAN & BURSTAIN, supra note 93, at xvii-xviii.
145. HEIDI GOLDBERG & LIZ SCHOTT, CTR. ON BUDGET & POLICY PRIORITIES, A COMPLIANCE-ORIENTED APPROACH TO SANCTIONS IN STATE AND COUNTY TANF PROGRAMS (2000).
146. Schram, supra note 95, at 99 (finding that among various factors analyzed, "only race and ethnic composition [of a state] affect the probability of adopting a family cap policy")
147. Joe Soss, et al., The Hard Line and the Color Line: Race, Welfare, and the Roots of Get-Tough Reform, in RACE AND THE POLITICS OF WELFARE REFORM 245 (Sanford F. Schram et al. eds., 2003) (finding that "adoption of family caps and strict time limits was unrelated to any factor other than the racial composition of the [welfare] rolls").
148. Ariel Kalil, et al., Sanctions and Material Hardship Under TANF, 76 SOC. SERV. REV. 642, 655 (2002)
149. PAVETTI ET AL., supra note 96, at 33-34 (finding African Americans are sanctioned at higher rates than other racial and ethnic groups).
150. Yeheskel Hasenfeld, et al., The Logic of Sanctioning Welfare Recipients: An Empirical Assessment, 78 SOC. SERV. REV. 304, 314 (2004).
151. Sanctions are not only imposed for noncompliance with work requirements. States can establish other grounds for sanctioning as well. For example, women receiving welfare in California may be sanctioned for failing to cooperate in the State's efforts to establish a child's paternity and to assign child support benefits to the State. CAL. WELF. & INST. CODE § 11477(b) (West 2001 & Supp. 2009). Exceptions to this requirement apply when establishing paternity poses risks of abuse to mother or child, or where a child was conceived through rape or incest. This exception, however, may not come to light until a mother has already refused to provide information and has been sanctioned.
152. Little to no qualitative research on the effects of sanctions on the daily lives of families who are sanctioned has been conducted. One might suppose, though, that these get-tough policies, intended to spur low-income women into the workforce, are making life more difficult for families who are already struggling.
153. 42 U.S.C. § 602(a)(22) (1994) (repealed by Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (codified as amended in scattered sections of 7, 8, 21, 25, 42 U.S.C. (2006))) (requiring states to recoup welfare overpayments, whether or not the overpayment was the fault of the state or the individual welfare recipient).
154. DAVID GARLAND, THE CULTURE OF CONTROL 196 (2001) Other scholars have begun tracing the ways that crime-control strategies have seeped into various realms of social life.
155. John Gilliom, For example, traced the emergence of drug testing in the workplace and how it involved a process of "reclassifying largely criminal policies as administrative and colonizing the workplace as a site of surveillance and control."
156. JOHN GILLIOM, SURVEILLANCE, PRIVACY, AND THE LAW: EMPLOYEE DRUG TESTING AND THE POLITICS OF SOCIAL CONTROL 119 (1996).
157. The "family cap" policies-welfare rules prohibiting an increase in a poor family's cash assistance when a new child is born into the family-highlight the ways welfare regulations affect issues of personal and family autonomy. The family cap rules were intended by lawmakers to influence women's, especially poor women-of-color's, decisions about birth control, abortion, childbearing, and family formation. The policies punish not only women who decide to bear children while on welfare, but also their entire families.
158. Federal welfare reform legislation gave states the option of instituting family cap policies that prohibit welfare offices from offering cash assistance to children born to families receiving welfare
159. JODIE LEVIN EPSTEIN, CTR. FOR LAW & SOC. POLICY, CHILDBEARING & REPRODUCTIVE HEALTH SERIES BRIEF NO. 1, LIFTING THE LID OFF THE FAMILY CAP: STATES REVISIT PROBLEMATIC POLICY FOR WELFARE MOTHERS 1 (2003) (describing the federal and state policies). Twenty-one states have adopted the family cap; two others-Idaho and Wisconsin-have instituted flat grants for families of any size. Schram, supra note 95, at 95
160. The effects of the family cap are significant. According to the U.S. General Accounting Office, in an average month in the year 2000, approximately 108,000 families were receiving less cash assistance than they would have received without the punitive family cap policies.
161. U.S. GEN. ACCOUNTING OFFICE, GAO-01-924, WELFARE REFORM: MORE RESEARCH NEEDED ON TANF FAMILY CAPS AND OTHER POLICIES FOR REDUCING OUT-OF-WEDLOCK BIRTHS 2 (2001). The family cap rules may also be increasing the number of abortions among low-income women of color. A study of women affected by New Jersey's family cap found that the abortion rate rose among welfare recipients subject to the rule-but only among African-American welfare recipients
162. Radha Jagannathan & Michael J. Camasso, Family Cap and Nonmarital Fertility: The Racial Conditioning of Policy Effects, 65 J. MARRIAGE & FAM. 52, 62 (2003).
163. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, Title II, § 202, 110 Stat. 2105, 2185-86 (codified as amended at 42 U.S.C. § 1382 (2006)) (relating to SSI benefits); id. at Title VIII, § 821, 110 Stat. at 2321 (codified as amended at 7 U.S.C. § 2015 (2006)) (relating to food stamps); id. at Title IX, § 903, 110 Stat. at 2348-49 (codified as amended at 42 U.S.C. § 1437 (2006)) (relating to public housing).
164. U.S. GEN. ACCOUNTING OFFICE, GAO-02-716, WELFARE REFORM: IMPLEMENTATION OF FUGITIVE FELON PROVISIONS SHOULD BE STRENGTHENED 3 (2002).
165. Nancy Bartel, U.S. Dep't of Agric., Operation Talon Sting Nabs Hundreds of Fugitive Felons in Portland Area (Feb. 9, 2000), available at http://www.usda.gov/oig/webdocs/oig45.htm.
166. U.S. GEN. ACCOUNTING OFFICE, supra note 110, at 39.
167. JEFF MANZA & CHRISTOPHER UGGEN, LOCKED OUT: FELON DISFRANCHISEMENT AND AMERICAN DEMOCRACY 74 (2006).
168. The use of Social Security numbers and privacy concerns over their use were a big concern during the 1970s
169. Marjorie Hunter, Social Security Number at Birth Urged to Curb Welfare Abuses, N.Y. TIMES, Mar. 21, 1972, at 24 (discussing heated debates over use of Social Security numbers in the welfare system)
170. Many civil libertarians opposed the requirement of Social Security numbers for welfare benefits and opposed exchanges of information between government agencies. Id. In 1974 Congress passed the Privacy Act, which stated that states and localities could not withhold benefits from individuals who refused to provide Social Security numbers. Privacy Act of 1974, Pub. L. No. 93-579, 88 Stat. 1896 (codified as amended at 5 U.S.C. § 552a (2006)). The following year, Congress passed an amendment to the Act requiring disclosure of a Social Security number as a condition of AFDC eligibility. Social Services Amendments of 1974, Pub. L. No. 93-647, 88 Stat. 2337 (codified as amended in scattered sections of 42 U.S.C. (2006)). The next year, Congress authorized states to use Social Security numbers as a requirement of eligibility in any public assistance program. Tax Reform Act of 1976, Pub. L. No. 94-455, Title XII, § 1211, 90 Stat. 1520 (codified as amended at 42 U.S.C § 405 (2006)).
171. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, Title I, § 408(9)(B), 110 Stat. 2105, 2140 (codified as amended at 42 U.S.C. § 608 (2006)) (legislating that prior state safeguards on disclosure of personal information "shall not prevent the State agency administering the program from furnishing a Federal, State, or local law enforcement officer, upon the request of the officer, with the current address of any recipient if the officer furnishes the agency with the name of the recipient").
172. The U.S. Supreme Court has held that individuals have no legitimate expectation of privacy to financial information they disclose to banks through the regular course of business and therefore no Fourth Amendment claims when a bank is subpoenaed. United States v. Miller, 425 U.S. 435, 442-44 (1976). A recent federal district court case, however, noted that while searches conducted under legal process are protected, individuals have standing to challenge searches of financial records as unlawful where the searches are conducted either without legal process or outside the scope of a subpoena that has been issued. Walker v. S.W.I.F.T. SCRL, 491 F. Supp. 2d 781, 790 (N.D. Ill. 2007).
173. Burrows v. Superior Court, 529 P.2d 590, 595-95 (Cal. 1974) (holding that "bank statements or copies thereof obtained by [investigators] without the benefit of legal process were acquired as the result of an illegal search and seizure"). Congress has offered some privacy protections to customers of banking institutions through the Right to Financial Privacy Act of 1978, Pub. L. No. 95-630, Title XI, 92 Stat. 3641, 3693 (codified as amended at 12 U.S.C. §§ 3401-22 (2006)).
174. 7 U.S.C. § 2020(e)(8)(D) (2006); 42 U.S.C. § 1437z (2006).
175. 7 U.S.C. § 2020(e)(8)(D)(i)(II). Individuals who receive Social Security benefits possess greater privacy rights over their information. Under the Omnibus Budget Reconciliation Act of 1990, an individual receiving Social Security benefits cannot be subject to any adverse action as a result of data matching without both verification of the information and prior notice to the individual. Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, Title VII, § 7201, 104 Stat. 1388 (codified as amended at 5 U.S.C. § 552a (2006)).
176. OFFICE OF INSPECTOR GEN., DEP'T OF AGRIC., OPERATION TALON: OCTOBER 2000
177. UPDATE 6 (2000); OFFICE OF INSPECTOR GEN., DEP'T OF AGRIC., OPERATION TALON (1998)
178. Food Stamp Bust Nets 205 Suspects, COLUMBIAN, Feb. 12, 2000, at B6 (describing a sting where individuals were "[l]ured by promises of cash bonuses and transportation reimbursement")
179. Kristan Trugman, Fake Gambling Trip Helps Cops Snare Maryland, D.C. Fugitives, WASH. TIMES, Feb. 9, 2000, at C1 (describing how, after food stamp recipients with outstanding warrants were identified through computer checks, they "were encouraged to sign up early for a free bus junket to Atlantic City for a day of gambling, offers of a $50 stake and a free gym bag").
180. The Inspector General for the Department of Agriculture stated Operation Talon was initiated "to locate and apprehend fugitives who were illegally receiving food stamp benefits, thereby ensuring that program benefits go to those who are truly in need." Review the Operations of the Food Stamp Program: Hearing Before the Subcomm. on Department Operations, Oversight, Nutrition, and Forestry of the H. Comm. on Agriculture, 108th Cong. 20 (2003) (statement of Phyllis K. Kong, Inspector General, United States Department of Agriculture).
181. Press Release, U.S. Dep't of Agric., Gore Announces Arrest of 2,199 Fugitives in Nationwide Sting (Dec. 18, 1997), available at http://www.usda.gov/news/releases/1997/12/0447.
182. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, Title I, § 408(9)(B), 110 Stat. 2105, 2140 (codified as amended at 42 U.S.C. § 608 (2006)) (legislating that prior state safeguards on disclosure of personal information "shall not prevent the State agency administering the program from furnishing a Federal, State, or local law enforcement officer, upon the request of the officer, with the current address of any recipient if the officer furnishes the agency with the name of the recipient").
183. A Closer Look: Inspectors General Address Waste, Fraud, and Abuse in Federal Mandatory Programs: Hearing Before the H. Comm. on the Budget, 108th Cong. 66, 1st Session (2003) [hereinafter Hearing on Waste, Fraud, and Abuse] (statement of Phyllis K. Fong, Inspector General., U.S. Department of Agriculture); OFFICE OF INSPECTOR GEN., U.S. DEP'T OF AGRIC., REPORT NO. 56, OFFICE OF INSPECTOR GENERAL SEMIANNUAL REPORT TO CONGRESS: FY 2006-2ND HALF 22 (2006).
184. Formulation of the 2002 Farm Bill: Hearings Before the H. Comm. of Agriculture and Its Subcomm., 107th Cong. 643-57 (2001) (statement of Roger C. Viadero, Inspector General, U.S. Department of Agriculture); OFFICE OF THE INSPECTOR GEN., OPERATION TALON: OCTOBER 2000 UPDATE, supra note 120, at 6.
185. OFFICE OF THE INSPECTOR GEN., OPERATION TALON: OCTOBER 2000 UPDATE, supra note 120, at 6.
186. Hearing on Waste, Fraud, and Abuse, supra note 125, at 66 (statement of Phyllis K. Fong, Inspector Gen., U.S. Department of Agriculture).
187. PATRICIA ALLARD, THE SENTENCING PROJECT, LIFE SENTENCES: DENYING WELFARE BENEFITS TO WOMEN CONVICTED OF DRUG OFFENSES 1 (2002).
188. U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-05-238, DRUG OFFENDERS: VARIOUS FACTORS MAY LIMIT THE IMPACTS OF FEDERAL LAWS THAT PROVIDE FOR DENIAL OF SELECTED BENEFITS 17 (2005).
189. U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-05-238, DRUG OFFENDERS: VARIOUS FACTORS MAY LIMIT THE IMPACTS OF FEDERAL LAWS THAT PROVIDE FOR DENIAL OF SELECTED BENEFITS 17 (2005) at 33-34 tbl.5.
190. ALLARD U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-05-238, DRUG OFFENDERS: VARIOUS FACTORS MAY LIMIT THE IMPACTS OF FEDERAL LAWS THAT PROVIDE FOR DENIAL OF SELECTED BENEFITS 17 (2005), at 2.
191. ALLARD U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-05-238, DRUG OFFENDERS: VARIOUS FACTORS MAY LIMIT THE IMPACTS OF FEDERAL LAWS THAT PROVIDE FOR DENIAL OF SELECTED BENEFITS 17 (2005), at 2.
192. ALLARD U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-05-238, DRUG OFFENDERS: VARIOUS FACTORS MAY LIMIT THE IMPACTS OF FEDERAL LAWS THAT PROVIDE FOR DENIAL OF SELECTED BENEFITS 17 (2005), at 2.
193. U.S. GOV'T ACCOUNTABILITY OFFICE, supra note 130, at 20. Fourteen states exempt all individuals convicted of drug felonies from food stamp bans, while twenty-one states allow only some individuals with drug convictions to receive food stamps. Id. Food stamps are federally funded, and the benefits flow not only to low-income individuals, but also to the businesses that accept them and to local food producers. Food stamps are also viewed as a benefit that cannot be easily used for illicit purposes, unlike cash benefits.
194. ALLARD, supra note 129, at 4. The Government Accountability Office points out that measuring the full effect of the drug felony exclusion is virtually impossible, since states do not report the number of parents they find ineligible for welfare due to drug convictions because there is no way to accurately determine the number of individuals who might be low-income heads of households and because there is no way to determine how this rule affects household composition. U.S. GOV'T ACCOUNTABILITY OFFICE, supra note 130, app.II.
195. ALLARD, supra note 129, at 5.
196. CAL. WELF. & INST. CODE § 18901.3 (West Supp. 2009).
197. Peter Schrag, Op-Ed., Food Stamps Become a Weapon in the War on Drugs, CONTRA COSTA TIMES, June 3, 2001, at 03.
198. Peter Schrag, Op-Ed., Food Stamps Become a Weapon in the War on Drugs, CONTRA COSTA TIMES, June 3, 2001, at 03.
199. Peter Schrag, Op-Ed., Food Stamps Become a Weapon in the War on Drugs, CONTRA COSTA TIMES, June 3, 2001, at 03.
200. Kaaryn Solveig Gustafson, The Morality and Rationality of Welfare (Spring 2004) (unpublished Ph.D. dissertation, University of California-Berkeley) (on file with Proquest)
201. 45 C.F.R. § 205.51 (2008) (recording federal regulation requiring states to collect particular types of personal information and to establish an electronic Income Eligibility and Verification System).
202. Of the 24,970 welfare grants discontinued in December 2008 to one- and two-parent households, 10,898 (or 45%) were discontinued because the recipients failed to complete or return paperwork (known as CW7 and QR 7 forms). CAL. DEP'T OF SOC. SERV., CALIFORNIA WORK OPPORTUNITY AND RESPONSIBILITY TO KIDS (CALWORKS) REPORT ON REASONS FOR DISCONTINUANCES OF CASH GRANT 1 (2009), available at http://www.dss.cahwnet.gov/research/res/pdf/CA%20253/2008/CA253Dec08.pdf (calculations drawn from columns A and C).
203. See U.S. GEN. ACCOUNTING OFFICE, GAO/RCED-98-228, FOOD STAMP OVERPAYMENTS: HOUSEHOLDS IN DIFFERENT STATES COLLECT BENEFITS FOR THE SAME INDIVIDUALS (1998) (studying duplicate food stamp participation data across states and finding potentially 20,000 duplicate Social Security numbers); OFFICE OF STATE SYSTEMS, DEP'T OF HEALTH & HUMAN SERV., REPORT TO CONGRESS ON DATA PROCESSING AND CASE TRACKING IN THE TEMPORARY ASSISTANCE FOR NEEDY FAMILIES (TANF) PROGRAM (1997) (reporting that no federal agency tracks duplicate TANF cases across state lines).
204. See U.S. GEN. ACCOUNTING OFFICE, GAO/RCED-97-54, FOOD STAMPS: SUBSTANTIAL OVERPAYMENTS RESULT FROM PRISONERS COUNTED AS HOUSEHOLD MEMBERS (1997) (finding that government agencies, inadequately verifying household composition, were issuing benefits to incarcerated individuals, and recommending computer cross-checks between welfare agencies and the criminal justice system); see also Josh Meyer, Prisoners Get Food Stamps, U.S. Study Finds, L.A. TIMES, Mar. 11, 1997, at B1.
205. 42 U.S.C. § 602(a)(6) (2006).
206. Even before California instituted the first fingerprint imaging program, legislative analysts and state consultants noted that adequate fraud control measures were in place and that fingerprint imaging would be unlikely to identify a significant number of fraud cases. Rivera, supra note 77.
207. CAL. STATE AUDITOR, BUREAU OF STATE AUDITS, REPORT NO. 2001-015, STATEWIDE FINGERPRINT IMAGING SYSTEM (2003).
208. CAL. STATE AUDITOR, BUREAU OF STATE AUDITS, REPORT NO. 2001-015, STATEWIDE FINGERPRINT IMAGING SYSTEM (2003). at iii. The report added: The Legislature should consider the pros and cons of repealing state law requiring fingerprint imaging, including whether SFIS is consistent with the State's community outreach and education campaign efforts for the Food Stamp program. To assist the Legislature in its consideration of the pros and cons of repealing state law requiring fingerprint imaging, Social Services and the data center should report on the full costs associated with discontinuing SFIS.
209. CAL. STATE AUDITOR, BUREAU OF STATE AUDITS, REPORT NO. 2001-015, STATEWIDE FINGERPRINT IMAGING SYSTEM (2003). at iii. The report added: The Legislature should consider the pros and cons of repealing state law requiring fingerprint imaging, including whether SFIS is consistent with the State's community outreach and education campaign efforts for the Food Stamp program. To assist the Legislature in its consideration of the pros and cons of repealing state law requiring fingerprint imaging, Social Services and the data center should report on the full costs associated with discontinuing SFIS at 8.
210. SERVS., IMMIGRANT RIGHTS & EDUC. NETWORK, IMMIGRANT FAMILY ACCESS TO FOOD STAMPS IN SANTA CLARA COUNTY (2000). The Asian Pacific American Legal Center (APALC) conducted a survey of community-based organizations to determine why, despite such high poverty rates among Asian and Pacific Islander communities, food stamps were being underutilized by eligible members of those communities. The report listed fear of the state fingerprint imaging system as one of the top four barriers to food stamp use among the eligible poor. ASIAN PACIFIC AM. LEGAL CTR., BARRIERS TO FOOD STAMPS (2000).
211. Several years ago, while recruiting interviewees outside a Northern California welfare office for a research project, I routinely met welfare applicants who were showing up for their second or third fingerprint imaging appointments because the machine had been broken on previous visits to the welfare office.
212. A California welfare applicant challenged the state's fingerprinting requirement after she refused to be fingerprinted and her entire household was subsequently denied welfare benefits. Sheyko v. Saenz, 5 Cal. Rptr. 3d 350 (Cal. Ct. App. 2003). The plaintiff argued that being fingerprinted and photographed was "an invasion of privacy and personal dignity" and that fingerprinting was a violation of her religious freedom because the imaging left "a mark of the devil and stains the soul with sin." Id. at 688. The claimant also argued that fingerprinting deterred needy families from aid and resulted in a net loss of tax dollars. The California appellate court that heard the case, however, noted that the U.S. Department of Agriculture produced a document stating that fingerprint imaging might prevent fraud and that the judiciary was "not in the best position to craft efficient relief laws." Id. at 688. The appellate court upheld the lower court's decision that welfare applicants could be deemed ineligible for aid for failure to be fingerprinted and photographed. Id. at 701.
213. Hearing on SB 1, General Appropriations Act for 2008-09 Before the H. Appropriations Subcomm. on Health and Human Serv., 80th Leg. (Tex. 2007) [hereinafter Tex. Hearing] (statement of Celia Hagert, Senior Policy Analyst, Center for Public Policy Priorities).
214. DEANNA T. SCHEXNAYDER ET AL., CTR. FOR THE STUDY OF HUMAN RES., LONE STAR IMAGE SYSTEM EVALUATION: FINAL REPORT (1997). Texas began fingerprint imaging on a pilot basis in 1996 and implemented statewide in August 1999. Tex. Hearing, supra note 154 (statement of Celia Hagert, Senior Policy Analyst, Center for Public Policy Priorities). By the end of 2000, fingerprint imaging had cost the state $15.9 million dollars. Id. While the Texas Department of Human Services claimed that fingerprint imaging was cost-effective, that claim was based on the decline in food stamp cases. Id. Between 1996 and the end of 2000, fingerprint imaging had "resulted in only nine charges filed by the DA, 10 administrative penalty cases, and 12 determinations of no fraud." Id.
215. CAL. STATE AUDITOR, supra note 149.
216. Tex. Hearing, supra note 154 (statement of Celia Hagert, Senior Policy Analyst, Center for Public Policy Priorities).
217. SUSAN BARTLETT ET AL., FOOD ASSISTANCE & NUTRITION RESEARCH PROGRAM, REPORT NO. E-FAN-03-013-3, FOOD STAMP PROGRAM ACCESS STUDY: FINAL REPORT 8-10 (2004) (finding applicants who applied for benefits in offices that required fingerprinting were 23% less likely to complete the application process than those who went to offices that did not require fingerprinting).
218. KAREN E. CUNNYNGHAM ET AL., MATHEMATICA POLICY RESEARCH, INC., REACHING THOSE IN NEED: STATE FOOD STAMP PARTICIPATION RATES IN 2006, 5 (2008).
219. MICH. COMP. LAWS ANN. 400 57l(2) (West 2008).
220. Marchwinski v. Howard, 113 F. Supp. 2d 1134 (E.D. Mich. 2000).
221. Bd. of Educ. v. Earls, 536 U.S. 822 (2002) (allowing suspicionless drug testing of high school students who participate in competitive extracurricular activities).
222. Marchwinski v. Howard, 309 F.3d 330 (6th Cir. 2002).
223. E.g., Goldberg v. Kelly, 397 U.S. 254 (1970) (upholding procedural due process rights for welfare recipients); Shapiro v. Thompson, 394 U.S. 618 (1969) (upholding the right of welfare recipients to travel).
224. Marchwinski v. Howard, 60 Fed. App'x. 601 (6th Cir. 2003). While no state currently has a program of random testing for all welfare recipients, in the years since the welfare reforms of 1996, eleven states other than Michigan-Florida, Illinois, Indiana, Louisiana, Maryland, Nevada, New Jersey, New York, North Carolina, Oklahoma, and Oregon-have at some point proposed legislation or instituted drug testing programs for some welfare recipients who have been identified as being at risk for drug abuse. ACLU, WELFARE DRUG TESTING (2003), available at http://www.aclu.org/drugpolicy/testing/10757res20030415.html. Since the Marchwinski case was decided, there have been intermittent discussions of attempting to try a modified version of the drug testing program in Michigan. Drugs Redux, LANSING STATE J., Sept. 20, 2006, at 6A (describing drug-testing bills unsuccessfully introduced in the Michigan legislature in 2004 and 2006).
225. Marchwinski, 60 Fed. App'x at 601.
226. Harold A. Pollack et al., Substance Use Among Welfare Recipients: Trends and Policy Responses, 76 SOC. SERV. REV. 256, 259 (2002).
227. RUKMALIE JAYAKODY ET AL., NAT'L POVERTY CTR., POLICY BRIEF NO. 2, SUBSTANCE ABUSE AND WELFARE REFORM 3 (2004) ("[F]indings suggest that policymakers and advocates have likely overstated the extent to which substance abuse contributes to continuing dependence on cash aid.").
228. This is for fiscal year 2007-2008. For low-cost counties the figures are $689 in TANF cash assistance and $377 in food stamps, for a total of $1,066. LEGISLATIVE ANALYST'S OFFICE, ANALYSIS OF THE 2008-09 BUDGET BILL: HEALTH AND SOCIAL SERVICES 1 fig.1 (2009), available at http://www.lao.ca.gov/analysis_2008/health_ss/hss_anl08009.aspx.
229. CAL. DEP'T OF SOC. SERV., PUBLIC ASSISTANCE FACTS AND FIGURES: FOR THE MONTH OF JANUARY 2009 (2009), available at http://www.dss.cahwnet.gov/research/res/pdf/Paff/2009/PAFFJan09.pdf.
230. EDIN & LEIN, supra note 38, at 7 ("Because of their constant budget shortfall, mothers... had to generate additional revenue to make ends meet. Welfare-reliant mothers had to keep these activities hidden from their welfare caseworkers and other government bureaucrats."); KAREN SECCOMBE, "SO YOU THINK I DRIVE A CADILLAC?": WELFARE RECIPIENTS' PERSPECTIVES ON THE WELFARE SYSTEM AND ITS REFORM 146 (1999) (reporting that welfare recipients, unable to survive on welfare benefits, often turn to the help of friends, neighbors, relatives, charities, and social service agencies).
231. 45 C.F.R. § 205.56(a)(1)(iv) (2008).
232. CAL. WELF. & INST. CODE § 11004 (West 2001 & Supp. 2009).
233. Welfare fraud prosecutions are typically brought under a state's general fraud statute. Thus, statistics on felony arrests and prosecutions cannot disaggregate welfare fraud charges from other types of fraud charges.
234. C.A. MACDONALD & ASSOC., EARLY DETECTION AND PREVENTION PROGRAMS: STATE DIRECTORY 9 (1995), available at http://www.camacdonald.com/edpstate.htm.
235. CAL. DEP'T OF SOC. SERV., FRAUD INVESTIGATION REPORT: OCTOBER-DECEMBER 2007 (2007), available at http://www.dss.cahwnet.gov/research/res/pdf/fraud/2007/Oct-Dec07.pdf. Madera County, for example, had a caseload of 2,708 families and referred 1,060 cases (or 39% of its caseload) for fraud investigations. Id. at 5 tbl.1.
236. L.A. GRAND JURY, WELFARE FRAUD PREVENTION AND INVESTIGATIVE FUNCTIONS OF THE DEPARTMENT OF PUBLIC SOCIAL SERVICES 4 (1999), available at http://grandjury.co.la.ca.us/gjury99/REPORtgj-15.htm.
237. COUNTY OF L.A. DEP'T OF AUDITOR-CONTROLLER, DEPARTMENT OF PUBLIC SOCIAL SERVICES: WELFARE FRAUD PREVENTION PROGRAM REVIEW 4 (2003), available at http://auditor.lacounty.gov/Public%20Social%20Services/cms1_009318.pdf.
238. CAL. DEP'T OF SOC. SERV., supra note 185, at 2, 5.
239. 42 U.S.C. § 608a(a) (2006).
240. The penalties for failing to report required information-even where the reporting failures would not affect aid calculations-are tough. A finding of one offense, in an administrative hearing or by a court, disqualifies an individual from aid for six months. CAL. WELF. & INST. CODE § 11486(c)(1)(A), (c)(2)(A) (West 2001 & Supp. 2009). A second occasion results in a twelve-month disqualification from aid, and a finding of a third occasion results in permanent-meaning life-long-disqualification from aid. Id. There are other civil violations that can lead to permanent disqualification from welfare. Under California law, an individual can be excluded from receiving welfare benefits for life for any of the following violations: (1) "double dipping," or in other words, making false statements or representations about one's place of residence in order to make simultaneous claims for aid in more than one county or state; (2) submitting documents to receive aid for non-existent children or for children ineligible for aid; or (3) receiving more than $10,000 in aid as a result of intentionally and willfully making false statements or misrepresenting, concealing, or withholding pertinent facts from welfare administrators. Id. § 11486(c)(1)(B)-(c)(2)(B).
241. Anyone convicted in state or federal court of felony welfare fraud is ineligible for aid for two years if the amount of money in dispute is less than $2,000. Id. § 11486(b)(1). A person convicted of fraudulently receiving between $2,000 and $10,000 is barred from receiving aid for five years; a person convicted of fraudulently receiving more than $10,000 is prohibited from receiving aid for life. Id. § 11486(b)(2)-(b)(3).
242. CAL. DEP'T OF SOC. SERV., supra note 185, at 4.
243. Id. Los Angeles turned its investigations over to the DA's office in January 1997. Greg Krikorian, 8 Arrested in Probe of Welfare Fraud, L.A. TIMES, July 26, 1997, at B1.
244. My interviews with welfare recipients as part of my dissertation research indicated that a number of welfare recipients who had been called in by the fraud investigation unit did not know that these were criminal investigations. One interviewee, Yvonne, said that when she received a letter stating that officials wanted to ask her some questions, she did not understand the officials with whom she met were criminal investigators rather than welfare officials. Gustafson, supra note 142, at 290. Even after a year of repayment through a diversion program, she did not understand that she had been criminally sanctioned, that she was no longer eligible for cash payments (although her children were), and that her ineligibility was due to her failure to report income and not because she quit a job. Id. at 291.
245. CALIF. DEP'T OF SOC. SERV., MANUAL OF POLICIES AND PROCEDURES § 20-352.2 (1999).
246. Gustafson, supra note 142, at 291.
247. CAL. PENAL CODE § 118 (West 1999).
248. Frederick Melo, Stopping Welfare Cheats: Differing Approaches in Washington County and Dakota County, ST. PAUL PIONEER PRESS, Aug. 17, 2008 (discussing differing penalties for welfare fraud among Minnesota counties).
249. CAL. DEP'T OF SOC. SERV., supra note 185, at 2.
250. Erik G. Luna, Welfare Fraud and the Fourth Amendment, 24 PEPP. L. REV. 1235, 1235 (1997).
251. U.S. Census Bureau, Historical Poverty Tables tbl.13, http://www.census.gov/hhes/www/poverty/histpov/hstpov13.html (last visited May 15, 2009).
252. Dan M. Kahan, The Secret Ambition of Deterrence, 113 HARV. L. REV. 413, 416 (1999).
253. Gustafson, supra note 142, at 214 (finding that most of the welfare recipients interviewed were unaware that "underreporting of income could result not only in a civil claim demanding repayment, but also criminal fraud charges and lifelong exclusion from the welfare system").
254. CESARE BECCARIA, ON CRIMES AND PUNISHMENTS (Henry Paolucci trans., Bobbs-Merrill Co. 1963) (1764).
255. Id. at 17-18 (discussing the importance of making rules known).
256. Id. at 94 ("Do you want to prevent crimes? See to it that the laws are clear and simple and that the entire force of a nation is united in their defense, and that no part of it is employed to destroy them. See to it that the laws favor not so much classes of men as men themselves.").
257. Telephone Interview with Jim Stevens, Assistant District Attorney, Welfare Fraud Division, in Bayview County, Cal. (May 30, 1999) (note on file with author). Name and location have been changed to protect the identity of the interviewee.
258. Id. A 2003 Los Angeles County audit similarly found that fraud investigations were not prioritized, meaning that cases with high dollar values were not necessarily given priority over cases involving small amounts of overpayments. COUNTY OF L.A. DEP'T OF AUDITORCONTROLLER, supra note 187, at 8.
259. Telephone Interview with Stevens, supra note 209.
260. California data for the fourth quarter of 2008 show that while more than $30 million in overpayments to CalWORKs payments were identified, only $12.9 million dollars were recovered by the state. CAL. DEP'T OF SOC. SERV., QUARTERLY REPORT OF OVERPAYMENTS AND COLLECTIONS-CALWORKS 1 (2009), available at http://www.cdss.ca.gov/research/res/pdf/CA%20812/2008/CA812Oct-Dec08.pdf. Of the money recouped, only $2.8 million was collected as cash payments; another $9.8 million was recovered by reducing cash grants to families who continued to receive aid. Id.
261. CAL. DEP'T OF SOC. SERV., HIGHLIGHTS OF THE 2007-08 GOVERNOR'S BUDGET 7, 9 (2007).
262. DAVID E. JANSSEN & BRYCE YOKOMIZO, COUNTY OF L.A. CHIEF ADMIN. OFFICE, ADDENDUM TO THE JANUARY 18, 2007 REPORT ASSESSING THE IMPACT OF THE GOVERNOR'S WELFARE PROPOSAL 3 (2007).
263. LEGISLATIVE ANALYST'S OFFICE, supra note 177.
264. A 2003 report noted that Los Angeles County alone spent $32 million per year on welfare fraud investigations (prevention and detection). COUNTY OF L.A. DEP'T OF AUDITOR-CONTROLLER, supra note 187, at 1. By comparison, the California Franchise Tax Board spent less than a third as much ($10.5 million) in 2005-2006 investigating tax fraud throughout the entire state. STATE OF CAL. FRANCHISE TAX BD., OPERATIONS REPORT: FISCAL YEAR ENDING JUNE 30, 2006, 17 (2008), available at http://www.ftb.ca.gov/aboutftb/Oprpt/OpRpt_0506.pdf.
265. A poignant example of the unmeasured family costs of welfare fraud prosecutions occurred in the case of Jerome (a pseudonym), a father I interviewed as part of a study on welfare rule knowledge and rule compliance. Jerome was single-handedly caring for his toddler child. The toddler's mother ended up spending a year in jail after her sister called the welfare hotline and reported that Jerome was living in the household. The sister had hoped that officials would kick Jerome out of the house. Instead, they arrested and convicted the mother of welfare fraud. Jerome, who had been employed while staying with his son and girlfriend, could not find employment after she went to jail. While he received a sanctioned aid check for his son, he was ineligible for child care assistance because of his earlier admission to the welfare office that he had been living in his girlfriend's home. Jerome and his son were renting a small room (a converted garage) from Jerome's ex-wife, and the boy had spent a year without his mother.
266. CAL. DEP'T OF CORR. & REHAB., FOURTH QUARTER 2008 FACTS AND FIGURES, available at http://www.cdcr.ca.gov/Divisions_Boards/Adult_Operations/docs/Fourth_Quarter_2008_Facts_and_Figures.pdf (last visited May 15, 2009).
267. The average cash welfare payment to a family receiving CalWORKs in January 2008 was $528.80. A year on aid at that rate would total $6,344.60. CAL. DEP'T OF SOC. SERVS., supra note 179, at 4. CalWORKs recipients generally qualify for other forms of public assistance, including food stamps, which max out at $463 per month for a family of three, and Medicaid. Still, the overall state cost to provide for a family on welfare is lower than the cost of housing one inmate.
268. California Assembly Bill 1542 added CAL. WELF. & INST. CODE § 11486(j) (West 2001). The bill provided each county "25 percent of the State's share of the client-caused Cal-WORKs overpayment collections." Memorandum from Bruce Wagstaff, Dep't of Soc. Serv., All-County Information Notice I-58-98, 1 (Oct. 14, 1998). Congress later passed the Improper Payments Information Act of 2002, which provided a 12.5% incentive to the states for welfare fraud prosecutions and which required states to compile information on overpayments and underpayments of benefits. Pub. L. No. 107-300, 116 Stat. 2350 (codified as amended at 31 U.S.C. § 3321 (2006)).
269. GRAY DAVIS, STATE OF CAL. GOVERNOR'S OFFICE, CALIFORNIA GOVERNOR'S BUDGET HIGHLIGHTS 48 (2002). The federal incentives remain, providing counties with 12.5% of the aid repaid or recovered by a county. CAL. WELF. & INST. CODE § 11486(j) (West Supp. 2009).
270. See Cal. Dep't of Soc. Serv., Fraud Investigation Report, http://www.dss.cahwnet.gov/research/PG363.htm (last visited May 15, 2009) (prosecution activity).
271. See supra notes 223-224 and accompanying text.
272. I have gathered information about the welfare fraud prosecution practices in a number of states. A full analysis of the trends is too extensive to summarize here and creates a rich opportunity for future research. There are notable divergences among states. In a few states-Arkansas, Massachusetts, and Wisconsin-prosecutors typically avoid criminal charges for welfare fraud. In a large and seemingly growing number of states, however, the move is to punish welfare cheats through criminal charges rather than civil penalties. Also notable is that a growing number of states and localities are creating welfare fraud diversion programs, allowing welfare recipients to avoid criminal conviction and jail time if they pay restitution to the state. In the model of drug diversion programs, these fraud diversion programs usually allow welfare recipients who have violated the rules to engage in some sort of restitution-usually repayment, but in some cases home monitoring-to have their sentences suspended or removed from their records. These programs, however, are quite different from drug diversion programs. First, the welfare fraud diversion programs are often being promoted by prosecutors rather than by advocates for the poor. The reasons are clear: fraud diversion is a quick way to process the cases through the criminal justice system. Second, the goal of rehabilitation is absent since the underlying cause of the crime, poverty, goes unaddressed. Third, in some locales the purpose of the fraud diversion programs appears to be to stigmatize those who engage in welfare fraud rather than redeem them. (One welfare fraud diversion program in California required participants to show up in person at a window labeled "welfare fraud payments" periodically to pay a nominal sum; another required participants to wear ankle monitoring bracelets.) The welfare fraud diversion programs share some of the same problems as the drug diversion programs. First, the effects of the fraud diversion programs have been the subject of even less research than the drug diversion programs. Second, there is anecdotal evidence that many participants in the welfare fraud diversion programs do not or cannot comply with the conditions of participation, specifically the repayment requirement. Third, it may be that, as in the case of the drug courts, more individuals are finding themselves under the control of the criminal justice system than they would were the diversion programs not available. This is because weak cases do not get dropped by prosecutors, and those who fail to meet the administrative requirements of the diversion programs find themselves either under the control of the criminal justice system for a longer time than they would have been if they had been charged, or they find themselves ultimately facing felony charges. See Eric J. Miller, Embracing Addiction: Drug Courts and the False Promise of Judicial Interventionism, 65 OHIO ST. L.J. 1479, 1558-60 (2004) (explaining that rather than reducing state incapacitation of offenders, diversion programs may instead be widening the net and simply changing types of state-imposed incapacitation of offenders).
273. Dorothy Brown, dismissing the idea that wage-earning taxpayers escape the heavy policing of welfare recipients, suggests that the criminalization of welfare is now seeping into tax policy. She explains that recipients of the Earned Income Tax Credit, a credit for low-wage earners, are now targets for IRS audits. Dorothy A. Brown, Race and Class Matters in Tax Policy, 107 COLUM. L. REV. 790, 795 (2007) ("Welfare stereotypes... do apply to low-income taxpayers because even though the low-income taxpayer credit was created as an alternative to welfare, low-income taxpayers are viewed as lazy former welfare recipients who work because they have to and will lie and cheat in order to line their pockets with government money.").
274. In 2002, the Santa Clara County (California) Board of Supervisors approved a proposal to re-assign thirty-seven employees from positions in the welfare office to positions as criminal investigators. Bd. of Supervisors, Santa Clara County, Agenda, Item No. 27 (June 25, 2002) (on file with author).
275. See WELFARE FRAUD INVESTIGATORS ASS'N, MEMORANDUM OF UNDERSTANDING BETWEEN THE ALAMEDA COUNTY WELFARE FRAUD INVESTIGATORS ASSOCIATION AND THE COUNTY OF ALAMEDA, JULY 16, 2006-JUNE 27, 2011, 1 (2007) (describing the agreement signed by the "Alameda County Welfare Fraud Investigators Association, affiliated with Operating Engineers Local Union No. 3").
276. For example, consider the California Welfare Fraud Investigators Association, "a nonprofit organization dedicated to developing the professionalism of Welfare Fraud and Medi-Cal Investigators throughout the state by sponsoring annual training conferences, identifying and supporting regional training sessions, and through legislative interaction." The California Welfare Fraud Investigators Association Home Page, http://www.cwfia.org (last visited May 15, 2009). Other associations include: The Alabama Council on Welfare Fraud; The Colorado Welfare Fraud Council; Iowa Council on Welfare Fraud; the Minnesota Fraud Investigators Association; the Ohio Council on Welfare Fraud; the New York Welfare Fraud Investigators Association; the Welfare Investigators of California Arizona Nevada (WICAN); and the United Council on Welfare, an umbrella organization for welfare fraud associations in both the United States and Canada.
277. The California Welfare Fraud Investigators Association introduced a bill requiring all welfare fraud investigators to complete a special course approved by the Commission on Peace Officer Standards and Training. A.B. 2059, 1999-2000 Reg. Sess. (Cal. 2000). They also introduced a bill extending leaves of absence in lieu of temporary disability benefits from public safety investigators to welfare fraud investigators. S.B. 125, 2003-2004 Reg. Sess. (Cal. 2003) (enacted).
278. MARTHA DAVIS, BRUTAL NEED (1993) (offering a history of the lawyer's movement for welfare rights in the 1960s and 1970s).
279. Goldberg v. Kelly, 397 U.S. 254 (1970) (finding the loss of welfare benefits a deprivation sufficient to trigger due process rights, but inadequate to trigger substantive constitutional rights).
280. U.S. CONST. amend. IV.
281. Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965) (discussing the "zone of privacy created by several fundamental constitutional guarantees").
282. King v. Smith, 392 U.S. 309, 329 (1968).
283. Cary LaCheen, New Provisions of the Temporary Assistance for Needy Families Program: Implications for Clients with Disabilities and Advocacy Opportunities, 40 CLEARINGHOUSE REV. 490, 500-01 (2007) (touting state programs that "use home visits and other outreach ways to determine the reason for noncompliance, to assist in attending appointments, and to deal with barriers to compliance")
284. ANDREA WILKINS, NAT'L CONFERENCE OF STATE LEGISLATURES, ITEM NO. 6900-0005, STRATEGIES FOR HARD-TO-SERVE TANF RECIPIENTS 13 (2002) (suggesting that welfare departments "[i]mplement home visits for time-limited or sanctioned families to ensure the well-being of children in these families").
285. CARY LACHEEN, WELFARE LAW CTR., HOME ALONE: THE URGENT NEED FOR HOME VISITS FOR PEOPLE WITH DISABILITIES IN NEW YORK CITY'S WELFARE SYSTEM 27 (2004) (demanding that New York's welfare agency "[p]rovide home visits to all applicants and recipients with physical or mental health problems that severely limit their ability to travel to appointment or wait in waiting rooms for extended periods of time").
286. GREGORY ACS & PAMELA LOPREST, THE URBAN INST., A STUDY OF THE DISTRICT OF COLUMBIA'S TANF CASELOAD 54 (2003) (describing the District of Columbia's policy of having community organizations conduct home visits with families who are being sanctioned for noncompliance with welfare rules).
287. Parrish v. Civil Serv. Comm'n, 425 P.2d 233, 224 (Cal. 1967). The raids were intended to find men who might be cohabiting with the female welfare recipients. The case was brought by Benny Parrish, the caseworker who, citing King, 392 U.S. at 309, refused to participate in midnight raids to enforce the substitute parent rule. Parrish was subsequently fired and challenged his dismissal. The Supreme Court had to determine whether he was being asked to engage in unlawful conduct on the job, which is how the Court reached the issue of the lawfulness of early morning raids. As a result, many law students read this case in Employment Law courses rather than Poverty Law courses.
288. Parrish, 425 P.2d at 225.
289. Parrish, 425 P.2d at 226.
290. Parrish, 425 P.2d at 225.
291. Parrish, 425 P.2d at 227.
292. Parrish, 425 P.2d at 229-30.
293. Wyman v. James, 400 U.S. 309 (1971).
294. Id. at 318-19 (emphasis added).
295. Id. at 320-21 (specifically stating that under the procedures "[p]rivacy is emphasized").
296. "The visit is not one by police or uniformed authority. It is made by a caseworker of some training whose primary objective is, or should be, the welfare, not the prosecution, of the aid recipient for whom the worker has profound responsibility." Id. at 322-23.
297. Id. at 321. The plaintiff Barbara James, it appears, may have feared not a fraud charge, but rather an abuse or neglect charge. The Supreme Court noted that her welfare case file contained comments from a caseworker that "all was not always well with the infant Maurice (skull fracture, a dent in the head, a possible rat bite). The picture is a sad and unhappy one." Id. at 322 n.9.
298. Douglas, acknowledging both the stigmatized status of the poor and the ease with which their rights are disregarded, wrote: If the welfare recipient was not Barbara James but a prominent, affluent cotton or wheat farmer receiving benefit payments for not growing crops, would not the approach be different? Welfare in aid of dependent children, like social security and unemployment benefits, has an aura of suspicion. There doubtless are frauds in every sector of public welfare whether the recipient be a Barbara James or someone who is prominent or influential. But constitutional rights-here the privacy of the home-are obviously not dependent on the poverty or on the affluence of the beneficiary. It is the precincts of the home that the Fourth Amendment protects; and their privacy is as important to the lowly as to the mighty. Id. at 332-33 (Douglas, J., dissenting) (internal citations omitted).
299. Id. at 334 (Douglas, J., dissenting) ("[I]f inspectors want to enter the precincts of the home against the wishes of the lady of the house, they must get a warrant.").
300. Id. at 339-40 (Marshall, J., dissenting).
301. Smith v. Bd. of Supervisors, 128 Cal. Rptr. 2d 700, 703 (Ct. App. 2002) (noting the broadcast as the trigger for the home visit program).
302. Id. at 703. According to county officials, the purpose was: [T]o explain the CalWORKs program to the participant and to discuss the availability of supportive services. Supportive services include educational, child care, transportation, domestic violence, substance abuse, and mental health services. During the interview, the HIP Eligibility Worker (EW) also notes any indications of circumstances that are inconsistent with the case information. For example, if children will be aided on the case, the HIP EW will look for evidence that children live in the home. If the participant claims that the father is an absent parent, the HIP EW will look for indications that the father lives in the home. COUNTY OF L.A. DEP'T OF AUDITOR-CONTROLLER, supra note 187, at 3.
303. Smith, 128 Cal. Rptr. 2d at 704.
304. Id. at 702 (affirming the Superior Court's dismissal of the claims).
305. The decision states that "in the past, when caseloads were not so high and budgets not so tight, home visits were the norm in the eligibility determination process." Id.
306. For example, a knock on the door without entry into the home would generally suffice to verify an applicant's address and determine the presence of additional adults living in the home. Moreover, the computer database cross-checks that are now conducted can already identify additional taxpayers, benefit recipients, or vehicle owners reporting a given address as a residence.
307. Smith, 128 Cal. Rptr. 2d at 703.
308. See, e.g., Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (allowing search of probationer's home without probable cause); New Jersey v. T.L.O., 469 U.S. 325, 337-42 (1985) (allowing searches of high school students by school authorities based on reasonable suspicion rather than probable cause); Bell v. Wolfish, 441 U.S. 520, 558-60 (1979) (allowing visual inspection body cavity searches of pre-trial detainees following detainees' contact with visitors).
309. See, e.g., Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995) (allowing random drug testing of student athletes based on "special needs" of public schools); T.L.O., 469 U.S. at 337-42.
310. United States v. Knights, 534 U.S. 112, 113 (2001) (upholding warrantless investigative search of probationer's dwelling where there was reasonable suspicion for search and where unconditional searches were included in terms of probation). The decision in Knights states that "probationers do not enjoy the absolute liberty to which every citizen is entitled. Just as other punishments for criminal convictions curtail an offender's freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens." Id. at 119 (citations omitted). The analogy of special needs searches of probationers to searches of welfare recipients suggests that welfare recipients also do not enjoy the freedoms of law-abiding citizens.
311. See, e.g., Griffin, 483 U.S. at 873 (allowing search of probationer's home without probable cause).
312. Sanchez v. County of San Diego, 2003 U.S. Dist. LEXIS 27538 (S.D. Cal. Mar. 7, 2003). The district court later enjoined fraud investigators' collateral contacts-for example, interviews with neighbors or landlords-conducted without the consent of the welfare applicants. Sanchez v. County of San Diego, 2003 U.S. Dist. LEXIS 27351, *22 (S.D. Cal., May 9, 2003).
313. Sanchez v. County of San Diego, 464 F.3d 916 (9th Cir. 2006), reh'g denied, reh'g en banc denied, 483 F.3d 965 (9th Cir. 2007), cert. denied, 128 S. Ct. 649 (2007).
314. Sanchez, 464 F.3d at 921.
315. Id. at 925 (citing Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (upholding warrantless searches of the homes of probationers as a special need); Bd. of Educ. v. Earls, 536 U.S. 822, 838 (2002) (upholding suspicionless drug testing of student high school athletes as a special need)).
316. Warrantless and suspicionless searches for the purposes of general law enforcement purposes were found to violate the Fourth Amendment in Ferguson v. City of Charleston, 532 U.S. 67, 83 (2001) (putting a halt to suspicionless drug testing of pregnant women in a public hospital).
317. Sanchez, 464 F.3d at 927 (emphasis added).
318. Id. at 928. The Supreme Court in National Treasury Employees Union v. Von Raab, 489 U.S. 656, 672 n.2 (1989), upheld drug testing of public employees by explaining that, like the pre-announced welfare home visits in Wyman, it was the least intrusive means available, suggesting that, at least at one point in time, the notion of least intrusive means was important to the special needs doctrine.
319. Sanchez, 464 F.3d at 938 (Fisher, J., dissenting).
320. Id. at 940 (Fisher, J., dissenting) ("[U]nlike convicted felons, welfare applicants have no lesser expectation of privacy in their homes than the rest of us.").
321. Sanchez v. County of San Diego, 483 F.3d 965 (9th Cir. 2007).
322. Id. at 968 (Pregerson, J., dissenting).
323. Id. (Pregerson, J., dissenting).
324. Consent is determined by the "totality of all the circumstances," and elements suggesting that the search was non-voluntary and that the individual searched did not perceive a right to refuse render a consent-based search unlawful. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 230 (1972). A federal judge in Minnesota, applying the totality of the circumstances standard, ruled that a search was rendered nonconsensual by the mere fact that a welfare recipient's refusal to allow caseworkers to search her home would result in the termination of benefits. Reyes v. Edmunds, 472 F. Supp. 1218, 1223, 1225 (D. Minn. 1979). The opinion states, "The right to be free from unreasonable search and seizure is an absolute right. It in no way is qualified by whether or not evidence of an illegal activity is actually possessed or being concealed. A violation of this right is per se damaging." Id. at 1229. This case arose before the U.S. Supreme Court articulated the ever-expanding "special needs" exception. See supra notes 271-274.
325. This term was used by the district court in Kelly v. Wyman, 294 F. Supp. 893, 900 (S.D.N.Y. 1968), and quoted in the majority opinion of Goldberg v. Kelly, 397 U.S. 254, 261 (1970). The term was used to describe situations where-even absent the life, liberty, or property claims usually required to anchor a due process claim-a right to procedural due process might exist.
326. Sanchez v. County of San Diego, 464 F.3d 916, 931 (9th Cir. 2006).
327. More than forty years ago Charles Reich noted, "When government-national, state, or local-hands out something of value, whether a relief check or a television license, government's power grows forthwith; it automatically gains such power as is necessary and proper to supervise its largess. It obtains new rights to investigate, to regulate, and to punish." Charles Reich, The New Property, 73 YALE L.J. 733, 746 (1964). Reich specifically warned of such intrusions: Administering largess carries with it not only the power to conduct trials, but also the power to inflict many sorts of sanctions not classified as criminal punishments. The most obvious penalty is simply denial or deprivation of some form of wealth or privilege that the agency dispenses. How badly this punishment hurts depends upon how essential the benefit is to the individual or business affected. Id. at 755.
328. Smith v. Bd. of Supervisors, 128 Cal. Rptr. 2d 700, 712 (Ct. App. 2002) ("Eligibility workers are prohibited from opening drawers or closets during their walk-through of the home. We conclude that whatever intrusion is involved is minimal, and is outweighed by the government's interest in preventing fraud."). Minnesota appears to provide more protections to welfare recipients. See Reyes, 472 F. Supp. 1218 (finding that both the Fourth Amendment and the Minnesota Constitution prohibit suspicionless, unannounced home searches of welfare recipients by welfare caseworkers).
329. See, e.g., Kyllo v. United States, in which Justice Scalia writes that "[a]t the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no." 533 U.S. 27, 31 (2001) (internal quotation mark and citations omitted); see also Georgia v. Randolph, 547 U.S. 103, 123 (2006) (Stevens, J., concurring) ("At least since 1604 it has been settled that in the absence of exigent circumstances, a government agent has no right to enter a 'house' or 'castle' unless authorized to do so by a valid warrant.").
330. Steven Schwinn writes that these are not only violations of the Fourth and Fourteenth Amendments, but also violations of the Fifth Amendment's limitation on unconstitutional conditions. Steven D. Schwinn, Reconstructing the Constitutional Case Against Mandatory Welfare Home Visits, 42 CLEARINGHOUSE REV. J. OF POVERTY L. & POL'Y 42 (2008).
331. Samson v. California, 547 U.S. 843 (2006) (validating warrantless searches of probationers' homes).
332. See City of Indianapolis v. Edmond, 531 U.S. 32, 41-42 (2000) (finding that where "the primary purpose of the Indianapolis narcotics checkpoint program is to uncover evidence of ordinary criminal wrongdoing, the program contravenes the Fourth Amendment" and suggesting that the Fourth Amendment is meant to "prevent such intrusions from becoming a routine part of American life"); see also Ferguson v. City of Charleston, 532 U.S. 67 (2001) (holding warrantless, non-consensual drug testing of pregnant patients-even patients at risk of drug abuse-to be a violation of the Fourth Amendment).
333. See Sanchez v. County of San Diego, 464 F.3d 916, 928 (9th Cir. 2006) (citing Samson, 547 U.S. at 853-54).
334. See Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 671-72 (1989) (finding a special need for suspicionless searches where employees are involved in interdicting illegal drugs and carry firearms).
335. Amy Mulzer writes that welfare verification procedures play a more complex role in welfare policy than many people realize. First, they are a way to informally change eligibility rules and ration benefits. Second, verification procedures serve "a symbolic function, expressing and reaffirming public ideas about welfare and welfare claimants." Amy Mulzer, The Doorkeeper and the Grand Inquisitor: The Central Role of Verification Procedures in Means-Tested Welfare Programs, 36 COLUM. HUM. RTS. L. REV. 663, 710 (2005).
336. See supra notes 166, 271-272.
337. Christopher Slobogin, The Poverty Exception to the Fourth Amendment, 55 FLA. L. REV. 391, 406 (2003) ("[T]he Court's caselaw affords the poorer people in our country much less protection of their privacy and autonomy than those who are better off.").
338. In 2007, Republican Member of the State Senate Tom McClintock introduced a bill, S.B. 269, 2006-2007 Reg. Sess. (2007), that would mandate unscheduled home visits throughout the State of California. At the time it was considered by committee, the Sanchez case was on appeal, and the bill failed passage in committee. Given that the Supreme Court has denied certiorari, thereby validating home searches of welfare applicants, it would not be a surprise to see this bill re-introduced in California-or to see similar bills introduced in other states
339. California advocates for welfare recipients have lodged a number of complaints: that welfare offices contact recipients' employers and disclose their welfare status, causing recipients to be fired; that fraud investigators threaten children that their families will be cut off aid if they refuse to answer investigators' questions; that fraud investigators stop benefits without notice to recipients; that recipients who have been charged with fraud and who have obtained counsel are questioned without counsel present; that fraud investigators secretly tape interviews and offer them as evidence against recipients; and that eligibility workers frivolously refer self-assertive welfare recipients for fraud investigations. Advocate Meeting with CDSS Welfare Fraud Bureau - 4/18/06, CCWRO NEW WELFARE NEWS (Coal. Of Cal. Welfare Rights Org., S.F., Cal.) July 3, 2006, at 5, available at http://www.benchmarkinstitute.org/ccwro/CCWRO-06-08.pdf.
340. A number of years ago, I attended an administrative hearing in Alameda County, California, requested by a welfare recipient to challenge her termination of benefits, which had occurred without notice. In addition to a couple of officials from the welfare office, two ADAs hoping to charge the woman with welfare fraud were in attendance. Also in attendance was a welfare fraud investigator, though it was unclear whether she was employed by the welfare office or was a deputized investigator working for criminal prosecutors. The welfare recipient had no idea that statements she made could be used against her in criminal proceedings, and had no idea that she could exercise her Fifth Amendment right to remain silent in this setting. At the hearing, the welfare recipient had representation, but not representation by a lawyer. (Anyone with adequate knowledge of the regulations may represent a client in an administrative appeal in California. An individual with knowledge of the welfare regulations, though, may not have knowledge of the evidentiary issues or criminal issues involved.)
341. 397 U.S. 254, 278 (Black, J., dissenting) (citing Gideon v. Wainwright, 372 U.S. 335, 344 (1963)).
342. Today, lawyers are rarely available to low-income individuals who are engaged in administrative interactions with welfare officials. Legal aid attorneys give administrative welfare appeals low priority among the many legal issues that arise among the poor. During the late 1990s, when welfare prosecution rates soared in northern California, none of the legal aid offices provided representation to welfare recipients during administrative appeals because they had to prioritize resources and welfare hearings were subordinate to other legal issues. Lack of legal representation is particularly serious for welfare recipients who have misreported or underreported their income because statements they make at administrative hearings, particularly admissions, may be used against them in criminal proceedings. Collateral estoppel prevents welfare recipients from challenging any findings of fact in an administrative hearing during later criminal proceedings.
343. People v. Sims, 651 P.2d 321, 334 (Cal. 1982) (expressing concern that multiple, and possibly inconsistent, judgments undermine procedural integrity).
344. People v. Garcia, 141 P.3d 197, 210 (Cal. 2006) (remanded on the collateral estoppel issue for "determination of whether the issues litigated at the administrative hearing and the criminal prosecution for welfare fraud and perjury were identical").
345. Id. at 213-15 (Chin, J., dissenting).
346. Reich, supra note 293, at 784.
347. Slobogin, supra note 303, at 406-07.
348. Ohio, for example, has no statute specific to welfare fraud. Individuals accused of welfare cheating can be charged with falsification, OHIO REV. CODE ANN. §2921.13 (West 2006 & Supp. 2009); theft by deception, OHIO REV. CODE ANN. § 2913.02(A)(3) (West 2006 & Supp. 2009); securing writings by deception, OHIO REV. CODE ANN. § 2913.43 (West 2006); or unauthorized use of property, OHIO REV. CODE ANN. § 2921.04 (West 2006). 316 Georgia is a state that specifically defines welfare fraud and that seems to encourage prosecutors to enter into consent agreements, under which individuals who pay the state restitution and meet other specified conditions will go without criminal convictions. GA. CODE ANN. § 49-4-15 (West 2003).
349. See notes 109-201 and accompanying text.
350. Critical scholars have long expressed their anxieties that engaging with policy discussions simply reinforces law's hegemonic power over the oppressed, and fails to further either social theory or social transformation. See generally Kitty Calavita, Engaged Research, "Goose Bumps," and the Role of the Public Intellectual, 36 LAW & SOC'Y REV. 5, 7 (2002) (arguing that truly engaged law and society research is not myopically concerned with discrete policy issues, but rather engages with macrostructural analyses and social theory); Austin Sarat & Susan Silbey, The Pull of the Policy Audience, 10 LAW & POL'Y 97, 102 (1988) (arguing that "[b]y addressing a policy audience, scholars speak directly to power," but may ultimately serve to silence political and moral challenges to the power relationships foundational to the policies).
351. Sarat & Silbey, supra note 318, at 99 (arguing that those who avoid the policy audience are scholars who are "politically engaged without adopting the agenda of those who currently make or administer policy").
352. Reich, supra note 293, at 779 ("The most clearly defined problem posed by government largesse is the way it can be used to apply pressure against the exercise of constitutional rights. A first principle should be that government must have no power to 'buy up' rights guaranteed by the Constitution.").
353. Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943 (1995) (describing the social and legal construction of understandings and outlining techniques of transforming social meanings). While my Article is an attempt to map the social construction of poverty, welfare, and welfare cheating, it is also an attempt to transform our understandings of welfare in the process.
354. Shao-Hsun Keng et al., Welfare Dependence, Recidivism, and the Future for Recipients of Temporary Assistance for Needy Families (TANF) 9 (Iowa State Univ. Ctr. for Agric. & Rural Dev., Working Paper No. 00-WP 242, 2000) (using the term "welfare dependency" frequently).
355. Nancy Fraser & Linda Gordon, A Genealogy of 'Dependency': Tracing a Keyword of the U.S. Welfare State, 19 SIGNS 309 (1994) (exploring the term "welfare dependency" and its negative connotations). See also Sanford F. Schram, Words of Welfare: The Poverty of Social Science and the Social Science of Poverty 31-32 (1995) (explaining that Liberals' adoption of neo-liberalism has led to their use of the term dependency).
356. R. MARK GRITZ ET AL., THE SPHERE INST., GRANT NO. 99ASPE-338A, WELFARE RECIDIVISM AND USE OF NON-CASH AID BY WELFARE LEAVERS IN CALIFORNIA (2001), available at http://www.sphereinstitute.org/publications/AspePARecidivism.pdf
357. Shiferwa Gurmu & William J. Smith, Recidivism Among Welfare Recipients: The Role of Neighborhood and Access to Employment, 34 ATLANTIC ECON. J. 405 (2006).
358. MARY JO. BANE &DAVID T. ELLWOOD, WELFARE REALITIES: FROM RHETORIC TO REFORM 40-41, 64-65 (1994) (discussing "welfare cyclers").
359. Kahan, supra note 204, at 415 (arguing that deterrence-based arguments for criminal policies secretly mask "illiberal conflict between contending cultural styles and moral outlooks").