The criminalization of poverty
by Kaaryn Gustafson,
Journal of Criminal Law and Criminology, Summer 2009
The word welfare is now commonly used pejoratively–as in “welfare mother” or “welfare queen.” We often hear the word welfare used to describe a bureaucratic mess or to describe economically and socially marginalized populations. Lost in these contemporary understandings of welfare is the association of welfare with wellbeing, particularly collective, economic wellbeing. Many of the current welfare policies and practices are far removed from promoting the actual welfare of low-income parents and their children. The public desire to deter and punish welfare cheating has overwhelmed the will to provide economic security to vulnerable members of society. While welfare use has always borne the stigma of poverty, it now also bears the stigma of criminality. This change in perspective has under-examined implications for both welfare law and criminal law. This Article examines those implications.
Over the last several decades, criminal law enforcement goals, strategies, and perspectives have grown entangled with the welfare system, a putatively benevolent arm of the state. Government welfare policies increasingly treat the poor as a criminal class, and the treatment of low-income women as criminals has occurred at all levels of government–federal, state, and local. The 1996 federal welfare reform legislation required states to implement measures to control welfare fraud. (1) While states have approached the policing of welfare fraud with varying levels of zeal, there is a clear trend toward toughness on welfare recipients who run afoul of regulations or who fail to comply with welfare rules. (2)
Perhaps no state has been tougher on welfare fraud than California. California is one of the most aggressive states not only in investigating and prosecuting welfare fraud cases, but also in welcoming law enforcement into the welfare system. (3) Even before receipt of a first issuance of a grant, an applicant for welfare is reminded of the welfare system’s punitive rules and undergoes state scrutiny otherwise limited to criminal offenders. A welfare recipient has likely signed documents informing her that her welfare grant will be reduced or terminated if she has a boyfriend move in without informing the state, if she fails to vaccinate her children, or if she is convicted of a drug charge. She has probably signed a document stating that any child she conceives and gives birth to while on welfare will be excluded from calculations of household financial need. Her Social Security number has been matched against state and national criminal records to make sure that she is not someone who should be incarcerated, that she does not have an outstanding arrest warrant, and that she has not been convicted of a drug-related crime. The financial information she has provided has been matched against various employment databases, IRS records, and Franchise Tax Board records to see that her lack of income is verifiable. Her personal information has been entered into the welfare system’s database, which may be accessed by law enforcement officers without any basis for suspicion that she has engaged in any wrongdoing. She has been photographed and fingerprinted. And all of this has occurred before she has received a single welfare check.
Particular California counties are especially zealous in policing welfare fraud. San Diego, for example, takes a more proactive approach to welfare cheating than other California counties. In 1997 the County established a program known as Project 100%. (4) Under the program, all individuals who apply for California’s welfare program, known as CalWORKs, are subject to an unannounced home visit by a plain-clothed welfare fraud investigator, who is deputized and employed by the local prosecutor’s office. (5) Home visits occur before benefits are issued, and consist of an interview and a walk-through of the home. Investigators may, and do, look inside closets, bathroom cabinets, laundry baskets, and trash cans during the walkthrough. (6) Welfare applicants are informed that the home visits are designed to verify their eligibility. (7) Anyone who refuses consent for the interview or walk-through will automatically have her welfare application denied. (8) If the home visit and walk-through reveals any evidence of criminal activity, the county investigator may make a referral for criminal investigation. (9)
San Diego County’s practices, some of the most aggressive in the country, are emblematic of the broader trends in both welfare provision and the intermingling of the welfare and criminal justice systems. Nationwide, welfare applicants are treated as presumptive liars, cheaters, and thieves. Low-income families find their lives heavily surveilled and regulated–not only by welfare officials, but also by the criminal justice system. And low-income individuals may not be aware of the complex rules and regulations that take effect when applying for government benefits or of the many ways the government surveilles their actions. Policing the poor and protecting taxpayer dollars from misuse have taken priority over providing for the poor. Regulating the behavior of the poor and deterring fraud are now the objects of political attention and government resources, even when the goals of such regulation are unclear and the methods of deterrence are unevaluated and costly.