Nineteen years after President Bill Clinton endorsed conservative ideas about fighting poverty and signed sweeping welfare reform into law, one of the most poorly thought out elements of that political pact is on the verge of crumbling.
Committing a drug crime was supposed to permanently ban a person from food stamps and welfare benefits under a little-discussed provision of the Clinton-Gingrich reforms. But with Alabama and Texas creating exceptions to those bans as part of broader criminal justice reforms this legislative season, barely 10 percent of the states will actually maintain such a lifetime ban for drug crimes come autumn.
The War on Drugs and the War on Poverty aren’t easily mixed. Making it harder to eat and pay rent won’t help someone busted for pot possession or small-time cocaine sales to recover economically and socially from years in prison. The bans ensure that every discriminatory effect of the drug war gets amplified economically even after the criminal justice system is done with a person. Because women are the primary recipients of both assistance programs, and women of color are more likely to get caught up in the racial disparities of the criminal justice system, the bans have ended up disproportionately affecting women of color and their children — and doing next to nothing to combat either drugs or poverty.
The bans were masterminded by then-Sen. Phil Gramm (R-TX), who designed the legislation to kick in automatically nationwide unless state legislatures actively opted out. Many did immediately, but for well over a decade the majority of the country’s public assistance jurisdictions maintained Gramm’s bans in full.
In federal law, the lifetime ban applies to both the Temporary Assistance for Needy Families (TANF) welfare program and food stamps (Supplemental Nutrition Assistance Program, or SNAP) benefits. The patchwork of state repeals and reforms over the past two decades has mostly focused on the SNAP bans, and several states that have lightened the restrictions for ex-cons seeking food stamps have continued to ban them permanently from the family-oriented TANF system.
Regardless of these local eccentricities, Feeding Texas CEO Celia Cole said in an interview, the core point remains that the bans produce the exact opposite of what tough-on-crime proponents had in mind.
“We have volumes of research showing that people who can’t afford food are way more likely to reoffend,” Cole said. “One of the things people most struggle with when they have a felony conviction is finding work. So we know they’re in serious need of assistance right when they get out, particularly to buy food.”
While many of the stringent and disastrous changes made to anti-poverty programs in 1996 came out of long public debate and extensive congressional exploration, the food stamps ban was a sort of impulse buy for politicians still reliant on drug war rhetoric.
“Suffice it to say, it was not a very vetted proposal,” said Food Research Action Center legal director Ellen Vollinger, who wasn’t certain the idea hatwd even been mentioned in the many committee hearings that produced the sweeping 1996 overhaul of public assistance programs. “I think it was a policy that wasn’t considered fully enough even if there was some debate on it.”
The idea received just two minutes of debate on the Senate floor. Sen. Ted Kennedy (D-MA) pointed out that Gramm’s idea would mean that “if you are a murderer, a rapist, or a robber, you can get Federal funds; but if you are convicted even for possession of marijuana, you cannot.” Gramm insisted that “we ought not to give people welfare benefits who are violating the Nation’s drug laws.”
No senator acknowledged that someone who’s been convicted, sentenced, jailed, and released by the United States has at that point ceased to be “violating the Nation’s drug laws,” and would face a retroactive form of punishment if denied public assistance. Neither side acknowledged that refusing people from a safety net program makes their financial circumstances more dire, and the temptation to seek economic security and personal dignity in black-market work all the greater.
“If you don’t want to see recidivism, you certainly don’t want to give people more burdens and more steps backward as they’re trying to establish themselves,” Vollinger said. “From a kind of common-sense logic point of view, it didn’t make a lot of sense. It makes it that much tougher for people making a fresh start to be successful and not to backslide.”
Gramm’s idea got adopted into the broader welfare reform bill on a voice vote, never faced a committee hearing, and was aided toward passage by 28 Democrats, six of whom are still in the Senate and one of whom is Vice President of the United States. Gramm’s hasty victory has aged poorly, Vollinger said. “I think the aftermath in terms of what states have done with it suggests that if one were to take a more measured look at it, they’d probably end up doing what states are doing, which is not going with the ban.”
Within two years of the bipartisan adoption of economic punishments over and above criminal ones, eight states had rejected Gramm’s idea outright. A dozen others had tweaked it to make the ban narrower, mostly by exempting drug possession convictions from the rule or making TANF conditional on parole compliance or drug treatment programs.
By June of that year, 27 states had opted out of the ban or modified the law to grant exceptions to it. But with Texas and California maintaining the bans in full, most Americans were subject to the full weight of Gramm’s brainstorm.
A 2013 Yale School of Medicine survey of affected felons in Connecticut, California, and Texas reveals the real-world consequences of Gramm’s gambit. The bans raise the risk of HIV exposure and make banned people more likely to sell their bodies for food money, Dr. Emily Wang and her colleagues found.
For every 11 drug convicts released in a SNAP ban state, 10 can’t put enough nutritious food on their plates every day. A quarter of the women respondents who had kids said that their children had gone hungry for a full day in the past month. Four in nine reported going a full day without eating anything themselves in the month before being surveyed. Ex cons who’d gone hungry for a day “were more likely to use heroin, cocaine, or alcohol before sex, and were more likely to exchange sex for money than those who had at least one meal each day.”
Like most other states that opted out of Gramm’s ban, Texas and Alabama reserve the right to re-ban a person from benefits should they fail to fulfill certain conditions. For an ex-con who misses a couple of rehab meetings or a parole officer’s call and finds himself cut off from public assistance again, such partial reform is little help. And the Texas measure includes a trap-door for food stamps: if someone who regains access to SNAP after prison commits a second drug crime, they’re banned for life.
“We would’ve preferred a downright elimination, without any strings attached, so it’s very much a compromise,” said Cole. “I don’t think under any circumstances is it ever just or sound public policy to say you can’t get a benefit for life because of something you did once or twice or three times. That said, under the circumstances, we had to compromise.”
Imperfect though the new Texas policy may be, it still shrinks the number of states with full-fledged lifetime SNAP bans for drug felonies to six. Together with similar-in-spirit compromises in Missouri and Alabama, the law means there are 33 percent fewer states that maintain the SNAP ban than there were just two years ago.
But not all the signs on the horizon are positive. Lawmakers in Maine and Pennsylvania — two of the first states to walk away from Gramm’s ban in the early years — have recently suggested reinstating the very rules that are coming off the books elsewhere. Missouri advocates narrowly rebuffed an effort to reimpose the ban for ex-felons earlier this year according to The Sentencing Project, not even 12 months after Gov. Jay Nixon (D) signed the bill that moved the state out of the full-ban column. And because the hard-won Texas reform doesn’t apply to TANF benefits, roughly 70,000 women in that state continue to be deprived of assistance for their families that they would otherwise be entitled to.
Still, Cole said, the victory in Texas should drag the politics of the thing in the right direction.
“We’re a conservative state,” she said. “Lots of advocates in other conservative states can reach out to their governors and say, ‘Look, Texas did it. We can too.’”