Double Jeopardy: An Assessment of the Felony Drug Provision
of the Welfare Reform Act

I. Introduction

Section 115 of the federal welfare legislation placed a lifetime ban on TANF and Food Stamp benefits for convicted drug felons. The drug felony provision was sponsored by Senator Phil Gramm and thus is sometimes referred to as the Gramm Amendment. Although Senator Gramm offered little official justification for the provision, it was introduced and ratified with bipartisan support within minutes.(1) The federal provision allowed states to opt out of or modify the ban if they so desired.

The California legislature passed its version of the drug felony provision in 1997, in tandem with CalWORKS, its comprehensive welfare reform legislation. California not only opted in to the federal provision banning persons convicted of drug related felonies from TANF and Food Stamps, but went further by also excluding those who are disqualified from TANF by the federal ban from receiving state General Assistance (GA) benefits. The California ban applies to all persons convicted of a drug felony after December 31, 1997.

This elimination of a safety net for drug convicted persons who are also parents will prove costly to counties. The director of San Francisco's Department of Human Services, Will Lightborne, has stated that the drug felony provision constituted the most unfair aspect of the CalWORKS legislation.

This study attempts to evaluate the issue and project the likely impact of this policy on San Francisco's needy families. This research examines the following questions:

- Will the provision have a disproportionate impact on women and minorities?
- Will the provision lead to increased state foster care and criminal justice costs?
- Will the provision affect treatment opportunities for persons convicted of drug felonies?
- Will the provision harm innocent children?

A. Disproportionate Impact on Women and Minorities

The drug felony provision will unquestionably have a disproportionate effect on women. Women comprise the overwhelming majority of adult TANF recipients,(2) and incarcerated women are more likely than incarcerated men to have a drug felony conviction. In California, the disparate impact is even more striking because single male drug felons can currently receive state General Assistance benefits while mothers convicted of drug felonies cannot.

Read Latasha's Story: How one woman turned her life around with the help of TANF benefits, and what we are losing under Welfare Reform

The new drug felony provision will also be systematically biased against racial minorities. For example, African Americans constitute 12% of the U.S. population, 35% of those arrested for drug possession and 74% of those sentenced to prison.(3)

According to the Harvard Law Review: Denying welfare benefits to drug offenders will ... take a disproportionate toll on African-Americans and Hispanics. Not only are members of these groups already over-represented among the ranks of the poor, but the government officials responsible for enforcing drug laws focus disproportionate attention on African-American and Hispanic communities.... The combination of racial bias in law enforcement and poverty virtually guarantees that the weight of the Gramm Amendment will fall most heavily on African-Americans and Hispanics.(4)

Minorities comprise a disproportionate percentage of drug felons, as well as a disproportionate percentage of welfare recipients. Clearly, this combination means that minorities will be disproportionately affected by the drug felony provision.

B. Increased State Foster Care and Criminal Justice Costs

Another impact of the drug felony provision is that it will greatly increase state costs, especially for foster care and criminal justice. Organizations such as the U.S. Conference of Mayors and National League of Cities publicly and adamantly opposed the federal provision, arguing that the provision would have "unintended consequences [that] would shift more of the financial burden of society's safety net to state and local governments."(5)

State foster care costs will increase due to the drug felony ban. It will be difficult for a mother returning from prison to obtain a job because of her criminal record. The ban will increase the difficulties for these mothers to reunify with their children, since they will not be able to provide them with a stable income and housing. If no relative is available, these children will wind up in foster care. According to the Urban Institute: "Since a large number of families served by child welfare agencies have substance abuse problems, this provision may make it difficult for substance-abusing parents to obtain the financial resources necessary to care for their children. If child welfare agencies are unable to keep substance-abusing families intact, foster care and adoption expenditures will increase."(6)

In addition, children who are placed with a mother who does not receive adequate benefits will be at increased risk of neglect or abuse. This will lead to the children being placed in foster care after draining yet more state resources with neglect investigations. Nancy Young of California State University at Fullerton, who specializes in welfare and substance abuse issues, explained that "when these mothers' benefits are reduced, and they can't feed and house their kids, that's neglect. The implications are enormous for the child welfare system."(7)

The City and County of San Francisco's foster care system is presently under court scrutiny due to its disproportionately high percentage of out-of-home and out-of-county placements. Clearly, the drug felony provision will exacerbate San Francisco's struggle to reunite families.

Another major state cost that will increase due to the drug felony ban is criminal justice costs. The situation facing a mother paroling from prison may be quite dire: having a drug addiction but being unable to receive treatment, or to find a job because of the drug felony on her record, or to receive welfare or Food Stamps for herself, and having hungry children to feed. Some women may turn to crime to support their children and themselves. Others may return to drug use to escape the pressure of their situation. Nancy Young states that "we're going to have to address those addiction issues to get people self-sufficient, or we're going to see them winding up in jails...."(8)

Society pays for a mother's return to crime and drugs in many ways: for the costs of the crimes committed, for the costs of reincarcerating the mother, and for the costs of placing the children in foster care if no family members are able to take them in. As one commentator put it:

Without any support services for ex-drug offenders immediately after their release from prison, we can expect recidivism to skyrocket. That means more and more taxpayer dollars for law enforcement, the legal system and prisons, more property loss, and more victims.(9)

C. Decreased Treatment Opportunities

Convicted drug addicts need treatment so that they will not return to a life of drug use and crime upon their release from prison. The drug felony provision will make it far more difficult for them to receive treatment after their release. Many residential treatment programs depend on welfare programs to help defray the cost of room and board.(10) The California Association of Addiction Recovery Resources (CAARR) recently conducted a survey of fourteen residential treatment programs to find out the extent to which the programs used benefits to defray their costs.(11) While the survey is limited by its small sample size, it clearly shows that at least some residential treatment programs will be gravely affected by the drug felony provision. The survey found that, overall, 69% of the programs' food expenses were covered by Food Stamps -- including one program that had 100% of its food expenses reimbursed by Food Stamps. CAARR estimated that "the projected loss to these homes should Food Stamps not be available is $547,884 or $705 per bed per year."(12) The survey also found that 14% of residents used state or federal welfare grants to pay for services -- including 95% in one of the programs.

The loss of Food Stamps and state GA benefits will have far greater consequences for most residential treatment programs than the loss of TANF benefits. This is because adults are eligible for TANF only if they live with their children, and most women in residential treatment centers do not live with their children. These women help defray the cost of their treatment with Food Stamps and GA, but not with TANF. Residential programs that serve women and children, however, can and do use their clients' TANF benefits to help pay for their treatment. These innovative parent-child programs -- such as the one that Latasha Isaac, who is profiled in this report, participated in -- will thus be especially hard hit by the drug felony provision.

The CAARR survey shows that treatment programs will lose a significant portion of their budgets as a result of the drug felony ban. According to Linda Wolf Jones, Executive Director of Therapeutic Communities of America, "these programs are able to operate at a low cost by maximizing whatever benefits their clients are eligible to receive."(13)

According to the Legal Action Center, "the provision will make it harder for treatment programs ... to survive financially."(14) Cash-strapped treatment programs are more likely to provide their scarce treatment beds to those who can contribute to the cost of their treatment in some way. This will result in less treatment slots for ex-offenders. According to the National Association of Alcoholism and Drug Abuse Counselors (NAADAC), "loss of access to even this meager funding source may cause a patient to lose treatment opportunities."(15)

D. Harm to Children

Another argument against the ban is that it harms innocent children. In addition to the financial loss of placing children in foster care, there is the huge emotional loss the children face by being separated from their mother and dumped on an overburdened foster care system. This is, of course, also true for children who are neglected due to lack of family resources. As Laura Feig of the U.S. Department of Health and Human Services states: "By definition each of these women has kids. But no one considered what will happen to the kids."(16)

II. National Survey

A. State Decisions: Opting In, Opting Out or Modifying

The federal welfare bill gave states the right to opt out of or modify the federal bill's drug felony provision. According to the National Governor's Association (NGA) Center for Best Practices, thirty-two states opted in to the provision, eight states opted out, and ten states modified the provision in some way. (See Table 1). The eight states that opted out of the provision completely are: Connecticut, Hawaii, New Hampshire, New York, Oklahoma, Oregon, Utah and Vermont. The ten states that modified the provision in some way are: Arkansas, Colorado, Florida, Illinois, Iowa, Michigan, Minnesota, North Carolina, Rhode Island, and Washington. All other states opted in to the provision.

B. Types of State Modifications

The types of state modifications to the drug felony ban are listed in Table 2. There were two major ways that states modified the drug felony ban. Five states (Arkansas, Florida, Illinois, North Carolina and Rhode Island) excluded those convicted of drug possession, but not drug sales, from the ban. Five states (Colorado, Illinois, Iowa, North Carolina and Washington) excluded those receiving or having successfully completed treatment from the ban. (Note that in Illinois and North Carolina, recipients had to meet both of the drug possession and drug treatment criteria to be excluded from the ban.)

Two states (Michigan and Minnesota) provided TANF and Food Stamps to all drug felons, but required that payments be made to a third-party vendor. Minnesota also required that drug felons be drug tested to receive their benefits.

IV. Prospects for Future Legislative Change in California

Like 31 other states, California completely opted in to the drug felony ban. But the fight in California is not over. New legislation could be enacted that would either opt California out of the ban or modify the ban in a variety of ways. Some of the most promising potential modification strategies are discussed below.

A. Treatment Exemption

Five states modified the drug felony ban by exempting people who were receiving or had successfully completed treatment from the ban. This type of modification has the greatest chance of success in California. A treatment exemption to the drug felony ban was included in early versions of the California welfare bill, but was not included in the final bill. The fact that this exemption was seriously discussed and debated in California shows that there is some hope for it in the future. Legislators who supported the exemption included both Democrats and Republicans. Some of the supporters of the treatment exemption had personal or family histories of substance abuse and understand the importance of treatment. Their views are thus unlikely to change.

B. Possession Exemption

Five states exempted those convicted of drug possession from the ban, prompting one national observer to declare the possession exemption the "most successful" state modification strategy.(19) The possession exemption was discussed in the California welfare reform debate, but was never included in any of the bills. While such an exemption would certainly be an improvement over the current California provision, its impact would likely be limited, according to advocates, because there is not a clear distinction between sellers and users. The two groups overlap, as many users sell small amounts to support their addictions. This is especially true of female users.(17)

C. Allowing Counties to Opt Out

There is a strategy that has not, we believe, been used anywhere in the nation that could potentially mitigate the affects of the ban in California and other states with strong county governments. California could modify the ban to allow individual counties to opt out. There is nothing in the federal legislation that would prevent a state from passing a county opt out plan. The modification legislation would state that by default every county in California opts in to the ban, but that in the interest of supporting local control counties can opt out if they pass affirmative legislation explicitly doing so. Legislators might be able to support such a modification because they would have political cover. Legislators could say they opted in to the ban but allowed for local control, both of which are politically popular positions.

III. Recommendations

A. Amend the State Law

State legislative representatives should enact modifications to the drug felony ban. Potential modifications include allowing benefits for those receiving or having completed substance abuse treatment; allowing benefits for those convicted of drug possession but not sales; and allowing individual counties to opt out of the provision altogether.

B. Work With the San Francisco Criminal Justice System to Immediately Minimize the Negative Impact of the Provision

The San Francisco District Attorney's office can make the biggest difference in minimizing the negative impact of the drug felony provision because of the enormous prosecutorial discretion it has in deciding who it prosecutes for drug felonies. If a drug offender is not convicted of a drug felony, the welfare ban does not apply to her. The DA's office can find alternative ways of prosecuting drug offenders that do not leave them with a felony drug conviction on their record.

The DA can have an impact by expanding the use of three existing programs: Drug Court, Mentor Court and Drug Diversion. If a drug offender completes one of these programs successfully, the charges against her are dismissed and no drug felony conviction appears on her record. Unfortunately, eligibility requirements for these programs exclude many women who will be affected by the drug felony ban. Drug Diversion excludes those charged with drug sales, while Mentor Court excludes active substance abusers. Many women fall into both of these categories, since they are selling in order to support their addiction, and are thus excluded from both programs. The DA should change its eligibility requirements so that more women who would otherwise be subject to the drug felony ban will be able to participate in these programs.

A proposal put forth by a coalition of community-based agencies calling on the Municipal Court, the District Attorney, the Public Defender and the Adult Probation Department to address these issues, has received support from the Department of Human Services and deserves immediate attention.

3. Allow Parents Excluded From CalWORKS To Receive Local Public Assistance

San Francisco's Department of Human Services has revised its General Assistance (GA) program. These revisions have resulted in the creation of three new county programs which fall outside the State's mandate to exclude TANF-banned recipients from the State GA Programs. Parents excluded from TANF should be allowed to qualify for these three county discretionary programs.

This research is funded in part by a grant from The California Wellness Foundation (TCWF). Created in 1992 as a private and independent foundation, TCWF's mission is to improve the health of the people of California through proactive support of health promotion and disease prevention programs.

This report was made possible by generous grants from the Vanguard Foundation, Heller Charitable and Educational Fund and the Haigh Scatena Foundation.