There's a perhaps apocryphal story about what counts as a good article at elite law schools. To make a mark, each article is supposed to forever change the way the reader looks at the topic. By that standard, Kaaryn Gustafson's recent work The Criminalization of Poverty, 99 Journal of Criminal Law and Criminology 643- 716 (Northwestern University School of Law 2009) is a very good article indeed. From page one the reader cannot help but wonder how a country with a proud heritage of care and concern for the needy (not that this is our only heritage) has allowed our principal focus in welfare law to become the hunting of those individuals out to game the system. This is especially true since benefit levels are often so low that, as Kaaryn so aptly puts it, "when it comes to violating the welfare rules, most welfare recipients are damned if they do and doomed if they don't."
As its title clearly signals, the article's principal theme is the way that policing welfare fraud has become central to our welfare policy. Put simply, the focus on fraud has crowded out the more basic questions of whether we are actually meeting the needs of people. As Kaaryn teaches us, this crowding has occurred at the rhetorical level, in the gradual shift over time from public dialogue sympathetic to widows of deceased breadwinners to harsher tones adopted by politicians such as a Congressman John Mica of Florida. Mica held up a sign during a Congressional debate on welfare that read "Don't feed the alligators" in reference to welfare recipients who would use the money to reproduce and seek more handouts. The shift to criminalization has occurred at the bureaucratic level in that welfare offices and police investigators now work side by side, and welfare fraud investigations have taken on an increasingly criminal flavor. The shift has occurred at the substantive level in that welfare law is now riddled with harsh penalties for potential recpients who violate any of the increasingly severe compliance requirements. And the shift has occurred at the budgetary level with more resources devoted directly to reducing the welfare rolls through intense investigations to weed out fraud. All of this is well-researched and clearly presented. Put simply, today's welfare recipient has basically undergone the equivalent of a criminal investigation, often including providing finger prints, tax records, social security numbers, and a photograph, before receiving the first welfare check
Simple recitation of the facts will for many readers be enough to count as criticism of our new welfare regime. But Kaaryn offers many criticisms of her own, and these differ in the extent to which they explicitly invoke more controversial value judgments. In some spots, Kaaryn deftly illustrates the sheer futility of contemporary efforts. Sanctions for violations of welfare policy are carefully crafted to provide incentives for recipients to comply with rules promoting good behavior, such as looking for work or attending mandatory meetings. But the rules are often so complex and confusing that recipients have no idea why benefits fluctuate, placing in grave doubt the value of any such "incentives." Elaborate measures to police fraud are undertaken to save money and pare the welfare rolls. Yet Kaaryn explains how the policing efforts frequently cost far more than any possible savings in reduced benefit payments. At other times, however, Kaaryn's spleen seems vented at the undeniable harshness with which many policing efforts are applied. Here a full analysis of the competing interests at stake awaits later work. Of course, it's demeaning to treat welfare recipients as if they were criminals by subjecting them to endless probing into their private lives. But it's also dispiriting for lower middle class taxpayers to imagine that their hard-earned dollars are going to support people who could work but who prefer to game a system to avoid it. No doubt politicians and the media exploit this sort of working class anger to score cheap points. But the legitimacy of the system probably does depend upon some visible efforts to ensure that money is going where it's needed. Kaaryn is entirely convincing with her argument that we are way off balance now, but finding the right balance strikes me as a difficult task indeed.
Finally, Kaaryn tacks on a more nuanced balancing of interests in a section that would have been a worthy article on its own. Here, she highlights the many ways that the new welfare policing produces arguable invasions into the privacy of welfare recipients. Homes are routinely searched, sometimes without prior announcement, to check for welfare violations. Probable cause for suspicion is often not required. Kaaryn takes readers through a careful doctrinal analysis of court cases ruling on the constitutionality of such searches under the Fourth Amendment. Holding the Court to its own pronouncements in similar cases, Kaaryn makes a highly compelling argument that the courts have lost their way. The fear of welfare fraud has produced judicial results allowing searches that seem inconsistent with our longstanding constitutional traditions. It can't be right that a search is ok merely because it seeks evidence of welfare eligibility, if the law also treats violations of eligibility rules as a criminal offense. Let's hope Kaaryn's work marks the beginning of needed correction.
People's undeniable need for money to stave off cold, hunger, and illness cannot be omitted from discussion of welfare, any more than the needs of millions of individuals to see a doctor can be ommited from the discussion of health care reform. Americans everywhere owe Kaaryn a debt of gratitude for her part in ensuring that poor people will not be forgotten. Bravo! JP