The other day, a man stopped me on the sidewalk outside the Georgetown Law campus. “Excuse me,” he said, “which way should I walk to get to Germantown, Maryland?” It took me a moment to process his question—I was not sure where Germantown was, but I knew it was certainly not within walking distance. To my surprise, he clarified that he had just been released from prison after serving an eight-year sentence and was trying to get home. I searched for public transit options on my phone and discovered that he could get there via Metro and a bus ride. He told me his Metro card did not have quite enough stored value to cover the fare. “Someone told me I could just hop the gate and get on the train, but I don’t want to go back to prison,” he said. Expressing my wholehearted agreement with his judgment, I handed him a $10 bill and wished him well.

This chance encounter illustrates a broader, systemic issue: many formerly incarcerated people are consigned to a lifetime of poverty that begins the moment they exit the prison gates. Nearly half of all returning citizens earn no income in the first year after their release.^[1] Formerly incarcerated people are two times more likely than the general population to experience food insecurity, and nearly ten times more likely to experience homelessness.^[2] Unsurprisingly, two-thirds of those released from prison are rearrested within three years.^[3] Commonly cited contributing factors include inadequate reentry programming, discriminatory hiring practices, and the loss of income associated with serving a prison sentence. With the odds stacked against these individuals, it is clear that more government support must be part of the solution. However, as long as a piece of archaic, War-on-drugs-era legislation stays on the books, the federal government will remain part of the problem.

In 1996, Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), which rendered anyone with a federal or state felony drug conviction ineligible to receive benefits from the Supplemental Nutrition Access Program (SNAP, formerly known as food stamps) or Temporary Assistance for Needy Families (TANF).^[4] Fueled by “tough-on-crime” sentiment and outdated stereotypes about drug users and welfare recipients, this bill imposes an additional punishment on those who have already repaid their debts to society. As Senator Phil Gramm (R-TX), the provision’s sponsor, argued in Congress, “if we are serious about our drug laws, we ought not to give people welfare benefits who are violating the Nation’s drug laws.”^[5]

This ban has continued to affect many, and predictably, it has proven to be counterproductive. A Florida study found that individuals convicted of drug trafficking offenses after the ban took effect were nine percentage points more likely to be rearrested than those who were convicted prior to the ban and therefore unaffected by it.^[6] On the other hand, access to SNAP and other welfare benefits has been found to reduce the risk of recidivism by up to 10% in the first year after release.^[7]

Further, due to racial disparities in the criminal justice system, the ban disproportionately affects Black Americans. While rates of drug usage among Black and white Americans are roughly the same, Black Americans are ten times more likely than whites to serve prison time for a drug conviction.^[8]

While PRWORA does permit states to modify the ban or opt out of it completely by passing their own legislation, 25 states still have some form of the ban in place.^[9] Of those states, South Carolina is the most restrictive, with the full SNAP and TANF bans still on the books. Six other states have the full TANF ban in place alongside a modified version of the SNAP ban.^[10] Further, many of the modified bans still present unnecessary barriers to successful reentry. For example, some states allow those convicted of low-level drug offenses such as possession to access benefits but still prohibit access for those who have served sentences for more serious drug crimes such as distribution.^[11] Others allow access to benefits after a mandatory waiting period or the completion of a drug treatment or testing program.^[12]

Congress must act to ensure that access to need-based government assistance is based on need alone. Last year, Senators Cory Booker (D-NJ) and Raphael Warnock (D-GA), along with Representative Steve Cohen (D-TN), introduced the Re-Entry Support Through Opportunities for Resources and Essentials (RESTORE) Act which, if passed, would repeal the federal ban on SNAP benefits for individuals with prior drug convictions and invalidate any state law that imposes barriers to benefit access for those with prior drug convictions.^[13] It would also allow these individuals to apply for SNAP benefits 30 days before their scheduled release date to account for application processing time.^[14] Despite its recognition of the need to remove barriers to SNAP, the current version of the legislation does not address the TANF issue. If Congress truly cares about rehabilitating individuals with prior convictions and combating the societal ills of poverty, crime, and discrimination, it must amend this bill to include a repeal of the TANF ban and pass it immediately.

 

 

[1] Adam Looney & Nicholas Turner, Brookings Inst., Work and opportunity before and after incarceration 1 (2018), https://www.brookings.edu/wp-content/uploads/2018/03/es_20180314_looneyincarceration_final.pdf.

[2] Alexander Testa & Dylan B. Jackson, Food Insecurity Among Formerly Incarcerated Adults, 46 Crim. Just. & Behav. 1493, 1502 (2019); Lucius Couloute, Nowhere to Go: Homelessness among formerly incarcerated people, Prison Pol’y Inst. (Aug. 2018), https://www.prisonpolicy.org/reports/housing.html.

[3] Mariel Alper & Matthew R. Durose, Bureau Just. Stat., 2018 Update on Prisoner Recidivism: A 9-Year Follow-up Period (2005-2014) 1 (2018), https://bjs.ojp.gov/content/pub/pdf/18upr9yfup0514.pdf.

[4] Margaret Love & Nick Sibilla, Access to SNAP and TANF Benefits after a Drug Conviction: A Survey of State Laws, Collateral Consequences Res. Ctr. (Dec. 2023), https://ccresourcecenter.org/national-snap-tanf-drug-felony-study/ [hereinafter Survey of State Laws]; 21 U.S.C. § 862(a).

[5] Malik Neal & Tatyana Hopkins, Cong. Black Caucus Found., Perpetual Punishment: A State-by-State Analysis of Welfare Benefit Bans for People with Prior Felony Drug Convictions 3 (2023), https://issuu.com/congressionalblackcaucusfoundation/docs/2022_cbcf_cpar_a_state-by-state_analysis_of_welfar.

[6] Cody Tuttle, Snapping Back: Food Stamp Bans and Criminal Recidivism, 11 Am. Econ. J.:  Econ. Pol’y 301, 302 (May 2019), https://www.jstor.org/stable/26641373.

[7] Crystal S. Yang, Does Public Assistance Reduce Recidivism?, 107 Am. Econ. Rev. 551, 551 (June 2017), http://www.law.harvard.edu/programs/olin_center/papers/pdf/Yang_920.pdf.

[8] Network for Pub. Health L., The Effects of Denying SNAP Benefits to People with a Felony Drug Conviction 3 (2020), https://www.networkforphl.org/wp-content/uploads/2020/04/Issue-Brief-Snap-Felon-Ban-Updated-1.pdf.

[9] Survey of State Laws, supra note 4.

[10] Id.

[11] Id.

[12] Id.

[13] Senator Cory Booker, Booker, Warnock, Cohen Introduce Bicameral Bill to End Policy Preventing Formerly Incarcerated Individuals from Accessing SNAP (May 18, 2023), https://www.booker.senate.gov/news/press/booker-warnock-cohen-introduce-bicameral-bill-to-end-policy-preventing-formerly-incarcerated-individuals-from-accessing-snap.

[14] Id.