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April 2003 - Vol. 5, No. 4
Federal Appeals Court Declares Drug Testing of Welfare
Recipients Unconstitutional
The U.S. Court of Appeals for the Eastern District of Michigan
has prohibited a Michigan state policy that made “suspicionless”
drug testing of applicants a condition of eligibility for the state’s
TANF (Temporary Assistance to Needy Families) program, and conducted
random testing of 20% of the state’s caseload every six months.
An original U.S. District Court opinion held that the program likely
violated constitutional protections against unreasonable search
and seizure, and enjoined the state from operating the program of
drug testing after only five weeks. That opinion was overturned
by a three-judge panel of the 6th Circuit Court of Appeals last
October. On April 9th, the full court affirmed the original opinion.
In its five weeks of operation, 21 of 268 welfare recipients who
were tested had a positive result for drug use, the vast majority
of which were positive for marijuana. Less than 3% indicated use
of hard drugs, and less than 1% ended up in treatment programs.
More than half who tested positive had their application for welfare
benefits denied.
At least eleven states have some sort of drug testing policy related
to eligibility for welfare benefits. Most do not conduct random
tests without suspicion of drug use, however, and will not likely
be affected by this opinion. The opinion could serve to deter states
from moving toward a broader use of the policy.
Advocates who filed ‘friend of the court’ briefs in
opposition to the policy pointed out that:
- The use of drug testing fails to distinguish occasional use
from use that impairs employability and family relationships.
- The drug test over-identifies marijuana use and ignores alcohol
use.
- Fear of drug testing on the part of poor families will prevent
them from seeking out assistance when they need it.
The case is Marchwinski et al v. Bowler, U.S. District
court of Appeals for the Eastern District of Michigan.
In a policy development related to welfare and drug use, Pennsylvania
is nearing passage of a bill to revoke its ban on welfare benefits
for drug felons. The ban was initially imposed on states by the
federal government with welfare reform legislation in 1996. States
could opt out of the ban on benefits, and 31 states have done so,
leaving 19 states that currently ban drug felons from receiving
welfare benefits. In Pennsylvania, the legislature has become convinced
of the need to lift the ban for a number of reasons:
- The ban serves as a deterrent to drug treatment and reunification
with children who are in foster care.
- The costs of jail time and foster care that result from the
ban far outweigh any additional costs in welfare payments.
- The state District Attorney’s office supports lifting
the ban because it discourages proper treatment for drug offenders.
Prison Population Exceeds 2 Million; 12% Of Young
Adult Black Males Are Incarcerated
The U.S. Department of Justice Bureau of Justice Statistics released
its Midyear 2002 bulletin this month, Prison and Jail Inmates
at Midyear 2002, which reports on shifts in populations of
prison and jail inmates. Of note:
- An estimated 12% of black males, 4% of Hispanic males, and
1.6% of white males in their twenties and early thirties were
in prison or jail at midyear 2002. The prison rate for black males
is the highest ever measured. The rate reflects the percentage
of the population in prison on any given day. The rate is much
higher when calculated over the course of a lifetime. The Bureau
of Justice Statistics has calculated that rate to be 28% for black
men in their twenties and early thirties.
- The total prison and jail population nationally was more than
2 million for the first time. The number includes inmates of federal,
state and local prisons or jails.
- At midyear 2002, 1 of every 142 U.S. residents was in prison
or jail. The rate of inmates per 100,000 residents was highest
in Louisiana (799), Mississippi (728), Texas (685), Oklahoma (672)
and Alabama (593). Maine (137), Minnesota (139), North Dakota
(167), Rhode Island (184) and New Hampshire (197) had the five
lowest rates.
The bulletin, as well as tables and related statistical data are
available at www.ojp.usdoj.gov/bjs/.
State Bills Would Affect Child Support, Welfare Policy
Several states have legislative or administrative changes pending
that would affect child support, and state Temporary Assistance
to Needy Family Programs. For example:
- In Michigan, State Representative Michael Murphy
(D-Lansing) is planning to re-introduce a bill that failed to
get out of the Family and Children Services Committee of the state
legislature last year. The bill would prohibit the state from
funneling approximately $100 million in annual undistributed child
support collections to the state’s general fund. The state
would be required instead to pass funds that have not been distributed
after three years on to children who don’t get regular support,
starting with the neediest cases.
- Reconfigurations of child support guidelines and payments are
being considered in Minnesota and Wisconsin.
In Minnesota, the House Judiciary Committee has approved a bill,
sponsored by Rep. Steve Smith (R-Mound), that would:
- Consider the income of both parents when determining child
support payments.
- Base child support on gross instead of net earnings.
- Base the child support order on typical family expenditures
estimated by the U.S. Department of Agriculture.
- Allow courts to order custodial parents to document how they
spend their child support money.
- Reduce child support payments based on the amount of time
the noncustodial parent spends with the child.
A Senate version of the bill is similar, but omits the last two
provisions. The provisions were criticized for encouraging power
struggles between parents and for providing a tool that an abusive
noncustodial parent could use against his former partner or spouse.
It will be heard in the Judiciary Committee next week; the House
bill will now move to the floor.
Wisconsin is considering a change in the child support agency
administrative rules which include the details of the state guidelines.
This administrative rule change would:
- Reduce the amount of child support payments (below the 17%
guideline amount) for payors under 150% of the federal poverty
line.
- Restructure the shared placement provision of the rule and
the resulting child support guidelines for parents with joint
placement (custody) arrangements.
- Reduce the amount of child support payments (below the standard
17% guideline amount) for high income payors.
- Texas Rep. Arlene Wohlgemuth (R-Burleson) has
introduced a bill that would toughen sanctions for welfare families
if they fail to comply with work requirements, community service
or training activities, or if they fail to cooperate with the
state’s efforts to recoup welfare costs from the noncustodial
parent. The bill would result in sanctions for the entire family
if a parent were deemed noncompliant with any single requirement.
A missed appointment, regardless of the reason, could result in
several months without assistance. The current monthly grant for
a family of three in Texas is $197.
Sentencing Discretion of Judges is Restricted in
Bill Passed by Congress
President Bush is expected to sign a bill, known as the Enhance
Amber Alert Bill (S.151), which gained wide support from Congress
because of its primary goal of creating a national kidnapping alert
system and increasing penalties for child sexual abuse and kidnapping.
The bill passed the House on April 10 with a vote of 400 to 25.
The Senate vote was 98 to 0.
Contained in the bill are provisions not directly tied to child
abduction or sexual abuse, that have less uniform support and that
would:
- Severely limit a judge’s flexibility to impose sentences
below the range of federal guidelines on a broad range of crimes
not related to child sexual abuse or kidnapping.
- Allow judges to grant sentences more lenient than the federal
guidelines only when based on specific grounds.
- Require judges to report each instance of sentencing outside
the guidelines to a national sentencing commission.
- Impose a two-year moratorium on adding grounds for leniency
to the federal sentencing guidelines.
Resources
- The Center for Law and Social Policy (CLASP) has created a chart,
Side-by-Side Comparison of Work Provisions in Recent TANF
Reauthorization Proposals, with an exhaustive comparison
of the provisions that relate to work requirements and that are
contained in each of the current proposals for TANF Reauthorization.
The document also summarizes eight additional bills that have
been introduced this session and that contain work provisions.
As TANF reauthorization is taken up by Congress and may be acted
on quickly, this site will be a useful place to compare the bills
and proposals, and to be updated on changes that will affect welfare
families. The chart is available at www.clasp.org.
Also available for analyses and summaries of TANF reauthorization
is the Special Series on TANF Reauthorization from the Center
on Budget Policy and Priorities, at www.cbpp.org/tanfseries/html.
- Debt to Society: The Real Price of Prisons is a project
of the Foundation for National Progress, an umbrella organization
for Mother Jones magazine. The web-based project features
articles related to the consequences of high incarceration rates
and the war on drugs. The website also has a useful and easy-to-use
“incarceration atlas”, that compares rates of incarceration,
spending on prisons, spending on higher education, proportion
of drug offenders, and disparities between white and nonwhite
incarceration rates for all 50 states. www.motherjones.com/prisons/rankings2.html
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