The Criminalization of Poverty

Abstract

The welfare system and the criminal justice system in the United States are becoming ever more tightly interwoven. Scholars, however, have not yet examined the processes involved in these developments and what these developments mean for both the welfare system and for criminal jurisprudence. Many people, including welfare recipients, treat the welfare and criminal justice systems as analytically distinct. As a practical matter, however, the systems now work in tandem.

This Article maps the criminalization of welfare. First, this Article describes the social construction of welfare fraud, tracing how "welfare queens" and welfare cheating came to be the targets of considerable governmental attention and resources. The Article then describes the various ways that criminal justice goals and strategies have become embedded in the welfare system, as well as the ways that the welfare system has become a tool of law enforcement. Next, the Article examines the treatment of welfare recipients in the courts, where the poor have been relegated to an inferior status of rights-bearing citizenship, a status on par with parolees and probationers. In the end, the Article encourages more careful policy analysis of these criminalizing practices, proposes a de-coupling of the economic security and crime control functions of the state, and offers recommendations for ensuring the constitutional rights of welfare recipients. Specifically, administrative and criminal procedures must adapt to the transformations in welfare law to ensure that welfare recipients enjoy basic constitutional protections. More research is suggested to measure the unmeasured and the externalized costs associated with the criminalization of welfare.

Keywords: criminalization, welfare, welfare fraud, Fourth Amendment, poverty, crime, public policy

JEL Classification: H1, I3, J78