Policing Welfare

Punitive Adversarialism in Public Assistance

Spencer Headworth

• Publisher: University of Chicago Press
• Year: 2021
• ISBN:
  9780226779539
• Topic: Sciences sociales
• Subtopic: Sociologie

Means-tested government assistance in the United States requires recipients to meet certain criteria and continue to maintain their eligibility so that benefits are paid to the "truly needy." Welfare is regarded with such suspicion in this country that considerable resources are spent policing the boundaries of eligibility, which are delineated by an often confusing and baroque set of rules and regulations. Even minor infractions of the many rules can cause people to be dropped from these programs, and possibly face criminal prosecution. In this book, Spencer Headworth offers the first study of the structure of fraud control in the welfare system by examining the relations between different levels of governmental agencies, from federal to local, and their enforcement practices. Policing Welfare shows how the enforcement regime of welfare has been constructed to further stigmatize those already living in poverty and deepens disparities of class, race, and gender in our society.

Chapter One

The Strings Attached

How much do they get? What are they saying happened? If it’s a man in the home [case] . . . , what’s going on?1 Does it look like it really is something? Y’know, does his DMV [Department of Motor Vehicles] address match hers? Does his work address match hers? That’s the main thing. If that’s the case, “Oh look, we may have something,” then let me go investigate a little bit more.

Leslie is a welfare fraud investigator. A White woman in her late thirties, she started her career working in eligibility determination for her state’s public assistance agency. Now, after moving to its dedicated fraud control unit, she is responsible for investigating and substantiating clients’ rule violations in the Supplemental Nutrition Assistance Program (SNAP) and Temporary Assistance for Needy Families (TANF), the largest federal nutrition and “cash” assistance programs, respectively. She detailed the process of getting a referral from a local welfare office asking her to look into potential fraud: driving by the client’s home, talking to neighbors, interviewing the client, and building a case strong enough to file charges. If, after her report is compiled and reviewed, her supervisor declares, “You know what, it’s a great report, let’s go ahead and file charges,” she says, “Yesss!” and heads to the prosecutor’s office. Laughing that the prosecutors all know her by name, Leslie described this as her favorite part of her job.

Directing government assistance to needy people is fundamentally a categorization project: determining qualifying characteristics and distinguishing between the eligible and ineligible—those who merit aid and those who do not. Bureaucracies assess household composition and circumstances to determine eligibility and benefit amounts, translating families’ characteristics into the state’s administrative categories. The validation processes they use to check these categorizations’ accuracy have become integral to need-based public assistance programs. The condition of eligibility is substantially structured by delineating legitimate members: separating people with “real” disabilities from “malingerers,” people who cannot work from those who “choose idleness,” and the “deserving poor” from “scam artists.”2

Investigators like Leslie are tasked with policing these categories’ boundaries. In our conversation above, she described a paradigmatic eligibility fraud case, an “information-provision offense”3 involving failure to fulfill the duties of transparency and cooperation imposed on clients as conditions of program participation. The modal welfare fraud charge alleges a deliberate misrepresentation or omission intended to skirt eligibility rules, and investigators working in fraud units like Leslie’s are responsible for compiling evidence of clients’ alleged rule violations. These investigators’ jurisdiction and authority are program-specific, and the default punishments for these offenses are administrative: program suspensions and disqualifications, as well as restitution orders for overpayments. As Leslie suggests, however, what begin as administrative investigations can also lead to criminal charges when fraud units refer cases to prosecutors.

Policing Welfare is the first in-depth study of welfare fraud investigation in the United States. Through case studies of five diverse states’ fraud units, this book explains how the system works and why it is the way it is. Along the way, I make two central claims. First, I argue that fraud units are legal and bureaucratic responses to basic governance questions regarding the social safety net: who to help, how, and with what conditions. Second, I argue that this response has significant effects, particularly for poor people.

The statutory foundation for fraud units as responses to governance questions is in federal law requiring state-level assistance agencies to maintain these investigative entities.4 This mandate reflects the idea that eligibility for aid should not derive strictly from material need but should also require diligent rule compliance. In this sense, fraud units resemble other conditions of participation in means-tested public assistance programs, such as work requirements and drug testing. Dedicated fraud units, however, stand out as a particularly punitive response to social safety net administration questions, using investigation and penalization to perform information verification and program oversight functions. Like state-level statutes that specifically criminalize welfare fraud offenses, fraud units are legal and bureaucratic measures that fundamentally treat clients’ rule violations as a crime problem, not a public administration problem.5 This means that fraud workers are trained and socialized to think and act punitively, embracing the criminal legal system’s core principles of individual responsibility, deterrence, and just deserts.

Dedicated fraud investigation units demonstrate punitive adversarialism within the US welfare system. Punitive adversarialism refers to the institutionalization of surveillance, investigation, formal charging processes, and punishments within bureaucratic structure. The word adversarial does double duty here. First, it references the word’s jurisprudential meaning, describing a system that uses oppositional contests between parties to adjudicate disputes and assess legal liabilities.6 As Robert Kagan notes, US welfare programs “tend to rely on detailed rules and rights, enforceable in court.”7 In 1970’s Goldberg v. Kelly, the US Supreme Court formalized clients’ right to a hearing before agencies could terminate their welfare benefits due to ineligibility.8 Administrative fraud charges are adjudicated in Administrative Disqualification Hearings, and criminal charges are subject to criminal proceedings. Adversarial contests regarding welfare eligibility and rule breaking offer some rights-claiming opportunities; the reliance on rules and rights, however, also pressures officials to pursue comprehensive client oversight and enforce punctilious rule adherence. Dedicated fraud control units constitute specialized instruments for advancing these goals.

The “punitive” qualifier connotes that “adversarial” also carries its colloquial meaning in the concept of punitive adversarialism. That is, punitive adversarialism entails animosity and conflict. Beyond their designated bureaucratic function as tools for launching and substantiating formal rule violation charges, fraud units entrench an antagonistic stance toward program applicants and clients. Friction and enmity often characterize legal processes that qualify as adversarial in the jurisprudential sense;9 punitive adversarialism, though, describes structures and practices that inherently saturate the relationship between the bureaucracy and its clients with antagonism. Indeed, despite litigation aimed at protecting clients’ rights, relative to its international counterparts, the US system is “more suspicious of fraud and abuse, more demeaning and legalistic, and difficult for recipients to deal with.”10

Under punitive adversarialism, organizational structures and norms functionally treat administrative problems as crime problems and deviance within bureaucratic systems as crime or crime-adjacent. Punitive adversarialism within welfare bureaucracies tracked with the increased punitiveness of the criminal legal system in the late twentieth and early twenty-first centuries. Like changes in conventional policing, prosecution, and sentencing, legal and administrative interventions that position agencies and clients antagonistically create circumstances conducive to de jure and de facto criminalization of individuals, groups, and statuses, such as poverty.

Policing Welfare’s second claim highlights such outcomes, arguing that punitive adversarialism within public assistance carries important consequences for the poor. The suspicion, surveillance, and scrutiny associated with punitive adversarialism shape clients’ experiences in ostensibly helping-oriented agencies, producing suspensions, disqualifications, and criminal prosecutions. These measures increase pressure on clients to adopt (or at least profess) normative thinking and behavior.11 They also exacerbate stigmatization and penalization. Like other forms of law, welfare law “regulates behavior . . . expresses collective versions of the social good, of future goals, of moral values, [and] punishes and marginalizes those who deviate from social norms.”12 As specialized instruments for investigating clients and enabling their punishment, fraud units bring the characteristic principles of the criminal legal system to bear in this generally law-saturated environment.13

Thus the title of Policing Welfare has multiple meanings. Fundamentally, the title suggests the inquiry’s basic subject matter: the policing task that fraud workers fulfill through detecting, investigating, and substantiating clients’ alleged rule violations. But it also refers to the way fraud units contribute to the “policing” of welfare in a larger sense. Creating dedicated fraud units as a response to questions about how the social safety net should be administered furthers the proliferation of punitive logics, methods, and actors and generates significant legal, material, and social risks for clients. Such bureaucratic structures and procedures facilitate and further the criminalization of poverty.14 They also encourage self-policing, intensifying pressure on clients to adopt behaviors and self-presentations that evince “deserving poor” status through demonstrating compliance and personal responsibility.15

Substance and Symbolism

Substantively, fraud units provide public assistance agencies with dedicated oversight staff, helping them manage their client populations and enforce program rules. More concretely, they offer a means for denying benefits; “pre-certification” or “front-end” fraud detection efforts help agencies avoid issuing benefits to clients who are determined ineligible, and post-certification fraud charges allow clients to be temporarily suspended or permanently disqualified. Fraud units also help recoup client overpayments. And, through referring cases to prosecutors and providing supporting evidence, administrative fraud control units also create avenues to criminal charges.

From clients’ perspective, fraud units’ main substantive impact is creating exposure to that host of consequences: denial of benefits, program suspension or disqualification, restitution orders, and criminal prosecution. Like the expanded focus on low-level offenses that characterizes broken windows policing,16 welfare surveillance and fraud investigations can be described as imposing “a dense mass of petty accountability.”17 Multi-thousand-dollar overpayments sometimes arise. More commonly, the monetary stakes are low. After all, welfare benefits in the United States are relatively meager: in SNAP, where investigators spend most of their time, the average client receives about $126 in nutrition assistance per month.18 For fraud workers, each investigation is just one out of a large caseload. Individual cases’ significance may be blunted for investigators, but investigations’ substantive stakes differ depending on where one stands.19 Despite benefit amounts’ modesty, SNAP is crucial to millions of families’ subsistence in an era in which “cash” welfare has largely disappeared.20 In fiscal year 2016, over forty-four million people participated in SNAP in an average month.21 Material consequences that might seem low stakes or petty to a casual observer take on entirely different significance when understood in the context of poor families’ basic survival calculus.

Punitive adversarialism also implicates clients’ lives in other ways. Pushing programs further toward surveillance and punishment is likely to influence clients’ perceptions of the state and its agencies. Based on fraud workers’ accounts, punitive adversarialism can engender defensive and oppositional client behaviors.22 And fraud investigations’ use of snitches, neighborhood informants, and other tactics that turn clients’ relationships against them for enforcement purposes threatens to weaken trust, cohesion, and networks of social support in poor neighborhoods where social ties are crucial to survival strategies.23 Focusing enforcement efforts on such neighborhoods follows from descriptive arguments about fraud as epidemic, particularly in certain locales.

Arguments about welfare fraud’s prevalence, however, often treat anecdotes as patterns and the atypical as typical, either implicitly or explicitly.24 The US social safety net’s complex federalist patchwork hinders efforts to calculate national client fraud rates, but ...