Continuing Punishments for Drug Convictions

Criminal justice does not end at the prison gates. Individuals with past convictions for drug possession can go the rest of their lives without access to public benefits that everyone is entitled to. Civil penalties continue to harm individuals even after they have served their sentences. These discriminatory penalties have far reaching effects on individuals and on the wider society.

One such penalty is disqualification from receiving food assistance for felony drug convictions. Enacted in the 1996 federal Personal Responsibility and Work Opportunity Reconciliation Act as an attempt to get 'serious about out drug laws,' it has resulted in denial of food assistance to millions of deserving Americans. This policy is now codified in 21 USC § 862a.

In 862a, Congress established an escape hatch for states to continue to provide benefits to all residents regardless of past drug-related convictions. To do so, a state would need to affirmatively 'opt out' of the section 862a ban on food assistance for drug-related felonies. Most refused to do so. In 2005, 28 states banned all individuals with drug-related felonies from receiving food assistance. Another 21 states created 'modified' bans, forcing these individuals to pass additional obstacles before receiving food assistance.

Recently however, the tide has begun to turn. Since 2016, eight states have chosen to opt out of the ban. Already in the first half of 2019, Indiana, Mississippi, and West Virginia have chosen to ditch restrictions on food assistance for drug-related felonies. In all, 24 states and Washington D.C. entirely opt out of 862a bans. 

Currently only eight states ban individuals from ever again receiving food assistance because of past convictions for drug-related felonies. Some states do so after the first conviction, while others do so after the second or third.

19 states currently have modified bans in place. These modifications sometimes require individuals to wait several months after release from prison before becoming eligible for food assistance, pass regular drug screenings and pay for the tests themselves, or take part in drug treatment programs. Many of these states also punish those convicted of distribution more harshly, prohibiting these individuals from receiving any food assistance.

These bans have done more than create an extra, non-judicial, punishment for people who have been arrested for drug possession. Individuals who are deprived of food assistance have a much harder time making ends meet. This in turn puts them at a greater risk of medical, economic, and criminal risk.

A recent study, comparing individuals in states with drug-related felony restrictions to individuals in states without, has shown that access to public benefits for former inmates "significantly decreases recidivism for among newly released drug offenders." Unsurprisingly, the ban on food assistance has backfired, causing worse outcomes for us all.

This punishment hurts people at one of the most critical periods in their lives. A study on recently released inmates in Washington State found that individuals face a risk of death that is 3.5 times higher compared to state residents in the first 2.9 years following release. The disparity is even greater when we look at the period immediately following release: "During the first 2 weeks after release, the risk of death among former inmates was 12.7 & times that among other state residents, with a markedly elevated relative risk of death from drug overdose."

This effect is not just limited to formerly incarcerated individuals. Immediate family members suffer directly because of the bans. Because states calculate the amount of food assistance to a family based in part on the number of members of any household, a family member who is disqualified due to past drug convictions decreases the amount of food available to family members. For example, a family of four with one parent disqualified due to a past conviction for possession would receive only ¾ as much food assistance from a state compared to a family with no such convictions. Children are thus punished and harmed for their parents' prior drug convictions. The effects on immediate family members are often ignored but deserve more attention.

These bans may have severe effects on wider public health. A 2013 study from the Yale School of Medicine found that food insecurity among recently released individuals is associated with HIV risk factors, such as exchanging drugs or money for sex. Additionally, recently released individuals who went hungry were more likely to reside in a state with a full or modified ban on food assistance.

Because states are still working to define their policy towards food assistance restrictions, it is difficult to create an authoritative list of states with full, modified, or no bans. While many organizations have done great work in tracking these changes, they only provide a snapshot of the law at the time that their data was published. The following table includes references to statutes that currently define eligibility for food assistance for those with felony drug convictions. It is the author's intention in compiling this data to enable others to more easily track changes in state laws over time.

In addition to a link to the text of each state's statute, the table below shows some of the most common ways that state legislatures have modified food assistance bans to continue to punish the formerly incarcerated. Some states have created additional requirements or exemptions; due to space concerns not all can be displayed.