Skip to Main Content
Printer Friendly

Alleged Probation Violations Lead to Automatic Termination of Benefits

November 2, 2009

Author: Barbara Weiner

In 1996, Congress added a provision in its sweeping welfare reform legislation to prevent fleeing felons and parole violators from accessing most federally funded assistance programs.  It turns out that rather than helping to capture dangerous and violent criminals, the bar to the access of “fleeing felons” and “probation violators” to federal benefit programs enacted in the welfare reform legislation of 1996 has only served to strip some of the most vulnerable recipients of much needed help solely on the basis of old warrants that even the issuing jurisdictions don’t really care about.  With the successful litigation in the Social Security benefits arena, the problem has been more or less solved for “fleeing felons.” Under the recent nationwide class action settlement in the Martinez, et al v. Astrue case, Social Security benefits may not be terminated on “fleeing felon” grounds unless there is a felony warrant alleging escape or flight to avoid prosecution or confinement outstanding against the recipient.1

Background
Even before the 2009 Martinez settlement, New York advocates had the benefit of the earlier Second Circuit decision in Fowlkes v. Adamec, 432 F.3d 90 (2d Cir. 2005), which held that Social Security benefits could not be terminated merely on the basis of the existence of a warrant in the National Crime Information Center (NCIC) crime database alleging the commission of a felony. The Second Circuit held that there had to be evidence of flight to avoid prosecution or confinement, not just an allegation (in the form of a warrant) that a felony had been committed.

The Fowlkes decision, combined with the efforts of Empire Justice Center and other advocates, convinced OTDA to revise its rules pertaining to the disqualification of applicants and recipients of public assistance and/or food stamps on the basis that they are “fleeing felons.”  (See GIS 08 TA/DC016, dated July 22, 2008, at www.otda.state.ny.us/main/gis/2008/08dc016Upstate.pdf 2. Until that point, a data match between an individual receiving public assistance and/or food stamps and a felony warrant in the NCIC database was sufficient, without more, to deny or terminate benefits.  Under OTDA’s revised policy, the “fleeing felon” disqualification only applies if a court or tribunal has determined that the individual has escaped custody or confinement or is fleeing to avoid prosecution for a felony or attempted felony.  The local district must also have evidence that the “...individual knew his or her apprehension was sought.” Id. In anticipation of forthcoming federal regulations, OTDA advised the local districts to also confirm that the warrant issuing jurisdiction is seeking the individual’s return to face prosecution.3

New York’s Current Practice with Probation/Parole Violation Disqualifications
Unfortunately, as recent fair hearing decisions make clear, OTDA has not adopted this more enlightened view in the case of benefit terminations on the ground that a recipient of public assistance or food stamps is “in violation of probation or parole.”  In the past two months, OTDA has affirmed the termination of benefits by local social services districts based solely on the existence of a warrant in the NCIC database that alleged the individual had violated the conditions of his or her probation or parole.  In these cases it mattered not how old the warrant was or how minor the crime for which the individual had been on probation (in one case it was a traffic violation). Nor was evidence that the law enforcement agency had no interest in pursuing the individual considered relevant. Under OTDA’s current policy it is clear that, unless a person against whom there exists a warrant alleging violation of probation or parole is somehow successful in getting the warrant vacated, the benefit disqualification will become a permanent bar.

In the overwhelming majority of these cases, the warrants are old and from other states.  “Fixing” the warrant requires the ability to travel and, in most cases, money to pay fines and court costs.  For the very poor, both are obviously in short supply. That it is money that the states placing these old warrants on the NCIC data base really want was made clear in one particularly brazen response to an advocate’s plea to dismiss or vacate the warrant threatening to terminate her disabled client’s food stamp benefits.  The Florida law enforcement agency told the advocate that “$900 will fix the problem.”  In effect, by terminating benefits of recipients in these types of cases, New York has become a debt collecting agency for these states.

Federal Food Stamp and State Public Assistance Law
Federal law prohibits an individual from receiving food stamp benefits if he or she is “...violating a condition of probation or parole imposed under Federal or State law.”  7 USC § 2015(k)(1).  In identical language, Social Services Law § 131.14(a) disqualifies a person from receiving public assistance if he or she “...is violating a condition of probation or parole imposed under federal or state law.”  However, New York adds that, with respect to the termination of public assistance benefits, a person shall be considered to be violating probation or parole under two circumstances: (a) if he or she is currently an absconder from probation or parole and there is an outstanding warrant alleging such a violation or (b) if there has been an administrative or judicial determination that such a violation has occurred.  Social Services Law § 131.14(b), emphasis added.  In either case, a person is to be considered violating a condition of parole or probation only until he or she is restored to probation or parole or released from custody or until expiration of the person’s maximum period of imprisonment or supervision, whichever occurs first. Id.

Since there is no reference at all in federal food stamp law disqualifying an individual from receiving food stamp benefits based solely on an outstanding warrant alleging that the person has violated the conditions of his or her probation or parole, OTDA,4 in affirming food stamp disqualifications on this basis, is acting contrary to federal law.  Furthermore, such a policy violates due process. A warrant embodies no more than an allegation; it is not a determination by an appropriate administrative or judicial body that a person is actually violating the conditions of his or her probation or parole. Such a determination can be made only after the issuance of the warrant and with appropriate due process protections.  See Gagnon v. Scarpelli, 411 U.S. 778 (1973).  Clearly, neither OTDA nor the local social services district has the jurisdiction to make a determination on its own that an individual is in violation of probation or parole under, in most of these cases, the laws of another state.

In the public assistance context, state law does provide for disqualification if the person is currently an absconder from probation or parole and there is an outstanding warrant alleging such a violation.  However, to insure that this provision not become a permanent bar to benefits, the Legislature has provided that the disqualification lasts only “...until the expiration of the person’s maximum period of imprisonment or supervision, whichever comes first.”  SSL § 131.14(b)(i).  Furthermore, the warrant must allege the individual is an absconder.  By affirming local district disqualifications of recipients long after their period of probation has expired and in the absence of any allegation that the person fled or absconded from probation or parole, OTDA completely ignores this limitation.

OTDA’s (Mis)use of the NCIC Database
OTDA’s policy and practice is that the food stamp and temporary assistance benefits of a recipient may be terminated by a local social services district based solely upon a data match with the NCIC that indicates a warrant is outstanding.  In fact, it is OTDA who sends these data matches to the local districts and advises them that the matches are to be considered “verified upon receipt” and require no additional evidence or review before an adverse action may be taken.  (See OTDA Informational Letter 06 INF-10 “Computer Matching Clarification for Food Stamps.”) Nevertheless, in this same INF, OTDA acknowledges that to be considered “verified upon receipt” the information contained in the record cannot be questionable, must be timely and the provider of the information must be the primary source.  (06 INF-10, page 2.)5  However, the agency ignores the fact that the NCIC database meets none of these conditions.  It is a database maintained by the FBI but the information contained in it comes from a great variety of sources.  Consequently, the FBI cannot, and in fact does not, guarantee its accuracy.

This is why the NCIC data base is expressly exempted from the provision of the Privacy Act, which otherwise requires that records about individuals kept by an agency and used for making determinations be maintained “...with such accuracy, relevance, timeliness and completeness as is reasonably necessary to assure fairness to the individual in making the determination.” See 5 U.S.C. § 552a(e)(5).  Explaining the exemption of crime history databases, the Department of Justice explains in its March 2003 amendment to the regulations that “...in collection of information for law enforcement purposes it is impossible to determine in advance what information is accurate, relevant, timely and complete....In addition, because many of these records come from other federal, state, local, joint, foreign, tribal and international agencies, it is administratively impossible to ensure compliance with this provision.”  See 28 C.F.R. § 16.96(b)(6). In fact, of the few “in depth audits or reviews” of the state and federal criminal history record repositories, most have been found to have “unacceptable levels of inaccuracies.”6

It is on this shaky foundation that OTDA built its “fleeing felon” and “probation/parole” disqualification policy and procedure.  The problem with the “fleeing felon” disqualification has largely been solved by requiring that the warrant allege flight or escape, not just the commission of a felony.  This has greatly reduced the numbers of individuals disqualified from receiving benefits on this ground.  However, in spite of the state law language specifying that it is only absconders from probation or parole who are disqualified, as is evident from its recent fair hearing decisions, OTDA has refused to apply a similar approach to the “violation of probation or parole” ground of disqualification.

If you have clients who have been or are being impacted by OTDA’s policy, please contact the author, Barbara Weiner, Senior Staff Attorney, at (518) 462-6831, ex. 104.

Footnotes

1  Empire Justice Center’s Disability Law News issue of May 2009 contains a detailed article about the settlement and the NCIC warrant codes that would support the termination of benefits. See www.empirejustice.org/issue-areas/disability-benefits/ssi-ssd/fleeing-felons/settlement-reached-in-fleeing.html.

2  For additional information about OTDA’s revised “fleeing felon” policy, see the LSJ article at http://www.empirejustice.org/issue-areas/public-benefits/food-stamps/food-stamps-news-brief.html.

3  The Secretary of USDA was directed by the 2008 food stamp reauthorization act to define the terms “fleeing” and “actively seeking” to avoid disqualifying food stamp recipients whose return to face prosecution was not being actively sought by law enforcement authorities. See 7 USC § 2015(k)(2).

4  OTDA has relied in part in its refusal to modify their policy in these cases on the basis of a district court   decision made in a class action case challenging the termination of Social Security benefits on the basis of a warrant alleging probation or parole violations.  In Clark v. Astrue, 2007 WL 737489 (S.D.N.Y.), the Southern District held that SSA could rely on the existence of a warrant to suspend benefits because a statutory provision in the Social Security Act referred to the reinstatement of benefits upon, inter alia, the vacatur of a      warrant. The Court reasoned that therefore Congress must have meant that the existence of a warrant is sufficient to terminate benefits. That case is now on appeal to the Second Circuit.  However, there is no similar language referring to the vacatur of a warrant in the food stamp law.

5  In another context, FNS has provided examples of what is considered information from a primary source: BENDEX and SDX from the Social Security Administration, SAVE from USCIS and unemployment compensation from the State’s UC agency.  See Questions and Answers on the Noncitizen Eligibility and Certification Provisions Final Rule (11/21/2000), question D-1.

6  The reliability of these databases has been called into serious question.  See, e.g., Use and Management of Criminal History Record Information: A Comprehensive Report, 2001 Update, page 43. A link to the report is available at www.ojp.usdoj.gov/bjs/pubalp2.htm#umchri01.htm.
 

 





Copyright © Empire Justice Center. All rights reserved. Articles may be reprinted only with permission of the authors.