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Empire Justice Center Comments on Changes to SNAP “Fleeing Felon” Rules

October 18, 2011

 

Ms. Angela Kline, Director
Program Development Division
FNS
USDA
3101 Park Center Drive
Alexandria, Virginia 22302

Re:    Proposed Regulations:  Certification of Eligibility of Fleeing Felons
         RIN 0584-AE01

Dear Ms. Kline:

We are responding to your agency’s request for public comments on USDA’s proposed regulation implementing the eligibility requirements of the fleeing felon provision in the 2008 Farm Bill.  We in New York have long awaited clarification of the fleeing felon provision initially contained in the Personal Responsibility and Work Opportunity Act of 1996 (PRWORA).

The Empire Justice Center is a statewide public interest law project that provides technical assistance and support to legal services programs and community advocacy organizations around New York State in the many areas of the law that impact low income communities.  One such area is of course federal and state benefit program administration and policies, including those governing the Supplemental Nutrition Assistance Program (SNAP).

In the early years of the last decade, it became clear to us that New York’s implementation of the “fleeing felon” disqualification provision in PRWORA was having a disastrous impact on people who had actually never fled from prosecution or confinement but who may have had at some point in the past an interaction with a law enforcement agency with the result that a felony warrant or a warrant alleging probation or parole violation showed up in the NCIC data base.  Most of the warrants that were brought to our attention were many years old. In all but one case that we encountered, no law enforcement agency had any interest in pursuing the warrant and extraditing the individual for further proceedings. 

New York had implemented the law by simply automatically disqualifying individuals from receiving SNAP benefits or cash assistance whenever a felony warrant or a warrant alleging a violation of probation or parole appeared in the NCIC database that matched the identifying information of a SNAP or welfare recipient or applicant, regardless of how old the warrant or how little interest the issuing jurisdiction may have had in pursuing the case.  The burden was then placed entirely on the shoulders of the applicant or recipient to clear up the warrant, a nearly impossible task in cases where the jurisdiction issuing the warrant was far away and legal representation to assist in the process completely unavailable.  There was no requirement under New York’s implementation of the law that there be evidence that the individual intentionally fled to avoid prosecution, conviction or confinement.
 
Against the backdrop of the Second Circuit’s 2005 decision in Fowlkes v. Adamec (432 F.3d 90) dealing with the implementation of the “fleeing felon” provision by the Social Security Administration (SSA), the Empire Justice Center and other New York advocates were finally successful in persuading New York’s Office of Temporary and Disability Assistance that, at least in the Second Circuit, the mere existence of a felony warrant in the NCIC database was insufficient to disqualify an individual from receiving benefits under the SNAP or public assistance programs.   As a result, OTDA issued a general information message to local districts directing  that the fleeing felon disqualification only applies if a court or tribunal has determined that the individual has escaped or fled in order to avoid custody or confinement for a felony or attempted felony.  (See GIS 08 TA/DC016 at www.otda.state.ny.us/main/gis/2008/08dc016Upstate.pdf.) 

In late 2009, under the Martinez v. Astrue nationwide settlement, SSA agreed to suspend or deny benefits under the fleeing felon disqualification only if a law enforcement officer presents an outstanding felony arrest warrant for any of three categories of NCIC Uniform Offense Classification Codes: Escape (4901), Flight to Avoid Prosecution or Confinement (4902) and Flight-Escape (4999).  We strongly believe that USDA can and should adopt the SSA approach to the fleeing felon disqualification provision.  We also believe that in practice, the implementation of the more administratively burdensome process proposed by FNS in this rule will result in a very similar group of individuals being disqualified because of the actively seeking requirement imposed by the USDA proposed regulation.  In both cases the individuals disqualified would be those who have committed crimes or are alleged to have committed crimes of a sufficient severity that law enforcement is in fact seeking their capture and return.  Under these circumstances it is reasonable to assume that a flight warrant would issue. 

Establishing an eligibility process for SNAP benefits different from the process developed within the context of the Martinez settlement for Social Security benefits raises some very thorny issues.  Some states, like New York, have combined application projects (CAPs) that automatically enroll SSI recipients who live alone into SNAP.  The only determination left for the state SNAP agency to make with respect to the SNAP benefit for the SSI recipient in New York’s CAP is the amount of the benefit, which will be based on the individual’s specific shelter costs.  Implementation of USDA’s proposed “fleeing felon” disqualification procedure would require the state to look behind the SSI determination of eligibility before granting benefits to elderly or disabled SSI recipients in situations where a warrant is outstanding that doesn’t fall within the specific warrants identified by the Martinez settlement.   This is not only administratively burdensome, it also raises the risk of a legally questionable result: an elderly or disabled individual found eligible for SSI would be determined ineligible for SNAP in spite of the fact that the laws governing the two federal programs contain identically worded fleeing felon disqualification provisions.

Though we urge that USDA conform its procedure in this regard to the procedure currently in use by SSA, we do commend the USDA on many aspects of the proposed regulation, particularly:

  • That the burden is appropriately placed on the agency to obtain the evidence form the law enforcement agency necessary to make the determination of “fleeing felon” status;
  • That the agency is to continue the eligibility determination process while the investigation into fleeing felon or probation violation status is underway, and
  • That a law enforcement agency must be actively seeking the individual before a disqualification can be imposed, to be confirmed by a statement from the law enforcement agency stating its intent to to enforce the warrant within a specified time frame.


With respect to probation or parole violation disqualification procedures, we applaud USDA for clarifying that the “actively seeking” requirement also applies to the probation violation provisions.  However we are concerned that there is no guidance provided to the states as to how to determine that a violation of the conditions of parole or probation occurred.  In our experience in New York, warrants for probation or parole violations are often simply issued based on allegations filed by the parole or probation officer.  The warrants are rarely supported by the determination of an impartial tribunal or agency that such a violation occurred.  An individual alleged to have violated the conditions of his or her probation or parole has a due process right to contest the charges. 

Furthermore, in our experience the alleged violation is relatively minor.  For example in one case that we handled, the warrant that had been issued by the Florida jurisdiction was based on an allegation by a probation officer that the individual had failed for several months to pay a monthly “probation fee” of $11.  A defense to nonpayment was inability to pay.  In fact the individual was destitute and had moved back to New York to be with his family.  Thus he had never been served with the warrant and had never had the opportunity to challenge the allegation that he violated the terms of his parole. 

Under New York’s policy as it existed then, the mere existence of the warrant led to the denial of SNAP benefits.  Absent our intervention, his inability to travel back to Florida to take care of the warrant would have rendered him permanently ineligible for SNAP.  This would have been not only a completely unwarranted result considering the nature of the alleged violation but also a violation of his right to due process since he had never had the opportunity to defend himself against the original allegation that he violated the conditions of his probation.

Fortunately one year ago, due in part to our advocacy but primarily to the Second Circuit’s decision  in Clark v. Astrue, New York directed the local districts to no longer deny public assistance or SNAP  benefits to an applicant or recipient based solely on the issuance of a warrant alleging a violation of the conditions of probation or parole.  (See GIS 10 TA/DC 026 at  http://www.otda.state.ny.us/policy/gis/2010/10dc026.pdf)  We had long argued for such an approach and believe it to be the only justifiable one.  It is also clear to us that the state SNAP agency has no jurisdiction to determine whether a violation of probation or parole occurred.  This determination can only be made by an independent administrative or judicial agency within the warrant issuing jurisdiction.  It stands to reason that if the issuing jurisdiction has no intention of enforcing the warrant, there can simply be no finding that there has been a violation of probation or parole. 

Prior to the revision of its policy, New York had been imposing the parole and probation violation disqualification like it had the fleeing felon provision, i.e. based only on the existence of a warrant in the NCIC database alleging such a violation.  It mattered not how old the warrant or how minor the crime (in one case that came to our attention the “crime” was a traffic violation).  New York’s position was that the warrant had to be “fixed” before benefits could be restored.  In many cases the warrants were from out of state and “fixing” the warrant required the ability to travel and money to pay fines and court costs.  For the very poor, both are obviously in short supply.  (In one particularly blatant case, a New York advocate was advised by a Florida jurisdiction that “fixing” the warrant would cost $900.)

It is imperative that mere warrants alleging violations of parole or probation not become a permanent bar to SNAP benefits.  Under New York’s public assistance policies, applicants or recipients can only be disqualified if they are current absconders from probation or parole and there is an outstanding warrant alleging the same or there is an administrative or judicial determination that such a violation occurred.   We urge USDA to consider establishing similar guidelines to assist the states in determining whether a SNAP applicant or recipient can be disqualified on the basis of having violated a condition of parole or probation.

Again, we thank you for this opportunity to submit comments on this very important regulation.

Sincerely,

Barbara Weiner
Senior Staff Attorney
Empire Justice Center

 

For more information, please contact:


Barbara Weiner


Empire Justice Center
119 Washington Avenue
Albany, NY 12210


(518) 462-6831
(518) 935-2852
bweiner@empirejustice.org