Food for Thought: Examining the Irony of Welfare Exclusion for Drug Felons

Part I. Introduction

We live in a society that permits a felony drug offender to run for President of the United States while simulatenously denying that same felony drug offender the ability to feed her children due to her conviction. This law targets those who have completed their sentences and institutes a permanent punishment for rehabilitated individuals trying to provide for themselves and their families. Twenty-five years ago, the statute, 21 U.S.C. § 862a, was upheld in Turner v. Glickman under rational basis review. While the law’s cruel implication of leaving a vulnerable group without food far outweighs Congress’s goals of using the law to deter drug use, reduce fraud in the welfare program, and decrease welfare spending, it can no longer be challenged as unconstitutional on the grounds of violating equal protection and due process rights.

This Note argues that § 862a should not have been reviewed under the rational basis test, but rather, under a heightened scrutiny level because of its discriminatory impact and discriminatory purpose. Moreover, this Note criticizes the arguments made by the court in Turner which helped continue the administration of this law. A critical examination of the analysis in Turner twenty-five years later identifies the inconsistencies of this law and draws attention to how its purpose conflicts with the claimed objective of rehabilitation in the United States. Turner contains significant weaknesses that have contributed to the unjust deprivation of rights for previously incarcerated individuals and their families by exlcuding them from a program intended to support those in need; this decision ultimately created a system favoring only those deemed the “deserving needy.”

Part I of this Note calls for a reevaluation of the welfare ban to better support the reintegration of people with criminal records into society by critiquing the reasoning behind its ratification and reaffirmation. Part II briefly explores the enactment of § 862a through the War on Drugs, states’ varied implementations of the ban, and the immediate and long-term effects of the welfare ban on individuals with felony drug convictions. Part III provides an in-depth analysis of Turner, which upheld the welfare ban, focusing on the inconsistencies of Congress’s justifications behind the law, arguing that it lacks empirical support. Part IV critiques the current framework established by Turner and suggests a heightened standard of scrutiny for § 862a by identifying successful challenges to the ban by demonstrating the law’s discriminatory impact, discriminatory purpose, and irrationality. Finally, Part V highlights the need for federal repeal of the welfare ban by advocating for a uniform approach aimed at abolishing the ban altogether through emphasizing the harm of state modifications.

Part II. Background—The Welfare Reform Act

Aubrie Butler, a mother of two in South Carolina, faces a bill of nearly $10,000 from the state of South Carolina after being told she mistakenly received food stamps for two years.^[1] Aubrie’s Supplemental Nutrition Assistance Program (“SNAP”) application disclosed her husband’s 2006 felony drug conviction.^[2] Although Aubrie had no such convictions herself, the South Carolina Department of Social Services subsequently denied her family SNAP benefits based on her husband’s nineteen-year-old record.^[3] At sixteen dollars an hour, Aubrie’s earnings to support her family of four would usually make her eligible for the program’s assistance, categorizing her as needy.^[4] However, upon having learned of her husband’s past criminal history, the government denied her further assistance, deeming his previous transgression to outweigh the family’s need for food assistance.^[5] Given that she was previously struggling to afford basic necessities like groceries before mistakenly receiving the SNAP benefits, and that her husband faces barriers due to his prior drug record, it is unrealistic to expect Aubrie to be financially stable enough to feed her family, much less cover the mistakenly disbursed funds from the state.^[6]

A. The Unequal Landscape of Welfare Access

Aubrie is just one of thousands of people displaced by § 115 of the Personal Responsibility and Work Opportunity Reconciliation Act (“PRWORA”), also known as the “Welfare Reform Act.”^[7] This Act is codified as 21 U.S.C. § 862a.^[8] The Act mandates that anyone convicted of a drug felony is ineligible for any state assistance, including programs like SNAP and Temporary Assistance for Needy Families (“TANF”).^[9] Under subsection (d)(1), states have the discretion to either fully opt out of enforcing this law or adopt it only in part.^[10] Currently, nearly half of U.S. states still prohibit individuals with prior drug felony convictions from receiving these benefits.^[11] Twenty-five states and the District of Columbia have fully opted out of the SNAP ban.^[12] The remaining states still enforce the SNAP ban, albeit with modifications. South Carolina, however, has fully opted into the lifetime ban.^[13]

A modification to the federal ban, also known as a partial ban, allows individuals with felony drug records to receive federal assistance in a given state, but only under specific conditions.^[14] These conditions are court-mandated and may include drug testing, participation in drug treatment programs, and completion of probation or parole, either uniformly or on a case-by-case basis, and may be applied regardless of whether a substance-use issue exists.^[15] Although this practice allows individuals with felony drug convictions to potentially access federal benefits, it does so at the cost of eroding their privacy, as those who have already completed their sentences continue to face surveillance and scrutiny that extends beyond their originally imposed penalties.^[16] The intrusive regulations and procedures associated with a partial ban create significant barriers to societal reintegration, doing more harm than good and potentially leading to re-offending.^[17]

Having a criminal record often serves as a barrier to employment, making it more challenging for individuals to secure stable jobs and support themselves financially.^[18] Those who do manage to find work often still struggle to make ends meet, earning income that is insufficient to cover essential expenses like rent, groceries, and other bills.^[19] Given that many people cannot afford to relocate to states without the welfare ban and may not have transportation or support to meet these conditions, living in a state with a partial ban can be incredibly harmful.^[20] Varied state reforms cannot mask the larger issue: society has, for too long, accepted the denial of food—a basic necessity—to people with previous drug offenses.^[21] In contrast, allowing these individuals access to the SNAP program could have significant benefits, such as creating career opportunities for people, providing special assistance for women, infants, and children, allowing earned income to be spent on non-food necessities, and offering an overall better chance at reintegration into society.^[22]

B. The Roots of the Welfare Ban

In 1996, Congress passed the “Welfare Reform Act” to address the Nation’s failed welfare system.^[23] According to the Act, fraud in the Food Stamp Program stemmed primarily from the street trafficking in food stamp coupons.^[24] The House Budget Committee reported instances of food stamps being exchanged for cash, drugs, and firearms, citing undercover video footage and related reports as evidence.^[25] The Act described food stamps as functioning like a “second currency” within many communities.^[26] Thus, to address government concerns about fraud, § 115 of the PRWORA, codified as 21 U.S.C. § 862a and titled “Denial of Assistance and Benefits for Certain Drug-Related Convictions,” was enacted, making individuals convicted of state or federal felony drug offenses ineligible for TANF cash assistance and SNAP food assistance.^[27] When § 115 passed, policymakers generally believed that strict enforcement of drug-related policies was essential to eliminate illegal drug trafficking and use.^[28] Inevitably, the passage of this law coincided with a surge in drug-related convictions resulting from President Ronald Reagan’s Administration’s “War on Drugs.”^[29]

The “War on Drugs” initiative to combat drugs started in the 1970s, when President Richard Nixon designated drug abuse as the Nation’s “Public Enemy Number One.”^[30] Nixon’s Administration increased federal funding for drug-control agencies and drug treatment efforts.^[31] While Nixon increased funding for drug control, a significant escalation of drug enforcement did not occur until the Reagan presidency.^[32] In 1986, the Anti-Drug Abuse Act was enacted, allocating $1.7 billion to the “War on Drugs” and establishing harsh “mandatory minimum” prison sentences for drug offenses.^[33] This aggressive approach led to a significant rise in mass incarceration for non-violent drug offenses, increasing from approximately 50,000 in 1980 to 400,000 by 1997.^[34] While Reagan’s anti-drug initiatives aimed to decrease drug-related crime, federal spending focused on punishment failed to address the root causes of drug addiction and instead exacerbated existing drug problems.^[35] In 2025, the United States leads the world in instances of drug abuse, with nearly forty-four percent of individuals in prison having been convicted of drug-related offenses.^[36] Upon release, a significant portion of these individuals, approximately 43.9 percent, will face an uphill battle, confronting poverty and hunger with little to no financial assistance and perhaps only a scant dollar to their name due to laws like the welfare ban, making their reintegration into society nearly impossible.^[37]

Part III. Analysis of Problem—Turner v. Glickman

After the enactment of § 862a, this welfare ban was subsequently upheld after being challenged in Turner v. Glickman, making it difficult to bring any future challenges to its constitutionality and reinforcing its harmful implications.^[38] In 2000, the United States Court of Appeals for the Seventh Circuit heard a class action claim brought by a former food stamp recipient, Henry Turner, who challenged the constitutionality of § 862a on grounds that it violated equal protection and substantive due process.^[39] The facts laid out that Turner’s reapplication for food stamps was denied under § 862a because he was convicted of felony possession of heroin and cocaine three years prior.^[40] Under rational basis review, both the district and appellate courts determined that the statute did not infringe upon an individual’s rights under the Equal Protection and Due Process Clauses of the Fifth and Fourteenth Amendments because the law only needed to be justified by the government’s rational justifications for its implementation.^[41]

A. “Turner” Rationale

The statute says that individuals convicted of certain drug-related felonies are permanently ineligible for benefits under the federal SNAP and TANF programs.^[42] The Seventh Circuit found three legitimate government interests in creating the statute: (1) deterring drug use, (2) reducing fraud in the food stamp program, and (3) curbing welfare spending.^[43] The court held that Turner did not meet the burden of proof necessary to render the statute unconstitutional since evidence could establish a rational connection to Congress’s concern about drug use and fraud, which is a low constitutional bar that Congress had to meet.^[44] This case, however, was argued only three years after the implementation of the statute.^[45] Thus, it was harder at that time to prove that the statute did not address the three objectives Congress intended to confront when the statute was enacted.^[46] Section 862a was debated on the Senate floor for a short two minutes, and in those couple of minutes, Congress did not discuss how the statute would further the objectives of welfare reform.^[47] Now, twenty-nine years after the statute was established, long-standing data should make it easier to demonstrate that the court’s conclusion, that denying food stamps was rationally related to eliminating drug use, fraud, and increased spending on the welfare program, is incorrect.

B. Deterrence of Drug Use & Recidivism

In Turner, the court found that Congress believed rendering those with drug-related felonies ineligible to receive SNAP or TANF assistance would “undoubtedly” alert individuals who are currently eligible for these benefits to consider this serious sanction before engaging in drug-related crimes.^[48] This possibility, they believed, would result in deterring drug use among the population.^[49] While Congress focused on punishment for past drug involvement, it overlooked the fact that individuals released after serving time need access to basic necessities like food and shelter to successfully reenter society and survive without drugs.^[50]

It is common for recently released individuals to encounter numerous challenges, such as food insecurity, regaining the trust of loved ones and society, dealing with the stigma of being an ex-convict, and facing poor employment prospects.^[51] These difficulties can push them back into a life of crime and poverty, particularly since many incarcerated individuals struggle with mental illness, substance abuse, homelessness, or a history of physical abuse.^[52] In fact, formerly incarcerated individuals are ten times more likely to be homeless than the general population.^[53] The lack of resources available to formerly incarcerated people has contributed to the United States having the highest recidivism rate in the world.^[54] For example, in 2022, Idaho, which has a partial welfare ban requiring additional conditions to be met before qualifying for the SNAP program, ranked fifth in the nation for number of individuals incarcerated, with 460 out of every 100,000 people being incarcerated.^[55] Additionally, thirty-six percent of individuals released in Idaho are reincarcerated within three years.^[56] This is part of a broader national trend, where sixty-eight percent of all inmates are reincarcerated within three years of their release.^[57] Since the welfare ban was first implemented in 1996, the recidivism rate has dramatically increased, where it used to be around only forty percent for individuals three years post-release.^[58]

Additionally, there is minimal evidence to support the notion that general deterrence is effective as a theory of punishment,^[59] especially concerning marijuana.^[60] This is particularly relevant in the case of the welfare ban, where a study showed that 100% of participants were unaware of the ban prior to their conviction for drug-related felonies.^[61] Consequently, the law does not effectively serve as a deterrent, since many people are not informed about its consequences in advance and drug use is not decreased as a result of the law.^[62] For instance, one study found that not a single one of the twenty-six women interviewed with felony drug charges was aware prior to her involvement with the criminal justice system that a felony drug conviction could lead to a loss of SNAP benefits.^[63] Additionally, ninety-two percent of the women stated that even if they had been aware of the ban, it would not have prevented them from using drugs during active addiction.^[64] Moreover, considering the severe consequences that drug offenders are already aware they might encounter if apprehended for drug possession or sale, such as long prison sentences, the potential loss of SNAP benefits is unlikely to be regarded as a significant deterrent, especially since the already-existing harsh penalties have failed to achieve the same result.^[65]

Current statistics contradict the notion that this statute would effectively deter drug use, as the most recent data demonstrates a steady increase in drug use, failing to support the claim that the statute would decrease it.^[66] In 2023, it was reported that around forty-eight million people over the age of twelve used drugs, which was around a ninety-four percent increase from 2013.^[67] Additionally, applying this statute to deter drug use assumes that individuals incarcerated for drug-related crimes were users and will stop using them; however, statistics from 2006 indicate that fifty-six percent of drug convictions were for selling drugs, not using them.^[68] Thus, Congress was misinformed about deterring drug use since many people who have drug offenses do not actually use drugs themselves.^[69] As such, research shows that denying food assistance to individuals with felony drug convictions through programs like SNAP had the opposite effect of what was intended, as studies found that removal of benefits actually leads to a higher rate of recidivism among this population.^[70]

Accordingly, strong evidence suggests that providing food assistance to individuals with felony drug convictions reduces the likelihood of re-offending, underscoring the importance of access to basic necessities like food in supporting rehabilitation and reintegration.^[71] A study on the SNAP ban in Florida concluded that prior drug offenders denied benefits were 9.5% more likely to commit a subsequent offense.^[72] Further, according to a 2017 Harvard Law School study, access to SNAP benefits reduced the risk of prior drug offenders re-offending by ten percent within one year.^[73] In essence, while Congress only needed to present a legitimate interest as justification for the welfare ban, evidence shows that Congress’s interest in deterring drug use is not legitimate.

C. Reduction of Fraud & Curbing Welfare Spending

In Turner, the plaintiffs argued that because the sole motive behind efforts to deter drug use is punishment, Congress must have acted out of hostility toward individuals with drug-related felonies.^[74] Nevertheless, the court responded that Congress actually enacted the statute due to growing concerns over rising welfare costs and widespread fraud within the welfare program.^[75] Specifically, testimony in the record highlighted cases of food stamp recipients trading their benefits for illicit drugs, leading the court to conclude that it was not unreasonable for Congress to infer that denying welfare benefits to individuals with drug-related felony convictions would help reduce program-wide fraud.^[76] However, Congress’s conclusion that individuals with drug-related felonies are likely to misuse the system by selling their food stamps for drugs or cash to buy drugs is an unfounded assumption that the court improperly relied upon.^[77] In reality, most individuals convicted of drug felonies were not users seeking to buy drugs.^[78]

This presumption of fraud was made in 1996, when the Welfare Reform Act was passed, but today, SNAP benefits are distributed electronically using a system similar to credit cards.^[79] Thus, the number of food stamps that are trafficked for drugs is significantly low because it is more difficult to misuse benefits and cheat the system. Unlike the current electronically transferred benefits, paper coupons were easier to transmit to recipients in the program for potential exchange.^[80] This electronic system makes it easier for the government to identify and track suspicious food stamp activity.^[81] In fact, the food stamps trafficking rate from 2006-2008 was approximately only one cent per every dollar.^[82] Moreover, it is insufficient to argue that welfare fraud is reduced by prohibiting individuals with previous drug-related felonies from accessing welfare,^[83] particularly where there are no reports of specific drug-related program fraud from states that have opted out of the welfare ban and allow previous drug offenders access to SNAP.

Although Congress is not obligated to narrowly tailor its purpose for the law under rational basis review, there is already a comprehensive system in place to prevent SNAP fraud, which includes significant penalties for offenders.^[84] Additionally, the United States Code expressly prohibits the exchange of controlled substances for SNAP benefits.^[85] Therefore, it is likely that these existing systems are a more effective and narrowly tailored way to reduce fraud than denying welfare benefits to individuals with prior drug-related felonies. This law is predicated on an unfounded assumption that drug-related offenses and fraudulent welfare activity are connected, even though welfare fraud is more commonly caused by other factors that are completely unrelated to drugs, such as misrepresenting income.^[86] While food stamp trafficking does occur, the amount of this fraud is low.^[87] Congress must also recognize that denying previous drug offenders access to SNAP may inadvertently push them towards food stamp trafficking as a way to obtain food stamps, ultimately undermining the very goal of reducing trafficking.

Without conclusive evidence that § 862a effectively reduces welfare program abuse and discourages drug use, data shows that the Turner court accepted weak and unconvincing justifications. This is especially true for the third justification, curbing welfare spending, since the ban may ultimately result in higher long-term costs for states due to increased drug abuse, criminal prosecutions, and incarceration, which are more expensive than just giving access to food assistance.^[88] However, the welfare spending element is difficult to quantify due to factors such as changes in the law and inflation. Thus, this Note only analyzes the missteps of the first two justifications by the Turner court.

D. Other Inconsistencies: Under-Inclusive & Over-Inclusive

The ban is both under-inclusive and over-inclusive, reinforcing the argument for its examination under heightened scrutiny in Part IV. 7 U.S.C. § 2015(b)(1) is a provision of the United States Code that limits SNAP eligibility for varying durations based on intentionally misusing benefits, which is more effectively focused on preventing food stamp fraud, as it addresses specific cases of fraud itself.^[89] In contrast, the welfare ban is over-inclusive, as it denies benefits to individuals who have never engaged in and will never engage in fraudulent use of those benefits just because of their unrelated drug history.^[90] The individuals denied food assistance should not be those with drug-related convictions, but rather those who have been found guilty of fraud-related crimes.^[91] If another primary aim of the ban was to discourage drug use, more specific approaches could be implemented, such as ineligibility periods for the program connected to drug use or allowing exceptions for demonstrated rehabilitation.^[92]

A further problem is that § 862a only punishes drug offenders.^[93] Consequently, individuals convicted of other criminal offenses, such as theft, assault, domestic abuse, kidnapping, arson, and child abuse, remain eligible to receive welfare benefits.^[94] Congress should also be concerned about deterring behaviors that lead to these more violent crimes, instead of merely focusing on non-violent drug use. It is likely that individuals who commit these other offenses may also exploit the welfare system for personal gain, not only the drug offender demographic.^[95]

Additionally, this law directly undermines the purpose of public assistance programs, particularly SNAP.^[96] The program was launched in 1964 to offer nutritional support to the most vulnerable members of our society.^[97] It was originally created to fight poverty and reduce food insecurity, requiring only that individuals demonstrate difficulty affording groceries to qualify for assistance.^[98] Now, a person could be “needy” and still ineligible for a program that is specifically intended to help those in need.^[99]

Under § 862a, individuals who struggle with low income and food insecurity are considered “needy” and eligible to receive benefits.^[100] But the moment a person commits a drug-related felony, they are suddenly reclassified as undeserving of assistance, leaving them vulnerable to the devastating consequences of hunger and malnutrition.^[101] The SNAP program, designed to “serve the needy,” was never intended to limit assistance based on an individual’s drug use or any other personal judgments about their circumstances.^[102] The SNAP legislative history would have been more explicit to indicate that “in need” refers only to individuals without drug records if that was the intended meaning.^[103] The absence of this clarification shows that the statute, originally designed to assist those in need, has been misused and is now punishing people who are also in need.^[104] Welfare benefits were intended to provide a safety net and support individuals in overcoming financial hardship, but denying these benefits to people with drug-related offenses disproportionately affects those who already face significant additional challenges upon release.^[105]

Further, the objectives of the Welfare Reform Act, which were to end dependence on public assistance programs and encourage employment, run contrary to § 862a.^[106] This welfare ban denies many recently released individuals with drug-related felonies the opportunity to adequately find employment to begin with.^[107] Not having access to basic necessities like food may discourage individuals from moving forward with reintegrating into society and finding a job.^[108] The welfare ban does not specifically target individuals who are likely to “abuse the program.”^[109] Instead, the ban unfairly discriminates against people who are among the most financially disadvantaged.^[110] Today, the law could not withstand rational basis review due to existing data demonstrating that restricting access to food benefits adversely affects individuals with felony drug convictions and does not advance the legislature’s objectives in enacting the ban.

Part IV. Solution—Facially Neutral Test & Irrationality Challenge

Since Turner rejected the argument that The Welfare Ban violates equal protection and due process, no strategic impact litigation has been brought to directly challenge the ban. However, dismantling this decision requires a comprehensive litigation approach to address the ban as a whole rather than solely relying on case-by-case efforts to support ex-drug offenders.^[111] The court in Turner applied the deferential “rational basis” standard because, while the ban is inherently discriminatory against ex-drug offenders, this group is classified as a non-suspect class that does not warrant heightened scrutiny.^[112] The challenge with rational basis review lies in the fact that a law often withstands an equal protection challenge as long as Congress identifies a “legitimate goal.”^[113] This holds true even if this stated goal is not the law’s true intent; courts are often willing to accept hypothetical justifications for it.^[114]

A. Facially Neutral Test

Nonetheless, a compelling argument exists that the federal welfare ban should be held to a more rigorous standard of review since it is a facially neutral law with significant implications for the Black community.^[115] Now, twenty-five years after the enactment of the ban, the connection between its foreseeable discriminatory effects and its intended purpose is sufficiently apparent to establish the “discriminatory purpose” needed to meet a heightened standard of review, moving beyond the previously applicable rational basis.^[116]

Although the language of the welfare ban does not overtly target minorities, the uneven racial consequences of criminal justice practices, coupled with the complexities of social hierarchies, result in a discriminatory impact that disproportionately affects women, children, and marginalized communities.^[117] When arguing that a facially neutral law should be reviewed under a higher standard of review, Washington v. Davis held that it is insufficient to merely show a disproportionate impact—the challenger must also demonstrate that the law was a product of Congress’s discriminatory purpose.^[118]

1. Discriminatory Impact

a. Women, Children, and Families

First, the welfare ban has a disparate impact on women and their families.^[119] In 2022, women made up fifty-five percent of non-elderly adult SNAP recipients.^[120] Notably, women of color accounted for approximately one in three of these SNAP recipients.^[121] Moreover, women are twice as likely as men to receive SNAP benefits.^[122] Thus, this demonstrates how critical this program is for women, especially those from minority communities who are disproportionately affected by economic insecurity, as it enables them to support their families and enhance their overall well-being.^[123] However, the welfare ban serves as a formidable obstacle, disproportionately preventing women already grappling with issues such as overrepresentation in low-wage jobs, persistent wage gaps, and unpaid family caregiving from being able to put food on the table.^[124] SNAP recognizes the challenges of supporting a family with a low-income job, which is often the only job option available for individuals with a drug record. That was the ultimate goal of the program, and without these essential food benefits, a parent risks falling into poverty while striving to provide for their loved ones.^[125] Even if a woman with prior drug offenses was successful in obtaining a low-paying job that would normally qualify a person to receive food stamps to support their families, this ban serves as a form of double jeopardy since she still cannot access food assistance even with the job. This ban is essentially a lifelong sentence that punishes her forever, despite having served her time and diligently attempting to reintegrate into society.^[126]

Additionally, women are more likely to be convicted of drug crimes than men at both the state and federal levels.^[127] The rapid escalation of drug law enforcement has significantly increased the likelihood that a woman could be convicted of drug-related felonies.^[128] Consequently, given the significant representation of women among SNAP recipients and the disproportionate impact on women as a result of the “War on Drugs,” this ban noticeably discriminates against them.^[129]

Moreover, this welfare ban significantly affects children of low-income families with parents convicted of drug felonies.^[130] Since a striking seventy-one percent of single mothers rely on SNAP benefits to support their families,^[131] this ban is particularly harmful for children of single mothers with prior drug felonies, as women often lack the financial resources needed to adequately transition them back into society.^[132] To highlight the racially discriminatory implications, it is important to note that nearly half of Black mothers are single mothers.^[133] Among both state and federal prisoners with minor children, African Americans composed the largest racial group, with nearly sixty percent of incarcerated Black women being mothers to minor children.^[134] Considering the sole custodial parent is often a woman, rendering her ineligible for food stamps can lead to dire consequences.^[135] One potential consequence could be that the state may intervene and potentially separate the family if the mother cannot afford to take care of her children due to economic constraints. In this instance, not only is the mother’s financial stability threatened by her prior drug felony, but her custodial rights may also be at risk.^[136] In turn, this result could have a broader implication since it may cause a mother to make decisions driven by necessity, such as stealing food or selling drugs to feed her children.^[137] A mother determined to ensure her children’s well-being might resort to illegal actions as a practical means of providing for her family, ultimately leading to the increase in recidivism.^[138]

Recently, the Vice President of the United States has championed policies that incentivize families to have children while imposing penalties on those who choose not to.^[139] Vice President JD Vance has referred to the decline in birth rates in America as a “civilizational crisis.”^[140] While it is undeniable that our society depends on families to engage in vital functions like childrearing, caregiving, and family formation, the welfare ban can hinder their ability to fulfill these essential responsibilities.^[141] This welfare ban runs directly against the Vice President’s vision of a thriving American family.^[142] The ban undermines the notion of fostering family growth when parents with drug convictions face lifetime repercussions and are left with limited opportunities to reintegrate into society and earn a stable income or receive assistance to provide for their children.^[143] It is virtually impossible for those affected by the ban to create a suitable living environment for their household. All of this can lead to unnecessary suffering and hunger for their children through no fault of their own and further exacerbate the mental and emotional strain on the parents, as they are unable to fulfill their fundamental responsibilities of providing for their loved ones.^[144]

b. The Black Community

Furthermore, although the welfare ban affects all Americans, its consequences are felt most by the Black community and other minority groups.^[145] Notably, Black people are twice as likely to qualify for SNAP benefits compared to their counterparts.^[146] While the national average for household food insecurity stands at approximately eleven percent, a remarkable twenty-seven percent of Black children faced food insecurity in 2023.^[147] This translates to one in every four Black children lacking reliable access to food, in stark contrast to the roughly eight percent rate observed in white households.^[148] While Black people represent just thirteen percent of the U.S. population, they account for thirty percent of those arrested for drug law violations and nearly forty percent of individuals incarcerated for drug offenses.^[149] In South Carolina, which continues to enforce the full welfare ban, Black people constitute an astonishing seventy-eight percent of those released from drug felony convictions, despite making up only twenty-six percent of the state’s overall population.^[150] In contrast, white people represent sixty-six percent of South Carolina’s population but only twenty percent of felony drug convictions.^[151] This disparity is significant given that Black people are consistently reported by the U.S. government to use drugs at rates comparable to or less than those of other racial groups.^[152]

Additionally, Black people are disproportionately impacted by this ban, as they face greater hurdles in securing employment upon release, making SNAP potentially their sole financial lifeline for food.^[153] In fact, sixty-seven percent of previously incarcerated individuals found themselves either unemployed or underemployed five years post-release.^[154] Within this group, the disparity is particularly pronounced: Black women experience an alarming unemployment rate of approximately forty-four percent, while Black men face a rate of around thirty-five percent.^[155] In contrast, white women have an unemployment rate of about twenty-two percent, and white men have an even lower rate of approximately eighteen percent.^[156] Consequently, quantitative evidence demonstrates that the welfare ban disproportionately harms minority communities, particularly impacting Black women and Black families in a discriminatory manner, where they are more likely to be convicted of drug-related crimes and less likely to be financially stable upon release without assistance such as SNAP.

2. Discriminatory Purpose

The next step in arguing for a heightened standard of review for the welfare ban involves demonstrating the presence of discriminatory purpose underlying the law.^[157] Despite the substantial racial disparities resulting from the welfare ban, demonstrating a racially discriminatory purpose behind the legislation proves challenging. This is largely due to the lack of explicit evidence indicating that the ban was enacted “because of” its harmful effects on certain racial groups rather than merely “in spite of” them.^[158] Thus, the Davis Court made it clear that a discriminatory purpose can be inferred by the totality of the facts, such as the law bearing more heavily on one race than another.^[159] However, statistical evidence significantly demonstrating that the ban adversely impacts Black women and Black families is not sufficient on its own. To determine whether discriminatory purpose influenced Congress’s decision-making, several factors must be considered, including: the historical background of the law, the sequence of events leading up to the challenged decision, the legislative history that surrounds the decision, and the foreseeability of a disparate impact.^[160]

In 1992, four years prior to his signing of the welfare reform bill into law, President Bill Clinton vowed to “end welfare as we know it,” by aiming to dismantle what he described as the cycle of welfare dependency.^[161] The ban was introduced during the height of the “War on Drugs,” and was meant to be tough on crime.^[162] However, despite its significant implications and the profound changes the ban was expected to bring about, it was subjected to a mere two minutes of debate when presented on the Senate floor.^[163] This type of brief discussion does little to help one understand the true motivations behind the law. Nevertheless, the legislative record indicates that its primary purpose was simply to impose penalties on drug offenders.^[164] This is demonstrated by Senator Phil Gramm, the provision’s sponsor, who viewed this ban as both (1) an extension of punishment to people convicted of drug crimes and (2) a strategy to deter future drug crimes.^[165]

To illustrate, in 1995, just one year before the welfare ban bill was introduced, the United States reached a staggering peak in drug-related arrests; an estimated 1.5 million people were arrested for offenses related to the sale, manufacture, or possession of illegal narcotics.^[166] Marijuana emerged as the fastest-growing category of drug-related arrests during the 1990s, witnessing an eighty percent surge from 1990 to 1995.^[167] During the same period, the rate of marijuana arrests among Black people soared by approximately ninety-eight percent, while it was only a sixty-nine percent increase for white people.^[168] Moreover, in the same year before the law was enacted, Black people constituted thirty-nine percent of all drug arrests, a significant increase from twenty-four percent in 1980.^[169] On the other hand, white people made up sixty percent of drug arrestees in 1995, a decrease from seventy-five percent in 1980, despite higher rates of drug use among this demographic.^[170]

This data, coupled with statistics available to Congress at the time, which revealed the overrepresentation of Black people in prisons relative to their rates of drug offenses, suggests that Senator Gramm was likely aware that the ban would disproportionately impact Black individuals.^[171] In contrast, white individuals were significantly underrepresented, further suggesting that discriminatory purpose may have influenced the decision to impose the ban.^[172] Prior to 1995, white individuals constituted the majority of drug arrests, yet there was no significant movement to establish laws for penalizing drug offenses beyond incarceration.^[173] However, this dynamic shifted dramatically when the number of drug arrests for white individuals began to decline, while arrests for Black individuals started to rise.^[174]

Furthermore, given that the Turner court upheld the constitutionality of this ban in 2000, it is essential to examine the drug arrest data from the years preceding this decision. The analysis of the period from 1979 to 1998 reveals a sharp disparity in arrest rates.^[175] Despite comprising seventy-two percent of the estimated ten million illicit drug users in a 1998 survey conducted by the National Household Survey on Drug Abuse, white individuals were arrested at significantly lower rates than Black drug offenders, who represented only fifteen percent of drug users.^[176] The number of white marijuana users was nearly five times greater than that of Black users, and there were four times as many white cocaine users compared to their Black counterparts.^[177]

It is important to recall, the welfare ban does not restrict access to SNAP benefits for individuals who use drugs; it only applies to those with a felony drug conviction, notwithstanding if they use drugs or not.^[178] This reflects a discriminatory purpose, particularly when considering that from 1979 to 1998, drug use rates among Black and white individuals were similar.^[179] However, during this same period, the rate of arrests and convictions for Black individuals surged, while the rate for white individuals decreased significantly, despite similar drug use amounts.^[180] In fact, each year, the percentage of Black people arrested for drug-related offenses was consistently more than double the percentage of Black drug users.^[181] However, white people were disproportionately under-arrested, resulting in a smaller percentage of drug arrests compared to their overall representation among drug users.^[182] Moreover, in 1996, the year the welfare ban was enacted, the rate of drug convictions for Black men was thirteen times higher than that of white men.^[183] Why, then, did Congress choose to deny SNAP benefits to those with drug convictions rather than those who use drugs, despite their declared goal of deterring drug use?^[184] This intent is particularly concerning (and telling) given that, while drug use is more prevalent among white individuals, Black people are convicted at significantly higher rates.^[185] Thus, the discriminatory purpose behind this welfare ban is glaringly apparent, revealing a systemic bias that targets communities of color rather than truly intending to address the broader issue of substance abuse.

The reaffirmation of the welfare ban in Turner, must be evaluated in light of what was known at the time it was reaffirmed.^[186] The Supreme Court has recognized that when adverse consequences of a law upon an identifiable group are “inevitable,” a strong inference may reasonably be drawn that the adverse effects were desired.^[187] In enacting the welfare ban, Congress, along with the court in Turner, had the advantage of hindsight, which revealed significant historical patterns indicating that drug arrests and convictions disproportionately affected Black people. While Congress’s actions may not have been “intentional” in the sense that racist outcomes were self-consciously sought, neither were they “unintentional.” The racist outcomes of the ban were influenced by Congress’s beliefs that after Black people became eligible to receive welfare benefits and not only white, single women, the perception of relying on welfare benefits shifted to be seen as lazy, and Congress had a desire to then promote “personal responsibility.”^[188] With the ban failing to be narrowly tailored to achieve the stated goals as discussed in Part III, along with evidence of discriminatory impact discussed above, there is a strong argument that Congress enacted the law with a inferred discriminatory purpose that allows for the ban to be challenged and reviewed again under a higher standard of review than rational basis.

B. Irrationality Challenge

An additional argument that could strengthen an equal protection challenge is the ban’s irrationality under the same rational basis review.^[189] As discussed in Part III, the court in Turner upheld the welfare ban based on Congress’s interest in drug deterrence, fraud reduction, and curbing welfare spending; however, these assumptions are generally inconclusive and prove Congress’s assumptions wrong. Data consistently demonstrated that while white people statistically used drugs at higher rates, they faced lower rates of arrest and conviction.^[190] Therefore, the premise behind the welfare ban—to deter drug use—proves to be fundamentally flawed, as it does not prevent people who use drugs from receiving SNAP benefits if they have not been convicted. Consequently, the ban has failed to achieve its desired objective of deterring drug use, particularly given that white people are arrested and convicted at significantly lower rates despite being the majority of drug users.^[191] This discrepancy highlights that Congress operated under misguided assumptions when instituting the welfare ban. In reality, the number of white drug users is disproportionate to their drug crime convictions, allowing them to continue receiving SNAP benefits without consequence.^[192]

Moreover, because white drug users are not being arrested and convicted at the same rates as Black users, white drug users remain eligible for SNAP benefits and could traffic food stamps. Therefore, this undermines Congress’s assumption that preventing those with drug felonies from receiving SNAP will effectively reduce fraud since white people represent most of both drug users and SNAP recipients and will have access to exchanging food stamps for drugs.^[193] In 1996 and again in 2000, Congress relied on faulty assumptions of a briefly discussed law to further its disparate treatment of Black people.

By applying the most deferential form of the rational basis test, the Second Circuit found that the welfare ban, as originally enacted, was rationally related to a legitimate government purpose, resulting in future challenges to the ban being moot.^[194] Twenty-five years after Congress articulated its objectives in Turner, it is evident that its decision to implement the ban, despite being fully aware that the supporting evidence underscored the disproportionate convictions of Black individuals for drug-related offenses, raises significant equal protection concerns. Moreover, the fact that the ban has failed to fulfill its declared goals of deterring drug use, minimizing fraud, and curbing welfare spending suggests that the ban is irrational. This law warrants serious reconsideration.

Part V. Conclusion

A. The Harm of Welfare Ban Modifications

While it may seem as though progress has been achieved regarding the welfare ban, given that there is only one state that still implements the ban fully, states implementing partial bans continue to have detrimental effects.^[195] Nearly half of the states require people released from prison to comply with certain conditions to qualify for SNAP.^[196] For instance, five states allow access to benefits only for individuals convicted of less severe offenses, such as drug possession or use; thus, drug traffickers still do not have access to SNAP benefits.^[197] Additionally, three states impose a waiting period before any benefits can be accessed.^[198] Eight states mandate the satisfactory completion of probation or parole as a prerequisite.^[199] Another six states further complicate matters by linking benefits to participation in drug treatment and/or drug testing programs, irrespective of whether the offense may or may not even be associated with the individual’s own drug use, potentially prolonging supervision beyond the completion of their sentence.^[200] Five states require two of these conditions to be met, while six states require that a combination of three of the aforementioned conditions be met to qualify for SNAP benefits.^[201]

The drug testing requirement stems from an unfounded assumption that individuals seeking assistance are prevalent drug abusers.^[202] However, only about five to ten percent of welfare recipients struggle with substance abuse issues.^[203] One of the key rationales for the welfare ban established in Turner was to curtail federal spending on welfare programs.^[204] However, the costs associated with implementing drug testing can range from $92,500 to a staggering $20 million, directly contradicting Congress’s stated objective of reducing expenditures.^[205] Moreover, drug testing can lack precision, as urine tests often fail to differentiate between illicit drugs and legal prescription drugs.^[206] Similarly, research indicates that drug testing becomes ineffective when an extremely small number of participants test positive for drug use.^[207] Satisfying the requirement to participate in drug treatment programs can be difficult, as many treatment facilities rely on participants having SNAP benefits to help offset the cost of treatment.^[208] With the absence of this vital financial support, coupled with the denial of food assistance, individuals in recovery face greater challenges, significantly increasing their risk of relapse and potential reincarceration.^[209]

Another significant challenge faced by returning citizens is the requirement to successfully complete probation or parole.^[210] While under supervision following their drug conviction, they must adhere to a range of demanding conditions.^[211] These conditions may be difficult to meet when re-entering society, and could include paying fines, attending frequent meetings, completing drug testing, participating in treatment programs, distancing themselves from others with criminal records, and sustaining employment, which is not easy for individuals with a record, addiction, disabilities, lack of transportation, or lack of loved ones’ support.^[212] These conditions surrounding probation and parole create a challenging environment for these individuals, contributing to the unfortunate reality of nearly 350,000 people transitioning from post-release supervision back to jail or prison due to their inability to meet these conditions.^[213] Thus, linking access to essential resources like food to the fulfillment of these strict requirements adds an additional layer of stress for these individuals, where wondering how they are going to get food for themselves and their families should be the last thing they are worried about.^[214] Furthermore, the stipulation that requires newly-released individuals to endure a waiting period after conviction before accessing benefits is another tough barrier, particularly given that formerly incarcerated individuals are the most vulnerable immediately after release and need the most support then.^[215] Providing immediate access to food is essential for supporting their successful reintegration and reducing the risk of re-offending.^[216]

The restrictions placed by numerous states on access to SNAP benefits continue to exert control over an individual’s behavior long after they have completed their sentence.^[217] Often, this supervision occurs without a proper assessment of whether it is justified. These conditions are “not inherently less punitive” than serving time in jail, where in jail, at least there is access to food and other necessities. Thus, even partial bans that implement these conditions are harmful, as individuals are discouraged from applying altogether due to the sense of hopelessness and threat of perpetual supervision created by the ban’s restrictions.^[218]

B. Other Solutions: RESTORE Act, State Litigation, & More

These disjointed and insufficient state reforms fall short of solving the more substantial issue of denying food access to those convicted of drug felonies because of old criminal records.^[219] While numerous states have chosen to opt out of the ban, as previously discussed, a considerable number still implement modified requirements that maintain obstacles to SNAP access for individuals with felony drug convictions.^[220] Therefore, if courts will not review this ban under a heightened level of scrutiny, then it is essential to repeal § 862a at the federal level and establish a uniform approach to ensure that all individuals with drug felony convictions can access food assistance without facing disparities.^[221]

Currently, Congress is considering a bipartisan federal repeal of the welfare ban, known as the RESTORE Act.^[222] Introduced in May 2023, the legislation would immediately repeal § 862a, the lifetime federal ban preventing individuals with a prior drug felony from accessing SNAP benefits.^[223] Grant Smith, Deputy Director of the Office of Federal Affairs at the Drug Policy Alliance, supported the legislation by stating:

This ban continues to be a painful reminder of the extensive harm Congress inflicted on communities—especially Black, Latinx, Indigenous and low-income communities—with the tough on crime policies of the 80s and 90s. They gave no thought to the generations of harm this senseless policy would wreak on families and passed this ban after only two minutes of debate in 1996. . . . Many people face poverty and food insecurity following release from incarceration. By denying help with food, the lifetime SNAP ban is counterproductive to successful reentry and efforts to reduce recidivism.^[224]

This Act was introduced during President Joe Biden’s Administration, a time when securing Congressional support was relatively easy, since many states had already repealed or significantly altered the federal ban within their own laws.^[225] However, future challenges are likely with the current Trump Administration, as proponents of the Act will face significant hurdles in obtaining the President’s approval. Before President Trump’s first term in 2016, there was a notable bipartisan consensus surrounding the need for criminal justice reform.^[226] President Barack Obama made substantial reforms to the criminal justice system, driven by his belief that “America is a nation of second chances.”^[227] On the other hand, President Trump has exhibited an unforgiving attitude toward incarcerated individuals and has denounced past initiatives aimed at reforming the criminal justice system, advocating instead for a tough-on-crime administration.^[228] As a result, since the Act has only been introduced and has not progressed further, it is unlikely that President Trump will endorse the repeal of § 862a, especially since this legislation represents a clear shift towards criminal justice reform by prioritizing the restoration of SNAP benefits to former drug felons rather than adhering to a strictly “tough on drugs” stance.^[229]

The United States has structured its justice system around the principle of rehabilitation, valuing the opportunity for individuals to reform.^[230] There are very few rights that individuals lose after committing a crime.^[231] However, instead of facilitating the reintegration of those with drug-related offenses into society and empowering them to overcome their past mistakes, laws such as § 862a convey a discouraging political message: that, despite the discourse, this Nation does not believe in second chances.^[232] Even after individuals have completed their sentences and met their obligations, they continue to be defined by their past criminal records.^[233] Among various implications, the ban stands out as fundamentally at odds with Congressional support for reentry services, such as funding allocated through the Second Chance Act, and it contradicts the current policy recommendations put forth by the Federal Interagency Reentry Council.^[234]

Fortunately, there are additional avenues for reforming the welfare ban beyond the RESTORE Act. The MEAL Act, introduced in August 2021, has the support of over 160 groups nationally and would repeal § 115 of Public Law 104-193, the provision that ultimately placed a lifetime SNAP ban on people with past drug convictions.^[235] To enhance accessibility to benefits for individuals nearing release, states should consider allowing applications for SNAP to be submitted within thirty days prior to their release date. This strategy could mirror the practices of states like Maine, which have successfully expanded access to public benefits, ultimately reducing the likelihood of recidivism.^[236] Notably, in 2021, the USDA, which oversees SNAP, approved a pioneering pilot program in Orange County, California, enabling incarcerated individuals to pre-enroll in SNAP up to thirty days before their release.^[237] To further promote this initiative, the USDA should develop and disseminate guidelines that encourage greater participation from states in programs like this. While the Court in Turner argued curbing welfare spending as a goal of the law, consistently increasing funding for SNAP would provide the opportunity to assist all those in need, rather than limiting support solely to those deemed “deserving.”^[238] Fortunately, a one-year extension has been granted for the bipartisan Farm Bill that originally increased funding for the SNAP program, which is currently in effect for fiscal year 2025.^[239]

In the absence of a federal repeal or a successful challenge on equal protection, due process, or § 1983 grounds, the most straightforward approach to eliminate the federal welfare ban is for all states to fully opt out of the ban.^[240] Additionally, when states choose to fully opt out, they should solidify these changes by amending their public assistance statutes, rather than embedding these adjustments within appropriations bills that are temporary and typically require annual reapproval.^[241] Pursuing litigation in state courts may also prove beneficial; state courts have considerable latitude and discretion in establishing qualifications for SNAP.^[242] Alternatively, since the Turner decision was made in the Second Circuit, a ruling by another circuit that finds the welfare ban unconstitutional could lead to a circuit split, thereby prompting the Supreme Court to consider the matter for review.^[243] Public education efforts are also crucial to raise awareness about this issue, which may otherwise remain overlooked by both the general public and policymakers.^[244]

Among the various rights that could have been limited in an effort to combat drug use, why has access to food become the focal point? If truly addressing drug use were a priority in this country, individuals with drug-related convictions would face other restrictions, not merely a loss of access to food. Instead, Congress has removed a social safety net for ex-offenders and their families.^[245] The impact of removing SNAP benefits is particularly devastating when compared to other potential punishments, as it strips away not only economic support but also the personal autonomy that individuals often take for granted when it comes to meeting their families’ basic needs.^[246] This deeply problematic law warrants a more rigorous standard of review than the overly lenient rational basis test, which permits Congress to enact life-threatening policies with minimal empirical support.^[247] Upon closer scrutiny, Congress would likely struggle to demonstrate that the welfare ban is reasonably connected to its stated objectives. Furthermore, it would be evident that their intended goals have not been achieved, and they would ultimately have to acknowledge that the foundational assumptions behind this law are misguided.

With the true consequences of the “War on Drugs” now fully apparent, showing it has caused more harm than good, it is imperative for both states and the federal government to abolish the harsh punishment of denial of food assistance to felony drug convictions.^[248] This change is a crucial step toward rectifying past injustices and fostering a more equitable society. To effectively eradicate food insecurity, lower incarceration rates, assist individuals in overcoming addiction, and foster economic growth in historically marginalized communities, it is essential for the United States to deliver necessary benefits and robust support, particularly access to food assistance. To the extent that any prohibitions remain in place, they should be narrowly tailored to achieve some kind of public health or safety goal, rather than serving solely as a punitive measure for individuals who have already faced their consequences. The government must ensure that its policies reflect compassion and a commitment to supporting vulnerable communities in their time of need. This is a public health issue, and everyone deserves the chance to nourish themselves and their families.

---

1. Laura Santhanam, How Some Families Are Banned From Food Stamps for Life Due to Past Drug Convictions, PBS (June 9, 2023, at 12:39 EDT), https://www.pbs.org/newshour/health/how-some-families-are-banned-from-food-stamps-for-life-due-to-past-drug-convictions [https://perma.cc/CQG4-BTRV].

2. Id.

3. Id.

4. Id.; A Quick Guide to SNAP Eligibility and Benefits, Ctr. on Budget & Pol’y Priorities (Sep. 30, 2024), https://www.cbpp.org/research/food-assistance/a-quick-guide-to-snap-eligibility-and-benefits. [https://perma.cc/YC4U-EZ9G] (Sep. 30, 2024) (“[H]ousehold income before any of the program’s deductions are applied—generally must be at or below 130 percent of the poverty line.”).

5. Santhanam, supra note 1.

6. Id.

7. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, § 115, 110 Stat. 2105, 2180 (1996) (codified as amended at 21 U.S.C. § 862a).

8. Id.

9. Id.

10. Id.; Claire K. Child & Stephanie A. Clark, SNAP Judgments: Collateral Consequences of Felony Drug Convictions for Federal Food Assistance, 26 Berkeley J. Crim. L. 1, 6–7 (2021) (discussing how PRWORA initially included no restrictions for individuals with felony drug convictions, but after Senate amendments were introduced by Phil Gramm, it incorporated § 115, which, despite resulting compromises, reflects a trend towards allowing states more flexibility in managing welfare and food assistance programs).

11. Nick Sibilla, Many States Still Deny SNAP and TANF Benefits to People with a Drug Felony, According to a New Report, Collateral Consequences Res. Ctr. (Dec. 6, 2023), https://ccresourcecenter.org/2023/12/06/many-states-still-deny-snap-and-tanf-benefits-to-people-with-a-drug-felony-according-to-a-new-report/ [https://perma.cc/8YS3-7VSY].

12. Malik Neal & Tatyana Hopkins, Perpetual Punishment: A State-by-State Analysis of Welfare Benefit Bans for People with Prior Felony Drug Convictions, Cong. Black Caucus Found. 3 (Feb. 2023), https://www.cbcfinc.org/publications/criminal-justice/perpetual-punishment-a-state-by-state-analysis-of-welfare-benefit-bans-for-peoplewith-prior-felony-drug-convictions/ [https://perma.cc/WQ2Z-WN97].

13. Id.

14. Id.

15. Id.; Child & Clark, supra note 10, at 15–16 (discussing how fifteen states have implemented a modification requiring individuals with felony drug convictions to complete a drug treatment program, with exceptions for those deemed not in need of treatment, currently enrolled in a program, or on a waiting list, highlighting a significant disparity between the need for and availability of substance use disorder treatment; additionally, eleven states mandate compliance with probation or parole terms to receive SNAP benefits, often creating further barriers to essential food assistance due to stringent conditions and waiting periods, resulting in increased recidivism).

16. See Neal & Hopkins, supra note 12, at 12–13.

17. See Bella Caracta, Former Drug Convicts Advocate for Food Assistance After Serving Their Time, First Alert 6 (Feb. 23, 2023, at 19:48 EST), https://www.wowt.com/2023/02/24/former-drug-convicts-advocate-food-assistance-after-serving-their-time/ [https://perma.cc/976N-QRLW]; Child & Clark, supra note 10, at 17 (“The Prison Policy Initiative analyzed mass incarceration and rearrest rates and found ‘[a]t least one in four people who go to jail will be arrested again within the same year—often those [who are already] dealing with poverty, mental illness, and substance use disorders.’ Rearrest rates are also disproportionately higher for people from historically marginalized populations. By excluding marginalized populations from basic food assistance, states are ignoring a way to ensure formerly incarcerated people receive the social services necessary to help break the cycle of recidivism.”); see also Long, infra Part V.

18. Shannon Pettypiece, Amid Millions of Open Jobs, Finding Work Remains a Struggle with a Criminal Record, NBC NEWS (Oct. 15, 2023, at 09:32 EST), https://www.nbcnews.com/politics/finding-jobs-with-criminal-record-hard-despite-millions-of-openings-rcna120082 [https://perma.cc/H6XB-E999]; Ashley M. Biggers, The US Has the Highest Recidivism Rates In the World—Here’s Why, Success (Dec. 17, 2024), https://www.success.com/recidivism-rates/ [https://perma.cc/YG82-GE9L] (“Around 60% of them remain unemployed a year after their release. Background checks that reveal their arrests and convictions often prove impassable blocks to gaining reliable employment even if they’re otherwise qualified for a position. Two National Institute of Justice studies found that the presence of a criminal record decreases the likelihood of a job callback or offer by approximately 50%.”).

19. See Terry-Ann Craigie, Ames Grawert & Cameron Kimble, Conviction, Imprisonment, and Lost Earnings: How Involvement with the Criminal Justice System Deepens Inequality, Brennan Ctr. for Just. (Sep. 15, 2020), https://www.brennancenter.org/sites/default/files/2020-09/Conviction_Imprisonment_and_Lost_Earnings.pdf [https://perma.cc/GN3U-9G2X].

20. See Long, infra Part V; Meghan Looney Paresky, Changing Welfare as We Know It, Again: Reforming the Welfare Reform Act to Provide All Drug Felons Access to Food Stamps, 58 B.C. L. Rev. 1659, 1661–63 (2017) (explaining the impact that the welfare ban had on an individual named Johnny Waller, Jr.).

21. Paresky, supra note 20, at 1690; Francis O’Rourke, Continuing Punishments for Drug Convictions, Mich. Poverty L. Program (Dec. 6, 2019), https://mplp.org/blog/continuing-punishments-drug-convictions [https://perma.cc/DL5G-TELH] (“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.”).

22. SNAP Employment & Training, Goodwill of the Heartland, https://www.goodwillheartland.org/what-we-do/people-services/snap/ [https://perma.cc/CG5M-TJUW] (last visited Feb. 21, 2025) (explaining that people eligible for food stamps can usually take educational classes through Goodwill’s workforce program for free); WIC Eligibility Requirements, USDA (May 5, 2025), https://www.fns.usda.gov/wic/applicant-participant/eligibility [https://perma.cc/3C8V-UEKC] (explaining that people who qualify for SNAP may be eligible for a breast pump through the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) program).

23. H.R. Rep. No. 104-651, at 3 (1996).

24. Id. at 68.

25. Id.

26. Id.

27. Id.; Child & Clark, supra note 10, at 5.

28. Child & Clark, supra note 10, at 8.

29. Cynthia Godsoe, The Ban on Welfare for Felony Drug Offenders: Giving a New Meaning to ‘Life Sentence’, 13 Berkeley Women’s L.J. 257, 259–60 (1998).

30. War on Drugs, Britannica (Sep. 22, 2025), https://www.britannica.com/topic/war-on-drugs [https://perma.cc/E4DV-W239].

31. Id.

32. Id.

33. Id.

34. Id.; Drug Related Crime Statistics, Nat’l Ctr. for Drug Abuse Stat., https://drugabusestatistics.org/drug-related-crime-statistics/ [https://perma.cc/74J3-DD7J] (last visited Jan. 25, 2025) (“By itself, marijuana makes up 11% of total nationwide arrests.”); Britannica, supra note 30 (discussing mandatory minimum sentencing laws that created a significant disparity in penalties between crack and powder cocaine, with just five grams of crack resulting in a five-year sentence compared to 500 grams of powder; where disparity disproportionately affected African Americans, leading to an unjust rise in incarceration rates for nonviolent Black drug offenders).

35. See, e.g., Godsoe, supra note 29, at 260; Leo Lopez III, Chapter 247: The Opioid Crisis and The War on Drugs, McGraw Hill Access Med., at 1 (last visited Jan. 25. 2025), https://accessmedicine.mhmedical.com/content.aspx?bookid=2547&sectionid=206783206 [https://perma.cc/S64D-X72A] (explaining that Opioid addiction and overdose deaths in the United States have surged dramatically, with fatalities quadrupling since 1999, and without strategic intervention, this number is expected to near 100,000 annually by 2027, potentially causing over 500,000 deaths in the next decade).

36. Offenses, Fed. Bureau of Prisons (Sep. 20, 2025), https://www.bop.gov/about/statistics/statistics_inmate_offenses.jsp [https://perma.cc/L2CE-TBLD].

37. Id.

38. See Turner v. Glickman, 207 F.3d 419 (7th Cir. 2000).

39. Id.

40. Id. at 423.

41. Id. at 424; Lauren N. Hancock, Another Collateral Consequence: Kicking the Victim When She’s Down, 77 Wash. & Lee L. Rev. 1319, 1341–42 (2020) (reemphasizing that the Supreme Court concluded that access to welfare is not a fundamental right).

42. Turner, 207 F.3d at 422–23.

43. Id. at 424.

44. Id. at 426.

45. Id.

46. Id. at 425.

47. Paresky, supra note 20, at 1677.

48. Turner, 207 F.3d at 425.

49. Id.

50. Benjamin Little, Impact of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) on Family Functions, 6 Merge 1, 2 (2022).

51. Paresky, supra note 20, at 1664 n.31, 1683 (citing a study indicating that about eighteen percent of individuals in San Francisco County jail had mental health issues and sixteen percent were homeless, with thirty percent of the homeless inmates also suffering from mental illness, along with another study that found: (1) over sixty percent of employers are hesitant to hire ex-offenders, with sixty-nine percent conducting criminal background checks on potential employees; (2) more than half of employers do not provide applicants with the opportunity to explain their criminal history before making hiring decisions; and (3) sixty percent of formerly incarcerated individuals report being unemployed one year after their release); Effects of Denial of SNAP Benefits on Persons with Felony Drug Convictions, The Network for Pub. Health L. (Apr. 25, 2020), https://networkforphl.org/resources/effects-of-denial-of-snap-benefits-on-convicted-drug-felons/ [https://perma.cc/HNA8-VKP7] (explaining that a felony conviction negatively impacts job opportunities and economic stability, leading to higher rates of food insecurity, especially in households with unemployed adults, and noting how low-income households are more susceptible to food insecurity, which can further hinder workplace productivity due to poor nutrition and health issues).

52. Paresky, supra note 20, at 1664.

53. Heidi, Homelessness and the Incarceration Cycle, Felony Murder Elimination Project (July 8, 2024), https://www.endfmrnow.org/homelessness-and-the-incarceration-cycle [https://perma.cc/EV3Z-JLRS] (“[F]ormerly incarcerated people make up between 23.1-47.8% of annual homeless shelter admissions.”).

54. Biggers, supra note 18; Matthew R. Durose & Leonardo Antenangeli, Recidivism of Prisoners Released in 34 States in 2012: A 5-Year Follow-Up Period (2012–2017), U.S. Dep’t of Just.: Bureau of Just. Stat. 1 (July 2021), https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/document/rpr34s125yfup1217.pdf [https://perma.cc/E2AK-SAK2] (explaining that in 2012, 103,900 prisoners in 34 states with a drug-related conviction were released and in 5 years 70% of them were arrested following release); Paresky, supra note 20, at 1685–86 (detailing a story about Ronald Tillman, who is struggling to make ends meet after being released from prison in 2013 for selling morphine, and due to the welfare ban, he was ineligible for food stamps and relied solely on a $733 monthly disability check, which resulted in desperation and him resorting to shoplifting food to survive).

55. Ashley Nellis, Mass Incarceration Trends, The Sent’g Project (May 2024), https://www.sentencingproject.org/reports/mass-incarceration-trends/ [https://perma.cc/3DDY-XKPY]; Neal & Hopkins, supra note 12, at 3.

56. Recidivism Rates by State 2024, World Population Rev., https://worldpopulationreview.com/state-rankings/recidivism-rates-by-state [https://perma.cc/83JN-B9FH] (last visited Feb. 21, 2025).

57. Id.

58. Michele Staton-Tindall et al., Factors Associated with Recidivism Among Corrections-Based Treatment Participants in Rural and Urban Areas, Nat’l. Libr. of Med. (Mar. 27, 2015), https://pmc.ncbi.nlm.nih.gov/articles/PMC10249434/#:~:text=The Pew Center on the,1995; Bonta%2C 1996 [https://perma.cc/TS85-7PYT].

59. Dieter Dölling et al., Is Deterrence Effective? Results of a Meta-Analysis of Punishment, Eur. J. on Crim. Pol’y & Rsch. (Mar. 3, 2009), http://blog.pucp.edu.pe/blog/wp-content/uploads/sites/470/2011/04/38029620.pdf [https://perma.cc/B9LE-C5DQ] (“It is supposed that threats of punishment deter potential criminals from committing crimes. The correctness of this theory is, however, questionable. Numerous empirical investigations have come to different results.”).

60. See generally Robert MacCoun et al., Do Citizens Know Whether Their State Has Decriminalized Marijuana? Assessing the Perceptual Component of Deterrence Theory, 5 Rev. L. & Econ. 347 (2009) (“Deterrence theory proposes that legal compliance is influenced by the anticipated risk of legal sanctions. This implies that changes in law will produce corresponding changes in behavior, but the marijuana decriminalization literature finds only fragmentary support for this prediction.”).

61. Child & Clark, supra note 10, at 18 (“[T]he ban is not well known or understood. In order for a consequence to act as a deterrent to behavior, people must be aware of the consequence before they engage in that behavior.”); Gary Kleck, Deterrence: Actual Versus Perceived Risk of Punishment, Encyclopedia of Criminology & Crim. Just., (Nov. 27, 2018), https://link.springer.com/referenceworkentry/10.1007/978-1-4614-5690-2_408 [https://perma.cc/7X9M-ZYQ9] (explaining that research shows that people’s perceptions of punishment, its certainty, severity, and swiftness, do not correlate with actual risk levels, and policies aimed at reducing crime through deterrence are unlikely to be effective since they won’t enhance potential offenders’ awareness of legal risks).

62. Krystina Murray, US Drug Use Peaks After 50 Year War on Drugs, Addiction Ctr. (May 27, 2025), https://www.addictioncenter.com/news/2021/07/drug-use-peaks-after-50-year-war-on-drugs/ [https://perma.cc/2L74-LMXB] (“CNBC notes that in 2019, the number of Americans age 12 and older who use illicit drugs rose to 13%. This number nearly reaches the highest it has been in 40 years.”); Margaret Warner & Holly Hedegaard, Trends in Drug-poisoning Deaths Involving Opioid Analgesics and Heroin: United States, 1999–2012, CDC (Dec. 2014), https://www.cdc.gov/nchs/data/hestat/drug_poisoning/drug_poisoning.htm [https://perma.cc/R8UL-HB2X] (“From 1999 through 2012, the age-adjusted drug-poisoning death rate nationwide more than doubled, from 6.1 per 100,000 population in 1999 to 13.1 in 2012.”).

63. Virginia McCalmont, A Lifetime of Punishment: The Impact of the Felony Drug Ban on Welfare Benefits, The Sent’g Project, Nov. 14, 2023, at 6, https://www.sentencingproject.org/reports/a-lifetime-of-punishment-the-impact-of-the-felony-drug-ban-on-welfare-benefits/ [https://perma.cc/8FYH-5QUZ].

64. See id. (“Furthermore, 92% of the women reported that even if they had known of the ban, it ‘would not have acted as a deterrent during active addiction.’”).

65. Deborah N. Archer & Kele S. Williams, Making America ‘The Land of Second Chances’: Restoring Socioeconomic Rights For Ex-Offenders, NYU Rev. L. & Soc. Change 527, 567–68 (2006).

66. Why Is Drug Use in America on the Rise?, Kolmac, https://www.kolmac.com/blog/why-is-drug-use-in-america-on-the-rise/ [https://perma.cc/H4JD-M72C] (last visited Feb. 21, 2025).

67. Drug Abuse Statistics, Nat’l Ctr. for Drug Abuse Stat., https://drugabusestatistics.org/ [https://perma.cc/JA83-G8VJ] (last visited Feb. 21, 2025); Substance Use and Mental Health Estimates from the 2013 National Survey on Drug Use and Health: Overview of Findings, Substance Abuse and Mental Health Servs. Admin. (Sep. 4, 2014), https://www.samhsa.gov/data/sites/default/files/NSDUH-SR200-RecoveryMonth-2014/NSDUH-SR200-RecoveryMonth-2014.htm#:~:text=This report indicates that in,and 10.0 million had SMI [https://perma.cc/5J9T-SY34] (“An estimated 24.6 million individuals aged 12 or older were current illicit drug users in 2013, including 2.2 million adolescents aged 12 to 17.”).

68. Paresky, supra note 20, at 1676 n.131.

69. McCalmont, supra note 63, at 5–6 (“Looking at data from 2006 (most recent available) from the Bureau of Justice Statistics, we find that more than half (56%) of the 377,860 drug convictions that year were for selling drugs, not using drugs.”).

70. Carol Joan Newark & Naomi F. Sugie, REPEALING THE FOOD STAMPS BAN CAN REDUCE RECIDIVISM, Scholars Strategy Network (June 1, 2023), https://scholars.org/contribution/repealing-food-stamps-ban-can-reduce [https://perma.cc/UA3E-MJYB] (presenting research that indicates that individuals banned from receiving food stamps are not only more likely to be re-arrested, but also experience re-arrest at a quicker rate compared to those not banned; specifically, the ban raises the risk of arrest by 4 percent at any moment, leading to a cumulative 1.5 percent increase in arrest rates over a five-year period); Paresky, supra note 20, at 1684 n.186.

71. Child & Clark, supra note 10, at 20 (A 2017 study examined recidivism among individuals with felony drug convictions in 43 states and found that full eligibility for food stamps significantly impacts re-offending rates. Specifically, drug offenders eligible for food stamps at the time of their release are 2.2 percentage points less likely to return to prison within one year, translating to a 13.1 percent reduction in recidivism compared to non-drug offenders. The study concluded that access to welfare and food stamps upon release can reduce the likelihood of returning to prison by up to ten percent.).

72. Neal & Hopkins, supra note 12, at 5.

73. See Crystal S. Yang, DOES PUBLIC ASSISTANCE REDUCE RECIDIVISM?, 107 Am. Econ. Rev. Papers & Proc. 551, 554 (2017) (“[E]ligibility for welfare and food stamps significantly decreases recidivism among newly released drug offenders, potentially because public assistance helps ex-offenders make ends meet when other economic prospects are dire.”).

74. Turner, 207 F.3d at 424–25.

75. Id. at 425.

76. Id.

77. Paresky, supra note 20, at 1677 n.133; McCalmont, supra note 63, at 6–7 (explaining that undercover officers often try to exchange food stamps for cash, drugs, or weapons, and that while their success in doing so demonstrates that food stamps have value, it does not establish that regular individuals receiving food stamps are exchanging food stamps improperly).

78. Paresky, supra note 20, at 1677.

79. Id. at 1678 n.134.

80. Id.; Child & Clark, supra note 10, at 19 (“Fraud also includes misrepresenting income or assets on an application. However, fraud is ‘relatively rare’ in SNAP. In 2016, about 0.0014 percent of SNAP-participating households were found to have committed fraud upon investigation, representing less than $100 million in losses . . . .”); Electronic benefit transfer, Wikipedia, https://en.wikipedia.org/wiki/Electronic_benefit_transfer [https://perma.cc/C64Z-XQY8] (last visited Feb. 21, 2025).

81. McCalmont, supra note 63, at 7.

82. Id.

83. Chris Edwards, The Food-Stamp-Fraud Top Ten, CATO Inst. (June 12, 2023), https://www.cato.org/commentary/food-stamp-fraud-top-ten [https://perma.cc/9PST-VQUR]; Child & Clark, supra note 10, at 19 (“[P]olling indicates that the public overestimates the prevalence of fraud; in a 2019 poll, about 60 percent of respondents reported a belief that it is ‘very common’ or ‘somewhat common’ for recipients to ‘misrepresent their eligibility in order to benefit from SNAP.’”).

84. SNAP Fraud Prevention, USDA (June 27, 2019), https://www.fns.usda.gov/snap/fraud [https://perma.cc/7CU7-E8KX].

85. See 7 U.S.C. § 2015(b)(1) (punishing individuals who are found to have traded controlled substances for SNAP benefits with two years of SNAP ineligibility for a first offense and permanent ineligibility for a second offense); 42 U.S.C. § 608(a)(8) (prohibiting benefits for ten years to individuals “found to have fraudulently misrepresented residence in order to obtain assistance in two or more States.”).

86. Child & Clark, supra note 10, at 19.

87. See Emelyn Rude, The Very Short History of Food Stamp Fraud in America, TIME (Mar. 30, 2017, at 11:00 EDT), https://time.com/4711668/history-food-stamp-fraud [https://perma.cc/T6F9-8D2M].

88. Godsoe, supra note 29, at 263; O’Rourke, supra note 21 (“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.’”); see also Long, infra Part V.

89. 7 U.S.C.A. § 2015(b)(1) (West 2008).

90. McCalmont, supra note 63, at 7.

91. Archer & Williams, supra note 65, at 567.

92. Id. at 567–68.

93. 21 U.S.C. § 862(a).

94. Final Rule: SNAP Student Eligibility, Convicted Felons, Lottery and Gambling, and State Verification Provisions of the Agricultural Act, USDA (Apr. 15, 2019), https://www.fns.usda.gov/snap/fr-041519#:~:text=Section 4008 prohibits anyone convicted,felon%2C from receiving SNAP benefits [https://perma.cc/QS2Y-WNWS].

95. Godsoe, supra note 29, at 266 (discussing how Section 115’s lifetime denial of benefits specifically for drug offenders is unreasonable, as it unjustly targets this group despite other felonies posing greater societal costs without similar repercussions; specifically noting how denying someone benefits forever based upon a marijuana possession conviction seems particularly absurd when no other criminal activity is so punished).

96. Inst. Of Med. & Nat’l Research Council, Supplemental Nutrition Assistance Program: Examining the Evidence to Define Benefit Adequacy 14 (Julie A. Caswell & Ann L. Yaktine, eds., 2013), (“To alleviate such hunger and malnutrition, a supplemental nutrition assistance program is herein authorized which will permit low-income households to obtain a more nutritious diet through normal channels of trade.”).

97. U.S.D.A. v. Moreno, 413 U.S. 528, 529 (1973) (citing 7 U.S.C. § 2011).

98. Paresky, supra note 20, at 1670–71.

99. Child & Clark, supra note 10, at 4–5 (explaining that states continue to have discretion over a range of matters that affect how they implement food assistance for residents by tailoring their reporting and application processes, which affect how easy or difficult it may be for eligible households to access SNAP).

100. Godsoe, supra note 29, at 259 (“This reframing of public benefits as available only to the ‘deserving needy’ cuts off the very people who need it the most.”).

101. Id.

102. Child & Clark, supra note 10, at 3 (“Despite changes in name, eligibility, and operation, the Food and Nutrition Service (FNS) of the U.S. Department of Agriculture, which administers SNAP, continues to recognize the program’s primary goal as ‘reduc[ing] food insecurity’ among low-income households.”).

103. Id.

104. Godsoe, supra note 29, at 258 (explaining how Senator Gramm’s view of § 115 as promoting higher moral standards for welfare recipients overlooks the complex factors influencing drug use and incorrectly assumes that cutting benefits will reduce drug abuse and associated crime).

105. Paresky, supra note 20, at 1682 n.168.

106. Little, supra note 50, at 2; See William J. Clinton, The President’s Radio Address, The Am. Presidency Project (Apr. 8, 1995), http://www.presidency.ucsb.edu/ws/index.php?pid=51209 [https://perma.cc/97UN-3P8D] (“My top priority is to get people off welfare and into jobs.”).

107. Paresky, supra note 20, at 1682 n.166.

108. Id. at 1682; Child & Clark, supra note 10, at 11 (discussing how childless adults under PRWORA face stricter access to SNAP benefits, requiring either eighty hours of work per month or participation in training programs, with a time limit of three months in three years, which disproportionately affects those with criminal records who struggle to find employment despite qualifying for assistance).

109. Child & Clark, supra note 10, at 10–11 (demonstrating how social support is vital for individuals reentering society after incarceration, as a lack of assistance can hinder their successful reintegration by citing a National Institutes of Health study that revealed that 91 percent of formerly incarcerated participants reported food insecurity upon release, highlighting the challenges they face); see generally Saneta deVuono-powell, Chris Schweidler, Alicia Walters & Azadeh Zohrabi, WHO PAYS? The True Cost of Incarceration on Families, Ella Baker Ctr. for Hum. Rts., at 20 (Sep. 2015), https://ellabakercenter.org/who-pays-the-true-cost-of-incarceration-on-families/ [https://perma.cc/6AEV-XFPA] (According to a survey by the Ella Baker Center for Human Rights, three out of four respondents found it “difficult or nearly impossible” to secure employment after incarceration. Without jobs, these individuals struggle financially, especially with the burden of fines and fees related to their convictions. Five years post-release, 67% of participants remained unemployed or underemployed.).

110. deVuono-powell et al., supra note 109, at 20–21; The Truth About Food Stamps, Just Harvest https://justharvest.org/advocacy/the-truth-about-snap-food-stamps/ [https://perma.cc/G82S-VWSK] (last visited Feb. 21, 2025) (“Only 55% of food insecure individuals are income-eligible for food stamps. More than 1/4 of food insecure people (29%) are not income-eligible for any federal food assistance.”).

111. Neal & Hopkins, supra note 12, at 12 (“However, even modified, or partial bans, grounded on misguided rationale—racial stereotypes and a perspective that only the strictest of punishments will eradicate the illegal drug market—can be harmful to vulnerable returning citizens. The current ban modifications and requirements—i.e., drug testing, drug treatment, probation/parole, and post-conviction ineligibility—fuel racial disparities and open a revolving door to incarceration.”).

112. Rem v. United States Bureau of Prisons, 320 F.3d 791, 795 (8th Cir. 2003) (“Convicted drug traffickers are not a suspect class.”).

113. Dana Berliner, The Federal Rational Basis Test - Fact and Fiction, 14 Geo. J.L. & Pub. Pol’y 373, 375 (2016).

114. Id. at 386.

115. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).

116. See Washington v. Davis, 426 U.S. 229, 240, 246 (1976) (stating that a neutral law with a racially disparate impact must also be tied to a racially discriminatory purpose); Arlington Heights, 429 U.S. at 265 (“Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”).

117. McCalmont, supra note 63, at 4.

118. Davis, 426 U.S. at 242.

119. Neal & Hopkins, supra note 12, at 12 (“Black women make up 11% of women in the U.S. but account for 32% of those released on felony drug convictions annually.”).

120. GENDER AND RACIAL JUSTICE IN SNAP, Nat’l Women’s L. Ctr., at 2 (Aug. 8, 2024) https://nwlc.org/resource/gender-and-racial-justice-in-snap/ [https://perma.cc/W3U7-2EL7].

121. Id.

122. McCalmont, supra note 63, at 4.

123. Id. at 5.

124. Id.

125. Little, supra note 50, at 3.

126. Center on Budget & Policy Priorities states as follows:

     [H]ousehold income before any of the program’s deductions are applied—generally must be at or below 130 percent of the poverty line. For a family of three, the poverty line used to calculate SNAP benefits in federal fiscal year 2025 is $2,152 a month. Thus, 130 percent of the poverty line for a three-person family is $2,798 a month, or about $33,576 a year.

     See Ctr. on Budget & Pol’y Priorities, supra note 4.

127. Nat’l Women’s L. Ctr., supra note 120, at 6; Kristen M. Budd, Incarcerated Women and Girls, The Sent’g Project (July 24, 2024), https://www.sentencingproject.org/fact-sheet/incarcerated-women-and-girls/ [https://perma.cc/BAF2-K4BP] (In 2022, “[w]omen in state prisons are more likely than men to be incarcerated for a drug or property offense. Twenty-five percent of women in prison have been convicted of a drug offense, compared to 12% of men in prison.”); Women’s Justice: By the Numbers, Council on Crim. Just., (July 2024), https://counciloncj.org/womens-justice-by-the-numbers/ [https://perma.cc/J4QL-E7AC] (“From 2014 to 2022, the share of the female population in federal prisons went up for drug (59% to 65%) . . . offenses . . . .”).

128. McCalmont, supra note 63, at 4 (“While prison populations have grown dramatically in recent decades, the rise in women’s incarceration has outstripped that of men. From 1980 to 2010, the number of women in prison rose by 646%, compared to a 419% increase for men.”); Budd, supra note 127, at 1 (“The female incarcerated population stands almost seven times higher than in 1980. . . . Between 1980 and 2022, the number of incarcerated women increased by more than 585%, rising from a total of 26,326 in 1980 to 180,684 in 2022.”).

129. Budd, supra note 127, at 4 (“The proportion of imprisoned women convicted of a drug offense has increased from 12% in 1986 to 25% in 2021.”).

130. McCalmont, supra note 63, at 5.

131. Single Mom Statistics & the Truth About Single Moms, The Life of a Single Mom (Jan. 29, 2024), https://thelifeofasinglemom.com/single-mom-statistics-the-truth-about-single-moms/#:~:text=(U.S. Census Bureau%2C 2018),than those that are married [https://perma.cc/ZP9V-5S8S].

132. Little, supra note 50, at 3; Archer & Williams, supra note 65, at 565 n.240.

133. Isabela Salas-Betsch, The Economic Status of Single Mothers, Ctr. for Am. Progress (Aug. 7, 2024), https://www.americanprogress.org/article/the-economic-status-of-single-mothers/#:~:text=While 21 percent of all,percent and 8 percent%2C respectively [https://perma.cc/SA6L-FNP6] (21% of all mothers are single: 47% of Black mothers and 25% of Hispanic mothers are single mothers versus 14% of white mothers and 8% of Asian mothers.).

134. The Drug Policy Alliance states as follows:

     2.7 million children are growing up in U.S. households in which one or more parents are incarcerated. Two-thirds of these parents are incarcerated for nonviolent offenses, including a substantial proportion who are incarcerated for drug law violations. One in nine Black children has an incarcerated parent, compared to one in 28 Latino children and one in 57 white children.

     The Drug War, Mass Incarceration and Race, U.N. Off. on Drug and Crime, 2 (June 2015), https://www.unodc.org/documents/ungass2016/Contributions/Civil/DrugPolicyAlliance/DPA_Fact_Sheet_Drug_War_Mass_Incarceration_and_Race_June2015.pdf [https://perma.cc/B5VD-RG6U]; see also Neal & Hopkins, supra note 16, at 12.

135. Council on Crim. Just., supra note 127 (“In 2016, 58% of the women in state and federal prisons were parents to minor children, compared to less than half of the men (47%).”).

136. Godsoe, supra note 29, at 263 n.44.

137. See id. at 260.

138. Id.; McCalmont, supra note 63, at 8.

139. Noah Caldwell, Katia Riddle, & Ailsa Chang, The family politics behind J.D. Vance’s ‘childless cat ladies’ comment, NPR (July 25, 2024), https://www.npr.org/2024/07/25/nx-s1-5051873/the-family-politics-behind-j-d-vances-childless-cat-ladies-comment [https://perma.cc/5QXA-D9N4].

140. Id. (“He’s even suggested that people with children should get more votes in elections than people who do not have children.”).

141. Little, supra note 50, at 3.

142. Little states as follows:

     In some instances when the father is unable to gain employment due to his criminal record, the mother is forced to go to work to provide for the family. While this may appear to be a good solution, the mother is more likely to be the parent who is the primary caregiver of the children. When the mother goes to work, then the father must take on the caregiver role. However, if parents are not working together for the well-being of the child, that can place children at a higher risk of deviant behaviors or substance abuse (Western & Smith, 2018).

     Id. at 5.

143. Archer & Williams, supra note 65, at 564–65 (The women impacted by the ban are more likely than those without a criminal record to be in need of economic assistance, and the ban seriously hinders an ex-offender’s ability to overcome addiction, “[C]are for her children, find work, and access drug treatment services.”).

144. Little, supra note 50, at 5; Paresky states as follows:

     Although other family members may still be eligible for welfare benefits such as SNAP and TANF, the amount of assistance provided to the family is “[r]educed by the amount which would have otherwise been made available to the [drug felon],” particularly when the individual being denied the benefit is the head of the household and responsible for meeting the basic needs of others.

     Paresky, supra note 20, at 1676.

145. Little, supra note 50, at 6; Neal & Hopkins, supra note 12, at 10 (“47,832 people are estimated to have been affected by [the] SNAP ban [in South Carolina alone].”).

146. Neal & Hopkins, supra note 12, at 10.

147. Id.; Hunger Hits Black Communities Harder, Feeding Am., https://www.feedingamerica.org/hunger-in-america/black-communities [https://perma.cc/NWX6-V8YU].

148. Feeding Am., supra note 147.

149. U.N. Off. on Drug & Crime, supra note 134, at 1 (“In total, approximately 57% people incarcerated in state prisons, and 77% of people incarcerated in federal prisons for drug offenses are Black or Latino, compared to 30% of the U.S. population.”).

150. Neal and Hopkins state as follows:

     In Texas, [which has a partial welfare ban], for example, Black Americans make up approximately 12% of the population but account for 40% of the people released from custody on drug felony convictions. Similarly, in Nebraska, [which also has a partial welfare ban], Black Americans account for 4% of the population but 23% of people released on drug felony convictions.

     Neal & Hopkins, supra note 12, at 11.

151. Id.

152. Id.

153. Child & Clark, supra note 10, at 11.

154. Id. at 11–12.

155. Id. at 11; Neal & Hopkins, supra note 12, at 5 (“Additionally, wages for formerly incarcerated Black people are lower when compared with their white counterparts. These already low wages may be reduced further by debt incurred because of incarceration, such as legal fees, child support, and fines.”).

156. Child & Clark, supra note 10, at 11.

157. David H. Angeli, A “Second Look” at Crack Cocaine Sentencing Policies: One more Try for Federal Equal Protection, 34 Am. Crim. L. Rev. 1211, 1217 (1997).

158. Archer & Williams, supra note 65, at 550–51.

159. Arnold v. Ballard, 448 F. Supp. 1025, 1029 (N.D. Ohio 1978) (Stevens, J., concurring) (“Frequently the most probative evidence of intent will be objective evidence of what actually happened . . . . It is unrealistic to require the victim of alleged discrimination to uncover the actual subjective intent of the decisionmaker.”).

160. Archer & Williams, supra note 65, at 550; Angeli, supra note 157, at 1217–18.

161. Neal & Hopkins, supra note 12, at 2.

162. Id. at 3.

163. McCalmont, supra note 63, at 1; 142 Cong. Rec. S8498 (daily ed. July 23, 1996).

164. Id. at S8498–99.

165. Id. at S8498 (As the provision’s sponsor, Sen. Phil Gramm (R-TX), explained in Congress: “If we are serious about our drug laws, we ought not to give people welfare benefits who are violating the nation’s drug laws.”).

166. FBI, Drugs in America: 1980–1995, in Crime in the United States 1996, Uniform Crime Reports, at 280, https://ucr.fbi.gov/crime-in-the-u.s/1996/96sec5.pdf [https://perma.cc/A82H-RTNH].

167. Id.

168. Id. at 282.

169. Id.; Punishment and Prejudice: Racial Disparities in the War on Drugs, Hum. Rts. Watch (May 2000), https://www.hrw.org/reports/2000/usa/Rcedrg00-05.htm#P307_63738 [https://perma.cc/NVN6-JQUE] (Additionally, in 1991-1993, according to a SAMHSA survey, Black people were only 16 percent of admitted sellers and white people were 82 percent, and drug users reported that their main drug sellers were of the same racial background as they were.).

170. FBI, supra note 166, at 282; Hum. Rts. Watch, supra note 169 (“3,727,680 non-Hispanic whites who had used cocaine compared to 720,130 non-Hispanic [B]lacks. That is, there were five times as many non-Hispanic whites as [B]lacks who were cocaine users.”).

171. Human Rights Watch states as follows:

     The impact of incarceration as a weapon in the war against drugs has fallen disproportionately on [B]lack Americans . . . . Fifty-six percent of drug offenders in state prison nationwide are [B]lack. Blacks are incarcerated on drug charges at dramatically higher rates than whites and drug offenses also account for a much greater proportion of [B]lacks sent to prison than they do for whites.

     Punishment and Prejudice: Racial Disparities in the War on Drugs, Hum. Rts. Watch (May 2000).

172. Id.

173. FBI, supra note 166, at 284 (Where drug law enforcement resources were historically concentrated in low-income, predominantly minority urban areas, drug-offending white people had been disproportionately free from arrest compared to Black people, despite their higher drug use.).

174. Id. (“In 1995, nonwhites accounted for 40 percent of drug arrests compared to 25 percent in 1980.”); Human Rights Watch states as follows:

     For example, Human Rights Watch’s analysis of drug arrests by race in the state of Georgia for the years 1990–1995 revealed that, relative to their share of the population, [B]lacks were arrested for cocaine offenses at seventeen times the rate of whites. In Minnesota, drug arrests of [B]lacks grew 500% during the 1980s, compared with 22% for whites. In North Carolina, between 1984 and 1989, minority arrests for drugs increased 183% compared to a 36% increase in white drug arrests.

     Hum. Rts. Watch, supra note 169, at 1.

175. Human Rights Watch states as follows:

     There were almost five times as many current white marijuana users as [B]lack and four times as many white cocaine users. Almost three times as many whites had ever used crack as [B]lacks. Among those who had used crack at least once in the past year, 462,000 were white and 324,000 were [B]lack . . . . SAMHSA also estimated that in 1998 there were 4,934,000 whites who used marijuana on 51 or more days in the past year, compared to 1,102,000 [B]lacks, and 321,000 whites who had used cocaine on 51 or more days in the past year compared to 171,999 [B]lacks.

     Id. at 2.

176. Id.

177. Id.

178. 21 U.S.C. § 862a.

179. See Hum. Rts. Watch, supra note 169.

180. Id.

181. Id.

182. Id.; Human Rights Watch states as follows:

     Blacks constituted 62.6% of all drug offenders admitted to state prisons in 1996, whereas whites constituted 36.7%. In certain states, the racial disproportion among drug admissions are far worse (Figure 7). In Maryland and Illinois, [B]lacks constituted an astonishing 90% of all drug admissions. In one third of the states reporting to the NCRP, [B]lacks comprise more than 75% of all drug admissions. In all the states, the proportion of drug offenders admitted to state prison greatly exceeds the proportions of the state population that is [B]lack.

     Hum. Rts. Watch, supra note 171.

183. Human Rights Watch states as follows:

     The drug offender admissions rate for [B]lack men ranges from 60 to a breathtaking 1,146 per 100,000 [B]lack men. The white rate, in contrast, begins at 6 and rises no higher than 139 per 100,000 white men . . . . In ten states [B]lack men are sent to state prison on drug charges at rates that are 26 to 57 times greater than those of white men in the same state. In Illinois, for example, the state with the highest rate of [B]lack male drug offender admissions to prison, a [B]lack man is 57 times more likely to be sent to prison on drug charges than a white man.

     Id.

184. Turner, 207 F.3d at 424.

185. Hum. Rts. Watch, supra note 171.

186. Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (holding that facially-neutral legislation violates equal protection if there is evidence that the legislature has “[S]elected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”).

187. Id. at 279 n.25.

188. Neal & Hopkins state as follows:

     Aid to Families with Dependent Children (AFDC), TANF’s predecessor, was originally limited only to white single mothers, who were not expected to work. Black women were largely excluded until the 1960 when a welfare movement led by Black mothers successfully fought for the expansion of assistance. Despite the largest share of AFDC recipients being white, public perception shifted. Bolstered by media reports and opportunistic politicians, taxpayers stopped visualizing AFDC recipients as white single mothers and started envisioning them as Black, or ‘welfare queens,’ a caricature invoked by President Reagan to symbolize the indolence of welfare recipients. Such narratives contributed to the weakening of support for AFDC and led many policymakers to place a great emphasis on ‘personal responsibility.’

     Neal & Hopkins, supra note 12, at 2.

189. Cf. United States v. Then, 56 F.3d 464, 467 (2d Cir. 1995) (Calabresi, J., concurring) (“[W]hat is known today about the effects of crack and cocaine, and about the impact that the crack/cocaine sentencing rules have on minority groups, is significantly different from what was known when the 100-to-1 ratio was adopted. As a result, constitutional arguments that were unavailing in the past may not be foreclosed in the future.”).

190. Hum. Rts. Watch, supra note 169.

191. Id.

192. Id.

193. Heather Hartline-Grafton & Ellen Vollinger, New USDA Report Provides Picture of Who Participates in SNAP, Food Rsch. & Action Ctr., https://frac.org/blog/new-usda-report-provides-picture-of-who-participates-in-snap [https://perma.cc/W6ZK-REVU] (last visited Sep. 5, 2025).

194. Turner, 207 F.3d at 425.

195. See Long, supra Part II.

196. Neal & Hopkins, supra note 12, at 12.

197. CCRC Staff, Collateral Consequences of Criminal Conviction and Restoration of Rights: News, Commentary, and Tools, Collateral Consequences Res. Ctr. (Dec. 6, 2023), https://ccresourcecenter.org/2023/12/06/accessing-snap-and-tanf-benefits-after-a-drug-conviction-a-survey-of-state-laws/ [https://perma.cc/4ABD-HW6X].

198. See id. (“North Carolina is the only state that limits offense eligibility and requires a waiting period for access to both SNAP and TANF.”) (alteration in original).

199. Id.

200. Id.

201. Id.

202. Neal & Hopkins, supra note 12, at 13.

203. Id.

204. Turner, 207 F.3d at 424.

205. Drug Testing Welfare Recipients: Recent Proposals and Continuing Controversies, Assistant Sec’y for Plan. & Evaluation (Oct. 11, 2011), https://aspe.hhs.gov/reports/drug-testing-welfare-recipients-recent-proposals-continuing-controversies-0 [https://perma.cc/PFG8-K95W].

206. Random Drug Testing of TANF Recipients is Costly, Ineffective and Hurts Families, Ctr. for L. & Soc.Pol’y 1, 3 https://www.clasp.org/sites/default/files/publications/2017/04/520.pdf [https://perma.cc/8R5W-PMNK] (last updated Oct. 2013).

207. Id. at 2; see Neal & Hopkins, supra note 12, at 13 (“[I]n Wisconsin, for example, only 0.3% of welfare recipients tested positive.”).

208. Harold A. Pollack & Peter Reuter, Welfare Receipt and Substance-Abuse Treatment Among Low-Income Mothers: The Impact of Welfare Reform, Am. J. of Pub. Health (Oct. 10, 2011), https://doi.org/10.2105/ajph.2004.061762 [https://perma.cc/67AT-FJ9U] (Usually, drug treatment facilities use SNAP benefits to subsidize the cost of treatment.).

209. Id.

210. Neal & Hopkins, supra note 12, at 13.

211. Id.

212. Id.

213. Id.

214. Id.

215. Id.

216. Id.

217. Newark & Sugie, supra note 70.

218. See id. (“Even in states with modified bans, the barriers to access can be so high that they keep people from applying for and receiving SNAP even when doing so is technically possible.”).

219. See id. (“In a recent study, we find that accessible food stamps programs can serve as a crime control measure, preventing recidivism among those with prior convictions . . . . Our findings show how these restrictions appeared to fuel further criminal offenses and increased costs for the state.”).

220. Child & Clark, supra note 10, at 21.

221. Paresky states as follows:

     For example, in 2001, the Massachusetts state legislature determined that an individual’s felony drug conviction should not be determinative of their food stamp eligibility, and thus the state legislature removed the regulation codifying the PRWORA drug felony provision. Other states must follow suit to eradicate the disparate effects of the PRWORA drug felony provision, particularly within impoverished and minority groups.

     Paresky, supra note 20, at 1691.

222. RESTORE ACT INTRODUCED IN CONGRESS TO LIFT SNAP FELONY DRUG BAN, Drug Pol’y All. (May 18, 2023), https://drugpolicy.org/news/restore-act-introduced-congress-lift-snap-felony-drug-ban/#:~:text=It also disproportionately harms women,and emergency help for overdoses [https://perma.cc/GZK6-RPYS].

223. The Drug Alliance Policy further explains the RESTORE Act:

     [I]ntroduced in the Senate by Sen. Cory Booker (D-NJ) and Sen. Raphael Warnock (D-GA), and in the House by Rep. Steve Cohen (D-TN) with Rep. John Rutherford (R-FL) as a cosponsor. Initial Senate co-sponsors include Sen. Alex Padilla (D-CA), Sen. John Fetterman (D-PA), Sen. Bernie Sanders (I-VT), Elizabeth Warren (D-MA) and Sen. Tina Smith (D-MN).

     See id.

224. Id.

225. RESTORE Act of 2023, H.R. 3479, 118th Cong. (2023).

226. Paresky, supra note 20, at 1693 n.248.

227. Id. at 1692 n.246.

228. Id. at 1693 n.249–50.

229. H.R. 3479.

230. See Prison Reform: Reducing Recidivism by Strengthening the Federal Bureau of Prisons, DOJ, https://www.justice.gov/archives/prison-reform [https://perma.cc/W2EM-HB2H] (last visited Mar. 30, 2025).

231. TLD Staff, What Rights Do Convicted Felons Lose?, The L. Dictionary (Nov. 14, 2024), https://thelawdictionary.org/article/what-rights-do-convicted-felons-lose/ [https://perma.cc/27GN-6URY].

232. Paresky, supra note 20, at 1682.

233. Id.

234. The Second Chance Act, The Council of State Gov’t, https://csgjusticecenter.org/wp-content/uploads/2020/02/July-2018_SCA_factsheet.pdf [https://perma.cc/3KHK-YFSX]; Federal Interagency Council on Crime Prevention and Improving Reentry, 83 Fed. Reg. 10771 (Mar. 7, 2018).

235. Neal & Hopkins, supra note 12, at 14.

236. Id.

237. Art Pedroza, Proposal to pre-enroll O.C. inmates in nutrition program prior to release granted Federal approval, New Santa Ana (Feb. 6, 2021), https://newsantaana.com/proposal-to-pre-enroll-o-c-inmates-in-mutrition-program-prior-to-release-granted-federal-approval/ [https://perma.cc/5438-QX8V].

238. Neal and Hopkins state as follows:

     In 2018, Congress passed a bipartisan farm bill, which increased funding to SNAP and directed the U.S. Department of Agriculture (USDA) to undertake a data-driven study to ensure benefits reflected the current cost of food. As a result, the maximum SNAP benefit increased by 21%, lifting 2.4 million SNAP participants above the poverty line.

     Neal & Hopkins, supra note 12, at 14.

239. H.R. Rep. No. R47659 (2024).

240. Neal & Hopkins, supra note 12, at 16.

241. Id.

242. Archer & Williams, supra note 65, at 528 (explaining that a state-specific litigation strategy, through legislative and public education efforts, can dismantle reentry barriers by winning in court, but even if unsuccessful, the litigation will exert political pressure).

243. Cornell Law School explains:

     Circuit split arises when two or more circuits in the U.S. Court of Appeals reach different decisions on the same legal issue. This disagreement means federal law is applied differently in different parts of the country, so that similarly situated litigants receive different treatment across jurisdictions. The existence of circuit split is one of the reasons for the U.S. Supreme Court to grant certiorari.

     Circuit split, Cornell L. Sch. Legal Info. Inst., https://www.law.cornell.edu/wex/circuit_split#:~:text=Circuit split arises when two,receive different treatment across jurisdictions [https://perma.cc/UV2M-H8H4] (last updated July 2022).

244. Id.

245. Archer & Williams, supra note 65, at 539.

246. Id.

247. Berliner, supra note 113, at 375.

248. Steve Trevino, The War on Drugs: More Harm than Good?, More Than Rehab (Nov. 7, 2023), https://morethanrehab.com/2023/11/07/the-war-on-drugs-more-harm-than-good/ [https://perma.cc/HP9C-X45L].