Drug Testing and Crime-Related Restrictions in TANF, SNAP, and Housing Assistance
Released: 2016-11-28T00:00:00

Introduction

This report describes and compares the drug- and crime-related policy restrictions contained in selected federal programs that provide assistance to low-income individuals and families: the Temporary Assistance for Needy Families (TANF) block grant, the Supplemental Nutrition Assistance Program (SNAP, formerly Food Stamps), and the three primary federal housing assistance programs (the public housing program, the Section 8 Housing Choice Voucher program, and the project-based Section 8 rental assistance program). These programs were chosen because they serve many of the same families. However, the programs also differ. They have different drug- and other crime-related restrictions, with varying levels of federal administration and discretion for state or local administrators.

The drug- and crime-related restrictions in TANF, SNAP, and the housing assistance programs were developed at different times in different laws, but it appears they are intended to serve similar purposes. To some extent, they are intended to deter people from engaging in drug-related and other criminal activity. They may also be intended to punish individuals for engaging in undesirable behavior. Further, when resources are limited, these policies may be intended to direct assistance to other households who are deemed more worthy of assistance. Additionally, particularly for housing assistance programs, drug- and crime-related restrictions may be intended to protect vulnerable communities from the consequences of drug-related and other criminal activity.

The report begins by providing a brief overview of the history and evolution of policies establishing drug- and crime-related restrictions in federal assistance programs. It then briefly describes TANF, SNAP, and the three housing programs, and then discusses the specific policies in those programs related to drug testing and drug-related and other criminal activity. It concludes by comparing and contrasting those policies and highlighting considerations for policymakers.

Evolution of Federal Policies

Since governments began providing assistance to the poor, policymakers have been concerned with whether those receiving benefits were worthy of assistance. "Worthiness" has been defined both by judgments of economic need—are families or individuals truly unable to meet their needs without assistance?—and judgments of character, often as evidenced by certain behaviors. When the federal cash assistance program began in the 1930s, states were permitted to consider the "moral character" of an applicant as a factor in determining eligibility. This led to states adopting policies that reflected dominant societal expectations at the time about behavior and family structure. Examples of such policies included so-called "suitable home" rules, giving state or local administrators wide discretion to disqualify applicants for assistance, and "man in the house" rules, penalizing unmarried mothers for cohabiting with men. These moral character policies were the subject of controversy and legal challenge; critics condemned such policies, arguing that, among other concerns, they had racial overtones and disproportionately affected black families, particularly black mothers. States that had adopted these policies argued that they discouraged immoral behavior. By the late 1960s and early 1970s, many of the policies related to family structure and behavior were struck down by federal administrative rulings and the courts.

Around the same time that morality tests based on family structure were being eliminated in AFDC, worries about rates of crime and drug use were increasing across the nation. Between 1960 and 1980, violent crime rates more than tripled, and rates of drug use also increased significantly. After first declaring a "War on Poverty," the Johnson Administration formed the Commission on Law Enforcement and Administration of Justice and declared a "War on Crime." Several years later, the Nixon Administration declared drug abuse "public enemy number one in the United States." The federal "War on Drugs" was intensified by the Reagan Administration, particularly in response to the "epidemic" of crack-cocaine and its associated violence. During this period, policymakers grappled with how best to address concerns about crime and drug use, their causes, and their disproportionate effects in poor communities, particularly predominantly African American urban communities. Policymakers also struggled with the challenge of how to distinguish between drug use as a crime and drug addiction as a public health problem.

Specific drug-related sanctions were added to certain federal assistance programs for the first time by the Anti-Drug Abuse Act of 1988 ( P.L. 100-690 ). The act made it the policy of the U.S. government to create a drug-free America and included both penalties for drug offenders as well as support for drug abuse education and prevention. So-called "user accountability" provisions denied certain federal benefits—namely all grants, loans (including student loans), licenses, and contracts—to persons convicted of certain drug-related crimes. Social Security, welfare programs (including AFDC [now TANF], Food Stamps [since renamed SNAP ], and housing assistance), and veterans' benefits were all exempted from these user accountability provisions in the final law, although earlier versions of the provision had included housing assistance and veterans' benefits in the definition of federal benefits. During debate on these user accountability provisions, supporters argued that they would serve as a deterrent to drug use, while detractors criticized these provisions as "post-conviction penalties" to further punish drug offenders.

The act included congressional findings expressing specific concern about the role drugs and drug-related crimes were playing in public housing communities. While the act excluded housing assistance programs from the federal user accountability bans, it did include provisions permitting local administrators to adopt policies restricting persons involved with drugs or drug-related criminal activity from receiving federal public housing assistance and allowing for drug-related and other criminal activity to serve as grounds for termination of tenancy.

Less than a decade later, Congress passed and President Clinton signed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA; P.L. 104-193 ). PRWORA ended almost four decades of debate about how to reform the nation's cash welfare program. During the welfare reform debates of the 1980s and 1990s leading up to PRWORA, welfare receipt was often mentioned together with crime and drug addiction as problems afflicting the urban "underclass."

While the focus of PRWORA was to fundamentally restructure cash assistance to make it time-limited and work-conditioned, it also included provisions to address the associated social ills of crime and drugs. The law made persons convicted of drug felonies subject to a lifetime ban on receiving assistance under both the newly created TANF program as well as the federal Food Stamp program (now SNAP). This provision was added during Senate floor consideration of the bill and was the subject of only limited debate, with four Senators speaking briefly on the topic. The sponsor, Senator Phil Gramm, argued "if we are serious about our drug laws, we ought not give people welfare benefits who are violating the Nation's drug laws." Opponents raised concerns about the implications for people who are addicted and their children. The act also authorized states to drug-test TANF recipients and to sanction recipients who test positive for drug use. It also added prohibitions on assisting "fleeing felons" to all federal assistance programs, including TANF, SNAP, and housing assistance.

Just prior to PRWORA, Congress passed a housing law ( P.L. 104-120 ) that significantly expanded crime- and drug-related restrictions in assisted housing programs. The primary focus of the law was to extend the expiring authorizations for a number of housing programs, but it also included a section related to the "safety and security of public and assisted housing." Specifically, the section made people who had been evicted from assisted housing for drug-related activities ineligible for assistance for three years and permitted local administrators to restrict assistance to families based on demonstrated patterns of drug use or alcohol abuse. This law was enacted following President Clinton's 1996 State of the Union address in which he claimed that the nation faced a great challenge to take its streets back from crime, drugs, and gangs. In reference to assisted housing, he stated that "criminal gang members and drug dealers are destroying the lives of decent tenants."

Just two years after enactment of PRWORA and P.L. 104-120 , Congress passed the Quality Housing and Work Opportunity Reconciliation Act of 1998 (QHWRA; P.L. 105-276 ), a major assisted housing reform law. The law modified and expanded the crime- and drug-related provisions previously enacted in 1988 and 1996. QHWRA also included several provisions to restrict access to housing assistance for persons involved with several specific crimes, namely, production of methamphetamines and sex offenses. In the case of the methamphetamine restriction, the provision was added during floor debate in the Senate, and the discussion of the amendment by its sponsors recounted the dangers associated with exploding methamphetamine production labs, citing several anecdotes related to such labs in assisted housing. The amendment related to sex offenders was also offered as a House floor amendment. The sponsor spoke of a specific anecdote in which a child living in public housing had been assaulted by a person previously convicted of a sex offense, as well as the dangers sex offenders may pose to communities more generally.

Overview of Selected Federal Assistance Programs

The following section of the report briefly describes TANF, SNAP, and major housing assistance programs. The next section of the report specifically discusses the drug- and crime-related provisions of these programs.

TANF

The Temporary Assistance for Needy Families (TANF) block grant provides grants to states, Indian tribes, and territories for a wide range of benefits, services, and activities that address economic disadvantage. TANF is best known for funding basic assistance, state welfare programs for low-income families with children. However, in FY2015, basic assistance represented only 25% of TANF funds. TANF funds a wide range of activities that seek both to ameliorate the effects of and address the root causes of child poverty. In addition to state block grants, TANF includes competitive grants to fund healthy marriage and responsible fatherhood initiatives.

The TANF cash assistance program provides aid to very poor families with children. Many of these families are headed by a single mother, though TANF also provides aid to families of children cared for by non-parent relatives (e.g., grandparents, aunts, and uncles). States determine the rules that govern financial eligibility for TANF cash assistance. States also determine the rules for how much a family receives in assistance (there is no federal eligibility floor). In July 2015, the maximum benefit for a family of three was $923 per month in Alaska, or 44% of poverty-level income. New York had the highest benefits in the lower 48 contiguous states and the District of Columbia, paying $789 per month (47% of poverty guidelines). Mississippi, the state with the lowest benefit levels, paid a family of three a maximum of $170 per month, 10% of poverty guidelines. The maximum benefit is generally the amount paid for a family with no other income who is complying with program requirements. Federal law limits cash assistance to a family with an adult to 60 months (five years of benefits). Additionally, states are subject to work participation standards and are required to have a specified percentage of their cash assistance families engaged in work or job preparation activities. In June 2016, TANF cash assistance was received by 1.5 million families, which had 1.0 million recipient adults and 2.7 million recipient children.

Almost all federal policy for TANF relates to its cash assistance programs. However, TANF also funds a wide range of other benefits and services, including help to the working poor (child care, refundable tax credits), subsidized jobs, pre-kindergarten early childhood education, and benefits and services for families at risk of having their children removed from the home because of abuse and neglect. States have considerable discretion in designing these programs, which are not subject to time limits, work requirements, or the drug testing and crime-related restrictions discussed in this report. There are no caseload figures to describe the number of families receiving TANF benefits other than cash assistance.

The TANF block grant is administered at the federal level by the Department of Health and Human Services (HHS). State or local welfare offices administer the cash assistance funded through TANF. TANF benefits or services other than cash assistance are administered by a range of state and local governmental entities as well as local (governmental, nonprofit, or for-profit) service providers. The federal government appropriated $17.3 billion for the block grant in FY2016, and states were required to contribute, in total, at least another $10.4 billion that year toward TANF or TANF-related programs.

SNAP

SNAP (formerly Food Stamps) provides benefits (through the use of electronic benefit transfer cards) that supplement low-income recipients' food purchasing power. Benefits vary by household size, income, and expenses (like shelter and medical costs) and averaged approximately $127 per person per month for FY2015. All 50 states, the District of Columbia, Guam, and the Virgin Islands participate in SNAP. In FY2015, SNAP had average monthly participation of approximately 45.8 million individuals in 22.5 million households.

In general, eligible households must meet a gross income test (monthly cash income below 130% of the federal poverty guidelines), a net income test (monthly cash income subtracting SNAP deductible expenses at or below 100% of the federal poverty guidelines), and have liquid assets under $2,000. However, households with elderly or disabled members do not have to meet the gross income test and may have greater assets (under $3,250). Recipients of TANF cash assistance, Supplemental Security Income (SSI), or state-funded General Assistance are categorically eligible for SNAP. The state option of broad-based categorical eligibility also allows for the modification of some SNAP eligibility rules and has resulted in the vast majority of states not utilizing an asset test for the SNAP program because states deem an applicant eligible based on a TANF-funded benefit.

SNAP is administered by the U.S. Department of Agriculture's Food and Nutrition Service (USDA-FNS). The program is co-administered by state agencies, usually the same human services entities that administer the states' TANF cash assistance programs. SNAP law includes many state options and opportunities to seek waivers, such that for some aspects of the law there can be considerable state-to-state variation. This is particularly the case for some of the crime-related policies discussed in this report.

Virtually all of the funding for SNAP is mandatory, although it is still subject to the congressional appropriations process as an "appropriated mandatory." SNAP benefits are 100% federally funded, and the federal government shares state administrative costs 50/50. In FY2015, USDA-FNS obligated approximately $74.5 billion ($69.6 billion for participant benefits) for SNAP.

Housing Assistance

The federal government funds three primary direct housing assistance programs for low-income individuals and families: the public housing program, the Section 8 Housing Choice Voucher program, and the Section 8 project-based rental assistance program. Combined, these programs serve more than 4 million low-income households, including households made up of persons who are elderly and persons who have disabilities, families with and without children, and single adults. All three programs are 100% federally funded, and due to resource constraints, combined serve roughly only one out of every three or four eligible families. All three programs offer housing to low-income families that costs no more than 30% of family income; however, the form the assistance takes varies across the three programs. Further, while all three programs are administered at the federal level by the Department of Housing and Urban Development (HUD), the programs vary in their local administration.

In the case of the public housing program, assistance is provided in the form of low-rent housing units that are subsidized by the federal government but owned and administered by local, quasi-governmental public housing authorities (PHAs). In the case of the Section 8 voucher program, assistance is provided in the form of rental vouchers that families can use to secure the housing of their choice in the private market. Like in the public housing program, vouchers are federally funded but administered at the local level by PHAs. In the case of the Section 8 project-based rental assistance program, assistance is provided in the form of low-rent housing units subsidized by the federal government but owned and administered by private property owners (both for-profit and nonprofit).

In the case of all three programs, federal policies govern basic income eligibility and the method for determining tenant rent and subsidy level. However, owners and PHAs have discretion to set their own policies related to screening tenants for suitability for entrance to the program and for tenancy in a given unit. In the case of public housing and the Section 8 voucher program, suitability for admittance to the program is determined by the PHAs that administer the program and their discretionary screening policies are generally contained in administrative plans developed by the PHAs. After families have been screened by PHAs for suitability for the programs, landlords can further screen tenants for suitability for tenancy in their units. In the case of the voucher program, private landlords can screen tenants wishing to lease from them using any criteria they wish. In the case of the public housing program, since PHAs are the landlords, they can choose to do additional screening for suitability for specific public housing developments. In the case of the Section 8 project-based rental assistance program, since the private property owner is both the program administrator and the landlord, s/he screens tenants for both suitability for the program and suitability for tenancy.

In FY2015, the three housing assistance programs combined received over $35.5 billion in discretionary appropriations.

Drug Testing and Crime-Related Restrictions

This section of the report describes specific federal TANF, SNAP, and housing assistance policies on drug testing and pertaining to drug-related and other criminal activity engaged in by applicants and recipients. In some cases, the federal policies are prescriptive; in other cases, they leave discretion to the state or local administering entity.

TANF

As mentioned above, all federal drug- and crime-related restrictions in TANF are for TANF "assistance"—essentially, the monthly ongoing cash benefit provided to needy families with children. These restrictions do not apply to the broader set of benefits and services that are funded through the TANF block grant. States have broad latitude in determining for whom and how these non-cash benefits and services are structured, and though not required by federal law, they may include restrictions related to drugs and crime.

TANF Drug Testing36

The 1996 welfare reform law gave states the option of requiring drug tests for TANF recipients and penalizing those who fail such tests. Many states have adopted policies to require such drug tests. However, there have been two high-profile court challenges to state policies to conduct drug tests on all applicants and recipients of TANF, whether or not there was suspicion to believe they were using illegal drugs, as a violation of constitutional protections against unreasonable searches. One was in the early post-welfare reform case in Michigan, and the other was a more recent case in Florida. As is discussed in the " Legal Issues Involving Drug Testing Policies: Recent Developments " section below, the TANF beneficiaries received favorable rulings in both cases.

Table A-1 provides a listing of state policies for drug testing TANF applicants or recipients. Information on these policies is not available from TANF state plans or in states' TANF reports to the federal government. Therefore, the table's information is based on a database search of state laws. The search, conducted in October 2016, identified TANF drug testing policies in 25 states. These 25 states include Florida's program, which was not implemented because a federal court of appeals ruled that it was unconstitutional.

State policies (other than Florida) generally require actual testing of only certain applicants and recipients. Some policies require testing of only those who have had past drug convictions. Other states first "screen" for substance abuse, and then conduct the actual chemical drug test only when that screening leads the state to have reasonable suspicion of drug use. A positive drug test generally makes that individual ineligible for TANF assistance. However, some states allow recipients to either retain eligibility or regain eligibility by participating in, or completing, a substance abuse treatment program.

TANF Drug Felon Ban

The 1996 welfare law bars states from providing TANF assistance to persons convicted of a felony for possession, use, or distribution of illegal drugs, but it also gives states the ability to opt-out of the ban or modify the period for which the ban applies. States can opt-out or modify the ban only through enacting a law, so it requires an affirmative act by the state's legislature and governor. (The statutory requirement, and the ability of states to opt-out of it, also applies to SNAP benefits; see " SNAP " later in this report.)

Definitive information on state policies regarding the drug felon ban is not available. As with drug testing, TANF state plans or program reports do not require that states indicate whether they have retained the full ban, modified it, or lifted it entirely. Table 1 shows the results of a search of the LexisNexis database (corroborated with some additional information) on state legislation to classify state TANF policies regarding the drug felon ban. According to this search, the majority of states have either opted-out of or modified the drug felon ban in their TANF programs. As of August 2016, 27 states modified the lifetime ban. This includes states that shortened the ban or allowed eligibility for some ex-offenders or established conditions for ex-offenders to be eligible for assistance (e.g., submit to drug testing or treatment). In that month, 13 states and the District of Columbia had opted out of the ban on drug felons entirely, and 10 states maintained the lifetime disqualification for those convicted of drug felonies.

The ban on drug felons in TANF applies only to TANF "assistance," which is essentially ongoing cash assistance benefits. It does not apply to other TANF benefits and services such as child care for working families, refundable tax credits, or subsidized jobs.

Fleeing Felons and Other Crime-Related Restrictions in TANF

The 1996 welfare law bars "fugitive" or "fleeing" felons from assistance under TANF and other specified public assistance. That is, a person fleeing to avoid prosecution, custody, or confinement after conviction for a felony or violating a condition of probation or parole is ineligible for assistance. HHS regulations are generally silent on how states are to implement and enforce this ban under the TANF program. However, USDA has finalized detailed regulations for SNAP, a program administered at the state level, usually in the same office as TANF cash assistance. States sometimes adopt SNAP procedures for their TANF cash assistance programs as well, to ease administrative burdens. (See "Fleeing Felon" Ban in SNAP " later in this report.)

In addition to the drug felon ban and fleeing felon ban, TANF law includes a 10-year prohibition on assisting those who have committed welfare fraud by applying for benefits in more than one state. The fraud could involve applying in multiple states for TANF, SNAP, or Supplemental Security Income (SSI). The 10-year prohibition begins on the date the individual was convicted in a federal or state court for such a crime.

Applicability of Policies in TANF

Generally, TANF provides benefits to families with dependent children. TANF financial eligibility rules and benefit amounts are solely determined by the states. Federal law is silent on these two matters. Most states base TANF cash assistance benefits on family size, with larger families receiving larger benefits (all else being equal).

States have a great deal of flexibility in how to apply drug- and other crime-related restrictions on benefits. The federal drug felon ban, fleeing felon provisions, and welfare fraud provisions apply specifically to individuals, who individually may be barred from participation under these policies.

SNAP

This section discusses SNAP current law with regard to drug testing, drug felony, and fleeing felon policies, as well as the mechanisms by which these policies can affect an entire SNAP household. New additions to this area of SNAP law were contemplated and added in the 2014 farm bill ( P.L. 113-79 ); these additions are discussed in a text box on p. 15.

SNAP Drug Testing

For the most part, USDA does not allow states to use drug testing in determining eligibility for the Supplemental Nutrition Assistance Program. There are two exceptions to this rule; both give states discretion and relate to the interrelationship of SNAP with TANF and the law that created TANF (PRWORA, P.L. 104-193 ).

As described earlier, Section 115 of PRWORA permanently disqualified applicants with a felony drug conviction from participating in TANF or SNAP, while also permitting state legislatures to opt-out or modify the drug felon ban. Some states have chosen to modify the ban by legislating that those convicted of a drug felony may be eligible for SNAP benefits subject to a drug test. As of August 1, 2016, five states—Kansas, Maryland, Minnesota, Missouri, and Wisconsin—use drug testing as part of their modified drug felon ban. A sixth state, Pennsylvania, gives the SNAP agency authority to implement a drug testing program in SNAP, though the agency has not exercised this option (as of August 1, 2016). (The drug felon ban and state options within are discussed further below.)

A SNAP participant may also be disqualified from SNAP based on noncompliance with a drug testing requirement in other programs in states that implement such a requirement. SNAP state agencies may choose to disqualify a SNAP recipient who fails to perform an action required by another means-tested program, such as TANF. For example, a state that disqualifies someone from TANF (or another means-tested program) for not participating in or failing a drug test may also disqualify that individual from SNAP. Federal regulation is clear that this comparable disqualification policy applies only to ongoing SNAP cases and not to new applicants. Therefore, a past TANF disqualification will not, in and of itself, disqualify an applicant to the SNAP program.

SNAP Drug Felon Ban

As noted earlier, although federal SNAP law bars drug felons from participating in the program, a state may opt to serve such felons by waiving or modifying the requirement.

PRWORA prohibited states from providing SNAP (then, Food Stamps) to convicted drug felons unless the state passes legislation to extend benefits to convicted drug felons. As of August 1, 2016, the majority of states have either modified or eliminated the ban on SNAP benefits for convicted drug felons. (See Table 2 .) In addition to some states' addition of a drug test, other state modifications to disqualification include limiting the types of drug felonies, disqualifying those with more than one drug felony, requiring participation in drug treatment, or requiring only a temporary disqualification.

The Federal Interagency Reentry Council, a group that includes USDA, published a fact sheet outlining the ways in which SNAP remains open and accessible to formerly incarcerated individuals in general (not specifically drug felons). They emphasize several ways that the SNAP program remains accessible to those who may be in transition due to a recent incarceration. For instance, an applicant may still receive SNAP benefits if the applicant does not have a mailing address and may apply for SNAP without a valid state-issued identification card.

"Fleeing Felon" Ban in SNAP

As discussed earlier in this report, PRWORA included provisions that prohibit so-called "fugitive felons" from receiving certain public assistance benefits, including SNAP benefits. Specifically, persons fleeing to avoid prosecution, custody, or confinement after conviction for a felony or violating a condition of probation or parole are ineligible for SNAP benefits. In 2008, the farm bill ( P.L. 110-246 , §4112) required that USDA define related terms and "ensure that State agencies use consistent procedures." Following the 2008 law, USDA-FNS published a proposed rule on August 19, 2011, and then published a final rule on September 10, 2015.

The final rule, codified at 7 C.F.R. 273.11(n), gives state SNAP agencies two options for implementing the fleeing felon ban; states are to specify in their state plans of operation which option they will use.

One option that states may choose is a four-part test to establish fleeing felon status. Under this option, the state agency must verify that (as summarized in the preamble of the final rule) (1) there is an outstanding felony warrant for the individual; (2) the individual is aware of, or should reasonably have been able to expect that, a warrant has or would have been issued; (3) the individual has taken some action to avoid being arrested or jailed; (4) a law enforcement agency must be actively seeking the individual.

A second option for states is to establish that an individual is a "fleeing felon" when a federal, state or local law enforcement officer presents to the state agency an outstanding felony arrest warrant for Escape, Flight to Avoid (prosecution, confinement, etc.), or Flight-Escape, as coded in the National Crime Information Center (NCIC).

Applicability of Policies in SNAP

Many factors are considered in calculating the size of the monthly SNAP benefit that a household receives, but two of the main considerations are the size of the household (the larger the household, the larger the monthly benefit) and the household's income (the higher the income, the smaller the monthly benefit) . For these reasons, drug testing and criminal justice disqualifications can affect even those household members that have not been disqualified. When it comes to disqualifying a drug-related felon or imposing other PRWORA-related disqualifications, to what extent that individual, the individual's assets, and the individual's income are included in the household's eligibility determination and benefit calculation are significant for the entire household's benefits.

Generally, everyone who lives together and purchases and prepares meals together is considered a SNAP household. Some individuals who live together, such as spouses, are included in the same household, even if they purchase and prepare meals separately. If a member of the household is elderly or disabled, that member (and the member's spouse) may be able to qualify as a separate household if they have income below 165% of the federal poverty guidelines.

As certain household members may be ineligible for SNAP (for example, certain legal immigrants), whether and the extent to which the income of such ineligible members is included in the calculation for SNAP benefits depends on the member's reason for ineligibility. In the case of disqualified drug-related felons, per current USDA-FNS regulations, the individual is excluded from the household size but the household (if the drug-related felon is part of a larger household) remains eligible for benefits. As an illustration, if an apartment houses a mother subject to the drug-felon ban, an eligible father, and an eligible toddler, the household would be considered to have two members for purposes of SNAP.

SNAP law defines income as "income from whatever source" but also explicitly excludes dozens of income sources. USDA-FNS regulations, in response to comments at the time of final promulgation, require state agencies to count all of the disqualified individual's assets and only a pro rata share (as opposed to all) of the disqualified individual's income . This applies to individuals disqualified due to a modified drug-related felon ban as well as those disqualified due to comparable disqualification. Recalling the example household above, if the disqualified mother is the only household member with an income, two-thirds of her income will be used to determine eligibility and benefit level for the household of two (father and toddler).

As an additional caveat, USDA-FNS regulations give states the option, within certain parameters, to align SNAP income requirements with state TANF or Medicaid policy. According to the most recent SNAP State Options report, as of October 1, 2015, 38 states have opted for this alignment (either assets, income, or both). It is possible that TANF's or Medicaid's policies on the calculation of income and assets thereby have an impact on how a disqualified individual's assets or income are treated.

Housing Assistance

Drug Testing in Housing Assistance

There are no federal policies explicitly permitting or prohibiting administrators of federal housing assistance programs from drug testing applicants or recipients. However, as discussed later in this report, such policies could lead to legal challenges in the absence of specific authorization. Anecdotally, it appears several PHAs have adopted, or considered adopting, drug testing policies in their public housing programs.

The Norwalk Housing Authority in Connecticut has a policy of suspicionless drug testing for all applicants for public housing. Those who test positive for illicit drugs are prohibited from living in public housing. The American Civil Liberties Union (ACLU) of Connecticut has contended that the policy is unconstitutional, and has stated it is seeking a client on whose behalf they can file a constitutional challenge. A proposal by the Chicago Housing Authority to apply suspicionless drug testing to all public housing residents was dropped following opposition, including a letter from the Illinois chapter of the American Civil Liberties Union opposing the proposed policy. Similarly, the Flint (MI) Housing Commission was reportedly considering adopting a policy of drug testing all public housing residents in 2010. In response, the Michigan chapter of the American Civil Liberties Union sent a letter to the commission urging them to reconsider adopting this policy and indicating that its adoption may lead to expensive and protracted litigation. It does not appear that a drug testing policy has been adopted by the Flint Housing Authority.

There are no federal laws explicitly prohibiting private property owners from drug testing potential tenants or making drug testing a requirement of a lease for tenancy. This is particularly relevant for the Section 8 voucher and Section 8 project-based rental assistance programs, which involve leases between private property owners and families. Anecdotally, it appears some private property owners have adopted drug testing policies.

Fourth Amendment protections, as discussed in " Legal Issues Involving Drug Testing Policies: Recent Developments " section of this report, do not extend to purely private action. However, Fourth Amendment protections might be triggered if there is sufficient governmental involvement in a private landlord's drug testing program. Certain state laws also might provide individuals protections from drug testing that go beyond those afforded under the Fourth Amendment, which could further constrain the ability of a landlord to test tenants for illicit drug use. Additionally, it is possible that a drug testing program implemented by private landlords could implicate other laws, such as the federal Fair Housing Act (42 U.S.C. §§3601, et seq .) or other state or federal antidiscrimination laws.

In the case of some mixed-income public housing developments, where the properties are often managed by private entities in partnership with local PHAs, it appears that suspicionless drug testing policies have been adopted in some cases. Several of the Chicago Housing Authorities' redeveloped mixed-income public housing communities have suspicionless drug testing policies in place. These policies have also proved controversial, and the ACLU of Illinois filed a lawsuit challenging them in Chicago. In that case, a federal district court denied the plaintiffs' request for a preliminary injunction (to halt the drug testing), in part because "the drug-testing policy was private rather than state action and therefore beyond the reach of the Fourth Amendment." The U.S. Court of Appeals for the Seventh Circuit affirmed the district court's decision.

Drug- and Other Crime-Related Restrictions in Housing Assistance Programs

The federal policies governing the treatment of drug-related and other criminal activity among applicants for and recipients of federally assisted housing are complicated. They are governed by several different laws, enacted at different points of time, with different levels of specificity and discretion. For example, federal policies mandate that PHAs deny admission to the programs or terminate assistance under the programs in some circumstances, but leave discretion to the PHAs and private property owners who administer the programs in others. Some of the federal policies apply only to eligibility for initial assistance or initial tenancy, some apply only to eligibility for ongoing assistance or termination of tenancy (eviction), and some apply to both. Finally, in many cases, the federal policies differ, sometimes significantly and sometimes slightly, across the three programs.

In addition to federal policies, PHAs and property owners may adopt their own optional criteria to screen applicants for suitability and set their own rules governing grounds for termination of assistance, as discussed earlier in this report. In 2011 and 2012, then-HUD Secretary Shaun Donovan sent a letter to PHAs and a letter to property owners reminding them of the discretion they have to consider individuals' circumstances and take them into account when making admissions and termination decisions and encouraging them to allow ex-offenders to rejoin their families, when appropriate. In 2015, HUD issued additional formal guidance to PHAs and owners, again reminding them of their discretion and providing best practices and peer examples of crime-related policies.

Applicants

PHAs and property owners across all three programs—public housing, Section 8 voucher, and project-based Section 8—are required under federal law to deny admission to the programs to persons subject to lifetime registration on a sex offender registry under a state program.

In the case of the public housing and Section 8 voucher programs, PHAs are required under federal law to deny admission to the programs to persons convicted of producing methamphetamines on the premises of federally assisted housing. This mandatory federal prohibition does not apply to the project-based Section 8 program.

PHAs and property owners across all three housing assistance programs are required under federal law to establish policies that deny admission to the programs to households that include tenants

who are determined by the administrator to be currently engaging in illegal use of a drug; whose illegal use of a drug or pattern of illegal use of a drug is determined by the administrator, based on reasonable cause, to interfere with the health, safety, or right to peaceful enjoyment of the premises by other residents; whose abuse of alcohol or pattern of alcohol abuse is determined by the administrator, based on reasonable cause, to interfere with the health, safety, or right to peaceful enjoyment of the premises by other residents; or who were evicted from federally assisted housing within the last three years for drug-related criminal activity, unless the tenant has completed a drug rehabilitation program or the circumstances leading to the eviction no longer exist (i.e., the offending tenant is no longer a member of the household).

In the last three circumstances, owners and PHAs may take into account whether or not the tenant has completed, or is participating in, substance abuse treatment. Unlike the prohibitions related to persons convicted of producing methamphetamines and persons subject to lifetime registration on a sex-offender registry, each of the mandatory grounds for denial of admission in the bulleted list above leave some discretion in implementation to the administering entity.

In addition to the mandatory denials of admission to the programs already described, federal law explicitly lists other categories of criminal activity that may be grounds for denial of admission. For all three programs, administrators may deny admission to households if a member is engaged in or has, during a reasonable period of time prior to admission, been engaged in violent or drug-related criminal activity.

As noted earlier, in addition to these federal policies, PHAs and owners are permitted to adopt their own discretionary screening criteria to determine whether households are suitable for tenancy. For example, a PHA could adopt screening criteria that make persons convicted of felonies ineligible for assistance. Any screening criteria adopted by a PHA or owner must be in compliance with federal fair housing and civil rights laws, as well as state and local nondiscrimination laws, and must be supported by sufficient evidence.

Recipients

The laws governing both the public housing and Section 8 voucher programs require that PHAs terminate assistance to tenants convicted of producing methamphetamines on the premises of federally assisted housing. The law does not extend this mandatory requirement to the Section 8 project-based rental assistance program. Federal law does not require PHAs to terminate assistance to persons subject to lifetime registration on a sex offender registry; however, HUD has issued guidance "strongly encouraging" PHAs and property owners to adopt such policies.

PHAs and property owners across all three programs—public housing, Section 8 vouchers, and project-based Section 8—are required under federal law to adopt policies that allow for the termination of assistance to households including tenants

who are determined by the administrator to be currently engaging in illegal use of a drug; whose illegal use of a drug or pattern of illegal use of a drug is determined by the administrator to interfere with the health, safety, or right to peaceful enjoyment of the premises by other residents; or whose abuse of alcohol or pattern of alcohol abuse is determined by the administrator to interfere with the health, safety, or right to peaceful enjoyment of the premises by other residents.

In the latter two cases, owners and PHAs may take into account whether or not the tenant has completed rehabilitation.

A separate section of the governing statute requires that certain criminal activities serve as cause for termination of assistance; however, these rules vary by program. In the case of public housing, any criminal activity that threatens the health, safety, or right to peaceful enjoyment of other tenants, or any drug-related criminal activity on or off the premises, engaged in by a tenant, member of the tenant's household, or guest or other person under the tenant's control is cause for termination of tenancy.

In the case of the project-based Section 8 program, any criminal activity that threatens the health, safety, or right to peaceful enjoyment of other residents in the immediate vicinity or any drug-related criminal activity on or near the premises engaged in by a tenant, member of the tenant's household, or guest or other person under the tenant's control is cause for termination of tenancy.

In the case of the Section 8 voucher program, any criminal activity that threatens the health, safety, or right to peaceful enjoyment of other residents in the immediate vicinity or any drug-related or violent criminal activity on or near the premises engaged in by a tenant, member of the tenant's household, or guest or other person under the tenant's control is cause for termination of tenancy.

In all of these cases in which federal law requires the adoption of policies that allow for or make cause for termination of tenancy, the law does not go so far as to require the termination of tenancy (except in the case of production of methamphetamines on federally assisted property). Instead, discretion is left to the program administrators as to whether and when to pursue termination of assistance if these circumstances arise.

Fleeing Felons

As noted earlier, PRWORA restricted access to assistance for fugitive felons. As a result, fugitive felon status is cause for termination of tenancy in the three housing assistance programs. However, while federal law makes fugitive felon and probation or parole violation status cause for immediate termination of assisted housing tenancy, the statute does not actually require termination of tenancy. Current HUD regulations provide no additional guidance on who is to be considered a fugitive felon or what is to be considered a probation or parole violation.

Applicability of Policies

Housing assistance benefits are provided to households. As a result, the background of all the members of the household is taken into account when determining household eligibility and screening households for suitability. Generally, if one member of the household is deemed ineligible or unsuitable, the entire household is deemed ineligible or unsuitable, unless the offending member is removed from the household. When it comes to ongoing assistance and termination of tenancy, the behavior of all members of the household is considered. So, if one member of the household engages in actions that provide grounds for termination of assistance, then the entire household is at risk of having their assistance terminated, at the discretion of the local administrator. Further, in the case of drug-related criminal activity, the household may be evicted based on actions of a guest or other person under the tenant's control, again, at the discretion of the local administrator.

"One Strike and You're Out" and "No-Fault" Evictions

President Clinton, in his 1996 State of the Union speech, stated "I challenge local housing authorities and tenant associations: Criminal gang members and drug dealers are destroying the lives of decent tenants. From now on, the rule for residents who commit crime and peddle drugs should be one strike and you're out." Following President Clinton's address, HUD issued guidance to PHAs regarding how to implement the crime- and drug-related sanctions, including eviction based on the actions of other household members and guests, that had been in the law since the Anti-Drug Abuse Act of 1988, described earlier in this report. The "One Strike" policy included so-called "no-fault" eviction rules, which permit PHAs to evict assisted households because of the actions of a guest and for events that take place outside the assisted unit. These rules proved controversial and were the subject of legal challenge.

In 2002, the Supreme Court upheld HUD's no-fault eviction rules. The case in Department of Housing and Urban Development v. Rucker began when the Oakland Housing Authority sought to evict four tenants: two whose resident grandchildren were caught smoking marijuana in a housing project parking lot, one whose daughter was found with cocaine three blocks from the apartment, and a disabled 75-year-old man whose caretaker was found with cocaine in his apartment. The housing authority did not claim that the elder tenants knew about, facilitated, or condoned the drug activity. The U.S. Supreme Court held that the federal law was not ambiguous and that it permitted eviction of tenants for the actions of third parties regardless of their knowledge of drug or criminal activity.

Legal Issues Involving Drug Testing Policies: Recent Developments110

As noted earlier in this report, several states have recently proposed or adopted new or expanded drug testing policies for recipients of federal assistance, including TANF. Federal or state laws that condition the initial or ongoing receipt of governmental benefits on passing drug tests without regard to individualized suspicion of illicit drug use are vulnerable to constitutional challenge. To date, two state laws requiring suspicionless drug tests as a condition to receiving TANF benefits have sparked litigation and both cases resulted in favorable rulings for the plaintiff TANF beneficiaries. The U.S. Supreme Court has not yet rendered an opinion on such a law; however, the Court has issued decisions on drug testing programs in other contexts that have guided the few lower court opinions on the subject.

Constitutional challenges to suspicionless governmental drug testing most often focus on issues of personal privacy and Fourth Amendment protections against "unreasonable searches." The U.S. Supreme Court, on a number of occasions, has held that drug tests are searches under the Fourth Amendment.

The reasonableness of searches generally requires individualized suspicion, unless the government can show a "special need" warranting a deviation from the norm. However, governmental benefit programs like TANF, SNAP, unemployment compensation, and housing assistance do not naturally evoke special needs grounded in public safety that the Supreme Court has recognized in the past. Thus, if lawmakers wish to pursue policies requiring drug testing of public assistance recipients, policies that only require individuals to submit to a drug test based on an individualized suspicion of drug use are less likely to run afoul of the Fourth Amendment. Additionally, governmental drug testing procedures that restrict the sharing of test results and that minimize the negative repercussions of failed tests will be on firmer constitutional ground.

State Medical and Recreational Marijuana Laws

Under the federal Controlled Substances Act (CSA), the cultivation, distribution, and possession of marijuana are prohibited for any reason other than to engage in federally approved research. Nevertheless, without federal statutory sanction, more than 20 states have established medical marijuana regulatory regimes. Four have gone further and "legalized" marijuana under state recreational marijuana laws. The U.S. Constitution's Supremacy Clause preempts any state law that conflicts with federal law. Although there is some division, the majority of state courts have concluded that the federal-state marijuana law conflict does not require preemption of state medical marijuana laws. Thus, the current legal status of marijuana is contradictory: as a matter of federal law, activities related to marijuana are generally prohibited and punishable by criminal penalties; whereas at the state level, certain marijuana usage is increasingly being permitted. Consequently, individuals engaging in marijuana-related activities—even those that are authorized under state law—could be subject to criminal punishment under federal law.

TANF

TANF basic assistance is paid in the form of cash, and its potential use to purchase marijuana has raised some concerns in Congress. TANF benefits, while cash, are typically paid on an electronic benefit transfer card and can be used either at Automated Teller Machines to withdraw cash or used to make purchases directly. In the 113 th Congress, the House passed H.R. 4137 , which would have prohibited recipients of TANF assistance from electronically accessing their benefits in establishments that sell marijuana. The bill would not have distinguished between recreational and medical uses of marijuana. The bill was not considered in the Senate. It has been reintroduced for the 114 th Congress ( H.R. 3010 ).

SNAP

SNAP benefits are not the same as cash and are redeemable only for SNAP-eligible products at SNAP-authorized retailers. A household's SNAP benefit amount depends upon the deductions for which the household is eligible; one of those deductions is for medical expenses. In recent years, SNAP's authorizing statute and regulations have been amended to explicitly make expenses for medical marijuana ineligible for the medical expense deduction.

Federal Housing Assistance

"Illegal drug users" are ineligible for federally assisted housing. Public housing agencies and owners of federally assisted housing must establish standards that would allow the agency or owner to prohibit admission to, or terminate the tenancy or assistance of, any applicant or tenant who is an illegal drug user. An agency or an owner can take these actions if a determination is made, pursuant to the standards established, that an individual is "illegally using a controlled substance," or if there is reasonable cause to believe that an individual has a "pattern of illegal use" of a controlled substance that could "interfere with the health, safety, or right to a peaceful enjoyment of the premises by other residents." Thus, any individual whom the housing authority reasonably believes is using marijuana could be denied access to, or evicted from, federally assisted housing.

With respect to medical and recreational marijuana, HUD has concluded that public housing agencies or owners "are required by [law] to deny admission" to applicants who are using medical marijuana, but "have the discretion to evict or not evict current tenants for their use of marijuana."

Conclusion

As is evident in this report, there are similarities and differences in federal policies governing drug- and crime-related restrictions in TANF, SNAP, and federal housing assistance programs. Some may reflect the intentions underlying the policies. As noted earlier in this report, those policy goals may include the desire to deter people from engaging in undesirable behavior, to punish people for engaging in undesirable behavior, to direct limited resources to persons deemed most "worthy" of assistance, or to protect vulnerable communities. They may also reflect the similarities and differences in the programs themselves, including the goals of the programs, how they are administered, the populations they serve, and what benefits are provided.

The following section of the report summarizes the similarities and differences between TANF, SNAP, and the major housing assistance programs and how they may affect the drug- and crime-related policies in those programs. The information provided in this report may raise considerations for policymakers, which are presented at the end of this report.

Similarities and Differences

TANF, SNAP, and the major housing assistance programs are all administered either at the state or local level, and they have left a great deal of discretion to state or local decisionmakers. As a result, the experiences of similarly situated families will differ based both on where they live and in which assistance programs they wish to participate.

The programs also differ in terms of the way they are funded, which may affect how assistance is provided or rationed. SNAP benefits are a 100% federally financed entitlement to eligible individuals. As a result, when states adopt SNAP rules that are more expansive or inclusive, they do not affect state budgets, but do affect federal spending. TANF, on the other hand, is both federally financed and state financed. Since federal funding is limited and states are required to pay a portion of the costs of the program, state TANF program administrators may have an incentive to limit the number of persons who can receive benefits. Assisted housing is 100% federally funded, but it is not an entitlement and, given limited federal resources, the program only serves roughly one in four eligible families. This scarcity of resources leads housing program administrators to prioritize who receives assistance, which may involve weighing who is most in need of assistance versus who is most worthy of assistance.

In terms of populations served, SNAP and federal housing assistance programs serve a wider population than does TANF. SNAP and housing assistance are received by households of all types, including those made up of persons who are elderly and/or disabled, in addition to other families with children and childless nonelderly and nondisabled adults. On the other hand, TANF predominately serves families with children headed by an able-bodied adult of working age. Further, TANF generally serves only the poorest of families with children, as its state-determined income eligibility standards tend to be lower than those of SNAP and federal housing assistance programs. Since societal concern about crime and drug use is not generally associated with persons who are elderly or have disabilities, SNAP and housing program administrators have a different set of considerations about how and to whom to apply crime- and drug-related policies than do TANF administrators.

The goals and benefit structures of the programs also vary. SNAP and housing assistance are intended to meet two of the basic needs of all families: food and shelter. SNAP provides assistance that can only be used for food; housing assistance provides subsidies that only can be used for housing expenses. TANF cash assistance, on the other hand, while intended to also help meet a family's basic needs, is used to purchase goods and services at the discretion of the recipient. Given these different goals and benefit structures, the potential consequences of limiting access to SNAP and housing assistance are much more clear—hunger and homelessness—than those of limiting access to TANF. Concern about these potential consequences may make it more difficult for SNAP and housing assistance administrators to broadly apply sanctions. Since the spending of TANF cash cannot be easily regulated, policymakers and program administrators may place recipients of TANF cash assistance under greater scrutiny to ensure that federal tax dollars are not being used for undesirable purposes, such as illicit drug use.

In the case of the housing assistance programs, the structure of the benefit is place-based. If a family did not receive the assistance, arguably, the family could not afford to live where it does. As a result, assisted housing administrators may feel an added responsibility to ensure that assisted tenants not engage in activities that could have negative spillover effects for other residents or the surrounding neighborhood. This concern may be most evident in the public housing program, where an assisted tenant is surrounded by other assisted tenants and the PHA, which owns the property, is responsible for providing safe and decent housing to all tenants. TANF and SNAP program administrators do not have these place-based considerations.

Considerations for Policymakers

In recent years, there have been calls for expansions of crime- and drug-related policy restrictions, and conflicting calls for reforms to current policies meant to limit their impact. This report raises several considerations that policymakers may wish to evaluate when contemplating changes to federal crime- and drug-related restrictions.

This report highlights the variations in federal crime- and drug-related restrictions in the TANF, SNAP, and housing assistance programs. These variations in policy exist across programs, in part, due to the differences in the goals and design of the programs, as well as the laws that govern them. There is also the potential for geographic variation in these policies, attributable to the discretion that federal law leaves to local policymakers. The policy goal behind the devolution of social programs is to allow states and localities to design their programs differently, to reflect their interests, values, and needs. State and local variations in crime- and drug-related restrictions are consistent with that goal. However, inconsistencies in crime- and drug-related policies may have unintended consequences. For example, inconsistent policies may cause confusion among potential recipients, possibly limiting their access to federal assistance for which they are eligible. Variations may also raise questions of equity and fairness.

This report also observes that while some states are increasing their drug-related sanctions (specifically, implementing drug testing policies), most states are opting-out of or modifying the federal drug felon ban in TANF and SNAP. This may raise questions about the appropriateness of current federal policy. For example, some may ask whether the federal policy intentions underlying drug- and crime-related sanctions should override the desires of state and local administrators.

In order to inform the federal policy debate, it may be useful to better understand state policy choices. For instance, the drug felon ban is the default policy, which raises questions as to whether states are actively choosing the default or passively choosing not to pursue legislation to opt out—a subtle but possibly significant policy difference. While some of the factors that might influence state and local policies are identified in this report—including budget constraints, value judgments, and other policy goals—this report does not attempt to answer the question of which factors are actually driving state and local policy choices. There appears to be an overall absence of evidence about the impact and effectiveness of crime- and drug-related restrictions in federal assistance programs. In part, the challenge of this is identifying the desired objectives of crime-related restriction policies—decreasing drug use, deterring criminal activity, reducing or prioritizing applications—and whether the desired objectives apply to the entire population or only certain program participants. More research in this area could be useful for policymakers.

There are several other considerations that may be of interest to policymakers, but they are beyond the scope of this report. One such consideration may be the populations affected by crime- and drug-related restrictions. Since the War on Drugs began, incarceration rates have risen sharply, particularly among young black men. Given this, questions may be raised about whether crime- and drug-related restrictions have disproportionate implications for racial minorities. The Government Accountability Office (GAO) attempted to evaluate this question in a 2005 report, but found that the data needed to fully assess the question were not available. The same GAO report raised a related question for policymakers regarding how current crime- and drug-related restrictions may interact with recent federal initiatives to support prisoner reentry and responsible fatherhood, and whether these policies may be at cross purposes. Also, the current sets of crime- and drug-related restrictions were established in the 1980s and 1990s, when rates of violent crime, particularly drug-related violent crime, were much higher than they are today. Given this shift, policymakers may wish to reevaluate current federal policies to ensure that they appropriately address today's concerns.

A final consideration is whether current policies related to drug testing will withstand legal challenge as they are currently designed, or whether modifications will be necessary.

Appendix. State Policies on Drug Testing in TANF