Drug-related offenses, as a category, comprise the single greatest source of arrests and criminal convictions in the United States. Of these offenses, simple possessory crimes constitute the vast majority. While the direct sentences may be relatively lenient, especially for first-time offenders, the collateral sanctions may prove comparatively and surprisingly outsized.

Mandatory federal collateral consequences of felony drug crimes, many triggered by misdemeanor arrests, will likely impact a multitude of drug defendants. At times outsized in relation to the direct sentences imposed, collateral sanctions, including those which strip bedrock federal benefits should be, in accordance with both common sense and practice standards, meaningfully addressed by attorneys, and woven into the fabric of their practices.

Subsidized Housing & “One-Strike” Policy

Subsidized housing in the United States is a scarce and sought-after resource. For example, in New York City alone there were 257,143 families on the waitlist for conventional public housing and 146,808 families on the waitlist for Section 8 housing in 2017. Currently, over five million Americans receive some form of federal rental assistance.

However, in the Anti-Drug Abuse Act of 1988 (the “ADAA”), Congress established provisions which limited access to housing benefits for the express purpose of “send[ing] a very strong, unmistakable message to those individuals who would abuse drugs and traffic in drugs.”

Known as the “one-strike policy,” and codified at 42 U.S.C. § 13661& 13662, the ADAA housing provisions explicitly provide for the swift eviction from public housing of all those accused of or convicted of single drug offenses, including misdemeanor infractions. Moreover, the provisions have been broadly interpreted, as we discuss below, to reach certain non-charged drug conduct, including use of medical marijuana.

Prospective Tenants: Ineligibility based on Drug Use

42 U.S.C § 13661(b) renders ineligible for subsidized housing any applicant who “is illegally using a controlled substance” or where the housing official “has reasonable cause to believe” use of drugs by the applicant or a “household member” would interfere with the “peaceful enjoyment of the premises by other residents. Additionally, anyone previously “evicted” from federally subsidized housing for” drug-related activity” is ineligible for three years.

Existing Tenants

Additionally, 42 USC §13662 provides that both “a federal public housing agency” and “an owner of federally assisted housing” may “terminate the tenancy” of “any household with a member” who is illegally using a controlled substance. Moreover, 42 U.S.C. § 1437f(d)(1)(B)(iii) provides that for section 8, subsidized housing, that “any drug-related criminal activity on or near [] premises” by “any member of the tenant’s household, or any guest … shall be cause for termination of tenancy.” At least one federal court recently upheld eviction under § 1437f(d) for use of ostensibly legal medical marijuana.

Eviction without Conviction

Under the provision, an actual recorded conviction for a drug related offense is unnecessary. Because the statutory standard is “illegal use” or “reason to believe” that “drug use” would interfere with neighbors “quiet enjoyment,” housing authorities, relying upon arrests as the precluding event, are afforded broad discretion to evict or deny an application for housing based on allegations of drug use.

Eviction for Family Member Drug Use

A tenant may be evicted when any “member of the tenant’s household or guest” engages in drug use. In a 2002 decision, Department of Housing & Urban Development v. Rucker, the Supreme Court interpreted this language to permit eviction in cases where the leaseholder did not know, and had no reason to know, of another person’s drug use or other criminal activity.

Procedure and Review

Furthermore, ADAA Eviction procedures are summary in nature. The lack of clear guidelines affords public housing authorities “tremendous leeway to evict drug users arbitrarily and unfairly.” The authorities need only establish proof of drug use by a “preponderance of evidence,” which may be done solely on the basis of police reports or the testimony of a disgruntled neighbor.

While evicted tenants have a right to request a grievance hearing, ADAA summary eviction proceedings on grounds of a tenant’s drug-related criminal activity have been upheld. Moreover, administrative review after passage of ADAA appears limited.

Cash Assistance & Food Stamps

The Social Security Act created a number of programs, including Aid to Families with Dependent Children (“AFDC”), a cash assistance program that was designed to provide financial support to single-parent families with young children. On August 22, 1996, President Bill Clinton signed the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), which replaced AFDC with a more restrictive program known as Temporary Assistance to Needy Families (“TANF”). Under TANF, anyone convicted of one or more drug-related felonies is ineligible for cash assistance.

Currently, over four million Americans receive TANF assistance each year. Moreover, over 40 million Americans receive food stamps.

Drug Crime Ineligibilities

Pursuant to 21 U.S.C. § 862a(a), any person convicted under federal or state law of a felony offense that “has an element the possession, use, or distribution of a controlled substance” is permanently ineligible for benefits under TANF and the food stamp program, the Supplemental Nutrition Assistance Program (“SNAP”). Congress enacted 21 USC 862a, as part of PRWORA, to address the “escalating costs” of welfare and the perceived problem of welfare fraud. Both TANF and SNAP are largely administered by the States.

Although no specific data is currently available concerning how many individuals have lost TANF and SNAP benefits pursuant to 21 USC §862a, on account of felony drug convictions, the numbers may be significant given the high prevalence of drug arrests which persist in the United States.

Limitations on Ineligibility

The States may opt to limit the effect of the 21 U.S.C. 862a. For example, a State may choose to limit the period of TANF/SNAP ineligibility or limit the class of persons to which the law applies.

There has been a big push for states to show more leniencies to those convicted of drug crimes that are applying for food stamps. As of 2018, only three states still enforce a lifetime ban against receiving SNAP (food stamps) for those convicted of a drug-related felony; Mississippi, South Carolina and West Virginia.

The following states have a modified ban for SNAP recipients. These modifications may include:

1. limiting the circumstances in which a permanent disqualification applies (such as only in convictions involving the sale of drugs)
2. requiring persons convicted of drug crimes to participate in drug treatment programs and/or
3. imposing a temporary disqualification period or requiring compliance with certain parole restrictions

States with modified bans against those with felony drug convictions receiving SNAP are Alabama, Alaska, Arizona, Colorado, Connecticut, Florida, Georgia, Hawaii, Idaho, Indiana (takes effect in 2020), Kansas, Kentucky, Maryland, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Carolina, Tennessee, Texas, Virginia, and Wisconsin

The details of each states modified bans can be found on the USDA website.

The remaining states have completely opted out of the ban, for the SNAP program, although some of these states still may require that the recipient be in compliance with terms of their parole.

With cash assistance, or TANF, states tend to be much less forgiving. As of 2016, the Congressional Research Service reports that there are 10 states with lifetime disqualifications for those with felony drug convictions. These are: Arizona, Delaware, Georgia, Mississippi, Missouri, Nebraska, South Carolina, South Dakota, Texas, and Virginia.

The following states have a modified ban on receipt of TANF with restrictions similar to those with modified bans on receiving SNAP, and may also require drug testing as a condition of receipt for felons with drug convictions. These states are: Alaska, Arkansas, Colorado, Connecticut, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Pennsylvania, Tennessee, and Utah

The remaining states have completely opted out of the ban, but still may require that the recipient be in compliance with the terms of their parole.

For states that have not completely opted out of the federal ban, the denial of welfare benefits poses particular problems to the populations of mothers and ex-offenders with children. Indeed, the ban’s effect on women is particularly notable, since “women comprise the vast majority of recipients of both SNAP and TANF benefits.”

Administrative and Judicial Review

A person denied benefits in a state-administered TANF program must file an administrative appeal before the relevant state agency. For example, in Arizona, the Department of Economic Security (“DES”) administers the state’s TANF and SNAP programs. If DES denies an application for TANF, the applicant is entitled to a “fair hearing” before an administrative law judge. The applicant may appeal an adverse decision of the ALJ to an administrative appellate board. Ultimately, the applicant may appeal an adverse decision of the Board to the state courts.