October 7, 1996 96-R-1260

TO:

FROM: Robin Cohen, Principal Analyst

You asked if the state has the power to deny welfare benefits and other "entitlements" to someone convicted of drug possession with intent to sell.

This report addresses the state’s two major cash assistance programs, Temporary Family Assistance (formerly Aid to Families with Dependent Children (AFDC)) and General Assistance.

The Office of Legislative Research is not authorized to give legal opinions and this report should not be considered one.

The state could probably pass legislation denying welfare benefits to people convicted of drug possession with intent to sell and survive a court challenge. A new federal law gives such state action even more legitimacy as states must now ban certain drug felons from benefits as a condition of receiving federal welfare assistance. A court decision on a challenge to such a prohibition would likely hinge on the court’s application of the rationality test, which looks at whether the challenged law has a rational basis and serves a legitimate state interest. It appears that such a law would survive this test.

Under current Connecticut law, as long as someone meets the eligibility requirements for either AFDC or GA, he receives benefits, regardless of whether he has a criminal background. State welfare law does not speak to the issue of drug convictions, and until recently federal law was silent on the subject as well. Under the new federal welfare reform legislation, states must deny cash and food stamp eligibility to people convicted of a drug-related felony. Although the federal law was silent prior to its passage, states would have likely been penalized if they had adopted such laws in the form of reduced reimbursements for AFDC expenditures.

Title 1 of P.L. 104-193 (The Personal Responsibility and Work Opportunity Reconcilement Act of 1996) creates the successor program to AFDC which is called Temporary Assistance for Needy Families (TANF). The act eliminates cash assistance as an "entitlement" for needy families but continues to provide assistance through a lump sum block grant to states that administer such a program.

Section 115 of the title makes anyone convicted, after the act’s passage, under state or federal law of a felony which has as an element the possession, use, or distribution of a controlled substance ineligible for TANF benefits and Food Stamps. Anyone applying for either of these programs must declare in writing whether that person, or anyone in that person’s household, has been convicted. States can opt out of this provision or limit the period of the prohibition by enacting legislation.

if Connecticut does not opt out, the effect of this change is, with apparently only one exception, that anyone convicted of possession with intent to sell would be subject to the ban since, under state law, it is a felony to possess with the intent to sell narcotics, hallucinogenics, amphetamines, or at least one kilogram of marijuana. Only someone convicted of possession with intent to sell less than a kilogram of marijuana would be exempt from the ban (CGS § 21a-278 (b)).

It appears that such a prohibition would pass constitutional muster. States being challenged will simply need to show that the purpose of the law is a legitimate one and that it has been designed to accomplish that purpose in a fair and reasonable way. In this instance, someone challenging the law could argue that a state has created a suspect classification of welfare applicants (i.e., those convicted of drug offenses), and that these applicants are being treated differently than other welfare applicants who are otherwise identical as far as meeting established eligibility requirements. Thus, the state would need to show that having a separate classification bears a rational relationship to a legitimate state interest, which in this instance is presumably to reduce illicit drug use and ensure that state and federal welfare funds are being spent on dependent children, for whom it is intended, and not to support a drug habit.

In a 1995 Connecticut Supreme Court case, Moore v. Ganim (233 Conn. 557) the court held that a state law that limited General Assistance (GA) benefits for employable recipients to nine months in a 12-month period (superseded with more restrictive limits in 1995 and 1996) was constitutional, in part because it survived the rationality test since its purpose was to create additional incentives for employment and independence, both of which were perceived as legitimate state interests.

RC:tjo