The Shriver Brief : Poverty Law Commentary & Insights : Sargent Shriver National Center on Poverty Law : Affordable Housing, Healthcare Reform

The “Welfare” Reform Proposal

Senator Jim DeMint (R-S.C.), along with seven other Senate Republican co-sponsors, has introduced the misleadingly titled bill, The Welfare Reform Act of 2011 (H.R. 1167). The bill is an attempt to hark back to President Clinton and Speaker Gingrich’s popular federal welfare reforms  of 1996. At that time, the program that provided a federal entitlement to cash assistance for needy families, the Aid to Families with Dependent Children program, was repealed and replaced by the Temporary Assistance for Needy Families’ (TANF) program, which placed time limits on the receipt of benefits and added work requirements. The new “welfare” reform bill expands the definition of welfare well beyond its popular meaning of cash assistance to needy families to encompass a wide range of other programs for low- and moderate-income people and imposes deep cuts and restrictions on them.

To support the supposed need for welfare reform, these lawmakers point out that “welfare” spending has grown more quickly over the last 20 years than have outlays for Medicare and Social Security, education, and defense. In a statement, Senator DeMint said that, “with record levels of federal spending and record levels of Americans in poverty and using food stamps, it’s hard not to conclude that federal welfare programs are failing.”

The proposed bill would, supposedly, save roughly $2.4 trillion over a decade—or twice as much as the minimum savings that the deficit-reducing Supercommittee is tasked with finding.  Specifically, the bill would:

1.     Require disclosure of total means-tested welfare expenditures in the President’s budget; 

2.     Plan an aggregate spending cap on all means-tested welfare spending at pre-2007 levels once unemployment falls below 6.5%; 

3.     Provide enforcement of the spending cap through the budget resolution process;

4.     Extend work requirements to the Supplemental Nutritional Assistance Program (SNAP) (formerly known as food stamps);

5.     Incentivize states to alleviate poverty through self-sufficiency, not dependence on government; and

6.     Prevent federal funding of abortion. 

Why Lawmakers Don’t Get It:

As usual, some lawmakers aren’t getting it and, in fact, are getting it wrong.

They misinterpret the relevance of the recent poverty data—they see it as a result of individuals’ failure to be self-sufficient. The reason that there is more federal spending on means-tested programs is because there are more people in need as a result of the very deregulation of financial institutions that conservative lawmakers championed. The impact of a pre-2007 cap would be a drastic reduction in the number of families receiving needed aid. In just the first six years of the cap, programs would be cut 40 percent, and cuts would grow deeper thereafter. For example, if all programs were cut by the same percentage Medicaid and Children’s Health Insurance Program would be cut by $144 billion in 2016 and more than $1.1 trillion over the cap’s first six years. Similarly, SNAP would be cut by $24 billion in 2016 and $153 billion over six years and job training programs would be cut by $1.4 billion in 2016 and $10 billion over six years. Needy families should not be penalized for their appropriate reliance in troubled times on welfare “safety net” programs. This is especially true when the “failure” wasn’t with these families, but rather with financial institutions. 

Similarly, increasing the work requirement for families with dependent children to 120 hours, up from 90 hours under current law, and expanding this requirement to SNAP would leave many needy families without a safety net because of their failure, perhaps for legitimate reasons (e.g., child care issues), to fulfill this requirement. Additionally, under current rules, only a narrowly defined set of activities count toward a state’s work participation rate and participation in some of these activities can only count for limited periods or if other limitations are met. Many of the activities that TANF recipients often need to be prepared for work do not count and there no evidence that participating in a narrowly defined set of work activities improves participants’ employment outcomes. Instead of increasing and expanding the requirement, it would be better to expand the type and duration of activities that can count thereby encouraging more individuals to work.

Although these lawmakers claim that public benefit programs aren’t working, the newly created Supplemental Poverty Measure (SPM), which is an attempt to update the woefully inadequate official poverty measure that under-estimates poverty, proves they’re wrong. The SPM, which takes into account, for the first time, certain out-of-pocket expenses (e.g., taxes, housing, utilities, health care costs) and the value of government income supplements (e.g., SNAP),  that are aimed at improving the economic situation of the poor, shows the impact such programs have on poverty.

Under this new measure, almost 7 million more people would have lived in poverty in 2009 and 2010 absent government action and excluding SNAP, for instance, would have increased poverty by 17.7 percent.

This data proves that public benefit programs are an important factor in poverty alleviation, and that, especially in today’s economy, the nation cannot afford further cuts in them. Yet, that is exactly what this welfare reform bill would do. 

So how do they continue to get it so wrong? Your guess is as good as mine.

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Illinois will lose 27,000 jobs in 2012, and its unemployment rate will increase from 10% to 10.5%, unless Congress approves extending the Emergency Unemployment Compensation (EUC) program, according to the Economic Policy Institute. EPI’s projection that failure to extend the EUC program will have such a dramatic effect in increasing unemployment is based on standard economic “multiplier” effects and the fact that the long-term unemployed—often the most desperate for resources to meet their basic needs—are apt to immediately spend any benefits they receive. Taking this consumer spending out of the economy, by failing to extend EUC, would result in lost jobs in the stores and businesses where the money would be spent. That is why failing to extend the EUC would increase the unemployment rate.

The EUC program was created as part of the American Recovery and Reinvestment Act of 2009 to provide unemployment insurance benefits to the millions of Americans who lost their jobs in the Great Recession and have exhausted or no longer qualify for unemployment benefits through existing state programs. The EUC program is desperately needed given the anemic pace of job growth since the recession’s end and the long durations of unemployment that a record number of Americans are experiencing.

The EUC program will expire at the end of 2011 if Congress fails to extend it. Rep. Sandy Levin (D-Mich.), the ranking Democratic member on the House Ways and Means Committee and the co-sponsor of legislation to extend the EUC program for a year, explains: "Never before has Congress allowed emergency unemployment benefits to expire with such a large percentage of Americans looking for work and we must not let that happen now.”

The EUC program was extended for one year near the end of 2010 as part of a grand compromise that also included a two-year extension of the Bush tax cuts for the wealthy. The EUC program has been a target of some Tea Party adherents and their supporters in Congress, who believe that extending the period that unemployment compensation is available makes people lazy and unwilling to look for work. Nevertheless, it is currently expected that Congress will agree to extend the EUC program, although what other demands will be made in return for agreeing to such an extension remains to be seen.

This blog is based on analysis and a report by the Economic Policy Institute.

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According to the U.S. Bureau of Labor Statistics unemployment is at 9.1% in the U.S., which means over 14 million people are unemployed; of that population, 8 million have been unemployed for over 15 months. President Obama added $40 million in unemployment benefits under the Economic Stimulus Plan, and unemployment benefits were extended by 14 months after the passage of the Worker, Homeownership, and Business Assistance Act of 2009.

In the past, unemployment benefits were delivered by check, and those without bank accounts paid costly check-cashing fees. These benefits, and other federal and state benefits, are increasingly paid via prepaid cards. Prepaid cards are cards that states contract with card issuers to provide. The card issuer administers the cards with funds from the state. Bank of America, U.S. Bank, Wells Fargo, and JP Morgan Chase have each entered into contracts to provide access to unemployment insurance benefits in a total of 41 states collectively. These arrangements save states large amounts of money. Kansas, for instance, has saved over $300,000 a year, and other states, such as New Mexico, are saving over $1.5 million a year in postage and printing costs. South Carolina, which launched its arrangement with Bank of America in July of 2010, expects to save $5 billion dollars in check printing and mailing costs annually. Yet, these cost savings are accruing to states and not unemployment recipients. While this is a win for states, those receiving the benefits, the unemployed, are paying the price.

Recently, the Huffington Post reported that the division of US Bankcorps that encompasses prepaid cards earned $357 million dollars between July and September of this year, accounting for over one fourth of the bank’s total revenue. Part of this revenue derives from fees charged to use unemployment prepaid cards. The National Consumer Law Center’s (NCLC) study of the 40 states that offer unemployment benefit prepaid cards, which was discussed in a previous Shriver Brief blog, reported that fees on prepaid cards vary by state. Such fees can include debit purchase fees, fees to talk to a teller, fees for ATM withdrawals, overdraft fees, insufficient funds fees, and fees for checking account balances.

As previously reported, new federal regulations, issued as part of the Dodd-Frank Wall Street Reform Act, cap what banks can collect from merchants when consumers swipe ordinary debit and credit cards. These limits, some of which do not apply to unemployment cards, will cut Bank of America’s revenues by $2 billion dollars this year. Most banks are aiming to recoup between 30 to 50 percent of this lost revenue through other methods. Thus, while Bank of America recently aborted its plans to charge customers $5 a month to use their debit cards in the face of national outrage, it has quietly continued to mine another source of fees: jobless workers.

Some state prepaid unemployment card systems are better than others. NCLC’s report highlights California and New Jersey as good models for best practices. These states’ systems provide ample, free ways for beneficiaries to get cash without fees. These include:

• free in-network ATM withdrawals;
• free bank teller withdrawals;
• two free out-of-network ATM withdrawals either every two weeks (California) or every month (New Jersey) before incurring a $1 fee;
• free cash back from a purchase;
• no overdraft or denied transaction fees;
• no ATM fees for balance inquiries either in or out of network;
• free automated and live customer service calls;
• no fees for point-of-sale transactions; and
• no inactivity fees.

Interestingly, both California’s and New Jersey’s prepaid unemployment card arrangements are with Bank of America, and, while these arrangements are applauded for their low fees, Bank of America’s arrangement with South Carolina is fraught with high fees. When South Carolina found out about this discrepancy it demanded fee reductions in line with those states. States should, at a minimum, review their contracts to ensure that their fees are in line with other states’. 

Prepaid unemployment benefit cards need to be regulated and fees limited in order for these types of systems to actually benefit unemployment beneficiaries rather than increase card insurers’ revenues. The Department of Labor and the newly established Consumer Financial Protection Bureau should regulate prepaid benefit card programs by banning unfair fees and providing consumer protections. The Benefit Card Fairness Act of 2010 and the Prepaid Card Consumer Protection Act of 2010 would provide some of these protections. With such regulations in place creating a card that is good for card issuers, states and unemployed workers would be much more feasible.

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In a horribly ironic turn of events, Topeka, Kansas, has decriminalized domestic violence in the middle of October, a month devoted to raising awareness about preventing and ending it. October has been domestic violence awareness month for over twenty years, a period of time during which exceptional progress has been made. Once thought of as a private matter, an accepted norm among many couples, domestic violence is now recognized as a crime. Unfortunately, rates of domestic violence in the U.S. remain extremely high, and survivors continue to face barriers to seeking protection and getting justice. The recent developments in Topeka have created yet another barrier for survivors to exercise their legal rights as they became political fodder in budgetary debates. This only highlights the continued critical need for increased awareness of domestic violence and its harmful effects on individuals and entire communities.

Domestic violence affects women of every racial, ethnic, geographic, and socioeconomic background. One in four women experiences domestic violence in the United States, and more than three women on average are killed each day by an intimate partner. These women suffered in silence with few legal protections before the 1980s, when states began to criminalize domestic violence and establish protective orders. It wasn’t until 1994, however, that domestic violence was finally recognized as a federal crime. The passage of the Violence Against Women Act (VAWA) legally defined and federally criminalized domestic violence, dating violence, sexual assault, and stalking. On October 11, however, Topeka, Kansas, took a huge step backwards when its city council voted to nullify their authority to prosecute misdemeanor cases of domestic violence. The whole mess began in September when, in response to budget shortfalls, the district attorney (DA) for the county in which Topeka is located announced that he would no longer be prosecuting misdemeanors and the duty would instead fall on the city. Topeka’s city council was angered by the increased responsibility without increased funding, and for five weeks the city and the county engaged in a standoff over who would be forced to provide legal protections for domestic violence victims. Then on October 11, Topeka decriminalized misdemeanor cases of domestic violence, the most common misdemeanor prosecutions in Topeka. The city hoped this would force the DA to begin prosecuting misdemeanors again, and it was right. Facing pressure from all sides, the DA announced that his office would begin prosecuting domestic violence cases again, but the city council has yet to repeal the ordinance decriminalizing domestic violence.

Both the DA and the Topeka City Council have assured the public that they take domestic violence very seriously, but their actions tell a different story. Budgets are reflections of a society’s values, and funding decisions are essentially priority decisions. The fact that Topeka was willing to risk the safety of survivors and their children to make a political point sends a message to the community that domestic violence is a low priority. In fact, domestic violence is such a low priority that the city and the county are unwilling to pay for its prosecution unless they are absolutely forced into it. Not only did Topeka’s decision diminish the importance of domestic violence and trivialize survivors’ experiences, it also placed real women in danger for the five weeks during which domestic violence was not a criminal offense. At least 30 domestic violence cases required action during those weeks. Instead, the perpetrators were released from prison with the understanding that what they did was not a crime.

Using survivors as pawns in political power struggles minimizes domestic violence and creates additional obstacles for survivors to gain the protections and services they need. Raising awareness of the prevalence of domestic violence and the effects it has on individuals and communities can help combat misunderstanding and ensure that prevention and survivor safety are top priorities. Awareness-raising campaigns exist around the country, educating people on the dynamics of domestic violence, prevention techniques, and the availability of resources for survivors.

The Kansas Coalition Against Sexual and Domestic Violence has released a series of press statements detailing Topeka’s decision to decriminalize domestic violence. They are watching the situation carefully, and are poised to intervene if the DA again halts the prosecution of domestic violence. Visit their website to learn how to get involved. You can also help raise awareness simply by talking with your friends, family, and members of your community about domestic violence.

For more information on domestic violence, visit www.futureswithoutviolence.org or http://www.nnedv.org/. If you or someone you know is experiencing domestic violence, call the national domestic violence hotline at 1-800-799-SAFE (1-800-799-7233) or log on to www.thehotline.org.

This blog post was coauthored by Hannah Green.

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Last month, Bank of America announced that it would begin charging a $5 monthly fee  for consumers to use their debit card accounts. Only those with $20,000 or more in their accounts or whose mortgage was held by Bank of America would be exempt from the fee. In this regard the fee would have a disproportionate negative effect on low-income consumers who do not have large sums in their accounts and typically are homeowners.

Under public pressure, including pressure from the Occupy Wall Street movement, which is protesting the fact that the very banks that got bailed out that are now turning around and hiking fees, Bank of America backtracked and announced it would not charge the fee. Bank of America was the most recent bank to back away from plans to charge customers a monthly fee for using their debit cards—JPMorgan Chase & Co. and Wells Fargo & Co. also decided to cancel test programs, while SunTrust Banks, Inc. and Regions Financial Corp. stated on October 31^st that they would end monthly charges and reimburse customers.

Although Bank of America dropped the fee, the blacklash from the public continues. The Occupy Wall Street movement, along with other advocacy groups, called for a Bank Transfer Day on Saturday, November 5^th, 2011, encouraging customers of large banks to move funds into credit unions and small local banks. According to the Credit Union National Association, credit unions signed up 650,000 new customers since the concept of Bank Transfer Day was announced on September 29—double their normal rate.

Amidst bank threats to charge extra fees, U.S. Bank introduced the Convenience Cash Card, a low-cost prepaid card. The Convenient Cash Card is a reloadable prepaid card that allows cardholders to make purchases wherever Visa® debit is accepted. According to U.S. Bank, unlike other prepaid products, U.S. Bank cardholders can add funds to the Convenient Cash Card at any U.S. Bank branch and withdraw money from any U.S. Bank ATM free of charge.

As banks continue to look for new products and services to make up for lost revenue due to the passage of the Dodd-Frank Act, which caps interchange fees or “swipe fees” on debit cards, Americans are, or should be, hyper acute to fees put on their cards and bank accounts. U.S. Bank’s Convenience Cash Card is no different. Although the bank’s website claims free deposits and ATM withdrawals, it does not explicitly outline other possible fees, aside from the $3 fee to buy the card. Even the fine print doesn’t lay out the fees; it merely says a consumer will receive a fee schedule upon obtaining the prepaid card. Learning after the fact what fees they will really be charged does not allow consumers to gauge if the card is an affordable choice.

Whether banks are truly introducing prepaid cards to provide an affordable solution for the unbanked or whether it’s simply another attempt to increase lost revenue is debatable. Either way, public protests are being heard. Many changes are still needed, but people aren’t giving up. The $5 fee might be gone, but consumers have not forgotten the actions of the big banks, the bailouts, and the fallout that occurred because of all of it.  Protesters continue to take to the streets, marching on the doorsteps of banks, demanding transparency and fair banking practices. In sum, members of the public are making it clear that their tax dollars helped to bail out banks and that they will not let the same banks continue to generate fees from consumers to increase their profit margins. This is another example of how advocacy and action can make a difference to your pocketbook. 

This blog post was coauthored by Alison Terkel.

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Veterans face a host of challenges, not the least of which is obtaining the benefits due them and dealing with legal issues related to family issues, credit, foreclosure, and others. An advocate need not be an expert in veterans law to identify VA benefits and refer a client to VA for assistance. By asking a low-income or elderly legal aid client if the client is a veteran, dependent of a veteran, or survivor of a veteran, those who represent poor, elderly, and disabled persons may be able to identify monetary benefits and services from the U.S. Department of Veterans Affairs (VA), and these benefits may help resolve the client’s legal issues. A quick screening guide and descriptions of some monetary and health benefits help advocates ask the right questions and refer clients to resources. Five tips may help nonmilitary attorneys represent military members better and avoid “traps for the unwary” and recognize that clients who have a military connection often get more protection and benefits through laws that apply specifically to military members.

When handling a family law case involving a party in the military, attorneys should know about pertinent rules that may be unfamiliar to the typical family law practitioner. These involve special rules for establishing jurisdiction and service of process to initiate a case; setting up custody, visitation, family support, and division of a military pension; and using the Servicemembers Civil Relief Act at any stage of a family law proceeding. With this knowledge, an attorney can both advocate better for a military client and know how to observe the special rights of a military party on the other side of a family law matter.

Assisting disabled military veterans, who risked injury and death in the service of their country, in obtaining veterans benefits is an honor. Legal aid attorneys who wish to assist veterans have many resources available to them. Pine Tree Legal Assistance’s Stateside Legal website has information for military members, veterans and their families and pro bono opportunities. The American Bar Association has established the Military Pro Bono Project. The ABA has also developed a new web-based legal resource center aimed at military families called ABA Home Front in support of First Lady Michelle Obama’s Joining Forces initiative that seeks to support military military members and their families. The National Veterans Legal Services Program also has a pro bono project called Lawyers Serving Warriors, through which attorneys can volunteer to represent veterans.

To gain insight into the many issues facing veterans and innovative solutions, read the Clearinghouse Review: Journal of Poverty Law and Policy’s September-October 2009 special issue Legal Needs of Military Veterans, Servicemembers, and Their Families. The special issue includes best practices and creative approached to helping our military members and veterans in many contexts and fora, including military benefits, and family and consumer law. Barton F. Stichman, who litigated the Sabo case on behalf of the National Veterans Legal Services Program, contributed to the issue, writing Advocating Benefits for Veterans. The issue provides guidance on representing veterans before the U.S. Department of Veterans Affairs (VA), discusses laws such as the Veterans Judicial Review Act of 1988, and the Servicemembers Civil Relief Act.

For more information on the Servicemembers Civil Relief Act, see the ABA-sponsored book, A Judge’s Benchbook for the Servicemembers Civil Relief Act by Colonel John S. Odom, Jr. USAF Retired (also see free checklist by Mark E. Sullivan, A Judge’s Guide to the Servicemembers Civil Relief Act).

Kathleen Donahue McNally coauthored this blog post.

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The summer was a season of triumphs for women around the world, whose fundamental human rights were upheld, sometimes for the first time, by the international human rights community. In July, the United Nations (UN) released Progress of the World’s Women: In Pursuit of Justice, a report that focused on the legal barriers women and girls face around the world and how advocates are working to break down these barriers. In early August, the UN ruled on its first maternal death case, establishing that governments have an obligation to guarantee all women access to adequate and timely maternal health care. Then, in mid August, the Inter-American Commission on Human Rights ruled on its first ever case brought by a domestic violence survivor against the United States. The decision established that governments have an obligation to enforce protective orders and that the failure to do so is a human rights violation. The progress around the world only highlights the work that must be done here in the United States to ensure that all women have equal rights and protections under the law and in practice, including the important right to the enforcement of protective orders.

Domestic Violence in the United States

The number of women in the U.S. who experience domestic violence is vast—it is truly a ubiquitous experience, affecting women of all ages, races, ethnicities, and sexual preferences. Indeed one in four women reports experiencing violence from a current or former partner or spouse. These women suffered in silence with little recognition from the legal world before the 1980s, when states began to criminalize domestic violence and establish protective orders. Finally, in 1994, the federal Violence Against Woman Act (VAWA) defined and federally criminalized domestic violence, dating violence, sexual assault, and stalking. Its passage signaled the United States’ refusal to continue silently to tolerate these crimes. Despite this progress, ignorance and prejudice continue to surround domestic violence survivors who face many barriers to justice and protection. Police can be slow to respond, believing domestic violence to be solely a private matter, and survivors’ credibility is often questioned in court. State and federal domestic violence acts have given women the opportunity to pursue legal protections, but without enforcement, legal protections in and of themselves are meaningless.

Jessica Lenahan’s Story

On June 23, 1999, Jessica Lenahan’s three children were discovered dead in the back seat of their father’s truck after he engaged the police in a shoot out that also resulted in his death. Ms. Lenahan’s estranged husband had abducted their children from outside her home, violating the restraining order she had obtained against him after he emotionally and physically abused her. Despite Ms. Lenahan’s many calls to the police station informing them of the restraining order and her husband’s actions, the police failed to even search for the children. Ms. Lenahan (formerly Ms. Gonzales) sued the township, claiming that her due process rights had been violated when the police failed to enforce her restraining order. Her case went all the way to the U.S. Supreme Court, which ruled in favor of the Township. The 2005 decision in Town of Castle Rock v. Jessica Gonzales established that survivors do not have a constitutional right to police enforcement of a restraining order because they do not have property rights to the order itself. In other words, the court determined that Ms. Lenahan did not have a right to due process, and thus did not look at whether or not due process was carried out. The decision, however, threatens the safety of domestic and sexual violence survivors around the country, who now have no legal recourse if their protective orders are not enforced.

The Inter-American Commission on Human Rights

With legal options in the United States exhausted, Ms. Lenahan took her case to the Inter-American Commission on Human Rights (IACHR). Established in 1959, IACHR is tasked with promoting and protecting human rights in the Americas by upholding the American Declaration of the Rights and Duties of Man. International human rights law guarantees certain substantive positive rights that the U.S. Constitution does not, rendering the property right concerns that were the focal point of the U.S. Supreme Court case moot. Thus, Jessica Gonzales v. U.S.A., centered on the claim that the United States violated Ms. Lenahan and her children’s human rights to life, equal protection before the law, and the right to protection of the law from abusive attacks. In its decision in favor of Ms. Lenahan, IACHR established that governments do have an obligation to enforce protective orders and that the U.S. had violated Ms. Lenahan’s human rights in failing to enforce her restraining order.

Applying a Human Rights Framework Domestically

Included in IACHR’s decision were a number of recommendations for the United States to more adequately address domestic violence. These recommendations, echoed by the recently released report from the United Nations Special Rapporteur on Violence Against Women (Report of the Special Rapporteur on violence against Women, its causes and consequences, Ms. Rashida Manjoo - Addendum - Mission to the United States of America, click “E”, page 27), include the creation of meaningful standards for the enforcement of protective orders. As a member of the Organization of American States (OAS), the United States is obligated to comply with the American Declaration of the Rights and Duties of Man and IACHR rulings, but it shouldn’t have to be forced into protecting women from violence. Instead, the United States should lead rather than follow in the fight to end domestic violence. 

For more information on using a human rights framework domestically, read the September-October 2011 special issue of the Clearinghouse Review, “Human Rights: A New (and Old) Way to Secure Justice.”

This blog was coauthored by Hannah Green.

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Much has happened since we celebrated Veterans Day in 2010. The Don’t Ask, Don’t Tell law is officially dead. The U.S. Department of Defense, as the result of a settlement, has agreed to review disability ratings from 2001 to 2009 that wrongly denied benefits to veterans separated from service due to Post-Traumatic Stress Disorder (PTSD). The U.S. Department of Veterans Affairs (VA) was found by a federal appeals court to have violated the due process rights of veterans through its failure to timely treat veterans and process their medical claims and ordered make systemic changes in its regional office. The U.S. Departments of Defense and Veterans Affairs have agreed to share medical records—previously prohibited by regulation—in a way that facilitates health care for military servicemembers as they move from active service to veteran status. A Wisconsin county is the latest jurisdiction to create a special veterans court to ensure that offenders who are veterans get the medical treatment they need rather than follow a well-trod pathway to prison. The current Administration has continually pushed the private sector to create more jobs for veterans and hire more veterans for current jobs. Legal aid lawyers can help servicemembers, veterans, and their families by providing legal services where possible and by being aware of legal resources available and laws aimed specifically at servicemembers, veterans and their families.

Don’t Ask, Don’t Tell

Thousands of servicemembers were legally freed from the burden of hiding their sexual orientation on September 20, 2011, the date the Don’t Ask, Don’t Tell Repeal Act of 2010 (signed on December 22, 2010) became effective. As the President stated on September 20, "[W]e are not a nation that says, 'don't ask, don’t tell.' We are a nation that says, 'Out of many, we are one.'" While inequality is likely to remain, lives have already been changed. The Defense Department in its Quick Reference Guide to the repeal act has, as of October 28, 2011, identified 14 benefits for which servicemembers may designate beneficiaries including same sex partners.

News on help for Veterans with PTSD

That military veterans suffer from of Post-Traumatic Stress Disorder (PTSD) is not news. That the U.S. Departments of Defense and Veterans Affairs have woefully inadequate procedures probably is not a surprise either. But recent court victories by advocates are helping to change that. The Department of Defense on its website announced that it is “re-evaluating … disability ratings for some Veterans medically separated between September 11, 2001, and December 31, 2009, to ensure a correct disability retirement determination was made.” This action is required under a settlement agreement reached in Sabo v. United States. The National Veterans Legal Services Programbrought the suit the result of which will ensure that over 2,000 U.S. military veterans who served in Iraq and Afghanistan and who were medically discharged from the military after a diagnosis of PTSD will finally receive the military benefits due them. The settlement agreement was preliminarily approved by a U.S. Federal Court of Claims August 12, 2011; final approval is expected by January 2012.

The Ninth Circuit Court of Appeals, in a May 2011 scathing opinion, castigated the U.S. Department of Veteran Affairs for its delays, averaging four years, in processing veterans’ mental health claims, holding that the VA violated veterans’ due process rights through its failure to timely treat veterans and process their claims. Noting that in many cases timely treatment is a matter of life or death, (the court cited current suicide rates amongst servicemembers and veterans) the court ordered the VA to develop a system-wide plan to reduce delays in delivering mental health care to veterans. The court stated that it would have preferred the VA or Congress to take action, but found that the VA’s failure to develop procedures to handle the influx of claims from Afghanistan and Iraq war veterans left many veterans without treatment for years—a violation of due process under the Fifth Amendment.

State courts are seeking ways to help veterans with PTSD get the treatment they need instead of merely sending them to jail. Judges in Green Bay, Wisconsin, are working towards establishing a special court for military veterans. If this court is established in the next month as planned, it will join a list of about 50 special veterans courts created around the country over the past three years. The courts were developed because “military veteran offenders are more in need of treatment than prison.” The goal of the special court is to find the most effective way of dealing with veterans’ mental health issues, particularly PTSD. While some special veterans courts accept only combat veterans whose offenses have resulted from PTSD, others accept all veterans.

Unemployment and Homelessness

Employees who leave their jobs to work in the armed forces often cannot regain their jobs or retain benefits. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is designed to protect eligible military members from illegal employer action. But the American Bar Association (ABA) found that veterans still face barriers to employment and reemployment and recently adopted a resolution urging Congress to amend USERRA. The resolution, recommended by the ABA’s Standing Committee on Legal Assistance for Military Personnel, would require employees to provide certain reasonable accommodations for returning veterans with combat injuries, make unenforceable employment agreements that require arbitration of USERRA disputes, and authorize attorney fees.

President Obama has recognized that the unemployment rate among veterans is unacceptable. The Obama Administration recently launched two initiatives to support veterans and their families. President Obama’s Veterans Employment Initiative challenges the private sector to hire veterans and the President proposed a tax credit for businesses that take up the challenge. (The tax credit has been suggested before.)

Veterans are twice as likely as the general population to become chronically homeless. Many resources can help veterans improve their finances and access supportive housing so that they can have a place to live and can lead healthy, stable lives. Greater availability of two innovative legal programs—alternative sentencing statutes and veterans courts—would link at-risk veterans to life-saving treatment and lower their risk of homelessness.

Kathleen Donahue McNally coauthored this blog post.

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In March of last year, the U.S. Census Bureau announced that it would develop an alternative way to measure poverty. The Supplemental Poverty Measure, which was released yesterday, is an attempt to update the current federal poverty measure that, it is generally agreed, is outdated and therefore underestimates the level of poverty in the U.S. 

Measuring Poverty

The current poverty measure was developed in 1963 and is based on the cost of a minimally adequate diet in the mid-1950s, multiplied by three. At the time the measure was developed, families of three or more persons spent about 1/3 of their after-tax income on food.  

Other than being updated annually based on the consumer price index, the methodology for measuring poverty has not changed since the measure was first developed. From the very beginning, policymakers have expressed concern about the accuracy of the measure and proposed that it be revised.Today, the measure is badly outdated. For example, food now consumes only 1/7 of the average family’s budget.

In 1995, the National Academy of Sciences/National Research Council (NAS) was commissioned by Congress to study the official U.S. poverty measure and provide suggestions on how to revise it. The Supplemental Poverty Measure released yesterday is largely based on their report, Measuring Poverty: A New Approach.

The Supplemental Poverty Measure is based on an updated market basket of goods that reflects changes in consumer spending since 1963. It takes into account household expenses such as taxes, housing, utilities, health care costs, child support payments, and work-related expenses (i.e., travel and child care). This is offset by including the value of government income supplements, such as subsidized school lunch programs, energy assistance programs, housing subsidies, and the Supplemental Nutrition Assistance Program (previously food stamps), that are not accounted for in the official poverty measure. The result is that the new calculation more accurately reflects how low-income Americans are actually getting by.

New Data Increases Poverty Levels

Under the Supplemental Poverty Measure, 49.1 million, or 16 percent, lived in poverty in 2010, significantly more than the official measure released in September that found 46.6 million people, or 15 percent, lived in poverty. Given that the number of people in poverty in 2010 under the existing measure was the highest that it has been in the 52 years since this information has been collected, this new measure’s estimate is even more dramatic.

The annual income at which a family of four—two adults and two children—is considered living in poverty under the supplemental measure was $24,343 in 2010. That compares with the official figure of $22,113. This threshold is still low, and most poverty advocates believe that using 200 percent of the federal poverty level for eligibility for public benefit programs is more reasonable. In fact, when polled most Americans believe that the minimum amount of yearly income a family of four would need to “get along” in their community is a little more than $40,000 annually, or roughly twice both the official measure and the supplemental measure.

The figure below compares the poverty rates under the official measures and the new measure for different age groups. The percent of the population that was poor using the official measure for 2010 was 15.1 percent versus 16 percent under the new measure. The supplemental measure puts the percentage of American children under 18 living in poverty at 18.2 percent, a drop from the 22.5 percent official rate. The reason for the drop is that the supplemental measure includes benefits designed to help poor children, such as school lunch programs. On the other hand, the supplemental rate for the elderly was 15.9 percent, a 9-percent increase from the official rate of 6.9 percent. Again, the reason is that the supplemental measure’s inclusion of expenses, particularly out-of-pocket health care costs, more realistically depicts the budgetary constraints the elderly face. 

In terms of minorities, the picture is still grim, but different. The official poverty data released in September showed that the poverty rate for African-Americans had increased faster than for the rest of the population and was just over 27 percent, and the rate for Hispanics was 26.7 percent, whereas whites’ rate was 13.1 percent, and Asians’ was 12.1 percent. Under the new measure, Hispanic poverty rose to 28.2 percent, surpassing that of blacks, 25.4 percent, for the first time. Poverty levels among whites, 14.3 percent, and Asians, 16.7 percent, were also higher under the supplemental measure. 

Public Benefit Programs Work 

Because the supplemental poverty measure takes into account in-kind benefits aimed at improving the economic situation of the poor, for the first time it is possible to see the impact such programs have on poverty. Applying the new measure, almost 7 million more people would have lived in poverty in 2009 and 2010 absent government action.

The chart below shows the effect of adding or subtracting a benefit program or expense on the poverty level for both 2009 and 2010. In general, including SNAP benefits, housing subsidies, school lunch programs, WIC, and energy assistance programs all result in lower poverty rates. On the other hand, subtracting amounts paid for child support, income and payroll taxes, work-related expenses, and medical out-of-pocket expenses result in higher poverty rates.

For instance, including the Earned Income Tax Credit (EITC) results in lower poverty rates; without it the poverty rate for all people would have been 18 percent rather than 16 percent in 2010. The EITC had a significant effect on child poverty—if the EITC is not included, the child poverty rate would be 22.4 percent rather than 18.2 percent. Similarly, excluding SNAP would increase poverty by 17.7 percent and excluding housing subsidies, school lunches, WIC, and LIHEAP would increase poverty by 16.9 percent, 16.4 percent, 16.1 percent, and 16.1 percent respectively.

These figures prove that public benefit programs are an important factor in poverty alleviation. Without such programs the level of poverty in the U.S. would be significantly higher. Especially in today’s economy, the supplemental measure highlights the need for such programs and reiterates the fact that the nation cannot afford further cuts in them.  

Effect of Supplemental Poverty Measure on Public Benefits 

The Supplemental Poverty Measure will not replace the official poverty rate, but instead will be published alongside the traditional figure as a "supplement" for federal agencies and state governments. It will not change eligibility for governmental benefits or the formulas by which billions of dollars in federal spending are distributed to states and localities. It will, however, provide a much more accurate view of poverty in America and better demonstrate the effect of government benefit programs in reducing poverty. 

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Most of the news we hear about housing in the United States is bad. Homelessness, evictions, and foreclosures are omnipresent, and housing assistance is hard to find. In some parts of the country, homelessness is being criminalized—either directly through laws that criminalize sleeping and camping in public places, or indirectly, through laws that try to hide homeless populations, such as the Orlando ordinance that requires organizations to obtain permits to feed groups of twenty-five or more people in city parks. (Because the Orlando ordinance also states that only two permits a year will be issued for any one park, it means that organizations conducting large-scale feedings have to move from place to place—making it difficult for homeless people to establish a routine.) Debates about homelessness have even surfaced at Occupy Wall Street and other Occupy demonstrations across the country, where some protesters welcome homeless people, and others worry that their presence adds unwelcome complications to the Occupy movement. 

But there has been some good news about housing in 2011, and it’s from an unexpected corner: human rights law. The United States has long lagged behind other countries when it comes to recognizing a human right to housing. The United States has signed but not ratified the International Covenant on Economic, Social and Cultural Rights, the major international human rights instrument acknowledging “the right of everyone to an adequate standard of living . . . including adequate food, clothing, and housing.” Unlike other countries, such as South Africa, the U.S. Constitution does not provide its citizens with such a right, and efforts to push the U.S. Senate to ratify the International Covenant on Economic, Social and Cultural Rights have stalled.

All of this background makes the events of 2010 and 2011 seem even more exceptional. As Eric S. Tars and Déodonné Bhattaraiwrite in the 2011 Special Issue of Clearinghouse Review: Journal of Poverty Law and Policy:

Over the course of 2010 and early 2011 an extraordinary series of events opened the door to discussion about housing as a human right in the United States. The Universal Periodic Review began with a nationwide consultation involving thousands of community participants and culminated in an international review of human rights in the United States in Geneva in November. At this review the U.S. Department of Housing and Urban Development (HUD) affirmed for the first time the relevance of an international human rights mechanism to its role in setting domestic housing policy. Five months later, again for the first time, the U.S. Department of State, in consultation with HUD, supported recommendations on affordable housing and protecting the rights of homeless persons, among others, in response to the Universal Periodic Review. The following week the State Department announced a reembrace of economic and social rights, including the right to housing, after seventy years of treating them as second-class rights.

This remarkable progress shows how U.S. poverty law advocates can use international human rights mechanisms—such as the Universal Periodic Review—to help their clients. The 2011 Special Issue of Clearinghouse Review, titled Human Rights: A New (and Old) Way to Secure Justice, contains articles from practitioners and academics demonstrating how poverty law practitioners can harness the power of international human rights law to work for their clients. With case studies from across the country and as far away as Australia, Clearinghouse Review’s 2011 Special Issue is a must-read for any poverty lawyer trying to approach his or her work from a new angle. It should as well be essential reading for members of Congress as they consider the final fiscal year 2012 levels of funding for HUD’s affordable housing programs. Without the dollars necessary to sustain these housing programs, a human right to housing is essentially meaningless to the millions of families in need.

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