Originally published in the New Haven Advocate, April 26, 2007.
Marlo Donald was kicked off Social Security for kicking someone almost 20 years ago. The bizarre tale of a "fugitive felon."
Marlo Donald is not what you’d expect a “fugitive felon” to look like.
At 35, she has a young face, soft features and a tendency to erupt in unprovoked laughter. She’s lived most of her life in Waterbury—the wife of a police officer, an active member of her church, a mother of three and a daycare worker.
But in 2001, an emotional breakdown led to several hospitalizations and a diagnosis of bipolar disorder. Soon, her eight-year marriage was over, she was jobless and surviving on a Supplemental Security Income check of $603 a month. In October 2005, without notice Donald’s monthly deposits stopped appearing in her checking account. She called the local Social Security office and was told that her benefits had been canceled. According to their records, she was a “fugitive felon” and therefore ineligible for government aid.
“You’ve got to be out of your mind,” she remembers thinking. “I ain’t never committed any crime that warrants no felony.” All they could tell her was the warrant was out of Westborough, Mass. “Now I’m really buggin,’” she says, “because I ain’t never even been to no Westborough, Massachusetts.” In fact, she had been in Westborough—once. But it was so long ago, she says, that she didn’t remember.
Having recently lost her wallet, Donald was convinced an identity thief was responsible. She sought the help of a local Legal Aid attorney, Julia Bradley, who tracked down the warrant and discovered that it wasn’t identity theft, but an “Assault with Shod Foot” arrest from when Donald was 17 years old that had triggered the cancellation. Donald had kicked a Job Corps counselor who was trying to restrain her. Donald, who thought the charge was resolved long ago, was stunned. Without income, she had to live in a women’s shelter, where she was supported by a local pastor who Donald refers to as “the Christian lady.” It was a difficult and stressful time.
Donald can thank the so-called Welfare Reform Act, passed by Congress in 1996, for her ordeal. Within three years, the landmark law, signed by President Clinton, had pushed 4.7 million poor people off the welfare rolls, according to the White House’s “welfare reform works” website, by putting strict limits on who could receive benefits and for how long. Even the law’s official name was a cruel irony: the federal Personal Responsibility and Work Opportunity Reconciliation Act.
Much of the law was controversial, but Section 202, “Denial of SSI benefits for fugitive felons and probation and parole violators,” was not. Section 202 said that a “fugitive felon”—someone who’s fleeing to avoid prosecution, custody or confinement after conviction, or violating a condition of probation or parole—cannot receive governmental assistance while on the lam. No food stamps, no housing aid, no income support. It seemed like common sense. Not even the most radical opponents of welfare “reform” would argue that justice-evading murderers should be able to sip mojitos in a Florida beach house on the taxpayers’ dime.
But after years of dealing with the policy in practice, some disabilities advocates and Legal Aid groups had enough. The Social Security Administration relies on an error-laden database, they say, and the agency’s practice of cutting off people without an opportunity to dispute or satisfy the warrant is unfair. It’s ineffective bureaucracy and bad policy, opponents say.
In 2005, Connecticut Legal Services, Inc., Greater Hartford Legal Aid, Inc. and New Haven Legal Assistance Association signed on to a brief filed with the U.S. Second District Court of Appeals in New York in a case challenging the fugitive felon policy. The brief described the case of a Connecticut woman, “Christina R.” whose benefits were canceled because of mistaken identity.
Christina R. got notice from SSA that there was an outstanding warrant for her from Natick, Mass. for passing bad checks. But while the name and birth date on the warrant were the same as Christina R.’s, the social security number was different. And, according to the brief, Christina R. had never been to Massachusetts and had never committed a crime there. The court in Natick eventually recalled the warrant, but the Social Security Administration continued to try and collect the more than $23,000 in “overpayments”—withholding 10 percent of her monthly payments until, after six months, she filed an appeal. It took more than a year for an Administrative Law Judge to decide in her favor and find that she hadn’t been overpaid.
The brief goes on to tell the story of “Wayne C.”, an HIV-positive, wheelchair-bound Bridgeport man, who was referred to Connecticut Legal Services by his mental health social worker. Wayne C. suffered from depression and post traumatic stress disorder and lived in a supportive housing program for people at risk of homelessness. When his benefits were canceled, Wayne C. worried that he’d lose his housing. He tried to turn himself in to the Bridgeport police but the police department was “unwilling to deal with his charges,” according to the brief. He became suicidal. In time, his attorney tracked down the original warrant, from Chicago, and found that it was for the attempted theft of less than $300—a misdemeanor offense. Eventually, Wayne C.—who the brief calls “neither a fugitive nor a felon”—had his benefits reinstated.
Jane Gelfand of Positive Resource Center, a San Francisco-based legal services nonprofit for people living with HIV-AIDS, says that it’s not uncommon for fugitive felons to try and turn themselves in. “But the police department’s like, ‘We don’t want you, Georgia doesn’t want you. Go home.’” Many departments, says Gelfand, are not interested in putting money and manpower toward a crime that’s relatively minor or very old.
Wayne C., Christina R. and Donald are among thousands of “fugitive felons” in Connecticut, according to Social Security Administration data provided in response to a Freedom of Information Act request. It’s impossible to know exactly how many because the SSA’s database matches warrants to SSA beneficiaries based on where the warrant was issued, not where someone’s living and receiving benefits. But between 2000—when the SSA began tracking the data—and 2006, there were 2,800 “verified” Connecticut warrants.
Between 1996 and April 13, 2007 the SSA says that the policy stopped benefits for about 323,000 people and led to the apprehension of 44,500.
Because the Fugitive Felon Program deals with people who, by definition, are the most vulnerable (SSI’s designed to provide “a minimum level of income to financially needy individuals who are aged, blind or disabled”), the effects of a benefit shutoff can be huge. “To lose income and health insurance for even a month,” says Gelfand, “often means eviction—that lives spiral out of control.”
The Appeals Court suit, Fowlkes v. Adamec, argued that the SSA’s policy of canceling benefits simply because a warrant pops up in a database violates due process. The Appeals Court agreed, saying that the SSA has to show that the “fugitive felon” was intentionally fleeing. But Connecticut Legal Aid lawyers say the SSA has continued to cancel benefits based on a warrant alone—and with no proof of intent.
“The bottom line,” says Joanne Lewis, a Legal Aid attorney in New Britain and one of the signers of the brief, “is that while pretty much anyone would agree that we shouldn’t be giving benefits to somebody to help them run from the law, the net is so wide.” Many of those who get caught in that net, according to Lewis, are people who committed very minor crimes a long time ago—a 20 year old probation violation and a charge from the ’70s for passing bad checks, are two examples she mentions. In a letter to the federal Commissioner of Social Security arguing against a strengthening of the fugitive felon provisions, she writes, “We are concerned that these proposed regulations will perpetuate most of the injustice and suffering we have witnessed.” She adds, “They put too much burden on vulnerable individuals.”
In a 2003 audit, the SSA analyzed the cases of 300 fugitive felons and found that of the 192 who had their benefits cut off, 180 were disabled. Of those 180, 106 suffered severe mental disability, including mental retardation and schizophrenic disorders. There were 108 cases where benefits weren’t canceled for various reasons, including: the beneficiary was found not to be a fugitive felon; he hadn’t actually been receiving benefits; the warrant couldn’t be verified, the beneficiary was ineligible for benefits for other reasons; the beneficiary was incarcerated, had died or was the victim of identity theft.
“Poor, disabled and elderly people are not necessarily fleeing just because a warrant was issued and remains unsatisfied,” writes Lewis. The burden, she says, should be on the state to prove that the SSA has identified the right person (because cases of identity theft and mistaken identity are common). It’s also the state’s responsibility to prove the underlying crime is a felony and not a misdemeanor, and that the accused is intentionally fleeing and not simply unable—for financial or health reasons—to return and resolve the warrant, Lewis says.
In 2004, despite public comments from advocates for the disabled and Legal Aid lawyers like Lewis, Congress passed the Social Security Protection Act, which expanded the existing fugitive felon rules to include not only SSI beneficiaries, but Social Security Disability Insurance (SSDI) and survivors and retirement beneficiaries as well. Unlike SSI, retirement and SSDI money has not traditionally been considered a benefit. Instead, it’s considered an “entitlement program,” which every worker pays into and is entitled to receive when they retire or become disabled. This money, unlike welfare, is earned.
Like the Welfare Reform Act before it, the Social Security Protection Act was controversial. In Connecticut the vote broke straight down party lines, with Democratic Reps. Rosa DeLauro and John Larson voting against it, and Republican Reps. Rob Simmons, Christopher Shays and Nancy Johnson voting in favor. It passed the Senate with unanimous consent.
So how did the fugitive felons program come about? “Somebody, somewhere wanted to save money and came up with the bright idea that we really shouldn’t be paying money to criminals,” says Gerald McIntyre, an attorney at the National Senior Citizen’s Law Center and one of the leading opponents of the fugitive felon rules.
The Fugitive Felon Program saved the SSA $83.4 million between 1996 and 2003, including $9.3 million that it recovered in “overpayments” from felons who had received benefits while they were ineligible and were required to pay the government back, according to the SSA’s 2003 audit. A 2002 report, by the U.S. General Accounting Office (since renamed the Government Accountability Office) says the “erroneous payments” to fugitive felons continued to cost the government $1.64 billion in 2000. It recommended strengthening the Fugitive Felon provisions.
Marlo Donald sits at her kitchen table in a modest apartment on Vine Street in Waterbury. She’s wearing a white turtleneck beneath a grey Aeropostale sweatshirt, sweatpants and slippers. As she walks me through the details of her life, soap operas play on mute on a small television in the corner. She’s candid, sharing intimate details without embarrassment. Her mental illness, the breakup of her marriage and her arrest all receive the same, steady treatment.
When Donald was 17, she went to a Job Corps center in Grafton, Mass. While there, she got pregnant. While pregnant, she got sick. Her parents encouraged her to return home to Waterbury. But when she told the Job Corps counselors she was leaving, Donald was told she couldn’t go. “I figured, I signed myself in, I should be able to sign myself out,” she says.
“They pushed me in a room and onto a bed and were trying to restrain me,” she says. Donald remembers “yelling, screaming, kicking, biting” to free herself and that the counselors got on top of her to keep her from trying to leave. But her arms and legs swung wildly. “I was telling them to get off me, ‘I’m pregnant,’ I said.” In the melee, she kicked one of them.
“I admit that I did it,” she says. “I don’t admit to straight-out attacking these people, but I admit that we had an altercation.” The Job Corps workers called the police. The next day, her things were packed for her and she was put on a bus and sent away. “All this time, all this stuff was going on,” Donald says. “I wasn’t even thinking about going to court.”
A couple of years later, one of her roommates was arrested on drug charges and Donald was brought in with him. In preparation for trial, her roommate’s attorney asked her about her criminal history, she says, and she told the lawyer about the Job Corps fiasco. As Donald explains it, she was given a “conditional probation” as a youthful offender and was under the impression that her plea applied to both the Massachusetts “shod foot” arrest and the drug charges. “I thought it was all dealt with,” she says. “It never ever came up again.” After that, Donald was not in trouble again until her divorce, when arguments between she and her then-husband, a police officer, led to a domestic violence call, she says, and both were arrested.
When Donald was told by the SSA that she had an outstanding felony warrant, the Massachusetts arrest didn’t even occur to her, she says. She’d been receiving SSI payments for two years by the time the arrest warrant popped up, which made her think it had to be something new—hence the identity theft theory. And she’d been working in child care, where record-checks are standard, and her arrest had never been an issue. She didn’t realize the assault charge was a felony in the first place, she says, but if it was, why was it just now appearing? The Job Corps center was in Grafton, not Westborough, and after 15 years, she didn’t remember being taken to another town’s jail. “I didn’t flee Massachusetts,” she says, “I was kind of pushed out.”
Julia Bradley, the Connecticut Legal Services attorney assigned to Donald’s case, went before administrative law judge Joyce Krutig Craig in Hartford to get the benefits cancellation overturned. But the judge was unsympathetic to Donald’s argument—that she didn’t know the Massachusetts warrant existed—and said that the only way benefits could be reinstated is if Donald got the charges formally dropped.
To do that, Donald had to get a Massachusetts attorney and make two trips for court appearances in Westborough. The Westborough prosecutor contacted the counselors who were at the Job Corps center when Donald was arrested more than a decade before. Two couldn’t be reached; one said she didn’t remember the case and the third counselor—who did remember and did appear in court—agreed that Donald’s charges should be dropped.
Donald, college-educated and physically healthy, was fortunate among those caught up in the fleeing felon net. She knew to get an attorney and she had a network of friends and family to support her during her 10-month fight to restore benefits.
The benefits attorneys at Connecticut Legal Services, Greater Hartford Legal Aid, Inc. and New Haven Legal Assistance Association had seen the flaws in the seemingly flawless logic of the fleeing felon exclusion: It was targeting the most vulnerable members of society—elderly retirees, the disabled and the mentally ill—for often-minor offenses that were years, sometimes decades, old. Like Donald, many of the people being booted from the benefits rolls were not murderers or rapists.
Of the 2,814 warrants from Connecticut, 42 percent are for a probation violation, 25 percent for failure to appear, 8 percent for larceny, 3 percent for burglary, 2.5 percent for assault, 2.2 for forgery, 2.1 percent for drug violations, according to the SSA’s database. Crimes against persons, parole violations, escape or fleeing to avoid prosecution, sexual assault, robbery, fraud or impersonation follow—in that order—with less than two percent each, followed by offenses with only a handful of warrants, which range from stolen property (seven warrants) to homicide (two warrants), contempt (one warrant) and statutory rape (three warrants).
A report by the San Francisco-based Center for Juvenile and Criminal Justice on the impact of the fugitive felon regulations on SSI recipients tells the story of “Frank,” an HIV-positive and mentally ill man who moved from his parent’s home in Connecticut to California. Before he left, he stole (and subsequently returned) a VCR from a friend. Though his friend didn’t want to press charges, according to the report, the warrant remained. Frank relied on SSI to pay for housing in San Francisco. When he lost benefits, he lost his housing and his access to a substance abuse treatment program. Without income, he couldn’t afford to return to Connecticut to resolve the warrant.
“Who walks into a federal building to apply for benefits?” asks Jane Gelfand of Positive Resource Center. “These are nothing warrants, and half the time they’re nonexistent, half the time they’re aliases or the warrant number doesn’t correspond to anything. There are huge problems.” Gelfand estimates that about one eighth of the Resource Center’s cases deal with benefits suspensions relating to the Fugitive Felons Program.
In other cases, “fugitive felons” are the victims of the criminal justice system in different states failing to work together. Donald’s attorney, Julia Bradley, is now dealing with a second fugitive felon case, involving a man who was jailed in Florida, released and extradited to Waterbury based on an outstanding Connecticut warrant. Still on probation in Florida, the state issued a warrant for probation violation after he missed meetings with his probation officer. Stuck in a Catch-22 of absurd proportions, Bradley’s client was on probation in two states simultaneously. “Some people have no brains,” says Bradley.
Donald’s just glad it’s over. She’s since remarried, has a new job and is working to rebuild her life. “When all was said and done,” says Donald, “I was just so thankful” to have it resolved. Even so, she has questions. “Why did it take 17 years for this to pop up? Why not when I first applied?”
The Social Security Administration denied the Advocate ’s request for an interview, but issued a written statement saying that following the Fowlkes ruling they are no longer using warrant information to cut off benefits to fugitive felons. They do, however, continue to cancel benefits based on probation and parole violations, which were not protected by Fowlkes.