Robert Magee, Staff Writer, RMagee@albanylaw.edu
This past summer, Rockland County announced a welfare amnesty program which enables so-called “welfare cheats” to, upon voluntary confession, escape prosecution by agreeing to pay back the balance of the amount they had stolen.1 The proclamation came upon the heels of an announcement that the county had caught forty-three such cheaters red-handed, to the tune of $318,000 of stolen welfare funds.2
As a matter of public policy, amnesty programs bear a dubious history. In 1919 the Internal Revenue Service (IRS) announced an amnesty program for tax-cheaters, allowing them to duck criminal liability upon confession.3 The program was never publicized and after running for a mere three months, the IRS announced reservation of their right to prosecute, even upon confession.4 Few stepped forward. On the other hand, in 1993 the Anti-Trust Division of the Department of Justice established an amnesty program as part of its efforts to curb cartel activity. This amnesty program allowed firms, who were involved in cartel activity, to step forward and escape criminal liability for all of its individual members, but only if it was the first firm to report that cartel organization.5 Additionally, the program allowed firms to escape all liability if no investigation was yet underway.6 Amnesty applications increased twenty-four fold.7
Amnesty programs also skate on the very thin ice of our confused justifications for criminal law. While they fall squarely in the crime prevention camp, they do nothing to satiate the appetites of the moral/social condemnation or objective morality crowds.8
Still, as a matter of government policy they are logically appealing and their history betrays some potential. However, they must be tailored both to their crime and their criminal.
If we are to accept that gun buy-back programs (GBBPs) are a form of amnesty, their ultimate failure to prevent gun violence is instructive on both these ends. GBBPs allow people to trade in guns to authorities for compensation: no-questions-asked. The idea is to get guns out of the hands of criminals, who could either trade in the gun for approximately $150 or use the weapon to rob that same amount and incur criminal liability. Most of the guns these programs receive, however, are defective.9 This would seem to suggest that GBBPs pick up on the free market’s rhythm on the off-beat.10
By accepting all manner of guns, GBBPs created an artificial demand for all manner of shoddy firearms and attracted not potential criminals, but people with guns they could not use or sell elsewhere. By absolving the participant of all liability, it created a market for stolen guns.11 GBBPs were thusly a blunt object and if they swept up any gun violence in their application it was in spite of themselves.
Amnesty is often declared in nations overcoming periods of political strife.12 In these cases, amnesty is declared primarily to 1.) reconcile differences, 2.) ease the burden on the judiciary during a time of restructuring, 3.) as a statement of independence from past regimes.13 For example, Jimmy Carter’s first act as President was to declare amnesty for young men who dodged the draft during the Vietnam War. Similarly, in 2005, Algeria passed by national referendum the Charter for Peace and National Reconciliation, which provides amnesty for anti-government guerillas who are willing to lay down their arms, as a means of ending the ongoing civil war.14 We see in this species of criminal amnesty an abiding respect for the utility of criminal prosecution and a willingness to abandon it where the utility no longer exists.
But all these programs have yielded only dubious results. Algeria’s treaty, while it did ease tensions briefly, has failed to solve the problems it was designed to.15
Rockland County’s program will likely meet a similar fate, unless it learns the lesson taught by history: that an amnesty program is a complex beast. No state sanctioned confessional will attract the contrite or rid it of the criminal menace without an understanding of the menace or the criminal.
The menace in this case is a loss of public benefits money. But let us take a step back. Rockland County’s bust up netted $318,000 from forty-three culprits. That is roughly $7,395 per person. 80% of the money came from Medicaid and the arrested represent .1% (one tenth of one percent) of the welfare recipient population in the county. Nine of the forty-three stole more than $10,000 and four of these stole more than $30,000.16 Like any monumental District Attorney bust-up following an investigation that was “complex, intensive and expensive[,]”17the initial numbers are worthy of some suspicion, but we will consolidate that suspicion by highlighting the fact that forty-three currently “stand accused.”
The criminal, here, is the worthy public benefits claimant who overstayed his or her welcome. The forty-three either overstated their poverty or exaggerated their ailments to qualify for more public assistance than they were entitled to. Now, the fact that they have such little income is not important except insofar as it makes Rockland County’s prospects of ever seeing that money again extremely unlikely. Most of this money was stolen from Medicaid which means 80% of the arrested had either 1.) some condition which kept them from working or 2.) a pretty endemic aversion to an honest days’ work. They very likely had both. In any event, these are judgment-proof defendants and for Rockland County the money is gone.18 Further, we can infer from the horrific numbers on American debt19 and the fact that the criminals here were at least destitute enough to get their foot in the door at the DSS, it is highly likely the money is spent. Conditioning amnesty on its return is illusory and is doomed to be ineffective.
Consider a more tactful approach. Provide amnesty for those willing to admit to less than the total recovered, say, between 55% and 70% of what’s owed. It is unlikely Rockland County will recover that much in the instant cases and 45% to 30% of the wrong is probably a fair trade for the criminal willing to allow the county to forgo the costs of investigation, prosecution and recovery.20
Next, provide a reward program for tips leading to successful criminal welfare fraud prosecution. Specifically, the county should split recoveries with welfare fraud informants. Once again, it is a fair trade for saved expenses and it is a powerful motivator in two ways. Firstly, welfare fraud criminals typically hang out with other poor people. There is no evidence of any sense of comity amongst the poor of Rockland County or elsewhere and secondly, the possibility of recovering half of, say, the $46,000 stolen by a couple in Nanuet is a pretty compelling reason to turn.
Steven Sharp & Eric Schillinger, editors
1 Associated Press, Rockland County Announces Welfare Cheat Amnesty, NY Leg. Gazette, p. 2, June 30, 2008.
3 Bonnie G. Ross, Federal Tax Amnesty: Reflection on the States’ Experiences, 40 Tax Law. 146 (1986)
4 Id. at 147.
5 Gary R. Spratling, Detection and Deterrence: Rewarding Informants for Reporting Violations, 69 Geo Wash L. Rev. 798, 800 (2001)
7 M. Ryan Williams, The Devil You Know: The DOJ’S Flawed Antitrust Leniency Program, 85 NC L. Rev. 974, 981 (2007).
8 This fact is particularly interesting when compared against the fact that most amnesty programs apply to white-collar crimes.
9 David B. Kopel, Guns, Gangs and Preschool, 1 Barry L. Rev. 63, 80 (2000).
10 This is further supported by the fact that 10% of participants in gun-buyback programs who were surveyed as part of Seattle’s gun buy-back program in the early 1990s said they were using their money to buy newer guns or contribute to the NRA. The remaining 90% swore they would never commit another crime as long as they lived. Id at 80.
12 Gwen Young, Amnesty and Accountability, 35 U.C. Davis L. Rev. 427, 434 (2002).
13 Id. at 433-38.
14 Algerian Voters Back Peace Plan, B.B.C. News, Sept. 30, 2005.
15 Russia Denounces Terrorist Attacks in Algeria, N.V.I. Novosti, Aug. 19. 2008.
16 Steve Lieberman, 43 in Rockland Accused of Welfare Fraud, June 24, 2008 available at http://www.lohud.com/apps/pbcs.dll/article?AID=/20080624/NEWS03/806240384/0/opinion.
17 To quote Rockland District Attorney Thomas Zugibe. Id.
18 Recovery in Medicaid fraud cases is complex. Where a recipient receives more than necessary as part of some clerical error, the amount is discounted from subsequent, deserved, payments. Of course, the county can go after assets, but for obvious reasons that probably won’t do their citizens much good. A married couple, 24 and 30 year old from Valley Cottage, NY may pay back the $5,777.50 they owe, but this isn’t likely for a 61 year old out of Haverstraw accused of stealing $4,137.94. Consider further that the expense of uncovering the fraudulent claimants, the expenses of prosecuting them, the expense of defending them, the expense of jailing them, the expense of monitoring their hypothetical return of the loot would make any actual return of it seem quaint.
19 Gretchen Morgenson, Given a Shovel, Digging Deeper Into Debt, N.Y. Times, Jul. 20, 2008, at A1.
20 This is all the more compelling that Rockland County’s public welfare authorities are at least partially to blame for being asleep at the wheel in these cases.