Monday, July 16, 2007

Full Constitutional Protection for Some, but No Privacy for the Poor

New York Times:By ADAM LIPTAK
In San Diego, poor people who want public benefits must give up their privacy. Investigators from the district attorney’s office there make unannounced visits to the homes of people applying for welfare, poking around in garbage cans, medicine chests and laundry baskets. ...

Lawyers who have sued on behalf of the applicants say that being poor should not mean having to give up the Fourth Amendment’s protection against unreasonable government searches. So far, the courts have disagreed, saying that rooting out welfare fraud justifies the searches, but not without drawing some fierce dissents. ...

The San Diego program is the most aggressive one in California and perhaps in the nation, but the recent decisions have probably given governments around the country all kinds of ideas. An earlier home-visit program, instituted in New York in 1995 by Mayor Rudolph W. Giuliani, was largely dismantled as part of the settlement of a lawsuit in 1997.

Lawyers for the plaintiffs in San Diego said the money the county saved was not worth the price in privacy and dignity.

“The poor are presumed guilty, presumed lazy and presumed to be trying to gain something they don’t deserve,” said Professor Budd, who now teaches at the Franklin Pierce Law Center in Concord, N.H. “It’s a general poverty exception to the Fourth Amendment.” ...

The majority also relied on a 1971 Supreme Court decision, Wyman v. James, which upheld a New York program involving scheduled visits from social workers, not surprise searches by investigators from a prosecutor’s office. The Supreme Court said the main purpose of the New York visits was “rehabilitation.”...

One of the dissenting judges, Harry Pregerson, writing for himself and six colleagues in April, suggested one sort of argument that might be promising. He said there was a double standard at work.

“The government does not search through the closets and medicine cabinets of farmers receiving subsidies,” Judge Pregerson wrote. “They do not dig through the laundry baskets and garbage pails of real estate developers or radio broadcasters.”

Only the poor, he said, must “give up their rights of privacy in exchange for essential public assistance.”

Wyman v. James was a relatively new decision when I read it in law school. It made me ashamed to be an American. My recollection is that it was Justice Harry Blackmun's "maiden opinion" as a new member of the Court. I wonder what he thought of it in his later years. And here it is again. This is one precedent that the current Court majority seems unlikely to undermine or reverse. It sucks to be poor in America.

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