Welfare fraud control units investigate allegations against Supplemental Nutrition Assistance Program (SNAP) and Temporary Assistance for Needy Families (TANF) clients of deliberately violating program rules. This is a specialized form of law enforcement operating within the US social safety net system. The foundational charges that they pursue are administrative: Intentional Program Violations (IPVs) allow state-level welfare agencies to suspend and disqualify clients, as well as seek restitution for identified overpayments. Administrative fraud units also act as feeder organizations for the conventional criminal justice system through referring cases to prosecutors’ offices for criminal charges.Footnote 1
Most of these units’ investigations involve alleged eligibility misrepresentation: suspicions that clients failed to report or misreported information about their household composition and financial circumstances pertinent to determinations of their eligibility for assistance. To do their jobs, fraud investigators seek information that differs from the information contained in official agency records on topics such as who lives in clients’ households and clients’ resource access. Through these efforts, fraud units build the knowledge that grounds their exercise of bureaucratic and legal authority (see Reference Ericson and HaggertyEricson and Haggerty 1997:94–95). Investigators seek information about people's income and places of residence that conflicts with signed attestations of circumstances. For their part, clients’ interests are served if they can avoid becoming targets of scrutiny, or limit authorities’ evidentiary access if investigated.
As they investigate allegations, accumulate evidence, and interact with clients and colleagues, authorities construct impressions of how clients understand program policies and enforcement practices. These impressions constitute “second-order legal consciousness”: “people's perceptions about how others understand the law” (Reference YoungYoung 2014:499). Reference YoungYoung (2014) compellingly reveals how different actors’ readings of one another shape law-infused social realities, focusing specifically on law enforcement targets’ understandings of enforcement authorities. To complement and extend Young's theory of second-order legal consciousness, I bring empirical focus on the other side of this relational equation, tracing how legal authorities’ perceptions of citizens’ thinking shapes enforcement itself.
Unlike foundational citizen-focused legal consciousness work (Reference CowanCowan 2004; Reference Ewick and SilbeyEwick and Silbey 1995, Reference Ewick and Silbey1998, Reference Ewick and Silbey2003; Reference SaratSarat 1990), this analysis does not investigate the origins of law's hegemonic power (or resistance thereof). Instead, it addresses a question unanswered in previous studies: how does authorities’ second-order legal consciousness operate, and to what effect? Legal authorities’ second-order legal consciousness completes the theoretical picture of legal consciousness’ relational operation. In general, processes of mutual assessment and interpretation underlie legal social structures’ construction (Reference YoungYoung 2014). Authorities’ perceptions of laypeople's legal understandings are noteworthy for their effects on law's manifestation. As I explain, this prominently includes effects on individuals’ discretionary practices—law in action—and sometimes effects on written rules—law in books. Both types of effect consequentially implicate legal social structures. When changes in formal rules occur, they alter these structures directly, and authorities’ aggregated agentic action becomes structural via institutionalization. These effects are crucial factors shaping the legal-bureaucratic edifices that laypeople encounter, and important components in the ongoing transactional creation of various parties’ legal consciousness.
Fraud authorities’ second-order legal consciousness is not just a set of working understandings relevant to their occupational responsibilities, but an important influence on fraud control's operation. In what follows, I first describe fraud workers’ second-order legal consciousness’ basic characteristics, focusing especially on “street policy,” a single concept condensing the key elements of fraud workers’ vision of clients’ legal consciousness. I then discuss how these perceptions affect their discretionary action on the job, as well as how they can inform written legal rules. Finally, I explain how such outcomes demonstrate second-order legal consciousness’ power as a factor in legal social structures’ construction, and briefly suggest how future research might build on the findings reported here.
1. Position, Power, and Practices in Building Legal Social Structures
Legal consciousness typically refers to law's meaning in everyday life: “the ways people understand and use law” (Reference MerryMerry 1990:5). Legal consciousness research focuses on how people think about and act in relation to law, legal systems, and legal authority in an array of contexts. Legal consciousness is relevant in settings across the spectrum of explicit legalization, from public spaces (Reference NielsenNielsen 2000), to work (Reference HoffmannHoffmann 2003), to welfare offices (Reference SaratSarat 1990), to illegal subcultures (Reference YoungYoung 2014, Reference Young2016), to civil litigation processes (Reference Berrey, Hoffman and NielsenBerrey et al. 2012), to criminal trials (Reference Fleury-SteinerFleury-Steiner 2003, Reference Fleury-Steiner2004). Social positions, power relations, local circumstances, and identity characteristics all shape individuals’ legal consciousness (Reference Ewick and SilbeyEwick and Silbey 1998; Reference Hirsh and KornrichHirsh and Kornrich 2008; Reference Hirsh and LyonsHirsh and Lyons 2010; Reference HullHull 2016; Reference MarshallMarshall 2003; Reference SilbeySilbey 2005). Individual- and group-level differences in legal consciousness, in turn, shape interactions with legal systems and legal authorities (Reference Berrey, Hoffman and NielsenBerrey et al. 2012; Reference Berrey, Nelson and NielsenBerrey et al. 2017; Reference Felstiner, Abel and SaratFelstiner et al. 1980; Reference GilliomGilliom 2001; Reference HoffmannHoffmann 2003; Reference SaratSarat 1990) and personal identities (Reference Engel and MungerEngel and Munger 2003; Reference YoungYoung 2016).
As these studies represent, most legal consciousness research intentionally focuses on ordinary citizens’ understandings and use of law (Reference Ewick and SilbeyEwick and Silbey 1998; Reference SilbeySilbey 2005; Reference ValverdeValverde 2003; but see Reference Cornut St-PierreCornut St-Pierre 2019; Reference RichardsRichards 2015). To build a more encompassing picture, I invert this conventional focus, examining how the members of a legally empowered group view another group members’ legal consciousness. Welfare clients’ structural position is dually important in driving second-order legal consciousness’ power in this context. First, welfare participants are legally disempowered in general, with curtailed privacy rights and due process protections compared to people who do not participate in means-tested programs (Reference BridgesBridges 2017; Reference GilliomGilliom 2001; Reference GilmanGilman 2008; Reference GustafsonGustafson 2009:701–707; Reference Headworth and Ossei-OwusuHeadworth and Ossei-Owusu 2017). Second, when fraud workers build understandings of clients’ legal consciousness, they are not just thinking about a generally disempowered group, but one over whom they hold specific legal authority and punitive power. This foregrounds structural asymmetries and power dynamics in the establishment of their second-order legal consciousness.
This study thus brings power to the fore, highlighting how structural advantage and disadvantage shape the production of legal consciousness and law-infused social practices. Power differences are ubiquitous in this setting. Impoverishment renders people reliant on public assistance programs for basic subsistence, and limits opportunities to assert rights (Reference BridgesBridges 2017; Reference GilliomGilliom 2001). A web of complicated legal rules enmeshes program participants (Reference SaratSarat 1990). Clients who violate rules typically do so because of economic desperation or ignorance of their legal obligations, complicating narratives of welfare rule-breaking as purposeful resistance (Reference GustafsonGustafson 2011). Reliance on assistance programs can make fully withdrawing from participation impossible, and necessitate strategies that support subsistence amidst surveillance and sanctioning systems (Reference Edin and LeinEdin and Lein 1997; Reference FongFong 2018; Reference GustafsonGustafson 2011). People who see themselves as more powerful relative to social welfare institutions may accordingly feel comparatively insulated from surveillance and punishment (Reference FongFong 2018:18–19); exposure and legal vulnerability, however, are pervasive aspects of program participation.
Focusing on how legally vulnerable targets of policing understand enforcement actors’ thinking and motivations (see also Reference StuartStuart 2016a), Reference YoungYoung (2014) uses second-order legal consciousness to demonstrate that legal consciousness is fundamentally relational. Her analysis of Hawaiian cockfighters’ interpretations of police action illuminates how observing others’ behaviors, assessing their thinking, and gauging their motivations helps produce shared legal understandings and durable social practices related to the law and its enforcement.
Reference YoungYoung (2014) gestures to the idea that second-order legal consciousness may shape enforcement itself. However, because her data do not include police officers, she cannot speak to this point directly. My study does speak to this point. In so doing, it adds a key link to the social scientific understanding of legal consciousness’ processual operation in society. It documents how legally empowered actors’ perceptions of how people subject to their authority understand law shape legal power's manifestation. Viewed in combination with previous work, this account completes the picture of the iterative process of social exchange through which different actors’ attempts to “read one another's minds” help produce lived legal realities. By bringing in enforcement-side data, my study attends directly to how legal authorities’ perceptions of citizens’ legal consciousness changes enforcement itself. In this sense, the study builds on other research addressing how legally empowered actors’ conceptualizations of people's legal understandings shape how they discretionarily exert their authority. Police, for instance, may believe that drug addicts have voluntarily forfeited their legal rights, and thus act toward them in ways that reflect that perception (Reference MoskosMoskos 2008:45–46; see also Reference SkolnickSkolnick 1966:145–147). This article further elaborates how authorities’ second-order legal consciousness shapes their discretionary approaches to their jobs. Moreover, it shows how these perceptions can even precipitate changes in written legal rules. Together, these effects make second-order legal consciousness an important factor shaping both law in action and law in books.
My approach responds to Reference SilbeySilbey's (2005) call for closer attention to the mechanisms that produce legal consciousness. Grappling with these processual questions allows legal consciousness studies to regain some of the analytical leverage and theoretical utility that Silbey contends they have lost in focusing too much on individuals’ relationships to particular policies. Reference SilbeySilbey (2005:359) argues that “legal consciousness should be a tool for examining the mutually constitutive relationship between” law in books and law in action. To advance the field, she advocates research “look[ing] at the middle level between citizen and the transcendent rule of law: the ground of institutional practices” (Reference SilbeySilbey 2005:360). Welfare fraud enforcement offers such a location, where a particular type of legal consciousness among key institutional actors shapes welfare law's content and application. “Everyday transactions” between legal superordinates and subordinates influence both the formal rules and the informal norms through which legal authorities exercise legal power (Reference SilbeySilbey 2005:330–331). Welfare fraud workers draw on such transactions in building visions of how clients understand welfare law and its application to their lives.
The concept of street policy distills fraud workers’ vision of clients’ understandings of welfare law and enforcement practices. “Street policy” denotes fraud workers’ shared belief in a distinct collection of unofficial, program-related legal knowledge among clients. The concept offers analytical utility as a single notion that condenses the key elements of fraud workers’ second-order legal consciousness pertaining to clients. First among these key elements is fraud workers’ belief that street policy includes both “law in books” and “law in action” (Reference PoundPound 1910) legal knowledge; that is, fraud workers state that street policy entails information about formal legal rules and information about day-to-day enforcement practices. Second, street policy includes the idea that this information is shared via interpersonal communication and clients’ social networks; street policy thus constitutes group-level knowledge (see Reference YoungYoung 2014:502) that fraud workers ascribe to clients, albeit knowledge that varies in content, scope, and sophistication between individuals. The final key element captured in the concept of street policy is an unfavorable comparison—explicit or implied—to official policy and actual enforcement practices. In part, fraud workers’ comparatively unfavorable opinions of street policy reflect their belief that it is sometimes inaccurate. However, even—or especially—if street policy information is accurate, fraud workers view it unfavorably because of the challenge it presents to authorities’ control over messaging about rule compliance and over assistance programs themselves.
It is unsurprising that clients might talk about benefit programs or their experiences therein. But to fraud workers, street policy's characteristics make it inherently problematic, or even criminal. This evaluation reflects fraud workers’ structural position. Their incentives center on identifying client overpayments, ideally those they can substantiate as intentional. To them, street policy presents an obstacle to effective fraud enforcement, and effective program administration overall. In immediate terms, it threatens their objective of catching clients breaking rules. More broadly, it threatens their and their agencies’ capacity to maintain encompassing client oversight and control over benefit disbursement. Their responses to street policy accordingly show their efforts to bypass or influence it. Their reaction is two-pronged: they devise enforcement interventions to defeat street policy knowledge they see as antithetical to their goals, and also try to repurpose street policy dissemination channels to transmit their preferred information.
Focusing on legal authorities’ strategies for engaging with the public—rather than how laypeople engage with the law and legal institutions—offers a new vantage point on the exercise of legal power. As legal superordinates, authorities have disproportionate power to influence legal social structures, and thus shape life experiences in both manifestly law-infused environments and the wider social world. Their powerful positions also create substantial capacity to cause reactivity, affecting the social world they set out to monitor and assess (Reference Espeland and SauderEspeland and Sauder 2007, Reference Espeland and Sauder2016; Reference MacKenzieMacKenzie 2008). Authorities’ assessments of clients’ thinking inform their action in their official capacities, and sometimes legal rules themselves. This alters the legal-bureaucratic edifice that clients encounter, potentially causing corresponding changes in their thoughts and behaviors and driving an ongoing dynamic of mutual assessment and response.
2. Data and Methods
I oriented this study's data collection around classic “law in books” and “law in action” questions (Reference PoundPound 1910). To study how written law and policy become “real” through implementation (Reference LipskyLipsky 2010[1980]), I began with a review of relevant federal law and a national overview of dedicated fraud control units within the fifty US states’ and the District of Columbia's SNAP and TANF administration bureaucracies. This national overview comprised compiling publicly available reports of fraud units’ characteristics and activities, as well as soliciting further information from agency representatives. Based on its results, I selected five case study states in which to conduct interviews with fraud workers. The data collection did not pursue the goal of representativeness that motivates the sampling logic best-suited for descriptive questions about populations. I collected interview data for the purposes of logical inference, not statistical inference (see Reference SmallSmall 2009; Reference YinYin 2014).
Sampling for range (Reference SmallSmall 2009; Reference WeissWeiss 1994), I selected case study states to provide variation on three variables with theoretical bearing on fraud control: dominant political party (Democrat vs. Republican), public benefit system size, and criminal justice punitiveness, operationalized as incarceration rate. I anonymize these five sites with identifiers denoting their regional locations within the United States: “Eastcoast,” “Midatlantic,” “Northeast,” “Southeast,” and “Southwest.” Although there are important between-state differences in fraud control policy and practice, in this article I focus on the synthetic second-order legal consciousness broadly shared across different jurisdictions’ fraud workers. Informational redundancy (Reference SandelowskiSandelowski 2008:875) across the five states’ interviews reveals the patterns that ground this article's argument. Indeed, despite significant interjurisdictional variations in fraud control approaches, fraud workers’ second-order legal consciousness and their statements about its influence demonstrate core similarities across jurisdictions. Herein, I document these similarities, describing processes common to welfare authorities working in varying political, legal, and bureaucratic contexts.
I conducted in-depth, semistructured interviews (Reference Berrey, Hoffman and NielsenBerrey et al. 2012; Reference Ewick and SilbeyEwick and Silbey 1998; Reference FongFong 2018; Reference GilliomGilliom 2001; Reference GustafsonGustafson 2011; Reference HoffmannHoffmann 2003; Reference McCannMcCann 1994; Reference WeissWeiss 1994) with forty-two fraud workers across the five states. Participants per state ranged from a high of fifteen in Eastcoast to a low of four in Midatlantic.Footnote 2 The interviewees include a range of those involved in fraud control efforts, including investigators, analysts, supervisors, and managers, as well as a handful of administrators with broader responsibilities; all names used here are pseudonyms. I recruited voluntary participants via a recruitment message shared by organizational gatekeepers in each state. The interviews ranged from forty-five minutes to two and one-half hours, and occurred in private areas (usually closed-door offices or meeting rooms) within public assistance agency buildings. Each interview covered a range of topics related to the substance and significance of fraud control work. To build rapport and encourage expansive responses, I allowed topics to flow naturally with the course of conversation.
I began my data analysis by reading through the interview transcripts and applying broad index codes to identify major thematic currents (Reference Deterding and WatersDeterding and Waters 2018; Reference MacQueen, McLellan, Kay and MilsteinMacQueen et al. 1998; Reference MasonMason 2002). Drawing preliminarily on my review of relevant theory and prior empirical studies, I used these codes to create topical subdivisions on different subjects within the corpus of interview data, which I then revisited for multiple rounds of narrower analytic coding. Previous research informed my initial analytic coding of themes and concepts, and emergent findings guided further concept identification and specification (Reference BeckerBecker 1998:Ch. 4).
“Street policy” constituted one such emergent finding. While preparatory reading sensitized me to legal consciousness themes, I did not expect these ideas to become an important subject of my study. The inchoate finding emerged from an “aha” coding (Reference Deterding and WatersDeterding and Waters 2018:20) of one respondent's use of the term “street policy.” I developed and refined the idea through memos on fraud workers’ perceptions of clients’ legal consciousness and respondents’ accounts of those perceptions’ impact.
Juxtaposing this surprising result with prior work provided the opportunity to expand and refine existing theory (see Reference Tavory and TimmermansTavory and Timmermans 2014). Related studies intentionally focus on surveillance and policing's targets (Reference Edin and LeinEdin and Lein 1997; Reference GilliomGilliom 2001; Reference GustafsonGustafson 2011; Reference SaratSarat 1990; Reference StuartStuart 2016a; Reference YoungYoung 2014). My findings presented an opportunity to extend this line of research, and especially Reference YoungYoung's (2014) theory of second-order legal consciousness, through examining how authorities’ second-order legal consciousness affects the nature of enforcement itself.
Thus, welfare fraud workers’ collective vision of how clients apprehend law and legal authority constitute this study's independent variable. Fraud workers’ position within a structurally asymmetrical system (Reference Berrey, Hoffman and NielsenBerrey et al. 2012) renders these perceptions particularly influential. To demonstrate that influence, I analyze legal power's manifestation as a dependent variable, showing how authorities’ second-order legal consciousness shapes both law in action and law in books.
The term “street policy” originated in a fraud worker's interview response. As this origin suggests, this article provides an enforcement-side view of street policy. Methodologically, focusing on enforcement agents produces a portrait of fraud control as it appears to the legally empowered actors responsible for its implementation. Enforcement agents’ accounts are not the best avenue to understanding clients’ legal consciousness itself. Rather, they provide insights into how people with legal power believe people subject to their authority understand the law. This second-order legal consciousness may be more or less accurate in its representation of how clients actually see law. Indeed, there is reason to question how well fraud workers’ second-order legal consciousness reflects clients’ real thinking, as the discussion below suggests. The (in)accuracy of fraud workers’ perceptions of clients’ understandings, however, does not significantly bear on this article's argument. The Thomas theorem (Reference Thomas and ThomasThomas and Thomas 1928:572) is strongly in effect here: second-order legal consciousness has its own set of consequences independent of its precision in replicating what clients actually think. These consequences are this article's focus.
Fraud workers’ accounts in interview responses necessarily involve retrospective constructions of how they think about and go about their work (see Reference Jerolmack and KhanJerolmack and Khan 2014). But for this article's purposes, this functions as a methodological strength, not a liability. Tendencies to foreground conceptually central and cognitively available aspects of second-order legal consciousness will lend institutionalized ideas a prominence in interview responses that corresponds to their prominence in fraud workers’ thinking (Reference Berrey, Hoffman and NielsenBerrey et al. 2012:11; Reference PughPugh 2013). Interviewees’ accounts offer valuable insights into the predominant ideas they draw upon when thinking about what they do at work, and why (see Reference Winchester and GreenWinchester and Green 2019).
3. Findings
3.1 Street Policy
As Reference YoungYoung (2014:502) defines it, second-order legal consciousness refers to “a person's beliefs about the legal consciousness of any individual besides herself, or of any group whether or not she is part of it.” Fraud workers’ second-order legal consciousness manifests notably in the latter form, as beliefs about how clients as a group understand welfare law and its enforcement. Police officers tend to view the public at large—and especially criminal suspects—with suspicion and distrust (Reference LeoLeo 2008:21; Reference ManningManning 1977:117). Fraud workers tend to feel similarly about the people over whom they have legal power.
The idea of “street policy” encapsulates fraud workers’ legal consciousness-specific perceptions of clients’ thinking. This term comes from Helen, a Southeast supervisor with years of experience in fraud investigation and child support enforcement. As fraud workers see it, street policy derives from a secondary market in information about welfare programs, beyond what clients accrue through interactions with agencies.Footnote 3 They believe that street policy information spreads via conversations in agency waiting rooms, discussions on the sidewalk, and interpersonal networks of friends and family. For welfare clients, “the law is all over,” (Reference SaratSarat 1990), an omnipresent set of policies, regulations, and enforcement authorities suffusing everyday life (Reference GustafsonGustafson 2011:9). Encompassing understandings of both written rules and enforcement practices, the concept of street policy captures the key elements of fraud workers’ perceptions of the unofficial legal knowledge that clients use to navigate this system.
Fraud workers’ statements about street policy suggest the prominence of a “with the law” schema in their legal consciousness. This schema highlights law as an arena of contestation with particular players, rules, and stakes, “in which actors struggle to achieve a variety of purposes” (Reference Ewick and SilbeyEwick and Silbey 1998:131; see also Reference MoskosMoskos 2008:50). Within this arena, individuals can act strategically in relation to legal structures and authority in pursuit of desired outcomes. Fraud workers see themselves and clients as oppositional actors strategizing for advantage. In accordance with their fraud focus, fraud workers’ second-order legal consciousness highlights street policy's inclusion of tactics for breaking program rules, and doing so without consequence. Eastcoast manager Caroline exemplifies this perspective:
I think there's a lot of communication when it comes to what can people can get away with. You know, people start talking: “Well I'm receiving this amount of food stamps,” and the other one is, “Well, I'm only receiving this.” And then they start talking. “Well, what are you reporting?” You know, so, I think there's a lot of conversation within the population of how to kind of get over.
Welfare clients’ personal experiences with program rules and authorities can lend them atypical awareness of law's content and power and inform strategic action within legalized systems (Reference SaratSarat 1990:343). Information sharing may help people with skin in the game further develop their knowledge of these systems’ rules and norms. Such knowledge, in turn, can help people successfully navigate programs, whether that navigation entails effectively negotiating the intricacies of complex eligibility standards and avoiding rule breaking, or strategically skirting program rules. Eastcoast analyst Billy provides a second-hand account of how one welfare worker depicted this type of phenomenon:
I was talking to one of the clerks at [a local] office … and I told her I was in fraud, and she said, “Oh good. We have a joke around here, how there's no men in [this city] because none of the cases have men on them, because, you know, ‘they don't know where they are.’ And it's just stuff like that. They know how to maximize their benefits. They know the system probably better than I do.”
In this accounting, clients deploy their policy understandings strategically, avoiding reporting income-earning significant others to bolster their program eligibility. In general, better knowledge of program rules may help clients navigate programs successfully, whether they aim to break rules or not. Indeed, client-focused studies have found that violations are often unintentional, consequences of people's entanglement in convoluted webs of welfare rules and uncertainty regarding their obligations or officially proscribed actions (Reference Edin and LeinEdin and Lein 1997; Reference Edin and ShaeferEdin and Shaefer 2015; Reference GustafsonGustafson 2011). Reliable street policy may help clients avoid such inadvertent missteps.
But, as Helen describes it, street policy can also beget trouble with agency authorities. Fraud workers see “unauthorized” legal-bureaucratic sophistication as threatening to fraud enforcement and agency control more broadly. Accordingly, they emphasize its undesirability, and stress to clients the risks that relying on street policy can pose:
Street policy means to me, they know how to get by. But they don't know what the actual policy is. So, which means, like I tell people: “You better be leery of street policy.” And the reason you need to be leery of street policy is for the simple fact: street policy gonna get you caught up. And that's what I tell everybody. [Helen grins:] And [my colleagues are] like, “You can't say that!” But I'm telling the truth. If that person [supplying street policy information] don't work there, how they know the rules? So like, for instance: you work one place. I can't say I know the rules where you're at. You can't say you know all the rules where I'm at. Which means it's only hearsay. So with hearsay you're settin’ yourself up to fail.
Helen illustrates how, in fraud workers’ second-order legal consciousness, street policy is an inherently problematic source of knowledge about welfare rules. Clients’ and agency staff's asymmetrical structural positions connote disparities in their positions vis-à-vis official policy. While both groups ostensibly operate under the same umbrella of formal rules, these rules appear more transparent and less objectionable to legally empowered insiders. And, to the extent that legally and socioeconomically vulnerable people mistrust and fear state agencies (Reference FongFong 2018; Reference Lerman and WeaverLerman and Weaver 2014; Reference SaratSarat 1990; Reference SossSoss 1999), information gathered via interpersonal ties may be appealing compared to that obtained via official channels. Like Helen, Southeast investigator Danielle understands clients to frequently rely on street policy information, and comparatively devalue communications from agency representatives:
They don't want to pay attention [to us], because their neighbor told them to apply and the neighbor told them everything about the program. “Oh, well, I know he's there, but you don't ever say you have a man in the house even though he's not—” Because they don't know, but they're going to hear the neighbor and they're going to come and do their thing and not listen to the actual facts.
Fraud workers assert that street policy circulates in daily life through interpersonal networks. Many connect the sharing of street policy knowledge to ideas about family dependency and multigenerational participation in benefit programs (see Reference Fraser and GordonFraser and Gordon 1994). These patterns, they suggest, not only provide models of behavior that are passed down in families, but also involve the transmission of street policy related to strategies for “working” the system. Southwest investigator Sue shares many of her colleagues’ sense that family members are a major source of clients’ program-specific legal consciousness:
I just recently had a case too, where an informant is trying to give me information, but he says the sister and the mom are trying to tell him exactly what to say or he won't get in trouble, or a way around it so he won't have an overpayment. So, I mean, they teach… what they learned from, if they learned, if they were busted once they know how to go about it, to get around it to not give it to us again, or to have relatives or friends or whatever, they tell them.
As these invocations of neighbors and friends suggest, fraud workers also see nonfamilial networks as sites of street policy exchange. Multiple fraud workers in one state alleged networks of women with boyfriends or husbands who work away from home for extended periods in the same industry. In the investigators’ view, the girlfriends and wives left at home during these absences share strategies for how to obscure that source of income. Sue takes this type of “networking” perspective online, and says that clients use social media sites to share street policy: “Even Facebook, it has a lot of stuff for these groups they belong to, and these people say, ‘Well, this is, you know, if you want to get food stamps, you have to do this, this is what you have to say.’ And I'm like, ‘Oh my God.’”Footnote 4
Fraud workers also believe that, in addition to providing primary settings for clients’ exposure to official policy, local welfare offices are sites of street policy transmission. Investigators recount pairs or small groups of clients discussing rules and strategies for avoiding violations inside always-crowded waiting rooms, outside local offices on sidewalks and in parking lots, and on nearby street corners. Eastcoast manager Vincent describes observing people “holding court” at local offices, sharing information on program standards and practices:
A lot of times when I go to local offices I spend a little time in the waiting room. That kind of gives me an idea of what goes on. Or even outside. The winter months will be different because that's when it's kind of cold and the weather's a little bad. But in the summertime, there's a lot of people holding court, having discussions, a lot of family. Because it's a neighborhood, and everyone is from the same neighborhood. And a lot of information is exchanged.
3.1.1 Street Policy in Eligibility Determination and Fraud Investigation
Even the best-informed applicants and clients have gaps in their knowledge of program rules, and many understand rules vaguely (Reference GustafsonGustafson 2011). Depending on street policy knowledge's quality and its points of intersection with official policy, it may be more or less helpful as a tool for navigating benefit programs (Reference GustafsonGustafson 2011:130). A common theme in fraud workers’ accounts is that successful fraud hinges on learning rules’ intricacies and learning tactics for avoiding fraud units’ attention or minimizing available incriminating evidence. Fraud workers believe that street policy includes information relevant to both of these objectives—information about rules and information about enforcement processes—and see diversified street policy portfolios as more effective for facilitating fraud. Fraud workers’ statements about clients’ sophistication in this context contrast notably with their warnings to clients about flawed street policy causing trouble; this contrast reflects how fraud workers’ structural positions guide their perceptions of street policy, and suggests their unifying vision of street policy as inherently problematic.
3.1.1.1 Reflections of policy in clients’ behaviors
Fraud workers say that clients’ legal consciousness first reveals itself in program intake processes, noting some applicants’ proficiency with agencies’ eligibility protocols. At a basic level, this may include understandings about potential benefit levels and barriers to entry informing decisions regarding which programs to apply for. Discussing publicly subsidized daycare programs, Midatlantic manager Brian says that “[clients] understand that there is a ton of money in day care, and they realize that the rules and regulations are very loose for different types of setups, so we get tons of applications.”
Beyond this, fraud workers say that some applications’ text demonstrates that applicants have learned “the rules of the game” and tailored their approaches accordingly. They assert this particularly in cases where reported information hews closely to eligibility standards, with applicants describing employment situations, family finances, and household composition in ways that match policy language. Here, they see policy language coming around full circle, from bureaucratic output back to bureaucratic input: official policy going out into the world, where it is processed and perhaps reconfigured through street policy, and then making its way back to the agency as declarations on applications. Eastcoast investigator Patricia describes how she sees information about “good” ways of describing disability (see also Reference StoneStone 1984) recurring in applications for assistance:
I see a number of cases where a client might be filling out disability forms where they kinda claim all the same kinda things. It's like anxiety, and panic attacks, and “I don't like being around other people,” you know. So that's the kind of thing that I feel is like a word-of-mouth kinda thing. How have they learned how to write those up for whatever's wrong?
Among those who are declared eligible and become program participants, fraud workers see street policy manifesting in multiple ways. Southeast investigator Leslie shares her perspective on how information about fraud control policies and practices circulates among clients, and how that form of street policy frustrates fraud control efforts:
As soon as we pop one, especially if it shows up in the news or something like this, oh man. They'll start getting phone calls [snapping fingers:] “Close my case, close my case, close my case. No, I'm good, I don't really need them. I just want to withdraw.” Some of it's word of mouth, some of it's the publicity… After hitting [my assigned area] pretty much all the time for the seven years, they are starting to get knowledgeable of what we ask, what we look for, how we bust ‘em. And now it is getting tougher to find those blatant fraud. Y'know, now it's more “Oh well, y'know it's, I didn't report my income or all of my income for this part.” Which is a little harder to catch and that's not as big as the twenty-, thirty-thousand-dollar cases that we get, y'know.
Leslie sees information about enforcement practices reflected in people's behaviors with regard to program rules and regulations. Eastcoast administrator Robert similarly recounts how he has observed changes in administrative procedure driving patterns in client behavior, via street policy mechanisms:
I do think that there's, I don't want to say a network, but I do think that people talk to one another and I think that people discuss the system and how it works and how it might not work. [Laughter] I do think that. I also think that some of the things that Eastcoast has done have [gotten reactions]. Let's talk about [a particular intervention]… We set up a system where we called people into the offices and interviewed them for what their expenses were and what their income was and interviewed people pretty hard. The word got out among people and it drove the error rate down pretty quickly. Partly because, we interviewed a lot of clients, we interviewed every month, perhaps five hundred times, and it got the word out pretty quickly that we were serious about things, that somebody was looking. [Laughter] There was certainly that.
Along these same lines, Eastcoast manager Vincent recounts patterns in clients’ approaches to Administrative Disqualification Hearings that he believes derive substantially from street policy information about effective strategies for negotiating these situations:
What tends to happen in the Administrative [Disqualification] Hearing, because, you know, I think that you will find there are some folks who know, or at least know somebody who has had a hearing, and they come with a canned kind of response: “I was sick,” or, “At the time I was on drugs, I was trying to get off. I was trying to get a hold of you, I wasn't sure what I was signing,” that kind of stuff. Others don't show up because they know that because of the way it is and the burden of proof, by not showing up they could be successful [in avoiding a substantiated charge].
3.1.2 Modes of Everyday Resistance–How Fraud Workers Believe Rule Violators Avoid and Evade Them
Rights-claiming is elusive for hard-pressed welfare clients. Amidst daily struggles to make ends meet, “everyday resistance”— mundane concealment of income, assets, or unauthorized SNAP transactions—is more common than formal assertions of legal rights (Reference GilliomGilliom 2001; Reference ScottScott 1985). With fully disengaging from social welfare institutions often a nonoption, clients employ strategies of “selective visibility,” limiting their disclosures to officials to ward off intrusive and punitive state interventions (Reference FongFong 2018). Such responses may reflect individuals’ assessments of how authorities perceive and process different types of things, and what actions or statements might cause trouble. Among members of heavily policed communities, these assessments can agglomerate into “cop wisdom,” citizens’ perceptions of police officers’ thinking and corresponding beliefs about how officers will interpret and respond to situations (Reference StuartStuart 2016a).
In fraud workers’ eyes, street policy is analogous. Echoing findings on “cop wisdom” (Reference StuartStuart 2016a), “selective visibility” (Reference FongFong 2018), and Reference YoungYoung's (2014) original formulation of second-order legal consciousness, investigators describe clients’ and fraud suspects’ attempts at self-protection as informed by street policy. Corresponding actions on clients’ part entail legally vulnerable people employing strategies derived from perceptions of what legal authorities do and why they do it. Fraud workers say that clients draw on these perceptions to avoid fraud detection, or frustrate enforcement if they are investigated. Here, fraud workers foreground clients’ perceived “against the law” schema, pointing to clients’ apprehension of law as “a foreign and powerful system” toward which they act in opposition (Reference Ewick and SilbeyEwick and Silbey 1998:183).Footnote 5
This perspective evokes police officers’ perspectives on criminal suspects. Reference SkolnickSkolnick (1966:103) recounts a police officer's description of prostitutes “wisening up”: learning about the limitations on undercover officers’ behavior, and adjusting their own behavior accordingly to evade enforcement. Skolnick's interlocutor describes prostitutes who know that police establishing prices for prospective encounters legally constitutes entrapment, knowledge that leads them to rebuff johns who refuse to set prices. Similarly, Reference MoskosMoskos (2008:66–69) describes police officers’ perceptions that drug dealers compartmentalize drug sales’ stages and employ juveniles in high-risk roles to limit individuals’ legal exposure. In fraud workers’ second-order legal consciousness, strategies such as keeping a low profile and masking intentionality characterize clients’ oppositional actions toward authorities.
3.1.2.1 Keeping a low profile
The most fundamental of the oppositional strategies that fraud workers identify is keeping a low profile. This reflects their general suspicion of clients, and their sense that clients attempt to insulate themselves from scrutiny and investigation through keeping any rule breaking relatively modest and maintaining outward appearances of compliance. Southeast supervisor Helen explains:
As long as you don't draw any attention to yourself it's always going to be a lower risk. If you do something that is just out of the ordinary you bring attention to yourself faster. But if you just go with the flow and be cooperative or whatever, to me that's how people get away with it for so long. And when the cooperativeness leaves, that's when you get caught. […]
I think if you are not drawing attention to yourself, then [we] won't know. And I guarantee you we could probably go through many of caseloads and pull out people who've been getting benefits [fraudulently] a long time … Which means sometimes when you are being a thief you just got to be quiet. Which is bad to say, but you just have to be quiet. […]
For instance, you've got five children with this man but [you claim that] you all have been separated since the first one. But you've got four more since then. Come on now. You think people are stupid or retarded? Because at the end of the day you've got five children with this man, you talking about he does nothing for these children, but you keep going back and having babies for him. But then you don't put him on child support, then after not putting him on child support, then he writes a statement, “Oh, he pay all the bills.” I don't know anybody in America that can maintain two households, unless you a billionaire.
Like Helen, Antoine emphasizes that people who maintain a low profile are more likely to avoid detection. He says that “under the table” work helps clients elude enforcement:
Yeah, doing odd jobs. Something that you virtually can't track. You can try to go back to the people that they supposedly worked for. Depending on what information they're gonna give you, may not be anything that you can use. Sometimes you end up having to write some of those cases off because there's no way of proving them … They fly a bit below the radar. And they're able to do what they do without becoming obvious. […] Because they're not advertising on Facebook [chuckling], they're not on, you know, they're doing their little side business or whatever, and they're very low key about it. Now, the ones that get on Facebook and start bragging about what they're doing, or print business cards out because they're doing hair out their house, that's different.
Fraud workers recognize that the cases they investigate do not represent a random sample of everyone who breaks program rules. Fraud charges eventuate when things are visible to the enforcement system. Working backwards from the characteristics of the cases they do substantiate, fraud workers infer keeping a low profile as an effective strategy for avoiding such outcomes. Fraud workers perceive this strategy as an outgrowth of clients’ awareness of fraud control activities, and suggest that such awareness results from shared street policy information. Southeast investigator Leslie describes how she sees information about program rules and enforcement practices spreading through clients’ social networks and guiding their efforts to evade investigations:
When I'm investigating this person, and we're like, “Well, you know, policy states ‘blah blah blah,’ you stated you knew this.” They're like, [protesting], “Yeah, but my friend—!” I say, “Give me a name.” “No that's okay.” And then before too much longer, you know: closing their case, changing their M.O., dottin’ their Ts, crossin’ their Is. ‘Cause they're like [to each other], “Hey, look. They got in my taxes. They got this, they got that. They're looking at this, they had this. Make sure you clean all this up.”
3.1.2.2 Masking intentionality
Fraud workers tend to see rule breaking behavior as largely intentional. In accordance with this perspective, they see feigned ignorance of program rules or claims of unintentionality as common resistance or subversion tactics. Southeast investigator Leslie explains:
You have the Inadvertent Household Errors, which is just “Oops, I made a mistake,” but they didn't intend to do it… I very, very highly doubt any of it is IHE, Inadvertent Household Errors. Very rarely. Most of ‘em, they'll say, “Well, I didn't mean to.” How did you mean to not tell us? Y'know, you had a job, you didn't report it, you knew you had to tell us your income but you didn't.
Fraud workers’ emphasis on clients feigning unintentionality reflects their overriding belief that much of what clients do is purposeful, including the act of denying that their actions were purposeful. Fraud workers think street policy knowledge includes awareness of the harsher penalties for violations substantiated as intentional, and thus guides clients to falsely present deliberate rule breaking as inadvertent. Southwest investigator Sue highlights the strategic misrepresentations of longer-term, more sophisticated clients, whom she calls “lifers”: “They're just like, ‘Okay, I'm going to play naïve,’ or, ‘I'm going to play that I don't know maybe if I'm doing something wrong.’”
To Sue, like many of her colleagues, clients’ lies are typically strategic, including instances of denying rule knowledge because of knowledge about rules and enforcement processes. Eastcoast manager Caroline provides another angle on masking intentionality as an element of fraud workers’ second-order legal consciousness. She presents the idea that some clients attempt to avoid intentional fraud charges through exaggerating language barriers’ impact on their interactions with agencies:
We do find there is a lot of immigrants that say that they don't understand. […] There are a lot of immigrants that come here get the benefits and say that they don't know what's goin’ on, but I think they know what's goin’ on. Because how would you know that you need benefits? Who told you that, you know, that you could get benefits? […]
[It works] a lot of the time. I speak Spanish fluently. You can't tell, obviously [because I'm white]. I have been in situations where clients come here and we sat with them and they have spoken Spanish in front of me about a situation. And I'm like, “I can't believe they are saying this!” And I am catching them on stuff that I'm like, “Well, she just told me in English that she is not working, but she's telling him, “We have to get out of here in an hour,” because she has to start work. […] I let them talk, and so we'll have a conversation, and then at the end, then I speak to them in Spanish: “Well, okay, let me just reiterate what you said and what I heard you say to each other.”[…] Their jaws drop, and they're like, “No, that's not what I meant.” [And I say] “No, I just heard what you meant because I'm fluent. So what we're going to do now is this.”
Caroline's account suggests a particular version of a practice fraud workers describe as ubiquitous: fraud suspects presenting purposeful actions as unintentional. She also suggests how a personal skill helps her counteract this practice. The next section details other ways that fraud workers shape their discretionary approaches to enforcement based on what they see as clients’ understandings of rules and investigatory practices.
3.2 Second-Order Legal Consciousness’ Influence on Law in Action
As street-level bureaucrats, fraud workers have substantial discretion in implementing written policy (see Reference BrodkinBrodkin 1997; Reference LipskyLipsky 2010[1980]; Reference Maynard-Moody and MushenoMaynard-Moody and Musheno 2003; Reference Soss, Fording and SchramSoss et al. 2011:Ch. 10; Reference Watkins-HayesWatkins-Hayes 2009). Their discretion has limits, but they have prominent leeway in determining which referrals to pursue aggressively and selecting investigatory strategies. Perceptions of how clients’ legal consciousness guides evasion efforts influence these decisions. Expecting that clients will try to circumvent enforcement, they devise their own strategies to outflank these circumventions. Eastcoast administrator George provides his view of this back-and-forth:
They know exactly what the hell's in our [data matching program]. Yeah, we're not shitting anyone. As soon as we get around it they're gonna find a way to get around it. Yeah, no, it's a tight-knit community out there. I mean, I worked in inner city, real ghetto offices when I was an investigator and, I mean, they got to know me. You know, it is what it is. I mean, I knew them and they knew me, and it was who was gonna beat who on what day.
Investigators’ second-order legal consciousness informs their day-to-day work in various ways. Beliefs that clients will falsely claim nonintentionality precipitate accumulation of multiple forms of evidence and tactics to neutralize denials and garner confessions. And beliefs that clients will attempt to foreclose avenues of investigation beget tactics to impel compliance or find other sources of incriminating evidence.
In states like Southwest where investigators visit suspects’ residences to conduct home inspections, fraud workers report that some clients’ understanding of the law causes them to deny investigators entry to their homes.Footnote 6 Investigators employ corresponding tactics designed to circumvent potential resistance and gain consent to search. Southwest investigator Ashley describes how her quasi-police status helps her obtain voluntary compliance. Her second-order legal consciousness emphasizes many clients’ uncertainty about her legal authority and their own legal rights. She conducts her home visits accordingly:
Ashley: When I've gone to these houses, they [say]: “Who are you? Where are you from?” They're just so surprised. Which I guess I think is good in a way for my position at that time, because, you know, the biggest thing is getting them when they're not aware that we're around.
Interviewer: So when you show up and you identify yourself: you have like a badge, an ID of some kind, do you just verbally announce who you are?
Ashley: I do, when we go, I say, “I'm Investigator Baxter,” and I do have a badge, and it has my ID in it also. And that's how I usually identify myself—I'll just say “I'm with the [fraud] unit.”
Interviewer: What's the most common immediate reaction when you show up?
Ashley: Mmmmmm… A lot of times, they're like—they usually get afraid, just because they think I'm a cop, for whatever reason?
Interviewer: Right. I mean, if you show ‘em a badge—
Ashley: Right, they just automatically assumed I'm a police officer.
Demonstrating willingness to at least skirt formal legal rules herself, Ashley self-presents in a fashion that matches her understanding of clients’ perceptions of her as a legal authority figure, and those perceptions’ effects on their behavior. While she could seek search warrants to force clients to allow her in, she never has. As she explains, most clients give her consent to enter their homes. If they do not, she has other avenues to incrimination:
Ashley: We ask if we can do a household search. I would say eighty percent I can, there's only about twenty [percent] that doesn't [allow it]. The house is dirty, they didn't clean it [grinning]… I've never had to request a search warrant or anything. And for, I don't think for our position that we would, because of the cost of it… There's other ways to see if a man's in a home, you know. DMV records. Not just if he has clothes there, pictures hanging up, but, you know, neighbors, you can get [information from] neighbors, employment records, DMV records, stuff like that too that we utilize, not just the household search. [Searches are] helpful, but […] [we have] other tools that we can utilize if they don't allow us to do the search.
Interviewer: Will you ever do like a stakeout, hang out outside and wait to see who shows up?
Ashley: Right. We do, I do that once in a while, just depending on the situation. If I, you know, “Oh, I think he lives there,” but I'm not catching him, you know. I gotta get there early in the morning to see if he leaves to work and stuff like that.
Ashley's Southwest colleague Sue estimates the share of clients that deny entry during attempted home visits similarly, at around twenty-five percent. To explain why some clients deny entry, she invokes her perception of their understanding of policy and (limitations on) enforcement practices:
Interviewer: Do you think that people are aware that when they don't let you in that stymies you to a certain degree? Do you think people do that intentionally?
Sue: Yeah. Yeah, I think so. Because that's all they know. That's all they have to do. “I don't want you in the house,” and that's it. There's nothing we can do and there's nothing that the local office can do. They just continue to give them benefits.
Sue is somewhat less sanguine about the alternative evidence-gathering options available to investigators when clients deny them access for household inspections, illustrating perceptions of sophisticated street policy as threatening to fraud enforcement and strict program control. However, she also points out fraud units’ long memory regarding suspected clients. If a client denies her entry, she considers that a waste of her time on that specific investigation. But that does not necessarily imply the end of the case's story. She can—and does—still record the incident in the client's file. This establishes noncompliance as part of the client's official agency record and primes subsequent reinvestigation, as Sue explains: “[If I'm denied entry,] that would be an inconclusive one, only because we couldn't prove or disprove. So that's all we can do. And then I'll just put a little note on the report: ‘Re-refer [for investigation] when she reapplies.’” These comments reflect an overarching theme of the asymmetrical relationship between program clients and enforcement authorities. Even when clients are able to use evasive maneuvers that are effective in the short term, the agency's long-time view (Reference RosenbergRosenberg 1920:170) allows them to bide their time and wait for a better opportunity to substantiate a charge.
To substantiate Intentional Program Violations, the charges they most prize, investigators need to evince that clients deliberately violated rules. Fraud workers say that clients frequently deny acting intentionally, but investigators question these denials. Investigators’ evidence accumulation strategies reflect their expectations that clients will (falsely) claim unintentionality to sidestep legal consequences. Because fraud workers believe clients understand intent's legal significance and expect them to lie about violations’ purposefulness, investigators seek other evidence to suggest deliberateness and overcome clients’ denials. Ideally, they seek evidence that they can use to convince clients to retract denials and accept culpability; many fraud workers cite clients’ own words pulled from publicly available Facebook posts as particularly useful for this purpose. Southwest supervisor Carly illustrates how second-order legal consciousness informs investigations, as fraud workers design their approaches around perceived patterns in clients’ thoughts and behaviors:
Carly: Once we… get the surveillance on it, then we'll call somebody in and we'll put them in the interrogation room, and nine times out of ten we get the confession. If we've got the Facebook data, and we've got the surveillance, we're gettin’ a confession.
Interviewer: And they're ready to plead out right there?
Carly: Well, no [chuckles]. They always think they can still get away with it. But we'll get that, and then [say], “Well, now we have you on tape confessing, and we have all this other stuff, and you did the voluntary statement. You're done.”
Effects on discretionary enforcement also manifest in fraud workers’ conscious attempts to do their work in ways that will affect clients’ legal consciousness. Invoking street policy ideas, they particularly emphasize that word of aggressive enforcement practices will spread in clients’ communities, and thereby shape their understandings of enforcement activities and rule breaking's risks. Midatlantic administrator Penelope sees street policy effects cutting both ways. She believes that people who “have found a way to get around the system” will “let all their friends know,” leading to a rash of similar cases. But at the same time, she sees the possibility for deterrent effects, describing clients sharing information about enforcement tactics such as tracking EBT card replacements face-to-face and on social media. She believes exposure to such information reduces others’ likelihood of attempting similar violations. Eastcoast administrator Edward feels similarly:
I think when folks know there is a fraud unit, just that piece of information is a deterrent in and of itself. That's why one of the things they're trying to do is raise their profile in the local offices. For example, speaking with folks after their fourth lost card. We have plenty of people who are always going to lose their cards. You've heard the reasons why. That is what it is. Folks that may be trafficking have to get in front of an investigator that will give you a little harder time than a case manager. We don't want the case managers involved in that end of the work anyway… We have seen that news travels really fast, any particular topic, throughout our client community. So we're hoping that that does have an effect just by that awareness.
Southeast manager Jack also emphasizes enforcement's deterrence value. Specifically, he stresses the need to maintain an aggressive enforcement posture, to avoid influencing clients’ legal consciousness in ways that might encourage future violations:
I guarantee you I get a call every couple of weeks from an investigator, who [says], “So-and-so, they've interviewed, she admits to it, but she wants to just pay it back and let it, make it go away.” And I can't do those deals. Because if I do this deal with this person, why am I not doing the deal with the next person? But what I tell 'em is this: they can contact the [prosecutor's] office, because they handle our prosecutions. If they want to make the deal, they can make the deal. Because they make deals all the time. […] If they're willing to accept the cash and not prosecute ‘em, maybe put them on pretrial intervention or something along that line, that's fine. But at least we have made the referral for someone else to make that call. Like I said, I just don't want to get in the situation where [clients] say, “Aw, Jack, he'll make, he'll fix you up.” No. I don't want that. […] I wanna be the hanging judge.
Jack followed this statement by chuckling and shaking his head, appearing to nonverbally signal something like “it's not that serious,” and added the caveat, “No, I don't wanna be the hanging judge.” Thus, Jack indicates that a welfare fraud unit committed to criminally prosecuting every suspect that they can is not identical to a judge noted for imposing death sentences. Nevertheless, he invokes such a judicial reputation to explain his unit's cultivation of a reputation for strictness as a way of influencing clients. Eastcoast investigator Tiffany also sees street policy as central to clients’ thinking about rules and rule violations, and agrees that fraud units should put clients’ networks to use for their own purposes (see also Reference HeadworthHeadworth 2019):
The problem with word-of-mouth with clients is, you know, “Oh, come in and say this and you'll get this amount, come in and say this and you'll get that.” So that's the biggest thing that we're trying to combat, is how clients come in and say, “I came in and said that and I got, the fraud unit called me.” And that's what we're really trying to be able to catch up and get, let the word be out that we're, we do look into things, and it's not going to be as tolerated as it may have been in the past.
This parallels Reference StuartStuart's (2016b:94) account of how police officers describe aggressive drug policing's effects on individuals’ thoughts and behaviors. He quotes a police captain: “‘When you see your buddies all over the place getting popped over and over again, what are you going to do? Eventually you're going to get the message that it's in your interest to get as far away from these guys as possible, right?” Like these police officers’, welfare fraud workers’ approach to their jobs reflects their second-order legal consciousness, and aims to modify clients’ thoughts and behaviors.
3.3 Second-Order Legal Consciousness’ Influence on Law in Books
Most of second-order legal consciousness’ effects on enforcement pertain to fraud workers’ discretionary day-to-day work; thus, in this context authorities’ second-order legal consciousness primarily influences “law in action.” Interviewees also described, however, instances in which these perceptions drove changes to written legal rules, showing how authorities’ second-order legal consciousness can also influence “law in books.”Footnote 7 In the dynamic relationship between the agents and the targets of welfare fraud control, street policy responds to official policy, but these instances suggest how official policy can also respond to fraud workers’ perceptions of street policy. Eastcoast Manager Stephen provides an example of how second-order legal consciousness affects policy considerations. One of their techniques for detecting SNAP trafficking (illegal exchanges of SNAP benefits for cash or goods) is scrutinizing “even-dollar” transactions at SNAP retailers, flagging businesses with disproportionate shares of twenty- or twenty-five or fifty-dollar SNAP transactions. Stephen describes the agency's perception that SNAP retailers are learning about this detection tactic, and their thinking about adjusting their policies and practices accordingly:
I think that we, in program integrity, need to be aware of all that stuff. We need to keep our ears to the ground. Because as patterns change—for instance, one of the reports that we have is the even-dollar transaction report, over a certain amount, we can now adjust it, whereas before we couldn't… What I've heard is that some retailers are getting wise to that fact. […] We may need to, from a data perspective, changing it to a ninety-nine-cent quota or whatever.[…]
That is the kind of stuff that we have to be more diligent on. So as it goes we do have more data-driven fraud protection things. These things come to light. These things get in the media, people will be more aware, then they will act accordingly.
Stephen suggests a second-order legal consciousness-informed policy change (in this case, one that reflects fraud workers’ understanding of retailers’ legal consciousness more than clients’). Similarly, Midatlantic administrator Penelope describes second-order legal consciousness-based changes to her state's Disaster SNAP (D-SNAP) policies. In D-SNAP, standard SNAP verification rules are generally relaxed to facilitate providing nutritional assistance to needy families affected by natural disasters. However, Penelope recounts fraud workers overhearing people in line for D-SNAP benefits “saying, ‘tell so-and-so to get down here and get his free SNAP card.’” Such observations affected fraud workers’ second-order legal consciousness. As they filtered upward in the bureaucratic structure, fraud workers’ perceptions of clients’ knowledge of agency rules precipitated changes to those rules. As Penelope puts it, it “spawned a raft of policy changes,” notably including the adoption of additional eligibility verification steps, even in emergency contexts.
The evolution of Midatlantic's policy regarding domestic violence allegations and welfare fraud investigation provides a particularly striking example of this process. Midatlantic Manager Brian explains that they previously had “very strict” domestic violence policies, which mandated a “hands-off” approach. To avoid inflicting further harm on children or adult victims, the assistance agency established a rule dictating investigations be closed in any cases involving domestic violence allegations (see also Reference HetlingHetling 2011). Awareness of this policy, Brian says, “spread on the streets.” “The street rule is, if you tell the [local] office that you're a DV victim, [the fraud unit] will not investigate you.” In his accounting, the fraud unit saw corresponding spikes in the share of cases involving domestic violence complaints. Local office workers disputed many of these claims’ legitimacy, suggesting that they resulted from information about enforcement—and nonenforcement—practices circulating outside the agency.
Brian reports that the fraud unit's “hands were previously tied” with regard to these types of cases because of the blanket policy requiring them to shut down any investigations involving domestic violence claims. Then, the law in books itself changed in response to the perception that an effective strategy for deflecting enforcement activity was circulating in street policy. Second-order legal consciousness was a crucial precursor of this change. Fraud workers believed that that clients’ legal consciousness had evolved to reflect the policy of closing investigations involving domestic violence allegations, and that this legal consciousness was driving concrete behavioral patterns, producing illegitimate claims designed to subvert enforcement efforts. As in the changes to D-SNAP policies, Midatlantic administrator Brian recounted that these perceptions of clients’ thinking mobilized bureaucratic higher-ups to change agency rules. These rules now require a closer review and evaluation of domestic violence allegations before suspending or altering enforcement activities.
4. Discussion
Like other forms of law, welfare rules formally delineate desired and undesired behavior, govern people's actions, and occasion penalties for deviance (Reference GustafsonGustafson 2011:9). Street policy can be a resource to help clients navigate these rules, which are complex and often confusing (see Reference Edin and LeinEdin and Lein 1997; Reference GustafsonGustafson 2011). As filtered through fraud workers’ perceptions, street policy can also change enforcement norms, and sometimes rules themselves. And, as these changes feed back into street policy, fraud control becomes reactive (Reference Espeland and SauderEspeland and Sauder 2007, Reference Espeland and Sauder2016), not merely responding to external social phenomena, but causing responses from clients and thus reshaping the external social world.
This perspective suggests the dynamic relationship between law and street policy. Just as agency spaces and their environs can be sites for sharing informal knowledge about law and enforcement practices, enforcement and clients’ legal consciousness are connected in ongoing processes of co-construction. The predominant process is top-down, with official policies and practices informing everyday understandings. But it is also bottom-up, with authorities’ impressions of clients’ understandings informing discretionary practice and occasionally legal rules themselves. As the two sides apprehend and interpret each other, the relationship between clients’ legal consciousness and fraud workers’ second-order legal consciousness becomes recursive. Each side's perception of how the other side thinks and operates shapes its behavior. For each side, there's “what we know,” “what we think they know,” “what we think they think we know,” and so on. As legal authorities watch citizens, they are sensitive to surveillance's subjects returning the favor (Reference StuartStuart 2016b:102). Fraud workers’ observations of street policy's manifestations demonstrate how the two sides respond to and constitute each other. In their view, awareness of enforcement techniques substantially drives clients’ behaviors. While street policy fundamentally responds to enforcement, enforcement also responds to authorities’ visions of street policy.
Previous research (Reference StuartStuart 2016a; Reference YoungYoung 2014) compellingly demonstrates how legally vulnerable people's perceptions of police shape their day-to-day social action. Authorities’ perceptions of laypeople's legal consciousness—and their responses to it—complete the “circle” of policers and policed assessing and reacting to each other. Their second-order legal consciousness constitutes the previously missing empirical piece in the iterative, recursive process by which each side's actions inform the other's (see Reference StuartStuart 2016a:299). These findings confirm Reference YoungYoung's (2014) key argument regarding legal consciousness’ relational nature, and build on it through directly addressing how authorities’ second-order legal consciousness affects legal power's manifestation. In short, because authorities have power, their perceptions do too.
People's assessments and interpretations of what others do and say are essential building blocks of legal social structures. Comprehensively understanding these relational processes requires attending to multiple sides of the relations in question, including both laypeople and legally empowered actors. This article's analysis of the latter illustrates their interpretations’ influence on legal-bureaucratic systems. In this context, that influence shapes millions of low-income people's experiences with public assistance agencies. And, through altering the legal-bureaucratic edifice that clients encounter, fraud workers’ second-order legal consciousness can in turn affect clients’ legal consciousness, driving an ongoing back-and-forth between each side's assessment of the other and corresponding effects on their thoughts and actions.
5. Conclusion
Only a master theologian can think up really subtle heresies; hence Satan is of necessity a fallen angel.
-Everett C. Hughes, “The Study of Occupations”
Reference HughesHughes (1971[1959]:288) argues that “many occupations cannot be carried out without guilty knowledge.” Welfare fraud investigators benefit from knowledge about rule violation patterns. And they believe the reverse is true for welfare clients looking to get around program rules. Fraud workers contend that accurate street policy information about programs’ structure, regulations, and fraud investigation practices bestows proficiency at “working” the system and eluding detection and punishment. In fraud workers’ eyes, rule violation tactics are endemic to street policy, as clients share insights about what one does and does not need to report and what types of nondisclosure, misrepresentation, or unauthorized benefit transactions one can pull off.
These perceptions of clients’ understandings of welfare law and enforcement processes influence the realization of legal power through shaping both day-to-day discretionary action and written rules. Law and society research does not always highlight such relational processes, but they are prominent in fraud workers’ accounts of enforcement strategies designed to outflank clients’ evasive maneuvers and program interventions intended to alter clients’ thoughts and behaviors. Different states have different fraud control policies, and different fraud workers have different personal histories and orientations. The perceptions these workers derive from their varied experiences, however, are markedly uniform, and underlie a markedly consistent—and consequential—set of responses, as their second-order legal consciousness informs their discretionary approaches to their jobs and sometimes welfare law itself.
Fraud workers’ second-order legal consciousness does not arise in an ideological or symbolic vacuum. A potent set of cultural and occupational schemata related to poverty and its purported pathologies characterize discourse around welfare clients in general and welfare fraud in particular (Reference Fraser and GordonFraser and Gordon 1994; Reference GilensGilens 1999; Reference HancockHancock 2004; Reference KatzKatz 2013[1989]; Reference Kohler-HausmannKohler-Hausmann 2007, Reference Kohler-Hausmann2015; Reference OcenOcen 2012). This article foregrounds structural asymmetries and power differences between welfare authorities and welfare clients, not the particular negative schemata surrounding clients. But these schemata have significant potential to inform authorities’ second-order legal consciousness, and likely contribute to their depictions of clients as immoral, greed-motivated, and calculating. Such factors merit direct consideration as social scientists continue to probe relationships between legal consciousness, power, and marginalization (Reference HullHull 2016; Reference SilbeySilbey 2005).
Welfare fraud investigation is marked by distinct power differences, and fraud investigators emphasize their authority over clients with regard to enforcing program rules. As fraud workers recognize, though, they do not have the same broad authority and jurisdiction as more familiar legal authorities, such as police officers; their legal power is restricted to program participants and applicants, and their instruments of direct legal coercion and penalization are comparatively limited. Research focused on criminal legal authorities might yield different findings about how second-order legal consciousness manifests, and to what effect. And, while legal authorities have special capacities to influence legal social structures, they are surely not the only people whose perceptions of others’ legal consciousness have appreciable impact. Employing Young's (Reference Young2014) relational perspective in studies of people without direct legal authority over each other could provide new leverage on “classic” legal consciousness questions about the construction of legality in everyday life (Reference Ewick and SilbeyEwick and Silbey 1998:22).
Questions regarding variation across social contexts and positions also point up the utility of bringing social psychological perspectives to bear in law and society research. The evidence reviewed above suggests that fraud workers’ structural positions and their experiences therein may expose them to expectancy-confirming biases, priming them to see the world in ways that match their expectations (see Reference Jussim, Harber, Crawford, Cain and CohenJussim et al. 2005). Subsequent research could directly investigate such factors’ role in the development of second-order legal consciousness. More fundamentally, the same sorts of relational and interpretive processes that underlie second-order legal consciousness also underlie such basic social psychological phenomena as the formation of the self (Reference MeadMead 1967[1934]); especially in highly legalistic societies, this parallel raises elemental questions about the ongoing coconstructions of self-concepts and understandings of the other in relation to legal social structures. The data presented here offer a snapshot, making postulations about processes unfolding over time speculative. Future studies could usefully address the resultant limitations: longitudinal research designs, for instance, could trace second-order legal consciousness’ temporal evolution, assessing relationships between structural positions, identities, and visions of how others apprehend the law. Such work offers the promise of new insights into the relational construction of legal understandings and law-related social practices.
