You inquired whether New York State has a law governing the involuntary civil commitment
to public institutions of individuals convicted for sexual offense crimes immediately
at the end of their penal sentences. In particular, you asked about Mr. M~'s case.
New York State does have such a law, known as the Sex Offender Management and Treatment
Act (“SOMTA”), which became effective April 13, 2007. However, care should be taken
in suspending benefits simply because an individual was civilly committed under this
law since the NY law is broader than what Congress allows for in the suspension of
sexual offender's benefits. Instead, determinations must be on a case-by-case basis.
For instance, Congress and the Social Security Administration (“SSA”) policy specifically
exempt individuals found not guilty by reason of insanity or who were incompetent
to stand trial while the NY law explicitly includes these individuals. Moreover, SOMTA
permits the involuntary commitment of individuals whose criminal convictions were
for offenses that do not contain sexual activity as an element. Congress has mandated
that benefits be terminated only if the crime the individual was convicted of contained
sexual activity as an element. Additionally, individuals processed under SOMTA may
not be found sexually dangerous and require only supervision to which suspension of
benefits is not consistent with Congressional directive and SSA policy. Finally, SOMTA
does not necessitate an individual be immediately confined at the end of the prison
term, while Congress and SSA policy require immediate confinement at the end of the
criminal imprisonment. Thus, suspension of Social Security benefits because an individual
was civilly committed under NY's SOMTA is not automatic and determinations must be
on a case-by-case basis. With regard to Mr. M~, SSA must do additional development
to ascertain whether his commitment is under SOMTA as discussed in detail below.
FACTUAL BACKGROUND
Mr. Mark M~ was convicted of attempted sexual abuse in the first degree, a class E
felony and an offense which has sexual activity as an element. Mr. M~ was civilly
committed at the end of his prison term and no evidence suggests he was ever at liberty.
Consequently, if Mr. M~ was civilly committed under New York's new law, his benefits
should be suspended. However, Mr. M~ could have been civilly committed under another
law, particularly Corrections Law § 402, and not be eligible for suspension of his
benefits on these grounds. Please see below for a more detailed legal analysis.
LEGAL ANALYSIS
Cessation of Benefits Under Sexual Predator laws
Congress addressed the impact of civil commitment under a sexual predator law to an
individual's Social Security benefits in 1999. Ticket to Work and Work Incentives
Improvement Act Of 1999, Pub. L. No. 106-170, 113 Stat. 1860, 1909. The law amended
Section 202(x)(1)(A) of the Social Security Act (42 U.S.C. 402(x)(1)(A)) to deny benefits
to “sex offenders remaining confined to public institutions upon completion of prison
term” by adding the following new clause:
(iii) immediately upon completion of confinement as described in clause (i) pursuant
to conviction of a criminal offense an element of which is sexual activity, is confined
by court order in an institution at public expense pursuant to a finding that the
individual is a sexually dangerous person or a sexual predator or a similar finding.
Accordingly, Program Operations Manual Systems (“POMS”) GN 02607.350 provides for the suspension of Title II benefits for prisoners who are confined due
to “sexually dangerous person verdicts” from April 1, 2000 and onward chronologically.
SSA policy pertains to situations where “mental institutions confine certain individuals
under specific State statutes as 'sexually dangerous' persons, 'sexual predators,'
or similar findings.” GN 02607.350.A.1.a. The following factors are typically present for the law to be applicable:
The mental institution must immediately detain the individual for psychological evaluation
at the completion of the individual's penal term;
The individual had to be serving a sentence in the correctional institution for a
criminal offense of which an element was sexual activity;
The individual must be under a court order as a “sexually dangerous person inmate;”
and
The individual must be confined to an institution for more than thirty continuous
days before SSA will suspend benefits.
Id. Many of those individuals are already prison inmates so SSA would have previously
suspended their benefits. SSA does not reinstate benefits when inmates complete prison
sentences and the department of corrections begins the sexual predator law proceedings.
Instead, the benefits remain in suspense until the court issues a final order deciding
if the particular inmate should be civilly committed as a sexually dangerous person.
GN 02607.350A.1.a.
Suspension of benefits for sexually dangerous persons occurs as following:
Benefits continue to be suspended after the court issues an order or finding that
the individual is a sexually dangerous person and commits him/her to a mental institution
for more than thirty continuous days.
GN 02607.350A.1.b. Benefits to an individual should not be suspended when:
“The institution does not immediately confine the individual after completion of the
prison sentence;
“The court does not convict the person of a sexual crime and the person will not complete
a sentence for conviction of such a crime;
This includes individuals who are considered not guilty by reason of insanity or incompetent
to stand trial;
“When the results of the psychological evaluation indicate the individual is not sexually
dangerous.
GN 02607.350B.1. An effective date of suspension for a sexually dangerous person can never be before
December 1999. GN 02607.350A.1.c.
II. SOMTA and the Suspension of Social Security Benefits SOMTA became effective on
April 13, 2007. N.Y. MENT HYG Law § 10.00-10.17 (M~'s 2007). SOMTA addresses the danger
sexual offenders pose to society through “comprehensive programs of treatment and
management” involving civil commitment or intensive outpatient supervision after criminal
incarceration. N.Y. MENT HYG Law § 10.01.
To suspend benefits the Social Security Act and SSA policy require that the sexual
offender be civilly committed immediately after criminal incarceration. See Pub. L.
No. 106-170, 113 Stat. 1860, 1909. See also GN 02607.350A.1.a. and GN 02607.350B.1. SSA policy further mandates that the detention includes a psychological evaluation.
SOMTA delineates the process of civil commitment with provisions for the custodial
agency to begin proceedings prior to the individual's anticipated release. It also
outlines the process for the detention of a sex offender immediately after his criminal
incarceration ends. N.Y. MENT HYG Law § 10.05(b); § 10.06(h). Additionally, numerous
provisions of SOMTA pertain to the psychological evaluation(s). Id. § 10.05(e), § 10.06(c),(d),(e), § 10.08(b). Therefore, SOMTA allows for the immediate
civil confinement of an individual after his/her criminal incarceration along with
at least one psychological evaluation which could satisfy the criteria to suspend
benefits. Id.
However, under SOMTA the sexual offender might not be confined immediately at the
end of the prison term. The statute allows for the sex offender civil management petition
to be filed anytime after the end of the penal term. The individual might be at liberty
when the petition is filed. N.Y. MENT HYG Law § 10.06(h). Under SOMTA, a petition
for confinement may also be filed for individuals who are intensely supervised but
otherwise not already detained. Id. at §10.11(d)(4). Since the Social Security Act and SSA policy require confinement
immediately after incarceration, suspension of benefits would not be appropriate if
one of these SOMTA provisions applies. GN 02607.350B.1. Thus, persons who are civilly committed under SOMTA after being released from prison
for a period should not have their benefits suspended.
Another requirement for the suspension of benefits under the Social Security Act and
SSA policy is that the individual be convicted of a crime that has sexual activity
as an element. See Pub. L. No. 106-170, 113 Stat. 1860, 1909 and GN 02607.350A.1.a. SOMTA is far broader than the federal law. SOMTA covers circumstances expressly excluded
by Congress and SSA policy such as when an individual is found not guilty by reason
of insanity and therefore not convicted of a crime. N.Y. MENT HYG Law §10.03(g)(3),
§10.07(c)(ii). SOMTA defines “detained sex offender” to include “a person charged
with a sex offense who has been found not responsible by reason of mental disease
or defect.” Id. at §10.03(g)(3). Moreover, at the civil commitment trial the individual's “sex offense
shall be deemed established and shall not be relitigated at the trial, whenever it
is shown …the respondent previously has been found not responsible by reason of mental
disease or defect for the commission of such offense or for an act or acts constituting
such offense.” Id. at § 10.07(c)(ii). Thus, SOMTA includes circumstances that SSA policy specifically
exempts from suspension of benefits. See GN 02607.350.A.1.a. and GN 02607.350B.1. Those individuals who are found not guilty by reason of insanity or mental defect
should not have benefits suspended for being declared a sexually dangerous person
even if civilly committed under SOMTA.
Additionally, SOMTA incorporates a more expansive class of crimes than those contemplated
by Congress or SSA. SOMTA considers a sex offender to include “a person who stands
convicted of a designated felony that was sexually motivated.” N.Y. MENT HYG Law §10.03(g)(4).
Many of the SOMTA felonies do not have sexual activity as an element of the offense,
such as arson, burglary and robbery to name a few. Id. at §10.03(f). Also, whether a crime is sexually motivated is not determined at the
time of conviction but rather during the civil commitment proceedings. Id. at §10.05(g), §10.05(j), §10.07(c)(ii). Consequently, individuals who have never
been convicted of a criminal offense with sexual activity as an element should not
have benefits suspended. However, some of the SOMTA felonies, for example promoting
prostitution, disseminating indecent material to minors, use of a child in a sexual
performance, do contain sexual activity as an element of the offense. N.Y. MENT HYG
Law §10.03(f). In those instances, provided the other criteria are met, SSA should
suspend the benefits of individuals convicted of crimes containing as sexual activity
an element. Please see Section IV for listings of the designated felonies according
to whether the criminal conviction of the felony included sexual activity as an element
of the offense.
Congress and SSA also require a court order finding the person to be a “sexually dangerous
person,” “a sexual predator” or something similar. Some individuals civilly committed
under SOMTA might meet this requirement. The NY statute delineates the need for court
orders throughout the process. N.Y. MENT HYG Law §10.06(h)(k), §10.07(f). Under SOMTA,
the civil commitment process ends with a trial proceeding where the determination
of whether the individual is a “dangerous sex offender” is made and upon such a finding
the individual is confined by court order. Id. at §10.07(f). The confined individual is then granted at least annual psychiatric
examinations to determine if the person remains a “dangerous sex offender” requiring
confinement. §10.09(b). If at any time the confined person petitions for discharge
and/or release under supervision, the court may order an evidentiary hearing at which
the court will determine if the person is currently a “dangerous sexual offender”
and if so, issue a court order to continue the individual's confinement. §10.09(f)-(h).
Thus, court orders are issued throughout the process embodying possibly multiple findings
on whether an individual is a “dangerous sexual offender.”
If the court determines the individual is not a “dangerous sex offender requiring
confinement” it may, however, find the person to be a “sex offender requiring strict
and intensive supervision.” §10.07(f). These individuals will be subject only to intense
supervision and not civil commitment. §10.01(c), §10.07(f), §10.11. In those circumstances,
SSA benefits would not be suspended. GN 02607.350B.1. Thus, the individuals who are not found “dangerous” under SOMTA should not have their
benefits suspended. Also, sex offenders requiring supervision are not confined so
suspension of benefits is precluded on this ground as well. Id.
Finally, Congress requires that sex offenders be civilly committed “in an institution
at public expense” before suspension of benefits is allowed. While SOMTA does not
specifically state individuals will be civilly committed in an institution at public
expense, this can be inferred by several statute sections. SOMTA requires the individual
be civilly committed to a “secure treatment facility” both during the process of determining
sexual dangerousness and after such a positive finding. §10.06(k)(i), §10.07(f). Section
10.03(o) of the Act defines a “secure treatment facility” as designated by the NYS
Commissioner of Mental Health, staffed by personnel from the Offices of Mental Health
and Mental Retardation and Developmental Disabilities and possibly located on the
grounds of a correctional facility. Moreover, the Commissioner of the Office of Mental
Health and/or of the Office Mental Retardation and Developmental Disabilities is charged
with the care, custody and control of civilly committed persons during their treatment
and confinement. §10.10. Since the commissioner and staff are public employees, presumably
the facility will be a public institution and probably a correctional facility run
by NYS.
Consequently, some persons civilly committed under NY's SOMTA statute will fit into
Congress's and SSA's concept of a sexually dangerous person whose benefits should
be suspended. Other individuals though will not and their benefits should continue
or be resumed. Case-by-case determinations may have to be made as SSA has previously
done in connection to the suspension of civilly committed sexual offenders' benefits.
III. Determining if a Sexual Offense is an Element of the Criminal Conviction Knowledge
of what crime the civilly committed individual was initially convicted of is imperative,
because, as discussed, SOMTA covers a much broader class of individuals than Congress
or SSA policy. See Infra Sec. II.
Felony offenses that do not contain as an element sexual activity should not result
in the suspension of benefits. The attached Appendix I is divided into two tables
felony offenses without sexual activity as an element and felony offenses with sexual
activity as an element
Please note a separate felony offense was created by the legislature on April 13,
2007. The newly created felony applies to anyone committing a designated felony for
“his or her own direct sexual gratification” which is an additional, distinct crime
known as the “sexually motivated felony” under NY penal law § 130.91. NY PENAL Law
§ 130.91 (McKinney's 2007). Individuals convicted of this separate crime are convicted for an offense
containing sexual activity as an element and should have benefits suspended.
One method of determining what crime was involved is checking the NYS Department of
Correctional Services' “Inmate Population Information Search” available online at
http://nysdocslookup.docs.state.ny.us/kinqw00 . All inmates sentenced to NY state prison since the early 1970s are listed in the
database, except youthful offenders and those who have had their convictions set aside
by a court. The search is limited to the first four crimes listed so there may be
additional crimes not shown. (Conceivably, the first four crimes could not contain
sexual activity as an element and one of the crimes not listed might have sexual activity
as an element of the offense.) Of course, other methods may be available or preferable
and SSA may already be aware of an inmate's conviction(s) from when benefits were
suspended due to the individual's incarceration.
An additional problem is determining whether and under what law an individual is civilly
committed after criminal incarceration is completed. Either the NYS attorney general
or the sex offender may request closure of the courtroom and sealing of all papers
by showing good cause under SOMTA. N.Y. MENT HYG Law §10.08(g). Thus, the court order
may not be available. SSA will have to decide how to handle such cases.
BARBARA L. S~
Regional Chief Counsel
By:______________________
Michelle L. C~t
Assistant Regional Counsel
APPENDIX I
Below are two tables divided between designated felonies without sexual activity as
an element of the offense and designated felonies with sexual activity as an element
of the offense. Felony attempts or conspiracy to commit any of the below felonies
also suffices under SOMTA. §10.03(f). For each offense the N.Y. Penal Code Section
is given.
Designated Felonies Without Sexual Activity as an Element of the Offense:
Assault in the second degree as defined in section 120.05
2. Assault in the first degree as defined in section 120.10
3. Gang assault in the second degree as defined in section 120.06
4. Gang assault in the first degree as defined in section 120.07
5. Stalking in the first degree as defined in section 120.60
6. Manslaughter in the second degree as defined in subdivision one of section 125.15
7. Manslaughter in the first degree as defined in section 125.20
8. Murder in the second degree as defined in section 125.25
9. Aggravated murder as defined in section 125.26
10. Murder in the first degree as defined in section 125.27
11. Kidnapping in the second degree as defined in section 135.20
12. Kidnapping in the first degree as defined in section 135.25
13. Burglary in the third degree as defined in section 140.20
14. Burglary in the second degree as defined in section 140.25
15. Burglary in the first degree as defined in section 140.30
16. Arson in the second degree as defined in section 150.15
17. Arson in the first degree as defined in section 150.20
18. Robbery in the third degree as defined in section 160.05
19. Robbery in the second degree as defined in section 160.10
20. Robbery in the first degree as defined in section 160.15
21. Any felony attempt or conspiracy to commit any of foregoing offenses
Designated Felonies With Sexual Activity as an Element of the Offense:
Promoting prostitution in the second degree as defined in section 230.30
2. Promoting prostitution in the first degree as defined in section 230.32
3. Compelling prostitution as defined in section 230.33
4. Disseminating indecent material to minors in the first degree as defined in section
235.22
5. Use of a child in a sexual performance as defined in section 263.05
6. Promoting an obscene sexual performance by a child as defined in section 263.10
7. Promoting a sexual performance by a child as defined in section 263.15
8. Any of the felonies defined in article one hundred thirty of the penal law (“sex
offenses”):
a. § 130.20 Sexual misconduct
b. § 130.25 Rape in the third degree
c. § 130.30 Rape in the second degree
d. § 130.35 Rape in the first degree
e. § 130.40 Criminal sexual act in the third degree
f. § 130.45 Criminal sexual act in the second degree
g. § 130.50 Criminal sexual act in the first degree
h. § 130.52 Forcible touching
i. § 130.53 Persistent sexual abuse
j. § 130.55 Sexual abuse in the third degree
k. § 130.60 Sexual abuse in the second degree
l. § 130.65 Sexual abuse in the first degree
m. § 130.65 Aggravated sexual abuse in the fourth degree
n. § 130.66 Aggravated sexual abuse in the third degree
o. § 130.67 Aggravated sexual abuse in the second degree
p. § 130.70 Aggravated sexual abuse in the first degree
q. § 130.75 Course of sexual conduct against a child in the first degree
r. § 130.80 Course of sexual conduct against a child in the second degree
s. § 130.85 Female genital mutilation
t. § 130.90 Facilitating a sex offense with a controlled substance
u. § 130.91 Sexually motivated felony
v. § 130.95 Predatory sexual assault
w. § 130.96 Predatory sexual assault against a child
9. Patronizing a prostitute in the first degree as defined in section 230.06 of the
penal law
10. Incest in the second degree as defined in section 255.26 of the penal law
11. Incest in the first degree as defined in section 255.27 of the penal law
12. Any felony attempt or conspiracy to commit any of foregoing offenses