Section 202(x)(1)(A)(iii) of the Social Security Act provides that no monthly benefits shall be paid to an individual "immediately upon completion of confinement as described in clause (i) [relating to imprisonment] pursuant to a 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," 42 U.S.C. § 402 (x)(1)(A)(iii). The Program Operation Manual System (POMS) explains that SSA will only enforce the sexually dangerous nonpayment provision, Section 202(x)(1)(A)(iii), in those states that have formal laws expressly providing for court ordered confinement of sexually dangerous individuals.

In the Philadelphia region, Virginia and the District of Columbia have provisions allowing for the commitment of sexually dangerous persons. In addition, Pennsylvania has enacted a limited provision only for the commitment of selected sex offenders who are "aging out" of the juvenile justice system. The other states within the region, Maryland, Delaware, and West Virginia, do not have enabling legislation that provides for confinement of sexually dangerous persons beyond completion of their sentence. Accordingly, Section 202(x)(1)(A)(iii) would not be applicable in Maryland, Delaware, and West Virginia and could be applied only in limited circumstances in Pennsylvania.

QUESTION PRESENTED

This memorandum is in response to your request for an opinion regarding whether the states in our region have enabling legislation that permits confinement beyond completion of a sentence for sexually dangerous persons.

SUMMARY

Virginia and the District of Columbia have enabling legislation that permits confinement upon completion of a sentence for sexually dangerous persons. Pennsylvania enacted such legislation only in the case of juvenile sex offenders who are "aging out" of the juvenile justice system. The remaining states in our region, West Virginia, Delaware, and Maryland, do not have enabling legislation that provides for confinement of sexually dangerous persons beyond completion of their sentence.

BACKGROUND

As you are aware, Section 202(x)(1)(A)(iii) of the Social Security Act provides that no monthly benefits shall be paid to an individual "immediately upon completion of confinement as described in clause (i) [relating to imprisonment] pursuant to a 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," 42 U.S.C. § 402 (x)(1)(A)(iii). The Program Operation Manual System (POMS) explains that SSA will only enforce the sexually dangerous nonpayment provision, Section 202(x)(1)(A)(iii), in those states that have formal laws expressly providing for court ordered confinement of sexually dangerous individuals. See POMS GN 02607.360.A.1; see also, GN PHI 02607.360.A.3. (explaining that the state must have enabling legislation providing for the continued confinement of sexually dangerous persons upon completion of their sentence).

As we previously indicated in our December 3, 1999, memorandum, both Virginia and the District of Columbia have provisions allowing for the commitment of sexually dangerous persons. (Copy attached.) Since the December 1999, memorandum was issued, the Virginia provisions have become effective beginning on January 1, 2001. In addition, Pennsylvania has enacted a limited provision only for the commitment of selected sex offenders who are "aging out" of the juvenile justice system. The other states within our region, Maryland, Delaware, and West Virginia, do not have enabling legislation that provides for confinement of sexually dangerous persons beyond completion of their sentence. Accordingly, Section 202(x)(1)(A)(iii) would not be applicable in Maryland, Delaware, and West Virginia and could be applied only in limited circumstances in Pennsylvania.

DISCUSSION

Virginia

Virginia's Sexually Violent Predator Act (SVP Act), VA. CODE ANN. §§ 37.2-900 et seq. (West, Westlaw through 2008 Special Session II), became effective on January 1, 2001. Under Virginia law, a "Sexually Violent Predator" is "any person who (i) has been convicted of a sexually violent offense or has been charged with a sexually violent offense and is unrestorably incompetent to stand trial pursuant to [VA. CODE ANN.] § 19.2-169.3 and (ii) because of a mental abnormality or personality disorder, finds it difficulty to control his predatory behavior, which makes him likely to engage in sexually violent acts." VA. CODE ANN. § 37.2-900. The SVP Act established an Office of Sexually Violent Predator Services. VA. CODE ANN. § 37.2-900.1. The SVP Act also requires that a database be maintained of each prisoner in custody for a sexually violent offense, including the prisoner's criminal record, sentence, and release date. VA. CODE ANN. § 37.2-903(B).

The SVP Act provides for a Commitment Review Committee (CRC) to screen, evaluate, and make recommendations regarding prisoners in the custody of the Department of Corrections. VA. CODE ANN. § 37.2-902. The CRC members include Department of Corrections staff, a psychologist or psychiatrist skilled in the diagnosis, treatment and risk assessment of sex offenders, and an assistant or deputy attorney general. Id. The CRC will make assessments of prisoners eligible for commitment as SVPs and recommend whether the prisoner requires involuntary commitment or alternative treatment under a conditional release program. VA. CODE ANN. § 37.2-904.

Upon receipt of a recommendation by the CRC regarding an eligible prisoner or an unrestorably incompetent defendant, the Attorney General has ninety days to conduct a review to determine whether a petition for the civil commitment of the prisoner as a SVP will be filed. VA. CODE ANN. § 37.2-905. The circuit court then has sixty days to hold a probable cause hearing. VA. CODE ANN. § 37.2-906(A). If the court finds probable cause to believe that the individual is a SVP, the court must hold a trial within ninety days. VA. CODE ANN. § 37.2-908(A). If the individual is found by clear and convincing evidence to be a SVP, the court must determine whether there is a suitable less restrictive alternative to involuntary, secure inpatient treatment before ordering secure inpatient treatment. VA. CODE ANN. § 37.2-908(D). Once committed to a secure inpatient treatment facility, however, the individual will remain there for control, care, and treatment until such time as the individual's mental abnormality or personality disorder has so changed that the person will not present an undue risk to public safety. VA. CODE ANN.

§ 37.2-909(A).

Accordingly, Section 202(x)(1)(A)(iii) can be applied to suspend the benefits of individuals in Virginia who meet the criteria of the Act and the corresponding POMS sections. See 42 U.S.C. § 402 (x)(1)(A)(iii); POMS GN 02607.340, .350, .360.

District of Columbia

Pursuant to the District of Columbia's Sexual Psychopath Act (SPA), an individual who is not insane, but who "by a course of repeated misconduct in sexual matters has evidenced such lack of power to control his or her sexual impulses as to be dangerous to other persons" may be civilly committed. D.C. CODE § 22-3803, 22-3808 (West, Westlaw through March 15, 2009). Because the SPA excludes those who are "insane," it does not apply to individuals who are deemed "mentally ill." Shelton v. United States, 721 A.2d 603, 607-08 (D.C. Cir. 1998).

Under the SPA, the United States Attorney for the District of Columbia may file a statement with the clerk of the Superior Court setting forth facts suggesting that any individual in the District of Columbia is a "sexual psychopath." D.C. CODE § 22-3804(a). The United States Attorney may also file a statement with the clerk of any court in which a criminal case is proceeding if he believes that the defendant may be a "sexual psychopath." D.C. CODE § 22-3804(b). In addition, if any court believes that a criminal defendant is a "sexual psychopath," it may direct the officer prosecuting the case to file a petition for the designation of such a defendant as a "sexual psychopath." D.C. CODE § 22-3804(c). Any statement filed during a criminal proceeding must be filed either (1) before trial; (2) after conviction or plea of guilty, but before sentencing; or (3) after conviction or plea of guilty, but before the completion of probation.

D.C. CODE § 22-3804(d).

When such a statement has been filed, the court must appoint two qualified psychiatrists to examine the patient and form an opinion as to whether the patient is a "sexual psychopath."

D.C. CODE § 22-3806(a). If both psychiatrists agree that the patient is a "sexual psychopath," or if both are unable to reach a conclusion, or if one believes the patient is a "sexual psychopath" and the other is unable to reach a conclusion, the court will hold a hearing. D.C. CODE § 22-3808. If after a hearing the court finds the patient to be a "sexual psychopath," he will be committed to an institution until such time as he is "sufficiently recovered so as to not be dangerous to other persons." D.C. CODE §§ 22-3808, 22-3809.

As previously stated, Section 202(x)(1)(A)(iii) would only preclude monthly benefits from those individuals who have completed confinement as described in clause (i) [pertaining to incarceration] and who are currently 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. Significantly, under the SPA, the United States Attorney can file a statement suggesting that an individual is a sexual psychopath absent criminal charges. D.C. CODE § 22-3804(a). It is important to note that individuals found to be sexual predators pursuant to the District of Columbia's SPA would only be affected by this section if the finding that they were a sexual predator was made after a conviction and a period of confinement.

Pennsylvania

Pennsylvania has enabling legislation for court-ordered involuntary treatment only in the very limited circumstances of a juvenile who has been adjudicated delinquent for an act of sexual violence and has been committed to an institution, where he or she remains upon attaining age twenty. 42 PA .CONS. STAT. ANN. § 6403 (West, Westlaw through end of 2008). If the juvenile at that time is still in need of involuntary treatment due to a mental abnormality or personality disorder that results in serious difficulty in controlling sexually violent behavior that makes the person likely to engage in an act of sexual violence, there are procedures available for continued court-ordered involuntary treatment. Id. This legislation went into effect on February 10, 2004. However, based upon the narrow scope of this legislation, we believe that Section 202(x)(1)(A)(iii) would rarely, if ever, apply to suspend benefits.

Pennsylvania has a classification of "sexually violent predator," defined as, "[a] person who has been convicted of a sexually violent offense as set forth in [42 PA .CONS. STAT. ANN.] Section 9795.1 (relating to registration) and who is determined to be a sexually violent predator under [42 PA .CONS. STAT. ANN.] Section 9795.4 (relating to assessments) due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses." 42 PA .CONS. STAT. ANN. §9792. Pennsylvania also established a State Sexual Offenders Assessment Board (SOAB) in 1995 that conducts investigations to determine whether certain sex offenders meet the legal criteria for SVP classification, which requires lifetime registration as a sex offender. 42 PA .CONS. STAT. ANN. §9795.4. In addition, the SOAB determines whether juveniles who are institutionalized for sex crimes prior to their twentieth birthday require additional involuntary treatment. 42 PA .CONS. STAT. ANN. §9795.4(h). The SOAB also serves as the chair of a team to study statewide adult and juvenile sex offender management practices and develop additional services, practices, and strategies to ensure community safety through effective management of sex offenders. See http://www.meganslaw.state.pa.us/soab/cwp/view.asp?a=686&q=191628&pp=3

Maryland, Delaware, and West Virginia

Although none of these states currently have enabling legislation that permits confinement for sexually dangerous persons beyond completion of a sentence, each state has established a task force on the issue that may recommend or introduce such legislation in the future.

Specifically, effective June 22, 2006, Maryland established a Sexual Offender Advisory Board, pursuant to MD. CODE ANN., PUB. SAFETY § 1-401 (West, Westlaw through 2008 Regular Session). The Board's duties include: reviewing the effectiveness of Maryland's laws, as well as those of other states, concerning sexual offenders; reviewing developments in treatment and assessment of sexual offenders; and developing standards for sex offender treatment based on current and evolving best practices. Id.

Effective October 1, 2006, West Virginia established a public-private task force, the Sexually Violent Predator Management Task Force, for the purpose of identifying and developing measures providing for the appropriate treatment of SVPs until they are no longer dangerous to the public. W.VA. CODE §62-11E (West, Westlaw through S.B. 403 of 2009 Regular Session).

Effective July 5, 2007, Delaware established the Sex Offender Management Board to develop and prescribe a standardized procedure for the evaluation, identification, and classification of adult and juvenile sex offenders, as well as development of guidelines and standards for programs to treat sex offenders. DEL. CODE ANN. tit. 11, § 4120A (West, Westlaw through 77 Laws 2009).

CONCLUSION

In our region, the state of Virginia and the District of Columbia have enabling legislation providing for the civil commitment of sexually dangerous persons upon completion of a criminal sentence that will permit suspension of benefits under Section 202(x)(1)(A)(iii) of the Act. In addition, the state of Pennsylvania has such legislation only in the limited circumstances of the commitment of selected sex offenders who are "aging out" of the juvenile justice system. We believe that this narrow legislation will rarely, if ever, provide a basis for restricting benefits pursuant to Section 202(x)(1)(A)(iii). The remaining jurisdictions, Maryland, West Virginia, and Delaware, do not currently have such enabling legislation, but they have formed committees to study the issues related to sex offenders and may recommend or introduce such legislation in the future. Similarly, Pennsylvania has also formed a committee that may attempt to expand the limited legislation currently in effect in Pennsylvania.

Eric P. K~,

Chief Counsel, Region V

By:________

Tara A. C~

Assistant Regional Counsel

QUESTION PRESENTED

This is in response to your July 28, 2004, request for our opinion regarding (1) whether the Court orders provided by Edward W~ overturn his June 5, 1996, conviction, and (2) whether he would be entitled to reinstatement of his benefits and, if so, the effective date of such reinstatement.

SUMMARY

We have reviewed the information that you provided and have researched the relevant provisions of West Virginia law as it pertains to habeas corpus proceedings. We believe that the granting of Mr. W~ petition for a writ of habeas corpus and the subsequent Nolle Prosequi order does not overturn his prior conviction for purposes of reinstatement of his Social Security benefits back to June 1996, the date of his conviction. The effective date for reinstatement of his suspended benefits would be June 2003, the month after he was released from prison pending a new trial.

BACKGROUND Based on the information that you provided to us, Mr. W~ was indicted by the Grand Jury, Marion County, West Virginia, during the October 1995 term. The matter was tried before a jury on June 4 and June 5, 1996, and the jury found him guilty of nine out of the fourteen counts contained in the indictment. He was sentenced on October 16, 1996, to terms of imprisonment ranging from one to five years (Third Degree Sexual Assault), five to fifteen years (Incest), and fifteen to thirty-five years (First Degree Sexual Assault). Mr. W~ was ordered to serve these sentences consecutively.

Mr. W~ appealed his conviction and the appeal was denied on November 11, 1997. On February 11, 1999, he filed a petition for a writ of habeas corpus. On December 21, 1999, the Circuit Court of Marion County, West Virginia, granted the writ and commenced omnibus proceedings. On February 23, 2000, Mr. W~ filed an amended petition for writ of habeas corpus. Mr. W~ alleged, among other things, ineffective assistance of counsel. On April 23, 2003, the Circuit Court of West Virginia granted Mr. W~ request for a new trial on the basis of ineffective assistance of counsel. The underlying felony case was placed back on the Court's active docket and a new trial was scheduled for January 21, 2004.

On May 28, 2003, Mr. W~ was released from prison after posting a bond. On November 10, 2003, the State of West Virginia moved for a nolle prosequi _11 order because the victim refused to participate in another investigation and trial, a principal witness also refused to participate, and the two investigators who handled the case had retired. On November 10, 2003, the Court ordered that the indictment was nolle prosequi, dismissed without prejudice, and retired from the docket of the Court.

DISCUSSION

The Social Security Act provides that no monthly payments shall be paid to any individual for any month ending with or during or beginning with or during a period of more than thirty days throughout all of which such individual is confined in a jail, prison, or other penal institution or other correctional facility pursuant to his conviction of a criminal offense. 42 U.S.C. § 202(x)(1)(A)(i). Such a determination may be reopened if a conviction of a crime that affected the individual's right to receive benefits is overturned. 20 C.F.R. § 404.988(c)(11)(ii) (2004). The Programs Operation Manual System ("POMS") contains guidance for reinstating benefits if a conviction is overturned. If an individual must undergo a new trial because a court overturned his conviction and the individual is released from a correctional institution pending the new trial and its outcome, benefits are reinstated effective with the first full month after the individual's release from the correctional institution. POMS GN 02607.200(3)(b). If the individual had remained in the correctional institution pending the new trial, benefits would remain suspended until the court made a decision regarding conviction or acquittal. Id.

West Virginia law provides, in part, that

(a) Any person convicted of a crime and incarcerated under sentence of imprisonment therefor who contends that there was such a denial or infringement of his rights…that the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error…may file a petition for a writ of habeas corpus ad subjiciendum….All proceedings in accordance with this article shall be civil in character and shall under no circumstances be regarded as criminal proceedings or a criminal case. W. Va. Code § 53-A-1 (1967) (2000 Repl. Vol.).

The primary object of habeas corpus is to determine the legality of the restraint under which a person is held and the only issue which it presents is to determine the legality of the restraint and whether the prisoner is restrained of his liberty by due process of law. Tune v. Thompson, 151 S.E.2d 732, 734 (W. Va. 1966). A discharge in habeas corpus operates upon the custody of a person illegally or unconstitutionally restrained and does not operate to discharge a person from the legal consequences of an act or to acquit him of a crime. Johnson v. McKenzie, 226 S.E.2d 721, 802 (W. Va. 1976). It merely requires resumption of the proceedings at the point they had reached prior to the unlawful action on the part of the court. Tune, 151 S.E.2d at 734.

It is generally recognized that a nolle prosequi, if entered before jeopardy attached, does not act as an acquittal and does not bar further prosecution for the offense. State v. Cain, 289 S.E.2d 488, 491 (W. Va. 1982). A prosecutor must have the consent of the court before a nolle prosequi will be entered. Myers v. Frazier, 319 S.E.2d 782, 776 (W. Va. 1984).

The POMS require that if an individual must undergo a new trial and he/she is still confined, suspended benefits will not be repaid until there is an acquittal. POMS GN 02607.200(2)(b). Under West Virginia law, Mr. W~ has not been granted an acquittal because a nolle prosequi order, without prejudice, was issued by the Court. In other words, the Court never reached a decision as to whether he should be acquitted or convicted, as required under the POMS. Although the nolle prosequi order dismissed the indictment, it was done without prejudice and the Court could still, theoretically, conduct a new trial pursuant to the writ of habeas corpus. For this reason, Mr. W~ would not be entitled to reinstatement of his benefits back to the date of his conviction.

However, the POMS direct that when an individual is released from a correctional institution pending a new trial, benefits should be paid effective with the first full month after the individual's release. Since Mr. W~ was released on May 28, 2003, his benefit should be reinstated as of June 2003.

There is, however, the possibility that Mr. W~ SSA case could be reopened and the suspended benefits repaid from the date of his conviction through the date of his release if he obtains further documentation from the State of West Virginia. If the State of West Virginia provides documentation that indicates his conviction has been dissolved, stricken from their records, or that the prosecutor is permanently unable or unwilling to pursue the case, the Agency should reconsider his request.

CONCLUSION

For the reasons stated above, it is our opinion, absent further evidence from Mr. W~, that benefits should be reinstated as of June 2003.

Thomas W. C~

Chief Counsel, Region V

By:________

Suzanne D~

Assistant Regional Counsel

_11 "Nolle Prosequi" is the voluntary withdrawal by the prosecuting attorney of present proceedings on a criminal charge. Black's Law Dictionary 726 (6th ed. 1991).

Effective April, 1999, in the states of Ohio, Wisconsin, Indiana, Minnesota and Michigan, provisions exist which could be interpreted to allow disclosure to SSA of information regarding juvenile detainees. In Illinois, the Department of Corrections may need to amend it's regulations, depending on the interpretation of those regulations, to allow disclosure of such information to SSA. Note that the conditions described in this opinion were valid at the time the opinion was issued in April, 1999. Subsequent users of this opinion are advised to make certain that the provisions described herein remain in effect at the time of application.

You indicated in your January 25, 1999 memorandum that SSA plans to increase its efforts to obtain information on individuals confined in juvenile detention centers in order to correctly suspend title XVI payments to residents of public institutions and to identify the need for new representative payees. Toward that end, you requested a review of state laws to determine whether state laws would allow the release of this information to SSA. Our research revealed some provisions in each state that could be interpreted to allow disclosure to SSA of information regarding juvenile detainees.

Discussion

Wisconsin

We understand from our conversations with your office that SSA already received information regarding juveniles held in detention centers in Wisconsin pursuant to an agreement with that State. Wisconsin law allows the confidential exchange of information regarding records of children in the care of a state agency under either the Department of Corrections or the Department of Health and Family Services, if that confidential exchange is with another social welfare agency, which also keeps the information confidential. Wis. Stat. Ann. §§ 48.78(b), 938.78(b)(1) (West Supp. 1998). Our office contacted Jody H~, SSA's contact at Wisconsin's Division of Juvenile Correction. Ms. H~ confirmed that the State was authorized under the above statutes to release information to other government agencies like SSA.

Conclusion

In summary, SSA already has agreements with Ohio and Wisconsin to provide information regarding juveniles held in detention centers. Our research indicates that such disclosure is permissible in those States.

SSA should not have difficulty obtaining agreements with the States of Indiana and Minnesota to obtain information regarding juvenile detainees. In Michigan, SSA should be able to obtain cooperation from superintendents of juvenile detention centers. In Illinois, however, the Department of Corrections may need to amend its regulations, depending on how the current regulations are interpreted, to allow for disclosure of information to SSA.