You have asked two questions regarding the effect of Debra M~'s reckless manslaughter
conviction for the death of her husband, Dwayne A. M~, the wage earner. First, you
asked whether Ms. M~ is precluded from receiving mother's benefits due to her conviction
despite a commutation of her sentence. Second, you asked whether Ms. M~ may serve
as a representative payee on behalf of their three minor children currently living
For the reasons discussed below, we believe that Ms. M~ may not receive mother's benefits
based on the earnings of her deceased husband. However, Ms. M~ may be eligible to
serve as her children's representative payee.
In November 1996, Debra M~ pleaded guilty to reckless manslaughter in the January
1996 shooting death of her husband, Dwayne A. M~. She was sentenced to six years in
prison. On January 11, 1999, Colorado Governor Roy R~. commuted Ms. M~'s sentence
to time served. Ms. M~ was "unconditionally discharged from the custody of the Department
of Corrections pursuant to 18-1-105" effective January 13, 1999.
On February 10, 1999, District Judge Robert W. O~, upon recommendation of the Conejos
County Department of Social Services, ordered three of Ms. M~'s children, Flint, Tyrone,
and Jade, be returned to her custody. Judge O~ further ordered two of Ms. M~'s other
children, Shannon and Mathew, be emancipated, and ordered the dependency and neglect
action regarding Cimarron, a fourth minor child, remain open and the issue of his
custody be continued pending the outcome of a juvenile delinquency matter.
An individual "may not become entitled to or continue to receive any survivor's benefits
or payments on the earnings record of any person . . . if [the individual was] convicted
of a felony or an act in the nature of a felony of intentionally causing that person's
death." 20 C.F.R. § 404.305(b) (1999).
Ms. M~ was convicted of reckless manslaughter, pursuant to Colo. Rev. Stat § 18-3-104(1)(a),
in the shooting death of her husband, Dwayne A. M~. "Manslaughter is a class 4 felony."
Colo. Rev. Stat. § 18-3-104(2) (1998). "A person commits the crime of manslaughter
if . . .[h]e recklessly causes the death of another person." Id. § 18-3-104. "Recklessly" is a "conscious disregard[ of] a substantial and unjustifiable
risk that a result will occur or that a circumstance exists." Id. § 18-1-501(8).
Social Security Ruling (SSR) 89-6c indicates:
[i]n defining 'intentional homicides' for purposes of applying 20 C.F.R. § 404.305(b),
the [Commissioner's] guidelines expand on the traditional meaning of an intentional
state of mind . . .[to] include . . . 'an act which [the actor] knows could result
in death of the [wage earner] even though the [insured's] death is not actually desired.'
Thus, a conviction for the indifferent performance of a voluntary act that the actor
knows is potentially fatal to another, even if the death of the other is not specifically
intended, disqualifies the actor from eligibility for survivor's benefits.
Also, SSA interprets "intent," for purposes of determining whether the homicide of
a person is intentional, as "[a] wish or expectancy that an act will have a certain
result . . . [t]he presence of will in the commission of a criminal act where the
individual is fully aware of the nature and probable consequences of the act which
is to be done." Program Operations Manual (POMS) § GN 00304.060(B)(1)(a) & (b).
Further, the Colorado Supreme Court has concluded there is an element of intent, though
not specific intent, in reckless manslaughter. See People v. Thomas, 729 P.2d 972, 975-76 (Colo. 1986).
In light of SSR 89-6c, POMS § GN 00304.060(B)(a) & (b), and Thomas, SSA would be justified in concluding Ms. M~ was convicted
of a felony in which she intentionally caused the death of the wage earner. See Memorandum,
Homicide Conviction for Reckless Manslaughter in Colorado, CC VIII (Blair) to RC,
SSA, Oct. 17, 1989; 20 C.F.R. § 404.305(b) (1999). Therefore, she would not be entitled
to benefits on his earnings record.
"The governor shall have power to grant . . . commutations . . . after conviction."
Colo. Const. Art. IV, § 7 (1999) (emphasis added). A commutation is merely a "relief
from a sentence." People
v. Arellano, 524 P.2d 305, 282 (Colo. 1974), not relief from the conviction. Thus, the commutation
of Ms. M~'s sentence from six years to time served (approximately two years) had no
affect on her actual conviction for reckless manslaughter. With regard to your second
question, according to SSA policy, a convicted felon, such as Ms. M~, generally is
not a suitable representative payee, unless there is no alternative payee. See POMS
00304.085, 00502.133(A). In this case, we advise you employ SSA policy in evaluating Ms. M~'s
suitability to serve as representative payee for her children. See POMS GN 00502.133(C)(1) & (2).