The case involves the effect of a wife's reckless manslaughter conviction for the death of her husband, the wage earner (WE). The first question addressed by the Regional Attorney is whether, under 20 C.F.R. 404.305(b), the wife is precluded from receiving mother's benefits based on the earnings record of her deceased husband despite the commutation of her sentence. The legal opinion of the Regional Attorney is that the wife was convicted of a felony in which she intentionally caused the death of the WE. The commutation of her sentence has no affect on her actual conviction, and she is not, therefore, entitled to receive benefits based on her deceased spouse's earnings record.

The second question addressed by the Regional Attorney is whether the wife of the deceased wage earner (DWE) can serve as representative payee on behalf of their three minor children currently living with her. The Regional Attorney concludes that the wife may serve as representative payee if she is determined suitable after following SSA policy in evaluating her.

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 with her.

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.

DISCUSSION

Facts

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.

Opinion

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 §§ GN 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).