You asked whether the suspension of benefits due to imprisonment should be reversed
and any underpayment released to the survivor where the imprisoned individual died
of natural causes while an appeal was pending, leading the Arizona State court to
abate the conviction and dismiss the indictment.
Yes. Under Arizona law, death by natural causes while an appeal is pending eliminates
the conviction as if it had never occurred. Consequently, the agency should determine
the amount of any underpayment related to the conviction and imprisonment and issue
the underpayment pursuant to the appropriate program rules.
On January 15, 2013, Arizona death row prisoner Richard (the Number Holder, or NH)
died of natural causes while awaiting execution. An Arizona Certificate of Death records
the NH’s cause of death as “hypertensive and arteriosclerotic cerebrovascular disease.”
At the time of death, the NH had pending a post-conviction relief (PCR) proceeding
before the Arizona courts. Thereafter, the State of Arizona filed a Motion to Dismiss
PostConviction Relief Proceeding and the NH’s criminal Defense Counsel responded by
filing a Request That Convictions be Abated Ab Initio. On February 11, 2013, the Maricopa
County Superior Court issued an order explaining that State law required abatement
of the conviction from the outset, and ordered the NH’s indictment dismissed.
The NH’s payee, Renee, then requested that the agency remove the prison suspension
on the NH’s account and post an appropriate underpayment on his record. Court records
submitted to the agency indicate that Renee was also the NH’s Guardian ad Litem.
The Social Security Act (Act) prohibits the payment of Title II benefits to any individual
who is convicted of a criminal offense and confined to a jail, prison, or other penal
institution or correctional facility for more than 30 continuous days. Act § 202(x)(1)(A)(i),
42 U.S.C. § 402(x)(1)(A)(i); see also 20 C.F.R. § 404.468 (Nonpayment of benefits to prisoners).
The primary rationale underlying the prisoner suspension-of-payment provision is that
a convicted criminal defendant is maintained at public expense and has no need for
a continuing source of social security income. “[T]here is no need to use scarce benefit
funds for persons whose basic needs are met by the prison.” Davel v. Sullivan, 902 F.2d 559, 562 (7th Cir. 1990) (citing Sen. Rep. No. 987, 96th Cong., 2d Sess.
7-9 (1980)); see Wilkins v. Callahan, 127 F.3d 1260, 1262 (10th Cir. 1997); Buccheri-Bianca v. Heckler, 768 F.2d 1152, 1154-1155 (10th Cir. 1985); see also Butler v. Apfel, 144 F.3d 622, 625 (9th Cir. 1998) (finding no violation of equal protection in Congress’s
stated goal of conserving social security resources by declining to pay benefits to
incarcerated prisoners while allowing payment to other wards of the state); Davis v. Bowen, 825 F.2d 799, 800 (4th Cir. 1987) (collecting cases).
Notwithstanding the suspension of payment of benefits to confined individuals, the
Act instructs the Commissioner to pay the individual benefits that have been withheld
due to criminal confinement if the Commissioner determines that a court of competent
jurisdiction has either (1) found that the individual not guilty of the criminal offense;
(2) dismissed the charges relating to the criminal defense; (3) vacated the warrant
for arrest of the individual; or (4) issued any similar exonerating order. Act § 202(x)(1)(B)(iii)(I);
42 U.S.C. § 402(x)(1)(B)(iii)(I).
Here, following the NH’s demise, the State of Arizona filed a motion to dismiss pending
PCR proceedings with the Arizona Superior Court. The Office of the Public Advocate
filed a response, requesting that the court abate the entire case, including both
the PCR proceedings and the conviction. The Office of the Public Advocate argued that,
under the Arizona case of State v. Griffin, 121 Ariz. 538, 539 (1979), death pending appellate review invalidates the conviction
from the outset.
In G~, the Arizona Supreme Court considered the case of a man who died pending an appeal
of his conviction for grand theft. 121 Ariz. at 538. The convicted individual paid
a fine and restitution to the victim. Id. When the man died, his attorney sought dismissal of the appeal and return of the
fine and restitution to the decedent’s estate. Id. It is not merely that the case is dismissed, but rather that everything associated
with the case is extinguished, leaving the deceased defendant as if he or she had
never been indicted or convicted. U.S. v. Estate of Parsons, 367 F.3d 409, 413 (5th Cir. 2004).
The G~ court explained that “[t]he great majority of jurisdictions which have considered
the problem have ruled that death pending appellate review of a criminal conviction
abates not only the appeal but also all proceedings had in the prosecution from its
inception.” G~, 121 Ariz at 538 (citing, among others, Durham v. U.S., 401 U.S. 481 (1971); Crooker v. U.S., 325 F.2d 318, 320 (8th Cir. 1963)). The primary rationale for death abating the
criminal conviction is that the interests of the state in protection of society have
been satisfied, the imposition of punishment is impossible, and collection of fines
or forfeiture result in punishing innocent third parties. G~, 121 Ariz at 539. “The death of the defendant renders enforcement of the judgment
impossible.” Id. The state has no substantial interest in maintaining the conviction so the entire
criminal proceeding abates from the beginning. Id. A second consideration underlying the abatement doctrine is that “the interests of
justice ordinarily require that [a defendant] not stand convicted without resolution
of the merits of an appeal.” U.S. v. Wright, 160 F.3d 905, 908 (2d Cir. 1998) (quoting U.S. v. Pogue, 19 F.3d 663, 665 (D.C. Cir. 1994)); accord U.S. v. Rich, 603 F.3d 722, 724 (9th Cir. 2010).
As the G~ court’s citation to United States Supreme Court authority suggests, Arizona is not
alone in abating the entire criminal proceedings when a prisoner dies pending the
appeal of his or her conviction.  The federal circuits are near unanimous in accepting the abatement doctrine in one
form or another. See W~, 160 F.3d at 908 (2d Cir.); U.S. v. Christopher, 273 F.3d 294, 297 (3d Cir. 2001); U.S. v. Dudley, 739 F.2d 175, 176 (4th Cir. 1984); Estate of P~, 367 F.3d at 413 (5th Cir.); U.S. v. Wilcox, 783 F.2d 44 (6th Cir. 1986); U.S. v. Moehlenkamp, 557 F.2d 126, 128 (7th Cir. 1977); Crooker, 325 F.2d at 320 (8th Cir.); U.S. v. Oberlin, 718 F.2d 894, 895 (9th Cir.1983); U.S. v. Davis, 953 F.2d 1482, 1486 (10th Cir. 1992); U.S. v. Schumann, 861 F.2d 1234, 1237 (11th Cir.1988); P~, 19 F.3d at 665 (D.C. Cir.); see also U.S. v. Sheehan, 874 F. Supp. 31, 33 (D. Mass. 1994) (stating that the First Circuit follows the
In contrast, state courts are not unanimous in the doctrine’s application. See, e.g., People v. Fevziekinici, 191 Misc. 2d 510, 517, 743 N.Y.S.2d 651, 657 (N.Y. Sup. Ct. 2002) (Upon the death
of a convicted individual with a pending appeal “about half the states not only dismiss
the appeal but also dismiss the indictment, vacating the conviction. Approximately
half of the States either dismiss the appeal without vacating the conviction or permit
it to continue by the appointment of a representative”) (citing 80 A.L.R.4th 189).
In the situation at issue here, the Maricopa County Superior Court quoted G~’s explanation for the rationale behind the abatement doctrine and determined that
G~ applies not only to direct appeals but to PCR proceedings as well. The court reasoned
that, unlike jurisdictions that treat a PCR proceeding as a civil action, the PCR
proceeding in Arizona is a part of the original criminal action. See Ariz. R. Crim. P. 32.3. As a result, the court ordered the NH’s indictment dismissed.
The Act instructs the Commissioner to pay the individual benefits that have been withheld
due to criminal confinement if the Commissioner determines that a court of competent
jurisdiction has dismissed the charges relating to the criminal defense. Act § 202(x)(1)(A)(iii)(I).
A “charge” is “[a] formal accusation of an offense as a preliminary step to prosecution.”
Black's Law Dictionary (9th ed. 2009). An “indictment” is “[t]he formal written accusation
of a crime, made by a grand jury and presented to a court for prosecution against
the accused person.” Id. Thus, dismissal of the indictment is a dismissal of the charges and the agency must
treat the conviction as if it never occurred.  Since the charges have been dismissed, the agency should determine the amount of
any underpayment related to the criminal confinement or prior conviction.
Arizona follows the abatement doctrine, as discussed above. Because the Arizona Superior
Court dismissed the NH’s indictment ab initio, it is as if the conviction never happened.
Therefore, the agency should determine the amount of any underpayment due to the conviction
and imprisonment, and pay the underpayment according to the program rules for payment
to surviving heirs.