TN 19 (10-13)
PR 06805.004 Arizona
A. PR 14-001 Impact of Prisoner’s Death by Natural Causes on Suspension of Benefits Richard - AZ Death Row inmate & Number Holder
DATE: September 30, 2013
This precedent opinion provides legal standing for the abatement policy to apply in Arizona. Based on Arizona law, a convicted person’s death by natural causes while his or her appeal of a guilty verdict is pending eliminates the verdict as if it had never occurred. Consequently, we must reverse the person’s prisoner suspension determination and pay any withheld benefits to the person’s estate based on our applicable program rules.
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 abatement doctrine).
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.
B. PR 10-042 Prisoner Suspension – Victor Reversal of Sentence to Probation after Confinement and Effect on Title II Benefit Payment
DATE: December 22, 2009
This opinion provides information on cases in which a beneficiary is originally sentenced to imprisonment and is later re-sentenced to probation retroactively to the initial date of incarceration and released from custody. In the case at hand, we suspended the beneficiary’s retirement insurance benefits when originally sentenced to imprisonment. Based on the Court’s reversal of the original sentence to probation, we can reinstate the beneficiary's retirement insurance benefits retroactively to the first month of prisoner suspension. While the POMS does not speak to this unique set of circumstances, the handling of this case is parallel to that of prisoners incarcerated while awaiting appeal whose convictions are later overturned.
You asked whether Title II retirement insurance benefits withheld during a beneficiary’s confinement for a felony burglary conviction should be repaid where the state criminal court ultimately reversed his sentence of incarceration, ordered him released from custody, and sentenced him to probation retroactive to the date of his incarceration.
We believe that the situation is analogous to that of a conviction overturned on appeal and therefore the agency should reinstate and repay the beneficiary’s Title II benefits for the period of his confinement.
Victor, an Arizona resident, became entitled to retirement insurance benefits in December 1995. He was convicted of committing felony burglary. On August 25, 2008, the Pima County Superior Court in Arizona sentenced him to imprisonment in the custody of the Arizona Department of Corrections. The agency suspended his retirement insurance benefits effective August 2008.
Victor petitioned the Pima County Superior Court for post-conviction relief from the prison sentence. On May 29, 2009, the Court held an evidentiary proceeding. After the hearing, the Court set aside the original sentence of imprisonment, finding that Victor met his burden of proving that the Court had improperly weighed the mitigating circumstances at the time of the original sentencing. The Court re sentenced Victor to probation for a period of four years retroactive to August 25, 2008, and ordered Victor’s release from custody. The agency reinstated his retirement insurance benefits effective June 2009.
The Social Security Act, Regulations, and POMS
The Social Security Act prohibits the payment of Title II benefits to any individual who is charged with a criminal offense, convicted, and confined to a jail, prison, or other penal institution or correctional facility for more than 30 continuous days. Section 202(x)(1)(A)(i) of the Act. The rationale underlying the prisoner non-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)); 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) (rejecting constitutional challenge and finding that there was nothing irrational about Congress’s stated goal of conserving social security resources).
The Commissioner’s regulation defines “confinement” as follows:
In general, a jail, prison, or other penal institution or correctional facility is a facility which is under the control and jurisdiction of the agency in charge of the penal system or in which convicted criminals can be incarcerated. Confinement in such a facility continues as long as the individual is under a sentence of confinement and has not been released due to parole or pardon. An individual is considered confined even though he or she is temporarily or intermittently outside of that facility (e.g., on work release, attending school, or hospitalized).
20 C.F.R. § 404.468(c) (2009). According to POMS, a beneficiary is confined “when [he/she] resides in a correctional or mental health institution.” POMS GN 02607.001(B)(2).
A beneficiary’s confinement begins with imprisonment in any U.S. correctional institution following a conviction or court order (confinement does not require formal sentencing by a court) for more than 30 continuous days, and ends with the end of the sentence, pardon, or parole. POMS GN 02607.160(A)(3). Here, Victor was sentenced to imprisonment and served his sentence from August 25, 2008, to May 29, 2009. He was released from prison after the Pima County Superior Court found that it had improperly weighed the mitigating circumstances in imposing the original sentence of imprisonment, set aside the sentence of imprisonment, and imposed a new sentence of probation.
Victor’s case is unique in that he was re-sentenced to probation and the new sentence was applied retroactively to the initial date of his incarceration. This is significant because as an individual on probation Victor would have been eligible for Title II benefits, while as an incarcerated or confined individual, he was not. While neither the statute nor the POMS speak to this particular set of circumstances, we believe that these facts are analogous to those of prisoners incarcerated while awaiting appeal whose convictions are later overturned and should be analyzed under that rubric.
Pursuant to POMS GN 02607.200(A), the agency will suspend the benefits of individuals who are in custody while pursuing post-conviction appeals. The POMS also explains that if a conviction is overturned, suspended benefits are reinstated and any benefits withheld are repaid. POMS GN 02607.200(A)(3)(a). In this case, Victor was incarcerated while he pursued post-conviction relief from the prison sentence. Because Victor had been convicted and sentenced to incarceration, it was appropriate for the agency to suspend his benefits while he sought post-conviction relief. Victor then challenged his sentence of imprisonment (but not his conviction) and was re-sentenced to probation. This re-sentencing replaced the initial sentence of confinement, as a successful appeal would replace or overturn a conviction. As noted above, in cases where individuals seek appeal and convictions are overturned as a result of the appeal, the POMS directs benefits be reinstated and any withheld benefits be repaid. Because the re-sentencing replaced the initial sentence, it is as though the incarceration never occurred, only the probation. Because probation does not cause benefits to be suspended, we believe that the agency should reinstate and repay benefits during the time of Victor’s incarceration.
However, the abatement doctrine does not always apply to all forms of appeal. As the G~ court noted, the abatement doctrine does not apply to petitions for writs of certiorari to the United States Supreme Court. 121 Ariz. at 539. In Dove v. U.S., 423 U.S. 325 (1976), the Supreme Court held that a petition for a writ of certiorari must be dismissed upon the death of the petitioner, but recognized that this exception to the general abatement doctrine does not apply to direct appeals. Id.; see U.S. v. Bechtel, 547 F.2d 1379 (9th Cir. 1977).
We recognize that from the policy perspective, the reasons behind the abatement of conviction for a deceased person may not be what is contemplated by the Act’s repayment provision for convictions that have been overturned or dismissed. See Act § 202(x)(1)(B)(iii)(I), 42 U.S.C. § 402(x)(1)(B)(iii)(I). Arguably, the same policy rationale for non-payment could apply – namely, that the beneficiary was maintained at public expense and had no need for a continuing source of social security income. However, in light of the broad wording of section 202(x)(1) and the absence of clear guidance to the contrary, the agency should construe a dismissal due to death the same as a substantive dismissal.