TN 16 (03-13)
PR 06805.006 California
A. PR 13-052 Suspension of Title II Benefits for Confined Persons Identified as Sexually Dangerous Predators in California – Update
DATE: March 1, 2013
California law permits the civil confinement of individuals identified as sexually violent predators (SVPs) beyond the completion of a criminal sentence. Accordingly, we may apply Section 202(x)(1)(A)(iii) of the Social Security Act (Act) to suspend the benefits of SVPs in California who otherwise meet the criteria of the Act. The corresponding POMS sections pertaining to these suspension provisions are in GN 02607.340 through GN 02607.360.
You asked us to provide an update on California’s law permitting civil confinement of sexually dangerous persons beyond the completion of a criminal sentence.
California law permits the civil confinement of individuals identified as sexually violent predators (SVPs) beyond the completion of a criminal sentence. Accordingly, Section 202(x)(1)(A)(iii) of the Social Security Act (Act) may be applied to suspend the benefits of SVPs in California who otherwise meet the criteria of the Act and the corresponding POMS sections. See Act § 202 (x)(1)(A)(iii); POMS GN 02607.340, GN 02607.350, & GN 02607.360.
Section 202(x)(1)(A)(iii) of the Social Security Act provides that no title II monthly benefits shall be paid to an individual who “immediately upon completion of confinement as described in clause (i) [relating to imprisonment] pursuant to 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.” Act § 202 (x)(1)(A)(iii). Such an individual shall be treated as remaining so confined until (1) he or she is released from the care and supervision of the institution, and (2) such institution ceases to meet the individual’s basic living needs. Act § 202(x)(1)(B)(ii).
Section 202(x)(3)(A) of the Act requires federal and state agencies (or political subdivisions thereof) to make the names, social security numbers, dates of birth, confinement commencement dates, and any other identifying information of confined individuals available to the Commissioner of Social Security if the confinement is under the jurisdiction of such agency, and the Commissioner makes a written request because he requires such information to carry out the provisions of Section 202(x)(1)(A).
SSA will enforce the non-payment provision only in those states that have formal laws expressly providing for courtordered 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).
California’s Sexually Violent Predator Act (SVPA) allows for civil confinement of sexually dangerous persons upon completion of a criminal sentence. Cal. Welf. & Inst. Code § 6600, et.seq. Originally enacted in 1996, it was most recently amended in 2012. The SVPA defines a sexually violent predator as: “a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.” Cal. Welf. & Inst. Code § 6600(a). This definition is consistent with the POMS definition of sexually dangerous persons. GN 02607.350A(1)(a); see also GN 02607.340A(1)(a) (applying same definitions for confinements between December 17, 2009 through March 31, 2000).
As contemplated by POMS GN 02607.350A(1)(a), California requires a complex medical and legal evaluation prior to the designation of an individual as an SVP. Under the 2012 version of the law, at least six months prior to release from prison custody, the California Department of Corrections (CDCR) would refer inmates who have committed sexually violent offenses to the Department of Mental Health (Department) for an evaluation. Cal. Welf. & Inst. Code § 6601(a)(1). The Department would obtain independent evaluations from two mental health clinicians (psychiatrists and/or psychologists). Cal. Welf. & Inst. Code § 6601(c) & (d). If both clinicians determined that the inmate had a mental disorder that made him likely to reoffend without appropriate treatment or custody, the Department would make a recommendation for SVP commitment to the county in which the inmate was convicted of the qualifying offense. Cal. Welf. & Inst. § 6601(d).
If the two clinicians performing the evaluation do not agree whether the inmate meets the SVP criteria, the Director of Mental Health shall arrange for further examination by two independent professionals. Cal. Welf. & Inst. Code § 6601(e). In the event that additional evaluations are needed, an SVP petition shall only be filed if both independent evaluators agree that the inmate meets the SVP criteria. Cal. Welf. & Inst. Code § 6601(f). In 2008, the law was amended, in part by the California legislature, and in part by ballot initiative, to create the Sex Offender Commitment Program (SOCP) within the State Department of Mental Health to implement the provisions of the sexually violent predator civil commitment program (beginning with Section 6600). Cal. Welf. & Inst. Code 6601(a). In 2012, the law was amended to further require that the above-mentioned mental evaluations should be performed at least four months, but no sooner than 10 months prior to an inmate’s scheduled release from prison custody. The law was further amended to provide that the Board of Parole Hearings may order an evaluation and, upon a showing of good cause, determine that a person remain in custody no more than 45 days beyond the scheduled release date for a full SVP evaluation. Cal. Welf. & Inst. Code § 6601.3(a).
Since January 1, 2010, the Department of Corrections and Rehabilitation and the State Department of Mental Health is required to send the scores taken to the Department of Justice Sex Offender Tracking Program no later than 30 days after the date of the assessment. If the person is otherwise subject to parole, a finding that the petition on its face supports a finding of probable cause to believe that the individual is likely to engage in violent predatory criminal behavior upon his or her release, it shall toll that person’s parole if that individual is determined to be an SVP. Cal. Welf. & Inst. Code 6601(k).
Either the county counsel or the district attorney may file a superior court petition seeking civil commitment as an SVP. Cal. Welf. & Inst. Code § 6601(i). The superior court determines whether there is sufficient probable cause to hold a trial on the SVP question. Cal. Welf. & Inst. Code § 6602(a). The individual remains in custody pending the completion of the probable cause hearing and through the conclusion of the trial. Id. In the absence of probable cause, the court must dismiss the petition, and the individual may be released to parole.
To be convicted as an SVP, the factfinder (judge or jury) must make a finding beyond a reasonable doubt. Cal. Welf. & Inst. Code § 6604; see also Cal. Welf. & Inst. Code § 6603(d) & (f). A person found to be an SVP is committed to Department custody for an indeterminate term for appropriate treatment and confinement in a secure facility designated by the Director of Mental Health. Cal. Welf. & Inst. Code § 6604. The SVP requirements of court-ordered, indefinite confinement in a public institution following adjudication as an SVP is exactly the type of procedure set out in POMS GN 02607.350A(1)(a).
In California, both the Coalinga State Hospital and Atascadero State Hospital have admitted SVPs. Their addresses are:
Coalinga State Hospital
Physical Address: 24511
West Jayne Avenue
Mailing Address: P.O. Box 5000
Coalinga, CA 93210-5000
Facility Identification Code (FID): ~
Atascadero State Hospital
Physical Address: 10333 El Camino Real, Atascadero, CA 93422
Mailing Address: P.O. Box 7001, Atascadero, CA 93423-7001
Facility Identification Code (FID): ~
We note that California law neither explicitly requires nor prohibits the Department from disclosing the identity of its patients as SVPs to SSA. However, the Act requires a state agency to disclose an SVP’s name and social security account number status to the Commissioner on written request in order to carry out the SVP non-payment provisions. Act § 202 (x)(3)(A). Thus, the POMS procedures for obtaining identifying information on suspected SVPs in California should be followed when contacting these institutions. See POMS GN 02607.360.
Section 202(x)(1)(A)(iii) of the Act and the corresponding POMS sections may be applied to suspend the benefits or payments of individuals judged to be SVPs under California’s Sexually Violent Predator Act where, immediately upon completion of confinement, the SVP is confined by court order in an institution at public expense. Such an individual shall be treated as remaining so confined until (1) he or she is released from the care and supervision of the institution, and (2) such institution ceases to meet the individual’s basic living needs. Act § 202(x)(1)(B)(ii).
Section 1611(e)(1) of the Act provides that individuals are not eligible for title XVI payments for any month in which they are inmates of a public institution including medical treatment facilities, with certain exceptions. While the title XVI eligibility provisions correspond to Section 202(x)(1)(A)(ii) with respect to ineligibility of persons deemed incompetent to stand trial or not guilty by reason of insanity, they do not have parallel eligibility language with respect to civil confinement following completion of a criminal sentence. See Act § 1611(I)(i).
The SVPA appears to be well-established in state law, as it has withstood several constitutional challenges. 38 Cal. Jur. 3d Incompetent Persons § 14.
All references to Cal. Welf. & Inst. Code § 6600, et.seq. are to the 2012 version unless otherwise specified.
The 2006 amendment passed as Proposition 83 (known as “The Sexual Predator Punishment and Control Act: Jessica’s Law”) changed the SVPA qualification and redetermination provisions. Among other things, Jessica’s Law lengthened the civil commitment term from two years to an indeterminate period, and changed the qualification criteria to require only one victim. Prior to the amendment, SVP criteria included two or more victims, and persons so identified had a hearing every two years.
If the clinicians determine that the inmate does not have a mental disorder, he will be released to parole at the end of his sentence.
The Department must provide a current examination of each SVP’s mental condition at least once every year. Cal. Welf. & Inst. Code § 6605(a). The SVPA also provides mechanisms by which an SVP may petition the court for unconditional release, release to a less restrictive alternative, or unconditional discharge, upon the appropriate evidentiary showing; these petitions may be made either with or without Department authorization. See Cal. Welf. & Inst. Code §§ 6605(b & d), 6608.
If an SVP is released from a mental facility, California law does require disclosure by Department to the California Department of Justice, the CDCR Sexually Violent Predator Parole Coordinator, the county to which the individual may be released, the county of the individual’s last legal residence, and the county that petitioned for the individual’s civil commitment. Cal. Welf. & Inst. Code § 6609.1(a)(1)
In California, an individual is already in custody at the time of the psychological/psychiatric evaluation for potential SVP referral, and thus the claim is in suspense. Because the individual remains in custody through the time of the probable cause hearing, the prisoner suspension would continue. See POMS GN 02607.350A.1.a. During the period between the probable cause hearing and the trial, the individual remains in a custody in a secure facility. POMS GN 02607.350.A.1.b.Stage 1 seems applicable to this period (in other words, the claim remains in suspension). If, after a trial, the superior court issues a final order that the inmate is an SVP, the SVP is committed to a secure facility. The SVP must serve 30 continuous days in the facility under a final court order for the SVP suspension to become effective. See POMS GN 02607.350.A.1.b.Stage 2 & 3. Suspension is retroactive to the date of the final court order or the date of confinement, if later than the date of the final court order. POMS GN 02607.350.A.1.c