TN 9 (05-09)

PR 06805.009 Delaware

A. PR 09-092 State Survey of Enabling Legislation that Permits Confinement for Sexually Dangerous Persons Beyond Completion of a Criminal Sentence -- INFORMATION

DATE: April 29, 2009

1. SYLLABUS:

Section 202(x)(1)(A)(iii) of the Social Security Act provides that no monthly benefits shall be paid to an individual "immediately upon completion of confinement as described in clause (i) [relating to imprisonment] pursuant to a 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," 42 U.S.C. § 402 (x)(1)(A)(iii). The Program Operation Manual System (POMS) explains that SSA will only enforce the sexually dangerous nonpayment provision, Section 202(x)(1)(A)(iii), in those states that have formal laws expressly providing for court ordered confinement of sexually dangerous individuals.

In the Philadelphia region, Virginia and the District of Columbia have provisions allowing for the commitment of sexually dangerous persons. In addition, Pennsylvania has enacted a limited provision only for the commitment of selected sex offenders who are "aging out" of the juvenile justice system. The other states within the region, Maryland, Delaware, and West Virginia, do not have enabling legislation that provides for confinement of sexually dangerous persons beyond completion of their sentence. Accordingly, Section 202(x)(1)(A)(iii) would not be applicable in Maryland, Delaware, and West Virginia and could be applied only in limited circumstances in Pennsylvania.

2. OPINION

QUESTION PRESENTED

This memorandum is in response to your request for an opinion regarding whether the states in our region have enabling legislation that permits confinement beyond completion of a sentence for sexually dangerous persons.

SUMMARY

Virginia and the District of Columbia have enabling legislation that permits confinement upon completion of a sentence for sexually dangerous persons. Pennsylvania enacted such legislation only in the case of juvenile sex offenders who are "aging out" of the juvenile justice system. The remaining states in our region, West Virginia, Delaware, and Maryland, do not have enabling legislation that provides for confinement of sexually dangerous persons beyond completion of their sentence.

BACKGROUND

As you are aware, Section 202(x)(1)(A)(iii) of the Social Security Act provides that no monthly benefits shall be paid to an individual "immediately upon completion of confinement as described in clause (i) [relating to imprisonment] pursuant to a 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," 42 U.S.C. § 402 (x)(1)(A)(iii). The Program Operation Manual System (POMS) explains that SSA will only enforce the sexually dangerous nonpayment provision, Section 202(x)(1)(A)(iii), in those states that have formal laws expressly providing for court ordered 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).

As we previously indicated in our December 3, 1999, memorandum, both Virginia and the District of Columbia have provisions allowing for the commitment of sexually dangerous persons. (Copy attached.) Since the December 1999, memorandum was issued, the Virginia provisions have become effective beginning on January 1, 2001. In addition, Pennsylvania has enacted a limited provision only for the commitment of selected sex offenders who are "aging out" of the juvenile justice system. The other states within our region, Maryland, Delaware, and West Virginia, do not have enabling legislation that provides for confinement of sexually dangerous persons beyond completion of their sentence. Accordingly, Section 202(x)(1)(A)(iii) would not be applicable in Maryland, Delaware, and West Virginia and could be applied only in limited circumstances in Pennsylvania.

DISCUSSION

Virginia

Virginia's Sexually Violent Predator Act (SVP Act), VA. CODE ANN. §§ 37.2-900 et seq. (West, Westlaw through 2008 Special Session II), became effective on January 1, 2001. Under Virginia law, a "Sexually Violent Predator" is "any person who (i) has been convicted of a sexually violent offense or has been charged with a sexually violent offense and is unrestorably incompetent to stand trial pursuant to [VA. CODE ANN.] § 19.2-169.3 and (ii) because of a mental abnormality or personality disorder, finds it difficulty to control his predatory behavior, which makes him likely to engage in sexually violent acts." VA. CODE ANN. § 37.2-900. The SVP Act established an Office of Sexually Violent Predator Services. VA. CODE ANN. § 37.2-900.1. The SVP Act also requires that a database be maintained of each prisoner in custody for a sexually violent offense, including the prisoner's criminal record, sentence, and release date. VA. CODE ANN. § 37.2-903(B).

The SVP Act provides for a Commitment Review Committee (CRC) to screen, evaluate, and make recommendations regarding prisoners in the custody of the Department of Corrections. VA. CODE ANN. § 37.2-902. The CRC members include Department of Corrections staff, a psychologist or psychiatrist skilled in the diagnosis, treatment and risk assessment of sex offenders, and an assistant or deputy attorney general. Id. The CRC will make assessments of prisoners eligible for commitment as SVPs and recommend whether the prisoner requires involuntary commitment or alternative treatment under a conditional release program. VA. CODE ANN. § 37.2-904.

Upon receipt of a recommendation by the CRC regarding an eligible prisoner or an unrestorably incompetent defendant, the Attorney General has ninety days to conduct a review to determine whether a petition for the civil commitment of the prisoner as a SVP will be filed. VA. CODE ANN. § 37.2-905. The circuit court then has sixty days to hold a probable cause hearing. VA. CODE ANN. § 37.2-906(A). If the court finds probable cause to believe that the individual is a SVP, the court must hold a trial within ninety days. VA. CODE ANN. § 37.2-908(A). If the individual is found by clear and convincing evidence to be a SVP, the court must determine whether there is a suitable less restrictive alternative to involuntary, secure inpatient treatment before ordering secure inpatient treatment. VA. CODE ANN. § 37.2-908(D). Once committed to a secure inpatient treatment facility, however, the individual will remain there for control, care, and treatment until such time as the individual's mental abnormality or personality disorder has so changed that the person will not present an undue risk to public safety. VA. CODE ANN.

§ 37.2-909(A).

Accordingly, Section 202(x)(1)(A)(iii) can be applied to suspend the benefits of individuals in Virginia who meet the criteria of the Act and the corresponding POMS sections. See 42 U.S.C. § 402 (x)(1)(A)(iii); POMS GN 02607.340, .350, .360.

District of Columbia

Pursuant to the District of Columbia's Sexual Psychopath Act (SPA), an individual who is not insane, but who "by a course of repeated misconduct in sexual matters has evidenced such lack of power to control his or her sexual impulses as to be dangerous to other persons" may be civilly committed. D.C. CODE § 22-3803, 22-3808 (West, Westlaw through March 15, 2009). Because the SPA excludes those who are "insane," it does not apply to individuals who are deemed "mentally ill." Shelton v. United States, 721 A.2d 603, 607-08 (D.C. Cir. 1998).

Under the SPA, the United States Attorney for the District of Columbia may file a statement with the clerk of the Superior Court setting forth facts suggesting that any individual in the District of Columbia is a "sexual psychopath." D.C. CODE § 22-3804(a). The United States Attorney may also file a statement with the clerk of any court in which a criminal case is proceeding if he believes that the defendant may be a "sexual psychopath." D.C. CODE § 22-3804(b). In addition, if any court believes that a criminal defendant is a "sexual psychopath," it may direct the officer prosecuting the case to file a petition for the designation of such a defendant as a "sexual psychopath." D.C. CODE § 22-3804(c). Any statement filed during a criminal proceeding must be filed either (1) before trial; (2) after conviction or plea of guilty, but before sentencing; or (3) after conviction or plea of guilty, but before the completion of probation.

D.C. CODE § 22-3804(d).

When such a statement has been filed, the court must appoint two qualified psychiatrists to examine the patient and form an opinion as to whether the patient is a "sexual psychopath."

D.C. CODE § 22-3806(a). If both psychiatrists agree that the patient is a "sexual psychopath," or if both are unable to reach a conclusion, or if one believes the patient is a "sexual psychopath" and the other is unable to reach a conclusion, the court will hold a hearing. D.C. CODE § 22-3808. If after a hearing the court finds the patient to be a "sexual psychopath," he will be committed to an institution until such time as he is "sufficiently recovered so as to not be dangerous to other persons." D.C. CODE §§ 22-3808, 22-3809.

As previously stated, Section 202(x)(1)(A)(iii) would only preclude monthly benefits from those individuals who have completed confinement as described in clause (i) [pertaining to incarceration] and who are currently 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. Significantly, under the SPA, the United States Attorney can file a statement suggesting that an individual is a sexual psychopath absent criminal charges. D.C. CODE § 22-3804(a). It is important to note that individuals found to be sexual predators pursuant to the District of Columbia's SPA would only be affected by this section if the finding that they were a sexual predator was made after a conviction and a period of confinement.

Pennsylvania

Pennsylvania has enabling legislation for court-ordered involuntary treatment only in the very limited circumstances of a juvenile who has been adjudicated delinquent for an act of sexual violence and has been committed to an institution, where he or she remains upon attaining age twenty. 42 PA .CONS. STAT. ANN. § 6403 (West, Westlaw through end of 2008). If the juvenile at that time is still in need of involuntary treatment due to a mental abnormality or personality disorder that results in serious difficulty in controlling sexually violent behavior that makes the person likely to engage in an act of sexual violence, there are procedures available for continued court-ordered involuntary treatment. Id. This legislation went into effect on February 10, 2004. However, based upon the narrow scope of this legislation, we believe that Section 202(x)(1)(A)(iii) would rarely, if ever, apply to suspend benefits.

Pennsylvania has a classification of "sexually violent predator," defined as, "[a] person who has been convicted of a sexually violent offense as set forth in [42 PA .CONS. STAT. ANN.] Section 9795.1 (relating to registration) and who is determined to be a sexually violent predator under [42 PA .CONS. STAT. ANN.] Section 9795.4 (relating to assessments) due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses." 42 PA .CONS. STAT. ANN. §9792. Pennsylvania also established a State Sexual Offenders Assessment Board (SOAB) in 1995 that conducts investigations to determine whether certain sex offenders meet the legal criteria for SVP classification, which requires lifetime registration as a sex offender. 42 PA .CONS. STAT. ANN. §9795.4. In addition, the SOAB determines whether juveniles who are institutionalized for sex crimes prior to their twentieth birthday require additional involuntary treatment. 42 PA .CONS. STAT. ANN. §9795.4(h). The SOAB also serves as the chair of a team to study statewide adult and juvenile sex offender management practices and develop additional services, practices, and strategies to ensure community safety through effective management of sex offenders. See http://www.meganslaw.state.pa.us/soab/cwp/view.asp?a=686&q=191628&pp=3

Maryland, Delaware, and West Virginia

Although none of these states currently have enabling legislation that permits confinement for sexually dangerous persons beyond completion of a sentence, each state has established a task force on the issue that may recommend or introduce such legislation in the future.

Specifically, effective June 22, 2006, Maryland established a Sexual Offender Advisory Board, pursuant to MD. CODE ANN., PUB. SAFETY § 1-401 (West, Westlaw through 2008 Regular Session). The Board's duties include: reviewing the effectiveness of Maryland's laws, as well as those of other states, concerning sexual offenders; reviewing developments in treatment and assessment of sexual offenders; and developing standards for sex offender treatment based on current and evolving best practices. Id.

Effective October 1, 2006, West Virginia established a public-private task force, the Sexually Violent Predator Management Task Force, for the purpose of identifying and developing measures providing for the appropriate treatment of SVPs until they are no longer dangerous to the public. W.VA. CODE §62-11E (West, Westlaw through S.B. 403 of 2009 Regular Session).

Effective July 5, 2007, Delaware established the Sex Offender Management Board to develop and prescribe a standardized procedure for the evaluation, identification, and classification of adult and juvenile sex offenders, as well as development of guidelines and standards for programs to treat sex offenders. DEL. CODE ANN. tit. 11, § 4120A (West, Westlaw through 77 Laws 2009).

CONCLUSION

In our region, the state of Virginia and the District of Columbia have enabling legislation providing for the civil commitment of sexually dangerous persons upon completion of a criminal sentence that will permit suspension of benefits under Section 202(x)(1)(A)(iii) of the Act. In addition, the state of Pennsylvania has such legislation only in the limited circumstances of the commitment of selected sex offenders who are "aging out" of the juvenile justice system. We believe that this narrow legislation will rarely, if ever, provide a basis for restricting benefits pursuant to Section 202(x)(1)(A)(iii). The remaining jurisdictions, Maryland, West Virginia, and Delaware, do not currently have such enabling legislation, but they have formed committees to study the issues related to sex offenders and may recommend or introduce such legislation in the future. Similarly, Pennsylvania has also formed a committee that may attempt to expand the limited legislation currently in effect in Pennsylvania.

Eric P. K~,
Chief Counsel, Region V

By:________
Tara A. C~
Assistant Regional Counsel

B. PR 06-151 Whether Title II Retirement Benefits Should Be Paid To Joseph E. S~, Sr., SSN ~, a Convicted Felon, While Residing In a Halfway House.

DATE: June 1, 2006

1. OPINION

QUESTION PRESENTED

This is in response to your April 12, 2006 request for our advice regarding whether Joseph E. S~, Sr., (Number Holder), a convicted felon who was placed in a halfway house via approved furlough from a federal correctional institution, is eligible for reinstatement of Title II retirement benefits.

CONCLUSION

We have reviewed the information that you provided and have researched the relevant provisions of the Social Security Act (Act) and regulations that pertain to prisoners living outside a correctional institution. We believe that the Number Holder is precluded from receiving retirement benefits while confined to the halfway house.

BACKGROUND

The Number Holder was convicted of a felony in June 1998 and confined to the Morgantown WV Federal Correctional Institution. In January 2006, he was transferred, under conditions of an approved furlough, to the Volunteers of America (VOA), a non-profit organization funded by the federal government. The VOA operates as a halfway house for federal inmates, pretrial and probational men, assisting male federal prisoners in their transition from prison to the community. While confined to this facility, the Number Holder remained in the custody of the Attorney General's Office and is required to pay to the facility a 25% subsistence fee on any income that he receives. You have advised that it is not clear whether the Federal government was paying for the portion of room and board that the Number Holder was not responsible for. The Number Holder was to be confined to the VOA halfway house until July 7, 2006. On January 30, 2006 (protective filing date), while confined to this VOA facility, the Number Holder filed an SSA application for retirement benefits. As a result of the filing of the application, you request a legal opinion regarding whether Title II retirement benefits can be paid to the Number Holder even though charges against him represent a criminal offense under U.S. Federal law.

Pursuant to a telephone conversation with a VOA staff member, we were advised that sometime in April 2006, the Number Holder was released from the VOA facility to home confinement. He is currently living with his daughter at her house. While on home confinement, the Number Holder is to report to the VOA halfway house in person and is subject to random, unannounced calls up to two times per week. We were also advised by the VOA staff member that the Number Holder did not work because of a leg ulcer, either while confined to the VOA facility or while on home confinement. We contacted the VOA Program Director for additional, relevant information regarding this matter. 2

Advised of the change in the Number Holder's circumstances, contact person Diana C~, Program Support Team, has advised us to provide the requested information as it relates only to the period of time that the Number Holder was confined to the VOA halfway house.

DISCUSSION

You asked that we take into consideration provisions GN 02607.160(B)(2) and GN 02607.840 of the Program Operations Manual System (POMS) in determining whether the Number Holder's application for benefits should be approved. At the outset, it should be noted that Section 202(x)(1)(A)(i) of the Social Security Act (Act), codified as 42 U.S.C. § 402(x)(1)(A)(i), and its implementing regulations at 20 C.F.R. § 404.468(a), provide that monthly benefits are not to be paid to an individual who is "confined in a jail, prison, or other penal institution or correctional facility pursuant to his conviction of a criminal offense." Section 202(x)(1)(B)(i) of the Act provides that such an individual shall not be considered confined in an institution comprising a jail, prison, or other penal institution or correctional facility during any month throughout which such individual is residing outside such institution at no expense (other than the cost of monitoring) without such institution or the penal system or to any agency to which the penal system has transferred jurisdiction over the individual. Id. The regulations also provide that confinement in a jail, prison, or other penal institution or correctional facility continues as long as the individual is under a sentence of confinement and has not been released due to parole or pardon. 20 C.F.R. § 404.468(c). The suspension of benefits for incarcerated individuals "rationally promotes the legitimate underlying congressional policy of conserving scarce social security resources where a prisoner's basic economic needs are provided from other public sources." Davis v. Bowen, 825 F.2d 799, 801 (4th Cir. 1987).

Addressing the issue of confinement to a correctional facility, the POMS provide, in relevant part, that confinement includes those (prisoners) who are in a halfway house because of a transfer from the correctional institution. See GN 02607.140(A)(3), 02607.160(A)(3). 3 The POMS also provide that confinement does not apply "if [the prisoner] is not in the custody of a United States correctional facility ... for more than 30 continuous days because of a criminal conviction." The POMS further provide that "confinement does not include any month throughout which an individual is living outside the correctional institution, at no expense (other than the cost of monitoring) to the institution; or the correctional agency or any agency, which has authority over the [prisoner]." See GN 02607.140(B)(2), GN 02607.160(B)(2).

Pursuant to the above-cited provisions of the Act and the POMS, and taking into consideration the period of time during which the Number Holder resided at the VOA halfway house, the Number Holder would be considered "confined" for the reasons that follow. First, the Number Holder was residing at the halfway house because of a transfer from a correctional institution, thus meeting the relevant prongs of the above-cited provisions. Secondly, you have indicated that while at the halfway house, he remained under the control and supervision of the correctional institution. Thirdly, as to the provision regarding public expense, the facts, as represented, lead us to conclude that the Number Holder continued to be under confinement at all relevant times.

You have indicated that the Number Holder was responsible to the VOA for a 25% subsistence fee on any income he received, and that it was not clear if the Federal government was paying the portion of room and board that the Number Holder was not responsible for. A VOA staff member advised us that during the Number Holder's stay at the halfway house, he did not work due to leg ulcers. While the VOA staff person advised that it was not known to her whether the Number Holder was living at the facility at no expense to the transferring correctional institution or any other agency, it reasonably can be inferred that in the absence of any work-related income, the Number Holder did not provide any private funds to be applied towards the required 25% subsistence fee. It can also be reasonably inferred that the remaining portion of the Number Holder's room and board was not provided via private funds. Thus, it may further be reasonably inferred that any such funds were necessarily provided to the VOA at the expense of the transferring correctional institution, penal system, or agency that retained authority over him. Since it is likely that public funds were provided to the VOA halfway house and applied toward his room and board, the Number Holder is not entitled to Title II retirement benefits for the period of time that he resided at the VOA halfway house. Should further information reveal that no public funds were in fact used for the Number Holder's subsistence while he resided at the halfway house, he would be eligible to receive Title II retirement benefits.

Donna L. C~
Chief Counsel, Region V

By:________
Rafael M~
Assistant Regional Counsel

C. PR 06-132 S2D3B-6, Determining Whether the Benefits of Anthony J. B~ SSN ~ Should Have Been Suspended after October 24, 2005

DATE: May 16, 2006

1. OPINION

QUESTION PRESENTED

On April 13, 2006, we provided our advice as to whether the benefits of Anthony J. B~ should have been suspended on two occasions. It was our opinion that B~s benefits should have been suspended from January 2000 through August 2002 when he was placed in the Norristown State Hospital (NSH) and from February 28 through October 24, 2005 when he was incarcerated in the Philadelphia Prison System (PPS).

After we provided our advice, you inquired whether B~'s benefits should have been suspended when he was placed in the Star II program on October 24, 2005. Based on the information you have provided and the information that we subsequently obtained, it is our opinion that B~'s placement at the Star II program was voluntary and, thus, his benefits should be resumed.

BACKGROUND

Between February 28 and October 24, 2005, B~ was incarcerated in the PPS.

On October 24, 2005, B~ was released from the PPS and placed in the Star II program, where he currently resides. Although separate from the NSH, the Star I and II programs are located in privately rented spaces on the grounds of the NSH. The Star I and II programs have the same mission and the difference in name only refers to the actual location of the program, i.e. Star I is on the first floor, Star II is on the second floor.

After we issued our April 13, 2006 advice memorandum, we asked Mark G~, a Technical Expert at the Norristown Field Office, to seek additional information regarding the Star II program. Mr. G~ presented a list of questions to Maureen E~, who works for the Special Offenders Department for the First Judicial District of Pennsylvania - Court of Common Pleas.

On May 4, 2006, Ms. E~ responded that the Star program is a voluntary sex offender therapy program for mentally retarded/mentally ill individuals. Ms. E~ stated that an individual participating in the Star program is not obligated to stay in the program and can leave the grounds of the program at his or her own discretion. Ms. E~ stated that B~'s current status is listed as "on bail."

On May 4, 2006, Mr. G~ also contacted the Norristown Police Department to see if they would be automatically notified if B~ left the grounds of the Star II program. The Norristown Police Department stated that they would not be automatically notified if B~ left the grounds of the Star II program.

On May 8, 2006, our office contacted William D~, the Star I Program Supervisor, and completed a Report of Contact. Mr. D~ stated that B~ had volunteered for the Star II program when he was released from prison on October 24, 2005. Mr. D~ stated that B~ could leave the program on his own accord, but that he would notify Ms. E~.

Prior to our conversation with Mr. D~, Mr. G~ spoke to Dr. D~'s assistant in February 2006 and completed a Report of Contact. Mr. D~'s assistant stated that B~ was confined to the Star II program by court order and that B~ could not leave the grounds of his own volition.

DISCUSSION

As we stated in our earlier advice memorandum, B~'s benefits should have been suspended between February 28 and October 24, 2005 for the period when he was incarcerated in the PPS. An individual's benefits may be suspended when the individual "is confined by court order in an institution at public expense in connection with...a verdict or finding that he is incompetent to stand trial@ for an offense punishable by imprisonment for more than one year regardless of the actual sentence imposed. 42 U.S.C. ' 402(x)(1) (1994). We explained that this incarceration satisfied all the requirements of the statute and, pursuant to Artz v. Barnhart, 330 F.3d 170, 175 (3d Cir. 2003), was Ain connection with@ the court's prior order that B~ was incompetent to stand trial.

As of October 24, 2005, B~ was no longer considered "confined" by the Act. An individual is considered confined until (1) the individual is released from the care and supervision of the institution and (2) the institution ceases to meet the individual's basic needs. 42 U.S.C. ' 402(x)(1) (1994). B~ certainly was not considered confined at the PPS because he was released from the care and supervision of the PPS and the PPS no longer provided his basic needs.

B~'s placement in the Star II program, however, no longer satisfied all of the requirements of the statute. The overwhelming evidence in the record demonstrates that B~'s placement at the Star II program was voluntary, not by court order. Ms. E~ and Mr. D~ stated that the Star II program is voluntary and that any individual can choose to leave the program at his or her own volition. The Norristown Police Department confirmed that they would not be automatically notified if B~ left the grounds of the Star II program. Because B~'s placement in the Star II program is voluntary and not by court order, his benefits should be resumed.

The only evidence in the record that B~'s placement in the Star II program is not voluntary is the Report of Contact with Mr. D~'s assistant. This evidence, however, is insufficient to outweigh all of the other evidence in the record. We instead believe that a court would give more weight to the evidence provided by Ms. E~, Mr. D~, and the Norristown State Police.

CONCLUSION

For the reasons described above, it is our opinion that B~s benefits should be resumed as of October 24, 2005 when we was placed in the Star II program.

Donna L. C~
Chief Counsel, Region V

By:________
Craig B. O~
Assistant Regional Counsel


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1506805009
PR 06805.009 - Delaware - 05/19/2009
Batch run: 04/25/2016
Rev:05/19/2009