You asked whether J~ Social Security retirement benefits were payable for the time
period that he resided at the Lake County Community Based Corrections Center during
his supervised release. For the reasons discussed below, we conclude that S~ was not
confined during this period and, therefore, his benefits were payable.
On March 18, 2009, the U.S. District Court for the District of Vermont sentenced S~
to 78 months of imprisonment followed by 5 years of supervised release. S~ was committed
to the custody of the U.S. Bureau of Prisons to begin his imprisonment.
Near the end of S~’s term of imprisonment, the court modified the conditions of his
upcoming supervised release in an order dated January 13, 2014: “The defendant shall
participate in a Residential Reentry Center (RRC) for up to 180 days and shall abide
by all program rules and regulations while at the RRC. The defendant may be released
from the RRC at any time provided that he has secured housing approved in advance
by the U.S. Probation Officer.” The court indicated that S~ consented to the modification because he did not have
a release plan in place.
S~ was released by the Bureau of Prisons at the end on of his term of imprisonment
on January 31, 2014, at which time he was transferred to an RRC in his home state
of Illinois. The jurisdiction of his criminal case was transferred from the U.S. District
Court for the District of Vermont to the U.S. District Court for the Northern District
of Illinois, and the supervision of his release was transferred from the Vermont Probation
Office to the Northern District of Illinois Probation Office.
From February 1, 2014, to October 8, 2014, S~ resided at the Lake County Community
Based Corrections Center (CBCC).
On February 13, 2014, S~ applied for Social Security retirement benefits. He was awarded
benefits effective February 2014. However, SSA suspended his benefits from February
2014 through October 2014 because he was considered imprisoned.
In a letter dated April 12, 2014, the Lake County Sheriff’s Office stated that S~
came to the Lake County CBCC due to the lack of available transitional housing (i.e.,
halfway houses) in the area. The letter explained that S~ was not in custody, but
was being supervised at the Lake County CBCC for up to 180 days in order to afford
him time to find a permanent residence. A Lake County Sheriff’s Office employee stated
in a phone interview on November 5, 2014, that Lake County CBCC residents are charged
a fee on a sliding scale based on their ability to pay, and that no payment was required
of S~ because he was unemployed.
Similarly, in a letter dated May 9, 2014, the U.S. Probation Office for the Northern
District of Illinois advised that S~ was neither legally incarcerated nor in custody.
Rather, S~ had been released from custody by the Bureau of Prisons on January 31,
2014, and was serving a term of federal supervised release. He was currently residing
at the Lake County CBCC, which contracted with the federal government to provide re-entry
services to inmates and individuals on federal supervision. S~ had been permitted
to stay at the Lake County CBCC in order to prevent homelessness, as he had experienced
difficulty securing a suitable residence.
I. Title II Prisoner Suspension Provisions
Section 202(x) of the Social Security Act (Act) governs the payment of Title II benefits
to prisoners, certain inmates of publicly funded institutions, fugitives, probationers,
and parolees. In 1999, Congress amended section 202(x) to prohibit the payment of
Title II benefits where an individual is convicted of a criminal offense and is confined
in a penal institution or correctional facility for more than 30 continuous days. See Ticket to Work and Work Incentives Improvement Act of 1999, Pub. L. No. 106-170,
§ 402(b), 113 Stat. 1860 (1999) (effective April 1, 2000). Section 202(x) of the Act,
as amended, provides in pertinent part:
(1)(A) Notwithstanding any other provision of this subchapter, no monthly benefits
shall be paid under this section or under section 423 of this title to any individual
for any month ending with or during or beginning with or during a period of more than
30 days throughout all of which such individual--
(i) is confined in a jail, prison, or other penal institution or correctional facility
pursuant to his conviction of a criminal offense,
(B)(i) For purposes of clause (i) of subparagraph (A), 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) to such
institution or the penal system or to any agency to which the penal system has transferred
jurisdiction over the individual.
The purpose of the prisoner suspension provisions is to conserve scarce Social Security
funds where a prisoner’s basic needs are being met by the prison at public expense.
See, e.g., Davel v. Sullivan, 902 F.2d 559, 562 (7th Cir. 1990) (citing Sen. Rep. No. 987, 96th Cong., 2d Sess.
7-9 (1980)); Davis v. Bowen, 825 F.2d 799, 801 (4th Cir. 1987).
SSA has defined “confinement” broadly. The regulations provide that confinement in a jail, prison, or other penal institution or correctional
facility continues as long as an individual is under a sentence of confinement and
has not been released due to parole or pardon. See 20 C.F.R. §§ 404.468(c), 404.1506(d); see also POMS DI 23501.001A.3, GN 02607.001B.2 (defining confinement as “when an individual resides in a correctional or mental
health institution”), GN 02607.160A.3 (confinement ends with pardon, parole, or end of sentence and official release).
Moreover, an individual is considered confined even if he is temporarily or intermittently
outside the facility for reasons such as placement in a halfway house or work release
program, hospitalization, or escape. See 20 C.F.R. §§ 404.468(c), 404.1506(d); see also POMS DI 23501.001A.3, GN 02607.160A.3, GN 02607.200C. The POMS further provides that a confined individual is in the custody of a U.S.
correctional facility. See POMS GN 02607.160A.3, B.2.
As noted above, an individual who is released on parole is not confined. Similarly,
the POMS indicates that probation is not confinement, so the agency does not suspend
benefits when an individual is sentenced to probation. See POMS GN 02607.160A.2.b, GN 20607.200B.4.
II. Supervised Release
In 1984, as part of the legislation that created the federal sentencing guidelines
system, Congress prospectively eliminated federal parole and established supervised
release. See Sentencing Reform Act of 1984, Pub. L. No. 98–473, § 212, 98 Stat. 1837 (1984) (effective
November 1, 1987). Supervised release is a “unique” type of post-confinement monitoring
that is imposed at sentencing in addition to a term of imprisonment (as opposed to
parole and probation which are imposed as substitutes for imprisonment). See U.S. Sentencing Commission, Federal Offenders Sentenced to Supervised Release 1 (July
2010), available at http://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2010/20100722_Supervised_Release.pdf. Similar to federal parole, supervised release has a rehabilitative purpose and is
intended to assist individuals in their reintegration into the community. See id. at 2. And, like federal probation, supervised release is under the jurisdiction
of federal district courts, with supervision by federal probation officers. See id. While on supervised release, an offender is required to abide by certain conditions,
some mandated by statute and others imposed at the court’s discretion. See id. at 1, 10. These conditions are generally the same as for probation. See id. at 2; 18 U.S.C. §§ 3563(b), 3583(d).
One of the discretionary conditions for supervised release is residence at or participation
in a program of a community corrections facility. See 18 U.S.C. §§ 3563(b)(11), 3583(d). Although “community corrections facility” is not
defined by the statute, the notes to U.S. Sentencing Guidelines § 5F1.1 define “community
confinement” as “residence in a community treatment center, halfway house, restitution
center, mental health facility….”
III. Placement in an RRC During Supervised Release
As noted above, S~ began his supervised release on February 1, 2014, after completing
his prison term. A federal district court modified the conditions of his supervised
release to include participation in an RRC (i.e., halfway house) for up to 180 days.
Pursuant to the court order, S~ lived at the Lake County CBCC from February 1, 2014, to October 8, 2014. The issue is whether S~’s benefits are
payable for this period. To answer this question, we must determine whether his residence
at the Lake County CBCC is considered confinement.
We note that the agency’s Title II prisoner suspension provisions do not explicitly
address supervised release. That notwithstanding, we believe that the provisions addressing
parole and probation also apply to supervised release. As discussed above, supervised
release replaced parole and has many similarities to both parole and probation. Also,
a draft Notice of Proposed Rulemaking (NPRM) from 2011 indicates that the agency planned
to amend the regulations to state that supervised release was equivalent to parole.
We were informed by OGC’s Office of Program Law that work on the NPRM was eventually
discontinued, not for substantive reasons, but due to other agency priorities and
lack of policy staff.
Applying the Title II prisoner suspension provisions, it is clear that supervised
release “to the streets” (i.e., without any condition regarding residence) is not
considered confinement. Initially, parole and probation are not considered confinement,
see, e.g., 20 C.F.R. § 404.468(c); POMS GN 02607.160A.2.b, A.3, and supervised release is a similar type of nondetentive monitoring. Moreover,
the regulations and POMS provide that confinement continues as long as an individual
is under a sentence of confinement and has not been released due to parole or pardon.
See 20 C.F.R. §§ 404.468(c), 404.1506(d); POMS DI 23501.001A.3. An individual on supervised release, however, is no longer under a sentence of
confinement—he has completed his term of imprisonment and has been released with supervision.
See Federal Offenders Sentenced to Supervised Release, supra, at 1 (supervised release is a type of post-confinement monitoring imposed at sentencing
in addition to a term of imprisonment); Federal Procedure, Lawyers Edition, § 22:2010
(a term of supervised release is part of the defendant’s sentence, but is not part
of the term of imprisonment). Furthermore, the POMS states that a confined individual
is in the custody of a U.S. correctional facility. See POMS GN 02607.160A.3, B.2. However, an individual on supervised release is not in custody but is under
the supervision of a probation office.
Here, instead of being released “to the streets,” S~ was required to stay at an RRC
for up to six months as a condition of his supervised release, due to his inability
to secure housing. Consequently, S~ lived at the Lake County CBCC for the full six
months. Thus, we must consider whether this condition rendered S~ “confined” for the
six months that he lived at the Lake County CBCC, despite the fact that he was on
supervised release. As explained below, we believe that S~ was not confined during
this period, for purposes of the Title II prisoner suspension provisions.
First, the court’s requirement that S~ stay at an RRC for up to six months was not
a “sentence of confinement,” see 20 C.F.R. §§ 404.468(c), 404.1506(d); POMS DI 23501.001A.3, but rather, a condition of his supervised release. Significantly, an RRC is not
“a jail, prison, or other penal institution or correctional facility” as specified
in Section 202(x)(1)(A)(i) of the Act. “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.” 20 C.F.R. § 404.468(c). In contrast, an RRC is usually a private
agency that contracts with the Bureau of Prisons to provide programs to help residents
rebuild their ties to the community and facilitate supervision of their activities.
See Federal Bureau of Prisons: Residential Reentry Management Centers, supra. Indeed, SSA distinguishes halfway houses and work release programs from correctional
institutions. See POMS GN 02607.160A.3, GN 02607.200C. Moreover, S~ was allowed to be released from the RRC at any time if he found his
own housing. Therefore, he was not incarcerated or imprisoned.
Second, S~ was not in the custody of any correctional facility during this time. The
Bureau of Prisons had released him from custody after he completed his prison term,
and he now had a federal probation officer. See Federal Bureau of Prisons: Residential Reentry Management Centers, supra (click “Custody of inmates”) (offenders supervised by the U.S. Probation Office are
housed at RRCs as a condition of their supervision and are not in Federal custody).
The Northern District of Illinois Probation Office, which supervised S~’s release,
and the Lake County Sheriff’s Office both reported that S~ was not in custody but
only being supervised at the Lake County CBCC.
We recognize that S~ lived at the Lake County CBCC at public expense, and that this
may appear to be at odds with the purpose of the Title II prisoner suspension provisions
to conserve scarce Social Security funds. Nevertheless, the statute only applies to
individuals who are “confined.” And, S~ was on supervised release, which does not
meet the definition of confinement under the prisoner suspension provisions. The fact
that S~ did not pay for his stay at the Lake County CBCC did not affect his status
as a supervised releasee and not a confined individual. As noted by the Seventh Circuit
Court of Appeals, “[W]hen Congress chooses not to leave a matter to case-by-case adjudication,
there are necessarily situations in which the chosen rule of decision will be underinclusive
or overinclusive. This is not a reason to ignore or reinterpret a statute.” See Davel, 902 F.2d at 562-63 (citations omitted).
For the reasons discussed above, we conclude that S~’s residence at the Lake County
CBCC as a condition of his supervised release should not be considered confinement
in a penal institution or correctional facility pursuant to a conviction of a criminal
offense, under section 202(x)(1)(A)(i) of the Act. Accordingly, S~’s Social Security
retirement benefits were payable for the time period that he resided at the Lake County
CBCC. If you have any further questions concerning this matter, please contact the
undersigned at (877) 800-7578 ext. 19106.
Acting Regional Chief Counsel, Region V