This is a revision of the previous memorandum sent to you on April 20, 2000. This
revision incorporates suggested changes from SSA's Policy and Legislation Division
in Baltimore. Please be aware that this is privileged and confidential information
provided by our office as agency counsel for Region II, and should not be disclosed
outside the agency without our approval.
As set forth in our previous memorandum, you requested an opinion regarding the concerns
raised by Jim K~, an Administrative Analyst for the New Jersey Division of Mental
Health Services, in his letter of March 8, 1999 (copy attached). Mr. K~ has taken
issue with the applicability of EM-98-034 Emergency Teletype - Title II Instructions
on Processing Reinstatement of Title II Benefits to Certain Individuals Found Not
Guilty by Reason of Insanity or Incompetent to Stand Trial. Specifically, Mr. K~ asserts
that EM-98-034 should not apply with respect to an individual who has been confined
to a public institution by a court order under New Jersey law in connection with a
verdict that the individual is not guilty of a criminal offense by reason of insanity,
in the situation where such individual continues to be confined to that institution
after the maximum potential period of imprisonment for conviction of such an offense,
has elapsed. Mr. K~ maintains that Title II benefits should be reinstated under these
circumstances, since once the maximum period of imprisonment elapses, the nature of
the commitment changes from criminal to civil and the individual is no longer being
confined in connection with a criminal charge. As discussed below, we respectfully
disagree with Mr. K~'s interpretation of EM-98-034.
The above referenced instructions dated February 17, 1998, serve to implement sections
202(x)(1)(A)(ii) and 202(x)(1)(B)(ii) of the Act, codified at 42 U.S.C. §§ 402(x)(1)(A)(ii)
and 402(x)(1)(B)(ii). These sections were added to the Act in 1994, and section 202(x)(1)(A)(ii)
of the Act provides that no monthly Title II benefits will be paid to any individual
who is confined by court order in an institution at public expense in connection with
a verdict or finding that that individual is not guilty of such an offense by reason
of insanity. 42 U.S.C. § 402(x)(1)(A)(ii)(II). Section 202(x)(1)(B)(ii) further provides
that an individual who is confined by court order in connection with a verdict or
finding of not guilty of such an offense by reason of insanity, shall be treated as
remaining so confined until (1) he or she is released from the care and supervision
of such institution, and 2) such institution ceases to meet the individual's basic
living needs. 42 U.S.C. § 402(x)(1)(B)(ii).
The House Report accompanying this legislation noted that:
[The] provision bans Social Security benefits in a circumstance where their payment
runs counter to the traditional purpose of the program. Social Security is intended
to replace earnings and provide basic income for food, clothing, and shelter to workers
who retire or become disabled. Individuals who have been committed in an institution
pursuant to committing a crime are already relying on public funds to cover the costs
of their basic living expenses.
H.R. Rep. No. 103-491, at 3 (1994), reprinted in 1994 U.S.C.C.A.N. 3266, 3268.
The same House Report also stated that:
The provision would broaden the current limitation on Social Security benefits to
incarcerated felons and extends this limitation to criminally insane individuals confined
to institutions by court order at public expense. In making these changes, the Committee
is seeking to establish greater consistency in the policy that Congress enacted in
1980 banning Social Security benefit payments to incarcerated felons. That limitation
recognizes that prisoners receive full support from public resources in the form of
food, clothing, lodging, and basic health care. In the Committee's view, the same
situation exists in the case of criminally insane individuals who are confined to
institutions at public expense.
H.R. Rep. No. 103-491, at 7-8. (1994), reprinted in 1994 U.S.C.C.A.N. 3266, 3273.
Further, the House Conference Report makes clear that:
[B]enefits will be reinstated to individuals who are released from an institution
to which they were committed pursuant to an insanity verdict, so long as the institution
ceases to meet the individual's basic living needs. . . .
H.R. Conf. Rep. No. 103-842, 16 (1994), reprinted in 1994 U.S.C.C.A.N. 3266, 3286.
Thus, for purposes of section 202(x)(1), once an individual is confined by court order
in an institution at public expense in connection with a verdict or finding that the
individual is not guilty of such an offense by reason of insanity, that status is
to be treated under the statute as continuing, and benefits may not be paid until
(1) he or she is released from the care and supervision of such institution, and 2)
such institution ceases to meet the individual's basic living needs. Thus, the situation
described by Mr. K~, i.e., a change in the nature of an individual's commitment from
criminal to civil without a discharge from confinement, would not result in reinstatement
of his or her benefits, as 42 U.S.C. § 402(x)(1)(B)(ii) makes clear.
Additionally, although not material to the conclusion above, we note that our review
of the relevant provisions of New Jersey law suggests that Mr. K~'s summary thereof
oversimplifies the operation of those provisions. Under New Jersey law, where a defendant
interposes a defense of insanity and is acquitted on that basis, and the court finds
that he or she cannot be released with or without supervision or conditions without
posing a danger to the community or to himself, the court shall commit the defendant
to an approved mental health facility to be treated as a person civilly committed.
N.J. Stat. Ann. § 2C:4-8(b)(3). Once a defendant is so committed, periodic review
hearings shall be held to determine whether continued confinement is warranted, and
the prosecuting attorney shall have the right to appear and be heard at these proceedings.
N.J. Stat. Ann. § 2C:4-8(b)(3); See In re the Commitment of W.K., 731 A.2d 482, 483 (N.J. Sup. Ct. 1999). Accordingly, the prosecutor has standing
to be responsible for establishing the need for continued confinement. See Commitment of Calu, 693 A.2d 911, 917 (N.J. Superior Ct. App. Div. 1997). Moreover, such hearings are
conducted under the law governing civil commitment, except that, during the maximum period of imprisonment for the charge on which the
defendant was acquitted by reason of insanity, the defendant's continued commitment
must be established by a preponderance of the evidence, as opposed to the clear and
convincing evidence standard ordinarily applied in civil commitment hearings. N.J.
Stat. Ann. § 2C:4-8(b)(3). See In re the Commitment of W.K., 731 A.2d at 483. Therefore, in our opinion, EM-98-034 is fully applicable in the
situation described by Mr. K~.
Further, New Jersey statutes provide that if the commissioner [of human services],
or the superintendent of the institution to which the person has been committed, is
of the view that the individual may be discharged or released on condition without
danger to himself or to others, the commissioner or superintendent must make application
for release in a report to the Court by which such individual was committed, and shall
transmit a copy of such application and report to the prosecutor, the court and the
defense counsel. See N.J.S. Ann. § 2C:4-9(a). Additionally, prior to any proposed release of a person committed
pursuant to N.J. Stat. Ann. § 2C:4-8, the court shall hold a hearing on the issue
with notice to the prosecutor, and the prosecutor must be given an opportunity to
be heard at that hearing. See N.J. Stat. Ann. § 2C:4-9(b).
Thus, in all proceedings conducted pursuant to the applicable New Jersey statutes,
the prosecuting attorney has the right to appear and be heard. N.J. Stat. Ann. § 2C:4-8(b)(3);
N.J. Stat. Ann. § 2C:4-9. The ongoing involvement of the prosecuting attorney in all
periodic review hearings and in any pre-release hearings, tends to undercut Mr. K~'s
assertion that, once the maximum period of imprisonment has elapsed, the defendant
is no longer being held in connection with the original criminal charge.