PR 06805.033 New Jersey
A. PR 09-034 New Jersey District Office's Suspension of Title II Payments for DWI
DATE: December 16, 2008
The New Jersey courts have determined that a driving while intoxicated conviction is not a criminal offense. In order for the Agency to suspend an incarcerated claimant’s monthly benefit payments under 42 U.S.C. 402 (x)(1)(A)(i) the claimant must have been convicted of a criminal offense.
Therefore, monthly Social Security Title II benefits can be paid to a claimant if he/she is convicted of New Jersey Stat. 39.4-50, which is not a criminal statute, under NJ State law.
On November 7, 2008 your office asked for legal guidance regarding a decision to suspend an incarcerated claimant's benefit payments.
The Tom's River, New Jersey District Office ("DO") suspended Title II payments for a claimant who was convicted of driving while intoxicated ("DWI") and sentenced to six months incarceration in the county jail. Claimant is incarcerated due solely to the DWI conviction. His attorney asked that the DO reconsider its decision to suspend payments on the grounds that DWI is not a "criminal offense" under New Jersey law.
The Social Security Act restricts payments to prisoners, "certain other inmates of publicly funded institutions," fugitives, probationers, and parolees. 42 U.S.C. § 402(x). As relevant to the specifics of this case, the Act prohibits paying benefits "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 …" 42 U.S.C. § 402(x)(1)(A)(i). Additionally, the POMS emphasizes the requirement of criminal incarceration under this section of the Act, informing the Agency that a "conviction" is "the result of a criminal trial that ends in a judgment or sentence that the individual (accused) is guilty as charged." POMS GN 02607.001.
In this case, claimant is confined for more than 30 days. Likewise, the claimant has been "convicted" of DWI (N.J. Stat. § 39:4-50). However, if claimant's DWI conviction is a "motor vehicle violation" and not a "criminal offense" under New Jersey law, his six month incarceration should not trigger a benefits suspension.
The New Jersey criminal code distinguishes among the four gradations or "degrees" of crime. See N.J. Stat. § 2C:1-4. A person accused of an act that is within these four "degrees" is afforded the state and federal procedural protections of one who is charged with a crime. However, N.J. Stat. § 2C:1-4 defines a class of offenses that do not rise to the criminal level. "Disorderly persons offenses and petty disorderly persons offenses are petty offenses and are not crimes within the meaning of the Constitution of this State. There shall be no right to indictment by a grand jury nor any right to trial by jury on such offenses. Conviction of such offenses shall not give rise to any disability or legal disadvantage based on conviction of a crime." N.J. Stat. § 2C:1-4(b). Therefore, there is a class of non-criminal offenses in New Jersey that allow for short incarceration terms and a more limited adjudicative procedure.
The DWI statute does use the word "conviction" to describe a violation, (see, for example, N.J. Stat. § 39:4-50(b)), however it does not describe a violation as a "crime" or a "criminal offense." Moreover, the case-law refining the statute articulates it as a non-criminal statute that affords those accused of a violation more limited procedural protections than those accused of crimes. The New Jersey Supreme Court, the state's highest court, stated in State v. Walsh, 564 A.2d 901 (Sup. Ct. N.J. 1989) that the DWI statute was a motor vehicle offense and "[i]t is clear that motor vehicle offenses are not crimes." Walsh at 904 (emphasis added).
The DWI statute's penalties increase with recidivism. At its most severe it provides that for "a third or subsequent violation, a person shall be subject to a fine of $1000.00, and shall be sentenced to imprisonment for a term of not less than 180 days in the county jail or workhouse." N.J. Stat. § 39:4-50 (3). The law does not set a maximum punishment. However, courts have "firmly established … that a defendant is not entitled to a trial by jury when charged with operating a motor vehicle while under the influence." State v. Ernst, 553 A.2d 356, 360 (Sup. Ct of N.J. 1989). Since a sentence of over six months of incarceration violates both the federal and New Jersey constitutions if the accused has not been offered a trial by jury, the de facto maximum sentence under N.J. Stat. § 39:4-50 is six months. See State v. Owens, 54 N.J. 153 (1969); see also Baldwin v. New York, 399 U.S. 66 (1970). Additionally, those accused of DWI in New Jersey are not afforded the right to indictment. State v. Zoppi, 483 A.2d 844, 845 (Sup. Ct. of N.J. 1984). Thus, while those accused of DWI in New Jersey face mandatory incarceration periods, they are not afforded all the rights that attach to an individual who is criminally prosecuted in New Jersey.
Significantly, the New Jersey courts have also determined that the collateral effects of a DWI conviction are not criminal. For example, in Walsh the court ruled that a DWI sentencing judge did not have to follow criminal sentencing procedures. See Walsh at 904. Other courts have cited the legislative goal of judicial efficiency in drunk driving prosecutions: "treating drunken driving as a crime would obviously complicate the many drunk driving prosecutions, for defendants charged with such violations would be entitled to indictment and trial by jury." State v. Parker, 486 A.2d 1275, 1279 (Sup. Ct. of N.J. 1984). Thus, it is clear that N.J. Stat. § 39:4-50 is not a criminal statute, its punishment falls under the rubric of a "disorderly persons offense," and therefore a DWI "conviction" is not a criminal offense.
In order for the Agency to suspend an incarcerated claimant's benefit payments under 42 U.S.C. § 402(x)(1)(A)(i), the claimant must have been convicted of a criminal offense. In the present scenario the New Jersey statute under which the claimant is incarcerated, N.J. Stat. § 39:4-05, is not a criminal statute. The Agency should therefore continue benefit payments.
B. PR 01-017 Reinstatement of Title II Benefits for Individuals Who Are Found Not Guilty by Reason of Insanity, but Remain Confined in a State Institution
DATE: May 9, 2000
Title II benefits may not be reinstated to individuals confined under court order at public expense under New Jersey law in connection with a verdict that such an individual is not guilty of a criminal offense by reason of insanity, in a situation where such an individual continues to be confined after the maximum potential period of imprisonment for such an offense has elapsed, and the nature of the commitment has changed from criminal to civil. Such benefits may be reinstated only when (1) such individual is released from the care and supervision of the institution, and (2) such institution ceases to meet the individual's basic living needs. (42U.S.C.402(x)(1)(B)(ii))
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.