TN 7 (01-08)

PR 06805.035 New York

A. PR 08-032 Sex Offenders Requiring Civil Commitment - Case of Mark D. M~, SSN

DATE: December 3, 2007

1. SYLLABUS

This opinion is explaining the sexual predator laws and confinement requirements for the State of New York only. Care should be taken in suspending Title II benefits simply because an individual was civilly committed under New York State's law since the NY law is broader than what Congress allows for in the suspension of sexual offender's benefits as described in the GN 02607.000 POMS. Instead, sexual predator determinations for social security beneficiaries residing in the State of New York must be evaluated on a case-by-case basis to determine if suspension of benefits under New York State's sexual predator law is appropriate.

2. OPINION

You inquired whether New York State has a law governing the involuntary civil commitment to public institutions of individuals convicted for sexual offense crimes immediately at the end of their penal sentences. In particular, you asked about Mr. M~'s case.

New York State does have such a law, known as the Sex Offender Management and Treatment Act (“SOMTA”), which became effective April 13, 2007. However, care should be taken in suspending benefits simply because an individual was civilly committed under this law since the NY law is broader than what Congress allows for in the suspension of sexual offender's benefits. Instead, determinations must be on a case-by-case basis. For instance, Congress and the Social Security Administration (“SSA”) policy specifically exempt individuals found not guilty by reason of insanity or who were incompetent to stand trial while the NY law explicitly includes these individuals. Moreover, SOMTA permits the involuntary commitment of individuals whose criminal convictions were for offenses that do not contain sexual activity as an element. Congress has mandated that benefits be terminated only if the crime the individual was convicted of contained sexual activity as an element. Additionally, individuals processed under SOMTA may not be found sexually dangerous and require only supervision to which suspension of benefits is not consistent with Congressional directive and SSA policy. Finally, SOMTA does not necessitate an individual be immediately confined at the end of the prison term, while Congress and SSA policy require immediate confinement at the end of the criminal imprisonment. Thus, suspension of Social Security benefits because an individual was civilly committed under NY's SOMTA is not automatic and determinations must be on a case-by-case basis. With regard to Mr. M~, SSA must do additional development to ascertain whether his commitment is under SOMTA as discussed in detail below.

FACTUAL BACKGROUND

Mr. Mark M~ was convicted of attempted sexual abuse in the first degree, a class E felony and an offense which has sexual activity as an element. Mr. M~ was civilly committed at the end of his prison term and no evidence suggests he was ever at liberty. Consequently, if Mr. M~ was civilly committed under New York's new law, his benefits should be suspended. However, Mr. M~ could have been civilly committed under another law, particularly Corrections Law § 402, and not be eligible for suspension of his benefits on these grounds. Please see below for a more detailed legal analysis.

LEGAL ANALYSIS

Cessation of Benefits Under Sexual Predator laws

Congress addressed the impact of civil commitment under a sexual predator law to an individual's Social Security benefits in 1999. Ticket to Work and Work Incentives Improvement Act Of 1999, Pub. L. No. 106-170, 113 Stat. 1860, 1909. The law amended Section 202(x)(1)(A) of the Social Security Act (42 U.S.C. 402(x)(1)(A)) to deny benefits to “sex offenders remaining confined to public institutions upon completion of prison term” by adding the following new clause:

(iii) immediately upon completion of confinement as described in clause (i) 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.

Accordingly, Program Operations Manual Systems (“POMS”) GN 02607.350 provides for the suspension of Title II benefits for prisoners who are confined due to “sexually dangerous person verdicts” from April 1, 2000 and onward chronologically. SSA policy pertains to situations where “mental institutions confine certain individuals under specific State statutes as 'sexually dangerous' persons, 'sexual predators,' or similar findings.” GN 02607.350.A.1.a. The following factors are typically present for the law to be applicable:

The mental institution must immediately detain the individual for psychological evaluation at the completion of the individual's penal term;

The individual had to be serving a sentence in the correctional institution for a criminal offense of which an element was sexual activity;

The individual must be under a court order as a “sexually dangerous person inmate;” and

The individual must be confined to an institution for more than thirty continuous days before SSA will suspend benefits.

Id. Many of those individuals are already prison inmates so SSA would have previously suspended their benefits. SSA does not reinstate benefits when inmates complete prison sentences and the department of corrections begins the sexual predator law proceedings. Instead, the benefits remain in suspense until the court issues a final order deciding if the particular inmate should be civilly committed as a sexually dangerous person. GN 02607.350A.1.a.

Suspension of benefits for sexually dangerous persons occurs as following:

Benefits continue to be suspended after the court issues an order or finding that the individual is a sexually dangerous person and commits him/her to a mental institution for more than thirty continuous days.

GN 02607.350A.1.b. Benefits to an individual should not be suspended when:

“The institution does not immediately confine the individual after completion of the prison sentence;

“The court does not convict the person of a sexual crime and the person will not complete a sentence for conviction of such a crime;

This includes individuals who are considered not guilty by reason of insanity or incompetent to stand trial;

“When the results of the psychological evaluation indicate the individual is not sexually dangerous.

GN 02607.350B.1. An effective date of suspension for a sexually dangerous person can never be before December 1999. GN 02607.350A.1.c.

II. SOMTA and the Suspension of Social Security Benefits SOMTA became effective on April 13, 2007. N.Y. MENT HYG Law § 10.00-10.17 (M~'s 2007). SOMTA addresses the danger sexual offenders pose to society through “comprehensive programs of treatment and management” involving civil commitment or intensive outpatient supervision after criminal incarceration. N.Y. MENT HYG Law § 10.01.

To suspend benefits the Social Security Act and SSA policy require that the sexual offender be civilly committed immediately after criminal incarceration. See Pub. L. No. 106-170, 113 Stat. 1860, 1909. See also GN 02607.350A.1.a. and GN 02607.350B.1. SSA policy further mandates that the detention includes a psychological evaluation. SOMTA delineates the process of civil commitment with provisions for the custodial agency to begin proceedings prior to the individual's anticipated release. It also outlines the process for the detention of a sex offender immediately after his criminal incarceration ends. N.Y. MENT HYG Law § 10.05(b); § 10.06(h). Additionally, numerous provisions of SOMTA pertain to the psychological evaluation(s). Id. § 10.05(e), § 10.06(c),(d),(e), § 10.08(b). Therefore, SOMTA allows for the immediate civil confinement of an individual after his/her criminal incarceration along with at least one psychological evaluation which could satisfy the criteria to suspend benefits. Id.

However, under SOMTA the sexual offender might not be confined immediately at the end of the prison term. The statute allows for the sex offender civil management petition to be filed anytime after the end of the penal term. The individual might be at liberty when the petition is filed. N.Y. MENT HYG Law § 10.06(h). Under SOMTA, a petition for confinement may also be filed for individuals who are intensely supervised but otherwise not already detained. Id. at §10.11(d)(4). Since the Social Security Act and SSA policy require confinement immediately after incarceration, suspension of benefits would not be appropriate if one of these SOMTA provisions applies. GN 02607.350B.1. Thus, persons who are civilly committed under SOMTA after being released from prison for a period should not have their benefits suspended.

Another requirement for the suspension of benefits under the Social Security Act and SSA policy is that the individual be convicted of a crime that has sexual activity as an element. See Pub. L. No. 106-170, 113 Stat. 1860, 1909 and GN 02607.350A.1.a. SOMTA is far broader than the federal law. SOMTA covers circumstances expressly excluded by Congress and SSA policy such as when an individual is found not guilty by reason of insanity and therefore not convicted of a crime. N.Y. MENT HYG Law §10.03(g)(3), §10.07(c)(ii). SOMTA defines “detained sex offender” to include “a person charged with a sex offense who has been found not responsible by reason of mental disease or defect.” Id. at §10.03(g)(3). Moreover, at the civil commitment trial the individual's “sex offense shall be deemed established and shall not be relitigated at the trial, whenever it is shown …the respondent previously has been found not responsible by reason of mental disease or defect for the commission of such offense or for an act or acts constituting such offense.” Id. at § 10.07(c)(ii). Thus, SOMTA includes circumstances that SSA policy specifically exempts from suspension of benefits. See GN 02607.350.A.1.a. and GN 02607.350B.1. Those individuals who are found not guilty by reason of insanity or mental defect should not have benefits suspended for being declared a sexually dangerous person even if civilly committed under SOMTA.

Additionally, SOMTA incorporates a more expansive class of crimes than those contemplated by Congress or SSA. SOMTA considers a sex offender to include “a person who stands convicted of a designated felony that was sexually motivated.” N.Y. MENT HYG Law §10.03(g)(4). Many of the SOMTA felonies do not have sexual activity as an element of the offense, such as arson, burglary and robbery to name a few. Id. at §10.03(f). Also, whether a crime is sexually motivated is not determined at the time of conviction but rather during the civil commitment proceedings. Id. at §10.05(g), §10.05(j), §10.07(c)(ii). Consequently, individuals who have never been convicted of a criminal offense with sexual activity as an element should not have benefits suspended. However, some of the SOMTA felonies, for example promoting prostitution, disseminating indecent material to minors, use of a child in a sexual performance, do contain sexual activity as an element of the offense. N.Y. MENT HYG Law §10.03(f). In those instances, provided the other criteria are met, SSA should suspend the benefits of individuals convicted of crimes containing as sexual activity an element. Please see Section IV for listings of the designated felonies according to whether the criminal conviction of the felony included sexual activity as an element of the offense.

Congress and SSA also require a court order finding the person to be a “sexually dangerous person,” “a sexual predator” or something similar. Some individuals civilly committed under SOMTA might meet this requirement. The NY statute delineates the need for court orders throughout the process. N.Y. MENT HYG Law §10.06(h)(k), §10.07(f). Under SOMTA, the civil commitment process ends with a trial proceeding where the determination of whether the individual is a “dangerous sex offender” is made and upon such a finding the individual is confined by court order. Id. at §10.07(f). The confined individual is then granted at least annual psychiatric examinations to determine if the person remains a “dangerous sex offender” requiring confinement. §10.09(b). If at any time the confined person petitions for discharge and/or release under supervision, the court may order an evidentiary hearing at which the court will determine if the person is currently a “dangerous sexual offender” and if so, issue a court order to continue the individual's confinement. §10.09(f)-(h). Thus, court orders are issued throughout the process embodying possibly multiple findings on whether an individual is a “dangerous sexual offender.”

If the court determines the individual is not a “dangerous sex offender requiring confinement” it may, however, find the person to be a “sex offender requiring strict and intensive supervision.” §10.07(f). These individuals will be subject only to intense supervision and not civil commitment. §10.01(c), §10.07(f), §10.11. In those circumstances, SSA benefits would not be suspended. GN 02607.350B.1. Thus, the individuals who are not found “dangerous” under SOMTA should not have their benefits suspended. Also, sex offenders requiring supervision are not confined so suspension of benefits is precluded on this ground as well. Id.

Finally, Congress requires that sex offenders be civilly committed “in an institution at public expense” before suspension of benefits is allowed. While SOMTA does not specifically state individuals will be civilly committed in an institution at public expense, this can be inferred by several statute sections. SOMTA requires the individual be civilly committed to a “secure treatment facility” both during the process of determining sexual dangerousness and after such a positive finding. §10.06(k)(i), §10.07(f). Section 10.03(o) of the Act defines a “secure treatment facility” as designated by the NYS Commissioner of Mental Health, staffed by personnel from the Offices of Mental Health and Mental Retardation and Developmental Disabilities and possibly located on the grounds of a correctional facility. Moreover, the Commissioner of the Office of Mental Health and/or of the Office Mental Retardation and Developmental Disabilities is charged with the care, custody and control of civilly committed persons during their treatment and confinement. §10.10. Since the commissioner and staff are public employees, presumably the facility will be a public institution and probably a correctional facility run by NYS.

Consequently, some persons civilly committed under NY's SOMTA statute will fit into Congress's and SSA's concept of a sexually dangerous person whose benefits should be suspended. Other individuals though will not and their benefits should continue or be resumed. Case-by-case determinations may have to be made as SSA has previously done in connection to the suspension of civilly committed sexual offenders' benefits.

III. Determining if a Sexual Offense is an Element of the Criminal Conviction Knowledge of what crime the civilly committed individual was initially convicted of is imperative, because, as discussed, SOMTA covers a much broader class of individuals than Congress or SSA policy. See Infra Sec. II.

Felony offenses that do not contain as an element sexual activity should not result in the suspension of benefits. The attached Appendix I is divided into two tables felony offenses without sexual activity as an element and felony offenses with sexual activity as an element

Please note a separate felony offense was created by the legislature on April 13, 2007. The newly created felony applies to anyone committing a designated felony for “his or her own direct sexual gratification” which is an additional, distinct crime known as the “sexually motivated felony” under NY penal law § 130.91. NY PENAL Law § 130.91 (McKinney's 2007). Individuals convicted of this separate crime are convicted for an offense containing sexual activity as an element and should have benefits suspended.

One method of determining what crime was involved is checking the NYS Department of Correctional Services' “Inmate Population Information Search” available online at http://nysdocslookup.docs.state.ny.us/kinqw00 . All inmates sentenced to NY state prison since the early 1970s are listed in the database, except youthful offenders and those who have had their convictions set aside by a court. The search is limited to the first four crimes listed so there may be additional crimes not shown. (Conceivably, the first four crimes could not contain sexual activity as an element and one of the crimes not listed might have sexual activity as an element of the offense.) Of course, other methods may be available or preferable and SSA may already be aware of an inmate's conviction(s) from when benefits were suspended due to the individual's incarceration.

An additional problem is determining whether and under what law an individual is civilly committed after criminal incarceration is completed. Either the NYS attorney general or the sex offender may request closure of the courtroom and sealing of all papers by showing good cause under SOMTA. N.Y. MENT HYG Law §10.08(g). Thus, the court order may not be available. SSA will have to decide how to handle such cases.

BARBARA L. S~

Regional Chief Counsel
By:______________________
Michelle L. C~t
Assistant Regional Counsel

APPENDIX I

Below are two tables divided between designated felonies without sexual activity as an element of the offense and designated felonies with sexual activity as an element of the offense. Felony attempts or conspiracy to commit any of the below felonies also suffices under SOMTA. §10.03(f). For each offense the N.Y. Penal Code Section is given.

Designated Felonies Without Sexual Activity as an Element of the Offense:

Assault in the second degree as defined in section 120.05

2. Assault in the first degree as defined in section 120.10

3. Gang assault in the second degree as defined in section 120.06

4. Gang assault in the first degree as defined in section 120.07

5. Stalking in the first degree as defined in section 120.60

6. Manslaughter in the second degree as defined in subdivision one of section 125.15

7. Manslaughter in the first degree as defined in section 125.20

8. Murder in the second degree as defined in section 125.25

9. Aggravated murder as defined in section 125.26

10. Murder in the first degree as defined in section 125.27

11. Kidnapping in the second degree as defined in section 135.20

12. Kidnapping in the first degree as defined in section 135.25

13. Burglary in the third degree as defined in section 140.20

14. Burglary in the second degree as defined in section 140.25

15. Burglary in the first degree as defined in section 140.30

16. Arson in the second degree as defined in section 150.15

17. Arson in the first degree as defined in section 150.20

18. Robbery in the third degree as defined in section 160.05

19. Robbery in the second degree as defined in section 160.10

20. Robbery in the first degree as defined in section 160.15

21. Any felony attempt or conspiracy to commit any of foregoing offenses

Designated Felonies With Sexual Activity as an Element of the Offense:

Promoting prostitution in the second degree as defined in section 230.30

2. Promoting prostitution in the first degree as defined in section 230.32

3. Compelling prostitution as defined in section 230.33

4. Disseminating indecent material to minors in the first degree as defined in section 235.22

5. Use of a child in a sexual performance as defined in section 263.05

6. Promoting an obscene sexual performance by a child as defined in section 263.10

7. Promoting a sexual performance by a child as defined in section 263.15

8. Any of the felonies defined in article one hundred thirty of the penal law (“sex offenses”):

a. § 130.20 Sexual misconduct

b. § 130.25 Rape in the third degree

c. § 130.30 Rape in the second degree

d. § 130.35 Rape in the first degree

e. § 130.40 Criminal sexual act in the third degree

f. § 130.45 Criminal sexual act in the second degree

g. § 130.50 Criminal sexual act in the first degree

h. § 130.52 Forcible touching

i. § 130.53 Persistent sexual abuse

j. § 130.55 Sexual abuse in the third degree

k. § 130.60 Sexual abuse in the second degree

l. § 130.65 Sexual abuse in the first degree

m. § 130.65 Aggravated sexual abuse in the fourth degree

n. § 130.66 Aggravated sexual abuse in the third degree

o. § 130.67 Aggravated sexual abuse in the second degree

p. § 130.70 Aggravated sexual abuse in the first degree

q. § 130.75 Course of sexual conduct against a child in the first degree

r. § 130.80 Course of sexual conduct against a child in the second degree

s. § 130.85 Female genital mutilation

t. § 130.90 Facilitating a sex offense with a controlled substance

u. § 130.91 Sexually motivated felony

v. § 130.95 Predatory sexual assault

w. § 130.96 Predatory sexual assault against a child

9. Patronizing a prostitute in the first degree as defined in section 230.06 of the penal law

10. Incest in the second degree as defined in section 255.26 of the penal law

11. Incest in the first degree as defined in section 255.27 of the penal law

12. Any felony attempt or conspiracy to commit any of foregoing offenses


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1506805035
PR 06805.035 - New York - 10/07/2008
Batch run: 01/27/2009
Rev:10/07/2008