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.
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.
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.
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.
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
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 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.
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
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).
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. Kressman,
Chief Counsel, Region V
Tara A. Czekaj
Assistant Regional Counsel