TN 1 (08-05)

PR 06805.052 Virginia

A. PR 09-092 State Survey of Enabling Legislation that Permits Confinement for Sexually Dangerous Persons Beyond Completion of a Criminal Sentence -- INFORMATION

DATE: April 29, 2009

1. SYLLABUS:

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.

In the Philadelphia region, Virginia and the District of Columbia have provisions allowing for the commitment of sexually dangerous persons. 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 the 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.

2. OPINION

QUESTION PRESENTED

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.

SUMMARY

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.

BACKGROUND

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.

DISCUSSION

Virginia

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.

§ 37.2-909(A).

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 psychopath."

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

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. See http://www.meganslaw.state.pa.us/soab/cwp/view.asp?a=686&q=191628&pp=3

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 future.

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).

CONCLUSION

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. K~,
Chief Counsel, Region V

By:________
Tara A. C~
Assistant Regional Counsel

B. PR 05-220 Whether, for Purposes of Suspension of DIB Benefits, the Number Holder Timothy B~, SSN: ~) was Convicted and Confined for a "Criminal Offense"

DATE: August 12, 2005

1. OPINION

INTRODUCTION

This memorandum responds to your request for our opinion as to whether the Number Holder was convicted of a "criminal offense," when he was convicted and confined between June 30, 2004 and May 11, 2005, for failure to pay child support. Based upon the evidence provided to us and our research of Virginia law, it is our opinion that the Number Holder was convicted of a criminal offense under Virginia law, and therefore that DIB benefits would be subject to suspension during his period of incarceration.

BACKGROUND

The Number Holder filed an application for disability insurance benefits (DIB) on May 15, 2003, and an application for supplemental security income (SSI) on May 30, 2003. Both applications were approved with a disability onset date of May 3, 2003. He began receiving DIB benefits in November 2003, and continued to receive benefits until July 2004, when those benefits were suspended due to incarceration. The Number Holder's SSI benefits were stopped in November 2003 because his DIB benefits exceeded the allowable monthly income limit. In May 2005, the Number Holder's SSI benefits were suspended due to non-payment for more than 12 months.

The Number Holder was convicted on June 30, 2004 for failure to pay child support.

On June 30, 2004, he was confined at the Portsmouth County Jail and at the Hampton Roads Regional Jail, and remained confined continuously until May 11, 2005.

On May 12, 2005, the Number Holder filed a new application for SSI. He was granted SSI benefits for June 2005, but these benefits were not paid because his monthly DIB benefits exceeded the allowable monthly SSI income limit.

DISCUSSION

Your memorandum refers to and includes a copy of POMS GN 02607.001, which explains SSA policy concerning prisoner suspensions for confinements prior to April 1, 2000. However, the confinement in this case occurred during 2004 and 2005, and is therefore governed by POMS GN 02607.025, which implements Public Law 106-170. That law, which became effective April 1, 2000, broadened the prisoner suspension criteria to include any "criminal offense," regardless of whether the offense was punishable by imprisonment for more than one year. For confinements on April 1, 2000 and thereafter, the distinction between misdemeanours and felonies no longer applies. DIB benefits are suspended where the individual is charged and convicted of a criminal offense and confined to a public institution for more than 30 continuous days. 42 U.S.C. § 402(x)(1)(A) ; POMS GN 02607.780 (discussing processing of concurrent prisoner cases).

The Number Holder was convicted on June 30, 2004 and immediately confined until May 11, 2005, for failure to pay child support. Child support proceedings are not inherently criminal in nature, but begin as civil disputes among private parties. However, when an order of support has been issued, that order can be enforced through civil or criminal proceedings. See Va. Code Ann. § 20-103 (A) (iv), (specifying remedies for failure to pay child support by reference to Va. Code Ann. § 20-79.1 (deduction from wages), Va. Code Ann. § 20-114 (posting of a recognizance bond) and Va. Code Ann. § 20-115 (commitment and sentence for failure to comply with a support order)).

In Virginia, a petition for support of a child is typically referred to the Juvenile and Domestic Relations District Court for enforcement. Va. Code Ann. § 20-79 (c). Either a civil support case or a criminal desertion/non-support case may be commenced. In a civil case, any parent found by the court to owe a duty to provide support and maintenance may be ordered to make periodic payments and may be required to post a performance/recognizance bond. Va. Code Ann. § 20-114. In a criminal case, any parent found by the court to have failed in his/her duty to provide support and maintenance is guilty of a misdemeanour, and is subject to a fine of up to $500 and up to 12 months in jail. Va. Code Ann. § 20-61.

The Number Holder was convicted on June 30, 2004, and confined at the Portsmouth County Jail and at the Hampton Roads Regional Jail, until May 11, 2005, for failure to pay child support.

Because the Number Holder was convicted and immediately confined for a definite term of imprisonment of approximately eleven and one-half months, we conclude that he was convicted of violating Va. Code Ann. § 20-61. His conviction therefore qualifies as a "criminal offense" for purposes of the prisoner suspension provisions. POMS GN 02607.780. See generally, Distefano v. Com., 201 Va. 23, 109 S.E.2d 497 (Va. 1959) (review of criminal conviction for failure to support child, jury ordered defendant ordered to forfeit performance bond, in lieu of jail sentence of up to 12 months); Thompson v. Com. Record No. 0390-01-2, 2003 WL 231609 (unpublished) (Va. App. 2003) (contempt conviction for failure to comply with child support order upheld, where term of confinement was less than 12 months). Suspension would apply to the Number Holder's DIB benefits during the period of confinement, between June 30, 2004 and May 11, 2005.

CONCLUSION

Based upon the evidence provided to us and our research of Virginia law, it is our opinion that the Number Holder was convicted and confined for a "criminal offense" under Virginia law, for purposes of the prisoner suspension rules.

Donna L. C~
Chief Counsel, Region V

By:________
Robert D~
Assistant Regional Counsel

C. PR 04-167 Matthew B~, SSN: ~

DATE: April 27, 2004

OPINION

QUESTION PRESENTED

On April 14, 2004, you asked our advice as to whether Matthew B~ (claimant), who was classified as a "sexually violent offender" and involuntarily committed to a Virginia state mental hospital upon completion of his confinement in a correctional facility on August 5, 2002, was eligible for reinstatement of benefits effective August 5, 2002.

SUMMARY

Based on our review of the information you have provided and the relevant law, it is our opinion that the claimant is eligible for reinstatement of benefits effective August 5, 2002.

BACKGROUND

The evidence you provided indicates that the Commonwealth of Virginia convicted the claimant of aggravated sexual battery and sentenced him to a correctional facility in 1998. An Admission Intake Assessment from Central State Hospital dated July 23, 2002 indicates that the claimant was scheduled to be released from the correctional facility on August 5, 2002 and was ordered hospitalized pursuant to the provisions of Va. Code Ann. § 37.1-67.3 because he was mentally ill and dangerous to himself and others and was unable to care for himself. See Admission Screening Intake Assessment from Central State Hospital. There is no court order from August 5, 2002 included in the evidence we received.

On January 7, 2004, Daniel L. H~, the Special Assistant to the Director for Forensic Services at Central State Hospital, petitioned the court to hospitalize the claimant because he was mentally ill. Mr. H~'s petition was based on the findings of Lillian M. T~, M.D., who opined that Plaintiff presented an imminent danger to himself and was unable to care for himself due to mental illness. On January 7, 2004, Judge Joseph O. H~ ordered the claimant involuntarily hospitalized for a period not to exceed 180 days because he presented an imminent danger to others and was unable to care for himself as a result of mental illness.

Because the claimant had no resources or income, his hospitalization was being paid by the Commonwealth of Virginia. However, patients who are involuntarily committed to state hospitals and unable to pay are responsible for their inpatient costs for up to five years after they are discharged. If the claimant's disability benefits are reinstated, they will be applied towards the cost of his inpatient care.

The claimant is classified as a "sexually violent offender" by the Commonwealth of Virginia and his name appears on Virginia's sexual offender registry.

DISCUSSION

You have asked whether the claimant, who was classified as a "sexually violent offender" in Virginia and involuntarily committed to a Virginia state mental hospital upon completion of his confinement in a correctional facility on August 5, 2002, was eligible for reinstatement of benefits effective August 5, 2002. Section 402(x)(1)(A) of the Social Security Act provides, in relevant part, that no monthly benefits will be paid to the following:

  1. (1) 

    individuals who are confined in a jail, prison, or other penal institution or correctional facility pursuant to his conviction of a criminal offense;

  2. (2) 

    individuals confined by court order in an institution at public expense in connection with (a) a verdict of guilty but insane, (b) a verdict of not guilty by reason of insanity, (c) a finding that an individual is incompetent to stand trial, or (d) a similar verdict or finding based on similar factors (such as mental disease, mental defect, or mental incompetence); or

  3. (3) 

    individuals, who immediately upon completion of confinement as described in provision (1) pursuant to conviction of a crime an element of which is sexual activity, is confined by court order in an institution at public expense pursuant to a finding that he is a sexually dangerous person or a sexual predator or similar finding.

42 U.S.C. § 402(x)(1)(A).

The third provision, or the "sexually dangerous nonpayment provision," of 42 U.S.C. § 402(x)(1)(A) is the only provision that could apply in this case. The Agency will only enforce the sexually dangerous nonpayment provision in those states that have formal laws expressly providing for court ordered confinement of sexually dangerous individuals. See POMS GN 02607.360. Significantly, Virginia has formal laws expressly providing for court ordered confinement of sexually dangerous individuals. Va. Code Ann. § 37.1-70.1 et seq.

However, based on the evidence you provided, we do not believe the sexually dangerous nonpayment provision applies in this case because the claimant has not been involuntarily committed in an institution at public expense pursuant to a finding that he is a sexually dangerous person or a sexual predator or similar finding. Although the claimant was convicted of aggravated sexual battery, has been classified as a "sexually violent offender" by the Commonwealth of Virginia, and his name appears on Virginia's sexual offender registry, Judge H~ ordered the claimant involuntarily hospitalized because he presented an imminent danger to others and was unable to care for himself as a result of mental illness. Further, the Admission Intake Assessment from Central State Hospital dated July 23, 2002 indicates that the claimant was ordered hospitalized pu! rsuant to the provisions of Va. Code Ann. § 37.1-67.3, which governs the involuntary commitment of mentally ill individuals, rather than Va. Code Ann. § 37.1-70.1 et seq., which governs the involuntary commitment of sexually dangerous individuals. We also note that if the claimant's disability benefits are reinstated, they will be applied towards the cost of his inpatient care. Accordingly, based on the evidence you provided, we recommend that the claimant's benefits be reinstated effective August 5, 2002.

CONCLUSION

For the reasons discussed above, we believe that the claimant is eligible for reinstatement of benefits effective August 5, 2002.

Sincerely,

Patricia M. S~
Acting Regional Chief Counsel

By:______________________
Brian C. O~
Assistant Regional Counsel


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1506805052
PR 06805.052 - Virginia - 05/19/2009
Batch run: 04/25/2016
Rev:05/19/2009