TN 3 (02-02)
GN 02607.200 Special Legal Considerations For Prisoner Suspensions
A. Policy - Circumstances of the Judicial Process Requiring Special Consideration
1. Trial Pending
Do not suspend benefits while the beneficiary is awaiting trial. Conviction must occur before benefits are suspended.
2. Appeal Pending
Suspend benefits if the individual is in custody at a correctional institution while he/she is appealing his/her conviction. Do not suspend benefits if the individual is no longer in the correctional institution (released) while he/she is appealing his/her conviction.
3. Conviction Overturned
a. No additional legal proceedings required
Do not suspend benefits if a court reverses a decision of conviction for a beneficiary. Reinstate benefits if they are in suspension and repay any benefits that we withheld.
b. New trial required
Beneficiary Remains In Institution Pending New Trial
If the beneficiary must undergo a new trial because a court overturns a conviction and the beneficiary remains confined in a correctional institution until the new trial commences, benefits remain suspended until the court makes a decision regarding conviction or acquittal.
Do not reinstate benefits to the individual until the court completes all legal proceedings in the case. SSA will wait until the court makes a decision about the individual's conviction status before we reinstate his/her benefits, if applicable. (The prosecuting authority is usually the best source of information about an individual's conviction status.) Refer any unsettled conviction issues to the regional prisoner coordinator (RPC) for resolution.
Beneficiary Released From Institution Pending New Trial
If the beneficiary must undergo a new trial because a court overturns a conviction and the beneficiary is released from the correctional institution pending the new trial and its outcome, reinstate benefits effective with the first full month after the beneficiary’s release from the correctional institution.
NOTE: After the second trial and conviction, if the court issues the individual a sentence which includes “time served” under the first conviction, do not reinstate or repay benefits for the period already suspended on the first conviction
If an individual receives a pardon, it may have various effects; e.g., the prior conviction may be eliminated or the penalty may be erased. Therefore, where there has been a pardon, refer the case to the regional chief counsel for an opinion on the effect of the pardon.
5. Time Served Prior to Conviction
A judge may give a prisoner credit for time he/she has spent incarcerated while awaiting trial. The judge uses the credit to reduce the amount of time the prisoner must serve in jail after his sentence is pronounced. In some instances, the court will eliminate the entire sentence by giving the individual credit for the time he/she spent in jail prior to conviction. In this case, do not suspend title II benefits for the period of incarceration before conviction even if the sentence specifically includes that time in the sentence.
EXAMPLE: Julie is arrested on January 15, 2000 and remains in jail because she is unable to make bail. On 07/15/00, she is convicted of a crime carrying a possible sentence of 2 years of imprisonment. The court sentences her to 6 months and grants her “time served.” (Julie has already been in jail for 6 months while she was awaiting trial because she could not make bail.) She will be released from custody effective with the official date that the sentence was pronounced by the court; i.e., 07/15/00. Therefore, she will not be suspended because she was not convicted and subsequently confined for that crime.
6. Contempt of Court Citations (Criminal or Civil) and/or Confinements
Do not consider contempt of court citations and/or confinements as a conviction for purposes of suspending title II benefits. Generally, contempt of court citations or confinements occur because someone ignores a court order to do something; e.g., a civil court orders an individual to pay child support, etc. If the individual does not pay child support, the court then cites the individual with a contempt of court charge for not complying with the instructions that the court imposed on the individual. In some instances, the court will order the individual confined in a correctional institution because they did not follow the court's order to do something. In some instances the court will monetarily fine an individual because they did not follow a court order. In either of these circumstances, a contempt of court citation or confinement is not a conviction for SSA title II prisoner/NGRI suspension purposes.
B. Policy - Special Categories of Inmates (Other Than Prisoners and NGRIS)
1. Juvenile Offenders
In most cases where a juvenile commits a crime and the crime is handled under State juvenile statutes, the juvenile is not considered to have been “convicted” of that offense. If there is no conviction, the statutory requirements for title II prisoner suspension do not apply.
If the juvenile is kept confined under juvenile authority jurisdiction beyond the age of majority, the original disposition of the court case is the determining factor in whether the suspension provisions apply.
Terms such as “adjudged,” “adjudicated,” “found to be delinquent (or youthful offender),” “transferred to the youth authority,” etc. are frequently used to describe the disposition of juvenile offenses. The best sources of information in cases adjudicated under juvenile laws are court documents and records. In those cases where court records are sealed, alternative sources of information, such as the prosecuting authority or the individual's attorney, may provide necessary information to make a decision about the juvenile's disposition of his/her offense.
Suspend benefits where the court tries the “juvenile as an adult,” conviction and confinement for the offense would cause prisoner suspension regardless of the individual's age.
Suspend benefits to individuals (escapees) who are fleeing from confinement but are convicted of an offense as described in GN 02607.200A. SSA considers escapees confined for title II purposes, although they may not be in the physical custody of the correctional/mental institution. Suspend benefits effective with the date of conviction, or, the date when the confinement at the correctional/mental institution should have begun, choose whichever date is later.
3. Parole Violators
Parole is a conditional release of a prisoner serving an uncompleted sentence. When a parole board grants an individual a parole, he/she agrees to abide by certain specific conditions in exchange for release from serving the remainder of his/her sentence. When an individual violates his/her parole, the parole board or court issues an official determination of revocation of parole. The individual returns to the correctional institution to serve the remainder of his/her sentence.
NOTE: The incident that causes revocation of the individual's parole may trigger new criminal charges for the individual. The individual will receive a new trial and possible conviction on these new charges. The inmate will continue serving his sentence on the prior offense while he/she awaits the outcome of the new trial for the additional criminal charges he/she incurred while on parole. Generally, the sentences for both offenses will run concurrently.
a. Suspension of Benefits to Parole Violators
Do not suspend benefits to a parole violator until the court or parole board issues an official determination that the parole violator broke a condition of his/her parole. A court of competent jurisdiction or an administrative body such as a parole board makes the official determination for revocation of parole. Do not suspend benefits to the individual after his/her arrest for parole violation and while he/she is in jail awaiting his/her parole board hearing.
b. Suspension Effective Date for Parole Violators
Suspend benefits to a parole violator effective with the month in which there is a court hearing and an official order of revocation is made; or, the parole board meets and officially makes an order to revoke the probation or parole.
NOTE: For title II purposes, the date of conviction for a parole violator is the date the official order of revocation is made. Suspend title II benefits effective with the date the official order of revocation is made and the date the correctional institution confines the individual because of the order of revocation. Count the “more than 30 continuous days” rule for parole violators as follows: Date of parole revocation order (or date of confinement if later than date of revocation order) plus 30 consecutive calendar days = 31 or more days. Count the day the parole board/court issues the order to revoke parole as the first day of the period, and add 30 consecutive days to this day to equal 31 or more days.
c. Suspension Does Not Apply
Do not suspend benefits if there is no official determination (e.g., the individual was arrested but parole was not revoked) made by a court or administrative body having jurisdiction over the decision to revoke parole.
EXAMPLE 1 - PAROLE IS GRANTED
Kelsey, a title II beneficiary, is tried, convicted of a crime punishable by more than one-year imprisonment and confined on 12/30/98. He is released on parole on 02/14/00 for good behavior.
Kelsey contacted his local SSA office and provided them with his official parole papers. The SSA FO acted to reinstate his benefits via PUPS. They posted his PUPS record for this period of confinement with a release date of 02/14/00. Benefits were reinstated effective 03/00 because he met all factors of eligibility and benefits could be resumed. (See GN 02607.840 for instructions on reinstating benefits.)
EXAMPLE 2 - PAROLE REVOKED
Kelsey is arrested on 04/1/00 because he violated a condition of his parole. Kelsey was incarcerated in jail until the parole board convened to make a decision about revoking his parole. Parole was officially revoked on 06/3/00 based on a parole board official decision that he must serve the remainder of his unfinished sentence on his previous criminal charge. No additional criminal charges were brought against him because he committed a parole violation, not a crime.
The revocation of his parole, however, creates a new period of confinement. The period of conviction and confinement for the parole revocation begins 06/03/00. We begin counting the more than 30 continuous days of confinement with the day that Kelsey is both confined and the official revocation of parole is made; i.e., 06/03/00, more than 30 continuous days is met on 07/3/00.
Establish a PUPS record to reflect the new period of incarceration for Kelsey; e.g., date of confinement equals 06/03/00 and date of conviction equals 06/03/00. (See GN 02607.460 for establishing PUPS records.) Kelsey's benefits are suspended again beginning 06/00. An incentive payment is automatically sent to the jail for their timely reporting of his confinement to SSA.
4. Probation Violators
Probation is a suspended sentence granted by the courts to help an individual avoid imprisonment. Juveniles and first offenders usually receive sentences of probation. A probation officer supervises the probationer's conduct to ensure he/she does not violate the conditions of the probation. When an individual violates his/her probation, his/her probation officer surrenders him/her to the court that granted the probation. The court will revoke the probation, reinstate the sentence for the criminal offense, and send the individual to a correctional institution to serve his/her sentence.
Generally, SSA learns of the probation violator's incarceration when the correctional institution reports his/her confinement to SSA for prisoner matching. Once the inmate is in the correctional institution for more than 30 continuous days (the 30 continuous day specification is only applicable for inmates that are confined beginning 04/01/00 and continuing), SSA will suspend benefits when the court has made an official determination to rescind the individual's probation and the individual is placed in confinement at a correctional institution after the court officially rescinds the individual's probation. Suspend benefits effective with the first month both of these factors are met.
NOTE: For case processing purposes, probation violators are treated similar to parole violators. See GN 02607.200B.3. for more general information on processing techniques for these types of individuals.
C. Policy - Home Confinement, Pre-release, or Community Based Prisoner Release Programs
Confinement includes those who are:
temporarily outside the facility because of hospitalization, or on furlough (including a court-ordered furlough or an institution-granted furlough),
temporarily outside the facility to work or to attend school,
escapees, or those who fail to report to begin their sentence,
in a halfway house or a work release program because of a transfer from the correctional institution; or
in the custody of an institution because of a court order (e.g., NRGIs, etc.).
Home confinement, pre-release, or community-based early release programs are programs under which the correctional institution may place a prisoner while he/she is residing outside the penal institution. Generally, individuals in these types of programs are under the authority of the umbrella correctional agency; e.g., State department of corrections, etc. The umbrella correctional agency continues to maintain control over the individual although he/she is not physically residing in one of their correctional institutions. An individual who participates in one of these programs must pay for his/her own basic living needs, (e.g., food, rent, utilities, etc.). Generally, the individuals who participate in these types of programs cannot use any public funds to help subsidize or support their basic living needs.
Home Confinement, Home Detention or Tethering Programs
Effective 02/01/95, do not suspend benefits to prisoners placed on home confinement, home detention, or tethering programs. Prisoners participating in these special types of programs normally will reside outside of the correctional institution at no expense (other than the cost of monitoring) to the institution, the correctional agency or to any agency to which the correctional institution has transferred authority over the individual. (See GN 02607.840A.1. for additional instructions on reinstating benefits to prisoners.)
NOTE: Where an individual meets the circumstances above, the distinction between placement in a home confinement program by an administrative action of the correctional agency and placement in a program by court order will no longer apply.
Pre-release or Community Based Early Release Programs
Generally, prisoners participating in these types of pre-release or community based programs (e.g., work release programs or halfway houses) will remain suspended even though the prisoner is residing outside of the correctional institution. However, if the prisoner is participating in a pre-release or community based early release program outside of the correctional institution at no expense (other than the cost of monitoring) to the institution, the correctional agency or to any agency to which the correctional institution has transferred authority over the individual and the individual pays for his/her own basic living needs (e.g., food, clothing, rent, utilities, etc.), benefits can be paid to the prisoner.
NOTE: Prisoners who participate in these types of programs cannot use any public funds to help subsidize or support their basic living needs while participating in a pre-release or community based program.
NGRIs participating in pre-release or community based programs can be paid if they live outside of the correctional (i.e., mental institution) institution and are placed on conditional release or similar type of authorized special release status. (See GN 02607.850A.1.c. and GN 02607.850E. for additional instructions on reinstating benefits to NGRIs.)