Monday, May 10, 2021
This semester at Dickinson Law, I've been teaching a comparative law module on Social Security Benefits. We've been spending more time than usual examining issues associated with basic "retirement benefits" rather than the more complicated topics of Social Security Disability (SSD) and Supplement Security Income (SSI) benefits.
A group of us ended the semester with an interesting hypothetical. Imagine that a retired, older client has a DWI -- his second within some number of years -- involving property damage and, thankfully, no direct endangerment to anyone's life or safety. Assume a damaged mailbox or telephone pole. The state law might treat that as a misdemeanor, but because it is a second offense, it could still mean substantial jail time. The client is thinking about pleading guilty, even if the sentence is 60 to 90 days. The older client might be thinking "the faster I get this over, the faster I can get home and headed back in the right direction with my life."
Do lawyers advise such clients of the potential impact of incarceration, whether in a jail or prison, on his or her right to receive basic Social Security benefits? This was a new topic for me and of course that sent me scurrying for information. Here's what I've read so far:
- The Social Security Administration has a December 2019 brochure, entitled "What Prisoners Need to Know."
- Federal statutory law currently provides, at 42 U.S.C. Section 402(x)(1)(A), that "no monthly benefits shall be paid" to any individual who is "confined in a jail, prison, or other penal institution or correctional facility pursuant to his conviction of a criminal offense" for 30 continuous days or more. Does this mean the trigger for loss of benefits is 30+ days of confinement for any crime, even a misdemeanor? While a related regulation, at 20 CFR Section 404.468, provides that no monthly benefits shall be paid if the confinement is for a "conviction of a felony," (my emphasis added) it may be that regulation's language reflects pre-1999 statutory law. See e.g., amendments to Section 402(x) set forth in P.L. 106-170 (Dec. 17, 1999), 113 Stat. 1860, an act with the ominous name of "Ticket to Work and Work Incentives Improvement Act."
- Cases explain that since 1983, the statutory mandate to suspend payments applies to basic retirement benefits, as well as SSD and SSI, and can also trigger a demand for refunds of any SS program funds "overpaid" during confinement, potentially reducing any future benefits the individual would otherwise receive once out of jail. See e.g., Zipkin v. Heckler, 790 F.2d 16 (2d Cir. 1986).
- Attempts to challenge the application of Section 402(x) by arguing the law violates substantive due process, equal protection or is unconstitutional as a bill of attainder or ex post facto law have not met with success. See e.g., Butler v. Apfel 114 F.3d 622 (9th Cir. 1998).
Back to our hypothetical. The client might be planning to go home after 30, 60, 90 days or more in jail, but what if the client was depending on SS retirement income -- reflecting his life-time work record -- in order to keep making house payments for that time?
Originally the theory of suspending federal SS payments focused on "disability" payments, because the confined individuals were being maintained at public expense and their inability to work is a consequence of their criminal conviction, not their disability. But what of the 1983 amendment, expanding the suspensions to SS retirement income? In the Zipkin case linked above, at page 18-19, the Second Circuit rejected any distinction:
"We can perceive no reason why prisoners whose retirement benefits are suspended would have a need for replacement of income while prisoners whose disability benefits are suspended do not. Rather, prisoners, as a group, do not have the need for a continuing source of income that nonprisoners typically may have. . . . Social Security retirement benefits are designed to satisfy certain baseline economic needs, reasonably predictable when a worker retires. . . . They are not benefits held in trust and payable per se."
It is a tough world, right? But does it need to be this tough? According to the Social Security Administration's recent statistics, among elderly Social Security beneficiaries, "21% of married couples and about 45% of unmarried persons rely on Social Security for 90% or more of their income." Feel free to add your own thoughts in the "comments."