(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "To bar social security benefit payments to criminally insane individuals confined to public institutions by court order : hearing before the Subcommittee on Social Security of the Committee on Ways and Means, House of Representatives, One Hundred Third Congress, first session, on H.R. 979, to amend Title II of the Social Security Act ... September 21, 1993"

TO BAR SOCIAL SECURTIY BENEFIT PAYMENTS 
TO CRIMINAUY INSANE INDIVIDUAI5 
CONHNED TO PUBUC INSTITUTIONS BY COURT 
ORDER _^^^ 

Y 4. W 36: 103-41 ^xTr- 

ING 

To Djr Securiti) Benefits Pajnents t... '"^ 

OF THE 

COMMITTEE ON WAYS AND MEANS 
HOUSE OP REPRESENTATIVES 

ONE HUNDRED THIRD CONGRESS 

FIRST SESSION 
ON 

H.R. 979 

TO AMEND TITLE U OF THE SOCIAL SECURITY ACT TO EXPAND CUR- 
RENT RESTRICTIONS ON PAYMENT OF BENEFITS TO PRISONERS TO 
INCLUDE PAYMENTS OF INDIVIDUALS CONFINED TO PUBUC INSTITU- 
TIONS PURSUANT TO COURT ORDER BASED ON A VERDICT THAT THE 
INDIVIDUAL IS NOT GUILTY OF A CRIMINAL OFFENSE BY REASON OF 
INSANITY OR A SIMILAR FINDING 



SEPTEMBER 21, 1993 



Serial 103-41 



Printed for the use of the Committee on Ways and Means 




U.S. GOVERNMENT PRINTING OFFICE 
76-498 CC WASmNCTTON : 1994 

For sale by the U.S. Govemmcni Priming Ottice 
Supenntendent ot Documents, Congressional Sales Office. Washington. DC 20402 
ISBN 0-16-043531-5 



TO BAR SOCIAL SECURITY BENEFTT PAYMENTS 
TO CRIMINAUY INSANE INDIVIDUALS 
CONHNED TO PUBUC INSTITUTIONS BY COURT 
ORDER ^^_^_^^^^ 

Y 4. W 36: 103-41 ^xTr- 

ING 

To Djr Securits Benefits Pajnents t... '"^ 

OF THE 

COMMITTEE ON WAYS AND MEANS 
HOUSE OP REPRESENTATIVES 

ONE HUNDRED THIRD CONGRESS 

FIRST SESSION 
ON 

H.R. 979 

TO AMEND TITLE H OF THE SOCIAL SECURITY ACT TO EXPAND CUR- 
RENT RESTRICTIONS ON PAYMENT OF BENEFITS TO PRISONERS TO 
INCLUDE PAYMENTS OF INDIVIDUALS CONFINED TO PUBUC INSTITU- 
TIONS PURSUANT TO COURT ORDER BASED ON A VERDICT THAT THE 
INDIVIDUAL IS NOT GUILTY OF A CRIMINAL OFFENSE BY REASON OF 
ESfSANITY OR A SIMILAR FINDING 



SEPTEMBER 21, 1993 



Serial 103-41 



Printed for the use of the Committee on Ways and Means 




U.S. GOVERNMENT PRINTING OFFICE 
75-498 CC WASHINCTTON : 1994 

For sale by the U.S. Government Printing OITiee 
Supenntendent of Documents. Congressional Sales Office. Washington. DC 20402 
ISBN 0-16-043531-5 



CONfMITTEE ON WAYS AND MEANS 
DAN ROSTENKOWSKI, niinoiB, Chairman 



SAM M. GIBBONS, Flonda 
JJ. PICKLE, Texas 
CHARLES B. RANGEL, New York 
FORTNEY PETE STARK, California 
ANDY JACOBS, JR., Indiana 
HAROLD E. FORD, Tennessee 
ROBERT T. MATSUI, California 
BARBARA B. KENNELLY, Connecticut 
WILLIAM J. COYNE, Pennsylvania 
MICHAEL A. ANDREWS, Texas 
SANDER M. LEVIN, Michigan 
BENJAMIN L. CARDIN, Maryland 
JIM MCDERMOTT, Washington 
GERALD D. KLECZKA, Wisconsin 
JOHN LEWIS, GeoT^a 
L.F. PAYNE, Virginia 
RICHARD E. NEAL, Massachusetts 
PETER HOAGLAND. Nebraska 
MICHAEL R. MCNULTY, New York 
MIKE KOPETSKI, Oregon 
WILLIAM J. JEFFERSON, Louisiana 
BILL K. BREWSTER, Oklahoma 
MEL REYNOLDS, Illinois 



BILL ARCHER, Texas 
PHILIP M. CRANE, Illinois 
BILL THOMAS, California 
E. CLAY SHAW, Jr., Florida 
DON SUNDQUIST, Tennessee 
NANCY L. JOHNSON, Connecticut 
JIM BUNNING, Kentucky 
FRED GRANDY, Iowa 
AMO HOUGHTON, New York 
WALLY HERGER, California 
JIM McCRERY, Louisiana 
MEL HANCOCK, Missouri 
RICK SANTORUM, Pennsylvania 
DAVE CAMP, Michigan 



Janice Mays, Chief Counsel and Staff Director 
Charles M. Brain, Assistant Staff Director 
Philup D. MosELfeY, Minority Chief of Staff 



Subcommittee on Social Security 

ANDY JACOBS, Jr., Indiana, Chairman 



J J. PICKLE, Texas 
WILLIAM J. JEFFERSON, Louisiana 
BILL K. BREWSTER, Oklahoma 
MEL REYNOLDS, Illinois 



JIM BUNNING. Kentucky 
PHILIP M. CRANE, Illinois 
AMO HOUGHTON, New York 



ai) 



CONTENTS 



Page 

Press releases announcing the hearing 2 

H.R. 979, text 5 

WITNESSES 

Social Security Administration, Lawrence H. Thompson, Acting Commis- 
sioner 31 

Library of Congress, Elizabeth B. Bazan, Legislative Attorney, American Law 
Division, Congressional Resetux:h Service 42 

Bissell, Nicholjis L., Jr., Prosecutor, County of Somerset, NJ 29 

Donnelly, G. Susan, Annapolis, Md 8 

Franks, Hon. Bob, a Representative in Congress from the State of New 

Jersey 26 

Keith, Thomas J., District Attorney, State of North Carolina, accompanied 

by Vincent Rabil 15 

Knudsen, Karl E., Raleigh, N.C 63 

National Alliance for the Mentally 111, Ron Honberg 68 

Nicholson, R.B., Winston-Salem, N.C 11 

SUBMISSIONS FOR THE RECORD 

Biyant, David R., Chicago, 111., letter 75 

California Department of Developmental Services, Samuel H. Buckles, state- 
ment 76 

Colorado Mental Health Institute at Pueblo, Harold Carmel, M.D., and 

Mannie A. Colon, letter 81 

National Association of Disability Examiners, Dan Fulton, statement 82 

New York State Office of Mental Health, Re^nald Glover, letter 83 

Stephanie Roper Committee, Inc., Roberta R. Roper, statement and attach- 
ments 85 

(in) 



TO BAR SOCIAL SECURITY BENEFIT 

PAYMENTS TO CRIMINALLY INSANE 

INDIVIDUALS CONFINED TO PUBLIC 
INSTITUTIONS BY COURT ORDER 



TUESDAY, SEPTEMBER 21, 1993 

House of Representatives, 
Committee on Ways and Means, 
Subcommittee on Social Security, 

Washington, D.C. 
The subcommittee met, pursuant to call, at 1:40 p.m., in room 
B-318, Raybum House Office Building, Hon, Andy Jacobs, Jr. 
(chairman of the subcommittee) presiding. 

[The press release announcing the hearing and the text of H.R, 
979 follow:] 



(1) 



PRESS RELBABB /4 

SDBCOHMITTBB OH SOCIAL SBCORITY 
COHMITTBE ON WAYS XKD MEANS 
D.S. BOOSE OP REPRESENTATIVES 
1102 LOHOWORTH BODSB OFFICE BLDO. 
WASHINGTON, D.C. 2 OS 15 
TELEFBOHBl (202) 22S-1721 

THE HONORABLE AKDY JACOBS, JR. 
flOBCGHMITTEB OH SOCIAL SBCtJItlTY, C( 
O.S. BOOSE or REPRE 
ANNOUNCES A BEARING OH B.R. 97f, 
TO BAR SOCIAL SECURITY BENEFIT PAYMENTS 
TO CRIKXRXLLT INSANE INDITIDOALS 
COVFIIfBO TO PUBLZC INSTITOTIONS BY COURT ORDER 

The Honorable Andy Jacobs, Jr. (D. , Ind.). Chainian, 
Subcommittee on Social Security, Committee on Ways and Means, U.S. 
House of Representatives, today announced that the Subcommittee wi 
hold a hearing on H.R. 979, which would expand current restriction 
on Social security benefits to prisoners to include individuals 
confined to public institutions by court order based on a verdict 
not guilty by reason of Insanity. In announcing the hearing. 
Chairman Jacobs stated, "Disability benefits are paid in lieu of 
wages to provide shelter and food, which these patients are alread 
receiving at the expense of the State. It's a double dip." The 
hearing will be held in September. The specific date will be 
announced in a subsequent press release. 

BACRGROUMD l 

Present law bars the payment of Social Security benefits t 
individuals confined to prisons or other correctional facilities a 
result of a felony conviction. (Qualified family members of such 
individuals may continue to receive benefits.) An exception is 
provided for imprisoned felons who are satisfactorily participatin 
in a court-approved program of rehabilitation which the Secretary 
Health and Human Services (HHS) has determined is likely to result 
the individual's return to work upon release from prison. 

Current law does not, however, bar benefit payments to 
individuals confined to a public institution because they are foun 
not guilty of a felony by reason of insanity. In some cases, such 
individuals have qualified for Social Security disability benefits 
based on evidence of insanity developed during a felony trial and 
have received payments while confined to a mental institution at 



FOCOB OF THE HEARING ; 

The Subcommittee invites witnesses to comment on H.R. 979, 
which would expand the current restriction on payment of Social 
Security benefits to prisoners to include individuals who are 
confined to public institutions pursuant to a court order based on a 
verdict of not guilty by reason of insanity (or by reason of a 
similar finding, such as mental disease, mental defect, or mental 
incompetence). To enforce this restriction, the Secretary of HHS 
would be authorized to require from public institutions the names and 
Social Security numbers of inmates confined there under the 
conditions described above. The restriction would apply to benefits 
for nonths ccziKencing SC days after the dace of enactment. 

DETAILS FOR SUBMISSION OF REQUESTS TO BE HEARD : 

Requests to be heard at the hearing must be made by telephone 
to Harriett Lawler. Dianne Kirkland or Karen Ponzurick [(202) 
225-1721). The telephone request should be followed by a formal 
written request addressed to Janice Mays, Chief Counsel and Staff 
Director, Committee on Ways and Means, U.S. House of Representatives, 
1102 Longvorth House Office Building, Washington, D.C. 20515. The 
Subcommittee staff will notify by telephone those scheduled to appear 
as soon as possible after the filing deadline, which will be 
announced in a subsequent release. Any questions should be directed 
to the Subcomnittee staff [(202) 225-9263]. 



In view of the linlted tine available to hear witnesses, the 
Subconmlttee nay not be able to accommodate all requests to be heard. 
Those persons and organizations not scheduled for an oral appearance 
are encouraged to submit written statements for the record of the 
hearing. All persons requesting to be heard, whether they are 
scheduled for oral testimony or not, will be notified as soon as 
possible after the following deadline. 

witnesses scheduled to present oral testimony are required to 
summarize briefly their written statements in no more than five 
minutes. THE FIVE MINUTE RULE WILL BE STRICTLY ENFORCED. 
Subcommittee Chairman Jacobs advises witnesses that they will be 
allowed no more than two "finally's" and one "in conclusion." The 
Congressional Budget Office and similar U.S. Government agencies nay 
be granted an exception. The full written statement of each witness 
will be included in the printed record. 

In order to assure the most productive use of the United 
amount of time available to question witnesses, those scheduled to 
appear before the Subcommittee are required to submit 150 coples~of 
their statements to the Subcommittee on Social Security office, room 
B-316 Rayburn House Office Building, at least 48 hours in advance of 
their scheduled appearances. Failure to do so may result in the 
witness being denied the opportunity to testify in person. 

WRITTEN aTATEMENTB IN HEn Of PERSONAL XPPEARAMCE l 

Any persons or organizations wishing to submit a written 
statement for the printed record of the hearing should submit at 
least six (6) copies of their statement no later than the close of 
business, two weeks after the date of the hearing, to Janice Mays, 
Chief Counsel and Staff Director, Committee on Ways and Means, U.S. 
House of Representatives, 1102 Longworth House Office Building, 
Washington, D.C. 20515. It those filing a written statement wish to 
have their statements distributed to the press and interested public 
at the hearing, they may deliver 100 additional copies for this 
purpose to the Subcommittee, room B-316 Rayburn House Office 
Building, on the day of the hearing. 

FORMATTING REQOIREMENTB ! 



Eich sutemertt presented (or prinlinf to the Committee by a witneu. iny wrK__ 
jhibit submitted (or the printed record or jny written comments in response to I request (or written 
omments must contofm to the fuidetines listed below Any statement or exhibit not in compliance with 
hes< luidelines will not be printed, but will be maintainad in the Committee files lor review and use by the 



Copies o( whole documents submitted as exhibit material will not be accepted (or printing 
Instead, exhibit material should be relerenced and quoted or paraphrased. All exhibit material 
not meeting these specifications will be maintained in the Committee files (or review and use 
by the Committee. 

Statements must contain the name and capacity in which the witness wilt appear or, (or 
written comments, the name and capacity o( the person submitting the statement, as well as 
any clients of persons, or any organization (or whom the witness appears or (or whom the 
statement is submitted 

A supplemental sheet must accompany each statement listing the name, (ull address, a 
lelepAone number where the witness or the designated representative may b« reached and a 
topical outline or summary o( the comments and recommendations in the (ull 1 
This supplemental sheerwill not be included in the printed record 



The above restrictions and limitations apply only to material being submitted (or printing Statements 
and exhibits or supplerrwntary material submitted solely (or distribution to the Members, the press and tha 
public during the course o( a public hearing may be submitted in other (orms. 



FOR IMMEDIATE RELEASE PRESS RELEASE #5 

MONDAY, AUGUST 9, 1993 SUBCOMMITTEE OK SOCIAL SECURITY 

COMMITTEE OK WAYS AND MEANS 
U.S. HOUSE OF REPRESENTATIVES 
1102 LONGWORTH HOUSE OFFICE BLDG. 
WASHINGTON, D.C. 2 05 IS 
TELEPHOKE: (202) 225-9263 

THE HOKORABLE ANDY JACOBS, JR. (D., IND. ) / CHAIRMAN, 

SUBCOMMITTEE ON SOCIAL SECURITY, COMMITTEE OK WAYS AND MEANS, 

U.S. HOUSE OF REPRESENTATIVES, 

ANNOUNCES THE DATE OF THE HEARING ON H.R. 979, 

TO BAR SOCIAL SECURITY BENEFIT PAYMENTS 

TO CRIMINALLY INSANE INDIVIDUALS 

CONFINED TO PUBLIC INSTITUTIONS BY COURT ORDER 

The Honorable Andy Jacobs, Jr. (D. , Ind.), Chairman, 
Subcommittee on Social Security, Committee on Ways and Means, 
U.S. House of Representatives, today announced the date for the 
Subcommittee's hearing on H.R. 979, which would expand current 
restrictions on Social Security benefits to prisoners to include 
individuals confined to public institutions by court order based 
on a verdict of not guilty by reason of insanity. The hearing 
will be held on Tuesday, September 21, 1993, in room B-318 Rayburn 
House Office Building, beginning at 1:30 p.m. 

This hearing was announced, and background information was 
provided, in press release #4, dated July 20, 1993. As noted in 
that press release requests to be heard at the hearing must be 
made by telephone by close of business on Monday, August 23, 1993. 

Those scheduled to appear before the Subcommittee are 
required to submit 150 copies of their statements to the 
Subcommittee on Social Security office, room B-316 Rayburn House 
Office Building, by close of business on Friday, September 17, 
1993. 

WRITTEN STATEMENTS IN LIEU OF PERSONAL APPEARANCE ; 

Persons submitting written statements for the printed record 
of the hearing should submit at least six (6) copies of their 
statement by the close of business, Tuesday, October 5, 1993, to 
Janice Mays, Chief Counsel and Staff Director, Committee on Ways 
and Means, U.S. House of Representatives, 1102 Longworth House 
Office Building, Washington, D.C. 20515. If those filing written 
statements for the record of the printed hearing wish to have 
their statements distributed to the press and the interested 
public, they may deliver 100 additional copies for this purpose to 
the Subcommittee office, room B-316 Rayburn House Office Building, 
before the hearing begins. 

FORMATTING REQUIREMENTS : 

Each statement presented for printing to the Committee by a witness, any written statement or 
exhibit submitted for the printed record or any written comments in response to a request for written 
comments must conform to the guidelines listed below. Any statement or exhibit not in compliance with 
these guidelines will not be printed, but will be maintained in the Committee files for review and use by the 
Committee. 

1. All statements and any accompanying exhibits for printing must be typed in single space on 

legal-size paper and may not exceed a total of 10 pages. 

2 Copies of whole documents submitted as exhibit material will not be accepted for printing. 
Instead, exhibii Mi^iCMal should be referenced ar.d quoted or paraphrased. All exhibit rr-?*?"?! 
not meeting these specifications will be maintained in the Committee files for review and use 
by the Committee. 

3 Statements must contain the name and capacity in which the witness will appear or, for 
written comments, the name and capacity of the person submitting the statement, as well as 
any clients or persons, or any organization for whom the witness appears or for whom the 
statement is submitted. 

4. A supplemental sheet must accompany each statement listing the name, full address, a 

telephone number where the witness or the designated representative may be reached and a 
topical outline or summary of the comments and recommendations in the full statement. 
This supplemental sheet will not be included in the printed record 

The above restrictions and limitations apply only to material being submitted for printing Statements 
and exhibits or supplementary material submitted solely for distribution to the Members, the press and the 
public during the course of a public hearing may be submitted in other forms 



103d congress 
1st Session 



H. R. 979 



To amend title n of the Social Security Act to expand current restrictions 
on payment of benefits to prisoners to include payments to individuals 
confined to public institutions pursuant to court order based on a verdict 
that the individual is not guilty of a criminal offense by reason of 
insanity or a similar finding. 



IN THE HOUSE OF REPRESENTATIVES 

February 18, 1993 

Mr. Jacobs introduced the following bill; which was referred to the Committee 

on Ways and Means 



A BILL 

To amend title H of the Social Security Act to expand 
current restrictions on payment of benefits to prisoners 
to include payments to individuals confined to public 
institutions pursuant to court order based on a verdict 
that the individual is not guilty of a criminal offense 
by reason of insanity or a similar finding. 

1 Be it enacted by the Senate and House of Representa- 

2 tives of the United States of America in Congress assembled, 



2 

1 SECTION 1. RESTRICTION ON PAYMENT OF BENEFITS TO 

2 INDIVIDUALS CONFINED BY COURT ORDER 

3 TO PUBLIC INSTITUTIONS PURSUANT TO 

4 VERDICTS OF NOT GUILTY BY REASON OF IN- 

5 SANITY OR OTHER MENTAL DISORDER. 

6 Section 202(x) of the Social Security Act (42 U.S.C. 

7 402 (x)) is amended — 

8 (1) in the heading, by inserting "and Certain 

9 Other Inmates of Pubhc Institutions" after "Pris- 

10 oners"; 

11 (2) in paragraph (1), by inserting "or is con- 

12 fined in any pubhc institution by a court order pur- 

13 suant to a verdict that the individual is not guilty 

14 of such an offense by reason of insanity (or by rea- 

15 son of a similar finding, such as a mental disease, 

16 a mental defect, or mental incompetence)," after 

17 "applicable law,"; and 

18 (3) in paragraph (3), by striking "any individ- 

19 ual" and all that follows and inserting "any individ- 

20 ual confined as described in paragraph (1) if the 

21 jail, prison, penal institution, correctional facility, or 

22 other pubhc institution to which such individual is so 

23 confined is under the jurisdiction of such agency and 

24 the Secretary requires such information to carry out 

25 the provisions of this section.". 

•HR »79 IH 



3 

1 SEC. 2. EFFECTIVE DATE. 

2 The amendments made by section 1 shall apply with 

3 respect to benefits for months commencing after 90 days 

4 after the date of the enactment of this Act. 



•HR 979 m 



8 

Chairman Jacobs. Let the record show that Mr. Pickle has 
rapped the gavel and I am sure that means the hearing has begun. 
Where is our witness list? 

Ms. Susan Donnelly is our first witness. Ms. Donnelly is fi-om 
Annapolis, Maryland. Would you come forward, please? 

Mr. BUNNING. Mr. Chairman, I would like to just enter my open- 
ing statement into the record, if you would have no objection. 

Chairman Jacobs. Without objection, that is so ordered. 

[The opening statement of Mr. Bunning follows:] 

Opening Statement op Hon. Jim Bunning 

Mr. Chairman, Andy, I understand that you were a pioneer in the area of sus- 
pending benefits to prisoners convicted of a felony. You were the first to introduce 
such legislation on April 9, 1979, back in the 96th Congress. Benefits were sus- 
pended for disabled felons in 1980, and then for all felons in the 1983 amendments. 

Today we will hear testimony on your bill to expand that provision to the crimi- 
nally insane who are confined to public institutions by court order. The profwsal 
definitely has merit. Since the inmates' needs for food, clothing, and shelter are met 
by the State, the benefits aren't needed for their primary purpose. Instead, such 
benefits have the unintended result of enriching the criminally insane beneficiaiy. 

I understand that the provision may be difiicult to administer, since the Social 
Security Administration may not be able to identify these beneficiaries readily. 
Hopefully, this and other potential problems with H.R. 979 will be addressed in to- 
day's hearing. 

On the face of it, H Jl. 979 seems like a reasonable cost-saving provision. 

Chairman Jacobs. Please sit down, Ms. Donnelly. I apologize, 
too. It is my responsibility for being tardy. We usually try to start 
these exactly on time. You proceed in your own manner. We will 
be happy to hear from you. 

STATEMENT OF G. SUSAN DONNELLY, ANNAPOLIS, MD. 

Ms. Donnelly. Thank you. 

Mr. Chairman, ladies and gentlemen, my name is Susan Don- 
nelly. Two years ago 

Mr. Running. Ityou could pull the mike closer. 

Chairman Jacobs. We are not trying to bug you. Just take it 
easy. 

Ms. Donnelly. My name is Susan Donnelly. Two years ago my 
life, as I knew it, was maliciously destroyed. I was managing a pro- 
fessional fire and water damage restoration company. An employee 
who had worked for us for about 2V2 years, attacked me with a 
baseball bat, following a dis£igreement about the day's work sched- 
ule and severely damaged my head. 

My jaw was broken in three places. The right side of my face was 
so shattered into too many pieces to allow use of the bones for re- 
construction. Thirty-two stitches were required to sew up the back 
of my head. Several teeth were pushed up into my heaa. There is 
a large amount of nerve damage to the right side of my face. I suf- 
fered damage to my hearing and I now must wear hearing aids in 
both my ears and tnat is just some of what happened to me. 

Returning to work has been very difficult. Following my attack, 
my self esteem is and — was and is still very low. My self confidence 
as well as my body took a beating. It makes me constantly question 
whether or not that I was doing the job as well as I thought I was, 
even though I knew I did an excellent iob. If someone questions me 
at work I now mentally wince, and I nave a lot of trouble dealing 



9 

with that because that is sort of how the attack became so in the 
first place. So giving out directions to my employees is a little bit 
difficult now. I second guess myself every single day, even though 
a part of me knows that I know my job inside and out, I have been 
there 7 years. 

For a year and a half, I received Workmen's Compensation, but 
that didn't come close to equaling what my salary was at that time 
or allow me to pay all of mv bills. I lost my position as a manager 
and it is doubtful that I will ever get it back. My boss has already 
told me that, so future earnings are now not going to be back to 
where they were before. 

I also have mental and emotional problems. My authority and 
long term memory are faulty. I have lost a lot of my former vocabu- 
lary and English usage. My father helped me with this paper. I 
used to be an excellent writer. I received a civic award for an essay 
on a patriotic theme. I used to read a lot in my spare time but my 
attention span is so short now that I find it very difficult to read 
for any length of time. 

I have a great deal of difficulty with the thinking process, like 
resolving schedule conflicts and figuring out how to go from point 
A to point B. I frequently lose control over my emotions for no ap- 
parent reason. I get into a rage over nothing and get upset as eas- 
ily. 

The State of Maryland found my attacker guilty of attempted 

murder and other charges, but he was found not criminally respon- 
sible. He was sent to Maryland's Cliflon T. Perkins State Hospital. 
I am back at work now so my State tax dollars pay his medical 
treatment and his room and board. Now I discover that my Federal 
tax dollars rewards him with Social Security disability after he 
tried to kill me. I am a victim £ind in addition to my physical and 
emotional problems, I must cope with the reduced income while he 
does not pay any bills and can bank the Social Security payments. 

This in my opinion is outrageous. I work hard, I pay my taxes 
and basically try to live a decent life. Where is the justice in what 
happened to me? Who is going to compensate me for what has hap- 
pened in my life? Workmen's compensation paid an enormous 
amount of— Workmen's compensation paid enormous medical bills 
and eventually they will settle on a few hundred dollars compensa- 
tion. This will not oegin to compensate the impact this attack had 
and will continue to have on my life. I am trying the best I can 
to get on with my life and then this Social Security fiasco slaps me 
in uie face. 

I would urge you to pass this bill, H.R. 979. Please don't tell any- 
body that crime really does pay. Thank you. 

dhairman Jacobs. Thank you, Ms. Donnelly. Would you wait 
just a moment, please, ma'am. 

[The prepared statement follows:] 



10 



September 21 . lyyj 

Mr. Chairman. Ladies and Gentlemen. 

My name is Susan Donnelly. Two years ago my life, as I knew it, was maliciously 
destroyed. 1 was managing a protessional +ire and water damage restoration company, 
rtn employee who had worked tor the company tor about 2 1/2 years, attacked me with a 
baseball bat tol lowing a disagreement about the day's work schedule and severely 
damaged my head. 

My jaw was broken in 3 places. The right side of my face was shattered into too 
many pieces to allow use of the bones for reconstruction. A bone fragment was 
driven up into my eye socket. My right elbow was broken. Thirty two stitches were 
required to sew up the back of my head. Several teeth were pushed up into my head. 
There is a large amount of nerve damage to the right side of my face. I suffered 
damage to my hearing and must now wear hearing aids in both ears. That is some of 
what happened to me. 

Returning to work has been very difficult for me. Following the attack, my self 
esteem was and still is very low. My self confidence, as well as, my body took a 
beating. It makes me constantly question whether or not I was doing my job as well 
as I thought, even though I know 1 was doing an excellent job. If someone questions 
me at work I mentally wince and have trouble dealing with it. So now giving out 
directions on the job is not easy. Seco.id guessing myself is an everyday thing, 
even though a part of me knows I know my job inside and out. 

For a year and a half, I received workman's compensation. That money didn't come 
close to equalling my previous salary or allow me to pay all my bills. I lost my 
position as a manager and it is doubtful that I'll ever get it back. The owner has 
told me this already, so future earnings are not going back to where they were 
before the beating. 

I also have mental and emotional problems. My short term and long term memory are 
faulty. I have lost a lot of mv former large vocabulary and English usage imy 
father helped me with this paper). 1 formerly was an excellent writer, receiving a 
civic award for an essay on a patriotic theme. I used to read a lot in my spare 
time but my attention span is very short now, so I find it difficult to read for any 
length of time. 1 have a great deal of difficulty with the thinking process, like 
resolving schedule conflicts, and figuring how to go from point A to point B. I 
frequently lose control over my emotions for now good reason. 1 get into a rage 
over nothing and get upset easily. 

The State of Maryland found my attacker guilty of attempted murder and other charges 
but not criminally responsible. He was sent to Maryland's Clifton T Perkins State 
Hospital. I'm back at work so my State tax dollars pay for his medical treatment 
and his board and room. Now I discover that my federal tax dollars reward him wi th 
Social Security disability payments afteir he tried to kill me. I'm the victim and 
in addition to my physical and emotional problems must cope with reduced income 
while he has no regular bills to pay and can bank the Social Security payments. 
That IS outrageous!! I work hard, pay my taxes, vote and basically try to live a 
decent life. Uhere is the justice in what has happened to me. Ulho is going to give 
me money to compensate for what has happened to me. Workman's Compensation paid my 
enormous medical bills and may eventually give me a few hundred dollars. This will 
not begin to compensate for the impact this attack had, and will continue to have, 
on my life. I'm trying my best to get on with my life and then this Social Securi ty 
fiasco slaps me in the face. 

1 urge you to pass this bill. H. R. 979. Don't tell everyone that CRIME REALLY DOES 
PftY!! 

Thank You, 

G. Susan Donne I ly 



XI 

Chairman Jacobs. Mr. Bunning, any comments or Mr. Pickle? 

Mr. Pickle. No, I have no questions. 

Chairman Jacobs. Amo. 

Mr. Houghton. No, thank you very much. 

Chairman Jacobs. I ccm't speak for the rest of the committee, 
but I am the author of the bill to change that situation. And I real- 
ize from your testimony it is more insult than injury, although 
partly injury, as you say you pay your Social Securitv taxes. 

More than a decade ago we did — the law was changed so that 
prisoners could not receive disability benefits. I don't think any of 
us really thought at the time about those who were in mental insti- 
tutions as a consequence of felony use or brutal conduct. That is 
why the bill was introduced; and I, for one, intend to do what I can 
to get it passed. 

Ms. Donnelly. I appreciate that. Thank you. 

Chairman Jacobs. Yes, ma'am, good luck. 

Ms. Donnelly. Thanks. 

Chairman Jacobs. We have a panel now. R.B. Nicholson, Win- 
ston-Salem, N.C.; Thomas J. Keith, district attorney, 21st Prosecu- 
torial District, State of North Carolina; and accompanied by Vin- 
cent Rabil. I am sure you have heard your share of jokes so I will 
skip those, assistant district attorney. 

Mr. Nicholson. 

STATEMENT OF R.B. NICHOLSON, WINSTON-SALEM, N.C. 

Mr. Nicholson. Thank you, sir. I am kind of accustomed to let- 
ting Tom go first. 

I want to thank our representative, Steve Neal. He was the one 
that took note of our plea and brought it to your attention and, of 
course, we certainly appreciate what you are trying to do in this 
matter because we believe it is the right thing to do. 

Our scenario was initiated in July 1988, when the subject, 
Hayes, assaulted 24 people with a deadly weapon. He succeeded in 
wounding nine, four of them fatally. One of the four killed was our 
youngest son, Thomas, who was 24 years old at that time. 

If you recall the trial of John Hinckley in 1983, the Hayes trial 
was similar in several respects but just on a smaller scale. The 
gpreatest similarity was the public rejection of the jury decision, and 
of course we know that Congress completely rewrote the Federal 
insanity laws as a result of the Hinckley trial. 

I wanted to mention my finend Tom Keith. I didn't put Vince in 
here because I didn't know he was coming. But they were not in 
office at the time of Hayes' prosecution, so they are not to be 
blamed for the outcome. I am confident if they had been in office 
at the time and been the prosecutor, he would be on death row 
now, not the mental hospital. 

After the criminal proceedings, as executor of Tom's estate, I 
filed a wron^l death civil action against Hayes. In October 1990 
in the court hearing Tom's estate, he was awarded a $2 million 
judgment. In his decision, the judge found that Hayes was respon- 
sible for his conduct and civilly responsible for, in the judge's word, 
his despicable acts. Later in 1990, and then in 1991, we were act- 
ing to execute on the civil judgment and through the hospital docu- 
ments that we had obtained by court order, I found Hayes was re- 



12 

ceiving at that time $511 a month in Social Security disability ben- 
efits. 

The media became aware of my discovery and advertised the per- 
ceived inequity all across North Carolina. The public was under- 
standably upset on hearing the news. I had many phone calls fi'om 
people who nad paid into the system for up to 40 years and were 
receiving less than Hayes, and it was at that time that Mr. Keith 
and I contacted Representative Neal. 

We learned that Hayes was spending his benefit check on crea- 
ture comforts, was one term that was used. At that time he was 
allowed to go off campus with a hospital technician escort on what 
frequently were day long shopping sprees. Then in November 1991, 
he disappeared from the hospital grounds for about 8 hours. Unfor- 
tunately, the hospital does not have very good security. 

As a result of tne public notice of what the media termed "Hayes* 
escape," his privileges have since been severely restricted. 

In July of 1992, the hospital's inventory of his personal propertv 
filled nine sheets and there was 20 items on each sheet. The ad- 
ministration had been forced to provide him with additional storage 
area for the overflow. The most noted entries on the inventory were 
40 summer shirts. We could imagine knit regular collared shirts. 
It also listed nine pair of dress pants, four jackets, two full length 
leather coats and on and on, and all of it was purchased with the 
Social Security money. 

His living area was furnished much better than any college stu- 
dent's dorm room. He had two television sets, two VCRs, a very 
elaborate stereo system, large collection of audio and videotapes, 
and a microwave oven, which he liked to order in pizza every night 
and warm it up in his microwave oven. For a time he had a pair 
of hand held radio transmitter receivers, walkie talkies. He had a 
girlfi-iend in the hospital and he and his girlfinend communicated 
that way. 

A news story at that time wrongly reported that a portion of his 
monthly endowment was going to the hospital to help pay for his 
care, but we have determined that the hospital has never collected 
any part of it. In executing on the civil judgment, I have found, and 
I am sure you know, it is impossible to intercept or garnish a Social 
Security payment. By Federal law, the check must be delivered to 
the recipient. 

The social worker who handles Hayes' case testified in the last 
release hearing she has asked him numerous times to voluntary 
contribute to his care but he has refused each time. After patients 
are discharged from the North Carolina mental health services, the 
administration does make an effort to collect ft-om them, but ac- 
cording to their public relations person, they have never been able 
to collect any of the money. 

The declared purpose of the Social Security payment to provide 
for the recipient s care is commendable, but lixe so many other well 
intended programs, it is being shamefully abused, and I know that 
in North Carolina none of the money is being used as it was in- 
tended. 

So we would strongly support what you are doing. 

Chairman Jacobs. Thank you very much, Mr. Nicholson. 

[The prepared statement follows:! 



14 



His living area was furnished much better than any college 
student's dorm room. He had two television sets, two VCR's, an 
elaborate stereo system, a large collection of audio and video 
tapes and a microwave oven, which he used to warm the pizzas he 
ordered in almost nightly. For a time, he had a pair of hand- 
held radio transmitter-receivers, walkie-talkies, with which he 
and his girl-friend, who was a fellow patient, communicated 
during the day. 

A news story, at that time, reported wrongly that a portion 
of Hayes's monthly endowment was going to the hospital to help 
pay for his care. I have since determined, from several 
different sources, that this is untrue. 

In executing on the civil judgement, I found, what I am sure 
that you know, that it is impossible to intercept, or garnishee, 
the Social Security payments. By federal law, the check must be 
delivered directly to the recipient. The social worker, who 
handles Hayes case, testified in a court hearing, that she has 
asked him numerous times to voluntarily contribute to his care. 
He has adamantly refused each time. 

After patients are discharged from the hospital the 
administration does make an effort to collect from them, but 
according to a statement by their public relations person, they- 
have never collected from any of them. 

The declared purpose of the Social Security payment - to 
provide for the recipient's care - is commendable, but, like so 
many other well -intended programs, it is being shamefully abused. 
I know that in North Carolina the money is not being used as it 
was intended. 



15 

Chairman Jacobs. Mr. Keith, I am a Httle bit puzzled. I have a 
note here that somebody will only answer questions. Do you have 
a statement, sir? 

Mr. Keith. Whatever the Chairman wants me to do or say. 

Chairman Jacobs. Any comment vou would care to make would 
be most welcome. I am not sure, I think it is Mr. Rabil who would 
respond to questions. Good. 

Mr. Keith. I brought my lawyer with me so I wouldn't get in 
trouble. 

Chairman Jacobs. There you go. My father sometimes refers to 
the blind leading the nearsighted. I hope that is not your problem 
here. 

STATEMENT OF THOMAS J. KEITH, DISTRICT ATTORNEY, 21ST 
PROSECUTORIAL DISTRICT, STATE OF NORTH CAROLINA, 
ACCOMPANIED BY VINCENT RABIL, ASSISTANT DISTRICT 
ATTORNEY 

Mr. Keith. Without going over the things that he has, my con- 
cern was in preparing for the annual hearing, which we have every 
February, whether he will be recommitted. 

In getting prepared for the first hearing, which was in 1992, in 
Febniary we went to Raleigh, my assistant in fact spent about 
7,000 miles going back and forth to Raleigh getting prepared, et 
cetera, et cetera. We found out that Mr. Hayes was well taken care 
of by the State of North Carolina. 

Dorothea Dix Hospital is a beautiful campus, somewhat akin to 
a smaller Chapel Hill, where I graduated. It is open. It is not 
chains and guards, what have you, with supervision he may move 
around, he may go to classes, basketball, et cetera. I would suppose 
they provide food, clothing, housing, et cetera. His total needs. 

Like Mr. Nicholson, I was amazed to find out he also got Social 
Security, and if he took that money and paid the victims of his 
crime, or if he paid his child support, or if he donated it to charity, 
that would not bother me as much as the fact that he has accumu- 
lated all these personal property items. And what disturbed me 
most was the phone call I got fi-om someone in Wake County, in 
Raleigh, and followed up on an interview with several witnesses, 
one of whom had sold Mr. Hayes, who had killed four people and 
wounded five and tried to shoot a total of 24 people, had brought 
to Dorothea Dix Hospital a motorcycle. Delivered it on the hospital 
where Mr. Hayes paid $800 cash money. I reckon that was your 
money and my money from Social Security, and that bothered me. 

Again, it is not a secure campus. He could rev the thing up and 
he could drive away. His wife, who probably, prior to that time, he 
had not married, was a girlfinend, also a mental patient, multiple 
personalities, somewhere just prior to this incident, has shown up 
on campus with a .44 magnum pistol. We don't have a lot of guer- 
rillas in Wake County that that type of gun would be needed for 
home protection. They took the pistol away fi-om her and sent her 
home, et cetera, et cetera. 

He, therefore, has the capability to buy a weapon for escape and 
a vehicle for escape and to come to Wake County or Winston-Salem 
in Forsyth County, an hour and a half away by the interstate, and 
carry forward on some of his veiled threats against Mr. Nicholson 



18 



to confirm this. I was thereafter advised that it was legal for 
persons found not guilty by reason of insanity confined to a state 
mental hospital to receive such social security benefits. 

I thought this was wrong and asked Representative Neal's staff 
to see what could be done about this. Mr. R.B. Nicholson, the 
father of one of Hayes' victims, has followed up on this matter 
since then. I am now heartened to see that this sub-committee is 
now going to this problem. 

From our investigation during the preparation for these annual 
hearings, it is apparent that the State of North Carolina provides 
all the needs of Mr. Hayes and all other patients confined at 
Dorothea Dix Hospital. The hospital is a beautiful facility in a 
college like setting with large trees, lawns and gardens. The 
State provides all inmates with food, free medical services and 
either a single room or double room depending on what level of 
treatment they are receiving. Additionally, Mr. Hayes' family is 
financially well off. His mother and step-father are able to 
provide for any incidental needs of Mr. Hayes. 

Mr. Hayes has also been able to work at the hospital store and 
earns money for his efiorts. 

In the testimony, some of the medical staff testified that 
they would take Mr. Hayes shopping in downtown Raleigh and on 
occasions and he would purchase leather coats and had a room full 
of electronic stereo and television equipment which he had 
purchased while he was at the hospital. 

I assume that these purchases were made with the social 
security payments he receives as a patient . 

With the multi-trillion dollar deficit, and in face of the 
State of North Carolina's ability to provide such patients with all 
the necessities of life, any social security payment to these 
patients should be stopped. 

I can not see why any similarly situated patient needs to be 
allowed to "double-dip" during long hospital stays. The law needs 
to be changed to plug this "loop hole." 

I hope the sub-committee will favorably report to the full 
committee the need to adopt a law stopping social security payments 
to committed criminally insane patients. 

Very truly yours. 




"Thomas J. R.e.5yt 
District Attorney 

Twenty-first Prosecutorial District 
State of North Carolina 



19 

Chairman Jacobs. I was smiling because my wife and I live next 
door to a horse farm. She accused the owner of putting out a 
present on Christmas Day for the horses, and they were a very 
steamy and molassey feed. He claimed it was just what he had to 
do. We said bah humbug, but I think he loved his horses. 

Mr. Bunning. 

Mr. Bunning. No questions. 

Chairman Jacobs. Mr. Pickle. 

Mr. Pickle. Under your bill, Mr. Chairman, would the benefits 
of the person who had been declared criminally insane that he 
would normally receive in prison, would those benefits still be 
made available to his dependents, his spouse? Does your bill pro- 
vide for any change in that procedure? 

As I recall it, when we passed the bill in 1980, we said the crimi- 
nal person, indicted, convicted, would — 

Chairman Jacobs. I would answer the gentleman's question. I 
believe that is the intent of the bill. The inmate does not profit per- 
sonally, but he or she may have become mentally ill ailer a work- 
ing period, so on and so forth, and the dependents have a standing. 

In other words, you are asking me whether the bill declares a 
new American principle of corruption of blood, and I believe it does 
not. 

Mr. Pickle. Well, then, the spouse or dependent would still be 
entitled to the benefits? 

Chairman Jacobs. Yes. 

Mr. Pickle. Thank you. 

Chairman Jacobs. Jake, there is a passage in the novel Oliver 
Twist where a Mr. Bumble is hailed before a court and he is 
charged with a crime his wife is alleged to have committed and he 
says why me? And the court says because the law presumes that 
you control the acts of your wife. 

Mr. Pickle. Acts. 

Chairman Jacobs. And Mr. Bumble replied, then, me Lord, if the 
law supposes that, the law is an ass, a fool and a bachelor. 

We thank you, all of you, for your contribution to the record. I 
hope we can — I didn't write it. 

Mr. Rabil. Mr. Chairman, we brought a copy of the last order 
committing Mr. Haves to the hospital with the findings of his 
present condition. We would ask that be made a part of the record. 
We have handed a copy to the staff member. 

Chairman Jacobs. Thank you, it will be. Thank you kindly. 

[The information follows:] 



22 



an Axis I (DSM-IIIR) mental illness and that this mental illness 
continues to exist even though the psychotic phase is presently 
in remission; that this mental illness has not been cured; and 
that the psychotic phase of this illness has a reasonable 
probability of recurrence in the future. 

No. 4. That Michael Hayes also presently suffers from or suffers 
with multiple Axis II (DSM-IIIR) mental illnesses including mixed 
substance abuse disorders in remission, antisocial personality 
disorder, narcissistic personality disorder; that his Axis II 
mental illnesses can also be classified as a mixed personality 
disorder with paranoid, narcissistic, antisocial, and sadistic 
features; and that these multiple Axis II mental illnesses are 
currently being treated and have not been cured and that they are 
likely to continue in the future. 

No. 5. That these Axis I and Axis II mental conditions together 
and separately so lessen the capacity of Michael Hayes to use 
self control, judgement and discretion in the conduct of his 
affairs and in his social relations as to make it necessary or 
advisable for him to be under treatment, care, supervision, 
guidance or control and, thus, they constitute mental illnesses 
as defined by G-S. 122C-3(21). 

No. 6. That psychology and psychiatry are inexact medical and 
scientific disciplines which do not provide the Court with an 
accurate method or mechanism by which to predict the likelihood 
of futiire psychotic episodes^the more treatment which Michael 
Hayes receives for his mental illnesses, the more likely such 
treatment will reduce and diminish the probability of future 



23 



violence and dangerousness to others; that the best predictor of 
future behavior is past behavior, especially when such behavior 
was in the recent or relevant past; that the extremely violent 
behavior exhibited on July 17th, 1988, by Michael Hayes was 
conduct within the relevant and recent past which provides the 
Court with very important information in assessing Mr. Hayes' 
probable likelihood for futre violent behavior and for present 
and future dangerousness to others. 

No. 7. The Court finds by clear, cognet, and convincing evidence 
that the four homicides and five felonious assaults committed by 
Michael Hayes on July 17th, 1988, are episodes of dangerousness 
to others in the recent and relevant past which in combination 
with his past and present mental condition, his multiple mental 
illnesses, and his conduct since July 17, 1988 lead the Court to 
find that there is a reasonable probability that Michael Hayes' 
seriously violent conduct will be repeated and that he will be 
dangerous to others in the future. The Court finds that Michael 
Hayes is at far greater risk for future serious violence than the 
average person and that he is at a much greater risk for future 
violence than the average person as well as the average person 
who has a mental illness. 

No. 8. The Court specifically finds by clear, cogent, and 
convincing evidence that Michael Hayes is presently dangerous 
to others as defined by G.S. 122C-3(ll)b and that he suffers from 
multiple mental illnesses as previously described by the Court 
and that confinement is necessary to ensure the safety of others 
and that confinement is necessary to alleviate or cure his mental 
illnesses. 



26 

Chairman Jacobs. Out colleague, Mr. Franks, is scheduled. 

Mr. BUNNING, May I inquire about your explanation on the bill? 
The benefits to the spouse and to the dependents would continue 
to flow but the SSDI benefit to the recipient, the criminally insane, 
the felon, would not? 

Chairman Jacobs. Yes. 

Mr. Running. I wanted to make sure we clarified that. 

Chairman Jacobs. Mr. Franks, thank you for your willingness to 
testify. Please proceed in your own manner. 

STATEMENT OF HON. BOB FRANKS, A REPRESENTATIVE IN 
CONGRESS FROM THE STATE OF NEW JERSEY 

Mr. Franks. Mr. Chairman, thank you very much for providing 
this the opportunity. 

Chairman Jacobs. Oh, Bob, would you hold on just 1 second. 

I guess there is a second member of the panel who should be, if 
you don't mind, seated next to you, Mr. Bissell, who is prosecutor, 
for the county of Somerset, Somerville, N.J. Is that you? 

Mr. Bissell. Yes, sir. 

Chairman Jacobs. Your name is over here and you are over 
here. 

Mr. Franks. We are new here, Mr. Chairman. 

Chairman Jacobs. Yes, sir. 

Mr. Franks. Mr. Chairman, having had the opportunity to listen 
both to Ms. Donnelly and Mr. Nicholson, I believe that the compel- 
ling case that both of them made and the horrible injustices and 
trauma that they have suffered underscore the need for your bill, 
and I commend you for hearing this matter and taking this time 
to educate the public as to what I perceive to be the misuse of pub- 
lic funds. 

My story, Mr. Chairman, relates to this issue and I guess it 
builds on it in one sense, and that is that these payments to an 
individual in my district over an incident back on January 5, 1993. 
On that date, 27-year-old Herbert Olsson, escaped the Marlboro 
State Psychiatric Hospital, where he had been sentenced after at- 
tempting to kill his parents by repeatedly stabbing them with a 
knife. He had been sentenced to Marlboro State Psychiatric be- 
cause he, in fact, had been found not guilty by reason of insanity. 

He was able to escape Marlboro State Hospital and what assisted 
him substantially in his ability to elude law enforcement authori- 
ties for a week, because of over $7,000 in Social Security checks 
that he took out of the hospital with him. With that money, he 
rented a hotel room in New York City, something that many of my 
constituents probably would like to do for a weekend but simply 
cannot afford^ it. Mr. Olsson, the recipient of our largess, utilized 
Social Security moneys to rent a hotel room and elude authorities. 

So I guess it goes to further the case that whether or not these 
people should unjustly enrich themselves with creature comforts, 
as Mr. Nicholson indicated, these funds can actually be used to as- 
sist in an escape, and it outraged my constituents, many of whom 
are Social Security recipients and law-abiding citizens. 

It just seems to me to break the social contract that we created 
when we formed Social Security. The needs of these individuals 
who have committed these heinous acts, their needs for food for 



27 

shelter and for clothing are taken care of by the government. They 
don't need this money in this setting. It is unconscionable, in my 
judgement, that they continue to receive these moneys, which is why 
I wanted to come forward and relate to vou, Mr. Chairman, my 
story, and underscore the need for your bill. 

I nave substantially similar l^islation, H.R. 2161. I was moti- 
vated merely by having heard about the incident in my district. I 
am delighted that Nick Bissell, who is our Somerset County pros- 
ecutor, who is very familiar with this issue, has traveled to Wash- 
ington today to provide some insights to the committee. 

iThe prepared statement follows:] 



29 

Chairman Jacobs. Mr. Bissell. 

STATEMENT OF NICHOLAS L. BISSELL, JR., PROSECUTOR, 
COUNTY OF SOMERSET, SOMERVILLE, N.J. 

Mr. Bissell. Thank you, Mr. Chairman and members of the com- 
mittee. 

I appear today to testify in support of H.R. 979, which I under- 
stand will expand the restriction on the payment of Social Security 
payments to prisoners under current law to include individuals 
who are confined as the result of a verdict of not guilty by reason 
of insanity. 

I believe that the subject legislation is both timely and necessary. 
I would like to give the committee the benefits of the history of a 
Somerset County case, which is evidence of the need for this legis- 
lation. 

In March of 1991, Herbert Olsson attempted to murder both of 
his parents by inflicting upon them multiple stab wounds. The in- 
vestigation revealed that Mr. Olsson had certain fantasies and idol- 
izations about another young man in Somerset County who had 
murdered both his parents. The investigation and the subsequent 
medical examinations of Mr. Olsson, revealed that he had a history 
of schizophrenia and polysubstance abuse and while attempting to 
murder his parents he was delusional. 

In December of 1991, after extensive medical evaluations, a supe- 
rior court judge in Somerset County found Mr. Olsson not guilty by 
reason of insanity. In accordance with New Jersey law, Mr. Olsson 
was transferred to the Marlboro State Hospital for confinement and 
treatment. In June 1992, Mr. Olsson received a Social Security dis- 
ability check in the amount of $8,646, representing retroactive pay- 
ments, together with monthly payments of $678. 

According to hospital records, Mr. Olsson's treatment was pro- 
gressing well and he had obtained ground privileges which allowed 
nim to move freely on the hospital grounds. 

On January 5, 1993, Mr. Olsson left the grounds of the hospital 
without approval. A subsequent investigation which was conducted 
by the Somerset Countv Prosecutor's Office, Monmouth County 
Prosecutor's Office and the Human Services Police Department, re- 
vealed Mr. Olsson was able to convince a former patient at the hos- 
pital, who was a friend, to pick him up and take him to New York 
City. 

In New York City, Mr. Olsson was able to buv and use narcotics 
until his apprehension on January 10, 1993, by members of the 
Somerset County Prosecutor's Office and the New York Citv Police 
Department. The investigation revealed that the monev tnat Mr. 
Olsson had received by way of Social Security benefits allowed him 
to entice the former patient and friend and another person to aid 
in his escape and transport him to New York City. These same 
funds enabled Mr. Olsson to purchase substantial quantities of nar- 
cotics for himself and his accomplices to be used during the 5 days 
of his escape. 

It is our feeling without the availabilitv of that money, Mr. 
Olsson would not nave been successful in leaving the hospital or 
enticing others to assist him. 



75-498 0-94-3 



30 

Mr. 01s son was apprehended without incident or injury to any- 
one else. However, his escape and the ensuing investigation and 
apprehension caused by his being at large came at a significant 
cost to the public. There was active involvement of two prosecutors* 
offices in attempting to locate Mr. Olsson, around the clock police 
protection assigned to his parents who were the victims of his 
crime, and there was a general alarm and fear throughout the 
neighborhood where his parents resided. 

The proposed legislation would be extremely beneficial in elimi- 
nating or severely limiting the potential for people like Mr. Olsson 
to escape from mental institutions. 

Grenerally, as patients such as Mr. Olsson proceed in their treat- 
ment in therapy, they are accorded certain privileges and freedoms 
which always present a risk for escape. However, without money, 
the possibility of these people being successful in an escape or in 
being able to remain at large for extended periods of time or being 
successful in obtaining narcotics or other contraband which could 
lead to their injuring innocent citizens is much reduced or elimi- 
nated. 

In addition, individuals such as Mr. Olsson are in the custody 
and care of the State which has institutionalized them. Other than 
the fact that they are not serving fixed sentences and are to receive 
treatment as opposed to merely oeing incarcerated, they are really 
in no different a position than other convicted felons since their 
housing, food and other necessities are being provided by the State. 

If the purpose of this disability benefit is to ensure people who 
csmnot provide for themselves are not without food and shelter, 
there is no reason to provide such benefits to people such as Mr. 
Olsson whose daily necessities are being provided by the State. 

Therefore, I would urge the subcommittee favorably to consider 
H.R. 979 since the legislation would address a serious problem con- 
fronting law enforcement authorities in these types of cases. Thank 
you. 

Chairman Jacobs. Thank you, Mr. Bissell. 

Mr. BUNNING. No questions. 

Chairman Jacobs. I should say that the earlier legislation we 
passed more than a decade ago does speak of prison and a series 
of descriptions of penal discussions but it also has the term "and 
other correctional facilities," and there is enough ambiguity there. 
We think it has to be cleared up, and it is just one of those things 
where the failure of language, I guess, did not quite achieve the 
purpose that all of us haa in mind at the time. 

So, Mr. Franks, I think it is commendable that you thought of 
the problem on your own hook and offered the legislation, and if 
the legislation finds favor in the subcommittee and the full commit- 
tee it would be my hope that we might be able to include it in an- 
ticipated legislation on Social Security regarding the so-called 
Nannygate problem. We will see. 

Mr. Franks. Good news, Mr. Chairman. 

Chairman Jacobs. Cross your fingers and pray they vote for your 
testimony. Very useful. 

We will now hear from the Acting Commissioner of Social Secu- 
rity, Larry Thompson, and you are most welcome. You have been 
here many times but not in the cat bird seat, I believe. Mr. Thomp- 



31 

son, I apolopze. I don't have a beverage and a meal for you, but 
you cannot just join the church and sing in the choir the first day. 

Mr. Thompson. Thank you, Mr. Chairman. 

Chairman Jacobs. That is inside, folks. 

STATEMENT OF LAWttENCE H. THOMPSON, ACTING 
COMMISSIONER OF SOCIAL SECURITY 

Mr. Thompson. I appreciate the opportunity to appear before you 
today to discuss this question of suspending the benefits for per- 
sons who are confined to public institutions after being found not 
guilty of a felony by reason of insanity. 

I welcome the opportunity also to share our views on H.R. 979, 
to raise some issues of concern with the legislation, and to offer to 
work with you to perfect the bill to ensure, to the extent possible, 
your intent is fully achieved. 

Mr. Chairman, I have a fiill written statement that discusses the 
issue at length and answers the questions that you posed in your 
letter of September 14. I would like to submit tnat for the record. 

Chairman Jacobs. Without objection. 

Mr. Thompson. Before I summarize SSA's implementation of the 
current law, which suspends benefits for prisoners incarcerated for 
a felony conviction, and discuss our concerns about H.R. 979, I 
would like to take a moment to say a word about the witnesses and 
the stories that have preceded me. 

On behalf of the agency, I want to share with them our deep feel- 
ings for the pain they have suffered. No reasonable person could 
fan to understand their strong opinions on the issues we are dis- 
cussing today. They deserve to be commended for coming here 
today and for seeking to build better public policy as a product of 
their own traumatic experiences. 

In order to build better public policy, it would be helpful to first 
discuss SSA's enforcement of the statutes requiring the suspension 
of Social Security benefits to beneficiaries wno are incarcerated as 
a result of felony convictions. Congress' intent in fashioning the 
benefit suspension laws in 1980 and 1983 is quite clear. Social Se- 
curity benefits are intended to provide a source of income for per- 
sons who are retired, who cannot earn wages because of a disabil- 
ity, or who are entitled to survivor benefits. 

Congress, when they passed the benefit suspension laws, be- 
lieved that individuals who reside in prisons at public expense have 
no need for the financial benefits Social Security provides. There 
are approximately 15,000 beneficiaries who are in oenefit suspen- 
sion status because they are incarcerated felons. Many people con- 
sider H.R. 979 to be a logical extension of this law. If, after all, we 
are not paying benefits to persons who are confined to penal insti- 
tutions after being convicted for felonies, why should we provide 
benefits to those who are confined to mental institutions after 
being found not guilty of a felony by reason of insanity? 

I certainly share your concern about the payment of Social Secu- 
rity benefits to persons who commit serious crimes and are con- 
fined to mental institutions. However, H.R. 979 as drafted does 
raise some issues on which we would be glad to work with you to 
address. The bill in some cases would suspend benefits of people 
whom most Americans would believe should continue to receive 



32 

them. At the same time, it might allow benefits to be paid to others 
whom most Americans believe should not receive them. 

For example, what may be a felony in one jurisdiction may be a 
misdemeanor or not classified as a crime in another jurisdiction. 
We don't believe Congress intends to suspend benefits for acts 
many people would regard simply as mentally ill rather than crimi- 
nal. On the other hand, some criminal cases often involve unspeak- 
able crimes and the accused is determined to be incompetent to 
stand trial because he or she is unable to understand the court pro- 
ceedings involved. Usually these people are placed in a public insti- 
tution and there is no trial. In such cases, H.R. 979 would not 
apply and Social Security benefits would not be suspended. 

We also need to take into consideration the fact that some States 
have eliminated the not guilty by reason of insanity verdict and 
provided for an alternative finding. Maryland, for example, recog- 
nizes a finding of guilty but not criminally responsible, and at least 
10 other States, including Indiana, provide for a guilty but men- 
tally ill finding. In these States, defendants are being confined to 
mental institutions after receiving guilty verdicts. I believe most 
people would find these verdicts equivalent to a verdict of not 
guilty by reason of insanity. 

We need to make sure H.R. 979 covers these cases because it 
specifies now that the benefits will be suspended upon a finding of 
not guilty by reason of insanity. Because of the differences in the 
way the verdicts are worded, the bill may not have the same ef- 
fect — the effect that Congress intends in each State. 

In conclusion, Mr. Chairman, this legislation does address legiti- 
mate concerns about paying Social Security benefits to persons who 
have committed crimes that have resulted in their confinement to 
mental institutions and we would like to work with you to ensure 
that the bill, to the extent possible, fulfills the congressional intent 
and does not produce any undesirable results. 

I would be pleased to answer any questions. 

Chairman Jacobs. Thank you, Mr. Thompson. 

[The prepared statement and attachment follow:] 



33 



TESTIMONY OF HON. LAWRENCE H. THOMPSON, ACTING COMMISSIONER 
SOCIAL SECURITY ADMINISTRATION 



Mr. Chairman and Members of the Subcommittee: 

I appreciate the opportunity to appear before you today to 
discuss H.R. 979, the bill which you introduced to provide for 
the suspension of Social Security benefits in the case of persons 
found not guilty of a felony by reason of insanity and confined 
to public institutions. Many people consider this bill to be a 
logical extension of current law, which provides for the 
suspension of benefits of persons confined to penal institutions 
as a result of felony convictions. 

Before I summarize our implementation of current law, which 
suspends benefits for prisoners incarcerated for felony 
convictions, and discuss our concerns about H.R. 979, I would 
like to take a moment to say a word about the witnesses who 
preceded me. Speaking on behalf of the Agency, I want to share 
with the victims (and their families) of crimes committed by 
those later found not guilty by reason of insanity, our sympathy 
for the pain they have suffered. No reasonable person could fail 
to understand their strong opinions on the issues we are 
discussing today. They deserve to be commended for coming here 
today and for seeking to build better public policy as a product 
of their own traumatic experiences. 

Prisoner Suspensions 

In 1980, the Social Security Act was amended to require the 
suspension of Social Security disability benefits for any month 
in which a beneficiary is incarcerated based on a felony 
conviction. The law contains an exception for beneficiaries 
participating in court -approved rehabilitation programs which 
meet specific statutory requirements. 

In 1983, the prisoner suspension provisions were extended to 
Social Security retirement and survivor benefits based on similar 
considerations . 

Legislative history clearly indicates that Congress believed 
that the unrestricted payment of retirement, survivor, and 
disability benefits to convicted prisoners- -who are being 
maintained at public expense anyway- -was inappropriate and did 
not serve the basic purpose of the Social Security program. The 
disability program is intended to provide a source of income for 
people whose earnings stop due to disability, not to individuals 
who are unable to work due to incarceration for a felony. 

SSA Experience With Prisoner Suspensions 

In your letter of September 14, 1993, you asked three 
specific questions about implementation of the current prisoner's 
provision. I will summarize that process now and have appended 
to this statement complete responses to your questions. 



' 34 



Approximately 15,000 beneficiaries have their benefits 
suspended because they are incarcerated felons. SSA relies 
primarily on reports from the States in order to administer the 
prisoner suspension provisions. Under agreements negotiated with 
the States, the States furnish us with the names and Social 
Security numbers of all prisoners, and indicate whether 
conviction was for a felony offense. Based on this information, 
we suspend benefits if appropriate. We also receive reports 
about prisoners from third party sources, which need to be 
verified before we take any action on them, and occasionally from 
prisoners themselves. We rely on self reporting to reinstate 
benefits for prisoners upon release from incarceration. 

Suspension for Not Guilty bv Reason of Insanity 

As I have mentioned, I share your concern about the 
continuing payment of Social Security benefits to persons who 
commit serious crimes but are found not guilty by reason of 
insanity. However, I think we need to consider carefully 
certain difficult issues which the current bill raises. We would 
be glad to work with you to explore these issues and reach an 
acceptable resolution of them. Put simply, we need to be sure 
that the bill would not suspend the benefits of people who most 
would think ought to receive them, or that it would not allow 
benefits to be paid to people who most would think should not 
receive them. 

It would be reasonable to argue that an individual who 
commits a brutal crime and who is sent to a State mental hospital 
after being found not guilty by reason of insanity should not 
receive benefits, especially in view of the prisoner suspension 
provision. However, the current bill might produce results in 
some not guilty by reason of insanity cases that many would 
consider to be somewhat arbitrary and capricious. For example, 
what may be a felony in one jurisdiction may be a misdemeanor in 
another, and in some jurisdictions may not be classified at all. 

On the other hand, as drafted, the bill may not reach 
everyone that most Americans think it should reach. In some 
criminal cases, at times involving the most abhorrent and 
outrageous crimes, the person accused of criminal conduct is 
determined to be incompetent to stand trial because he or she is 
unable to understand the court proceedings. Typically, such 
persons are placed in a public institution. Since there is no 
trial, there is no finding of not guilty by reason of insanity. 
Thus, H.R. 979 would not apply, and Social Security benefits 
would not be suspended. 

We understand that some State laws have eliminated the not 
cmiltv by reason of insanity defense and provide for an 
alternative finding. For example, Maryland recognizes a finding 
of "guilty but not criminally responsible" and at least ten other 



35 



states, including Indiana, provide for a "guilty, but mentally 
ill" finding. Because there was a finding of "guilty", the bill 
presumably would not result in suspension of benefits in such 
cases, despite the fact that many people would view this finding 
as equivalent to a not guilty by reason of insanity finding. 

Administrative Impact 

If H.R. 979 were enacted, we estimate that about 
1,500 people would have their Social Security benefits suspended 
and that program savings would amount to about $10 million per 
year. These estimates must be considered very approximate due 
to the lack of available information about people found not 
guilty by reason of insanity. 

To implement H.R. 979, we would make arrangements with the 
States, similar to the prisoner data reporting arrangements, to 
obtain reports of persons found not guilty by reason of insanity. 
The ease with which States can identify these cases will depend 
on how responsibilities are assigned in each State. For example, 
both the State court system and the State mental health system 
could be involved. I might mention that the negotiation process 
for the current agreements took about 3 years. 

Conclusion 

H.R. 979 would address legitimate concerns about paying 
Social Security benefits to persons who have committed heinous 
crimes. We need to consider carefully, however, whether the 
provisions of H.R. 979 can be modified to assure that the bill 
affects those people that most Americans would want to affect 
without, to the extent possible, affecting others. Mr. Chairman, 
we would be pleased to work with you to perfect the bill to avoid 
any undesirable results. 



How does the Social Security Administration enforce the 
existing ban on benefit payments to incarcerated felons? 
Please describe the agency's enforcement mechanisms at the 
Federal, State, and local levels. 



We have negotiated agreements with the States under which 
they regularly provide us with the names, SSNs and dates of 
imprisonment of all prisoners, and whether conviction was 
for a felony. We also receive similar information on the 
basis of informal local arrangements with some Federal 
prisons. In some cases, prisoner data is reported by local 
jurisdictions, under agreements between us and the local 
jurisdictions . 

We also receive reports about prisoners from third parties. 
These reports are verified before we take any suspension 
action. 

We are working with the Federal Bureau of Prisons to set up 
an automated data-match system in order to get more complete 
and timely information on Federal prisoners. 



For how many prisoners is SSA currently withholding benefit 
payments? Please provide separate estimates for Federal, 
State, and local prisoners. In general, how has the number 
of prisoners in benefit suspense status changed over time? 



Currently, about 15,000 beneficiaries have their benefits 
suspended because they are incarcerated felons. 

Our information on prisoner beneficiaries cannot be broken 
down into Federal, State, or local prisoner categories. We 
do not collect such data because it is not a necessary part 
of administering the law. 

We do not have data on the growth over time in the number of 
prisoners whose benefits are suspended. 



37 



3. How does SSA assess the effectiveness of its enforcement 

mechanisms? For what portion of the universe of ineligible 
prisoners does SSA estimate that it has succeeded in ceasing 
benefits? 

o SSA assesses its effectiveness in enforcing the prisoner 
provisions in several ways : 

We continually monitor the effectiveness of reporting 
procedures through numerous contacts with Federal, 
State, and local reporting sources. We also provide 
assistance in improving reporting procedures. 

We periodically review data provided under the matching 
agreements with the States for indications of problems. 
We investigate inconsistent and incomplete data and 
offer guidance and assistance for preventing future 
problems . 

The Privacy Act, as amended, which provides specific 
requirements for matching agreements such as those 
between us and the States for enforcing the prisoner 
provision, mandates an annual cost/benefit analysis of 
effectiveness of the SSA-State agreements. 

o We are confident that we have suspended the benefits of the 
vast majority of prisoner beneficiaries, but we are 
continuing to work to improve reporting procedures. 



38 

Chairman BUNNING. Mr, Bunning. 

Mr. Running. I appreciate the met, Mr. Thompson, you are not 
the responsible party, but leaving the job of Commissioner vacant 
for a year certainly makes a great case for SSA as an independent 
agency. You ought to alert those in a position to act on this vacancy 
that the House shares the Senate's concern. 

Now I will get into the question. 

Mr. Thompson. I am pleased to say the President has nominated 
Dr. Shirley Chater and the President and Senator Moynihan are 
now working to schedule the hearings. 

Mr. Running. That is great. 

I understand the general provisions prohibiting payment to cer- 
tain felons have been on the books for about 10 years, yet you still 
do not have an agreement with the Federal Bureau of Prisons. Can 
you tell me why you don't? 

Mr. Thompson. We have been working with the Bureau of Pris- 
ons. We do have an arrangement with each of the prison facilities, 
with our local district offices, to get information about Federal pris- 
oners, so it is not as if we are not enforcing this provision with re- 
spect to the Federal prisons. But their record system is one in 
which they have had difficulty trying to fold things up so that they 
can supply us with a single record, monthly or quarterly, that 
would allow us to do this. 

Mr. Bunning. Single record telling you who has been convicted 
of a felony? 

Mr. Thompson. Yes. The way we have worked this out with most 
of the States is that they provide us with a periodic tape of the 
names and Social Security numbers and status of their new pris- 
oners and then we — 

Mr. Bunning. How hard would it be if it were done on a monthly 
or quarterly basis if you have agreements with these people? 

Mr. Thompson. It is not hard for us. 

Mr. Bunning. It is obviously hard for the Bureau of Prisons to 
get you the information; is that what you are telling me? 

Mr. Thompson. Yes, and I really am not able to give you a lot 
of details on what their problems are. We have been working with 
them. We have not gotten an agreement with them. We have 
worked on an alternative. 

Mr. Bunning. They are not compl3ang with the law is that what 
you are telling me. 

Mr. Thompson. It is not a question that they are not complying 
with the law. In fact, I am not sure how the law applies to them. 
The law gives us the authority to ask, and we have asked, and we 
are working with them to try to formalize an agreement. 

Mr. Bunning. I understand the benefits have been suspended for 
about 15,000 felons. 

Mr. Thompson. Fifteen thousand is our estimate. 

Mr. Bunning. In 1982, GAO estimated the universe at about 1 
percent of beneficiaries, or somewhat over 40,000 today. In other 
words, we have a discrepancy of about 25,000 people about whom 
the Bureau of Prisons has not notified you. Is that pretty factual? 

Mr. Thompson. I would not know where the GAO estimate came 
from. I would not know on what that was based. Our best estimate 
is about 15,000. 



39 

Mr. BuNNiNG. This is a 1992 estimate of those who should be 
covered? 

Mr. Thompson. That is our estimate of how many we are with- 
holding benefits fix)m. That would include Federal prisoners. 

Mr. BUNNING. In other words, you are only identifying 15,000 of 
the 40,000 potentially we should be withholding? 

Mr. Thompson. I would not admit to the estimate. There is a 
potential — 

Mr. Running. You have a disagreement with the GAO report? 

Mr. Thompson. I have not read the GAO report, and I don't 
know where they got their 40,000. 

Mr. BUNNING. Is it true you have agreements with everyone but 
the State of Florida? 

Mr. Thompson. Yes. 

Mr. Running. Why do you not have one with Florida since they 
seem to have the same Bureau of Prisons operating in Florida that 
operates in all other States. 

Mr. Thompson. My understanding is Florida has a set of con- 
cerns and, of course, in some sense you have to ask the State of 
Florida why they don't have an agreement with us. I can give you 
secondhand what I understand their concerns to be. They want us 
to indemnify them in case they supply us erroneous information, 
we cut off the benefit, and then the individual whose benefit was 
cut off erroneously decides to sue. 

Mr. Running. Either someone is a convicted felon or they are 
not. 

Mr. Thompson. Well, mistakes can be made in supplying data. 
I guess the fear is that somehow incorrect information gets sup- 
plied to Social Security and that Social Security acts on that and 
cuts off benefits. 

Mr. Bunning. What would you suggest, then, to the Social Secu- 
rity lawmakers, the ones on this committee, that would clean up 
the problem and make it easier to enforce the law that now is on 
the books? 

Mr. Thompson. If you want to help us enforce the law that is on 
the books, you would have to find some way to require States to 
send us these reports monthly. Most States now give them to us 
quarterly. You could, if you wanted tO;— this is a judgment you will 
have to make — ^find some way that said States will be denied some 
benefits that flow firom Washington unless they contribute — unless 
they supply SSA with data on a timely basis. 

Mr. Running. Well, you are speakmg about the Federal Bureau 
of Prisons, then. 

Mr. Thompson. And the States. 

Mr. Bunning. What I am saying is that we could have some re- 
course with the Federal Bureau and also enforce it with the then 
controlled State-convicted felons? 

Mr. Thompson. Yes. 

Mr. Bunning. And you are suggesting that we have a stick and 
a carrot? 

Mr. Thompson. No. You asked me how you could do that and I 
said that this is a judgment that you have to make — whether, in 
the context of intergovernmental relations, the Federal Govern- 
ment should use that stick. 



40 

It has plenty of sticks available and it has to select when to use 
them and when not to. I have to leave it to you to decide whether 
this is a case where it is an important enough issue that you want 
to use that stick. 

Mr. BUNNING. Thank you. 

Chairman Jacobs. Mr, Jefferson. 

Mr. Jefferson. Mr. Chairman, thank you for recognizing me. 

I apologize if I cover ground that has already been covered, as 
much of you just saw, I arrived at the hearing moments ago. It is 
my impression from the questioning of Representative Bunning, 
the bill that is before us that we are discussing here and have tes- 
timony with respect to would apply in both Federal and State insti- 
tutions. 

I want to ask, and I know now there are laws on the books that 
suspend benefits for disabled felons and for persons convicted of a 
felony in a general sense. Do you see any distinction between the 
application of a suspension law in those two instances and the ap- 
plication of the law in the instance of the criminally insane? 

Are there differences in their needs for support? Is there any rea- 
son why we ought to apply the law differently in the cases of the 
two that the law now applies to and these inoividuals we are now 
talking about? 

Csm we lump them all together and without distinction or should 
we make some distinction in the case of the criminally insane? 

Mr. Thompson. I think that there is a large class of beneficiaries 
who are found not guilW by reason of insanity, whom most people 
would look at and say that they look just like the people who were 
found guilty and are in prison, and we can find no reason not to 
treat them exactly the same way as the ones who are found guilty 
and have gone to prison and have their benefits withheld. 

So I am saying to you that there is a large number of people who 
would clearly fit in that category. I would think that the ones we 
have heard about today would clearly fit in that category. 

There is a concern that we be careful, that we do not sweep ev- 
erybody into the category. Remember, if you are committed to a 
mental institution, you may be committed for something which is 
not so heinous as the examples we have heard. I mean, attempting 
to commit suicide remains a felony in some States. I don't know if 
somebody has been prosecuted under it recently, but it is conceiv- 
able that somebody could go to a mental institution for attempting 
to commit suicide and be caught in this. 

Now, we need to think this through — there is no piece of legisla- 
tion that can ever perfectly define the class and it may be that that 
is just the risk we have to take. You need to think that through. 

There is also yet a third category of people who, as I understand 
it, will not be caught by this legislation, will not fall under its pro- 
visions. I don't know whether there is a way of handling it — we 
may want to think about that too — that is, tne people who never 
go to trial. 

I mean, they are judged incompetent to stand trial and they are 
confined to a mental institution. They could have committed the 
exact same offense. 
Chairman Jacobs. Would the gentleman yield? 

Mr. Jefferson. Yes. 



41 

Chairman Jacobs. We have anticipated that and as author of the 
bill, I plan to offer that as an amendment as well as some of the 
other caveats the gentleman has raised. 

They have occurred to us. This is the first draft so we intend to 
do what we can to cover those ambig^ties. 

Mr. Thompson. Good. 

Chairman Jacobs. Thank the gentleman for yielding. 

Mr. Jefferson. Thank you. 

That clears up part of what my next question would have been 
so let me change the subject here. 

In the written testimony of the attorney for the National Alliance 
for the Mentally 111, it is contended that in some cases the State 
assumes the role of representative to receive pay of individuals who 
are in a status of not guilW by reason of insanity. 

Are you familiar with this practice and in such instances is the 
State actually allowed to retain part of the fund for the residential 
and treatment costs? 

Mr. Thompson. That could happen. The State would be the rep- 
resentative payee. Some of these mental institutions, as well as the 
prisons, have policies where they charge the prisoner or the person 
that has been incarcerated. 

We don't know that their collection rate is very hi^h, nonethe- 
less, they charge them. There is no reason to believe, m the situa- 
tion you posit, that this person could be a representative payee and 
then pay to support or help support the cost of maintaining the in- 
mate. 

Mr. Jefferson. Well, 

Mr. Thompson. In that situation, obviously the initial impact is 
on the State that would lose some of the money that is being used 
to offset the cost of incarceration. I don't know that that is 

Mr. Jefferson. Is there a need to provide for some transition if 
the States are relying on it in that way? 

Mr. Thompson. We estimate that tne provision will cover about 
1,500 people and save about $10 million. I am not sure that the 
number of States that are representative payees and the number 
of cases is going to be high enough that we really need to think 
about a long transition period. 

Mr. Jefferson. Last thing what about the differences between 
State institutions? You can lump them into one category if you 
wanted to and a lot of Federal institutions are very different from 
place to place with respect to the support they give and the provi- 
sions that are made available to the prisoners. 

Should a law take into account those differences from State to 
State? 

Mr. Thompson. I think it would be pretty hard to do that. I 
think you really want to establish the principle here that, as a gen- 
eral proposition, this is the way title II of the Social Security Act 
works — people in this situation should be treated this way and it 
doesn't really allow for a fine tuning. 

That is really the role of other programs that have been created. 

Mr. Jefferson. I don't have any questions. 

Chairman Jacobs. Well, I think that is sufficient. We appreciate 
your testimony, Mr. Thompson, and your stewardship in the inter- 
regnum. 



42 

One more time, if you testify, you may come in under the King 
rule we passed. 

Our final — well, it is a group of witnesses, the final panel. Con- 
gressional Research Service, Elizabeth Bazan; Karl Knudsen, attor- 
ney, Raleigh, N.C., and National Alliance for the Mentally 111, Ron 
Honberg, legal counsel. 

Ms. Bazan, you get to go first. 

STATEMENT OF ELIZABETH B. BAZAN, LEGISLATIVE ATTOR- 
NEY, AMERICAN LAW DIVISION, CONGRESSIONAL RE- 
SEARCH SERVICE, LIBRARY OF CONGRESS 

Ms. Bazan. Thank you, Mr. Chairman, and members of the sub- 
committee. 

Just to identify myself, I am a legislative attorney with the 
American Law Division at the Congressional Research Service, and 
in keeping with the Congressional Research Service's role, I will 
not be advocating a petition for or against the bill, but rather I will 
be providing an objective examination of possible constitutional is- 
sues and pertinent legal principles. 

I am honored to be here to address these issues. I have a brief 
opening statement and then I would be happy to answer any ques- 
tions that the subcommittee may have. 

There appear to be four possible theories upon which a constitu- 
tional question might be raised with regard to H.R. 979. These in- 
clude due process, equal protection, ex post facto and bill of attain- 
der gprounds. 

An examination of the existing case law in each of these fields 
suggests that the measure here at issue would be likely to with- 
stand constitutional challenges on Einy of these grounds. 

Two possible theories might be raised to support a constitutional 
question arising out of due process protections. First, one might 
question whether the proposed change would effect a taking with- 
out due process of law in violation of the Fifth Amendment. 

The underlying premise here appears to be that the beneficiaries 
would have a vested property right in their Social Security bene- 
fits. This argument has been rejected by the Supreme Court in 
Flemming v. Nestor. The court noted the need for flexibility in the 
Social Security system to meet changing conditions, which is re- 
flected in the Congress' express reservation to itself in the law of 
the right to alter, amend or repeal any provision of the act. 

The Nestor court emphasized that the Social Security program 
was noncontractual and that eligibility was dependent upon the 
earnings record of the primary beneficiary rather than upon con- 
tributions to the program by payment of taxes. The system was 
characterized as a form of social insurance enacted pursuant to 
Congress' power to spend money in aid of the general welfare. 

A second due process issue is whether the operative statutory 
provision would amount to an arbitrary governmental classification 
unrelated to any legitimate governmental goal. 

Under the rational basis test articulated by the Nestor court, a 
statute is unconstitutional if it is patently arbitrary and utterly 
lacking in a rational justification. In subsequent cases, statutory 
classifications which had the effect of denying or reducing Social 



43 

Security benefits to a specific group have been upheld where a ra- 
tional basis may be hypothesized to support the classification. 

The postulated rationale need not in fact form the basis for the 
legislation; and, in addition, so long as the classification is sup- 
ported by a rational basis, the court has deemed it irrelevant that 
the classification did not include all that should logically or might 
logically be included within that classification. 

The relative need of the recipient is one of the considerations 
which mav be taken into account in determining the rationality of 
a particular classification and a classification concentrating the 
limited fiinds available where the needs are likely to be the great- 
est has also been found to be rationally based. 

Similarly, equal protection challenges to Social Security classi- 
fications have been rejected where the classification is rationally 
based and fi*ee fi'om invidious discrimination. Those Social Security 
classifications which have been deemed constitutionally unsound 
under due process or equal protection principles have generally in- 
volved genaer or illegitimacy^. In these sorts of cases the court has 
applied a higher standard of review and has imposed a greater bur- 
den upon the government to demonstrate that the classification 
serves important governmental objectives. 

Turning to H.R. 979, it appears that a due process challenge to 
the measure would be likely to fail. A court would be unlikely to 
find that the affected beneficiaries have a vested property right in 
their benefits, such that its deprivation would effect a taking with- 
out due process of law, and, in addition, I think it unlikely that the 
court would find that such a change in the Social Security laws 
would be arbitrary or unrelated to any legitimate governmental 
purpose. 

I think the proposed changes could be rationally justified on sev- 
eral related grounds. The first of these is that the provision of So- 
cial Security Den efits to those already housed and cared for at gov- 
ernmental expense in an institution following the finding of not 
guilty by reason of insaniW would be a duplicative drain on public 
coffers where the needs of the individual were already being met. 

A second related ground would be that the suspension of pay- 
ment of Social Security benefits during the period of institutional- 
ization after a person is found not guilty of a felony by reason of 
insanity maximizes the opportunity for the limitea financial re- 
sources available under the Social Security program to be expended 
to those of greatest need. 

In addition, the possibility of reinstatement of benefits if the in- 
stitutionalized person is actively and satisfactorily participating in 
a court approved rehabilitation program and has met the statutory 
criteria for such reinstatement might be seen as encouraging reha- 
bilitation. 

In response to an equal protection challenge, the proposed statu- 
tory language would seem likely to pass constitutional muster 
based upon a two-pronged cmalysis. The precedents in this area 
suggest that the proposed change would be found rationally related 
to legitimate governmental interests and not based on invidious 
discrimination, and I think the rational bases which would be used 
to overcome a due process challenge could be equally applicable to 
a challenge under the equal protection provisions. 



44 

One might also look at H.R. 979 under ex post facto or bill of at- 
tainder provisions of the Constitution and consider whether it 
might be challenged on those bases. 

"Die ex post facto prohibition applies onlv to penal or criminal 
statutes or to laws which, although nominally civil, make criminal 
an act which was innocent when done or which inflict greater pun- 
ishment than the law annexed to the crime at the time it was com- 
mitted. 

This does not appear to be a criminal or penal statute and it does 
not criminalize previously innocent behavior. 

The question then becomes; Would it impose an additional pun- 
ishment upon an individual, following a judgment in a criminal 
case, which was not already available at the time of the commis- 
sion of an offense? 

Certainly the denial of noncontractual benefits to a person insti- 
tutionalized at governmental expense under these circumstances is 
not something that has traditionally been considered as a penal 
sanction, such as fine or imprisonment or death. 

Rather, the deprivation seems likely to be regarded as more akin 
to a regulation designed to avoid duplication of payment from pub- 
lic coffers where the needs of the institutionalized person to hous- 
ing, food and medical care are already being met. 

A final constitutional issue is that arising under the bill of at- 
tainder provisions. A bill of attainder is a legislative act, no matter 
what its form, that applies either to named individuals or to easily 
ascertainable members of a group in such a way as to inflict pun- 
ishment upon them without judicial trial. 

There is a three-part test that has been articulated by the Su- 
preme Court in its decision in Nixon v. Administrator of General 
Services, and those three parts which are articulated there are: 
Whether the law imposed a punishment traditionally judged to be 
prohibited by the clause; whether the law, viewed functionally in 
view of the type and severity of the burden imposed, could ration- 
ally be said to further nonpunitive legislative purposes; and wheth- 
er the law has a legislative record envincing a Congressional intent 
to punish. 

Applying those principles to the proposal at hand, one could 
argue that the measure would be a legislative act which would be 
applicable to an easily ascertainable group. However, it does not 
impose a punishment traditionally prohibited by the clause; and 
avoiding duplication of governmental expenditures where an indi- 
vidual's needs are being met and maximizing the limited financial 
resources available to the program for use wr those most in need 
would seem likely to be regarded as furthering nonpunitive legisla- 
tive purposes. 

In addition, the possibility of reinstatement of the institutional- 
ized person's benefits if he or she is actively and satisfactorily par- 
ticipating in a court approved rehabilitation progpram where the 
secretary has found an expectation of substantial gainful employ- 
ment upon release and within a reasonable time could be seen as 
furthering another nonpunitive legislative purpose of encouraging 
rehabilitation. 

An analysis of the third prong of the Nixon Court's test to the 
proposal now before the subcommittee would be, of necessity, spec- 



45 

ulative since its legislative history is still evolving, but it might be 
noted that ex post facto and bill of attainder challenges to suspen- 
sion of prisoners' disability benefits have been rejected in a number 
of appellate and District Court opinions. 

To summarize, it appears likely that H.R. 979 would be found 
constitutionally sufficient in the face of challenges under any of 
these constitutional principles. 

Chairman Jacobs. Thank you, Ms. Bazan. 

[The prepared statement and attachment follow:! 



75-498 0-94-4 



46 



Testimony of Elizabeth B. Bazan 

on H.R. 979 

before the Social Security Subcommittee 

of the House Committee on Ways and Means 



Mr. Chairman and Members of the Subcommittee, my name is Elizabeth 
Bazan. I am a Legislative Attorney with the American Law Division of the 
Congressional Research Service. In keeping with the Congressional Research 
Service's role, I will not be advocating a position for or against the bill, but 
rather I will be providing an objective examination of possible constitutional 
issues and pertinent legal principles. I am honored to be here today to address 
possible constitutional issues which might be raised regarding H.R. 979. I have 
a brief opening statement, and then 1 would he happy to answer any questions 
that the Subcommittee may have. It is my understanding that the Members of 
the Subcommittee have copies of the memorandum on these issues that I 
prepared for the Subcommittee earlier this year. It explores, in greater depth, 
the issues and operative legal principles that I will touch upon today. My 
remarks will therefore simply highlight some of the salient points. 

There appear to be four possible theories upon which a constitutional 
question might be raised with regard to H.R. 979. These include due process, 
equal protection, ex post facto, and bill of attainder grounds. An examination 
of the existing case law in these fields suggests that the measure here at issue 
would be likely to pass constitutional muster in the face of a challenge on any 
of these grounds. 

Two possible theories might be raised to support a constitutional question 
arising out of due process protections. First, one might question whether the 
proposed change would effect a taking without due process of law in violation 
of the Fifth Amendment. The underlying premise of such an argument would 
seem to be that the beneficiaries have a vested property right in their Social 
Security benefits. This argument has been rejected by the Supreme Court in 
Flemming v. Nestor, 363 U.S. 603 (1960). The Court noted the need for 
fiexibility in the Social Security System to meet changing conditions, which is 
reflected in Congress' express reservation to itself in the law"[t]he right to alter, 
amend or repeal any provision" of the Act. 42 IJ.S.C. § 1304. The Nestor Court 
emphasized that the Social Security program was non-contractual, eligibility 
being dependent upon the earnings record of the primary beneficiary rather 
than upon contributions to the program by payment of taxes. The system was 
characterized as "'a form of social insurance, enacted pursuant to Congress* 
power to 'spend money in aid of the 'general welfare,' Helvering v. Davis, [301 
U.S. 619], at 640, " 

A second due process issue is whether the operative statutory provision 
amounted to an arbitrary governmental classification, unrelated to any 
legitimate governmental goal. Under the rational basis test articulated by the 
Nestor Court, a statute is unconstitutional if it is "patently arbitrary" and 
"utterly lacking in rational justification." In subsequent cases, statutory 
classifications which have the effect of denying or reducing social security 
benefits to a specific group have been upheld where a rational basis may be 
hypothesized to support the classification. Weinberger v. Salp., 422 U.S. 749 
(1977); Mathews v. DeCastro, 429 U.S. 181 (1976). The postulated rationale 
need not, in fact, form the basis for the legislation. In addition, so long as the 
classification is supported by a rational basis, the Court has deemed it irrelevant 
that the classification did not include all that should logically be included within 
that classification. Califano v. Jobst, 434 U.S. 47 (1977). The relative need of 
the recipient is one of the considerations which may be taken into account in 
determining the rationality of a particular classification. Mathews v. DeCastro, 
supra; Califano u. Jobst, supra. A classification concentrating the limited funds 
available where the need is likely to be the greatest has also been found to be 
rationally based. Bowen u. Owens, 476 U.S. 340, 350 (1986). 



47 



Similarly, equal protection chnllenges to social security classifications have 
been rejected where the classification is "'rationally based and free from 
invidious discrimination.'" Richardson u. Belcher, 404 U.S. 78 (1971), 
reaffirming, Flemming v. Nestor, supra. Those Social Security classifications 
which have been deemed constitutionally unsound under due process and equal 
protection standards have been based upon either gender, see, e.g., Califano v. 
Goldfarb, 430 U.S. 199 (1977); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975), or 
illegitimacy, Jimenez v. Weinberger, 417 U.S. 628 (1974); but see, Mathews v. 
Lucas, 427 U.S. 495 (1976). In these sorts of cases, the Court has applied a 
higher standard of review, and has imposed a greater burden upon the 
government to demonstrate that the classification serves important 
governmental objectives. 

Turning to H.R. 979, it appears that a due process challenge to the measure 
would fail. A court would be unlikely to find that the affected beneficiaries have 
a vested property interest in their benefits, such that its deprivation would 
constitute a taking without due process of law. In addition, it appears unlikely 
that a court would find such a change in the Social Security laws arbitrary and 
unrelated to any legitimate governmental purpose. The proposed changes could 
be found rationally justified on several related grounds. The first of these is 
that the provision of social security benefits to those already housed and cared 
for at governmental expense in an institution following a finding of not guilty 
by reason of insanity would put a duplicative drain on public coffers in a 
circumstance where the individual's needs were already being met. A second, 
related ground is that the suspension of payment of Social Security benefits 
during the period of institutionalization after a person is found not guilty of a 
felony by reason of insanity maximizes the opportunity for the limited financial 
resources available under the Social Security program to be expended for those 
in greatest need. In addition, the possibility of reinstatement of benefits where 
the institutionalized person is participating in an approved rehabilitation 
program also could be seen as encouraging rehabilitation. 

In response to an equal protection challenge, the proposed statutory 
language would seem likely to pass constitutional muster based upon a two- 
pronged analysis. The precedents in this area suggest that the proposed change 
in the law would be found rationally related to legitimate governmental interests 
and not based on invidious discrimination. This is not the type of classification 
which would traditionally require strict scrutiny. Instead, a rational basis test 
would be applied, and the same arguments which would seem to support a 
finding of rational basis under the due process analysis would also seem to 
obtain in the face of an equal protection analysis. 

One might argue that the fact that these same rationales might also 
support the deprivation of benefits to all individuals institutionalized at 
governmental expense would amount to disparate treatment of similarly situated 
beneficiaries giving rise to equal protection and due process questions. However, 
this argument has been rejected by the Court in Califano v. Jobst, supra. There 
the Court found irrelevant to its rational basis analysis the fact that the 
classification did not include all that logically should or might have been 
included in a classification. So long as a rational basis can be asserted to 
support the classification as drawn, that is sufficient under the Court's analysis. 
The court's review is deferential to congressional decisions regarding 
appropriate expenditure of money to improve the public welfare. Bowen v. 
Gilliard, 483 U.S. 587, 598 (1987). As the Court in Bowen v. Gilliard stated: 

This standard of review is premised on Congress' "plenary power to define 
the scope and the duration of entitlement to . . . benefits, and to increase, 
to decrease, or to terminate those benefits based on its appraisal of the 
relative importance of the recipients' needs and the resources available to 
fund the program." . . . 

Id. Equal protection and due process challenges to similar suspensions of social 
security benefits to imprisoned felons under 42 U.S.C. § 402(x) and disability 
benefits to prisoners under former 42 U.S.C. § 423(D(1) have been unsuccessful. 



48 



Another question which might arise would be whether the proposed change 
to the Social Security laws would violate the constitutional prohibition of ex post 
facto laws. This prohibition applies only to penal or criminal statutes or to laws 
which, although nominally civil, "[make] criminal an act which was innocent 
when done, or which [inflict] greater punishment than the law annexed to the 
crime when committed . . . ." Colder u. Bull, 3 Ball. (3 U.S.) 386, 393 (1798). 
This does not appear to be a penal or criminal statute. Since the H.R. 979 
proposal does not criminalize previously innocent behavior, the question would 
be whether it would impose an additional punishment upon an individual 
following a judgment in a criminal case which was not available at the time of 
the commission of the offense. Certainly, the denial of non-contractual benefits 
to a person institutionalized at governmental expense following a finding of not 
guilty by reason of insanity is not something which has traditionally been 
regarded as a penal sanction, such as a fine, imprisonment, or death. Rather, 
such a deprivation of Social Security benefits seems likely to be regarded as 
more akin to a regulation designed to avoid duplication of payment from public 
coffers (whether State or Federal) where the needs of the institutionalized 
person to housing, food, and medical care are already being met. The proposal 
does not appear to deprive the individual of future benefits should they cease 
to be institutionalized, nor does it deprive his or her dependents of their Social 
Security benefits. 

A final constitutional issue w^ich might arise is whether the proposed 
amendment would run afoul of the constitutional prohibition against bills of 
attainder. A bill of attainder is a legislative act "no matter what [its] form, that 
[applies] either to named individuals or to easily ascertainable members of a 
group in such a way as to infiict punishment on them without a judicial trial. 
. . ." United Stales v. Louett, 328 U.S. 303, 315 (1946). In the Supreme Court's 
decision in Nixon v. Administrator of General Services, 433 U.S. 425 (1977), a 
three part test was applied in determining whether a measure was a bill of 
attainder: Whether the law imposed a punishment traditionally judged to be 
prohibited by the clause; whether the law, viewed functionally in terms of the 
type and severity of burdens imposed, could rationally be said to further 
nonpunitive legislative purposes; and whether the law had a legislative record 
evincing a congressional intent to punish. 

Applying these principles to the proposal at hand, one could argue that the 
measure would be a legislative act which would apply to easily ascertainable 
members of a group. However, H.R. 979 does not impose a punishment 
traditionally prohibited by the clause. Avoiding duplication of governmental 
expenditures where an individual's needs are already being met at government 
expense, and maximizing the limited financial resources available to the program 
for use for those most in need would seem likely to be rationally regarded as 
furthering nonpunitive legislative purposes. In addition, the possibility of 
reinstatement of the institutionalized person's benefits when he or she is 
actively participating in an approved rehabilitation program with an expectation 
of substantial gainful activity upon release could be seen as furthering another 
nonpunitive legislative purpose of encouraging rehabilitation. An analysis of the 
application of the third prong of the Nixon Court's test to the proposal now 
before the Subcommittee would be, of necessity, speculative as its legislative 
history is still evolving. It might noted, however, that ex post facto and bill of 
attainder challenges to suspension of prisoners' disability benefits have been 
rejected in a number of appellate and district court opinions. See, e.g., Andujar 
u. Bowen, 802 F. 2d 404, 405 (11th Cir. 1986); Peeler u. Heckler, 781 F.2d 649 

(8th Cir. 1986); Jensen u. Heckler, 766 F.2d 383 (8th Cir.), cert, denied, U.S. 

, 106 S. Ct. 311 (1985); Hopper u. Secretary of Health & Human Services, 780 

F.2d 1021 (6th Cir. 1985), aflTg without opinion, 596 F. Supp. 689 (M.D. Tenn. 
1984), cert, denied, U.S. , 106 S. Ct. 1522 (1986). 

To summarize, it appears likely that H.R. 979 would be found 
constitutionally sufficient in the face of challenges under equal protection, due 
process, ex post facto or bill of attainder theories. Thank you. 



49 




CRS 



Congressiona] Research Service • The Library of Congress • Washington, DC. 20540-7000 

April 21, 1993 



TO : House Committee on Ways and Means 

Social Security Subcommittee 
Attention: Elaine Fultz 

FROM : American Law Division 

SUBJECT Examination ofPossible Constitutional Issues Re: H.R. 979 

This memorandum is submitted in response to your request for an 
examination of a number of possible constitutional issues which might be raised 
regarding H.R. 979. This measure would amend t'tle II of the Social Security 
Act, Section 202(x), 42 U.S.C. S 402(x), to read: 

Limitations on Payments to Prisoners o/uf Certain Other 
Inmates of Public Institutions 

(x)(l) Notwithstanding any other provision of this title, no monthly 
benefits shall be paid under this section or under section 223 to any 
individual for any month during which such individual is confined in 
a jail, prison, or other penal institution or correctional facility, 
pursuant to his conviction of an offense which constituted a felony 
under applicable law, or is confined in any public institution by a court 
order pursuant to a verdict' that the individual is not guilty of such 
an offense by reason of insanity (or by reason of a similar finding, such 
as a mental disease, a mental defect, or mental incompeteruxj unless 
such individual is actively and satisfactorily participating in a 
rehabilitation program which has been specifically approved for such 
individual by a court of law and, as determined by the Secretary, is 
expected to result in such individual being able to engage in 
substantial gainful activity upon release and within a reasonable time. 
(2) Benefits which would be payable to any individual (other than 
a confined individual to whom benefits are not payable by reason of 
paragraph (1),) shall be payable as though such confined individual 
were receiving such benefits under this section or section 223. 



' It might be noted in passing that the term "verdict" is generally defined as 
the formal decision or finding of a jury. If you wish to cover a situation in 
which the determination that a defendant is not guilty by reason of insanity is 
made by a court, you may vneh to consider whether you would wish to 
substitute "finding" for "verdict." 



50 



(3) Notwithstanding the provisions of section 552a of title 5, 
United States Code, or any other provision of Federal or State law, 
any agency of the United States Government or of any State (or 
political subdivision thereoO shall make available to the Secretary, 
upon written request, the name and social security account number of 
any individual confined as described in paragraph (1) if the jail, 
prison, penal institution, correctional facility, or other public institution 
to which such individual is so confined is under the jurisdiction of 
such agency and the Secretary requires such information to carry out 
the provisions of this section.^ 

The amendments would become effective as to benefits for months commencing 
90 days after the date of the bill's enactment into law. 

While a number of constitutional issues might be raised with respect to this 
proposal, none appear likely to support a successful challenge to the 
constitutional sufficiency of the measure. Constitutional questions might arise 
on due process, equal protection, ex post facto and bill of attainder grounds. 
Each of these will be considered in the following discussion. 

One such question might be whether such a change in the law, by 
potentially depriving some possible social security recipients of benefits they 
would otherwise receive, would effect a taking without due process of law in 
violation of the Fifth Amendment. Such an argument would seem to presume 
that beneficiaries possess a vested property right in their social security benefits. 
This argument was clearly rejected by the Supreme Court in its decision in 
Flemming v. Nestor, 363 U.S. 603 (1960). Justice Harlan there stated: 

To engraft upon the Social Security System a concept of "accrued 
property rights" would deprive it of the flexibility and boldness in 
adjustment to ever-changing conditions which it demands. ... It was 
doubtless out of an awareness of the need for such fiexibility that the 
Congress included in the original Act, and has since retained, a clause 
expressly reserving to it "[t]he right to alter, amend or repeal any 
provision" of the Act. § 1104, 49 Sut. 648, 42 U.S.C. § 1304. That 
provision makes express what is implicit in the institutional needs of 
the program .... 

We must conclude that a person covered by the Act has not such 
a right in benefit payments as would make every defeasance of 
"accrued" interests violative of the Due Process Clause of the Fifth 
Amendment. 

Id., at 610. 

The Nestor Court emphasized that the Social Security program was non- 
contractual, eligibility being dependent upon the earnings record of the primary 



Proposed amendments to existing language are reflected by italics. 



51 



beneficiary rather than upon contributions to the program by payment of taxes. 
The Court characterized the system as 

a form of social insurance, enacted pursuant to Congress' power to 
"spend money in aid of the 'general welfare," Helvering v. Davis, [301 
U.S. 619], at 640, whereby persons gainfully employed, and those who 
employ them, are taxed to permit the payment of benefits to the 
retired and disabled, and their dependents. Plainly the expectation is 
that many members of the present work force will in turn become 
beneficiaries rather than supporters of the program. But each 
worker's benefits, though flowing from the contributions he made to 
the national economy while actively employed, are not dependent on 
the degree to which he was called upon to support the system by 
taxation. It is apparent that the noncontractual interest of an 
employee covered by the Act cannot be soundly analogized to that of 
the holder of an annuity, whose right to benefits is bottomed on his 
contractual premium payments. 

363 U.S., at 609. 

Further, the Court rejected the argument that the statutory provision there 
at issue, which terminated social security benefits to aliens deported for 
afniiation with the Communist Party, amounted to an arbitrary governmental 
classification violative of the Due Process Clause protections. Acknowledging 
that the interest of a covered employee rose to a level which entitled it to 
protection from arbitrary government action, the Court then applied a "rational 
basis" test to determine whether due process constraints had been exceeded. 
Under the test applied a statute offends constitutional standards if it is 
"patently arbitrary" and "utterly lacking in rational justification." 363 U.S., at 
611. The Court's role is not to re-evaluate the wisdom of the choices made by 
Congress, but rather to assess whether the Congress could rationally have 
determined that, in this case, public funds should not be used for the support 
of those deported for particular purposes. 

Flemming v. Nestor was reaffirmed in Richardson v. Belcher, 404 U.S. 78 
(1971), where the Court upheld a statutory provision in the Social Security Act 
which required social security benefits to be reduced in cases where workmen's 
compensations payments were received against a Fifth Amendment Due Process 
Clause challenge. In Richardson v. Belcher, the Court also considered an Equal 
Protection Clause challenge to this provision: 

The appellee argues that the classification embodied in } 224 is 
arbitrary because it discriminates between those disabled employees 
who receive workmen's compensation and those who receive 
compensation from private insurance or from tort claim awards. We 
cannot say that this difference in treatment is constitutionally invalid. 
... A statutory classification in the area of social welfare is consistent 
with the Equal Protection Clause of the Fourteenth Amendment if it 
is "rationally based and free from invidious discrimination." 



52 



404 U.S., at 81. Among the possible rational bases suggested by the Court for 
the distinction between those receiving workmen's compensation and those who 
were not were: The statute might reflect a judgment by the Congress that the 
payment of duphcative benefits reduced the incentive of a worker to return 
to his or her job, thereby impeding the rehabilitative efforts of state programs. 
Alternatively, Congress could have rationally distinguished state programs from 
private insurance benefits, as state programs were originally initiated to address 
a need not adequately met by private insurance and tort programs, and 
determined that this need should continue to be met primarily by the states. 

More recently, the Court has considered a large number of cases regarding 
alleged improper classifications among social security beneficiaries, upholding 
nearly all of these classifications. Statutory classifications which have had the 
effect of denying or reducing social security benefits to a specific group have 
been upheld where a rational basis may be hypothesized for the classification. 
See, e.g., Weinberger v. Salfi, 422 U.S. 749 (1975); Mathews v. De Castro, 429 
U.S. 181 (1976). Further, the Court has deemed irrelevant the Cact that the 
postulated rationale did not, in fact, form the basis for the legislation, or that 
the classification did not include all that logically should be included. Califano 
V. Jobst, 434 U.S. 47 (1977). Among the considerations which may be taken into 
account in determining the rationality of a particular classification are 
administrative convenience, Weinberger v. Salfi, supra; Mathews o. Lucas, 427 
U.S. 495 (1976); and the relative need of the recipient, Mathews v. De Castro, 
supra; Califano v. Jobst, supra. In addition, the Court has found 
constitutionally sound classifications which differentiated between the survivor 
benefits to which a wage earner's widowed spouse who remarried after age 60 
was entitled from those to which a similarly situated divorced widowed spouse 
who remarried was entitled. The Court found a rational basis for this 
distinction based upon perceived differing levels of dependency upon the wage 
earner's account, concentrating the limited funds available where the need was 
likely to be the greatest. Bowen v. Owens, 476 U.S. 340, 350 (1986). 

Those few found constitutionally deficient under Fifth Amendment 
standards were those where the statutory classifications were based upon either 
gender or legitimacy of birth. See, e.g. , Califano v. Goldfarb, 430 VS. 199 (1977) 
(gender); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) (gender); Jimenez v. 
Weinberger, 417 U.S. 628 (1974) (illegitimacy); but see, Mathews v. Lucas, 427 
U.S. 495 (1976) (upholding under less than strictest scrutiny analysis Social 
Security Act statutory scheme providing entitlement to survivor benefits based 
upon statutory presumption of child's dependency at time of deceased insured's 
death as demonstrated by legitimate birth, legal adoption, support order, 
paternity decree, or fact that the child would be entitled to inherit personal 
property from the insured parent's estate under applicable state's intestacy law). 
In cases like Goldfarb, Weisenfeld, and Jiminez, the Court has applied a higher 
standard of review, and has imposed a greater burden upon the government to 
demonstrate that the classification serves important governmental objectives. 

In its 1970 decision in Goldberg v. Kelly, 397 U.S. 254 (1970), the Supreme 
Court articulated a theory of statutory entitlements as a form of property 



53 



protected against deprivation without procedural due process. Nevertheless, the 
Flemming v. Nestor 'rational basis' test continues to set the standard by which 
one must consider limitations on the power of Congress to modify laws which 
grant sUtutoryentitlementa. Dandridge v. Williams. 39TU.S. 411(1970). For 
example, in iU 1987 decision in Bowen v. Gilliard, 483 VS. 587 (1987), the 
Court considered due process, equal protection and takings challenges to a 
change in the statutory scheme for Aid to Families with Dependent Children, a 
means-tested, cash benefit federal program under Title VI of the Social Security 
Act. Beginning in 1975, the AFDC provisions conditioned eligibility for the 
program on applicants' assignment to the State of any right to receive child 
support payments for any family member included in the family unit for AFDC 
purposes. However, a recipient of aid could exclude a child for whom support 
payments were received from the family unit for AFDC purposes, even if the 
child continued to live with the family, if it was Gnancially beneficial to the 
recipient to do so. Changes in this program contained in the Deficit Reduction 
Act of 1984 required a recipient to count all children living in the same home 
as part of the family unit, including children for whom child support payments 
were made. Under another provision, the first $50 of child support collected 
each month by the State was to be remitted to the family, and was not to be 
counted as income for purposes of determining the family's benefit level. Thus, 
depending upon the scale of child support received, a family might end up losing 
income as a result of the 1984 amendments as compared with its income level 
under the previous statutory scheme. To determine whether the due process or 
equal protection challenges to this new statutory structure were meritorious, the 
Court stated that: 

The precepts that govern our review of appellee's due process and 
equal protection challenges to this program are similar to those we 
have applied in reviewing challenges to other parts of the Social 

Security Act: 

"[0]ur review is deferential. 'Governmental decisions to 
spend money to improve the general public welfare in one 
way and not in another are 'not confided to the courts. The 
discretion belongs to Congress unless the choice is clearly 
wrong, a display of arbitrary power, not an exercise of 
judgment" Mathews v. De Caatro, 429 UjS. 181, 185 (1976), 
quoting He/nerin^ v. Davis, 301 VS. 619, 640 (1937." Bowen 
V. Owens, 476 U.S. 340, 345 (1986). 

This standard of review is premised on Ckjngress' 'plenary power to 
define the scope and the duration of the entitlement to . . . benefits, 
and to increase, to decrease, or to terminate those benefits based on its 
appraisal of the relative importance of the recipients' needs and the 
resources available to fund the program.* . . . 

483 U.S., at 598. The Court, applying a rational basis test, held that the new 
statutory scheme did not violate the due process or equal protection provisions 
of the Fifth Amendment. The Court concluded that the new statutory scheme 



54 



served two congressional goals: decreasing the federal deficit while distributing 
benefits among competing needy families in a fair manner. Id., at 598-99. The 
Court also deemed it rational and reasonable for Congress to conclude that child 
support benefits provided benefits to entire family units receiving them. Id., at 
600. 

Applying the above jurisprudence to the proposed amendment to 42 U.S.C. 
§ 402(x), it seems unlikely that a court would find the proposed provision 
unconstitutional under a Fiflh Amendment analysis. Recipients of Social 
Security benefits have no vested property right in those benefits. Nestor and its 
progeny clearly indicate that the recipient does not have an accrued right to the 
benefits, such that defeasance would be violative of the Due Process Clause. 
The Act does not impose contractual obligations. Indeed, Congress expressly 
reserved to itself the right to alter, amend, or repeal any provision of the Social 
Security Act. 

The determination to eliminate benefits to those committed under court 
order based upon a finding of not guilty by reason of insanity or ita equivalent, 
where they have not met certain rehabilitative conditions, could be held violative 
of due process constraints if deemed an arbitrary governmental classification. 
The Court has applied a rational basis test to such classifications. The 
deprivation of these Social Security benefits to such individuals could be found 
rationally related to legitimate governmental goals. The Congress could 
conclude that a person so committed would be institutionalized at government 
expense. Payment of Social Security benefits to an individual so committed 
where governmental sources (whether state or Federal) are already paying his 
or her living costs (such as food, housing, and medical care) might be regarded 
as duplicative. Cf. Bowen v. Gilliard, supra. Such a classification would seem 
to make Social Security benefits available when needed, but not when those 
needs were otherwise met. It does not appear to deprive the person committed 
pursuant to such a finding of future eligibility for benefits at such time as he 
or she is no longer so institutionalized. This sort of classification might also be 
regarded as furthering a governmental goal of making available limited Federal 
funds in the Social Security system to those most in need of such "social 
insurance." 

Nor does the proposed amendment appear to give rise to constitutional 
deficiencies under an equal protection analysis. The statutory scheme would be 
likely to be found unconstitutional under equal protection parameters if not 
rationally related to legitimate governmental interests or if based upon invidious 
discrimination. This is not a type of classification which has traditionally 
required strict scrutiny. Rather, the courts would appear likefy to apply a 
rational basis test to the proposed language. This being the case, an argument 
could be made that such a classification was rationally based because it would 
deprive the institutionalized individual, committed under court order upon a 
finding of not guilty by reason of insanity or its equivalent, of benefits during 
the period of institutionalization where his or her needs were already being met 
at government expense. A secondary argument of maximizing availability of the 



55 



funds in the Social Security system to those most in need would also seem 
available here. 

A further argument might be raised that this proposed change to the Social 
Security Act would amount to an ex post facto law because it imposes an 
additional sanction following a judgment in a criminal case which was not 
available at the time the offense was committed. Such an argument would seem 
to fail, however. In the early case of Colder v. Bull, 3 Dall. (3 U.S.) 386, 393 
(1798), the Court determined that the constitutional prohibition against ex post 
facto laws in Article I, Sec. 9, CI. 3, applied only to penal or criminal statutes. 

But although it is inapplicable to retroactive legislation of any other 
kind, the constitutional prohibition may not be evaded by giving a civil 
form to a measure which is essentially criminal. Every law which 
makes criminal an act which was innocent when done, or which 
inflicts a greater punishment than the law annexed to the crime when 
committed, is an ex post facto law within the prohibition of the 
Constitution. 

Congressional Research Service, The Constitution of the United States of 
America, Analysis and Interpretation, S. Doc. 99-16, 99th Cong. 1st Sess. 382 
(1987). 

As this statute is not a criminal or penal statute, the issue appears to be 
whether it would be regarded as inflicting a greater punishment than the law 
applicable to the offense at the time the crime was committed. In Flemming v. 
Nestor, supra, the Court concluded that the statutory provision which 
terminated payment of old-age benefits to an alien deported because of 
Communist affiliation was not an ex post facto law. The Court opined that the 
denial of a non-contractual benefit to a deported alien was not a penalty. 
Rather it was regarded as a regulation designed to relieve the Social Security 
system of administrative burdens likely to arise from disbursements to 
beneficiaries residing outside the United States. In the proposed provision here, 
one might also argue that the denial of a non-contractual benefit to a person 
institutionalized by court order pursuant to a finding that he or she was not 
guilty by reason of insanity, where other conditions were met, was not a penalty. 
It is certainly not what has been traditionally regarded as a penal sanction, such 
as death penalty, imprisonment or fine. It seems more akin to a regulation 
designed to avoid duplication of payment from public coffers (whether state or 
Federal), where the needs of the institutionalized person to such things as 
housing, food, and medical care are already being met without the payment of 
Social Security benefits. It does not appear to deprive the individual of future 
benefits should they cease to be institutionalized, nor does it deprive dependents 
of their social security benefits. 

Nor is this proposed amendment to 42 U.S.C. 5 402(x) likely to suffer from 
constitutional frailties under a bill of attainder analysis. A bill of attainder is 
a legislative act 'no matter what [its] form, that [applies] either to named 
individuals or to easily ascertainable members of a group in such a way as to 



56 



inflict punishment on them without a judicial trial. . . ." United States u. Louett, 
328 U.S. 303, 315 (1946). This has been the focus of ana^-sis in a number of 
cases. The first two were in 1867. In Ex parte Garland, 4 Wall. (71 U.S.) 333 
(1867), the Court held unconstitutional a statute which required, as a 
prerequisite for practicing in federal courts, that attorneys take an oath that 
they had taken no part in the Confederate rebellion against the United States. 
Cummings v. Missouri, 4 Wall. (71 U.S.) 277 (1867), dealt with a state 
constitutional amendment which conditioned practice of certain professions 
upon the taking of a similar oath. Both were struck down because they were 
legislative acts which inflicted punishment upon a specific group, those who had 
sided with the Confederacy who were therefore unable to truthfully take the 
oaths required. In United States v. Lovett, 328 U.S. 303 (1946), the Court held 
unconstitutional a statute which prohibited the use of monies appropriated by 
that statute from being used for the salaries of three named individuals whom 
the House of Representatives considered subversive and therefore wanted 
discharged. The Court's decision in United States v. Brown, 381 U.S. 437 
(1965), struck down a statute which made it a federal offense for a member of 
the Communist Party to serve as an officer or employee of a labor union. More 
recently, in Nixon v. Administrator of General Services, 433 U.S. 425 (1977), the 
Court upheld a statute which provided custody of documents and recordings 
accumulated during President Nixon's tenure in office be vested in GSA. It 
directed that regulations be promulgated providing for public dissemination of 
some of the materials at issue, and authorized payment of just compensation to 
President Nixon if a court should determine that the act worked a taking. The 
Court found that the President, though individually named by the act, could be 
regarded as 'constitutCing] a legitimate class of one,' and that the Congress 
could 'fairly and rationally' focus legislative attention upon that class. The 
Court applied a three part test in finding that the act was not a bill of attainder. 

... 1) the law imposed no punishment traditionally judged to be 
prohibited by the clause; 2) the law, viewed functionally in terms of 
the type and severity of burdens imposed, could rationally be said to 
further nonpunitive legislative purposes; and 3) the law had no 
legislative record evincing a congressional intent to punish. That is, 
the Court, looking "to its terms, to the intent expressed by Members 
of (Congress who voted its passage, and to the existence or 
nonexistence of legitimate explanations for its apparent efTect", 
concluded that the statute served to further legitimate policies of 
preserving the availability of .evidence for criminal trials and the 
functioning of the adversary legal system and in promoting the 
preservation of records of historical value, all in a way that did not 
and was not intended to punish the former President. 

The Constitution of the United States, Analysis and Interpretation, S. Doc. 99-16, 
99th Cong., Ist Sess. 381 (1987), citing Nixon v. Administrator, 433 U.S., at 473- 
484. For a more extensive discussion of bills of attainder, see S. Doc. 99-16, at 
378-381. 



57 



Turning to the proposed measure at issue here, one could argue that it 
would apply to easily ascertainable members of a group. Applying the Nixon 
three-pronged analysis to the proposed amendment, it seems likely that the 
measure would withstand a bill of attainder challenge on the following grounds: 
First, it seems unlikely that the deprivation of a non-contractual benefit would 
be considered a traditional penalty. The measure does not impose such 
traditional penalties as a fine, a term of imprisonment, or the death penalty. 
Rather, it provides for a cessation of Social Security benefits during the period 
of the affected individual's institutionalization by court order based upon a 
verdict of not guilty by reason of insanity or similar finding. 

Second, as noted in the due process and equal protection discussion above, 
the statute mi^t be rationally regarded as furthering non-punitrre purposes. 
Those purposes might include the avoidance of duplicative drains upon public 
coffers from the payment of Social Security benefits to individuals while they 
are also receiving such things as housing, food, and medical care at 
governmental expense, be it federal or state. In addition, one might argue that 
the measure could be perceived as a means of maximizing the distribution of 
available resources to those most in need. 

As to the third prong, the legislative history of the proposed provision is, 
of course, not yet complete, so any conclusion drawn here would be based to 
some degree on supposition. Therefore, rather than draw such surmises, it 
seems more fruitful to indicate factors that a court might consider in its analysis 
of the application of the third prong to the measure at hand. This prong looks 
to whether the legislative history indicates an intention to punish those affected 
by the provision. This might be indicated, for example, by report language or 
fioor debate reflecting an intent to penalize or to inflict punishment upon those 
institutionalized by court order based upon a finding of not guilty by reason of 
insanity because they had committed a criminal offense. On the other hand, if 
the legislative history indicated that the thrust of the congressional intent was 
to avoid duplicative drains of governmental resources where an individual's 
subsistence has been otherwise provided for at public expense, that would not 
appear likely to be perceived as punitive. Nor would a congressional desire to 
use federal resources to mstximum effect for those in need. 

The Court in Flemming v. Nestor, supra, rejected a bill of attainder and ex 
post facto challenge to the termination of retirement benefits to an alien 
deported because of his affiliation with the Communist Party. The Court 
observed: 

Turning, then, to the particular statutory provision before us, 
appellee cannot successfully contend that the language and structure 
of § 202(n), or the nature of the deprivation, requires us to recognize 
a punitive design. Here the sanction is the mere denial of a 
noncontractual governmental benefit. No affirmative disability or 
restraint is imposed, and certainly nothing approaching the 'infamous 
punishment' of imprisonment, as in Wong Wing, on which great 
reliance is mistakenly placed. Moreover, for reasons already given . . 



58 



., it cannot be said . . . that the disqualincation of certain deportees 
from receipt of Social Security benefits while they are not lawfully in 
this country bears no rational connection to the purposes of the 
legislation of which it is a part, and must without more therefore be 
taken as evidencing a Congressional desire to punish. . . . 

363 U.S., at 616-17. 

The constitutional analysis above is also supported by the cases arising out 
of constitutional challenges to the suspension of social security benefits to 
imprisoned felons under 42 U.S.C. § 402(x), and the suspension of social security 
disability payments to incarcerated prisoners under former 42 U.S.C. § 423(f)(1). 
This jurisprudence seems telling here because the first of these provisions is the 
one here proposed to be amended and the second seems a close parallel.' For 
example, in Zipkin v. Heckler, 790 F.2d 16 (2d Cir. 1986), the suspension of a 
prisoner's social security benefits under 42 U.S.C. § 402(x) was challenged under 
due process and equal protection grounds. As to the rationale behind passage 
of this provision, the court stated: 

In enacting section 202(x), Congress apparently based that 
legislation on the policy rationales underlying a former statute, 42 
U.S.C. § 423(0(1) (now repealed), suspending disability payments to 
incarcerated recipients. See H. Conf. Rep. No. 98-47, 98th Cong., 1st 
Sess., reprinted in [1983] U.S. Code Cong. & Admin. News 143, 447- 
48; see also, Yopp v. Secretary, No. 083-1157, slip op. at 5 (WJD. Mi. 
1985). Those rationales were principally that: (1) "[t]he disability 
program exists to provide a continuing source of income to those 



' Former 42 U.S.C. § 423(0(1), which was interpreted in some of the cases 
referenced here, provided: 

(1) Notwithstanding any other provision of this title, no monthly 
benefits shall be paid under this section, or under section 202(d) by reason 
of being under a disability, to any individual for any month during which 
such individual is confined in a jail, prison, or other pena] institution or 
correctional facility, pursuant to his conviction of an offense which 
constituted a felony under applicable law, unless such individual is actively 
and satisfactorily participating in a rehabilitation program which has been 
specifically approved for such individual by a court of law and, as 
determined by the Secretary, is expected to result in such individual being 
able to engage in substantial gainful activity upon release and within a 
reasonable time. 

Section 2(a) of the Act of October 9, 1984, substituted the current subsection 
423(0(1), which does not address this subject, for the one quoted above. Section 
2662(i) added subsection 423(h) to the statute. Subsection 423(h) states: 

(h) Payments to prisoners. For provisions relating to limitation on 
payments to prisoners, see section 202(x) [42 U.S.C. § 402(z)]. 



59 



whose earnings are cut off because they have suffered a severe 
disability," and (2) "[t]he need for this continuing source is clearly 
absent in the case of an individual who is being maintained at public 
expense in prison." S. Rep. No., [sic] 96-986, 96th Cong., 2d Sess., 
reprinted in [1980] U.S. Code Cong. & Admin. News 4787, 4794-95; see 
also, Yopp, slip op. at 5. 

The mere fact that Congress did not expressly restate these 
rationales in enacting section 202(x) [42 U.S.C. § 402(x)] is of no 
moment. Both the retirement benefit suspension disputed here and 
the disability benefit suspension are part of a comprehensive scheme 
designed to provide income to certain members of the workforce who 
can not [sic] generate their own incomes, and to conserve the Social 
Security fisc when the essential economic purposes of that income is 
provided through a different public mechanism~a prison. 

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. See 
Washington v. Secretary, 718 F.2d 608, 611 (3d Cir. 1983). Indeed, for 
this reason the suspension of retirement or disability benefits to an 
incarcerated recipient is analytically no different from the termination 
of auxiliary benefits, pursuant to 42 U.S.C. § 402(d)(1), due to changed 
economic circumstances such as the marriage of a dependent child or 
the divorce of a dependent spouse. . . . 

We thus hold that section 202(x) rationally reflects the policy that 
prisoners' Social Security retirement benefit payments be suspended 
since their substantial economic needs are already met. Any 
contemporaneous payment of Social Security funds in our view would 
be wasteful. . . . 

Id., at 18-19. See also, Davis v. Bowen, 825 F.2d 799 (4th Cir. 1987), cert, 
derued, 484 U.S. 1069 (1988); Graham v. Bowen, 648 F. Supp. 298 (S.D. Tex. 
1986). For cases upholding the suspension of disability payments to prisoners 
against due process or equal protection challenges, see, e.g., Jensen v. Heckler, 
766 F.2d 383 (8th Cir.), cert, denied, 474 U.S. 945 (1985); Buccheri-Bianca u. 
Heckler, 768 F.2d 1152 (10th Cir. 1985); Washington v. Secretary, Health and 
Human Services, 718 F.2d 608 (3d Cir. 1983); Anderson v. Social Security 
Administration, Department of Health and Human Services, 567 F. Supp. 410 
(D. Colo. 1983). 

A constitutional challenge to the suspension of Social Security disability 
benefits was one of the issues raised in Peeler v. Heckler, 781 F.2d 649 (8th Cir. 
1986). The claim was rejected by the court. 

An ex post facto law is one which reaches back in time to punish 
acts which occurred before enactment of the law. A penal statnte may 
also be an ex post facto enactment if it adds a new punishment to the 



60 



one that was in effect when the crime was committed. . . . The 
appellant contends that § 402(x)(l) as applied to him is such a law, 
since its sanctions are triggered by the past commission of a felony, 
and its effect is the forfeiture of a benefit formerly received. However, 
even if what the appellant says is a true characterization of the 
statute, we may not hold that it imposes ex post facto penalties unless 
the law was enacted for a punitive purpose. . . . If the law in question 
is focused on the past crime, then it is likely intended as a 
punishment, while if the focus is upon the benefit from which the 
person is barred, it is not, even though the impact on the individual 
may be harsh. . . . The mere denial of a noncontractual government 
benefit (such as disability payments) without a showing of penal 
intent, does not fall within the ex post facto prohibition. . . . We are 
bound by the recent holding of this Court in Jensen v. Heckler, 766 
F.2d 383 (8th Cir.), cert, denied, 106 S. Ct. 311, 88 L.Ed.2d 288 (1985), 
that, despite some indications that (Congress intended § 402(x)(l) to be 
at least in part punitive, it is not an ex post facto law, since there is a 
rational connection between the provision and the nonpunitive goal of 
regulating the distribution of disability benefits. 766 F.2d at 386. 
People in prison have their subsistence needs taken care of by the 
imprisoning jurisdiction. For this reason, it was entirely rational for 
(Ik)ngres8 to suspend the federal disability payments to this group of 
beneficiaries. 

Id., at 651-52. 

The Anderson case also involved a challenge to the suspension of prisoner's 
disability benefits under ex post facto and bill of attainder analysis. The court 
stated: 

Plaintiff also alleges that suspension of his disability benefits 
constitutes a bill of attainder and an ex post facto law. A ban on ex 
post facto laws, however, applies only to laws respecting criminal 
punishment. . . . What is forbidden is penal legislation for conduct 
which was lawful previous to its enactment. . . . Moreover, to argue 
successfully for either of these constitutional protections, the plaintiff 
must be able to characterize validly the suspension of benefits as a 
punishment 

I find that this amendment to the Social Security Act is remedial 
rather than punitive in nature. There has been no attempt to single 
out a person or class of persons for punishment, but only an effort to 
further the remedial purposes of the Act, which have been previously 
discussed. In a somewhat analogous but more severe situation is [sic] 
which a deported alien's retirement benefits were completely 
terminated, the Supreme Court held that the mere denial of non- 
contractual govenmient benefits does not constitute punishment 
within the meaning of the Bill of Attainder Clause. Flemming v. 
Nestor, supra, 363 VS. at 616-617, 80 S.Ct. at 1375-1376. In the 
instant case, plaintiff's benefits have only been suspended, not 



61 



terminated. Benefits will become available again to the plaintifTwhen 
the state is no longer responsible for providing his food, clothing, 
shelter and other necessities. There is also an opportunity to have the 
benefits reinstated while still incarcerated if he becomes eligible 
through participation in a court[-]approved rehabilitation program. 
Finally, the statute clearly states that dependent* relying on the 
inmate's disability benefits will continue to receive their benefits while 
the inmate is confined. These factors cannot be characterized as 
punitive. The statute is a rational and reasonable attempt by 
[C]ongress to provide disability benefits for those with a legitimate 
need for them. 

Id., at 412-13.^ See also, Hopper v. Secretary of Health & Human Services, 780 
F.2d 1021 (6th Cir. 1985), affg without opinion, 596 F. Supp. 689 (M.D. Tenn. 
1984), cert, denied, 475 U.S. 1111 (1986) (not bill of attainder); Caldwell v. 
Heckler, 819 F.2d 133, 134 (6th Cir. 1987) (not ex post facto law); Jones v. 
Heckler, 774 F.2d 997 (10th Cir. 1985) (not ex post facto law); Jensen v. Heckler, 
766 F. 2d 383 (8th Cir.) cert denied, 474 U.S 945 (1985) (not ex post facto law); 
Wiley V. Bowen, 824 F.2d 1120 (D.D.C. 1987) (not ex post facto law); Sulie v. 
Bowen, 653 F. Supp. 849 (N.D. Ind.), affd without opinion, 836 F.2d 552 (7th 
Cir. 1987); Anderson u. Social Security Administration, Department of Health 
and Human Services, 567 F. Supp. 410 (D. Colo. 1983) (not ex post facto law or 
bill of attainder). 

CONCLUSIONS 

The proposed measure under examination here would add those who have 
been institutionalized by court order after a verdict of not guilty by reason of 
insanity or its equivalent to the list of categories of individuals' whose Social 
Security retirement or disability benefits may be suspended during the period 



* Cf, Graves v. Heckler, 607 F. Supp. 1186, 1190 (D.D.C. 1985), rejecting an 
argument by the Secretary that the plaintifT, who had been committed to a 
mental institution by court order pursuant to an acquittal by reason of insanity, 
should be denied disability benefits because his situation was covered by the 
provision suspending payment of such benefits to persons 'confined in a jail, 
prison, or other penal institution or correctional institution, pursuant to his 
conviction of ... a felony . . . ." This argument was rejected on two grounds. 
First, the court noted that acquittal by reason of insanity did not equate to 
conviction, and the Secretary bad 'furnished no indicia of legislative intent to 
the Court which would support so unusual a construction.' Second, the court 
distinguished a mental hospital from a "jail, prison, or other penal institution 
or correctional facility;" and found that the government had "produced no 
evidence that (Dongress intended to equate a mental hospital with a jail, prison, 
or other penal or correctional institution.' Of course, the court's objections to 
the lack of statutory basis for suspension of the benefits of a person 
institutionalized by court order upon a finding of not guilty by reason of 
insanity and to the absence of indications of legislative intent would be remedied 
should the proposal here under consideration be enacted. 



62 



of their confinement, unless specified rehabilitative conditions are satisfied. 
This proposal may face due process, equal protection, ex post facto or bill of 
attainder challenges to its constitutional sufficiency. While this precise 
language has not been tested heretofore, parallel provisions appear to have been 
uniformly upheld against challenges on each of these grounds. In light of this 
consistent case law and the fact that the reasoning and rationales which form 
the underpinning of these cases would also seem to be applicable to the proposed 
amendment to 42 U.S.C. § 402(x), it seems likely that the proposal would also 
pass constitutional muster as to each of these grounds. 




63 

Chairman Jacobs. Mr. Knudsen. 

STATEMENT OF KARL E. KNUDSEN, ATTORNEY, RALEIGH, N.C. 

Mr. Knudsen. Thank you very much, Chairman Jacobs, mem- 
bers of the subcommittees, my name is Karl Knudsen. I am a trial 
lawyer from Raleigh, North Carolina. 

I am here because I have the responsibility of representing some 
people in my home State and county, not by choice, but because 
about 3 years ago I was sitting in my office and received a tele- 
phone call from my senior resident superior court judge who told 
me that the legislature in North Carolina had recently changed the 
law relating to those persons who had been found not guilty by rea- 
son of insanity, and they thought that somebody ought to under- 
take the responsibility of representing those people, and he asked 
me if I would be willing to do it, and knowing that one does not 
lightly refuse an offer like that from your senior resident Superior 
Court judge, I accepted. 

I presently represent four individuals who are confined at Doro- 
thea Dix Hospital in Raleigh, N.C, having been found not guilty 
by reason of insanity. There are three other State hospitals in the 
State of North Carolina and the current population in the entire 
State of North Carolina, of those people who have been successful 
in asserting an insanity defense, is 10. 

We are one of the most populous States in the United States, and 
I think that in the reality, while the insanity defense gets a lot of 
publicity and there are these sensational cases that get everybody's 
blood stirred up, the reality of the situation is that people on the 
street and juries don't buy it when people pretend to be crazy and 
they don't let people go unless they are really insane. 

Now, this bill that is before the Congress on a very shallow level 
makes some sense. There is a certain appeal to the argument of 
why should somebody profit by doing something horrible, and that 
is an easy argument to want to accept and be drawn into. 

But as I have sat here and listened to the testimony before this 
subcommittee, what has been said is, primarily, that these people 
don't need this benefit. They should not be able to double dip. 

The reason the justification for eliminating this benefit is be- 
cause their needs are already provided for, ana to that I say, if you 
really want to, number 1, save money, and number 2, not provide 
benefits to people who don't need them, then terminate all Social 
Security benefits to every mental patient that is in a hospital. Then 
you don't have to justify the distinction between one class or an- 
other. 

I guarantee that you will save a whole lot more money if you do 
that and if that is a justifiable reason for denying these benefits 
that are provided to other mentally ill people who are not in the 
hospital, then you won't have to make the nice distinctions between 
who is going to get benefits and who is not. 

If that is the purpose, then that is what you need to do. If, how- 
ever, the purpose is that this Congress and this committee is so of- 
fended by what you have heard that people have done and the fact 
that there are victims who have been seriously injured, killed, fam- 
ilies that have been disrupted, and if what you want to do is to 



64 

lash out and punish, then I suggest to you that this is an inappro- 
priate vehicle for doing that. 

And the reason I say that is, first of all, you need to understand 
a little bit about my background. I am a trial lawyer now and I 
represent defendants. I haven't always been. I spent half of my ca- 
reer as a prosecutor, and for about the last 4 years of it, I pros- 
ecuted nothing but felony assault, robbery, rape, murder charges. 

I have prosecuted probably somewhere in the neighborhood of 40 
to 50 murder cases. I have both prosecuted and defended a triple 
homicide. I, myself, and my family about 10 years ago were victim- 
ized when people came into my house armed with guns in a rob- 
bery attempt in my house during which shots were fired at not only 
me, my wife and my 10-week old baby. I was shot, almost killed, 
spent a month in the hospital, and when I tell you I don't have any 
sympathy at all for people who knowingly and intelligently, fully 
understanding what they are doing, go out and commit crimes, I 
hope you will understand that I believe those people ought to be 
punished to the full extent of the law. I am not a bleeding heart. 
I assure you of that. 

But these particular people that would be affected by this bill 
had their day in court and they were found not guilty, and with 
all due respect to Ms. Bazan regarding the constitutionality of this 
bill, one thing needs to be remembered. The Supreme Court has 
said that when you are talking about people who have been found 
not guilty by reason of insanity, these people have been found not 
guilty, they may not be punished. 

As the court said, society may not excuse a defendant's criminal 
behavior because of his insanity £md at the same time punish him 
for invoking an insanity defense. And if what you are concerned 
about is people who may have committed a crime or are doing 
something wrong and then bejng denied benefits, as was mentioned 
by the acting Commissioner of Social Security, what about all the 
people who never had their day in court? 

As I understand it, there may be an amendment that would also 
make this bill applicable to people who have been found not capa- 
ble of proceeding to trial. 

Just let me say this. If you include those people, then what has 
happened to the presumption of innocence in this country? How 
can those people be denied benefits when they are presumed to be 
innocent and yet have not had their day in court? 

In conclusion, I would say this to you: There is no popularity in 
championing in an unpopular cause. It is not politically advan- 
tageous, it is not financially advantageous, but sometimes you have 
to stand up for what is right no matter how unpopular it is, and 
I suggest to you gentlemen that you have the opportunity in this 
case either to do that which is politically expedient and easy, or to 
do that which is right, and on behalf of my clients and the other 
people that are locked up in the hospitals who could not be here 
today, I ask you to do what is right. 

Thank you. 

Chairman Jacobs. Thank you, Mr. Knudsen. 

[The prepared statement follows:] 



I 



65 



TO: Ways & Means Subcommittee on Social Security 

Raybum House Office Building 
Washington, D.C. 20515 



FROM: Karl E. Knudsen, Attorney at Law 

Suite 1 100, Raleigh Building 
5 West Hargett Street 
Raleigh, N.C. 27601 

RE: Testimony for September 2l, 199.3 

Hearing on H.R. 979 



Chairman Jacobs, members of the committee, ladies and gentlemen. My name is Karl 
Knudsen. I am a trial lawyer from North Carolina, presently in private practice. I was 
appointed over two years ago by the Senior Resident Superior Court Judge in my district to 
represent some individuals who will be affected by what you and the other members of Congress 
decide regarding the issue central to this bill. Unlike many lawyers who appear before 
committees to argue on behalf of their clients' interests, I would like this committee to know that 
I am not being paid. It is rather my fear that these lost souls, guilty of no crime yet confined 
against their will by the State and thus unable to appear here and speak for themselves, will have 
no voice and will not be heard. 

Please understand too that I am not ignorant of the interests of the State nor 
unsympathetic with the victims of crime. Half of my career as a trial lawyer I spent as 
prosecutor. During the last several years of my tenure as an Assistant District Attorney, I was 
primarily assigned to the prosecution of murder cases and other serious violent crime. 

About ten years ago, I, my wife, and my eldest daughter who was a 10-week old baby, 
were the victims of an armed robbery attempt in our home during which shots were fired at all 
of us. I was hit by a bullet and almost killed. 

With my background I hope that you believe me when I say that I have no sympathy for 
those who knowingly, voluntarily, and fully understanding what they are doing, commit evil acts 
against the innocent. Those persons should be punished as fully as permitted by our laws, our 
Constitution and our justice system. 

However, I feel HR 979 is wrong both morally and legally. It takes only a cursory look 
at this bill and a casual listen to the testimony of its proponents, to understand that its true intent 
is to try to circumvent the findings of judges and juries and to inflict the vengeance which was 
denied the State by a finding of not guilty. Indeed this bill would apply only to that class of 
people who were put to the test and were found to lack the consciously evil state of mind which 
morally justifies the infliction of punishment. The courts have long recognized the blamelessness 
of those found by their peers to be not guilty by reason of insanity. In discussing the status of 
an insanity acquittee, the United States Supreme Court said in Jones v. United States . "As he 
was not convicted, he may not be punished. ...society may not excuse a defendant's criminal 
behavior because of his insanity and at the same time punish him for invoking an insanity 
defense. " 

Present social security rules provide for benefits to persons who have a medically 
verifiable mental illness which results in their inability to maintain gainful employment. This 
includes virtually every long-term patient confined in the mental hospitals in my state. It clearly 
applies to the people I represent and to the other NGRI patients in the North Carolina Mental 
Hospital System. 



66 



The receipt of social security disability funds by patients is expected and factored into 
the operations of the hospital. Patients are no longer provided with degrading uniforms but are 
allowed to purchase and own their own clothes and personal belongings. They are expected to 
provide their own cosmetics, toiletries, books, amusements, cigarettes, and any food other than 
the subsistence diet provided by the hospital. With no disrespect meant to the dieticians and 
cooks who prepare it, I can only say that while the food at the hospital may sustain life, it 
certainly does not enrichen it. 

In denying benefits to NGRI mental patients, this bill would create a distinction between 
them and other mental patients which is not morally or legally justifiable. The NGRI patient 
can only be kept in confinement as long as he or she remains mentally ill. In the case of each 
of my clients, it is the government which insists that they are ill and insists that they be deprived 
of their freedom, including their freedom to work, earn money and to support themselves and 
their families. 

The proponents of this bill argue that it is morally permissible to treat NGRI patients 
differently than others because the NGRI patients broke the law. There are several errors in this 
simplistic view. 

First, a large number of the persons involuntarily committed to state hospitals (at least 
in North Carolina) had done illegal acts, often violent, but were never formally charged. 
Another segment of the hospital's population was formally accused of committing crimes but 
were found not capable of proceeding to trial or simply had the charges against them dropped 
because they were now in a hospital. Some patients have charges technically pending for years 
which in reality will never be prosecuted. What distinction can be made between an insane 
person who commits a crime, is put to trial, and found not guilty, and an insane person who 
commits a crime and is never put on trial, which would justify providing benefits to the one not 
tried and denying them to the one who established his lack of responsibility in a court of law? 

Secondly, the law makes no distinction as to the crime of which the patient was acquitted. 
Under North Carolina Law and the law of a number of states, a person found not guilty by 
reason of insanity of any crime including petty larceny, trespassing, or disorderly conduct, is 
automatically committed to a state hospital until he or she can prove by a preponderance of the 
evidence that her or she is entitled to freedom. 

Third, proponents of this bill say that because a person has been found NGRI, he or she 
was first found by a jury to have committed the crime beyond a reasonable doubt. Whether this 
is in fact true or not in the case of a full jury trial, is irrelevant to the other 2/3 of my clients 
who never had a jury trial, but rather, were so obviously mentally ill that a judge merely issued 
an order that they had a valid insanity defense and entered a verdict of NGRI. 

In the area of the insanity defense there is the occasional sensational case which arouses 
public interest and outcry, while most of the time, the justice system goes about its way 
processing the other 99.99% of the "ordinary" criminal cases involving the mentally ill. When 
there is the outcry in the rare, sensational case, it always seems to bring a demand that the 
system be changed. 

This is why we are here and is why this bill exists. As you have heard, one of my 
clients five years ago killed four people and shot five more before the local authorities finally 
gave officers on the scene permission to shoot him, bringing the horror of that day to a belated 
and ugly end. He was subsequently arrested, indicted, and tried in a court of law by a jury of 
his peers, chosen from citizens of the county where the shootings took place. Psychiatrists for 
both the State and the defendant testified that the defendant was mentally ill and suffering a 
severe psychosis at the time. The jury unanimously found that he was unable to understand and 
appreciate the nature and quality of his actions and the wrongfulness of what he was doing and 
acquitted him by reason of insanity. 

To say that this decision over which that jury agonized was unpopular, would be 
understatement in the extreme. There was a near-riot of hundreds of people who gathered at 
the courthouse. Both the Sheriff of Forsyth County (whose department had jurisdiction) and the 
District Attorney (whose office prosecuted the case) were defeated at the next election. 



67 



In the intervening five years, my client has been continuously confined in a State 
Hospital. After receiving medication for several months, he recovered from his psychosis. He 
has been symptom free and off medication for over four years. 

As word spread of his recovery, and as it appeared that he was no longer confinable 
under the Law, pressure was brought to bear and the legislature changed the law to keep him 
confined. When it became apparent that we were going to succeed in having that law declared 
unconstitutional, it was hurriedly changed yet again. Each of these legislative acts might as well 
have been designated, "An Act to Keep Michael Hayes a Prisoner", except that there is a 
constitutional prohibition against acts of the legislature against one person. But as bad as this 
punitive ex post facto legislation was from the perspective of Mr. Hayes, (or as appropriate as 
its supporters believed it to be to punish him), it has been far worse in effect to the other 
nameless unknowns to whom the law also applied. There are people besides Michael Hayes or 
John Hinkley who have been found NGRI for crimes other than mass murder or attempting to 
assassinate the President of the United States. These people do not deserve to be caught up in 
a net designed to catch other, bigger fish. 

I urge the members of this committee not to act in haste, not to forge this nation's policy, 
which affects many, based upon an emotional response to the actions of one or a few. If the 
purpose of this bill is to punish Michael Hayes or John Hinkley, and it clearly appears to be, 
it is contrary to the laws and moral principles we have followed since the insanity defence was 
first recorded in the M'Naughten case. 

If the purpose of the bill is to keep from rewarding wrongdoing, it should be said that 
the benefit is not for the act perhaps done years ago, but for the present illness and the inability 
to live free and support oneself. And surely, no one suspects for one moment that anyone would 
trade his freedom for being locked up day in day out, for weeks, months, and years for the 
whopping sum of less than 75 cents an hour. 

While the emotional and political appeal of this bill may be great and while there is little 
reward for championing the unpopular cause, please remember that this nation and its leadership 
are measured by history by how you respond to the difficult issue and how you treat the least 
of our citizens. 

You have the choice to do that which is easy or that which is right. On behalf of those 
who could not ask you themselves, I ask you to do what is right. 



Thank You 



68 

Chairman Jacobs. Mr. Honberg. 

STATEMENT OF RON HONBERG, LEGAL COUNSEL, NATIONAL 
ALLIANCE FOR THE MENTALLY ILL 

Mr. Honberg. Mr. Chairman, members of the subcommittee, I 
appreciate this opportunity to testify. My name is Ron Honberg. I 
am legal counsel for the National Alliance for the Mentally 111. We 
are a national grassroots organization with 140,000 members who 
are primarily mmilies of people with severe mental illnesses as 
well as people with those illnesses themselves. 

We have heard some shocking testimony today. And I am cer- 
tainly not here to excuse the actions of the indivicmals who commit- 
ted the acts, nor am I here to trivialize the suffering experienced 
by their victims or their families or their loved ones. But the sad 
reality is that there are today many people with severe mental ill- 
nesses in our communities who are not receiving the care and 
treatment and support they need to function effectively in the com- 
munities, and a small subsection, and I emphasize small subsection 
of those people, when untreated, may engage in behaviors of a seri- 
ous criminal nature. 

I am here to argue against the adoption of H.R. 979. That is 
probably no surprise. I am doing so for three reasons. First of all, 
a determination of not g^lty by reason of insanity is not a criminal 
conviction. It is a determination that a defendant by virtue of his 
or her mental illness was not criminally responsible for his or her 
actions at the time of the alleged crime. 

A finding of not guilty by reason of insanity represents recogni- 
tion by a judge or jury that the accused defendant requires treat- 
ment for his or her mental disorder, not punishment. Individuals 
found not gfuilty by reason insanity are remanded to the civil com- 
mitment authority of their State and civil commitment proceeding's 
are commenced. In virtually every case, incidentally, the individual 
is committed to a secure forensic facility. 

The point I am trj^ng to make here is that NGRI, in a legal 
sense, is a form of acquittal and should be considered analogous to 
civil commitment, not analogous to a determination of guilt. It is 
really not appropriate to consider people found NGRI in the context 
of existing provisions in law removing persons found guilty from 
their SSEU benefits because NGRI does not constitute a finding of 
guilt. 

Persons who are found NGRI have the same civil rights as do 
persons who are subject to civil commitment. These rights include 
the right to treatment and habilitation, in some States the right to 
vote, and also, I maintain, the right to the retention of SSDI oene- 
fits. 

Secondly, SSDI as you know is a program of social insurance. 
Persons eligible for these benefits qualify based on the severity of 
their disabilities and because they, or in certain cases their family 
members, have paid into the Social Security system. In this con- 
text, I would maintain that SSDI is analogous to private insurance 
and persons found not guilty by reason of insanity do not forfeit 
their eligibility for private insurance benefits. 

It would therefore not be just to mandate through legislation 
that they be removed from a public program of social insurance, 



70 



'NAMI 



TESTIMONY SUBMITTED BY THE 

NATIONAL ALLIANCE FOR THE MENTALLY ILL 

Mr. Chairman, Members of the Committee, I appreciate the 
opportunity to testify before you today. My name is Ron Honberg and 
I am Legal Counsel for the National Alliance for the Mentally 111 
(NAMI), a national advocacy organization with 140,000 members who 
are families of persons with mental illness and those persons 
themselves . 

The testimony which we have heard today details actions of a 
shocking nature which were committed by individuals who were 
subsequently found not guilty by reason of insanity. It is not my 
purpose to excuse those actions, nor am I here to trivialize the 
suffering experienced by their victims or their victims families 
and loved ones. The sad reality is that there are today many 
persons with severe mental illness in our communities who do not 
receive the treatment and supports they need to function 
effectively in those communities. A small subsection of those 
persons, when untreated, may engage in behaviors of a serious 
criminal nature. 

It is rather my purpose to argue that H.R. 979, which would 
remove persons found not guilty by reason of insanity (NGRI) who 
commit felony's from their Social Security Disability Insurance 
(SSDI) benefits, should be opposed by your Subcommittee. There are 
three essential reasons for this position. 

First, a determination of NGRI is not a criminal conviction. 
Rather, it is a determination that a defendant, by virtue of 
his/her mental illness, was incapable of formulating criminal 
intent at the time of the alleged crime. A finding of NGRI 
represents recognition by the judge or jury that the accused 
defendant requires treatment for his/her mental disorder, not 
punishment. Individuals found NGRI are remanded to the civil 
commitment authority of their State and civil commitment proceeding 
are commenced. In virtually every case, the individual is committed 
to a secure, forensic facility. 

The point here is that NGRI, in a legal sense, is analogous to 
civil commitment, not a finding of guilt. As an aside, recent 
statistical evidence demonstrates that persons found NGRI are, on 
the average, removed from society for longer periods than if they 
had been convicted for the crime for which they were accused. 
Persons who are found NGRI have the same civil rights as do persons 
who are subject to civil commitment. These rights include the right 
to treatment and habilitation, the right to vote, and also 
retention of SSDI benefits. It is not appropriate to extend the 
provisions of the Social Security Act removing persons convicted of 
crimes from the SSDI roles to persons found NGRI because a finding 
of NGRI is a finding of non-criminal culpability. 

Second, SSDI is a program of social insurance. Persons eligible for 
these benefits qualify based on severity of disability and because 
they (or in certain cases family members) have paid into the social 



71 



security system. In this context, SSDI is analogous to private 
insurance. Persons found NGRI do not forfeit their eligibility for 
private insurance. It would therefore not be just to mandate 
through legislation that they should be removed from a public 
program of social insurance which they have paid into and to which 
they are entitled by virtue of a severe disability which renders 
them unable to work. 

Finally, removing persons found NGRI from the SSDI roles is 
contrary to principles of effective rehabilitation and community 
reintegration. Unlike SSI, there are no limits on the extent to 
which SSDI recipients may save their money. The money which an SSDI 
beneficiary who has been found NGRI may save during the course of 
his/her commitment can be used for purposes of treatment and 
rehabilitation after release into the community. Availability of 
individual resources following release may be particularly 
important since many of the publicly funded treatment and 
rehabilitation programs are underfunded and therefore have 
significant waiting lists. The immediate availability of treatment 
and supports may be critical to the successful reintegration of the 
individual into the community. 

One final point must be made. The argument that persons found NGRI 
who have been accused of felonies should be removed from SSDI 
because they are already being publicly funded by virtue of 
residence in a public facility is not necessarily true. In many 
instances, states assume the role of representative payee for 
individuals found NGRI in civil facilities. Under such 
circumstances, the SSDI benefits may be used in part or in full to 
residential and treatment costs of those individuals. The argument 
that these individuals are "double dipping", i.e. living at public 
expense and receiving SSDI benefits does not apply in those 
instances . 

Thank you for the opportunity to testify before this distinguished 
Committee. I stand ready to answer any questions which you may 
have. 



74 

a veiy strong point, and I for one believe it is something we oucht 
to take into account very carefully in examining the legislation 
^^So we thank the panel for its contribution, ft has ^en consider- 

[Whereupon, at 2:58 p.m., the hearing was adjourned.] 
[Submissions for the record follow:] 



75 



David R. Dryant 

ATTORNEY AT LAW 

SUITE 1625 

180 NORTH LASALLE STREET 

CHICAGO. ILLINOIS 60601-2671 



July 23, 1093 



Congressman Andy Jacobs 

Committee on Ways and Means 

U.S. House of Representatives 

1102 Longworth House Office Building 

Washington, D.C. 20515 



Dear Congressman Jacobs: 



Rather than testify at the Hearing, I wish to comment on the 
proposal to amend the Social Security Act (H.R. 979) to prevent 
payment of benefits (retirement, survivors, or disability) to 
criminally insane individuals confined to public (or private) 
institutions by Court Order. 

I agree with the proposition and suggest that the bar to 
benefits be extended to those who are institutionalized for any 
reason, not just felony convictions, at the public expense. This 
would include residents of Veterans Homes, County Hospital long 
terin '■efidents, inuates to corrr.ctior:?.! f?.ri 1 :•.*:;■ o= vbc car.rct ~2ks 
bail and awaiting trial for a felony charge, and others similarly 
situated on a long term (i.e., more than 90 days) basis. 

Respectfully submitted. 



'M 



(\A^ 



avid R. Bryant 



DRB:paz 

cc: Janice Mays, Chief Counsel 



78 



If the proposed legislative language, or some variation 
thereof, is adopted, it would resolve the issue as to whether 
the funds are collectible. This would confine the issue in 
the class actions currently before the courts to the 
administrative process of collection, which we feel should 
stand on its own merit. 



Congress could be approached in two ways. First, it can be 
argued that the reference to exempting these funds from the 
claims of creditors was intended to allow residents to be 
able to use their benefits for current needs, not for payment 
of past debts. If a recipient is in a state, county, or 
federal facility, and the facility is meeting the person's 
needs, it only seems logical that their income should be used 
to pay the charges. 

Second, recipients residing in private facilities or on their 
own certainly must use the benefits to pay for the services 
being provided. If the recipient refused payment, the owner 
of the facility would evict the client. State, county, or 
federal facilities should not be any less entitled to 
reimbursement . 

The major players in this issue would probably include state, 
county, and federal institutions which provide services to 
persons having a mental or developmental disorder. It seems 
certain that all 50 states would benefit by this proposal. 



79 



EXISTING AND PROPOSED TEXT 

42 U.S.C, Section 407 (a), dealing with social security payments, 
provides as follows: 

"The right of any person to any future payment under 
this subchapter shall not be transferable or 
assignable, at law or in equity, and none of the 
moneys paid or payable or rights existing under this 
subchapter shall be subject to execution, levy, 
attachment, garnishment, or other legal process, or 
to the operation of any bankruptcy or insolvency 
law." This Section shall not apply as to charges 
incurred for care, support, maintenance, and medical 
attention provided while the beneficiary is a 
resident or patient in a facility operated by a 
governmental agency, nor as to such charges paid on 
behalf of the beneficiary by a governmental agency. 

45 U.S.C, Section 231m (a), dealing with railroad retirement 
payments, provides as follows: 

"Except as provided in subsection (b) of this section 
and the Internal Revenue Code of 1954 [26 U.S.C. A. § 
1 et seq. ] , notwithstanding any other law of the 
United States, or of any State, territory, or the 
District of Columbia, no annuity or supplemental 
annuity shall be assignable or be subject to any tax 
or to garnishment, attachment, or other legal process 
under any circumstances whatsoever, nor shall the 
payment thereof be anticipated ." This Section shall 
not apply as to charges incurred for care, support, 
maintenance, and medical attention provided while the 
beneficiary is a resident or patient in a facility 
operated by a governmental agency, nor as to such 
charges paid on behalf of the beneficiary by a 
governmental agency. 

38 U.S.C, Section 5301 (a), dealing with veteran payments, provides 
as follows: 

"Payments of benefits due or to become due under any 
law administered by the Secretary shall not be 
assignable except to the extent specifically 
authorized by law, and such payments made to, or on 
account of, a beneficiary shall be exempt from 
taxation, shall be exempt from the claim of 
creditors, and shall not be liable to attachment, 
levy, or seizure by or under any legal or equitable 
process whatever, either before or after receipt by 
the beneficiary. The preceding sentence shall not 
apply to claims of the United States arising under 
such laws nor shall the exemption therein contain as 



82 



STATEMENT 
OF 
DAN FULTON, PRESIDENT 
NATIONAL ASSOCIATION OF DISABILITY EXAMINERS 

Mr. Chairman and Members of the Sub-Committee: 

My name is Dan Fulton. I am serving as president 
of the National Association of Disability 
Examiners for the current year. On behalf of our 
Association, I am offering the following statement 
regarding H.R. 979, the proposed legislation to 
bar Social Security benefit payments to criminally 
insane individuals who are confined to public 
institutions by court order. 

We endorse your initiatives to change the law thus 
barring institutionalized persons found not guilty 
by reason of insanity from receiving disability 
benefits. NADE subscribes to the position of 
establishing a consistent, program-wide policy of 
applying the same restrictions to persons confined 
in prison or other correctional facilities and 
persons institutionalized secondary to a court 
order based on a finding of not guilty by reason 
of insanity, without regard to specific crimes. 



This concludes my statement for the record. I 
appreciate the opportunity of being able to submit 
this statement on behalf of our Association. 



83 



JXfft 



NEW YORK STATE 

OFFICE OF MENTAL HEALTH 44 Holland Avenue. Albany. New York 12229 



RICHARD C SURLES. Ph D . Commissioner 



October 1 , 1993 

Ms. Janice Hays 

Chief Counsel and Staff Director 

Committee on Ways and Means 

United States House of Representatives 

1102 Longworth House Office Building 

Washington D.C. 20515 

Dear Hs . Mays : 

I would like to take this opportunity to submit the following information 
as part of the printed record of the September 21, 1993 hearing regarding bill 
fH.R. 979. As we understand it, this bill would expand current restrictions on 
payment of Social Security benefits to Incarcerated felons to Include individuals 
confined to public mental institutions by court order based on a verdict of not 
guilty by reason of Insanity (hereinafter referred to as N .G.R.I .) . Senator 
Jessie Helms has also proposed similar legislation In the Senate. 

The New York State Office of Mental Health Is opposed to this bill. 
Certainly we agree tliat N. G.R.I, individuals should not be allowed to spend 
Social Security benefits on luxuries while the State has to supply their dally 
needs. However , we believe the solution to this problem is to allow the states 
legal recourse when a Social Security beneficiary who is receiving care at the 
expense of the state refuses to pay for care from his/her benefits . In contrast , 
the approach embodied in HR 979 would penalize states, eliminating a source of 
revenue that helps offset the cost of psychiatric care for N. G.R.I, individuals . 
We would like to take this opportunity to describe the problem that the New York 
State Office of Mental Health faces and our proposed solution. 

New York State statute, as is the case with most other states, assesses 
liability to N. G.R.I, patients for their cost of care. The validity of this 
statute has been tested and upheld In both the State and federal courts. 
Currently New York has approximately 385 N. G.R.I. Individuals in our public 
psychiatric hospital system and approximately 190 of these individuals receive 
Social Security benefits . The appropriate payee has been determined for 163 of 
these individuals and charges have been assessed . Currently 136 of these 
accounts are being paid generating $750 ,000 per year in revenue. In addition, 
most of these individuals have Medicare coverage as a result of their receipt of 
Social Security disability benefits . Practically all of them would lose their 
Medicare B coverage because their premiums would not be paid. Approximately 1^0 
of these individuals are currently maintained at Medicare certified faci litles 
which generates additional annual Medicare B revenue of $700 ,000 . Therefore, If 
these Individuals' benefits are discontinued the State of New York could lose 
revenue of $1.^5 million per year. ' 

In these difficult economic times the States cannot afford to sustain this 
type of revenue loss while having to continue to support these individuals on a 
daily basis. Much has been said and written about those N. G.R.I, individuals who 
receive Social Security benefits but contribute nothing toward their cost of 
care. In New York approximately 161 of these N. C.R.I. Individuals do not pay 
charges assessed against Social Security benefits for the cost of care which 
means that approximately $li5 ,000 per year In additional potential revenue is 
lost. However, these N. G.R.I, individuals do not differ significantly in this 
respect from other Social Security beneficiaries residing in New York State 
public psychiatric hospitals . It is estimated that in New York we lose $3 
million dollars per year in potential revenue from Social Security beneficiaries 
who refuse to contribute to their cost of care in our public facilities . 

The New York Office of Mental Health believes that this issue is larger 
than the relatively small subset of N. G.R.I. Social Security beneficiaries in our 
public facilities who refuse to pay toward their cost of care. These individuals 
have the same liability as other patients in our facilities and they have the 
some "right" to refuse to pay. This "right" derives from Section 207 of the 
Social Security Act also known as the non- assignment clause. Section 207 in 
effect Insulates Social Security benefits from the claims of creditors and In the 



85 



The Stephanie Roper Committee, Inc. mKf%k 



14804 Pratt Street «1, Upper Marlboro, Maryland 20772 
Phone; (301) 952-0063 / FAX (301) 952-2319 



STATEMENT OF ROBERTA R. ROPER, DIRECTOR, ON BEHALF 

OF THE STEPHANIE ROPER COMMITTEE 

ON HR 979 



The Stephanie Roper Committee is an organization which 
advocates for victims of crime. While based primarily in Maryland, 
the Stephanie Roper Committee has members nationwide. 

The Stephanie Roper Committee believes that the payment of 
Social Security Benefits to those found criminally insane IS A 
TRAVESTY OF JUSTICE as those persons are benefiting from their 
unlawful conduct. 

Most important, the Stephanie Roper Committee believes the 
Federal and State Governments should amend their laws to encourage 
the ordering and collection of restitution. As to those receiving 
Disability Benefits, crime victims who have criminal restitution 
orders or civic judgment orders should be able to attach all of 
those benefits while those individuals are in a mental hospital, 
and a percentage of those who are not in a mental facility in order 
to satisfy the order or judgment. (We likewise believe that other 
procedures that are used for their support collection such as 
Federal Income Tax Intercepts and direct payments of Armed Service 
Active or Retired pay should be able to be used to collect criminal 
restitution.) I am attaching as exhibits a copy of the Crime 
Victim Compensation Quarterly , No. 2, 1993 Restitution and 
Subrogation, and the Maryland Governor's Task Force on Alternative 
Sanctions to Incarceration Recommendation #14 on Restitution. 

As a secondary priority, the State should be able to subrogate 
any costs they pay to house those found criminally insane. Any 
money still due or owing to such committed individuals should be 
given to the States to help other victims. Maryland has the 
Maryland Victim of Crime Fund to help victims. Maryland Annotated 
Code, Article 27, Section 764(j) and 764 (k). 

We urge the Committee to act to prevent such committed 
individuals from receiving Federal funds. Rather than simply 
making said individual ineligible for Federal Benefits, we believe 
the better approach would be the establishment of a priority scheme 
to help the victims of such offenses, the State for the costs of 
treating said person, and to help other victims in general. 

Respectfully submitted. 



Roberta R. Roper 
Director 
Att: (2) 



'nne person can make a difference and every person should trv 



^^-C-aAa'^^-.C- ^>li(^ 



86 



Crime Viclim Compensation Quarterly 



So. 2, 1993 



Technical Assistance Supplement 

RESTITUTION AND SUBROGATION 

Iowa's aggressive recovery efforts are boosting 
resources and holding offenders accountable 

Kelly Brodie, Deputy Director, and Alison Sotak, Restitution/Subrogation Coordinator 
Iowa Crime Victim Assistance Programs 



Claims in Iowa, like most other compensaiion 
programs, soared dramatically in the last several fiscal 
years. In FY 1989. wc received 350 claims. In Pi' 
1992 the number had skyrocketed to 1,555. Many other 
programs saw a tripling or quadrupling of their claims 
in the same time frame, and since more claims trans- 
lates mto more payments, this growth has created an 
unprecedented fiscal crisis for numerous stales. Fund- 
ing has been outstripped by demand, and most pro- 
grams are searching desperately for new ways to boost 
resources and control costs. 

While we've been fortunate to maintain a relatively 
solid revenue base in Iowa through our funding mech- 
anisms (primarily a portion of a surcharge on all 
criminal fines, including traffic offenses, and a SlOO civil 
penally on drunk driving convictions), we've recognized 
that It's critical for us to inmate whatever efforts we 
can 10 maintain adequate funds. An imporlanl area 
we've concenirated on in the last few ycars--and espe- 
cially during the lasi year, when we've had a full-time 
staff specialist on board to do ihe work-has been 
recovering restitution and enforcing our subrogalion 
rights. With remarkably little effort -merely sending out 
notification letters lo county attorneys when our 
program received an applicaiion and again when a 
payment was made--we tripled our restiiuiion/subroga- 
tion recoveries from only S39.000 in FY 1989 to 
5120,000 in FY 1992. With Ihe addition of our restitu- 
tion/subrogation specialisi in July 1992, and our tmple- 
mentauon of new strategies lo offset income laxes and 
garnish and assign wages, we more than doubled our 
recoveries to 5258,000 in the latest fiscal year-nearly 
li% of our payouts of 51.8 million. More than 1,500 
defendants are reimbursing us now And wc know wc 
can do even better 

Some programs don't believe ii's cost effcciive to 
pursue reslitution/subrogalion recovery efforts They 
wonder whether the invcstmcnl in staff iimc will pay 
off. and they worry thai their federal VOCA gram will 
be reduced because monies recovered must be sub- 
tracted from their certified slate payout Our ex- 



perience in Iowa should allay these concerns. First, our 
full-time specialist pays for her salary several times over 
through the increased amounts we recover; this truly- 
has been a lerrific invesimeni of administrative resour- 
ces Second, while our VOCA grant is reduced slightly 
because of the subtraction of recovered funds from our 
payout, our overall income gain far outweighs this small 
cui And remember, we can deduct the entire salary of 
a full-time restitution specialisi from the amounts 
recovered, so only our net gain is used to reduce our 
cenified state payout. 



We're now recapturing nearly 15% 
of our payouts, from more than 
1,500 offenders. 



As an example, if we award 52.000,000 in slate 
dollars, and make a net recovery of 5200,000 in restitu- 
ilon/subrogation (recovered funds minus our specialist's 
salary), we will still have a net gain of 5120,000 after 
our VOCA grant is reduced from' 5800,000 to 5720,000, 
in comparison with a program that has not collected 
any restiiution/subrogation income. And remember, 
we've also paid for our specialist's salary from the 
recovered funds, so that gain of 5120,000 can go in full 
toward increasing our funds for awards. 





With Recovery 

EHons 
$2,000,000 
■ 200,000 
1,800.000 
X 40% 
720.000 
+ 200 000 


Without Recovery 
EHons 


state payout 
Net recovery 


$2,000,000 
-0- 


Net payoul 
VOCA match 
VOCA grant 
Net recovery 


2.000.000 

X 40% 

800.000 

-0- 



llic bottom line is that ii works, and that it's worth 
pursuing. We intend to continue in Iowa to make 



87 



Cnnii; I ii.Vi/;i Cviniicii.uilioii Quuilc 



criminals pay. and lo relieve ihe burden on our own 
resources, ihrough aggressive recovery efforis. We ihink 
a similar program could work for any siaie compensa- 
lion program ihai adopts ii. This article will describe 
in some detail the specifics of how wc implement our 
straiegy--and why. 

Background 

Compensation programs were created in large pan 
due to the ineffectiveness of restitution enforcement 
efforts Since victims were not receiving full reimburse- 
ment for their losses from the offenders, stuic and 
federal governments sought to create and support 
programs that would provide financial assistance. 

But the goals and philosophy of restitution should 
not be overlooked simply because wc now hasc com- 
pensation programs in all 50 siaies-nor should we 
disregard enforcement and collection just because a 
victim's losses have been paid in full or in part by the 
compensation program. State policy should be to hold 
offenders responsible for the damage of their actions 
whenever possible, and all elements of the criminal jus- 
tice system-judges, prosecutors, corrections olficials. 
and parole and probation ofliccrs, as well as compensa- 
tion programs-should do what they can lo coordinaie 
the measure of justice afforded by rcsiiiuiion 



Defendants can pay-if required to do 
so. 



ihe cost of crime than offenders. If offenders doni pay, 
then victims do -along with state compensation pro- 
grams Reversing the system's neglect of restitution 
efforts not only has financial benefits for victims and 
compensation programs, but also advances important 
social and Justice policy objectives. 

The goal of restitution is simple and powerful: to 
hold the offender responsible for the monetary expenses 
incurred by the victim as a result of the crime, and by 
the state for the cost of prosecution. Restitution serves 
the sentencing goals of both retribution and rehabilita- 
tion. That is also reimburses our compensation pro- 
grams for the money we award is only one benefit of an 
effective restitution iniiiative. 



It's imperative to build support for 
your recovery efforts witti prosecutors, 
judges, and corrections and proba- 
tion/parole officials. 



There's an offender in every case. Thai means that 
someone is liable for the victim's losses in every case, 
whether it be the offender, or a tavern that served the 
offender liquor, or the hotel where the rape occurred, 
or an insurance company, or some other liable third 
pany. Our job is to recover as much money as we can 
from ihose liable, so thai neither the victim or the 
compensation program pays if we can get those respon- 
sible K) bear the burden. 



Failure to order, monitor, and enforce resiuuuon 
orders erodes the public's faith in the justice system. 
and sends a powerful negative message that the system 
IS not serious aboui making offenders pay The dcicr- 
rcni effect of restitution is lost. Victims are justifiably 
ancp.' and frustrated. And compensation programs act 
stuck with more of the tab. 

We hear over and over again from corrections 
officials and others that offenders can't afford to pay 
resniution But we've demonstrated clearly in Iowa ihat 
defendants can pay--if required to do so Lasi year, our 
...I, .■'.•. Dcpartmciii .1; Ci>rieciioiiM nuiJil.,.: ili.ii 
:iJniinisiraiivc rules m .illow prison offici:il- 1.1 i.ike 
2I)T of all funds deposited inio an lnmalc.^ .uiount. 
including cash gifts, lor restitution. Last fiscal ve.ir. the 
u^|Kiriiiieni collccuJ S.Vsb.J.lD for vioiiin i^M.iuiioii 
from incarcerated defendanis. 

Victims are in no bc'icr financial posnoii u< hc.u 



Building Support 

Before embarking on a collection initiative, it's 
imperative that compensation programs build support 
for their program wiihin the criminal justice system 
It's .il^i important to make sure that legislative provi- 
sions are in place to ensure that your program can 
readily receive restitution. 

Our office has worked very hard to establish aB0 
maintain good relations with prosecutors, the ?ouns. 
and corrections and parole probation officials We h;«v« 
tried 10 educate all 'players" in the sysKini a.s to our 
roL .:nd objecii\es. .ml \.e've proacMW'V ^ouohi to 
proi^M our inieresis \:i iiiiportani part in this process 
IS 10 make sure ihat were doing our basic function 
well: paving out awards in as fair and efficient way as 
wc ^.1.1 Simplifying imu jpplicaiion procesN. icduving 
processing time, and iiicre:ising public awareness about 
our program builds our credibility, and gives others a 



88 



I nine luliiit (..(iniiK-iisuliun Quartci ly 



No. 2, IVV3 



t)aiih IDI .sup|n)iliii^ wlial we're duiiig. 

Some of llie imporiani legislaiive changes Ihal have 
helped tremendously in the overall resiiiution efforl, as 
well as our own iniiialive, include ihe following; 

• The conipensalion program is specifically listed as 
an eligible recipient in the restitution statute so the 
Court can order the defendant lo reimburse our pro- 
gram duecily Wc are listed setiiiid iii the order of 
payment, however, so the defendani musi firsi pay Ihe 
victim for their non-covered losses before reimbursing 
US- After all restitution obligations are paid in full, the 
defendant's payments are apphed to court costs and 
attorney fees. 

• The countv attorney is able to attach a rcsiiiulion 
lien to a defendant's properly or other assets at the 
lime of indictmeni so ihcir assets can'i be divested if 
convicted. 

• Effective July 1, 1992, all resiiiuiion orders arc 
entered as civil judgments upon entry, which allows ihe 
victim and/or the compensation program to exctuie the 
judgment for ntmpaymeni of the debt Prior lo iliis 
statute going into effect, parole and probation officers 
were asked lo obtain a confession of judgmeni ai the 
time of Ihe defendant's discharge from p.irole or 
probalion, thus also giving ihe program ilic ojuion ol 
a civil remedy 

Resiiitulion collection eflorls can be succcsslul oiilv 
if the program has sirengih fron-, smiuiois piovismns, 
and if II h.is supjion from ihc lo(i|ki.ui\c cflmis oi all 
criminal jusiice p.iriicijianis 

KcsliliUioii: Cctliiiu ll Oidcred 

ResliiuUon colleciion can pio\c quiie lu^iainc il 
attacked aggressively. Wc collecled close lo SM i.nilii m 
restitution from 1,522 offenders in ihe liscil \e.ir cndiiii; 
June 30 of this year, more ihan doubling ihe S66.0l)0 
wc collecied m Pr' 92. To do this, we ha\e lo make 
sure firsi thai rcsiiiulion is ordered, and scLciid. ili.ii 
the defendani is lield accouniahje loi in.ikiii'.: iiimikiiIs 

Our resiiiuiKiii colleciion elloris begin on ihe das 
Ihe applicaiion is received, shkc ihe iiiosi iiupon.ini 
pan of gelling rcsiiiulion ordered is coniiiiunieaiiiie 
prom[)il\ with Ihe prosecuior liandlin!; ihe c.ise We do 
this by imniediaiely sending a leiu'i lo ihe pio.ccuI.m'n 
office. inh)rming Ihcm ihal ihe \Kiim li.is hied lor 
conipeiiN.iiiuii li's very iinpoii.uii iIi.m ihis iiiioiiuaiion 
reaches ilie prosecuior heloi ■ il:' delen.l.in; is s-n 
tenccd, so ilie rcsiiiulion will he inJuded in I lie oih.;iii,d 
sentencing' order Earlv noiilKiiion ili.n ,i lompeiis.i 
lion aj)j' I, iiion (uis been lile,: . r ' ,- ...r, a.' ■■:] ■ ■■, 
if a case goes lo inal (or (J)e delendani jilcid, guillM 
before ihe eliim is ajiprosed Thr prov.-..iiioi \<.,l' he 



awaie lhai j>a)nienis may be made later on behalf of 
the victim, and can leave the sentencing order open so 
that restitution can be ordered at a subsequent date. 

When the compensation claim is approved, we 
immediately call the clerk of court to find out the case 
number and a pending trial date. We then send a letter 
10 the prosecutor's office telling them the amount and 
type of compensation paid to ihc victim Wc accom- 
pany this with a statement of pecuniary damages, which 
we ask the prosecutor to file with the court. This 
makes the job of the prosecuior easier, and gives our 
program a belter chance of having restitution ordered. 
If there is no defendant at the time of claim approval, 
we contact the county attorney's office regardless, and 
then call the police department for an update six 
months laier 



Our collection efforts begin on the 
day the victim's application is re- 
ceived, when we send a letter imme- 
diately to the prosecutor. 



II all goes well, the prosecutor will ask that rcstitu- 
iioii he ordered ai the lime of senicneing. and the judge 
will order a The process doesn't always go smoothly, 
howe\er Someiimes prosecutors and judges don't do 
iheir |ohs And victims have two years to file in Iowa, 
so ihere are limes when ihc criminal irial is over before 
Ihe victim applies In these cases, where a defendant 
already has been senicnced and no reslituuon has been 
ordered, we seek lo protect our rights by requesting the 
prosecutor lo amend the sentencing order Since many 
prosecutors are rcluciani to lake ihe tunc lo do this, wc 
found thai we have lo provide Ihe prosecuior with all 
Ihe necessari documenis, including a siatenicni of 
pecuniaiy damages, a motion to amend Ihc sentencing 
order, and a supjilcmenial senicncmg order for rcsiiiu- 
lion, so ih.ii .ill Ihe prosecuior has to do is sign them 
.ind pieseni ihcm lo Ihc judge 

Kesliliilion: ('iillectiii<; It 

\Mieii lesiiiulioii is ordeied uic dcleiid.iiu li.is lo he 
helil .Kcouiii.ihle lor in.ikiiig p,i-> :ii .-ill-. liClIing deleii 
d.inis lo i).i\ e.in be more difliculi than gelling resiilu 
noil ordeud Key to successful colleciion is making 
.'il ■ "I. II I'.i. Ii.ne .KCUiale scnieiuiiig iiilorni.ilioii on 
e.Kli deleiul.iiii \ou'ie going allcr. and that you com- 
niiMih.ih- elUMucK wiih defend in', .iiid wilh offici.ils 



89 



Criiiu I icliin CuniiieiiMiliiiii <Jiiuili:ily 



Au. 2, IVV3 



^ 



in corrections and proballon/parole. 

We always request a copy of the sentencing order 
from the clerk of court so that we have accurate 
information. We then locate the defendant through the 
Department of Corrections data base, to which our 
program has been given access. Through a modem in 
our office, we can almost effortlessly find out what 
insiituiion houses the defendant, and if a defendant is 
on probation or parole, the data base provides the 
name of the supervising officer and the defendant's 
most recent address. 

Incarcerated defendants are a reliable source of 
income as restitution can be deducted automatically 
from their account and forwarded to the compensation 
program. Other states may have mechanisms to deduct 
portions of inmate wages. 

If a defendant is in prison, we contact the prison's 
financial office and make them aware thai restitution 
has been ordered on the program's behalf. We send a 
form for the prison's records administrator to fill out, 
asking whether the compensation program is listed on 
the defendant's restitution plan. If we're not listed, we 
send a supplemental order for the couniy attorney's 
office to file so we can begin receiving restitution. 

If the defendant is on parole or probation, we 
coniaci the supcrv'ising officer to aleri them that 
restitution has been ordered, and to request any plan of 
payment set up for the defendant. While we have 
found probation and parole officers to be \cr>' coopera- 
tive, they generally are not willing to keep a defendant 
on probation for not paying resiilulion. 



Incarcerated defendants are a reliable 
source of Income, since deductions 
can be made from their accounts 
automatically. 



Uc also will communicate by mail directly with any 
defendant that's not in prison. We send an initial letter 
to let ihcm know that our program is aware that they 
were ordered to pay. and that we are serious about 
monitoring and collection. We find this to be very 
effectne. and some ol the dclcndanls Ikivl- come into 
ihu- office and paid in full upon receiving .he loiter. 

Vi'hen the defendani does nol make .1 p.iymcnl in 
three to six months, a delinquency letter i> sent to the 
ik;jii»;.uit with a topv i.i ilie parole 01 (imi .ilion officer 
and the prosecuting attorney. Defendant> are advised 
that failure 10 mcci rcsiiiulion obligation;, could result 
I!! ii.Miii.mal pcnaliKs, includiiiij inconu- ! ;v otNei and 



wage garnishment. 

An iniponant note: The Fair Debt Collection Act must 
be consulted prior to inUiattng contact with a defendant 
This law details the legal guidelines regarding communica- 
iion with a defendant concerning their debt and repayment 
obligation. 

liKuriie lax OfTset 

The Iowa compensation program negotiated an 
agreement with the Department of Revenue and 
Finance to offset or seize income tax refunds when a 
defendani is delinquent in making restituiion payments. 
Most stales have an existing law that allows the seizure 
of refunds for delinquent income taxes, child support, 
and unpaid debts. (This year we even seized a lottery 
award from a lucky(?) offender!) 



IVe send letters directly to defendants 
not in prison, to let them know we're 
aware of their obligation to pay, and 
that we're serious about getting our 
money. 



The defendant's social security number is used to 
HKiKli the defendant with the refund, and thus apply 
ihe offset. The compensation program must notify the 
JclcnJani that a state income tax refund will be seized 
.]:id applied to the delinquent restitution The process 
is easy, but it can take a year or longer for the program 
10 receive the offset on a delinquent defendant. 

Wa^c Gariiishnieiit 

.Another approach for collecting delinquent ac- 
L ninis IS through wage garnishment. If the program 
ti.n ,1 judgment against the defendant the program may 
be able to place a garnishment or lien on a defendant's 
w.mcs until the restitution is paid in full In Iowa we 
Lonsulicd the Child Support Recover^' Unit of the 
.Aiiornev General's office to obtain guidelines about 
n.irnishmcnt. We modified the standard Iowa Bar 
-V->OLiation garnishiiieni forms and letters 10 fit our 
iux\K and to merge Ironi our data base 

K) assist in identifying the defendant's place of 

cniploymenl we sought access to the Department of 

. ij-: lymeiu Scivices d.ii.i iKi-.e. Empl()>"icni Services 

|iu>udes a comprehensive data base that is updated 

il.iilv. as all employers are required 10 report employee 

'. lor qtiarterK uiijim: l.ivmeni and ..orker's com- 



90 



Crime y'iiliin Compcnsalion Qiiarlarly 



No. 2, IVVJ 



pcnsaiion insurance paymcnls 

There are specific guidelines sei oui in the Iowa 
code for garnishments, and we urge other programs to 
research iheir state's laws thoroughly before beginning 

Wage Assignment 

Anoihcr alicrnalive to garnishmcni is wage assign- 
ment. A wage assignmenl is a written agrecmeni 
between the defendant, the compensation program, and 
the employer. TTie defendant agrees to have a certain 
dollar amount laken oul of his/her paycheck each pay 
period. The employer then forwards the payments to 
the compensation program. 

After the defendant has had his or her wages 
garnished, the defendant may be willing to agree lo a 
wage assignment Wage assignmenl is more convenient 
for the defendant because less money may be taken 
from their check per pay period, according to the 
agreemcni reached. It is very beneficial for the com- 
pensation program because ihere is no cap on the 
amount thai can be withheld each year, nor any filing 
or service fees 



Civil settlements can be quite large, 
so recovery of the program's entire 
award is possible. 



Subrogiition 

Subrogation is a moneian' sclilcmeni ih.ii a viciini 
recovers in a civil sun from j ihird parly li could be 
money recovered from the offender, or a tavern liable 
in a "dramshop" case (for ser\'ing liquor lu the of- 
fender), or an insurance eiinip.in\. or anoiher li.ibie 
entin Since senlemenis in sucli eases can be quiie 
large, a program may easily he able to cover ihe enure 
amount of us payments lo ihe vieiini We'ha\e .ilso 
found thai a large number ol vieiims do retain eivil 
attorneys, so programs should noi overlook Ihis puien- 
lially lucrative opporiunuy lo recover awards 

Our program tries to find out aboui aiiornev 
represeniaiion as early as possible, by rcquesnni; iliai 
information on ihc victim's jp|)lic.iiion for omuihiis.i 
lion Once we approve a claim, we send a leiier lo ilie 
vieiim's alinrnev notifying Iheiii of ihe pavmcni in ilie 
vicnni and emphasi/.ing ih.ii «e e.vpeei lo l>, 
bursed if ihe vielim's legal .luuiii is sueeesslul We 
include .1 hicakdown of llu .^|K■!:^es paid loi .. > ili:. 



aiioiney has full documeniation of what losses we've 
covered 

Once notified, the attorney will usually contact us 
when a settlement is going to be negotiated. If the 
attorney does not respond within six months after the 
claim is approved, however, we send a letter to the 
attorney requesting a status update on the pending suit 
and reminding the aiiorney of ihe program's interests. 
Most atiorneys will understand iheir legal obligation to 
cooperate with a compensation program that is authori- 
zed by law 10 subrogate, so there should be no problem 
in compliance. 

In Iowa we take the position that we should be 
reimbursed 100%. minus a pro rata share of the 
expenses incurred in obtaining the settlement. Still, 
there are limes thai we will negouaie with the attorney. 
The following criteria are looked at when negotiating 
a seulement: 

• Total amount of seiilemeni 

• Extent of victim's non-covered losses 

• Victim's ongoing medical needs and hardships 

• Whether other panics have a subrogation inter- 
est. 

While subrogation can be very lucrative, seitlemenis 
beuveen victims and liable third parlies may lake a long 
lime 10 be reached. We've recovered S143.000 through 
subrogation this past year, of which S114,000 is clear 
gain after allowing viciims' aiiorneys fees. 

A Final Continent 

We should note thai a crucial element in our 
recovery efforts is an exccllcn computer system that 
enables us to merge data base information and send 
leiiers easily, and 10 run monihly status reports so we 
can keep up 10 date on whai's happening in each case. 

To repeal, we believe ihat our resiitu- 
iion.'subrogation recovery iniiiative helps us meet our 
responsibilities bolh 10 hold offenders accountable and 
lo maximi/.e our resources lor Mciims. When we began 
our efforis. we were pleased by how much we could 
accomplish wiih relatively lilile effort. And as we 
become more adept and aggressive at seeking rcim- 
bursemeni. we are even more convinced that we can 
regain an ever greater share of our awards by making 
ihosc pay who have done harm to innocent victims. 

We'd be happy to lalk lurllier wiih an\one who 
wishes to discuss resiiluiioii and suhrogaiion recovery, 
or who wants copies of our various forms and letters, 
including our supplemcntarv' orders and garnishment 
1!^ '" ' ■ ■ KiM. iiriidie ni Alison Sotak a c.ill 
at (.-il.s) 2SI -51)44 or wiiie us al Ihe Department of 
Justice, Old llisioncal Buildiii.j IXs Moines, lA sn-^l9 



91 



BONNIE J. CAMPBELL 




'• ' '^""' J^partmsnt of Susttcc ' 

Crime Victim Assistance Program 



caoaM7»-ao44 



September 28, 1992 



♦DEFFULLNAME* 

♦ADDRESS* 

*CITY, STATE, ZIP* 

RE: 



Claim No.: *Claini No. 
Victim: *VICTIM* 
Defendant SS# *SS#* 



Dear : 

The Crime Victim Compensation Program has been informed by the 
♦COUNTY* Clerk of Court that you have been ordered to pay 
restitution in the amount of $(amt) to the Crime Victim 
Compensation Program. The plan of payment states that you are 
required to pay $(amt) beginning (date) and then monthly until 
the balance is paid. 

This restitution is monitored each month, therefore it is 
important to keep up with your monthly payments until the 
balance is paid in full. 

Thank you for your cooperation in this matter. The Crime Victim 
Compensation Program will be expecting your restitution payment 
soon . 

Sincerely, 



Alison E. Sotak 
Restitution Coordinator 



This is an example of our Defendant letter. This is sent as soon as the 

defendant is ordered to pay restitution to our program. Sometimes a copy 

of the letter is forwarded to probation and parole officers for their records. 



92 



Th«'Honorat^ JoMph A. Ciotola 
ChBtrman 

Admlnbtrstivs Judfle, Dbitflcl Court, 
flaftimor* CHy, fletlrtd 

Nancy J. Nowak 
Staff DIrtctw 

GovamOr'a Offic« of Ju«tic« 
Attmintstration 



TTte Honorabla Howard S. Ciiasanow 
Miiryttnd Cottrt o< Ap|»«ais 

Baiiiamin R. CIvaetti, EtQuir. 
VsnBbla,, Baaljier & Howard 

Oavkt'S. Confi*h, Etquirs 
Tha Cordith Company 

Hat Donofrio 

Ri^rdson. Mysrt & Oonofrio 

B^a V«a B. iQantry 
£bon4 

Anthony T.: Hawklna 
Rouaa Corporation 

AliRl F. HoblittaM. Jr. 
RyUwd Groups ^o. 

Patir P. Lii^a, Ph.p. 
UnWarsity b1 Maryland 

KentW. Maton 

Montgomery County Ffa-Ralesse 
Conter 

San McOonM. M.D. 
Phyaician 

Qeorga Phalps, Jr. 
PheJps Pfotactlon Syjtam 

Sscratary 8)shop L Rob'mton 
Oapvtmant.of Public Safety and 
Corractlohal Sarvlcaa 

Gaorga L. Ru«mB. Jr.. Eaqulra 
Pljiar& Marbgry 

Byron Moore Sedgwriek 
Newspaper Columnist 

M[MfcK.8hr)vM^ 
CHOICE 

The Honorabia Stuart 0. Sinvnc 
Stata's Attorney. Baltimore Chy 

George Evaratt Surgeon 
Anne Arurtdei Careen Center 



GOVERNOR'S TASK FORCE 



ON 



ALTERNATIVE SANCTIONS 



TO INCARCERATION 



FINAL REPORT 




William Donald Schaefer. Governor 



March. 1992 



93 



pjg, gp ^ Alf mativ» Sanctions to Inofcaftion: Short and Long Tarm Goals 

LEGISLATION: 

Introduction of a new Marvland CommunltY Corroctlona Act in January, 1993. (Appendix 

E) 

FISCAL IMPACT: 

Positive results have also been achieved In Oregon and Virginia. In 1981, Oregon estimated 
$16 million in savings by operating community corrections programs rather than 
incarcerating the targeted offender population. In 1982, Virginia estimated an annualized 
cost avoidance of $865,000. 

It Is anticipated that $13 million in State and/or federal funding will be required to initiate a 
Maryland Comprehensive Alternatives Act in FY94. Nevertheless, the longer term cost 
savings should supersede the $13 million many times over. 

AGENCIES RESPONSIBLE FOR IMPLEMENTA TION: 

The Board; GOJA; the Department of Public Safety and Correctional Seryices; local 
corrections departments. 



RECOMMENDA TION It 14. Tha appScation of fi/wtdal sanctions by tiie Maryland 

Judhdary ahotM be examined and expanded . 

The Board, in concert with the Administrative Office of the Courts and Department of Public 
Safety and Correctional Services through the Division of Parole and Probation, shall continue 
to explore tha expanded use and enforcement of financial sanctions. The Judiciary should 
expand the current practices of ordering restitution where statutorily permitted and the 
Division of Parole and Probation should develop strategies to improve the rate of 
satisfactory compliance with restitution orders. Maryland should develop policy 
encouraging a more extensive use of restitution and fines and the establishment of the day 
fine program. The Judiciary should assist in the development of the "day fine" concept. 



94 



Aiternative Sanction* to Incarceration: Short and Long Raona Goalg p^g g^ 

RATIONALE: 

The use of monetary fines Is a philosophy Integral to the criminal justice system. In FYSO, 
according to the National Institute of Justice, over $1 billion was collected In fines 
nationally. As one of the few sanctions which emanates directly from the Bench, the 
concept of monetary retribution has a number of positive aspects: 

• Adjustments to a level appropriate to the Indhridual circumstances of the 
offender and to the seriousness of the crime; 

• Community based, consequently, does not destroy the flssential economic and 
social ties of the offender; 

• Relatively lnexper>sive to administer, relying on existing governmental agencies 
and procedures already In place; 

• Financially self-sustaining and, unlike incarceration, maybe revenue producing; 

• Possibly effective punishment and deterrent for offenders who have committed 
crimes of varying levels of severity; 

• Direct correlation between sanction and property-related crime and crimes driven 
by economic gain; 

• Easily combined with other sanctions. 

In 1973, the Task Force on Corrections of the National Advisory Commission on Criminal 
Justice Standards and Goals found that "property employed, the fine is less drastic, far lass 
costly to the public, and perhaps more effective than imprisonment" for the non-violent 
offender population. 

Until very recently, this recommendation has gone largely unheeded due to lack of 
agreement regarding the proper administration of fines. However, with jail and prison 



95 



Page 92 AltBmatlv« Sfictioni to Incarcef tlon: Short >rd Loon Term Goali 

populations and probation caseloads steadily rising, fines are gaining renewed attention. 

In 1989, of the total number (52,785) of new parole and probation cases in Maryland, only 
11,329 involved orders for monetary paymenu (fines, court costs, and restitution). Of 
these 11,329, only 6,125 cases included orders for restitution to victims. Restitution was 
ordered by the courts in only eleven percent (11%) of the total cases. The actual amount 
of restitution ultimately collected by the Division of Parole and Probation for 1989 was a 
relatively small percent of the total ordered. Thus current restitution orders too frequently 
neither impact the offender or benefit the victim. Clearly, since only twenty-one percent 
(21%) of the total number of Maryland parole and probation cases in 1989 were ordered to 
pay fines, the use of the fine as a punitive sanction must be expanded. 

According to a recant national study of judicial attitudes toward fines, judges of both limited 
and general jurisdictions are much mora favorably inclined toward the fine as a punishment 
In theory than in practice. This philosophy, however, must change. Whether one thinks of 
punishment in retributive or deterrent terms, the fine can be used as punishment either 
ordered as a sole sanction or in addition to another alternative. According to Morris and 
Tonry (1990), judges must be provided with information regarding the convicted offender's 
financial circumstance In terms of net worth, income, and obligations to dependents. 

The success of increased use of fiscal sanctions is contingent upon effective enforcement. 
An effective system of collecting the fines must be established for tracing late payments 
promptly and pursuing violators immediately, and returning offenders to the courts in those 
cases of delinquency. 

The day fine concept, a Scandinavian innovation used most frequently in Western Europe, is 
only now beginning to receive serious attention as a correctional sanction in the United 
States. Essentially, the day fine is designed to enable a sentencing judge to impose a 
punishment commensurate with the seriousness of the offense through evaluation of the 
offender's prior record and economic circumstances. 

With respect to day fines, the amount of the fine is set in two (2) stages. First, the 
number of "units of punishment" is established, taking into account the seriousness of the 



96 



Alternative Sanctions to Incafceration; Short and Lonp Ranpa Goal$ Page 93 

offense and information regarding the offender's prior record. Second, the monetary value 
of each unit of punishment is set dependent on the financial condition of the offender. For 
example, although two (2) offenders may be sentenced to the same number of units for the 
offense, the more affluent offender would be sentenced to a larger monetary amount per 
punishment unit than the less affluent offender. In the event of a default in payment of the 
fine, the resulting sanction for each would be the same. 

The day fine concept also addresses criticisms of "traditional" monetary fines as a lenient 
punishment because of ttie failure of the criminal Justice system to emphasize collection and 
because of economic inequalities. The day fine system, however, laiids equity to the issue. 
The number of day fine units reflects the offense, while the dollar amount reflects the 
financial condition of the offender. 

Fines, quite simply, are revenne producing; actual funds are brought into the Justice system, 
in contrast with the cost of incarceration. In fact, those paying fines are literally "paying a 
debt to society," rather than contributing to existing burdens on State and local resources. 
Fines are easily coupled with other penalties to meet the objective of justice applicable to 
each specific offender. 

POPULATION TARGETED: 

The expanded use of fines would include more serious probationers as well as parolees 
found guilty of offenses which do not include the commission of a crime of violence as 
defined under Article 27, Section 643B of the Annotated Code of Maryland . 

POTENTIAL IMPACT: 

The potential short term impact of expanded use of fines and the development of the day 
fine concept would be the realization of a greater number of bench dispositions utilizing this 
sanction. Mechanisms need to be in place to ensure adequate enforcement and proper 
collection of the fines. It is also a strong recommendation that, in the event of a default, 
the offender serve the remaining time in a day reporting center, alleviating jali or prison 
bed-space. Greater use of fines, with aggressive enforcement, would add considerable 



97 



Page 94 Alternative Sanctions to Incafceration: Short and Long Term Goals 

revenues to State and local government. 

POLICY: 

The Judiciary should take a lead role for the promulgation and Implementation of policies 
witti respect to financial sanctions with the Administrative Office of the Courts assuming 
primary responsibility for establishment, enforcement, processing, record iceeplng, statistical 
reporting, data collection, and evaluation. Strong linkages will be necessary with 
correctional agencies, specially In the matters of default and offender accountability. The 
Division of Parole and Probation, in concert with the Judiciary, should develop firm 
procedures and strategies to increase the rate of payment whan restitution is ordered. 

LEGISLATION: 

Statutory ceilings for fines must be reviewed and appropriately be lifted to allow Imposition 
of larger fines. Statutory restrictions on the use of fines as a sole sanction for specific 
offenses should be removed. Legislation, particularly involving the day fine program, should 
address "dollars-to-days" conversion rates to ensure that offenders having similar prior 
records serve essentially similar jail terms In the event of default. Legislation may be 
necessary to ensure auditing by the appropriate fiscal authority, i.e. the Office of the 
Comptroller. 

FISCAL IMPACT: 

During FY91, the total amount of fines collected by the District Court in criminal cases was 
approximately $2.2 million. Consideration should be given to the dedication of a function 
within the Administrative Office of the Courts to manage the collection of restitution and 
fines. Staffing would be contingent on the expected use of the sanctions, volume of 
offenders, tracking needs, and enforcement methodology. 



BOSTON PUBLIC LIBRARY 

n'V'l'\ \ II I 'I 'Mil III mill 
3 9999 05983 284 8 

/'teinative Sanctions ;j Ineafceratlon: Shon and 1009 Range Goals p^g, gg 

A GE^a£S RESPONSIBLE FOR IMPLEMENTA TION: 

The Board; Administrative Office of the Courts; Department of Public Safety and 
Correctional Services: Division of Parole and Probation. 

RECOMMEND A TION » IS. Maryland must damtop a compnhanahn statewtOe plan 

for the administration of JuvsrOo Justka to oddrmss the 
bimtediata and kmg range issues confronting the 
system. 

The deliberations relative to alternative sanctions and system wide planning and 
coordination must be expanded to Include the juvenile Justice system. 

RA TIONALE: 

A comprehensive analysis of juvenile justice system in Maryland should be conducted. The 
most recant report of the Russell Committee of the Bar Association of Baltimore City 
(January, 1992) addressed the critical problems confronting Maryland's juvenile justice 
system in the State's highest crime area. Baltimore City, in fact. ranl(S sixth in violent 
crime among urban centers of comparable size. 

Nevertheless, the status of the juvenile justice system in Baltimore City reflects the 
problems, activities, and laci( of resources which on a smaller scale are reflected in most of 
Maryland's twenty-four (24) geopolitical subdivisions. 

Criminality clearly does not emerge upon an Individual's passage into adulthood. Wall 
substantiated data confirms that those persons adjudicated as adults for the first time have 
engaged in prolific juvenile delinquency. In fact, those behaviors are well-entrenched; the 
patterns and responsive actions are well developed. Absent sufficient resources to provide 
a "holistic" approach to address the vdluminous needs of these young offenders, sufficient 
positive intervention will not occur. Simply, delinquents will graduate into the school of 
serious, chronic adult criminals, continuing to compound the overcrowding in State and local 
correctional facilities. 



Q 



ISBN 0-16-043531-5 



9 780160"43531 



90000