TO BAR SOCIAL SECURTIY BENEFIT PAYMENTS
TO CRIMINAUY INSANE INDIVIDUAI5
CONHNED TO PUBUC INSTITUTIONS BY COURT
Y 4. W 36: 103-41 ^xTr-
To Djr Securiti) Benefits Pajnents t... '"^
COMMITTEE ON WAYS AND MEANS
HOUSE OP REPRESENTATIVES
ONE HUNDRED THIRD CONGRESS
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
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
TO BAR SOCIAL SECURITY BENEFTT PAYMENTS
TO CRIMINAUY INSANE INDIVIDUALS
CONHNED TO PUBUC INSTITUTIONS BY COURT
Y 4. W 36: 103-41 ^xTr-
To Djr Securits Benefits Pajnents t... '"^
COMMITTEE ON WAYS AND MEANS
HOUSE OP REPRESENTATIVES
ONE HUNDRED THIRD CONGRESS
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
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
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
Press releases announcing the hearing 2
H.R. 979, text 5
Social Security Administration, Lawrence H. Thompson, Acting Commis-
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
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-
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-
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,
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,
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.
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,
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
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
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
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,
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-
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
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
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-
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
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
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-
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:]
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
G. Susan Donne I ly
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.
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-
ceiving at that time $511 a month in Social Security disability ben-
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
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 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-
So we would strongly support what you are doing.
Chairman Jacobs. Thank you very much, Mr. Nicholson.
[The prepared statement follows:!
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
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
Chairman Jacobs. There you go. My father sometimes refers to
the blind leading the nearsighted. I hope that is not your problem
STATEMENT OF THOMAS J. KEITH, DISTRICT ATTORNEY, 21ST
PROSECUTORIAL DISTRICT, STATE OF NORTH CAROLINA,
ACCOMPANIED BY VINCENT RABIL, ASSISTANT DISTRICT
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
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
Twenty-first Prosecutorial District
State of North Carolina
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. 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
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:]
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
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
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
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-
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
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:]
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-
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
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-
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
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.
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-
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
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-
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
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:]
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.
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
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.
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
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
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.
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.
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
We also receive reports about prisoners from third parties.
These reports are verified before we take any suspension
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.
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
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
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.
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.
Mr. BuNNiNG. This is a 1992 estimate of those who should be
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
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
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
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
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.
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-
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
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.
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-
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
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-
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-
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-
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
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
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-
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.
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-
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
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-
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
An analysis of the third prong of the Nixon Court's test to the
proposal now before the subcommittee would be, of necessity, spec-
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:!
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).
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
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.
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
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.
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."
(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
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.
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."
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
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
"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
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
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
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
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
funds in the Social Security system to those most in need would also seem
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
Congressional Research Service, The Constitution of the United States of
America, Analysis and Interpretation, S. Doc. 99-16, 99th Cong. 1st Sess. 382
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
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
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
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 . .
., 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  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
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)].
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  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
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
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
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
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
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).
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.
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.
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-
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
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.
Chairman Jacobs. Thank you, Mr. Knudsen.
[The prepared statement follows:]
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
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
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
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
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.
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.
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
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-
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,
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
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
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
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
Thank you for the opportunity to testify before this distinguished
Committee. I stand ready to answer any questions which you may
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:]
David R. Dryant
ATTORNEY AT LAW
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.
avid R. Bryant
cc: Janice Mays, Chief Counsel
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
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.
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
38 U.S.C, Section 5301 (a), dealing with veteran payments, provides
"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
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.
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
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
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.
Roberta R. Roper
'nne person can make a difference and every person should trv
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
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.
+ 200 000
llic bottom line is that ii works, and that it's worth
pursuing. We intend to continue in Iowa to make
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
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
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-
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
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
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
• 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
• 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
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
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
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
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
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
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.
.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-
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
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.
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
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 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
• 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-
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
BONNIE J. CAMPBELL
'• ' '^""' J^partmsnt of Susttcc '
Crime Victim Assistance Program
September 28, 1992
*CITY, STATE, ZIP*
Claim No.: *Claini No.
Defendant SS# *SS#*
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
Alison E. Sotak
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.
Th«'Honorat^ JoMph A. Ciotola
Admlnbtrstivs Judfle, Dbitflcl Court,
flaftimor* CHy, fletlrtd
Nancy J. Nowak
GovamOr'a Offic« of Ju«tic«
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
Ri^rdson. Mysrt & Oonofrio
B^a V«a B. iQantry
Anthony T.: Hawklna
AliRl F. HoblittaM. Jr.
RyUwd Groups ^o.
Patir P. Lii^a, Ph.p.
UnWarsity b1 Maryland
Montgomery County Ffa-Ralesse
San McOonM. M.D.
Qeorga Phalps, Jr.
PheJps Pfotactlon Syjtam
Sscratary 8)shop L Rob'mton
Oapvtmant.of Public Safety and
Gaorga L. Ru«mB. Jr.. Eaqulra
Byron Moore Sedgwriek
The Honorabia Stuart 0. Sinvnc
Stata's Attorney. Baltimore Chy
George Evaratt Surgeon
Anne Arurtdei Careen Center
GOVERNOR'S TASK FORCE
William Donald Schaefer. Governor
pjg, gp ^ Alf mativ» Sanctions to Inofcaftion: Short and Long Tarm Goals
Introduction of a new Marvland CommunltY Corroctlona Act in January, 1993. (Appendix
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
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.
Aiternative Sanction* to Incarceration: Short and Long Raona Goalg p^g g^
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
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
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
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.
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 .
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
Page 94 Alternative Sanctions to Incafceration: Short and Long Term Goals
revenues to State and local government.
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.
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
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
The deliberations relative to alternative sanctions and system wide planning and
coordination must be expanded to Include the juvenile Justice system.
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