Is a Confined SVP Eligible to Receive Social Security?

George N. Allen was convicted of two counts of rape (Penal Code § 261) in March of 1995 and was sentenced to 17 years in state prison. 

Eight years later, Allen was scheduled to be released on parole, but before he could be released, the prosecution petitioned the trial court judge assigned to the case to order Allen civilly detained as a sexually violent predator under the Sexually Violent Predator Act (SVPA) at California Welfare & Institutions Code §§ 6600 – 6609.

The SVPA defines a sexual violent predator (SVP) as “a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.”  Id., at 6600(a)(1).

After a probable cause hearing in which Allen was present and represented by appointed counsel, the trial court found that “there is a strong suspicion” that Allen had been convicted of two predicate offenses under the SVPA and that he “has a diagnosed mental disorder that makes him a danger to the health and safety of others; in that it is likely that he would engage in sexually violent behavior if released from the jurisdiction of the Department of Corrections.”  The judge therefore ordered Allen be held at Atascadero State Hospital pending a trial under the SVPA. 

He was subsequently transferred to Coalinga State Hospital and while there, he applied for Social Security disability payments.  The Social Security Administration (SSA) approved his application and Allen received benefits totaling $20,647 from March 2012 to April 2014.

In May 2014, the SSA notified Allen that these benefits had been issued in error and required him to refund the benefits previously paid.  Allen challenged the determination and requested a hearing before an Administrative Law Judge (ALJ), arguing that the SSA was incorrect because he had yet to be determined to be a sexually violent predator at a civil commitment trial.

After a hearing, the ALJ determined that under the Social Security Act, at § 402(x)(1)(A)(iii), he was ineligible for such benefits and he had to repay the $20,647 to the SSA.

Mr. Allen appealed this ruling to the U.S. District Court, which affirmed the ALJ judge’s ruling, agreeing that § 402(x)(1)(A)(iii) applied to a person who is civilly committed at the public’s expense by a court order pursuant to the SVPA after a probable cause hearing, but before a full civil commitment trial. 

Allen argued that this code section did not apply to him because he was not yet determined to be an SVP because he had not yet had his SVP civil commitment trial. 

 

The finding that he be confined after a probable cause hearing should not qualify as meaning his was an SVP because the burden of proof at the probable cause hearing was much lower than at a civil commitment trial (beyond a reasonable doubt is the standard).  Moreover, at a civil commitment trial, the defendant has the right to a jury trial, a right to retain experts and a right to all relevant records and reports.

Mr. Allen then appealed to the U.S. Ninth Circuit Court of Appeals in San Francisco, which found it had jurisdiction under 28 U.S.C. § 1291 and then affirmed the ALJ judge, finding that no monthly benefits shall be paid to individuals who are confined at public expense, including someone who immediately upon completion of confinement for a criminal sexual offense is then confined in an institution at public expense pursuant to a finding that the individual is a sexually dangerous person or a sexual predator or a similar finding for purposes of § 402(x)(1)(A)(iii), which was made after a hearing subject to robust procedural protections. 

The Ninth Circuit explained that in 1980, the SSA was amended to preclude the payment of disability payments to incarcerated felons.  See Quinlivan v. Sullivan (9th Cir., 1990) 916 F. 2d 524, 526.  The statute has since been amended to include other individuals confined at institutions at public expense, including sexual predators under § 402(x)(1)(A)(iii).

We present this summary because we have had a caller ask us about a person in custody receiving social security benefits, so this issue is apparently a common question.