TN 4 (12-06)

NOTE: On April 1, 2009, SSA changed its policy of not paying fleeing felons. Follow the instructions below only for felony warrants with offense codes 4901, 4902, or 4999. Follow the Martinez settlement instructions in GN 02613.860 – GN 02613.885 for all other felony warrant codes.

On May 9, 2011, SSA changed its policy and no longer suspends or denies benefits or payments based solely on a probation or parole violation warrant (i.e., warrants with offense codes 5011, 5012, 8101, 8102, or 9999 or “Blank” and an offense charge symbol of “probation or parole violation”). Follow the Clark Court Order instructions in GN 02615.100 – GN 02615.190 for all probation or parole violation warrants.

We will make additional changes to this section, as necessary, in the future.

A. Background

In August 1996, Public Law 104-193 precluded eligibility for SSI benefits for certain fugitives and probation or parole violators. An individual receiving SSI and Title II concurrently continued to receive the Title II benefits even though the SSI payments were suspended. The Social Security Protection Act (SSPA) of 2004 extends the fugitive felon nonpayment provision to Title II beneficiaries beginning January 01, 2005.

Section 202(x)(1)(A) of the Social Security Act, as amended by P.L. 108-203, provides that, beginning 01/01/2005 no monthly benefits will be paid to any individual for any month during which he/she has an unsatisfied Federal, state or international law enforcement warrant for more than 30 continuous days for:

• A crime, or attempted crime, that is a felony or, in jurisdictions that do not classify crimes as felonies, a crime that is punishable by death or imprisonment for more than one year (regardless of the actual sentence imposed); or

• Violation of a condition of probation/parole imposed under Federal or State law.

Section 202(x)(1)(B) of the Act, as amended by P.L. 108-203, provides that payments may be paid if good cause exists. Good cause may exist if:

• A court finds that the individual was not guilty of the crime; or

• Charges relating to the criminal offense are dismissed; or

• The warrant for arrest is withdrawn (i.e., vacated); or

• The individual was erroneously implicated in the criminal offense because of identity fraud; or

• The offense underlying the warrant was both nonviolent and not drug related and the individual establishes that mitigating circumstances exist.

NOTE: Payment continues to all auxiliaries on the account when the wage earner (A) or disabled wage earner (HA) is subject to the fugitive felon suspension provision indicated in GN 02613.001A. in this section. In addition, if an auxiliary beneficiary is suspended because of the fugitive felon suspension provisions mentioned above in this section, benefits to the other auxiliaries on the record are not readjusted for the maximum.

B. Definitions – fugitive felon, probation and parole terminology as used in these instructions

1. Acquitted – This means the person was cleared of criminal charges or found not guilty of the criminal charges.

2. Felony – This is a crime more serious than those designated as misdemeanors. It is any offense punishable by death or imprisonment for a term exceeding one year.

3. Fugitive – This is any person with an unsatisfied warrant for:

   • A crime, or attempted crime, that is a felony or, in jurisdictions that do not classify crimes as felonies, a crime that is punishable by death or imprisonment for more than one year (regardless of the actual sentence imposed); or

   • A violation of Federal or State probation/parole.

     The person does not have to be actively hiding or evading the law in any way for these provisions to apply. The existence of the unsatisfied warrant is the only criterion necessary.

4. Good cause – This means that facts and evidence have provided a rational basis for performing a certain action. In this subchapter it means that we have established a basis for continuing to make benefit payments even though there is an outstanding warrant that would normally merit suspension.

5. Mitigating circumstances – These are facts and situations that can be used by SSA to find good cause to pay benefits even while the warrant is unsatisfied.

6. Parole – This is the status of a convicted person who has served part of a sentence and is then released from a correctional institution for a stipulated period on condition that he/she will conduct himself/herself in a manner approved by a special officer to whom he/she must make periodic reports.

7. Probation – This is the status of a convicted person who is allowed to remain free after conviction subject to the condition that, for a stipulated period, he/she will conduct himself/herself in a manner approved by a special officer to whom he/she must make periodic reports. Probation is release by the court before the sentence has to be served in a correctional institution by the individual.

8. Unsatisfied warrant - This means that the person is being sought in connection with a crime or violation. If the person presents evidence that he or she has satisfied the warrant this suspension process does not apply to him or her after the date the warrant is satisfied. The period of time from the date the warrant is issued or 1/1/2005 or the date of entitlement to Title II, whichever date is later, until the month the warrant is satisfied is a period of fugitive felon/probation or parole violator suspension. A warrant is satisfied when the person is arrested and has surrendered him or her self to the applicable law enforcement official and is awaiting trial or a judge dismisses the warrant. (See GN 02613.010A.4. for additional information on warrants.)

9. Plea bargaining or plea agreement – This is a process in a criminal case where the defendant (accused) and the prosecutor work out an agreement that involves the defendant’s pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than would have been imposed for the more serious charge. EXAMPLE: The defendant is charged with a felony crime, however, based on the plea bargaining that was done between the defendant, the defendant’s attorney and the prosecutor (with the approval of the court), the defendant’s felony crime was changed and lessened to a misdemeanor crime.

10. Vacated warrant – to annul; to set aside; to cancel or rescind; to render an act void (e.g., an arrest warrant). To declare a contract or act (warrant) void in its creation and to put an end to it as though it never were. EXAMPLE: The felony warrant was vacated by the judge. In this instance, the warrant and the charges on the warrant were eliminated back to the date the warrant was issued as though the warrant never existed.

11. Nolle Prosequi - A dismissal of criminal charges without prejudice or a discontinuance. A “dismissal without prejudice” means the case is dismissed without prejudicing the right of the complainant to sue again on the same cause of action. Unlike a traditional dismissal, nolle prosequi allows the prosecutor to re-file the charges within the speedy trial time limits. In other words, when a prosecutor decides not to prosecute on the criminal charges via “nolle prosequi,” the prosecutor can re-charge the defendant with the same crime within a defined period of time. “Without prejudice” prevents the court decree of dismissal from operating as a bar to a subsequent suit. Nolle prosequi is sometimes referred to as a discontinuance.” (See GN 02613.001B.12. for the definition of a discontinuance.)

12. Discontinuance - The cessation of the court proceedings in an action where the Plaintiff voluntarily puts an end to it. A discontinuance is also called a dismissal.

13. Exonerating Circumstances - Facts, events or conditions that indicate an individual is not considered responsible for having committed a criminal offense, e.g; not guilty finding, dismissal of criminal charges, vacation of an arrest warrant.

14. Identity Fraud - Wrongly obtaining or using personal data of another individual to defraud or deceive.