Information and resources for "Fleeing Felon" cases

 

Overview of the "Fleeing Felon" issue

Frequently Asked Questions about "Fleeing Felon" cases

The relevant Statutes, Regulations, and Program Manuals (POMS)

Resources for challenging "Fleeing Felon" suspensions

Federal court decisions in "Fleeing Felon" cases

Overview of the "Fleeing Felon" issue
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As part of the 1996 welfare reform legislation, Congress restricted benefits for so-called fugitive felons in four programs: Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), food stamps, and housing assistance.  In the cases of SSI, TANF, and food stamps the statute makes a fugitive felon ineligible for benefits. In the case of housing assistance, the statute makes “fugitive felon” status grounds for termination of tenancy.  A companion provision of each of these statutory provisions authorizes the administering agency to release information regarding the location of the recipient of benefits to the appropriate law enforcement agency so as to facilitate arrest. 

While the massive changes wrought by the 1996 welfare reform act have preoccupied many in the national legal aid community in the years since, relatively little attention was paid initially to the “fugitive felon” provisions, which many perceived as relatively minor in consequence.  Indeed, this perception was accurate at the beginning. In the first full year after enactment, only twenty-three SSI recipients nationwide were affected. But since 2002, when the Social Security Administration began a computer-matching program in cooperation with law enforcement agencies in several states, the number of people affected by these provisions has increased dramatically.. By mid-2002 approximately 110,000 beneficiaries of TANF, SSI, and food stamps had been determined to be fugitive felons subject to loss of benefits.  According to the Social Security Administration approximately 78,000 of these were SSI recipients who lost benefits worth $252 million. The agency's Office of Inspector General reports that this resulted in 7,951 arrests

Although the provisions are commonly referred to as the "fugitive felon" or "fleeing felon" law, the disqualification also applies to probation or parole violators. The statute provides that an individual is ineligible for SSI benefits if that person is:

(A) fleeing to avoid prosecution, or custody or confinement after conviction, under the laws of the place from which the person flees, for a crime, or an attempt to commit a crime, which is a felony under the laws of the place from which the person flees, or which, in the case of the State of New Jersey, is a high misdemeanor under the laws of such State; or
(B) violating a condition of probation or parole imposed under Federal or State law.

42 U.S.C. § 1382(e)(4); see also 20 C.F.R.§ 416.202(f).

Currently, there is no “notice” or “intent” requirement expressly written into statutes. SSA has issued policies in its Program Operations Manual System (“POMS”) interpreting the federal law and regulations. The POMS do not require that a decision to deny or terminate benefits be based on any evidence that the person has knowingly or intentionally fled.  Simply put, a person is considered a “fleeing felon” anytime there is a felony warrant  Thus, SSA policy provides that an individual is ineligible for benefits based on the mere existence of any felony warrant even if the individual has no actual notice of the warrant and there is no evidence of intent to flee to avoid prosecution.

SSA's interpretation of the regulations was struck down in Hull v. Barnhart, 336 F.Supp.2d 1113 (D.Or. 2004), a case handled by Lane County Legal Aid Attorney Jim Kocher.  In Hull, the court held that the regulations require a finding that the person is fleeing before benefits may be terminated, and that the mere existence of a warrant does not establish that the individual is fleeing prosecution. 

Since Hull, other courts have similarly refused to accept SSA's interpretation of the fleeing felon statutes. See the cases set forth below.

In 2004, Congress enacted the Social Security Protection Act of 2004 which applied the fleeing felon provisions to Title II Social Security benefits (Retirement, Survivors, and Disability benefits), effective January 1, 2005. The Act also created good cause exceptions for both SSI and Title II benefits. In December 2005, SSA issued proposed regulations implementing the SSPA, and the comment period has closed, but the final regulations have not been issued as of this date (July 2006).

**Portions of this introduction were taken from an article written by Gerald McIntyre entitled "Have You Seen a Fleeing Felon? Social Security Administration Targets SSI Recipients with Outstanding Warrants."  
Click here to view the entire article (pdf)

For a more complete history and background of the fleeing felon law, see,
Myers, "Are You a Fleeing Felon?," Utah L. Rev (2005).

 

Frequently Asked Questions about Fleeing Felon cases
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Why were my client's SSI benefits terminated?

How do I assist someone who has been denied benefits?

Who can help restore benefits once they have been terminated?

Where can I find the relevant statutes and regulations?

Are there any cases in my jurisdiction?

Is there any other commentary on Fleeing Felon Issues?

What is the proposed rule for "good cause" exceptions to fleeing felons termination of benefits?

The relevant Statutes, Regulations, and
Program Manuals (POMS)
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Listed below are the most relevant statutes, regulations and POMS dealing with fleeing felon issues.

Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193 (PRWORA)

• This Act amended the Social Security Act and introduced the fleeing felon law. 
• It restricted benefits for so-called “fugitive felons” in four federal programs: Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), food stamps, and housing assistance. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105, §§ 202 (Supplemental Security Income (SSI)), 821 (Temporary Assistance for Needy Families and the Food Stamp Program), and 903 (housing assistance).
• In the cases of SSI, TANF, and food stamps the statute makes a fugitive felon ineligible for benefits; in the case of housing assistance, the statute makes “fugitive felon” status grounds for termination of tenancy. 

SSI

42 U.S.C. § 1382(e)(4)(A)

(4) No person shall be considered an eligible individual or eligible spouse for
purposes of this subchapter with respect to any month if during such month the person is
–
(A) fleeing to avoid prosecution, or custody or confinement after
conviction, under the laws of the place from which the person flees, for a crime,
or an attempt to commit a crime, which is a felony under the laws of the place
from which the person flees, or which, in the case of the State of New Jersey, is a
high misdemeanor under the laws of such State; or
(B) violating a condition of probation or parole imposed under Federal or
State law.

 

20 C.F.R. § 416.1339(b)(1)(I)

This regulation states that if an individual is ineligible under the "fleeing felon" provisions, the suspension is effective on the first day of the earlier of:

(i) The month in which a warrant or order for the individual's arrest or apprehension, an order requiring the individual's appearance before a court or other appropriate tribunal (e.g., a parole board), or similar order is issued by a court or other duly authorized tribunal on the basis of an appropriate finding that the individual—

(A) Is fleeing, or has fled, to avoid prosecution as described in paragraph (a)(1) of this section;

(B) Is fleeing, or has fled, to avoid custody or confinement after conviction as described in paragraph (a)(2) of this section;

(C) Is violating, or has violated, a condition of his or her probation or parole as described in paragraph (a)(3) of this section; or

(ii) The first month during which the individual fled to avoid such prosecution, fled to avoid such custody or confinement after conviction, or violated a condition of his or her probation or parole, if indicated in such warrant or order, or in a decision by a court or other appropriate tribunal

The critical part of this regulation is the requirement that there be a finding that the individual is fleeing. Federal courts have found that Social Security's interpretation of the regulations is unreasonable because Social Security rules provide that the mere existence of a warrant is sufficient to make an individual ineligible, without regard to whether or not there is a finding that the individual is fleeing. Hull v. Barnhart; Fowlkes v. Adamec.

"The Commissioner argues that if a warrant is issued, the person is a fleeing felon under the statute and remains so until the warrant is resolved. This is not what the regulation provides. It requires a court finding that the person is fleeing."

Hull opinion, at 7.

"Based on a plain reading of the statute and regulations, we conclude that benefits may be suspended only as of the date of a warrant or order issued by a court or other authorized tribunal on the basis of a finding that an individual has fled or was fleeing from justice."

Fowlkes opinion, at 13.

 

20 C.F.R. § 416.1339(c)

"[B]enefits will be restored effective with the first month throughout which the individual is determined to be no longer fleeing to avoid such prosecution, fleeing to avoid such custody or confinement after conviction, or violating a condition of his or her probation or parole."

 

Social Security Protection Act of 2004 (Public Law 108-203)

Section 203(b)(1)(D) sets forth two good cause exceptions to suspension of SSI benefits in fleeing felon cases

an individual shall be eligible if

(i) a court of competent jurisdiction has found the person
not guilty of the criminal offense, dismissed the charges relating
to the criminal offense, vacated the warrant for arrest of the
person for the criminal offense, or issued any similar exonerating
order (or taken similar exonerating action), or

(ii) the person was erroneously implicated in connection
with the criminal offense by reason of identity fraud.

an individual may be eligible if

(i) the offense was nonviolent and not drug-related, and

(ii) the action that resulted in the violation of a condition
of probation or parole was nonviolent and not drug-related

 

POMS (Program Operation Manual System)

The SSA explains in its "Supplemental Security Income" (SI) section of the POMS its regulations and procedures for approval and denial/revocation of benefits. The manual has a section on what it terms the fugitive felon provision:

“As long as a United States warrant or court order is active, SSA considers an individual to be “fleeing” for SSI eligibility determination purposes. This is true even if the law enforcement agency is unwilling to extradite…
“. . . Although the warrant may not specifically state that the individual is a fugitive, or that the individual is fleeing, SSA still considers the individual to meet the ineligibility criteria of the fugitive felon provisions until the warrant is resolved.
“. . . SSI ineligibility applies for all months from the date a valid warrant is issued through the month in which the warrant is satisfied.”

POMS SI 00530.030.

Title II Social Security

Social Security Protection Act of 2004 (Public Law 108-203)

• extends the “fugitive felon” provisions to Title II benefits, effective January 1, 2005
• enacts "good cause" exceptions for Title II and XVI benefits

Section 203(a)(4) of the Act provides that 42 U.S.C. § 402(x) is amended to provide that a person is not eligible for benefits if he or she

(iv) is fleeing to avoid prosecution, or custody or confinement after conviction, under the laws of the place from which the person flees, for a crime, or an attempt to commit a crime, which is a felony under the laws of the place from which the person flees, or, in jurisdictions that do not define crimes as felonies, is punishable by death or imprisonment for a term exceeding 1 year regardless of the actual sentence imposed, or

(v) is violating a condition of probation or parole imposed under Federal or State law.

Section 203(a)(5) of the Act sets forth two good cause exceptions to suspension of Title II benefits in fleeing felon cases

an indvidual shall be eligible if

(I) a court of competent jurisdiction has found the individual
not guilty of the criminal offense, dismissed the charges
relating to the criminal offense, vacated the warrant for arrest
of the individual for the criminal offense, or issued any similar
exonerating order (or taken similar exonerating action), or

(II) the individual was erroneously implicated in connection
with the criminal offense by reason of identity fraud

an individual may be eligible if

(I) the offense was nonviolent and not drug-related, and

(II) the action that resulted in the violation
of a condition of probation or parole was nonviolent and not
drug-related

 

Proposed Federal Regulations -- "Non-Payment of Benefits to Fugitive Felons and Probation or Parole Violations, 20 CFR Parts 404 and 416." 70 Fed. Reg. 72,411 

These are proposed federal regulations for implementation of the Social Security Protection Act of 2004, which extends the fleeing felon provision to Title II benefits and enacts "good cause" exceptions for Title II and XVI benefits.

Resources for challenging "Fleeing Felon" suspensions
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Below is a compilation of resources useful for approaching fleeing felon issues.  A brief explanation of each document has been provided, as well as a link to each of the documents.

Gerald McIntyre, "Have You Seen a Fleeing Felon? Social Security Administration Targets SSI Recipients with Outstanding Warrants," Journal of Poverty Law and Policy, Jan-Feb 2003, pg 474:

This article is a comprehensive introduction to the fleeing felon laws.  This article is a "must-read" for practitioners with clients dealing with fleeing felon revocation or denial of benefits.  Mr. McIntyre is the leading authority in this area, and this article covers the bases on how to deal with the issue, even before the client walks in the door.

 

NOSSCR (National Association of Social Security Claimants' Representatives), “Proposed Social Security Regulations Take Broad Approach to Benefits Ban,” Social Security Forum (December, 2005)

This article discusses the Second Circuit decision in Fowlkes, as well as discussing the new "good cause" exceptions to the fleeing felon law. 

 

"Non-Payment of Benefits to Fugitive Felons and Probation or Parole Violations," 70 Fed. Reg. 72,411 (December 5, 2005)

These are proposed federal regulations for implementation of the fleeing felon provision to Title II benefits and "good cause" exceptions for Title II and XVI benefits.

 

Letter to Commissioner Jo Anne Barnhart from Gerald McIntyre (January 13, 2006)

These are comments on the proposed federal regulations (see above) from Gerald McIntyre at the National Senior Citizens Law Center. Mr. McIntyre is the leading authority on fleeing felon issues and successfully represented Appellant Fowlkes in the recent Second Circuit case, Fowlkes v. Adamec.

 

NSCLC Memorandum by Gerald McIntyre re: 2^nd Circuit Invalidation of Fleeing Felon Regulation (January 1, 2006) 

This memorandum from the National Senior Citizens Law Center discusses the ramifications of the Fowlkes decision for SSI advocates.

 

Brandon G. Myers, "Are You a Fleeing Felon? A Call for the Social Security Administration to Adhere to Its Fugitive Felon Provision's Plain Meaning to Prevent Unfair and Unsuspecting Benefit Suspensions of Non-Fleeing SSI Recipients," 2005:3 Utah L. Rev. 1079 (2005)

This is a well-researched and well written student law review article that does a good job of laying out the history of the fleeing felon law.  It also discusses at some length how the justice department has initiated procedures for identifying benefit recipients with felony warrants.  It concludes with an argument for implementation of an "intent" requirement, citing the Hull case.

 

Kathryn J. Lewis, "Income Injustice: The Impact of Welfare Reform's Fleeing Felon Regulations on SSI Recipients"

This article examines the policy considerations of the implementation of the fleeing felon laws, including the disproportionate effect the law has on relatively minor offenses and the lack of adequate safeguards against unwarranted and inequitable revocations.

 

 

Federal court decisions in Fleeing Felon cases
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Hull v. Barnhart, 336 F.Supp.2d 1113 (D.Or. 2004)

Opinion by U.S. District Court Judge Garr M. King
Plaintiff's Memorandum in Support of Petition for Judicial Review
Defendant's (SSA) Brief
Plaintiff's Reply Brief

Blakely v. Commissioner, 330 F.Supp. 2d 910 (W.D. Mich. 2004)

Opinion

Thomas v. Barnhart, 2004 WL 1529280 (D. Me. June 24, 2004)

Opinion

Garnes v. Barnhart, No. C 02-4428 (N.D. Cal. Nov. 5, 2004)

Opinion

Fowlkes v. Adamec, 432 F.3d 90 (2d Cir., 2005)

Opinion
Appellant's Brief
Appellee's Brief
Appellant's Reply Brief
Appellee's Supplemental Brief