SOCIAL SECURITY BENEFITS FOR PRISONERS
ISSUE SRi3F NUMSER IB81163
Education and Public Welfare Division
T H E LIBBARP OF C O N G R Z S S
CONGRESSIONAL RESEARCH SERVICE
KAJOR ISSUES SYSTEM
DATE ORIGINATED 06/16/80
DATE UPDATED 06/04/83
F C R A D D I T I O N A L INFOEtMATION C A L L 2 8 7 - 5 7 0 0
On Mar. 24, 1983, the Congress adopted, a s part of the Social Security
a measure to preclude virtually all
Amendments of 1983
incarcerated felons from receiving social security benefits of any k i n d ,
including retirement and survivor benefits.
This action expanded previous
In October 1980, legislation had been enacted
that denied only social security disability benefits and student benefits to
prisoners convicted of a felony.
Concern also arose in the 97th Ccngress about difficulties the Social
Security Administration encountered in obtaining identifying information
necessary to remove prisoners from the benefit rolls a s required by the 1980
legislation. To remedy the latter situation, Congress included i n P.L.
97-123, enacted in December 1981, a provision that requires government
agencies to provide the name a n d - s o c i a l security number of prisoners to the
Social Security Administrati-on.
BACKGROUND AND POLICY ANALYSIS
LAW PRIOR TO OCTOBSR 1980
Prior to the enactment of P.L. 96-473 on Oct. 1 9 , 1 9 8 0 , prisoners of penal
institutions or other incarcerated persons, such a s the Criminally insane who
were confined tc mental institutions, could become entitled to social
security benefits if they met the several conditions required for benefits.
The fact that they were convicted of crimes and were incarcerated, or were
otherwise institutionalized, did not interfere with their rights to benefits.
Three related provisions of law and regulation did exist, however, which
authorized the withholding of benefits to persons convicted of certain
crimes. One originated as an amendment to the Social Security Act in 1 9 5 6
(section 202 ( u ) ) , which allows a judge, a s part of a sentence, to deny
payment of social security benefits of any type to an individual convicted of
subversive crimes against the U.S.
Government (espionage, sabotage, treason,
The individual does not necessarily have to be a prison
inmate. Also, section 202(N)
of the Social Security Act provides for
some benefits upon the deportation of the insured worker
following violation of certain provisions of the Immigration and Nationality
The third provision, proviaed for by regulation (as amended, 44 F.R. 34479
(June 1 5 , 1979)), precludes paying benefits to people convicted of the
felonious homicide of a relative, and then claiming benefits based on the
earnings record of the perscn
This prohibition extends to
survivor benefits claimed by the convicted person or to dependents of that
(This regulation was recently revised to include minors convicted in..
jxvenile court of killing the workers -- see below.)
The 1956 Amendment
The question of the payment of social security benefits to persons who
commit crimes was brought up in the mid 1950s when i t became known that a
Cormunist party official who had been convicted under the Smith Act was
getting benefits while serving time in an Atlanta prison.
This too raised a
furor and Senator Williams of Delaware introduced a bill in 1956 similar to
the bills introduced in the 96th Congress.
The issue was discussed
Senate Committee on Finance when the committee was considering the original
disability insurance legislation that year, but was dropped due to concern
that such denial of benefits might be unconstitutional.
Williams pressed the issue on the floor when the disability insurance
amendments were brought up for Senate action, and his provision was adopted
by voice Vote.
During the conference on the bill, Representative Mills of
Arkansas again raised the question of the constitutionality of the provision,
on the basis that such a measure might violate the "ex post facton amendment
of the Constitution.
Specifically, it raised the question of whether a
penalty possibly was being added to the sentence of the judge after che fact.
In lieu of a n across-the-board measure precluding benefits on account of a
subversive criminal act, the; conferees adopted a measure (section 202(u)
existing law), allowing a judge to deny social security benefits a s part of a
Sentence for conviction of a subversive crime.
It is not known whether a
judge has ever exercised this authority.
Concerns Leading to Legislation in 1980
Congressional concern was stimulated by a number of press aCCOUntS,
originally appearing in newspapers in Trenton, N.J.
and New York City,
suggesting that a large number of prisoners, perhaps 30,000 nationwide, were
receiving some $60 million in social security disability insurance benefits
One account suggested that prisoners in New Jersey were allegedly
receiving such benefits on the basis of bogus mental
account reported that David Berkowitz, the so-called "Son of Sam," . w h o was
convicted of numerous murders in the New York City area, was receiving social
security benefits and had applied for VA
subsequently had been terminated from the social security rolls.)
stories highlighted cases of persons who had committed major crimes, but were
found not guilty by way of insanity, and subsequently were able to obtain
social security disability benefits due to their mental illnesses.
found not to be able to engage in "substantial gainful activity" because of
The thrust of the articles was that there was a moral question involved in
the payment of benefits to prisoners, that prisoners were causing a sizable
drain on the social security system a t a time when i t was having financias
problems, and that since these individuals were in prisons, a t public
expense, they did not need such benefits.
At that time, the Social Security Administration was unable to provide a
figure on the size of the prison population receiving social security
benefits of any type -- retirement, disability, or survivors benefits.
such records had been kept, since no aspect of the existing program pertained
specifically to prisoners a s a distinct group of beneficiaries, and no
studies have been done on the question. The only aggregate data that existed
were from the 1970 census.
These aata indicated
that possibly, 4,000
prisoners were receiving social security benefits of one sort or another at
that time. Data from a very small G A O sample showed that 224 prisoners in
Federal penal instituticns, out of 17,000 for whom
social security numbers
were found, were receiving social security benefits a s of April, 1980.
represented 1.3% of that group.
If the same percentage had been applicable
to the 450,000 or more persons in Federal, State and
institutions, the social security actuaries estimated that the number of
prisoners in the United States receiving social security benefits of one form
or another would have totaled about 5,000 to 6,000. Benefit payments would
have amounted to $20 to $25 million per year.
The question of bogus mental illnesses resulting in the payment of
disability benefits in New Jersey was the subject of questioninq in the f a l l
of 1979 by Representative Pickle, chairman of the Subcommittee on Social
Security of the House Committee on Ways and Means.
Officials of the New
determinations for the Social Security Administration in that State) stated
that they did not know the extent of their workload involving claims from
prisoners or to what extent the prison population in New Jersey was receiving
social security disability benefits.
At the request of the subcommittee, the
New Jersey agency
subsequently compiled a report on
determinations involving prisoners which were currently pending in the agency
The report included the findings
(covering roughly a 4- to 6-month period).
of a 100% review of pending prisoner cases (13 in all) -- most of which
involved denials -- and all of which were found to be made correctly.
to0 small to draw Conclusions f r o m , the report indicated that the volume of
disability claims made by prisoners in New Jersey was 'very small, and there
seemed to be no question about the legitimacy of the decisions rendered.
LEGISLATION IN THE 96TH CONGRESS
In the spring of 1980 there was much legislative activity concerning the
issue of prisoners receiving social security benefits.
The Social Security
Subcommittees of the House Committee on Ways and Means held hearings on the
subject and numerous bills restricting benefits to prisoners were introduced
in both Houses.
The 1981 Budget Reconciliation bill, S. 2885, passed by the Senate on June
30, 1980, included a measure recommeaded by the Senate Finance Committee that
would deny benefits to prisoners convicted of crimes. court of law approved
and the individual engaged in a plan of rehabilitation.
would be denied to individuals who became disabled in the commission of a
crime, or who were responsible for the death of a person on whose earnings
record they were claiming survivors benefits.
Benefits were to be paid
the dependents of the prisoners, and benefits to persons who became disabled
while in prison could be paid once the individual's incarceration ended.
The Finance Committee also included this measure in an identical form i n
H.R. 5295, a bill amending the social security retirement test, which had
been passed by the House earlier in the year. The full Senate passed this
bill on Sept. 30, 1980.
The next day (Oct. 1 , 1980), the bill passed both
the House and Senate, after a House floor amendment changed the language of
the bill to deny benefits to prisoners convicted of felonies
just convicted of crimes).
This measure was signed by President Carter on
Oct. 1 9 , 1980, creating P.L. 96-473.
In summary, P.L.
payment of disability insurance benefits cannot
be made while individuals a r e imprisoned for
conviction of a felony, except where the individual
is participating in a court-approved
student benefits are similarly withheld (based
on any type of social security case -- OASI or DI);
benefits can be paid to dependents of prisoners,
just a s if the prisoners were receiving benefits;
impairments, to the extent that they arise from
or are aggravated by the commission of a crime,
cannot be considered in determining whether a
person is disabled; and
impairments arising while a n individual i s in
prison cannot. be considered for purposes of payment of
disability bemefits while the person remains in prison.
CONCERNS ARISING AND ACTION TAKEN IN THE 97TH CONGRESS
A number of bills were introduced in the 97th Congress, a s well a s a House
reSOlUtiOn, calling for further action to be taken to remove or alter social
security benefits that go to incarcerated persons.
Some proposals providea
that no social Security benefits a t all should be paid
including th-ose receiving or eligible for old age or survivors benefits
(except for student benefits, such benefits were not affected by the 1 9 8 0
Another measure precluaed the payment of disability benefits
under all circumstances
(under the 1980 legislation, a person in
court-approved rehabilitation plan who is likely to engage in substantial
gainful activity in a reasonable timeframe could possibiy continue to receive .
Other bills required Federal penal institutions, or alternatively penal
institutions a t all levels of government, to furnish the names and social
security numbers of their inmates to the Social Security Administration (SSA)
so that the agency could fully enforce the newly enacted provisions of t h e
1980 legislation requiring that certain prisoners be removed from the benefit
rolls. This concern led to a Senate-passed floor amendment to a social
4331 restoring the minimum
Federal, State and local penal institutions to furnish SSA with the names and
social security numbers of prisoners who have been convicted of felonies.
This amendment, offered by Senators Danforth and Chiles, was approved by
voice Vote on Oct. 1 4 , 1981. The bill to which this amendment was attached
was sent back to the House for further action or conference.
This amendment arose out of concern that the Federal Bureau of Prisons
might be precluded under the Federal Privacy Act from releasing the names to
SSA of persons incarcerates in Federal prisons, a s well a s concerns that
privacy statutes in certain States similarly might preclude the release of
the names of persons in State and local prisons.
seemed to have been addressed by recent regulations and agreements worked out
by the Federal Bureau of Prisons and various States with SSA to make such
names,and social security numbers available to SSA, the possibility of c c u r t ,
challenges to the regulations and court rulings that State privacy laws might
have precedence in these situations led Senators Danforth and Chiles to offer
On Dec. 1 4 , 1981, House and Senate conferees, reconciling the
two Versions of H.R. 4331, included the Danforth-Chiles provision in the
The Senate passed H.R. 4331 on Dec. 1 5 , the Senate did likewise
on Dec. 1 6 , and the President signed it into law as P.L. 97-123 on Dec.
Another issue received national attention in January 1982 when i t became
known that two individuals were receiving survivors benefits, even though
they had been found t o have willfully killed the parent on whose record they
Those two individuals were minors when the homicides
occurred, and because their cases were handled within the juvenile court
system, their crimes were not considered to be felonies and therefore not
subject z o current regulations that would preclude payment.
Schweiker subsequently ordered social security offices nationwide not to
process claims from survivors who may have been involved in a n intentional
act which resulted in the death of a parent.
The regulations were recently
revised to preclude payment of benefits in these circumstances.
LEGISLATION IN THE 98TH CONGRESS
- A s part of the major legislation designed to sdlve social security's
financing problems, the Senate Finance Committee on Mar.
reccrnmended a provision to eliminate all benefits (including retirement and
survivor benefits) to convicted felons during incarceration.
COnSideratiOn, the Sen,ate also adopted a n amendment by Senator Humphrey that
would prohibit payment of all benefits to inmates of facilities for the
Since no similar provisions were included in the major
social security legislation (H.R. 1900) passed by the House on Kar. 1 0 , 1983,
the marter was resolved- in conference on Mar.
agreement called for restricting the payme,nt of OASI benefits to incarcerated
felons in the same manner a s are payments of DI benefits (under P.L.
-- see above). The end result is that social security benefits now cannot be
paid to virtually all incarcerated individuals convicted of a felony.
new limitation was signed into law by President Reagan on Apr. 20, 1983, a s
P.L. 98-21, the Social Security Amendments of 1983.
RECENT DATA ON PRISONERS
A GAO study released in July, 1982, matched the names of p.risoners in 13
States, the District of Columbia, and in Federal prisons with the entire
social security benefit roll.
The cross match involved 130,000 prisoners out
of an estimated 314,000 persons incarcerated in Federal and State prisons
throughout the United States in 1980
(local penal institutions were not
involved in the match because it was felt that most such inmates would have
been convicted only of misdemeanors).
GAO estimated that 1.4%
prisoners for whom a social security number could be identified were
receiving social security disability benefits (as a worker or disabled child
of a worker).
If these percentages were extended to the entire Federal and
State prison pcpulation (i.e., the 314,000 in 1980), i t would
about 4,300 persons in Federal and State penal institutions were receiving
social security benefits in 1980 which, a s P.L. 96-473 was enacted, ,become
ineligible (this excludes possible social security recipients in prisons a t
t h e l9cai level).
GAO also estimated that 1,376 incarcerated felons were receiving social
security benefits which were unaffected by P.L.
they a r e
receiving retirement o r survivors benefits. GAO found that approximately 82%
of Prisoners receiving disability benefits had become disabled before their
Current pericd of incarceration.
They further found that 41% of these
disabled prisoners had families.
The GAO report recommended that the Secretary of HHS take action t o
encourage State prison systems to give periodic lists of prisoners and social
security numbers (SSNs) to SSA and that SSA share validated data from that
source with the VA (which also has prisoner benefit restrictions).
progress has been made -- all Governors have been asked to assist in the
effort, and SSN validation problenks have been reduced from over 25% to about
Recent statistics supplied by SSA indicate that a s of Dec. 3 1 , 1982, 6 , 3 2 8
prisoner-beneficiaries had been identified for benefit suspension.
group, benefits had been suspended in 5,928 cases, and 400 other cases were
in the process of being suspended.
The fact that SSA has already suspended
more prisoners than the GAO projections (above) anticipated i s explained by
inclusion of accretions to the prisoner population, improved SSN validation
and some minor sampling error.
SSA further indicated that no prisoner has
avoided having his benefits
REPORTS AND CONGRESSIONAL DOCUMENTS
Conference Report 0n.H.R. 1900. T h e
Social Security Amendments of 1983. Washington, U.S.
Govt. Print. Off., Mar. 24, 1983. Report no. 98-47.
Congress. House. Committee on Ways and Means, Subcommittee
on Social Security.
Social Security benefits for prisoners,
Washington, U.S. Govt. Print. Off., June 1 8 , 1980.
Senate Finance Committee.
recommendations of the Committee on Finance.
Washington, U.S. Govt. Print Off., July 2 5 , 1980.
96-36). 239 p.
CHRONOLOGY OF EVENTS
President Reagan signed H.R.
House-Senate conferees approved H.R.
1900 into law a s
including measure to limit benefits to prisoners
receiving OASI benefits.
Senate Finance Committee approved S. 1 , including
measure to limit benefits to prisoners receiving OASI
President Reagan signed H.R.
House approved H.R.
Senate approvea H.R.
4331 into law a s
House and Senate conferees agreed to include in
H.R. 4331 the provision to help SSA identify
Senate agreed to H.R. 4331 with measure to facilitate S S A 1 s
access to names -. of prisoners in penal institutions.
President Carter signed H.R.
5295 into law a s P . L .
Both House and Senate approved H.R. 5295,..with floor
amendments (no conference), including measure limiting
benefits to prisoners.
Full Senate passed H.R. 5295, a bill modifying the social
security r.etirement test, with an additional measure
identical to the one in S. 2885 limiting benefits to
Full Senate passed S. 2885, the Budget ~ e c o n c i l i a t i o n
bill, including the Finance Committee measure
concerning the limitation of social security
benefits to prisoners.
Senate Budget Committee ordered S. 2885, the Budget
Reconciliation bill, reported favorably to Senate
(including Finance Committee measure concerning prisoners
receiving social security).
House ways and Means Subcommittee on Social Security
held hearings on prisoners receiving social security
Senate Finance Committee adopted measure limiting
disability and student benefits to prisoners a s
part of Budget llreconciliationnmeasures.