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Courts Give, Congress Takes Away, Benefits to Non-Fleeing Felons

January 21, 2010

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

Benefits - or lack thereof - for felons and prisoners are in the news this month. The good news: the Social Security Administration (SSA) is poised to pay out more than $500 million in benefits that were wrongfully withheld from so-called “fugitive felons.”  The bad news: Congress has passed legislation barring the receipt of these or any other retroactive benefits by prisoners.

Martinez Settlement

Under the provisions of the nation-wide class-action settlement in Martinez v. Astrue, SSA has agreed to repay people whose benefits have been suspended or denied since January 1, 2007, based on the mere existence of an outstanding arrest warrant.  Over 200,000 people whose benefits have been suspended or denied since January 1, 2007, are potentially eligible for retroactive benefits in varying amounts; approximately 80,000 are potentially eligible for full retroactive reinstatement of benefits totaling over $500 million.

SSA has begun sending out informational notices advising 28,000 class members who have had their Social Security (Title II) benefits suspended since January 1, 2007, that they may be able to have their benefits reinstated retroactively.  SSA has also issued the first of several new POMS (Program Operations Manual System) sections dealing with the Martinez settlement.  See POMS GN 02613.865-02613.885, available at

The National Senior Citizen Law Center (NSCLC) has set up a website explaining the provisions of the settlement for both advocates and claimants, including handouts for consumers that can be copied and distributed.  Jerry McIntyre of the NSCLC and one of the attorneys for the plaintiffs in Martinez will be conducting a webinar on the settlement on January 29, 2010.  SSA also has a section on its website pertaining to the settlement:

New Legislation

In response to a request from SSA, Congress quickly acted upon legislation that would bar any Martinez class members who are currently in prison from receiving any part of the settlement. SSA had identified 150 potential class members who would have been entitled to full retroactive reinstatement.  President Obama signed “No Social Security Benefits for Prisoner Act of 2009,” Pub. L. No. 111-115, into law on December 15, 2009.

The legislation will also bar parole and probation violators from receiving retroactive payments. The prior law prohibited payment of benefits, including retroactive benefits, for any month in which the beneficiary was violating a condition of probation or parole. The new law also prohibits payment of retroactive benefits for periods prior to any violation until such time as the violation has ceased.  This provision is likely to affect only a small number of beneficiaries.  [While the Martinez settlement does not cover parole and probation violations, advocates will recall that there is also litigation pending at the Second Circuit Court of Appeals challenging SSA’s treatment of alleged parole and probation violators.  See the May 2009 edition of the Disability Law News for more on Clark v. Astrue.]

Advocates involved in the Martinez litigation fear that there will be further Congressional action in this area, potentially reversing the results of Martinez.  Congress has already asked the SSA’s Inspector General to review the ramifications of the settlement and to suggest additional legislation that might be necessary.  “Congressional Response Report:  The Social Security Administration’s Fugitive Felon Program and the Martinez Settlement Agreement,” A-01-09-29177 (October 15, 2009) is available at

Ramifications Beyond Martinez

While Martinez was the justification for this legislation, its impact is not restricted to the Martinez class.  It will prohibit all retroactive payments to prisoners.  Although prisoners are already barred from receiving benefits while incarcerated, payment of retroactive benefits had been permitted.  For more on nonpayment of SSI and SSD benefits to prisoners, see the September 2004 edition of the Disability Law News.

The bar on payments to prisoners convicted of felonies was expanded effective April 2000.  Pursuant to Pub. L. No. 106-170, 42 U.S.C. §402(x) was amended to allow SSA to suspend benefits for any beneficiary confined to a jail, prison or other penal institution for more than thirty days.  Although this change is reflected in POMS §GN 02607.160, 20 C.F.R. §404.468 has not yet been brought up to date.  Maybe SSA will just wait until the law is amended again!

Note that none of these provisions affect the entitlement of auxiliaries to benefits.


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