FUGITIVE FELON UPDATE: LAWS AND LITIGATION

1. FUGITIVE FELON UPDATE: LAWS AND LITIGATION CORT Public Benefits Training April 25, 2007 Reentry Law Project: focus on the civil consequences of criminal convictions. Not an expert on public benefits, but I think Lisa asked me talk today because I�m currently litigating a case in the Western District on the fleeing felon issue. Will keep my presentation short today, and hope that we can have a discussion afterwards about what issues you are seeing and what strategies are working for you. Reentry Law Project: focus on the civil consequences of criminal convictions. Not an expert on public benefits, but I think Lisa asked me talk today because I�m currently litigating a case in the Western District on the fleeing felon issue. Will keep my presentation short today, and hope that we can have a discussion afterwards about what issues you are seeing and what strategies are working for you.

2. The Problem �Fleeing felons� are being cut off from public benefits. �Fleeing felons� are typically elderly and disabled individuals who are being denied subsistence income because of old warrants, often for quite minor crimes. Disqualification most commonly affects disability payments, but can also impact food stamps, TANF, and other programs.

3. Statutory Basis for Ineligibility: SSI 42 U.S.C. �1382(e)(4)(A): a person is ineligible for benefits during any month in which the person is (i) 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� (ii) violating a condition of probation or parole imposed under Federal or State law. SSI disqualification adopted in 1996. Good cause exceptions apply.

4. Statutory Basis for Ineligibility: Title II In 2004, Congress extended the �fleeing felon� provisions to Title II beneficiaries. 42 U.S.C. �402(x)(1)(A) has essentially the same language as SSI disqualification provision. Good cause exceptions apply.

5. Statutory Basis for Ineligibility: Food Stamps 7 U.S.C. 2015(k): �fleeing felons� are not eligible to participate in the food stamp program. Same statutory definition. Apparently no good cause exceptions. However, USDA Regional Letter 02-03 limits ineligibility to person �acting with intent to avoid prosecution.� Person assumed to be �fleeing� once informed of warrant.

6. Statutory Basis for Ineligibility: TANF 42 U.S.C. �608(a)(9)(A): states which accept block grants, shall not use any part of the grant to provide assistance to any individual who is a �fleeing felon.� Same definitions as for SSI/Title II. Apparently no good cause exceptions.

7. How the Process Works Fugitive Felon Matching Operations: cross-matching of governmental databases. Social Security actively involved in matching process. Much less likely to see disqualifications in other programs because matching appears to be less common. Disqualification from TANF/FAP may result when client reports being cut off from SSI/Title II.

8. What Happens Next? If your client is a mass murderer now living off SSI, law enforcement will apprehend him/her, and the client heads off to prison. More typically, law enforcement from the charging jurisdiction has little interest in your client�s case, and you have to figure out how to help your client avoid utter destitution.

9. Notification to Client SSA notifies client that being cut off from benefits due to the existence of an outstanding warrant. May also seek to recoup any benefits paid since warrant was issued. Often the client had no knowledge that there is an outstanding warrant.

10. Practice Tip: Get documents from the underlying criminal case Underlying documents from the criminal case may help you assess: Whether charge is really a felony. Whether case was actually resolved. Approximately � of cases on file with FBI are missing disposition information. Whether prosecuting jurisdiction will extradite. Whether client qualifies for benefits under the good cause provisions. Whether client was really �fleeing.�

11. Period of Disqualification Ineligibility period starts with month when warrant issued (or first month that avoiding prosecution, if indicated on warrant). Because warrants often old, this frequently results in an �overpayment� issue. For SSI, ineligibility period can go back no further than August 1996. E.g. If warrant from August, 1992, ineligibility period starts in August, 1996. For Title II, ineligibility period can go back no further than January 2005.

12. Resumption of Benefits Benefits resume the first month in which there is no longer an active felony warrant, even if criminal case is ongoing. Example: Client has active felony warrant from January 2006. Client goes to court and pleads guilty on January 15, 2007. Client�s benefits resume February 2007. Example: Same facts. Client is arrested on January 15, 2007, and released on bond. Client is not tried until June 2007. Client�s benefits still resume in February 2007.

13. Good Cause Exceptions Good cause exceptions available for SSI and Title II disqualifications. Theoretically, SSA is supposed to be checking for good cause exceptions. But that doesn�t seem to happen. Proving good cause is one of the quickest ways to get a client back on benefits. See sample letters.

14. Good Cause Standard POMS creates two categories of good cause: mandatory good cause and discretionary good cause. For SSI: POMS SI 530.015 For Title II: POMS GN 02613:025 POMS definition of good cause is more restrictive than statutory provisions, because POMS imposes a �no subsequent felony� rule for discretionary good cause.

15. Mandatory Good Cause: Exoneration May not suspend and must repay previously withheld benefits if: Found not guilty. Charges dismissed. Warrant vacated. Other exoneration, e.g. offense is no longer a felony. While a conviction/guilty plea also results in reinstatement of benefits (assuming not incarcerated), exoneration allows for repayment of back benefits.

16. Practice Tip: Try to Get the Case Resolved or Warrant Vacated If an out-of-state warrant, contact the public defender or an unrestricted local legal services office for help in the criminal case. Restricted programs may be able to provide referrals to local criminal defense practitioners. Depending on the charges, the distance to the charging jurisdiction, and the client�s health/ability to travel, the client may want to go to the charging jurisdiction to resolve the case.

17. Advantages of Resolving the Criminal Case Client is no longer facing prosecution. But if convicted, faces civil and criminal consequences of conviction. If you get case resolved some other way, but warrant is still active, client may be cut off benefits again in the future as a result of the automatic matching process. If case is dismissed or warrant vacated, client should be entitled to back benefits, and won�t be liable for an overpayment.

18. If You Get the Warrant Vacated or Case Dismissed� Contact SSA and ask for immediate reinstatement of benefits, repayment of any back benefits, and cessation of collection on alleged overpayments.

19. Potential Problems Even if Get Warrant/Case Dismissed Even if benefits are restored prospectively, SSA may still seek to collect alleged overpayment or refuse to repay benefits withheld while warrant was active. SSA has been taking position that because �good cause� provisions were not added until January 2005, SSA will not repay benefits withheld prior to that date. Proposed regs contain this limitation, but neither statute nor POMS contains such a limitation. Compare 70 FR 72411, at 72413 with 42 USC 1832(e)(4) and POMS SI 00530.015.

20. Mandatory Good Cause: Identity Fraud �Criminal records identity theft� � i.e. arrestee gives name that belongs to someone else � is extremely common. FTC estimates 400,000 Americans affected.

21. How Do You Prove Identity Theft? POMS requires a document from the issuing agency or court stating that the warrant was erroneously issued in the individual�s name. This may be impossible to get. If you have other good proof that the warrant doesn�t belong to your client � e.g. documents showing client was someplace else at the time of the crime � see if SSA will accept that. We have not had much luck with the �it wasn�t me� approach. SSA has said � let the issuing court figure out if it was you. We have not had much luck with the �it wasn�t me� approach. SSA has said � let the issuing court figure out if it was you.

22. Discretionary Good Cause: Option A Offense for which person charged was non-violent and not drug-related; and Recipient was not convicted of any subsequent felony since the warrant was issued; and The law enforcement agency that issued the warrant is unwilling to extradite.

23. Discretionary Good Cause: Option B Offense was non-violent and not drug-related, and Recipient not convicted of any subsequent felony, and Warrant is the only existing warrant, and was issued 10 or more years ago, and Recipient lacks the mental capacity to resolve the warrant.

24. Timelines for Good Cause Mandatory good cause: may request at any time. Discretionary good cause: must request within 12 months of Notice of Planned Action. Once either mandatory or discretionary good cause is requested, have 90 days to provide necessary evidence.

25. Proving Good Cause POMS sets out specific documents SSA will accept as proof. For SSI: POMS SI 530.010 For Title II: POMS GN 02613:025 Some SSA offices are accepting documents other than those specified in POMS.

26. Proving That Offense is Not Violent or Drug-related To prove nature of offense, get documents from the underlying criminal case. See POMS SI 530.910B and GN 02613.900 for listing of which crimes are considered violent or drug-related.

27. Proving Law Enforcement Won�t Extradite To prove law enforcement won�t extradite, check if warrant indicates that it has limited reach, e.g. �Wisconsin Only�. Or, get letter from law enforcement agency stating it won�t extradite. If you are concerned your client might be extradited, and that extradition would be a problem, consider sending the prosecutor medical information showing how disabled your client is, i.e. that they really don�t want him/her in their local jail.

28. Proving Lack of Subsequent Criminal History To prove that person does not have subsequent convictions, POMS suggest a statement from the client made under penalty of perjury (SSA-795). WARNING: Many clients do not know what is on their criminal records, and will claim, without intending to lie, that they have no felonies when they do. You should independently investigate your client�s record, and use that as proof that the client has no subsequent felony convictions, unless SSA demands a sworn statement.

29. How to Get Your Client�s Record What record you will need will depend on where the client has lived. You should get records for every state in which the client lived since the warrant was issued. Michigan records can be obtained on ICHAT. Many other states have on-line search capabilities. 50-state records can be obtained from the FBI, but client must be fingerprinted. For more information on how to get records, including how to do so for free, see: reentry.mplp.org

30. What If Good Cause Doesn�t Apply? What if you can�t get anyone to help you get the case dismissed? What if your client has a violent or drug-related felony? What if your client has a subsequent felony conviction?

31. Challenging Whether Your Client is a �Fleeing Felon.� Recent court decisions have provided two avenues of attack: A. Person cannot be �fleeing� without the intent to avoid prosecution. B. Regulations require that the warrant specifically state that the person was fleeing to avoid prosecution. Fowlkes v. Adamec, 432 F.3d 90 (2nd Cir. 2005), and series of trial court decisions.

32. SSA�s Response to the Courts SSA issued Acquiescence Ruling, 06-1(d), 71 FR 17551 (April 6, 2006), stating it will abide by Fowlkes, but in Second Circuit only. In all other circuits, SSA continues to take the position that the mere existence of a warrant is sufficient to suspend benefits. SSA also issued new proposed regulations, 70 FR 72411 (Dec. 5, 2005), which would explicitly provide that the existence of a warrant establishes that a person is a �fleeing felon.� Thus regulations have not yet been adopted.

33. Lack of Intent to Flee Statutes and current regulations require that person be �fleeing to avoid prosecution� in order for benefits to be suspended. Every court that has considered this issue has concluded that there must be an intent to flee, i.e. �the conscious evasion of arrest or prosecution.� Courts have also specifically rejected SSA�s argument that its interpretation of the statute deserves deference. Caselaw is in SSI/Title II area, but argument applies equally to food stamps, TANF, etc.

34. Challenges Based on Lack of Intent to Flee �Lack of intent to flee� arguments are available even where good cause exceptions don�t apply. Cases so far have looked at both statutes and regulations. If/once SSA adopts new regulations, this argument will have to be based on statutory language alone. Winning these cases will require a hearing, and probably a court appeal. However, the issue is worth arguing in any case where the facts merit it.

35. Proving Lack of Intent:Lack of Knowledge of Warrant Show client did not know about warrant. For example, left jurisdiction before warrant issued, warrant served to incorrect address, etc. See, e.g. Fowlkes, Hull v. Barnhart, 336 F.Supp. 2d 1113 (D. Ore. 2004).

36. Proving Lack of Intent: Inability to Resolve Warrant Show that once client learned of warrant, client lacked the ability to resolve the warrant, and therefore is not intentionally fleeing. Client is too ill to travel. See, e.g. Blakely v. Commissioner of Social Security, 330 F.Supp. 2d 910 (W.D. Mich. 2004). Client doesn�t have the money to travel and prosecuting jurisdiction won�t extradite. See, e.g. Fowlkes, Blakely. Client lacks the mental capacity to be �fleeing� Garnes v. Barnhart, 352 F.Supp. 2d 1059 (N.D. Cal. 2004).

37. Challenges Based on Requirement that Warrant Specify That Person Is Fleeing 20 C.F.R. �416.1339(b)(1) refers to a warrant issued �on the basis of an appropriate finding that the individual� is fleeing, or has fled, to avoid prosecution.� Courts have said this means there must be a judicial determination that an individual is fleeing, i.e. the warrant must have been issued based on finding of flight. See Fowlkes, Garnes. Again, winning these cases will require a hearing, but issue is worth preserving. Argument may not work if new regs are adopted.

38. Demonstrating the Inadequacy of the Warrant May be apparent on the face of the warrant, or from criminal case file. Check if issuing jurisdiction has different types of warrants, and what kind of warrant your client has. Warrants based on a finding of flight: warrant issued because client absconded, failed to appear for a court appearance, etc. Warrants not based on finding of flight: arrest warrants issued when case is initiated.

39. Future Developments to Watch Possible enactment of new SSA regulations. Clark v. Barnhart: class action on denial of benefits to individuals who are �violating a condition of probation and parole.� Western District of MI case on definition of �fleeing felon.�

40. Tools for Your Practice Michigan Reentry Law Wiki: reentry.mplp.org Michigan and national materials, sample pleadings. Reentry Net: www.reentry.net Must register for NY portion of site. Extensive resources on fleeing felon issue, many of which are nationally applicable.

41. Trainer Contact Information Miriam Aukerman Reentry Law Project Legal Aid of Western Michigan 616-774-0672 ext. 114 maukerman@legalaidwestmich.net