What Prisoners Should Know about Social Security

As an inmate or incarcerated person, you are entitled to certain constitutional rights such as freedom from cruel and unusual punishment and the right to medical care. Prisoners also retain certain rights, such as First Amendment freedom of speech rights and the ability to practice one's religion. However, as a prisoner you may also lose some of the rights and benefits conferred upon citizens that are not incarcerated. For instance, under federal law, Social Security and Supplemental Security Income (SSI) benefits generally are not payable for months that you are confined to a jail, prison or certain other public institutions for the commission of a crime.

The No Social Security Benefits for Prisoners Act of 2009

The No Social Security Benefits for Prisoners Act of 2009 (NSSBP):

Prohibits payment of any retroactive Title II or Title XVI payments to a current or terminated beneficiary or recipient who is subject to suspension because he or she is:

  • A prisoner,
  • Confined in a public institution based on a court order for a criminal act (CPICO);
  • A fugitive felon (FF); or
  • In violation of probation or parole (PPV).

Intent of the NSSBP

When the NSSBP was enacted in 2009, Congress intended to prohibit any payments of Social Security benefits to prisoners, even retroactive payments. Therefore, under NSSBP, the Social Security Administration (SSA) will not pay retroactive benefits until the beneficiary is no longer a prisoner, probation or parole violator, or fugitive felon. The law also prohibits paying death underpayments on the record of a deceased beneficiary or recipient to a surviving beneficiary or recipient who is not eligible for monthly benefits or payments based on being a prisoner, confined in a public institution based on a court order for a criminal act, a fugitive felon or parole violator.

Under the No Social Security Benefits for Prisoners Act, Social Security benefit payments are held until an individual is released from incarceration. The benefits are suspended if an individual is convicted of a criminal offense and sent to jail or prison for more than thirty continuous days. Conviction is the operative word. Benefits are not suspended if you are awaiting trial or pleas.

Your payments will be suspended beginning with the month in which you were first incarcerated after being convicted and sentenced. You would also not receive benefit payments if you were confined by court order and at public expense to an institution because you were found to be incompetent to stand trial or found guilty by reason of insanity or mental disease.

Here is an example of the timeline of a suspension of payments:

  • You are convicted of a crime, sentenced and jailed on July 10 for a sentence of more than thirty days. You do not receive your benefits because they have been suspended. You are not eligible for the July payments which are paid in August.
  • You are released from jail to a halfway house administered by the Department of Corrections. Your benefits continue to be suspended.
  • You are released from the halfway house and on parole on September 10. You are now eligible for October benefits; the benefits are reinstated.
  • You receive your first reinstated check in November because benefits are paid in the month after they are due.

Although your payments are suspended if you have been convicted, if you have a spouse or child getting monthly Social Security dependent checks on your record, those benefits are not suspended, and your spouse or child will continue receiving them.

Supplemental Security Income Benefits- Title XVI

The Social Security Administration (SSA) has programs with Social Security benefits and another federal government program called Supplemental Security Income (SSI). SSI pays a small monthly welfare stipend to people with limited income and resources who are elderly (age 65 or older), blind, or disabled. Similarly to SS benefits being suspended while you are incarcerated due to your conviction, the same is true for SSI benefits.

Application for Disability Benefits while Incarcerated

If you become disabled while you are incarcerated, you can apply for Social Security disability benefits while in jail, but the benefits will not start to accrue until you had been disabled for five full calendar months or until the first full calendar month after your release, whichever is later. Also, you might be able to use a prerelease agreement, an agreement that allows you to apply for SSI before your release and helps to ensure that your benefits will come quickly after your release. If you are a current SSI recipient who is confined for 12 consecutive months or longer, then you must reapply and be approved again.

Find out About Your Rights from an Attorney

As a prisoner, there are certain things that you should know about your rights and the limitations to your rights. An experienced attorney can help you determine whether you are entitled to Social Security benefits. If you or someone you know is incarcerated and needs help regarding their Social Security or SSI benefits, then contact an attorney.

Next Steps

Contact a qualified civil rights attorney to help you protect your rights.

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