Social Security and Prisons

Benefits

Can I receive Social Security benefits of any kind if I am incarcerated?

No, you are not entitled to benefits under any of these programs while you are confined in a prison, jail or correctional institution. Read more on this fact sheet from the Social Security Administration – “What Prisoners should Know…” Read the law: 42 USC § 402

What happens if I am charged but found not guilty or exonerated?

The Social Security Administration will continue to pay your benefit if a court of competent jurisdiction has found that you are not guilty, dismissed the charges, vacated the warrant for arrest, or taken similar exonerating action.

Can I get benefits once I am released?

The Social Security Administration does not provide any benefits just for ex-prisoners. Once you are released, you can receive benefits if you meet the eligibility criteria.

What if I am released to a halfway house? Will I be eligible for benefits?

First you must meet the program criteria. If you do meet the program criteria and you are living in a halfway house that is under the control of the State Department of Corrections, SSA will not pay you benefits until you are released from the total control of the State Department of Corrections.

If you are living outside of the prison and you are paying your own expenses (food, rent, clothing, utilities, medical care, etc., except for the cost of your ankle bracelet monitoring) you can get Social Security benefits again.

Whenever you are released from prison or jail to a halfway house, you should check with your local Social Security office to find out if your benefits can start again.

If you are already receiving Social Security benefits or Supplemental Security Income (SSI) benefits when you go to prison – your benefits should stop. When you initially applied for Supplemental Security Income (SSI) or for Social Security retirement, disability, or survivors (also known as Title II) benefits, SSA told you about certain changes that could affect your ability to continue to get payments. You are required to notify Social Security of the fact that you were convicted of a crime and confined.

  • If you were receiving SSI - the law states that you cannot live in a public institution (for example, a jail, prison, penal facility, etc.) for a full calendar month or more, and continue to get your SSI benefits.
  • If you were receiving Social Security (Title II) benefits - the law states that if you commit a crime and a court convicts you, and you serve more than 30 continuous days in jail following the conviction, you cannot get your Title II benefits.

Overpayments

It is possible that you may forget to notify Social Security when you are incarcerated and that your benefits will continue. This will create an overpayment. While it may seem like a good idea at first to let the payments continue, Social Security will find out and they will charge you with an overpayment. Read the law: 42 USC § 404
Incentive for reporting your incarceration – Institutions are entitled to receive $200 - $400 for reporting the fact that you are confined in their institution. SSA also encourages individuals to submit anonymous reports on someone in jail who is improperly receiving Social Security benefits. Individuals cannot receive the money incentive.)

  • Your future benefits will be affected – If you are charged with an overpayment, SSA will seek to recover it from your future benefits. It is possible for SSA to sue you to recover the overpayment but that does not happen very often and never for a few months of overpaid benefits.
  • Fraud - If you commit a long-term fraud by receiving benefits for years while incarcerated, especially if you purposely try to conceal your status as a prisoner, the case may be referred to the Office of the Inspector General and possibly the Attorney General for fraud prosecution. SSA operates an anonymous Fraud Hotline where the public can report suspected fraud. 

Appeal and/or Waiver of an Overpayment – You will have 60 days after the notice that you are overpaid to decide

  • Is the amount correct? and
  • If there was an overpayment of some amount, are you eligible for a waiver of the overpayment recovery?

To show that you are eligible for a waiver, you must prove to Social Security that you are:

  • without fault in causing the overpayment and
  • adjustment or recovery would “defeat the purpose of the Act” (this means that you will not be able to meet your “ordinary and necessary living expenses” if you are forced to repay. This will require a financial statement. Be mindful of the fact that many of your “ordinary and necessary living expenses” do not exist while you are incarcerated.
  • If you cannot show financial hardship, you may be able to show that it would be unfair if you had to repay the overpayment. This is usually defined as
    • You changed your position for the worse or
    • You relinquished a valuable right because you relied on the overpayment .The regulations offer examples of these.

This will be the position that Social Security will take if you are charged with an overpayment as the result of being incarcerated and not notifying SSA of the change in circumstances.

    “When you applied for Social Security benefits, you were told of the changes or choices that you might make while receiving Social Security benefits that could affect your ability to continue to get payments. SSA told you that you are responsible for reporting these changes to us. You were also given a copy of those conditions or reporting requirements for your own records. Social Security has a record of your agreement that you understood these reporting requirements and that you received a copy of these materials. This makes you responsible for paying back any money you should not have gotten because you did not report to SSA.”

Taking Action an on Overpayment

  • First - limit your liability by making sure that the checks stop.
  • Second – as soon as you receive an overpayment notice, check the date by which you need to file
    • an appeal (called a reconsideration) if the amount of the overpayment is wrong - Background on asking for a reconsideration  (Ask for a case review.) and/or
    • request a waiver of the overpayment if you believe that you are not at fault and cannot any it back - Background on a waiver request and link to the SSA form to request a waiver
  • Third – gather your evidence, review the standards for a waiver and prepare your argument. Find legal help to assist you. Submit it on time!

Benefits to others based on your work record - Although you cannot receive monthly Social Security benefit payments while you are confined, your spouse or children can be paid benefits on your record if they are eligible. And if you have worked and paid Social Security taxes, survivors benefits also may be paid to certain family members in the event of your death.

SSI and “Fugitive Felons”

An individual is ineligible to receive SSI benefits for any month during which he or she has:

  • an unsatisfied warrant for a crime that is a felony or, in jurisdictions that do not define crimes as felonies, is punishable by death or imprisonment for a term exceeding one year regardless of the actual sentence imposed under the laws of the place from which the warrant is issued. The Social Security Administration defines this individual as a "fugitive felon";
  • an unsatisfied warrant for avoiding custody or confinement after conviction for a crime which is a felony or, in jurisdictions that do not define crimes as felonies, is punishable by death or imprisonment for a term exceeding one year regardless of the actual sentence imposed under the laws of the place from which the person flees; or
  • violated a condition of probation or parole imposed under Federal or State law.

Also, the Social Security Administration may continue to pay an individual's benefit if the individual establishes that the offense underlying the warrant or imposition of the probation or parole (as well as the violation of probation or parole) was both nonviolent and not drug–related and there were mitigating circumstances for not satisfying the warrant.

Selection as Rep Payee

A Representative Payee (Rep Payee) is someone who receives Social Security or SSI benefits on behalf of someone else who is unable to mange their own funds (often child or person with a mental disability or addiction) Here is the form to request to be appointment as a Rep Payee

If you were a Rep Payee for someone when you were incarcerated, SSA will look into whether you are still the best person to manage the payments on behalf of the Social Security beneficiary. The fact that you are in jail does not automatically mean that you cannot continue as a representative payee.

If you want to be appointed as a Rep Payee for someone on the outside, there is a slight possibility but it will depend upon whether there is a better choice outside and the nature of your crime. It is not likely. If the crime of which you were convicted involved a money fraud or theft or if you were violent against the person who needs the help, you will not be appointed.

Is this legal advice?

This site offers legal information, not legal advice.  We make every effort to ensure the accuracy of the information and to clearly explain your options.  However we do not provide legal advice - the application of the law to your individual circumstances. For legal advice, you should consult an attorney.  The Maryland State Law Library, a court-related agency of the Maryland Judiciary, sponsors this site.  In the absence of file-specific attribution or copyright, the Maryland State Law Library may hold the copyright to parts of this website. You are free to copy the information for your own use or for other non-commercial purposes with the following language “Source: Maryland's People’s Law Library – www.peoples-law.org. © Maryland State Law Library, 2013.”