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Fleeing Felon Update

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Fleeing Felon Update
Issue 30, Winter 2006

Fleeing Felon Update
by Lisa Ruby, MPLP Public Benefits Attorney


In 1996, Congress adopted fugitive felon provisions as part of a comprehensive welfare overhaul to ensure that public funds are not employed to fuel a fugitive’s escape from the law. Subsequently, the SSA incorporated the provision into its administrative bylaws with language that suspends the SSI benefits of disabled individuals who have warrants out for their arrest and are fleeing to avoid prosecution. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 enacted the fleeing felon law, which applied only to recipients of Supplemental Security Income (SSI). The statute defines an individual as ineligible for SSI benefits if the person is:

(A) 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 or

(B) violating a condition of probation or parole imposed under Federal or State law.
42 U.S.C. §1382(e)(4)(A) and (B).

More recently, the Social Security Protection Act of 2004 (SSPA) barred the payment of Title II benefits to fleeing felons and probation/parole violators. 42 USC 402(x)(1)(A) states:

"Notwithstanding any other provision of this title, no monthly benefits shall be paid under this section or under section 223 to any individual for any month ending with or during or beginning with or during a period of more than 30 days throughout all of which such individual ……"

(iv) is 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, or, in jurisdictions that do not define crimes as felonies, is punishable by death or imprisonment for a term exceeding 1 year regardless of the actual sentence imposed, or

(v) is violating a condition of probation or parole imposed under Federal or State law.

The ban on SSI recipients has impacted approximately 100,000 beneficiaries and it is expected that five times as many Title II beneficiaries could be affected.


Recent court decisions have interpreted fleeing to mean that the recipient must have the intent to flee. The Fowlkes decision held “the statute does not permit the Commissioner to conclude simply from the fact that there is an outstanding warrant for a person’s arrest that he is ‘fleeing to avoid prosecution’. Fleeing is understood to mean the conscious evasion of arrest or prosecution. Thus, there must be some evidence that the person knows his apprehension is sought.” Fowlkes v. Adamec, 432 F.3d 90 (2nd Cir. 2005). In Blakely, a Legal Services of Northern Michigan case decided in the Western District, the court overturned the magistrate’s recommendation and held that Social Security had failed to show flight to avoid prosecution. Specifically, the court stated:

"Mere existence of a warrant for claimant's arrest on felony assault charge was insufficient to show flight to avoid prosecution, and thus could not serve as the basis for Commissioner of Social Security to terminate claimant's supplemental security income (SSI) benefits, even though claimant was aware of warrant, where claimant was not aware of warrant when he left state, claimant did not attempt to conceal himself, claimant was financially and physically unable to travel to state that issued warrant, and state refused to extradite claimant, even though he volunteered to return. Blakely v. Commissioner of Social Security, 330 F.Supp. 2d. 910 (W.D. Mich. 2004)."


These decisions, other district court decisions and SSPA legislative history clearly show that the statute requires a finding of intent to flee.


Intent to Flee

In response to these court cases and general confusion about the application of the fleeing felon rule in both SSI and Title II claims, the Social Security Administration has proposed amendments regarding the nonpayment of benefits to fugitive felons and probation or parole violators. 70 Fed.Reg. 72411(Dec. 5, 2005). The current SSI regulation for suspension of benefits is consistent with the statute by requiring a court or other appropriate tribunal to have issued a warrant or order that specifically finds that the individual is fleeing to avoid prosecution. 20 CFR 461.1339(b)(1)(i). The proposed regulations would eliminate the “intent to flee” language that is currently in the SSI regulation that is consistent with the statute and would make the individual ineligible to receive benefits on the mere basis that there is an “outstanding arrest warrant”.

Mandatory Good Cause

The criteria for mandatory good cause in the proposed regulations, which are identical for SSI and Title II, track the criteria established in the Program Operations Manual System (POMS) earlier this year. POMS SI 00530.015 & GN 02613.025. The statute mandates that SSA not suspend an individual’s SSI payment, and/or repay a previously withheld payment, if:

a. Court of Competent Jurisdiction.

A court of competent jurisdiction has:

• found the individual not guilty of the criminal offense or probation/parole violation; or
• dismissed the charges relating to the criminal offense or parole/probation violation; or
• vacated the warrant for arrest of the individual for the criminal offense or probation/parole violation; or
• issued any similar exonerating order or taken similar exonerating action (e.g., the criminal offense on which the warrant is based is either no longer considered a crime punishable by death or confinement of more than one year or no longer enforced).


b. Individual Erroneously Implicated

The individual was erroneously implicated in connection with the criminal offense by reason of identity fraud. POMS SI 00530.015.

Discretionary Good Cause

If good cause cannot be found based on mandatory good cause, recipients will be given the opportunity to establish good cause based on mitigating circumstances. Proposed §§404.71(b)(2) & 416.1339(b)(2) provide for good cause when all four of the following requirements are met:

(1) there is no violence; and
(2) there are no drugs; and
(3) the individual has not been convicted of or pled guilty to another felony since the date of the warrant; and
(4) the law enforcement agency that issued the warrant reports that it will not extradite for the charges on the warrant or otherwise take any action on the warrant for the individual’s arrest.

Another option for discretionary good cause is provided by §§ 404.471(b)(3) & 416.1339(b)(3) when the individual can meet the first three requirements of the preceding paragraph as well as two additional requirements. Those two additional requirements are that the warrant was issued 10 or more years ago, and either:

(a) the individual’s medical condition impairs the individual’s mental capability to resolve the warrant; or
(b) the individual is legally incompetent; or
(c) a representative payee has been appointed; or
(d) the individual is residing in a long-term care facility.

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