Locked Out: How Social Security Bans Keep Incarcerated Communities in Poverty

Kaden Carr

Edited by Dillon Murti, Kira Small, Sahith Mocharla, and Jia Lin

I. Introduction

The Social Security Act (SSA)––designed to provide economic security for retirees, disabled individuals, and survivors of deceased workers––was a cornerstone of the New Deal [1]. As the United States emerged from the Great Depression, the SSA marked a fundamental shift in the country’s approach to social welfare, establishing the principle that the government bears responsibility for protecting society’s most vulnerable. At its inception, that promise of economic protection extended even to some of society’s most marginalized individuals—including prisoners. That came to an end in 1980, when Congress began a series of amendments to the Social Security Act, which now excludes prisoners from receiving Social Security benefits [2].

II. Legislative History

When signing the Social Security Act into law in 1935, President Franklin D. Roosevelt addressed American citizens saying, “It is, in short, a law that will take care of human needs and at the same time provide the United States an economic structure of vastly greater soundness” [3]. President Roosevelt’s promise held true for millions of citizens who received their first Social Security checks between 1937 and 1939 [4]. But from the beginning, the program did not apply to all individuals. In the text of the original Social Security Act, section 210(b) excludes agricultural workers and domestic workers from receiving benefits [5]. At the time, these professions were dominated by Black, Mexican American, and immigrant laborers. While the justification for the exclusion of agricultural and domestic laborers is still academically debated, it is undeniable that 65% of the entire Black working population was denied access to the program [6]. This would not be the last time that exclusions resulted in racially biased economic outcomes. 

Throughout the 1960s, anxieties about crime in the United States came to the forefront of political discussions. In the 1964 presidential race between Barry Goldwater and Lyndon B. Johnson, “crime in the streets” became a rhetorically divisive issue throughout the media [7]. After winning the election, President Lyndon B. Johnson declared the “War on Crime” on March 8, 1965 [8]. In the 1964 and 1968 presidential races, national media and prominent public polls showed that for the first time in U.S history, crime had become the foremost public issue in the minds of American citizens [9]. Politicians responded to these public sentiments by cracking down on crime, issuing harsher sentences and adopting more aggressive policing policies. As the United States increased the intensity of its criminal justice system, incarcerated populations more than doubled from 1965 to 1980 [10].

However, in the 1980s, this broad support for more punitive incarceration practices collided with another major issue of the day: limited government. After the landslide victory of President Ronald Reagan in the 1980 presidential election, the Republican Party rallied around the issue of government spending [11]. Promising to reduce government spending, politicians sought to cut back on Social Security. During this time, two major political narratives combined to center the conversation on prisoners. First, in early 1980, it was reported that the famous serial killer David Berkowitz, the “Son of Sam,” received Social Security Disability Benefits while incarcerated [12][13]. Public outrage ensued, and legislators quickly passed a Social Security exclusion for prisoners. Second, public concern about the long-term solvency of the Social Security Trust (OASDI) was spreading. The Washington Post, Washington Star, and New York Times all published articles describing concern that the trust might be unable to meet its obligations [14]. 

These public pressures clearly weighed on legislators. On June 20, 1980, in a hearing before the House Subcommittee on Social Security, Chairman J.J. Pickle of Texas opened the meeting saying, “Press reports that perpetrators of heinous crimes can receive social security benefits while in prison have outraged many reasonable people, both in and out of Congress” [15]. Accordingly, Congress followed a series of popular public sentiments to justify Social Security exclusions for prisoners: first, because prisoners already relied on publicly funded resources, many claimed that giving them Social Security allowed prisoners to “double-dip” on public services; second, as support rallied around punitive incarceration policy rather than rehabilitative practices, denial of Social Security benefits was viewed as a method of criminal deterrence; and third, these arguments were seen in the context of the broader narrative about the need to cut down on Social Security spending. These conditions created a perceived necessity of action, and legislators agreed. In October 1980, an amendment to the Social Security Act (P.L. 96-473) was passed [16]. The law amended the original act with 42 U.S.C. § 423(f)(1), which excludes prisoners from receiving Social Security Disability Insurance (SSDI). In 1983, Congress took the further step of repealing 42 U.S.C. § 423(f)(1) and incorporating its provisions into 42 U.S.C § 402(x), which extended the suspension to include retirement benefits [17]. As of March 2025, this remains the governing statute on issuance of Social Security for prisoners. 

Today, as the threat of crime remains a prevalent national concern, the issue of Social Security benefits for prisoners has remained relevant [18]. Congress has continually sought to clarify and update enforcement mechanisms for the mandate of 42 U.S.C § 402(x). The Social Security Protection Act of 2004 (SSPA) expands the Social Security Administration's authority to “obtain information concerning whether the person has been convicted of any other offense under Federal or State Law” [19]. Additionally, the SSPA broadened the mandate of 42 U.S.C § 402(x) from “Prisoners” to “‘Prisoners, Certain Other Inmates of Publicly Funded Institutions, Fugitives, Probationers, and Parolees” and also clarified its application to any individual fleeing prosecution for a felony violation which would result in them falling in the aforementioned categories [20]. Most recently, the No Social Security Benefits for Prisoners Act of 2009 (NSSBPA) further expanded the authority of the Social Security Administration to withhold benefits once an individual is deemed ineligible under 42 U.S.C § 402(x) [21]. The Act also clarified some additional language of the governing statute in response to the legal challenges that arose. 

III. Constitutional Challenges

Since the exclusion of prisoners from Social Security benefits in 1980, multiple challenges have been brought before the courts contesting the law on distinct constitutional grounds. Although these appeals have consistently been denied, the legal arguments underlying them offer compelling justifications for Congress to consider repealing 42 U.S.C. § 402(x). 

1. Ex Post Facto Punishment

   
   

In the case of Tom Wiley v. Otis R. Bowen, (Bowen in his official capacity as U.S Secretary of Health and Human Services), (1987), denial of benefits for prisoners was challenged on ex post facto grounds [22]. In 1976, Wiley was convicted of both manslaughter and manslaughter while armed and was sentenced to seventeen years to life. While incarcerated in 1980, Wiley applied for and was granted old-age benefits under the Social Security program. In June 1983, Wiley was informed that due to his status as a convicted felon, his benefits had been denied. At this point, Wiley had already served three years of his sentence at the Lorton Reformatory in Virginia. 

Wiley filed a request for reconsideration with the Social Security Administration on August 15, 1983 and was again denied. He filed a Request for Expedited Appeal on April 14, 1984, in which Administrative Law Judge Stanford Serber ruled to uphold the suspension of Wiley’s benefits. Judge Serber held that the Social Security Administration was within their authority to enforce the mandate of the 1983 Amendment to the Social Security Act. Wiley filed a complaint in the United States District Court for the District of Columbia, and Judge Harold Greene issued a memorandum opinion dismissing Wiley’s complaint on the same grounds. This decision stands final in Wiley's case [23].

Wiley contended that because he began receiving his old-age benefits in 1980 and was later denied those same benefits by operation of a 1983 statute, denial was ex post facto. The United States District Court for the District of Columbia found that his argument relied on the validity of characterizing denial of benefits as “punishment.” 

In Flemming v. Nestor (1960), the Supreme Court analyzed an analogous case about termination of old-age benefits payable to a deported alien under the Immigration and Nationality Act [24][25].  The Supreme Court held that “In determining whether legislation which bases a disqualification on the happening of a certain past event imposes a punishment…[w]here the source of legislative concern can be thought to be the activity or status from which the individual is barred the disqualification is not punishment even though it may bear harshly upon one affected.” The Court included the requirement that “unmistakable evidence of punitive intent...is required before a Congressional enactment of this kind may be struck down.”. The Court found that Wiley had not demonstrated such evidence to constitute 42 U.S.C § 402(x) an ex post facto punishment. 

Despite the Court ruling to uphold the statutory denial of benefits, it seems clear that Congress came as close as possible to the line of unconstitutionality. Although the government cites financial justifications for the statute related to Social Security expenditures, the text of the statute does clearly single out incarcerated felons as a particular class of persons disqualified under the law. This provides evidence that there was punitive intent behind the creation of the statute despite the Court’s opinion that it does not meet the standard for “unmistakable evidence.” As described in the section above, the legislative history further suggests a punitive intent. In a hearing before the House Subcommittee on Social Security, Congressman Bill Archer commented, “We do not like the idea of forcing the vast majority of taxpayers who support the social security system to contribute doubly to those who have committed serious crimes against society and the state,” suggesting that the perceived moral value of prisoners to receive benefits was a core justification [26]. Even so, courts are apprehensive to attribute the opinions or statements of individual members to the entire Congress. In Fleming, the Supreme Court clarified that, “judicial inquiries into Congressional motives are at best a hazardous matter” [27]. This Fleming standard sets an extremely high burden on the appellant for ex post facto punishments, one the Court was not convinced was met in Wiley v. Bowen.

2. Fifth Amendment Due Process and Equal Protection

   
   

In the case of Robert Butler v. Kenneth Apfel, (Apfel in his official capacity as Commissioner of the Social Security Administration), (1998), denial of benefits for prisoners was challenged on Due Process and Equal Protection grounds. Butler also contended the statute imposed an ex post facto punishment, but the following review will focus on the Fifth Amendment challenge. 

Butler was a seventy-seven year old inmate when he was granted Social Security retirement benefits in 1983. At the time, Butler was set to be incarcerated on numerous life sentence convictions in the Nevada prison system. Butler continued to receive Social Security retirement benefits until February 1993, when the Social Security Administration denied Butler’s benefits pursuant to 42 U.S.C § 402(x). After an Administrative Law Judge affirmed the Social Security Administration’s decision, Butler filed for judicial review [28].

Butler contended that 42 U.S.C § 402(x) lacks a “rational justification.” This calls back to the Supreme Court’s language of Fleming v. Nestor, which instructed that “the Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification" [29]. The Court has historically provided broad authority to the legislature when justifying issues of policy action. In Williamson v. Lee Optical (1955), the Court explained that because issues of policy “may be of different dimensions and proportions, requiring different remedies,” such issues ought to be left up to the “legislative mind” [30]. On issues regarding scarce welfare resources, the Court has accorded Congress a “strong presumption of constitutionality” [31]. 

Within the framing of that precedent, the government defends that it has a rational justification to conserve the scarce welfare resources of the Social Security trust. Butler contends that this justification is false on the basis that 42 U.S.C § 402(x) targets prisoners individually rather than generally protecting the expenditure of resources, arguing that because the statute treats prisoners differently than other Social Security beneficiaries, it requires a similarly unique justification. The Court held that Congress had the right to incrementally pursue the goal of protecting budget resources by excluding individual groups, such as prisoners [32].

IV.      Case for Repeal

Denying Social Security benefits has a significant and disparate impact on the most vulnerable communities in the United States. In 2019, 17,885 retired workers and 39,766 workers with disabilities had their benefits denied due to incarceration status [33]. Those denials have a meaningful impact on individuals and families that would otherwise heavily rely on access to the largest poverty prevention programs in the United States.

Crime and poverty have a cyclical relationship. Prisoners are disproportionately likely to have grown up in low-income communities, especially those with high rates of child poverty. Boys who grow up in the bottom ten percent of family incomes are twenty times more likely to be incarcerated throughout their life. In the first year after release from a penal institution, only 55% of ex-convicts have any reported earnings [34]. This data suggests that one of the central factors keeping highly incarcerated communities in poverty conditions is the inability to accumulate wealth over a lifetime. The lack of significant inheritance leaves subsequent generations to start in the same disadvantaged conditions as their predecessors, which is not the case in communities where wealth can be built and inherited over time. 

The statutory repeal of benefit denials to prisoners would be a key policy step in combatting this cycle of poverty and crime. By allowing prisoners to receive and garner credits for benefits during their incarceration, communities would experience the effect of wealth accumulation inherent to the payout of Social Security benefits later in life. Congress and political movements have begun to acknowledge the undue financial hardship created by benefit denials. In response to the COVID-19 pandemic, Congress allowed prisoners to receive economic impact payments despite legislation introduced to deny them [35].

Economic rationale does not justify exclusion. As garnering credits to receive Social Security benefits is a life long endeavor, there is no way to retroactively adjust behavior. This nullifies any criminal deterrent effect, as it’s highly unlikely that individuals will consider their potential non-eligibility for Social Security when contemplating a crime. In this way, the economic effect of benefits denials outweighs any budgetary savings. In exchange for a relatively minor decrease in expenditures, the government forces the families of prisoners to shoulder the costs related to incarceration [36]. 

Congress should take the significant step to move towards a more rehabilitative criminal justice policy by repealing 42 U.S.C § 402(x). Allowing inmates in the United States to receive Social Security old-age and disability benefits is an essential step toward lifting countless communities out of poverty.

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[1] Social Security Act of 1935, Pub. L. No. 74-271, 49 stat. 620 (1935).

[2] Pub. L. No. 96-265, 94 stat. 441 (1980).

[3] President Franklin D. Roosevelt, Message to Congress on Social Security. January 17, 1935, https://www.ssa.gov/history/fdrstmts.html#message2 (last visited March 8, 2025).

[4] Dewitt, Larry, The Development of Social Security in America, SOCIAL SECURITY BULLETIN, Vol. 70, No. 3 (August 2010).

[5] See [1] (specifically Title II).

[6] Dubin, Jon C., The Color of Social Security: Race and Unequal Protection in the Crown Jewel of the American Welfare State, STANFORD LAW & POLICY REVIEW, Vol. 35:104, Pg. 105-160 (2024).

[7] Loo, Dennis D. and Grimes, Ruth-Ellin M., Polls, Politics, and Crime: The “Law and Order” Issue of the 1960s, WESTERN CRIMINOLOGY REVIEW, Vol. 5(1), Pg. 50-67 (2004).

[8] THE BALTIMORE STORY, 1964: Johnson’s War on Crime, https://www.thebaltimorestory.org/history-1/1964-johnsons-war-on-crime (last visited March 8, 2025).

[9] See [7].

[10] THE SENTENCING PROJECT, Mass Incarceration Trends (May 21 2024), https://www.sentencingproject.org/reports/mass-incarceration-trends/ (last visited March 8, 2025).

[11] Samples, John, Limiting Government, 1980-2010, CATO INSTITUTE (March/April 2010), https://www.cato.org/policy-report/march/april-2010/limiting-government-1980-2010 (last visited March 8, 2025).

[12] Mitchell, John, Suspending Prisoners’ Social Security Benefits: Yet Another Blow to Financially Vulnerable African American and Hispanic Families, SEATTLE JOURNAL FOR SOCIAL JUSTICE, Vol. 20, Iss. 1, Pg. 109-158 (2021).

[13] Olivia, Jennifer D., Son of Sam, Service-Connected Entitlements, and Disabled Veteran Prisoners, GEORGE MASON LAW REVIEW, Vol. 25, Iss. 2, Pg. 302-351 (2018).

[14] See [13]

[15] Receipt of Social Security Benefits by Persons Incarcerated in Penal Institutions: Hearing Before the Subcomm. on Social Security of the H. Comm. on Ways and Means, 96th Cong. 103 (1980).

[16] Pub. L. No. 96-473, 94 stat. 2263 (1980).

[17] Pub. L. No. 98-21, 97 stat. 65 (1983).

[18] PEW RESEARCH CENTER, Americans Continue to View Several Economic Issues as Top National Problems (February 20, 2025), https://www.pewresearch.org/politics/2025/02/20/americans-continue-to-view-several-economic-issues-as-top-national-problems/ (last visited March 8, 2025).

[19] Pub. L. No. 108-203, 118 stat. 493 (2004).

[20] See [19].

[21] Pub. L. No. 111-115, 123 stat. 3029 (2009).

[22] Wiley v. Bowen, 824 F.2d 1120 (D.C. Cir. 1987).

[23] See [21].

[24] Flemming v. Nestor, 363 U.S. 603, 80 S. Ct. 1367 (1960).

[25] Pub. L. No. 414, 66 stat. (1952).

[26] See [14].

[27] See [24].

[28] Butler v. Apfel, 144 F.3d 622 (9th Cir. 1998).

[29] See [24].

[30] Williamson v. Lee Optical Co., 348 U.S. 483, 75 S. Ct. 461 (1955).

[31] Schweiker v. Wilson, 450 U.S. 221, 101 S. Ct. 1074 (1981).

[32] See [28].

[33] See [13].

[34] Gilna, Derek, Brookings Institute Study Finds Direct Connection between Poverty and Crime Rates, (December 7, 2018), https://www.prisonlegalnews.org/news/2018/dec/7/brookings-institute-study-finds-direct-connection-between-poverty-and-crime-rates/ (last visited March 8, 2025).

[35] Lee, Belinda, Bolstering Benefits Behind Bars: Reevaluating Earned Income Tax Credit and Social Security Benefits Denials to Inmates, NEW YORK UNIVERSITY LAW REVIEW, Vol. 98:331, Pg. 332-372 (2023).

[36] See [35].