Milner v. Apfel, 97-3156

• Decision Date: 30 June 1998
• Docket Number: No. 97-3156,97-3156
• Citation: 148 F.3d 812
• Parties: Jacqueline MILNER and Kurt R. Johnson, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 812

148 F.3d 812

57 Soc.Sec.Rep.Ser. 561

Jacqueline MILNER and Kurt R. Johnson, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant-Appellee.

No. 97-3156.

United States Court of Appeals, Seventh Circuit.

Argued April 22, 1998.

Decided June 30, 1998.

Mark J. Heyrman, Kristin Taylor, Law Student (argued), Mandel Legal Aid Clinic, Chicago, IL, for Plaintiffs-Appellants.

Thomas P. Walsh, Office of the United States Attorney, Civil Division, Donna L. Calvert (argued), Social Security Administration, Office of the General Counsel, Region V, Chicago, IL, for Defendant-Appellee.

Before POSNER, Chief Judge, and CUMMINGS and RIPPLE, Circuit Judges.

POSNER, Chief Judge.

The named plaintiffs in this class action, Milner and Johnson, applied for and were granted social security disability benefits because of their insanity. Later the two were prosecuted in an Illinois state court for murders which they had committed, were acquitted by reason of their insanity, and were ordered confined indefinitely (up to the limit of the maximum sentences they might have received had they been convicted, 730 ILCS 5/5-2-4) in an Illinois state mental hospital, where they remain today, supported at the expense of the Illinois taxpayer. (If they are ever released, they will get a bill, 405 ILCS 5/5-105, but in all likelihood won't be able to pay it--and they may never be released.) They continued to receive social security disability benefits until 1995, when, pursuant to a statute passed the previous year, the Commissioner of Social Security suspended the payment of benefits until the plaintiffs are released from their confinement, if ever. The statute directs the suspension of social security benefits payable to any individual who is "confined by court order in an institution at public expense" pursuant to "a verdict or finding that the individual is not guilty of [an offense punishable by imprisonment for more than one year] by reason of insanity." 42 U.S.C. § 402(x)(1)(A)(ii)(II).

The plaintiff class consists of all persons in Illinois whose benefits have been suspended under the authority of this provision. Their claim, which the district court rejected on the pleadings, is that it is a denial of the equal protection of the laws, and so a violation of the due process clause of the Fifth Amendment, see, e.g., Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995); Tucker v. U.S. Dept. of Commerce, 958 F.2d 1411, 1413 (7th Cir.1992), to cut off social security benefits to persons acquitted by reason of insanity while allowing other insane persons confined at public expense, often in the very same institutions, to continue receiving them. The plaintiffs argue that the only difference between persons who are civilly committed to mental institutions at public expense and persons such as themselves who are committed to those same institutions after being acquitted of criminal charges because of insanity is that the latter class committed criminal acts for which, however, they are not punishable, as demonstrated by their acquittal. And it is a difference unrelated, the plaintiffs further argue, to any need or lack of need for social security benefits while confined at public expense.

If the test is whether the difference in treatment is rational, the claim clearly fails. In 1980 Congress had amended the Social Security Act to direct the suspension of benefits for persons confined pursuant to a criminal conviction. 42 U.S.C. § 423(f). This would by implication have included persons found guilty but insane or guilty but mentally ill, since either is a form of conviction. See, e.g., 720 ILCS 5/6-2(c); People v. Crews, 122 Ill.2d 266, 119 Ill.Dec. 308, 522 N.E.2d 1167, 1173 (1988); Ira Mickenberg, "A Pleasant Surprise: The Guilty But Mentally Ill Verdict Has Both Succeeded in Its Own Right and Successfully Preserved the Traditional Role of the Insanity Defense," 55 U. Cinc. L.Rev. 943, 988 (1987). It is true that Congress didn't make this implication explicit until the 1994 amendments. See 42 U.S.C. § 402(x)(1)(A)(ii)(I). But that is doubtless because the "guilty but mentally ill" form of verdict was new in 1980, see Barbara A. Weiner, "Mental Disability and the Criminal Law," in The Mentally Disabled and the Law 693, 715 (Samuel Jan Brakel, John Parry & Barbara A. Weiner eds., 3d ed.1985), rather than because Congress had meant to exclude defendants found guilty under that form from the suspension of benefits to convicted criminals.

The difference between being found guilty but insane or guilty but mentally ill, on the one hand, and being acquitted (or, the equivalent, found not guilty) because of insanity on the other hand, is little if anything more than a possible difference in the place of confinement--a prison with psychiatric facilities versus an insane asylum. See Weiner, supra, at 714-16. In either case, the trier of fact has found that the defendant committed the criminal acts charged but because of insanity lacked the mental state ordinarily required to make a person criminally liable. See 720 ILCS 5/6-2(e); Jones v. United States, 463 U.S. 354, 363, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983); Morgan v. Israel, 735 F.2d 1033, 1034 (7th Cir.1984). The disability benefits of the guilty but insane having been suspended, it was illogical to allow the acquitted but insane, also maintained at public expense, and often under identical conditions in the same or similar facilities, to continue to receive benefits. The 1994 amendment eliminated this anomaly or loophole. (The legislative history uses both terms. E.g., 143 Cong. Rec. H1917-04 (Apr. 29, 1997). Wilkins v. Callahan, 127 F.3d 1260, 1262-63 (10th Cir.1997).)

By doing this, however, Congress created another anomaly--the differential treatment of the civilly and the criminally committed. But this sort of thing is inevitable whenever Congress moves step by step to correct some inequity, in this case the payment of benefits to people who don't need them because they are being maintained at the expense of the taxpayer, who is also the source of the benefits and doesn't want to pay twice over. Legislatures are permitted to correct a problem incrementally even though by doing so they create arbitrary distinctions until correction is complete. E.g., Bowen v. Owens, 476 U.S. 340, 347, 106 S.Ct. 1881, 90 L.Ed.2d 316 (1986); Califano v. Jobst, 434 U.S. 47, 57-58, 98 S.Ct. 95, 54 L.Ed.2d 228 (1977); Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563 (1955); Smith v. Shalala, 5 F.3d 235, 240 (7th Cir.1993). It could not be otherwise. The conditions under which legislators operate, conditions that include interest-group pressures and budgetary limitations, often make it impossible for a legislature to solve problems at wholesale rather than retail.

What is more, the civilly and the criminally committed are not identically situated. To begin with, the latter are likely to be confined for a longer time. E.g., Weiner, supra, at 726 n. 395; David B. Wexler, "Redefining the Insanity Problem," 53 Geo. Wash. L.Rev. 528, 536, 538 (1985). The longer they are confined, the less likely they are to need an accumulation of disability benefits to finance their reentry into free society. Many of the criminally insane are unlikely ever to be permitted reentry--perhaps including the murderers who are the class representatives in this case.

Against this the plaintiffs argue that Congress violated the Constitution at an earlier stage, when it suspended benefits for convicted criminals; the exclusion of persons acquitted but confined by reason of insanity merely aggravated the original denial of equal protection. Criminals whether sane or insane are, in the plaintiffs' view, identically situated to insane people civilly committed, since all are being maintained at public expense and so do not need social security benefits until they are released. But this overlooks among other things the important moral difference between criminals and noncriminals, and so implies that giving civilly committed insane people who have committed no criminal acts more comfortable quarters than sane criminals is a denial of equal protection unless a deterrent or other practical or functional purpose can be assigned to the difference in treatment. Legislatures are permitted to legislate with regard to morality, e.g., Bowers v. Hardwick, 478 U.S. 186, 196, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), rather than confined to preventing demonstrable harms (John Stuart Mill's "other-regarding" acts). How else to explain prohibitions against gambling, prostitution, public nudity and masturbation, fornication, sodomy, the sale of pornography, sexual intercourse with animals, desecration of corpses, and a variety of other "morals" offenses? A traditional purpose of criminal punishment is to express moral condemnation of the criminal's acts. E.g., United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971); Gregg v. Georgia, 428 U.S. 153, 183, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (plurality opinion). It follows that within limits mainly defined by the cruel and unusual punishments clause of the Eighth Amendment legislatures are permitted to treat criminals worse than they treat the law-abiding without having to establish a functional justification for the difference in treatment. So it is no surprise that equal protection challenges to the suspension of social security benefits to imprisoned criminals have been uniformly rebuffed. E.g., Davis v. Bowen, 825 F.2d 799 (4th Cir.1987); Zipkin v. Heckler, 790 F.2d 16 (2d Cir.1986) (per curiam); Jensen v. Heckler, 766 F.2d 383 (8th Cir.1985).

Another justification for the difference in treatment of which the plaintiffs complain...