SSR 65-25: SECTION 205(a). -- FELONIOUS HOMICIDE -- EFFECT OF EXECUTIVE CLEMENCY AFTER CONVICTION

20 CFR 404.364

SSR 65-25

Where the claimant-widow was convicted in the State of Kentucky of the felonious homicide of her husband and later was granted a commutation of sentence by the Governor of that State, and where under the State law such commutation does not nullify the conviction nor change the nature of the offense to less than a felony, held, that claimant is precluded by § 404.364 of the Social Security Administration Regulations from entitlement to widow's insurance benefits based on her husband's earnings record.

W filed application for widow's insurance benefits on the social security earnings account of her deceased husband, R. Subsequently, W was convicted in the State of Kentucky of the crime of voluntary manslaughter in connection with R's death, and was sentenced to a five-year term of imprisonment in the State penitentiary. The conviction was upheld upon appeal.

Under Kentucky law, homicide amounting to voluntary manslaughter is punishable exclusively by imprisonment in the State penitentiary. Section 435.020, Kentucky Revised Statutes. Further, Kentucky law defines a crime punishable by imprisonment in the State penitentiary as a felony (section 431.060, Kentucky Revised Statutes). Accordingly, W's application for widow's insurance benefits was disallowed on the basis of § 404.364 of the Social Security Administration Regulations (20 CFR 404.364), which, as here pertinent, provides:

A person who has been finally convicted by a court of competent jurisdiction of the felonious homicide of an insured individual shall not be entitled to monthly benefits or to the lump-sum death payment based upon the earnings of such deceased individual. * * *

However, after W had served a portion of her sentence, the term of such sentence was commuted by the Governor of Kentucky, and W was released from the penitentiary. She then requested that the Administration's previous determination disallowing her application for widow's insurance benefits be reopened. The issue is whether, in light of the commutation of her sentence, she still must be considered as being finally convicted of the felonious homicide of the insured individual.

In general, a commutation of sentence is a change of punishment, or substitution of a lesser punishment for a greater one. Stone v. Burch, 114 Fla. 460, 154 So. 128 (1934); see also, Commonwealth v. Minor, 195 Ky. 103, 241 S.W. 856 (1922); George v. Lillard, 106 Ky. 820, 51 S.W. 793 (1899). However, in this case the fact that there was a commutation of sentence furnishes no basis for a conclusion that under Kentucky law W's conviction for the crime of voluntary manslaughter was thereby nullified, or that the nature of that crime was thereby changed to anything less than a felony. See Green v. Commonwealth, 281 S.W. 2d 637 (Ky. 1955). Accordingly, W must still be considered as convicted of the felonious homicide of R, and she remains ineligible for benefits as his widow.

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