20 CFR 404.364
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:
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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