ILNews

Court may consider SSI in restitution order

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The Indiana Supreme Court sided with the federal courts that have concluded courts may consider one’s Social Security income when determining how much a person may pay in restitution.

The issue arose in Rebecca D. Kays v. State of Indiana,No. 42S05-1107-CR-441, in which Rebecca Kays appealed the order that she pay more than $1,400 in restitution to her neighbor after Kays was convicted of misdemeanor battery. Kays claimed that her sole source of income is Social Security disability payments, and she lacked the ability to pay it. The trial court said she could pay it over a period of time.

The Indiana Court of Appeals reversed, finding the trial court didn’t properly look into Kays’ ability to pay and failed to establish the manner and time of her payments. The judges also ordered the trial court to ignore her SSI in its determination of her ability to pay restitution because they held that a restitution order is an “other legal process” pursuant to 42 U.S.C. Section 407(a) which cannot be applied to Social Security benefits.

The justices agreed that the issue should be sent back to the trial court for a determination of Kays’ ability to pay and how she’d make those payments. But, they disagreed with the COA that SSI is exempt from consideration with regards to restitution payments.

Justice Robert Rucker noted there is scant case authority as to whether Social Security benefits can be taken into consideration to determine a fine or restitution, but the high court found several federal cases to be persuasive, including United States v. Smith, 47 F.3d 681, 684, (4th Cir. 1995).

“In concert with the reasoning of these opinions, we find nothing in 42 U.S.C. § 407(a) to prohibit a trial court from considering a defendant’s social security income when determining the ‘amount the person can or will be able to pay’ in restitution pursuant to Indiana Code section 35-38-2-2.3(a)(5),” Rucker wrote.  

 

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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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