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. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  2. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  3. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

  4. The fee increase would be livable except for the 11% increase in spending at the Disciplinary Commission. The Commission should be focused on true public harm rather than going on witch hunts against lawyers who dare to criticize judges.

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