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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. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  2. wow is this a bunch of bs! i know the facts!

  3. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  4. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  5. It's a capital offense...one for you Latin scholars..

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