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Social Security income shouldn't be considered in restitution orders

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Dealing with an issue of first impression, the Indiana Court of Appeals has ruled that Social Security income must be excluded when considering a defendant’s ability to pay restitution.

The appellate court has held that Social Security proceeds can’t be used to satisfy a civil judgment, but had yet to rule on the issue in a criminal matter. Rebecca Kays was ordered to pay nearly $1,500 to her neighbor following a misdemeanor battery conviction. The amount was based on the neighbor’s hospital bill and the court didn’t adequately consider Kays’ ability to pay. Kays’ counsel had argued that she only received $674 a month in Social Security benefits and was disabled and couldn’t work.

The judges reversed, finding the trial court didn’t do enough to inquire into Kays’ ability to pay. Sua sponte, the appellate court addressed whether 42 U.S.C.A. Section 470(a) precludes the trial court from considering SSI in determining her ability to pay restitution.

The judges looked to the Social Security Administration’s Program Operations Manual System, which says that these benefits aren’t subject to certain situations, including “other legal process,” and turned to other jurisdictions that had ruled on the matter to decide the benefits can’t be considered when ordering restitution.

“This approach comports with the purpose of social security benefits, which is to ‘assure that the recipient’s income is maintained at a level viewed by Congress as the minimum necessary for the subsistence of that individual,’” wrote Judge Melissa May in Rebecca D. Kays v. State of Indiana, No. 42A05-1007-CR-504.

The appellate court ordered the trial court to ignore Kays’ SSI when determining her ability to pay, and also sua sponte asked the lower court to consider whether it needs to recalculate the neighbor’s damages. The neighbor submitted a hospital bill for nearly $1,500, but the court didn’t inquire as to how much the neighbor actually paid out of pocket and how much her insurance may have paid.

The judges believed the reasoning from Stanley v. Walker, 906 N.E.2d 852, 857 (Ind. 2009), should be applied to criminal restitution orders to ensure that victims are compensated only for their actual loses. The lower court should determine whether the evidence submitted at trial included other documentation or testimony regarding the neighbor’s “actual cost” and if so, to recalculate her damages prior to assessing what amount Kays is able to pay, wrote Judge May.

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  1. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  2. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  3. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  4. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

  5. Why do so many lawyers get away with lying in court, Jamie Yoak?

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