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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. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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