In the case of Kays v. State, the Indiana Supreme Court reversed the court of appeals and held that a trial court is authorized to consider a defendant’s social security income when determining the defendant’s ability to pay restitution.
At issue were the anti-alienation provisions of the federal social security law and the requirement that a trial court consider a defendant’s ability to pay when making restitution a consideration of probation. The former seeks to ensure that creditors can’t get at the bedrock social security income a person might need to survive and the latter seeks to ensure that a person isn’t locked up simply for being poor.
The Court of Appeals looked at the anti-alienation provisions of the social security statutes and concluded that it could not be considered as income when a trial court was making restitution decisions. The Supreme Court, correctly in my opinion, disagreed; reasoning that just ignoring that income would distort the trial court’s view of the defendant’s overall financial situation.
After all, if you’re getting $100 per month in rental income as your only source of income, your financial situation is a little different than if that $100 per month is on top of your social security income. In the former situation, the trial court probably has to conclude that you do not have any ability to pay restitution. In the latter situation, $100 per month in restitution might well be reasonable.
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