RUCKER, J.
We disagree, however, with our colleagues’ conclusion that “restitution may not be based on social security income” and therefore the trial court must “ignore Kays’ social security income” in determining her ability to pay. Kays, 945 N.E.2d at 811. In reaching this conclusion, the Court of Appeals interpreted the Social Security Act’s “antiattachment” provision to prohibit the trial court taking into account the existence of Kay’s social security income in considering her ability to pay restitution. . . . .
There is scant case authority on the question of whether social security benefits “can be
taken into account simply to determine an individual’s ability to pay a fine or restitution,” and
the case law that exists “does not appear to yield a clearcut answer” to this question. United
States v. Chorney, No. 11-1310, 2011 WL 6823200, at *3 (1st Cir. Dec. 29, 2011) (per curiam).
Nonetheless, we are of the view that social security benefits may be considered by a trial court in
determining a defendant’s ability to pay restitution.
First, ignoring a defendant’s social security income may paint a distorted picture of her
ability to pay restitution. For example, a debt-free defendant who lives with a family member
and receives room and board at no charge may very well have the ability to pay restitution even
if her only income is from social security. This does not mean that the State could levy against
that income to collect the restitution, but it does reflect an important part of the person’s total
financial picture that a trial court may consider in determining ability to pay.
Further, although not authoritative we find persuasive the decisions of other courts that
have permitted consideration of income or other assets that cannot be levied against in assessing
a defendant’s overall ability to pay fines or restitution. The Seventh Circuit, for example,
recognized that a trial court could take “prospective [social security] benefits into consideration
in determining what [the defendant] reasonably could afford to pay in the way of monthly
restitution payments.” United States v. Lampien, 1 Fed. Appx. 528, 533 n.3 (7th Cir. 2001).
. . . .
In similar fashion federal courts have also held that a defendant’s partial interest in his
home is a “‘financial resource’ that the court may properly consider” in imposing a fine, even
though the government could not necessarily “levy upon [the defendant’s] concurrent interest in
the residence or proceeds from its sale.” United States v. Gresham, 964 F.2d 1426, 1430 (4th
Cir. 1992); see also United States v. Lampien, No. 96-3337, 1997 WL 800850, at *2 (7th Cir.
Dec. 31, 1997) (“[A]lthough the court lacks the power to order [the defendant] to rent her home,
it still may consider the income that [the defendant] reasonably could earn through the rental of
her home while incarcerated in deciding what payments she can presently make in restitution.”
(emphasis in original)). 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).
Shepard, C.J., and Dickson, Sullivan and David, JJ., concur.