Dec. 13, 2024 – A restitution award was appropriate even though more than half the defendant’s income came from Social Security Disability Income (SSDI), the Wisconsin Court of Appeals District II recently ruled in State v. Joling, 2023AP1023-CR (Dec. 11, 2024).

Under 42 U.S.C. section 407(a), money paid from Social Security shall not be “subject to execution, levy, attachment, garnishment, or other legal process.”

Eric J. Joling pleaded no contest to one count of OWI (fifth offense) and one count of OWI causing injury (second and subsequent offense) resulting from a collision. The driver and the four passengers in a limousine suffered injuries after Joling hit the limousine head-on with his truck in the early morning hours of Jan. 1, 2018.

Challenging Restitution Amount

Three victims sought restitution. Joling pointed to his limited job prospects because Crohn’s disease caused him abdominal pain and required him to be near a bathroom.

The circuit court on April 15, 2021, set total restitution at $59,808. Joling was responsible for paying $500 each month.

Joling filed his postconviction motion four months after his previous hearing. He claimed his Crohn’s disease had worsened. He was taking additional medication and receiving monthly injections – and now he qualified for SSDI because of his partial disability.

The circuit court, however, initially failed to analyze Joling’s motion based on the new information. In its reasoning, the circuit court stated, “If the court reconsidered its Decision based upon alleged new facts, there would be no finality to the Order.”

Although sentence modification is discretionary, the court of appeals in Joling’s 2022 appeal found “neither reasoning nor explanation in [the circuit court’s] decision.”

The appeals court remanded on a summary disposition order for the circuit court to consider any new factor in establishing restitution.

Joling’s monthly income now included $1,000 from self-employment and $1,187 from SSDI. The circuit court found “that a new factor existed,” and cut the monthly payment in half. Joling could pay restitution from his remaining self-employment income.

SSDI Statute

Joling argued in this appeal “that when the court considered that he received SSDI from which he could cover his regular expenses, thereby leaving sufficient extra money in his earned income to pay restitution, this ‘subjected’ his SSDI to ‘other legal process’” in violation of 42 U.S.C. section 407(a). He also claimed the restitution order violated that statute’s prohibition on assigning SSDI payments.

Multiple state courts have held that “federal law does not prohibit a court from considering Social Security income when determining restitution.” The court of appeals found these cases persuasive. The circuit court could consider the monthly SSDI check in setting restitution.

A Wisconsin decision cited by the State seemed to say the same thing, but the court explained in a footnote that the case said less than that.

In State v. Stone, 2021 WI App 84, Stone’s income to pay restitution came only from SSDI. That issue wasn’t mentioned in Stone’s appeal – it wasn’t decided.

Nor did the circuit court decision “subject” Joling’s SSDI payments to “other legal process” as prohibited by federal statute.

A Michigan Court of Appeals decision said that a restitution order violates the statute “if restitution ‘could only be satisfied from’ SSDI benefits,” the Wisconsin Court of Appeals emphasized.

“We reject Joling’s position that a circuit court ipso facto ‘subject[s]’ a defendant’s SSDI payments to a ‘legal process’ when it orders restitution even where the defendant has additional sources of income.” His self-employment income could support the restitution amount.

The restitution was not a prohibited “assignment” of SSDI, the court of appeals also concluded.

Joling claimed “the practical effect … was to involuntarily transfer [his] right to a portion of his future SSDI payments to the victim.” But the case cited by Joling differed because the restitution order here “did not specifically transfer or assign Joling’s SSDI payments to another person.”

No transfer would occur, the court of appeals explained, “because Joling’s combined funds – the SSDI payments and earned income – exceed the amount the restitution ordered, and Joling therefore had sufficient non-SSDI funds from which to pay restitution.”

Restitution Aids Rehabilitation

Finally, Joling claimed that the restitution order was “unrealistic” because it failed to advance what criminal restitution should do: rehabilitation and “making the victim whole.”

The court of appeals explained its understanding of Joling’s argument in two parts. First, he claimed that his insurance company’s settlement with the victims means any restitution payments would go beyond “mak[ing] the victims whole.”

Secondly, taking funds from SSDI payments further diminishes his limited income: His pinched finances would “undermine” any rehabilitation from restitution.

No evidence showed the victims would receive a double recovery from the insurance payment combined with restitution.

Restitution works in a rehabilitative manner “because it forces defendants to confront concretely – and take responsibility for – the harm they have inflicted, and it appears to offer a greater potential for deterrence,” Wisconsin precedent explains.

In addition, the appeals court explained, the supreme court has reinforced that the Wisconsin restitution statute serves “to compensate the victim” and “reflects a strong equitable public policy that victims should not have to bear the burden of losses if the defendant is capable of making restitution.”

The circuit court’s calculations were realistic, the court of appeals concluded, because the circuit court’s record shows it considered Joling’s circumstances. After Joling’s monthly expenses, he had remaining $382, allowing a clear payment of $250 a month in restitution.

This article was originally published on the State Bar of Wisconsin’s Wisbar Court Review blog, which covers case decisions and other developments in the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit. To contribute to this blog, contact Joe Forward.