David L. Zehnder, Esq.
Darrell V. McGraw, Jr., Esq.
Kurt W. Hall, Esq. Attorney General
Public Defender Corporation Barbara H. Allen, Esq.
Moundsville, West Virginia Managing Deputy Attorney General
Attorney for Appellant Charleston, West Virginia
Attorneys for Appellee
JUDGE ROBERT B. STONE, sitting by temporary assignment, delivered the Opinion of the Court.
JUSTICE SCOTT did not participate in the decision of the Court.
2. The Social Security Act, specifically 42 U.S.C. § 407(a), prohibits any
transfer or assignment at law or in equity of future social security payments; accordingly,
contributions to individual social security accounts cannot be included as part of marital
property subject to equitable distribution at the time of divorce. Syl. Pt. 4, Loudermilk v.
Loudermilk, 183 W.Va. 616, 397 S.E.2d 905 (1990).
3. Pursuant to Title 42, §§ 1383(d)(1) (1994) and 407(a) (1994) of the
United States Code, a circuit court may not order a juvenile criminal defendant to pay
restitution from his future supplemental security income benefits because such benefits are
not subject to execution, levy, attachment, garnishment or other legal process.
4. A trial judge may order restitution as part of a 'program of therapy'
designed to aid in the rehabilitation of the child in a juvenile case when probation is granted
under W.Va. Code, 49-5-13 . Such order, however, must be reasonable in its terms
and within the child's ability to perform. Syllabus, State v. M.D.J., 169 W.Va. 568, 289
S.E.2d 191 (1982).
This case is before this Court on an appeal from a final dispositional order of
the Circuit Court of Marshall County, entered on January 26, 1999, regarding Appellant,
Michael S.See footnote 1
(hereinafter Appellant), a juvenile. Following an earlier adjudication of
delinquency, Appellant was sentenced to a three-month period of supervised probation and
ordered to pay restitution in the amount of $471.25. The restitution was to be paid from
Appellant's monthly supplemental security income (hereinafter SSI) benefits by his father,
his representative payee. Appellant argues that the circuit court erroneously ordered that the
restitution be paid from his SSI benefits because these benefits are not subject to any legal
process pursuant to federal statute. Appellant also argues that the circuit court's order of
restitution violated the guidelines set forth in State v. M.D.J., 169 W.Va. 568, 289 S.E.2d 191
(1982). The State of West Virginia, as Appellee in this case, does not dispute these
At Appellant's dispositional hearing, held on January 26, 1999, the circuit court
learned about Appellant's SSI income and held, over objection and without discussion of a
factual or legal basis for its conclusion, that Appellant would have to pay restitution from his
SSI benefits.See footnote 2
The January 26, 1999, order reflecting the circuit court's ruling does order that
restitution be made, but does not mention the financial source of the restitution. However,
the circuit court judge presiding over the dispositional hearing specifically took the position
at that hearing that I can do it [order restitution from Appellant's SSI benefits], and he's
going to have to suffer the consequences. . .
Title XVI, Supplemental Security Income for the Aged, Blind and Disabled
(hereinafter the Supplemental Security Income Act or the Act), provides means tested
federal assistance for individuals who are aged, blind or otherwise physically or mentally
disabled from gainful employment.
42 U.S.C. §§ 1381-1383d (1994 & Supp. III 1997).
Specifically, Title 42, § 1382c (a)(3)(C)(1) (Supp. III 1997) of the United States Code
defines a disabled individual for purposes of the Act as an individual under eighteen years
of age who suffers from a medically determinable physical or mental impairment, which
results in marked and severe functional limitations, and which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than
12 months. Although the record is very limited in this case, we presume that because
Appellant receives SSI benefits, he has been determined to be a disabled individual under
As a general rule, SSI benefits are not subject to execution, levy, attachment,
garnishment or other legal process. The Supplemental Security Income Act contains
language which refers to the particular exemptive language for social security benefits as
found in the Social Security Act. Specifically, Title 42, § 1383(d)(1) (1994) of the United
States Code provides that [t]he provisions of section 407 of this title . . . shall apply with
respect to this part to the same extent as they apply in the case of subchapter II [42 U.S.C.
§ 401 et seq.] of this chapter. Title 42, § 407(a) (1994) of the United States Code provides:
The right of any person to any future payments under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.
Although this is an issue of first impression for this Court, we have previously
held that the above-quoted language is very strong, very clear, and very unambiguous. . .
. Loudermilk v. Loudermilk, 183 W.Va. 616, 620, 397 S.E.2d 905, 909 (1990). In syllabus
point four of Loudermilk, we specifically found that in regard to equitable distribution of
The Social Security Act, specifically 42 U.S.C. § 407(a), prohibits any transfer or assignment at law or in equity of future social security payments; accordingly, contributions to individual social security accounts cannot be included as part of marital property subject to equitable distribution at the time of divorce.
Loudermilk, 183 W.Va. at 617, 397 S.E.2d at 906.
A review of state and federal law has yielded no cases directly on point,See footnote 3
however, the United States Supreme Court has adopted the position that Title 42, § 407(a)
of the United States Code imposes a broad bar against the use of any legal process to reach
all social security benefits. Philpott v. Essex County Welfare Bd., 409 U.S. 413, 417 (1973).
The United States Supreme Court in Philpott held that the provisions of § 407(a) barring the
use of any legal process to reach social security benefits bars all claimants, including a
Additionally, in Langlois v. Langlois, 441 N.W.2d 286 (Wis. Ct. App. 1989), the Court of Appeals of Wisconsin was faced with an analogous issue: whether some portion of an individual's SSI benefits could be allocated for child support purposes. The Wisconsin court concluded that under Wisconsin law, child support is a form of execution, garnishment, attachment and every other process from which SSI benefits are exempt. Langlois, 441 N.W.2d at 288. Further, the court noted that policy considerations were consonant with strict statutory construction in this instance: The purpose of the program is to provide the recipient with minimum necessary financial resources. That purpose is defeated if the resource is depleted. Id. at 288, citing Schweiker v. Wilson, 450 U.S. 221, 223 (1981).
Accordingly, we hold that pursuant to Title 42, §§ 1383(d)(1) (1994) and 407(a) (1994) of the United States Code, a circuit court may not order a juvenile criminal defendant to pay restitution from his future supplemental security income benefits because such benefits are not subject to execution, levy, attachment, garnishment or other legal process.
In addition to violating federal law, the circuit court's order requiring Appellant
to pay restitution from his SSI benefits also violated this Court's guidelines for ordering
restitution in juvenile cases, as set forth in State v. M.D.J., supra.
In the syllabus of State v. M.D.J., this Court held that:
A trial judge may order restitution as part of a program of treatment or therapy designed to aid in the rehabilitation of the child in a juvenile case when probation is granted under W.Va. Code, 49-5-13 . Such order, however, must be reasonable in its terms and within the child's ability to perform.
State v. M.D.J., 169 W.Va. at 568, 289 S.E.2d at 192. We further explained that [a]n order imposing conditions of probation that are unreasonable or beyond the ability of the child to perform, is not an order of probation at all but rather a disguised order of commitment. Id. at 576, 289 S.E.2d at 196. In discussing the factors which should be considered before imposing restitution, we stated that the juvenile's 'present and probable future ability to repay' to be a pertinent consideration in determining whether restitution was justified or reasonable in a particular case. Id., citing In re D.G.W., 361 A.2d 513, 522, n.4 (N.J. Sup. Ct. 1976).
In considering whether the restitution ordered in this case complies with the
requirements set forth in State v. M.D.J., we must first decide if the amount ordered was part
of a program of treatment or therapy. The record does not disclose any particular program
of treatment or therapy as being prescribed for Appellant. Second, it is obvious from the
record that the circuit court's order of restitution was neither reasonable not within
Appellant's ability to perform. Appellant was fifteen (15) years of age at the time of his
disposition and had no job. Further, Appellant is a disabled individual with a full scale IQ
of 55, without any prospect of even part-time employment. Accordingly, the circuit court's
order was a meaningless gesture. Under these circumstances we do not think that the order
of restitution entered in this case as a condition of probation was reasonable or within
Appellant's ability to perform.
Our decision in this case does not in any way mean that restitution is an improper disposition in juvenile cases. Restitution is an appropriate disposition as long as it comports with the purpose of rehabilitation of juvenile offenders by the least restrictive methods. Any restitution award should be set in an amount that is within the realistic ability of the children to pay within a reasonable period of time, so that they can complete a probationary period, put these events behind them, and move forward. State v. Kristopher G., 210 W.Va. 703, 706, 500 S.E.2d 519, 522 (1997). Additionally, any award of restitution should comply with state and federal law.
We also note that victims of crimes are not always without recourse in situations where restitution is not ordered. Such victims may apply for an award of compensation pursuant to West Virginia Code §§ 14-2A-1 to -29 (1995 & Supp.1999), the Compensation Awards to Victims of Crimes Act. The very intent of this Act is to establish a system of compensation for the victims of crime. W.Va. Code § 14-2A-2.