Posted Apr 23rd, 2014 06:05 PM
WASHINGTON, D.C.—In one of the more challenging cases that's likely to come before the U.S. Supreme Court this term, a slim majority of its members has remanded to the trial court the question of just how much restitution defendant Doyle Randall Paroline, convicted of possessing child pornography, should have to pay to the now-grown child, "Amy Unknown," who appeared in two of the images Paroline possessed.
Part of the high court's difficulty, as reflected in the decision released this morning, is the fact that while Congress has made it mandatory that child porn victims recover monetary damages for such things as lost income and psychological counseling attendant to the harm they suffered for having appeared in sexually explicit photos and videos distributed worldwide, it failed to include in the law any formula for apportioning blame for purposes of granting restitution. It is that deficiency that formed the basis for both the majority's ruling and for the two dissents, one from Justice Sonia Sotomayor—who felt Amy should receive the $3.4 million she asked for—and the other from Chief Justice John Roberts, joined by Justices Antonin Scalia and Clarence Thomas, who felt that the law was so poorly written as to make it impossible to determine what amount Amy should recover.
The undisputed facts are that in 2009, Doyle Paroline was caught possessing somewhere between 150 and 300 child pornographic images, two of which were of the then-eight- or nine-year-old victim referred to in legal documents as "Amy Unknown." Paroline pled guilty to the offense of possessing child porn, and received a two-year prison sentence, but the trial court declined to require Paroline to pay any restitution to Amy, largely because the government failed to provide the required evidence of Amy's damages—a decision that a Fifth Circuit appeals panel upheld. But Amy's attorney, James Marsh, whom law professor Jonathan Turley has charged "made something of a cottage industry in sending demands for restitution on her behalf in any case that involves an image of Amy or other abuse victims," asked for an en banc review of that decision, and the full Fifth Circuit bench reversed both the trial court and its own panel, and ordered Paroline to pay Amy the full amount she was seeking, $3.4 million.
Amy's ability to collect such damages is a result of one section of the 1994 Violence Against Women Act, 18 U.S.C. §2259, which requires a defendant or defendants "to pay the victim ... the full amount of the victim’s losses as determined by the court," but leaves the determination of that amount to §3664, which states that, "[t]he burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the attorney for the Government."
To date, Amy has already received about $1.8 million from 182 defendants, one of whom contributed $1.2 million but most of whom were assessed figures between $1,000 and $530,000. In fact, Amy's uncle, who created the kiddie porn images, paid just over $6,000 and spent 10 years in prison for his offense.
Somewhat troubling, though, is a statement near the beginning of the Supreme Court's majority opinion, authored by Justice Anthony Kennedy and joined by Justices Alito, Breyer, Kagan and Ginsburg. Kennedy wrote, "The victim underwent an initial course of therapy beginning in 1998 and continuing into 1999. By the end of this period, her therapist’s notes reported that she was 'back to normal'; her involvement in dance and other age-appropriate activities, and the support of her family, justified an optimistic assessment. Her functioning appeared to decline in her teenage years, however; and a major blow to her recovery came when, at the age of 17, she learned that images of her abuse were being trafficked on the Internet. The digital images were available nationwide and no doubt worldwide. Though the exact scale of the trade in her images is unknown, the possessors to date easily number in the thousands. The knowledge that her images were circulated far and wide renewed the victim’s trauma and made it difficult for her to recover from her abuse."
Or as Amy put it in a "victim impact statement" to the district court, "Every day of my life I live in constant fear that someone will see my pictures and recognize me and that I will be humiliated all over again. It hurts me to know someone is looking at them—at me—when I was just a little girl being abused for the camera. I did not choose to be there, but now I am there forever in pictures that people are using to do sick things. I want it all erased. I want it all stopped. But I am powerless to stop it just like I was powerless to stop my uncle. ... My life and my feelings are worse now because the crime has never really stopped and will never really stop. ... It's like I am being abused over and over and over again."
The problem the high court had to deal with was how much Paroline's possession of two images of Amy contributed to—or in legal terms, "was the 'proximate cause' of"—Amy's continuing problems? As Justice Kennedy noted, "So if the defendant's offense conduct did not cause harm to an individual, that individual is by definition not a 'victim' entitled to restitution under §2259." This suggests that neither Kennedy nor the others in the majority were convinced that Paroline's possession of Amy's images necessarily caused her harm.
Adding to that problem is the fact that the law as written requires restitution for "the full amount of the victim's losses," and goes on to enumerate six categories of expenses that should be included when calculating the restitution amount. But only the last of those categories—"any other losses suffered by the victim as a proximate result of the offense"—uses the "proximate result" language, and while Amy's current attorney, Paul G. Cassell, argued that the "proximate cause" language applied only to the last category, the court held that it applied to all the categories, making it even harder to determine how much of Amy's injuries were "proximately caused" by Paroline.
"The difficulty is in determining the 'full amount' of those general losses, if any, that are the proximate result of the offense conduct of a particular defendant who is one of thousands who have possessed and will in the future possess the victim’s images but who has no other connection to the victim," Kennedy stated.
"The traditional way to prove that one event was a factual cause of another is to show that the latter would not have occurred 'but for' the former...," Kennedy later noted. "In this case, however, a showing of but-for causation cannot be made... From the victim's perspective, Paroline was just one of thousands of anonymous possessors. To be sure, the victim's precise degree of trauma likely bears a relation to the total number of offenders; it would probably be less if only 10 rather than thousands had seen her images. But it is not possible to prove that her losses would be less (and by how much) but for one possessor's individual role in the large, loosely connected network through which her images circulate. Even without Paroline's offense, thousands would have viewed and would in the future view the victim’s images, so it cannot be shown that her trauma and attendant losses would have been any different but for Paroline's offense. That is especially so given the parties' stipulation that the victim had no knowledge of Paroline."
And that, it seems, was the crux of the problem: Paroline certainly owed something to Amy, since his mere acquisition and possession of child porn were acts that helped (helps!) keep child porn producers making more product, but it is impossible to know how much Paroline's acts contributed to Amy's current problems—and this decision provided no answers to that question, though it spent several pages discussing the problem.
"The victim argues that holding each possessor liable for her entire losses would be fair and practical, in part because offenders may seek contribution from one another," Kennedy stated, and in fact, that's what the Fifth Circuit suggested when imposing its $3.4 million restitution. "But there is scant authority for her contention that offenders convicted in different proceedings in different jurisdictions and ordered to pay restitution to the same victim may seek contribution from one another. There is no general federal right to contribution... The reality is that the victim's suggested approach would amount to holding each possessor of her images liable for the conduct of thousands of other independently acting possessors and distributors, with no legal or practical avenue for seeking contribution."
Still, the majority balked at the ideas that Paroline should either pay the full restitution amount claimed by Amy or pay no restitution whatsoever, so it tried to work out a system by which the amount could be determined—and caught crap from both dissenters regarding the pseudo-formula.
"[D]istrict courts might, as a starting point, determine the amount of the victim’s losses caused by the continuing traffic in the victim’s images ..., then set an award of restitution in consideration of factors that bear on the relative causal significance of the defendant’s conduct in producing those losses," Kennedy wrote. "These could include the number of past criminal defendants found to have contributed to the victim’s general losses; reasonable predictions of the number of future offenders likely to be caught and convicted for crimes contributing to the victim’s general losses; any available and reasonably reliable estimate of the broader number of offenders involved (most of whom will, of course, never be caught or convicted); whether the defendant reproduced or distributed images of the victim; whether the defendant had any connection to the initial production of the images; how many images of the victim the defendant possessed; and other facts relevant to the defendant’s relative causal role."
Of course, the most important factors—how many possessed images of Amy and how many will be caught in the future—are completely unknowable, but that didn't stop the majority from calling on the trial court, on remand, to use its "discretion and estimation" in determining an amount, noting, "But courts can only do their best to apply the statute as written in a workable manner, faithful to the competing principles at stake: that victims should be compensated and that defendants should be held to account for the impact of their conduct on those victims, but also that defendants should be made liable for the consequences and gravity of their own conduct, not the conduct of others."
In her dissent, Justice Sotomayor, after analyzing why she felt that the "proximate result" language indeed meant that every possessor of Amy photos could be liable for the full extent of her requested restitution, suggested another path that the trial court could follow.
"The Court’s approach, however, cannot be reconciled with the law that Congress enacted," she wrote. "Congress mandated restitution for the 'full amount of the victim's losses,' §2259(b)(1), and did so within the framework of settled tort law principles that treat defendants like Paroline jointly and severally liable for the indivisible consequences of their intentional, concerted conduct. And to the extent an award for the full amount of a victim's losses may lead to fears of unfair treatment for particular defendants, Congress provided a mechanism to accommodate those concerns: Courts are to order 'partial payments' on a periodic schedule if the defendant’s financial circumstances or other “interest[s] of justice” so require."
Nonetheless, Sotomayor admitted that, "the injuries caused by child pornography possessors are impossible to apportion in any practical sense. It cannot be said, for example, that Paroline's offense alone required Amy to attend five additional minutes of therapy, or that it caused some discrete portion of her lost income." However, it's that admission (or its spirit, anyway) that led the other dissenters to suggest that the wording of the law—particularly §3664—made it impossible for a court to make any determination of how much a particular defendant should pay Amy.
"I certainly agree with the Court that Amy deserves restitution, and that Congress—by making restitution mandatory for victims of child pornography—meant that she have it," Chief Justice Roberts wrote. "Unfortunately, the restitution statute that Congress wrote for child pornography offenses makes it impossible to award that relief to Amy in this case. Instead of tailoring the statute to the unique harms caused by child pornography, Congress borrowed a generic restitution standard that makes restitution contingent on the Government’s ability to prove, 'by the preponderance of the evidence,' 'the amount of the loss sustained by a victim as a result of' the defendant's crime. When it comes to Paroline's crime—possession of two of Amy's images—it is not possible to do anything more than pick an arbitrary number for that 'amount.' And arbitrary is not good enough for the criminal law."
That argument could be called the "strict constructionist approach," and it's one that has been much favored by Roberts' fellow dissenters Scalia and Thomas.
"The offense of conviction here was Paroline's possession of two of Amy’s images," Roberts noted. "No one suggests Paroline's crime actually caused Amy to suffer millions of dollars in losses, so the statute does not allow a court to award millions of dollars in restitution. Determining what amount the statute does allow—the amount of Amy's losses that Paroline's offense caused—is the real difficulty of this case. Regrettably, Congress provided no mechanism for answering that question.
"Nothing in the record comes close to establishing that Amy would have suffered less if Paroline had not possessed her images, let alone how much less," he added. "Amy's injury is indivisible, which means that Paroline's particular share of her losses is unknowable. And yet it is proof of Paroline's particular share that the statute requires. By simply importing the generic restitution statute without accounting for the diffuse harm suffered by victims of child pornography, Congress set up a restitution system sure to fail in cases like this one."
The only solution to this dilemma, Roberts suggested, is for the court to throw up its hands and let Congress make corrections to the law.
"The Court’s decision today means that Amy will not go home with nothing," Roberts' dissent concluded. "But it would be a mistake for that salutary outcome to lead readers to conclude that Amy has prevailed or that Congress has done justice for victims of child pornography. The statute as written allows no recovery; we ought to say so, and give Congress a chance to fix it."
The Supreme Court's opinion in Paroline v. United States can be found here.
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