WASHINGTON, D.C. – Three lawyers offered the U.S. Supreme Court on Wednesday three “stark choices” about how to pay restitution to child pornography victims, but none seemed to satisfy all of the justices.
The three choices, several justices noted, would result in victims receiving nothing, everything or something in between the two.
During arguments in Paroline v. United States, 12-8561, the high court struggled with how to give effect to Congress’ mandate in the Sexual Exploitation and Other Abuse of Children Act that these victims receive the “full amount” of their losses.
The justices had agreed to decide what causal relationship, if any, between a criminal defendant’s act and a child pornography victim’s harm must the government or the victim prove for the victim to get restitution.
The case stems from the conviction of Doyle Paroline for possession of child pornography. The 300 images found on his computer included two of the child, “Amy,” who, when she was 8 years old, was raped by her uncle. The uncle took photographs of his crimes and posted them on the Internet. The images are part of the most widely distributed child pornography, a series known as “Misty.”
The U.S. Court of Appeals for the Fifth Circuit ruled that Paroline was liable for all of Amy’s harm and losses, an estimated $3.4 million.
Lawyers for Paroline, the federal government and Amy tried to persuade the justices that each had the best approach as Amy, now in her mid-20s, watched from the audience.
The problem confronting the court is the section of the law defining the “full amount of the victim’s losses.” The law lists items such as medical services, physical and occupational therapy, lost income and attorney’s fees. Last on the list is “any other losses suffered by the victim as a proximate result of the offense.”
Paroline’s counsel, Stanley Schneider of Houston’s Schneider & McKinney, argued that the law’s plain text requires the government to prove that all of the victim’s harms or losses are the direct, or proximate, result of Paroline’s offense.
Justice Stephen Breyer countered: “But if a thousand people look at [the images], then each one can say: ‘But I didn’t cause more than a tiny fraction at most,’ and so there virtually is no restitution, right? Now, every one of the thousand says that, truthfully, and so therefore the victim gets no restitution—opposite of what Congress wanted.”
Justice Samuel Alito Jr., agreeing with Breyer’s summation of Schneider’s argument, added, “The victim gets nothing in those cases because it’s impossible to determine what percentage of the harm is attributable to this one defendant’s possession of the child pornography.”
Deputy Solicitor General Michael Dreeben offered the justices another approach, one drawn from tort law that would give Amy some restitution but not the entire amount owed for her full loss.
“Look at the number of convicted defendants who have been ordered to pay restitution to Amy, divide that into the total harm that the district court finds was the result of the community of child pornography possessors, and then adjust it based on the severity of the offense,” Dreeben suggested.
But Justice Antonin Scalia pushed back, saying, “And that’s wonderful and, you know—I want to go along with you. This is a bad guy and he ought to be punished and he ought to give restitution, but there is such a thing as due process of law. I have no idea what he’s going to be socked with, and that’s not what we usually do with criminal statutes.”
A reasonable estimation is better than all or none, Dreeben answered. In criminal restitution, he added, “exactitude is not required.”
Congress answered the question presented, said Amy’s counsel, Paul Cassell of the University of Utah S.J. Quinney School of Law. “The text of the statute tell us. It is the full amount,” he argued.
But Paroline did not cause the full amount, Breyer countered. Did Congress want people to pay for an injury they did not cause? he asked.
The solution, Cassell said, is to recognize that Paroline contributed to all of Amy’s losses. For example, he said, the court has recognized in an asbestos case that asbestos manufacturers all contributed to a particular loss. “The result in that case was joint and several liability. Each person who contributed to the loss was on the hook for the damages in their entirety,” he said.
Paroline is guilty of the crime, Scalia interjected, “but to sock him for all of her psychiatric costs and everything else because he had two pictures of her? Congress couldn’t have intended that.”
But Congress did intend that, Cassell replied, adding that the statute says he is responsible for the full amount of the losses.
But Alito posited an example in which the first person to view certain images is convicted and assessed restitution for the full amount claimed by the victim. Shortly after that, 10 more people are convicted for possessing the same content. “They all pay nothing because the first person paid everything?” he asked.
Cassell answered yes, explaining: “Congress wanted to take these vulnerable victims of child pornography crimes, federal sex offense crimes and domestic violence, and get them full restitution as quickly and effectively as possible. And then after that, if there’s a need to send an additional message to a defendant, he can be fined up to a quarter of a million dollars or sent to prison for a longer period of time.
One of the “beauties” of his approach, Cassell added, is that in an estimated two to three years, Amy’s restitution requests will be fulfilled.
“If you adopt the government’s approach, you could be looking at literally thousands and thousands of cases where Amy will have to be filing piecemeal restitution requests, collecting as little as $47 under some of the calculation theories that the government has proposed, and there’s no certainty that she’s ever going to get the psychological counseling costs that she desperately needs and the lost income,” he concluded.
Amy thus far has received $1.752 million, of which $1.2 million came from one man, Cassell told the court.
@|Marcia Coyle covers the U.S. Supreme Court for the National Law Journal, an affiliate of the New York Law Journal. She can be contacted at firstname.lastname@example.org