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It would be easy to overlook the U.S. Supreme Court’s decision last term in Paroline v. United States, 134 S. Ct. 1710, 188 L. Ed. 2d 714 (2014). Many other cases involved hot-button issues like the Affordable Care Act’s contraceptive mandate, legislative prayer, campaign finance, recess appointments, and free speech around abortion clinics. Indeed, Paroline—a child-pornography case—went unmentioned in both Erwin Chemerinsky and Frederick Lawrence’s Supreme Court Review at the National Constitution Center and Paul Clement’s counterpart for the Philadelphia Lawyers Chapter of the Federalist Society. Such decisions seldom apply to cases outside of that uniquely awful realm.
But Paroline is different. The court in Paroline crafted a new causation standard for awards of restitution following federal criminal convictions. As Chief Justice John Roberts Jr. noted in his dissent, the restitution statute at issue in this case is not limited to child-pornography cases. The court’s decision may thus affect a wide range of criminal cases, from fraud to conspiracy to civil rights.
Doyle Randall Paroline pleaded guilty to possessing 150 to 300 images of child pornography, which included two depicting the rape of a child identified in court papers by the pseudonym “Amy.” A decade after suffering this horrific abuse by her uncle, Amy learned that these images were among the most widely trafficked on the Internet. Thousands of people worldwide possessed images of her abuse. The fact that her private horror had become so public, with no sign of ever abating, caused severe emotional distress for Amy.
Paroline possessed two images of Amy’s abuse. Following his criminal conviction for possessing these images, federal prosecutors—on behalf of Amy—asked Paroline’s sentencing judge to impose an order of restitution of approximately $3.4 million. According to Amy, this figure reflected lost income and counseling costs resulting from her abuse and its public exposure. The district court denied any restitution, concluding that the government had failed to carry its burden of proving what losses, if any, Paroline proximately caused. The en banc U.S. Court of Appeals for the Fifth Circuit disagreed, holding that each possessor should be jointly and severally liable for a victim’s entire losses from the distribution of her images.
Amy’s claim for restitution forced the courts to wrestle with the scope of 18 U.S.C. Section 2259, a component of the Violence Against Women Act of 1994. That provision mandates that a district court “shall order restitution for any offense under this chapter,” which includes, among others, Paroline’s crime of knowingly possessing child pornography. Section 2259(b)(1) mandates that the defendant shall pay the victim “the full amount of the victim’s losses.” The statute then directs the court to issue a restitution order “in accordance with Section 3664 in the same manner as an order under Section 3663A.” Importantly, those sections (from the Mandatory Victims Restitution Act of 1996) were not designed specifically for child-pornography offenses; rather, they are the guideposts for imposing restitution orders in most federal criminal cases.
A divided U.S. Supreme Court vacated the Fifth Circuit’s decision in a 5-4 decision. Justice Anthony Kennedy, writing for the majority, first addressed whether Section 2259 limits restitution to damages proximately caused by the defendant. As Kennedy noted, “proximate cause is a standard aspect” of criminal and tort law. The statute itself enumerates six categories of losses to be covered by restitution, like medical services, therapy and lost income, and a final catchall category for “any other losses suffered by the victim as a proximate result of the offense.” The court was unpersuaded by Amy’s claim that a proximate-cause standard applied only to the catchall category. Rather, the court reasoned that common sense recommends a proximate-cause limitation on all categories of losses that Amy suffered. And the court held that Amy’s claim met this proximate-cause standard for her costs of treatment and lost income.
Proximate cause was only half of the battle for Amy. With that standard met, it was now up to her to prove causation in fact, and Kennedy’s opinion next addressed the proper standard for that inquiry. The majority acknowledged that Amy could not prove but-for causation (i.e., specific losses caused by Paroline’s crime). The court also rejected aggregate-causation concepts, where each possessor of Amy’s images would bear responsibility for all of the possessors, because those principles are generally limited to situations in which offenders act in concert, like criminal conspiracies.
Instead, the court created a new standard—namely, “less demanding causal standards” to “vindicate the law’s purposes.” Although it was impossible to identify a “discrete, readily definable incremental loss” that Paroline caused, the majority nonetheless deemed him responsible for paying some measure of restitution to Amy because he was “part of the overall phenomenon” that caused Amy’s losses. On that basis, the court held, Amy’s claim satisfied the MVRA’s factual causation requirement.
Kennedy’s opinion tried to take account of the “special context” in which many, disconnected perpetrators caused a victim’s injuries. His opinion stated: “A court applying Section 2259 should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses.” For Paroline, the court said the restitution should be neither severe nor token. The majority left the determination of such an award to the trial court’s judgment, but it provided lodestars for consideration, such as the number of defendants found to have contributed to the victim’s losses, the predicted number of future offenders, whether the defendant himself reproduced and distributed the images, etc.
Joined by Justices Antonin Scalia and Clarence Thomas, Roberts authored the main dissenting opinion. (Justice Sonia Sotomayor dissented separately; she would have assessed the full extent of Amy’s losses against Paroline.) The chief justice noted that, “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 loss sustained by a victim as the result of’ the defendant’s crime.” Yet, according to the dissenters, it would be impossible to identify with any precision the amount of loss sustained as a result of Paroline’s crime.
The chief justice agreed that the proximate-cause requirement was easily satisfied here. It was readily foreseeable that Paroline’s crime could cause Amy to suffer lost wages, costs for treatment and counseling, etc. It was causation in fact, rather, that presented a problem for the government. Amy did not know Paroline, and nothing in the record suggested that Amy would have suffered any more or less if Paroline had not possessed her images. Under the MVRA, restitution may not be imposed for losses caused by any other crime or any other defendant. According to Roberts, Amy’s injury was indivisible, and losses caused by Paroline could not be disentangled from those caused by anyone else.
Roberts’ dissent provides the key to this decision’s potential widespread application. The court’s decision seemed to speak more broadly than simply the child-pornography context, and its reasoning would seem to apply to federal crimes of violence, federal crimes against property, offenses relating to tampering with consumer products, domestic violence, telemarketing fraud and human trafficking, among others. Consequently, sentencing judges in those cases will surely be asked to impose restitution obligations based upon “the defendant’s relative role in the causal process that underlies the victim’s general losses,” even if the loss sustained as a result of the defendant’s particular crime is unknowable. The government can be expected to argue that Paroline eliminates factual causation as a prerequisite for imposing restitution on criminal defendants, so long as a defendant is “part of the overall phenomenon” that causes losses to a victim. That would be a dramatic expansion of restitution liability for criminal defendants—one that might not survive in a factual context as emotionally charged as child pornography.
Stephen A. Miller practices in the commercial litigation group at Cozen O’Connor’s Philadelphia office. Prior to joining Cozen O’Connor, he clerked for Justice Antonin Scalia on the U.S. Supreme Court and served as a federal prosecutor for nine years in the Southern District of New York and the Eastern District of Pennsylvania. Kaitlin M. DiNapoli also practices in the firm’s commercial litigation group. She received her J.D. from the University of Notre Dame, and her Bachelor of Science from the University of Dayton. She served as a law clerk for both Judge Ray Kethledge of the U.S. Court of Appeals for the Sixth Circuit, and U.S. District Judge Robert Kugler of the District of New Jersey. •