OK

Some cases just break your heart. Completely.
When she was eight and nine years old, she was sexually abused by her uncle in order to produce child pornography. Her uncle was prosecuted, required to pay about $6,000 in restitution, and sentenced to a lengthy prison term. 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. As she explained in a victim impact statement submitted to the District Court in this case:

“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.”

Doyle Randall Paroline pleaded guilty to possessing between 150-300 images of child pornography, two of which were pictures of "Amy," the victim above.

There's a federal statute, 18 U.S.C. § 2259, which mandates that in these cases, the Court must make a restitution order which "shall direct the defendant to pay the victim ... the full amount of the victim’s losses as determined by the court."

Amy asked for close to $3.4 million, consisting of nearly $3 million in lost income and about $500,000 in future treatment and counseling costs. The question for the Supreme Court last week was, how much of this is Paroline's responsibility? All of it, some of it, or none of it? Thousand of people viewed these pictures, and Paroline's not the guy who created them, after all.

I recognize that to even ask the question of what's fair to Paroline is to invert all of our natural sympathies, but we have to be guided by what Congress actually wrote and intended, and what the Constitution allows.  

Join me below the fold to see the splintered way in which this was resolved.

The Court's decision was authored by Justice Kennedy, joined by Justices Ginsburg, Breyer, Alito, and Kagan. They maintain that the statute requires Paroline only be responsible for the losses which his viewing proximately caused, because of the statutory text. But what does that mean? On the one hand, the Court rejects the idea that Paroline pay no restitution on the grounds that he was just one of many pebbles constituting the boulder of injury here, and that Amy would have been just as damaged had he personally done nothing:

If the conduct of a wrongdoer is neither necessary nor sufficient to produce an outcome, that conduct cannot in a strict sense be said to have caused the outcome. Nonetheless, tort law teaches that alternative and less demanding causal standards are necessary in certain circumstances to vindicate the law’s purposes. It would be anomalous to turn away a person harmed by the combined acts of many wrongdoers simply because none of those wrongdoers alone caused the harm. And it would be nonsensical to adopt a rule whereby individuals hurt by the combined wrongful acts of many (and thus in many instances hurt more badly than otherwise) would have no redress, whereas individuals hurt by the acts of one person alone would have a remedy.
But on the other hand, the Court feels it cannot put Paroline on the hook for all Amy's injuries:
The victim says that under the strict logic of these alternative causal tests, each possessor of her images is a part of a causal set sufficient to produce her ongoing trauma, so each possessor should be treated as a cause in fact of all the trauma and all the attendant losses incurred as a result of the entire ongoing traffic in her images. And she argues that if this premise is accepted the further requirement of proximate causation poses no barrier, for she seeks restitution only for those losses that are the direct and foreseeable result of child-pornography offenses. Because the statute requires restitution for the “full amount of the victim’s losses,” including “any . . . losses suffered by the victim as a proximate result of the offense,” §2259(b), she argues that restitution is required for the entire aggregately caused amount.

The striking outcome of this reasoning—that each possessor of the victim’s images would bear the consequences of the acts of the many thousands who possessed those images—illustrates why the Court has been reluctant to adopt aggregate causation logic in an incautious manner, especially in interpreting criminal statutes where there is no language expressly suggesting Congress intended that approach....

Contrary to the victim’s suggestion, this is not akin to a case in which a “gang of ruffians” collectively beats a person, or in which a woman is “gang raped by five men on one night or by five men on five sequential nights.” First, this case does not involve a set of wrongdoers acting in concert, for Paroline had no contact with the overwhelming majority of the offenders for whose actions the victim would hold him accountable. Second, adopting the victim’s approach would make an individual possessor liable for the combined consequences of the acts of not just 2, 5, or even 100 independently acting offenders; but instead, a number that may reach into the tens of thousands.

It is unclear whether it could ever be sensible to embrace the fiction that this victim’s entire losses were the “proximate result” of a single possessor’s offense. Paroline’s contribution to the causal process underlying the victim’s losses was very minor, both compared to the combined acts of all other relevant offenders, and in comparison to the contributions of other individual offenders, particularly distributors (who may have caused hundreds or thousands of further viewings) and the initial producer of the child pornography. Congress gave no indication that it intended its statute to be applied in the expansive manner the victim suggests, a manner contrary to the bedrock principle that restitution should reflect the consequences of the defendant’s own conduct, not the conduct of thousands of geographically and temporally distant offenders acting independently, and with whom the defendant had no contact.

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. If that were so, it might mitigate to some degree the concerns her approach presents. 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... 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.

[The Court also raises the possibility that holding a single perpetrator potentially responsible for all damages "is so severe it might raise questions under the Excessive Fines Clause of the Eighth Amendment."]

So, what's left? "Be fair," basically, is the ruling:

In this special context, where it can be shown both that a defendant possessed a victim’s images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying §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. The amount would not be severe in a case like this, given the nature of the causal connection between the conduct of a possessor like Paroline and the entirety of the victim’s general losses from the trade in her images, which are the product of the acts of thousands of offenders. It would not, however, be a token or nominal amount. The required restitution would be a reasonable and circumscribed award imposed in recognition of the indisputable role of the offender in the causal process underlying the victim’s losses and suited to the relative size of that causal role. This would serve the twin goals of helping the victim achieve eventual restitution for all her child-pornography losses and impressing upon offenders the fact that child-pornography crimes, even simple possession, affect real victims.
And what if that means that Amy is never made whole, because so many of the men who hurt her are never prosecuted? Sorry:
The victim also argues that this approach would consign her to “piecemeal” restitution and leave her to face “decades of litigation that might never lead to full recovery,” Brief for Respondent Amy 57, which “would convert Congress’s promise to child pornography victims into an empty gesture,” id., at 66. But Congress has not promised victims full and swift restitution at all costs. To be sure, the statute states a strong restitutionary purpose; but that purpose cannot be twisted into a license to hold a defendant liable for an amount drastically out of proportion to his own individual causal relation to the victim’s losses.

Furthermore, an approach of this sort better effects the need to impress upon defendants that their acts are not irrelevant or victimless. As the Government observes, it would undermine this important purpose of criminal restitution if the victim simply collected her full losses from a handful of wealthy possessors and left the remainder to pay nothing because she had already fully collected. Of course the victim should someday collect restitution for all her child-pornography losses, but it makes sense to spread payment among a larger number of offenders in amounts more closely in proportion to their respective causal roles and their own circumstances so that more are made aware, through the concrete mechanism of restitution, of the impact of child-pornography possession on victims.

To which Justice Sotomayor, dissenting solo, says that's not enough, and it's not what Congress wanted:
When Congress passed §2259 in 1994, it was common knowledge that child pornography victims suffer harm at the hands of numerous offenders who possess their images in common, whether in print, film, or electronic form. See, e.g., Shouvlin, Preventing the Sexual Exploitation of Children: A Model Act, 17 Wake Forest L. Rev. 535, 544 (1981) (describing the “enormous number of magazines” and “hundreds of films” produced each year depicting the sexual abuse of children, which were circulated to untold numbers of offenders through a “well-organized distribution system [that] ensures that even the small towns have access to [the] material”); Doyle, FBI Probing Child Porn on Computers, San Francisco Chronicle, Dec. 5, 1991,p. A23 (describing complaint that “child pornographic photographs” were circulating via the “America On-Line computer service”). Congress was also acutely aware of the severe injuries that victims of child pornography suffer at the hands of criminals who possess and view the recorded images of their sexual abuse. Congress found, for example, that the “continued existence” and circulation of child pornography images “causes the child victims of sexual abuse continuing harm by haunting those children in future years.” Child Pornography Prevention Act of 1996, §121, 110 Stat. 3009–26, Congressional Findings (2), notes following 18 U. S. C. §2251 (hereinafter §2251 Findings). It is inconceivable that Congress would have imposed a mandatory restitution obligation on the possessors who contribute to these “continuing harm[s],” ibid., only to direct courts to apply a but-for cause requirement that would prevent victims from actually obtaining any recovery.
Instead, she'd find each possessor jointly and severally liable for the entirety of the harm:
Child pornography possessors are jointly liable under this standard, for they act in concert as part of a global network of possessors, distributors, and producers who pursue the common purpose of trafficking in images of child sexual abuse. As Congress itself recognized, “possessors of such material” are an integral part of the “market for the sexual exploitative use of children." Moreover, although possessors like Paroline may not be familiar with every last participant in the market for child sexual abuse images, there is little doubt that they act with knowledge of the inevitable harms caused by their combined conduct. Paroline himself admitted to possessing between 150 and 300 images of minors engaged in sexually explicit conduct, which he downloaded from other offenders on the Internet. By communally browsing and downloading Internet child pornography, offenders like Paroline “fuel the process” that allows the industry to flourish. O’Connell, Paedophiles Networking on the Internet, in Child Abuse on the Internet: Ending the Silence 77 (C. Arnaldo ed. 2001). Indeed, one expert describes Internet child pornography networks as “an example of a complex criminal conspiracy,”—the quintessential concerted action to which joint and several liability attaches.
The Chief Justice with Justices Scalia and Thomas, dissent on the other side, maintaining that given the nature of this statute, they can't award restitution at all, because "pick a number" isn't justice:
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. 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. 18 U. S. C. §3664(e). 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....

[Amy's] loss, while undoubtedly genuine, is a result of the collective actions of a huge number of people—beginning with her uncle who abused her and put her images on the Internet, to the distributors who make those images more widely available, to the possessors such as Paroline who view her images. The harm to Amy was produced over time, gradually, by tens of thousands of persons acting independently from one another. She suffers in particular from her knowledge that her images are being viewed online by an unknown number of people, and from her fear that any person she meets might recognize her from having witnessed her abuse. But Amy does not know who Paroline is. 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. 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.

And so to them, the majority's approach is untenable:
The majority’s proposal is to have a district court “assess as best it can from available evidence the significance of the individual defendant’s conduct in light of the broader causal process that produced the victim’s losses.” Even if that were a plausible way to design a restitution system for Amy’s complex injury, there is no way around the fact that it is not the system that Congress created. The statute requires restitution to be based exclusively on the losses that resulted from the defendant’s crime—not on the defendant’s relative culpability. The majority’s plan to situate Paroline along a spectrum of offenders who have contributed to Amy’s harm will not assist a district court in calculating the amount of Amy’s losses—the amount of her lost wages and counseling costs—that was caused by Paroline’s crime (or that of any other defendant).

... To the extent that district courts do form a sort of consensus on how much to award, experience shows that the amount in any particular case will be quite small—the significant majority of defendants have been ordered to pay Amy $5,000 or less. This means that Amy will be stuck litigating for years to come. The Court acknowledges that Amy may end up with “piecemeal” restitution, yet responds simply that “Congress has not promised victims full and swift restitution at all costs.”

Amy will fare no better if district courts consider the other factors suggested by the majority, including the number of defendants convicted of possessing Amy’s images, a rough estimate of those likely to be convicted in the future, and an even rougher estimate of the total number of persons involved in her harm. In the first place, only the last figure is relevant, because Paroline’s relative significance can logically be measured only in light of everyone who contributed to Amy’s injury—not just those who have been, or will be, caught and convicted. Even worse, to the extent it is possible to project the total number of persons who have viewed Amy’s images, that number is tragically large, which means that restitution awards tied to it will lead to a pitiful recovery in every case. See Brief for Respondent Amy 65 (estimating Paroline’s “ ‘market share’ ” of Amy’s harm at 1/71,000, or $47). The majority says that courts should not impose “trivial restitution orders,” but it is hard to see how a court fairly assessing this defendant’s relative contribution could do anything else.

* * *
As Justice Sotomayor writes (and all the Justices agree, in their own language), this is a mess, but something Congress can fix:
In the end, of course, it is Congress that will have the final say. If Congress wishes to recodify its full restitution command, it can do so in language perhaps even more clear than §2259’s “mandatory” directive to order restitution for the “full amount of the victim’s losses.” Congress might amend the statute, for example, to include the term “aggregate causation.” Alternatively, to avoid the uncertainty in the Court’s apportionment approach, Congress might wish to enact fixed minimum restitution amounts. See, e.g., §2255 (statutorily imposed $150,000 minimum civil remedy). In the meanwhile, it is my hope that the Court’s approach will not unduly undermine the ability of victims like Amy to recover for—and from—the unfathomable harms they have sustained.
The law's not perfect, and there is no true way to restore Amy to where might have been had none of this happen. We'll see what Congress does next.

Originally posted to Adam B on Tue Apr 29, 2014 at 12:02 PM PDT.

Also republished by Daily Kos.

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