S. Ct. Limits Restitution for Child Pornography Victims

Writing for the majority, Justice Anthony Kennedy rejected Amy's argument that the statute made the restitution target in this case, Doyle Paroline, liable for the entire amount of her losses.

“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,” Kennedy wrote.

Case Background

Amy had been sexually abused at age 8 or 9 by her uncle to produce pornography. Through intensive counseling, she reportedly was getting her life back to normal when, at age 17, she discovered that images of her abuse were being trafficked on the Internet. She experienced renewed trauma and underwent more counseling. She has calculated the full amount of her losses at about $3.4 million ' nearly $3 million in lost income and about $500,000 for future treatment and counseling costs.

Paroline, whom Amy did not know, pleaded guilty to possessing between 150 and 300 images of child pornography, including two of Amy. Amy sought the full amount ' $3.4 million ' in restitution from Paroline.

The district court refused to award restitution, finding that the government, as required by the law, failed to meet its burden of proving what losses, if any, were proximately caused by Paroline's offense. The U.S. Court of Appeals for the Fifth Circuit reversed, holding that the restitution law contained no proximate-cause requirement and that Paroline was liable for Amy's entire losses from the trade in her images even though additional offenders played a role in causing those losses.

High Court Rules'Restitution Should'Comport with Role

Kennedy disagreed. Under that approach, he wrote, there was no “legal or practical” avenue for a defendant to seek contribution from other offenders. That approach also raised questions, he said, under the Eighth Amendment's excessive-fines clause.

But Kennedy also rejected Paroline's argument that the government had to prove the amount of Amy's losses but for Paroline's role in the larger network of viewers of her images. The government conceded it could not prove that. Paroline's approach would result in no restitution, he said, and would “render [the statute] a dead letter in child-pornography prosecutions of this type.”

Instead, in this “special context,” district courts “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,” Kennedy said.

District courts should consider such factors as whether past criminal defendants were 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 those losses; any available and reasonably reliable estimate of the broader number of offenders involved; and whether the defendant reproduced and distributed images of the victim, among other factors.

Dissent: System'Needs Fixing

Chief Justice John Roberts Jr. dissented, saying Congress set up a restitution system that was certain to fail in cases like Amy's. “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,” wrote Roberts, joined by justices Antonin Scalia and Clarence Thomas.

“The court's decision today means that Amy will not go home with nothing,” Roberts wrote. “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.”

In a separate dissent, Justice Sonia Sotomayor argued that Congress, by requiring restitution for the “full amount” of a victim's losses, treated defendants like Paroline “jointly and severally liable for the indivisible consequences” of their intentional conduct. Congress also, she said, provided a mechanism to accommodate concerns that awarding the full amount may be unfair to particular defendants. “Courts are to order 'partial payments' on a periodic schedule,” she said, if required because of a defendant's financial circumstances or other interests of justice.

Reacting to the decision, Amy's High Court counsel, Paul Cassell of the University of Utah S.J. Quinney College of Law, said: “The majority of the Court says Amy will be compensated fully some day. Our concern is that some day may be too far in the future to ever really as a practical matter occur.”

Cassell said he, Amy and her supporters would urge Congress to amend the statute to ensure that victims get restitution quickly. “We're still evaluating options here,” he said. “Justice Sotomayor has a very straightforward and simple way to fix the statute and that certainly would be one quick way to fix the problem.”

Marcia Coyle is Chief Washington Correspondent for The National Law Journal, an ALM sibling publication of Internet Law & Strategy. She can be reached at [email protected].

A divided U.S. Supreme Court on April 23 limited the amount of restitution due to child pornography victims whose images are viewed by thousands over the Internet.

In Paroline v. United States, 12-8561 (2014), the 5-4 majority, overturning a $3.4 million award to a victim known by the pseudonym “Amy,” held that the amount of restitution must be tied to the role the convicted offender played in causing the victim's injury. (A PDF of the opinion is available at http://1.usa.gov/1roo22F.)

The federal Violence Against Women Act of 1994'requires district courts to order defendants to pay child pornography victims “the full amount” of their losses.

Writing for the majority, Justice Anthony Kennedy rejected Amy's argument that the statute made the restitution target in this case, Doyle Paroline, liable for the entire amount of her losses.

“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,” Kennedy wrote.

Case Background

Amy had been sexually abused at age 8 or 9 by her uncle to produce pornography. Through intensive counseling, she reportedly was getting her life back to normal when, at age 17, she discovered that images of her abuse were being trafficked on the Internet. She experienced renewed trauma and underwent more counseling. She has calculated the full amount of her losses at about $3.4 million ' nearly $3 million in lost income and about $500,000 for future treatment and counseling costs.

Paroline, whom Amy did not know, pleaded guilty to possessing between 150 and 300 images of child pornography, including two of Amy. Amy sought the full amount ' $3.4 million ' in restitution from Paroline.

The district court refused to award restitution, finding that the government, as required by the law, failed to meet its burden of proving what losses, if any, were proximately caused by Paroline's offense. The U.S. Court of Appeals for the Fifth Circuit reversed, holding that the restitution law contained no proximate-cause requirement and that Paroline was liable for Amy's entire losses from the trade in her images even though additional offenders played a role in causing those losses.

High Court Rules'Restitution Should'Comport with Role

Kennedy disagreed. Under that approach, he wrote, there was no “legal or practical” avenue for a defendant to seek contribution from other offenders. That approach also raised questions, he said, under the Eighth Amendment's excessive-fines clause.

But Kennedy also rejected Paroline's argument that the government had to prove the amount of Amy's losses but for Paroline's role in the larger network of viewers of her images. The government conceded it could not prove that. Paroline's approach would result in no restitution, he said, and would “render [the statute] a dead letter in child-pornography prosecutions of this type.”

Instead, in this “special context,” district courts “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,” Kennedy said.

District courts should consider such factors as whether past criminal defendants were 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 those losses; any available and reasonably reliable estimate of the broader number of offenders involved; and whether the defendant reproduced and distributed images of the victim, among other factors.

Dissent: System'Needs Fixing

Chief Justice John Roberts Jr. dissented, saying Congress set up a restitution system that was certain to fail in cases like Amy's. “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,” wrote Roberts, joined by justices Antonin Scalia and Clarence Thomas.

“The court's decision today means that Amy will not go home with nothing,” Roberts wrote. “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.”

In a separate dissent, Justice Sonia Sotomayor argued that Congress, by requiring restitution for the “full amount” of a victim's losses, treated defendants like Paroline “jointly and severally liable for the indivisible consequences” of their intentional conduct. Congress also, she said, provided a mechanism to accommodate concerns that awarding the full amount may be unfair to particular defendants. “Courts are to order 'partial payments' on a periodic schedule,” she said, if required because of a defendant's financial circumstances or other interests of justice.

Reacting to the decision, Amy's High Court counsel, Paul Cassell of the University of Utah S.J. Quinney College of Law, said: “The majority of the Court says Amy will be compensated fully some day. Our concern is that some day may be too far in the future to ever really as a practical matter occur.”

Cassell said he, Amy and her supporters would urge Congress to amend the statute to ensure that victims get restitution quickly. “We're still evaluating options here,” he said. “Justice Sotomayor has a very straightforward and simple way to fix the statute and that certainly would be one quick way to fix the problem.”

Marcia Coyle is Chief Washington Correspondent for The National Law Journal, an ALM sibling publication of Internet Law & Strategy. She can be reached at [email protected].