Amy and Vicky, Child Porn Victims: No Joint and Several Liability
You'd have to imagine, at some point, that either Congress (ha!) or the Supreme Court will step in and clear up the confusion surrounding restitution for those depicted in child pornography, as well as the issue of joint and several liability of the present day possessors of the images. Though they've denied certiorari in Amy and Vicky cases before, the flood of circuit court confusion and circuit splintering continues.
Last September, the ABA Journal wrote an exhaustive feature on Amy and Vicky, the two victims who have had cases appear in nearly every federal Circuit Court of Appeals in the nation. In fact, they've had two opinions released regarding their restitution this week, including a writ of mandamus in the Ninth Circuit.
The ABA feature goes in-depth into the numerous statutes involved in creating this new type of victim's restitution -- making child porn possessors pay in addition to, or instead of, the person who created the images. Nearly every circuit that has addressed the issue has come up with a different answer, from no restitution, to full restitution, and joint and several liability.
This isn't the first time Amy and Vicky have reached the Ninth Circuit. In 2011, a Ninth Circuit panel in United States v. Kennedy vacated a restitution award in Amy and Vicky's favor due to questions about proximate causation. The pair asked the Ninth Circuit to reconsider last year, after the Fifth Circuit came to a different conclusion. The panel, however, is bound by precedent.
Earlier this year, the Ninth Circuit kicked an Amy and Vicky case back to the district court to reexamine the issue of restitution, after finding that, contrary to the lower court's denial, petitioners had "provided sufficient evidence to establish a causal connection between defendant's offense and petitioners' losses."
In this week's opinion, Amy and Vicky appealed that lower court's restitution order again, this time arguing that joint and several liability for the entirety of the girls' damages was appropriate, rather than individual liability for a portion of the damages.
The lower court's order was based on the Sixth Circuit's approach in United States v. Gamble, another Amy and Vicky case. That approach determines a relevant pool by excluding damages incurred prior to the offense (possession of the images), then dividing that pool by the number of standing restitution orders.
Writ of mandamus orders are available only where the lower court's order reflects an abuse of discretion or legal order. There was no such abuse here, as the appropriate method for calculating restitution in these cases is still an open question in the Ninth Circuit. The statutes are vague and the other circuit courts are split. Interestingly enough, the only circuit court to apply joint and several liability was the Fifth Circuit, which also rejected the proximate cause requirement.
Under the circumstances of a muddled set of laws in a new theory of law, the lower court did what was reasonable under the circumstances.
Related Resources:
- In re: Amy & Vicky (Amy II) (Ninth Circuit Court of Appeals)
- Amy & Vicky's Pending Petition for Writ of Certiorari (SCOTUSblog)
- Restitution Awards Don't Require Juries in Petty Criminal Cases (FindLaw's Ninth Circuit Blog)
