Court Lets Confusion Reign in Child Porn Restitution Cases

This wasn't an easy question. If you want to see how difficult the question of the proper means for calculating restitution for child pornography victims is, see the many, many, many different approaches taken by courts over the last few years.

It all comes down to the impossibility of making a victim whole while the crime is ongoing. When "Amy" (pseudonym) was a child, she was the victim of abuse by her uncle, who distributed images of her online, images that are amongst the most distributed in the world. Police officers nationwide have made arrests over these exact images, and each time, as the victim, she is notified.

Eventually, a creative attorney came up with the brilliant idea of going after these pedophiles for restitution, both for lost income and to cover her massive bills for psychological treatment. The problem is, how do you apportion responsibility when more and more defendants continue to appear (and will continue to appear in the future)? Joint and several liability? Percentage of the harm according to currently-known offenders?

The Court's decision today, holding that restitution is warranted, but not providing a solid means for determining apportionment, certainly won't help the confusion.

Proximate Causation

For once, proximate causation was the (relatively) easy part. The victim argued that the final provision of the statute, § 2259, is the only to mention "proximately" explicitly, and therefore is the only provision to have such a requirement.

The Court, disagreed, noting that the "catch-all" nature of the provision ("any other losses suffered by the victim as a proximate result of the offense,") reflected Congress's intent to apply the requirement to the restitution statute generally.

Factual Causation

This is where thing get tricky. "But for" causation doesn't work here -- who's to say if she'd be less traumatized if one person, who she had never heard off, had never possessed her images. There's some relation (the psychological damage results from the knowledge that the images are out there, and are widely traded), but the traditional test just doesn't work.

The "multiple sufficient causes" test doesn't work either. (This is where two people shoot a deer at the same time -- who killed it?)

There's also the "aggregate causation" theory (each actor is independently incapable, but together, the aggregate is a "but for" cause), but it is a tenuous theory in torts, one that is cautiously and rarely used, and one that the Court was uncomfortable applying here.

Causation? Whatever. Restitution.

What does that leave? This is where Justice Kennedy kind of goes off the rails a bit. There's no way to show causation, but restitution should be awarded anyway:

"Just as it undermines the purposes of tort law to turn away plaintiffs harmed by several wrongdoers, it would undermine the remedial and penological purposes of §2259 to turn away victims in cases like this."

He goes on to discuss the harms of child pornography, then drops this vague (and wordy) standard:

"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."

Yes, we apologize for the word dump, but that is the guidance that is provided for lower courts: order something, but not too little, and not too much, because it feels right to do so.

Morally? Sounds good. Legally? Either dissent seems to be on less shaky ground, and importantly, both provide actual guidance to lower courts.

Chief Justice Roberts, along with Justices Scalia and Thomas, point out that there is no textual basis for causation or determining a restitution award. No law = no relief.

Justice Sotomayor, dissenting alone, is in favor of joint and several liability, but with district courts ordering "partial payments" pursuant to §§3664(f)(3), 3572(d)(1). These periodic payments would mean that as more defendants are discovered, and more partial payments are made, the likelihood of a single defendant being stuck with a $3.4 million judgment decreases.

Kennedy's opinion carried the day in the Supreme Court, but seems impossible to apply in practice. Roberts' opinion basically calls for Congress to fix their statute, but leaves the victim without restitution. And Sotomayor presents a pragmatic alternative, albeit one that no one else seems to agree with.

Will Kennedy's solution collapse, leading to more litigation? Will Congress fix their mess? Tell us your predictions on Facebook.

Related Resources:

• Paroline v. United States (Supreme Court)
• 108 Page Headache: Plurality Upholds Michigan's Aff. Action Ban (FindLaw's U.S. Supreme Court Blog)
• Grants: Search, Career Criminal, and the Infamous Israel Passport (FindLaw's U.S. Supreme Court Blog)