Court calls for new briefs on child porn (UPDATED)
on Feb 21, 2014 at 1:41 pm
UPDATED 2:50 p.m. The post has been updated and expanded to fill in the background behind the Court’s new briefing order.
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The Supreme Court on Friday afternoon indicated it has an interest in whether its view on the scope of the legal duty of users of child pornography to pay the victims might be affected by a ruling it made last month in criminal drug case. In a brief order in Paroline v. United States, the Court called for supplemental briefs on the impact on that case of its decision January 27 in Burrage v. United States.
The Court, in the same order, allowed attorneys for the young woman identified as a pornography victim — “Amy Unknown” — to file a new, post-argument brief. Other parties may file briefs on the same point, according to the order; those will be due by Friday, March 7. The Paroline case was argued on January 22, in advance of the Burrage decision.
The Court, it appears, did not stir up this new issue on its own. The day after the Burrage decision had been issued, counsel for Doyle Randall Paroline sent a letter to the Court suggesting that this ruling should apply to his client’s case. The new “Amy Unknown” brief came in response to that, and argued that there were fundamental differences involved.
Two different laws are at issue in the two cases, but the Court’s new action seemed to suggest that there may be some overlap in how to interpret them.
In the Paroline case, the 1994 federal law creates a financial remedy for victims of individuals who possess child pornography. An individual convicted under that law faces the prospect of paying financial restitution to an identified victim. Judges have a mandatory duty to award restitution for the “full amount” of the victim’s losses. It spells out specific kinds of losses, but then adds a catch-all phrase for “any other losses.” For those in that category, however, prosecutors must show that the losses claimed were “a proximate result” of the crime leading to the conviction of the possessor.
It is unclear, at this point, whether the requirement of proof of “proximate result” applies to all losses, or just to the catch-all grouping. At the Paroline hearing, the Justices pondered that issue and, more broadly, just how much of an overall restitution obligation should be ordered from a specific user of child pornography — a kind of cause-and-effect inquiry.
In the Burrage case, the federal law at issue made it a crime to sell heroin, but then added to the punishment if the person who used the drug dies. An individual who is convicted of selling heroin faces a sentence of up to twenty years. But if “death resulted from” the use of heroin, the required sentence is a minimum of twenty years, up to life in prison.
In its ruling in Burrage, the Court ruled unanimously that the enhanced punishment may be imposed only if prosecutors prove that the one drug which was sold was the actual cause of death, when the person actually had used several drugs. The decision rejected the government’s argument that it would be enough if the drug that had been sold played a role in the result.
In a letter to the Court Clerk on January 29, Houston attorney Stanley G. Schneider noted the new Burrage ruling, and said he believed it “should apply to the arguments made on behalf of Mr. Paroline.” The letter offered to submit a brief on the point.
In the supplemental brief, filed on February 11, lawyers for “Amy Unknown” disputed that suggestion, saying that the Court was obliged to interpret a criminal law like the heroin sentence enhancement law in a strict way, but that there is a long tradition of interpreting remedies for torts (legal wrongs) more expansively. In particular, the new brief said, there is strong authority for the concept of assessing the full amount of damages for a tort to those who had contributed to the harms done.
