Argument preview: Paying a price for child porn
on Jan 21, 2014 at 4:49 pm
At 10 a.m. on Wednesday, the Supreme Court will hold one hour of oral argument on the proof needed to require a convicted pornographer trafficker to pay the victim for harms done. Arguing for the convicted individual in Paroline v. United States will be Stanley G. Schneider of the Houston office of the law firm of Schneider & McKinney. Arguing for the federal government will be Deputy U.S. Solicitor General Michael R. Dreeben. Paul G. Cassell, a University of Utah law professor, will argue for a victim identified in court papers only as “Amy Unknown.” Each of the three attorneys will have twenty minutes at the lectern.
Since 1994, Congress has provided a financial remedy for victims of those who have been convicted of trafficking in child pornography, or of other sexual crimes against children. The restitution penalty is in addition to any sentence imposed upon conviction. The federal appeals courts, however, are divided on whether this extra penalty will be virtually automatic, or whether there has to be proof of a link between the crimes and the harms to victims.
The dispute arises because of the way Congress in 1994 wrote the Mandatory Restitution for Sexual Exploitation of Children Act. Depending upon how the Court interprets that language apparently will determine whether, indeed, the financial penalty is mandatory.
Under the Act, Congress recognized that children could suffer a variety of losses from being exploited in the production of child pornography: the costs of medical services, physical therapy, necessary transportation, temporary housing or child care, and attorney’s fees while pursuing the restitution penalty.
The problem in interpreting the scope of the penalty is that, in addition to listing those specific kinds of burdens or harms to victims, Congress added a catch-all loss provision. It says that restitution is to be awarded for “any other losses suffered by the victim” — but adds a limitation, saying that those losses must be shown to be “a proximate result” of the crime for which a pornographer had been convicted.
The notion of “proximate cause” or “proximate result” is understood as a shorthand phrase to take account of the reality that injuries may have many causes, but that not all should lead to criminal penalties. Rather, such penalties should attach to the demonstrated source of the injury, if that can be identified.
The federal appeals courts are divided on whether the proof of a “proximate” link between harm and the pornographer’s actions applies only to the catch-all provision for “other losses,” or whether it also qualifies the awarding of restitution for the specifically enumerated losses in the remainder of the Act.
To settle this dispute, the Supreme Court has chosen one of several cases in which a victim identified only as “Amy Unknown” has been seeking payments in child pornography cases in the federal courts.
The case being reviewed, Paroline v. United States, involves Doyle Randall Paroline of Tyler, Texas. An employee of a computer company discovered that Paroline’s laptop computer contained numerous images of children, posing nude and engaging in various sexual acts with adults and animals. Federal officials were notified.
Paroline pleaded guilty to possessing child pornography on his laptop, including two photos of a child known only as “Amy.” The photos, showing Amy being sexually exploited when she was eight and nine years old, were said to have been posted on the Internet by her uncle. They were posted in what came to be known as the “Misty” series. Federal prosecutors have said that images of “Amy” are among the most widely distributed sets of such images in the world. Her attorneys have become involved in some 1,600 lawsuits. (Data sent to the Court by the Justice Department, which it said may not be complete, showed that “Amy” has received 182 restitution awards, ranging in size from fifty to more than three million dollars. “Amy” is now twenty-one years old.)
Following Paroline’s guilty plea, under a plea bargain, he was sentenced to two years in prison, to be followed by ten years of supervised release.
After that, representatives of “Amy” went to the government, seeking restitution of $3,367,864 from Paroline. A federal judge refused to impose the penalty, ruling that, while “Amy” was indeed a victim who had been harmed by the pornography, either the government or she had failed to show any specific losses that were caused by Paroline’s actions.
Ultimately, the en banc U.S. Court of Appeals for the Fifth Circuit — dividing ten to five — rejected that interpretation of the 1994 Act, and ordered the case back to the district court judge, to calculate a restitution amount. The majority decided that the “proximate result” language applied only to the catch-all loss provision, not to the enumerated loss items.
Paroline’s lawyers took the case to the Supreme Court, raising two issues: whether there had to be proof of a link between the harm and the pornographer viewer’s actions, and whether the amount of restitution sought in his case would violate the Eighth Amendment’s ban on “excessive fines.”
The Justice Department told the Supreme Court that it agreed with all the other federal appeals courts, which had ruled that the proof of cause did apply across the board, to all claimed losses, and not just to the “catch-all” category of “other losses.” Even so, it argued that the Court should not grant any of the then-pending cases before it, saying that the conflict was a narrow one, and that the issue would benefit from having it “percolate” further in lower courts.
On June 27, the Court agreed to hear Paroline’s case, but limited its review to a newly drafted question: “What, if any, causal relationship or nexus between the defendant’s conduct and the victim’s harm or damages must the government or the victim establish in order to recover restitution” under the 1994 Act.
Paroline’s brief on the merits relied primarily upon what it called a “bedrock principle of criminal law,” that sentences should fit the crime. That means, the brief argued, that a restitution order that is part of a sentence must be “rationally related and proportionate” to the conduct that led to conviction.
If the Fifth Circuit’s approach becomes the law, that filing contended, restitution in all cases where it is available as part of criminal sentencing would become a “strict liability proposition” where the actual conduct of the convicted individual would be beside the point. What matters most in determining punishment, Paroline’s attorneys contended, is the totality of the convicted individual’s conduct.
Another convicted pornography trafficker, a Louisiana man, Michael Wright, is also involved in the case. Although he had filed a separate petition with the Supreme Court, which the Court did not grant, his case was decided along with Paroline’s in the Fifth Circuit. His brief on the merits parallels Paroline’s demand for a direct link between the victim’s harms and the pornographer’s crime.
The Justice Department has changed its position in significant ways at the merits stage, compared to its opposition to review of this case by the Court. Overall, it is now lined up on “Amy’s” side of the case. Its brief on the merits argued that the 1994 law should not be interpreted in a way that results in no restitution for a person shown to be a victim of child pornography.
Because the law makes restitution “mandatory” in such cases, the Department contended, “any interpretation that would effectively render restitution unavailable for victims of child-pornography possession offenses should be rejected.”
In applying the “proximate cause” approach, the federal brief suggested, courts should not make it a “but-for” test: in other words, courts should not refuse to award restitution simply because they do not find a direct link between the victim’s harm and the pornographer’s conduct, so that if that conduct was not the cause, there is no restitution.
Rather, according to the Department, courts should use an “aggregate” standard of cause: in other words, the courts should weigh what part of harm suffered by the victim can be attributed to the pornographer, when others also contributed to it.
Although the government has held to its views that a “proximate cause” requirement should apply to all of the claimed losses of the victim, that will not often make a difference, it argued, because the “typical losses” suffered by a victim of such a crime will always be the result of the pornographic displays.
Its bottom line, the government brief said, is that courts should avoid the extremes on restitution: no award, on one hand, and on the other, an award that reflects all of the losses the victim has claimed, in the aggregate. Thus, each district court should judge for itself how to allocate a particular pornographer’s share of the aggregate losses of the victim.
The merits brief filed by lawyers for “Amy” challenged both the approach suggested by Paroline, and that advocated by the Justice Department, arguing that neither will give her “full restitution.” Instead of either, the filing contended, the Court should rule that, once a child’s representatives have shown that she was a victim and suffered losses, and that her image was possessed by a specific child pornographer, a court must award her the “full amount” of her loss. The theory behind that approach, according to her brief, is that — as Congress found — “every instance of viewing images of child pornography represents a renewed violation of the privacy of the victims and repetition of their abuse.”
The “Amy” brief asserted that there is a “vast criminal machinery that generates” the harms to children, and that each of the “countless criminals” involved must be held accountable under the law. The machinery includes not only those who produce the images, the brief argued, but those who possess and view them.
All of the fifteen amici filings in the case are on “Amy’s” side, or are neutral in order to make general arguments about how to read statutes.
Analysis
This is the kind of case that reaches the Court with so much emotional drive behind it that the Court’s options seem to be limited. Any decision that left “Amy” with no financial award from an individual convicted of trafficking in the images of her abuse would seem to be unjust, and even might be argued to be letting pornographers off without the full punishment that Congress had sought to impose.
If the Court were to take the approach that Paroline’s (and Wright’s) lawyers advocated, requiring a direct link between the harms done and a specific pornographer’s actions, a victim of child pornography might seldom win any restitution for the kinds of losses most often experienced by victims. But that approach is also the one that hews most closely to the law as written by Congress.
If, however, the Court were to take the approach recommended by counsel for “Amy,” the result would be that there would probably be a restitution in virtually every case, because each pornographer’s viewing of the child victim’s image would be treated as a cause of her losses and her injuries. But that approach would be the one that went the furthest to fulfill the congressional policy of having restitution be “mandatory.”
That would seem to leave, as a perhaps more preferable alternative, the third approach, recommended by the Justice Department. It requires a bit of legalistic parsing of policy goals, beyond the specific statutory structure, and it is offered frankly as a “pragmatic” approach. Although the government advanced that approach on the premise that a victim should never be turned away with no restitution, it very likely would produce considerably less than full restitution in many if not most cases.
Either alternative, it seems, is unsatisfactory in some way. The Court thus will face a perhaps daunting task in crafting an opinion that will be convincing to those who would be disappointed by it.
