Supreme Court Vacates $3.4 Million Child Porn Restitution

By Mark Wilson

On April 23, 2014, the United States Supreme Court vacated a child pornography victim’s $3.4 million restitution award, finding that the Government failed to prove that defendant’s conduct proximately caused all of the victim’s damages.

In 1994, Congress enacted 18 U.S.C. § 2259, requiring full restitution for certain federal crimes, including child pornography offenses.

As we’ve previously reported, when Amy (a pseudonym) was eight and nine years old, her uncle videotaped himself raping her, for the purpose of distributing the video as child pornography. (PLN Feb 2014, p. 20). He was convicted, sentenced to a lengthy prison term and ordered to pay Amy $6,325 in restitution.

Amy initially healed from the abuse after undergoing counseling in 1998 and 1999. She suffered “a major blow to her recovery,” however, “when, at the age of 17, she learned that images of her abuse were being trafficked on the Internet,” according to the Court. She suffers ongoing trauma, the full extent of which, the Court admits, “is hard to grasp,” because she is constantly re-victimized but is powerless to stop it. “Her abuser took away her childhood, her self-conception of her innocence, and her freedom from the kind of nightmares and memories that most others will never know.” She has developed significant emotional and psychological problems. “Amy’s expert estimates that she will suffer approximately $3.4 million in losses from medical costs and lost income over the next 60 years of her life, or approximately $56,000 per year,” Justice Sotomayor observed.

Amy’s images have been viewed by a “tragically large” number of pedophiles, wrote Chief Justice Roberts. “The digital images (a)re available nationwide and no doubt worldwide. Though the exact scale of the trade of her images is unknown, the possessors to date easily number in the thousands,” the Majority recognized.

On average, Amy’s attorney is notified of at least one new case involving images of her rape, every day. He has been notified of over 1,500 cases and estimates that at least 10,000 pedophiles have possessed the images.

Since 2008, University of Utah law professor Paul Cassell and New York attorney James Marsh have filed hundreds of restitution requests, seeking approximately $3.3 million on Amy’s behalf under §2259.

“Between June 2009 and December 11, 2013, Amy obtained restitution awards from 182 persons, 161 of whom were ordered to pay an amount between $1,000 and $530,000,” noted Justice Sotomayor. To date, Amy has received more than $1.75 million - about half of her losses - from people convicted of possessing images of her rape, Cassell informed the Court. However, $1.2 million of that came from Virginia Sheriff’s Deputy Arthur Stamples, who had more than $2 million in a retirement account. Once Amy has recovered the full amount of her losses, she will no longer be entitled to recover under §2259.

In 2009, Doyle Paroline pleaded guilty to possessing between 150 and 300 child pornography images, including two images of Amy.

She sought restitution under §2259, and attorney’s fees and costs. See: United States v. Paroline, 672 F. Supp. 2d 781 (E.D. Tex. 2009). However, the district court refused to award restitution, concluding that the Government did not prove which of Amy’s losses, if any, were proximately caused by Paroline’s offense.

Amy filed a mandamus action, asking the Fifth Circuit Court of Appeals to compel the district court to order Paroline to pay the requested restitution. See: In re Amy, 591 F.3d 792 (5^th Cir. 2009). The en banc court ordered the district court to award restitution in the full amount of Amy’s losses. See: In re Amy Unknown, 701 F.3d 749 (5th Cir. 2012).

The Supreme Court granted certiorari and reversed. All the Justices appeared sympathetic to Amy’s plight but the majority held that “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.” Unlike the district court, however, the majority concluded that this should still guarantee that the victim receives a “reasonable and circumscribed award” that is not “severe” but is also not “token or nominal.” It left that determination to the discretion of the district courts.

Roberts, joined by Justices Scalia and Thomas, believed that as written, §2259 bars any restitution because “it is not possible to do anything more than pick an arbitrary number for that ‘amount.’” Justice Sotomayor would have upheld the full amount of restitution ordered by the Fifth Circuit, observing that “Congress did not intend §2259 to create a safe harbor for those who inflict upon their victims the proverbial death by a thousand cuts.” She joined the Roberts dissent in urging Congress to amend §2259.

Amy was “surprised and confused” by the decision. “I really don’t understand where this leaves me and other victims who now have to live with trying to get restitution probably for the rest of our lives,” Amy wrote. “The Supreme Court said we should keep going back to the district courts over and over again but that’s what I have been doing for almost six years now.”

See: Paroline v. United States, 134 S. Ct. 1710 (U.S. 2014).

Source:Associated Press

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