I’m hoping for a victory for crime victims’ rights tomorrow before the Supreme Court

January 21

Tomorrow I’m arguing before the U.S. Supreme Court in United States v. Paroline. an important case involving restitution for child pornography victims. I hope to persuade the Court that Congress meant what it said when it promised child pornography victims restitution for the “full amount” of their losses in criminal cases.
I represent a women referred to as “Amy Unknown,” who was raped by her uncle when she was eight. She has now discovered that pictures of the abuse are among the most widely disseminated child pornography images in the world. (Discussion of Amy’s plight can be found in this story by the NY Times Magazine.)
When defendant Paroline plead guilty to possessing two images of her being rape, Amy sought substantial restitution from him, primarily for lifetime psychological counseling costs and lost income (due to the fact that she has difficulty interacting with the public). The district court declined to aware her any restitution on grounds that it was impossible to sort out precisely what harm the defendant had caused compared to other criminals. The Fifth Circuit reversed (en banc), holding that the district court should have awarded her the full amount. The defendant sought cert, Amy acquiesced, and the Supreme Court reformulated the Question Presented to read: 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 18 U.S.C. Sec. 2259?
On the merits, the three parties in the case — defendant Paroline, the Solicitor General, and Amy — have three different positions. Paroline argues that he should pay no restitution whatsoever, because it is impossible to determine his share of the losses given that (literally) tens of thousands of other criminals have viewed Amy’s images. His argument makes no sense, because it would let him hide in a crowd. Congress surely didn’t pass a broad restitution statute that can be circumvented whenever a child pornography victim is harmed by too many criminals to count.
The Solicitor General argues that it would be unfair to let Paroline escape his restitution obligation entirely simply because so many child pornography possessors are harming Amy. But ultimately its position is hard to understand, because it says that restitution should be determined by a multi-factor test (how many images did the defendant possess, was the defendant a distributor, etc.) that gives no guidance whatsoever to district courts as to whether they should award some trivial amount in restitution. Indeed, in my brief, I explain that the Government’s theory could be used to justify giving Amy only 1/70,000 of the restitution that she seeks, because (on conservative calculation) 70,000 men around the world have caused her harm by viewing her images. (Since I wrote my brief, the National Center for Missing and Exploited Children has come up with new numbers reading Amy’s images, showing that the number of criminal cases in which she has been found have doubled from just 2009 to 2013. More than 70,000 of Amy’s images have now been found in American criminal cases. )
Of course, the correct answer to the question presented is the one I am presenting for Amy! Section 2259 is entitled “mandatory restitution,” and it mandates that district courts must award restitution for the “full amount” of Amy’s losses. The statute cannot be reasonable read (as the Solicitor General would) to be converted into a discretionary statute allowing district judges to make some determination of what fractional amount of Amy’s losses should be awarded. Essentially Congress created a system of joint and several liability for the vast network of criminals scattered around the globe who cause harm to child pornography victims.
One of the interesting things about this case is the tort law dropdrop. All of the parties agree that tort law principles form the backdrop against which Congress legislated this restitution statute. In my view, where the other parties go astray is in failing to recognize that the relevant principles here are those for intentional torts. Child pornography criminals commit serious federal crimes requiring scienter (“knowingly” at a minimum and “intentionally” in many cases) that are parallel to intentional torts. The standard tort treatises all make plain the joint and several liability is the default rule for intentional tortfeasors. Otherwise, victims would run the risk of a “tortfest,” where (as Professor Richard Wright aptly points out) the wrongdoer could reduce his liability by persuading others to join in victimizing the victim.
I look forward to trying to persuade the Court that my view of the case is correct. I encouraged by the fact that Amy’s position has received some strong support, including Emily Bazelon over on Slate and Doug Berman on his indispensable Sentencing Blog.
I am also excited to a part of a red letter day for the Crime Victims’ Rights Movement. My argument tomorrow will be the first time that a crime victim has argued in the Supreme Court for enforcement of her own rights in a criminal case filed by the Government. I am arguing the case through the University of Utah Appellate Clinic and along with my able co-counsel, James Marsh,

Paul G. Cassell teaches criminal law, criminal procedure, and crime victims' rights at the S.J. Quinney College of Law at the University of Utah.
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