On Wednesday, I blogged about the Supreme Court’s decision in Paroline v. United States. I suggested that Congress should amend the restitution statute at issue to ensure that child pornography victims receive full restitution, not just “someday” (as the Court’s opinion suggested) but rather as expeditiously as possible. As the attorney who argued the case for Amy, I am happy to see that two respected commentators have weighed in on the issue of a congressional fix, with one urging such a fix and the other predicting that it is inevitable.
First, Cardozo law professor Marci Hamilton has a proposal for reform. In it, Hamilton notes that Justice Sonia Sotomayor specifically called for changing the restitution statute to make clear that it embodies an “aggregate causation” theory — that is, the victims of child pornography crimes are entitled to recovery restitution for losses they suffer from criminals in the aggregate, rather than being required to tease out what harm came from each individual criminal. Here’s her proposal:
There is a simple two-part fix, if you parse [the majority's] and Justice Sotomayor’s views closely enough: (1) Congress should enact a federal rule of contribution among child pornography defendants and (2) replace “proximate cause” with “aggregate causation.” That would make it possible for the many Amys of our world to obtain restitution from even one perpetrator in the marketplace and obtain full restitution. The best part of this solution is that it would then incentivize the one defendant forced to pay it all to identify others as contributors. Let the defendants go after their many contacts in the market for contribution. That reduces the restitution, even if levied against a single person, from an excessive personal fine, and puts the burden of parsing out blame on the bad guys, not the victims who never asked to be on the Internet in the first place.
Second, UC Irvine law professor Rick Hasen has a post on his Election Law blog that predicts that such a legislative fix is inevitable. Here’s a highlight from his post (which I also discussed in an update to my earlier post on Paroline):
But thinking about this from the point of view of Legislation, this seems the ideal case for a Congressional override. As I’ve noted in a recent law review article, Congress now rarely overrides the Court, and when it does, there tend to be partisan overrides (as when Republicans overrode the Supreme Court in cutting back habeas for detainees in Hamdan or when Democrats overrode the Supreme Court in allowing more employment remedies in Ledbetteri). I attribute the decline of bipartisan overrides to increasing political polarization in Congress. . . .
But even in an era of intense partisanship, as we are in right now, there is room sometimes for biparisanship, and this looks like the perfect opportunity for two reasons. First, everyone hates child pornographers and wants to look tough on crime. Unless Congress is satisfied with the vague standard of the majority, it could look good for all of Congress to get tougher than the Court was willing to be on child pornographers—particularly when the Court’s ruling means that many victims are undercompensated. . . . Second, though related to the first point, taking a stand in favor of fixing the statute won’t be seen as going up against the Supreme Court. If all the conservatives were on one side and all the liberals on the other in a 5-4 decision, then an override of a Supreme Court statutory case looks like an attack on one wing of the Court. Here, you have a case with a cross-ideological majority throwing up its hands as to an administrable rule, and three of four dissenters asking Congress to step in.
In an era where Congress can do so little thanks to ideological polarization, a new Amy Act looks to be a no-brainer.
I hope Hasen is correct and that this is a no-brainer. That’s certainly my thought, but I’ve been working to advance the victims’ position on this case for so many years I’m not the best judge of these things.