This morning, the Supreme Court released its decision in Paroline v. United Statesconcluding that a restitution statute does not guarantee child pornography victims full restitution, jointly and severally, from all defendants convicted of harming them.  The opinion, however, makes clear that victims are entitled to ultimately recover full restitution from defendants.  The Court simply wished to spread out restitution over a longer period of time than would have been the case if restitution had been ordered in the full amount in each case.

From a crime victims’ perspective, the first takeaway is that district courts must enter restitution awards that guarantee that a victim will “someday collect restitution for all her child pornography losses.”  The second takeaway is that the battle for more expeditious restitution will now shift to Congress. Justice Sotomayor’s dissent directly explains how a small amendment could clarify restitution awards in child pornography cases.  Hopefully Congress will amend the statute to make it clear that more sizable awards are required so that victims promptly receive restitution to which they are entitled.

Some background:  I blogged previously about the Paroline case here and here, and today’s Washington Post story is here:   Briefly, in around 1999, the victim, Amy, was raped as an eight-year-old girl by her uncle.  The uncle was caught and convicted.  Amy received psychological counseling and the uncle was ordered to pay the cost for her treatment up to that time, a few thousand dollars.  By the end of her treatment in 1999, Amy was (as reflected in her therapist’s notes) “back to normal” and engaged in age-appropriate activities such as dance. Sadly, eight years later, Amy’s condition drastically deteriorated when she learned  that her child sex abuse images were widely traded on the Internet.   The “Misty” series depicting Amy is one of the most widely-circulated sets of sexual abuse images (i.e., child pornography) trafficked in the world. According to her psychologist, the global trafficking of Amy’s child sex abuse images has caused “long lasting and life changing impact[s] on her.”  As Amy explained in her own, personal victim impact statement, “Every day of my life I live in constant fear that someone will see my pictures and recognize me and that I will be humiliated all over again.”

The ongoing victimization Amy suffers from the continued distribution and collection of her images will last throughout her entire life. She could not complete college and finds it difficult to engage in full-time employment because she fears encountering individuals who may have seen her being raped as a child.  She will also require weekly psychological therapy and occasionally more intensive inpatient treatment throughout her life. She has filed restitution requests in several hundred criminal cases, including a 2008 filing in the Paroline case.  These requests seek the “full amount” of her losses from each defendant, a total of $3,367,854 for psychological counseling costs and lost income.

After the Fifth Circuit en banc affirmed full restitution, the Supreme Court agreed to review the case.  In a three-sided oral argument in January, the defendant argued for no restitution, the Government for some restitution, and I argued for full restitution.  Today, the Court’s decision sided with the Government in what can be fairly described as a split-the-difference ruling.

The key statutory text (18 USC 2259) was adopted in 1994 as part of the Violence Against Women Act and provides:

(3) Definition.—For purposes of this subsection, the term “full amount of the victim’s losses” includes any costs incurred by the victim for—
(A) medical services relating to physical, psychiatric, or psychological care;
(B) physical and occupational therapy or rehabilitation;
(C) necessary transportation, temporary housing, and child care expenses;
(D) lost income;
(E) attorneys’ fees, as well as other costs incurred; and
(F) any other losses suffered by the victim as a a proximate result of the offense.

Interpreting the statute, Justice Kennedy’s opinion for the Court (joined by Justices Ginsburg, Breyer, Alito, and Kagan) concluded that the “proximate result” limitation found in Subsection F applied not just where it appears (in Subsection F) but also to the other parts of the statute.  And then the Court concluded Amy could not collect the full amount of damages from each defendant, but instead had to show what part of her losses were proximately caused by each particular defendant:

Congress gave no indication that it intended its statute to be applied in the expansive manner the victim suggests, a manner contrary to the bedrock principle that restitution should reflect the consequences of the defendant’s own conduct, . . . not the conduct of thousands of geographically and temporally distant offenders acting independently, and with whom the defendant had no contact.

The reader will not be surprised to learn that, as someone who has worked in support of Amy for nearly six years, I disagree with the Court’s holding.  Here are what seem to me to be some clear flaws.  First, the text of the statute makes clear that Congress wanted child pornography victims like Amy to recover “the full amount of their losses” — not some partial, fractional amount.  Moreover, the Court entirely ignored an amicus brief filed seven Senators who were in Congress in 1994, when the provision was enacted.  As Senators Hatch, Feinsten , Grassley, Markey, McCain, Murray, and Schumer explained in their brief, “Congress really did mean what it said.”  They provided drafting history showing that Congress had specifically decided not to include a “proximate result” limitation in the other parts of the statute — only subsection (F).  In other words, Congress meant for victims like Amy to recovery the full amount of their losses from each defendant.

The Court also seems to ignore fundamental tort law principles.  The Court’s decision talks about compensatory tort law as a relevant background principle for construing a restitution statute.  But it ignored our argument that the analogous tort law principles (for convicted felons like Paroline) were those for intentional tortfeasors, not negligent tortfeasors.  This becomes a critical point because the general rule for intentional tortfeasors is that they are all jointly and severally liable for indivisible injuries that they cause.  Amy’s injuries are indivisible, and she should recover all of her losses from every defendant who is part of the vast, criminal machinery that produces, distributes, and possesses her images.

Perhaps the most serious flaw in the Court’s decision is that, while spilling ink over 26 pages, it gives little guidance on the ultimate issue in the case: How much restitution does Amy collect from each defendant?  The bright side in the Court’s decision is its clear statement that “[o]f course the victim should someday collect restitution for all her child pornography losses . . . .”  The Court also made clear that restitution awards must not be a “token” or “nominal” amount.  But how much beyond that is not immediately clear.  Along with my co-counsel James Marsh, I am reviewing Amy’s possible arguments — but the Court gives precious little guidance on what the proper amount should be.

I’ve previously quoted Amy’s reaction to the decision here.  I want to highlight one point Amy makes: “I see that the Court said I should get full restitution ‘someday,’ I just wonder when that day will be and how long I and Vicky and other victims will have to wait for justice.”  This is the real problem with today’s decision.  What exactly do we tell Amy in answer to her question — when will that “someday” come?

Here’s a key passage from the Court on this issue of calculating each defendant’s share of the award:

There are a variety of factors district courts might consider in determining a proper amount of restitution, and it is neither necessary nor appropriate to prescribe a precise algorithm for determining the proper restitution amount at this point in the law’s development. Doing so would unduly constrain the decisionmakers closest to the facts of any given case. But district courts might, as a starting point, determine the amount of the victim’s losses caused by the continuing traffic in the victim’s images (excluding,of course, any remote losses like the hypothetical car accident described above, see supra, at 10), then set an award of restitution in consideration of factors that bear on the relative causal significance of the defendant’s conduct in producing those losses. These could include the number of past criminal defendants found to have contributed to the victim’s general losses; reasonable predictions of the number of future offenders likely to be caught and convicted for crimes contributing to the victim’s general losses; any available and reasonably reliable estimate of the broader number of offenders involved (most of whom will, of course, never be caught or convicted); whether the defendant reproduced or distributed images of the victim; whether the defendant had any connection to the initial production of the images; how many images of the victim the defendant possessed; and other facts relevant to the defendant’s relative causal role. See Brief for United States 49.

With regard to the  Court’s “factors,” here is some information that we recounted in our brief to the Court (which was all ignored in the Court’s discussion of how to divide things up).  Since January 2006, Amy has received more than 1,800 notices that her images have been found in criminal cases. Moreover, as of 2009, the National Center for Missing and Exploited Children (NCMEC) had found Amy’s images in 3,200 American federal and state criminal cases — a number that apparently doubled in just the last four years, according to NCMEC’s amicus brief.  Only a small fraction of child pornography criminals will ever ultimately be prosecuted.  Even 10 percent seems like a very generous assessment, given that there are approximately 9,793,430 domestic Internet Protocol addresses trading child pornography, according to a 2010 Justice Department Report.  And then many of the criminals who are causing harm to Amy live overseas, beyond the reach of American law and American restitution statutes.

In light of all these facts, we explained in our brief to the Court (without contradiction from the other parties) that, conservatively calculating, Paroline was one of 71,000 child pornography possessors who had already contributed to Amy’s harm.  (Presumably tens of thousands of other criminals will contribute to her losses in years to come.)  Without discussing that fact, today’s opinion says, “Treating [Paroline] as a cause of a smaller amount of the victim’s general losses, taking account of his role in the overall causal process behind those losses, effects the statute’s purposes; avoids the nonsensical result of turning away victims empty handed; and does so without sacrificing the need for proportionality in sentencing.”  So, in light of the number I have recounted, just exactly how should district court judges assess a particular defendant’s “role in the overall causal process” behind Amy’s losses?

In our brief to the Court, we pointed out that one answer would be to take Amy’s $3.3 million in losses and divide by 71,000, producing what we called a “trivial” award of $47 in each case.  Presumably it was this point that the Court had in mind when it said that “[t]hese factors need not be converted into a rigid formula, especially if doing so would result in trivial restitution orders.”

Moreover, the Government’s reply brief reported that approximately 85 percent of Amy’s restitution awards had been in the range of $1,000 to $50,000, with the average award in that range of approximately $5,400.  The Court seemed to think that this might be a number that could be considered:  “Based on its experience in prior cases of this kind, the Government . . . could also inform district courts of restitution sought and ordered in other cases.”  So perhaps one, bare minimum starting point for calculation would be the $5,400 “average” that the Government comes up with, although we suspect that, properly calculated, the correct “average” number might be higher.

But a still better starting point would be another minimum number — the $150,000 presumed minimum damages that Congress has specified come from each and every child pornography crime if the matter is being pursued in a civil case.  Perhaps district courts should use that number as a benchmark for calculating awards, as Justice Sotomayor suggests in her dissent.  Several lower courts have followed this approach, which will hopefully become more widely followed in the wake of today’s opinion.

Given the lack of clarity in the Court’s decision, perhaps the bottom line is that the Court has bounced the ball over to Congress.  Chief Justice Roberts’ dissent seemed to endorse Congress reviewing the issue, explaining that “justice” has not yet been done for child pornography victims:

The Court’s decision today means that Amy will not go home with nothing. But it would be a mistake for that salutary outcome to lead readers to conclude that Amy has prevailed or that Congress has done justice for victims of child pornography. The statute as written allows no recovery; we ought to say so, and give Congress a chance to fix it.

Justice Sotomayor’s dissent also directly endorsed Congress reviewing the limits that the Court has read into the statute:

In the end, of course, it is Congress that will have the final say. If Congress wishes to recodify its full restitution command, it can do so in language perhaps even more clear than §2259’s “mandatory” directive to order restitution for the “full amount of the victim’s losses.” Congress might amend the statute, for example, to include the term“aggregate causation.” Alternatively, to avoid the uncertainty in the Court’s apportionment approach, Congress might wish to enact fixed minimum restitution amounts.  See, e.g., §2255 (statutorily imposed $150,000 minimum civil remedy). In the meanwhile, it is my hope that the Court’s approach will not unduly undermine the ability of victims like Amy to recover for—and from—the unfathomable harms they have sustained.

I have already talked to crime victims’ advocates around the country.  We intend to take up with Congress the cause of Amy and the many other child pornography victims who suffer real, quantifiable losses from these serious crimes.  When it comes to crafting the size of restitution awards, Congress does have the final say.  Congress should direct that child pornography victims are able to recover their losses as soon as practicable from guilty criminals who have harmed them.  It would be an easy matter to draft a statutory “fix” for the problems I’ve discussed here.  Congress will hopefully step into this important issue, simplify the restitution process, and make sure that victims quickly receive  the restitution that they desperately need.  Innocent victims like Amy deserve full restitution from convicted criminals  not “someday” in the distant future, but as soon as possible.

Update: Yesterday UC Irvine law professor Rick Hasen wrote this post at the Election Law Blog.  He predicts that Congress will move quickly, on a bi-partisan basis, to amend the statute.  Here’s a highlight:

[T]aking 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.