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February 25, 2009

Federal judge imposes large restitution punishment for downloading child porn

Thanks to this post by Jonathan Turley, I just discovered this local article from Connecticut about a ground-breaking new type of federal sentence for downloading child porn.  Here are the basics:

Connecticut has set a new precedent for people who have child porn.  A Stonington man convicted of possessing child pornography must pay about $200,000 in restitution to a woman photographed as a child while being sexually abused.  Senior U.S. District Judge Warren W. Eginton said his ruling Monday was the first criminal case in which someone convicted of possessing illegal images — but not creating them — is required to pay restitution.

The case involves Alan Hesketh, a British citizen who was sentenced in October to 78 months in prison for possessing and distributing nearly 2,000 photographs of child pornography. The resident of Stonington, Conn., was a vice president of Pfizer.  Pictures of the victim as a child being subjected to sexual abuse turned up in Hesketh's collection, according to prosecutors.

"There is a feeling of revulsion about this type of conduct," Eginton said, noting that Hesketh and his family were humiliated and his career was ruined. "We're dealing with a frontier here," Eginton said. But judges have discretion with criminal restitution orders.

Hesketh's attorney, Jonathan Einhorn, said he would appeal the order.  He called it unreasonable and predicted it would probably lead to similar claims by child pornography victims.  He said his client had no contact with the woman and defendants should only pay restitution to victims whose injuries they directly caused.

Einhorn also said the woman had not proven she was one of those whose image turned up on Hesketh's computer, and those who actually participated in creating pornography in other cases were ordered to pay less restitution than his client.

But James Marsh, the woman's attorney, said there is no distinction between those who produce the pornography and what Hesketh did. "The victim is a victim of sexual exploitation caused by this defendant," Marsh said.  Marsh said he did not believe the ruling would necessarily lead to a flood of new claims. Victims are often reluctant to come forward or do not have the ability or awareness to pursue cases, he said.

This is an interesting and potentially very important development in the controversial and dynamic arena of federal child porn sentencing.  Because I am a fan of financial punishments and because I see virtue in sentencing judges getting creative in difficult cases, I am inclined to praise this ruling (though I hope to see some form of written opinion to explain and support this ground-breaking ruling). 

But, as this post by Jonathan Turley highlights, a very broad definition of who is entitled to restitution raises a lot of new and potentially troublesome questions.  I also think it could (and perhaps should) lead to lots of debate about the relationship between victim restitution and prison sentences in these types of cases (especially in the context of plea discussions).  Could and should a wealthy child porn downloader offer lots of "restitution" to identified victims in exchange for a recommendation (from prosecutors and/or the victims) for s shorter prison sentence?  In light of the rights of victims under the CVRA, should victims and their advocates now be seeking to be heard about their need for restitution in the dozen of child porn cases sentenced in federal courts every week?

Notably, this AP story about the case highlights that at least one important public policy group hopes that this kind of restitution award becomes more common:

Ernie Allen, president of the National Center for Missing and Exploited Children, said he hopes the ruling leads to more restitution orders and that they serve as deterrents to child pornography. "We think this is a terrific precedent," Allen said. "The photos stay out there forever. Every time they are downloaded, every time they are distributed, the victim in that image is revictimized."

Similarly, this notable new editorial from the Connecticut Post, headlined "A welcome ruling on pornography," plainly embraces the possibility of child porn victims participating in every child porn downloading sentencing: "If [this ruling] opens the floodgates for others to pursue recompense, so much the better."

Some related recent federal child porn prosecution and sentencing posts:

February 25, 2009 at 09:59 AM | Permalink

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Comments

An interesting corollary to all of this in the sentencing context is whether and how restitution paid to a particular victim might affect, if at all, that victim's rights to file a civil action against the defendant as provided in the child porn statute (I don't have the cite off the top of my head). Similarly, a defendant sentenced to restitution who is subsequently found civily liable for the same images might conceivably pay out $$ twice - once for crim restitution, once as a civil judgment.
If I recall, the statutory damages per image in such a civil action are quite hefty, and certainly more than the appx. $100/image involved in Hesketh's restitution sentence.
I too am curious to see Judge Eginton's reasoning in a written opinion, and can't help but wonder if perhaps part of his reasoning involves analogy to the civil action provision.

Posted by: ALB | Feb 25, 2009 12:25:06 PM

"Every time they are downloaded, every time they are distributed, the victim in that image is revictimized."

And I will disagree with that statement until the day I die.

I actually hope this does become more common because it will force people to take a hard and harsh look at what motivates the so called punishment in these cases. As the German's had to learn the hard way, beware of those with whom the impulse to punish is strong. The stronger the punishment, sooner or later the stronger the backlash.

Posted by: Daniel | Feb 25, 2009 2:19:13 PM

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