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October 29, 2009

Effective new opinion discussing restitution in federal child porn possession cases

I posted hereearlier this week an effective newspaper report on efforts by some persons who were victimized in "popular" child porn to obtain restitution from defendants being sentenced for possessing this child porn.  Coincidentally, on Monday, Maine US District Judge George Singal issued a long and thoughtful opinion on this topic in US v. Berk, No. 08-CR-212-P-S (D. Maine Oct. 26, 2009) (available for download below). Here are some notable excerpts from the opinion (with some cites omitted):

It has long been uncontroversial to order restitution when the defendant is convicted of the actual physical abuse of a child or of producing images constituting child pornography. But victims and the Government have only recently begun seeking restitution from the end-users or possessors of child pornography. Indeed, counsel for “Amy” represents that the first restitution order against a defendant convicted only of possession of child pornography was entered in June of this year. (Amy’s Restitution Br. at 78.)

A review of the cases decided thus far shows that victims’ success in obtaining restitution has varied significantly in district courts across the country.6 At one extreme, courts have awarded the entire amount requested by the victims without any discussion as to proximate causation.  See, e.g., United States v. Staples, No. 09-14017-CR, 2009 WL 2827204, at *4 (S.D. Fla. Sept. 2, 2009). At the other extreme, some courts have declined to order any restitution based on the lack of evidence showing a quantifiable loss proximately caused by the offense of conviction.  See, e.g., United States v. Simon, 2009 WL 2424673, at *7 (N.D. Cal. Aug. 7, 2009).  Some courts appear to have adopted a set amount for each defendant convicted of possession of child pornography. For example, the Central District of California seems to routinely order restitution of $5000 while the Eastern District of California routinely orders restitution of $3000.  See United States v. Brown, No. 2:08-cr-1435-RGK-1 (C.D. Cal. filed Oct. 5, 2009) (awarding $5,000); United States v. Ferenci, No. 1:08-cr-0414 AWI, 2009 WL 2579102, at *6 (E.D. Cal. Aug. 19, 2009).  Additionally, in some cases, the Government and the defendant have stipulated to a restitution amount.  See United States v. Granato, No. 2:08-cr-198 (D. Nev. filed Aug. 28, 2009)....

It is undisputed that everyone involved with child pornography — from the abusers and producers of the images to the end-user/possessors such as the Defendant in this case — contributes to the victims’ ongoing harm.  The difficulty lies in determining what portion of the Victims’ loss, if any, was proximately caused by the specific acts of this particular Defendant.

Having reviewed all of the evidence, the Court finds that there is nothing in the record showing a specific loss that was proximately caused by this particular Defendant’s possession of the victims’ images.  The losses described the by the Victims are generalized and caused by the idea of their images being publicly viewed rather than caused by this particular Defendant having viewed their images. In the documentation supporting the Victims’ restitution requests, there is no mention of the impact that learning of Mr. Berk’s offense had on either of the Victims.  In fact, there is no mention of Mr. Berk at all....

Because the Government has failed to present sufficient evidence showing a particular loss proximately caused by the offense of conviction, the Court declines to enter a restitution order in this case.

Download Berk ruling on CP Restitution

Some related recent federal child porn prosecution and sentencing posts:

UPDATE:  A helpful readers sent m a copy of a revised amended opinion in Berk, which can be downloaded below:

Download Amended Order on Restitution in Berk

October 29, 2009 at 05:52 PM | Permalink

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Comments

"It is undisputed that everyone involved with child pornography — from the abusers and producers of the images to the end-user/possessors such as the Defendant in this case — contributes to the victims’ ongoing harm."

I dispute it. I think it's a concession the defense is stupid to make. There is neither a legal, social, or psychological objective basis for arguing that viewing child pornography contributes to a victim's on-going harm.

Posted by: Daniel | Oct 29, 2009 8:19:51 PM

This decision is in accordance with the law as it is today. It is correct. It also aborted a potentially lucrative cottage industry for the lawyer, to the detriment of the rent seeking interest of the criminal cult enterprise.

I want credit from the freaks here for giving credit to the lawyer when credit is due.

Posted by: Supremacy Claus | Oct 29, 2009 9:24:26 PM

So I guess this feminist criminal cult enterprise member needs to find a new rent seeking scheme :(

Posted by: virginia | Oct 30, 2009 9:39:31 AM

Virginia: Sorry. Pedophiles are not well known for their wealth anyway.

Sometimes, by rare, random chance alone, a judge does the right thing, actually carries out the law, instead of making it up from his personal preferences. I have no doubt that, given your native talent for issue spotting, you will find another scheme. If you are a good litigator, even I can hand you a nice aggregate claim a week, that is not frivolous nor abusive.

Someone as adorable as you needs to be rich too (I sure hope you are a real female lawyer and not S.cotus, SC the Poet or some other low life stalker).

Posted by: Supremacy Claus | Oct 30, 2009 10:33:40 AM

Supremacy Claus, sorry to disappoint you, but people convicted of child porn come from all walks of life. In fact, I daresay, a large percentage of the cases I've heard of involve professionals and wealthy individuals.

Regarding the article, I agree with Daniel, the argument that the victim is abused again every time the image is viewed is stupid. It a sensationalist argument that politicians use to justify harsher penalties for sex offenders and keep the mothers in a false sense of safety.

If this trend continues, being abused will become a business. All you have to do is get some sicko to take pictures of you, put them in the internet and when ever some one gets caught with them, you get $5,000, and at the rate child porn cases are being brought up, you are guaranteed income for life.

Posted by: E | Oct 30, 2009 12:48:12 PM

The mere bid for restitution in cases like this feeds the notion restitution often is more about doubling down on retribution than a good faith effort to help victims recover actual losses.

This is especially true in low-level white-collar cases where huge restitution orders typically serve as a life sentence of economic-hobbling. The conviction stigma and seizures render the target poor and all but unemployable. Impossibly high restitution orders ruins their credit, thereby precluding loans needed to start or maintain a small business.

There's little or no effort to account for money paid toward restitution. Even settlements in related lawsuits seemingly have little effect on paying down the order.

So why not just call it something else, a super fine maybe?

Beyond that I agree with Daniel and E. Sex offenders represent a piling-on opportunity for opportunistic prosecutors and politicians.

Posted by: John K | Oct 31, 2009 1:43:42 AM

"It is undisputed that everyone involved with child pornography — from the abusers and producers of the images to the end-user/possessors such as the Defendant in this case — contributes to the victims’ ongoing harm."

This is an outstanding example of magical thinking. In fact it is what Sir James George Frazier described as "contagious magic" in the Golden Bough (Third Edition 1911-1913).

I am amazed but not surprised since over 50% of the venire do not believe in evolution. Reason does not drive verdicts, sentences or Congress.

Posted by: Amazed but not Surprised | Oct 31, 2009 2:36:07 PM

Daniel: "There is neither a legal, social, or psychological objective basis for arguing that viewing child pornography contributes to a victim's on-going harm."

me: While I agree that there are a lot of problematic factors in the prosecution of child pornography cases, I have to disagree with you. You ignore that the legal interest a person has in privacy and their image - and that distribution of photos of a person without their consent therefore does harm a legally recognized interest. I'm guessing that the reason why you don't see the privacy interest as a concern is because you are a man and thus unless you are a celebrity, the odds of someone intentionally violating your privacy and posting nude or seminude photos without your consent on the internet for the entire world to see are pretty much zero. I don't believe that the victims in these cases should be able to get a large amount from viewers, but the continued circulation of those photos will contribute to victimization - even if in a tiny amount. Thus, I favor a nominal amount of restitution as a portion of the damges for the overall distribution.

E: "the argument that the victim is abused again every time the image is viewed is stupid. It a sensationalist argument that politicians use to justify harsher penalties for sex offenders and keep the mothers in a false sense of safety.

me: I think the problem is that you are looking at a microlevel rather than a macro level - unless you are claiming that the only harm was during the initial production and the subsequent distribution and reminding of the production doesn't matter. I cannot agree with that. Maybe the harm increase between copy 10,000 and copy 10,001 is not great, but there is a harm in the distribution. Constant distribution will constantly provide a reminder, making recovery more difficult. There is also still a large stigma attached to being a rape victim - while that is wrong and sexist, it should not be ignored. I mean, I am liberal and generally pro-defense, but I cannot dismiss harm from distrubution and subsequent possession. Maybe because it is just so icky. It would be extremely icky for a strange man to get a sexy photo of me as an adult. Again, I would provide for a small amount of resistution which would cover a percentage of the overall harm from the sexual abuse and distribution of photos of the sexual abuse. The courts that provided for a $2000 payment have it about right.

E: "If this trend continues, being abused will become a business"

me: I find that to be an extremely unlikely scenario - but the solution for that may be to simply keep tabs and when a person if "fully compensated" end the restitution orders.

BTW, I think that the lawyers in that case are taking the wrong strategy - asking for hundreds of thousands of dollars in damage or millions is riduculous. If I was representing them, I'd ask for a much smaller amount as a proration to collect the harm amount which would ultimately be fairer as well.

Posted by: virginia | Nov 2, 2009 10:44:09 AM

It completely agree...

Posted by: daniele | Jun 18, 2010 6:58:07 PM

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