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January 5, 2010

Federal judge demands federal prosecutors to address restitution issues in child porn cases

A helpful reader alerted me to this local story reporting on a notable and important twist in the developing debate over whether children pictured in child porn can get awards of restitution from those who download these pictures.  The story is headlined, "Federal judge asks prosecutors to put a price on child porn," and here is how it starts:

She goes by the name of "Amy," and the photos her uncle took of her a decade ago -- when she was 8 or 9 years old -- are among the most widely circulated series of child pornography images in the United States.

Now her fight for damages from those who possess or distribute those photos is emerging as a big issue in federal courtrooms across the country. Including here.  The question is: How much can one offender possessing any of the millions of images circulating on the Internet be expected to pay to any of the thousands of victims worldwide? Amy is seeking a total of more than $3.3 million.

On Monday, Judge Patrick Schiltz in U.S. District Court in St. Paul issued an order demanding to know why restitution was not even requested by the U.S. attorney's office in the case of a Minnesota man who pleaded guilty to possession of child pornography.  Schiltz said Congress has made it clear that restitution for child porn victims must be considered.

A request for restitution for a victim in a case here -- probably Amy -- was included in the pre-sentence report for Brandon Anthony Buchanan. Yet, in Buchanan's case, as well as in a number of other local child porn cases, Schiltz said that the U.S. attorney's office has been mute on the issue of restitution.

"The Court will no longer accept silence," Schiltz said in his order filed Monday. He said the U.S. attorney must submit a memorandum by Jan. 29 explaining why the victim is not entitled to restitution.  Schiltz said he could not talk about the case because it is ongoing. Neither can the U.S. attorney's office, said a spokeswoman.

When asked about the issue of restitution in child pornography cases, First Assistant U.S. Attorney John Marti said: "This is an emerging issue and one we are looking at very closely. We will seek restitution in those cases where we believe it is appropriate and authorized by law."

Some related recent federal child porn prosecution and sentencing posts:

UPDATE:  I see that Paul Cassell over at Volokh is here discussing Judge Schiltz's order, and provide this link.  Paul has this take on the debates concerning restitutions for the victims of child porn:

The issue of restitution in child pornography cases is an interesting and important one that seems destined to ultimately go to the U.S. Supreme Court.  My own view is that Congress drafted a very broad restitution statute designed to give the maximum possible recovery to victims of child pornography.  Moreover, if any doubt existed about how to interpret this remedial statute, it should be resolved in favor of the innocent victims of these offenses rather than the criminals who continue to cause injury by illegally possessing the pictures in question.

January 5, 2010 at 12:07 PM | Permalink

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Comments

What a conservative circle jerk. Schiltz clerked for Scalia when he was on DC Circuit and then when he was elevated. Schiltz was appt'd by W.

Cassell is of Dickerson fame, who got the 4th circuit to overturn Miranda, not even Rehnquist went along when it was appealed. He was appt'd by W, shorting before pulling a Palin.

"Judge Schiltz has done something courageous here, standing up for someone who often doesn't have a voice in this process," he said. "The government has been trying, to some extent, to have this problem go away."

Oh ho ho ho. Where was Cassell when Blackwater gunned down the iraqi civilations? Representing the mercs and pushing for the charges to be thrown out.

Posted by: . | Jan 5, 2010 12:48:57 PM

On restitution, is the theory that Amy was deprived of the income from the photos? If so, how do you place a fair market value on illegal contraband? If she receives all the money she would have otherwise received if a crime had not been committed, she would get exactly $0. I can see an argument for civil damages, certainly, but I'm not sure I understand the theory behind restitution on this in a criminal case.

Posted by: Gritsforbreakfast | Jan 5, 2010 3:27:21 PM

There is no proven, causal, evidence that Vicky/Amy/Jane/Jamie Doe or anyone, suffers any substantial damage (if any) from this issue.

However, for a moment, let us believe (like the courts and other vested interests believe) that there was:

Let, the 'Pain' suffered etc by Vicky/Amy/Jane/Jamie Doe knowing 'her/his' images are out there, looked at ***millions*** of people = A

Let, the 'Pain' suffered etc by Vicky/Amy/Jane/John Doe knowing 'her/his' images are looked at by a new defendant (millions +1) = B

What is the contribution of the level of damage, caused by B, in comparison to that caused by A?

Approaching zero, I would suggest. That is the amount of restitution which is required.

NLO

Posted by: Dr Nigel Leigh Oldfield | Jan 6, 2010 9:34:08 AM

Position No. 1: Prosecutors are rotten because they seek restitution in kiddie porn cases.

Position No. 2: Prosecutors are rottne because they DO NOT seek restitution in kiddie porn cases.

When the conclusion is the same no matter what the premise, watch your wallet.

Posted by: Bill Otis | Jan 6, 2010 11:02:46 AM

Bill's comment is evidence of what we'll call "Position 3": Prosecutors will mischaracterize all criticisms of them, from the left or right, and whine lamely about being victimized.

Nobody, of course, said "Prosecutors are rotten," but then it's much more fun to argue against straw men, who can be counted on not to vigorously defend positions nobody's ever taken.

Posted by: Gritsforbreakfast | Jan 6, 2010 1:50:52 PM

Re: Positions nobody's ever taken.

From the Gritsforbreakfast post, Jul 6, 2009 8:28:05 AM: "Bill, Dudley and SC are just bloodthirsty, believing that all killing by the state is inherently, morally good in all instances."

Posted by: Bill Otis | Jan 6, 2010 4:30:06 PM

bill: "watch your wallet"

me: or look for opportunity - Vicky's attorney is asking for $4200 in attorney fees per icky perv - that could create quite a decent revenue flow :)

Posted by: virginia | Jan 6, 2010 4:45:22 PM

Ginny --

No reason you shouldn't get your share of the pie.

Posted by: Bill Otis | Jan 6, 2010 4:47:47 PM

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