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February 3, 2010

Effective NY Times coverage of child porn restitution debate

Regular readers know that one issue (of many) roiling the federal courts is whether and how to order restitution as part of the punishment in child porn downloading cases.  This new piece by John Schwartz in the New York Times, which is headlined "Pornography, and an Issue of Restitution," covers this issue effectively. Here are excerpts:

When Amy was a little girl, her uncle made her famous in the worst way: as a star in the netherworld of child pornography.  Photographs and videos known as “the Misty series” depicting her abuse have circulated on the Internet for more than 10 years, and often turn up in the collections of those arrested for possession of illegal images.

Now, with the help of an inventive lawyer, the young woman known as Amy — her real name has been withheld in court to prevent harassment — is fighting back.  She is demanding that everyone convicted of possessing even a single Misty image pay her damages until her total claim of $3.4 million has been met....

Amy’s uncle is now in prison, but she is regularly reminded of his abuse whenever the government notifies her that her photos have turned up in yet another prosecution. More than 800 of the notices, mandated by the Crime Victims Rights Act and sent out by the federal victim notification system, have arrived at Amy’s home since 2005.

Those notices disturb Amy when they arrive, but Mr. Marsh, looking at the same pieces of paper, saw an opportunity: he could intervene in the federal prosecutions and demand restitution.  He had Amy write a victim-impact statement and hired a psychologist to evaluate her.  Economists developed a tally of damages that included counseling, diminished wages and lawyer fees.  The total came to $3,367,854.

Mr. Marsh contends that every defendant should be ordered to pay the full amount, under the doctrine of joint and several liability.  According to that doctrine, the recipient would stop collecting money once the full damages are paid, and those held responsible for the amount could then sue others who are found culpable for contributions.  But the doctrine, which developed in civil law, does not apply as easily in criminal law, especially with an indeterminate population of defendants.

Amy’s first restitution award came in February in the Connecticut case; it involved Alan Hesketh, a British executive at the pharmaceutical giant Pfizer, who paid $130,000.  Since then, Mr. Marsh has automated the process and e-mailed Amy’s filings to United States Attorneys in 350 cases.  “I’m able to leverage the power of the Internet to get restitution for a victim of the Internet,” he said.

Mr. Marsh has, in effect, expanded his small New York law firm by hundreds of federal prosecutors. Some of them decline to file for restitution — a judge in Minnesota ordered prosecutors to explain why — but many have.  Judges’ reactions have varied, with some declining to order restitution, including one in Texas and another in Maine, usually saying that the link between possession and the harm done is too tenuous to reach the level of “proximate harm” generally required under the law for restitution.

Yet in two Florida cases, judges have ordered defendants to pay nearly the full amount requested and even more.  Many judges who have considered the issues award a few thousand dollars.  Even though many of the defendants have no way to pay even the smallest fine, Mr. Marsh’s efforts in the first year have earned $170,000 for Amy. “This is a lawyer’s dream,” he said.

The federal government has struggled with how to best approach the wave of new cases, and those to come. Another victim, known as Vicky, has begun making similar claims in court, and still more victims could come forward....

A memorandum last summer from a lawyer in the Administrative Office of the Courts, the federal agency that runs the judicial branch, stated that the law did not support restitution for “mere possession.”  But Lanny A. Breuer, the assistant attorney general for the criminal division at the Justice Department, issued a letter in October stating “we do not agree that restitution is not available to victims of the possession of child pornography as a matter of law.”

Mr. Breuer urged judges not to let “practical and administrative challenges” to the restitution issue “drive a policy position that directly or indirectly suggests that possession of child pornography is a victimless crime.”

Some related prior federal child porn prosecution and sentencing posts:

February 3, 2010 at 12:35 AM | Permalink

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Comments

"... Mr. Marsh’s efforts in the first year have earned $170,000 for Amy. “This is a lawyer’s dream,” he said."

Bottom line on this line of prosecutions.

If anyone would like to review the Rent Seeking Theory as the Grand Unifying Theory of Lawyer Decisions, please, raise your hand.

Posted by: Supremacy Claus | Feb 3, 2010 2:07:34 AM

Might the Crime Victims Rights Act be the dumbest law ever passed? Even worse than the acts that created these photos in the first place, the Act mandates that every time those photos are found, the government sends her a reminder in the mail — which has happened more than 800 times to date.

How exactly this benefits Amy, or for that matter anybody, is beyond me.

Posted by: Marc Shepherd | Feb 3, 2010 8:54:28 AM

Mr. Marsh: “This is a lawyer’s dream,”

me: oh yes it is but he's still dreaming small! where can I find my own "Amy" to represent? as I've stated before, the restitution theory, while nice, isn't maximizing the potential profits from the icky pervs. why should Amy be less compensated that the RIAA who got $80,000 per song from some woman in Minnesota - an icky perv is a much less sympathetic defendant than someone who illegally downloads music.

Ginny :)

Posted by: virginia | Feb 3, 2010 9:50:22 AM

Marc.

To me the most blatant hypocrisy of the law is that it's only *some* people who are guilty of this crime. Assuming for the moment that Mr. Breuer is correct that viewing child porn is not a victimless crime, how is the victim any less hurt when the photo is viewed by the police or a judge. If the harm derives from the actual act of looking at the picture, anyone who looks at the picture including police and judges must be a equally as guilty and responsible for compensation as anyone else. If, on the other hand, it is not the act itself that causes harm but emotional or mental reaction to the picture by the viewer, then why is the government not required to show such reactions as evidence of the crime.

The problem I have with the act is not that the victim is compensated. The problem I have with the act is that the victim is compensated whimsically. The law treats similarly situated individuals differently. To me that is a fundamental violation of equality before the law.

Posted by: Daniel | Feb 3, 2010 12:03:02 PM

The article actually is not good. Two diff't issues (too high sentences for poss'n child porn vs. viability of restitution theory) stapled together to the disservice of both. And he misses the issue of potential windfall for the victim, and doesn't adequately explain the problem of tracking joint and several across different districts. For instance, how do you do joint and several if Judge A-first-in-time says damages are $200,000, and Judge B-second-in-time says joint and several damages are $3500? Is Defendant B capped or tied to a ruling made by a different judge in a different jurisdiction b/f whom he never had a chance to make an argument?

And icky pervs or no, the connection between the claimed harm (male in the grocery may have seen the pictures and that causes me psychological harm and makes me need future treatment) and the isolated perv viewing the picture doesn't meet the proximate harm test. The claimed harm is the proximate result of the original act of abuse and distribution, too remote for proximate harm test regardless of where you sit on the victims' rights spectrum.

Posted by: Rick | Feb 3, 2010 3:32:50 PM

Can we identify the sponsors in Congress of this mean law? A law which reminds the victim each time her photo has been viewed, or perhaps stored on a computer or disc, and the possessor has been charged with a crime. Perhaps the prosecution should be required to send a copy of each notice to each member of Congress. Remind them that they are reminding the victim and not letting him or her forget. Al Gore invented he internet. The child porn is distributed on the internet. Prosecute the guilty.

Posted by: mpb | Feb 4, 2010 10:15:26 AM

rick: "The claimed harm is the proximate result of the original act of abuse and distribution, too remote for proximate harm test regardless of where you sit on the victims' rights spectrum"

me: while you might think that, the civil actions which would be most similar to the child porn victim scenario would be invasion of privacy/false light, invasion of privacy/public disclosure of private facts, invasion of privacy/commercial exploitation of image without consent, intentional infliction of emotional distress, and you can make a fairly rational legal case for defamation and based on the theory that one owns a property interest in their image, you could make a common law copyright argument as well (although if the government would take the seized images, copyright them for the benefit of the victims they could probably create a more efficient system without even having the need to provide notice - the government would be the "victim" and then pass on the restitution proceeds to the real victims without constantly providing "notice").

and btw, since my criminal law involvement is on the defense side, I am not at all a fan of "victim's rights" - I would much prefer that restitution be provided through a civil judgment instead of a criminal court order as part of "punishment." I am a fan of advancing legal theories which can result in me being able to pay off my law school loans and buy a vacation house at the beach :)

plus I just do not like icky pervs.

Ginny :)

Posted by: virginia | Feb 4, 2010 12:35:11 PM

Very good post. Made me realize I was totally wrong about this issue. I figure that one learns something new everyday. Mrs Right learned her lesson! Nice, informative website by the way.

Posted by: supra shoes | Nov 11, 2010 1:51:02 AM

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