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April 6, 2010

The latest "grand" development in the debate over child porn restitution "settlements"

This new article from the Minneapolis Star Tribune, which is headlined "Possessor of child porn to pay $1,000 in restitution," provides the latest legal update on a case concerning debates over restitution awards in child porn cases." Here are the details:

Across the United States, some purveyors of child pornography have been ordered to pay millions in restitution to their victims.  Others, not a dime.  On Monday in federal court in St. Paul, Brandon Anthony Buchanan -- penniless, without assets and serving more than seven years in prison -- agreed to pay $1,000 restitution for possessing images of a victim identified as "Amy."  The amount was agreed to by prosecutors, the defense attorney, the judge and Amy's lawyer.

It is the principle -- not the amount -- that was important in Buchanan's case, said James Marsh, Amy's attorney.  Buchanan's case, one of more than 400 in which Marsh has asked for restitution around the country, is a sign that more courts accept the idea that possessing even a single child porn photo does measurable harm to victims.  "We applaud the judge for what he's done," Marsh said Monday.

The issue of restitution for child porn victims -- and deciding who pays and how much -- came to the forefront in Minnesota three months ago when U.S. District Judge Patrick Schiltz demanded to know why restitution wasn't being sought in Buchanan's case.  Buchanan had pleaded guilty in May 2009 to possessing child pornography, including images of Amy, considered one of the most widely circulated sets of child porn in the country.  As he does whenever Amy's pictures are recovered, Marsh submitted a letter in Buchanan's case requesting $3.4 million in restitution.

Marsh said he has won restitution settlements ranging from $5,000 to $150,000 in about a third of the cases.  A few courts have ordered millions.  Some have ordered nothing....

Defense attorneys have argued that ordering restitution from everyone who possesses child pornography is better left to civil courts, rather than the criminal system.  Others say that while the possessor of child porn almost certainly causes harm to its victims, determining the weight of that harm -- among potentially millions of offenders -- is nearly impossible...

Schiltz dived into the center of the debate when he issued an order Jan. 4 asking why restitution was not being sought in Buchanan's case.  Schiltz said that Congress has clearly intended that restitution be considered for all crime victims -- including child porn victims. Yet, in Buchanan's case, the U.S. attorney's office and Buchanan's defense attorney agreed that no restitution would be paid.

The prosecutor replied that Amy was, indeed, entitled to restitution.  On Monday, all sides agreed that $1,000 was appropriate.  Officials with the U.S. attorney's office declined to comment further.

Marsh said that $1,000 -- to be paid to the U.S. Clerk of Court -- is the minimum amount he has agreed to in cases where the offender is destitute. "In a world of unlimited possible defendants with limited resources, defendants like Buchanan just aren't of interest to us," he said.

It is telling (and troublesome?) that this article describes the criminal punishment imposed in this case as a "restitution settlement" given that a resolution was reached here once "all sides agreed that $1,000 was appropriate."  Nevertheless, this case formally involved a US District Judge ordering a criminal defendant to pay restitution as part of his (required) punishment for his criminal offense.  Still, functionally, this process does not seem like classic and traditional criminal law.  Whether that functional reality is a virtue or a vice is a terrifically difficult policy question that will surely continue to rage on.

April 6, 2010 at 06:26 PM | Permalink

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Comments

This is a serious matter. I really think making them pay just $1000 is not enough. Principle? I think this does not matter to these kinds of people. What the government should do is put a penalty that could really hurt the perpetrator like making him pay 1Million usd or being imprisoned for 20+ years. In this way, the public will be notified that committing this kind of crime will do them no good and will be very costly.

Posted by: wench costume | Apr 7, 2010 9:28:36 AM

making the icky perv pay $1000 seems like a fair result - effectively its nominal damages which should be the proper result in such a case. it acknowleges taht icky pervs cause harm, but that the harm of each individual icky perv only represents a fraction of the total hrm from the distribution.

Posted by: virginia | Apr 7, 2010 11:48:57 AM

This is troubling. It is nothing more than a simple flouting of the restitution statute. What occurred here is that the parties in a criminal case reached a sentencing "settlement", Title 18 be damned.

Wench states: "This is a serious matter" so higher penalties "should" result.
virginia states: "$1000 seems like a fair result."

Whether one agrees or disagrees with such various views is irrelevant to whether the restitution statute, 18 USC § 2259, authorizes such an award when the offense of conviction is mere possession of child pornography (as opposed to its production and distribution).

In the article's paragraph starting "Defense attorneys have argued...", two arguments are listed on why restitution should not be awarded. The most compelling argument, however, is not mentioned: § 2259 requires proof that the crime proximately caused the harm before restitution may be awarded.

According to the article: "Schiltz said that Congress has clearly intended that restitution be considered for all crime victims -- including child porn victims." That is partly correct. An entirely correct statement would include the caveat "... for all victims -- including child porn victims -- who's harm was proximately caused by the defendant."

In this case, the restitution statute was simply ignored to reach an agreed result.

The fact that Mr. Marsh has NO regard for the criminal statute is evident from his comment: "Marsh said that $1,000 ... is the minimum amount he has agreed to in cases where the offender is destitute." As any criminal lawyer will tell you, a Defendant being "destitute" is, under the statute, not a factor to be considered in determining the restitution order. See § 2259(b)(4)(B)(i). But Mr. Marsh does not seem to care about the criminal statute; he only seeks "settlements" in a criminal case.

Regardless of whether one agrees with his desired end, Mr. Marsh should quit hiding behind the federal restitution statute and admit that he is really using criminal cases to obtain civil results, to the complete disregard for the criminal law. It is that conduct, indeed, which is troubling.

Posted by: DEJ | Apr 7, 2010 12:53:16 PM

C'mon, wench costume. A million dollars or 20 years? For mere possession of a widely disbursed image? For harm that evidently is a lot easier to declare than articulate? From a penniless defendant about to serve a lengthy prison sentence (i.e. not even looking for work, much less earning a paycheck)...a guy who apparently has almost no realistic chance of ever paying even the $1,000 (even if they don’t tack on interest)?

On the other hand, why not? Might as well be a million dollars in Buchanan's case. And a big empty gesture's as good as a small one.

Which pretty much sums up what federal restitution has become in the 14 years since it was mandated: a nice idea but a costly, demeaning wild-goose chase for courts and a pipe dream for most would-be beneficiaries.

Fact is, most federal defendants are indigent at time of conviction with little or no prospect of ever making more than nominal payments...no matter how hard they're hounded and squeezed.

To their workload, courts have added the task of private debt-collection throughout the entire lifetimes of tens of thousands of ex-cons...with little to show for the effort or taxpayer expense.

Call it what it is in all but a relative handful of cases...a super fine...a punishment pile-on like the registries and restrictions for sex offenders.

Posted by: John K | Apr 7, 2010 2:29:29 PM

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