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February 15, 2011

New student note on restitution sentences for child porn downloaders

A helpful reader pointed me to this timely new student note by Dennis DiBari titled "Restoring Restitution: The Role of Proximate Causation in Child Pornography Possession Cases Where Restitution is Sought."  Here is the abstract:

The issue of causation is the central reason why possession cases are so problematic for many district courts.  Unlike cases involving direct abuse or actual production of child pornography, defendants in possession cases usually have had no contact with the victims. The defendants often do not know the victim's true identity. In fact, the victims usually do not know the defendants exist until only after they are alerted by notices from the federal government.  The only link defendants have to their victims is, of course, the physical possession of their image.  It is difficult for courts to even begin to quantify the amount of harm done to the victim by the defendant's possession of their depiction.  In addition, most victims have experienced the trauma of multiple crimes and therefore have different layers of victimization; isolating the damage done by the original abuse, the production, the distribution, and end-use possession has been described as an “evidentiary nightmare.”  Simply put, courts are stumbling over causation before they award restitution in possession cases because they are having great difficulty linking the defendant's act to the victim's harm.

This Note will examine the developing split between district courts across the nation over the ordering of restitution in child pornography possession cases.  Part I of this Note will provide a brief primer on the developments leading up to the creation of the problem.  Part II will provide a comprehensive analysis of how federal courts have been approaching restitution in possession cases, specifically focusing on the role proximate causation plays in a court's final disposition on restitution.  Part III will discuss the calculation of restitution awards in possession cases and derivative issues, such as the propriety of using a joint and several liability theory.  Part IV will explore the constitutional dimensions of these restitution awards, evaluating the risk of violating the Eighth Amendment's ban on excessive fines.  Finally, Part V recommends a principled approach to ordering restitution in possession cases, founded in the underlying concepts of criminal restitution. This Note will conclude that a district court can avoid punishing defendants for harm they did not cause.

February 15, 2011 at 09:42 AM | Permalink

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Comments

He may be a student, but he already has a huge blind spot.

The Draconian penalties have caused prices to increase, to amounts profitable to organized crime. When prices go up, you more of a product. The law itself is an unforeseen intervening cause of increased production. The amoung of child porn, its depravity and disgusting level has increased. Thank the lawyer enacting irresponsible laws without verifying their validity. However, there will be good compensation from productive males, mostly to lawyers, with victims getting the orts.

Posted by: Supremacy Claus | Feb 15, 2011 6:02:36 PM

"...courts are stumbling over causation before they award restitution in possession cases because they are having great difficulty linking the defendant's act to the victim's harm."

Apparently you have to be a prosecutor to see such a link.

Posted by: John K | Feb 16, 2011 1:15:42 PM

If subsequent, anonymous, and private viewing of an image can be the proximate cause of harm in the person depicted, I'm switching to class action torts.

Posted by: Rick | Feb 17, 2011 2:22:49 PM

This is an interesting and important issue. I wonder how the circuits will come out on this one...

Posted by: Justin Fitz | Feb 18, 2011 8:37:30 PM

I find this very interesting to pay restitution for pictures that many did not pay for in the first place they were able to get it free how big of cut is the DA getting from this?
Then would this solicting cp for ones persnol gain ?
I do not believe everyone that is got with cp get off on it . Did it to see what is happening to these kids and then they get got up in it can not believe what they are seeing and wondering how could someone do this . So yes they may have amassed a large number of photos from infants on up and pictures that involve bondage, sadomastic,etc.
But we as society always wants to assume that everyone that looks at it are animals.
And we do not look at the person as one we throw them into the pot with the rest.
First time offenders who never acted out or touched anyone face a tougher sentence than those that actually committe the crime or those that get on those chats rooms and set up
a meeting to have sex with a teenager they was was gonna act out but they seem to get a
lighter sentence than some idiot looking at pics.Or they hold high ranking postion in the
Pentagon they bought cp so they support this more than the one that got it free.
First time offenders yes need to do some time 1-2yrs and not be on the so list that is growing for things like peeing , for only nonhands crime if you repeat the crime then
you have no one to blame but yourself .

Posted by: frank | Feb 20, 2011 8:28:03 AM

My sarcasm is not meant to criticize the blog for posing articles with such outdated titles. Quite the contrary. It's meant to compliment the blog's TIMELY reporting on these issues, unlike law reviews. Certainly, law reviews have their role. Yet in today's world of instant information and timely analysis -- especially in the legal world -- these article's 7-month-old titles stand in stark contrast to the blogo-sphere's ability to communicate and encourage timely analysis of legal developments.

Posted by: replica cartier | Mar 28, 2011 12:30:31 AM

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