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April 20, 2011

Can courts really develop "some principled method" for child porn downloading restitution?

I have now had a chance to read closely yesterday's very important and very throughtful DC Circuit child porn restitution opinion in In re: Amy, the Victim in the Misty Child Pornography Series, No. 11-3008 (DC Cir. April 19, 2011) (available here).   The initial comments to my first post on the case spotlight how many dynamic (and circuit splitting) issues are addressed in the ruling, and I could (and might) do a series of posts on the many legal and policy issues implicated by this decision. 

But there is one especially notable paragraph from the DC Circuit panel in its remand ruling that I want to spotlight and concerning which I wish to encourage collective rumination.  Here is the paragraph:

On remand, the district court should consider anew the amount of Amy’s losses attributable to Monzel’s offense and order restitution equal to that amount.  Although there is relatively little in the present record to guide its decisionmaking on this, the district court is free to order the government to submit evidence regarding what losses were caused by Monzel’s possession of Amy’s image or to order the government to suggest a formula for determining the proper amount of restitution.  The burden is on the government to prove the amount of Amy’s losses Monzel caused.  We expect the government will do more this time around to aid the district court.  We express no view as to the appropriate level of restitution, but emphasize that in fixing the amount the district court must rely upon some principled method for determining the harm Monzel proximately caused.

This paragraph is fascinating because it (1) spotlights why these child porn restitution cases are so hard (the case records have "relatively little ... to guide [court] decisionmaking"), and (2) stresses the prosecution's ultimate responsibilities and burdens here (the government must "submit evidence regarding what losses were caused by Monzel’s possession of Amy’s image" and/or "suggest a formula for determining the proper amount of restitution" in order "to prove the amount of Amy’s losses Monzel caused"), and (3) obliges the district court to come up with some sound formula for sorting all this out while aslo giving it no assistance (the circuit judges here "express no view as to the appropriate level of restitution, but emphasize that in fixing the amount the district court must rely upon some principled method for determining the harm Monzel proximately caused").

As the question in the title of this post hints, I am not confident that the district court in this case (or common-law courts in general) are going to be able to develop and apply "some principled method" for determining how much harm one particular downloader of one image of a widely-distributed kiddie porn picture proximately caused to the child abused in that picture.  I have been thinking about this issue for some time, and I am yet to figure out what principled method exists to link proximately the harm resulting from one particular instance of downloading/possessing this illegal image, especially given that the victim is unlikely even to become aware of that particular instance of downloading/possessing unless and until the downloader is criminally prosecuted and the government gives notice to the victim.

I certainly believe Congress could (and really should ASAP) develop and enact a rational and sound legislative formula for awards of restitution in kiddie porn downloading cases like this one.  But I cannot figure out just how courts can and should develop a "principled method" of appropriately linking one particular act of illegal image possession and the resulting proximate harm to the victim in the image. 

Perhaps readers have suggestions (including SC and Bill Otis and other frequent commentors who often stress victim interests); I am very eager to hear and discuss principled proposals.  And I suspect the district court in this case and others facing this issue could benefit from some collective brainstorming.

Some related recent federal child porn restitution posts:

April 20, 2011 at 10:37 AM | Permalink

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Comments

It seems to me that all of the harm is related to either the initial abuse or the knowledge of the victim that the images have been widely disseminated, which would either relate to the initial abuser or the initial distributor (if they are not the same person). I really don't see how damages can be assessed in these situations.

Posted by: Ala JD | Apr 20, 2011 11:03:19 AM

Along the lines that Ala JD suggests, I think it has to be done on some kind of liquidated damages basis: So much for the initial abuse; so much for the intial uploading to the internet; and a very modest sum for each download that can be proven thereafter; or else just a lump-sum fixed sum for all of that. If the restitution is to go to the people whose images are involved (if they can be identified), I think there shouod not be multiple awards for the initial abuse and initial upload parts. In practical terms, the "restitution" might have to go to create a fund used to combat the activity in the first place.

Posted by: Greg Jones | Apr 20, 2011 12:17:55 PM

As the daughter of a mother who was sexually abused as a child in the early 70's, I can not possibly imagine my mother being informed there are pictures of it on the internet. It has been such a traumatic thing to live with, deal with, and work through for entire life. It can only bring harm to put it in her face time after time as the lawyers are doing some of these victims. Some things are better left unknown to the victims. They should figure out a method to come to a logical amount and it would be best put in a fund that would make it easier for children to report the abuse and get therapy as a child and move past it. The other part of the fund should go to actually finding and putting away the sick individuals doing the abuse!

Posted by: Fixnrlaws | Apr 20, 2011 12:56:07 PM

The principled thing to do would be to recognize that there's no Daubert-compliant proof of proximate cause in these cases. Another principled thing would be to adopt the tort concept of intervening cause as well as proximate cause, and to recognize that the Federal notification system is a superseding cause that cuts off the viewer's liability.

I'm all for child porn victims obtaining restitution from the maker of the videos and possibly from those who post the pictures on the internet, but any harm caused by mere viewers is far too nebulous and attenuated to be compensable.

Posted by: Jonathan Edelstein | Apr 20, 2011 1:03:14 PM

While the appellate court here gave almost no guidance whatsoever to the district court, the appeals court still telegraphed to the lower court that restitution is appropriate in this case. "We express no view as to the appropriate level of restitution, but emphasize that in fixing the amount the district court must rely upon some principled method for determining the harm Monzel proximately caused." - That statement seems to suggest that the district court must find the amount of restitution but that restitution of some sort is already pretty much a foregone conclusion.

Whatever the disagreements we might all have about whether it is prudent or just to order restitution in cases of viewing child pornography, it seems like it going to happen. I would be more interested in seeing comments from professors and lawyers attempting some sort of formula or method for calculating harm. My proposed method is going to seem very contrived, but this situation is not easy.

My idea is this - in civil cases, restitution is ordered to compensate the plaintiff for gains made by the defendant and does not look to the plaintiff at all. So similarly, we could look at the gains to the defendant in this case instead of the harm to the victim. This defendant had the gain (to him) of looking at child pornography without the cost/risk of going out and making it himself. This is the same benefit accorded to all who viewed the child pornography without making it. So my solution would be to take restitution amount due to the victim from the harm done to the victim by the initial maker/uploader and then divide that amount by the number of downloaders. A reasonable approximation for the number of downloaders is fine, but the end result is a logically and legally defensible method for calculating harm and restitution.

Please feel free to tear my idea apart, but I thought it might serve as a basis for constructing a method.

- A young lawyer not involved in criminal law at all but who is fascinated by this blog and its great writing.

Posted by: Jeff | Apr 20, 2011 2:04:37 PM

Jeff,

Except that the victim is only entitled to collect her $3mill from all the offenders, in whatever proportion they personally harmed her. Even taking the 5th circuit route of joint and severable liability the various offenders ordered to pay the full amount would be free to go after those who did not have a restitution order entered against them, or a nominal restitution amount.

Even worse, by taking whatever amount the original producer would owe and dividing it amongst all the viewers you would seem to give the producer a windfall.

In terms of Prof Berman's question I tend to think that there is no principled way to come up with a restitution amount for the CP viewers. Producers and distributors, perhaps. But in so many of these cases the viewers and distributors are in fact the same people. Even where there isn't a distribution conviction, since this is part of sentencing such distribution would only need to be proven by a preponderance, not beyond reasonable doubt.

Posted by: Soronel Haetir | Apr 20, 2011 2:44:24 PM

Jeff, I'm not sure where you practice, but in my state (NY), civil restitution does focus on the losses to the plaintiff. In a civil restitution claim, the plaintiff seeks compensation for doing someone else's job; e.g., if I dump toxic waste and the city has to clean it up, the city can sue for the cost of remediation that should have been done by me.

Criminal restitution is a different animal, more akin to an intentional tort claim than a civil restitution claim.

With that said, your per-downloader method seems like a reasonable way to apportion liability. It would have to be tweaked a little, though. For one thing, the original pornographer and the uploaders should be assigned a share of liability, and the downloaders should share in the remainder rather than the totality. For another, since the victim is claiming lifetime harm, future downloaders would have to be included in the apportionment, and the court should make a reasonable estimate of how many other people might view the images during her life expectancy. I would anticipate that the shares of most downloaders will be minimal (unless they are also uploaders through P2P networks), but that's as it should be.

Of course, it won't work like that in practice; in the great majority of cases, restitution will be part of the plea bargain, with the downloader agreeing to pay a few grand in order to balance the 3553(a) factors more in his favor. The pressure to "settle" these cases will be unbelievable, and I expect that few downloaders will resist, even if they are not fairly liable for the harm done to the victim.

Posted by: Jonathan Edelstein | Apr 20, 2011 2:44:33 PM

It seems that Soronel and I made some similar points nine seconds apart.

To refine my earlier post somewhat, the court could apportion liability in four categories of decreasing culpability: the videographer, commercial distributors, P2P file sharers, and "pure" downloaders. Each category would be assigned a percentage of fault, and the court would estimate the number of persons in each category, including a reasonable estimate of how many will join those categories in the future.

Then, the defendant will be assigned a proportional share of his highest category of liability. If he is a downloader who also shared some of Amy's images via P2P, for instance, he will pay restitution as a file sharer. However, if he shared some files but none of them were of Amy, then he will only pay restitution as a downloader, because the harm he caused to Amy did not include distribution.

The exact percentage of fault for each category would be a matter of contention; however, I think any reasonable apportionment would have to put at least 75 percent of liability on the original videographer, and no more than 5 percent to the "pure" downloaders.

Posted by: Jonathan Edelstein | Apr 20, 2011 3:24:52 PM

Thanks for those points, I like the idea of categorizing the different types of potential defendants. As to the windfall to the producer, you're totally right, I did not clarify that point at all. I was actually thinking to double the amount of damages due and not let the producer off the hook, but instead treat the doubling as an additional punitive measure. I'm not sure that any part of this could be done judicially, but then the second amount of restitution collected could go, as other comments suggested, to some general victim fund. I'm sure there is no lack of victims who might benefit from counseling and whose violators might never be found. So I guess in the end for the pure downloaders I'm suggesting more of a fine than true restitution.

As an aside, I was thinking more about restitution in something like a patent case where the defendant's profits from violating a patent are given to the plaintiff - regardless of whether the plaintiff was actively attempting to do anything with the patent. But maybe that's not always called restitution or I'm confusing particular words.

Posted by: Jeff | Apr 20, 2011 3:43:41 PM

The case law is very clear that restitution is not a fine and is not supposed to result in a windfall to the victim beyond his/her actual losses. Presumably, Congress would have the power to order downloaders to pay "societal restitution" or liquidated damages of some sort, but I don't believe that can be accommodated under current law.

Posted by: Jonathan Edelstein | Apr 20, 2011 3:51:01 PM

How did Amy come to be a victim, unless she was snatched from family at the point of a gun? Otherwise, her family was complicit, and will profit from their criminal complicity by the restitution payment to Amy.

Mohamed's second wife was Aisha, age 9. She was such a brat, bossy, and incorrigible, her father took pity on long suffering Mohamed. He came over and spanked her. Who was the victim, who was the predator? I don't know. Lots of kids like living like they are 25 years old, after being introduced to adult activities. Aisha went on to lead armies that subjugated much of the surrounding nations. The feminists would call her a victim. The historians would call her a conqueror. By indoctrinating her into victimhood, the feminist would have hobbled a great military and religious leader.

The idea of the criminal law is to reduce the rate of victimization. One does that best through incapacitation. High profits to lawyers increases the activity. So CP costs more, with a higher profit margin for Eastern European mobs, increasing profit margins, and the amount of child sexual victimization. There is Daubert compliant evidence that CP laws increase CP and child sexual abuse. The legalization of CP in several nations was associated with drops in rates of sexual abuse of real children. That would also be Daubert compliant evidence.

The feminists are sincere only about generating rent by growing government interference. I doubt they even care about sexual abuse victims. If they did, they would not pursue policies of exploding the rates of bastardy by destroying the patriarchal American family, the single best protection from victimization of little American kids. Such victimization includes the 1000's of child murder victims a year.

Posted by: Supremacy Claus | Apr 20, 2011 4:00:32 PM

Jeff,

Restitution in this context is exactly that, it is intended to make the victim whole and no more. And thus Amy had to prove her lifetime damages (the $3mill figure), even if there is a great deal of contention over who exactly she can go after for any part it. It is not meant to provide anything beyond actual damages and any costs stemming from that damage. In another context, for instance, a restitution award for a company's audit costs to figure out the true amount of a theft was upheld as being an expense that logically flowed from the theft itself.

I do think the claim that merely knowing that some particular person viewed the pictures adds to the harm is a bit far fetched, but so far her experts have been doing a credible job convincing courts that I am wrong on that score. But trying to put a value on that harm seperate from the harm of the original abuse, and seperate from the harm of knowing that unknown people are viewing the pictures, that seems far harder still.

Posted by: Soronel Haetir | Apr 20, 2011 4:53:10 PM

If I stood on a soapbox in a public forum and slandered someone ("So-and-so is a lying, philandering goat humper", etc), could that person sue everyone who listened to me for damages?

Posted by: NickS | Apr 20, 2011 9:42:00 PM

Very good point Nick. I often wonder this myself. Every day in the news media I see pictures of crimes and victims. Murders, wars, robberies, hurricanes, etc. If viewing a crime is itself a crime, what principled reason is there to refuse to impose such liability on all newsmedia viewers?

Posted by: Anonymous | Apr 20, 2011 9:51:40 PM

Nick: You could sue the members of the audience if they republished the slanderous facts, in their blogs, or in private communications. But that republishing would have legal protection of the Free Press Clause, the NYT decision, however.

IN CP, both the production and the viewing/possession violate federal law. Is the law safe and effective? No. It is the main factor in the explosion of CP and it underlying child sexual abuse by raising the profit margins for organized crime to produce it. Amy should try to sue the federal government as well.

Posted by: Supremacy Claus | Apr 21, 2011 7:09:05 AM

Soronel:

I do think the claim that merely knowing that some particular person viewed the pictures adds to the harm is a bit far fetched, but so far her experts have been doing a credible job convincing courts that I am wrong on that score.

I'm afraid that the courts' response to Amy's claims is less a result of her experts doing a "credible job" than of the de facto relaxed standard of proof that applies in sex offense cases. Because child porn viewers are, in the words of another frequent poster, "icky pervs," courts accept the secondary-victimization testimony at face value rather than subjecting it to the rigors of Daubert. And if the defendant tries too hard to rebut the victim's experts, he risks losing his acceptance of responsibility credit -- not all judges will penalize a defendant for opposing restitution in this situation, but many will.

One of my real problems with criminal restitution is that it allows victims to pursue dubious theories of recovery that would never survive summary judgment in a civil court, in an atmosphere that is very coercive toward the defendant. When liability is clear -- e.g., when a robbery victim seeks return of the money stolen from her, or where an assault victim wants his medical bills paid -- then restitution is an excellent way to make the victim whole without the costs and delays of civil litigation. But restitution should not be used to force novel theories of recovery upon defendants without the procedural and evidentiary safeguards they would be entitled to in civil court.

Posted by: Jonathan Edelstein | Apr 21, 2011 7:14:38 AM

Sorry, the last sentence of the above comment should have been "But restitution should not be used to force novel theories of recovery upon defendants, in an extraordinarily coercive environment, without the procedural and evidentiary safeguards they would be entitled to in civil court."


Posted by: Jonathan Edelstein | Apr 21, 2011 7:54:43 AM

Jonathan Edelstein ,

How do you propose to seperate the obvious cases from the non-obvious under such a framework? The statute already allows the judge to say that determining the amount of restitution would be too burdensome for a sentencing hearing, there may be other safety valves that I'm not aware of. And the results of Amy's efforts have been all over the map, from the recent 5th circuit ruling to no award at all.

Posted by: Soronel Haetir | Apr 21, 2011 9:52:25 AM

regarding Nicks comment...so what if you were on your cell phone at the time leaving a message for someone. That message you send to whomever. Someone can remove the original message you left and leave only the background rants. This gets forwarded over and over and eventually FBI gets involved. With wonderful technology today they can only trace it back to the the phone and owner of the phone who originally recorded the rantings. No way to prove if it was knowingly or on purpose or by accident. Should you be charged with the crime and pay restitution for "distributing" it? With CP laws you would be indited and likely forced to plea to a 5 year MM and then made to possibly pay restitution, just because you "could have" done it knowingly and on purpose and since you can't prove otherwise FBI wins! We are trying to figure out restitution when we haven't even gotten CP laws and investigations correct yet!

Posted by: Fixnrlaws | Apr 21, 2011 10:09:25 AM

courts has the right to develop some principle to protect from child porn.

Posted by: marietta dui attorney | May 9, 2011 3:13:20 AM

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