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July 11, 2012

Fourth Circuit panel talks through challenging restitution issues for child porn downloaders

In a long discussion (which includes a concurring opinion), a Fourth Circuit panel today has weighed in on various statutory issues that arise when restitution is sought as part of the punishment for a child porn downloader. Folks following this issue, which has split the circuits in various ways, should read the full opinion in US v. Burgess, No. 09-4587 (4th Cir. July 11, 2012) (available here); here is the start and a notably snippet from the main opinion:

A jury convicted Albert C. Burgess, Jr., of two felonies involving the receipt and possession of materials depicting minors engaged in sexually explicit conduct. The district court sentenced Burgess to a term of 292 months’ imprisonment, and to supervised release for life.  The district court also ordered that Burgess pay, among other things, restitution of $305,219.86 under the Mandatory Restitution for Sexual Exploitation of Children Act, 18 U.S.C. § 2259 (the restitution statute), for losses suffered by "Vicky," a child victim portrayed in pornographic material in Burgess’ possession.

Burgess challenges both his convictions and sentences on appeal.  We affirm his convictions and all aspects of his sentences, except the district court’s award of restitution to the victim.  Because the district court did not make specific findings regarding the elements of restitution, we vacate the restitution award and remand the case to the district court for a calculation of the loss Burgess proximately caused the victim....

We are confident in the skill of the district judges throughout this circuit to ascertain the appropriate amount of restitution in a given case.  Nevertheless, we are mindful of the challenges posed in the determination of damages under the restitution statute. Accordingly, we add our voice to that of the Ninth Circuit in Kennedy in requesting that Congress reevaluate the structure of the restitution statute in light of the challenges presented by the calculations of loss to victims in the internet age.  643 F.3d at 1266.

July 11, 2012 at 06:00 PM | Permalink

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Comments

I have a serious question about restitution in cases like this. Vicky was a victim, and I get that, and I don't mean to disparage her plight at all. What I'm trying to understand though, is isn't restitution supposed to make the person whole? If her pictures are out there, then isn't it that she could basically be getting cash awards in perpetuity? Is there any sort of aggregation of restitution awards that go to these victims, or is it the sky (and the number of not-judgment-proof defendants) the limit?

Posted by: Guy | Jul 11, 2012 9:33:36 PM

I'm guessing this is nothing but a cash-cow for "Vicki's" attorney. Plain and simple. He/she's galavanting around the country trying to collect massive payments. I can only imagine what his/her cut is.

Posted by: anon | Jul 11, 2012 10:10:53 PM

so the new award should be what about $1.25!

sorry until i see a check from the FEDS! everyone is exempty!

Posted by: rodsmith | Jul 11, 2012 11:39:48 PM

Guy,

I believe the idea under most of these awards is that the offenders are to be individually and severally liable. Vicky and the other victims can only collect up to their individually proven total damages but then it is supposed to be up to the offenders to fight amongst each other about who actually owes how much. And if one of them were to actually pay one of these ridiculous sums and clear away the victim's claim then that offender could take the victim's place in going after the rest.

Personally I'm not buying this theory, at least beyond more than minimal damages (say in the $1000 to $5000 range). She These victims would simply have an extremely difficult time proving to me that their suffering is actually at all tied to any particular downloader and not the original abuse and distribution. And I do think there is a proximate cause requirement that individual and severable liability for the total amount ignores.

Posted by: Soronel Haetir | Jul 12, 2012 1:07:34 AM

if i was one of these individuals i'd sooner pay DOUBLE the amount as a bounty on the head of the judge who issued the order in the first place...Since considering it's a sex crime with it's illegal LIFETIME PAROLE i have nothing to lose by at least killing one of the people i know will be harassing me the rest of my life!


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