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June 27, 2013

SCOTUS grants cert on challenging child porn restitution issues that have deeply split lower courts

As reported here at SCOTUSblog, the Supreme Court wrapped up some business today via a final order list which included to criminal justice cert grants:

In a final round of orders for the Term, the Supreme Court on Thursday granted two new cases, and sent back a case on abortion rights back to an Oklahoma state court, asking for answers to specific questions on the impact of a new state law.

The Court agreed to hear, in its next Term, the cases of White v. Woodall (12-794) and Paroline v. United States (12-8561), limiting the question in that second case to a newly crafted question about restitution orders in child pornography cases. (Case page is forthcoming in Paroline.)

Woodall is one of those (always too popular) capital habeas/AEDPA cases that seems more about error-correction than changing the jurisprudential course of capital habeas review.  But Paroline has the Justices finally agreeing to take on the vexing, dynamic and very consequential issue of criminal restitution awards in federal child pornography sentencing.  Here is how the Justices' teed-up the issue in Paroline for consideration next term:

The petition for a writ of certiorari is granted limited to the following question: What, if any, causal relationship or nexus between the defendant's conduct and the victim's harm or damages must the government or the victim establish in order to recover restitution under 18 U.S.C. §2259.

I will have lots and lots to say about the Paroline grant and the issues it raises in the weeksn and month ahead. But already making my head hurt is the intriguing question of just who can, will and should get a chance to present arguments in Paroline.

Obviously, Doyle Paroline, the criminal defendant who petitioned for cert and is seeking to avoid a restitution punishment, will be represented and make arguments to the Supreme Court contended he should not have to pay restitution as part of his criminal sentence for downloading child pornography. And United States, of course, is the respondent which will be represented by the Solicitor General's office and likely will make arguments for a possible restitution award as part of a federal criminal sentence for downloading child pornography.  But the real "parties of interest" in this new SCOTUS case (and hundred of other to be impacted by a ruling in Paroline) are the (many thousands of) victims of child pornography offenses.  

Thanks to the federal Crime Victims Rights Act, lawyers for the victims of child pornography offenses have often been able to play an active and vocal role in lower courts as they adress the difficult statutory interpretation issue now taken up by SCOTUS in Paroline.  Will these lawyers get a chance to argue before SCOTUS in Paroline?  Might the CVRA be read to suggest that the Supreme Court must, or at least really should feel compelled to, give one (some? many?) counsel on behalf of child porn victims a chance to present oral argument to the Court?  Should brief from lawyers or groups respresenting child porn victim be styled amicus briefs in the Supreme Court or are they really party briefs that need to be filed under the distinct rules and timeline for such filings?

June 27, 2013 at 10:50 AM | Permalink

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Comments

If I were a child porn defendant, I would file a cross claim against the federal government.

1) Any pain and suffering came from knowledge imparted by the Victim Notification System. Without that system, the victims would be oblivious and not harmed in any way.

2) As the biggest downloader of child porn, the federal government has subsidized the criminal syndicates producing child porn, and enriched them, to the detriment of the victims.

3) The law itself against child porn is a negligently enacted statute that has markedly increased the incidence of real world child sexual abuse, increased the profit margins of the production of child pron, and exploded the number of child porn sites to 4 million. I know the Congress is immune, but drag them into court to get the claim dismissed.

Posted by: Supremacy Claus | Jun 27, 2013 12:23:22 PM

Naturally, no defense attorney will even ever think of those cross claims. Why? They would deter the government, which is the real source of their employment, and not the client. The client needs a second lawyer, specializing in legal malpractice to terrorize his defense attorney to carry out his duty to him.

Posted by: Supremacy Claus | Jun 27, 2013 12:36:27 PM

Should pot users and cocaine addicts be force to pay into a restitution fund for all criminals who kill other people in drug deals or drug cartel-sponsored assassinations of entire families?

Should DUI offenders pay into a restitution fund that pays for all harm done for deaths and injuries caused by some drug offenders?

While the analogy is not exactly the same as the downloading of child porn and the consequences of such actions, the nexus remains the same: people who have not committed a violent act, such as murder, DUI-caused injury, or forcing children to be photographed or filmed doing sex acts, should not bear the same financial consequences of those whom actually did the vile acts. The problem of trying to quantify an amount of this nature is as subjective as anything.

Better would be a statutory fine that is administered to all passive offenders. Child porn production is different than drugs or alcohol in the sense that the actual production is criminal, while processing alcohol and even drugs to a certain extent is not illegal. That is granted. But to equate a child porn viewer's actions with the producer's action is not only morally wrong, it demeans the actual crime by equating all aspects of it across the board.

Keep in mind that the victim still has the right to civil action against any offender to recover damages, and in fact would be more conducive to actual recovery of damages because the suits would be tailored to each offender, usually on the likelihood of being paid. But criminal restitution would provide an incentive for passive offenders to reject paying, either by not joining the workforce following incarceration or going under the table. In short, criminal restitution in this case would hinder actual retribution, not help it.

Posted by: Eric Knight | Jun 27, 2013 1:49:41 PM

I am confused about why the court rephrased the question the way it did and what implication that might have for thinking about why they took it. Perhaps you can address that issue in a future post, Doug.

In particular I am troubled by the IF ANY clause because the law itself insists that there must be some nexus when it used the word "proximate". So I do not see upon what basis the court could conclude that there is no nexus necessary and yet they invite argument on just that point. Given that invitation, I am curious to see if there are any amici that will come forward to argue that there can be no nexus because there can be no harm; that like the Perry case the harm to the victims is too diffuse.

Posted by: Daniel | Jun 27, 2013 3:46:43 PM

Thinking out loud.

Perhaps that is why SCOTUS took this case and not the viki/amy case out of Washington that Tom Goldstein predicted they would take. It seems to me that there is an argument Doug that child abuse victims have no standing in this case under the CVRA because they are not in fact victims of the crime of downloading or transmitting child pornography. If SCOTUS really cared about what the presumed victims thought they had a ready case where such victims were front and center; they didn't take it. Maybe there is some dog whistle in that fact and maybe not.

Posted by: Daniel | Jun 27, 2013 4:12:41 PM

@Daniel

The problem with that thinking is that there are civil remedies for victims to utilize for restitution, as with most other criminal cases. Rarely does a court invoke a fine beyond a statutory amount (say, a few thousand dollars at most) because of the cost which is borne upon the state to incur. Civil cases can more correctly assess the actual nexus between actors do determine actual damages, for instance, and to be blunt, there is no shortage of legal firms willing to take such cases on consignment...IF the lawyers feel there is a real and valid nexus to work with. In addition, they generally only have a 9-3 threshold of liability on a jury trial.

With a Supreme Court ruling in favor of the victim, this would validate a punitive scheme that has been trending against the accused or convicted individual for the past 20 years. But does it really help the victim? If civil remedies aren't readily apparent, then why use the public's proven irrationality for providing a nexus that just exacerbates crimes, not diminishes them, in the first place? In the case being advanced, for instance, "Amy" could sue Paroline and I would have no qualms as to its judgment, as all factors would be considered for such damages, which would not be existent in a criminal court setting, other than the irrational hatred toward the guilty beyond that of the actual crime.

Perhaps I'm seeing the big picture too much, as I'm looking beyond sex offender issues as well. I fear a state's whim that can ruin anyone without civil remedy more than I do the rights of any victim, as at that point we pragmatically HAVE no deomcratic state, hence no victims. That is also my answer to Prof. Berman's concern for victims as well.

Posted by: Eric Knight | Jun 28, 2013 2:29:20 PM

The Act specifies that victims have a right to petition the court of appeals for a writ of mandamus. Discretionary review of a court of appeals' decision about claims or error by victims under the Act is already available. So why would SCOTUS want to hear arguments from nonparties in review of the direct criminal appeal?

Posted by: Michael Drake | Jun 28, 2013 6:57:53 PM

In my opinion, this case has all the markings of being reversed by the US Supreme Court. There are just too many arguments - to cover in this post, but I will do my best to highlight some of them - against the Fifth Circuit's rationale. Firstly, a party needs Constitutional standing to get into a court. (Then, there is the "prudential standing.") The Constitutional standing requires the party to overcome a threefold burden: Injury, causation, and redressability. Amy, in this case, may be able to show injury; however, I am not sure that she can show causation and redressability as easily as she could the "injury" prong. Causation, here, requires a proximate and direct nexus between the violator and the party's injury. The government is trying to circumvent this limitation by feebly arguing "foreseeability," while essentially conceding that proximate causation is required for the imposition of restitution. Unfortunately, there is a huge problem with the government's definition of foreseeability: It is so vague and illusory that anyone can be said to have foreseen the injury sustained by a specific person - Amy, herein - when in fact, Paroline had absolutely no clue as to who Amy was, in the first instance.

Perhaps, we may be able to draw parallels between restitution in child-pornography cases and securities-fraud cases. Both of them involve loss of some kind and the injury was sustained by a relatively-unknown party. (However, there are significant differences between these, also. In securities-fraud cases, the violator is usually expected to "foresee" that the plaintiffs will "detrimentally" "rely" on his misstatements.) In securities-fraud cases (there are quite a few of them from the US Supreme Court - about 30), the US Supreme Court has unequivocally stated that there must a direct nexus between defendant's misrepresentations and the palintiff's injury. In Amy's case, the injury was caused by the "original" defendant, and not by a guy who, for instance, gets the pictures off the internet; the nexus is much too attenuated - even for a "but-for," or "cause-in-fact" causation. Were it so easy to show this nexus, then anyone and everyone could be held liable for the injury. Our Constitution does not permit that kind of "loose" standard for nexus.

At bottom, I feel that Amy has a very strong case against the persons who abused her and/or took the pictures, etc. (and quite likely, against the ditributors, if they had any role in the abuse of the victims, and for subsequent dissemination), but not against such persons as Paroline who had no connection to Amy, other than he happened to have "bought" those pictures without even knowing that Amy existed. (I am using the word "existed," because one can create very realisitc depictions using computer animations.)

I wonder if Amy's attorney (James Marsh of NY?) is prosecuting all these claims on a contingency basis - just like an ambulance chaser. Also, did he go after the actual perpetrators and the producers/distributors of the child-pronographic pictures? (I do see that the government is asserting that Amy has already obtained about $1.7 million in the last 4-5 years through litigation.)

@Eric Knight:
Some statutes have millions of dollars in fines, and others have multiples of defendants' gross gain, or vitims' losses; so it is not just a few thousand dollars (those days have long gone). Also, many state (and some Federal - especially the antidrug ones) statutes have reimbursement provisions (for cleanup, prosecution, etc.). I am afraid that you are thinking that fines are imposed as recompense for one's offenses, but they are not. They are solely punitive in nature - just to condemn the violation. The US Supreme Court has consistently ruled that fines and restutitions are punitive in nature, whereas foreiture is civil.

Posted by: John Marshall | Jun 29, 2013 7:21:05 AM

I really do not think that Amy has any "real" standng to argue before the US Supreme Court, because this is not an "appeal" from the denial of a mandamus order. She could try to intervene, but that is seldom granted in the US Supreme Court. Further, I think that government is sufficiently representing Amy's interest in this case, anyway. We shall see!

Posted by: John Marshall | Jun 29, 2013 7:42:02 AM

I (Professor Paul Cassell) will be arguing on behalf of Amy in this case, as the respondent.

I think a few of the commenters misunderstand the procedural posture of this case. In the district court, Amy filed her $3.3 million restitution claim in the criminal case, U.S. v. Paroline. The district judge made Amy a party to the criminal case, but denied her any restitution. Amy then filed a CVRA mandamus petition, seeking review in the Fifth Circuit of the district court’s denial of any restitution to her. After various preliminary proceedings, the Fifth Circuit en banc ultimately granted Amy’s mandamus petition, concluding that she was correct in arguing that she was entitled to the full amount of her losses as restitution from Paroline. (In the Fifth Circuit, Amy received half of the argument time, and the Government and defendant’s got the other half.)

Paroline then sought certiorari to review the Fifth Circuit’s ruling in Amy’s favor. Amy “acquiesced” in certiorari – explaining that Paroline was a good vehicle for review of the issue because she was a party to the case. (In many other criminal cases, the victims are not represented by counsel or otherwise presenting arguments through counsel on restitution). The Supreme Court apparently agreed with Amy, as it granted certiorari in the case. Amy, of course, defends the Fifth Circuit’s judgment in her favor and will argue as respondent. Paroline and the Government challenge the Fifth Circuit’s judgment and will split the petitioner’s time.

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Posted by: The Riana | Jul 30, 2013 3:38:38 AM

@Paul Cassell
Why is this case even being reviewed? Does the CVRA not state there must proximate causation? Trying to acquire restitution from Paroline requires a strong connection between the victim and the defendant, which there is none. If the victim was not notified about Paroline's arrest/investigation she would have been left with the general idea that her pictures are floating around the Internet for anyone to look at. Trying to go after everyone who looks at or downloads these pictures is improper and shows how greedy the victim's lawyers are. After all there are not many (if not any) lawyers in the US arguing such cases except James Marsh from NY. The only reason why some courts granted the victims restitution is because their own vow to be impartial was broken during the knee jerk reaction accompanied with the following words...."child pornography"

Posted by: Blackhat | Aug 7, 2013 1:06:10 PM

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