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December 5, 2013

Yet another effective review of the child porn restitution challenges facing SCOTUS

I have already blogged some previews of the fascinating Supreme Court case of Paroline v. United States even though oral argument is still six weeks away because the issues strike me as so interesting and dynamic.  (The parties' main briefs and now lots of amicus briefs are now available via SCOTUSblog on this Paroline case page.)  And I suspect we are seeing other notable coverage of the case already because lots of others are also intrigued by the issues and arguments now before the Justices in Paroline.  The latest example comes via Emily Bazelon here at Slate, and it is headlined "Paying Amy: Doyle Paroline owned two pornographic pictures of an 8-year-old girl. How much should he have to pay?" Here are a few excerpts (with cites to some of the filed briefs):

In January, the Supreme Court will hear the appeal of Doyle Randall Paroline, who was caught with two pictures of Amy among 280 illegal images and was found liable by the U.S. Court of Appeals for the 5th Circuit for the full amount of the restitution Amy, who is now 24, has claimed. The 5th Circuit said it was up to Paroline — not Amy — to find the other men who could also be on the hook for restitution and go after them for contributions. The legal theory is called joint and several liability. It’s the way courts deal with pollution cases in which a bunch of defendants all dump toxic waste into a single lake. A plaintiff sues one wealthy company for all the damages, and then that defendant has to sue other companies to share the costs.

Is this how Congress intended victims to recover from sex offenders when it passed [the Violence Against Women Act] in 1994?...

Of the eight appeals courts that have heard challenges by men like Paroline, only the 5th Circuit agreed entirely with Amy’s theory of recovery.  The Department of Justice also disagrees with a key to it, saying that joint and several liability doesn’t apply in these cases.  But a bipartisan group of U.S. Senators have filed a brief before the Supreme Court arguing that Congress wanted to give Amy an easy path to restitution. VAWA could “hardly be clearer,” say the senators (roll call: Orrin Hatch of Utah, Dianne Feinstein of California, Charles Grassley of Iowa, Edward Markey of Massachusetts, John McCain of Arizona, Patty Murray of Washington, and Charles Schumer of New York)....

Five appeals courts have said they doubted that victims like Amy can win more than nominal restitution.  Two others let her keep awards of only $10,000 or less. She has been able to collect larger amounts only from men who have agreed to settle or waived their right to appeal.  The senators, though, say that all these courts got it wrong and the 5th Circuit got it right.  They quote Vice President Joe Biden, chief architect of the VAWA, who called it “the most victim-friendly bill [the Senate] ever passed.”  And they provide an important piece of history about how VAWA was drafted....

Here’s the clearest way to think about how and why Amy and other victims like her should win restitution.  Their trauma can’t be neatly parceled out among the individual men convicted for possessing their pictures.  But the harm is crystal clear in the aggregate.  And so Paroline and other defendants shouldn’t be relieved of their obligation to pay “simply because Amy would continue to suffer harm if there were one less child-pornography consumer in the world,” as the Department of Justice puts it. This makes sense to me: You can’t let each viewer off the hook because he is merely one small part of the whole.

How much does each viewer who is convicted have to pay?  The Department of Justice argues — vaguely and without any basis I can see in VAWA — that each defendant should pay restitution in an amount greater than zero but less than the whole.  Courts should use their discretion to pick some place in the middle, the government says.  It rejects the idea of joint and several liability as “practically unworkable” and “unduly harsh.”

If Paroline had to pay millions of dollars for his two pictures of Amy, then yes, that would be unfair.  But that’s not how joint and several liability works. It works like this: Other victims following in Amy’s footsteps would target the rich child-pornography defendants.  Then it would be up to those men to find the others who are also legally responsible.  This would allow many more victims to recover than the alternative: The victims have to sue the defendants they can find one by one, while courts award restitution in what would probably be relatively small amounts.  If the Justice Department is really worried about fairness, it could create a compensation fund defendants could pay into for the benefit of more victims.

Money can make a huge difference for victims of sexual abuse.  For Amy and Nicole, it has meant access to counseling and a safety net when they have struggled with school and work, as they both have at times.  Restitution makes far more sense than the enormously long prison sentences men often serve for collecting child pornography. Congress was right to see the value of restitution.  The Supreme Court should too.  And then lawmakers and judges should also recognize that the prison terms for possession of child pornography have become too harsh.

A few prior posts on Paroline:

December 5, 2013 at 01:58 PM | Permalink

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Comments

A person who is caught downloading a photo of child porn --taken 10 years ago should pay millions of dollars of restitution to the victim--when hundreds if not thousands of others have downloaded the same photo? Call me crazy, but this seems unfair. Why shouldn't the internet carrier pay restitution? Or the computer manufacturer? Or the software maker? What am I missing here?

Posted by: anon | Dec 5, 2013 2:18:52 PM

Or the NCMEC or Federal Government which were the source of said pictures provided to the particular defendent(s). Unwanted and unknowing viral downloads of the pictures are "possible". What if the offended party or government were responsible for the virus downloads of said pictures which were not sought, much less paid for.

"a brief before the Supreme Court arguing that Congress wanted to give Amy an easy path to restitution. VAWA could “hardly be clearer,” say the senators (roll call: Orrin Hatch of Utah, Dianne Feinstein of California, Charles Grassley of Iowa, Edward Markey of Massachusetts, John McCain of Arizona, Patty Murray of Washington, and Charles Schumer of New York)...."

These POS Senators are what is wrong with our country. Passing a POS law (VAWA -creating a protected and favored "class")and then trying to polish it. The easy path is also unworkable, no matter what these idiots say.

The excessive fines portion of the 8th amendment, is it real or not? Perhaps the entire law should be found unconstitutional so that Congress can be forced to correct its mistakes.

Don't get me wrong, creators and distributors of CP should be punished and punished severly. However, the person who knowingly infects a population by deliberate injection of contagious materials is different from the person who accidentally sneezes to pass it on.

Posted by: albeed | Dec 5, 2013 7:54:02 PM

actually the real kicker is here!

"Then it would be up to those men to find the others who are also legally responsible."

Whole scheme is nothing but an illegal underhanded way of getting the men to turn on each other and name others.

Posted by: rodsmith | Dec 5, 2013 10:19:25 PM

So, the 3 images my husband unknowingly possessed should serve as an additional avenue to rid him - and me, and his kids - of what is already a slim to zero chance of moving on after serving his sentence?

He already cant get work. I thank God we have a place to live with open minded neighbors. He'll be on the public registry for life. He served 3 years for 3 images. He also got 10 years of probation, on top of incarceration! Let's not forget the 15k in fines. Toss in probation fees, lie detector fees, weekly and NEVER ENDING state mandated "therapy" at $40 a pop and we're lucky to feed ourselves!

So now it's a great idea to make him hunt down others who possessed a picture he had no idea he had, nor has no idea how he got? Hire a PI with all that money that grows on a tree in the back yard? Search the internet that he's forbidden to use? Have me do it on top of my 70 hours a week to keep us fed and housed?

Pray tell, PLEASE explain it to me Mr. Fancy Pants professor, how in the world is this going to work??? Have you ever actually spoken to any of these men, or the families, of these folks who have had their lives destroyed by these rabid laws? No? Well, here are a few resources for you.

www.texasvoices.org
www.womenagainsttheregistry.org
www.usafair.org
www.nationalrsol.org

Last note of interest, surely there is some irony somewhere that the most rabidly conservative federal circuit is the ONLY court to find that this is possibly sane? When all the others have only partially found it constitutional? I find this so congruent with the harsh laws here in the land of those of us who suffer under this stupid court. And how ignorant of you to fail to consider all sides of the issue. Where does it end?

Try a day in our shoes, the convicted and their families, then tell us all how this will work in the real world. PLEASE.

Posted by: SO.Wife | Dec 6, 2013 12:18:51 AM

Dear SO Wife:

I feel your pain. You are 100% correct. I think Bill Otis might even agree that 3.4 million dollars is not a trifle. Look at the list of brain dead idiots from Congress who filed the amicus brief. Do everything in your power to get them voted out of office. Do NOT defend them as justifiable, defendable lawmakers. They are vote pandering, lying wh-res. At least a paid woman of the night earns her money. Not these idiots and their government apologists.

THIS is ONE of the MANY WAYS we are going to HELL in a handbasket, but the justice community just twiddles its thumbs and looks the other way.

Posted by: albeed | Dec 6, 2013 10:02:38 AM

I've been following the Amy/Vicky debacle for some time now and would simply like to state that the idea of paying restitution falls flat when you consider that the attorneys for these ladies are getting a sizable chunk of the proceeds...
if this this to be fair to anyone, then the girls should be the only beneficiaries...
in that regard, the general fund is a far more practical way of dispensing compensation to victims of pornography...

Posted by: Nick | Dec 6, 2013 12:42:32 PM

Nick, that criticism works for any area of the law a money judgment is used to make them whole. In other words, it includes the whole contingency fee model of civil suits. The problem with abolishing contingency fees is that there are too many who can't afford to initiate the process any other way and certainly don't have the expertise to do it pro se. In those situations, it's seen as better that they get at least some of the recovery rather than none of the recovery.

Also, contingency fees are capped by ethical guidelines and must be reasonable based on the work even on top of that.

Posted by: Erik M | Dec 6, 2013 3:51:55 PM

Any criminal charges resulting in a monetary fine should be administered in a general victim fund, while individual retribution should be handled through the proper civil channels. Civil courts are much more accurate in determining actual proximate damage than the criminal courts, which look more toward punitive measures than retributive measure in the first place.

Posted by: Eric Knight | Dec 6, 2013 4:10:33 PM

Does that sound like a bill of attainder? From wikipedia:

A bill of attainder (also known as an act of attainder or writ of attainder) is an act of a legislature declaring a person or group of persons guilty of some crime and punishing them without privilege of a judicial trial. As with attainder resulting from the normal judicial process, the effect of such a bill is to nullify the targeted person’s civil rights, most notably the right to own property (and thus pass it on to heirs), the right to a title of nobility, and, in at least the original usage, the right to life itself. Bills of attainder were used in England between about 1300 and 1800 and resulted in the executions of a number of notable historical figures. However, the use of these bills eventually fell into disfavour due to the obvious potential for abuse and the violation of several legal principles, most importantly separation of powers, the right to due process, and the precept that a law should address a particular form of behaviour rather than a specific individual or group. For these reasons, bills of attainder are expressly banned by the United States Constitution as well as the constitutions of all 50 US states.

Posted by: George | Dec 7, 2013 1:34:19 AM

A 3.4 million dollar fine sounds like it meets some of the definitions of a "bill of attainder".

"the effect of such a bill is to nullify the targeted person’s civil rights, most notably the right to own property (and thus pass it on to heirs)".

I'm still trying to reconcile the differences in penalties (as for drug laws) of receipt, possession and distribution. One can unwittingly receive a drug and possess, consume or destroy it. Similarly, one can unwittingly receive a "bad picture(s)" and possess or destroy it.

Why the penalties for receipt are higher than possession seems to be necessary for merely prosecutorial reasons.

Posted by: albeed | Dec 7, 2013 9:32:13 PM

Public Safety or Bills of Attainder? - Constitution Society
www.constitution.org/col/psrboa.htm
Art. I § 9 Cl. 3 of bills of attainder and ex post facto laws, and rest upon violations ... The classes of persons considered too "dangerous" to possess firearms are ...... the Constitutional Defense page at , ...

Public Safety or Bills of Attainder?

by Jon Roland*

Published in University of West Los Angeles Law Review, Vol. 34, 2002.

Introduction

During the 20th century, Congress and state legislatures have adopted a great deal of legislation for the ostensible purpose of public safety, by defining a class of persons considered "dangerous", and making it a crime to for such persons to acquire or possess firearms or ammunition or for other persons to convey firearms or ammunition to them. At the federal level, Congress passed the Omnibus Crime Control and Safe Streets Act of 1968,[1] containing Title VII, §1202 (a)(1) proscribing the possession of firearms by any person who "has been convicted by a court of the United States or of a State ... of a felony." In 1986 Congress passed the Firearms Owners Protection Act,[2] which has been amended several times. This legislation has been codified in 18 U.S.C. §§ 921-924[3], and provisions of it sustained by U.S. Supreme Court majorities in such cases as Lewis v. United States, 445 U.S. 55 (1980)[4] and Caron v. United States, 524 U.S. 308 (1998)[5].

Posted by: george | Dec 7, 2013 11:08:09 PM

I only hope the Supreme Court considers the proximate cause injury that occurs when the NMEC and DoJ provide the notices of downloaded images to the victim. Serous mental injury by a thousand pin pricks.....

Posted by: AFP | Dec 8, 2013 10:36:23 PM

The high dollar amounts are probably like a cruel and unusual punishment, not of course in the law sense since its civil, but similar, you mean if a teenager takes a picture of another teenager, its considered child porn even if the other teenager is not completely nude or there is no sexual activity and win millions of dollars.

So you can win millions of dollars, even if its a picture of a partially nude teenager in which no sexual activity is taking place, the child porn law is wide ranging, its not a law that only deals with abused children, its a law that ranges from infants to 17 year olds, whether sexual activity takes place or not, and whether or not nudity takes place or not since it can be a subjective pose, and does not matter who takes the picture and has been used against parents taking innocent bath-time photos.

I can even argue that the victim is suffering by having more publicity about the pictures, and why should law enforcement and the government have more trust of the photos given that they have issues with folks in their departments too.


Also, given the broad scope of child porn laws, should videos and photos of children being tortured in non-sexual ways be public? In islamic countries for instance teenagers can be beaten,amputated,etc, should images of people being executed, or set on fire vs. a semi-nude pose of a teenager be illegal.

Once again the "SEX" becomes an obsession. It's not a matter of rationality.

Posted by: Kris | Jan 18, 2014 2:24:07 PM

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