January 20, 2014
Explaining why I am rooting so hard for "Amy" in Paroline
Oral argument in the fascinating Supreme Court case of Paroline v. United States now is just a couple of days away, and this new AP article provides effective background on the case while also helping to spotlight some reasons I am rooting hard for "Amy" and her advocates to prevail:
The case being argued at the Supreme Court on Wednesday involves a Texas man who pleaded guilty to having images of children engaged in sex acts on his computer. Doyle Randall Paroline is appealing an order holding him responsible for the full amount of losses, nearly $3.4 million, suffered by the woman known as Amy. Of the several hundred incriminating images on Paroline's computer, just two were of Amy.
Advocates for child pornography victims say that holding defendants liable for the entire amount of losses better reflects the ongoing harm that victims suffer each time someone views the images online. The threat of a large financial judgment, coupled with a prison term, also might deter some people from looking at the images in the first place, the advocates say.
Thirty-four states, dozens of victims' rights and child advocacy groups, local prosecutors and members of Congress are urging the court to uphold the ruling against Paroline by the New Orleans-based 5th U.S. Circuit Court of Appeals.
No one has intervened on Paroline's behalf. But his lawyer, Stanley Schneider of Houston, said in court papers that there is no link between the restitution ordered by the appeals court and Paroline's conduct. "An award of $3.4 million against an individual for possessing two images of child pornography is punitive and grossly disproportionate," Schneider said....
The Obama administration is trying to steer a middle course. Solicitor General Donald Verrilli Jr. said the government agrees with Amy that her injury comes from the widespread viewing on the Internet of the assaults by her uncle. "The real question is whether ... a court must impose all of Amy's aggregate losses on each defendant. On that issue, Amy and the government take different views," Verrilli told the court. The administration said the correct answer is greater than zero and less than the entire amount and said trial judges should make the determination....
Regardless of the outcome of the court case, Congress could change the law. The U.S. Sentencing Commission recommended that lawmakers consider doing just that to eliminate confusion among federal judges about the right way to calculate restitution....
Since 2005, there have been about 2,000 prosecutions in federal court that, like Paroline's, included images of the rapes, for which Amy's uncle spent about 10 years in prison and paid a few thousand dollars for counseling sessions for Amy.... Courts so far have awarded restitution in 182 cases and Amy has collected $1.6 million. Of that total, $1.2 million came from one man.
Typically, the court-ordered awards and the amounts collected have been much smaller, as little as $50 in one case, according to Justice Department records. Many judges have ordered no payments at all, Marsh said. The restitution law does not allow Amy to receive more than the lifetime estimate of her losses, Marsh said. But until the 5th Circuit ruling, Marsh said, "She has been forced to go around the country endlessly seeking out defendants with assets. It's endless, and it takes a toll on the victim."
If upheld, the ruling would change the equation. Courts would not have to determine exactly how much harm any one defendant caused Amy. Instead, all defendants would be liable for the entire outstanding amount, raising the possibility that a few well-heeled people among those convicted might contribute most, if not all, of the remaining restitution. Marsh said such an outcome would be just, and wealthy defendants could fight among themselves about who should pay what. "It's really about shifting the burden from the innocent victim to the people who are responsible," Marsh said.
Long-time readers know that I take a consequentialist view on most sentencing and punishment issues, and I strongly believe better consequences will prevail if all persons convicted of unlawfully downloading Amy's picture are all jointly liable for the full amount of her documented economic losses. As the AP article suggests, if Amy wins then only the richest porn downloaders will end up paying her the most money in restitution. But if DOJ's vague approach prevails, the richest porn downloaders will likely end up spending lots of money on lawyers in order to aggressively argue at sentencing that they should not have to pay much or any restitution to Amy or other victims.
More broadly, I actually think better consequences can and will ultimately prevail for future federal defendants convicted of unlawfully downloading child porn if Amy prevails in this case. This is because I think, in light of the instructions of 18 USC 3553(a), federal judges would in the future be fully justified (and arguably even required) to generally impose a shorter federal prison sentence on a child porn defendant if and whenever that defendant is to be held jointly liable for the full amount of documented economic losses. (Intriguingly, Doyle Randall Paroline himself got sentenced only to two years in prison, while the average downloader of child porn prosecuted in federal court these days gets a prison term of nearly a decade.)
In her reporting and commentary on this issue (noted here and here), Emily Bazelon has rightly suggested that having child porn downloaders pay for their crimes through full restitution award (rather than through very lengthy prison terms) makes for better outcomes not only for victims but also for society. As she has explained:
[J]oint and several liability ... 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 other like victims], 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.
Because DOJ is not completely on Amy's side, and because some of the more conservative Justices have in the past expressed some constitutional concerns about some victims getting big awards in tort suits, I do not think it a certainty that Amy will prevail in this matter. But because this is technically a statutory interpretation case, and because the briefs on Amy's side have done such an effective job highlighting reasons to think Congress would want Amy to prevail in this battle of equities, I think she has a pretty good chance to prevail.
A few (of many) prior posts on Paroline and child porn restitution issues:
- Fascinating NY Times magazine cover story on child porn victims and restitution
- "Pricing Amy: Should Those Who Download Child Pornography Pay the Victims?"
- "Rethinking Restitution in Cases of Child Pornography Possession"
- "The Case for Full Restitution for Child Pornography Victims"
- SCOTUS grants cert on challenging child porn restitution issues that have deeply split lower courts
- "Should child porn 'consumers' pay victim millions? Supreme Court to decide."
- Gearing up for Paroline with a short "Child Pornography Restitution Update"
- Another preview of Paroline via the New York Times
- Yet another effective review of the child porn restitution challenges facing SCOTUS
January 20, 2014 at 05:40 PM | Permalink
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Isn't this a change in your position Dough? I recall a lengthy post a while back on this issue in which you argued for expropriate causation in these types of cases. What gives?
Posted by: justme | Jan 20, 2014 7:40:19 PM
The issue in this case, it seems to me, is whether the 8th Amendment imposes any restriction on the common-law joint and several liability.
In this case, it seems to me, liability is clear--he definitely harmed the victim. That fixing of liability was done in a criminal trial or guilty plea. So, the only issue is whether the 8th Amendment imposes a substantive restriction of when seriatim harms can be lumped together.
Posted by: federalist | Jan 20, 2014 8:38:24 PM
The theory sounds good.
But in practice, it looks to me like it'll just pile on bankruptcy and permanent insolvency to everything else thrown at those sorry bastards.
Posted by: Pete | Jan 20, 2014 8:44:34 PM
I have always been iffy about the causal link between the downloading and harm to Amy (e.g., if I were to download the offending pics now, would her harm increase?) But if that link is considered sufficient for any restitution liability under the statute, I think the best "remedy" is full restitution in all cases.
In addition, Pete, I do not think bankruptcy and permanent insolvency is really in play: my understanding is that judges can and will create payment schedules for restitution to prevent offenders with limited means from having to pay every last dollar to restitution.
Posted by: Doug B. | Jan 20, 2014 8:54:06 PM
With all due respect, I think it absurd to impose $3.2 million of liability on a single defendant for collecting two images, when if that were the only defendant, we could not possibly say he had cause $3.2 million of harm (because the harm would have been that of a single person seeing two images). This type of joint liability is unlike anything anywhere. To view these crimes as joint is almost as absurd as saying that if a person lives in a bad neighborhood and is robbed a dozen times, each robber should be liable for what the other took. These crimes are disconnected in space and time, and the joint criminals don't know each other.
To me, the push for joint and entire liability is part of the trend to do everything possible to destroy the lives of those convicted of looking at images. It's about bending notions of joint liability (beyond recognition) so as to achieve a desired goal, whatever the cost. It is quixotic of you to suppose that sentences would ever decrease if monetary liability increased. Instead, what will now occur is that these defendants, who can never earn much income anyways, will be guaranteed perpetual penury once they've left decades of prison.
Posted by: AnonymousOne | Jan 20, 2014 9:44:33 PM
I hope you are ready to pay billions of dollars in damages to the descendents of slaves based on your reasoning, even if your ancestors came from other countries in the 20th century.
Many defendents claim they did not "knowingly" download CP images when they down-loaded from the internet (say such as a site like SSRN that may have been corrupted).
If they "paid" for CP images, throw the book at them. If there is no evidence that they knowingly did as you suspect, do not throw the book at them. Please explain the reasons for the differences in outcome for receipt, possession and distribution. They are basically prosecutorial "gotchas", and you complain about the uneven, overly powerful distribution of powers given to prosecutors.
AO's position above make 100 times more sense than yours. You are asking the Justice system to be fair, just and have reasonable mercy when the circumstances present themselves and Congress to pass reasonable laws. It is easier to crap gold.
Links can be hijacked, just ask the NSA.
Posted by: albeed | Jan 20, 2014 10:10:30 PM
One further comment:
You seem to be against the death penalty. Why don't you just stick a knife in Paroline and end his misery. Any life he has or would possibly have is over.
The DP would be more merciful!
Posted by: albeed | Jan 20, 2014 10:19:11 PM
Could Paroline try an equal protection challenge? He is treated differently under the same statute only because he was previously more successful in terms of income.
The hot and dry climate sizzles with unintended consequences. See for example The First 48 Makes Millions Off Imprisoning Innocents. A little bit reminiscent of its cousin To Catch a Predator that helped fan the flames of extremism. The climate is what makes it relevant. While well intended, this restitution law also burns with unintended consequences. Somebody has to put the put out the fire sometime or trial by media will burn the Bill of Rights.
Posted by: George | Jan 20, 2014 11:34:37 PM
Do you make that post to just be controversial? Your essential argument is that its better to be a slave than in prison. It will be the rich who will be able to buy their way out of prison, making my point that once again despite all the feminist claims to the contrary that such restitution laws are merely an approval of child prostitution in disguise. The only debate is whether the prostitute is going to get paid upfront or after the fact. The rich have more money so they can afford to pay while the poor will be cast in the modern mines, which is life-long debt.
This type of "solution" shouldn't be shocking to anyone since it is what we have done with student loans and education. But it reveals not only the financial bankruptcy of this country but its moral bankruptcy as well.
Posted by: Daniel | Jan 21, 2014 12:34:55 AM
Albeed: if the defendant did not know he received or possessed CP, he is not guilty of the federal offense. Prosecutors have to prove BRD knowing possession or receipt, and folks can and have been acquitted when claiming they only accidentally came in to possession of CP. (In addition, if he would rather be dead, he can take his own life. Notably, more than a few CP offenders do this after getting caught.)
AO: I think if the evidence is that only one person saw this, the damages to Amy is much less. This is like industry liability in the tort setting and the amicus briefs all suggest it is not all that unusual at all if the goal of Congress was to ensure full restitution to victims.
Daniel: Paroline and others would not be slaves but indentured servants only until Amy collects full restitution. I do think that is better for Amy and society AND offenders than if Paroline and others have to spend decades in prison. Consider the choice yourself: would you rather have to pay 10% of your earnings for an extra 5 years to Amy or instead have to spend those 5 years in prison? And if all those convicted in federal court of possessing Amy's picture were required to pay, the average actual total payment would end up being only a few thousand dollars. So the question really is would you rather be required to pay Amy $3000 or spend years in prison.
Posted by: Doug B. | Jan 21, 2014 6:48:33 AM
"Consider the choice yourself: would you rather have to pay 10% of your earnings for an extra 5 years to Amy or instead have to spend those 5 years in prison?"
Five years in prison would not be so bad considering that 10% of 0 is still 0 and a life-long indebture.
There is something out of whack when you have to throw yourself at the mercy of a federal jury to prove your unknowingness versus having the feds prove your knowingness.
Posted by: albeed | Jan 21, 2014 7:37:14 AM
I find it beyond bizarre that someone who looks at one of these images could be forced to pay millions when the person who actually raped the girl pays nothing. My bet is that on average, the downloaders get more prison time that the men and women who rape these kids. As long as SCOTUS maintains proportionality, these penalties seem disproportionate.
And federalist, you know that the fixing of liability upon a plea is for knowingly downloading, not the liability that downloading caused the mental harm claimed by the victim.
Posted by: 312 | Jan 21, 2014 7:57:17 AM
albeed: the Feds do have to prove your knowingness to a jury BRD, and they typically can and do based on number of images downloaded, web searches for CP and chat room discussions.
312: you raise a good practical point, but SCOTUS has to apply the law and legislatures must deal with these practicalities. If prosecuted in federal court, the abuser would certainly also be fully liable for the full restitution amount. So too would be those who aided the making and distribution of the CP. I think an LWOP prison term would be disproportionate for this offense because contact offenders rarely get LWOP. But federal law clearly requires full restitution awards for contact offenders.
Posted by: Doug B. | Jan 21, 2014 10:16:28 AM
If a federal official downloaded the Amy recording, the government should be held jointly liable.
Posted by: Supremacy Claus | Jan 21, 2014 11:28:11 AM
shame on you doug!
"Prosecutors have to prove BRD knowing possession or receipt,"
this is a joke considering 90% + of all convictions is via plea bargain.
as for this!
"would you rather have to pay 10% of your earnings for an extra 5 years to Amy or instead have to spend those 5 years in prison? "
No I would sooner put a bullet through the brains of both amy and her con artist lawyer and maybe a few of the judges who are going along with this theft.
Posted by: rodsmith | Jan 21, 2014 1:04:53 PM
You can draw a distinction between "slavery" and "indentured servitude" if you would like. I think it is a theoretical distinction without a practical difference in this case. The reality is that convicted pedophiles are (a) de facto employable in nothing more than the most basic occupations and (b) the award amounts are so huge that (c) practically speaking they will have a life-long sentences in indentured servitude. And a life-long sentence in indentured servitude is only slavery under a polite name.
"would you rather have to pay 10% of your earnings for an extra 5 years to Amy or instead have to spend those 5 years in prison? And if all those convicted in federal court of possessing Amy's picture were required to pay"
This is a morally bankrupt question to begin with because it should never by the criminal's place to choose. The people who make the rules should be bearing the cost of enforcing the rules. People seem to be engaged in willful blindness about this truth. If Party A has the the power to both make the rules and then impose the costs of enforcing those rules onto Party B that is slavery. Pure and simple. The fundamental moral objection to slavery isn't that it involves whips and chain to people of color. It's that slavery is an abuse of power. It is despotism.
Any excuse will serve a tyrant. In the 1800s in was blacks. In the 1940s it was Asians. At the turn of the century it is pedophiles. Your essential argument Doug is that if evil can't be fully defeated it should be fully capitulated to. Rubbish.
Posted by: Daniel | Jan 21, 2014 3:39:29 PM
I just ran some calculations.
Assume an award of 3.5 million dollars. Assume the minimum wage of $7.5. Assume a full time job @ 2000 hours. It would require one person 233 years to pay off that award. Now, I do not know exactly how many people have been convinced with this specific person's pictures. My impression from the documents is that it is less a dozen, round it off to ten to make the numbers easier. That means each person convicted would have to work 23 years at minimum wage just to pay their share. To get to anything close to five years of restitution vs five years of prison there would have to be 46 convictions. I do not think that is anywhere close to true.
That's the optimistic solution. Because in truth many of those people are going to come out of prison, go on welfare, and not have any incentive to find work because any free money is going to go to someone else. So the only people who will pay restitution as a practical matter are those who have assets, homes, cars, etc.
I'll stand by my remarks. These laws are just child prostitution aided and abetted by the legal system to make all the parties feel better about the process.
Posted by: Daniel | Jan 21, 2014 3:56:31 PM
From a purely torts perspective, what about intervening causation? Amy and other fellow victims have to choose to be notified by the Department of Justice when images are found on a computer. Some families opt not to know.
Also, restitution under the MVRA is mandatory and imposed regardless of ability to pay. Joint and several restitution with large awards have a real and counterproductive impact on inmates and those on sueprvised release that is counter-productive to prosocial behavior, continued reporting and registration and successful re-integration into society. That being said, victims like Amy deserve all of the counseling and other support they need, so this is a complicated issue for indigent defendants and the courts.
Posted by: defendergirl | Jan 21, 2014 4:48:10 PM
Doug, could you maybe highlight a specific amicus brief or page reference in the gov't briefing that draws out the analogy to what you refer to as above as "industry liability in the tort setting"? If that's a reference to the line of tort cases I'm thinking of (Sindell v. Abbott Labs etc.), it strikes me as a quite weak analogy to the result being sought here, but perhaps I'm just not thinking of the same line of tort cases you are.
Posted by: JWB | Jan 21, 2014 4:51:47 PM
Daniel, did you read about this case as posted above before running your numbers? The article reports that "since 2005, there have been about 2,000 prosecutions in federal court that, like Paroline's, included images of the rapes, for which Amy's uncle spent about 10 years in prison and paid a few thousand dollars for counseling sessions for Amy.... Courts so far have awarded restitution in 182 cases and Amy has collected $1.6 million. Of that total, $1.2 million came from one man."
So, let's do the REAL math here based on real numbers: $3.5million / 2000 = $1750 per offender (OR roughly $30 each month for 5 years). Plus, given restitution already secured, the real number really now for Amy/Paroline is $2million / 2000 = $1000 per offender OR about 50 cents each day. So Paroline has to get a small rather than a large coffee for five years. I do not think this is "slavery" or "indentured servitude" or as bad as spending 5 years in prison.
Posted by: Doug B. | Jan 21, 2014 5:15:42 PM
To answer your inquiry, JWB, I think pp. 19 to 25 of the US brief covers the "aggregate causation" concept effectively and at length.
Posted by: Doug B. | Jan 21, 2014 6:35:49 PM
I may be a knave, but if you take this decision to its logical conclusion, wouldn't EVERY case that involves a victim be subject to this criminal court-sanctioned restitution that civil court would normally entail? A statutory rape victim, for instance, could claim millions of dollars in criminal restitution. Certainly, the nexus of the crime is certainly more direct, and not arbitrarily held to a standard that gives millions of dollars to attorneys rather that actual damage payments.
Well, I'm speaking a bit soon. This process is on the way.
Posted by: Eric Knight | Jan 21, 2014 6:38:30 PM
Culpability should definitely be at the heart of internet downloading of child porn. There are definitely different level of culpability now that the internet is being used for the transport of these files. If you download from a pay site, you know what you are getting when you sign up. If you are using a file share program, especially when Limewire was up, you didn't know for sure what was going to show up on your computer until it was there. I think Todd Stabenow has addressed that issue in regard to child pornography.
As far as restitution how much is for attorneys and how much if really for counseling? I agree that these victims need counseling because of what the abuser did, but the abuser should be paying that, plus plenty of time in prison. But that doesn't work very well either, does it? A prisoner really can't pay much restitution as long as he is incarcerated. I know that the victims have to sign up to be notified, but how do you ever move from victim to survivor if you are constantly reminded that the images are out there. At what point is the notification the re-victimization to the victim, rather than the mere downloading or viewing of the image from 20 years ago that prosecutors try to push?
Posted by: Jill | Jan 21, 2014 6:46:51 PM
The "desired" outcome is a lawyer's wet dream... hold one person fully responsible for the "millions" of dollars in damage, and have him either pay it, or more likely, sue other offenders to help him pay it, thus creating more jobs for the lawyers. I think SC would call this "Rent-seeking." Its a litigious nightmare with no end in sight, that doesn't bring the victims any closer to being whole, or getting money they are due.
I don't argue that defendants shouldn't be held responsible, but there should be some uniformity in who pays what; perhaps make it proportional to the amount of incriminating photos/videos? I don't know. A solution that makes sense, and one I've surely voiced here in one of the very few previous posts is this:
Create a Victim's Fund of some sorts, administrated by ANYONE but Ernie Allen at NCMEC, and as part of the sentence, order the offender to pay "restitution" directly to the fund. The monies would then be disbursed to the victims as needed. They are already forced to prove the monetary damage they have already, or will eventual incur, so this changes nothing on the victim's end instead of constantly fighting day after day in court after court all around the country for what is, I feel, rightfully owed them. And perhaps the pouring of salt into the wounds that is the repeated notifications they get when yet another defendant is found to have their photos, could end as well.
Posted by: Brian G. | Jan 21, 2014 7:16:30 PM
But the gov't (whose brief I have now skimmed) seems to think that its theory on causation (notably long on cites to treatises and short on cites to decided real-world cases) doesn't get you to joint-and-several liability. Maybe this is what you meant by its position being vague? I haven't been following this issue, but the gov't's brief reads like they're engaged in the thankless task of proposing a seemingly moderate/reasonable/avoiding-extremes-at-both-ends application for a poorly-crafted statute.
Posted by: JWB | Jan 21, 2014 7:41:43 PM
I know how to handle this. My kids will be millionaires by being "victims".
On my deathbed, I will post some bathtub photos of them when they were infants on the internet. You might even be able to see a little of their bottoms. Anyone who downloads will have to pay them for "damages".
How can we solve this problem when we cannot even come up with a working definition of CP. Like the judge said, I can't define pornography but I know it when I see it.
To the feds, everything is pornographic, when they want it to be.
Posted by: albeed | Jan 21, 2014 8:17:45 PM
You seem to think you are contradicting me when your remarks prove my point. $1.2 million out of 1.6 million /collected/ came from one man. Which means that out of the other 400K on average she collected $20 in total from each offender. But she didn't actually collect $20 in total from each offender. Most offenders paid her nothing at all. Rather it is the offenders with assets she is collecting from, not wages earners. This is why such calculations as $30 a month are ridiculous; such remarks are a good example of using an average without considering the variation. 75% of the money already /collected/ came from one man and yet mystically the rest of the money /collected/ is going to be averaged. That's preposterous. You remain fixated on math that does not reflect reality. That's my point.
BTW, I do not want anyone to misunderstand the nature of my objections. When viewed as payment for services rendered $3.6 million dollars is not outrageously unfair compensation in the present economic situation. Many well-known adult porn stars make in the million of dollars and I fail to see why a (presumably) well-known child porn star should make any less. I say presumably well-known because if they have caught 2000 people with her pictures I would assume there are many more who have not been caught. My objection is the hypocrisy in it all. we should be honest as a culture about what we are doing instead of gussying it up with fancy words like "justice" and "restitution".
Posted by: Doug | Jan 22, 2014 12:52:00 AM
The poster ignores that the government's definition of child porn can include non-nude,non-sex, photos of a 17 year old, such as in a sexting case, a prosecution can convince that the photos or lewd or lascivious. Yes its more like a copyright violation as well as a criminal matter, but a few photos should not render that high, is the victim "profiting" from being a victim or being "compensated", clearly the latter BUT suppose in a sexting case what compensation can render amongst teenagers, similary there was an episode on dr phil where he told a teenager that she could face child porn charges for posting private photos, clearly not her being molested (the victim), but sexual photos in which the victim blamed her lose on a pageant, clearly it should be illegal many would agree.
While viewing and possessing photos should be against the law, a clearer standard needs to be done, in addition, a judgement per photo, raises questions, multiple photos in the same area, vs a 1 hr video, can 3-4 photos and a more brutal 10min video be more damaging.
A blanket definition of children as well as the quantity rather than what's taken place in the photos should not be allowed in assessing damages.
Posted by: Kris | Jan 22, 2014 2:30:23 AM
May I also add if a child or teen is executed,amputated,etc should the photos and videos be illegal? Some may say theres no comparison to sex crimes, but remember the blanket and broad definition of child porn, can include 17 years olds sharing nude photos, as well as child modeling in suggestive poses which some would argue should be illegal to a higher punishment but not as much as an actual molestation.
Posted by: Kris | Jan 22, 2014 2:32:34 AM
Doug who makes point about numbers et al.: I did the average math to highlight that poor offenders will not get stuck with an actual multi-million dollar lifetime liability. Rather, already rich folks will end up paying the bulk of the award. And at issue practically is whether Amy should have to chase down the rich CP downloaders herself OR instead get a full award in each case so that the defendant have an economic reason to point to the rich offenders to pay the bulk of the restitution.
As others here suggest, some kind of statutory fixed $$ punishment that goes into a restitution fund administered by the govt would likely be the best way to handle these competing issue. But until Congress creates such a scheme, I am rooting for Amy to win based on the law and practical consequences now in place.
Posted by: Doug B. | Jan 22, 2014 7:23:04 AM
"But until Congress creates such a scheme, I am rooting for Amy to win based on the law and practical consequences now in place."
That's OK Professor Berman. You are just exhibiting B. Otis syndrome and we all know and understand what that's like. I agree that AMY should be compensated for her abuse and subsequent mental, physical and spiritual disabilities and rehabilitation but the government's methods are unreasonable, irrational and probably violate many forgotten Amendments in the Bill of Rights (excessive fines?), but who really cares about those ANYMORE, only ignorant non-law practitioners?
There are NEVER anything like bad laws or "unfair" established judicial practices, like plea bargaining. You can't polish a t_rd so just take it as it is.
This is American Exceptionalism - deliberate disregard for "just a piece of paper"!
Posted by: albeed | Jan 22, 2014 9:31:49 AM
Doug writes, "I did the average math to highlight that poor offenders will not get stuck with an actual multi-million dollar lifetime liability."
Just because the poor offender doesn't have the assets to shell out $1.2 million doesn't mean that there are no consequences to the restitution order. There are real world consequences to such an order. For one, they serve as a disincentive to work which serves to make reintegration of offenders harder. As I said in one of my posts above, the point about the lack of liability rests of the false premise of conflating "slavery" with whips and chains because t is as much slavery to to be confined to one's public housing unit living off welfare without any hope in the world of being able to improve one's situation. In Doug's would view of noblesse oblige the poor offender is no longer "waiting around to die" in prison the poor offender is now waiting around for a rich person to get caught so the offender can get on with his life. Oy Vey. Remarkably, Doug considers this an improvement in the offender's situation. Maybe he should go to a public housing unit and live off of welfare for awhile. He might find he would prefer prison.
The truth is that behind all of Doug's rambling he simply finds the woman in this situation a sympathetic victim and the pedophile an icky perv.
Posted by: Daniel | Jan 22, 2014 1:17:26 PM
I stand by my view that this form of liability is essentially unprecedented. In the context of mass torts committed by numerous companies, the analogy falls apart. Imagine a mom-and-pop store that produced toffee for only a single day, and released about a liter of pollution. Now imagine that store being held jointly liable for a billion dollars of damage caused by massive amounts of pollution by others. That is a proper analogy, and I doubt such liability has ever existed in the mass tort context.
You seem to suggest that it makes sense for the defendant, not Amy, to locate and seek contribution from other wrongdoers. But how? Only Amy—not CP defendants—are notified of each new prosecution. And it would be somewhat difficult for CP defendants to spearhead nationwide litigation from jail cells.
To the extent one believes that Amy should recover millions of dollars from those who view images of someone committing a crime against her, the only sensible solution is a government-run restitution fund, with liability capped at some reasonable amount for each offender, representing his true share of liability. This is fairest, and also cuts out rent-seeking middlemen (i.e., plaintiffs’ attorneys).
Posted by: AnonymousOne | Jan 22, 2014 1:24:29 PM
I stumbled upon this blog. I have so much to catch on. Recently in my State, a young 21 yrs old former college student pleaded guilty of distributing child-porn. ( source: http://nj.gov/oag/newsreleases14/pr20140117b.html) His family has made plea bargain with the State agreed to have him serve 3 years in prison and register with national sex offender registry. Arguably and personally, I don't believe his offense is severe enough to enter his profile permanently into national sex-offender registry according to this published guideline. ( http://www.njsp.org/spoff/so-offense-chart.html). Communal life is always going to be harder for those who neither have money nor have common sense and knowledge to seek protection from the over-reaching righteous party. Compare this young offender with Amy's uncle, justice served whose interest the most. I have to wonder about that.
Posted by: sye | Jan 22, 2014 2:39:56 PM
The principle in tort cited in the US brief is this (emphasis mine): “When the conduct of two or more actors is so related to an event that their combined conduct, viewed as a whole, is a but-for cause of the event, and application of the but-for rule to each of them individually would absolve all of them, the conduct of each is a cause in fact of the event.” But the italicized passages make it clear why it can't apply: There is no relation to a singular event (the harm is ongoing); and ignoring the aggregate harm rule would not absolve those who commit individual harms.
As for norms of "industry liability," they are, as far as I can tell from the briefing, not on. The case I see cited in one of the amicus briefs is Dobbs, Hall v. E.I. Du Pont
De Nemours & Co., Inc., 345 F. Supp. 353 (E.D.N.Y. 1972). But as noted in the brief, Dobbs concerned industries that were associated through, well, a trade association. Moreover, as a look at the case itself reveals, the harm at issue turned (among other things) on the existence of a "joint control of risk," which involved, at the very least, "adher[ance] to an industry-wide standard or custom." Id. at 373–74.
This theory is poorly suited to extracting restitution from unrelated persons who independently engaged in downloads of images. The apt comparison isn't to industry liability. It's to the dude who illegally downloads a copy of a song he really likes, and finds himself liable not just for the copy he downloaded, but for every illegal copy of the song that's ever been downloaded. That is crazy.
Posted by: Michael Drake | Jan 22, 2014 3:59:41 PM
Daniel: I am not asserting that "there are no consequences to the restitution order," rather I am asserting that I think the various consequences of even a big restitution order for the victim, the offender and society are better than the are the various consequences of a decade-long prison sentence.
You are right that I have never had to live in public housing or in prison, and so I have no basis to compare the two. But I do know anyone in public housing who wants to go to prison can simply sell some crack to the "right people" and the feds will pay for all his moving expenses. Also, you sound a bit like Rand Paul when suggesting it is modern day slavery "to be confined to one's public housing unit living off welfare" --- I think Senator Paul claims he wants to end all these government programs because, in his view like yours, they perpetuate a modern form of slavery.
Ultimately, I agree 100% with AO's assertion that the "sensible solution is a government-run restitution fund, with liability capped at some reasonable amount for each offender." But at issue in the current case is how to apply existing law until Congress adopts this solution. Ironically, I think if Paroline or Amy win, Congress may be likely to respond this way. But the government now wants this run via the courts, rather than via congressional creation, and I do not think what Congress has enacted can be fairly read the way the government advocates.
Finally, I think your comparison, Michael Drake, is fitting, though needs to be tweaked to include the reality that the song itself is illegal AND the downloader is facing either being jointly liable for all the downloaded copies OR having to spend a decade in prison for seeking and downloading the song. I think having the downloader spend a decade in prison is even more crazy (and a lot more expensive for the taxpayer and a lot less helpful to the victim) than a big restitution award.
What is most telling about all of this is how when the punishment is liberty deprivation that does nothing for the victim, few seem to get all that worked up about how we punish the perv (e.g., there are folks serving LWOP merely for downloading CP and like possession offenses). But in this case, because the almighty $$ is the topic of discussion, crazy harsh punishments make people ask all these hard questions.
And this is why I am rooting for Amy: only when $$ is involved do people really seem to sit up and take notice of how extreme our modern scales of punishment has become.
Posted by: Doug B. | Jan 22, 2014 5:07:52 PM
"And this is why I am rooting for Amy: only when $$ is involved do people really seem to sit up and take notice of how extreme our modern scales of punishment has become."
Doug, I appreciate this sentiment, and hope you are correct. However, I fear that increases in restitution will not do a thing to decrease punishment.
Posted by: AnonymousOne | Jan 22, 2014 8:16:23 PM
Two final thoughts.
(1) I agree with Rand Paul on part of the problem. Where we mostly disagree is on the solution. I think the real problem is not welfare itself but the lack of upward mobility. There is no incentive for people to get off welfare when 48 people own 50% of the wealth in the world.
(2) I understand your attentional point about money. The problem is that this solution creates worse problems that it solves. It turns everything into mercenary behavior. That's part of my objection to Rand Paul and Libertarianism in general. If the law is supposed to have a moral or ethical aspect, then money can never represent that aspect.
Posted by: Daniel | Jan 23, 2014 12:18:15 PM
Doug B., the hypothetical song-downloader is subject to statutory damages that are far, far higher than actual damages. To that extent, at least, his case maps onto both the restitutional and punitive aspects of the CP downloader case.
Posted by: Michael Drake | Jan 24, 2014 9:54:22 AM
Given the unprecedented liability, this will encourage more money laundering, shielding of assets, off the books income, which is never a good thing, also child porn can be of teenagers sexting, and folks neglect other issues.
For instance in Syria, a teenager was executed for making statements against islam, should viewing that video be a crime? What if amy was set on fire, amputated, or tortured but not sexually, folks would get off scott free viewing those videos?
One could argue that people would not like watching those videos as there's nothing sexual about it, but there are folks who may and should a religious muslim be sentenced to prison for possessing a torture video of a child (note in us law a child is under 18)?
Of course "child porn" is not necessarily, and I need to stress and repeat this in the legal sense very broad, including nude photos of teens in poses.
Posted by: Kris | Feb 18, 2014 5:01:45 AM