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April 23, 2014

SCOTUS splits the difference for child porn restitution awards in Paroline

The Supreme Court handed down two criminal law opinions this morning, and the big one for sentencing fans is Paroline v. US, No. 12-8561 (Apr. 23, 2014) (available here). Intriguingly, Justice Kennedy authored opinion of the Court with Justices Ginsburg, Breyer, Alito and Kagan joining.. Chief Justice Roberts, Jr. issued a dissenting opinion joined by Justices Scalia and Thomas, while Justice Sotomayor issued a distinct a dissenting opinion. Here is the heart of the majority's ruling:

In this special context, where it can be shown both that a defendant possessed a victim’s images and that a victim has outstanding losses caused by the continuing traffic in those images but but where it is impossible to trace a particular amount of losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying §2259 should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses. The amount would not be severe in a case like this, given the nature of the causal connection between the conduct of a possessor like Paroline and the entirety of the victim’s general losses from the trade in her images, which are the product of the acts of thousands of offenders. It would not, however, be a token or nominal amount. The required restitution would be a reasonable and circumscribed award imposed in recognition of the indisputable role of the offender in the causal process underlying the victim’s losses and suited to the relative size of that causal role. This would serve the twin goals of helping the victim achieve eventual restitution for all her child-pornography losses and impressing upon offenders the fact that child-pornography crimes, even simple possession, affect real victims.

There remains the question of how district courts should go about determining the proper amount of restitution. At a general level of abstraction, a court must assess as best it can from available evidence the significance of the individual defendant’s conduct in light of the broader causal process that produced the victim’s losses.

Good luck with that, district courts! Snide comments aside, this ruling confirms my sense that these are really hard issues and that a majority of the Justice were uncomfortable with either a complete victory (which Justice Sotomayor urges) or a complete loss (which CJ Roberts urges) for child porn victims. Lots more on this ruling after I have a chance to process it fully.

April 23, 2014 at 10:27 AM | Permalink

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Comments

"Good luck with that, district courts!"

My exact thought.

In the end, though, I think its a win for child pornography defendants. It is--to channel a Supremacy Claus--a rent seeking issue. Unless the lawyer can find a reasonable profit margin on these cases or the victim gets a reasonable payout the restitution cases won't be brought. It's difficult to imagine that either of those two conditions are going to be met using the standard that penalties are neither "minor" or "severe", which is to say moderate.

Posted by: Daniel | Apr 23, 2014 11:07:18 AM

As to the profit motive, this seems to be one of those cases where you can find advocacy groups that are subsidized in some fashion so it won't be as severe of an issue on that end as your garden variety civil litigation.

Posted by: Joe | Apr 23, 2014 11:39:34 AM

This opinion puts Shakespeare in a new light: the opinion is full of sound and fury signifying nothing.

Posted by: Michael R. Levine | Apr 23, 2014 12:32:08 PM

Daniel, I think you might be mistaken - my understanding is that the restitution is imposed as part of the criminal sentence. There is no separate "restitution case" that needs to be brought.

Posted by: Curious | Apr 23, 2014 2:05:20 PM

It's a shame that the majority essentially punted. They avoided any real answers in favor of any arbitrary answer a trial judge could come up with that's not zero and not 100%. It's fine for the currently pending trials, but Congress really needs to fix the law to make it less arbitrary (of course, I suspect they punted too when they drafted it so they wouldn't have to answer this question).

I think Chief Justice Roberts's opinion is better from a statutory construction standpoint, but it's an almost unpalatable answer since it means that any defendant who committed the crime before the Congressional fix owes nothing because any Congressional fix would be an ex post facto law. It's also strange for the Court to essentially invalidate a statute on statutory interpretation grounds. But I do think the rule of lenity and the principle of notice in a criminal case generally do prevail even over the presumption that Congress wouldn't pass a law without intending that law to have some effect.

Posted by: Erik M | Apr 23, 2014 2:48:03 PM

I get the distinct impression that SCOTUS punted on this one.

Posted by: Guy | Apr 23, 2014 2:49:32 PM

Curious, restitution in these cases isn't a matter of automatic award. The victim's attorney, in this case "Amy's" attorney must file for restitution in each case where she seeks it. Lawyers cost money, and if the awards for each filing aren't sufficient to pay the bills, then restitution won't be sought.

While I agree with SCOTUS that full restitution shouldn't be awarded in every case Amy files in, the Court decided to let the district courts hash out exactly what each defendant is responsible to owe. While it might be a sane decision to prevent some tort-law construance of §2259 in criminal proceedings, it will most likely cause wildly different outcomes when applied at the district level.

"We know this way is wrong, but we're not going to tell you the right way. Just don't screw it up."
- Justice Kennedy (US v. Paroline) (paraphrased)

Posted by: Eric | Apr 23, 2014 2:50:07 PM

Thanks Assholes. You just made my life impossible.

Posted by: USPO | Apr 23, 2014 8:09:57 PM

@Eric

Go read the ranting and raving of Paul Cassell over at the Volokh Conspiracy--talk about foaming at the mouth. Importing 2259 proceedings into the criminal law is exactly what he wants to do now. What's most bizarre about his posts is he keeps declaiming that "Congress has the last word". In fact, as Kennedy states, the SCOTUS is going to have the last word because of that pesky "excessive fine" clause. Cassell is wrong to think that Congress can come in and "fix" this ruling by creating a presumption of 150K award per picture. I don't get any sense from the majority opinion that such a large number is going to fly. If Congress comes up with a reasonable number like around one thousand per picture then that likely will be the end of the matter.

The fundamental problem is political. I can't see a reasonable number per picture being the type of problem that Congress is going to want to take the time to fix--not in any hurry--nor will it satisfy the victim's rights advocates. OTOH any excessive fine is going to be looked upon dimly by SCOTUS. So in my view people like Cassell need to take a deep breath and pause and consider whether or not this ruling is the best deal they can get before the rush off to Congress.

Posted by: Daniel | Apr 23, 2014 10:00:53 PM

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