April 26, 2014
Will Congress fix (quickly? ever? wisely?) the "puzzle of paying Amy" after Paroline?
The questions in the title of this post is a by-product my reaction to the Supreme Court's work this week in Paroline (basics here) and draws from the title of this Slate essay by Eric Posner headlined "The Puzzle of Paying Amy: Congress has to fix the problem with restitution for child pornography victims that stumped the Supreme Court." The analysis of the Paroline issues in this article is effective (though I disagree with some of it), and I recommend a full read. Here are brief excerpts to set up the question in the title of this post, with a key issue and concern emphasized at the end:
The Violence Against Women Act provides for restitution for child pornography victims, so Amy sought payment from the people convicted of possessing her images. She proved that she had lost almost $3.4 million in therapy expenses and future income as a result of the abuse and the viewing of the images, but because of the collective nature of the wrongdoing that caused her harm, she could not prove how much of the loss could be attributed to any specific defendant. Doyle Randall Paroline was convicted of possessing two images of Amy. This week’s puzzle for the Supreme Court: How much should he have to pay her?
Zero, three of the conservative justices argued in dissent Wednesday. All $3.4 million, argued Justice Sonia Sotomayor, also in dissent. Something, held the majority, in an opinion written by Justice Anthony Kennedy. The conservatives got the law right, Sotomayor got the morality right, and Kennedy — characteristically trying to have it both ways — created a muddle....
The problems with Kennedy’s and Sotomayor’s approaches stem from the same source: When Congress drafted the provision about restitution in the Violence Against Women Act, it thought about traditional types of harms — when one person directly injures another — and not the unusual collective injury in this case. That’s why the justices’ efforts to twist the statutory language lead to unfair and bizarre outcomes.
Congress created this mess, and only Congress can fix it. Every person who is convicted of child pornography should pay a large fine into a government trust. The fine would be tailored to the wealth of the defendant and the magnitude of his wrongdoing. Then this fund would be used to compensate all the identified victims of child pornography, who would share it in proportion to the severity of their injuries. That way, not Kennedy’s or Sotomayor’s, lies fairness.
Two quick responses right away, with a lot more to write on this topic in the days and weeks and months ahead:
1. Ironically, the basic substantive proposal for a statutory Paroline fix emphasized above is, in many significant respects, really something of a variation of the new judicial restitution doctrine functionally embraced/created by the Paroline court through Justice Kennedy's majority opinion, though it changes the key sentencing term a fine rather than restitution and would presumably require every CP defendant to pay rather than just the (vast majority of) defendants who have a picture of an identified victim.
Consequentially, I believe DOJ can (and should) on its own operationalize the post-Paroline restitution sentencing process somewhat along the lines Posner suggests: DOJ could (and should) announce formal guidelines concerning the amount of restitution it will request in each CP downloading case involving Amy (or Vicky or other victims) based on the the wealth of the defendant and the magnitude of his wrongdoing (with some reference to factors mentioned by the Paroline majority). With such a restitution schedule created, Amy and other victims can reasonably expect DOJ will be mostly responsible for making sure she and other identified victims collects restitution reasonably efficiently and effectively without actually requiring these victims and their lawyers to be actively involved in every CP case.
2. Though there are lots of good reasons to contend that Congress should try to fix Paroline in some way via statutory reform, the fact that some (many? most?) proposals for such reform may look similar to the new judicial restitution doctrine functionally embraced/created by the Paroline court, I am not at all confident that Congress will get around to enacting a wise statutory fix anytime soon. If the statutory interpretation proposed by CJ Roberts in dissent, which concluded Amy and other victims get nothing based on the existing statute, then I suspect even our divided/dysfunctional Congress would have gotten a lot of pressure from both victims and DOJ to enact a statutory fix. But with the split-the-difference outcome (which was urged by DOJ) now the new post-Paroline status quo, I am not at all confident there will be the same momentum to push Congress to act.
Notably, one of Amy's lawyer, Professor Paul Cassell, has been talking up a legislative fix in posts here and here at The Volokh Conspiracy since Paroline was handed down. In the first of these posts he states that he and "crime victims’ advocates around the country ... intend to take up with Congress the cause of Amy and the many other child pornography victims who suffer real, quantifiable losses from these serious crimes." Because Paul and other "crime victims’ groups can be very effective advocates, I certainly believe it may be possible that Congress will respond in some way after Paroline. But if (when?) the Justice Department is disinclined to join the call for statutory reform, I would predict that the post-Paroline status quo is could stay in place for some time.
A few (of many) prior posts on Paroline and child porn restitution issues:
- SCOTUS splits the difference for child porn restitution awards in Paroline
- Fascinating NY Times magazine cover story on child porn victims and restitution
- "Pricing Amy: Should Those Who Download Child Pornography Pay the 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
- Explaining why I am rooting so hard for "Amy" in Paroline
April 26, 2014 at 12:14 PM | Permalink
TrackBack URL for this entry:
Listed below are links to weblogs that reference Will Congress fix (quickly? ever? wisely?) the "puzzle of paying Amy" after Paroline?:
I agree with point #2. Nevertheless, Congress is political and they may feel the need to be "doing something" to placate their supporters especially in an election year...so who knows...time will tell on that score.
At a philosophical level I have serious disagreements with point #1. Your comments seem to endorse the idea expressed in the article of "collective injury" which is indiscernible from collective guilt. Collective guilt is simply not the way that our justice system has ever worked. It poses significant problems both at the moral and practical level...in fact there is no major religious or moral tradition that endorses collective guilt. I could get long-winded here but I will not--I will simply say that I strongly disagree with the premise.
The second issue I disagree with is the notion that an individual's wealth should make a difference in the fine or punishment they receive. This recent trend started in Finland with speeding tickets and has moved to England now too. In should stay in Europe. In my view it confounds two real and genuine problems that should not be confounded. Income inequality is a problem. Just punishment is a problem. They have nothing to do with each other. Criminal justice should not be a mode of wealth distribution--the long term effects are pernicious, it is easily abused, and it is fundamentally incompatible with any notion of merit. Just punishment begins with the idea that a punishment is in proportion to the /crime/ not the idea that punishment is in proportion to the resources of the /criminal/.
Posted by: Daniel | Apr 26, 2014 12:59:50 PM
Are you against all financial crininal punishments, Daniel, including forfeiture and restitution? Necessarily, these punishments end up having a wealth distribution effect, even if that is neither their goal or how they are designed.
I would especially like to challenge your points even with respect to fines with a focus on another arguably collective crime, namely drunk driving. Would you be comfortable if the punishment for first offense drunk driving was $1000 if nobody was physically harmed and no property damages, $10,000 if any property was damaged, $100,000 if a person was hurt, and $1,000,000 if someone was killed? I am trying to make the fine/punishment proportional to the crime, and I wonder if you think doing it like this does the trick and would be appropriate for a legislature eager to deter DUI and also eager to avoid wasteful incarceration resources on a crime like this.
Posted by: Doug B. | Apr 26, 2014 1:14:55 PM
Daniel effectively brought out points that essentially funnel down to one conclusion: criminal sentencing cannot provide for an efficient mechanism for determining exact compensation. This is what CIVIL courts are for. Such courts are set up to provide damages commensurate with all factors, and include lower jury threshholds of liability than criminal court (typically 3/4 of the jury). Criminal courts determine the punishment and rehabilitation/reintegration components of a sentence.
The only reason the criminal court is involved with restitution with regard to child pornography is that sex offenders represent a different, post-constitutional offender whose punishments can be determined by emotion more than fact. Ironically, registration is a "civil" manner, which should be the court for monetary compensation, but instead is used to mandate a criminally-liable sanction, along with its inevitable residency, technological, and travel restrictions against the offender backed with 3rd-strike-level criminal punishments.
Posted by: Eric Knight | Apr 26, 2014 1:19:20 PM
My objection is grounded in a theory of power, not economics. I believe that the only proper way to determine a just punishment for a crime is to evaluate the nature of the crime in isolation from the characteristics of both the defendant and the victim, an inspiration I take from Matthew 6:3. So it follows that I disagree with all pleas for sympathy from both sides that occur at capital trials but I disagree in more mundane areas as well. For example, my state imposes increasing fines from increasing deltas over the speed limit--that makes sense to me because the faster the speeder the more dangerous the speeder is. What disgusts me is that almost every dollar of those fines are pre-allocated: there is an amount set aside for court computers, an amount set aside for blind education, and amount set aside for workers comp fund etc. None of these things have anything to do with the nature of the crime committed (unless the speeder was a blind disabled worker hauling a court computer in their car).
It is not a coincidence that excessive fine clause appears alongside the ban on cruel and unusual punishments. The goal of the 8A is to limit the government's power to punish and the Founders rightly rejected the "well, it's just money" argument. Although Kennedy did not state it openly, my sense from the references to the 8A in the majority opinion is that they felt that the amount of money awarded to Amy was excessive. A concern that is not new to Kennedy as he is the one that struck down the death penalty for child rapists. There is a current majority on the court that is unwilling to buy into the "but..but...but THE CHILDREN" to justify the most extravagant of government abuses. Any excuse will serve a tyrant and "the children" or "sex crimes" is just the latest excuse.
Therefore I am not opposed to forfeiture or fines in the abstract yet it necessarily follows there has to be some theory as to how the government's power to punish is to be limited. My own concern is that considerations of the characteristics of the defendant or the victim are in fact back door efforts to undo the limitations imposed by the 8A. The Founders were so concerned about prior abuses of the government's ability to punish they devoted an entire amendment to it. We shouldn't palter with that legacy.
Posted by: Daniel | Apr 26, 2014 3:26:39 PM
1) I am going to confess to downloading from Youtube, 1) an Al Qaeda clip of killing an American soldier from a distance, with patriotic music; 2) a clip of a knockout game victim; 3) a Mexican gang member beheading a woman accused of stealing with a kitchen knife.
Each depicts a crime. Should I be fined? Should I owe any money to the estates of the victims?
2) The prohibition of child porn downloading is associated with higher rates of real world child sexual abuse, say 30%. Should a victim of child abuse file a Federal Torts Claim against the government for increasing his chance of being victimized?
3) Obviously, Amy may have been traumatized by the violent sexual abuse by her uncle. That real experience may comprise 90% of the cause of any PTSD symptoms. Judge Cassell is now saying, she was also traumatized by the knowledge that someone else got sexual pleasure from viewing that trauma. Compared to the original trauma, how bad was that traumatic knowledge. If she learned about the viewing from the Federal Victim Notification System, how responsible were they for her foreseeable distress from the knowledge? Should Paroline have filed a cross claim against the Notification System for negligent notification? The Victim Notification System is automated, meaning messages are generated by computer and sent out automatically. If the information is traumatizing, is this negligent computerization?
4) Paroline appears to be a witch hunt via a trivial gotcha of the productive male by feminist lawyers, and their male running dogs. You have one picture of child sex abuse, you owe a $million, and the lawyer ends up with the lion's share.
5) Is the compensation like a tort settlement? Did Judge Cassell properly inform Amy she could not deduct his expenses from the taxable portion of her settlement, and that she could potentially end up owing money to the IRS, greater than any she may have collected? If he failed to do so, shouldn't that lawyer deception make him responsible for her excessive tax liability? Example. She collects $million. It is fully taxable, perhaps up to $500,000. Prior to getting her hands on any money, the lawyer has deducted $400,000 in expenses, then a third of the remaining $600,000 for his contingency pay. That leaves the plaintiff with $400,000 in cash but a $500,000 tax debt.
Here is the tax code:
Posted by: Supremacy Claus | Apr 26, 2014 5:09:48 PM
Crime victims were being photographed in the very act of their victimization by the Germans at death camps. Other Nazi perps get enjoyment looking at the photos of the starved, gassed, dead bodies. The Holocaust Museum has those same photos. Millions of people around the world have those photos. Are all of the owners of the photos criminals? By the logic of Carolyn or Parolyn or however you spell it, yes.
Posted by: Liberty1st | Apr 26, 2014 8:53:41 PM
personally I think the almost 1,000,000 people on the illegal registry and their 2 or 3 million family should pool their money and create an autopay hit list. "x amount for each confirmed kill of a congress critter and x amount for each confirmed kill of a judge as well as x amount for each confirmed kill of the 1,000's of hatefilled assholes who work for the media."
I'd be willing to bet that once less than 5% of the possible federal lvl targets are down. these laws would be done. as those chicken shits fell over themselves repealing them in the hope the attacks stop.
Posted by: rodsmith | Apr 26, 2014 11:50:57 PM
I know you like to have an unmoderated and free-wheeling comments policy. One or more of these comments is treading on dangerous ground. Please start exercising a tiny modicum of managerial discretion. At least as to the potentially criminally actionable garbage passing as opinion.
I'm not even going to bother with my thoughts on the issue raised in this post. You are allowing lunacy to drive away cogent debate.
Posted by: Wayne-O | Apr 27, 2014 12:45:06 AM
The point regarding brutal photos and videos of folks being killed or tortured even if they are teenagers has a point,
By contrast, a non-nude photo of a teenager in a "Suggestive pose" could under certain circumstances be considered child pornography, or "sexting".
While I am not saying that child porn should be legal(note of course "child" can be defined legally in a different way or porn as scalia says he knows it when he sees it), the criminalization of it with its justification and distribution theory that folks who view it or likely to commit the actual offense and need to be locked up for decades and pay lots of money in net worth, while ignoring other violent photos or videos doesn't pass muster.
If there was a video of amy being amputated or held in a nazi torture camp, would advocates want laws treating material like child porn? Obviously one could make the argument that folks won't be sexually attracted to their desires, however there are folks who are masochistic in that sense who could kill children in that fashion, hence the idea that a murder of a child sparks more sex crime laws, and of course islamic jihadist watching a video of a teen getting killed for making of the religion allegedly.
Unfortunately, this debate in unlikely to get much attention in our congress, public, and probably even the courts but it should.
Posted by: alex | Apr 27, 2014 5:28:07 AM
The Supreme Court has protected speech that you deplore in Schenk (1919), and clarified their rule in Brandenburg (1969).
Eugene Volokh considered his blog to be private property, like a diner pparty at your home. He reserved the right to expel anyone, to delete any comment. Again, another lawyer fiction. You cannot have a dinner party at your home if a billion internet users are invited, i.e. open to the world, running profitable advertising. One may have a private forum oipen to seleced participants, but his blog was not one of those.
I did not sue Volokh. If I had, I would claim he ran a public accommodation, and the regulation of speech applied accordingly, not like in a private home.
Although your comment was inappropriate, it was still welcome. Laws against downloading child porn may violate the First Amendment, the same as censorship of speech in a public forum. Free speech is a coin with 2 sides. There is a right to produce speech, the one familiar to most. There is a right to receive speech, one less well known. The downloading of depictions of other crimes as described above may be protected by the Free Speech Clause.
Just a little advice from high school debating. Name calling makes you look cheap and frustrated in the traverse. It is a kind of resignation, like knocking over your King in a hopeless chess position. The facts abandoned the Left 100 years ago. All it has is personal attack. But when it comes to personal attacks, the Left dishes it out, and does a cry baby act if it receives any. I blame the lawyers. All PC is case.
Posted by: Supremacy Claus | Apr 27, 2014 6:08:30 AM
The talk of a hit-list, Wayne-O, does make me very uncomfortable. But I think the expressions of lunacy are a telling indication of the frustration and anger that a lot of criminal laws help produce. That is one, of many, reasons why I do not moderate the comments.
That said, if you believe any comment here or elsewhere is illegal, I will take that comment down immediately. I am not an expert concerning what speech is or is not illegal, so I welcome guidance on this front.
Posted by: Doug B. | Apr 27, 2014 8:02:02 AM
"But I think the expressions of lunacy are a telling indication of the frustration and anger that a lot of criminal laws help produce."
Ironic. Lawyers, after just 1L, a slight amount of pressure and indoctrination, come to believe in mind reading, future forecasting. and that the standard of conduct should be set by a fictitious character. Why fictitious? Because these standards must be objective, of course.
Cuckoo. Cuckoo. Cuckoo. Ding.
This triumvirate of lawyer delusion is just the beginning of a list of hundreds of lawyer fictions, all imposed on the owners of the law, at the point of a gun, devoid of any other outside validation, save threat of government violence. When we say, government, we now mean, a wholly owned subsidiary of the criminal cult enterprise that is the lawyer profession, and that has totally infiltrated the three branches, making 99% of the policy.
One of the biggest fictions is that judges and prosecutors should be immune from tort liability. These incompetents, these careless, tortfeasors allow 90% of serious crime to go unanswered. When they have a guy, there is a high chance they have the wrong guy. Then they induce a false memory in him, and he confesses to a crime he did not do. Idiots.
Tort immunity justifies violence in formal logic if one believes the contra-positive of a true assertion must also be true. (A then B is true. Not B then not A must always be true. Tort liability is a substitute for violence is true. Then it is absolutely true that tort immunity justifies violence.)
Another relevant feminist lawyer fiction is that the downloading of child porn promotes child abuse. The opposite is true. The legalization of child porn has consistently been associated with substantial decreases of actual child sexual abuse, in real life. No mention that the biggest subscriber to child porn, and the biggest sponsor and subsidizer of child porn is, of course, the government itself. Without their vast government subscriptions, child porn production would likely go out of business. No defense lawyer has ever moved for e-discovery of prosecutor computers. As a result of these prosecutions, the number of child porn websites has exploded to 4 million, likely to try to get governments to subscribe.
Ironic. The feminist lawyer and its male running dogs has put the productive male on the hit list, and not a word of questioning from any lawyer. This is the business model of the Inquisition 2.0 being run by the vile feminist lawyer and its male running dogs. The 1.0 version lasted 700 years with its robust business model. It ended when French patriots beheaded or deported 10,000 high church officials during what the lawyer calls The Terror, but was really the ending of the Terror, out of love of their nation and liberty. Now we have courts resembling churches, judges wearing clerical robes, religious oaths, standing up and sitting. All we are missing are white powdered wigs to complete the Halloween party.)
Cuckoo. Cuckoo. Cuckoo. Ding.
Ironic. The purpose of the criminal law is Job One and Job Last for government, safety. Yet, only one lawyer here defended the safety of the public. He is driven out by personal remarks, and the lack of support, and the lack of condemnation of remarks impugning the morality of his family, by frustrated Left wing rent seeking members of the defense bar.
Ironic. It is illegal to threaten specific government officials. Yet, year after dreary year, these government incompetents allow the murder of 15,000. They do nothing about it. This number is dropping because of non legal developments, such as trauma care, dropping blood lead levels, or just neighborhood fashions. The government threatens to put people in a cage if they make a joke in an airport screening line. The government can threaten people. They cannot be threatened. These screenings are the biggest joke, when they miserably fail to detect smuggled weapons in quality testing, but grope buxom blondes in their underwear. They cost us $billions in worthless transfer of tax money to job market rejects.
Posted by: Supremacy Claus | Apr 27, 2014 9:30:52 AM
Mr. Claus: It is amazing to me to see you resort to the SAME TACTICS as the "feminist lawyer" you so routinely criticize. And I specifically mean citing case law that is not on point. Schenck (that's the correct spelling) was about distribution of leaflets urging young men to resist the draft with no reference, even implicit, to violence. Brandenburg was about a Klansman giving a speech in which, at most, a vague and implied call for violence occurred. Here we have a clear advocacy for the systematic murder of public officials. It's different and I know you know it's different.
Posted by: Wayne-O | Apr 27, 2014 11:37:23 AM
I think Prof. Berman pretty clearly cultivates this blog for purposes of media (and to some extent, judicial/academic) influence. He knows reporters, judges, etc, are not likely to even look at the comments, much less read them, and so doesn't spend much time worrying about them.
Posted by: Jay | Apr 27, 2014 11:49:36 AM
(I suspect also that seeing the non-stop nuttiness in the comment section provides a nice smug feeling of superiority for many readers, and perhaps the operator as well. I'm guessing SC is an attorney by day who finds the trolling a nice way to blow off steam.)
Posted by: Jay | Apr 27, 2014 11:55:26 AM
I actually wish, Jay, that the comments were less crazy and more substantive most of the time. But I am very disinclined to play censor and I do not have time to keep track of all the crazy talk while doing everything else I need to do.
Posted by: Doug B. | Apr 27, 2014 1:14:25 PM
This is from real life. I once reported a frustrated defense lawyer who during a trial stood in front of press microphones, and called for a mob to come, and to behead the Federal judge of his case. It was in the papers, across the country.
I know that judges are fair game before and after a trial. What I did not know was that calling for a judge to be killed inside a tribunal was not only not a crime, it was not even a violation of that state's Rules of Conduct. Nothing, zero happened to that lawyer, not even a friendly letter asking for more temperate behavior.
Jay. It is a great source of frustration, embarrassment, and shame. Many people I meet, ask me, are you a lawyer? No one asks me if I am what I really am. I am not a lawyer. I love the lawyer, the rule of law, and I am the savior of the legal profession from the Medieval cult hierarchy now grasping it in its clutches. I am also an owner of the law, as you are. If the public is oppressed, the lawyer is double oppressed, and the regular working judge triply oppressed. You will thank me later when you are making 4 times your current salary, and are held in 10 times the public esteem, because what you do is so productive, beneficial, and plain wonderful.
Getting back to being nuts.
If you can, think about Paroline. A crime is committed, child rape. A depiction of it is sold. Someone buys it years after it took place. Now the buyer must pay the victim. Who is nuts here? The lawyers or the commentators?
OK. I will pay you $10 for pictures if you commit any crime, shoplifting, murder, robbing a liquor store, littering. Could I get you to do it if you did not want to? Now, here is the nutty part, I pay you $millions in government subscriptions to a series of videos depicting crimes. Now could I get you to do it? Say you run out of videos. You know, I will not renew and keep the $millions coming unless fresh ones are produced. Now, could the government get you to commit more crimes to keep the videos and the subscriptions going? Who has the bigger subornation of child sexual abuse, the government officials subscribing or Paroline?
Who is nuts here, the lawyers or the owners of the law commenting?
There is something worse than being nus, believing in supernatural doctrines, and making bone headed decisions. That is called bad faith. The underlying problem of these seemingly nutty decisions is not lawyer insanity. It is lawyer rent seeking. These are designed to make money, and not nutty in any way, once the rent seeking theory is understood. Rent seeking is a synonym for armed robbery, a crime by very slick, intelligent, respectable, seemingly pious middle class people.
Posted by: Supremacy Claus | Apr 27, 2014 3:20:58 PM
Bill invited me over to Crime and Consequences, to bring news from earth to that blog. Kent said, you must change your tone. I said, I couldn't. He did not track me, read my comments, block me, nor delete comments. I was told I was not welcome, and never returned.
That is all it takes to end the comments. Whatever you decide, you have been hearing things from my high school education that you have never heard from any lawyer and that are appellate plea ready. You must also admit that I have been generous with innovative ideas as often for the defense as for the prosecution. And you must admit that their simplicity usually fully rebuts the standard lawyer points. Example, the exoneration rate. While appalling, the error rate is similar to that of any human enterprise, and compensation should be made available to the victims of lawyer carelessness, especially in the death penalty. (I agree with Bill, no one who has been executed could be shown to have been innocent.) The exoneration rate has no validity as an anti-death penalty argument unless one will abolish transportation, medicine, and all other human activities, each killing innocent people by the thousands.
Posted by: Supremacy Claus | Apr 27, 2014 3:31:10 PM
Actually Wayne-o we are will within our legal and constitution rights to threaten gov't agents to get their shit together. Hell the 2nd amendment proves it. That's one of the reasons it was placed in the constitution to begin with. This gov't was considered and experiment that had never been tried before and we didn't know if we would have to remove it if necessary.
as for creating a hit list! so what! I'm just following our gov't. They started it. Last time I looked they get their power from US. Therefore if they can make em! so can we. the police shoot 1,000's every year and kill 100's with no possible legal justification and little or no punishment. Our CIA kidnappes people off the street and lock them up for nonths or years even when they KNOW they have the wrong person with no punishment and the courts refuse to correct them. 3/4ths of the American public legally live in a 4th amendment free zone and don't even realize it and you have a problem with me?
and I'm the nut?
Posted by: rodsmith | Apr 27, 2014 4:02:15 PM
I'm sure you don't agree but as far as I'm concered when a senator passes a law and then announces on national ty that it's probably unconstitution but we'll let the courts sort it out.
As far as I'm concerned that gov't fuckup has just announced to the world that I'm just too damn stupid to live and someone should kill me now!
Posted by: rodsmith | Apr 27, 2014 4:04:14 PM
"But I think the expressions of lunacy are a telling indication of the frustration and anger that a lot of criminal laws help produce."
Such lunacy is counterproductive because it switches the debate from substance to form. This thread is a good example--the first handful of comments were substantive and then the thread was knocked off course into a debate about what is proper debate and has not nor ever is going to recover. My own point of view is that actions speak louder than words and the derailing of this thread was an intentional tactic but those who would rather not have a substantive discussion because doing so would reveal that the actually oppose what they fain to support.
Posted by: Daniel | Apr 27, 2014 6:13:01 PM
SC -- What kind of law do you practice IRL? I'm thinking you're probably in the immigration field; they have a keen sense of absurdity.
Posted by: Jay | Apr 27, 2014 6:37:18 PM
I will give you that one Daniel. the problem is that sooner or later those tired of the idiotic and patently illegal rules and laws and court decisions coming out of our useless gov't will eventually decide it's time to give up on the so-called election process and take a more direct hand in cleaning house. 1,000's of years of history prove this. hell the last few years of "arab summer" also prove it.
as for this
"My own point of view is that actions speak louder than words and the derailing of this thread was an intentional tactic but those who would rather not have a substantive discussion because doing so would reveal that the actually oppose what they fain to support."
the 100's if not 1,000's of retarded laws and court decsions and our do-nothing congress pretty much guarantees of substance will come out of them.
1,000's of lawyers have spent a decade or more trying to slow this criminal stupidity and it just get's farther out into the twilight zone with every new years set of illegal laws.
Posted by: rodsmith | Apr 27, 2014 9:23:47 PM
Daniel: In fairness to me, my first comment was completely about the posting, gonzo, and strange, perhaps, but completely relevant, in an appellate creative way. Each point could be the basis of an appellate debate.
Jay: I just love the lawyer and the rule of law. Not a lawyer. I would be personally destroyed by the hierarchy, perhaps even assassinated were I ever to challenge them at this fundamental level. Imagine taking away $trillion a year from a criminal cult enterprise, a Mafia, then excluding them from all policy positions in the government. The assassination would be stealthy, such as during a false resistance of arrest, but I would be gone.
Posted by: Supremacy Claus | Apr 27, 2014 10:11:16 PM
Wayne-O. The criminal cult enterprise has immunized itself. It is like a Mafia protection racket, with men with guns helping you pay your taxes if your try to refuse.
Is there any moral problem, when the Mafia comes around to local merchants demanding protection money, any moral problem in capturing, torturing, and sending their heads to the Cappo? Is there any room for negotiation for accommodation with the most powerful criminal enterprise in history, now in full control of the three branches of government of our empire class nation, or is there a duty to protect the constitution from their out of control insurrection? Can you think of an alternative to beheadings to end the Inquisition 1.0?
They are the cause of all serious crime, of 9/11, of the destruction of the family, of the siege on all institutions exerting moral authority in competition with the government, of the horrific morbidity of the economy. How much can you take before direct action is needed.
You may reply, elect other officials or run for office. Not a remedy. Officials who are not lawyers have staff who are lawyers and who draft all statutes to the advantage of lawyer rent seeking. There is no legal recourse.
Public pressure about jungle like crime statistics in the 1980's resulted in the mandatory guidelines. They worked, and I have acknowledged them as the greatest lawyer success of the Twentieth Century, a monumental achievement of dropping crime 40% across the board. What happened? Lawyer unemployment. So they had be reversed, with the charge led by ultra-conservative Justice Scalia. There is no difference between the parties when it comes to rent seeking.
No legal recourse, no one to go to, none.
During Stalin's reign, one could make a joke. If you do that in front of a TSA agent, you will get arrested. Not even jokes are allowed.
I have patience. You will let me know when you have had enough.
Naturally, my first comment contained appellate, constitutional problems with Paroline never even broached by the lawyers. You can only call people names in reply, and demand that dissent be silenced as an expression of insanity. I think you can do better.
Posted by: Supremacy Claus | Apr 27, 2014 10:28:03 PM
I agree with your reading of history. The question I ask myself is what am I supposed to do in the meantime? Spit into the wind? It may be that by trying to get the system to behave in a somewhat rational manner I'm only prolonging the death throes of an arteriosclerosic culture. It may be, as Doug B. has asserted, that tampering down the worst of the government's excess only makes it that much less likely that structural reform happens. What I can't forget, however, is that behind every name on a court case is a real human being who suffers and that but for the grace of God go I. So I'm not willing to throw the individual onto the funeral pyre of the collective. I do not simply ask myself what difference it makes to the world whether or not Paroline pays 10K or 50K or 3.4 million--I ask myself what difference it makes to Paroline himself. Justice is not simply an abstract quality--it has a personal dimension and it is this personal dimension that I think many people are all too eager to overlook as they obsess over the big picture.
Posted by: Daniel | Apr 27, 2014 11:29:45 PM
I agree with you Daniel. this is not some time of one mind collection. each and every individual in this country and the world have the same rights and needs. we need to remember that at all times. We have no right to strip anyone else of their rights or needs to boost ours. I agree you can't spit in the wind. you have to do what is right for the client in front of you. But at the same time you can't reward criminal actions on the part of the gov't. If they are cheating call them on it. if they then try and punish your client call them on that as well. we have the same problem with law enforcement today. Thanks for decades of "yes sir master" they pretty much expect it from anyone. Each time some one confronted with law enforcement trying to blow smoke up their ass with some illegal lieing bullshit that just accepts it makes it that much harder for the next person to look them in the face and say "just where did you pull that bit of lieing bullshit from?"
that especially goes for gov't. Sorry it was put here to serve us. Not the other way around. I have to laugh about lawyers and judges and politicians who talk about soverign imunity and state secrets doct. Sorry Your an employee. My employee you don't get immunity from me and you sure as hell don't get the right to keep something done in MY name secret from ME! Plus as my employee I reserve the right to remove you if you fail to do the job I set for you any way I have to. I deal with employes daily. I've had to fire 1,000's over the years. Most of them we have a talk and everything is nice and civilized. Others have had to use security or law enforcement to drag them off the client's property by their hair. needless to say if one was stupid enough to pull a weapon they would have been dropped. Not because I wanted to or liked it. But because they don't have the right to threaten mine or my client's other employees or myself.
Posted by: rodsmith | Apr 28, 2014 2:15:45 AM
While this proposal sounds reasonable, there are numerous problems with a DOJ led fine-based fund:
1. The VAWA law in question was passed in 1994. It wasn't until 2008 that anyone at DOJ or anywhere else bothered to request restitution for victims like Amy. That's why crime victims need representation in these cases. Criminals are guaranteed it, the government has it, while most crime victims do not. In the absence of any push by victims for restitution, the government has no incentive to request restitution, a fine, or anything else. Base on my experience with thousands of child pornography cases, DOJ rarely IF EVER requests even the statutory fine (and even fewer judges award it). This is despite the fact that year after year, the Attorney General's guidelines for federal prosecutors make victim restitution and victim rights a "high" priority for AUSAs in the field. They can request significant fines in every single child pornography case now. The AG wants them to do it. And it simply does not happen. I don't see how a fund or regulations are going to change that.
2. If the fund is such a good idea, why tie it to recoveries in individual cases (see point #1 above). There are a handful of victims now. If we really want to fully support these vulnerable victims, let's do what we do for foster children, the disabled, and the elderly; create a federal fund to support these child victims. If the government wants to recoup the money spent on this "fund," then they will have a good incentive--and probably the only real incentive--to seek fines in the first place. Let them take the "fund" money from the DOJ budget and there will be a clear motivation, without the need for one further directive, to recoup that money by any means possible, no regs required.
3. If a fund is created, victims need the ability to opt-in or opt-out. If they opt-out, then they need a workable system of restitution which only Congress can provide. DOJ had its chance (see #1 above) and they failed for almost 15 years. Democrat or Republican, a big government solution is not always the answer.
4. Finally there are serious constitutional problems with a fund. Given the current issues with restitution which are obvious from the Court's decision in Paroline, what will happen when one defendant is paying for the crimes of another defendant for victims he did not even possess or desire? I foresee years if not decades of further litigation based on Hughey and the Eighth Amendment and Due Process for a fund-based system supported by restitution-like "fines" in wide-ranging cases.
Once again if a fund is such a good idea, let's do what we do for other powerful constituencies. Whether it's corporate tax breaks, Social Security, or the military budget, if it's worth doing let's do it right. Why make child victims get in line behind everyone else for a DOJ dependent handout?
Posted by: JamesMarshLaw | Apr 28, 2014 9:44:01 PM
I am surprised to hear that DOJ had the power all along to request restitution for the victims but did not. Although I assume it was due to a lack of resources, which is understandable given how many of these cases there are, it leaves me skeptical that a government administered fund would work and/or effectively serve the best interests of the victims.
Posted by: Laura Bernstein | Apr 29, 2014 12:26:28 AM
In the first place, many of these defendents or their families will never have the means or resources to pay restitutions in these sorry cases and secondly why should they when they had no direct physical involvement in the attacks. Also take into account that many of these files have been circulating online for decades with no effort by the feds to shut down the websites promoting them or even prosecuting the many foreign and domestic sites involved in the mass distribution of this material. A common belief is that many if not most of these continuing prosecutions entail downloading and viewing offenses. Why is there also the perpetuation of the original crime by repeatedly re-victimizing the victims through the feds continual notification whenever new cases are filed. Why aren't or weren't the original perpetrators being punished monitarily originally? No amount of money will ever erase the mental damages that have been done to these victims while the continual reminders by the feds that yet another individual has downloaded their files continues and little appears to be done to reduce or eliminate access to these files in the first place.
Posted by: Why | Apr 29, 2014 6:14:35 PM