Effective NY Times coverage of child porn restitution debate

Regular readers know that one issue (of many) roiling the federal courts is whether and how to order restitution as part of the punishment in child porn downloading cases.  This new piece by John Schwartz in the New York Times, which is headlined "Pornography, and an Issue of Restitution," covers this issue effectively. Here are excerpts:

When Amy was a little girl, her uncle made her famous in the worst way: as a star in the netherworld of child pornography.  Photographs and videos known as “the Misty series” depicting her abuse have circulated on the Internet for more than 10 years, and often turn up in the collections of those arrested for possession of illegal images.

Now, with the help of an inventive lawyer, the young woman known as Amy — her real name has been withheld in court to prevent harassment — is fighting back.  She is demanding that everyone convicted of possessing even a single Misty image pay her damages until her total claim of $3.4 million has been met....

Amy’s uncle is now in prison, but she is regularly reminded of his abuse whenever the government notifies her that her photos have turned up in yet another prosecution. More than 800 of the notices, mandated by the Crime Victims Rights Act and sent out by the federal victim notification system, have arrived at Amy’s home since 2005.

Those notices disturb Amy when they arrive, but Mr. Marsh, looking at the same pieces of paper, saw an opportunity: he could intervene in the federal prosecutions and demand restitution.  He had Amy write a victim-impact statement and hired a psychologist to evaluate her.  Economists developed a tally of damages that included counseling, diminished wages and lawyer fees.  The total came to $3,367,854.

Mr. Marsh contends that every defendant should be ordered to pay the full amount, under the doctrine of joint and several liability.  According to that doctrine, the recipient would stop collecting money once the full damages are paid, and those held responsible for the amount could then sue others who are found culpable for contributions.  But the doctrine, which developed in civil law, does not apply as easily in criminal law, especially with an indeterminate population of defendants.

Amy’s first restitution award came in February in the Connecticut case; it involved Alan Hesketh, a British executive at the pharmaceutical giant Pfizer, who paid $130,000.  Since then, Mr. Marsh has automated the process and e-mailed Amy’s filings to United States Attorneys in 350 cases.  “I’m able to leverage the power of the Internet to get restitution for a victim of the Internet,” he said.

Mr. Marsh has, in effect, expanded his small New York law firm by hundreds of federal prosecutors. Some of them decline to file for restitution — a judge in Minnesota ordered prosecutors to explain why — but many have.  Judges’ reactions have varied, with some declining to order restitution, including one in Texas and another in Maine, usually saying that the link between possession and the harm done is too tenuous to reach the level of “proximate harm” generally required under the law for restitution.

Yet in two Florida cases, judges have ordered defendants to pay nearly the full amount requested and even more.  Many judges who have considered the issues award a few thousand dollars.  Even though many of the defendants have no way to pay even the smallest fine, Mr. Marsh’s efforts in the first year have earned $170,000 for Amy. “This is a lawyer’s dream,” he said.

The federal government has struggled with how to best approach the wave of new cases, and those to come. Another victim, known as Vicky, has begun making similar claims in court, and still more victims could come forward....

A memorandum last summer from a lawyer in the Administrative Office of the Courts, the federal agency that runs the judicial branch, stated that the law did not support restitution for “mere possession.”  But Lanny A. Breuer, the assistant attorney general for the criminal division at the Justice Department, issued a letter in October stating “we do not agree that restitution is not available to victims of the possession of child pornography as a matter of law.”

Mr. Breuer urged judges not to let “practical and administrative challenges” to the restitution issue “drive a policy position that directly or indirectly suggests that possession of child pornography is a victimless crime.”

Some related prior federal child porn prosecution and sentencing posts:

• Can downloading of child porn be blamed on post-traumatic stress disorder?
• "Federal judges argue for reduced sentences for child-porn convicts"
• Thorough and thoughtful district court defense of federal child porn guidelines
• Effective local reporting on realities and debates surrounding federal sentencing guidelines for child porn
• "Prosecutors seek nearly $200k for child porn victim"
• Effective new opinion discussing restitution in federal child porn possession cases
• Another thoughtful and notable district court opinion on restitution in child porn sentencing
• The latest (beneficial?) litigation front in child porn downloading battles
• Federal sentence for receiving child porn includes forfeiture of home
• Noting the latest data showing reduced (but disparate) federal sentences for child porn downloaders