Ninth Circuit essentially demands Congress amend restitution law to allow victims to recover from child porn possessor

As first noted in this post, yesterday a Ninth Circuit panel issue a very important ruling US v. Kennedy, No. 10-30065 (9th Cir. July 11, 2011) (available here), which vacated a restitution sentence imposed on a child porn possessor based on the conclusion that "the government failed to carry its burden of proving that Kennedy’s offense conduct proximately caused the losses incurred by the victims." Regular readers know that this issue has already divided district and circuit courts, and all should find notable these closing paragraphs from the Kennedy opinion:

[I]dentifying a method for imposing restitution on defendants convicted of possession, receipt, or transportation offenses is not easy.  The underlying problem is the structure established by § 2259: it is a poor fit for these types of offenses.  While direct evidence of a proximate loss, such as evidence that “after receiving notification of the [d]efendant’s offense, the victim had to attend any additional therapy sessions [or] miss any days of work,” Church, 701 F. Supp. 2d at 833, would be sufficient, it is likely to be a rare case where the government can directly link one defendant’s viewing of an image to a particular cost incurred by the victim.  While we do not rule out the possibility that the government could devise a formula by which a victim’s aggregate losses could be reasonably divided (for example, by developing a reasonable estimate of the number of defendants that will be prosecuted for similar offenses over the victim’s lifetime, and dividing the total loss by that amount), we suspect that § 2259’s proximate cause and reasonable calculation requirements will continue to present serious obstacles for victims seeking restitution in these sorts of cases.  Nevertheless, the responsibility lies with Congress, not the courts, to develop a scheme to ensure that defendants such as Kennedy are held liable for the harms they cause through their participation in the market for child pornography.  In the future, Congress may decide to reconsider whether § 2259 is the best system for compensating the victims of child pornography offenses, or whether statutory damages of a fixed amount per image or payments into a general fund for victims would achieve its policy goals more effectively.

Until Congress makes such a change, we remain bound by the language of the statute and our precedent. Because the district court’s restitution order directed Kennedy to pay for losses that the government did not prove were proximately caused by his offense, the order was unlawful under § 2259 and must be vacated.  On this issue, we remand to the district court for proceedings consistent with this opinion.  In all other respects, Kennedy’s conviction and sentence are affirmed.

In other words, the Ninth Circuit panel in Kennedy indicates it will be virtually impossible, in light of existing federal restitution law, for prosecutors to meet the burden of proving that an individual possessor of child porn proximately caused any of the losses claimed by a child porn victim.  Thus, as the title of my post suggests, the Kennedy ruling essentially demands that Congress change existing federal restitution law if it wishes for these victims to be able to recover from possessors of their pictures.

I suspect that some advocates for broad recovery of restitution by victims in the sentencing process, especially in this unique and uniquely emotional setting, will be trouble by the Ninth Circuit panel's work in Kennedy.  But I also suspect that fans of judicial restraint, as well as anyone who believe these sorts of victim compensation issues ought to be resolved in civil tort suits rather than in a criminal sentencing proceeding, will find a lot to like in the Kennedy conclusion.

Some related recent federal child porn restitution posts:

• Eleventh Circuit publishes (first?) circuit opinion affirming restitution in sentencing of child porn downloader
• Fifth Circuit rules in child porn case that no proximate causation needed to get restitution under CVRA
• Fifth Circuit panel questions another panel's recent ruling on child porn restitution sentencing
• DC Circuit weighs in on host of challenging child porn restitution issues
• Restitution terms debated in another federal child porn downloading sentencing
• Another significant federal child porn restitution decision from NDNY district court
• Effective new opinion discussing restitution in federal child porn possession cases
• Another thoughtful and notable district court opinion on restitution in child porn sentencing
• Federal judge imposes large restitution punishment for downloading child porn
• Federal sentence for receiving child porn includes forfeiture of home
• "Prosecutors seek nearly $200k for child porn victim"
•  Notable report on latest developments in federal restitution awards in child porn downloading cases
• New student note on restitution sentences for child porn downloaders