Sixth Circuit weighs in with instructions on restitution sentencing in child porn cases

A helpful reader alerted me to a notable ruling by a Sixth Circuit panel today in US v. Gamble, No. 11-5394 (6th Cir. Feb 27, 2013) (available here).  Here is how the majority opinion gets started:

In unrelated child pornography convictions, both James Gamble and Shawn Crawford were ordered by their respective district courts to pay over $1,000,000 in restitution to “Vicky,” the pseudonym of one of the individuals depicted in the images they possessed or received.  Restitution was ordered jointly and severally under 18 U.S.C. § 2259, which makes restitution mandatory for “the full amount of the victim’s losses” in child exploitation cases.  Because the district courts did not require a showing of proximate cause between the losses and the defendants’ offenses, and this circuit’s case law requires such a showing, the cases must be remanded so that this analysis can take place. On remand, moreover, the district court must reconsider the extent to which the defendants must pay restitution where they share responsibility for Vicky’s injuries with hundreds of other child pornography viewers.  Finally, while Gamble additionally appeals his within-Guidelines prison sentence, it is substantively reasonable.

Judge Kethledge adds a brief and very interesting sepearate opinion which starts and ends this way:

I join all but part II.B of the Court’s thought ful opinion.  I do not join that part because I would direct the district court to make a more flexible and open-ended determination of each defendant’s share of responsibility for Vicky’s losses....

In determining the amount of a restitution award under § 2259, the courts can only do their best.  It seems to me that a more flexible inquiry, focused on moral fault, and using all the evidentiary tools at the c ourt’s disposal, is the way to accomplish that end.

As I have stressed before, it is only a matter of time before the Supreme Court has to take up these issues, and this Sixth Circuit opinion provides the Justices with additional thoughtful reading for when they do.