Yet another effective review of the child porn restitution challenges facing SCOTUS

I have already blogged some previews of the fascinating Supreme Court case of Paroline v. United States even though oral argument is still six weeks away because the issues strike me as so interesting and dynamic.  (The parties' main briefs and now lots of amicus briefs are now available via SCOTUSblog on this Paroline case page.)  And I suspect we are seeing other notable coverage of the case already because lots of others are also intrigued by the issues and arguments now before the Justices in Paroline.  The latest example comes via Emily Bazelon here at Slate, and it is headlined "Paying Amy: Doyle Paroline owned two pornographic pictures of an 8-year-old girl. How much should he have to pay?" Here are a few excerpts (with cites to some of the filed briefs):

In January, the Supreme Court will hear the appeal of Doyle Randall Paroline, who was caught with two pictures of Amy among 280 illegal images and was found liable by the U.S. Court of Appeals for the 5th Circuit for the full amount of the restitution Amy, who is now 24, has claimed. The 5th Circuit said it was up to Paroline — not Amy — to find the other men who could also be on the hook for restitution and go after them for contributions. The legal theory is called joint and several liability. It’s the way courts deal with pollution cases in which a bunch of defendants all dump toxic waste into a single lake. A plaintiff sues one wealthy company for all the damages, and then that defendant has to sue other companies to share the costs.

Is this how Congress intended victims to recover from sex offenders when it passed [the Violence Against Women Act] in 1994?...

Of the eight appeals courts that have heard challenges by men like Paroline, only the 5^th Circuit agreed entirely with Amy’s theory of recovery.  The Department of Justice also disagrees with a key to it, saying that joint and several liability doesn’t apply in these cases.  But a bipartisan group of U.S. Senators have filed a brief before the Supreme Court arguing that Congress wanted to give Amy an easy path to restitution. VAWA could “hardly be clearer,” say the senators (roll call: Orrin Hatch of Utah, Dianne Feinstein of California, Charles Grassley of Iowa, Edward Markey of Massachusetts, John McCain of Arizona, Patty Murray of Washington, and Charles Schumer of New York)....

Five appeals courts have said they doubted that victims like Amy can win more than nominal restitution.  Two others let her keep awards of only $10,000 or less. She has been able to collect larger amounts only from men who have agreed to settle or waived their right to appeal.  The senators, though, say that all these courts got it wrong and the 5^th Circuit got it right.  They quote Vice President Joe Biden, chief architect of the VAWA, who called it “the most victim-friendly bill [the Senate] ever passed.”  And they provide an important piece of history about how VAWA was drafted....

Here’s the clearest way to think about how and why Amy and other victims like her should win restitution.  Their trauma can’t be neatly parceled out among the individual men convicted for possessing their pictures.  But the harm is crystal clear in the aggregate.  And so Paroline and other defendants shouldn’t be relieved of their obligation to pay “simply because Amy would continue to suffer harm if there were one less child-pornography consumer in the world,” as the Department of Justice puts it. This makes sense to me: You can’t let each viewer off the hook because he is merely one small part of the whole.

How much does each viewer who is convicted have to pay?  The Department of Justice argues — vaguely and without any basis I can see in VAWA — that each defendant should pay restitution in an amount greater than zero but less than the whole.  Courts should use their discretion to pick some place in the middle, the government says.  It rejects the idea of joint and several liability as “practically unworkable” and “unduly harsh.”

If Paroline had to pay millions of dollars for his two pictures of Amy, then yes, that would be unfair.  But that’s not how joint and several liability works. It works like this: Other victims following in Amy’s footsteps would target the rich child-pornography defendants.  Then it would be up to those men to find the others who are also legally responsible.  This would allow many more victims to recover than the alternative: The victims have to sue the defendants they can find one by one, while courts award restitution in what would probably be relatively small amounts.  If the Justice Department is really worried about fairness, it could create a compensation fund defendants could pay into for the benefit of more victims.

Money can make a huge difference for victims of sexual abuse.  For Amy and Nicole, it has meant access to counseling and a safety net when they have struggled with school and work, as they both have at times.  Restitution makes far more sense than the enormously long prison sentences men often serve for collecting child pornography. Congress was right to see the value of restitution.  The Supreme Court should too.  And then lawmakers and judges should also recognize that the prison terms for possession of child pornography have become too harsh.

A few prior posts on Paroline:

• SCOTUS grants cert on challenging child porn restitution issues that have deeply split lower courts
• Gearing up for Paroline with a short "Child Pornography Restitution Update"
• Another preview of Paroline via the New York Times