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February 21, 2014

SCOTUS permits additional briefing on CP restitution issues in light of Burrage

The Supreme Court issued a notable two-sentence order today in Paroline v. US, the pending case on child porn restitution sentences.  Here is the text of the order:

The motion of respondent Amy Unknown for leave to file a supplemental brief after argument is granted.  The other parties may file supplemental briefs, not to exceed 3,000 words each, addressing the effect of our decision in Burrage v. United States, 571 U. S. ___ (2014), on this case, on or before Friday, March 7, 2014.

Lyle Denniston over SCOTUSblog has an extended discussion of this intriguing new development, which includes these passages:

The Court, it appears, did not stir up this new issue on its own.  The day after the Burrage decision had been issued, counsel for Doyle Randall Paroline sent a letter to the Court suggesting that this ruling should apply to his client’s case.  The new “Amy Unknown” brief came in response to that, and argued that there were fundamental differences involved.

Two different laws are at issue in the two cases, but the Court’s new action seemed to suggest that there may be some overlap in how to interpret them....

In a letter to the Court Clerk on January 29, Houston attorney Stanley G. Schneider noted the new Burrage ruling, and said he believed it “should apply to the arguments made on behalf of Mr. Paroline.”  The letter offered to submit a brief on the point.

In the supplemental brief, filed on February 11, lawyers for “Amy Unknown” disputed that suggestion, saying that the Court was obliged to interpret a criminal law like the heroin sentence enhancement law in a strict way, but that there is a long tradition of interpreting remedies for torts (legal wrongs) more expansively.  In particular, the new brief said, there is strong authority for the concept of assessing the full amount of damages for a tort to those who had contributed to the harms done.

The supplemental filing accepted by the Supreme Court today from lawyers for “Amy Unknown” is available at this link.

A few (of many) prior posts on Paroline and child porn restitution issues:

February 21, 2014 at 04:45 PM | Permalink


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"The day after the Burrage decision had been issued, counsel for Doyle Randall Paroline sent a letter to the Court suggesting that this ruling should apply to his client’s case."


Huh. I hope the lawyers for Paroline can up with this idea on their own and not has a result of the discussion on this blog.

Posted by: Daniel | Feb 21, 2014 8:59:10 PM

I'm pretty sure everyone that saw the Burrage decision knew that it had serious ramifications for Mr. Cassell's argument in Paroline.

There seem to be very serious causation issues in Paroline regardless. The government's system of notification is the step that induces the "distress". I think another entity other than the Supremes need to figure out a LONG TERM workable solution, not some feel-good "everyone owes 3 million" political response.

Posted by: Curious | Feb 21, 2014 10:10:35 PM

@curious. I was needling Doug B. He has taken a strong position in favor of Amy and his silence after Burrage has been curious.

My own opinion is that Amy's supplemental brief is dangerous and it speaks directly to the issue I raised with Res Ispa a few threads down. Amy argues "the fact that the American Law Institute declined to recognize a contributing cause approach in the Model Penal Code while including one in its Restatement of Torts reflects the longstanding principle that criminal punishment focuses on the culpability of defendants while tort law focuses on the need to compensate victims." This is disingenuous because it conflates the state as civil actor with the state as police actor. At least traditionally, tort law is mostly dominated by private party vs private party disputes, not public vs private party. While it is true that the statue is designed to compensate victims it is equally true that this compensation is directly tied to the criminal code. Indeed, the statue at issue is under Title 18: Crimes and Criminal Procedure. So why would a causation requirement that was primarily designed to address the needs of private parties be lifted wholesale into the criminal code?

My own view is that Amy's position amounts to vapid word play. She doesn't like the results that the criminal code gives her so she tries to verbally wiggle out of it by relabeling it "civil". This wouldn't be so remarkable except for the fact it is becoming quite common. The state short circuits the criminal protections offered Americans by the Constitution by simply relabeling it. This relabeling is justified by the argument that one punishment involves "only money" while the other involves a more far-reaching "liberty". Frankly, I am not swept away with that distinction in the modern world. Perhaps it made some sense two hundred years ago when a person could take their gun and live off the wilderness. It's quite difficult to live without money today; there is a real sense in which money just is liberty. Although I hate the decision for other reasons, even Citizen United seems to accept this as true. In my own view one case that has not been talked about in this regard is Southern Union. SCOTUS held quite distinctly that a criminal fine is just the same as a criminal sentence when it comes to a fact needing to be found by a jury. If money=sentence for that purpose why would money!=sentence for Amy's purpose? Because we give it a different label? Nonsense.

Posted by: Daniel | Feb 22, 2014 11:02:26 PM

it goes even farther back than that. right back to the first group of total fuckups on the USSC come up with the so-called "civil" law bullshit in the first place and suddenly decided it was ok to toss expost in "civil" law.

I consider the whole group a bunch of traitors to their oath of office and liable for summary execution by any American.

Posted by: rodsmith | Feb 23, 2014 4:45:05 AM

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