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From the BLT: The Blog of LegalTimes, a recent post about the Marsh Law Firm's continued efforts on behalf of child pornography victims in the long-running Monzel case:

The thorny question of how to calculate restitution to victims of child pornography came back before the U.S. Court of Appeals for the D.C. Circuit last week, with the U.S. Department of Justice defending a proposed formula.

Friday's arguments marked the second time the court considered the case of Michael Monzel. Monzel pleaded guilty to one count each of distribution and possession of child pornography. A trial judge ordered Monzel to pay $5,000 to a victim known by the pseudonym "Amy," but on remand from the D.C. Circuit reduced the award to zero, finding the government didn't produce evidence on how much of Amy's losses he caused.

The government appealed, arguing U.S. District Judge Gladys Kessler was wrong to reduce the award and that its proposed formula - dividing a victim's total losses by the number of individuals found criminally responsible and then adjusting based on certain factors - represented a fair solution. Monzel's lawyer, Federal Public Defender A.J. Kramer, said the formula was arbitrary and that Kessler was right to reduce the award after the government presented no evidence linking his client to specific losses.

Courts across the country have struggled to find a consistent way to calculate damages in child pornography cases. As lawyers on both sides noted, there are often an unpredictable number of defendants, especially if the images are distributed online, and it can be difficult to know the extent an individual defendant who viewed or possessed an image was responsible for harming the victim.

To find out what happened at the D.C. Circuit, read the rest of this post at the BLT.

From FindLaw, a post about the Marsh Law Firm's latest restitution case:

You'd have to imagine, at some point, that either Congress (ha!) or the Supreme Court will step in and clear up the confusion surrounding restitution for those depicted in child pornography, as well as the issue of joint and several liability of the present day possessors of the images. Though they've denied certiorari in Amy and Vicky cases before, the flood of circuit court confusion and circuit splintering continues.

Last September, the ABA Journal wrote an exhaustive feature on Amy and Vicky, the two victims who have had cases appear in nearly every federal Circuit Court of Appeals in the nation. In fact, they've had two opinions released regarding their restitution this week, including a writ of mandamus in the Ninth Circuit.

…

This isn't the first time Amy and Vicky have reached the Ninth Circuit. In 2011, a Ninth Circuit panel in United States v. Kennedy vacated a restitution award in Amy and Vicky's favor due to questions about proximate causation. The pair asked the Ninth Circuit to reconsider last year, after the Fifth Circuit came to a different conclusion. The panel, however, is bound by precedent.

Earlier this year, the Ninth Circuit kicked an Amy and Vicky case back to the district court to reexamine the issue of restitution, after finding that, contrary to the lower court's denial, petitioners had "provided sufficient evidence to establish a causal connection between defendant's offense and petitioners' losses."

In this week's opinion, Amy and Vicky appealed that lower court's restitution order again, this time arguing that joint and several liability for the entirety of the girls' damages was appropriate, rather than individual liability for a portion of the damages.

To find out how the court ruled, read the entire post here on Findlaw's Ninth Circuit News and Information Blog.

Today, James R. Marsh of the Marsh Law Firm and Paul G. Cassell of the University of Utah College of Law Appellate Legal Clinic, filed a brief in the United States Supreme Court in their latest effort to convince the Court to consider the critical issue of criminal restitution for victims of child pornography.

The case, Doyle Randall Paroline v. Amy Unknown, arises out of a long-fought extensively litigated restitution action which started almost four years ago before Judge Leonard Davis in the Eastern District of Texas Tyler Division.

In January, the defendant filed a Petition for a Writ of Certiorari in the Supreme Court seeking review of last year's landmark Fifth Circuit en banc decision which significantly expanded the rights of child pornography victims to receive criminal restitution.

There are two questions presented in this Supreme Court appeal:

• Congress enacted the Mandatory Restitution for Sexual Exploitation of Children Act of 1994, 18 U.S.C. §2259, to benefit victims of federal child pornography crimes, including victims like respondent-Amicus Amy, whose child sex abuse images are traded and collected over the internet by countless individuals worldwide. The statute provides in part that a court “shall order restitution” for a victim of any child pornography crime in “the full amount of the victim’s losses.” Congress defined these losses as including psychological counseling, lost income, attorneys’ fees, child care expenses, as well as “any other losses suffered by the victim as a proximate result of the offense.” The question presented is whether the Mandatory Restitution for Sexual Exploitation of Children Statute, 18 U.S.C. §2259, excuses a defendant from paying restitution for the enumerated loss categories unless there is proof that the victim’s losses were the proximate result of an individual defendant’s child pornography crime.

• The Excessive Fines Clause of the Eighth Amendment provides that “excessive fines [shall not be] imposed.” U.S. Const., Amdt. VIII. This Court has applied the Excessive Fines Clause in United States v. Bajakajian, holding that “[f]orfeitures—payments in kind—are…‘fines’ if they constitute punishment for an offense.” 524 U.S. 321, 328 (1998). In applying Bajakajian to crime victim restitution, the United States Courts of Appeals are divided on whether restitution awards are similarly punishment for an offense and thus subject to the limitations of the Excessive Fines Clause. The second question presented is whether a district order directing a defendant to make restitution payments to the victim of his crime is punishment subject to the limitations of the Excessive Fines Clause, or is a remedial payment not restricted by the Clause.

Amy's attorneys are asking the high court to grant the defendant's petition for cert because they want the Court to consider the restitution issue. Even though they disagree with the defendant's opposition to restitution, they believe this is the best case yet for Supreme Court review. It is one of the few cases where the victim, Amy, will be allowed to argue in support of restitution not only for herself, but for other victims of child pornography.

Marsh and Cassell argue that

Congress passed a broad restitution statute for child pornography victims like Amy. The Mandatory Restitution for Sexual Exploitation of Children Act of 1994, 18 U.S.C. §2259, requires that when sentencing a defendant for a child pornography crime, the district court must direct the defendant to pay the victim the “full amount of the victim’s losses.” The statute defines losses as including expenses for psychological counseling, lost income, child care expenses, and attorneys’ fees. 18 U.S.C. §2259(b)(3)(A)-(E). It also authorizes restitution for “any other losses suffered by the victim as a proximate result of the offense.” 18 U.S.C. §2259(b)(3)(F).

A deep, acknowledged circuit split has developed on how to interpret this commonly-used restitution statute. In the last three years, eleven circuits have ruled on this recurring issue. Applying varying rationales, ten circuits have interpreted the “proximate result” limitation as implicitly applying not only to the last item in the list (the “any other losses”) but also to all the other enumerated losses. Under this interpretation of the statute, in order to obtain restitution for the cost (for example) of psychological counseling, Amy and other victims must show that the counseling was the “proximate result” of an individual defendant’s crime. As a practical matter, this showing is quite difficult to make given that thousands of defendants are currently being prosecuted for possessing, transporting, and distributing Amy’s child sex abuse images with thousands of more to come in the foreseeable future.

In the decision below, however, the Fifth Circuit en banc reached a different interpretation of the statute. Specifically rejecting the view of the other circuits, the Fifth Circuit held, 10 to 5, that Congress intended to provide broad restitution to victims of federal child sex offenses without requiring proof that losses proximately resulted from an individual defendant’s crime. This lengthy and well-reasoned decision is faithful to the text of the statute, which contains a proximate result requirement only in subsection (F) and not in subsections (A) through (E). The Fifth Circuit also held that this interpretation does not implicate Eighth Amendment excessive punishment concerns since restitution is not punishment but a remedial measure to compensate crime victims.

The Government will file its brief by May 8, 2013. The Court is expected to review the case during the summer and will likely issue a decision on whether to accept it for full briefing and oral argument in September, 2013.

Further information on this landmark case

Supreme Court Docket for this case

Landmark Children's Rights Case Now Before the Fifth Circuit

Texas inmate is part of growing child porn trend that has ruined lives

Case Highlights Problems for Child-Porn Victims Seeking Restitution

Texas judge refuses bid to make child porn users pay damages

Attorney For Victim Asks For $3.4 Million

Also read

The Price of a Stolen Childhood

Should Those Who Download Child Pornography Pay the Victims?

Response to a Petition for Certiorari by Marsh Law Firm PLLC

Earlier this month, in an uninspired decision in United States v. Benoit, the Tenth Circuit held that "showing only that defendant participated in the audience of persons who viewed the images of the victim…may be sufficient to establish that defendant's actions were one cause of the generalized harm victims suffered due to the circulation of their images on the internet, but it is not sufficient to show that they were a proximate cause of any particular losses."

In other words, "generalized harm" = no foul and no restitution for victims of child pornography.

According to the Tenth Circuit:

Courts have struggled with articulating a precise standard of proximate cause in the restitution context under § 2259. Although this court has not specified the nature of the proximate cause requirement in § 2259, several other circuits have determined that the government must show the victim's losses were proximately caused by the particular defendant in question and that a showing of causation more generally is insufficient.

Although the Court "acknowledged" the Fifth Circuit's groundbreaking en banc decision in In re Amy Unknown, it was instead "persuaded by the majority of our sibling circuits."

The Court held that "in determining the scope of restitution to be awarded to a child pornography victim, § 2259 requires a showing that the victim's losses are proximately caused by the defendant's offense. Some circuits have relied on the “series-qualifier” canon to conclude that the proximate cause requirement applies to each of the subsections included in § 2259(b)(3)."

The Court concluded that "because proximate cause is such a widely accepted principle, we will not conclude that Congress intended to abrogate it in drafting § 2259 without good reason. … We agree with the majority of courts that Congress did not intend to create a system of strict liability under § 2259."

The only remaining Circuit which has not considered restitution for victims of child pornography possession is the Third Circuit covering Pennsylvania, New Jersey and Delaware. The Marsh Law Firm, which helped write the brief in this case, is readying a case for appeal in the Third Circuit. In the meantime, three petitions for a writ of certiorari, also authored by the Marsh Law Firm, remain pending in the United States Supreme Court.

In a commentary in Politico, John Echohawk, Executive Director, Native American Rights Fund; Jacqueline Pata, Executive Director, National Congress of American Indians; and Terry Cross, Executive Director, National Indian Child Welfare Association, discuss today's oral argument in the Supreme Court case Adoptive Couple v. Baby Girl:

All across this country - but especially in states that are home to multiple Native American Tribes - unethical adoption attorneys are purposely circumventing the federal law that is meant to protect Native American children. Even worse are the continuing attempts by some adoption lawyers to take advantage of active duty service members in the process of being deployed to combat, or in active deployments.

Today's lead story on NPR was also about this case: Adoption Case Brings Rare Family Law Dispute To High Court.

Read the Politico commentary here and listen to the NPR story here.

Oral Argument: April 16, 2013

Court Below: South Carolina Supreme Court

Petitioners, Adoptive Couple, decided to adopt a baby girl from a single mother. After Baby Girl's birth, Adoptive Couple began the official adoption process and Birth Father, a member of the Cherokee Nation, signed a form relinquishing his rights to Baby Girl. Later, however, Birth Father claimed that he did not intend to relinquish his rights and sought to invoke the Indian Child Welfare Act ("ICWA") because Baby Girl is of Indian heritage.

Both the Charleston County Family Court and the Supreme Court of South Carolina held that Birth Father should have custody of Baby Girl.

Adoptive Couple argues that Birth Father does not qualify as a “parent” under the ICWA and, thus, does not have parental rights to stop Baby Girl’s adoption. Furthermore, Adoptive Couple asserts that given the intent of the ICWA and the fact that Baby Girl has no parental relationship to Birth Father or other ties to the Cherokee Nation, the ICWA cannot be applied to oppose her adoption.

Respondents Birth Father and the Cherokee Nation claim that Birth Father does meet the “parent” definition of ICWA because he has proven his biological link to Baby Girl and also acknowledged her as his child. The Supreme Court's decision in this case will have an impact on the adoption process and system for children of Indian heritage, their biological parents, and prospective adoptive parents.

QUESTIONS PRESENTED:

Whether a non-custodial parent can invoke ICWA to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law.

Whether ICWA defines "parent" in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.

Read the entire case preview at the Legal Information Institute here.