Recently in Restitution Category

Okay, so maybe sexually exploited children don't get you activated. I'll admit it's an unpleasant niche most people would rather not think about. And the child pornography restitution statute which is being considered by federal district courts across the country and in several courts of appeal will arguably affect a relatively small number of victims.

A closer look, however, reveals that the child pornography restitution statute, 18 U.S.C. 2259, is exactly the same as two other restitution statutes which were enacted at the same time. The first is the sex abuse restitution act, 18 U.S.C. 2248, which applies to sex crimes committed on federal land, Indian reservations and the interstate trafficking of minors.

The second, however, involves provisions which are at the heart of the federal Violence Against Women's Act (VAWA) and includes stalking, interstate domestic violence, and interstate violation of a protection order.

The VAWA restitution statute, 18 U.S.C. 2264, allows any victim who was harmed from stalking, interestste domestic violence or interstate violation of a protection order to receive restitution for the “full amount” their losses including any costs incurred by the victim for—

(A) medical services relating to physical, psychiatric, or psychological care;
(B) physical and occupational therapy or rehabilitation;
(C) necessary transportation, temporary housing, and child care expenses;
(D) lost income;
(E) attorneys' fees, plus any costs incurred in obtaining a civil protection order; and
(F) any other losses suffered by the victim as a proximate result of the offense.

Congress passed this remedial landmark legislation to fully compensate victims of stalking, domestic violence and interstate violation of a protection order for the losses they suffer. To address these serious harms, Section 2264 makes restitution “mandatory.” To underscore the mandatory nature of restitution, Congress repeated later in the statute that issuance of a restitution order is mandatory.

Section 2264’s provisions are also broader than other federal restitution statutes. The VAWA restitution statute extends its protections to any “victim” who is simply “harmed” by stalking, interstate domestic violence, or the interstate violation of a protection order, requiring neither “proximate harm” nor “direct harm.”

By purposely omitting the narrowing qualifiers “directly” and “proximately” found in other general restitution statutes, Congress decided not to burden victims with any obligation to demonstrate a “direct” or “proximate” harm as prerequisite to receiving restitution.

Unfortunately, the Department of Justice doesn't agree with this plain statutory language.

Although Congress placed the “proximate result” language only in subsection (F) of the restitution statute, the Department of Justice continues to argue in courts of appeal throughout the country that Congress implicitly intended that phrase be read backwards through the other five preceding sections.

Simply put, DOJ's position contradicts not only the plain language of the child pornography restitution statute, but the plain language of exact same VAWA restitution statute as well.

Bottom Line: what the courts decide in the coming months about restitution for victims of child pornography will also effect restitution for victims of domestic violence all over the country.

Unfortunately, the Justice Department has abandoned these victims on appeal by advancing a legal standard which the courts consider unworkable.

In October, the Justice Department filed a Supreme Court brief opposing child victims. Last month, the Justice Department asked the Sixth Circuit Court of Appeals to nullify a court-ordered million dollar award to a child sex abuse victim, arguing that the legal standard which resulted in the award is too easy.

Why is the Justice Department arguing for something which the courts of appeal say is unworkable and un-provable, while victims of child exploitation, stalking, interstate domestic violence, and interstate violation of a protection order are left with nothing?

Now, just last week, the Fifth Circuit Court of Appeals—at the Justice Department's urging—decided to reconsider a landmark decision in favor of these victims. The Justice Department has one more chance to do the right thing by supporting victims.

Please tell President Obama's political appointee to the Department of Justice Criminal Division, Lanny A. Breuer, to side with the victim in In re: Amy Unknown in the Fifth Circuit.

When Justice Department attorneys refused to even sit with Amy at last year's oral argument before the Fifth Circuit Court of Appeals in New Orleans, Chief Judge Edith Jones proclaimed:

"What I don't understand is why the government has switched sides. They were on Amy's side in the trial court, were they not? I'm not sure how they can switch sides now and say that the statute doesn't entitle her to relief. That seems very—if not duplicitous—very strange to me. And it's also in derogation of the obvious intent of that provision of the statute."

Amy and victims like her need your help. Right now these victims are effectively shut-out of the federal courts by the Justice Department's wrongheaded policy.

Almost 20 years ago, then-Senator Joe Biden promised victims that they would receive full restitution from criminals convicted of child exploitation, stalking, interstate domestic violence, and interstate violation of a protection order. Ironically, Vice President Biden's own Justice Department is failing to live up to his vision in the Violence Against Women's Act.

You can help awaken the Justice Department lawyers in Washington with just a few clicks. Amy thanks everyone for their continued support. You can make a difference in her fight for justice!

For more information on this issue, visit http://www.childlaw.us/restitution/

If you're awake and you've been following this blog for any length of time, your probably know that during the past two years, victims of child pornography (represented by the Marsh Law Firm and pioneering attorneys Paul G. Cassell and Carol L. Hepburn ) have been seeking restitution in federal courts throughout the country.

Using a long forgotten passage in the Violence Against Women Act championed by then-Senator Joe Biden in 1994, child sex abuse victims are asking federal judges to award the mandatory restitution guaranteed by this law.

Unfortunately, the Justice Department has abandoned victims of child pornography on appeal by advancing a legal standard which the courts consider unworkable. The Justice Department's position is effectively preventing hundreds of child victims from receiving any money from the tens of thousands of child molesters and pedophiles who collect and trade child sex abuse images.

In October, the Justice Department filed a Supreme Court brief opposing child exploitation victims. Last month, the Justice Department asked the Sixth Circuit Court of Appeals to nullify a court-ordered million dollar award to a child sex abuse victim, arguing that the legal standard which resulted in the award is too easy.

Why is the Justice Department arguing for something which the courts of appeal say is unworkable and un-provable, while victims of child exploitation are left with nothing?

Now, just last week, the Fifth Circuit Court of Appeals—at the Justice Department's urging—decided to reconsider a landmark decision in favor of victims of child pornography. The Justice Department has one more chance to do the right thing and support victims of child exploitation.

Please tell President Obama's political appointee to the Department of Justice Criminal Division, Lanny A. Breuer, to side with the victim in In re: Amy Unknown in the Fifth Circuit.

When Justice Department attorneys refused to even sit with Amy at last year's oral argument before the Fifth Circuit Court of Appeals in New Orleans, Chief Judge Edith Jones proclaimed:

"What I don't understand is why the government has switched sides. They were on Amy's side in the trial court, were they not? I'm not sure how they can switch sides now and say that the statute doesn't entitle her to relief. That seems very—if not duplicitous—very strange to me. And it's also in derogation of the obvious intent of that provision of the statute."

Amy and child victims like her need your help. Hundreds of victims are effectively shut-out of the federal courts by the Justice Department's wrongheaded policy.

Almost 20 years ago, then-Senator Joe Biden promised child victims that they would receive full restitution from criminals convicted of child exploitation. Ironically, Vice President Biden's own Justice Department is failing to live up to his vision in the Violence Against Women's Act.

You can help awaken the Justice Department lawyers in Washington with just a few clicks. Amy thanks everyone for their continued support. You can make a difference in her fight for justice!

For more information on this issue, visit http://www.childlaw.us/restitution/

Last week the United States Supreme Court ignored the extraordinary pleas of three nationally recognized child advocacy groups and granted the Justice Department's request to dismiss a child sex abuse victim's appeal for criminal restitution.

The case now returns to the district court which must follow the DC Circuit's holding that the victim in this case, Amy, does not have a clear and indisputable right to full restitution, but must instead trace precisely how her losses were “proximately” caused by each of the thousands of child molesters and pedophiles who collect and trade her child sex abuse images.

The Supreme Court's rejection means that a child pornography victim's right to criminal restitution in the federal courts will continue to be limited and denied in sixteen states and territories, including California, New York and Washington, DC. Only in the Fifth Circuit—encompassing the states of Texas, Louisiana and Mississippi—is restitution still mandatory.

The Court's denial—and the Justice Department's stubborn refusal to abandon a legal standard which the influential Ninth Circuit concluded "present[s] serious obstacles for victims seeking restitution in these sorts of cases"—leaves child sex abuse victims like Amy with scant chance for justice in the federal courts.

Pedophiles, child molesters and the Justice Department are likely to seize on the high court's rejection as a sign that criminal restitution for child sex abuse victims is all but impossible in the federal courts except under the most egregious circumstances.

We continue to urge everyone to Make a Difference and ask the Justice Department to stop siding with convicted child molesters and pedophiles instead of child sex abuse victims!

Just go to http://bit.ly/ChangeJustice for full details on how you can help.

For the complete background on this issue, visit http://www.childlaw.us/restitution/.

When Justice Department attorneys refused to even sit with the child sex abuse victim at last year's oral argument before the Fifth Circuit Court of Appeals in New Orleans, Chief Judge Edith Jones proclaimed:

"What I don't understand is why the government has switched sides. They were on Amy's side in the trial court, were they not? I'm not sure how they can switch sides now and say that the statute doesn't entitle her to relief. That seems very—if not duplicitous—very strange to me. And it's also in derogation of the obvious intent of that provision of the statute."

Now, over a year later, the Justice Department has done the exact same thing again in the Sixth Circuit. Only this time they are asking the Court of Appeals to nullify a court-ordered million dollar award to a child sex abuse victim.

Why is the Obama Justice Department siding with convicted child molesters and pedophiles instead of child sex abuse victims?

In response to this shameful position, the Marsh Law Firm has joined forces with lawyers for the victim in this case and requested immediate intervention in the Sixth Circuit Court of Appeals to defend the million dollar judgment which was abandoned by the government on appeal.

The child sex abuse victim in this case, Vicky, is represented by Seattle attorney Carol L. Hepburn, who declared:

"It's bad enough that we so often have to fight child molesters and pedophiles all over the country just to get some measure of restitution for the victim. Now we have to fight the government too. Unfortunately the government has turned on us in one of the few cases where we won something significant which would really make a difference in my client's life. I just don't understand why the government is deciding to flip-flop and now go against the victim in these cases."

According to crime victims’ rights advocate Paul Cassell, a former federal judge who is currently a law professor at the S.J. Quinney College of Law at University of Utah (and who also represents Vicky on appeal on a pro bono basis):

"It is unconscionable that the government would abandon a child victim on appeal without any notice or a chance to respond. We only found out about this appeal by accident. If we hadn't intervened, no one would have protected this substantial award before the Court of Appeals. Who could have imagined that the government—which worked so hard at the trial court to obtain this award—would suddenly and without warning switch sides before the Sixth Circuit? The Justice Department simply forgot about the child victim when it filed its appeal pleadings."

Marsh Law Firm partner, James R. Marsh, emphasized that the legal fight for child sex abuse victims will continue whenever and wherever necessary:

"The Department of Justice has fought against us in the Fifth Circuit, the District of Columbia Circuit, the Supreme Court and now the Sixth Circuit. Apparently the decision to abandon child sex abuse victims is being made by lifelong apparatchiks who haven't left Washington in a long, long time. This kind of stupidity is one reason why the American people have such distrust and cynicism in our government right now. It defies any sense of common decency that some government lawyer in Washington, DC would think it's a good idea to expend taxpayer dollars to fight against the interests of child sex abuse victims everywhere in the country."

Marsh exclaimed:

"At a time when Penn State has incited international indignity, it's outrageous that the federal government is marshaling every effort to deny child sex abuse victims criminal restitution which was a central part of the law championed by the Administration's own Vice President Biden as part of his landmark 1994 Violence Against Women's Act. Now that the Senate is holding hearings on how well the nation is protecting children from abuse and neglect, they should start by asking why their own Justice Department is siding with convicted child molesters and pedophiles against the interests of child sex abuse victims."

Click here to Make a Difference on this issue!

Guest Legal Analysis by Jennifer Freeman of Freeman Lewis LLP

On September 8, 2011, the Second Circuit dealt a blow to victims of child pornography who had been seeking broad relief under a federal criminal statute authorizing restitution. In United States v. Aumais, Docket No. 10-3160 (Sept. 8, 2011), the New York federal appeals court reversed a restitution order of nearly $50,000 assessed in favor of a victim of child porn against a possessor of the images, holding that proximate cause was lacking, without which such damages could not be imposed.

In issuing this decision, the Second Circuit agreed with the result reached by a number of other Circuit Courts and disagreed with the Fifth Circuit. A petition for certiorari to the United States Supreme Court is currently pending in a similar case. This is an issue that cries out for Supreme Court resolution, and we very much hope that the Supreme Court will step in to provide clarity to the victims, perpetrators and others in this highly charged and important arena.

Recent Expansion of Restitution Claims

The United States Supreme Court has held that distribution of child pornography is “intrinsically related to the sexual abuse of children” because, among other things, “the materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation.” New York v. Ferber, 458 U.S. 747, 759 (1982). Once the acts are recorded, “the pornography may haunt [the child] in future years, long after the original misdeed took place.” 458 U.S. at 759 n.10.

Commencing in about 2009, victims of child pornography started filing claims of restitution under 18 U.S.C. § 2259, the federal “child pornography restitution statute”, as part of criminal cases against transporters, distributors or possessors of the images. Since that time, abuse victims have sought millions of dollars in restitution damages from the sellers or users of the child pornography.

One of the victims, known under the pseudonym “Amy”, has submitted almost 700 federal criminal restitution requests in pornography cases, seeking more than $3 million. According to the New York Times, Amy has already recovered nearly $350,000.

Under the child pornography restitution statute, Section 2259(a) directs courts to order restitution for any offense under the chapter which, among other things, makes it a criminal offense to possess child pornography images. Section 2259(b)(1) provides that the order of restitution shall direct the defendant to pay the victim the “full amount of the victim’s losses” as determined by the court. Section 2259(b)(3) provides that the “full amount of the victim’s losses” includes any costs incurred by the victim for:

(A) medical services relating to the physical, psychiatric, or psychological care;
(B) physical and occupational therapy or rehabilitation;
(C) necessary transportation, temporary housing, and child care expenses;
(D) lost income;
(E) attorney’s fees, as well as other costs incurred; and
(F) any other losses suffered by the victims as a proximate result of the offense.

§ 2259(b)(3)(A)-(F). The issuance of a restitution order is “mandatory”, and a court may not decline to issue a restitution order because of the defendant’s economic circumstances or the fact that the victim has received or is entitled to receive compensation for his or her injuries from the proceeds of insurance or any other source. § 2259(b)(4).

Victims have sought to use the restitution statute to hold each defendant responsible for the “full amount of the victim’s losses”, alleging that the statutory requirement that the losses be proximately caused by the defendant applies only to Section 2259(b)(3)(F) and not to other specified losses.

The Fifth Circuit has agreed with the victims, noting that the structure and language of Section 2259(b) imposes a proximate cause requirement only on miscellaneous “other losses” for which restitution may be sought. In re Amy Unknown, 636 F.3d 190, 198 (5th Cir. 2011). Other courts have disagreed, looking to traditional principles of tort and criminal law or providing different interpretations of the statutory language. E.g., United States v. Monzel, 641 F.3d 528 (D.C. Cir.), petition for certiorari filed, 80 USLW 3059 (July 15, 2011); United States v. McDaniel, 631 F.3d 1204 (11th Cir. 20110).

There are also state statutes which require mandatory restitution to child pornography victims. Under a recently enacted statute in Virginia, a man convicted of child pornography distribution was ordered to pay $1000 to each of the victims.

The Aumais Decision

In Aumais, defendant Gerald Aumais pled guilty to transporting and possessing child pornography in violation of 18 U.S.C. § 2252(a)(1) and (a)(5)(b). The district court sentenced him to 121 months in prison and ordered him, pursuant to § 2259, to pay $48,483 in restitution for future counseling costs to Amy, who was one of the victims in the images and videos. Aumais appealed the restitution order, alleging that his possession did not proximately cause Amy’s loss.

In her Victim Impact Statement, Amy said she was unable to forget the abuse by her uncle (who took the pictures) because the “disgusting images of what he did to [her] are still out there on the internet.” She said she lives in fear that she will be recognized and be “humiliated all over again.” The district court referred the issue of restitution to a magistrate judge who conducted an evidentiary hearing.

An expert witness for the Government testified at trial that Amy experienced emotional and psychological problems from learning that her images were still being viewed, biting her nails to the point of bleeding, drinking alcohol, and becoming unable to complete college. The expert further testified that Aumais represented “one component” of damages, recommended that Amy receive therapy once a week, and stated that Amy might need three courses of inpatient treatment during her life to address her alcoholism.

Based on the Victim Impact Statement and the expert testimony, the magistrate judge found that, even though Amy had no contact with or knowledge of Aumais, his possession of her images exacerbated the harm to Amy by creating a market for distribution and by inflicting humiliation on her by a group of consumers, of which Aumais was one. The magistrate judge found that Aumais had caused the need for weekly counseling sessions in the next five years and monthly counseling sessions for five years thereafter, the cost of which was discounted to present value. The magistrate judge also held that Aumais was responsible for the full amount and that it was a question of administration by the government to prevent excess recovery. The district court adopted the magistrate judge’s report and recommendation, and Aumais appealed.

On appeal, the Second Circuit reviewed the language of Section 2259, determined that Amy was a victim under the statute, and noted that a Circuit split had developed on the issue of whether the Government must show that a victim’s losses under Section 2259 were proximately caused by the defendant’s actions, or whether it was enough to show causation more generally.

The Second Circuit noted that Amy had no contact with or knowledge of Aumais, that the expert witness evaluation of Amy occurred before Aumais’ arrest, and the absence of evidence linking Aumais’ possession to any loss suffered by Amy. And, the court expressed concern as to the “baffling” and “intractable” issue presented by this case regarding damages and joint and several liability since, among other things, there was no showing that Aumais was responsible for all of the losses which counseling would address.

Request for the Supreme Court to Resolve the Issue

Meanwhile, on July 15, 2011, a petition for a writ of certiorari was filed in the Monzel case. According to the petition, the Circuits are “plainly split on the frequently recurring and ‘difficult’ question of how to interpret the child pornography statute”, and the “lower courts are unlikely to coalesce around any common approach without guidance” from the Supreme Court.

According to Paul G. Cassell, a former federal judge and Utah law professor who co-authored the certiorari petition and authored “Victims in Criminal Procedure”, “We are hoping the Supreme Court will step in to resolve the issue and enforce the law as we think it was written — and not impose this impossible burden on crime victims to trace out to each and every defendant what exact percentage of the law was attributable to them.”

There are conflicting Circuit decisions, and the rationales are not consistent, rendering Supreme Court resolution particularly appropriate. Whether the Supreme Court is willing to address this important issue and provide the clarity and consistency that is needed, remains to be seen.

By Jennifer Freeman of Freeman Lewis LLP. For some three decades, Ms. Freeman has stood for women in the area of employment law and other issues relating to women's rights.

About Freeman Lewis LLP

Freeman Lewis LLP is a boutique business dispute resolution firm, whose founders Jennifer Freeman and Robert Y. Lewis together have more than 50 years of experience assisting clients resolve business disputes through litigation, arbitration, mediation and negotiation. Their firm focuses on commercial litigation, employment law, securities arbitration, white-collar criminal, and ERISA. For more information, visit www.freemanlewis.com.

This article discusses the Marsh Law Firm's pioneering work to secure criminal restitution for our client Amy. It appeared in the National Center for Prosecution of Child Abuse Update earlier this year, before our appeal to the United States Supreme Court. The NCPCA Update can be downloaded in full here.

by Angela Downes, Meg Garvin, Wanda Lucibello, Alison Wilkinson, Terry Campos, and Hon. Paul Cassell²

Amy was only four years old when her uncle sexually assaulted her and documented that assault through photographs. Although the assault took place in 1993, now nearly 20 years later those photographs continue to circulate on the Internet and are among the most actively traded child abuse images known to law enforcement. These horrific images continue to haunt Amy; in her own words:

There is a lot I don’t remember [about the abuse], but now I can’t forget, because the disgusting images of what he did to me are still out there on the Internet. Every day of my life I live in constant fear that someone will see my pictures and recognize me and that I will be humiliated all over again.³

What Amy so powerfully conveys is what nearly every victim of this type of abuse suffers; they live in constant fear that even as they make a quick run to the grocery store, as they step into a job interview, or as they walk down the street, someone will recognize them from the horrific images in circulation. Unlike the physical abuse, this fear never stops. As Amy has said to courts nationwide, “[i]t’s like I’m being abused over and over and over again.”⁴

The images at issue are often labeled “child pornography.” While this term is widely accepted it dilutes the graphic content of the images—sexual and physical assaults on a child. Consequently, a more apt term is “child abuse imagery.” Legislators and courts have long recognized that children depicted in such images are harmed not only by the sexual exploitation involved in creating the images, but also by the distribution, possession, and viewing of their sexual abuse.⁵ This recognition is supported by social science research.⁶ Legislators and courts have similarly recognized the importance of awarding restitution to victims who are harmed by crime to help make them whole, and to aid their recovery.⁷

Thus, it seems reasonable that children depicted in child abuse images should be awarded restitution from their offender(s), including offenders who possess and view images of their abuse.

Despite the logic, justness, and legality of affording restitution to these victims,⁸ over the last several years the right of these victims to full restitution has become a contested issue in the federal district courts.⁹ Some courts refuse to afford any restitution, others award de minimus restitution, and another awarded the full amount of requested restitution in excess of $3,000,000.¹⁰ The different outcomes can be attributed in significant part to varied legal interpretations of the governing statute, 18 U.S.C. § 2259, and causation.

While Amy and other similarly situated victims can never be brought back to the lives they lived before their abuse, or before the images of their abuse became a staple of the online industry, attorneys can nonetheless go a long way in helping them by securing adequate restitution for them in the courts. To help practitioners aid victim recovery, this article provides a brief overview of the current state of the law, identifies key issues at play in the courts, and suggests some practices to employ in representation of these victims.

Last week, the Solicitor General filed this brief with the United States Supreme Court which effectively denies child victims the ability to obtain criminal restitution from the thousands of child molesters and pedophiles who collect and share child pornography.

The defendant in the case currently pending before the Supreme Court, Amy v. Monzel, admitted to law enforcement that he sexually abused his granddaughter and traded images of girls being sexually abused. A search of his home uncovered more than 800 child sex abuse images including pictures of Amy, the victim in this case. The defendant pleaded guilty to distributing child pornography and was sentenced to 10 years in prison.

The District court ordered the defendant to pay just $5000 in criminal restitution to Amy, a girl whose rape and sexual abuse images were found in his collection. That award was overturned on appeal. Amy then appealed to the Supreme Court where three amici joined her in asking the Court to take the case.

Despite supporting the victims in the lower courts, the government abandoned victims of child pornography at the Supreme Court by asking the Court not to review the Court of Appeals’ denial of restitution. The Solicitor General's position on this issue effectively strips victims of child pornography the ability to obtain criminal restitution from any of the thousands of child molesters and pedophiles who collect and share their child sex abuse images.

The Solicitor General is essentially asking the Supreme Court to uphold a standard of proof that government cannot meet. During the past two years, the government has failed in hundreds of cases throughout the country to convince federal judges that the standard they are now defending in the Supreme Court will result in any restitution for victims of child pornography. In July, the government lost this case in the Ninth Circuit on just this issue and decided not to appeal to the Supreme Court.

Victims of child pornography deserve their day in court. Three amicus filed briefs in the Supreme Court supporting this basic right, highlighting the importance of this issue for children who are sexually abused and exploited through child pornography.

As a candidate in 2008, President Obama supported the death penalty for defendants convicted of raping a child. Now the Solicitor General is promoting a standard which will save some of these same defendants from paying restitution to their victims. While millionaire child molesters are housed in government prisons at taxpayer expense, child sex abuse victims like Amy must rely on public assistance and charity to take care of their most basic needs.

When Congress—led by then Senator and now Vice President Biden—passed the child pornography restitution statute in 1994, it made restitution mandatory for victims. In fact, Congress felt so strongly that every child pornography victim receive the “full amount” of their losses that it used the word mandatory twice in the statute. Despite this clear requirement, federal courts throughout the country are confused and their often arbitrary approaches have led to widely differing outcomes for victims. A deepening split among the Courts of Appeals and the district courts require a decisive decision and direction that only the Supreme Court can provide.

Only the Supreme Court can conclusively guarantee a child pornography victim's right to restitution. Justice delayed is justice denied. Victims of child pornography have waited and suffered long enough.

Two years ago, the Marsh Law Firm filed the first-ever request for federal criminal restitution against a convicted child pornography collector. Since then, we have filed over 700 requests for restitution in every federal district court in the country.

Despite a few decisive victories, a child pornography victim's right to restitution is being curtailed in circuit after circuit. Recent federal Circuit Court decisions have effectively barred restitution in the Second and Ninth Circuit and the District of Columbia Circuit. Only in the Fifth Circuit—encompassing the states of Texas, Louisiana and Mississippi—is restitution still mandatory.

When Congress passed the child pornography restitution statute in 1994, it made restitution mandatory for victims. In fact, Congress felt so strongly that every child pornography victim receive the “full amount” of their losses that it used the word mandatory twice in the statute. Despite this clear requirement, many federal courts have sought to limit the amount that convicted child pornography collectors pay their victims by forcing victims to prove precisely how much each individual defendant injured them.

The federal district courts are also severely divided on how to interpret the child pornography restitution statute. Some district courts have held that victims seeking restitution need not establish proximate cause. Other district courts have read a general proximate cause requirement into the statute and then concluded that proximate cause was not established.

Still other district courts read a general proximate cause requirement (or in some courts simply “causation”) into the statute and then find that the victim provided sufficient proof to obtain at least some restitution. The approaches are often arbitrary and have led to widely differing outcomes. For example, a few district courts have awarded “nominal” restitution in an arbitrary amount, sometimes as low as $100.

The Fifth Circuit got it right in March when it found that “[c]ourts are required to award victims of child sex abuse ‘the full amount of the victim’s losses.’” It held that “Congress abandoned the proximate causation language that would have reached all categories of harm … This change is consistent with the reasons for enacting a second generation of restitution statutes. The evolution in victims’ rights statutes demonstrates Congress’s choice to abandon a global requirement of proximate causation.”

Last month, in an effort to restore a child pornography victim's rapidly eroding right to restitution, the Marsh Law Firm filed a Petition for a Writ of Certiorari in the United States Supreme Court. Only the Supreme Court can conclusively resolve this issue and guarantee a victim's right to restitution under the child pornography restitution statute. A deepening split amongst the federal circuits and the district courts require a decisive decision and direction that only the Supreme Court can provide.

A coalition of child advocates recently filed three separate amicus briefs supporting our request for Supreme Court review. This rare occurrence will hopefully put the issue of child victim restitution squarely before the Court which is now considering whether or not to accept our case.

Thank you to all the amici who spent a significant amount of time and effort to get these uncommon amicus briefs filed during the summer months. Child victims are grateful for your tireless work on their behalf now and in the future.

Click on the links to read the briefs by the National Center for Missing and Exploited Children, the National Crime Victim Law Institute and the National Association to Protect Children.

The Marsh Law Firm's Petition for Cert is here.

In a follow-up to a February 2010 profile of the Marsh Law Firm's groundbreaking work pursuing federal criminal restitution for victims of child pornography, the New York Times released this story today about a decision in the Second Circuit.

A victim of child pornography seeking restitution should not receive court-ordered payments from those who possessed the images but had no hand in creating them, a federal appeals panel ruled Thursday. The young woman, referred to in court papers as Amy, was known as “Misty” in pornographic images created by her uncle. The uncle was convicted and imprisoned on child pornography charges, but the images continue to be widely circulated and downloaded.

Since then, Amy’s lawyers have entered pleas in hundreds of child pornography possession cases around the country seeking payment for their client’s lost wages and counseling through federal criminal restitution statutes, asking for more than $3 million in each case. They have submitted nearly 700 of these pleas, and have recovered $345,000 so far.

Some federal district courts have granted nothing, stating that the link between Amy’s harm and the act of possession is too tenuous to support a restitution order. A Florida court ordered the full $3,680,153, with others in between.

The Second Circuit decision may be the toughest of several recent rulings in cases involving Amy; a decision out of the 11th Circuit upheld the restitution award, while others have denied payment.

Paul G. Cassell, a former federal judge and Utah law professor who has joined Amy’s legal team for appellate argument, said that with federal circuits divided, “we are hoping the Supreme Court will step in to resolve the issue and enforce the law as we think it was written — and not impose this impossible burden on crime victims to trace out to each and every defendant what exact percentage of the law was attributable to them.”

Amy's fight for justice is far from over, however, and her case is already pending in the Supreme Court. More on this in the coming days. For now, read the full story on the New York Times website here.

Late yesterday, the Fifth Circuit Court of Appeals in New Orleans adopted my longstanding position that there is no general proximate cause requirement governing restitution for victims of child pornography.

Since the New York Times wrote this story last year about our firm's effort to obtain restitution for a child pornography victim known as "Amy," hundreds of federal district courts across the country have denied restitution or issued de minimus restitution orders on her behalf.

The Fifth Circuit's unprecedented decision held that proximate cause is not a general requirement when deciding restitution and only applies to one open ended provision in the list of enumerated damages in the restitution law written by then-Senator Joe Biden as part of his landmark 1994 Violence Against Women Act (VAWA).

What makes this decision exceptional is that it was decided under a higher standard of review which is limited to mandamus - a rarely used procedural mechanism to bring an appeal. Mandamus requires that the lower court’s decision be “clearly and indisputably wrong” instead of standard “de novo” appellate review.

In December 2009, we sought both mandamus and standard appellate review of an adverse restitution decision issued in the Eastern District of Texas. The Fifth Circuit initially ruled 2-1 against our position, but consolidated and reconsidered our appeal last year.

Oral argument was held in early November with former federal judge Professor Paul Cassell skillfully presenting Amy's case.

In issuing its decision, the Court adopted our long-established argument that proximate cause does not apply to the entire restitution statute, just to one subsection of the statute.

This decision will make it much easier for victims of child pornography and exploitation to hold each and every criminal defendant liable in restitution for the “full amount” of their damages.

Writing for the three judge panel, Chief Judge Edith H. Jones conclusively held that even under heightened mandamus review, the district court’s decision to deny Amy restitution because the government failed to prove what losses, if any, were proximately caused by the defendants possession of two pornographic images, was “clearly and indisputably wrong.”

The structure and language of § 2259(b)(3) impose a proximate causation requirement only on miscellaneous “other losses” for which a victim seeks restitution. . . . Comparing the language of § 2259 with other restitution statutes affirms the conclusion that proximate causation applies only to the catchall category of harms.

The Court concluded that:

Restricting the “proximate result” language to the catchall category in which it appears does not open the door to limitless restitution. The statute itself includes a general causation requirement in its definition of a victim: “For purposes of this section, the term ‘victim’ means the individual harmed as a result of a commission of a crime under this chapter . . .” 18 U.S.C. § 2259(c). (emphasis added). . . . Given the statute’s built-in causation requirement and the volume of causation evidence in the context of child pornography, fears over excessive punishment are misplaced. . . . Incorporating a proximate causation requirement where none exists is a clear and indisputable error. Amy is entitled to receive restitution under the Crime Victim Rights Act.

We do not yet know if either the United States or the defendant will seek review by the full court or appeal the decision to the United States Supreme Court.

Legislators and courts have long recognized what common sense makes clear - children depicted in child abuse images[1] are harmed not only by the sexual abuse captured by the images, but also by the subsequent distribution, possession, and viewing of the images of their abuse.[2] Legislators and courts have similarly recognized the importance of awarding restitution to victims who are harmed by crime to help make them whole, and to aid in their recovery.[3] Thus, it seems a straightforward proposition that children depicted in child abuse images should be awarded restitution from their offenders, including those offenders who possess and view their abuse. In fact, this simple supposition seems to underpin the statute governing restitution in cases involving sexual exploitation.[4]

Despite the logic, justness, and legality of affording restitution to the victims in child abuse images, federal courts differ greatly in their approach to the restitution rights of these victims[5] in the context of possession cases. As discussed below, over the last year alone, courts have awarded these victims full restitution, partial restitution, di minimus restitution, or even no restitution at all. These differences in outcome can be attributed, at least in part, to varied legal interpretations of the governing restitution statute, 18 U.S.C. § 2259. This article provides a brief overview of the current state of the law, and suggests that a court-based or legislative solution is urgently needed to avoid further victimization of these victims.

Broadcast today on The Kojo Nnamdi Show on WAMU in Washington, DC:

Traditionally, courts have punished those convicted of possessing child pornography with heavy jail time. But in a growing trend, victims are demanding that offenders pay restitution too. The approach is generating debate about how far courts can go in punishing people who are caught with pornography, but aren't the direct perpetrators of the crime.

Listen to the re-broadcast here.