Recently in Restitution Category

In a forceful dissent, a judge in the latest child pornography restitution decision proclaimed that "to accomplish the difficult task of assigning financial responsibility to possessors of child pornography for the harm caused by their conduct, district judges should have all the tools provided by law at their disposal and should be permitted broad discretion to fashion an appropriate remedy."

The case before the Sixth Circuit, United States v. Hargrove, was decided under controlling Circuit precedent which requires "proximate cause" before a district court can award restitution to a victim of child pornography possession. The dissent appropriately recognized that

The discussion of proximate cause in [previously decided Circuit precedent] is not terribly helpful because the analysis of causation, both proximate (legal) and but-for (factual), is relatively straightforward once traditional tort-law principles of aggregate causation are employed. Defendants in these cases argue that the diffuse and anonymous nature of their conduct precludes a finding that they were the factual causes of any injuries. The majority properly clarifies that which [Circuit precedent] left somewhat vague, that even if conduct is insufficient by itself to cause a given harm, liability attaches when the conduct is sufficient to cause the harm when combined with the wrongful conduct of others. If the opposite rule were adopted, each defendant would be able to escape restitution even though it is undisputed that the defendants' collective action caused the victims' harm.

The dissent rightfully points out that

After a defendant is found to be both a factual and proximate cause of a victim's harm, the statute requires an order of restitution for “the full amount of the victim's losses.” 18 U.S.C. § 2259(b)(1). Under the theory of aggregate causation…each defendant should be considered to have caused the entirety of the victim's harm. Yet both [the majority's decision and Circuit precedent require] grafting an apportionment regime onto the proximate cause requirement. However, in an effort to avoid “unlimited liability for a single action,” [Circuit precedent] goes on to sanction a needlessly rigid apportionment scheme and reject the obvious solution of joint and several liability.

The dissent endorses joint and several liability explaining that "by authorizing joint and several liability or apportionment at the district court's discretion, [the restitution statute] gives the district courts appropriately wide latitude to fashion restitution awards to best effectuate the statute's purpose of fully compensating victims. As the en banc Fifth Circuit has held, the mechanism of joint and several liability authorized by § 3664(h) 'applies well in these circumstances, where victims [of child pornography] are harmed by defendants acting separately who have caused [them] a single harm.'"

The dissent reasoned that

Traditional tort-law principles also counsel in favor of giving district judges the option of joint and several liability in this context. In a typical multi-defendant tort action, an indivisible injury caused by numerous defendants would lead to the imposition of joint and several liability, with the risk that some defendants will be unable to pay borne by the other defendants, not the victim. The historical policy decision to shift the burden of insolvency from tort plaintiffs to defendants fits perfectly with the statutory goal of fully compensating victims of child pornography. See S.Rep. No. 103-138, at 56 (1993) (stating that mandatory restitution for victims of sex crimes is designed to create an assumption that defendants will pay the victims' expenses).

The dissent concluded that

Joint and several liability may not always be appropriate, but it should be one option available to the district courts when they order defendants to pay restitution to the victims of child pornography. That option seems especially appropriate in cases such as this, where victims were harmed by the knowledge that people like Defendant were viewing images of their abuse, and their harm is not susceptible to division. However, if the district court were presented with evidence that a given defendant was more or less culpable than other possessors of child pornography, the statute empowers the court to “apportion liability among the defendants to reflect the level of contribution to the victim's loss.”

We agree that "the district courts should be permitted to apportion a victim's losses based on individualized determinations, impose joint and several liability, or devise alternative methods for allocating varying degrees of fault among perpetrators." It's now up to the Supreme Court or Congress to make this happen.

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.

Emily Bazelon discusses her New York Times Magazine cover story, The Price of a Stolen Childhood, about the Marsh Law Firm's groundbreaking work representing victims of child pornography.

Behind the Cover Story: Emily Bazelon on Pornography and Punishment

"It's a common refrain in child pornography cases to say that it is a victimless crime. The person who downloaded the image was quote unquote just looking. Restitution helps force them to see that they are part of a market that depends on hurting real children."