Recently in Supreme Court Category

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

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.

Today, the National Crime Victim Law Institute (NCVLI) moved for leave to file, as amicus curiae, this brief in support of the Marsh Law Firm's recent Petition for a Writ of Certiorari concerning whether the Mandatory Restitution for Sexual Exploitation of Children Statute, 18 U.S.C. § 2259, excuses a defendant from paying restitution for the itemized loss categories unless there is proof that the victim’s losses were the proximate result of an individual defendant’s child pornography crime.

NCVLI is a nonprofit educational and advocacy organization located at Lewis & Clark Law School in Portland, Oregon. NCVLI’s mission is to promote balance and fairness in the criminal justice system through crime-victim centered legal advocacy, education, and resource sharing.

NCVLI actively participates as amicus curiae in cases involving victims’ rights nationwide. In particular, NCVLI seeks to highlight the difficulties that children who have been sexually exploited and filmed face in procuring restitution under federal law, and to explain the remedies that Congress crafted to help them over-come these hurdles.

The legal standard of causation required to secure such restitution is the question presented in this case.

The brief was written by Professor Stephanos Bibas who is Director of the University of Pennsylvania Law School Supreme Court Clinic.

NCVLI's Motion for Leave to Participate as Amicus Curiae and Brief of Amicus Curiae

Last week, the Marsh Law Firm, along with co-counsel Paul G. Cassell and Carol L. Hepburn, filed a petition for a writ of certiorari in the United States Supreme Court.

Almost 20 years ago, Congress enacted the Mandatory Restitution for Sexual Exploitation of Children Statute, 18 U.S.C. § 2259, to benefit victims of federal child pornography crimes, including petitioners like Amy and Vicky, 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 in this cert petition is whether the Mandatory Restitution for Sexual Exploitation of Children Statute, 18 U.S.C. § 2259, excuses a defendant from paying restitution for the itemized loss categories unless there is proof that the victim’s losses were the proximate result of an individual defendant’s child pornography crime.

The Supreme Court is expected to decide whether or not to grant this petition early next year. If the Court decides to hear the case, oral arguments and a decision are likely this term which ends on October 1, 2013.

Petition for a Writ of Certiorari