Restitution Returns to the United States Supreme Court (again)
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