Sixth Circuit – Dissent Criticizes Limited Restitution Options

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.

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