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Supreme Court struggles with restitution for child porn

- The Washington Times - Wednesday, January 22, 2014

The Supreme Court on Wednesday took up a knotty question of proportional justice, in a case posing the question of how much individual viewers of child pornography owe to the victims of abuse.

An animated, hour-long session of oral arguments drew questions from eight justices — Justice Clarence Thomas did not speak — on how much of $3.4 million restitution award sought by the plaintiff known as “Amy Unknown” should be paid by a defendant found with two images of her on his personal computer.

Amy is the pseudonym of a 24-year-old Pennsylvania woman — who attended Wednesday’s hearing, according to her lawyers — whose graphic sexual abuse at age 8 by her uncle in the 1990s was photographed and shared on the Internet by child-pornography collectors.

The high court sought to find a formula for courts to use to assign restitution in crimes of child pornography. These cases are different from many other crimes, since victims are unlikely to know most of the criminals who possess, produce or distribute images of their molestations and rapes. The lower courts were divided on whether the defendant should be required to pay the entire penalty amount himself.

Paul G. Cassell, representing Amy, said the 1994 Violence Against Women Act was clear that child-pornography criminals were required to pay victims full restitution — and that every one of the perpetrators was fully liable for the violation of her rights.

“Amy’s losses come from a vast, faceless, anonymous crowd of thousands of people scattered around the globe from Denver to Denmark, who are looking at pictures of her being raped as an 8-year-old girl,” said Mr. Cassell. That “aggregate group of people all contribute to a loss. Each person who contributed to the loss was on the hook for the damages in their entirety.”

Mr. Cassell asked the high court to uphold a 2012 ruling by the 5th Circuit Court of Appeals that ordered Doyle R. Paroline to pay full restitution to Amy. Paroline, who was sentenced to 24 months in prison, pleaded guilty to having nearly 300 child-pornography images, including two of Amy, on his computer.

Paroline petitioned the high court to overturn the 5th Circuit Court’s ruling. If he prevails, it would leave intact a lower-court ruling that found that Paroline owed Amy nothing because the government could not prove that his possession of two images of her caused any of her losses.

“This is a criminal-sentencing problem,” Stanley G. Schneider, Paroline’s court-appointed lawyer, told the justices Wednesday.

“[A]ll losses must be proximately caused,” and the government must prove that a defendant’s offense caused the victim’s losses, he said.

The justices’ debate centered on a provision in the 1994 law that refers to losses that are “a proximate result of the offense.” Courts have often awarded child-pornography victims little or no amounts of restitution because of that language.

Several justices showed dismay that an innocent victim of a repugnant crime would receive nothing in restitution, but they also didn’t appear to support the idea that a single defendant could be held financially liable for a crime that involved countless other people.

“You’re saying ‘contributed to the harm,’ but [Paroline] makes 100 percent of the payment. That doesn’t seem to me to make much sense,” said Justice Antonin Scalia said.

The justices heard several potential solutions — including asking criminals to pay a partial amount, such as $1,000 an image, into a victims’ restitution fund, or asking the U.S. Sentencing Commission to establish a formula for restitution in these cases.

The Obama administration, represented by Deputy Solicitor General Michael R. Dreeben, argued against all-or-nothing outcomes and suggested a formula in which a victim’s restitution would be divided among the number of criminals associated with the victim’s images.

That prompted Chief Justice John G. Roberts Jr., to ask, “How does that work for the first person” convicted of having a victim’s image?

“It doesn’t work very well for the first person, Mr. Chief Justice,” admitted Mr. Dreeben.

Amy has so far received more than $1.75 million, Mr. Cassell said. Of that total, $1.2 million came from one man, a Virginia sheriff’s deputy who had more than $2 million in retirement savings.

A decision is expected in late June.

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