Pay Misty for Me: Courts Mull Over Restitution Payments to Victims of Child Pornography From Possessors

In a disgusting pornographic collection called “the Misty series,” a little girl named Amy was photographed by her uncle who then distributed the pictures worldwide on the Internet. As discussed earlier, now an adult, Amy has succeeded to securing restitution not from her uncle but from a man who was found in possession of the pictures. As reported by John Schwartz in the New York Times article below, it has raised serious questions from lawyers and law professors (including myself) but the Obama Administration is now supporting such claims.

Amy is demanding that anyone convicted of possessing a single Misty image pay her restitution until her total claim of $3.4 million has been met. It has a striking resemblance to “market share liability” where companies are liable for their share of a market regardless if they actually produced the harmful drug in a given case. Here all possessors would be treated as causing the injury by creating the market.

More directly, it is supported in court as a variation “joint and several liability theories” in tort — holding all users of pornography as engaged in a common enterprise.

While I view Amy’s victimization to be horrific (and these defendants to be entirely unsympathetic characters), I have considerable constitutional and policy concerns over this effort. It is based on a theory of restitution that would defy limitation and could be used in a host of different contexts to extend the definition of a victim.

The effort to expand the definition of victim and the scope of restitution is attributed to Paul G. Cassell, a former Reagan Justice official (and federal judge) and law professor at University of Utah.
Joint and several liability theories do not support such claims. In torts, such liability usually requires that the concurrent acts of the defendant brought about the harm to the plaintiff. Here, the uncle caused the harm. This may also be extended to anyone who helped him distribute the pictures on the Internet. However, once on the Internet, the viability of the claim breaks down.

Notably, last summer, an attorney with the Administrative Office of the Courts argued that the law did not support restitution for “mere possession.” However, Lanny A. Breuer, the assistant attorney general for the criminal division at the Obama Justice Department, issued a letter in October supporting the theory and stating “we do not agree that restitution is not available to victims of the possession of child pornography as a matter of law.”

While politically popular, the position of the Administration threatens any logical and reasonable limitations in criminal cases. It is part of a trend to extend limitations on sex offenders (such as limitations on housing) that are causing disruptive and dysfunctional impacts on the system. You could adopt the same open-ended definition of restitution in areas ranging from grand theft auto to environmental crimes. In the past, we have tried to limit restitution to direct victims of the accused. This trend adds a new level of restitution as an additional punitive measure for the accused.

Politicians love to garner the support from such draconian measures but rarely consider the costs or the logistics involved in such changes. Restitution is a proper and needed protection for victims of child pornography. However, this effort strikes me as more visceral than legal.

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