Today, the Supreme Court will consider a case that has not attracted national attention but remains in my view one of the most important of the term, a classic “sleeper” case where the legal issues have sweeping potential. The case involves Doyle Randall Paroline, who pleaded guilty in Texas in 2009 to possessing child pornography. He downloaded hundreds of images and two were found to be child pornography dedicating the abuse of Amy. After pleading guilty, Paroline was hit by $3.4 million in restitution damages for Amy even though he had no role in her victimization nine years earlier or any role in the production or distribution of the two photos. The United States Court of Appeals for the Fifth Circuit found that the federal restitution law does not require “proximate causation” — a critical limitation in torts and criminal law that ensures that liability is confined to those parties immediately responsible for injuries. I have criticized the expansion of restitution in this area for years and I spoke with NPR’s On The Media on the case.
Amy was eight when she was raped by her uncle, who then posted the pictures of the crime. James Marsh in a White Plains, N.Y., lawyer has made something of a cottage industry in sending demands for restitution on her behalf in any case that involves an image of Amy or other abuse victims. The firm reportedly sending out hundreds of these demands on the theory that viewing the images is part of the victimization. There is certainly a good-faith argument in support of such damages. However, the theory would cut restitution away from its historical moorings. It is would also eliminate the fundamental role played by proximate cause. There are millions of images floating around the Internet and people can now download hundreds with a single click. While I often do not believe many defendants who say that their possession was accidental, it is possible to come into possession without true intent. However, the law was currently written makes a defense difficult and the sentences are so high that most defendants plead guilty to avoid ten years or more in jail. Now, with the new restitution ruling, they face bankruptcy as well as longer sentences.
The controversy begins with a provision that is ambiguous but historically interpreted, in other areas, as following conventional rules of proximate cause:
18 U.S.C. § 2259 Mandatory Restitution
(a) In general. – Notwithstanding section 3663 or 3663A, and in addition to any other civil or criminal penalty authorized by law, the court shall order restitution for any offense under this chapter.
(b) Scope and nature of the order. —
(1) Directions. – The order of restitution under this section shall direct the defendant to pay the victim (through the appropriate court mechanism) the full amount of the victim’s losses as determined by the court pursuant to paragraph (2).
(2) Enforcement. – An order of restitution under this section shall be issued and enforced in accordance with section 3664 in the same manner as an order under section 3663A.
(3) Definition. – For the purposes of this subsection, the term “full amount of the victim’s losses” includes any costs incurred by the victim for –
(A) medical services relating to physical, psychiatric or psychological care;
(B) physical and occupational therapy or rehabilitation;
(C) necessary transportation, temporary housing and child care expenses;
(D) lost income;
(E) attorney’s fees, as well as other costs incurred; and
(F) any other losses suffered by the victim as a proximate result of the offense.
(4) Order mandatory. – (A) The issuance of a restitution order under this section is mandatory.
(B) A court may not decline to issue an order under this section because of –
(i) the economic circumstances of the defendant; or
(ii) the fact that a victim has, or is entitled to, receive compensation
for his or her injuries from the proceeds of insurance or any other sources.
(c) Definition. – For purposes of this section, the term “victim” means the individual harmed as a result of a commission of a crime under this chapter, including, in the case of a victim who is under 18 years of age, incompetent, incapacitated or deceased, the legal guardian of the victim or representative of the victim’s estate, another family member, or any other person appointed as suitable by the court, but in no event shall the defendant be names as such representative or guardian.
The Supreme Court will have to determine if such damage provisions must necessarily be read with proximate causation principles as part of the determination. It will be an interesting test for the conservative members under the Eighth Amendment. There remains an anomaly in the treatment of citizens and companies. The Supreme Court has ruled that due process bars punitive damages against companies that are excessive in cases like Gore v. BMW. As little as a ten-to-one ratio between compensatory and punitive damages can be unconstitutional. Yet, the Court held that citizens can be sent to life imprisonment for a minor shoplifting offense under habitual offender laws — gutting the Eighth Amendment prohibition on cruel and unusual punishment. Now those earlier cases involves punitive damages not restitution, but the defendant is arguing that $3.4 million in restitution dwarfs the actual sentence in its punitive impact.
The Fifth Circuit departed from three sister circuits on the issue of proximate causation: United States v. Burgess, 684 F.3d 445 (4th Cir. 2012); United States v. Aumais, 656 F.3d 147 (2nd Cir. 2011); and United States v. Monzel, 641 F.3d 528 (D.C. Cir.), cert. denied sub nom. Amy, Victim in Misty Child Pornography Series v. Monzel, U.S. , 132 S. Ct. 756 (2011). Slip op., at 26 and n. 11. The Fifth Circuit ruled:
The D.C. Circuit rejected the view expressed by the In re Amy Unknown panel, explaining that “[h]ad Congress meant to abrogate the traditional requirement for everything but the catch-all, surely it would have found a clearer way to do so.” The D.C. Circuit criticized this court’s decision in Amy because “a ‘general’ causation requirement without any subsidiary proximate causation requirement is hardly a requirement at all”; “[s]o long as the victim’s injury would not have occurred but for the defendant’s offense, the defendant would be liable for the injury.” The circuits that have adopted the D.C. Circuit’s view have pursued a similar line of reasoning. We do not accept this reasoning, however, and refuse to inject the statute with a proximate cause requirement based on traditional principles of tort.
Slip op., at 29.
The dissent in the case was written by Eugene Davis. For full disclosure, I clerk for Judge Davis and he remains one of my best friends. In his dissenting opinion, Judge Davis rejected what he called the majority’s “one size fits all rule” requiring district courts to assess restitution for the full amount of damages against each defendant when multiple violators contribute to the victim’s damages. Judge Davis interpreted § 2259(b)(2) as expressly incorporating the general restitution requirements of 18 U.S.C. § 3664 – including the requirement that restitution be based on “the amount of the loss sustained by a victim as a result of the offense….” The dissent further cites § 2259(c), defining “victim” as the “individual harmed as a result of a commission of crime under this chapter.”Slip op., at 46.
It has been difficult through the last few years to argue for limitations on restitution in cases involving such horrific victimization. None of us have any sympathy for Paroline or those who possess such images. However, the rule of law often requires us to resist our emotive impulses and consider the implications of such new rules. In my view, the Fifth Circuit opinion would expand restitution beyond any point of recognition. It would allow law firms to tapped out defendants and potentially make it more difficult for direct victims to recover. It would rob the system of any predictability or uniformity as lawyers go after deep pocket defendants who have one of these images in a file. If allowed, we could see this approach replicated in other areas. There are plenty of crimes where people into possession of stolen property or other aspects of prior crimes. They are historically liable for possession but not restitution for the original crimes committed by third parties.
The case is Paroline v. United States.