Supreme Court Vacates Jane Doe Child Pornography Restitution Case

Supreme CourtWe previously discussed the case of 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. The Court has now ruled and reversed the Fifth Circuit in a 5-4 decision. As discussed with regard to yesterday’s decision in the Michigan affirmative action case, my Supreme Court class votes on the merits and predicted outcome of the major cases of the term before the Supreme Court. On this occasion, the vote was 8 to affirm and 6 to reverse. The latter “reversal” is closest to the outcome in the case. On prediction, the vote was 11 to 2 in favor of affirming so we were way off on the prediction on this one.

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 sent 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 as 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 a new restitution ruling, they face bankruptcy as well as longer sentences.

The Supreme Court ruled that a victim of child pornography may be entitled to restitution under 18 USC § 2259 but only to the extent the defendant’s offense proximately caused the victim’s losses. In an opinion by Justice Anthony Kennedy, the court found that the the Fifth Circuit’s interpretation was wrong, vacated the decision below and remanded the case for further consideration. Chief Justice John Roberts filed a dissenting opinion, joined by Justices Antonin Scalia and Clarence Thomas. Justice Sonia Sotomayor also filed a dissenting opinion. The majority is an eclectic group (as is the dissenting justices) that do not follow the classic left/right divide.

The case turned on the question of proximate causation as understood in both criminal law and torts:

Every event has many causes . . . and only some of them are proximate, as the law uses that term. So to say that one event was a proximate cause of another means that it was not just any cause, but one with a sufficient connection to the result. The idea of proximate cause, as distinct from actual cause or cause in fact, defies easy summary. It is “a flexible concept,” Bridge v. Phoenix Bond & Indemnity Co., 553 U. S. 639, 654 (2008), that generally “refers to the basic requirement that . . . there must be ‘some direct relation between the injury asserted and the injurious conduct alleged,’” CSX Transp., Inc. v. McBride, 564 U. S. ___, ___ (2011) (ROBERTS, C. J., dissenting) (slip op., at 3) (quoting Holmes v. Securities Investor Protection Corporation, 503 U. S. 258, 268 (1992)). The concept of proximate causation is applicable in both criminal and tort law, and the analysis is parallel in many instances. 1 W. LaFave, Substantive Criminal Law §6.4(c), p. 471 (2d ed. 2003) (hereinafter LaFave). Proximate cause is often explicated in terms of foreseeability or the scope of the risk created by the predicate conduct. See, e.g., ibid.; 1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm §29, p. 493 (2005) (hereinafter Restatement). A requirement of proximate cause thus serves, inter alia, to preclude liability in situations where the causal link between conduct and result is so attenuated that the consequence is more aptly described as mere fortuity. Exxon Co., U. S. A. v. Sofec, Inc., 517 U. S. 830, 838–839 (1996).

The majority found that the Fifth Circuit disregarded a core element of proximate causation. The well-reasoned and well-written treatment explores such tests as the But-For Test, which are rejected in this context. The opinion actually goes into a detailed discussion of torts theories of causation (I actually included Paroline in this year’s torts class for that reason). The Court rejects the sweeping causation theory of both the Obama Administration and the victim:

Contrary to the victim’s suggestion, this is not akin to a case in which a “gang of ruffians” collectively beats a person, or in which a woman is “gang raped by five men on one night or by five men on five sequential nights.” Brief for Respondent Amy 55. First, this case does not involve a set of wrongdoers acting in concert, see Prosser and Keeton §52, at 346 (discussing full liability for a joint enterprise); for Paroline had no contact with the overwhelming majority of the offenders for whose actions the victim would hold him accountable. Second, adopting the victim’s approach would make an individual possessor liable for the combined consequences of the acts of not just 2, 5, or even 100 independently acting offenders; but instead, a number that may reach into the tens of thousands. See Brief for Respondent Amy 65.

One of the more interesting asides in the opinion deal with the suggestion that restitution could be treated as a punishment for the purposes of the Eighth Amendment. The Court has steadily gutted the protections of the Eighth Amendment in the view of many constitutional criminal law professors. Yet, the majority indicated that restitution could be treated as not just failing under the Eighth Amendment but a violation of the amendment if it were given the meaning advocated by the Administration and the victim:

The reality is that the victim’s suggested approach would amount to holding each possessor of her images liable for the conduct of thousands of other independently acting possessors and distributors, with no legal or practical avenue for seeking contribution. That approach is so severe it might raise questions under the Excessive Fines Clause of the Eighth Amendment. To be sure, this Court has said that “the Excessive Fines Clause was intended to limit only those fines directly imposed by, and payable to, the government.” Browning-Ferris Industries of Vt., Inc.
v. Kelco Disposal, Inc., 492 U. S. 257, 268 (1989). But while restitution under §2259 is paid to a victim, it is imposed by the Government “at the culmination of a criminal proceeding and requires conviction of an underlying” crime, United States v. Bajakajian, 524 U. S. 321, 328 (1998). Thus, despite the differences between restitution and a traditional fine, restitution still implicates “theprosecutorial powers of government,” Browning-Ferris, supra, at 275. The primary goal of restitution is remedial or compensatory, cf. Bajakajian, supra, at 329, but it also serves punitive purposes, see Pasquantino v. United States, 544 U. S. 349, 365 (2005) (“The purpose of awarding restitution” under 18 U. S. C. §3663A “is . . . to mete out appropriate criminal punishment”); Kelly, 479 U. S., at 49, n. 10. That may be “sufficient to bring [it] within the purview of the Excessive Fines Clause,” Bajakajian, supra, at 329, n. 4. And there is a real question whether holding a single possessor liable for millions of dollars in losses collectively caused by thousands of independent actors might be excessive and disproportionate in these circumstances. These concerns offer further reason not to interpret the statute the way the victim suggests.

The majority is less compelling when it comes to the test. The Court says that some restitution is appropriate and leaves the lower courts with little real guidance. Indeed, as is often the case, the Court will be accused of leaving the area in a muddle. While clarifying a bit by ruling out the most extreme restitution theory, the Court says that it is not necessary to create a more concrete test other than the following elements:

There are a variety of factors district courts might consider in determining a proper amount of restitution, and it is neither necessary nor appropriate to prescribe a precise algorithm for determining the proper restitution amount at this point in the law’s development. Doing so would unduly constrain the decision makers closest to the facts of any given case. But district courts might, as a starting point, determine the amount of the victim’s losses caused by the continuing traffic in the victim’s images (excluding, of course, any remote losses like the hypothetical car accident described above, see supra, at 10), then set an award of restitution in consideration of factors that bear on the relative causal significance of the defendant’s conduct in producing those losses. These could include the number of past criminal defendants found to have contributed to the victim’s general losses; reasonable predictions of the number of future offenders likely to be caught and convicted for crimes contributing to the victim’s general losses; any available and reasonably reliable estimate of the broader number of offenders involved (most of whom will, of course, never be caught or convicted); whether thedefendant reproduced or distributed images of the victim; whether the defendant had any connection to the initial production of the images; how many images of the victim the defendant possessed; and other facts relevant to the defendant’s relative causal role. See Brief for United States 49.

These factors need not be converted into a rigid formula, especially if doing so would result in trivial restitution orders. They should rather serve as rough guideposts for determining an amount that fits the offense. The resulting amount fixed by the court would be deemed the amount of the victim’s general losses that were the “proximate result of the offense” for purposes of §2259, and thus the “full amount” of such losses that should be awarded. The court could then set an appropriate payment schedule in consideration of the defendant’s financial means. See §3664(f)(2).

Having dealt with such cases in the past, I fail to see how a court could come up with a figure with any reliability under this approach. Factoring the level of past views, let alone all future views, invites an arbitrary determination. Moreover, it suggests that the damages might be much higher if a defendant is one of a few viewers (at this time) as opposed to looking at a popular image of child pornography. It would be up to the court to estimate if a new image is likely to “catch on.” It also suggests that early defendants nailed for restitution could pay the lion’s share of damages while later views would come at a fraction of that cost. The Court itself recognizes that recovery may be “piecemeal” and clearly does not favor the large awards secured in the past. The majority simply says that the restitution “would not be severe, but it would not be token.”

The dissent by Chief Justice Roberts (joined by Thomas and Scalia) is an equally interesting read. Roberts cautions how the desire to make a victim whole may blind the Court to the practical or legal flaws:

The Court is correct, of course, that awarding Amy no restitution would be contrary to Congress’s remedial and penological purposes. See ante, at 20. But we have previously refused to allow “policy considerations” including an “expansive declaration of purpose,” and the need to “compensate victims for the full losses they suffered” to deter us from reading virtually identical statutory language to require proof of the harm caused solely by thedefendant’s particular offense.

Roberts says that there are simply some injuries that cannot be quantified in this fashion:

Amy has a qualitatively different injury. Her loss, while undoubtedly genuine, is a result of the collective actions of a huge number of people beginning with her uncle who abused her and put her images on the Internet, to the distributors who make those images more widely avail- able, to the possessors such as Paroline who view her images. The harm to Amy was produced over time, gradually, by tens of thousands of persons acting independently from one another.3 She suffers in particular from her knowledge that her images are being viewed online by an unknown number of people, and from her fear that any person she meets might recognize her from having witnessed her abuse. App. 59–66. But Amy does not know who Paroline is. Id., at 295, n. 11. Nothing in the record comes close to establishing that Amy would have suffered less if Paroline had not possessed her images, let alone how much less. See Brief for United States 25. Amy’s injury is indivisible, which means that Paroline’s particular share of her losses is unknowable. And yet it is proof of Paroline’s particular share that the statute requires.

Notably, this would indicate that the Court was more lopsided than the vote count would indicate. In reality, some eight justices felt that restitution should either be small (5) or zero (3). Only Justice Sonia Sotomayor called for the full restitution. I found her opinion the least compelling, including her analogy to a gang rape case which is manifestly different from this circumstance in my view. Sotomayor however defended the analogy:

individuals need not act together to trigger joint and several liability; such liability applies equally to multiple actors who independently commit intentional torts that combine to produce an indivisible injury. Infra, at 11–14. And in any event, the offenders at issue in this case do act together, with the common end of trafficking in the market for images of child sexual abuse. See infra, at 12–13. While these offenders may not be physically in the same room when they commit their crimes, there is no reason to read §2259(b)(4)’s “mandatory” restitution command out of the statute for child abusers who hide behind the anonymity of a computer screen.

Obviously, I have long opposed restitution under the rationales of the prior rulings and in that sense I share many of the concerns raised by the Roberts dissent.

Here is the opinion: Paroline v US

29 thoughts on “Supreme Court Vacates Jane Doe Child Pornography Restitution Case”

  1. If consumers of the images are part of the crime then it follows that consumers of the images of the naked, starved, dead Holocaust victims, photos taken by Nazis for enjoyment, are part of the crime. Never forget.

  2. The photos at the Holocaust museum today only begin to get analogous to the porn situation today if people go to the museum in order to “get off” on the pleasure of viewing the photos and fantasising about doing that to people.
    The musuem itself is in no way analogous as the purpose is not to give such pleasure.

    Even if some people do that, the analogy is still imperfect due to the long time lapse of over 70 years.
    In the porn case, the photos have been produced to satisfy a demand that is immediate or practically so. The consumers of the images are part of the crime.

  3. Regarding the photos of the Holocaust. The Nazis got off on viewing photos of the dead bodies piled up, or the starved naked people who were in line to be gassed, or the children, naked and starved to death. So, if they got glee from it and the photos are shown at the Holocaust Museum does that not jive with the porn photo story here? It is analogous. Never forget. Which is something I tell myself every day here at the old farts home.

  4. hski

    I read your link from We The People. One of their positions is that the income tax is illegal and your link deals with the courts refusal of their case. Is it also your position that the income tax is illegal?

    1. Feynman. I was a part of the suit. I believe that the We The People position was that the IRS did not answer the 62 questions, several relating to, what is the Federal Statute and when was it passed that requires Citizens of the 50 States of the United States of America to pay a Federal Personal Income Tax on their labor when in an individual capacity. The nomenclature is important and if I’ve miss stated it my apologize for it’s complexities. Many contend that the Income Tax Act of 1913 relates to a tax on labor in a business capacity, “not” in an individual capacity. If a business is contracting out labor, the profits are taxable, is my understanding. After seeing the Congressional records on this, as well as the 16th Amendment, I do agree with this contention, but I’m surely not an expert or lawyer. I just don’t understand why no one would answer the questions and why the Judiciary did not require them to. If you read them they seem to be reasonable questions that someone such as a good tax lawyer should know the answers and a bunch of them work for the IRS and Treasury.

      Tax Laws must be and are very specific as to who is liable and when. The key is; is there any Federal Statute within Title 26 that specifically applies to the above Citizens? The We The People Mantra was “No Law, No taxes”. Some assume that Section 1 in Title 26 is the Regulation that does this. The question would be than, when was that Statute passed and under what Act was it named as this section is reportedly by many to apply to Citizens of the District of Columbia and specifically Federal Officials. I’m not a lawyer but most people are not even aware that there are Citizens of the District of Columbia. Those the live and work in DC as my niece does, pays both an income tax to the Government of the District of Columbia, just as there are other State income taxes and to the Federal Government; two separate and distinct taxes. She says a total of about 48% of her wage and that makes sense. It does appear she is a citizen of the District of Columbia as she pays an income tax to that sovereignty as well as the Federal Government. There appears to be many appellate cases on this issue as well.

      To this day, I’ve yet to see or hear of any Official within the Federal Government willing to answer the questions posed by We The People. Just the opposite, they make an asserted effort to not answer the questions. What is the Federal Statute and when was it passed can not be that hard to answer. Just do it and get it over with.

      The questions I would like to pose, is why have both the Federal Government and Judiciary been so adamant about “NOT” answering the 62 questions asked in the formal Petition for Redress of Grievances as enumerated under Article 1? and Why does such a right to petition exists if they do not have to answer it?

      I think that one thing that one can surely conclude is that there is something really bizarre as it relates to this issue.

      So when you asked if I think the income tax is “illegal”, I would say no. It appears that some people are liable for a Federal Personal Income Tax. Do I think it’s just, hell no. It’s the 2nd platform of communism for a reason and it is not a good one for the majority.

  5. Al Zheimer,

    Does viewing the crime scene make us part of the crime?

    In this particular case, yes.
    The crime ( the actual crime, not the scene of it) was photographed by the criminal in order to show it to people who would get enjoyment from viewing it.
    They might also be giving the image to such people in return for them giving them images of similar crimes.
    Yes. People who go to the trouble of obtaining such images for their pleasure are part of the crime. This is because the viewing by others is part of the thrill of the crime for the original perp.
    Viewing for pleasure is part of the original crime. It shares in the enjoyment of the abuse of the victim. It is part of the motivation for the crime.

    This is utterly different to simply happening to view an image of the scene of some crime. There is simply no comparison.
    The key difference is the deriving of pleasure/enjoyment from viewing the content – and the motivation of the photographer to give that pleasure.

    That last sentence above is a clue to the “child porn photo on their computer” question.
    If the mere existence of an image on a device constitutes a crime – with no consideration of the context of how it got there or what else is there or in the life of the owner of the device – then you have an insanity somewhat like, but far worse than minimum sentence rules.
    Your own home computer could have child porn images on it without your knowledge. Your home computer could even be hosting a child-porn archives accessed by others without your knowledge. It could be spamming others with porn or malware. A competent technical inspection of the machine would determine if an assertion of ignorance was plausible.
    I have ongoing view of spam and phishing email that link to what are very clearly machines that have been compromised unknown to their owners.

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