Paroline v. US. - The Devil Receives a Discount

April 24, 2014.  by Frank Kardasz

The United States Supreme Court recently published a decision in the case of Paroline v. United States, et al. 572 U.S. (2014).  The case now guides what, if any, restitution will be provided to victims of child pornography pursuant to 18 U.S.C. §2259.

SCOTUS was tasked with the impossible job of balancing civil Tort law with the crime of child pornography.  It was an attempt at legal alchemy that somehow sought to make an abacus manufacture an anti-depressant.  In this accounting versus anguish algebra, five of the nine placed Archimedes and Freud in a blender and produced designer dyspepsia.

In Paroline, the Court in fact hobbled, although in theory supported, the Federal law meant to provide restitution to victims of child pornography.

 

Here are some of the low and highlights of the Court's decision:

Syllabus

The Victim/Respondent

The respondent victim in this case was sexually abused as a young girl in order to produce child pornography.  When she was 17, she learned that the images were being trafficked on the Internet, in effect repeating the original wrongs, for she knew that her humiliation and hurt would be renewed well into the future as thousands of additional wrongdoers witnessed those crimes (p.1).

The Suspect/Petitioner

Petitioner Paroline pleaded guilty to possessing images of child pornography, which included two images of the victim, in violation of 18 U. S. C. §2252. The victim then sought restitution under §2259, requesting nearly $3.5 million in lost income and future treatment and counseling costs (p.1).

The District Court declined to award restitution, but upon appeal, the Fifth Circuit Court granted the $3.5 million dollar judgment.  Paroline then appealed to the Supreme Court, and in April 2014, in a 5-4 split decision, the SCOTUS ruled that Paroline could not be held liable for the entire $3.5 million judgment and deferred the case back to the lower courts with instructions to make determinations in individual case-by-case situations to decide what portion of a victims restitution was the responsibility of each defendant (p.1).

Some noteworthy excerpts from the introductory Syllabus:

• Restitution is proper under §2259 only to the extent the defendant’s offense proximately caused a victim’s losses (p.1).

• Paroline’s contribution to the causal process underlying the victim’s losses was very minor, both compared to the combined acts of all other relevant offenders and compared to the contributions of other individual offenders, particularly distributors and the initial producer of the child pornography (p.3).

• The cause of the victim’s general losses is the trade in her images, and Paroline is a part of that cause (p.3).

• The unlawful conduct of everyone who reproduces, distributes, or possesses images of the victim’s abuse—including Paroline—plays a part in sustaining and aggravating this tragedy (p.4).

• Denying restitution would be at odds with §2259’s penological purposes, which include the need to impress upon offenders that their conduct produces concrete and devastating harms for real, identifiable victims (p.4).

• Thus, where it can be shown both that a defendant possessed a victim’s images and that a victim has outstanding losses caused by the continuing traffic in her images but where it is impossible to trace a particular amount of those losses to the individual defendant utilizing a more traditional causal inquiry, a court should order restitution in an amount that comports with the defendant’s relative role in the causal process underlying the victim’s general losses (p.4).

• The Government has the “burden of demonstrating the amount of the[victim’s] loss (p.2).

Justice Kennedy - for the majority:
 

The court recounted the chilling statement from one child pornography victim who's image was in Paroline's collection:

• “Every day of my life I live in constant fear that someone will see my pictures and recognize me and that I will be humiliated all over again. It hurts me to know someone is looking at them—at me—when I was just a little girl being abused for the camera. I did not choose to be there, but now I am there forever in pictures that people are using to do sick things. I want it all erased. I want it all stopped. But I am powerless to stop it just like I was powerless to stop my uncle. . . . My life and my feelings are worse now because the crime has never really stopped and will never really stop. . . . It’s like I am being abused over and over and over again” (p.8). 

Chief Justice Roberts - in dissent:

• Chief Justice Roberts, although dissenting the majority said,   Instead of tailoring the statute to the unique harms caused by child pornography, Congress borrowed a generic restitution standard that makes restitution contingent on the Government’s ability to prove, “by the preponderance of the evidence,” “the amount of the loss sustained by a victim as a result of ” the defendant’s crime. 18 U. S. C. §3664(e). When it comes to Paroline’s crime—possession of two of Amy’s images—it is not possible to do anything more than pick an arbitrary number for that “amount.” And arbitrary is not good enough for the criminal law (p.32).

 Chief Justice Roberts also chided Congress saying,

•  The Court’s decision today means that Amy will not go home with nothing. But it would be a mistake for that salutary outcome to lead readers to conclude that Amy has prevailed or that Congress has done justice for victims of child pornography. The statute as written allows no recovery; we ought to say so, and give Congress a chance to fix it (p.41). 

Justice Sotomayor - in dissent:   

• The traffic in images depicting a child’s sexual abuse, we have observed, “‘poses an even greater threat to the child victim than does sexual abuse or prostitution’” because the victim must “‘go through life knowing that the recording is circulating within the mass distribution system for child pornography.’” Id., at 759, n. 10. As we emphasized in a later case, the images cause “continuing harm by haunting the chil[d] in years to come.” Osborne v. Ohio, 495 U. S. 103, 111 (1990) (p.42). 

• I appreciate the Court’s effort to achieve what it perceives to be a just result. It declines to require restitution for a victim’s full losses, a result that might seem incongruent to an individual possessor’s partial role in a harm in which countless others have participated. And it rejects the position advanced by Paroline and the dissenting opinion of THE CHIEF JUSTICE, which would result in no restitution in cases like this for the perverse reason that a child has been victimized by too many (43). 

• Given the very nature of the child pornography market—in which a large class of offenders contribute jointly to their victims’ harm by trading in their images—a but-for causation requirement would swallow §2259’s “mandatory” restitution command, leaving victims with little hope of recovery (p.47). 

• Justice Sotomayer interestingly and appropriately I think, analogizes a victim of child pornography to a victim of gang-rape stating: But what about a victim of a vicious gang assault, where a single offender’s conduct cannot be labeled a but-for cause of any discrete injury? Such offenses are, unfortunately, all too common. See, e.g., Wheelock v. United States, 2013 WL2318145, *2 (ED Wisc., May 28,2013) (defendant convicted for his participation in a gang rape of a 13-year-old victim in which he “and several other individuals had provided alcohol to the girl and, after she became intoxicated and unconscious, sexually assaulted her”); United States v. Homer B., 1990 WL 79705 (CA9, June 14, 1990) (similar). I would have thought it beyond refute that the victim of such a tragic offense would been titled to restitution even though none of her losses may be attributed solely to any individual defendant (p.49). 

•  ...the injuries caused by child pornography possessors are impossible to apportion in any practical sense. It cannot be said, for example, that Paroline’s offense alone required Amy to attend five additional minutes of therapy, or that it caused some discrete portion of her lost income. The majority overlooks this fact, ordering courts to surmise some “circumscribed” amount of loss based on a list of factors (p.52). 

•  ...possessors like Paroline may not be familiar with every last participant in the market for child sexual abuse images, there is little doubt that they act with knowledge of the inevitable harms caused by their combined conduct (p.53). 

Summary

Unfortunately for future victims, the Paroline decision may have the chilling effect that was described as ...consigning future restitution to “piecemeal” amounts that may never lead to full recovery (p.4).

An additional chilling effect not cited by the court is the fact that lawyers for future victims may be reluctant to accept child pornography restitution cases knowing that the unpredictable lower courts may shred judgment into meager amounts that leave little left for attorney's fees.

One possible remedy to the Paroline decision is to strengthen the existing law, 18 U.S.C. §2259.  Perhaps a change to the law that proscribes a specific restitution amount, in addition to additional penalties that recognize the Court's decision, are now in order.

Now off to treat my dyspepsia, perhaps by swallowing a slide-rule.

Reference

Paroline v United States et al. (decided April 23,2014). US Supreme Court.

Retrieved from http://www.supremecourt.gov/opinions/13pdf/12-8561_7758.pdf

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