Rationalizing Restitution Revisited

The story of Amy,  best known as the victim in the Misty series of child pornography, is a nightmare.  And the story continues at sentencing in kiddie porn cases nationwide, as Amy, appearing by her attorney, has sought restitution from defendants convicted of downloading videos.

The amount of restitution sought is generally in the amount of $3.4 million, and it’s brought a shocking disparity in reactions from courts around the country.

But the same problem in justifying restitution per se remains in attempting to arrive at a rational amount.  Since there is no attributable loss, the numbers are essentially arbitrary.  Are they a product of the totality of harm to the child, and then ascribed to every defendant who might possess an image?  If the harm to the child is determined to be $3.4 million, and the image has been spread to 1,000 defendants, should each bear restitution in that amount?  Granted, it will never be paid in full, but it will do enough to make sure that the defendant, and his family, are under water financially for the rest of his life.

And who cares?  Who feels sorry for the defendant who possesses kiddie porn?  Clearly, the victim is worthy of great sympathy, but does $3.4 million in harm explain $3.4 trillion in restitution?  And how does one court award $500 while another $3.2 million in restitution for the same offense?  How does any court arrive at a rational amount, and yet the court is required to provide restitution. 

In yet another Amy restitution opinion, U.S. v. Monzel, the D.C. Circuit sought to deal with an appeal from Amy, as well as the defendant, through her attorney, Paul Cassell.  Amy sought restitution in the amount of $3.2 million, but the court imposed restitution in the amount of $5000, calling it “nominal” and “less than the actual harm.”  Recognizing the problems created by multiple orders of restitution across the nation,

The court also declined to hold Monzel jointly and severally liable for the entirety of the harm Amy has suffered as a result of the distribution and possession of her image by others, given “the substantial logistical difficulties in tracking awards made and money actually recovered” from such persons.

Rather, the Circuit held that Amy is entitled, under the Crime Victims Restitution Act, to full and timely restitution.  However, the defendant, cannot be ordered to pay more than the restitution for the amount of damage he “proximately cause.” 

Reliance on proximate cause rather than joint and several liability is a critical distinction in the effort to make some minimal amount of sense out of the CVRA.  Rather than every child porn downloader being liable for the entirety of Amy’s restitution claim, no matter how many downloaders there turns out to be, and how the restitution is eventually paid such that it’s multiplied many times over across the nation, the restitution imposed on a defendant is limited to his share of the damage, what he proximately caused.

This makes perfect sense on paper, but perpetuates the conundrum:  How is it possible to determine the amount of damage a downloader of child porn caused?  For those directly involved in the creation and distribution of child porn, the determination seems far clearer, and they may well be responsible for most, if not all, of the harm suffered by the victim.  But what of the guy who watches?

The argument is that there would be no market for kiddie porn if no one watched it, so the downloader is hardly an innocent third party in the process of child pornography.  It’s a rational argument, certainly.  On the other hand, is there any different in harm caused the victim by the 100th, 1000th, 10,000th viewing?  Is the harm exacerbated by rewinding and watching again?  Of course, kiddie porn defendants aren’t the most sympathetic people in the courthouse, and there seems to be a very real question in sentencing of who cares how onerous the restitution award.

In Monzel, the court refused to rubber stamp either side of the argument.  As quoted in  Doug Berman’s discussion of this decision, the Circuit remanded with this direction:

On remand, the district court should consider anew the amount of Amy’s losses attributable to Monzel’s offense and order restitution equal to that amount.  Although there is relatively little in the present record to guide its decisionmaking on this, the district court is free to order the government to submit evidence regarding what losses were caused by Monzel’s possession of Amy’s image or to order the government to suggest a formula for determining the proper amount of restitution.  The burden is on the government to prove the amount of Amy’s losses Monzel caused.  We expect the government will do more this time around to aid the district court.  We express no view as to the appropriate level of restitution, but emphasize that in fixing the amount the district court must rely upon some principled method for determining the harm Monzel proximately caused.

While directing the district court to rely on “some principled method for determining the harm,” the Circuit offers no suggestion whatsoever as to what that method might be.  The reason seems clear. They have no clue what do with this mess.  No court has developed a principled method of dealing with mass restitution by defendants whose conduct defies any rational proximate cause analysis.

As much as we might despise the defendant who has any involvement in child pornography, and feel little concern as to the restitution imposed, the fact remains that the restitution order, which survives prison and affects not just the defendant but his family, his children, as well, the amount of restitution reaches far beyond the purposes of sentencing and impacts innocents as well as defendants.  It matters, despite our lack of the concern.

While the Circuit can craft the order compelling the district judge to arrive at a principled method of determining damages, it can’t make a pig fly.  The CVRA may “work” when the amount of restitution imposed reflects a concrete loss, the amount a defendant “stole” for example.  It works less well when the amount is based on a theoretical loss, the value of legitimate goods when the defendant is convicted of selling counterfeit goods.  It doesn’t work at all, however, when restitution is based on a rhetorical construct, as in Monzell and the other Amy cases, based on the extended argument that without watchers, there would be no producers of kiddie porn.

Once we take a step away from direct harm, where there is a factual basis to determine a quantifiable loss, there can be no principled method of establishing damages for restitution.  As the Amy cases show, no court has as yet been able to come up with a method, and by punting on the decisions has created a range of $500 to $3.4 million in restitution imposed on various defendants. 

No matter how sympathetic the victim, or unsympathetic the defendant, restitution must be rationally related to proximately caused damage or it’s just an arbitrarily imposed fine that goes to the victim rather than the government.  No overwrought argument is going to change that, and no appellate order is going to turn an irrational application of law into a principled method upon demand.  It just can’t be done because there is no principled way to make sense of this ill-conceived law.

9 thoughts on “Rationalizing Restitution Revisited

  1. BadLawyer

    Provocative post, Scott.

    As a civil trial lawyer I participated in the national effort to create civil remedies for victims of child sexual abuse both against perpetrators in families against their children and against institutions including some of the earliest claims presented against the Catholic Church, et al. Throughout this period it was not uncommon to come across child pornography created by perpetrators in police investigatory files that became available on a limited basis to us. This stuff is stomach turning and heart breaking.

    In seeking a civil remedy we pioneering lawyers had to overcome myriad obstacles laid in our path not the least of which was “proving damages with certainty.” It’s axiomatic that damages must be certain not speculative. Furthermore damages must be directly and proximately caused by the defendant.

    Having completed a 5 month full federal term of imprisonment with the white collar criminal elite at Morgantown, WV I had my eyes opened to some restitution orders that seemed to be based on spun sugar. While it doesn’t take a CDL to understand that grand theft and other indictments are based on imaginative aggregations often calculated to sensationalize charges I’m surprised at the restitution orders that are based on “retail” or some other speculative theory. It seems to me that in assessing the “harm” to Amy–the courts are unsuccessfully grappling with concepts of individual psycho-sexual injuries caused or not caused by certain metaphysical harms attributable in many instances to disconnected acts.

    Certainly the crime against Amy was real. Now, how to deal with the sickening stickiness of it–I’m not sure a civil federal court can deal with it.


  2. Mark Draughn

    God, what a mess. I can only follow about half of what you’re talking about, but it sounds like a mix of shaky metaphysics and almost criminally bad lawmaking. It must be nice to be a legislator: You get to take credit for waving your hands in the general shape of an idea, and then you let hundreds of lawyers fight over the details for the next ten years.

  3. Aaron G

    I think restitution serves both utilitarian and retributive goals very, very poorly in most cases.

    I’m sure we could come up with an arbitrary way to determine restitution for any kind of property interest violation, but anything outside of simply property theft/destruction should be remedied by private law.

  4. SHG

    Restitution should never serve a retributive purpose.  There are plenty of other sanctions for that.  While it may work out that way, and appear that way, restitution is not a fine and should never be imposed as just another sanction.

  5. Michael Drake

    Jonathan Edelstein gets it right (in the comments at Berman’s blog): “The principled thing to do would be to recognize that there’s no Daubert-compliant proof of proximate cause in these cases. Another principled thing would be to adopt the tort concept of intervening cause as well as proximate cause, and to recognize that the Federal notification system is a superseding cause that cuts off the viewer’s liability.”

  6. SHG

    Not sure where Daubert-compliant proof comes into this, or what purpose is serve by some hybrid tort analysis about intervening cause.  If there can be no damages proximately caused by the defendant, then damages can’t be shown and resitution does not lie.  There’s little benefit in making this more complex to reach the same, and only, principled conclusion.

  7. Michael Drake

    Well, the concept of proximate causation is a borrowing from tort, so a complementary tort analysis incorporating intervening causation seems sensible enough.

    Of course I share the intuition that there is simply no harm proximately caused by possession. But I wouldn’t expect a judge to rule for my client based on my intuitions. (Then again, I wouldn’t necessarily expect a judge to rule for my client based on ideally cogent legal reasons, either.)

  8. SHG

    While proximate cause is a tort concept, I don’t think it was used to borrow further from tort as much as because the mean is the word is itself well defined.  I’m happy with proximate, and prefer to stop there and put the onus on the prosecution to show a direct causal link between conduct and damage. 

    We don’t get a lot of decent decisions, or even language. Let’s not muck it up with any more tort words than absolutely necessary.

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