Second Circuit Puts Brakes On The “Amy Machine”

As always, any post relating to “Amy” begins with the caveat of the horror of what happened to a young girl victimized by being forced to engage in kiddie porn. That’s never been the issue before, and it isn’t the issue now. But being the poster child for restitution against defendants convicted of having watched kiddie porn, the Amy saga continues.

One of the pressing questions was whether every person convicted of possessing images of Amy would be jointly and severally liable for the more than $3 million in damages determined to be due her.  The Second Circuit has finally chimed in with Judge Denny Chin’s opinion in United States v. Lundquist.

The Court accepted as reasonable Northern District of New York Judge Glenn Suddaby’s finding that the defendant’s pro rata share of restitution was $29,754.19, which was calculated rather simplistically by taking the total amount of $3,381,159 and dividing it by the number of individuals convicted for possessing Amy videos or images, which now totals 113.  Mind you, the original images were done by Amy’s uncle, and these are the people convicted of possessing them.

The Court rejected, however, the contention that all Amy defendants should be held jointly and severally liable for the total amount of Amy’s loss based on basic statutory interpretation of 18 U.S.C. § 2255, concluding that while the judge could have held defendants who were jointly prosecuted to be jointly liable for their respective restitution amount, the statute did not permit joint and several liability across prosecutions.

The more interesting aspect of the Second Circuit’s decision was its discussion as to whether the defendant’s viewing of Amy’s images was a proximate cause of her damages.

Of course, what justice demands is heavily dependent on the circumstances. Hence, there can be “no bright line demarcating a legally sufficient proximate cause from one that is too remote. Accordingly, we decline to adopt a rule mandating the type of proof victims of child pornography must present before they can obtain restitution. It is sufficient if the evidence shows that there is more likely than not “some direct relation between the injury asserted and the injurious conduct alleged.” (Citations omitted.)

The “fight” for restitution for Amy began in 2008, with a victim impact statement expressing the harm done her at the time. Updated psychological reports were subsequently created, though none mentioned that harm was caused by this specific defendant.

Although the reports do not mention Lundquist specifically, they show that Amy continued to suffer harm as a result of learning about new possessors of images of her abuse during the time period when she would have learned about Lundquist. Accordingly, the new reports could potentially “speak to the impact on Amy caused by this defendant.”

But then, Amy did come to learn of this defendant’s existence which, based upon the theory of harm promulgated in the psychological reports that each new instance “re-victimized” her by impairing her sense of safety, exacerbated her loss. And indeed, by that metric, and the fact that the Amy images remain available on the internet and will likely be there forever, she will never achieve closure and will suffer the psychological impairment forever.

The irony is that the nature of her harm is brought about by learning of a new criminal defendant who possessed her images.  So how did Amy find out, and thus suffer the harm for which she claims restitution?

We acknowledge that it may appear anomalous to tie a defendant’s liability for restitution directly (and often solely) to action taken by the government. A victim of a child pornography crime ordinarily learns of a defendant’s offense (and thereby can make a showing of proximate cause) only after receiving notice from the government. The government’s role in the chain of causation, however, is an unavoidable, practical consequence of Congress’s decision that child pornography victims must be given notice of the crime committed against them and an opportunity to assert their rights. We conclude that this role does not provide a basis for denying restitution to a victim harmed by a defendant’s actions.

See how that works?  The government is required to notify the putative victim by statute. It does so. Its notice gives rise to the basis for the loss for which restitution is similarly required by statute.  And, as the Court states, it’s “unavoidable.”

The problem, which Judge Chin obviously recognizes, is that the proximate cause of Amy’s “re-victimization” isn’t that someone on the internet watched these horrible videos, but that the government notified Amy that it happened.  The solution, if there was either a sincere belief that the basis for restitution, the “re-victimization,” was real or that a sincere concern for Amy’s welfare belied any of this, would be to modify the law so that the government wouldn’t be required to cause the harm.

There is also the potential of Amy’s lawyers, who actually receive the government’s notice, not telling her and thereby protecting her from further pain, but then there wouldn’t be more money to collect. That wouldn’t work at all.  No pain, no gain.

An interesting question that the Court failed to discuss is whether the simple math employed to come up with an amount of restitution for Lundquist would be altered if and when additional Amy defendants are convicted.  If it was reasonable to divide the total loss by the current number of defendants, does it remain reasonable if there are additional defendants?

What if there are another 1000 defendants convicted, or 10,000?  This is the internet, and it is hardly outside the realm of reality that Amy images will be there forever.  And, of course, there is no shortage of sick individuals who get their kicks from watching this crap.  With each new conviction, the calculus changes, but will that affect the amount of restitution?  Should it? Can it, since the judgment has to be finalized?

At least there aren’t 113 defendants jointly and severally liable for the total amount of loss, but bear in mind that there is no assurance that Amy will recover much, if anything, from any of these defendants. Or maybe she will get her loss many times over. What a mess.


4 comments on “Second Circuit Puts Brakes On The “Amy Machine”

  1. John Burgess

    It’s a complete mess and another shining example of not thinking out laws written in knee-jerk reaction to the horror of the day. The way this law is written (and being interpreted by the courts), child-porn viewer 200,000 will be obliged to pay $16.91 as ‘his share’ of damages. Or, perhaps the figure each creep has to pay will have to be recalculated with each conviction in order to ‘make it fair’.

    In my dream world, Congress spends half of its time un-writing laws it has already passed.

    1. SHG Post author

      I believe the Supreme Court has granted cert on the Amy restitution issue, but you are absolutely right about Congress passing laws directed toward the evil flavor of the moment that ends up being completely unworkable later.

  2. Marc R

    If I were a defendant, I would want wealthy defendants with good credit history to get added to the mix. J&S liability affects the more financially honest person a lot worse than the insolvent deadbeat.

    On the other issue, I don’t understand how additionally viewers up Amy’s harm. The horrible event already happened. Is it worse for 10 guys to view the videos 100 times or for 10,000 guys to watch it once? And if each additional viewer enhances her harm, then why is the damage amount capped? Instead of decreasing each defendant’s share of the pie, why not increase the amount overall for each additional viewer/viewing?

    1. SHG Post author

      I understand the theory that each new viewer expands the group and thus increases Amy’s pain, anguish, humiliation, fear of personal safety, etc. It’s squishy stuff, but I can’t imagine anyone wants to argue that her claim to damages aren’t legitimate under the circumstances. The 2d Cir. just took it all pretty much for granted.

      As for recovery, former peds don’t have great employment stats, so if they don’t have money beforehand, there isn’t a strong likelihood of getting much after prison.

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